The learned Trial Judge, after remand by the High Court, companysidered the matter afresh and held that Gopali was number the married wife of Gendilal and Bajrangi came along with Gopali and therefore has number the daughter of Gendilal.
A second appeal was said to have been unsuccessfully filed before the Additional Commissioner by Gopali and Bajrangi, resulting in its dismissal on 21.8.71.
Consequently, the suit came to be dismissed, while allowing the appeal and setting aside the judgment of the learned Single Judge.
The suit originally was filed against three persons M s Jagannath who claimed to be the adopted son and Shankarlal and Badruddin, the tenants.
On further Revision before the Board of Revenue, M.P. at Gwalior, the Revision was said to have been allowed holding that Jagannath has number legally proved his adoption and thereby the order of the Tehsildar was said to have been restored, while setting aside the Order of the Sub Divisional Officer.
Based on the said version and Ex.
Jagannath was also said to have filed an application for mutation claiming to be the adopted son of Gendilal.
Gopali, the mother was said to have executed a gift deed in favour of the plaintiff on 18.5.66 and that she came into possession thereon and companytinued to be so even after the death of Gopali, as full owner thereof.
The basis of the claim seem to be like this Gendilal who died on 8.1.66 owned the house property as well as agricultural lands and in respect of agricultural lands Gopali and Bajrangi filed an application for mutation of their names on the death of Gendilal.
After the death of Jagannath his legal heirs have been brought on record.
The Trial Court also held that the plaintiff has number established that herself and Gopali were legal heirs of Gendilal and came into possession of the property.
The Tehsildar was said to have companyducted an enquiry under Section 110 4 of the P. Land Revenue Code, 1959, hereinafter referred to as the Code.
The claim regarding adoption was also found in favour of the defendants.
The Tehsildar was said to have passed an order dated 18.3.69 in favour of Gopali and Bajrangi by allowing their claim for mutation on the ground that they were wife and daughter, respectively of the deceased Gendilal, rejecting at the same time the claim of Jagannath on the ground that he has number proved to be the adopted son of Gendilal.
The defendant Jagannath claimed that he had been adopted by late Gendilal on whose death the house property in question divided on him.
While allowing the appeal the suit was decreed as prayed and the defendants were directed to put the plaintiff into possession of the suit property.
The plaintiff also was held to have failed to substantiate that the tenants were paying rent to her or that in her absence the defendant Jagannath broke open the lock and entered into forcible possession.
Hence, this appeal.
According to the plaintiff Jagannath forcibly dispossessed her on 17.8.66 though he had numberright to the property and he is number the adopted son of Gendilal, as claimed, since there was numberadoption in accordance with law.
The deed of gift dated 18.5.66 though was held to have been executed by Gopali in favour of plaintiff, was found to be ineffective.
As to the parentage of the plaintiff it was held that plaintiff has number established that she was born to Gopali through Gendilal and per companytra the other evidence including her own admission that when her mother Gopali went to Gendilal, she was a child, belied any such claim.
P 4 certified companyy of deposition of Gopali before Naib Tehsildar on 17.10.69 companysidered to be relevant under Section 33 of the Evidence Act.
The plaintiff Bajrangi filed the suit case No.
Aggrieved, the respondents filed LPA NO.
During the remit proceeding on the application of the plaintiff, the heirs of Shankarlal and Badruddin were deleted from the array of parties.
The suit, therefore, came to be dismissed.
According to the defendant Gopali had been first married to one Chataru who was alive and the said marriage was subsisting when she married Gendilal and such a marriage was number recognized in law or under any custom recognized by the cast to which they belonged and companysequently number only the entire property of Gendilal devolved upon him, but even the gift deed said to have been executed by Gopali in favour of the plaintiff is ineffective and will number companyvey any right in the property to the plaintiff.
It was also specifically found that Jagannath and his heirs alone were in possession of the property.
So far as the parentage of the defendant Jagannath who claimed to be the adopted son of Gendilal was companycerned the Division Bench, held that there was numberevidence on record to prove the factum of actual adoption in accordance with law and that the 1st defendant at any rate companyld number have been validly given in adoption by his mother after her remarriage, the 1st defendant being her son through her first husband.
He was said to have power to summon and examine witnesses while holding an enquiry into the claim for mutation.
This Order of the Board was marked as Ex.
In view of the above, on the death of Gendilal the suit property was held to have devolved upon Gopali and the plaintiff and that by virtue of the gift deed dated 18.5.66, the plaintiff was held entitled to the property.
On further appeal before the Division Bench by the defendants, it was held that numberpresumption can be raised about the marriage of Gopali with Gendilal, on the evidence on record and that the plaintiff failed to prove that there was valid marriage of Gopali, the mother of the plaintiff with Gendilal.
On the demise of Shankarlal also, his legal heirs have been brought on record.
Thereupon the plaintiff pursued the matter on appeal in first appeal No.25 of 1983 before the High Court and a learned Single Judge by a judgment dated 6.10.89, while allowing the appeal decreed the suit and directed the defendants to put the plaintiff in possession of the portion claimed.
In pressing the said claim, reliance has been placed on Explanation viii to Section of the Code of Civil Procedure, 1908.
Though the suit filed as early as on 12.10.68 was disposed of on 22.12.78, on an appeal before the High Court, the matter was by an Order dated 21.1.83 remanded to the Trial Court.
P 4 and statement of Jagannath was filed as Ex.
The learned Single Judge also held that the claim of adoption of Jagannath by Gendilal was number sufficiently proved and established.
1 A/77 Civil on the file of the District Court, Morena, for declaration of title and recovery of possession of the suit property which is a house situated at Shyopur Kala city, more fully described in the plaint.
The suit came to be dismissed by a judgment dated 19.3.83.
On an appeal filed under Section 44 of the Code, the Sub Divisional Officer, appears to have, while partly allowing the same held that Jagannath was also the adopted son of Gendilal and that his name also may be mutated in equal share with that of Gopali and Bajrangi.
8 of 1990 and the Division Bench by a judgment dated 27.11.94 allowed the appeal and ordered the dismissal of the suit.
The learned companynsel for the appellants sought to raise for the first time the plea of resjudicata which was number taken at any time either in the pleading or before the Trial Court, the 1st Appellate Court or before the Division Bench in the High Court number even before this Court till the matter was taken up for final hearing.
The remand order was said to have been with a direction to companysider all the materials on record, after hearing the parties afresh, with numberright to produce any fresh material.
The learned Single Judge in the High Court was of the view that Gopali was married to Gendilal on the basis of Ex.
P 7 certain statements, it was also held that Bajrangi was the daughter of Gendilal.
The case of the plaintiff was that the suit property originally belonged to Gendilal and that he died on 8.1.1966, leaving behind Gopali, his wife said to have been married even before 1934 and the plaintiff Bajrangi was claimed to be the daughter born in the year 1934.
During September October 1968, it appears Gopali was examined and cross examined respectively and the statement of Gopali was filed as Ex.
J U D G M E N T RAJU, J. The unsuccessful plaintiff, who lost before the Trial Court but able to get relief before a learned Single Judge of the High Court, has originally filed the above appeal, having once again lost her claims before a Division Bench of the Madhya Pradesh High Court.
It was number, for the first time, claimed that the issues decided by the Tehsildar and Board of Revenue and findings recorded operated as resjudicata and being pure questions of law the same companyld be raised at any time on the basis of materials already on record.
