JUDGMENT

Mehrotra, J. - This is the defendants' second appeal arising out of a suit for declaration and injunction. The plaintiff sought a declaration that he was the adopted son of one Sita Ram Tewari and was as such in possession over the suit plots. A declaration was further sought that the decree No. 459 of 1958 passed by the court of Munsif West, Ballia was null and void and the defendants did not acquire any right under the said decree. A permanent injunction was claimed seeking to restrain the defendants from interfering with the plaintiff's possession over the suit plots.

2. The brief facts are these: The plaintiff claimed that he was adopted by Sita Ram Tewari on August 2, 1936 after the fulfilment of the necessary ceremonies and that in this connection Sita Ram Tewari also executed a registered deed of adoption dated August 28, 1956. Sita Ram Tewari is alleged to have died on December 28, 1957. It is alleged that he was separate from his collaterals who were all descendants of one Mahipal Tewari. The plaintiff claimed that on Sita Ram's death he came in possession over the suit plots which were separately enjoyed by Sita Ram Tewari during his life time. In the village papers it is alleged that the plaintiff's name was mutated. Sita Ram's mother, Jamuna Kunwar, is alleged to have died much earlier than the institution of the suit. The plaintiff has further alleged that suit No. 459 of 1958 was filed by the defendants against Sita Ram and his mother, Jamuna Kunwar (both of whom were actually dead on the date of the institution of R-23 the suit), on the false allegation that both of them had renounced the world and had become Sanyasis. A fictitious report of service of process was obtained by the defendants in the said suit and an ex parte decree was passed in favour of the defendants therein. The said decree was claimed to be a nullity having been obtained against dead persons and as a result of misrepresentation and fraud.

3. The defendant No. 1 alone contested the suit and against other defendants it proceeded ex parte. Apart from other pleas the following allegations of fact were made in the written statement:

(a) The plaintiff was never adopted by Sita Ram.

(b) Sita Ram became a Sadhu about 31 to 32 years back and was civilly dead. Her mother, Jamuna Kunwar, renounced the world about 11 to 12 years back and similarly she also had a civil death

(c) Both Sita Ram and Jamuna Kunwar were alive on the day when the defendants filed suit No. 459 of 1958 and in fact both of them were said to be alive even during the pendency of the suit (In fact the learned counsel for the defendants-appellants, Shri R. Pandey, stated before me that even during the pendency of the appeal in this Court Sita' Ram was alive).

(d) The descendants of Mahipal Tewari were joint and not separate and Sita Ram renounced the world in a state of jointness of the family. Hence the defendants became the owners of the suit plots by survivorship.

(e) The decree passed in suit No. 459 of 1958 was not passed against dead persons and was not obtained by misrepresentation and fraud. There was proper service of process in the suit.

(f) The plaintiff's uncle and next friend, Jalesar Tewari and his father, Sarju Tewari, bore enmity against the defendants and they made several attempts to garb the share of Sita Ram in the properties in question. They got a partition suit filed in 1951 by Jamuna Kunwar. When the defendants joined contest in the said suit, she withdrew the same and renounced the world another partition suit was got filed in 1954 in the name of Sita Ram. Again, when the defendant put in contest, the suit was withdrawn on July 18, 1957. Sarju Tewari got his name recorded over certain suit plots but on the defendant's protest his name was directed to be expunged on March 31, 1958. Sarju Tewari had earlier filed a suit on October 8. 1954 impleading the present defendants and Sita Ram Tewari as the defendants therein. He (Sarju Tewari) obtained an ex par