1. Makhan Singh, who died during the pendency of this second appeal and whose legal representatives are present appellants, has knocked the doors of this Court by preferring this second appeal under section 100 of the Code of Civil Procedure, 1908, assailing the judgment and decree dated 18th March, 1997 passed by the learned Additional District Judge, Shujalpur, District Shajapur dated 18th March, 1997 whereby Civil Appeal No. 75-A/95 of defendants has been allowed by reversing the judgment and decree passed by learned Civil Judge Class-I, Shujalpur in Civil Suit No. 168-A/90 decreeing the suit of plaintiff on 29.3.1993 has been reversed and set aside, as well as dismissing Civil Appeal No. 12-A/95 of plaintiff Makhan Singh for the grant of mesne profit.

2. Makhan Singh whose LRs are present appellants filed suit for partition and delivery of possession in respect to the immovable property, the description whereof has been mentioned in Para 1 of the plaint against defendants. According to the plaintiff, Mst. Muniyabai widow of Ganpat was the Bhoomiswami of the suit property on the death of her husband Ganpat. This position has not been disputed by the parties that Ganpat died in the year 1940. Muniyabai also died on 18.6.1979. The family tree of the parties is as under:

Balwant Singh

Ganpat (dead) Kanhaiyalal (dead)

Muniyabai (Wd/o Ganpat) Devbaksh Makhan Singh

(Def.No.2) (Plaintiff)

Parvat Ajudhyabai Ramprasad

(dead) (dead)

Bapu Mangilal Mohan Sajjan Singh Pappu

(dead) (dead) (Def.4) (Def.1)

3. According to the plaint averments, plaintiff and defendant No.2 Devbaksh are the sons of Kanhaiyalal, who was the real brother of Ganpat and whose wife was Muniyabai. Ganpat was having a son namely Parvat, who was having two sons Bapu and Mangilal. Parvat, Bapu and Mangilal died long back. Ajudhyabai was the daughter of Ganpat who had died during the life time of her mother Muniyabai widow of Ganpat.

4. It is the further case of plaintiff that in order to grab the property of Muniyabai defendant No.2 Devbaksh, in collusion with Patwari of the village got the name of defendant No.1 Sajjan Singh mutated on the basis of alleged adoption by keeping plaintiff in dark and concealing this fact from him. It has also been pleaded by the plaintiff that during the life time of Muniyabai the suit property was recorded in the name of Ajudhyabai, which is also wrong and was without any conveyance deed. Indeed the suit property was of Ganpat and after his death in the year 1940 the suit property was succeeded by his widow Muniyabai.

5. After filing of the written statement plaintiff came to know that according to defendants grand sons of defendant No.2 Devbaksh namely Mohanlal and Sajjan Singh were given in adoption by their father Ramprasad to Muniyabai and Ajudhyabai respectively. The plaintiff thereafter amended his plaint by adding para 5A in the plaint that neither defendant No.4 Mohanlal was given in adoption to Muniyabai nor defendant No.1 Sajjan Singh was given in adoption to Ajudhyabai and the alleged adoptions were not made in accordance with law and the customs and these defendants are not the legally adopted sons of Muniyabai and Ajudhyabai and, therefore, no rights have been vested in defendant 1 and 4. It has been prayed by plaintiffs that since the suit land was of Muniyabai and after her death plaintiff and defendant No.2 who are the real brothers became joint owner of the suit property and, therefore, by filing suit it has been prayed that the suit property be partitioned and possession of half share be delivered to plaintiff.

6. The defendant No.1 Sajjan Singh and defendant No.2 Devbaksh filed joint written statement on 21.10.1981 and after Mohanlal was arrayed as defendant No.4, he had filed separate written statement on 24.4.1990. The defendants No.1 and 2 namely Sajjan Singh and Devbaksh in para 1 of their written statement firstly pleaded Ajudhyabai t