JUDGMENT
Lindsay and Sulaiman, JJ.
1. This is a plaintiff’s appeal arising out of a suit for recovery of possession of considerable property, together with mesne profits, against several sets of defendants. The plaintiff’s case was that one Maheshwar Dayal, son of Sri Kishen Das, was the last male owner of the property and died in the year 1895. On his death he was succeeded by his mother Musammat Gomti Kunwar, who died in 1903; and on her death his grandmother Musammat Darab Kunwar remained in possession till 1906 when she also died. On the death of this second limited owner the plaintiff claimed to succeed as Maheshwar Dayal’s nearest collateral, alleging that he was connected with him through Jwala Datt, who was Harsukh Rai’s daughter’s son and was alleged to be his adopted son also.
2. The suit was instituted just within 12 years of the death of Musammat Darab Kunwar. In the plaint there was no express mention as to when the alleged adoption of Jwala Datt took place, nor was it stated whether he had been adopted by Harsukh Rai himself or by his widows after his death, and in the latter case, whether the widow had any authority to adopt. The plaintiff contented himself by simply stating that he was the heir of Maheshwar Dayal according to the genealogical table given in the plaint. By subsequent oral, pleadings the plaintiff asserted that Jwala Datt had been adopted after the death of Harsukh Rai by his widows with his authority, and that there was a custom among Vaish Agarwals to adopt a daughter’s
son.
3. Separate written statements were filed on behalf of various defendants. Musammat Makundi Kunwar and Musammat Eachchi Kunwar, defendants Nos. 1 and 2, pleaded that Nihal Chand and Sri Kishen Das had been joint, that Jwala Datt had never been adopted by Harsukh Rai’s widows, nor had the widows any authority to adopt him, nor could an adoption of a daughter’s son be valid. They further set up the adoption of Jai Bhagwan Sarup, defendant No. 3., thereby denying that the plaintiff was the nearest collateral. Jai Bhagwan Sarup, defendant No. 3, asserted that Musammat Lachchi Kunwar, the widow of Bisheshwar Dayal, had adopted him and thus he became the nearest heir of Sri Kishen Das or Maheshwar Dayal and would in any case exclude the plaintiff. He also pleaded that the plaintiff was estopped from denying his adoption and. urged that the claim was barred by time. Lala Faten Chand, defendant No. 4, filed a separate written statement in which he admitted generally the pedigree given in the plaint, with the exception of the existence of Maheshwar Dayal. He pleaded, inter alia, that no son qualified to inherit was ever born to Sri Kishen Das, and set up a will of Sri Kishen Das in favour of Musammat Gomti Kunwar and a subsequent will of Musammat Gomti Kunwar in his own favour. By a subsequent oral pleading he denied the validity of the adoption and the existence of the alleged custom. Defendants Nos. 5–7 in addition set up their claim as bond fide purchasers for value from ostensible owners.
4. Twenty-eight issues were framed in the court below, out of which all the issues, except issues Nos. 3, 4, 8, 26 and 27, have been found in favour of the plaintiff. The grounds on which the plaintiff’s claim has been dismissed are that the factum of the adoption of Jwala Datt has not been established, nor has it been proved that Harsukh Rai’s widows had the authority to adopt. The plaintiff’s contention that an award of the year 1873 either operated as res judicata or concluded the matter as a family arrangement has been overruled.
5. The learned advocate for the plaintiff has challenged the findings of the learned Subordinate Judge on the issues decided against his client.
6. We propose to deal with the main question of fact, namely, that of the alleged adoption first and shall deal with the other subsequent questions later on.
[After discussing the evidence, the judgment continued:]
7. Having considered the entire evidence, both oral and documentary, we are of opinion that the balance of evidence is distinctly in favour of the defendants and we think that the learned Subordinate Judge has come to the right conclusion in holding that the plaintiff has failed to establish that Jwala Datt had been adopted by the widows of Harsukh Rai.
8. In view of this finding it becomes unnecessary for us to go into the question of the authority to adopt or any other of the questions raised in the court below.
9. There, however, remains for us to consider the argument of the learned advocate for the plaintiff that in view of the admissions contained in Lala Fateh Chand’s pleadings the plaintiff is entitled to a decree against him in respect of the properties in his possession. We have already pointed out that the plaint itself was very defective inasmuch as it did not make any express allegation that Jwala Datt had been adopted by the widows of Harsukh Rai or that his widows had any authority to adopt. The fact of adoption was mentioned only in the genealogical tree given in the plaint. The defendant Lala Fateh Chand generally admitted the correctness of the pedigree, with one exception. When the time for the oral pleadings came, the plaintiff’s vakil stated that Jwala Datt had been adopted by the widows of Harsukh Rai after his death and that there was a custom among Vaish Agarwals under which the adoption of a daughter’s son was valid. Lala Fateh Chand’s vakil, although admitting the factum of adoption, denied the validity of it, basing its invalidity on the Hindu law. The other defendants to the suit had expressly denied the adoption of Jwala Datt. The plaintiff took upon himself the burden of proving the alleged adoption and led evidence to that effect without any reservation. After both parties had given evidence and the court had come to the conclusion that the plaintiff had failed to prove the case set up by him, it would not lie in the mouth of the plaintiff to turn round and ask for a decree against one of the defendants who had not expressly denied one of the facts in issue, though he had denied the validity of the adoption and the maintainability of the claim of the plaintiff altogether. If such a request were allowed, the result would be that in the same suit the court would have to record one finding in favour of the plaintiff based on the admission of one of the defendants to the suit, and another finding on the same issue against him based on the evidence. In an analogous case, namely that of Janki Das v. Ahmad Husain Khan (1902) I.L.R. 25 All. 169 this Court remarked that it would-be illogical to hold in one and the same decree that the full amount of consideration in a mortgage was paid as far as the mortgagor was concerned and that another sum was paid as far as the subsequent transferee was concerned, and that the proper thing to do would be to allow all the defendants to take advantage of the plaintiff’s failure to establish the case set up by him. In addition to this we would like to point out that Order VIII, Rule 5, of the Code of Civil Procedure, which regards allegations of fact in the plaint, if not denied specifically or by necessary implication, or staled to be not admitted, as taken to be admitted, gives a discretion to the court to require any facts so admitted to be proved otherwise than by such admission. We think that in the present case, in view of the ambiguous assertion made in the plaint and the unsatisfactory way in which the pedigree was admitted and the validity of adoption denied by one of the defendants, the court below was justified in calling upon the plaintiff to prove his case. The plaintiff having undertaken to prove it and having failed to do so cannot now fall back upon the partial admission of one of the defendants and ask for a separate decree against him. We are of opinion that when the plaintiff has failed to prove the alleged adoption of Jwala Datt, without proving which he cannot possibly succeed, his whole suit must fail against all the defendants. The plaintiff has in no way been prejudiced and no question of estoppel can arise under the circumstances.
10. In our opinion the appeal is without force and is hereby dismissed with costs.
11. We direct that the respondents will be entitled to one set of costs for counsel’s fee as against the plaintiff appellant, in addition to the printing and other charges legally taxable. Counsel’s fee is allowed to be divided equally between respondents Nos. 1 and 2 (first set), respondent No. 3, Jai Bhagwan (second set) and respondent No. 4, Lala Fateh Chand (third set).
12. Lala Fateh Chand has filed a set of cross-objections challenging some of the findings of the learned Subordinate Judge as well as urging that the amount of costs awarded to him should be increased by a sum of Rs. 216-10-8.. As the decree was in his favour it; was unnecessary for Lala Fateh Chand to file any separate objection. As to the question of costs, we are of opinion that in view of the unsatisfactory defence set up by him we should make no modification. The result is that the cross-objections are dismissed with costs.
