Decided on February 10,1950

Mana And Anr. Appellant
Mt. Diali Etc. Respondents


- (1.) THE only question that arises for determination in this second appeal is whether the suit property was proved to be ancestral qua the Plaintiffs. In the trial Court the contesting Defendants even denied that the Plaintiffs were in any way related to Nagahia, who gifted the suit property to the daughters of his brother Dharma. The pedigree table that was placed on the record by the Plaintiffs goes to show that Mehtaba was the father of Dharma and Nagahia and the Plaintiffs are the sons of Sahiba. Mehtaba and Sahiba were brothers to each other, their father being Budhu. This means that the Plaintiffs were the third degree collaterals of the donor and in order that the suit property be held as ancestral qua them, they must establish that it belonged to Budhu and from him it descended to Nagahia by succession.
(2.) THE evidence adduced by the Plaintiffs; was documentary, consisting of a number of records from revenue papers and a pedigree table. The learned District Judge has considered the whole evidence carefully and has come to the conclusion that the property has not been proved to be ancestral. After hearing Mr. Kishori Lal counsel for the Appellants we have no hesitation in coming to the conclusion that the finding of the District Judge was correct. It is true that in the settlement of 1960 -61 the land owned by Mehtaba's son was almost equal to that owned by Sahiba's son. It is also clear from the papers of the settlement that the sons of Mehtaba and Sahiba were joint owners of two khatas. This would have ordinarily raised the presumption that probably Mehtaba and Sahiba got the land from their father Budhu. But the other papers produced by the Plaintiffs themselves indicated that this might not have been the case and it was quite possible that Mehtaba and Sahiba continued joint after the death of their father and they went on making acquisitions either jointly or separately. In the copy of Fard Hissa Kassi of 1917, they are both shown owners of land, the measure of which was described as seven annas. The entries given in the copy of Naqsha Parat Vasooli for Rabi 1940 are to the effect that Mehtaba and Sahiba owned separate lands and the share of each amounted to seven annas and ten pies. The learned District Judge has concluded from this document that by 1940 not only Mehtaba and Sahiba were owners of separate lands but that the land owned by each was more than double the land owned by both of them together in 1917. Mr. Kishori Lal argued that these documents should not have been taken into consideration first because, they were not properly exhibited and secondly because there was no presumption that the entries made therein were correct. As regards his first objection all that I need say is that necessary though it is for the Court to exhibit every document which is produced by the parties and is proved, where proof is necessary the fact that this has not been done does not take away from the probative value of a document, particularly when the document, as is the case here, is a certified copy of a public record and no formal proof of it was necessary. There is no force in the second objection either because even if there be no statutory presumption regarding the entries of Fard Hissa Kassi or Parat Mal guzari, the documents having been prepared by the revenue authorities and they being very old it can be presumed that in the absence of anything proved to the contrary the entries contained therein were correct. It was also urged by Mr. Kishori Lal that there was no regular measurement of land in Patiala State before 1860 -61 when the first regular settlement took place and consequently not much importance should be placed to the measurements taken before that time. This may be correct but it must be remembered that the onus to prove that the property was ancestral lay upon the Plaintiffs and since the entries referred to in the two documents mentioned above indicate that that there was a possibility of additional land having been acquired by Mehtaba and Sahiba after their father's death, the presumption which the Appellants wanted the Court to draw from the fact that their holdings were equal in 1960 -61 and they had two joint khatas, cannot be safely raised. There, therefore, is no reason to interfere with the finding of the District Judge in so far as it relates to land.
(3.) AS regards the houses the Appellants' counsel did not even urge that there was any material on the record from which it can be held that they were ancestral qua the Plaintiffs. The appeal consequently fails and is dismissed with costs.;

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