Decided on April 05,1950

S. Basant Singh And Ors. Appellant
Munshi Singh And Ors. Respondents


Kartar Singh, J. - (1.) THE suit out of which this appeal has arisen was instituted by Basant Singh and others against Munshi Singh, son of Pakhae Singh, Mangal Singh, son of Ran Singh, Gajjan Singh, son of Dhonkal Singh, Chanan Singh, son of Sunder Singh Defendants 1 who are described as principal Defendants and Mt. Sham Kaur, widow of Jiwan Singh, Mt. Kartar Kaur and Mt. Bhagwan Kaur widows of Sewa Singh Defendant 2 who were impleaded as pro forma Defendants having not joined in the suit. The following pedigree table will facilitate the understanding of the history of the property and the nature of the dispute
(2.) IT was alleged in the plaint that the Plaintiff and Defendants 2 were the collaterals of one Bakhshish Singh who sold the land in dispute to Defendants 1 for Rs. 700 by a registered sale deed dated 1 -3 -1966. It was further alleged inter alia that Bakhshish Singh had died about 4 years before the institution of the suit which was instituted on 20 -8 -2001 and that the cause of action had arisen for possessory suit after the death of Bakhshish Singh. The allegations were of the usual nature namely that the land was ancestral and Bakhshish Singh had no legal valid necessity to transfer the property. The contesting Defendants resisted the suit on various grounds including that the Plaintiff were not the collaterals of the vendor and that the land was not ancestral qua the Plaintiffs. The following issues were struck out of the pleadings: 1. Whether the suit is within time? O.P. 2. Whether the Plaintiffs are entitled to bring the suit in the presence of Mt. Sham Kaur wife of Jeon Singh, nephew of Bakhshish Singh alienor? O.P. Whether Plaintiffs are entitled to sue for possession of the share of Defendants No. 3 (Sham Kaur, Kar -tar Kaur and Bhagwan Kaur)? O.P. 3. WHETHER Plaintiffs are collaterals of Bakhshish Singh and is the land in dispute ancestral qua the Plaintiffs? O.P. 4. WHETHER the alienation in dispute has been affected for legal necessity? O.D.
(3.) THE trial Court on the appreciation of the evidence brought on the record came to the conclusion that the Plaintiffs were proved to be the collaterals of the vendor in the third degree as borne out by the pedigree -table and furthermore that the property was also proved to be ancestral inasmuch as the name of the common ancestor was mentioned in the pedigree, table prepared at the time of regular settlement and some of the khatas were still joint amongst the parties. The finding on other issues also went in favour of the Plaintiffs and this suit was decreed for possession of two -third of the land in suit representing their shares including that of Mt. Sham Kaur and excluding that of Kartar Kaur and Bhagwan Kaur. The learned District Judge on an appeal did not see eye to eye with the learned Sub -Judge and set aside the judgment and decree of the trial Court mainly on the question that the property was not proved to be ancestral. It was also held that legal necessity was proved to the extent of Rs. 263 -4 -0 for which amount the property was already mortgaged and was got redeemed by the vendees on payment of that amount. The Plaintiffs have come in second appeal in this Court and Mr. Atma Ram arguing on their behalf strenuously contended that the learned District Judge has not properly appreciated the documentary evidence adduced in support of issue No. 4 that the property was ancestral. The argument of the learned Counsel was two -fold, firstly that the area in possession of the two branches was almost equal and the approach of the learned District Judge in coming to the conclusion that there was much disparity between the holding of the two branches was erroneous inasmuch as according to the Chundavand system which was admittedly prevailing in the family as evidenced from the Kafiat Dehi as well as from the statement of Defendant's own witnesses, the area in possession of the two branches was almost equal. In this respect, Mr. Atma Ram carried me through the evidence comprising over the pedigree -table Ex, P.C. and another attached copy of a pedigree -table Ex. P.D. as well as the Kafiat Dehi and the Parat Muamla. The learned Counsel sought to infer from Ex. P.C. that the family property was divided in 5 thullas and the property in possession of the branch of Gujjar Singh son of Pahara Singh common ancestor of the parties in Thulla Mehala amounted to 167 bighas 12 biswas, and under Thulla Fattah to 16 bighas 12 biswas. The counsel further maintained that 85 bighas and 11 biswas were also held by this branch as share of the joint khatas still existing and the whole area accordingly amounted to 259 bighas and 15 biswas. Similarly, on the other side, the holdings of Gopala, Harnam and Tara Singh sons of Pahara Singh from his other wife consisted of 80 bighas 13 biawas plus 164 bighas 19 biswas and 15 bighas and 9 biswas as evidenced from Thulla Fattah and joint khatas. The Counsel concluded that the area was approximately equal at the time of regular settlement and in the presence of joint khatas the presumption could be safely raised that the property was some time held by the Common ancestor. It was further urged that the property was also recited as ancestral property in the sale -deed and Mit Singh one of the witnesses had also stated in his deposition that the property in dispute was ancestral. On the strength of this admission of one of the D. Ws. and the recital in the sale deed as well as on the foot of the construction put by the learned Counsel on Ex. P.C. and P.D. it was averred that the property was proved to be ancestral. On the other hand, Mr. Lachhman Dass brought home to the other side that one of the Thullas namely Thulla Dhaliwal was being comfortably ignored which also forms a part of Ex. P.C. In this Thulla it is definitely mentioned that the branch of Gujjar Singh held 185 bighas 9 biswas while that of Harnam Singh and other 25 bighas 12 biswas. The counsel argued that if this area be added into the area specified under Thulla Nihala and Thulla Fattah the disparity would be much. Mr. Lachhaman Dass referred to another document Farad Muamla Parat of 1931 which indicates that; Gujjar Singh was possessed of 250 bighas separately from that of his father Pahara Singh who was possessed of 364 bighas. The counsel argued that the separate holding of Gujjar ancestor of the Plaintiff, clinches the matter beyond any manner of doubt that there was a partition between Gujjar Singh and other sons of Pahara Singh the common ancestor of the parties.;

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