RAM KISHAN Vs. SHEO NARAIN

JUDGEMENT

(1.) Judgment and decree dated l6th January 1996 of the Senior Subordinate Judge, Narnaul, affirming the decision of the trial Court in first appeal, have been assailed in this second appeal by the plaintiff-appellant Ram Kishan.

(2.) The facts giving rise to this 1itigation are that Pirbhu and Kkushala, defendants Nos. 3 and 4, sold the land in dispute to Shiv Narain and Man Bhar, defendants Nos. 1 and 2, for Rs. 6725/- on December 4, 1970. Ram Kishan appellant is son of the vendor Khushala. Babu Lal plaintiff-respondent is son of the other vendor Pirbhu. They brought a suit to preempt the sale as sons of vendors. The learned trial Court held that the plaintiffs and vendors constituted a joint Hindu family and the land in dispute is their coparcenary property. On these findings it was found that the plaintiffs are debarred by Section 10 of the Punjab Pre-emption Act to preempt the sale of the land in dispute. Consequent upon these findings the plaintiff's suit was dismissed. The lower appellate Court concurred with these findings and dismissed the first appeal filed by Ram Kishan. The other plaintiffs Babu Lal not appeal against the decision of the trial Court and he was cited as respondent No. 5 in the appeal.

(3.) The finding of fact concurrently arrived at by the two Courts below regarding the ancestral nature of the land in dispute qua the plaintiffs and the vendors has not been challenged. As a matter of fact this is a pure finding of fact which could not be assailed in second appeal. The contention of the learned appellant's counsel is that the vendors and the pre-emptor are governed by custom, therefore, the Courts below have come to a wrong conclusion that the land in dispute is a coparcenary property. It is said that under custom there is no bar against a son preempting the sale effected by his father even if the sold land is ancestral in nature. This contention deserves to be repelled on the simple ground that the plaintiffs never pleaded that they are governed by agricultural custom. It is well settled that a Hindu is normally governed by Hindu Law unless he alleges and proves that he is governed by Customary Law. Since the appellant did not allege in the pleadings that the vendors and the preemption are governed by custom, he cannot be allowed to put forth this plea at this stage of litigation.