Decided on September 25,1991

BUDH RAM Respondents


- (1.) Plaintiff has approached this Court by filing this appeal challenging the judgment and decree passed on October 7, 1982 by District Judge, Solan and Sirmaur Districts at Nahan, allowing the appeal of Budh Ram, defendant -respondent and dismissing the suit of plaintiff and thereby reversing the judgment and decree passed on December 27, 1977 by Sub -Judge First Class, Nalagarh.
(2.) Assa Ram, plaintiff -appellant, filed a suit against Budh Ram defendant -respondent impleading Sukh Ram, his own father as defendant No. 2 A decree for possession was claimed on the ground that the property in the hands of his father Sukh Ram was a coparcenary Joint Hindu Family property, which had been sold to Budh Ram without any legal necessity, which was not legal. Defendant Budh Ram contested the suit and denied that the property was coparcenary or that it was an ancestral property in the hands of Sukh Ram. It was specifically pleaded that the sale by Sukh Ram was for legal necessity and the consideration had been applied to meet the legal necessity which had arisen. Sukh Ram filed a written statement admitting the claim of the plaintiff The trial Court held the suit land to be coparcenary Joint Hindu Family property. It was also found that the property had been sold without any legal necessity Alienation was found as not binding upon the interest of the plaintiff. Since Sukh Ram had died during the pendency of the suit, therefore, the Court granted decree for possession in favour of the plaintiff. Feeling aggrieved, the defendant took the matter in appeal. On behalf of the defendant, during the course of arguments challenge was confined only to the first two issues, which were as follows to - 1. Whether the land in suit was a part of the coparcenary property of the plaintiff and defendant No. 2, as alleged ? OPP. 2.Whether the land in suit was alienated for legal necessity, as alleged ? OPD.
(3.) Considering arguments on first issue, the lower appellate Court found that Jwala father of Sukh Ram as well as Sukh Ram himself were not the full owners of the property but held the same as Adna Malik till the promulgation of the PEPSU Abolition of Ala Malkiyat Rights Act, 1954 (briefly the Act) and by virtue of this legislation, the rights of Adna Malik were enlarged, whereafter Sukh Ram held the property as full owner. Abolition of Ala Malkiyat rights, according to the findings of the lower appellate Court had created a new kind of estate in the Adna Malik and thereby had altered the nature and character of the property in his hands. Though the Adna Malkiyat rights held by Sukh Ram were found to be ancestral but since after the coming into force of the Act, on an enlargement of the rights, it was held that the land in dispute cannot be considered ancestral qua the plaintiffs. In view of this finding, the lower appellate Court did not thought it fit to return any finding on the second issue as to whether the sale was for legal necessity. Appeal of the defendant was allowed by reversing the judgment and decree of the trial Court. The suit of the plain tiff for possession was dismissed. Plaintiff now, feeling aggrieved, has filed this appeal before this Court.;

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