Decided on October 13,1952

DEBI RAM Respondents


CHOWDHRY,J. - (1.) THIS is a second appeal by the plaintiff Bhagwandas against the judgment and decree of the learned District Judge of Mahasu, dated 15 4 1952, dismissing his appeal and affirming the judgment and decree of the Subordinate Judge whereby his suit for a declaration that he was the sole proprietor of the lands in dispute was dismissed.
(2.) THE defendant respondent Debi Ram is plaintiff appellant's uncle. The land in suit consists of 59 bighas 12 biswas 9 biswansis off cultivatory and 1 bigha 12 biswas and 12 biswansis of pasture land in village Bair in ilaqa Kunhwal, 5 bighas 10 biswas and 6 biswansis of cultivatory land in village Galyanda Behna and 8 bighas 1 biswa and 5 biswansis of cultivatory land in village Ghori Dhar, the two latter villages being in ilaqa Ghasnu. They stand recorded in the names of the parties in equal shares. The defendant applied to the appropriate revenue authority for partition of the land according to the recorded shares. The plaintiff opposed that application on the ground that he was the sole proprietor of the entire land. He was directed to have his title established, and thereupon he filed the present suit for the aforesaid declaration. 2. It appears that a partition of joint family properties was effected among the defendant Debi Ram, plaintiff's late father Kundan and a third brother of theirs named Bakshi Ram by agreement under a deed of partition dated 14 Bhado Samvat 83 Kham, which year corresponded to Samvat 1963 Bikrami or 1907 A. D. The property partitioned consisted, amongst other properties, of the land in suit. It was allotted in equal shares to Debi Ram and Kundan, the third brother Bakshi Ram having been. allotted land elsewhere. The self acquired properties of the brothers were specifically excluded from partition in the deed. About two months later plaintiff's father Kundan wrote a letter to the defendant Debi Ram. He referred to the facts that land in Kunhwal had been allotted to them in the family partition, that one Pir Sahai who used to manage the land was not willing to do it any more, and that for a proper management of their respective shares it was necessary to separate them. Accordingly, he suggested to the addressee that they both go to Kunhwal the following day and divide the land equally tenant wise and also the existing stock of grain there. Suggestion relating to land in Kunhwal alone was made, but not to that in ilaqa Ghasnu. Debi Ram sent his reply the same day on the back of that very letter, and it was to the following effect: "The submission of Debi Ram to brother Randan is as follows: As I submitted the other day, I shall take no share in land. All this has been acquired by you. Therefore my request to you is to go to Kunhwal & take possession of it after securing all the papers from brother. Whatever you think proper act according to that. I shall maintain myself on coarse grain earned by my own hands. This submission is made by Debi Ram on 16th Katik 83 Kham." The plaintiff filed the present suit on two grounds: that the defendant had relinquished his share in the land in suit by his said reply, and that, in the alternative, the plaintiff had acquired title to the defendant's share by adverse proprietary possession. Both the Courts below have repelled these contentions, and the plaintiff has now come up in second appeal to this Court.
(3.) THE learned counsel for the defendant respondent took the preliminary objection that a second appeal is in this case not maintainable. If this objection be well founded, there is no doubt that the plaintiff would fail on the mere ground that even if the decision of the lower appellate Court, arrived at on a thorough consideration of the relevant facts and law, be wrong on both the said points, it could not be set aside in revision.;

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