A.P.Sahi, J. - (1.) THE respondents 1 and 2 filed a suit claiming co-tenancy rights over the plots as detailed at the foot of the plaint. A copy of the plaint is Annexure 3 to the writ petition. THE same mentions two Khatas, namely Khata No. 137 and Khata No. 83. THE number of the plots are also detailed therein. THE cotenancy rights were being claimed on the basis of the following pedigree : JUDGEMENT_731_ADJ1_2012Image1.jpg
(2.) THE plaint alleges succession through a common ancestor Naguwa. THE respondents 1 and 2 are the sons of Dukhi and they claim l/3rd share in the entire holdings. THE basis of the claim was that their names appear to have been left out in the Khatauni and therefore in view of the pedigree aforesaid they deserve to be declared co-tenants to the extent of 1/3rd share of the property which is ancestral. THE plaint nowhere indicates any of the property to have been acquired from joint family funds either by Phudda or by the sons of Phudda. A written statement was filed by Ram Swaroop the respondent No. 3 son of Sukhdeo, the other branch of the family. His statement was also recorded. A copy of the written statement is Annexure 4 to the writ petition. Paragraphs 11 and 12 of the written statement recite that Dukhi was not a member of the family and his name as indicated in the family pedigree is absolutely incorrect THE reason given in Paragraph 12 of the written statement is that after Phudda died, his wife Smt. Phuddain entered into a customary relationship with one Dassu where she stayed with him. In their statement made before the trial Court it was pointed out that they stayed together for one or two months whereafter Phuddain returned back. The trial Court after considering the aforesaid stand taken in the written statement arrived at the conclusion that the entire holding was ancestral and that Dukhi was born out of the wedlock of Phudda and Phuddain. The pedigree therefore set up by the plaintiffs was believed and accordingly Dukhi and his sons were declared co-tenants to the extent of l/3rd' of the holdings. Aggrieved the defendants namely the petitioners filed an appeal and at the appellate stage they set up another plea relating to some of the plots including Plot No. 641. It was alleged that the plots are self acquired through Dahani (Dhani) @ Mahadeo father of the defendants through a sale-deed. In such a situation the said plots were neither ancestral nor had they been succeeded to from Phudda, and as such inclusion of the said property as ancestral was erroneous. The appellate Court upheld the finding recorded by the trial Court in relation to the fact that the Dukhi was the son of Phudda and further held that even though on the basis of the evidence that has been brought on record some of the plots are not ancestral, yet they appear to have been jointly acquired and as such without altering the judgment and decree of the trial Court dismissed the appeals.
(3.) A second appeal preferred by the petitioners was also dismissed as the Board of Revenue did not find any substantial question of law arising in the matter. Aggrieved the present petition was filed assailing the aforesaid judgment and orders of the Courts below. The petitioner defendants contend that the entire approach of the Courts below is erroneous in law, inasmuch as, once it is established that the entire property is not ancestral then cotenancy rights could not have been conferred on the plaintiffs on the strength of the pedigree. It is further submitted that evidence in relation to Dukhi being the son of Phudda was also very shaky and as such the reliance placed by the trial Court or the appellate Court and the decree based thereon deserves to be set aside. It is further contended that once the appellate Court had arrived at the conclusion that the entire holding was not ancestral and if there was evidence to the contrary on record, then the decree ought to have been modified accordingly or the case ought to have been remanded to the trial Court for a fresh appreciation of the entire case. Accordingly, it is submitted that these were substantial questions of law which have completely escaped the notice of the Board of Revenue and the Board having failed to frame the same the second appellate order is also not in conformity with law. ;