- (1.) The present appeal has been filed by the plaintiffs who are aggrieved against the concurrent findings of the Courts below whereby their suit for declaration and permanent injunction has been dismissed. The following question of law arises for consideration:- "That whether the Lower Appellate Court was in error while failing to decide the application for additional evidence filed under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure filed by the plaintiffs-appellants while deciding the appeal in spite of having issued notice in the said application and the respondents having filed their reply."
(2.) The plaintiffs' case is that the parties to the suit were Jat agriculturists and have been governed by custom in the matter of succession, inheritance, alienation, adoption etc. prior to the enforcement of Hindu Succession Act and a widow on re-marriage used to forfeit her entire rights, title and interest in the estate of her deceased husband. Karewa marriage was prevalent amongst the agriculturists of Rohtak District and Bhima son of Ram Sarup, was owner to the extent of 1/8 th share of agriculture land measuring 264 kanals 15 marlas and he died on 18.7.1955 and after his death defendant No.2 Shanti being his widow inherited his share under the customary law of Rohtak District but on 11.1.1956 she contracted marriage with defendant no.1 Maha Singh and after remarriage she forfeited her right in the estate of her first husband Bhima. Accordingly, it was pleaded that share of Bhima was transferred in favour of plaintiff No.1, Dilbag and Dhannar predecessor-in-interest of plaintiffs no.2 to 4 and defendant no.1 Maha Singh to the extent of equal shares they being brothers of Bhima. Defendants No.3 and 4 were born to defendant no.2 from Karewa marriage and the plaintiffs Dilbag, Dhannar and defendant no.2 Maha Singh continued to be owner in possession of the entire 1/8 th share and mutation in this regard was also sanctioned on 28.4.1958. After the death of Dhannar on 25.12.1964 his estate was inherited by plaintiffs no.2 to 4 and Ishwanti who has also died. Defendant no.2 illegally tried to get mutation No.2045 sanctioned in favour of the plaintiff no.1 Dhannar and Maha Singh on 28.4.1958 reviewed vide mutation No.2894. However, the Assistant Collector dismissed her claim on 29.6.1978 but defendant no.2 managed to get sanctioned mutation no,2894 on the basis of some bogus and forged orders shown to be passed by Deputy Commissioner, Rohtak showing her to be owner to the extent of share of Bhima in the suit property. Accordingly, the plaintiffs challenged the said mutation alleging that defendant no.2 in collusion with her sons defendants no.3 and 4 suffered a decree dated 22.12.1993 qua 1/8 th share in the suit property and mutation No.2950 was also sanctioned in this regard on 24.12.1995. Accordingly, the plaintiffs prayed for passing of a decree of declaration that they alongwith defendant no.1 are cosharers to the extent of 1/3 rd share out of 1/8 th share earlier owned by Bhima and now in the names of defendants no.3 and 4 and prayed for relief of injunction for restraining defendants no.2 to 4 from alienating the suit property.
(3.) The suit was contested by the defendants on various grounds and it was pleaded by parties to the suit they were governed by customary law before passing of the Hindu Succession Act and thus they are governed by the provisions of Hindu Succession Act thereafter and that Shanti was the widow of Bhima and had succeeded to his estate. It was denied that Karewa marriage was performed on 11.1.956 and it was alleged that it was performed after the first death anniversary of Bhima. The mutation qua the share of Bhima in the suit property in favour of plaintiff No.1 Dhannar and Maha Singh were illegal and same were got corrected vide order dated 1.3.1986 passed by Deputy Commissioner, Rohtak and her right had not been forfeited after the Karewa marriage.;