Satya Parkash Goyal, J. - (1.) The land in dispute was sold by Madan Gopal through two sale deeds in favour of the Appellants in the year 1956. About 15 years thereafter, Ashok Kumar, grand son of the vendor filed the suit for joint possession of the suit property alleging that he constituted the joint Hindu family with his grandfather, the vendor; that the suit property was coparcenary property and that the sales having been made without legal necessity were ineffective and void against his rights. The trial Court though upheld the plea that the property in dispute was coparcenary property but dismissed the suit holding that the same had been sold for consideration and legal necessity. On appeal by the Plaintiffs, the finding of the trial Court on legal necessity was reversed and a decree for joint possession was passed subject to the payment of Rs. 1500/ - which was paid by the vendess towards the discharge of the antecedent debt of the vendor. Aggrieved thereby the vendees have come up in this appeal.
(2.) From the evidence produced on the record, the facts proved are that in the years 1946 -47, Madan Gopal and Jaswant, Rai were owners in equal share of some land situate in village Fatehpur and in another village in tehsil Wazirabad, district Gujranwala. There was no evidence to show that the said land had devolved on them from their father Tara Chand. The two Courts below held the property to be coparcenary by raising a presumption from the fact that the two brothers held it in equal shares in the year 1946 -47 and that there was no evidence that it was acquired by them in any other way except inheritance from their father The approach of the two courts below was wholly erroneous and unwarranted by law. Such a presumption can be raised only if the land is found standing jointly in the name of the two brothers in the first settlement because no previous record is available. No such presumption could be raised from the entries in the subsequent settlement or the jamabandi In the decisions relied upon by the Tower appellate Court a presumption was raised because the land was found to be held jointly in the first settlement Similarly in the two decisions relied upon by the Learned Counsel for the Respondents in Mr. Lachmi and Ors. v/s. Anant Ram : A.I.R. 1956 H.P. 68 and Bhola Ram v/s. Bishna, (1957)59 P.L.R. 56 the presumption was raised on the basis of the entries in the first settlement. On the contrary, in the present case, the jamabandi produced relates to the year 1946 -47 and atleast more than fifty years record prior thereto was in existence which could positively show whether the land had devolved on the two brothers from their father or not Non -production of the earlier record itself gives rise to the strong presumption against the ancestral nature of the property and the Courts below were not justified in law in raising any presumption that the property had devolved on the two brothers from their father on the basis of the entries in the jamabandi for the year 1946 -47. That apart, there is absolutely no evidence on the record to show that the land in dispute was allotted to Madan Gopal in lieu of the land shown to have been held by him in district Gujranwala as evidenced by exhibits P -3 and P -4, copies of the jamabandis for the year 1946 -47. In the absence of this connecting link it was not possible to draw an inference that the property held and sold by Madan Gopal had devolved upon him from his father, Tara Chand. The finding of the Courts below that the land sold was coparcenary property, therefore, cannot be sustained and is hereby reversed.
(3.) In view of the findings recorded above, this appeal is allowed, the impugned judgment and decree set aside and the suit dismissed with costs throughout.;