VINOD K.SHARMA, J. - (1.) THIS regular second appeal has been filed against the judgments and decrees passed by the learned courts below decreeing the suit filed by the plaintiff-respondents for possession of 101 kanals 9 marlas of land being one third share of 304 kanals 7 marlas situated in village Kauni Tehsil and District Faridkot.
(2.) THE plaintiffs claimed that they are sons of Bhagwan Kaur alias Bhagni alias Bhagan who was the daughter of Sobha Singh son of Gurdit Singh, landowner/proprietor of village Kauni. It was claimed by the plaintiffs that in the Jamabandi for the year 1951-52 of village Kauni, Sobha Singh was owner in possession to the extent of half share along with Sawan Singh and Sucha Singh who had other half share in 431 kanals 3 marlas of land. Sobha Singh is stated to have died on 5.11.1953 leaving behind his daughter Bhagwan Kaur alias Bhagni alias Bhagan as his sole heir to his estate. Share of Sobha Singh used to be cultivated by Sucha Singh and Sawan Singh on Batai and after the death of Sobha Singh tenants paid Batai to Bhagwan Kaur alias Bhagni alias Bhagan. On the death of Sawan Singh, his estate was inherited by his brother Sucha Singh. It was claimed that before consolidation share of Bhagwan Kaur was cultivated by Sucha Singhto the extent of half share, and Arjan Singh, Nazar Singh and Gujjar Singh remaining half share under her. It was further claimed that during consolidation both lines got the land separated. It was claimed that share of Sobha Singh during consolidation was allotted to Sucha Singh and remaining half share, out of share of Sucha Singh was allotted to Gujjar Singh, Arjan Singh and Nazar Singh and was amalgamated with original holding. It was further claimed that in spite of allotment Sucha Singh, Gujjar Singh and Arjan Singh and Nazar Singh continued paying Batai to Bhagwan Kaur alias Bhagni alias Bhagan. Sucha Singh is stated to have died on 2.11.1965 without any issue and the land devolved upon his sister Mst. Sama Kaur who also died on 15.11.1965 and therefore, defendants Dogar Singh and Niranjan Singh started cultivating the share of Bhagwan Kaur alias Bhagni alias Bhagan and even paid Batai to her till her death. After her death Batai was paid to the plaintiffs. Nazar Singh died on 29.6.1970 without leaving any issue while, Gujjar Singh died on 27.1.1972 without any issue. Accordingly, their share devolved upon Sama Kaur who has been paying Batai to the plaintiffs. It was further pleaded that Dogar Singh and Niranjan Singh were in possession of 244 kanals 9 marlas of land while Arjan Singh was in possession of 137 kanals 9 marlas of suit land. Land measuring 244 kanals 9 marlas was said to be in possession of Dogar Singh and Niranjan Singh. It was claimed that the plaintiffs were entitled to 110 kanals 9 marlas of land out of 137 kanals 9 marlas in possession of Arjan Singh. They also claimed 67 kanals 9 marlas of land as sole heirs of their mother Bhagwan Kaur alias Bhagni alias Bhagan. It was claimed that since the defendants refused to make payment of Batai to the plaintiffs after the death of Gujjar Singh, the plaintiffs approached the court for possession of the land on the basis of title. The suit was contested by the defendants. It was pleaded that Bhagwan Kaur alias Bhagni alias Bhagan daughter of Sobha Singh and pedigree table as set up by the plaintiffs was also admitted to be correct. However, it was denied that the plaintiffs were the sons of Bhagwan Kaur. It was claimed that they were not related to Bhagwan Kaur. In the written statement, it was admitted that Sobha Singh was owner of one half share and Sawan Singh and Sucha Singh another half share of 431 kanals 3 marlas of land. It was claimed that Sobha Singh was survived by his daughter Bhagwan Kaur alias Bhagni alias Bhagan. It was also pleaded that Sawan Singh, Sucha Singh and Gujjar Singh and Nazar Singh had died. It was also admitted that Sama Kaur had also died. However, dates of death were denied for want of knowledge. Issuance of letter of allotment during consolidation proceedings was also admitted in lieu of the original holding of Sobha Singh, Sawan Singh and Sucha Singh. It was claimed that the defendants have inherited the property from Sobha Singh. The payment of Batai by the defendants or their predecessors-in-interest was also denied. It was claimed that nobody recognised Bhagwan Kaur alias Bhagni alias Bhagan as heir of Sobha Singh. It was claimed that the defendants were Sidhu Jat Sikhas governed by customs in the matter of acquisition of property and the suit land being of ancestral nature Arjan Singh defendant No. 1, Gujjar Singh and Sawan Singh along with Nazar Singh succeeded the land in dispute as heirs of Sobha Singh as sons of his real brothers Jodh Singhand Hira Singh. It was claimed that the land was of occupancy tenancy and according to the custom applicable to the parties as well as Dastur-ul-Amal of Faridkot State and Section 59 of the Punjab Tenancy Act, the only male collaterals of the last male holder inherited his property. It was further claimed that as Bhagwan Kaur alias Bhagni alias Bhagan was married before the death of Sobha Singh she was not his heir. It was also claimed that Dogar Singh and Niranjan Singh sons of Sama Kaur represent the line of Hira Singh, Arjan Singh defendant No. 1 represents the line of Jodh Singh. It was claimed that the defendants were in possession of the land as owners and heirs of Sobha Singh. They also claimed to have become owners by way of adverse possession. It was also claimed that matter of inheritance of Sobha Singh stood decided by the civil court on 5.11.1955 and therefore, the suit was barred by the principles of res judicata.
(3.) IN the replication, averments made in the plaint were reiterated and on the pleadings of the parties the following issues were framed :- 1. Whether the suit is barred by res judicata as alleged ? OPD 2. Whether the plaintiffs are the sons of Mst. Bhatwan Kaur alias Bhagan daughter of Sobha Singh deceased as alleged ? OPP 3. Whether the land in the hands of Sobha Singh was ancestral as alleged ? OPD 4. Whether Mst. Bhagwan Kaur is the only heir to the estate of Sobha Singh deceased ? OPD 5. Whether the defendants have acquired title in the suit land by adverse possession ? OPD 6. Relief. On issue No. 1, it was held that as Bhagwan Kaur was not a party to the previous suit, the suit filed was not barred by principles of res judicata and therefore, issue No. 1 was decided against the defendants. On issue No. 2 it was held that the plaintiffs by leading evidence in terms of Section 50 of the Evidence Act proved themselves to be the sons of Bhagwan Kaur alias Bhagni daughter of Sobha Singh. Consequently, issue No. 2 was also decided in favour of the plaintiffs and against the defendants. On issue No. 3 it was held that Adna Aala Malkiats were abolished by an ordinance of 1949 which resulted in granting of full proprietorship in favour of Sobha Singh. The trial Court further held that due to promulgation of ordinance of 1949 property in the hands of Adna Maliks became their self-acquired property and in coming to this conclusion reliance was placed on the judgment of this Court in Nachatter Singh and others v. Budh and others, 1971 PLJ 171 and accordingly issue No. 3 was decided against the defendants and it was held that the property was self-acquired and not ancestral. On issue No. 4 the claim of the defendants that succession of Sobha Singh was governed by Dustur-Ul-Amal which excluded daughter from succession could not be accepted in view of Section 3 of Pepsu Ordinance No. XVI of 2005 B.K.;