MODI, J. - (1.) THIS is a second appeal by the plaintiff Naurang Raj against the judgment of the Additional District Judge, Ganganagar, dated 31st July, 1952.
(2.) THE following pedigree table which is disclosed by the plaintiff in his plaint will help in understanding the contentions of the parties in this case : - Sardar Mal Lalchand | | Thandiram (Adopted son Budhram died in 1935 A. D.) Gulabchand | | Budhram (went in Adption to Thandiram) Harpatrai | Nanurang Rai (plaintiff) Bhagwan Ganpat Rai (Deft. 1) Likhma (Deft. 2) THE dispute relates to half share in the estate of Budhram deceased comprising 86 and odd Bighas of land being Khasras Nos. 53, 357, 319, 283 and 229 situate in the "rohi" of Moza Dabri. THE plaintiff's case was that the defendants Ganpat and Likhma had obtained a mutation of the land in question in the revenue records in their own name thereby adversely affecting the rights of the plaintiff who also was the grand-son of Lalchand, uncle of Budhram. THE plaintiff accordingly brought this suit for (1) correction of the mutation entry in the revenue records and for his name to be recorded as the holder of one-half share of Budhram's land and (2) for possession of the half share by petition. THE defendants completely denied the allegations made in the plaint, and it is strange that they did not accept the pedigree table even so far as their relationship with the deceased Budhram was concerned. In their additional pleas, the defendants stated, however, that Budhram had died sometime in 1935 A. D. and that they had been in adverse possession of his share since that date, and, therefore, the plaintiff's suit which was brought on the 8th November, 1948, was barred by limitation. The trial court dismissed the suit and on appeal the learned Additional District Judge affirmed the judgment of the trial court. This second appeal has filed from the above judgment and decree. Two questions have been raised before me in this appeal, first, as to the heirship of the plaintiff appellant to the deceased Budhram, and secondly as to the adverse possession. It has been vehemently argued in this Court that the courts below decided the question of heirship against the appellant wrongly and that in doing so they had misread important evidence on the record, and disbelieved the evidence of the plaintiff on illegal grounds. Now, the plaintiff produced some documentary evidence as also oral evidence in support of his case that he was an heir of Budhram. It may be pointed out at once that although the defendants entirely denied the pedigree table produced by the plaintiff along with his plaint, they virtually accepted it with the exception that they did not admit Harpatrai to be a son of Lalchand, If, therefore, Harpatrai does not belong to this family, the present plaintiff must be nonsuited so far as the estate of Budhram is concerned. The narrow point for decision, therefore, is this: "was Harpatrai one of the sons of Lalchand?" In this connection, it is interesting to bear in mind that Budhram in his life time had taken one Gajanand in adoption to himself. A suit had been brought to question the adoption of Gajanand, on the ground that he was a distant collateral, by Bhagwan father of defendant No. 2, and Ganpat defendant No. 1 as also by the present plaintiff, Naurangrai. That suit was compromised in 1928, and a compromise decree Ex. D-3 dated 22nd November, 1928, was passed by the District Judge, Rajgarh, according to which Gajanand's adoption was cancelled. It is astonishing that when Ganpat was questioned with regard to this litigation regarding Gajanand's adoption to Budhram, he gave a flat denial, and in doing so he is completely falsified by Ex. D-3. The plan-tiff had also got summoned the original plaint Ex. D-l in that suit and the defendant Ganpat was confronted with it and asked whether it bore his signature or not. The latter, however, made an evasive answer and said that as he was old he could not read the signature or recognize it owing to his weak eyesight. A pedigree table was given in that plaint, according to which Harpat Rai was shown as one of the sons of Lalchand, and the present plaintiff was also shown as Harpatrai's son. Be that as it may, the plaint Ex. D-l and the pedigree table given therein, Ex. D-2, have not been proved and, therefore, these documents have to be left out of account in deciding the present controversy between the parties. The judgment and the decree along with the compromise, by which a reference is made in the compromise, clearly show that there was a dispute between the present plaintiff and the defendants on the one side and Gajanand or Gajjuram on the other as regards the adoption of the deceased Budhram, and that by a compromise arrived at between the parties, Gajanand's adoption was cancelled. In these documents Bhagwan and Ganpat have been described as sons of Gulab, and Naurang Rai has been described as son of Harpatrai. It is remarkable that in this suit, Naurangrai figured as a plaintiff along with Bhagwan and Ganpat, who according to the plaintiff, are his first cousins; and this is a strong indication, in my judgment, of the fact that Naurang Rai belongs to the family of Budhram. The lower appellate court has entirely ignored this important circumstance in its decision of the case, and that considerably deprives it of the value which otherwise should have attached thereto. The defendants when confronted with this position had nothing to say to it except that they prevaricated in a very clumsy manner. It is impossible to believe that Ganpat did not remember such an important and glaring circumstance relating to his family and pertaining to a suit which he and his brother Bhagwan and the present plaintiff Naurangrai had brought against Gajanand in relation to the property of the same deceased member of the family whose estate is in question in the present case. It is also amazing that the learned Judge below negatived the pedigree table put forward by Naurangrai on the ground that the latter had produced Ex. P. which is the mutation entry dated the 21st October, 1944, recording Bhagwan and Ganpat as heirs of the deceased Budhram. It must be remembered that it is this entry which the plaintiff challenges and wants to be corrected, and he cannot possibly be falsified because of the mere fact that he had produced this document. It may be pointed out in this connection that the plaintiff also produced a previous entry from the revenue papers, Ex. P-l, where the same pedigree table happens to have been recorded as the plaintiff has now given, and the latter has been shown there as a person in possession along with Bhagwan and Ganpat. This entry appears, however, to have been cancelled later by the revenue authorities in 1938 on some ground which is difficult to understand. A question was raised before me on behalf of the respondents that this entry is not relevant because it had been cancelled. I do not wish to go into this question at any length as, in my opinion, there is sufficient material on this record upon which this court can come to a definite and positive conclusion without having to rely upon the document in question. I would now turn to the oral evidence produced by the plaintiff, and the first witness who may be referred to is Gajanand P. W. 2. Gajanand clearly proves the pedigree table given out by the plaintiff and says among other things that the plaintiff Naurang Rai is the son of Harpatrai who was one of the sons of Lalchand. He further states that Budhram had adopted him and that Naurang Rai and Bhagwan had filed a suit for cancellation of that adoption, and in the result the adoption was cancelled. The courts below have disbelieved this witness because he was not able to point out the year in which Sardarmal died or when Lalchand and Thandiram died, These persons most probably died long ago, and the witness said that they died before he was born. As regards Harpatrai, he said that he died about 20 years ago from the date of his deposition. Further examined, the witness clearly stated that the defendant Ganpat was a plaintiff in the litigation which had been brought for the cancellation of his adoption to Budhram. In my opinion, very little has been brought out in his cross-examination by which it can justly be said that he was a false witness. It was suggested on behalf of the defence that while the father of this witness had brought a suit against Bhagwan and Ganpat for possession of house in connection with a debt owed by Budhram to the witness' father, but not against Naurang but the witness replied that he did not know. Now, it is impossible from this answer to conclude, as the lower court appears to have done, with some confidence, that Naurang Rai was not a member of the family to which Budhram, Bhagwan and Ganpat belonged. It is just possible that the house may not have been in possession of Naurang Rai at all, and Ganpat and Bhagwan alone may have occupied the house. In any case, this circumstance is wholly counter-balanced by the fact that Naurang Rai was allowed to join as a co-plaintiff by Bhagwan and Ganpat in a suit which they had filed to contest Gajanand's adoption to Budhram, and that, in my opinion, should never have been the case if Naurang Rai did not belong to Budhram's family as alleged by him. This goes a long way to prove the pedigree table disclosed by the plaintiff. In fact the lower appellate court has completely missed this point because in its judgment it refers to the suit in question having been brought by Bhagwan alone whereas there is unimpeachable evidence on this record that the suit had been brought not only by Bhagwan and Ganpat who were brothers but also by Naurang Rai (who was their first cousin.) Learned counsel for the defendants argued that it had not at all been established on the record that Gajanand had any special knowledge of the relationship of the parties and, therefore, his statement as to the pedigree table of the parties was of no value whatsoever. I am of opinion however, that in the circumstances of the present case, it is abundantly clear that Gajanand must have had special knowledge of the relationship of the parties. There was litigation between him and the parties to the present suit and that litigation related to the witness' adoption to the deceased Budhram whose estate is in question now. It cannot justly be argued that in such circumstances he was a stranger to the family or that he had no special means of knowledge relating to the matters about which he had deposed. Then we have the evidence of Hukmi who is a Jat of the same village to which the parties belong and he has also given the same pedigree as the plaintiff. The witness is an old man of 60 years of age and may have had knowledge as to the relationship of the parties. He had undoubtedly indulged in a lie when he said that the plaintiff was in receipt of income from Budhram's land, still. Even if the evidence of this witness is left out of account, there is, in my opinion, sufficient documentry and oral evidence on which reliance may be placed to hold that the plaintiff is a member of the same family to which the defendants belong. The plaintiff examined himself in support of his case and has tried to prove the pedigree. He has also stated that in Lalchand's land, the sons of Gulabchand held half share, and Harpatrai held the other half and that the plaintiff himself had been recorded in the revenue papers as holder of that half share. This seems to be proved by the evidence of Patwari Kawalsingh who has said in his statement with reference to Ex. P-2, the Khata of the parties, that there was a joint Khata of Bhagwan Ganpat and Naurang, and that Naurang was recorded in that Khata (Ex. P-3) as a co-sharer to the extent of half share to that land. He also stated that he was in receipt of income from Budhram's field up to Svt. 2001 corresponding to 1944 A. D. and thereafter Bhagwan and Ganpat pocketed all the income as they had said that they had got the entire land recorded in their names in revenue papers. The defendants have produced no evidence worth the name to rebut the plaintiff's case. D. W. 1 Kawalsingh is the very Patwari who had appeared on the plaintiff's side and really proves nothing. So far as D. W. 2 Sripal is concerned, he said that Lalchand had two sons Gulabraj and Budhram, and that he may have heard that Harpatrai was also one of his sons. The evidence of this witness, if at all, proves nothing in favour of the defendants, and in any case, is wholly insufficient to disprove the pedigree filed by the plaintiff. D. W. 3 Ladhu is utterly useless because all he says is that he had taken 5 bighas of land from Bhagwan in Svt. 1998; but there is nothing to indicate which was this land. Then the defendants Ganpat and Likhma examined themselves. They accept the pedigree table put forward by the plaintiff except that they entirely exclude as already stated above, the fact of Harpatrai being also a son of Lalchand No reliance whatsoever can be placed on the testimony of these witnesses as they have even denied the fact of having filed a suit in respect of the adoption by Budhram, which fact is proved to the hilt on this record. As already stat-ed, when Ganpat was con fronted with Exs. D-1, D. 2 and D. 3 (the plaint, the pedigree table and the judgment in the adoption case) he said that he could not read them. But this was not so much a matter of reading a document as of stating whether a particular event had or had not happened as a matter of fact. He was asked whether there was any land of Harpatrai near his land and the said that he did not know. The evidence of the other defendant Likhma is no better and does not inspire any confidence at all. I hold, there-fore, that the courts below have entirely misdirected themselves by ignoring important evidence on the record and by misreading the evidence of Gaja-nand and, therefore, their judgments cannot be held to be binding on this Court, and I hold further that there is sufficient material on this record on the basis of which it must be held that the plaintiff appellant Naurang Rai has succeeded in proving himself to belong to the same family to which the defendants belong, and that the pedigree table produced by the plaintiff is established on this record. It follows that he is entitled to half of Budhram's land. It was next argued before me that even though the relationship of the plaintiff appellant Naurang Rai to Budhram was held to be established he was liable to be non-suited because he had been out of possession for more than 12 years from the land in dispute. This plea, in my opinion, is without any substance in the circumstances of this case. It is obvious from what has been stated above that Naurang Rai and Bhagwan and Ganpat are co-sharers of Budhram's land. And it is well-settled that the possession of one co-sharer enures for the benefit of all unless the co-sharer setting up the case of adverse possession establishes ouster to the knowledge of the other co-sharer. The defendants have altogether failed to prove this in the present case. Budhram died in 1935 A. D. It appears that until 1938, both the plaintiff and the defendants stood recorded as co-sharers in respect of Budhram's land. This went on up to 1938, as Ex. P-1 shows although it is said that entry was then cancell-ed. The present suit was brought in 1948. It is manifest in these circumstances that the defendant cannot successfully urge that they have kept the plaintiff out of possession for 12 years, for the period between 1948 works out only to 10 years. Consequently, I over-rule this contention. For the foregoing reasons I allow this appeal, set aside the judgments of the courts below and hold that the plaintiff is an heir to the deceas-ed Budhram and is entitled to half share in the latter's land in question, the other half going to the defendants. I hereby direct that the necessary correction shall be made in the revenue records accordingly. As regards the plaintiff appellant's prayer for, possession of his half share by portion I am of opintition that the should seek his remedy in the revenue courts, as the land to be partitioned is agricultural. I decree the plaintiff's suit accordingly with costs in all the courts. . ;