Bakhshi vs Naraina

Teja Singh, C.J.—These are two connected appeals from the two appellate decrees of a learned single Judge of this Court and the only question that we are called upon to determine is whether the suit property in both the cases was ancestral ''qua'' the plaintiffs. In order to be able to appreciate the points urged by counsel it is necessary to give briefly the facts.

On 7-12-1997, one Naraina of village Isra gifted certain agricultural land of his to Mt. Dalip Kaur, daughter of his brother Biru. On the same day Bishna, a collateral of Naraina, gifted his agricultural land to Mt. Dayal Kaur, the other daughter of Biru. Bakhshi and Pohlo who are collaterals of Naraina and Bishna in the sixth degree brought two separate suits challenging the gifts. They contended that the land was ancestral ''qua'' them and that according to custom the donors had no right to give them away. The defendants in each case denied the ancestral nature of the land and further contended that the plaintiffs being remote reversioners had no right to maintain their respective actions in the presence of nearer collaterals, i.e., Bishna in one case and Naraina in the other. The trial Sub-Judge found against the plaintiffs on all the material points and dismissed both the suits. The plaintiffs preferred appeals to the District Judge who disregarded with the trial Sub-Judge as regards the ancestral nature of both the lands, and holding that the existence of Bishna in one case and Naraina in the other did not affect the plaintiffs ''locus standi'' to bring the suits, because they had both consented to the gifts, decreed the suits. On appeals by the donees the learned single Judge held that the property in neither case had been proved to be ancestral and as a result set aside the decrees of the District Judge and dismissed both the suits.

That the plaintiffs are the sixth degree collaterals of Naraina and Bishna is not denied. Their relationship will be clear from the following pedigree-table prepared at the time of the Settlement:

Though Roopa is shown as the father of Alda in the above table a reference to the Kafiat Dehi of the village appended to the pedigree table will, however, show that probably he was his remote ancestor.

In both the cases the plaintiffs as well as the alienors are descended from Adla. So in order that the lands which were the subject-matter of the two suits could be regarded as ancestral it should be proved that they belonged to Adla and they descended upon Bishna and Naraina by succession.

The plaintiff''s counsel admits that there is no direct evidence on record in support of these facts; but he depends upon the circumstances which in his opinion raise a strong presumption in the plaintiffs favour. First of all he drew our attention to the fact that the village was founded by Isar, who was the remote ancestor of Adla and Roopa. No doubt it is mentioned in the Kaiflat Dehi that Isu was the founder of the village, but this fact by itself does not raise any presumption that every inch of the land that was later on found to be in the possession of his descendants was held by him. In fact, it is now well recognised that even the mention of the name of a common ancestor in the pedigree table raises no presumption about the ancestral nature of the land. In this case there is another distinguishing feature and it is this that according to the Kaiflat Dehi the village was first situated on a different site, the one which is now occupied by the Dera of Sadhs, and later on it was shifted to another site. The relevant part of the Kaiflat Dehi reads as follows: "When the number of Isu''s descendants increased all of them with the exception of Roopa, Bhagu, Bhakhta and Thakaria, who are the ancestors or the owners of the village now, migrated to other villages such as Dodh Gill, etc., Roopa, Bhagu, Bakhta and Thakria left the site of the old village and founded the new village at its present site. They divided the entire area of the village into four equal parts." There is nothing to show that the area of the village originally was and what it was during the time of Roopa, Bhaga and Bhagta and Thakria. It is important to note that at the time of the Settlement the land owned by Dhanna''s branch amounted to 144 bighas of which 129 bighas and 17 bighas stood in the names of the members of the branch individually and 14 bighas and 13 bighas was joint. As compared with this the land owned by the descendants of Preman was 92 bighas and 2 bighas It was explained by the appellant''s counsel that the disparity between the holdings of the two branches was due to various reasons, one of them being that the descendant''s of Bakhta migrated to some other place and the land that they owned was appropriated by Rupa''s descendants. In support of his contention learned counsel referred us to the following part in the Kaiflat Dehi:

In Samvat 1886 the descendants of Bakhta left the village for an unknown destination and their one-fourth share was taken over by the descendants of Ladha with the concurrence and consent of other owners. This led to the division of the permanent village into the following three Pattis: Patti Ladha one half, Patti Bhagu one fourth and Patti Thakria one-fourth.

Now the pedigree-table makes no mention of Ladha and we do not know what happened to him or to his descendants if he left any, and whether ho and they were in any way related to Roopa. It was suggested by the appellant''s counsel that probably Ladha and Roopa were the same persons and it was because of a clerical mistake or mistakes in copying that Ladha came to be written as Roopa and Roopa as Ladha. There is no warrant for this assumption and it must be dismissed as a mere conjecture. The case has been in Court for about six years, the suits were instituted in the trial Court on 16-8-2001 and if there was any mistake in the copies, surely it was open to the plaintiffs to have it brought to light and rectify it but they did nothing of the kind. In addition, even if we assume that Ladha was no other than Roopa, according to the pedigree table the land which had devolved upon his descendants from him got mixed up with the land which they appropriated out of the lands that Bakhta''s descendants had abandoned. Since it is not possible to separate those lands now, even if we assume that Roopa''s land was ancestral the whole must be now treated as non-ancestral. The appellant''s counsel argued that because Bakhta''s land was ancestral it did not cease to be so in the hands of the descendants of Roopa, and referred us to ''Natha Singh v. Harnam Singh'', 31 Pun Re 1894 and ''Thakar Singh v. Khark Singh'', 109 Pun WR 1910. Now the facts of these cases were quite distinguishable. In the Punjab Record case the person who had got hold of the land abandoned by the original owner was a close relation of the latter and was presumably his sole heir. This means that he appropriated the land in exercise of the right of succession. In the present case we do not know the exact relationship between Bakhta''s descendants who abandoned the land and those of Roopa who appropriated it. Apart from this, Roopa''s descendants were not the only descendants of the common ancestor that were in existence then. So it cannot be said that they got the land in exercise of the right of succession. The Kaifiat Dehi refers to the concurrence and the consent of the other owners. This means that they too had some sort of right in the land and accordingly, so far as their shares in the land are concerned, the descendants of Roopa got them by a sort of relinquishment or gift. In Thakar Singh''s case the facts are not clear from the judgment and if I may say so with respect it is not very helpful. The learned Judge remarks that

lands given up by other co-sharers on coming to Dhanna Singh in virtue of his relationship and the fact that the land had been held by the common ancestor of the absconder and Dhanna Singh would clearly be held to be ancestral

were meant to apply to the facts of that particular case and cannot be taken to lay down a general principle. Again what is important is that in both the cases cited by counsel the land which was subsequently abandoned was proved to be ancestral but no such proof is forthcoming in the present case and there is no data for holding that the land which Bakhta''s descendants abandoned was ancestral. The only circumstances upon which counsel relied was that Bakhta was one of the descendants of Isu and Isu according to the pedigree-table was the founder of the village. In my opinion, this did not raise the presumption that land that Bakhta''s descendants held at the time they left the village for another place had descended to them from Isa, particularly so when the site of the present village is quite different from the site of the original village and the change of the site must have resulted into the change of lands forming the village.

At this stage mention need be made of another fact to which reference is made in the Kaifiat Dehi. This is how the second paragraph reads:

A Government jungle consisting of 500 bighas of land was lying uncultivated. Before Samvat 1900 that jungle was given to the Zamindars on payment of Nazrana. The amount of the Nazrana is not known but Khatris, Brahmins, Tarkhans and Kahars also contributed to it. Every one of them was given land according to the Nazrana paid by him and every one of them has been regarded as Malik Qabza. In 1916 Samvat some land out of the Shamilat was granted to Jhanjar Jats and in 1918 the area of the village which comprised 21 Ehars swelled to 25 Bhars....

This would go to show that additions to the land that the owners of the village got from their ancestors have all along continued and this is another obstacle in our way of presuming any part of it to be ancestral.

Last of all counsel drew our attention to the fact that at the time of the Settlement one of the Khatas, i.e., Khata No. 81/128 was jointly owned by all the descendants of Adla. Taking into consideration the fact that the persons who existed at the time of the settlement were descended from Adla in the fifth or sixth degree. I am not prepared to raise the presumption that the land had devolved upon them from Adla. In any case, because of great difference between the holdings of the different branches and of the other facts enumerated above, I do not think that any presumption can be raised with regard to the land in suit which is quite different from that comprised in the joint khata.

For all these reasons, I would hold that both the appeals must stand dismissed with costs.

Gurnam Singh, J.

I agree.