Maghar Singh and Others vs Phuman Singh and Others

Gurnam Singh, J.—This revision petition has arisen out of the following facte: On 14-12-2003 Rur Singh mortgaged 21 big has and 18 bis was of agricultural land for Rs. 7200/- by a registered deed. On 3.5.2004 the Plaintiffs who are 3rd degree collaterals of Rur Singh instituted the present usual suit for declaration on the ground that the land alienated was ancestral qua them and that there was no necessity for the alienation. The Defendants resisted the suit on the ground that the land was non-ancestral and the alienation was for legal necessity. The trial Court framed the following issues:

Whether the land in dispute is ancestral qua the Plaintiff? O.P.

Whether the mortgage was for legal necessity? O.D.

The trial Court dismissed the Plaintiffs'' suit holding that the land was not proved to be ancestral. He did not decide the question of legal necessity. The Plaintiffs went up in appeal. The lower appellate Court confirmed the finding of the trial Court in appeal. The Plaintiffs have come up in revision to this Court. (3) In order to understand the case properly It is necessary to give the pedigree table of the parties:

DHIAN SINGH | _______________________________ | | | Nikka Singh Dal singh Attar Singh | | | Rura Mst. RattoKaka Singh (Alienor) (Widow) | Harnam Singh | ____________________________________ | | | Magbar Singh Jagar Singh Darbara Singh (Plaintifis)

The pedigree table shows that Dhian Singh was the common ancestor of the alienor and the Plaintiffs. This fact is proved by the two pedigree tables PB and PC produced by-the Plaintiffs. It is not denied by the Respondents that in 1960-81 settlement the property in dispute were held jointly by Rur Singh alienor, Mst. Ratto widow of Dal Singh and Kaka Singh the grandfather of the Plaintiffs. The Plaintiffs have produced Farct Number war Ex PA and also copies of Jamabandi 1960-61 (Ex. PD). From these documents it is further proved that the land in dispute is still joratly held in equal shares by the Plaintiffs and the, alien or. It is, therefore, clear that the whole khata owned by the parties continues to be joint up-to-date. It was jointly held in the first settlement of 1960-61 and continues to be so upsilon. The whole Khata was jointly held by Rur Singh, Mst. Ratto and Kaka Singh in equal shares in the settlement of 1960-61. Dal Singh husband of Mst. Ratto died issueless. Mst. Ratto has also died. The same Khata is now held jointly by the Plaintiffs and Rur Singh in equal shares.

These facts clearly show that in the settlement of 1960-61 Rur Singh and Kaka Singh grandson of Dahlia Singh the common-ancestor along with Dal Singh the son of the common ancestor who was represented by Mst. Raton held the whole Khata jointly in equal ancestral shares. The learned District Judge ignored all these facts when deciding the appeal. The lower appellate Court in his judgment merely mentioned that the land was held jointly in the settlement of 1960-61 by Kaka Singh, Mst. Ratto and Rur Singh alienor in equal shares. He has nowhere during the course of that judgment taken into consideration the fact that the Khata continues to be joint even up to the time of instituting the suit. Relying on two judgments -. ''Kartar Singh v. Dalip Singh'' 12 PLR 81 (A) and - ''Mt. Diali v. Lachhman Singh'' AIR 1946 Lah. 256 (33), the learned Judge held that the land was not proved to be ancestral. I have seen these two judgments and I am of the opinion that they have no application to the facts of the present case. In the case mentioned in - ''12 PLR 81 (A)'', the following two facts were found to be proved.

Name of the common ancestor was mentioned in the pedigree-table of the last settlement;

Area in possession of the descendants was equal and the Plaintiffs were 4th degree collaterals.

On these facts it was held that no presumption could be drawn in favour of the land being ancestral. The remarks in the judgment,

If it is proved that the land in possession of the sons of a particular person is equal in area or that it is held jointly by them then it may be possible to assume in the absence of proof of circumstances indicative of self-acquisition, that it has descended to them from their father but it is not possible to go further up and to hold that it descended from a higher ascendant"

were obiter dicta

''AIR 1946 Lah 256 (B)'' was considered by Ram Lah and Achhru Ram, JJ. in - ''Abdur Reh-an Khan v. Raghbir Singh'' 51 PLR 119 (C). It was observed:

This judgment in ''AIR 1946 Lah 256 (B)'', how-ever, does not at all support Mr. Mahajan''s contention and is otherwise of no assistance to him. The land being shown in the. Record of Rights of the earliest Settlement as the joint "property of the sons only of one of the sons of the common ancestor Ram Singh and not as jointly held by all the descendants of the latter according to ancestral shares, the case did not fall within the principles of - ''Hayat v. Rah- man'' AIR 1930 Lah 793 (1) (D) and other judgments mentioned above and no presumption as to such land having descended from Ram Singh could possibly arise."

It is clear that these two judgments relied upon by the lower appellate Court had no application to the facts of the present case. Some authorities were quoted by the learned Counsel for the Petitioner before me. I am clearly of the opinion that in the particular facts of this case a presumption can be easily drawn in favour of. the property to be ancestral qua the Plaintiffs The land in dispute as already mentioned was jointly held in the first settlement by a son and. two grandsons from other sons of the common ancestor in equal shares. This continues to be so up to the date of the institution of the suit In - ''51 PLR 119 (C) it was held by a Bench of the Lahore High Court,

if the following two facts are proved, namely: (a) That the common ancestor owned some land; in the village, and (b) The entire land in the occupation of his descendants at the earliest settlement record was owned by them jointly and according to ancestral shares, then it is reasonable to presume that the land so held by his descendants had devolved upon them from the common ancestor.

Such a presumption is not confined only to cases where the descendants were the sons of such ancestor. It may apply to grandsons al-though the presumption will be stronger in the-case of sons than in the case of grandsons.

In - ''AIR 1930 Lah 793 (1) (D)Sir Shadi, Lal C.J. and Agha Haidar J. held:

Where a plot of land is owned at the time of the first settlement, jointly by persons who were brOrs. or cousins the presumption, in absence of any indication that the land was self a cquired property of the owners, is that it was originally held by their common ancestor.

In -''Jati v. Girja Singh'' AIR 1937 Lah 917 (E), Skemp J. held:

Where a certain proprietary land is owned jointly at the time of the first settlement by first cousins from the common ancestor in precisely the same shares as ancestral land would be held, the land must be presumed to have descended from the common ancestor in the absence of any indication that the land is self-acquired.

The learned Judge based his finding on several previous authorities of that Court. I am in respectful agreement with these observations made by the learned Judges. In the present case, there is no indication of self-acquisition. On the other hand, the Khata has been jointly held in equal shares up to the date of the institution of the suit. I am therefore, clearly of the opinion that the land in dispute is ancestral qua the Plaintiffs.

It is urged before me by the learned Counsel for the Respondents that the mere fact that the learned District Judge arrived at a wrong conclusion of law nad fact this Court should not inter fere in revision In support of this contention he- cited - AIR 1949 156 (Privy Council) and number of other authorities. In face of Privy Council authority, it is unnecessary to quote the other authorities. This principle of law is- well established and indeed is not denied by the counsel for the Petitioners. The contention of the Petitioners'' counsel is that in coming to a finding the learned District Judge has not re ferred to an unimpeachable piece of evidence favorable to the Petitioners which amounts to material irregularity. He further contends that the learned District Judge came to a conclusion on the basis of the authorities cited by him in his judgment which have no application to the facts of the present case. According to him the conclusion arrived at by the learned District Judge the manifestly at variance with the evidence on the record. There is goad deal of force in this contention. The learned Judge cited two authorities in his judgment which indeed have no application. He also overlooked the fact that the Khata of the parties was joint from the date of settlement up to the institution of the suit. This was indeed a very important fact for the decision of this case. Apart from this the District judge was under the impression that he was considering the case of grandsons of the common ancestor whereas actually the Khata was held jointly at the time of first settlement by two grandsons of the common ancestor from his two different sons along with his son who was represented by his widow. It was therefore, not a case of grandsons holding the joint Khata but of two grandsons with a son. This fact alone materiallyrially affects the decision of the case; The argument of the counsel for the Respondents that it was discretionary with the District Judge either to draw or not to draw a presumption regarding the character of the property is no doubt true to this extent that the discretion of the Court is to be exercised judiciously and not arbitrarily. This is case in which the learned District Judge misunderstood the whole case of the parties. I am, therefore, of the opinion that this case is covered toy Section 115, CPC and warrants interference.

For the reasons stated above I accept this revision petition setting aside the judgment and decree of the Courts below. The costs will abide the, event. The case is to go back to the trial Court for decision on merits on issue of legal necessity. The parties are directed through their counsel to appear before the trial Court on 17-12- 1952.