Nathu Ram vs Baldev Singh

Teja Singh, C.J.—The only question that falls for determination in this case is whether the land in suit was ancestral qua the Plaintiff. The alienor was Jethu Ram. He effected two mortgages, one relating to 28 bighas and 6 biswas and the other to 3 bighas and 18 biswas. The Plaintiff alleged that since the land was ancestral and the mortgages were without consideration and necessity they did not affect his reversionary interests. The trial Court found the land to be ancestral and granted the Plaintiff a decree with respect to both the mortgages. The Additional District Judge, on appeal, did not go into the question of necessity because his view was that the land was not shown to be ancestral. He, therefore, dismissed the suit in entirety.

According to the pedigree-table, Ram. Dhan was the common ancestor. He had three sons, Nathu, Saudagar and Sunder. Saudagar''s son died issueless and we are, therefore not concerned with his branch. Jethu Ram alienor is the grandson of Nathu while the Plaintiff is the grandson of Sunder Kaka, father of Jethu. Ram and Rulia father of Nathu were in existence at the time of the first Settlement of 1962-63 and the copy of the revenue record shows that the former owned 63 bighas and 1 biswa and the latter 67 bighas and 12 biswas. It was contended by the Appellant''s counsel that since the land owned by them was almost equal and the name of the common ancestor was mentioned in the pedigree-table, these facts taken together with the fact that Rulia and Kaka held equal shares in a joint khata raise the presumption that the suit land was once owned by Ram Dhan and had descended upon the alienor by succession. So far as the joint Khata is concerned it may be mentioned that it merely consists of a well in which Rulia and Kaka had 1/6th share, the remaining 5/6th share belonged to other persons all of whom were not even proved to be Brahmins. Accordingly no notice of the existence of the joint khata can be taken.

The position is, therefore, reduced to this. Rulia, the grand-sop of Ram Dhan and Kaka the grand-son of Ram Dhan had almost equal amount of land and the name of Ram Dhan was mentioned in the pedigree-fable. Had Ram Dhan been a descendant of one of the founders of the village or had he even belonged to the tribe which had settled in the village along, with the founders the position would have been probably different, but the copy of the Kaiflat Dehi (Exhibit PC) shows that Brahmins and other non-agricultural tribes, such as carpenters, Lohars and Banias, came and settled in the village from different places and at different times and they came to possess the land which they happened to break. The Kaifiat Dehi also shows that land-revenue was paid according to possession.

This means that the mere fact that the land owned by Rulia and Kaka at the time of the Settlement was almost equal in area even though taken with the mention of the common ancestor''s name in the pedigree-table does not necessarily mean that the common ancestor once occupied the land. It may she that Ram Dhan''s sons. Sunder, Saudagar & Nathu were the first to settle in the village and the land was broken by them. As has been observed in, several decided cases the onus to prove that the land is ancestral lies upon the person who alleges it and the fact has to be established by clear evidence. It is no doubt correct that presumption is sometimes raised from circumstances but the circumstances must, be such as to lead to the conclusion that there was no possibility of the land having been acquired by any of the descendants of the common ancestor. This condition is not satisfied in the case and I hold that the finding of the Additional District Judge that the land was not proved to be ancestral was correct.

The appeal, therefore, fails and is dismissed with costs.