Prem Chand vs Ram Lal

Rakesh Kumar Jain, J.—This appeal is at the instance of defendants no. 1 to 4 against the judgment and decree of both the Courts below by which suit filed by the plaintiffs for declaration that the judgment and decree dated 13.06.1984 passed in Civil Suit No. 729 of 1984 in their favour by Nand Lal is illegal because the property in dispute is ancestral in nature and could not be alienated without any legal necessity. Defendants no. 1 to 4 denied the nature of the suit property to be ancestral and asserted that they have become owners of the suit property by way of a decree on the basis of a family settlement because defendant no. 1 is also the son of Nand Lal and defendants no. 2 to 6 are the sons and daughter of defendant no. 1.

On the pleadings of the parties, the following issues were framed by the learned Trial Court:-

Whether the judgment and decree dated 13.06.1984 in Civil Suit No. 729 of 1984 are illegal, void, in-effective against the interest of the plaintiff and are liable to be set aside? OPP.

Whether the defendants nos. 1, 5 and 6 along with the plaintiffs are owners in equal shares in the suit land? OPP.

Whether the plaintiffs are entitled to the possession of the suit land, as alleged? OPP.

Whether the suit is not maintainable in the present form? OPP.

Whether the plaintiffs have no locus standi to file the present suit? OPPD.

Whether the plaintiffs have concealed the material facts, if so to what effect? OPP.

Whether the plaintiffs have no cause of action? OPP.

Relief.

Although the plaintiffs have filed the suit on the basis that the suit property is ancestral in nature and could not have been alienated, yet the Trial Court did not frame any issue about the nature of the property, but proceeded to decide the suit on the basis that the suit property was ancestral in the hands of Nand Lal, therefore, he could not have alienated/transferred the suit property without any legal necessity in favour of defendants no. 1 to 4. In this regard, the Trial Court has referred to the Intkhab/Excerpt Ex. PW2/A which has been proved by Hira Lal, Muharrir Patwari (PW2). The lower Appellate Court has also relied upon the Intkhab (Ex. PW2/A) and dismissed the appeal filed by the present appellants.

Learned counsel for the appellants has submitted that the question of law involved in this case is as to whether the document Ex. PW2/A has been proved in terms of Rules (v) and (vi) of Chapter-9 of the High Court Rules & Order, Volume I?

Counsel for the appellants has further argued that when PW2 had appeared, he made only a statement that he had seen the original Intkhab which has been prepared by him and is correct according to the original revenue record. He did not bring the original revenue record from which he had prepared Intkhab (Ex. PW2/A) nor any question was put to him by the Court for the purpose of comparison of the Intkhab (Ex. PW2/A) prepared by him with the original revenue record which was supposed to be brought by him to the Court. It is thus submitted that the learned Courts below have committed a patent error of law in accepting the Intkhab (Ex. PW2/A) in evidence though the said document was inadmissible in evidence because it is not proved in accordance with the Rules (v) and (vi) of Chapter-9 of the High Court Rules & Order, Volume I (here-in-after referred to as the High Court Rules & Order"), referred to above. In this regard, counsel for the appellants has relied upon a judgment of this Court in the case of Hawa Singh Vs. Dayanand and Others,

On the other hand, learned counsel for the respondents has argued that the Intkhab (Ex. PW2/A) has been duly proved by PW2 who had categorically stated that he had seen the original Intkhab which is prepared by him and is correct as per the original revenue record. The opportunity to cross-examine was given to defendants no. 1 to 4 but they did not avail the said opportunity and now at this stage they cannot challenge the proof with regard to admissibility of Intkhab (Ex. PW2/A), after having lost before both the Courts below in which a concurrent finding of fact has been recorded that the property in dispute has devolved upon Nand Lal from his ancestors from three generations, therefore, it is an ancestral property in his hands and could not have been transferred/alienated without any legal necessity.

After hearing learned counsel for the parties and examining the record, I am of the considered opinion that the present appeal deserves to be allowed.

To begin with, it would be relevant to refer to Rules (v) and (vi) of the High Court Rules & Order, which reads as under:-

(v) Excerpt should be a true copy and should be proved. Court must remember that unless proved the excerpt of the Special Kanungo or Patwari Muharrir is not evidence and must not be treated as such. The Special Kanungo or Patwari Muharrir must, when he goes to Court always bring with him the original records from which his excerpt has been compiled, so that he may be available for comparison. He must always be put on oath, and be asked to say whether the excerpt is a true copy of a portion of the original records. The excerpts must be a correct copy of such portions of the records as are relevant and not merely a summary or paraphrase.

(vi) Comparison with original. The Court should, as a rule, compare, with the original records some of the entries in the abstract and initial and date those thus compared.

The aforesaid Rules provide that unless the excerpt of the Special Kanungo or Patwari Muharrir is proved, it can not be taken into account as admissible evidence because the provision is very strict in its nature as it stipulates that the Special Kanungo or Patwari Muharrir must bring the original record to the Court when they appear for examination so that it may be available for its comparison and they must be put on oath and be asked to say whether the excerpt is a true copy of a portion of the original records and the Court should, as a rule, compare with the original records some of the entries, in the abstract and initial and date those so compared. In the present case, no such exercise has been done by the Court for finding out the genuineness of the excerpt Ex. PW2/A and only recorded a statement of PW2 who had stated that the excerpt has been prepared by him which is correct as per original revenue record.

It has been held by this Court in Hawa Singh''s case (supra) that in the matter of ancestral property, the presumption is in favour of the land being non-ancestral until and unless it is proved to be ancestral. In order to prove the ancestral nature of the property, the parties had to prove the excerpt in accordance with Rules (v) and (vi) of the High Court Rules and Order, by producing not only the excerpt but also the person who had prepared the excerpt, who would bring the original record to the Court which should be available to the Court for the purpose of comparison. The idea behind framing this Rule is only to ensure that the document prepared as an excerpt and not producing the entire documents on record should be the true copy of the original record and in order to find out the truth, a duty has been casted upon the Court, as a rule, to compare some of the entries in the abstract and initial and date those entries so compared. In the absence of the evidence led by the plaintiffs in this regard, the question of law raised by counsel for the appellants is answered in their favour and accordingly, it is held that the plaintiffs have failed to prove that the property in dispute was ancestral in nature in the hands of Nand Lal when he suffered the decree on 30.06.1984 in favour of defendants no. 1 to 4-appellants.

Accordingly, the present appeal is hereby allowed and the judgment and decree of both the Courts below are set aside.