DAYARAM Vs. DAWALATSHAH

JUDGEMENT

(1.) DAWALATSHAH and Ranwirshah-sons of Pratapshah-instituted an action in the Court of the Additional District Judge Chanda, for a decree for possession of property immovable (including the Zamindari of Dhanora) and movable specified in the Schedules annexed to the plaint, and for an order for payment of mesne protests and also for recovery of tile amount of compensation in respect of certain lands received by the defendants from the Government of Madhya Pradesh and for an order declaring their right to receive the balance of compensation remaining to be paid. The plaintiffs relied upon the following genealogy: <IMG>JUDGEMENT_358_1_1971Image1.jpg</IMG>

(2.) THE plaintiffs claimed that the property in suit originally belonged to Gangashah. Gangashah had five sons: Hiru, Bhakta, Sakru, Kajur and Raju. THE branches of Sakru and Kajur became extinct a long time ago. THE branch of Hiru (who was the eldest among the five sons of Gangashah) became extinct with the death of Amarshah on 9/12/1950. THE plaintiffs-sons of Pratapshah claimed the Zamindari held by Amarshah relying upon the rule of primogeniture, and the other estate of Amarshah as devisees under the will of Amarshah executed on 3/12/1950. THEy submitted that the Dhanora Zamindari was granted to Sitaram ancestor of Amarshah as an impartible estate, devolving by the rule of primogeniture, that the Zamindari on that account devolved on the death of Amarshah upon Pratapshah and that on the death of Pratapshah the Zamindari devolved upon the first plaintiff. THE plaintiffs also claimed that the other property including Malguzari lands devolved upon them under a will executed on 3/12/1950 whereby Amarshah devised his estate in their favour. Accordingly the first plaintiff claimed that he was entitled to the Zamindari on the death of Pratapshah on 27/01/1951 and the plaintiffs claimed the other estate of Amarshah as devisees under his will. THE plaintiffs submitted that Dayaram the first defendant took wrongful possession of the Zamindari and other property, movable and immovable of Amarshah.

(3.) IN appeal by the defendants, the High Court of Bombay confirmed the decree of the Trial Court with a slight modification. The High Court held that the genealogical table set up by the plaintiffs was correct, that according to the custom governing succession Dhanora Zamindari devolved upon Pratapshah on the death of Amarshah, and on the death of Pratapshah the first plaintiff became entitled to the Zamindari, that the order of the Governor recognising Dayaram as Zamindar was not binding and conclusive, for it was not shown that in making the order the Governor had acted in exercise of the power conferred by the Chanda Patent; that the order was contrary to the customs and the law governing the Zamindari: that the decision of the Governor did not oust the jurisdiction of the Civil Court that the will dated 8/12/1950 set up by the defendants was not genuine and the will set up by the plaintiffs dated 3/12/1950 was genuine; and that the plaintiffs suit with regard to Malguzari lands was not barred by the decision of the Compensation Officer. The High Court accordingly confirmed the decree passed by the Trial Court in respect of the Zamindari relying upon the rule of inheritance incorporated in the Wazib-ul-arz of the Chanda District and by succession under the will dated 3/12/1950 in respect of the other property except as to certain occupancy lands held by Amarshah.