DUNI CHAND Vs. PARAS RAM

JUDGEMENT

(1.) This regular second appeal by Duni Chand and other defendants' is directed against the judgment and decree of learned Senior Subordinate Judge, Kangra, Affirmed on appeal the decision of the trial Court whereby a decree for possession of onehalf share in the land in dispute was awarded in favour of Paras Ram and Khazana plaintiff-respondents against the defendant appellants.

(2.) In order to appreciate the facts of this case it would be useful to reproduce the pedigree table showing the relationship of the plaintiff-respondents with the defendant-appellants as under:- Lehau deceased was the last male holder of land measuring 52 Kanals 16 Marias situated in village Pahlu Lehna died issueless and on his death his widow Mahajnu succeeded tol his estate. On September 18, 1944, Mahajnu made an oral gift of land measuring 52 Kanals 16 Marias in favour of Ram Rattan defendant No. 3 and Baj Ram father of Gianu defendant No. 2. On November 20, 1944, Khazana and Paras Ram plaintiffs filed a suit for declaration to challenge the above gift on the ground that the plaintiffs were the collaterals of Lehnu and that parties were governed by Customary law. It was prayed by the plaintiffs that the gift made by Mahajnu in favour of Ram Rattan and Baj Ram should not affect their reversionary rights after the death of Mahajnu. In the aforesaid suit a decree by compromise was granted in favour of the plaintiffs against Mahajnu, Baj Ram and Ram Rattan on June 28, 1945. Exhibit P. 3 is the copy of that compromise. Baj Ram, it appears, died some time thereafter. On November 27, 1957, Mahajnu filed suit No. 334 of 1957 for possession of the gifted land against Ram Rattan and Gianu by asking for the cancellation of the gift made by her in favour of Ram Rattan and Baj Ram. In this suit a decree by compromise for possession of one-half of the land in suit in that suit was awarded in favour of Mahajnu against Ram Rattan. The suit with respect to the remaining one-half of the land against Gianu was dismissed. The date of that compromise decree is February 5, 1958. Exhibit P. 5 is its certified copy. In the meantime on May 23, 1957, Mahajnu executed a deed of adoption showing the adoption of Duni Chand defendant No. I son of Ram Rattan defendant No. 3 by her (Mahajnu). Mahajnu died in September, 1960. The present suit for recovery of possession of land measuring 26 Kanals 8 Marias was filed by Paras Ram and Khazana plaintiffs against Duni Chand and other defendants on June 1, 1961. According to the allegations of the plaintiffs, the compromis'e decree, which was granted in favour of Mahajnu on February 5, 1958, was a collusive and a sham transaction. It was stated that Duni Chand had not been adopted by Mahajnu and that even if the adoption be proved the same would have no effect on the plaintiffs' rights. The plaintiffs claimed decree for possession of the land in dispute in view of the earlier compromise decree which was awarded in their favour on June 28, 1945. Nakidhu defendant No. 4 was impleaded as a party because he was alledged to have obtained part of the land in dispute in exchange with other defendants.

(3.) The suit proceeded against defendant No. 4. It was contesttd by the remaining defendants. According to defendants 1 and 3, defendant No. 1 was the adopted son of Mahajnu and in his presence the plaintiffs had no locus standi to file the present suit. The adoption of defendant No. 1 by Mahajnu was stated to be valid. It was denied that the decree dated June 28, 1945, was a collusive or a sham transaction. Defendants 1 and 3 denied that the parties were governed by Customary Law.