NANAK CHAND Vs. TOTI

JUDGEMENT

(1.) This second appeal is directed against the judgment of the District Judge, Mandi, affirming the judgment and decree of the trial Court whereby the suit for joint possession and declaration filed by the plaintiff-respondent was decreed. The decision of the appeal should ordinarily have been concluded against the defendant-appellants by concurrent findings of fact by the two Courts below but the counsel for the appellants submitted that the appeal was under paragraph 32 of the Himachal Pradesh (Courts) Order, 1948, and as such it was open to him to canvass facts. He also submitted that the case involved questions of law on which the Courts below had gone wrong. The arguments in appeal have, therefore, covered a wider range.

(2.) The facts as to which there is no dispute may first be stated - Smt. Toti is the widow of one Gokal and has been wrongly described by the learned District Judge as the sister-in-law of Nanak Chand, defendant-appellant No. 1. Actually she is the aunt of Nanak Chand. The latter is son of Bhund who was brother of Gokal, husband of Toti. Bhund and Gokal had also a third brother named Panjku. All the three brothers are now dead and are represented in this litigation by their legal heirs. The land in dispute measures 58-10-11 Bighas situate in village Leda, llaqa Bagda. Tehsil Sadar, District Mandi.

(3.) On 25-5-1962 Smt. Toti filed a suit in the Court of Subordinate Judge, Mandi, on the allegations that she was a co-sharer with the heirs of her husband's brothers to the extent of one-third share, that the land was joint in the life-time of her husband but after the death of her husband the defendants took forcible possession of the same and deprived her of its produce. The defendants contested her claim infer alia on the ground of limitation. They also pleaded that they were the exclusive owners of the land inasmuch as the same had been partitioned during the life-time of the plaintiff's husband about 22 to 23 years ago whereby he was given land in village Tiambia as his share and since then the parties were in separate enjoyment and possession of their respective shares. The pleadings of the parties led to several issues being framed of which Issues 3,4,5,6,7 and 9 are material and have been canvassed before me. The issues read:-