CHHINU KARE Vs. KATA KARE

JUDGEMENT

(1.) THIS appeal is by the defendants who have lost in both the courts below. It arises out of a suit for declaration of title and recovery of possession of 'kha' schedule property. This 'kha' schedule property which is in dispute is a part and parcel of the 'ka' schedule lands given in the plaint.

(2.) THE plaintiffs case is that the entire 'ka' schedule lands belong to Dasaru Kare, the father of the plaintiff No. 2 and grand-father of plaintiff No. 1, the latter being the son of the former. Dasaru had two sons namely Fate Singh and plaintiff No. 2. Upon Dasaru's death 'kha schedule land fell to the share of plaintiff No. 2 who possessed the same along with his son plaintiff No. 1. The balance of 'ka' schedule lands which fell to the share of Fate Singh was assigned by him in favour of his daughters. In the year 1963, defendant No. 1 claimed an interest in schedule 'kha' alleging himself to be the adopted son of Dasaru's brother Mute Kare and thereby a dispute arose regarding the properties between him and the plaintiffs resulting in a proceeding under Section 145, Cr. P. C. This proceeding terminated in favour of defendants on 2-3-64. Hence the suit.

(3.) THE case of the contesting defendants is that Dasaru and Mute were two brothers. 'ka' schedule property is the property of the joint family comprising of these two brothers. These two brothers had separated long before by an amicable settlement, i. e. , before Hamid Settlement in 1925 in which 'kha' schedule property fell to the share of Mute. It was, however, solely recorded in the name of Dasaru in R. O. R. of Hamid Settlement because he was the head of the family. Reliance is placed on an unregistered document (Ext. C) which is purported to have been executed by plaintiff No. 2 in favour of defendants 1 and 2. This document appears to be a deed of relinquishment and is said to substantiate the case of the defendants that Mute and Dasaru were two brothers.