BARU Vs. JAWALA

JUDGEMENT

(1.) The property which was the subject-matter of the suit out of which this appeal has arisen, belonged originally to Waryam Singh. After his death, it devolved upon his widow Mst. Basanti. Waryam Singh and Mst. Basanti had no male issue but had a daughter named Mst. Indi. Basanti adopted Jawala son of Mst. Indi as her son on 19-8-1987. After Mst Basanti's death, which took place in 1999, Baru claiming to be Waryam Singh's collateral in the fifth degree brought a suit for possession of the land. His allegations were that Mst. Basanti had no right to take Jawala in adoption, that no adoption took place as a matter of fact, and that the land being ancestral qua him, Jawala had no right to succeed to it. The trial Sub-Judge found all the points in dispute in the Plaintiff's favour and granted him the decree. On appeal the learned District Judge, though agreeing with the trial Court that the Plaintiff was Waryam Singh's collateral in the fifth degree, held that Jawala's right to succeed to the land was superior to that of the Plaintiff, because the land was not ancestral.

(2.) The only question that has to be deter-mined in appeal is whether the Plaintiff, upon whom the onus lay, had succeeded in proving the land to be ancestral. According to the pedigree-table prepared during the settlement of 1960-61, Mania was the remote ancestor of Waryam Singh and the Plaintiff. He had two sons, Rama and Shama. The Plaintiff and Waryam Singh were the descendants of Kishana, the great-grandson of Shama. Kishana had two sons, Gurbakhsh Singh and Amar Singh. Gurbakhsh Singh again had two sons, Naudha and Dhani. Waryam was the descendant of Naudha in the fourth degree and Baru is the fourth degree descendant of Dhani. The position of the learned Counsel for the Appellant is that all that was necessary for his client to prove was that the land had descended to Waryam from Gurbakhsh Singh. This is no doubt correct. There being no direct evidence to show that Gurbakhsh Singh ever held the land in dispute, reliance is placed by the Appellant upon the following facts, which according to him raise the presumption of the land having been held by Gurbakhsh Singh:

(3.) The first two points need not detain us, because neither singly nor taken together they raise any presumption in favour of the land being ancestral. I will, therefore, deal with only the third point. According to the note that appears in the copy of the pedigree-table prepared during the settlement of 1960-61 (Ex. P.C.) there were a number of joint khatas in some of which Mahia's descendants and in others Kishana's descendants held equal-shares. But this, in my opinion, is not sufficient by itself to raise a presumption that the land comprised in those joint khatas descended to the persons concerned either from Mahia or Kishana and my reason for coming to this conclusion is that according to the copy of the Fard Tafriq Khewat (Ex. P.B.) neither the land held by all the descendants of Mahia nor those of Kishana was equal in 1915 Bk. Only four khatas are mentioned in that document, the first owned by Albel Singh son of Dhani, jointly with Khewa son of Tek Singh, the other son of Dhani, the second, by Dulla son of Masania and Daula and Kaura son of Masania, the third, by Wazira and Hamira sons of Akki who was the son of Amar Singh the brother of Gurbakhsh Singh, and the fourth by Naudha son of Gurbakhsh Singh. No land was shown to be held by the other descend ants of Mahia. The value of all these shares in the terms of rupees was one rupee and 151/2 annas each. From this it will be clear that the land held by Kishan's branch was three times that held by Rama's branch and as between Kishana's two sons, the land held by Gurbakhsh's branch was two times that held by Amar Singh's branch. This definitely proves that the land had not descended either from Mahia or from Kishana. The possibility is that it had been acquired by the descendants of Mahia and Kishana some time after Kishana's death. Reference at this stage must be made to the copy of the Kaflat Dehi (Ex, P.A.) in which it is stated that after the village had been founded there had been all sorts of changes among the holdings of the settlers and sometimes it happened that when a male proprietor died without leaving any heirs, his land was taken possession of by some to the exclusion of others, because the latter could not afford to bring it under cultivation The pedigree-table does not mention that the ancestor of the parties was the founder of the village and had anything to do with the foundation of the village. Taking all these facts to gether, I am inclined to think that there is the possibility of the land having, been acquired by the descendants of Kishana or even by the descendants of Gurbakhsh Singh and since it cannot be said with certainty that the land was held by Gurbakhsh Singh, it is not safe to raise any presumption in the Plaintiff's favour.