SHANTI Vs. SURTA

JUDGEMENT

(1.) HAR Narain was the last male owner of the land in suit. He died in 1942. His widow Smt. Patori contracted karewa marriage with one Molar of village mehomoodpur. Smt. Shanti was the daughter of Har Narain from Smt. Patori and was taken by her mother when she contracted karewa marriage. The mutation of the land left by Har Narain was sanctioned in the name of the Surta and his sons. Smt. Patori field a suit against them for possession of that land but her suit was dismissed. Surta and his sons claimed in that suit that they were the heirs of Har narain deceased. Smt. Shanti was not made a party to that suit. On July 15, 1965, she filed a suit for the possession of the land left by her father against Surta and his three sons and Smt. Patori claiming that she was a preferential heir to her father as compared to the defendants. It was not pleaded in that suit either by the plaintiff, Smt. Shanti, or by the defendants, Surta and others that the parties were jats and governed by agricultural custom or that the land left by Har Narain was ancestral. On the pleas of the defendants, the following issues were framed: 1. Whether the suit is barred by time? O. P. D. Whether defendants 1 to 4 are in adverse possession of the land in suit? O. P. D. Whether the suit is barred by the rule of respondent judicata? O. P. D. Whether the suit is properly valued for purposes of court-fee and jurisdiction? O. P. P. Whether the defendants are preferential heirs to Har Narain deceased?. O. P. D. Relief. The learned trial Court held that Surta had become owner of the land, which was not under mortgage, by adverse possession and the suit in respect of that land was barred by time. Issue No. 3 was decided against the defendants while issue no. 4 was decided in favour of the plaintiff. On issue No. 5 it was held that Surta defendant was a preferential heir to Har Narain according to the answer to question No. 56 in the Riwaj-i-am of Rohtak district and, therefore, the plaintiff had no locus standi to file the suit for possession and thus issue No. 5 was decided in favour of Surta and his sons. As a result of those findings the suit of the plaintiff was dismissed on December 13, 1965. Against that decree, Smt. Shanti plaintiff field an appeal which was accepted by the Additional District Judge, Rohtak, on august 10, 1966, and she was granted a decree for possession of the land measuring 5 bighas 9 biswas bearing khasra Nos. 4693/1553, 2097, 3685, 3686, 3687, 4701/3759 and 4702/3759. It was further held that--"the defendants are not proved to be in adverse possession of the land under mortgage from Har Narain deceased and that the suit of the plaintiff for possession there-of is not barred by time and that the plaintiff will have a right to file a suit for redemption of the same to the extent of her share therein and her suit with respect to the other land shall stand dismissed". Against that decree, Surta filed R. S. A. No. 1403 of 1967 in this Court which was accepted by the learned Single Judge and the suit of the plaintiff was dismissed on july 16, 1971. The present appeal under C1. 10 of the Letters Patent has been filed by the plaintiff against the judgment and decree of the learned Single Judge.

(2.) THE regular second appeal was first heard by the learned Single Judge on november 10, 1970, and the case was remanded to the trial Court to give a finding as to the nature of the property, that is, whether it was self acquired or ancestral of Har Narain and the degree of the collateral relationship between Surta and Har Narain. The trial Court submitted a report to the effect that the land in suit was ancestral in character and Surta was related to Har Narain in the third degree. The learned counsel for the plaintiff did not challenge the aforesaid two findings of the Courts below. In the appeal before us, it has been vehemently stressed by the learned counsel for the appellant that in the absence of any plea raised by Surta and his sons in their written statement that the land was ancestral or that the parties were governed by custom, it was not open to the learned Single judge to remand the case to the learned trial Court for a report on those two points. No issue was claimed or framed with regard to those two matters. The judgment of the learned Additional District Judge shows that it was contended before him by the learned counsel for the defendants that the parties were governed by custom and they were preferential heirs to Har Narain qua the plaintiff and that her suit had been rightly dismissed. The learned Additional district Judge expressed the opinion as under:-"in this case it is not disputed that the mother of the plaintiff contracted karewa marriage. It is also not disputed that they are Jats. It is also not disputed that they depend upon agriculture and in these circumstances, i feel that the parties must be deemed to be governed by custom in matters of alienation and succession. " after referring to certain judgments cited before him, he concluded: the basis of this authority (Kehar Singh v. Dewan Singh, 1966 Cur LJ 472= (AIR 1966 SC 1555) the learned counsel for the defendant argued that according to the entry in the Riwaj-i-am, a daughter was excluded, but as pointed out above, the entry in the Riwaj-i-am, being against females, the burden was on the defendant to establish that such special custom existed in the family of the parties. The defendant did not allege any custom and much less special custom. In these circumstances, I am of the opinion that defendant Surta was not preferential heir of Har narain deceased and his daughter Shanti, now plaintiff, was his preferential heir. I, therefore, decide issue No. 5 against the defendant. " this conclusion of the learned Additional District Judge can only be supported on two grounds, that is, that the parties were governed by Hindu law according to which the daughter was a preferential heir to the collaterals or (2) that the land was non-ancestral and according to the custom stated in para 23 of Rattigan"s digest of Customary law the daughters excluded the collaterals. The third possible ground for the conclusion can be that the answer to question No. 56 in the Riwaj-iam of Rohtak district was not correct and, therefore, daughter was not excluded from inheritance to ancestral property by the collaterals of the last male holder. Earlier part of the judgment of the learned Additional District Judge shows that on behalf of the plaintiff it was argued that according to para 23 (2) of Rattigan's digest of Customary Law, a daughter was preferred to collaterals in respect of succession to the acquired property of her father. On that basis, it was argued that the general custom as given in the Customary Law was that the daughter was to inherit as heir of her father in preference to his collaterals. It was further submitted by the learned counsel for the plaintiff that the defendant did not plead in his written statement that the parties were governed by custom in matters of alienation and succession and, therefore, the plaintiff was the heir of her father in preference to the collaterals. Lastly, it was submitted that even if the parties were held to be governed by custom, then also, according to para 23 of Rattigan's digest of Customary Law, the plaintiff was a preferential heir to the collaterals. In the entire judgment of the learned Additional District Judge, it has not been stated that the land in suit was ancestral in the hands of Har Narain. This matter had not been pleaded in the written statement by the contesting defendants nor was put in issue. in these circumstances, the learned Single Judge erred in obtaining a report from the trial Court on the nature of the land in suit and deciding the suit on its basis.

(3.) THE learned counsel for the appellant has relied on the judgment of their lordships of the Supreme Court in Bhagat Singh v. Jaswant Singh, AIR 1966 SC 1861. In that case, the plaintiff alleged that the plots were owned and possessed by Kartar Singh who had adopted him about two years before his death. The defendants got mutation made over the land in suit collusively with the revenue officials and secured possession over them by successfully inducing the tenants to pay rent to them. The defendants accepted the allegation that Kartar Singh owned and possessed the land in suit but denied that he had ever adopted the plaintiff as his son. On the pleadings of the parties, the trial Court framed the following issues:-