PUSHPATTI NATH Vs. RAVI PARKASH GAUR

JUDGEMENT

(1.) It is plaintiff's second appeal against the judgment and decree passed by the Courts below whereby his suit for possession of 1/3rd share of the land measuring 27 kanals 4 marlas, was dismissed.

(2.) Before adverting to the facts in detail, it would be relevant to peruse the pedigree table. Hari Chand has three sons, namely Brahmanand, Nanda and Parsonna. Defendants in the suit are the sons of Shankar Lal son of Brahmanand. Basdev is the son of Nanda. Parsonna, the other brother of Brahmanand and Nanda, had two daughters Sarhadhi and Atma Devi and one son Kesho Ram. Plaintiff is the sister's son of Kesho Ram. His mother's name is Atma Devi. The dispute is regarding estate of Kesho Ram who died in the year 1955. As per the plaintiff, he is business partner with Kesho Ram and living with him and he was carrying on business jointly with Kesho Ram. Kesho Ram executed a Will dated 28-9-1939 in favour of the plaintiff and got it registered on the same day. As per plaintiff and DW. 2 Vijay Parkash, Kesho Ram died in the year 1955. Defendants appeared and contested the suit and it was stated that Kesho Ram was having 1/3rd share of the land in revenue record but it was denied that the plaintiff is sister's son of Kesho Ram. The factum and validity of the Will was also denied and claimed estate of Kesho Ram on the basis of natural succession. On the pleadings of the parties, the following issues were framed :-

(3.) Both the Courts have returned a finding on the basis of perusal of the evidence that the plaintiff is the sister's son of Kesho Ram and Kesho Ram was owner of 1/3rd share in the suit land. Both the Courts have also found that the parties are not governed by the custom in the matter of alienation and succession. The suit property was not held to be ancestral qua the deceased Kesho Ram and defendants. The learned trial Court held that the suit is within the period of limitation. However, the first appellate Court reversed that finding and held that the suit is barred by limitation.