KAPUR CHAND MAJOR AND ANOTHER Vs. DES RAJ

JUDGEMENT

(1.) THIS is a second appeal filed by Kapur Chand and Dharshan Kumar, sons of Tarloki Nath plaintiffs -appellants, residents of village Pipli, Tehsil Sirsa, District Hissar, against the judgment dated 1st August, 1968 of the Additional District Judge, Hissar whereby he accepted the appeal of Des Raj defendant -respondent and setting aside the judgment and decree of the trial Court dismissed their suit with costs throughout.

(2.) THE facts of this case are that Tarloki Nath, father of the plaintiffs -appellants was owner of the land in suit and he sold it to Des Raj defendant -resident for Rs. 14.000./ - on the basis of a registered sale deed dated 9th September, 1957. Kapur Chand and Darshan Kumar plaintiffs, who are the sons of the vendor Tarloki Nath filed this suit for declaration to the effect that the land in suit was ancestral qua them, that they and their family were governed by agricultural custom according to which ancestral Immovable property could not be alienated without consideration and legal necessity, that the sale in suit was effected by their father without consideration and legal necessity and it would not affect their rights after the death of the vendor. In the alternative it was prayed, that if they were not proved to be governed by agricultural custom, then a decree for possession of this land may be passed in their favour under the Hindu law as the sale was made without consideration and legal necessity and that the vendor was addicted to gambling and drinking. The suit was resisted by the defend ant -vendee on various grounds. It was admitted that the plaintiffs and their family were governed by the agricultural custom. On the pleadings of the parties, the following issues were framed by the trial Court: - -

(3.) IT appears that prior to the year 1946 -47 partition of a major portion of this land took place between the two brothers Sarwan Rant and Kanshi Ram sons of Siri Chand. In the jamabandi for the year 1946 -47, whose copy is Exhibit P. 9, Sarwan Ram is recorded as sole owner of 433 Bighas 5 Biswas of the land and regarding 346 Bighas of land the entry in the ownership column of Exhibit P. 9 is that Sarwan Ram had 1/2 share, his brother Kanshi Ram had 1/18 share and the sons of Kanshi Ram had 4/9 share. In the year 1950. Sarwan Ram made an oral gift on 1st November, 1950 of 5/6 share in the land measuring 433 Bighas 5 Biswas in favour of his five sons, Tarloki Nath and others in equal shares and himself retained 1/6th share in this land. The mutation on the basis of this gift deed was attested by the revenue authorities on 21st November, 1950 and its copy is Exhibit D. 2. In pursuance of this mutation order, in the subsequent jamabandi for the year 1950 -51, Sarwan Ram was recorded as owner of 1/6th share while his five sons Tarloki Nath, Charan Das, Suraj Bhan, Dev Raj and Hem Raj were recorded as owners of 5/6th share of that land. The five sons were recorded as Malkan Kabza, but Sarwan Ram continued to have share in the Shamilat land pertaining to whole of this land measuring 433 Bighas 5 Biswas. The same entries are found in the excerpt of this land Exhibit P. 15, which was got prepared by the plaintiffs from the Moharrir Patwari working in the Land Records Office of the Deputy Commissioner, Hissar.