CHARAN SINGH ANOTHER Vs. BALWANT SINGH AND OTHERS

JUDGEMENT

(1.) THE suit which culminated in this appeal and Regular Second Appeal Mo. 693 of 1969, was instituted by Charan Singh, Shrimati Sowarno, the appellants ; and Makhan Singh respondent for possession of two -thirds of the land measuring 267 kanals 15 marlas situate within the limits of village Kalair Kalan, Tehsil and District Gurdaspur, described in the heading of the plaint (hereinafter called the land), on the basis of title. The following pedigree table would be helpful in understanding the case of the parties :

(2.) LAND once held by Ishar Singh, measured 500 kanals 3 mafias. It included the suit land. Ishar Singh alienated about 233 kanals out of the aforesaid and during his lifetime but continued to be owner of the land till his death Both his sons -Narinjan Singh and Teja Singh, and daughter -Budho had predeceased him. He died on 20th November, 1965 leading behind the laud. Therefore, Charan Singh and Shrimati Sowarno claiming to be son and daughter, respectively, of the predeceased son (Narinjan Singh) and Makhan Singh claiming himself to be the son of the predeceased daughter (Shrimati Budho) of Ishar Singh sought, through the suit, possession of two -thirds of the land. They averred that Balwant Singh and Surain Singh who are sons of the predeceased son (Teja Singh) of Ishar Singh were entitled to one -third of the land, but they were in illegal possession of whole of the land representing that Ishar Singh had bequeathed it (the land) in their favour. The will alleged by them (Balwant Singh and Surain Singh) to have been executed by Ishar Singh in their favour, was impeached on the allegation that it had not been executed by him (Ishar Singh) and was a forged instrument. In the alternative, it was alleged that Ishar Singh was not of sound disposing mind when he executed the alleged will and it was not valid because it related to the land which was ancestral qua them (the appellants, Makhan Singh) and Ishar Singh and they were governed by custom in matters of alienation which prohibited the disposition of ancestral property by means of will or gift.

(3.) The trial court decided issue Nos. 1, 3, 4 and 5 in the negative and it answered issue No. 6 in favour of the plaintiff -appellants. But finding issue No. 2 in the affirmative, it granted decree for possession of 1/11th of the land to Charan Singh only. The suit respecting the other land or of the other plaintiffs was dismissed and the parties were left to bear their own costs Dissatisfied with the said result, Charan Singh, Shrimati Sowarno and Makhan Singh carried appeal to the District Court, Gurdaspur. It was registered at No. 103/165 of 1968. Balwant Singh and Surain Singh had also preferred appeal against the judgment and decree of the trial court and it was registered at No. 105/164 of 1968 in the lower Appellate Court. The lower Appellate Court decided both these appeals by one judgment. It allowed appeal No. 105/164 of 1968 preferred by Balwant Singh and Surain Singh and sitting aside the judgment and decree of the trial Court, dismissed the suit with costs throughout. The appeal No. 03/165 of 1968 preferred by Charan Singh and others was dismissed with costs throughout. Therefore, both these second appeals Nos. 692 and 693 of 1969 have been preferred by Charan Singh and Shrimati Sowarno to this Court, Since both the appeals have arisen out of one case and common questions of law and fact are involved therein, the same are being disposed of by one judgment.