BABRU SON OF CHET RAM Vs. BASAKHA SINGH

JUDGEMENT

(1.) APPELLANT Babru (hereinafter referred to as defendant No. 1) is holding the ownership of 230 bighas and 19 biswas of land situate in village Bhoj Mataur Tehsil Naraingarh on the basis of a registered will executed by his father Chet Ram on 16.6.1970 who died on 18.12.1972.

(2.) AGAINST the said defendant No. 1 and his mother Muni Devi defendant No. 2 (widow of Chet Ram), a suit for possession was preferred by Basakha Singh and Ors. (hereinafter referred to as the plaintiffs) in the Court of Senior Sub Judge, Ambala alleging therein that the property in question was ancestral and this property had devolved upon the father of defendant No. 1 from their common ancestor Bhagwan Singh who happened to be the father of the deceased Chet Ram. Therefore, the plaintiffs alongwith the defendants were entitled to the Said ancestral property as owners according to the custom prevalent between the parties and the said Chet Ram could not create an interest in favour of defendant No. 1 by way of a bequeath debarring the plaintiffs to get the property in question devolved upon them in favour of the defendants as per their shares by way of inheritance. The will was challenged being against the custom and, therefore, as the will was deemed to be null and void against their interest, a suit for possession was filed before the trial Court. Subsequently, during the trial of the case, it was found that the land in question was not actually 230 bighas and 19 biswas but it was 119 bighas and 1 biswas only and such a factual position of the property was not disputed by the parties. Hence a decree for possession as per shares was passed by the trial Court in favour of the plaintiffs against defendants No. 1 and 2. However, the suit of the plaintiff Nos. 2, 3 and 7 was dismissed on the ground that they had entered into a compromise in favour of the defendant No. 1 and had surrendered their interest in the property.

(3.) THERE was no dispute with regard to the property being ancestral for no evidence was led by the defendants to show that some of the property involved was self -made by Chet Ram or the defendant Nos. 1 and 2. It was vehemently argued by the learned counsel for defendant No. 1 that the lands in question were so mixed up that it could not be ascertained as to which portions of the disputed land were ancestral and which were non -ancestral. Once the ancestral and non -ancestral portions of the land cannot be separated, they must be regarded as non -ancestral. In this regard, to strengthen his argument, reliance was laid on a Supreme Court judgment in Mara and Ors. v. Mst. Nikho alias Punjab Kaur and Ors. : A.I.R. 1964 S.C. 1821, wherein it has been held that "now it has been ruled in the Punjab consistently that where the lands are so mixed up that the ancestral and non -ancestral portions cannot be separated, they must be regarded as non -ancestral unless it is shown which are ancestral and which are not."