SACHDEV AND ANR. Vs. PREM CHAND AND ORS.

JUDGEMENT

(1.) THIS is plaintiffs appeal against the judgment and decree of the Additional District Judge whereby the appeal filed by the defendants was accepted thereby dismissing the suit filed by the plaintiffs.

(2.) BRIEFLY put, the plaintiffs challenged the alienation made by Sarv. Sh. Yado Raj and Jog Raj of the ancestral land on the ground that the same was without consideration and legal necessity and thus does not bind the plaintiffs. Defendants put in appearance, filed written statement and controverted the various material averments made by the plaintiffs. It was specifically pleaded that the land sold vide sale deed 1.2.1971 was for consideration. The sale consideration amount was Rs. 90,000/ - out of which Rs. 45,000/ - was paid to the vendors in the presence of the Sub -Registrar and the remaining amount was paid by the defendants to the mortgagor. On the pleadings of the parties, a number, of issues were framed. However, primarily the contest between the parties related to issues No. 3 and 5 only which are reproduced hereunder : - Whether defendants 4 and 5 are governed by custom in matters of alienation and succession, if so, what is the custom? O.P.P.

(3.) DEFENDANTS feeling aggrieved by the judgment and decree of the trial Court filed appeal before the Additional District Judge. The Additional District Judge reversed the finding of the trial Court under issue No. 3 Additional District Judge relied upon the decision of the Lahore High Court in Regular Second Appeal No. 2825 of 1927, decided on 29.11.28, Exhibit P. 6, wherein the authenticity and evidentiary value of entry in the riwaj -i -am of 1909 -1910 of Delhi district of which Sonepat, Tehsil formed a part at that time was doubted by Jai Lal, J. In the aforesaid judgment, the learned Judge observed that answer to question No. 133 of the riwaj -i -am of old Delhi district appeared to have been interpolated and so declined to draw a presumption to the effect that Tyagi Brahmins are governed by custom. Additional District Judge also examined the plea of the plaintiffs whether in the absence of the special custom, Tyagi Brahmin could be presumed to be governed by general agricultural custom of the Punjab and Haryana which forbids the alienation of ancestral property without legal necessity. Keeping in view paras 59 and 61 of the Rattigan's Customary Law of Punjab, the Court came to the conclusion that the plaintiffs have failed to prove that they and the vendors are governed by agricultural custom of Punjab and Haryana also. Resultantly, the finding of the trial Court in respect of issue No. 3 was reversed.