HARBHEJI Vs. KARE

JUDGEMENT

(1.) Appellant filed a suit for possession of the suit land. It was alleged in the plaint that one Smt. Bhagwani was a occupancy Tenant of the suit land and became its owner under the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act (8 of 1953). Smt. Bhagwani died on May 15, 1953. The plaintiff, being her daughter and the property being self-acquired property of her mother Bhagwani, was entitled to the possession. This suit was contested by the respondent-defendants and the allegations in the plaint were controverted and it was alleged that Smt. Bhagwani had become unchaste and due to that she forfeited all title to the property and that they were governed by agricultural custom. It was also averred that the plaintiff is not the daughter of Bhagwani from Lakhi and hence the suit is not competent and that they have become owners by adverse possession. The parties contested on the following issues :-

(2.) Initially this suit was decreed by the trial Court on March 23, 1962 but, on appeal, the lower appellate Court allowed the contesting-defendant to raise some additional pleas by way of amendment of written-statement and remanded the suit for retrial after framing the following additional issues :-

(3.) Issue No. 1 was found by the trial Court in favour of the plaintiff and it was held that she is the daughter of Bhagwani deceased; issues No. 2 was decided against the plaintiff and it was held that the plaintiff is not the daughter of Lakhi nor in any way related to Lakhi and thus has no right to succeed to the property in dispute being not an heir of Lakhi the last male holder; issue No. 3 was found against the defendants and it was held that the suit having been instituted within 12 years of the death of Bhagwani the defendants cannot possibly be considered to have become owners by adverse possession; issue Nos. 4, 5 and 6 were not pressed and were decided against the defendants; additional issue No. 1 was decided against the defendants and it was held that Bhagwani succeeded to her husband under Section 59(1)(b) of the Punjab Tenancy Act, 1887, and as such question of custom does not arise; additional issue No. 2 was found against the plaintiff and it was held that Bhagwani led unchaste life; additional issue No. 3 was decided against the defendants and it was held that as they were tenants under Bhagwani they are estopped from taking these pleas now. Consequently, the trial Court in view of its finding on issue No. 2 dismissed the plaintiff's suit. Dissatisfied by the judgment and decree of the trial Court the plaintiff filed an appeal before the Additional District Judge, Rohtak at Gurgaon. Before the lower appellate Court only issue No. 2 was contested and the finding of the trial Court on this issue was affirmed and the appeal was dismissed. Hence this second appeal by the plaintiff.