BIRU RAM Vs. BARKHA RAM ALIAS BARKAT

JUDGEMENT

(1.) UNSUCCESSFUL plaintiff Biru Ram has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 22.1.1979 passed by the Court of Sh. A.S. Garg, Additional District Judge, Ambala who affirmed the judgment and decree dated 31.8.1978 passed by the Court of Sub Judge Ist Class, Ambala, who dismissed the suit of the plaintiff-appellant Biru Ram aforesaid.

(2.) THE brief facts of the case are that Biru Ram plaintiff filed a suit for possession and claimed agricultural land measuring 21 kanals 9 marlas besides a portion to the extent of 2/3rd share in Bara situated in village Bharoli on the ground that the property as such belonged to his brother Dhania deceased was ancestral in nature and the will purported to have been obtained by his nephew i.e. defendant Barkha Ram on 10.6.1963 was illegal, void and ineffective and as such the will could not be executed pertaining to ancestral property which could not be alienated by the prevalent customary law of the agriculturists by which the parties were governed and therefore, the mutation obtained in pursuance of the will on 21.2.1975 stealthily by the defendant was not binding upon the rights of the plaintiff. With the above allegations the plaintiff Biru Ram now deceased claimed possession of the agricultural land and Bara and residential house.

(3.) FROM the above pleadings of the parties, the learned trial Court framed the following issues:- 1) Whether the land in dispute was ancestral property qua plaintiff in the hands of Dhania deceased as alleged and its effect ? 1-A) Whether the parties are governed by custom in matters of alienation and succession. If so, what that custom was and to what effect ? 2) Weather Dhania executed any valid will bequeathing land in dispute to the defendants alleged and its effect ? 3) Relief. The parties led oral and documentary evidence in support of their case and after conclusion of the proceedings it was held by the trial Court that the property in suit was ancestral property vis-a-vis the plaintiff in the hands of Dhania deceased. Resultantly, issue No. 1 was decided in favour of the plaintiff and against the defendant. Issue No. 1-A was decided against the plaintiff and it was held that the parties were carpenters (Tarkhan)/Goldsmith (Lohar) and they were not governed by custom as alleged by the plaintiff in the matter of alienation. Issue No. 2 was also decided against the plaintiff and it was held that Dhania executed valid will bequeathing the property in dispute in favour of the defendant and finally the suit was dismissed by the trial Court.