HARI SINGH Vs. BIDHI CHAND

JUDGEMENT

(1.) THIS is a defendant's appeal and has been directed against the judgment and decree dated 24.9.1979 passed by the Court of learned Additional District Judge, Ambala who partly allowed the appeal and judgment and decree of the trial court was modified to the extent of the decree of possession of 1/3rd share of the suit property. The rest of the suit of the plaintiffs was dismissed.

(2.) THE brief facts of the case are that Bidhi Chand and four others (plaintiffs) filed a suit for possession of 3/4th share of the land measuring 114 kanals 9 marlas fully described in the plaint, situated in village Dhanana, Tehsil Narain Garh, District Ambala and the case set up by the plaintiffs in the trial Court was that Chhitru son of Chuhra son of the Bhangu of village Dhanana was the last male holder of the land in dispute which was allotted to him in lieu of his ancestral land in consolidation proceedings and it was ancestral qua Chhitru and plaintiffs and defendant No. 2 Munshi. It was, inter alia, pleaded by the plaintiffs that the parties are agriculturists of village Dhanana and they are governed by the agricultural custom of tehsil Narain Garh in the matter of alienation and succession. According to the custom no male holder is competent to alienate any ancestral property nor is competent to make any adoption. No custom of adoption at all is prevalent amongst the Gujjars. Chhitru son of Chuhra, the last male holder died on 30.9.1965 and the plaintiffs and defendant No. 2 were the only heirs both according to custom and the Hindu Succession Act and as such the plaintiffs are entitled to 3/4th share of the land in dispute, whereas defendant No. 2 who is equally related to the deceased is entitled to 1/4th share. After the death of said Chhitru, the mutation was entered and defendant No. 1 Hari Singh set up that he was the adopted son of Chhitru vide adoption deed dated 30.6.1960 and therefore, entitled to the property in dispute to the succession of the plaintiff and defendant No. 2. It was further pleaded by the plaintiffs that there is no such custom for adoption prevalent in Narain Garh Tehsil amongst Gujjars community to which the parties belong and as such any alleged adoption of defendant No. 1 is invalid, illegal and in contravention of the provisions of law relating to adoption as contained in Hindu Adoption and Maintenance Act. With the above allegations, the plaintiffs have claimed the possession only of 3/4th share of the land against the defendants.

(3.) THE plaintiffs filed replication to the written statement in which they reiterated their allegations made in the plaint by denying those of the written statement and from the pleadings of the parties, the learned trial Court framed the following issues:- 1) Whether the parties are governed by agricultural custom in matter of succession, if so what that custom is ? OPP 2) Whether defendant No. 1 has been validly adopted by the deceased both according to Hindu Adoption and Maintenance Act and custom ? OPD 3) Whether the property in dispute is ancestral qua the plaintiffs and the deceased ? OPP 4) Whether the plaintiffs are estopped by their act and conduct from challenging the alleged adoption of defendant No. 1 ? OPD 4-A) Whether there is a custom among the agricultural tribe of Naraingarh, Tehsil especially Gujjars permitting the adoption of persons above 15 years of age and married person ? OPD