RAMZAN Vs. JINDO

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the learned District Judge, Sangrur, dated 27th January, 1967, by which the appeal was allowed and the judgment and decree of the trial Sub-Judge dismissing the suit of the plaintiffs-respondents for possession of the land in dispute was set aside, and their suit decreed, leaving the parties to bear their own costs.

(2.) Originally a suit for possession of the land in dispute was filed by Mst. Jindo and her three daughters on the ground that the registered gift deed, executed by her on 8.12.1954 in respect of this land in favour of the present appellants was void and illegal and the same was based on fraud and misrepresentation, because the donees did not render any service to her after the gift deed, that the gift deed had not been acted upon, and that the donees did not provide for her maintenance. It was also averred that plaintiff No. 1, Mst. Jindo, had become owner by operation of law on the enforcement of the Pepsu Occupancy Tenants (Vesting of Proprietary Rights) Act, 1954, and that subsequently she had gifted the land in suit in favour of her two daughters, namely, plaintiff Nos. 2 and 3 on the basis of the registered gift deed, dated 14.4.1959. As the defendants (now appellants) refused to deliver possession, the suit was filed. The appellants controverted all the pleas in the plaint. Inter alia it was averred that Mst. Jindo was the occupancy tenant of the land in suit and had voluntarily gifted the rights of occupancy tenancy in their favour vide registered gift deed executed in 1954 and in pursuance of the same possession had also been delivered. It was also averred that the gift in their favour had resulted in acceleration of succession as the land was ancestral qua them and they were entitled to inherit it after the death of Mst. Jindo. The trial Sub-Judge by his order, dated 19.1.1966 accepted the preliminary objection and held that the plaint suffered from misjoinder of parties and causes of action, and, as a result, the names of plaintiff Nos. 2 and 3, i.e. the daughters of Mst. Jindo, were deleted. The following seven issues were framed :-

(3.) The trial Sub-Judge decided issue No. 1 against the plaintiff and held that it was not proved that the gift-deed had been executed as a result of any fraud or misrepresentation. Issue No. 2 was decided against the plaintiff and the suit was held to be time-barred. Regarding issue No. 3 it was held that the parties were governed by their personal law, and custom had not been established. It was also held that the parties were governed by Mohammedan Law. Regarding issue No. 5 it was held that the land in suit was ancestral qua the appellants, and thus issue No. 4 was decided in favour of the appellants and it was held that the gift in fact operated as acceleration of succession. Issue No. 6 was decided against the appellants, and issue No. 7 was decided against the plaintiffs. The two additional issues framed by the learned District Judge were also decided in favour of the appellants and it was held that the gift in favour of the appellants had been acted upon and that it had not been proved that the appellants-donees did not render any service to the donor. The additional issue framed on 12.12.1963 was also decided in favour of the appellants. Consequently, the suit was dismissed. On appeal the judgment and decree of the trial Court was set aside by the impugned judgment and the suit of the plaintiffs was decreed, and it was held that the gift-deed, Exhibit P. 1, executed in favour of the present appellants was void as the same was in violation of the mandatory provisions of sub-section (3) of section 59 of the Punjab Tenancy Act. In fact, in the appeal before the learned District Judge the findings of the trial Sub-Judge were not challenged except in respect of issue Nos. 1, 2 and 4. It is against this judgment and decree that the present appeal has been filed.