KHARAK SINGH KALA SINGH Vs. NIKKA SINGH

JUDGEMENT

(1.) THE land in dispute about 28,248 bighas is situate in nine different villages of tehsil and District Ambala. Shiv Narain Singh was the last male-holder of the land in dispute. In about 1894 he made a sift of 11 bighas and 7 biswas of land situate in the village of Purkhali and his entire land situate in villages Kakot and Majari in favour of his Muslim concubine Mst. Bholi. After his death in 1897 the land of the remaining six villages was mutated in the names of his widows, Mst. Attar Kaur and Mst. Surat Kaur, jointly. In about the year 1923 Mst. Bholi was presumed to be dead, as she had not been heard of for more than seven years previous to that. The mutations of the land gifted to her in the three villages mentioned above were effected in favour of the widows. The widows jointly made a sale in 1930 of 29 bighas 11 biswas of land situate in mauza Purkhali in favour of Sham Singh defendant No. 29. Mst. Attar Kaur thereafter died in the year 1933 and the entire land then left with the widows was mutated in the name of the surviving widow, Mst. Surat Kaur. In 1934 Mst. Surat kaur made a gift of the entire estate in favour of her brother's sons, Nikka Singh and Shiv Rattan Singh defendants 1 and 2, and delivered possession of the land to the said donees. Mst. Surat Kaur died on the 11th December, 1940. On 19-7-1947, the present suit was brought by the plaintiffs for possession of the entire estate of the last male-holder on the allegations that they were the nearest collaterals of the last male-holder and were entitled to succeed him. They impugned the gift made by Shiv narain Singh in favour of his Muslim concubine Mst. Bholi and they also impugned the sale made by the two widows in April, 1930, in favour of Sham Singh, as also the gift made by Mst. Surat Kaur in 1934 in favour of her brother's sons, Nikka singh and Shiv Rattan Singh. Nikka Singh and Shiv Rattan Singh appear to have made certain alienations of property in favour of defendants 3 to 28. The plaintiffs impleaded the alienees as defendants on the ground that the alienations made by defendants 1 and 2 were not binding on the plaintiffs. The suit was contested by defendants 1 and 2, who denied that the plaintiffs were collaterals of Shiv Narain Singh and averred that the plaintiffs were at any rate not the nearest collaterals who would be entitled to succeed. It was pleaded that the suit was not within time. The gift by Mst. Surat Kaur and the alienations in favour of other defendants were pleaded to be binding on the plaintiffs. An objection was also taken mat the court-fee paid by the plaintiffs was deficient and that the suit had not been valued correctly for the purposes of court-fee and jurisdiction. The learned trial Court found that the plaint was not properly valued and stamped and on 29-12-1948, passed an order that the plaintiffs should correct the value of the plaint and make up the deficiency in court-fee by 26-1-1949. The plaintiffs complied with the order and filed an amended plaint with proper court-fee. The trial Court framed the following issues in the case:

(2.) IN Regular First Appeal No. 99 of 1950, Mr. H. S. Gujral, appearing for the defendant-appellants, has raised only one contention that the plaintiffs are not proved to be the collaterals and, at any rate, they are not the nearest collaterals and have, therefore, no 'locus standi' to file the suit. The plea that the plaintiffs are not the collaterals of Shiv Narain Singh had been given up before the learned trial Court. In the concluding portion of the judgment of the trial Court on issue no. 1 it is said as under : "the point in issue is not contested in arguments before me. The issue is decided in favour of the plaintiffs. " again, in its judgment on issue No. 2 the trial Court has given a pedigree-table of the parties and immediately below the said pedigree-table it is observed as under: "the above pedigree-table of which the correctness is not disputed. . . . . . . . " in view of the fact that the point was given up in the trial Court, it is not now open to Mr. Gujral to challenge the findings of the trial Court on issue No 1. Mr. Gujral next contends that the plaintiffs are, at any rate, not the nearest collaterals of shiv Narain Singh and are not, therefore, entitled to sue for possession. He submits that the descendants of Budh Singh (son of Gurdial Singh) were still living and, according to the pedigree-table, they would be the nearest collaterals and not the plaintiffs. If it could be proved on the record that descendants of Budh Singh were still living, they would certainly be nearer collaterals and in presence of them the plaintffs would certainly have no right to sue. The trial Court, however, has given six good reasons contained in paragraphs (a) to (f) under issue No. 2 in support of the fact that Budh Singh probably left no descendants. Mr. Gujral vehemently contends that the plaintiffs should have proved by more cogent evidence that Budh Singh left no descendants. In our judgment, however, the contention has no force. If descendants of Budh singh were living anywhere, the defendants would have certainly put in a pedigree-table of the said descendants, or examined them, or at least some of them, as their witnesses to prove their existence. The defendants made an attempt in the trial Court to prove that Budh Singh has really shifted to village leelon, District Ambala, and that the names of his descendants were mentioned in the pedigree-tables of that village. They actually produced pedigree-tables, Exhibits D. 31 to D. 35, relating to the descendants of one Budh Singh. The trial Court gave good reasons to find that the said pedigree-tables did not relate to the descendants of Budh Singh, son of gurdial Singh, mentioned in the pedigree-table given in the judgment of the trial court. Mr. Gujral vehemently contended before us that Budh Singh left village kalia for village Piroowala in District Ambala and that the plaintiffs have not produced the pedigree-tables of that village to prove that Budh Singh left no descendants whatever. In our judgment the reasons given by the trial Court for finding that Budh Singh did not leave any descendant were quite satisfactory and we had no doubt that Budh Singh had really left no descendant anywhere. As Mr. Gujral was very persistent that if a research was made from the revenue papers of village Piroowala it was likely that Budh Singh's descendants would be mentioned in the pedigree-table of that village, we adjourned the case to enable the parties to make research of the revenue papers of village Piroowala with a view to find out if the descendants of Budh Singh are mentioned in any of the pedigree tables of that village. We allowed almost a fortnight to the parties for this purpose. On the hearing, the respondents produced an affidavit of Ch. Jai Ram Dass Advocate, Rupar, District ambala, in which he stated that he had inspected the Shajra Nasab and the khewat entries for the settlement year 1887-88 relating to village Piroowala and had not been able to locate any mention of Budh Singh or his descendants in the said pedigree-tables. He also stated in the affidavit that he had applied for a copy of the Khewat entry and of the pedigree table from the record of settlement of the year 1916-1917 with reference to the relevant persons but the same had been returned with the endorsement that there was no such entry in the said settlement papers. The respondents brought an copies of all the pedigree-tables of that village with a view to show that Budh Singh or nis descendants were not mentioned in them. They also produced copies of the applications made by them for obtaining certified copies of the pedigree-tables which had been returned to them with the remarks that Budh Singh or his descendants were not found mentioned in the said tables. The appellants made no attempt at all to get any pedigree-table from village piroowala and Mr. Gujral had to concede that his clients had not been able to bring any evidence to prove that Budh Singh or his descendants were mentioned in any pedigree-table relating to village Piroowala. In the result we agree with the finding of the learned trial Court that the plaintiffs are the nearest collaterals of the last male-holder Shiv Narain Singh and are, therefore, entitled to sue.

(3.) AS no other point was raised in Regular First Appeal No. 99 of 1950, the same is dismissed with costs.