SADHU Vs. KISHNI

JUDGEMENT

(1.) The following facts have given rise to this letters patent appeal.

(2.) Punjaba (since dead) and Sadhu appellants instituted a suit against Smt. Kishni with the allegations that her husband Fateh Singh having died, she had entered into a karewa marriage with one Hari Singh of Sherpur about 10 or 11 years prior to the institution of the suit, and on the performance of the said Karewa marriage, she forfeited all her rights and title to the property left by her deceased husband, Fateh Singh They further claimed ownership of the property. The suit was contested by Smt. Kishni. It led to the framing of the following issues:- 1. Whether the suit is maintainable in the present form? 2. Whether the defendant performed Karewa marriage with Hari Singh? If so, to what effect? 3. Whether the defendant was in possession of the suit land as widow of Sh. Fateh Singh deceased at the commencement of the Hindu Succession Act, 1956? If so, to what effect? 4. Whether the daughter and daughter's son of Sh. Fateh Singh are in existence? If so, its effect? 5. Are the plaintiffs estopped from filing this suit? After recording evidence, the trial Court decreed the suit on merits leaving the parties to bear their own costs. Smt. Kishni challenged this judgment and decree in appeal before the District Judge. Ambala, who on Feb. 11, 1963, on reappraisal of the evidence, affirmed the findings of the trial court and more particularly the finding on issue No. 2. Still feeling dissatisfied, Smt. Kishni filed a regular second appeal in this court, which was allowed by P. C. Jain, J., on July 22, 1975.

(3.) The solitary argument now raised: by Mr. H. L. Sarin, Senior Advocate for; thc appellants is that the learned single, Judge committed an error of law in setting aside the concurrent findings of fact recorded by the two lower courts on issue No. 2 and thus acted without jurisdiction. To us he appears to be wholly right. To appreciate his argument, a reference to certain Parts of the judgment of the learned single Judge becomes necessary.