RAM SAIN Vs. BHAGIRATH

JUDGEMENT

(1.) This appeal of Shri Ram Sain and five others, has been directed against the judgment dated 10-10-1969 of the District Judge, Kinnaur. The plaintiff Bhagirath came to Court with the allegations, that he was joint-owner of Khasra No. 466 situate at 'chak' Telengi, Tehsil Kalpa, along with the defendant No. 2 Mansa Ram. The latter sold the entire land to one Nazor. It was stated that the sale of the entire land could not be effected because Mansa Ram owned and possessed one- half share in it. It was further contended that due to certain custom prevailing amongst the tribals, to which the parties belong, Mansa Ram could not dispose of even his own share in the land. It was also pleaded that subsequently Mansa Ram paid back the consideration to Nazor, but he did not return back the land. Hence, the suit was filed for a declaration that the sale was invalid and that the possession of Nazor was illegal.

(2.) The defendants contested the suit on the allegations, that no such custom prevailed and that the plaintiff himself had once sold his share to somebody else. It was also contended that the suit was time-barred and that the relief of declaration could not be granted because the consequential relief of possession was not asked.

(3.) The learned Subordinate Judge, Kalpa, dismissed the suit, as he found that the custom was not proved and the property was not ancestral. He further gave the finding that a declaratory relief could not be granted because defendant No. 1 was already in possession. The plaintiff came in appeal before the District Judge. His appeal was accepted and the case was remanded to the trial Court because the learned District Judge found, that proper issue regarding the return of consideration was not framed, nor the pleadings were got clarified, although the plaintiff had asked for amendment of the plaint. At present, the legal representatives of the deceased defendant Nazor have filed this second appeal and the plaintiff and defendant No. 2 have been made respondents.