ISHWAR DASS Vs. BIR SINGH AND ORS.

JUDGEMENT

(1.) Plaintiff is in second appeal before this Court. He is aggrieved by the judgment and decree dated 14.5.2002, passed by learned Additional District Judge -I, Kangra at Dharamshala, in Civil Appeal No. 30 -K/2000. Learned lower appellate Court vide judgment and decree under challenge in this Court has affirmed the judgment and decree passed by learned trial Court in Civil Suit No. 242/93/90, and dismissed the appeal.

(2.) The dispute in the present lis lies in a narrow compass. While it is the case of the plaintiff that he alongwith proforma defendants No. 5 and 6 Balwant Singh and Khem Singh (since dead), is co -owner in possession of the suit land to the extent of 1/3rd share each, the stand of the contesting defendants No. 1, 2 and 4 was that the share of the plaintiff in the suit land is only to the extent of 1/6th.

(3.) Admittedly, one Saran Dass was owner of the suit land corresponding to pre -settlement Khasra Nos. 295 and 297. He had two wives, Bimla Devi defendant No. 3 (since dead) and Biasan Devi defendant No. 4 (since dead). Defendants No. 1 and 2 Bir Singh alias Hari Ram and Sardev Singh alias Rikhi Ram were born to Smt. Biasan Devi deceased defendant No. 4 from the loins of aforesaid Saran Dass. As per further case of the plaintiff, deceased defendant No. 4 and her two sons, defendants No. 1 and 2 had neglected Saran Dass and started living separately. It is defendant No. 3 Smt. Bimla Devi, who allegedly rendered all services to him. In lieu of the services so rendered by her, said Shri Saran Dass gifted some landed property including the suit land in favour of said Smt. Bimla Devi. The present defendants No. 1 and 2 had, however, challenged the gift of the land so made by said Shri Saran Dass in favour of deceased defendant No. 3, by way of filing Civil Suit No. 6 of 1964 on the grounds that the land so gifted away being ancestral property could have not been gifted to defendant No. 3. The said suit, however, was dismissed by the trial Court vide judgment and decree dated 30.3.1965. In appeal, learned Additional District Judge confirmed the findings recorded by the trial Court qua part of the gifted property, however, some part of the suit land found to be ancestral property, therefore, the suit qua the same was dismissed. In Regular Second Appeal No. 83 of 1967, Himachal Bench of Delhi High Court vide judgment and decree (Ext. D -2) dated 20.3.1970, confirmed the findings of the first appellate Court, however, concluded that in view of the gift of the ancestral property held invalid to succession, the same opened and Bimla Devi defendant No. 3 with another widow of Saran Dass Biasan Devi defendant No. 4 were entitled to inherit the same in equal share in terms of Sec. 8 of the Hindu Succession Act, 1956. Since Saran Dass had two sons (defendants No. 1 and 2) and two widows (defendants No. 3 and 4), since dead, therefore, it was held that while the sons will get equal share in the ancestral property left behind by said Shri Saran Dass, both the widows were also entitled to 1/3 share in the ancestral property. Therefore, the share of defendant No. 3 Bimla Devi, from whom the land was purchased by the plaintiff and proforma defendants No. 5 and 6 was only to the extent of 1/6 and not 1/3. Against the judgment Ext. D -2, Letters Patent Appeal No. 16 of 1970 was also filed, however, the same was also dismissed vide judgment dated 8.10.1982 (Ext. D -8).