BALIA Vs. KANSHI RAM

JUDGEMENT

(1.) THIS appeal and cross objections have been directed against the decision of the District Judge, Kinnaur confirming on appeal the decision of the Subordinate Judge, Theog whereby a suit of Balia and others for declaration and injunction in respect of the land situated in villages Shabog and Shiva measuring 49 bighas and odd and 16 bighas and odd respectively has been partially decreed. The case of Balia and others was, that their father Bhajnu was real brother of Atma father of defendants Kanshi Ram, Shibu and Mithya deceased husband of Sahdhuru defendant No. 3. There were two other brothers of Bhajnu and Atma. These were Kehru and Chehroo but both died without leaving any issue. As such the plaintiffs became entitled to one half share of the landed property which belonged to Ganga - the common ancestor of the parties. It was written in the revenue record as one half in the ownership of the plaintiffs and another half share in the ownership of the defendants. As such they were co-owners but possession remained with Kanshi Ram defendant No- 1. However, by executing a will on 7-12-1964 Kanshi Ram claimed exclusive title for the property. Since a cloud was cast upon the title of the plaintiffs, they filed a suit for declaration and injunction against the defendants. The suit was resisted by the defendants on the grounds that Kehroo had adopted Kanshi Ram defendant No. 1 and Mithya, the two sons of Atma and as such one third share of Kehroo devolved upon these two adopted sons, with the result that Bhajnu became entitled to only one third which devolved upon the plaintiffs. Besides this the defendant No. 1 also pleaded that he being in possession for the last 50 years perfected his title by adverse possession. It was also stated that the plaintiffs belonged to Keonthal State and on the occasion of a certain death which took place of the Ruler of Keonthal they got their heads shaved. This ceremony of head shaving popularly known as "SARBHADAR" deprived them of their share in the disputed property situated in the State of Madhan. That was an additional ground why the plaintiffs' share in the landed property belonging to Madhan State stood forfeited due to SARBHADAR. The defendants, therefore, contended that the plaintiffs were not entitled to claim any share in the disputed property.

(2.) THE learned trial Judge found that the adoption was proved as it was evidenced by a PATTA Ex. D. B. and an order Ex. D. A. executed on 10-5-1919 at the instance of the Ruler of Madhan. On the question of adverse possession, however, it was held that the defendant No. 1 was a co-owner and his possession was in favour of other co-owners. Therefore, the defendant No. 1 never acquired any title by adverse possession. The result was that the suit was decreed for one third share of the property and to that extent relief of injunction was also granted.

(3.) AS regards the question of adoption, the learned counsel for the plaintiff-appellants submitted that a presumption arose under law that in the matter of adoption the provisions of Hindu Law were applicable. The argument proceeded, that no evidence was forthcoming for the ceremony of giving and taking which was essential to prove adoption. Therefore, according to plaintiffs no adoption could be proved. The learned counsel referred to Section 5 of the Punjab Laws Act, 1872 which give out the legislative declaration that in a question regarding adoption the rule of decision would be governed by the Hindu Law except in so far as such law, was altered or abolished by legislative enactment, or was opposed to the provisions of that Act or was modified by any custom. The learned counsel submitted that neither any provision of that Act was pointed out nor any custom was pleaded contrary to the provision regarding adoption enumerated in Hindu Law and therefore the ceremony of giving and taking was essential to prove adoption. Section 5 of the Punjab Laws Act, 1872 was obviously made applicable to Himachal Pradesh under the Himachal Pradesh (Application of Laws) Order, 1948. Therefore, the legislative direction contained in Section 5 of the Punjab Laws Act, 1872 by virtue of Section 7 of the Himachal Pradesh (Application of Laws) Order, 1948 applied to Madhan State and the provisions of Hindu Law were enforceable.