AMARCHAND Vs. SHANKARI

JUDGEMENT

(1.) THIS is a first appeal by the plaintiff against the decree and judgment of the Civil Judge of Ganganagar dated 11th January, 1951 in a suit for possession of land.

(2.) ONE Inder Singh had four sons,meharchand, Keharchand, Amarchand and Krishna Dev, of whom Meharchand died during the life time of Inder Singh and Mst. Shanked, the widow of Meharchand is the contesting defendant in this case. Amarchand is the plaintiff and Keharchand and Krishnadev were defendants, now pro forma respondents. According to the allegations in the plaint which is dated 28th July 1947. Inder Singh had purchased 10 murabbas of land Nos. 29 to 38 measuring 248 bighas in Chak 12-Z in Tehsil Ganganagar, Bikaner State, in 1923-24. Meharchand died in 1907-1908, and Inder Singh died in 1933-34. It was alleged by the plaintiff that on the death of Inder Singh, his heirs were the plaintiff, Keharchand and Krishan Dev, and Mst. Shankari had no share in the property of Inder Singh, but nevertheless had obtained mutation of one-fourth of the aforesaid 10 murabas of land in her favour to which she was not entitled. It was alleged that the parties were Ahluwalias and non-agriculturists. They were residents of District Hoshiarpur in the Punjab and were bound by custom of their family and were also governed by Hindu Law. In another paragraph of the plaint, it was stated that Mst. Shankari had obtained a partition of the land under orders of the Nazim of Ganganagar and the entire murabbas Nos. 29 and 30 as also 12 killas from murabba No. 31 had been allotted to her. It was prayed that the plaintiff Amarchand and his two brothers Keharchand and Krishnadev, pro forma defendants, be declared to be the owners of the entire 10 murabbas Nos. 29 to 38 situated in Chak 12-Z and measuring 248 bighas. On 18th July, 1948, the plaintiff amended his plaint by a prayer for posses-sion of the property, as according to the plaintiff, Mst. Shankari came to be in possession of the property which had been allotted to her on parti-tion by the Revenue Court.

(3.) LEARNED counsel for the appellant urged that this appeal should be heard on a consideration that the burden of proof was on the defendant, and he urged that the evidence-oral and documentary-led by the defendant was entirely insufficient to prove the custom. LEARNED counsel for the respondent, while urging that the evidence was sufficient also made it a point that the contesting defendant may have been led into not producing all her evidence in the lower court as the burden of proof had been thrown on the plaintiff and he had chosen not to lead any evidence. The contention was that if the Court came to the conclusion that the evidence led by the defendant was not sufficient to prove the custom, a further opportunity should be given to her to produce all her evidence.