SARDARA Vs. SUKHRAM

JUDGEMENT

(1.) Both the appeals, No. 2 and 3/Ganganagar District of 1957, arise out of a single judgment of the Bikaner Commissioner and hence will be disposed of by this judgment.

(2.) The facts of the case, put briefly, arc that Ram Kishen was at one time the recorded tenant of the land in dispute. Upon his demise the tenancy devolved upon his widow Mst. Dhanni. This Mst. Dhanni is alleged to have died so he five years prior to the institution of this suit. Upon Mst. Dhannis death Rupa succeeded in having the tenancy mutated in his name. Rupa thereafter transferred by sale 80 Bighas and 1 Biswas out of Khasra No. 200 in lieu of Rs. 4,500/ - through a registered sale deed on 4.2.49 in favour of Ram Chandra. The relationship of the parties can be gathered from the pedigree table given by the lower appellate court in its judgment. Jaisa had four sons Teja, Mansa, Tiku and Pooran. Pooran died without leaving any issues. Sukhram and Rawat plaintiffs are the sons of Tiku. Rupa, who has since died, was the son of Mansa. This Rupa is now represented by his son Sardar. Lekhram proforma defendant is the son of Teja. On 30.10.50 the plaintiffs, Sukhram and Rawat, brought this suit against Rupa son of Mansa and Ram Chandra transferee from Rupa and Lekhram proforma defendant for division of the holding on the ground that they were entitled to one -third share in the holding as being sons of Tiku. The suit was contested by Rupa on the plea that Tiku had gone out in adoption in some other family and hence the plaintiffs being his sons were not entitled to any share in this tenancy. It was also pleaded that the tenancy was acquired by Rupa and Mst. Dhanni jointly and hence it devolved upon Rupa by survivorship and not through inheritance. The following issues were framed in this suit.

(3.) The parties led documentary as well as oral evidence in the case. The documentary evidence produced by the plaintiffs in the case consists of a certified copy of a genealogical table prepared during the settlement operations of Svt. 2001 in village Tehsildar. In this table Jaisa is shown as having four son the names of which have been given above. Ex. P. 1 and P. 2 are sketch plans of Khasra numbers in dispute. The evidence led by the defendants consists of the certified copies of the Gasht Girda -vari of the land in dispute commencing from Svt. 1983. In this Samvat year Ram Kishan is recorded as the tenant of the land in dispute. This entry continued in Samvat years 1984, 1985 and 1986. In 1987 Mst. Dhannis name appears in the Khasra Girdawari and that continued right upto Svt. 1996. In Svt. 1997 Girdharis name appears in the capacity of being an adopted son. In Svt. 2000, corresponding to 1943 A. D. Rupas name appears in the Gasht Girdavari. The parties led oral evidence as well. Special mention may be made of the statements of Mst. Pana and Ram Chandra who were examined by the defendants in this case. The trial court came to the conclusion that the plaintiffs had failed to establish the relationship alleged by them and hence they were not entitled to any relief. The trial court therefore rejected the suit. The plaintiffs went up in appeal before the learned commissioner who after examining the evidence came to the conclusion that the relationship setup by the plaintiffs stood established by the evidence led by the defendants themselves and hence granted a decree for division of the holding after declaring the plaintiffs share to be one -third During the course of his judgment it was also observed by the learned Commissioner that the transferee Ram Chandra failed to exercise that amount of precaution which was incumbent upon him. No decision has however been given as regards the sale deed in the operative part of the judgment Both Sardar and Ram Chandra have filed separate appeals against this decision. Both these appellants were however represented by Shri Laxmi Narain Yadava who has in both the appeals challenged the validily of the decision of the lower appellate court on common grounds.