BASVANT GOWDAPPA PATIL Vs. ABASALLI GAJABARSAHEB DESAI

JUDGEMENT

(1.) This appeal raises a question as to watan law. The facts are simple. The plaintiff is a purchaser from a lady who claims to be the heir of one Kadir Khan, her brother who was the holder of watan property. Defendant No. 2, who is the father of defendant No. 1, had obtained a decree against defendants Nos. 4 to 9, who are the members of the watan family, and at the auction held in execution of this decree his son, defendant No. 1, purchased the property. The plaintiff, who was a previous purchaser from Shahabia, the sister of Kadir Khan, objected, but his objection was overruled, and he brought the present suit for a declaration that the auction- sale was void as against him.

(2.) The question that arose was whether by reason of Act V of 1886, Section 2, the plaintiff's vendor Shahabia, being a female, was not postponed to the males in the family, the property being watan property. It was held by the first Court that this was so, and therefore, the plaintiff must be non-suited. On appeal, this decision was confirmed by the District Judge and the appeal dismissed. The plaintiff makes this second appeal.

(3.) The property in question is deshgat watan property situated in the Belgaum District. The sanad is not forthcoming, but an extract from the register of sanads has been put and has been quoted in full at p. 8 of the print. The decisions of the Courts below have been influenced by the fact that this very extract from the register of sanads in connection with the same watan has been twice construed by this Court in previous litigations between other persons, and in each case the High Court has held that the property is watan and that a female could not succeed. But it is contended that the High Court decisions were passed in the absence of the evidence which has now been put before the Court, and that in the light of the evidence with which we are now furnished, it is open to this Court to take a contrary view to that which was taken in the previous decisions. They are not, of course, res judicata. The first of these decisions was in First Appeal No. 177 of 1920 decided on April 13, 1922, and it was held that the endorsement appended to the register of sanads, which was set out in the judgments of the Courts below and which is the same endorsement which we have to construe now, did not suffice to change the land from watan property to ordinary private property. In the case of Dulabai V/s. Mahmad Hanif (1923) Second Appeal No. 539 of 1920 the construction of these words came before this Court and the Court again, though with some diffidence, came to the same conclusion as before following the construction which had been put upon these words in First Appeal No. 177 of 1920. But it may be observed that the Court said :- "Unfortunately the materials for determining that question are not quite as intelligible as they could have been desired," and the case was argued upon the construction of the endorsement. It is now contended by the learned Counsel for the appellant that this deficiency has been made good by the evidence which is now produced by his client and that there can be no difficulty in arriving at a conclusion as to the nature of the property.