GURDEV SINGH Vs. DASAUNDHI

JUDGEMENT

(1.) This second appeal has arisen tinder the following circumstances. By means of sale deed dated 6-6-1939. Chetu deceased son of Hira Singh and Chuhra defendant 3 sold 36 bighas and 1 biswa of land in suit to defendants 1 and 2 for a consideration of Rs. 3000. Defendants 1 and 2 transferred the land to defendants 4 to 6 by means of exchange. The plaintiffs, the sons of Chuhra, defendant 3, brought the suit, that has given rise to the present second appeal for a declaration to the effect that the sale of the land in suit by their father and the deceased Chetu, a near collateral of theirs, should not affect their reversionary rights after the death of their father Chuhra. It was alleged that the land was ancestral qua them and that the sale had been effected without consideration and legal necessity. On the pleadings of the parties the learned trial Judge framed the following issues: (1) Is the land in suit ancestral qua the plaintiffs? (2) Whether the sale was effected for consideration and legal necessity? (3) Whether the suit is collusive? (4) Relief.

(2.) The learned Judge found that the land in suit was divisible into two categories. 34 bighas and 2 biswas of land shown as category A had been allotted to the vendors in the proceedings for consolidation of holdings in lieu of 35 bighas and 3 biswas of land indicated by the letter B in the judgment. The remaining land fell under category A/1? The learned Judge found the land which the vendors had thrown into the hotchpotch at the time of the consolidation of the holdings, namely, the land indicated by letter B in the judgment, with exception of 8 biswas, to be ancestral in the Vendor's hands qua the plaintiffs. Finding, however, that 8 biswas out of this land has not been proved to be ancestral he held that the entire 34 bighas and 2 biswas of land allotted to the vendors during the consolidation proceedings must be held to be non-ancestral. Out of the land shown as belonging to category A/1 he held only 5 biswas of land comprised in khasra number 257 to be ancestral. In view of the fact that necessity for Rs. 400 out of the sale consideration, due to a previous mortgagee was, not being challenged, the learned Judge dismissed the suit, without giving any decision regarding necessity for the rest of the sale consideration, on the ground that only 5 biswas out of 36 bighas and 1 biswa of land sold having been proved to be ancestral, the sale could not be set aside even though the balance of the sale consideration was found to be without any necessity. On appeal by the plaintffs the learned District Judge upheld the decision of the learned trial Judge and affirmed the decree passed by him dismissing the plaintiff's suit. The plaintiffs have come up in second appeal to this Court.

(3.) The finding of the Courts below as to the character of the land comprised in category ?A/1? has not been challenged. The only question that requires determination in the present appeal is whether the Courts below were justified in holding the entire land comprised in category A to be non-ancestral on the ground that out of 35 bighas and 3 biswas of land, in lieu whereof the vendors had got the land comprised in this category, 8 biswas of land had not been proved to be ancestral.