DINA Vs. NUR MOHAMMAD

JUDGEMENT

(1.) This is a second appeal from the decree of the learned District Judge of Ludhiana affirming on appeal the decision of a Subordinate Judge dismissing the plaintiff's suit for possession of 38 bighas 2 biswas and 10 biswansis of land situate in the village Bonkar Dogran in the Tehail and Diatriot of Ludhiana.

(2.) The facts giving rise to this appeal may be briefly given as follows: The land in dispute was held by one Mt. Rahmon, widow of Mohammadi Gujjar, a resident of the village Bonkar Dogran. Her husband was owner of land in Thulla Mohkam. On his death, the mutation in respect of the land left by him was attested in the name of the aforesaid Mt. Rahmon. Mt. Fatto, her daughter, brought a suit for possession of that land alleging that her deceased father had by means of his will dated 4 January 1904, left the land to her and, had advised his wife Mt. Rahmon to keep her husband as khana damad. Mt. Rahmon confessed judgment and the suit of Mt. Fatto was decreed on 15 November 1905. In pursuance of the decree obtained by her, mutation was sanctioned in her favour. Nabia, a collateral of Mohammadi brought a suit for a declaration that the will said to have been executed by Mohammadi deceased and the decree obtained by Mt. Fatto should not affect his reversionary rights after the death of Mt. Rahmon. This suit was eventually decreed by the Chief Court on 5 July 1909. However, Nabia himself died in 1938 without leaving any heirs other than Mt. Rahmon herself with the result that on 5 May 1938, mutation in respect of the land left by him was sanctioned in favour of the aforesaid Mt. Rahmon. In the meanwhile, Mt. Fatto had also died and mutation of the land standing in her name had also been sanctioned in favour of her mother Mt. Rahmon. Some time after the attestation of the mutation in respect of the inheritance of Nabia, Mt. Rahmon gifted the whole of the land standing in her name to Noor Mohammad who was her sister's son and also the husband of her deceased daughter. Some time after this gift Mt. Rahmon died. Dina and Labhu, two out of the proprietors of Thulla Mohkam, suing on behalf of themselves as well as on behalf of the other proprietors of the Thulla after obtaining leave from the Court under Order 1, Rule 8, Civil P.C., sued for possession of the land mentioned above, alleging that the gift by Mt. Rahmon deceased in favour of Noor Mohammad was invalid, and that according to the custom governing the parties they as the proprietors of the Thulla were entitled to succeed to the land forming the subject-matter of the gift, in the absence of any other heirs of the last male holder a namely, Mohammadi and Nabia. The suit was resisted by the defendants on a number of pleas on which the learned trial Judge framed the following issues: 1. Whether the village in question is a homogeneous estate? 2. If so, and if the land in suit be proved to be ancestral, then whether the proprietors of the said Thulla have no right of succession?

(3.) Whether the land in dispute is ancestral qua the proprietors of Thulla Mohkam?