RATTAN SINGH Vs. NIRMAL SINGH

JUDGEMENT

(1.) This is an appeal from the decree of the learned Senior Subordinate Judge of Jullundur reversing, on appeal, the decision of the Subordinate Judge of Nawanshahr decreeing the plaintiff's claim for possession of 31 kanals of land situate in the village Chak Guru, and dismissing the suit.

(2.) The facts that have given rise to this appeal may be briefly stated as fallows: Khushala was the occupancy tenant of the suit land. On 4 October 1941 he gifted the land to Nirmal Singh defendant, his collateral in the third degree, being a great grandson of his uncle Dal Singh. Rattan Singh plaintiff, real nephew of the aforesaid Khushala, brought a suit after the latter's death for possession of the land alleging that the suit land was ancestral qua him, that on the death of Khushala he was entitled to succeed to the same under the provision of Section 89, Punjab Tenancy Act, that according to the custom governing the parties Khushala's powers of alienation over ancestral land were restricted, and that accordingly the gift made by him in favour of Nirmal Singh defendant was invalid and not binding on the plaintiff. The suit was resisted inter alia, on the pleas that the plaintiff had been adopted by Kahan Singh his grand, uncle and had, accordingly, lost the right to succeed to the land left by Khushala as his nephew; that Nirmal Singh defendant had been adopted by the aforesaid Khusbala, and that the gift in his favour was in the nature of an acceleration of succession. The ancestral nature of the land was also denied. On the pleadings of the parties, the learned trial Judge framed the following issues: (1) Whether Rattan Singh is the adopted son of Kahan Singh? If sO what is its effect. (2) Whether the property in suit is ancestral qua the plaintiff? (3) Whether Nirmal Singh is the adopted son of Khushala and the gift in his favour is valid? (4) Relief. Subsequently another issue was added as issue 2-A and ran as follows: (2-A) Whether the question of adoption by Kahan Singh of the plaintiff is res judicata? The learned trial Judge disposed of issues 1, 2-A and 3 by means of his order, dated 13 August 1945. On the first issue, he held that the appointment of the plaintiff by Kahan Singh being admittedly a customary appointment the plaintiff was not debarred from succeeding collaterally to Kushala deceased. In view of the decision on issue 1, it was not considered necessary to give any finding on issue 2-A. On issue 3, it was held that the alleged adoption of Nirmal Singh by Khushala being admittedly customary, the defendant was not a lineal des cendant of Khushala within the meaning of Section 59, Tenancy Act, and, therefore, not an heir of the deceased in preference to the plaintiff. It was further held that the gift in favour of the defendant by Khushala could not be regarded as valid. By means of his judgment, dated 26 March, 1946, the learned Subordinate Judge decided issue 2 in the plaintiff's favour and in the result decreed his claim. The defendant went up in appeal to the learned Senior Subordinate Judge who held that Nirmal Singh defendant had become by reason of his adoption by Khushala, a lineal descendant of the latter and, therefore, was entitled to succeed to his occupancy rights in preference to the plaintiff. Feeling aggrieved from this decree the plaintiff has come up in second appeal to this Court.

(3.) After hearing the learned Counsel for the parties, I am of the opinion that the decree of the learned Senior Subordinate Judge cannot be sustained and that this appeal must succeed.