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Mewa Ram Vs. Lal Sahai and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1927All410
AppellantMewa Ram
RespondentLal Sahai and anr.
Excerpt:
- .....that he and defendant no. 1 are the sons of kundan, and as such entitled in equal shares to the holding in dispute that belonged to kundan, and in the alternative for recovery of joint possession of the same along with defendant no. 2. 2. the plaintiff's case was that the holding in dispute belonged to kundan and that he, as one of the sons of kundan, was entitled to a half share in the holding in dispute, but defendant no. 1 had got the holding in dispute entered in the revenue papers in the name of son-in-law, defendant no. 2, without the plaintiff's consent. 3. the defence to the suit was that the plaintiff was not the son of kundan and that the holding in dispute was acquired by defendant no. 1 and not by kundan and as such the plaintiff in no case was entitled to the reliefs.....
Judgment:

Iqbal Ahmad, J.

1. This is a plaintiff's appeal and arises out of a suit for a declaration that he and Defendant No. 1 are the sons of Kundan, and as such entitled in equal shares to the holding in dispute that belonged to Kundan, and in the alternative for recovery of joint possession of the same along with Defendant No. 2.

2. The plaintiff's case was that the holding in dispute belonged to Kundan and that he, as one of the sons of Kundan, was entitled to a half share in the holding in dispute, but Defendant No. 1 had got the holding in dispute entered in the revenue papers in the name of son-in-law, Defendant No. 2, without the plaintiff's consent.

3. The defence to the suit was that the plaintiff was not the son of Kundan and that the holding in dispute was acquired by Defendant No. 1 and not by Kundan and as such the plaintiff in no case was entitled to the reliefs prayed for by him. It was also contended by the defendants that the suit was time-barred.

4. The trial Court held that the plaintiff was the son of Kundan and that the suit was not time-barred. It further held that only some of the plots claimed by the plaintiff belonged to Kundan and passed a decree with respect to the same in the plaintiff's favour.

5. On appeal by the defendants the lower appellate Court has modified the decree of the trial Court and has dismissed the plaintiff's claim in full. The lower appellate Court has held that the plaintiff 'is not the son lawfully born of Kundan' and that the karao marriage alleged to have taken place between the plaintiff's mother and Kundan was not proved. It has further held that the plaintiff and the defendants 'have never been joint in family or cultivation' and as such the suit was time-barred.

6. It is abundantly clear from the perusal of the written statement that the assertion of the defendants was that the plaintiff was not the son of Kundan. It was never the defendants' case that the plaintiff, though born of Kundan, was illegitimate, because the plaintiff's mother was not married to Kundan. That accounts for the fact that no clear issue on the question of a karao marriage between the plaintiff's mother and Kundan was framed by the trial Court. In the absence of a clear issue on that point, I would have been prepared, in view of the case of Balkaran Singh v. Dulari Bibi : AIR1927All231 , to remit an issue to the lower appellate Court for a finding thereon, after giving the parties an opportunity to adduce further evidence as to whether or not the plaintiff's mother was married in karao form to Kundan. But I have refrained from adopting that course, as on the perusal of the record, I find that the plaintiff did adduce evidence on that point. It is thus clear that, by the omission of a clear issue on the point, the plaintiff has not been prejudiced in any way. The finding as to the legitimacy of the plaintiff is a finding of fact and I must accept it in second appeal.

7. But I cannot accept the finding of the lower appellate Court that the present suit was time-barred. If the plaintiff was a co-owner with the defendants in the holding in dispute, the mere fact of the non-participation of the plaintiff in the cultivation of the holding could not enable the defendants to prescribe a title by adverse possession for more than twelve years, unless it was proved that there was an ouster of the plaintiff coupled with the denial of the plaintiff's title to the holding in dispute. This fact has not been proved in the present case. As such, I am unable to accept the finding of the lower appellate Court on this point.

8. It appears to me that, notwithstanding the fact that the plaintiff is the illegitimate son of Kundan, the plaintiff is entitled to a decree for joint possession of such plots as belonged to Kundan. The parties to the suit are Jats and it has been held in Bhagwani v. Khushi Ram [1914] 24 I.C. 982 that Jats are Sudras. An illegitimate son of one belonging to a Sudra caste by a kept woman is entitled to succeed to the holding of his father as a 'male lineal descendant' within the meaning of Section 22 of the Agra Tenancy Act 1901, vide Ram Kali v. Jamma [1908] 30 All. 508 It has not been argued before me that the plaintiff is not even an illegitimate son of Kundan.

9. The lower appellate Court has not recorded any finding on the point as to which of the plots in dispute belonged to Kundan. Before finally deciding this appeal, I must have a finding from the lower appellate Court on the following point:

Which of the plots in dispute constituted the holding of Kundan

10. No further evidence will be allowed. On receipt of the finding, the usual ten days will be allowed for filing objections.


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