1. This is a plaintiffs' appeal against an appellate decree of Additional District Judge Guru Datta of Hoshiarpur, dated 9-7-1948, reversing the decree of the trial Court decreeing the plaintiffs' suit.
2. The dispute in this case is between third degree collaterals and Mst. Parsani and other daughters of Atma Rani, the last male owner of the estate, in order to understand the case, a reference may be made to the following pedigree-table.
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Ram Jas Rama Radha Narain Sawan Dillu
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Maya Parsani Satya Devi
(Deft. No. 1) (Deft. No. 2) (Deft. No. 3)
Plaintiffs are some of the descendants of the other brothers of Dillu.
3. On the death of Atma Ram, which took place about 15 years ago, the property was mutated in the name of his widow Mst. Ralli, who died on 23-8-1938. On her death the land was mutated in favour of Mst. Maya, who was defendant 1 but died during the pendency of the suit. The dispute really resolves itself into whether on the death of Atma Ram, his daughters are better heirs than the collaterals & for the decision of that it is necessary to enquire into the ancestral nature of the property left by the deceased, which consists of land and a house. The learned trial Court held that the land was ancestral, but the District Judge on appeal held it otherwise. The same decision was given in regard to the house.
4. in order to determine whether the land is ancestral or otherwise, the appellants have relied up-on three pieces of evidence.
(1) The fact that the name of the common ancestor Nikka is expressly mentioned in the pedigree-table of the year 1884, Ex, P. 2;
(2) in the earlier settlements of 1852 and 1868 the land in dispute was held jointly by the sons of Nikka; and
(3) the history of the acquisition of village Punj shows the ancestral nature of the land in dispute.
5. By itself the mere mention of the name off the common ancestor in the pedigree-table is of? very little importance, see -- 'Mt. Subhani v. Nawab', A. I. R. 1941 PC 21 (A). But the revenue records show that in 1868 the land in dispute was held by the sons of Nikka jointly in ancestral shares. In 1852 the land is shown as held by the sons of Nikka jointly, but the shares are not specified. Prom this the learned Judge concluded that the shares were not specified. The learned Judge seems to be in error in this because when the land was shown to be held by the sons of Nikka without specification of shares, it must be taken that it was held in equal shares. Besides, the land was held in equal shares in 1868. From this fact and from the fact that in 1852 there was no specification of shares, the presumption would be that the land was held in equal shares. If that is so that alone would be sufficient to show that the land in the hands of the sons was ancestral see -- 'Hayat v. Rahman, A. I. R. 1930 Lah 793 (1) (B), a Division Bench decision of the Lahore High Court, where it was held that where land is jointly held by persons who are brothers or cousins, the presumption, in absence of any indication that the land was self-acquired, is that it was originally held by the common ancestor. Skemp J. in -- 'Jati v. Girja Singh', A. I. R. 1937 Lah 917 (C), held the same. The learned Judge followed -- 'AIR 1930 Lah 793 (1) (B)' --- ' Jhanda Singh v. Mt. Banto', A. I. R. 1927 Lah 477 (D) and -- 'Bakhsh v. Mohammad Khan', AIR 1931 Lah 266 (E). In this last Judgment Sir Shadi Lal said
'There is ample authority for the proposition that when a plot of land was owned, at the time of the first settlement, jointly by persons who were brothers or cousins, the presumption, in the absence of any indication that the land was self-acquired property of the owners, is that it was originally held by their common ancestor.'
The ruling in -- 'AIR 1930 Lah 793 (1) (B)', was followed by Bhide, J., in -- 'Bhan Singh v. Ram Singh', AIR 1931 Lah 599 (F).
(6) In the history of the village, Ex. P. 2, whichwas recorded in 1884, when (out of?) the sons ofNikka only Ram Jas had died, it is stated thus-
'We, the owners, ..... partitionedthe land of the whole village in accordance with ancestral shares and every proprietor took possession of his share and became owner thereof ....
From the history of the foundation of the village also it is quite clear that the land in dispute is ancestral. I am, therefore, of the opinion that the learned Judge was in error in holding that the land in suit is not ancestral.
7. In this view of the matter, the plaintiffs are better heirs to the agricultural land which they are claiming and the learned Judge was in error in holding against the plaintiffs.
8. As to the house, there is nothing to show that it was held by the common ancestor and therefore the plaintiffs are not entitled to get possession of this house.
9. In the result, this appeal is allowed to the extent indicated above, but in the circumstances of this case the parties will bear their own costs throughout.
10. I agree.