1.This is a defendant's appeal against an appellate judgment of Mr. Sansar Ghana, Senior Subordinate Judge, dated the 13th May, 1949, modifying the decree of the trial Court and thus decreeing the plaintiffs' suit in regard to three-fourths of the land in dispute and dismissing it in regard to one-fourth of the land.
2. The following pedigree-table will assist in understanding the case.
| | | |
Bhagwana Baryard alias Sudaman Shyaman Kharka
| ________________|______________ | |
| | | | Hakam |
| Sital Singh Dal Singh Sidha _______|_______ |
| D. 9 D. 8. | | | |
| Widow Mst. Mansa Rajo D. 6. Hirdo D. 5 |
| (D. 7) _______________|_____________
_______________|__________________________________________________ | | |
| | | | | Uttam Munabi Udham Singh
Dalipa Sundru Mansa D. 12. Pohlu D. 11. Babu D. 10 | | |
________________________________________________| | Widow Kishau Devi
| | | _____________|___________
Balbir Singh Suram Singh Labh Singh | |
(They are plaintiffs Nos. 1 to 3) Raulia D. 3. Ram Chand D. 2.
3. Three of the plaintiffs are the sons of Uttam and the rest of the plaintiffs are the minor sons of Hirde, Raja, Dal Singh and Mansa. The attack is directed against the creation of occupancy rights in the land which were created by means of a registered deed dated the 14th June 1946 for a sum of Rs. 1,250/-. The suit was brought on the 19th August 1947 which is quite soon after the deed of alienation. The land in which these occupancy rights were created was found by the trial Court to be such that it could not be reclaimed and the income of the land wasnot more than Rs. 4/- a year. The trial Court found this to be an act of good management and dismissed the plaintiffs' suit.
4. The appellate Court gave a finding which is of a very innocuous nature. He observed:
'There may be circumstances that by selling this land the alienors derived a profit which otherwise they could not get & it could be termed as a piece of good management, but the mere significant point in this case is, that so many alienors Joined in this alienation andevery one felt the same necessity of purchasingbullocks'.
5. It appears to me that the learned Judge did not take into consideration the nature of the land nor the benefit which the defendants were to derive by creating these occupancy rights nor was the attention of the learned Judge drawn to the law on the subject which has been laid down in several rulings that where persons who would be interested in challenging an alienation agree to it, that would be presumptive proof which if not rebutted by contrary proof will validate the transaction as a proper and right one and this is when necessity is not proved 'aliunde' nor is there proof of enquiry on the part of the alienee nor honest belief for the necessity. If one were to approach the case from this point of view there is no other conclusion that one would come to but that the learned Judge has misdirected himself and had his attention been drawn to this statement of the law and to the nature of the land his conclusions would have been different.
6. I would therefore allow this appeal, set aside the decree of the first appellate Court and restore that of the trial Court. The cross-objections are consequently dismissed
7. Parties will bear their own costs.