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Agdi and ors. Vs. Mst. Mamo, Minor Daughter of Chanan Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 84 of 1966
Judge
Reported inAIR1967P& H447
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 101
AppellantAgdi and ors.
RespondentMst. Mamo, Minor Daughter of Chanan Singh and anr.
Appellant Advocate Ganga Parshad Jain and; Chand Goyal, Advs.
Respondent Advocate Dalip Chand Gupta, Adv. for Respondent No. 1
DispositionAppeal dismissed
Excerpt:
.....be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ..........the daughter the property being ancestral;(2) that the defendants have become owners of the suit property by adverse possession;and (3) that the suit is barred by limitation. it was also pleaded that the parties are governed by custom.3. the trial court held that the parties were governed by custom; that the land was non-ancestral; that the defendants had failed to prove their adverse possession and the suit was within limitation. it was further held that according to the rule of custom, daughter was a preferential heir to the non-ancestral property of the father. accordingly the suit for possession was decreed. the defendants appealed to the district judge, sangrur. the appeal was heard and disposed of by the additional district judge.4. the only contention before the additional.....
Judgment:

D.K. Mahajan, J.

1. This second appeal is by the defendants. They have failed in both the Courts below. The plaintiffs' suit has been decreed.

2. Plaintiff, Mst. Mamo, is the daughter of the last maleholder Chanan. On Chanan's death, his widow, Mst. Badamo, succeeded to his estate. Mst. Badamo remarried. On her remarriage, the last maleholder's daughter, Mst. Mamo, succeeded inasmuch as the mutation was sanctioned in her name. It appears that the fifth degree collaterals of the last male-holder, who are the defendants, had taken possession of the land. This led to the present suit by the plaintiff, daughter of the last maleholder. The suit is for possession. In defence, the following pleas have been raised:--

(1) that the defendants are preferential heirs to the property in dispute as against the daughter the property being ancestral;

(2) that the defendants have become owners of the suit property by adverse possession;

and (3) that the suit is barred by limitation. It was also pleaded that the parties are governed by custom.

3. The trial Court held that the parties were governed by custom; that the land was non-ancestral; that the defendants had failed to prove their adverse possession and the suit was within limitation. It was further held that according to the rule of custom, daughter was a preferential heir to the non-ancestral property of the father. Accordingly the suit for possession was decreed. The defendants appealed to the District Judge, Sangrur. The appeal was heard and disposed of by the Additional District Judge.

4. The only contention before the Additional District Judge was as to the nature of the property. The other findings of the trial court were not challenged. The learned Additional District Judge has very carefully examined the revenue records, and, after considering them, has affirmed the decision of the trial Court. The defendants, who are dissatisfied with this decision, have come up in second appeal to this Court.

5. The only contention advanced before me is as to the nature of the property namely, that it is proved to be the ancestral property of Chanan and the defendants. After hearing the learned counsel for the appellants, I see no force in this appeal. The lower appellate Court has come to a correct decision on the nature of the property. It is proved from the revenue records that before the First Settlement or even at the First Settlement, the land was not held by the descendants of the common ancestor in equal shares. The measure of ownership was the measure of possession and not ancestral shares. It has also been found that one of the branches was holding half the area as compared to the other three branches.

It has also been found that in the revenue record of 1932 Bk., the land held was shorter in area than the land held in the First Settlement of 1960-61 Bk. This discrepancy is sought to be explained by the learned counsel on the plea that the Bigha in the 1932 Bk. papers was a Pucca Bigha; whereas in the regular Settlement, it was the Kacha Bigha. That may or may not be so. But the fact remains that the basis of ownership was possession and the Khata was not joint. It is only where there is a joint Khata at the First Settlement that a presumption arises that the land has descended from the common ancestor. This basic requirement is missing in this case. It appears to me that the lower appellate Court has arrived at a correct decision. No case is made out for interference in second appeal.

6. This appeal accordingly fails and is dismissed with costs.


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