1. Har Narain was the last male owner of the land in suit. He died in 1942. His widow Smt. Patori contracted karewa marriage with one Molar of village Mehomoodpur. Smt. Shanti was the daughter of Har Narain from Smt. Patori and was taken by her mother when she contracted karewa marriage. The mutation of the land left by Har Narain was sanctioned in the name of the Surta and his sons. Smt. Patori field a suit against them for possession of that land but her suit was dismissed. Surta and his sons claimed in that suit that they were the heirs of Har Narain deceased. Smt. Shanti was not made a party to that suit. On July 15, 1965, she filed a suit for the possession of the land left by her father against Surta and his three sons and Smt. Patori claiming that she was a preferential heir to her father as compared to the defendants. It was not pleaded in that suit either by the plaintiff, Smt. Shanti, or by the defendants, Surta and others that the parties were Jats and governed by agricultural custom or that the land left by Har Narain was ancestral. On the pleas of the defendants, the following issues were framed:
1. Whether the suit is barred by time? O. P. D.
2. Whether defendants 1 to 4 are in adverse possession of the land in suit? O. P. D.
3. Whether the suit is barred by the rule of respondent judicata? O. P. D.
4. Whether the suit is properly valued for purposes of court-fee and jurisdiction? O. P. P.
5. Whether the defendants are preferential heirs to Har Narain deceased?. O. P. D.
The learned trial Court held that Surta had become owner of the land, which was not under mortgage, by adverse possession and the suit in respect of that land was barred by time. Issue No. 3 was decided against the defendants while issue No. 4 was decided in favour of the plaintiff. On issue No. 5 it was held that Surta defendant was a preferential heir to Har Narain according to the answer to question No. 56 in the Riwaj-i-am of Rohtak district and, therefore, the plaintiff had no locus standi to file the suit for possession and thus issue No. 5 was decided in favour of Surta and his sons. As a result of those findings the suit of the plaintiff was dismissed on December 13, 1965. Against that decree, Smt. Shanti plaintiff field an appeal which was accepted by the Additional District Judge, Rohtak, on August 10, 1966, and she was granted a decree for possession of the land measuring 5 bighas 9 biswas bearing khasra Nos. 4693/1553, 2097, 3685, 3686, 3687, 4701/3759 and 4702/3759. It was further held that--
'the defendants are not proved to be in adverse possession of the land under mortgage from Har Narain deceased and that the suit of the plaintiff for possession there-of is not barred by time and that the plaintiff will have a right to file a suit for redemption of the same to the extent of her share therein and her suit with respect to the other land shall stand dismissed'.
Against that decree, Surta filed R. S. A. No. 1403 of 1967 in this Court which was accepted by the learned Single Judge and the suit of the plaintiff was dismissed on July 16, 1971. The present appeal under C1. 10 of the Letters Patent has been filed by the plaintiff against the judgment and decree of the learned Single Judge.
2. The regular second appeal was first heard by the learned Single Judge on November 10, 1970, and the case was remanded to the trial Court to give a finding as to the nature of the property, that is, whether it was self acquired or ancestral of Har Narain and the degree of the collateral relationship between Surta and Har Narain. The trial Court submitted a report to the effect that the land in suit was ancestral in character and Surta was related to Har Narain in the third degree. The learned counsel for the plaintiff did not challenge the aforesaid two findings of the Courts below. In the appeal before us, it has been vehemently stressed by the learned counsel for the appellant that in the absence of any plea raised by Surta and his sons in their written statement that the land was ancestral or that the parties were governed by custom, it was not open to the learned Single Judge to remand the case to the learned trial Court for a report on those two points. No issue was claimed or framed with regard to those two matters. The judgment of the learned Additional District Judge shows that it was contended before him by the learned counsel for the defendants that the parties were governed by custom and they were preferential heirs to Har Narain qua the plaintiff and that her suit had been rightly dismissed. The learned Additional District Judge expressed the opinion as under:--
'In this case it is not disputed that the mother of the plaintiff contracted karewa marriage. It is also not disputed that they are Jats. It is also not disputed that they depend upon agriculture and in these circumstances, I feel that the parties must be deemed to be governed by custom in matters of alienation and succession.'
After referring to certain judgments cited before him, he concluded:
the basis of this authority (Kehar Singh v. Dewan Singh, 1966 Cur LJ 472=(AIR 1966 SC 1555) the learned counsel for the defendant argued that according to the entry in the Riwaj-i-am, a daughter was excluded, but as pointed out above, the entry in the Riwaj-i-am, being against females, the burden was on the defendant to establish that such special custom existed in the family of the parties. The defendant did not allege any custom and much less special custom. In these circumstances, I am of the opinion that defendant Surta was not preferential heir of Har Narain deceased and his daughter Shanti, now plaintiff, was his preferential heir. I, therefore, decide issue No. 5 against the defendant.'
This conclusion of the learned Additional District Judge can only be supported on two grounds, that is, that the parties were governed by Hindu law according to which the daughter was a preferential heir to the collaterals or (2) that the land was non-ancestral and according to the custom stated in para 23 of Rattigan's Digest of Customary law the daughters excluded the collaterals. The third possible ground for the conclusion can be that the answer to question No. 56 in the Riwaj-i-am of Rohtak district was not correct and, therefore, daughter was not excluded from inheritance to ancestral property by the collaterals of the last male holder. Earlier part of the judgment of the learned Additional District Judge shows that on behalf of the plaintiff it was argued that according to para 23(2) of Rattigan's Digest of Customary Law, a daughter was preferred to collaterals in respect of succession to the acquired property of her father. On that basis, it was argued that the general custom as given in the Customary Law was that the daughter was to inherit as heir of her father in preference to his collaterals. It was further submitted by the learned counsel for the plaintiff that the defendant did not plead in his written statement that the parties were governed by custom in matters of alienation and succession and, therefore, the plaintiff was the heir of her father in preference to the collaterals. Lastly, it was submitted that even if the parties were held to be governed by custom, then also, according to para 23 of Rattigan's Digest of Customary Law, the plaintiff was a preferential heir to the collaterals. In the entire judgment of the learned Additional District Judge, it has not been stated that the land in suit was ancestral in the hands of Har Narain. This matter had not been pleaded in the written statement by the contesting defendants nor was put in issue. in these circumstances, the learned Single Judge erred in obtaining a report from the trial Court on the nature of the land in suit and deciding the suit on its basis.
3. The learned counsel for the appellant has relied on the judgment of their Lordships of the Supreme Court in Bhagat Singh v. Jaswant Singh, AIR 1966 SC 1861. In that case, the plaintiff alleged that the plots were owned and possessed by Kartar Singh who had adopted him about two years before his death. The defendants got mutation made over the land in suit collusively with the revenue officials and secured possession over them by successfully inducing the tenants to pay rent to them. The defendants accepted the allegation that Kartar Singh owned and possessed the land in suit but denied that he had ever adopted the plaintiff as his son. On the pleadings of the parties, the trial Court framed the following issues:--
1. Was the plaintiff validly adopted by Kartar Singh deceased and when?.
2. Is the land in suit ancestral qua the plaintiffs?.
The Senior Subordinate Judge dismissed the suit holding that no adoption of the plaintiff had taken place and that even if it had taken place, it was opposed to the general as well as the custom of Jullundur district. He did not decide the second issue in view of his finding on the first issue. On appeal, the district judge held that the plaintiff had been adopted as a son and appointed as an heir by Kartar Singh. He did not consider it necessary to decide whether the adoption was valid, as the properties left by Kartar Singh were not alleged to be ancestral and consequently the defendants had no right to contest any alienation or any appointment of an heir to such property in view of the provisions of Section 7 of the Punjab Custom (Power, to Contest) Act, 1920. The suit of the plaintiff was decreed and the defendants went in second appeal to the High Court which was dismissed. In the Judgment of the High Court, it was observed:--
'The pleadings of the parties are so confused that it is impossible to find out that the defendants were either claiming that they were within five degrees of the common ancestor or that they were claiming that the land was ancestral, and in a case such as this where no specific plea has been taken as to the ancestral nature of the property, it cannot be said that that issue arose on the pleadings.'
Against that order, appeal was preferred by the defendants to the Supreme Court. In the course of the judgment (para 7 of the report), their Lordships observed:
'It may further be observed that the appellants did not, in their written statement, state what the custom was and why the adoption of the plaintiff was against that custom. No issue was framed with respect to the specific custom which could invalidate the adoption of the plaintiff. The mere fact that the issues as framed did involve the consideration of the validity of the adoption and the ancestral nature of the land in suit will not clothe the vague allegation in the written statement with the definiteness of the requisite pleadings and will not make it incumbent on the parties to lead evidence for or against the existence of a certain custom and the plaintiff's case not coming within it. It is significant that the appellants did not, even on the respondents taking objections in the memorandum of appeal to the District Judge to the effect that 'there being even no allegation in the written statement of the defendants that the suit property was ancestral qua them and there being no finding either that the property was in fact ancestral, the trial Court erred in going into the question of the validity of the adoption', apply for an amendment of the pleadings. They could have done so, and if their application had been allowed, the plaintiff would have been able to plead more precisely in reply to the defendants' contention and could have, if necessary, led further evidence in support of his case. It is true that evidence was led by the parties both about the custom and about the ancestral nature of the land in suit. But, in view of the absence of any specific issue about the custom, it is possible that adequate evidence bearing on the question might not have been led.'
In para 9 of the report, their Lordships went on to say:
'The case more to the point is the privy Council case relied on by the Courts below, viz., Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57(1), where it was held that 'where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward.'
These observations squarely apply to the facts of the present case according to which the learned Single Judge should not have embarked upon the enquiry with regard to the ancestral nature of the property in suit nor should have based his decision on the finding that the land in suit was ancestral. This conclusion is supported by a judgment of their Lordships of the Privy Council in Kanda v. Waghu, AIR 1950 PC 68, wherein it was held that--
'It is an absolute necessity that the determination in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made.'
It was further held that the appellate Court erred in framing a new issue which did not arise on the pleadings and sending the case back for further evidence.
4. Another judgment by their Lordships of the Supreme Court brought to our notice by the learned counsel for the appellant is Salig Ram v. Munshi Ram, AIR 1961 SC 1374, in which it was ruled in part 2 of the report:
'In questions regarding succession and certain other matters, the law in the Punjab is contained in Section 5 of the Punjab Laws Act, No. IV of 1872. Clause (b) of that section provides that the rule of decision in such matters shall be the Hindu Law where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act or has been modified by any such custom as is referred to in Clause (a) thereof. Clause (a) provides that any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority shall be applied in such matters. The position, therefore, that emerges is, where the parties are Hindus, the Hindu Law would apply in the first instance and whosoever asserts a custom at variance with the Hindu Law shall have to prove it, though the quantum of proof required in support of the custom which is general and well-recognised may be small while in other cases of what are called special customs the quantum may be larger.'
According to these observations, it was incumbent on Surta and his sons to plead in their written statement that they were governed by custom in matters of alienation and succession and to state what that custom was. In the absence of that plea, Hindu Law should have been applied and not the Customary Law and according to Hindu Law, the appellant was a preferential heir to her father qua Surta defendant and his sons.
5. The learned counsel for the contesting defendants has submitted that the parties had argued the case on the basis that the Customary Law applied and even if there were no pleadings and no issue, the decision of the learned Single Judge should not be set aside on that ground. Reliance has been placed on the judgment of their Lordships of the Supreme Court in Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593. In para 11 of the report, the following observations occur on which reliance is placed:--
'The question of lis pendens was raised by the plaintiff at the very commencement of the trial on 8-3-1947 when he went into the witness box and filed in his examination-in-chief Exhibit J series, relating to the maintenance suits, the decree passed therein and the proceedings in execution thereof, including the purchase by Devamma. This evidence is relevant only with reference to the plea of lis pendens, and it is significant that no objection was raised by the defendants to its reception. Nay, more.
On 13-3-1947, they cross-examined the plaintiff on the collusive character of the proceedings in Ext. J series, and filed documents in proof of it. The trial went on thereafter for nearly three months, the defendants adduced their evidence, and the hearing was concluded on 2-6-1947. In the argument before the District Judge, far from objecting to the plea of lis pendens being permitted to be raised, the defendants argued the question on its merits, and sought a decision on the evidence that the proceedings were collusive in character, with a view to avoid the operation of Section 52, Transfer of Property Act.
We are satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same, and that, in the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them.'
The learned counsel cannot obtain any help from these observations because the learned counsel for the plaintiff vehemently argued before the learned Additional District Judge that it had nowhere been pleaded by the contesting defendants that the parties were governed by custom and what that custom was. It cannot, therefore, be said that the plaintiff knew fully well that the contesting defendants were pleading that the parties were governed by custom and that the land in suit was ancestral. We are of the opinion that the learned Single Judge decided the appeal on extraneous matters which had not been made the subject-matter of trial in the suit and, therefore, his judgment and decree cannot be upheld.
6. For the reasons given above, we accept this appeal with costs and setting aside the judgment and decree of the learned Single Judge, restore those of the learned Additional District Judge.
7. Appeal allowed.