1. This is an appeal from a judgment and decree of the District Judge, Rampur, dated 18-4-2005 B., affirming a judgment and decree of the Subordinate Judge, Chini, dated 12-7-2003 and thereby dismissing the plaintiffs suit.
2. The suit, in which this appeal hag arisen, was brought by Rattan Das and others, who are the appellants against (1) Darshan Das, (2) Jagar Nath, (3) Jheru, (4) Padam Das and (5) Meo Ram, who are respondents to this appeal. There has been no appearance for the respondents, Padam Das and Meo Ram, in this appeal.
3. The suit was for a declaration that the revenue entries by mutation No. 280 on the basis of an alleged gift of one-fourth share of 44 Khasra numbers measuring 188 bighas and 19 biswas (one hundred and eighty-eight bighas and nineteen biswas) in Chak Karoli be declared not to affect the shares of the members of the joint family, constituting the appellants and respondents.
4. Nainsukh (who died without a male issue), Premsukh (whose sons are the present appellants), Janki (whose sons are the respondents) and Ram Dayal (whose son and grandsons have not made any appearance in this Court) were four brothers forming a joint Hindu family, Nainsukh and Ram Dayal, each cultivating separate portions of the land for convenience and maintenance and the revenue record showed that each held one quarter share in the family property. Before his death, on 22nd April 1914, the Revenue Authorities recorded an alleged gift made by Nainsukh to his brother, Janki Dass and the consequence was that the share of Janki Dass was recorded to be half in the joint family property. There was no partition or division of the respective shares and the parties continued to live jointly till Har 2002, as alleged by the appellants, when the respondents took exclusive possession of that property Khasra No. 245, which Nainsukh cultivated separately by mutual arrangement between him and other brothers.The respondents alleged that they did so on the strength of the gift mentioned above and recorded in the revenue papers. Upon this, the appellants commenced the present suit.
5. The case for the defendant-respondents was that the gift property was neither ancestral nor joint and that the mutation of one-fourth share of Nainsukh by virtue of gift was recorded on 22nd April 1914 and that the plaintiff-appellants had knowledge of it and therefore, the suit was barred under the provisions of the Punjab Limitation (Custom) Act I  of 1920, which has been in force in the State since 1945.
6. The following pedigree will show the relationships of the appellants and the respondents to one another :
| | | |
Nainsukh Janki Premsukh Ram Dayal
| | |
Lachmidas | --------------
| | | |
| | Sunak Ram Padam Das
| | |
| | Meo Ram
| | | |
| Rattan Gurdas Amar Singh
----------------- Das (plaintiffs)
| | |
Darshan jagar Nath Jwalajit
7. The trial Judge framed eight issues. The relevant issues are :
(1) Whether the suit of the plaintiffs was within time?
(2) Whether the property under contest was ancestral
(4) Whether the defendants were in possession of the gifted property to the total exclusion of the plaintiffs
(7) Whether the defendants put themselves into exclusive possession of a portion of the gifted land and what effect it had on the case
8. I may observe at the outset that the issues were loosely settled and there occurs a repetition of the same issue in the garb of different words. I cannot understand why the issues were put into past tense.
9. The learned Subordinate Judge found issues No. 2, 4 and 7 in favour of the appellants. In brief, he held that Khasra No. 245 was not the gifted land and that
'the parties jointly possessed the joint family land and that the whole joint family property is ancestral property qua the parties.'
He, however, dismissed the suit on the finding of issue No. 1. His conclusion on this issue is as follows:
'In substance the suit of the plaintiff is for the correction of the incorrect entry in the revenue records. The so-called entry was made on 22nd April 1914 A. D. The question, therefore, is when did the right to sue accrue to the plaintiff. The plaintiff contends that the first and the substantial attack on his right was made by the defendant when the latter exclusively occupied and cultivated, Khasra No. 245, namely, Daksar in Har 2002 .... The Khasra No. 245 was joint property after the death of the donor and was possessed as such. The exclusive possession over Khasra No. 245 by the defendant does not offer any cause of action to the plaintiff for the present suit.... The father of the plaintiff had the knowledge of the Incorrect entry in revenue records in 1915. The plaintiff cannot now come forward and pose ignorance of the same fact .. . All these facts collectively show that the plaintiff had the notice of the contended entry more than six years ago. Therefore, the suit is time-barred.'
10. An appeal was taken to the District Judge, Rampur, who, on 7-1-2004, remanded the case after having framed two additional issues on cause of action and costs. He observed that the judgment was not very clear if the trial Court took into consideration the effect of the Punjab Limitation (Custom) Act I [l] of 1920.
11. On 14-3-2004, the learned trial Judge reported, on remand, that he 'ruled Lout the applicability of Article 1 of the Punjab Limitation Act' and applied 'Article 120, Indian Limitation Act.' He further held that the appellants had cause of action because 'the property is ancestral' and ordered 'Rs. 20 (Rupees twenty) as costs'. On appeal, Shri Chet Ram, District Judge, in a short and unsatisfactory judgment, dismissed the appeal on the first issue holding that
'the parties are agriculturists and they are governed by custom as is admitted by them. The Punjab Limitation (Custom) Act I  of 1920 is applied to Bashahr State and so in my opinion, it is this Act and not the Indian Limitation Act which would govern the suit. According to Article 1 of this Act, the prescribed period to sue is six years from the date of the attestation of the mutation entry. The mutation of the gifted shares was attested on 22nd April 1914 and so the suit should have been instituted within six years from this date. The last date for institution of a suit for the plaintiff was 22nd April 1920.'
12. The judgment of Shri Chet Bam, the learned Judge, meant that the limitation expired before the Punjab Limitation (Custom) Act ever came into existence. Or in other words, the right to sue vanished before the Act came into existence or was applied to Bashahr State. It was not till 1945 that the Punjab Limitation (Custom) Act I  of 1920 was put in force in Bashahr State. This is a strange view of the law taken by Shri Chet Ram. He takes it for granted that the agriculturists in the State have been and are governed by custom. There is nothing on record to show that they are so governed. A judgment based on conjectures cannot be supported and no Court should go out of the records of the case to found a judgment on matters within its own personal knowledge on conjectures and surmises.
13. This is appellants' second appeal. The counsel for the appellant drew my attention to the findings in his favour: (a) the ancestral nature of the property, (b) joint possession and (c) not till Har 2002, the respondents asserted their rights and took exclusive possession of Khasra No. 245 on the basis of the alleged gift related in the revenue papers. He argued that the Punjab Limitation (Custom) Act I  of 1920 has no application to the facts of the present case. On the contrary, the defence rested solely on the entry effected on 22nd April 1914, which was not acted upon till Har 2002.
14. The counsel for the respondents on the other hand strenuously argued that the plaint distinctly stated that the parties were governed by custom. He cited several decisions of the Punjab High Court in support of his contention that the Punjab Limitation (Custom) Act I  of 1920 applied.
15. In my opinion, the appeal must succeed, The property has been held to be ancestral. The parties were in joint possession till the respondents on Har 2002 asserted their right and took exclusive possession of Khasra No. 245, which they claimed by virtue of the gift but which the donor held not on partition or division by way of family arrangement but for convenience of cultivation. The appellants rightly felt that this exclusive possession of Khasra no. 246 interfered with the integrity of the joint family and invaded their rights in that particular Khasra. 'There was a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted,' as held by the Privy Council in Mt. Bolo v. Mt. Kokalan, 67 I. A. 325 : (A. I. R. (17) 1930 P. C. 270.)
16. It is suggested in this Court that according to custom, a brother can alienate his share without effecting a division or partition. But how can he alienate his share unless he knows what that share is going to be? The power of alienation comes into existence when the subject of it is known and certain. Lord Westbury, in delivering the judgment of the Privy Council in the classic case, Appovier v. Rama Subha Aiyan, 11 M. I. A. 75 : (8 W. R. 1 P. C), held that
'according to the true notion of undivided family in Hindu law, no individual member of that family whilst it remains undivided can predicate of the joint and undivided property, that he, that particular member has a certain definite share. No individual member of an undivided family could go to the place of the receipt of rent and claim to take from the Collector or receiver of the rents a certain definite share.'
17. How can there be a custom to do that, which the general law prevents him to do or abstain from, at his own will? In fact, the trial Judge had not referred to any custom at all in the legal sense of a rule exceptional to the general law. He only stated, on remand of the case, what, in his opinion, was the presumption relating to the applicability of the Limitation Act. In Gobind Narain Singh v. Shiam Lal Singh, 58 I. A. 125 : A. I. R. (18) 1931 P. C. 89, their Lordships held that 'the right to sue must mean the right to bring the particular suit with reference to which the plea of limitation is raised.' In the present appeal, the cause of action arose only when the defendants actually took exclusive possession of Khasra No. 245, which was included in the joint family property and not by the mere gift, recorded in the revenue papers.
18. Both the Courts below erred in calculating the starting point. They held that the starting point was 22nd April 1914 the date of the mutation of the consequences of the gift made on that date. The mutation did not make Janki Dass
'as sole legal owner in a proprietary sense, to the exclusion of all claims of the other members of the family as co-owners.'
(See Nirman Singh v. Rudra Pratap Singh, 53 I. A. 220: (A. I. R. (13) 1926 P. C. 100).
19. The Revenue Authorities did not and cannot pronounce upon the validity of an alleged gift. The mutations did not effect and were not intended or designed to effect proprio vigore an exclusion of the plaintiffs from all interest in the property of the joint family of which they were members.
20. I enjoin all Courts to remember the proposition of law laid down by their Lordships of the Privy Council in the above-quoted case;
'The perusal by their Lordships of the judgment of the Court of the Judicial Commissioner of Oudh leads their Lordships to think that it is to a great degree based on the mischievous but persistent error that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with the greater confidence that the revenue for it will be paid.'
21. There only remains for consideration the question if the plaintiff can be tied down to the position taken by him in his plaint, that under the custom, if an alienation is made by a member of the joint Hindu family, he can challenge it as a reversioner under the Punjab Alienation (Custom) Act I  of 1920. I have been referred by the learned counsel for the respondents to the decision in Dharu Indar Pal Singh v. Firm Badri Das Sohan Lal, A. I. R. (30) 1943 Lah. 281 : (I. L. R. (1944) Lah. 287 F. B.). The plain meaning of the reversioners there was taken to be persons not in possession of the property, and who were never in possession of the property till the date of the suit. In this case the plaintiffs, as members of the joint Hindu family, were in possession of the suit property and other joint family property. But when certain member challenged this right of jointness and took exclusive possession of a portion of the joint family property, the plaintiffs came to the Court for a declaration that their title to that property should be declared and in consequence thereof they may be put into possession. The trial Judge held the plaintiff's suit was in substance for a declaration that the property now held by the descendants of Premsukh, Janki Dass and Rattan Das (Nainsukh having died without male issue) are joint. In Someshwar Datt v. Tribhuban Datt, 61 I. A. 224 : A. I. R. (21) 1934 P. C. 130, their Lordships of the Privy Council were disinclined to press the structure of the pleading too strictly if fair notice of the plaintiffs' case had been given and an issue had been joined on an inquiry but faintly adumbrated. Again, in Ghanendra Roy v. Praful Kumar, A. I. R. (11) 1924 P. C. 200, (Sic), their Lordships observed,
'Where in the trial Court the matter of the position of the plaintiff was sufficiently clear, the plaintiff should not be tied down to a particular position taken up in his plaint.'
22. In these circumstances, I think that the mutation proceedings in 1914 cannot justify the conclusion arrived at by the learned District Judge and does not justify it after the conclusion justifiably reached by the trial Judge regarding the ancestral nature of the property and joint possession.
23. I shall, therefore, allow the appeal and advise the Chief Commissioner to set aside the judgments and decrees of the Courts below and give judgment in favour of the plaintiff-appellants, decreeing their suit and declaring that Khasra No. 245 of the suit property as described in the plaint is the joint family property of the plaintiffs and respondents and further directing that the revenue records showing half share of the joint ancestral property to have belonged to Janki Dass, should be corrected and rectified, so that the entire property in the hands of the parties shall remain joint ancestral property till partition and leave the parties to bear their own costs.