IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 211 of 1995 Date of Decision:- 29.09.2008 __________________________________________________________ RSA No. 211 of 1995 Pritam & others. ….Appellants. Versus Mansra Ram & others. ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ RSA No. 211 of 1995 For the Appellant: Shri G.D. Verma, Sr. Advocate, with Shri Romesh Verma, Advocate. For the Respondent: Shri Bhupinder Gupta, Sr. Advocate, with Shri Neeraj Gupta, Advocate __________________________________________________________ Dev Darshan Sud, J. This appeal has been preferred by the plaintiffs against the judgment and decree passed by the learned District Judge, Hamirpur affirming the judgment and decree passed by the learned Sub Judge Ist Class, (1), Hamirpur dismissing the suit of the plaintiffs challenging the sale of the suit land by a sale deed dated 8.1.1990 being without consideration and legal necessity and having no binding effect on the reversionary rights of the plaintiff. The plaintiffs approached the trial Court on the pleading that the registered sale deed dated 18.1.1980 vide which the suit land was sold in favour 1 Whether reports of Local Papers may be allowed to see the judgment? 2 of defendants/respondents No. 1 to 3 by Tulsi Ram, defendant No.4 is not binding on the rights as the land was ancestral, the parties were governed by Kangra custom which prohibited such alienation and that it was made without legal necessity. The learned trial Court settled six issues. On the first issue as to whether the parties were bound by the Kangra custom, the trial Court held in favour of the plaintiffs. On the second issue as to whether the land is ancestral or not, the Court held that only field Nos. 954, 1008, 1017, 1027 and 1028 are ancestral. On issue No.3 as to whether the sale in question was made for legal necessity, the Court held that the sale is for legal necessity and is an act of good management. The onus of two issues was on the defendants i.e as to whether plaintiffs have no locus standi to file the suit and that the suit is not properly valued for the purpose of Court fee and jurisdiction. The Court held these issues against the defendants. Having found against the plaintiffs, the suit was dismissed. An appeal was preferred by the plaintiffs before the learned District Judge, who not only affirmed the findings of the learned Court below but held as a fact that the suit land is not ancestral and that any concession given by the counsel regarding the ancestral nature of the suit land is not binding on the interest of defendants. The plaintiffs are now in appeal. This appeal was admitted on 29th April, 1997 on the following substantial questions of law:- 1. Whether property in suit is ancestral and the same could not be alienated ? 2. Whether plaintiffs and vendor are governed in the matter of sale of agriculture land under Kangra customs ? 3. Whether there was no legal necessity for sale of the suit land? 4. Whether the sons on birth inherits occupancy rights with father and they simultaneously acquired ownership rights over suit land? 8. Whether learned District Judge was debarred from upsetting findings of the lower Court on the points of 3 customs and ancestral character of the part of the suit land when no appeal was filed against such findings by respondents ? I have learned counsel for parties and gone through the record. All the four questions are taken up together for decision as each question impinges on the other. The thrust of the argument made by the learned counsel appearing for appellants is that the appellate Court was wrong in holding that the land is not ancestral. He then contends that the parties are governed by the Kangra custom and no sale/alienation could have been done by deceased Tulsi. These are two primary questions urged on which the answer of two other questions would depend. Adverting to the question as to whether the land is ancestral or not, the learned District Judge rightly held that according to Ext.P8 jamabandi for the year 1954-1955, the predecessor in interest of the plaintiff was having a occupancy right with respect to the land holding and he acquired proprietary rights under the law. The learned Court placed a reliance on a judgment in Gajjan Ram Versus Hira Singh & others, 1991 (2) SLJ 994, in which it has been held that in such an event the land could not be considered to be ancestral but as a self acquired property. No other law has been brought to my notice which holds otherwise. On the questions of concession in regard to the ancestral property made by the learned counsel appearing for respondents all that need be stated is that it is of no avail to the appellant. (See M.M.B. Catholicos Versus M.P. Athanasius AIR 1954 SC 526) The fact as to whether the property is ancestral or not had to be determined on a point of law i.e. its nature and not merely on the concession of a party. In these circumstances, it cannot be said that learned appellate Court had wrongly reversed the findings. 4 It is by now well settled that custom is not only to be pleaded but also proved. The learned appellate Court on a conspectus of the entire evidence on record holds that the custom is neither pleaded nor proved. Even otherwise judicial notice can be taken of the fact that Kangra custom on which reliance is being placed is neither pleaded nor proved. In this view of the matter, these questions are decided against the plaintiffs. This appeal is accordingly dismissed. There shall be no order as to costs. September 29, 2008 (Dev Darshan Sud) (ms) Judge