IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 527 of 2003. Reserved on: 18.12.2009 Date of decision: 24.12.2009 Sh.Gajinder Singh …. Appellant Versus Sh.Himender Singh and another ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the appellant: Shri Romesh Verma, Advocate. For the respondents: Sh.Subhash Sharma, Advocate. ______________________________________________ Deepak Gupta, J. This Regular Second Appeal is directed against the judgment of the learned District Judge, Kinnaur Division at Rampur Bushahr in Civil Appeal No.26 of 2002 decided on 27.9.2003 whereby he partly allowed the appeal filed by the plaintiff and set aside the judgment and decree passed by the learned Sub Judge 1st Class, Rampur Bushahr. 2 Briefly stated the facts of the case are that Haminder Singh, plaintiff is the brother of Gajinder Singh, defendant No.1 and Smt.Rajni Machan, defendant No.2. He filed a suit claiming that the property bearing Khasra No.351, 352, 365, 366, 367, 374, 373, 375 in Khewat No.1, Khatauni No.1, 2, 3, 4 measuring 445-55 square yards situate in Up-Muhal Kasba Bazar, Rampur, Tehsil Rampur, District Shimla is the joint property of the plaintiff and defendants. The plaintiff claimed that defendant No.2, i.e., sister was wrongly shown as co-owner to the extent of 1/4th share in the property in question. According to the plaintiff, the parties are Scheduled Tribe belonged to District Kinnaur and as per the custom governing the parties, a female is not entitled to inherit the estate of her father. The plaintiff prayed that he and defendant No.1 have equal share in the said property and the same may be partitioned by metes and bounds. Defendant No.2 did not file written statement. Defendant No.1 took the plea that the said property is exclusively owned and possessed by him and neither plaintiff nor 3 defendant No.2 have any share in the same. Defendant No.1 also claimed to have become owner of the said property by way of adverse possession. It was not disputed that the property in question was ancestral property. The parties led evidence. In Ext.PW1/A, Jamabandi for the year 1997-98, the property in question is shown to be constructed property consisting of house, courtyard, shop etc. 3/4th share in the property was shown to be in the name of Gajinder Singh, defendant No.1, one Mahinder Singh in equal shares and 1/4th share in the name of Rajni Devi, defendant No.2. The learned Trial Court held that the name of the plaintiff Haminder Singh is not figuring in the Jamabandi in which the name entered is “Mahinder Singh” and possession has been shown to be of that of Mohinder Singh, Gajinder Singh and Rajni Devi. It also held that defendant No.2 is owner to the extent of 1/4th share in the property but dismissed the suit of the plaintiff only on the ground that he would not be entitled to 1/2 share 4 since his name was not reflected in the Jamabandi. The plaintiff filed an appeal. The learned District Judge held that it stood proved on record that the property initially belonged to Balbahadur Singh. He further held that merely because the name given in the Jamabandi was Mahinder Singh and not Haminder Singh, did not mean that Haminder Singh did not have any share in the property. He, therefore, passed a preliminary decree in favour of the plaintiff holding that Haminder Singh and Gajinder Singh each had half share in the 3/4th share, i.e, 3/8th in the property whereas defendant No.2 had 2/8th or 1/4th share in the property. This judgment is under challenge before this Court. I have heard Sh.Romesh Verma, learned counsel for the appellant and Subhash Sharma, learned counsel for respondent No.1. Sh.Romesh Verma has urged that the Courts below erred in holding that defendant No.2 had any share in the property. He further submits that the plaint is not in accordance with 5 Order 7 Rule 1, CPC. According to him, the suit could not have been decreed without getting a declaration that the person shown as Mahinder Singh in the revenue record is the same as the plaintiff Haminder Singh. A number of points raised by Sh.Verma were not even taken up before the Courts below and in a second appeal, he cannot be permitted to raise the same. As far as the share of Rajni Devi is concerned, both the Courts below have come to a finding of fact that the parties have failed to prove any custom to show that the daughter does not inherit the share in the property of her father. In the revenue record also, the daughter was shown in possession of 1/4th share. Therefore, there is no error in the order of the learned Trial Court holding that defendant No.2 has 1/4th share in the property in question. No doubt in Ext.PW1/A, the jamabandi, the persons shown in possession are Gajinder Singh, Mahinder Singh and Rajni Devi but it is apparent that Mahinder Singh none else than the plaintiff Haminder Singh. Merely because his 6 name has been recorded wrongly in the revenue record does not mean that he is not the owner of the property. The defendant did not deny the fact that the plaintiff is the son of Balbahadur Singh and is his real brother. It is also admitted that the property was originally owned by Balbahadur Singh. It is thus obvious that only the heirs of Balbahadur could have inherited the property. No case has been set up that there is any other brother by the name of Mahinder Singh. Admittedly the only children of Balbahadur are Haminder Singh, Gajinder Singh and Rajni Devi. Therefore, they only could have inherited this property. The objection of Sh.Verma that the plaint is not properly drafted since the property has not been properly described is not correct. In para No.1 of the plaint, entire description of the property is given. It would be pertinent to mention here that the property consists of whole khasra numbers and, therefore, there was no need to give any further description. The property has been identified on the basis of the averments 7 made in the plaint and there is no dispute with regard to the identification of the property. Another objection raised is that the suit was not properly valued for the purpose of court fees and jurisdiction. No such objection was raised before the learned Appellate Court nor such issue was pressed at the time of framing of issued. The defendant No.1 is deemed to have waived off this defence. In view of above discussion, I find no merit in the appeal which is dismissed accordingly with costs assessed at Rs.3,000/-. December 24, 2009 ( Deepak Gupta ) (m) Judge