IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 304 of 1999 Date of Decision : November 02 , 2010 Kalu …Appellant v. Jagat Ram & Ors. …Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Naresh K. Thakur, Advocate. For respondents No.1 to 5, & 8 to 18 : Mr. Anand Sharma, Advocate. Sanjay Karol, J (Oral). This is the plaintiff’s regular second appeal filed under Section 100 of the Code of Civil Procedure. Plaintiff has assailed the concurrent findings of fact recorded by the Courts below. 2. The appeal was admitted on the following substantial question of law:- “2. Whether the findings of the learned Courts below in holding that the property is not ancestral of the deceased and the admission of the defendant and deceased Budhu that the property in dispute is ancestral, is contrary to the revenue record?” 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 3. Sh. Budhu expired on 5.12.1991. On the basis of the Will dated 10.5.1978 executed by him, defendants No.1 to 5 got the land owned by Sh. Budhu mutated in their names vide mutation entry No. 219 dated 25.5.1992. Admittedly plaintiff is son of Sh. Budhu and he was deprived of his right of succession by virtue of the said Will. Consequently aggrieved of the same he filed a suit for declaration and possession. The suit was resisted by the defendants, including contesting defendants, inter alia on the ground that during his life time Sh. Budhu had given 14 bighas and 14 biswas of land to the plaintiff in another village and since then plaintiff is settled there. He has no concern whatsoever with the land in question which is 4 bighas 6 biswas situated in Mauja Indeswar, Pargana Manjeer, Tehsil Saloon, Distt. Chamba. 4. Based on the pleadings of the parties, the trial Court framed the following issues: 1. Whether the mutation No. 219 dated 25.5.1992 attested in favour of defendants No. 1 to 5 on the basis of will dated 10.5.1978 is wrong, illegal, null and void, and not binding upon the rights of plaintiff as alleged? ….OPP 2. Whether the suit land/property is ancestral and joint Hindu family property and if so its effect? ...OPP 3. Whether the plaintiff is estopped from filing the suit on account of his act and conduct as alleged? …….OPD 4. Whether the suit of the plaintiff is bad for non- joining the total property of deceased Shri Budhu in the present suit, as alleged? …OPD 5. Whether the plaintiff is not entitled to get 1/7th share in the suit land as alleged? …….OPD 3 6. Relief. 5. Plaintiff’s suit was dismissed in terms of judgment and decree dated 26.8.1998 passed by Sub Judge Ist Class, Chamba. Plaintiff’s appeal also stands dismissed in terms of judgment and decree dated 14.7.1999 passed by District Judge, Chamba. The lower Appellate Court upheld the findings of fact recorded by the Court below. 6. From the record it could not be shown how the land in question was ancestral. My attention has been invited to the statement (Ext.P-2) allegedly made by Sh. Budhu during the settlement proceedings. No doubt this statement indicates that the land is ancestral but however there is nothing on record to prove that this statement was actually made by Sh. Budhu. The statement in question in fact stands contradicted by other contemporaneous revenue record reflective of the fact that land in question was actually purchased by Sh. Budhu during his life time who was shown in exclusive possession and owner thereof. Further the statement of Sh. Chand (DW-1) also cannot be used to support the plaintiff’s contention. In fact plaintiff was to stand on his own legs and while deposing in Court he also admits that the suit land was self acquired property of late Sh. Budhu. 7. There is no dispute about the genuineness of the Will executed by Sh. Budhu in favour of the contesting defendants. The appeal was also not admitted on that ground. 4 8. The lower Appellate Court affirmed the findings of the trial Court by holding that :- “14. With respect to the ancestral nature of the suit land, the plaintiff-appellant has heavily relied upon Ex.P-1 where Budhu is shown to be one of the owners in possession of some land. The plaintiff has also relied upon Ex.P-2, copy of register tankih. From both these documents, it cannot be said as to whether these relate to the suit land, the description of which finds place in Ex.P-3 i.e. copy of jamabandi form the years 1988-89. Since, there is no documentary evidence to suggest that Budhu deceased succeeded to the suit land from his father, the oral evidence adduced by the parties shall have to be taken into consideration to find out the nature of the suit land. 15. Plaintiff Kalu Ram has admitted in his cross- examination that the suit land was purchased by Budhu deceased but, thereafter he qualified his statement by saying that he could not understand the question. The plaintiff examined PW-2 Jitu who was brother of Budhu deceased. Jitu has stated that Budhu deceased had broken the suit land suggesting that for the first time the suit land was acquired by Budhu and therefore, the possibility of the suit land being ancestral gets automatically negatived. Similarly, PW- 3 Shri Dittu could not say whether suit land was obtained by Budhu in Nautor. Though, DW-1 defendant Chand has stated that the land at Bharog is ancestral, but he has qualified his statement by saying that some of the land was acquired by Budhu deceased. 16. If the oral evidence is taken into consideration, it cannot be said with certainty that the suit land had 5 come to Budhu deceased from his father. Since the plaintiff has alleged the suit land to be ancestral land, he was required to prove by adducing cogent and convincing evidence suggesting that the suit land was once held by his grand-father and thereafter it was inherited by Budhu. In the absence of this evidence, the suit land cannot be termed as ancestral land.” 9. From the record it could not be shown as to how the same are perverse or illegal. In fact no substantial question of law arises for consideration in the present appeal. 10. The present appeal without any merit is dismissed. November 02, 2010. (Sanjay Karol) (rana) Judge.