Case: Kura &amp; Another Vs. Jag Ram &amp; Others

plaintiff reinforces his contention regarding the descent of the 2/3 share by pointing out that Amar Singh is shown to have had a share, so the plaintiff could only have obtained 1/6 in the whole Patti (that is 1/4 of 2/3) if the entire 2/3 had come from Sahib Rai. The shares later found in the other two branches confirm this because Amar Singhs 1/6 share went to the other two branches to the exclusion of the plaintiffs and thus augmented their shares by 1/12 each and thus increased their shares form 1/6 to 1/4 which is exactly the state of things disclosed in 1904-06.16. The defendant contests this and says there is a big assumption at each step. In the first place, no one knows the extent of Sahib Rais share and simply because the family as a whole is found to have possessed a 2/3 share in 1904-06 it does not follow that that was the extent of Sahib Rais share a hundred years earlier and that there were no subsequent acquisitions. Secondly, the mere fact that a family is found to have 533 bighas 15 biswas in 1904-06 is no guarantee that their remote ancestor had exactly the same lands a hundred years earlier and that none of it is a later acquisition.17. The defendant reinforces his arguments by showing from these documents that the property has not descended as it would have had it been ancestral property coming down from Sahib Rai. It is true the plaintiffs father had 1/6 which would have been his share if Amar Singhs died branch was still in existence but as Amar Singh without issue the plaintiffs father should have obtained a 1/3 in Amar Singhs 1/6. Instead of that the plaintiffs branch got nothing and Amar Singh 1/6 was divided up half and half between the other two branches bringing their shares up to 1/4 each (that is 1/6 plus 1/12).18. Next the defendant draws attention to the disparity in the extent of their holdings. The family as a whole had 533 bighas 15 biswas. If the whole of this came down room Sahib Rai the plaintiffs 1/4 share in it would have been 133 bighas 9 biswas. That is to say, the plaintiffs father has 11 bighas 12 biswas less than he should.19. The other two branches should each have 3/8 of the 533 bighas 15 biwas (that is, 1/4 of their own plus 1/8 from Amar Singh). This comes to 200 bighas 4 biswas. Instead, they are found to have 201 bighas 4 biswas and 210 bighas 14 biswas respectively.20. Now it is true that if we accept the premises on which the plaintiffs arguments are founded, namely that Sahib Rai had a 2/3 share in the Dhariwal Patti and that the lands now in the possession of the family appertained to that 2/3 share and were held by Sahib Rai, then the disparity which now appears could be explained on the basis of inequality in the quality of the land and so forth because the differences are not glaring once it is accepted that. Amar Singhs share was by mutual consent divided up among the other two branches of the family. But we agree with the High Court that there is no justification for such assumptions.21. In the first place, there were eight families in this village. If Sahib Rai was given a 2/3 share in half the village, that is 1/3 in the whole, his share would appear to be disproportionate. Of course that could have been the case. He could have been given such a disproportionately large share for a number of reasons but we are not justified in assuming that that did in fact occur.22. In the next place, the Kafait Dehi (Ex. PB) states that"Under the aforementioned circumstances the pattidari form of the village is imperfect."Then a note adds-"But in the scheme of collecting Bachh the form of the village has been held to be one of Bhaia Chara and the share of tenure as entered in the pedigree table represents now only the shares in shamlat".We were told in argument that Bhaia Chara means that the village is not held in shares but that each person is considered to be the owner of whatever land he happens to have in his possession. The note shows that the shares shown in Ex. PC only relate to the portion held jointly and have no relation to the other lands exclusively occupied by them.In the circumstances we cannot assume that the lands now found in the familys possession were the very lands held by Sahib Rai by simply correlating them to the shares shown against each branch in the shamlat lands, and as the extent of the lands is in fact unequal when correlated to these shares no presumption in favour of its ancestral character can be drawn. It is impossible to conclude with any reasonable degree of certainty that there was no change in the course of a hundred years and that portions of the land shown to have been in the plaintiffs possession in 1904-06 were not subsequent acquisitions made by Harnama himself. The documents Exs. PC and PM do not, in our opinion, carry the case any further one way or the other.23. The burden of proof is on the plaintiff and their Lordships of the Privy Council have twice held that in the Punjab"to establish the ancestral character of land it is not sufficient to show that the name of the common ancestor from whom the parties are descended was mentioned in the revenue pedigree. It should also be proved that descendants of the common ancestor held the land in ancestral shares and that the land occupied, at the time of the dispute, by the proprietors thereof had devolved upon them by inheritance." --- Mt. Subani v. Nawab, AIR 1941 PC 21 at p. 23 (A); --- Imam Din v. Said Bibi, AIR 1949 PC 87 at p. 89 (B).

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. Now it is true that if we accept the premises on which the plaintiffs arguments are founded, namely that Sahib Rai had a 2/3 share in the Dhariwal Patti and that the lands now in the possession of the family appertained to that 2/3 share and were held by Sahib Rai, then the disparity which now appears could be explained on the basis of inequality in the quality of the land and so forth because the differences are not glaring once it is accepted that. Amar Singhs share was by mutual consent divided up among the other two branches of the family. But we agree with the High Court that there is no justification for such assumptions.21. In the first place, there were eight families in this village. If Sahib Rai was given a 2/3 share in half the village, that is 1/3 in the whole, his share would appear to be disproportionate. Of course that could have been the case. He could have been given such a disproportionately large share for a number of reasons but we are not justified in assuming that that did in fact occur.22. In the next place, the Kafait Dehi (Ex. PB) statesthe aforementioned circumstances the pattidari form of the village isBut in the scheme of collecting Bachh the form of the village has been held to be one of Bhaia Chara and the share of tenure as entered in the pedigree table represents now only the shares inwere told in argument that Bhaia Chara means that the village is not held in shares but that each person is considered to be the owner of whatever land he happens to have in his possession. The note shows that the shares shown in Ex. PC only relate to the portion held jointly and have no relation to the other lands exclusively occupied by them.In the circumstances we cannot assume that the lands now found in the familys possession were the very lands held by Sahib Rai by simply correlating them to the shares shown against each branch in the shamlat lands, and as the extent of the lands is in fact unequal when correlated to these shares no presumption in favour of its ancestral character can be drawn. It is impossible to conclude with any reasonable degree of certainty that there was no change in the course of a hundred years and that portions of the land shown to have been in the plaintiffs possession inwere not subsequent acquisitions made by Harnama himself. The documents Exs. PC and PM do not, in our opinion, carry the case any further one way or the other.23. The burden of proof is on the plaintiff and their Lordships of the Privy Council have twice held that in theestablish the ancestral character of land it is not sufficient to show that the name of the common ancestor from whom the parties are descended was mentioned in the revenue pedigree. It should also be proved that descendants of the common ancestor held the land in ancestral shares and that the land occupied, at the time of the dispute, by the proprietors thereof had devolved upon them by inheritance.Subani v. Nawab, AIR 1941 PC 21   at p. 23Din v. Said Bibi, AIR 1949 PC 87   at p. 89