Case: Sewa Singh &amp; Ors Vs. Jangir Singh &amp; Ors

the non - ancestral property of the adoptive father on the ground that his adoption was tantamount to a gift or bequest". The Full Bench answered both these questions in the affirmative. In other words it held that the expression "kinsman" referred in the Customary Law had reference to and meant agnatic relation and that a distant relation like that of the adopters mothers fathers brother could not be included within it. It further held that even if the adoption was invalid, the adopted son could succeed to self-acquired property of the adopter on the basis that the adoption in these parts in tantamount to a gift or a bequest. In the result the appeal was allowed and the plaintiffs suit was decreed as laid. The case was however certified to be a fit one for appeal to this court under Art. 133 (a) of the Constitution of India. This appeal is now before us in view of that certificate. 4. In our judgment the appeal can be disposed of on the short ground that there was no. justification whatsoever for setting aside the concurrent finding of the first two courts on the question of the character of the land in dispute, and there is thus no. necessity to resolve the legal question raised, as in that view of the case the plaintiffs suit is admittedly bound to fail. It appears from the entries in the pedigree table prepared at the settlement of 1907-09 that Gainda, the common ancestor of Bishan Singh and of the defendants, had seven sons and Bishan Singh and the defendants represent the line of these sons, Bishan Singh having descended from Samonda, while the defendants being the descendants of the other brothers of Samonda. Bishan Singh at the time of the regular settlement held 122 bighas 16 biswas of land which was described as being 1/7the share of the total family holding. The shares of the descendants of the other sons of Gainda Singh were also described in similar terms. Some of them held one-half of 1/7th, others held one third of 1/7th and so on. This subdivison was in accordance with the number of the descendants of each one of the seven sons. An explanatory note is appended to this pedigree and it is in these terms : "This Patti Gainda is known after the name of the ancestor of the proprietors and they are in its possession and pay land revenue. However, for division of Shamlat deh Rs. 8/2/6 in all according to the ancestral shares is entered in column.........." From these entries which carry a presumption of truth it is clear that the whole of the land which was once owned by the common ancestor was at the time of the regular settlement in possession of his descendants according to ancestral share and the shamlat deh which is also in suit was also divisible according to ancestral shares. It has not been suggested that any to the descendants of Gainda Singh acquired any land in this Patti by purchase of introduced strangers in it by selling any portion of their ancestral holding. That being so, the learned District Judge was justified in drawing the inference from the circumstance of equality of holdings and the reference to these in terms of ancestral shares, that the land in suit had develved on Bishan Singh by descent from Gainda, and there were no. valid grounds for referring that decision. The circumstances established in the case are compatible only with the theory that this land came to his sons from Gainda and these circumstances cannot be explained on any other reasonable hypothesis. 5. The High Court for its conclusion placed reliance on the "Kafiat Dehi" (village history) as given in the settlement record, this is what is stated therein : "Originally Tooni Rajputs, and our ancestors, that is, the ancestors of the proprietors Jat Dhande were in possession of the estate of this village in equal shares. In the times of Muslim Rulers the land revenue fell in arrear against Tooni Rajputs who absconded out of fear of harassment and violence at the hands of the then ruler. The common ancestor of Jats Dhande on payment of the arrears of land revenue acquired possession of the whole village and called the following families also and distributed them land as owners ................... Since the village had passed into the ownership of a sole owner, the families who migrated afterwards got land according to their means. In 1831-32 A. D. some area of this village was set apart and a separate village named Sangatpura came into being, whereby the remaining scale of holding (Raha Saha Paimana Haqiyat) was also disturbed. It has been decided that the enhancement or reduction will depend upon the possession. That is to say, at present the revenue of Rs. 7-15-9 is paid on the land of ten dirams. As a matter of fact previously the sale was Rs. 8/2/6; ......... for the division of the Shamlat deh the original scale of Rs. 8/2/6 was entered in the pedigree table. The following six Pattis are named after the names of the ancestors; Sangu, Piru, Jalla, Malla, Hari Chand and Gainda." There is nothing in this document from which an inference could be drawn that there was any disturbance in the scale of holding in Patti Gainda. On the other hand the "Paimana Haqiyat" (measure of right) as given in the records clearly indicates that the Patti is being held by the descendants of Gainda according to ancestral shares. In these circumstances there was no. reason for doubting the ancestral character of the land in dispute in this case. We are further of the opinion that this was not a fit case in which a concurrent finding of the first two courts should have been set aside on further appeal even if the finding was not binding under the law then prevailing in PEPSU and the High Court could re-examine the finding in second appeal.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]4. In our judgment the appeal can be disposed of on the short ground that there was no. justification whatsoever for setting aside the concurrent finding of the first two courts on the question of the character of the land in dispute, and there is thus no. necessity to resolve the legal question raised, as in that view of the case the plaintiffs suit is admittedly bound to fail. It appears from the entries in the pedigree table prepared at the settlement of9 that Gainda, the common ancestor of Bishan Singh and of the defendants, had seven sons and Bishan Singh and the defendants represent the line of these sons, Bishan Singh having descended from Samonda, while the defendants being the descendants of the other brothers of SamondaBishan Singh at the time of the regular settlement held 122 bighas 16 biswas of land which was described as being 1/7the share of the total family holding. The shares of the descendants of the other sons of Gainda Singh were also described in similar terms. Some of them heldf of 1/7th, others held one third of 1/7th and so on. This subdivison was in accordance with the number of the descendants of each one of the seven sons. An explanatory note is appended to this pedigree and it is in these terms :"This Patti Gainda is known after the name of the ancestor of the proprietors and they are in its possession and pay land revenue. However, for division of Shamlat deh Rs. 8/2/6 in all according to the ancestral shares is entered in column.........."From these entries which carry a presumption of truth it is clear that the whole of the land which was once owned by the common ancestor was at the time of the regular settlement in possession of his descendants according to ancestral share and the shamlat deh which is also in suit was also divisible according to ancestral sharesIt has not been suggested that any to the descendants of Gainda Singh acquired any land in this Patti by purchase of introduced strangers in it by selling any portion of their ancestral holding. That being so, the learned District Judge was justified in drawing the inference from the circumstance of equality of holdings and the reference to these in terms of ancestral shares, that the land in suit had develved on Bishan Singh by descent from Gainda, and there were no. valid grounds for referring that decisionThe circumstances established in the case are compatible only with the theory that this land came to his sons from Gainda and these circumstances cannot be explained on any other reasonable hypothesisThere is nothing in this document from which an inference could be drawn that there was any disturbance in the scale of holding in Patti Gainda. On the other hand the "Paimana Haqiyat" (measure of right) as given in the records clearly indicates that the Patti is being held by the descendants of Gainda according to ancestral shares. In these circumstances there was no. reason for doubting the ancestral character of the land in dispute in this caseWe are further of the opinion that this was not a fit case in which a concurrent finding of the first two courts should have been set aside on further appeal even if the finding was not binding under the law then prevailing in PEPSU and the High Court coulde the finding in second appeal.