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

4. The plaintiffs case is that property in suit was his fathers ancestral property and that it was alienated without legal necessity. The Hindu law does not apply and under the customary law which applies in this case the plaintiff can only succeed if he can prove that the property was ancestral.5. The first court held that there was nothing to show that the property in suit was ancestral. It therefore dismissed the plaintiffs suit. In appeal the learned District Judge reversed the first courts finding regarding the nature of the property. He held it was ancestral and so he transposed Sawan as a plaintiff and gave both the brothers a decree for the entire property in suit.6. On second appeal the Union High Court at Patiala reversed the appellate courts decree and, agreeing with the first court regarding the nature of the property, dismissed the plaintiffs suit. As S. 100, Civil P. C. does not apply the High Court was entitled to go into the facts in second appeal. The learned Judges did not decide the question of legal necessity which was also raised nor did they decide whether the plaintiff was in existence at the time of the alienation in suit.

Court's reasoning:
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