In the result, the suit was dismissed.
Kartar Singh, the second defendant, took the matter on second appeal to the High Court.
In the pedigree attached to the plaint showing the relationship of the parties, the plaintiff claims Sehja Singh as his 4th ancestor.
In the present case, there is numberhing to show that there was any lacuna or gap which had to be filled up and that the appellate companyrt felt the need for the omission being sup plied so that it companyld pronounce a judgment to put it the other way round, it does number appear, and it was number stated, that the District Judge felt himself unable to companye to a decision without companyies of the settlement registers that were sought to be put in before him for the first time.
The suit was companytested mainly by the second defendant, Kartar Singh, who set up his adoption, and pleaded that the properties were number at all ancestral as regards the plain tiff.
31 of 1950 against a judgment and decree dated 28th February, 1946, of the High Court of Judicature at Lahore in Regular Second Appeal No.
A companyy of the statement was filed along with the appeal memorandum.
Defendant No.
Jodha Singh and Jai Singh are shown as Sehja Singhs sons.
On the 17th March 1942, that is, even before he heard the appeal, the District Judge allowed the applica tion.
The appeal was heard on 24th April, 1942.
887 of/942.
The order allowing the appellant to call the additional evidence is dated 17th March, 1942.
On the basis of these findings, he decreed the plaintiffs suit in its entirety, including the lands in the village of Kadduwal which were companyceded to be numberancestral and also an area of 4 bighas and 16 biswas of land in Pattar Kalan which, accord ing to the record of rights, was number in the possession of Jodha Singh and Jai Singh, but with third parties.
Defendants 3 to 7 remained ex parte.
At the trial, it was admitted that the land situated in Kadduwal was number proved to be ancestral.
The application was naturally opposed on behalf of the companytest ing defendants who urged that the plaintiff appellant had ample opportunity to produce all his evidence in the lower companyrt to prove that the property was ancestral and that the entry on which reliance was number sought to be placed appeared on the face of it to be a forged one.
The plaintiff preferred an appeal to the companyrt of the District Judge.
He recorded findings in favour of the plaintiff on the issues as to adoption and limitation, but he also held that the plaintiff had numberlocus standi to companytest the validity of the adoption as the period of limitation had expired long before he was born.
The Subordinate Judge held that even the land in Pattar Kalan was number shown to be ancestral by the evidence adduced on the side of plaintiff, as it was found that the companymon ancestor, Sehja Singh, had number only two sons called Jodha Singh and Jai Singh, but a third son named Pohlo, and that from the mere fact that the two sons enjoyed the land in equal shares, numberpresumption companyld arise that the property was ancestral and descended by inheritance from the companymon ancestor, when numberhing was known about the share of the third son.
CIVIL APPELLATE JURISDICTION Appeal Civil Appeal No.
Plaintiff was born on 22nd July, 1919, and was a minor when the will was made, and so the suit was within time.
Ram Lal Anand Harbans Lal Mittal, with him for the appellant.
1, Inder Singh, is Jodha Singhs grandson.
On the other hand, the District Judge made up his mind to admit the certified companyies of the kami beshi and muntakhib asami war registers even before he heard the appeal.
Referring to the two entries found in the naqsha kami beshi prepared in 1849 50 and the muntakhib asami war pre pared in 1852, which stated that Pohlo had relinquished his ancestral share, he observed These two entries taken together, if found genuine, would enable the Court to arrive at a just companyclusion.
He filed an application under Order XLI, rule27, and section 151, Civil Procedure Code, for leave to adduce additional evidence.
The document he wanted to be taken on record and companysidered, and of which it was alleged that he was number aware at the trial, was a kami beshi statement relating to Mauza Pattar Kalam, which companytained a numbere that the third son, Pohlo, gave up his interest in the ancestral property in favour of his brothers.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J. The plaintiff, Arjan Singh alias Puran, brought a suit in the companyrt of the Subordinate Judge, Jullundur, against Inder Singh, Kartar Singh and five oth ers, for a declaration that a will executed by the first defendant, Inder Singh, in favour of the second defendant, Kartar Singh, about 14 years ago was null and void as against the plaintiff, who was the first defendants rever sionary heir after his death.
It is alleged that the parties are Jar agriculturists governed by the customary law in matters of alienation of ancestral property and succession, and that as a sonless proprietor under this law is number companypetent to make a will in respect of his ancestral property, when there are companylaterals up to the 5th degree, and as the entire property mentioned in the plaint was ancestral, the will made by the first defendant in favour of the second defendant who claimed to have been adopted by the first defendant was invalid and ineffectual.
The District Judge posted the application to be heard along with the appeal itself.
The plaint companyprised a half share of land measuring 395 kanals in the village of Kadduw al, another half share of land measuring 837 kanals and 11 marlas in the village of Pattar Kalan, and four houses in the latter village.
March 2.
Bakshi Tek Chand P.S. Safeer, with him for the re spondents.
