S.S Ahmed, Member:— This is plaintiff's second appeal arising out of the order of Addl. Commissioner, Allahabad dated February 3, 1971, dismissing the appeal filed by Ram Kishore and others against the judgment and decree dated February 21, 1970 passed by J.O, Handia in a case under Section 229-B of Act I of 1951.
2. Ram Kishore, Nand Kishore, Mst. Chameli Devi filed this suit for a declaration to the effect that they were co-sirdars along with defendants 1 and 2. They claimed descendant from a common ancestor and set up the following pedigree which has not been denied:—
3. According to the plaintiffs the land in suit was acquired at the time when Ram Kripal, Shrisht Narain, Ram Kishore and Nand Kishore were mem bers of a joint Hindu family and Ram Kripal was the Karta of the family, that Ram Kripal's name was entered in representative capacity, that on Novem ber 13, 1954 the Panches had apportioned the respective shares of the plaintiffs and defendants and that since the Panches' award was not being implemented this suit for declaration had been filed. The defendants contested the suit on the ground that the plaintiffs had no share in the land, that plots Nos. 2003 and 2009 were acquired by the defendants in 1359 F., that plot No. 759/29 was, Ahadi land over which defendant No. 1 alone was in possession, that plots Nos. 694, 955 and 956 were given to the defendants by Raja Manda, that their father Ram Kripal separated from his brothers about 50 years ago and that the decision of the Panches was not binding on the defendants.
4. The suit was dismissed by the trial court. The plaintiffs went up in second appeal before the Addl. Commissioner who disraissed it and they have now come up in second appeal before the Board.
5. I have carefully considered the arguments of the learned counsel for the parties and have also gone through the record of this case.
6. It would appear that the main point to be decided in this case is whether the land in suit was acquired by Ram Kripal, father of the defendants in a representative capacity being the Karta of the joint Hindu family or it was accuired by him in his individual and personal capacity. It is true that this is a Question of fact and it is also true that it has been held by the Board in 1964 R.D page 151 that a finding of fact based on the appreciation of evidence on record cannot be re-agitated in second appeal, yet in view of the fact that there has been inadequate appreciation of the evidence by the lower courts and that some additional evidence was adduced at the stage of second appeal which was admitted in view of the findings of the Supreme Court given at p. 1526 A.I.R (S.C) 1963, it has become necessary to look into this point of fact also. According to the plaintiffs the disruption of joint Hindu family took place about 20 years back, The defendants, however, maintained that this disruption was about 50 years old. The defendants' version, is believed by their own witness Jhallar who has corroborated plaintiffs' version that the separation between brothers of defendants' father took place about 20 years back. This would fix the time of separation round about 1357F or 1949-50 A.D
7. The next point to be seen is the entry in revenue records. According to the defendants plots Nos-. 2003 and 2009 were acquired by them in 1359 F. In support of their claim they have filed the extract of Khatauni of 1367F in which the names of defendants 1 and 2 are recorded and the duration is 24 25 years. The learned Addl. Commissioner rightly came to the conclusion from this fact that the tenancy had originated in 1332 or 1333 F. He observed, “It was the duty of the plaintiffs to have filed the extract of Khatauni of 1333/1334 F to show that the land was not recorded in the name of the defendants, but was re corded in the name of the father of the defendants and then alone case would proceed further”. In the additional evi dence produced before this court, ex tracts of Khatauni for 1333 and 1334 Fasli have been filed. According to these extracts plots Nos. 2003, 2004, 2006, 2007, 2008, 2009 are shown in 1333F In the name of Ram Kripal with one year's duration and plots Nos. 955 and 956 are shown in the name of Ram Kripal in 1334F with the same duration This coupled with the oral evidence referred to above clearly shows that the defen dants' plea is incorrect, that the ten ancy originated in 1332F when the land was recorded in the name of Ram Kri pal, father of the defendants.
8. The pedigree reproduced in para 2 above is admitted by both the parties. Now, if the land was acquired by Ram Kripal when the family was still joint the natural presumption would be that he acquired this land in a representa tive capacity as Karta of the family.
9. This view finds support from some facts which have strong circum stantial ??? It has been shown above that the separation between the brothers took place some time around 1950. Shortly thereafter litigation started between the plaintiffs and the defendants and this culminated in a compromise which was incorporated in the form of a Panchayatnama which was written on November 13, 1954. However, this compromise deed did not end the dispute between the parties and defendants 1 & 2 filed a suit in the court of Munsif seeking an injunction order restraining them from disturbing their possession over the disputed land. In this suit an issue was framed about the co-tenancy rights of the plaintiffs and was sent to the Revenue Court for decision. J.O, Karchna before whom this case came up held that the defendants (plaintiffs in the instant care) were co-Sirdars and on the basis of this finding the suit of the defendants 1 and 2 for injunction was dismissed on March 1, 1958. There was further litigation between the parties but it is not necessary to go into its details because this history of litigation, the compromise, and further litigation provide strong circumstantial evidence of the fact that the plaintiffs claimed that the plots in suit had been acquired by Ram Kripal in a representative capacity and, therefore, they tried to find redress through whatever forum they could. In the absence of this history it might have been possible to maintain that the plaintiffs had absolutely nothing to do with the disputed land, but in the light of the happenings from 1950 onwards there is little scope for doubt about the validity or genuineness of their claim.
10. After considering this point of fact we may pass on to its legal aspects. The learned counsels for appellants have relied on several rulings in support of their case. They have referred to A.I.R 1961 S.C 1268. A.I.R 1966 S.C 405 and (1973) 2 SCC 334 : A.I.R 1972 S.C 2531. In all of them it has been held that there is a presumption of jointness in favour of the joint Hindu family as also about the acquisitions by the joint Hindu family which can only be ignored if there is strong proof in ??? it has been held that the ordinary rule of Hindu Law is that any property acquired in the name of an individual member of a joint Hindu family is presumed to be joint. The learned counsel for respondents has relied heavily on the Board's ruling reported in 1970 R.D 198 in which it has been held that onus of proving that the land acquired by common ancestor lies heavily on the party pleading representative capacity. The facts of this ruling are quite distinguishable from the facts of this case and I do not think that it is quite analogous to the instant case in many respects.
11. In view of foregoing discussions I find that plots Nos. 2003, 2004, 2006, 2007, 2008, 2009, 955 and 956 were acquired by Earn Kripal in his representative capacity as Karta of the joint Hindu family and that the suit should have been decreed in respect of these plots alone.
12. In the result I allow this appeal in respect of the aforementioned 8 plots only and the judgments and decreed of both the lower courts are set aside to this extent. In the circumstances of the case no orders are passed as to costs.
13. C.C.O No. 1353 for R.D