Judgment

BOSE, J.: This is a suit brought by a son to set aside an alienation made by his father more than thirty-nine years before the suit. The alienation was on 5-9-1907 and the suit was filed on 26-11-1946.

2. The alienor is Harnama. He died leaving two sons Kura and Sawan. Kura is the plaintiff. Sawan was joined as a pro-forma defendant but was transposed as a plaintiff in the first appellate court and was given a decree there along with his brother Kura. This decree was set aside by the Union High Court at Patiala. The plaintiffs appeal.

3. Before we go further we may say at once that it was conceded that Sawan who was transposed as a plaintiff can in no event be given a decree. Any rights he had in this property are long time barred and they cannot revive simply because his brother, who was under a personal disability, was enabled to sue after the normal period of limitation had expired. The plaintiff Kura was on military service and as such obtained an extended period of limitation. That is not disputed. But the privileged is a personal one and his brother cannot take advantage of it. Therefore, the suit must fail against Sawan s half share in any event. In view of this, it will be convenient to refer to Kura as the plaintiff and ignore Sawan s transposition.

4. The plaintiffs case is that property in suit was his father s 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 court s 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 court s decree and, agreeing with the first court regarding the nature of the property, dismissed the plaintiff s 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.

7. The only proof the plaintiff has produced to show that the property was ancestral is the following: First, there is a Kafat Delhi, Ex. PB, prepared at the Settlement of 1904-06. This document traces the history of the village from what it calls "ancient times" and carries us back well beyond 1803-04. But at the date the document was drawn up, namely some time in the year 1904-06 all the members of the plaintiffs branch of the family, except the plaintiff himself, were dead.

8. The village in which the plaint lands are situate is now known as Kukar Majra. In the "ancient times spoken of in this document, another village known as Balaspur existed near the site of the present village. But Balaspur became uninhabited and the area around it fell waste. Some time after two families settled on this land and reclaimed it. One of these families (called family No. 2 in the document) was the plaintiffs. It was then headed by Sahib Rai who is shown in the family tree set out in Ex.-PC which is also one of the settlement papers of those years (1904-06).The other family called family No. 1 was headed by one Dianat Rai with whom we are not concerned. Not long after, they were joined by families 3 to 7 and later an 8th family also came on the scene.

9. Some time previous to 1803-04 these families divided the village they had thus founded into two Pattis, Dhariwal and Ujjala. According to Ex. PB the division was half and half. The plaintiffs family obtained a share in Dhariwal but what the extent of that share was when the village was di