Judgement

RAGHUBAR DAYAL, J.: This appeal, by special leave, is by the defendants against the decree in a suit instituted by the respondent for recovery of possession over certain plots of land. The plaintiff-respondent alleged that the plots were owned and possessed by Kartar Singh who had adopted the respondent about two years before his death. The defendants, it is alleged, got mutation made over the land in suit collusively with the revenue officials and secured possession over them by successfully inducing the tenants to pay rent to them.

2. The defendants accepted the allegation that Karatar Singh owned and possessed the land in suit and further alleged:

"Kartar Singh deceased never adopted the plaintiff as his son; nor is this admitted that the plaintiff was the sister s son of Karatar Singh; nor yet was he ever taken in the lap in the presence of the Baradri; nor were any ceremonies of adoption performed; nor could the plaintiff according to the Riwaj-i-am of District Jullundur or Riwaj-i-am if Punjab State be adopted as son; and nor did Karatar Singh deceased ever treat him as his son."

On these pleadings the trial Court framed the following issues:

(i) Was the plaintiff validly adopted by Karatar Singh deceased and when?

(ii) Is the land in suit ancestral qua the plaintiff?

(iii) Relief?

The Senior Sub-Judge dismissed the suit holding that no adoption of the plaintiff had taken place and that even if it had taken place, it was opposed to the general as well as the custom of Jullundur District. He did not decide the second issue in view of his finding on the first issue.

3. On appeal, the District Judge held that the plaintiff had been adopted as a son and appointed as an heir by Kartar Singh. He did not consider it necessary to decide whether the adoption was valid, as the properties left by Karatar Singh were not alleged to be ancestral and consequently the defendants had no right to contest any alienation or any appointment of an heir to such property in view of the provisions of S. 7 of The Punjab Custom (Power to Contest) Act, 1920 (Punjab Act II of 1920), hereinafter called the Act, which reads:

"Notwithstanding anything to the contrary contained in S. 5, Punjab Laws Act, 1872, no person shall contest any alienation of non-ancestral immoveable property or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom."

He accordingly allowed the appeal and decreed the suit for possession.

4. The appellants then went in second appeal to the High Court of Punjab. The appeal was dismissed. It was observed in the judgments:

"The pleadings of the parties are so confused that it is impossible to find out that the defendants were either claiming that they were within five degrees of the common ancestor or that they were claiming that the land was ancestral, and in a case such as this where no specific plea has been taken as to the ancestral nature of the property it cannot be said that that issue arose on the pleadings."

It is against this order that this appeal has been preferred by the defendants.

5. The learned counsel for the appellants has submitted that the contention of the defendants in the written statement to the effect that the plaintiff could not be adopted as son according to the Riwaj-i-am of District Jullundur or Riwaj-i-am of Punjab State, should be taken to be a plea requisite to meet the requirements of S. 6 of the Act, and especially in view of the facts that the Court framed two issues about the validity of the adoption and about the land in suit being ancestral in the presence of the plaintiff s counsel and that the parties did lead evidence with respect to the custom and with respect to the land in suit being ancestral. He relies on the decision in Motabhoy Mulla Essabhoy v. Mulji Haridas, ILR 39 Bom 399.

6. Section 6 of the Act reads:

"Subject to the provisions contained in S. 4 and notwithstanding anything to the contrary contained in S. 5, Punjab Laws Act, 18