Abandonment of property requires clear and unequivocal evidence of intentional relinquishment of ownership, and mere non-user or absence from the land for a long time does not constitute abandonment.

Tek Chand, J.

1. In order to understand the facts of this case, the following pedigree-table will be helpful:

NAULA

____________________________________|_________________________________________

| | |

Jisukh Khushala Nopa

| | |

_____|_______ Sobha Rura

| | | _________________________

Mohan Pema Purna | | |

|___________ ______________| Jeon Godha Sedhu

| | | | | d. s. p. |

Ramdhran Lalu Sedhla Sheola Onkar= Shankar

| | | |

Sheokaran Mohabata Ludhia= Mst.Darkali |

(defendant No.2) (plaintiff) Mst.Dhakli (widow) |

(widow) (remarried) |

__________________________|

| | |

Isher Kannaya Bakhtawar

(defendants No.1.)

2 Mohabata plaintiff-respondent had instituted a suit for joint possession of agricultural land against Isher, Kanhaya and Bakhtawar sons of Shankar, who were collectively designated as defendants No. 1. The plaintiff alleged that he was a co-owner in equal share in the several parcels of suit-land along with defendants No. 1. The plaintiff alleged that 40 years before the last settlement of 1962 Bk. the ancestors of the plaintiff had entrusted their share of the land in village Antari to the ancestors of defendants No. 1 on the condition that on their return to the village they would take back its possession. They left for village Manota which is said to be at a distance of 8 or 10 miles from village Antari.

3. Defendants No. 1 denied the above allegations of the plaintiff. Sheokaran, who represented the third branch, was impleaded as defendant No. 2. As will appear from the pedigreetable, Naula, the common ancestor had three sons who are represented by Mohabata plaintiff, and Mst. Dhakli; Isher etc. defendants No. 1, and Sheokaran defendant No. 2. According to the plaintiff who has one-sixth share in the entire suit-land, Mst. Dhakli, widow of Ludhia, entered into a Karewa form of marriage and thereby she forfeited her life-interest in one-sixth portion of her first husbands estate which reverted to Mohabata plaintiff whose share thus becomes one-third in the entire land. The plaintiff also contended that Sheo Karans ancestors, had abandoned their right in one-third of the suit-land and therefore the plaintiff became entitled to one-half of his share, and the other half belonged to defendants No. 1. According to this calculation the plaintiff has claimed joint possession of one-half of the suit-land from defendants No. 1.

4. Sheokaran defendant No. 2 had filed a written-statement denying the plaintiffs contention but has not taken any further interest in the litigation. The pleadings gave rise to the following issues:

1. Whether the pedigree given in para 1 of the plaint is correct.

2. Whether the plaintiff has got one-half share in the land in suit.

3. Whether the ancestors of the plaintiff entrusted the land in suit to the ancestors of defendants No. 1, 40 years back before the settlement of 1962, on this condition that they could get it back on their return.

4. Whether the plaintiff has abandoned his rights in the land.

5. Whether the gift and the mortgage in dispute are valid.

6. Whether Sheokaran is owner of one-third of the land in suit and what is its effect?

5. The first issue was not pressed before the trial Court and was, therefore, decided in plaintiffs favour. It also held that the ancestors of the plaintiff had abandoned their rights in the land, having absented themselves from the village from more than 40 years, and the possession of defendants No. 1 had, therefore, become adverse. Issues Nos. 2, 3 and 4 were decided against the plaintiff and in favour of the defendants No. 1. Issues Nos. 5 and 6 were not disposed of, being redundant. On the above findings, the trial Court dismissed the plaintiffs suit with costs. The plaintiff Mohabata went up in appeal which was allowed and his claim was decreed with costs.

6. This appeal has been preferred by defendants No. 1. This case hinges upon issue