Siri Chand and Another vs Kamla and Others

Pradeep Nandraiog, J.—Heard learned Counsel for the parties.

The impugned judgment and decree dated 3.4.1981 has proceeded on the basis that the suit property bearing No. 3636, Gali No. 14, Regar Pura, Karol Bagh, Delhi has devolved upon the parties through Lakhi and hence was an ancestral property.

It is not in dispute between the parties that the property was owned by the Governor General in Council and ad-measured 50 square yards which plot was comprised in Khasra No. 1926, Block L, Basti Regar Pura and the first lease was executed by the Deputy Commissioner of Delhi acting on behalf of the Secretary of State for India in Council.

With reference to the evidence on record and in particular Ex.D4W-1/1 a finding has been returned that the property has devolved on the parties through Lakhi and hence is an ancestral property.

Learned Counsel for the respondent does not dispute that if the property under litigation has not devolved through Lakhi but has devolved through Gyasara, the property cannot be treated as ancestral.

Ex.D4W-3/2 is a certified copy of the register of mutations which records ownership under serial No. 4 and possessory rights under serial No. 5. The Government is shown as owner of the land. Name of the person in possession has been written as Gyasara son of Lakhi as a lessee.

The said document also records the death of Gyasara and the factum of succession. A pedigree table made in the said document records that one Lakhi had two sons Gyasara and Barda. Gyasara having died issueless and intestate, the succession stands recorded in favour of the two sons of Barda since Barda had pre-deceased Gyasara. The two sons of Barda in whose favour mutation entry stands recorded are Hanuman and Ruda.

It is thus obvious that Hanuman and Ruda acquired the lease hold rights of their uncle Gyasara who died intestate and issueless and thus in their hands the property cannot be treated as ancestral. The learned Trial Judge appears to have been misled by the pedigree table recorded in mutation entry aforenoted on death of Gyasara. Since the parentage of Gyasara and Barda has been recorded as sons of Lakhi, it has been treated as if the property has devolved from Lakhi.

Ex.D4W-1/1 is a certified copy of the perpetual lease deed dated 30.7.1963 executed by DDA in favour of Ruda. The same contains a recital that the subject property, erstwhile part of Khasra No. 1926, Block L, Basti Regar Pura, was demised under a lease dated 26.7.1915 by the Deputy Commissioner in favour of Gyasara and that on death of Gyasara the property devolved in favour of Ruda and Hanuman and in respect thereof a lease was executed on 15.11.1937.

Thus, Ex.D4W-1/1 also establishes that the Government of India created a lease hold right for the first time in favour of Gyasara son of Lakhi and not in the name of Lakhi. Thus, the devolution of interest commenced not under Lakhi but under Gyasara.

The appeal accordingly succeeds.

Impugned judgment and decree dated 3.4.1981 is set aside.

The suit filed by the respondent is dismissed.

No costs.