Judgment:
Kamlesh Sharma, J.
1. This appeal is directed against the decree and judgment dated 30-1-1989 passed by District Judge, Mandi, Kullu and Lauhal Spiti Districts at Mandi whereby the appeal of the appellants-defendants was rejected and the cross-objections of respondents-plaintiffs were accepted. The District Judge has affirmed the decree of the trial Court so far it pertains to the possession of the property in dispute and permanent injunction restraining the appellants-defendants from making any sort of alteration etc. in the property in dispute. The decree for recovery of Rs. 150/- being damages at the rate of Rs. 300/- per month from 11-10-1977 to 24-10-1977 was modified and the respondents-plaintiffs were held entitled to future mesne profits at the rate of Rs. 300/ - per month from 24-10-1977 onwards till the delivery of the possession of the property in dispute. The respondents-plaintiffs were ordered to make good the deficiency in court fee within a period of fortnight.
2. The property in dispute is a double storeyed building consisting of one room in the ground floor and two rooms and two covered Varandas in the upper floor standing on land comprised in Khasra No. 1449 measuring 0-3-0 Bighas situated in Phati Shamshi, Kothi Khokhan, Tehsil and District Kullu as per Jamabandi for the year 1963-64.
3. The parties are relations. They had common ancestor Sohnu, their grand-father. Sohnu had one son, namely, Dina Nath from his first wife and three sons, namely, Ram Rattan, Ram Dass and Durga Dass from his second wife. In the present litigation sons of two brothers Ram Rattan and Ram Dass are only parties. The respondents-plaintiffs are sons of elder brother Ram Rattan, appellants-defendants 1 to 5 are sons of younger brother Ram Dass and appellant-defendant No. 6 Smt. Mansha Devi is widow of Ram Dass.
4. The case set up by respondents-plaintiffs is that they are owners of the property in dispute and their uncle late Ram Dass, when he was posted at Bhuntar as teacher in a school, approached them to allow him and members of his family to use and occupy two main rooms and two covered varandas in the first storey of the property in dispute till he managed to get some other accomodation for his residence. Keeping in view the near relationship, the respondents-plaintiffs acceded to the request of late Shri Ram Dass and permitted him to occupy the upper storey of the property in dispute as a licensee but without payment of any licence fee on account of relationship. After some time Ram Dass again approached the respondents-plaintiffs to permit him to use and occupy a portion of ground floor of the property in dispute to which the respondents-plaintiffs again agreed to. Ram Dass died some time in the year 1971 and after his death, the appellants-defendants sought permission to use and occupy the property in dispute for some more time and at that time it was specifically pointed out to them that the respondents-plaintiffs themselves required the property in dispute and the licence of appellant-defendants could be revoked at any time. However, the appellants-defendants continued occupying the property in dispute as licensee till 20-9-1977, when with the ulterior motive they started effecting damages to the property in dispute and respondents-plaintiffs were compelled to revoke their licence and call upon them to vacate the premises, by serving upon them notice dated 1-10-1977. The appellants-defendants did not bother either to reply the notice or to deliver the vacant possession of the property in dispute, which gave cause of action to the respondent-plaintiffs to file the suit for delivery of possession of the premises in dispute, permanent injunction restraining the appellant-defendants from making any sort of alteration in the property in dispute as well as change of user thereof and also for damages at the rate of Rs. 300/- per month from 10-10-1977 when their licence was revoked to 24-10-1977 the date of filing the suit.
5. The appellant-defendants resisted the suit and took number of preliminary objections. On merits, their defence has been that their father Ram Dass and father of respondents-plaintiffs Ram Rattan, and Durga Dass were real brothers and were members of joint Hindu family. Ram Rattan being eldest, was the manager of joint Hindu family and he had acquired the property in dispute out of the funds of joint Hindu family and all the three brothers have been in joint possession of the property in dispute in their capacity as coparceners. According to the appellants-defendants, no partition has ever taken place by metes and bounds of the property in dispute and respondents-plaintiffs are not exclusive owners thereof as claimed by them.
6. The trial Court decreed the suit holding that the respondents-plaintiffs are exclusive owners of the property in dispute and the appellants-defendants have been in its occupation as licensees. The trial Court further held that the licence of appellants-defendants was revoked on 10-10-1977 by notice Ex. P-3 and they are liable to hand over vacant possession of the property in dispute as well as to pay damages at the rate of Rs. 300/- per month from 10-10-1977 to 24-10-1977. These findings have been affirmed by the District Judge in an appeal filed by the appellants-defendants, and the cross-objections filed by the respondents-plaintiffs claiming future damages till the date of payment have been allowed. Hence, the present regular second appeal.
7. This Court has heard the learned counsel for the parties and gone through the record. This Court by its order dated 19-5-1989 has admitted this appeal on substantial questions of law Nos. 1, 4, 6 and 7 filed by the appellants-defendants. These are :--
1. Whether the document exhibit D4 is coming from proper custody and is admissible in evidence under Section 90 of the Evidence Act.
4. Whether the Courts below have raised wrong presumptions against the defendants for not producing the descendants of Durga Das to prove the signatures of Durga Dass and his brothers on the document Exhibit D4 and whether the Courts below have failed to raise necessary presumptions against the plaintiffs for not producing their father Ram Rattan who was alive at the time of leading evidence and died only in. 1983.
6. Whether the proof of nucleus was necessary when the property is admitted to be joint of the parties.
7. Whether the findings of the Courts below are vitiated on account of ignoring the evidence of DW 2 and DW 3.
Shri Mittal, learned Senior Advocate, appearing for the appellants-defendants, has admitted that both the courts below have arrived at concurrent findings of fact that the respondents-plaintiffs are exclusive owners of the property in dispute and the predecessor-in-interest of appellants-defendants Ram Dass and after his death, they themselves were occupying the property in dispute as licensees till their licence was revoked on 10-10-1977, But the argument of Shri Mittal is that had both the courts below not misconstrued and misread document Ex. D-4, they would have come to a different conclusion that the property in dispute is joint family property as alleged by the appellants-defendants. Document Ex. D-4 is dated 4-6-1938 which was executed amongst the three brothers, namely, Ram Rattan, Ram Dass and Durga Dass, whereby a family arrangement was arrived at in respect of their loans as well as immovable and movable joint Hindu property. According to the appellants-defendants, in the family arrangement the property in dispute was kept joint amongst the brother at the suggestion of their sister Smt. Biasa Devi, because at that time two of the brothers Ram Dass and Durga Dass were not present in the house, therefore, it was considered proper to continue the then existing arrangement under which Ram Dass and their mother, who was residing with him, were occupying upper storey and Ram Rattan was in occupation of ground floor and kitchen of the property in dispute. It was further decided that when all the brothers will be present in the house and consider it proper, they will partition the property in dispute, but it will be kept in view that portion of the house will be given to their mother for her separate use and occupation and in addition till payment of loans, no party will have a right to alienate the house.
8. The appellants-defendants had produced the document Ex. D-4 on 9-6-1978 at the time of fifing their written statement and reply to application under Order 39, Rules 1 and 2, C.P.C. In their defence in the written statement and reply to the application under Order 39, Rules 1 and 2, C.P.C. they had specifically referred to the family arrangement made by this document but the respondent-plaintiffs in their replication/ rejoinder did not specifically deny it. Thereafter, when appellant-defendant Narender Kumar appeared as DW-1 he made reference to the family arrangement in his examination-in-chief and brought on record the document (Ex. D-4), which at that time was only marked as 'D' and not exhibited. Later on, when Smt. Biasa Devi appeared as DW-2, she also made a mention of the family arrangement in her statement in examination-in-chief and referred to the document Mark 'D'. When counsel for the appellants-defendants made prayer that this document may be exhibited, the counsel for the respondents-plaintiffs opposed it on the ground that it is not admissibe for want of registration as this being instrument of partition, is compulsorily registerable. In view of the objection, the statement of Smt. Biasa Devi was deferred and the case was adjourned to 5-9-1981 for arguments on the admissibility of document Mark 'D', After hearing the arguments, the tiral court on 5-9-1981 held the document Mark 'D' as an instrument of partition which is compulsorily registerable. Since the document was not registered, the trial court ordered that it could not be exhibited. Appellant-defendant Narender Kumar challenged the order dated 5-9-1981 by filing Civil Revision No. 95 of 1982 in the High Court, which was allowed. In the judgment dated 12-7-1985, the learned single Judge of this Court (T. R. Handa, J.) held that the document was only an agreement amongst the three brothers to keep the house joint for the time being and partition it at a later date with mutual consent. It was also held that :--
'.....Even if the document in question wasconsidered as a partition deed, after the duty chargeable thereon along with the penalty was paid, it could still be admissible in evidence for the purposes stated above. Whether the document can in fact be used as evidence of any collateral transaction not requiring registration or for any other purpose referred to above, is a point which would need determination at the appropriate stage and only after the document is admitted in evidence.'
The learned Judge concluded that :--
'For the foregoing reasons I accept this revision petition, quash the order of the trial court and direct that the petitioners-defendants be allowed to pay stamp duty chargeable on the document in question and also to pay the prescribed penalty. After such duty and penalty are paid the trial court shall comply with the provisions of Section 38(1) of the Indian Stamp Act. The petitioners shall then be allowed to prove this document and tender it as evidence of any relevant collateral transaction not required to be effected by a registered instrument.'
9. On receipt of the copy of the judgment dated 12th July, 1985 of the High Court, the trial court proceeded with the matter further and on 20th February, 1986 the document Mark 'D' was exhibited as D-4 after it was impounded and stamp duty of Rs. 5/- and penalty of Rs. 50/- was paid. It was tendered in evidence by Shri Thakur Dass, Advocate learned counsel for the appellants-defendants, who stated that since the document is more than 30 years of age and Smt. Biasa Devi, whose statement was being recorded, has since died, the evidence on behalf of appellants-defendants was closed. The counsel appearing for the respondents-plaintiffs had again raised objection to the exhibition of the document on the grounds of 'mode of proof, execution and nature of document'. It may be pointed out that during the pendency of the Civil Revision, the High Court had not granted stay of proceedings in the civil suit, therefore, in the meantime the statements of remaining witnesses of appellants-defendants stood recorded.
10. In respect of partition between the predecessors-in-interest of the parties by a written document, the trial Court has framed Issue No. 2 in the following terms :--
2. Whether there has been a partition between the predecessors-in-interest of the parties and a document had been executed to that effect? If so, its effect? OPD.
While returning finding on Issue No. 2, the trial court held that there are no specific pleadings in respect of partition between the predecessors of the parties, therefore, the Issue appears to have been framed by inadver-tance. However, referring to document Ex. D-4, the trial court has held that its contents have not been proved through any independent witness, therefore, there had been no partition between the predecessors-in-interest of the parties. In appeal one of the points framed by the District Judge was, 'Whether the finding of the Court below negativing the defendants claim of the suit premises being coparcenary property belonging to Joint Hindu Family is also legally borne but from the record?' During the course of discussion on this point, the District Judge referred to the observations of learned single Judge (T. R. Handa, J.) in his judgment dated 12th July, 1985 that by this document no immov-able property was partitioned and only an agreement between the parties was arrived at arid held the document as admissible. How-ever, according to the District Judge, the proprty referred to in this document, which was Kept joint amongst the three brothers, has not. been connected with the property in dispute with the help of Khasra number or description, as it is stated to be three storeyed house in this document, whereas the property in dispute is two storeyed. He has further held in para 30 of his judgment that the document has not been legally proved. He has rejected the submissions made on behalf of the appellants-defendants that the, document being 30 years old is presumed to be duly executed as provided under Section 90 of the Indian Evidence Act and held in Inder Lal v. Abdul Salam, AIR 1983 Rajasthan 57. The District Judge concluded that :--
'31. Closely perusing the peculiar facts and circumstances of this case, to my mind, no Such presumption can be raised in the facts and circumstances of the instant case.
32. Before any presumption under Section 90 can be drawn one fact must be satisfactorily proved and that is, the document in question has been produced from proper custody. The satisfaction of the court on this point is a judicial satisfaction and ought to be founded on the evidence on record. It is for the party who asks the court to draw the necessary presumptions under Section 90 to prove by satisfactory evidence that the document was produced from proper custody. The importance of proof of proper custody cannot be overlooked particularly in view of the wide scope of Section 90.
33. The factum of proper custody is not a matter for presumption but ought to be satisfactorily proved. It may be proved by one of the two ways i.e. either by adducing evidence alliunde to show that the document was produced from proper custody or by showing that the person who produced it was the repository of the documents in question. I am fortified by taking this view by the observations made in AIR 1962 Mysore page 532.
34. Another aspect which has to be considered is that the extent of presumption cannot be Stretched beyond what is mentioned in Section 90 itself. There is no such presumption which can be raised as to the correctness of the facts stated in the document, Defendants ought to have led evidence and ought to have established that whatever is stated in the document was also correct. In AIR 1981 Allahabad 3, it has been laid down that presumption under Section 90 relates to signature and handwriting and cannot be extended to correctness of contents of the documents. The document in question was not even mentioned in the written statement nor relied upon. Even signatures were not admitted by the plaintiffs.
35. Defendants have not shown as to whether the document has come from proper custody. Statement of DW 3 also nowhere clarifies as to the proper custody. There was no occasion for the document being in custody of DW 3. Most important fact is the connection between the document and the property in question. Document refers to a three storeyed house, whereas the house in question is double storeyed. Sh. Ram Rattan was not the owner of the property as on the date of execution of this document. The title had vested in the plaintiffs. As such, no help can be sought from this document to show that the property was joint Hindu Family property of the three brothers. There is no infirmity in the findings of the trial court, which are fully endorsed and it is held that the property in question is the exclusive property of the plaintiffs and it was not a Joint Hindu Family property. Point No. 4 is decided accordingly.'
11. There is no dispute that document Ex. D-4 was more than 30 years old and presumption may be drawn in respect of its execution and attestation as provided under Section 90 of the Indian Evidence Act. Section 90 of the Indian Evidence Act is :--
'90. Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purportsto be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.'
The scope and effect of Section 90 of the Indian Evidence Act is no longer in doubt as it has been incorporated in number of judicial decisions. The purpose of enacting Section 90 of the Indian Evidence Act is to do away with the strict rules of proof which are enforced in the case of private documents, by giving rise to a presumption of genuineness with regard to documents which are of thirty and more years of age. In fact, Section 90 of the Indian Evidence Act dispenses with proof of document as required under Sections 67 and 68 of the Indian Evidence Act. This section is designed to meet situations varying in character where passage of time might have obliterated the proof of genuineness of a disputed document by presuming that signature and other pan of the document which purports to be in handwriting of any particular person is in that person's handwriting, that the document was executed by a person for whom it purports to have been executed and that the document was attested by a person by whom it purports to have been attested. The Legislature has used the words 'may presume' in this Section, which have been defined under Section 4 of the Indian Evidence Act as follows :--
4. 'May Presume' -- Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
12. Whenever a document purporting or proved to be thirty years old is produced from a proper custody, the Court may either to dispense with proof of the execution of the document or call for further proof in favour of the document. The discretion is left to the Court to raise or not to raise presumption in respect of a document depending upon the circumstances of each case but this discretion must be exercised judicially and not arbitrarily. The exercise of discretion should not only be in consonance with law and justice but also with great caution because wrong exercise of the discretion under this provision is likely to strengthen the hands of forger. In many cases, it will be most dangerous to draw presumption that the document is genuine merely because it is thirty years old according to the recitals in the document and also is produced from proper custody. Whether a document is produced from proper custody or not is a matter of judicial satisfaction and it ought to be founded on the evidence on record. The factum of proper custody cannot itself be a subject matter of any presumption and it should be satisfactorily proved.
13. From the analysis of Section 90 of the Indian Evidence Act, the following propositions are deducible :--
1. That the presumption applies to documents proved to be thirty or more years old;
2. The document must come from proper custody;
3. The presumption is discretionary and in cases where a document is ex-facie suspicious the Court may very well refuse to make the presumption and call upon the party to offer other proof forthwith;
4. The presumption can only be applied to documents which bear the signatures of the writer or of witnesses and the presumption cannot be drawn in case of unsigned or anonymous papers;
5. The extent of the presumption relates only to the signatures, execution or attestation of a document, that is to say, its genuineness. The drawing of the presumption does not connote the idea that the contents of the documents are true or that they have been acted upon; and
6. The presumption applies only to original documents and not any copy thereof, certified or otherwise.
(Please see : Ramaswami Goundan v. Subbaraya Goundan, AIR 1948 Mad 388, Ravjappa v. Nilakanta Rao, AIR 1962 Mys 53; Chakicherla Audilakshmamma v. Atmkuru Ramarao, AIR 1973 Andh Pra 149 and Ghurahu v. Sheo Ratan, AIR 1981 All 3.)
14. Applying the above mentioned propositions to the present case, the document Ex. D-4 is original document, it bears signatures of its executants and it does not look ex-facie suspicious as it has been produced at the first instance when the respondents-plaintiffs claimed exclusive ownership of the property in dispute, whereas, as per this documents it is stated to be joint property of predecessors-in-interest of the parties. So far its production from a proper custody is concerned, as per the explanation to Section 90 of the Indian Evidence Act, a document is said to be in proper custody if it is in the place in which and under the care of the person with whom, it would naturally be. Moreover, a document is proved to be produced from proper custody, if it is brought from such a place as to offer reasonable presumption that it was honestly and fairly obtained and preserved for use. So far a deed relating to the affairs of family or arrangement of the family property is concerned, it is from proper custody if produced by the sons of one of the brothers amongst whom the arrangement was arrived at and who are in possession of the part of the property, as in the present case the document Ex. D-4 is produced by the appellants-defendants who are sons of Ram Dass, one of the executants of the document, who during his life time and after his death the appellants-defendants have seen in possession of the property in dispute. The appellants-defendants being proper re-pository of this document, even proof of its custody is not necessary. Having satisfied that document Ex. D-4 has been produced from proper custody a presumption can safely be drawn in respect of the signatures as well as execution by Ram Rattan, Ram Dass and Durga Dass and it was not necessary for the appellants-defendants to prove their signatures by producing descendants of Durga Dass or Ram Rattan as their witness, who was alive at the time of recording the evidence of appellants-defendants. Therefore, both the courts below have raised wrong presumption against the appellants-defendants for not producing descendants of Durga Dass and Ram Rattan to prove their signatures on document Ex. D-4. Rather, presumption was required to be drawn against the respondents-plaintiffs for not producing Ram Rattan, their father, who had, admittedly, died in the year 1983, if they were disputing that this document was not genuine and did not bear his signatures.
15. In the result, this Court holds that both the courts below have gravely erred in not exercising their discretion for drawing presumption in respect of document Ex. D-4 under Section 90 of the Indian Evidence Act and holding it not proved in accordance with law. The approach adopted by both the courts below is not correct and it is for this Court to set the matter right in the interest of justice and fair play.
16. The next question arises--what is the evidentiary value of document Ex. D-4 or in other words, whether its contents have been proved to be correct or it deserves to be ignored keeping in view the other facts and circumstances proved on record. The contents of this document in respect of the property in dispute that it was joint property of three brothers Ram Rattan, Ram Dass and Durga Dass, have been proved by Smt. Naina Devi DW-3, their sister, who was aged 80 years at the time her statement was recorded. Another sister Smt. Biasa Devi, who was instrumental in arriving at family settlement amongst the three brothers and whose name has been referred to in the document, was also produced as DW-2. In her statement she has corroborated the contents of this document. But when this document was intended to be exhibited through her, objections were raised and her statement was deferred to a later date but by the time the objections were finally decided by High Court in Civil Revision Petition No. 95 of 1982 and the document was exhibited, she was no more in the land of living and her statement could not be completed. It is correct that her statement has not been tested by cross-examination, but it at-least indicates that when the document Ex. D-4 was executed all the three brothers --Ram Rattan, Ram Dass and Durga Dass had admitted the property in dispute as their joint family property.
17. So far Smt. Naina Devi DW-3 is concerned, she is equally related to the parties in dispute and there are no reasons for her siding with the appellants-defendants. Her statement that property in dispute was joint amongst the three brothers, has not been put to doubt by her statement in cross-examination. Both the courts below have not appreciated the evidence of DW-2 and DW-3 in its right perspective. The statement of other witness DW-5 Jagan Nathson of step-brother Dina Nath that, he had been seeing Ram Rattan, Ram Dass and Durga Dass living separately, has been wrongly interpreted by the District Judge without noticing that at the time of execution of the document Ex. D-4 in the year 1937, he was five years of age, if his age at the time of recording of his statement on 7-5-1982 was about fifty years and as per the document Ex. D-4 all the three brothers had separated in living as well as in respect of their other immovable and movable properties, except the property in dispute. Therefore, the statement of this witness also corroborates the contents of document Ex. D-4 to some extent. In view of the statements of close relations Smt. Naina Devi DW-3, Smt. Biasa Devi DW-2 and Jagan Nath DW-5, the statements of outsiders, Jit Ram PW-3 and Shiv Setu PW-6 in respect of exclusive ownership of the property in dispute of respondents-plaintiffs is of no evidentiary value. So far appellant-defendant Narender Kumar DW-1, who was aged 34 years on the date of recording his statement on 10-8-1981 and respondent-plaintiff No. 2 Prem Goel, who was of 54 years on the date of recording his statement in rebuttal on 25-2-1990, are concerned, they cannot have personal knowledge either in respect of the contents of the document Ex. D-4 or that the property in dispute was purchased by joint family funds or by separate income of Ram Rattan in the year 1917 for a consideration of Rs. 300/- and also in respect of construction made thereon.
18. The observations of the District Judge that the house mantioned in document Ex. D-4 has not been connected with the property in dispute are not well founded as it has not been the case of either party that there was another ancestral house situated in Bhuntar Bazar except the property in dispute. Respondent-plaintiff No. 2 Prem Goel has also admitted in his statement that except the property in dispute their family had no other ancestral house in Bhuntar Bazar. It is correct that in document Ex. D-4 the house has been referred to as three storeyed, whereas it is described as two storeyed in the plaint but it is of no effect in view of admitted case by the parties that they did not have any other ancestral house in Bhuntar Bazar, to which a reference could be made in document Ex. D-4.
19. Another evidence used by both the courts below for holding that the property in dispute was not joint, as stated in document Ex. D-4, is document Ex. PW-2/A which is a copy of the application given by Ram Dass for house loan in the year 1956. In column 6(b) of the application Ram Dass had stated that he did not own any house or part thereof. This cannot be treated as his admission that he was not one of the coparceners in the property in dispute, share of which had devolved upon him by survivorship.
20. It is correct that property in dispute was purchased in the individual name of Ram Rattan on 27-2-1919 for a consideration of Rs. 300/-, who had later on by way of oral gift transferred it to respondents-plaintiffs, his sons, who were then minors. It is also correct that in the revenue record, the property in dispute continued to be recorded in the ownership and possession of either Ram Rattan or respondents-plaintiffs from 1920-21 onward. (Jamabandi for the year 1920-21 Ex. P-I4, Jamabandi for 1933-34 Ex. P-6, Missal Haquiat Bandobast Ex. P-17 and Jamabandi for the year 1963-64 Ex. P-4), Therefore, to decide the dispute that the property in dispute is joint family property or exclusive property, it is to be examined whether the appellants-defendants are able to prove that the family possessed some joint property which from its nature and relative value may have formed the nucleus to acquire the property in dispute, If yes, burden will shift to the respondents-plaintiffs to establish that their father Ram Rattan had provided purchase money of Rs. 300/- for the land in the year 1917 and thereafter made construction thereon from his separate funds and not with the help of joint family funds. It may be made clear that even if it is assumed that the three brothers Ram Rattan, Ram Dass and Durga Dass constituted joint family property in the year 1917, there cannot be a presumption that the property in dispute is joint. (Please see : Appalaswami v. Suryanaryanamurti, AIR 1947 PC 189; Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379; Mallappa Girimallappa Betgeri v. R. Yell-appagouda Patil, AIR 1959 SC 906; K. V. Narayanaswami Iyer v. K. V. Ramakrishna Iyer, AIR 1965 SC 289 and Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh, AIR 1969 SC 1076).
21. So far the appellants-defendants are concerned, they have failed to prove that there was sufficient nucleus of joint family funds to provide purchase money of Rs. 300/-for the land and to construct house thereon. In the written statement they have alleged that funds for purchase of the land and construction of house were provided from the joint family business, whereas, at the stage of evidence they changed their stand and tried to prove that nucleus was income from joint family land inherited from their father Sohnu. The existence of joint family land is proved but not income therefrom. But in view of document Ex. D-4 the question of proving sufficient nucleus fell in the background and onus shifted to respondents-plaintiffs to prove that their father Ram Rattan had separate income to provide an amount of Rs. 300/- to purchase the land and thereafter to make construction thereon, which they have not been able to prove. Though it has been stated by respondent-plaintiff No. 2 Prem Goel and witnesses produced by him that Ram Rattan was in some private employment for some time and was also doing some business yet what was his income at the relevant time, has not been stated by anyone, It is not believable that within a short period after the death of his father Ram Rattan was able to save Rs. 300/- in the year 1917 to purchase land and also sufficient amount in a few years later to construct a house from his individual income from employment or business when his two younger brothers Ram Dass and Durga Dass being minors and students were also dependent upon him, the family being joint, which fact has not been denied by the respondents-plaintiffs. If he was in a position to purchase land and build house thereon from his exclusive earnings, how could he incur huge debts, as mentioned in the document Ex. D-4 and stated by Biasa Devi DW-2, sister of Ram Rattan, Ram Dass and Durga Dass, at whose instance the other two brothers Ram Dass and Durga Dass had agreed to share the debts while agreeing to the settlement of other movable and immovable properties of their joint family.
22. Therefore, from the totality of the facts and circumstances on record, this Court holds that the contents of document Ex. D-4 stand proved from which it is established that the property in dispute was kept joint amongst the three brothers Ram Rattan, Ram Dass and Durga Dass, the predecessors-in-interest of the parties in the year 1937 and it continued to be joint as there was no partition lateron. Therefore, it is joint family property of the parties and not exclusive property as claimed by the respondents-plaintiffs in their suit and held by both the courts below. The appellants-defendants are in possession of the property in dispute as co-owners and are not liable to pay either licence fee or damages as claimed by the respondents-plaintiffs.
23. The result of above discussion is that this appeal is accepted and the decree and judgment dated 30-1-1989 of the District Judge and decree and judgment dated 5-3-1986 of the Sub Judge 1st Class, Kullu are set aside; and the suit of the respondents-plaintiffs is dismissed. Costs easy.