RSA-5231-2015 IN THE HIGH COURT OF PUNJAB AND HARYANA Ram Kumar and Others Dillo (deceased) through LRs and Others CORAM : HON’BLE MS. JUSTICE MANDEEP PANNU Present: Mr. Rahul Vohra, Advocate and Mr. Aditya Jain, Advocate for the appellants. None for respondent Nos. 4 to 8. Mr. S.K.Panwar, Advocate For respondents No.12, 13 and 14. Respondent Nos. 1, 2, 3 & 9 were proceeded ex parte Vide order dated 28.03.2025 Respondents No.10 and 16 were proceeded ex parte Vide order dated 24.07.2019 Name of respondents No. Vide order dated 20.09.2019 MANDEEP PANNU,J. 1. The present Regular Second Appeal has been filed by the appellants plaintiffs challenging the judgment and decree dated 13.09.2013 passed by the Court of Civil Judge (Jr. Division), Faridabad whereby their suit for declaration and injunction was dismissed, 2015 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- RSA Reserved on: Date of Decision : Ram Kumar and Others VERSUS Dillo (deceased) through LRs and Others HON’BLE MS. JUSTICE MANDEEP PANNU Mr. Rahul Vohra, Advocate and Mr. Aditya Jain, Advocate for the appellants. None for respondent Nos. 4 to 8. Mr. S.K.Panwar, Advocate For respondents No.12, 13 and 14. Respondent Nos. 1, 2, 3 & 9 were proceeded ex parte Vide order dated 28.03.2025 Respondents No.10 and 16 were proceeded ex parte Vide order dated 24.07.2019 Name of respondents No. 11 and 15 were struck off Vide order dated 20.09.2019 -.- MANDEEP PANNU,J. The present Regular Second Appeal has been filed by the appellants plaintiffs challenging the judgment and decree dated 13.09.2013 passed by the Court of Civil Judge (Jr. Division), Faridabad whereby their suit for declaration and injunction was dismissed, as well as the judgment and decree dated 13.04.2015 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-5231-2015 (O&M) Reserved on:-10.09.2025 Date of Decision : 15.09.2025 ....Appellants ....Respondents HON’BLE MS. JUSTICE MANDEEP PANNU Mr. Aditya Jain, Advocate for the appellants. Respondent Nos. 1, 2, 3 & 9 were proceeded ex parte Respondents No.10 and 16 were proceeded ex parte 11 and 15 were struck off The present Regular Second Appeal has been filed by the appellants plaintiffs challenging the judgment and decree dated 13.09.2013 passed by the Court of Civil Judge (Jr. Division), Faridabad whereby their suit for declaration as well as the judgment and decree dated 13.04.2015 - The present Regular Second Appeal has been filed by the appellants- plaintiffs challenging the judgment and decree dated 13.09.2013 passed by the Court of Civil Judge (Jr. Division), Faridabad whereby their suit for declaration as well as the judgment and decree dated 13.04.2015 TRIPTI SAINI 2025.09.17 09:27 I attest to the accuracy and integrity of this document RSA-5231-2015 passed by the learned Additional District Judge, Faridabad affirming the findings of the learned trial court and dismissing their appeal. Brief Facts 2. The appellants injunction claiming that they are co Khasra No.64(1 the extent of 1/6th share. It was their pleaded case that Ghusan, predec interest of defendants No.1 to 8, and Nathua, predecessor No.9 to 11, were co plaintiffs, each having one illegally and without authority alienated the entire khasra number by executing a sale deed dated 19.03.1962 in favour of defendants No.13 to 15 and also executed a lease deed dated 12.03.1962 in favour of defendant No.13 these transactions, mu plaintiffs asserted that since Ghusan and Nathua could not alienate more than their respective share binding upon their rights, ti mutation are also liable to be set aside. Along with declaration, they sought injunction restraining interference in their possession. 3. Upon notice, defendants No.12 to 14 appeared and filed their joint written statement alleging therein that they are owners in possession of the suit property on the basis of the sale deed dated 19.03.1962 executed in their favour. They further alleged that the suit filed by the plaintiffs is time barred. Denying rest of the contents of the plaint, they have prayed for dismissal of the suit. 2015 (O&M) passed by the learned Additional District Judge, Faridabad affirming the findings trial court and dismissing their appeal. The appellants-plaintiffs instituted a civil suit injunction claiming that they are co-owners in possession of land comprised in Khasra No.64(1-3), situated in village Basantpur, Tehsil and District Faridabad, to the extent of 1/6th share. It was their pleaded case that Ghusan, predec interest of defendants No.1 to 8, and Nathua, predecessor No.9 to 11, were co-sharers along with Ram Chand, the predecessor of the plaintiffs, each having one-third share. It was alleged that Ghusan and Nathua nd without authority alienated the entire khasra number by executing a sale deed dated 19.03.1962 in favour of defendants No.13 to 15 and also executed a lease deed dated 12.03.1962 in favour of defendant No.13 these transactions, mutation Nos.100 and 101 were sanctioned in their favour. The plaintiffs asserted that since Ghusan and Nathua could not alienate more than their respective shares, the sale deed and lease deed binding upon their rights, title and interest, and consequently the entries of mutation are also liable to be set aside. Along with declaration, they sought injunction restraining interference in their possession. Upon notice, defendants No.12 to 14 appeared and filed their joint written statement alleging therein that they are owners in possession of the suit property on the basis of the sale deed dated 19.03.1962 executed in their favour. They further alleged that the suit filed by the plaintiffs is time barred. Denying rest he contents of the plaint, they have prayed for dismissal of the suit. -2- passed by the learned Additional District Judge, Faridabad affirming the findings trial court and dismissing their appeal. plaintiffs instituted a civil suit for declaration and owners in possession of land comprised in 3), situated in village Basantpur, Tehsil and District Faridabad, to the extent of 1/6th share. It was their pleaded case that Ghusan, predecessor- interest of defendants No.1 to 8, and Nathua, predecessor-in-interest of defendants sharers along with Ram Chand, the predecessor of the third share. It was alleged that Ghusan and Nathua nd without authority alienated the entire khasra number by executing a sale deed dated 19.03.1962 in favour of defendants No.13 to 15 and also executed a lease deed dated 12.03.1962 in favour of defendant No.13 to 15. On the basis of tation Nos.100 and 101 were sanctioned in their favour. The plaintiffs asserted that since Ghusan and Nathua could not alienate more than their deed and lease deed are illegal, null and void and not tle and interest, and consequently the entries of mutation are also liable to be set aside. Along with declaration, they sought injunction restraining interference in their possession. Upon notice, defendants No.12 to 14 appeared and filed their joint written statement alleging therein that they are owners in possession of the suit property on the basis of the sale deed dated 19.03.1962 executed in their favour. They further alleged that the suit filed by the plaintiffs is time barred. Denying rest he contents of the plaint, they have prayed for dismissal of the suit. - passed by the learned Additional District Judge, Faridabad affirming the findings for declaration and owners in possession of land comprised in 3), situated in village Basantpur, Tehsil and District Faridabad, to -in- interest of defendants sharers along with Ram Chand, the predecessor of the third share. It was alleged that Ghusan and Nathua nd without authority alienated the entire khasra number by executing a sale deed dated 19.03.1962 in favour of defendants No.13 to 15 and also executed . On the basis of tation Nos.100 and 101 were sanctioned in their favour. The plaintiffs asserted that since Ghusan and Nathua could not alienate more than their are illegal, null and void and not tle and interest, and consequently the entries of mutation are also liable to be set aside. Along with declaration, they sought Upon notice, defendants No.12 to 14 appeared and filed their joint written statement alleging therein that they are owners in possession of the suit property on the basis of the sale deed dated 19.03.1962 executed in their favour. They further alleged that the suit filed by the plaintiffs is time barred. Denying rest TRIPTI SAINI 2025.09.17 09:27 I attest to the accuracy and integrity of this document RSA-5231-2015 4. From the pleadings of the parties, the following issues were settled by the learned trial 1. prayed for? OPP 2. injunction as prayed for? OPP 3. present form? OPD 4. file the present suit? OPD 5. 5. In order to prove their case, plaintiff Ram Kumar himself appeared in the witness box as PW1 and reiterated the averments of the plaint. The plaintiffs relied upon documentary eviden (Ex.P1), Jamabandi for the year 1963 (Ex.P3), copy of lease deed dated 12.03.1962 (Ex.P4 and Ex.P5), copy of sale deed dated 19.03.1962 in Urdu and Hindi (Ex.P6 and Ex.P (Ex.P8), demarcation report (Ex.P9), documents in Urdu language (Ex.P10 and Ex.P11), and mutation Nos.100 and 101 (Mark A and B). 6. On the other hand, the defendants examined Birpal as DW1, Mahesh as DW2, Gyanender Singh ARC as DW3 a produced on record Jamabandis for the years 2006 for 1963–64 (Ex.DW4/2), copy of Jamabandi for 1967 2015 (O&M) From the pleadings of the parties, the following issues were settled by rial Court on 19.09.2012: Whether the plaintiff is entitled for a decree of declaration as prayed for? OPP Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP Whether the suit of the plaintiff is not maintainable in the present form? OPD Whether the plaintiff has no cause of action and locus standi file the present suit? OPD Whether the suit is time barred? OPD In order to prove their case, plaintiff Ram Kumar himself appeared in the witness box as PW1 and reiterated the averments of the plaint. The plaintiffs relied upon documentary evidence including Jamabandi for the year 2002 (Ex.P1), Jamabandi for the year 1963–64 (Ex.P2), Jamabandi for the year 1959 (Ex.P3), copy of lease deed dated 12.03.1962 (Ex.P4 and Ex.P5), copy of sale deed dated 19.03.1962 in Urdu and Hindi (Ex.P6 and Ex.P (Ex.P8), demarcation report (Ex.P9), documents in Urdu language (Ex.P10 and Ex.P11), and mutation Nos.100 and 101 (Mark A and B). On the other hand, the defendants examined Birpal as DW1, Mahesh as DW2, Gyanender Singh ARC as DW3 and Rajesh Patwari as DW4. They produced on record copy of sale deeds dated 18.09.1963 (Ex.D1 and Ex.D2), Jamabandis for the years 2006–07 and 2007–08 (Ex.D3 to D5), copy of Jamabandi 64 (Ex.DW4/2), copy of Jamabandi for 1967 -3- From the pleadings of the parties, the following issues were settled by Whether the plaintiff is entitled for a decree of declaration as Whether the plaintiff is entitled for a decree of permanent Whether the suit of the plaintiff is not maintainable in the Whether the plaintiff has no cause of action and locus standi Whether the suit is time barred? OPD In order to prove their case, plaintiff Ram Kumar himself appeared in the witness box as PW1 and reiterated the averments of the plaint. The plaintiffs ce including Jamabandi for the year 2002– 64 (Ex.P2), Jamabandi for the year 1959– (Ex.P3), copy of lease deed dated 12.03.1962 (Ex.P4 and Ex.P5), copy of sale deed dated 19.03.1962 in Urdu and Hindi (Ex.P6 and Ex.P7), memo of presence (Ex.P8), demarcation report (Ex.P9), documents in Urdu language (Ex.P10 and Ex.P11), and mutation Nos.100 and 101 (Mark A and B). On the other hand, the defendants examined Birpal as DW1, Mahesh nd Rajesh Patwari as DW4. They sale deeds dated 18.09.1963 (Ex.D1 and Ex.D2), 08 (Ex.D3 to D5), copy of Jamabandi 64 (Ex.DW4/2), copy of Jamabandi for 1967–68 (Ex.DW4/3), copy of - From the pleadings of the parties, the following issues were settled by Whether the plaintiff is entitled for a decree of declaration as Whether the plaintiff is entitled for a decree of permanent Whether the suit of the plaintiff is not maintainable in the Whether the plaintiff has no cause of action and locus standi to In order to prove their case, plaintiff Ram Kumar himself appeared in the witness box as PW1 and reiterated the averments of the plaint. The plaintiffs –03 –60 (Ex.P3), copy of lease deed dated 12.03.1962 (Ex.P4 and Ex.P5), copy of sale deed 7), memo of presence (Ex.P8), demarcation report (Ex.P9), documents in Urdu language (Ex.P10 and On the other hand, the defendants examined Birpal as DW1, Mahesh nd Rajesh Patwari as DW4. They sale deeds dated 18.09.1963 (Ex.D1 and Ex.D2), 08 (Ex.D3 to D5), copy of Jamabandi 68 (Ex.DW4/3), copy of TRIPTI SAINI 2025.09.17 09:27 I attest to the accuracy and integrity of this document RSA-5231-2015 sale deed dated 23.09.1963 (Ex.DW3/1) and another Urdu document (Ex.DW3/2). 7. In rebuttal, plaintiffs tendered photographs Mark A and Mark B. Findings of the Trial Court 8. The evidence, held that Jamabandi for the years 1959 Ram Chand, the predecessor of the plaintiffs, had share in the suit land. The plaintiffs also produced certified copies of lease d deed dated 19.03.1962, which showed that Ghusan and Nathua had alienated the entire khasra number 64(1 suggesting exclusive share of Ghusan and Nathua in the entire khasr deed showed that more than their share was alienated. However, the Court held that even if the sale deed was declared null and void qua plaintiffs, such declaration would not be beneficial unless plaintiffs sought partition of khata. The property in question being joint, remedy available to the plaintiffs was to institute a suit for partition and not for mere declaration. Consequently, issues No.1 and 2 were decided against the plaintiffs. On issues No.3 to 5, the trial Court noted that though the onus was upon the defendants, during arguments these issues were not pressed, and no evidence was led. Thus, findings were recorded against the defendants. Ultimately, the suit on 13.09.2013 holding that the plaintiffs had failed to establish entitlement to declaration and injunction. Findings of the First Appellate Court 9. Aggrieved, the plaintiffs filed Civil Appeal No.12 of 2014 which was heard by the learned Additional District Judge, Faridabad. The Court, while re- 2015 (O&M) sale deed dated 23.09.1963 (Ex.DW3/1) and another Urdu document (Ex.DW3/2). In rebuttal, plaintiffs tendered photographs Mark A and Mark B. Findings of the Trial Court The learned trial Court, after examining the oral and documentary evidence, held that Jamabandi for the years 1959 Ram Chand, the predecessor of the plaintiffs, had share in the suit land. The plaintiffs also produced certified copies of lease d deed dated 19.03.1962, which showed that Ghusan and Nathua had alienated the entire khasra number 64(1-3). The Court observed that there was no revenue record suggesting exclusive share of Ghusan and Nathua in the entire khasr deed showed that more than their share was alienated. However, the ourt held that even if the sale deed was declared null and void qua plaintiffs, such declaration would not be beneficial unless plaintiffs sought partition of khata. The property in question being joint, remedy available to the plaintiffs was to institute a suit for partition and not for mere declaration. Consequently, issues No.1 and 2 were decided against the plaintiffs. On issues No.3 to 5, the ourt noted that though the onus was upon the defendants, during arguments these issues were not pressed, and no evidence was led. Thus, findings were recorded against the defendants. Ultimately, the 9.2013 holding that the plaintiffs had failed to establish entitlement to declaration and injunction. Findings of the First Appellate Court Aggrieved, the plaintiffs filed Civil Appeal No.12 of 2014 which was heard by the learned Additional District Judge, Faridabad. The -appreciating the evidence, reiterated that the Jamabandi for 1959 -4- sale deed dated 23.09.1963 (Ex.DW3/1) and another Urdu document (Ex.DW3/2). In rebuttal, plaintiffs tendered photographs Mark A and Mark B. ourt, after examining the oral and documentary evidence, held that Jamabandi for the years 1959–60 and 1963–64 reflected that Ram Chand, the predecessor of the plaintiffs, had share in the suit land. The plaintiffs also produced certified copies of lease deed dated 12.03.1962 and sale deed dated 19.03.1962, which showed that Ghusan and Nathua had alienated the ourt observed that there was no revenue record suggesting exclusive share of Ghusan and Nathua in the entire khasra and the sale deed showed that more than their share was alienated. However, the learned trial ourt held that even if the sale deed was declared null and void qua plaintiffs, such declaration would not be beneficial unless plaintiffs sought partition of the joint khata. The property in question being joint, remedy available to the plaintiffs was to institute a suit for partition and not for mere declaration. Consequently, issues No.1 and 2 were decided against the plaintiffs. On issues No.3 to 5, the learned ourt noted that though the onus was upon the defendants, during arguments these issues were not pressed, and no evidence was led. Thus, findings were recorded against the defendants. Ultimately, the learned trial Court dismissed the 9.2013 holding that the plaintiffs had failed to establish entitlement to Aggrieved, the plaintiffs filed Civil Appeal No.12 of 2014 which was heard by the learned Additional District Judge, Faridabad. The learned Appellate appreciating the evidence, reiterated that the Jamabandi for 1959 - sale deed dated 23.09.1963 (Ex.DW3/1) and another Urdu document (Ex.DW3/2). ourt, after examining the oral and documentary 64 reflected that Ram Chand, the predecessor of the plaintiffs, had share in the suit land. The eed dated 12.03.1962 and sale deed dated 19.03.1962, which showed that Ghusan and Nathua had alienated the ourt observed that there was no revenue record a and the sale learned trial ourt held that even if the sale deed was declared null and void qua plaintiffs, such the joint khata. The property in question being joint, remedy available to the plaintiffs was to institute a suit for partition and not for mere declaration. Consequently, issues ned ourt noted that though the onus was upon the defendants, during arguments these issues were not pressed, and no evidence was led. Thus, findings were ourt dismissed the 9.2013 holding that the plaintiffs had failed to establish entitlement to Aggrieved, the plaintiffs filed Civil Appeal No.12 of 2014 which was learned Appellate appreciating the evidence, reiterated that the Jamabandi for 1959– TRIPTI SAINI 2025.09.17 09:27 I attest to the accuracy and integrity of this document RSA-5231-2015 60 clearly proved posses dated 19.03.1962 interest. The court observed that the documents Ex.P2 and Ex.P3, though over 30 years old, supported the possession of G presumption of genuineness attached to them. It further held that the demarcation report Ex.P9 and the report of the Local Commissioner also went against the plaintiffs by showing that they were not in possession of the suit Appellate Court relied upon the law laid 204, that possession of one co ouster is pleaded and proved. It also referred to Court Cases 259 possession, such transfer is subject to partition and does not confer exclusive title on the vendee. 10. The limitation in light of RCR (Civil) 676 first accrues. Since the sale deed was executed in 1962, hopelessly barred by limitation. The Kumar admitted in his cross the time of filing of the suit. The LRs, therefore, had no locus s during the lifetime of Ram Chand, and on this ground also the suit was held to be incompetent. On cumulative consideration, the appeal was dismissed on 13.04.2015, affirming the judgment of the 11. Aggrieved by below, the appellants 2015 (O&M) 60 clearly proved possession of Ghusan and Nathua as co 19.03.1962 and lease deed dated 12.03.1962 interest. The court observed that the documents Ex.P2 and Ex.P3, though over 30 years old, supported the possession of Ghusan and Nathua and there was presumption of genuineness attached to them. It further held that the demarcation report Ex.P9 and the report of the Local Commissioner also went against the plaintiffs by showing that they were not in possession of the suit ourt relied upon the law laid down in Bhartu v. Ram Sarup 198 204, that possession of one co-owner is in the eyes of law possession of all, unless ouster is pleaded and proved. It also referred to Ram Das v. Sita Bai 2009 Court Cases 259, to hold that even if a co possession, such transfer is subject to partition and does not confer exclusive title The learned Appellate Court further examined the question of limitation in light of Khatri Hotels Private Limited v. Union of India 2012(1) RCR (Civil) 676, and held that limitation runs from the date when the right to sue first accrues. Since the sale deed was executed in 1962, hopelessly barred by limitation. The learned Court also noticed that plaintiff Ram Kumar admitted in his cross-examination that his father Ram Chand was alive at the time of filing of the suit. The LRs, therefore, had no locus s during the lifetime of Ram Chand, and on this ground also the suit was held to be incompetent. On cumulative consideration, the appeal was dismissed on 13.04.2015, affirming the judgment of the learned Aggrieved by the judgment and decrees passed by both the Courts , the appellants-plaintiffs filed the present Regular Second Appeal. -5- sion of Ghusan and Nathua as co-sharers and sale deed 12.03.1962 transferred their possession and interest. The court observed that the documents Ex.P2 and Ex.P3, though over 30 husan and Nathua and there was presumption of genuineness attached to them. It further held that the demarcation report Ex.P9 and the report of the Local Commissioner also went against the plaintiffs by showing that they were not in possession of the suit land. The learned down in Bhartu v. Ram Sarup 1981 PLJ owner is in the eyes of law possession of all, unless ouster is pleaded and proved. It also referred to Ram Das v. Sita Bai 2009 (4) Civil , to hold that even if a co-sharer transfers a portion in his possession, such transfer is subject to partition and does not confer exclusive title ourt further examined the question of Khatri Hotels Private Limited v. Union of India 2012(1) , and held that limitation runs from the date when the right to sue first accrues. Since the sale deed was executed in 1962, the suit filed in 2007 was ourt also noticed that plaintiff Ram examination that his father Ram Chand was alive at the time of filing of the suit. The LRs, therefore, had no locus standi to file the suit during the lifetime of Ram Chand, and on this ground also the suit was held to be incompetent. On cumulative consideration, the appeal was dismissed on learned trial Court. the judgment and decrees passed by both the Courts filed the present Regular Second Appeal. - sharers and sale deed transferred their possession and interest. The court observed that the documents Ex.P2 and Ex.P3, though over 30 husan and Nathua and there was presumption of genuineness attached to them. It further held that the demarcation report Ex.P9 and the report of the Local Commissioner also went against the learned 1 PLJ owner is in the eyes of law possession of all, unless (4) Civil sharer transfers a portion in his possession, such transfer is subject to partition and does not confer exclusive title ourt further examined the question of Khatri Hotels Private Limited v. Union of India 2012(1) , and held that limitation runs from the date when the right to sue the suit filed in 2007 was ourt also noticed that plaintiff Ram examination that his father Ram Chand was alive at tandi to file the suit during the lifetime of Ram Chand, and on this ground also the suit was held to be incompetent. On cumulative consideration, the appeal was dismissed on the judgment and decrees passed by both the Courts TRIPTI SAINI 2025.09.17 09:27 I attest to the accuracy and integrity of this document RSA-5231-2015 12. Upon notice, respondents No.12 to 14 appeared and contested the appeal. Submissions of 13. Learned counsel for the appel below have committed patent illegality in dismissing the suit. It is submitted that the trial court itself recorded a finding that Ghusan and Nathua had no right to alienate the entire khasra in which Ram Chand also had a share, yet dismissed the suit on the erroneous ground that declaration would not benefit the plaintiffs without partition. It is contended that unless the sale deed dated 19.03.1962 lease dated 12.03.1962 1/6th share cannot be protected, and hence relegating them to file a suit for partition without first deciding the validity of the sale deed legally untenable. 14. It is further submitted that the upholding the findings of limitation. According to the appellants, the cause of action arose only in 2007 when they acquired knowledge of the sale deed and entries in the revenue record, and therefore the suit Lower Appellate Court Chand was alive is wholly perverse, as the plaintiffs being his sons and wife are also co-sharers and entitled to both courts below are assailed as being contrary to law, facts and evidence on record, based on conjectures and surmises, ignoring admissible evidence and thus liable to be set aside. Submissions of 2015 (O&M) Upon notice, respondents No.12 to 14 appeared and contested the Submissions of learned counsel for the appellants Learned counsel for the appellants has argued that both the C below have committed patent illegality in dismissing the suit. It is submitted that the trial court itself recorded a finding that Ghusan and Nathua had no right to alienate the entire khasra in which Ram Chand also had a share, yet dismissed the t on the erroneous ground that declaration would not benefit the plaintiffs without partition. It is contended that unless the sale deed dated 19.03.1962 lease dated 12.03.1962 are first declared null and void, the appellants’ right to their e cannot be protected, and hence relegating them to file a suit for partition without first deciding the validity of the sale deed legally untenable. It is further submitted that the learned findings of learned trial Court by holding the suit to be barred by limitation. According to the appellants, the cause of action arose only in 2007 when they acquired knowledge of the sale deed and entries in the revenue record, and therefore the suit was within limitation. It is also argued that the finding Lower Appellate Court that the suit was technically incompetent because Ram Chand was alive is wholly perverse, as the plaintiffs being his sons and wife are sharers and entitled to protect their independent share. The judgments of both courts below are assailed as being contrary to law, facts and evidence on record, based on conjectures and surmises, ignoring admissible evidence and thus liable to be set aside. Submissions of learned counsel for respondent Nos. 12 to 14 -6- Upon notice, respondents No.12 to 14 appeared and contested the learned counsel for the appellants lants has argued that both the Courts below have committed patent illegality in dismissing the suit. It is submitted that the trial court itself recorded a finding that Ghusan and Nathua had no right to alienate the entire khasra in which Ram Chand also had a share, yet dismissed the t on the erroneous ground that declaration would not benefit the plaintiffs without partition. It is contended that unless the sale deed dated 19.03.1962 and first declared null and void, the appellants’ right to their e cannot be protected, and hence relegating them to file a suit for partition without first deciding the validity of the sale deed and lease deed was learned Lower Appellate Court erred in ourt by holding the suit to be barred by limitation. According to the appellants, the cause of action arose only in 2007 when they acquired knowledge of the sale deed and entries in the revenue record, was within limitation. It is also argued that the findings of the that the suit was technically incompetent because Ram Chand was alive is wholly perverse, as the plaintiffs being his sons and wife are protect their independent share. The judgments of both courts below are assailed as being contrary to law, facts and evidence on record, based on conjectures and surmises, ignoring admissible evidence and thus counsel for respondent Nos. 12 to 14 - Upon notice, respondents No.12 to 14 appeared and contested the ourts below have committed patent illegality in dismissing the suit. It is submitted that the trial court itself recorded a finding that Ghusan and Nathua had no right to alienate the entire khasra in which Ram Chand also had a share, yet dismissed the t on the erroneous ground that declaration would not benefit the plaintiffs and first declared null and void, the appellants’ right to their e cannot be protected, and hence relegating them to file a suit for was ourt erred in ourt by holding the suit to be barred by limitation. According to the appellants, the cause of action arose only in 2007 when they acquired knowledge of the sale deed and entries in the revenue record, of the that the suit was technically incompetent because Ram Chand was alive is wholly perverse, as the plaintiffs being his sons and wife are protect their independent share. The judgments of both courts below are assailed as being contrary to law, facts and evidence on record, based on conjectures and surmises, ignoring admissible evidence and thus TRIPTI SAINI 2025.09.17 09:27 I attest to the accuracy and integrity of this document RSA-5231-2015 15. Per contra has supported the concurrent findings of both courts below. It is argued that the property was joint and unpartitioned, and in law the possession o possession of all, as laid down in contended that even if Ghusan and Nathua executed a sale deed more than their share, the transfer would remain valid subject to partition, and t only remedy available to the plaintiffs was to seek partition and not declaration. Reliance is also placed on submit that a vendee from a co vendor’s share, though subject to adjustment at partition. It is argued that the findings of the courts below that plaintiffs were not in possession stand fortified from the report of Local Commissioner as well as Jamabandis of subsequent years. 16. On limitation, Limitation Act, 1963 the date of first accrual of cause of action. The sale deed being of 1962, the suit filed in 2007 was ex facie barred, as he India 2012(1) RCR (Civil) 676 maintainable as Ram Chand, predecessor of the plaintiffs, was admittedly alive at the time of filing of the suit and was not impleaded. In vi substantial question of law arises for determination and the appeal deserves to be dismissed. Findings of this Court 17. Having heard learned counsel for the parties and perused the records, this Court finds that the follo dated 19.03.1962 and lease deed dated 12.03.1962 were executed by Ghusan and 2015 (O&M) Per contra, learned counsel appearing for respondents has supported the concurrent findings of both courts below. It is argued that the property was joint and unpartitioned, and in law the possession o possession of all, as laid down in Bhartu v. Ram Sarup 1991 PLJ 204 contended that even if Ghusan and Nathua executed a sale deed more than their share, the transfer would remain valid subject to partition, and t only remedy available to the plaintiffs was to seek partition and not declaration. Reliance is also placed on Ram Das v. Sita Bai 2009 (4) Civil Court Cases 259 submit that a vendee from a co-sharer acquires valid rights to the extent of share, though subject to adjustment at partition. It is argued that the findings of the courts below that plaintiffs were not in possession stand fortified from the report of Local Commissioner as well as Jamabandis of subsequent years. On limitation, learned counsel submits that Article 58 of the , 1963 clearly prescribes three years for a suit for declaration from the date of first accrual of cause of action. The sale deed being of 1962, the suit filed in 2007 was ex facie barred, as held in Khatri Hotels Pvt. Ltd. v. Union of India 2012(1) RCR (Civil) 676. It is further urged that the suit was not maintainable as Ram Chand, predecessor of the plaintiffs, was admittedly alive at the time of filing of the suit and was not impleaded. In vi substantial question of law arises for determination and the appeal deserves to be Findings of this Court Having heard learned counsel for the parties and perused the records, this Court finds that the following aspects are not in dispute that dated 19.03.1962 and lease deed dated 12.03.1962 were executed by Ghusan and -7- , learned counsel appearing for respondents No.12 to 14 has supported the concurrent findings of both courts below. It is argued that the property was joint and unpartitioned, and in law the possession of one co-owner is Bhartu v. Ram Sarup 1991 PLJ 204. It is contended that even if Ghusan and Nathua executed a sale deed and lease deed more than their share, the transfer would remain valid subject to partition, and t only remedy available to the plaintiffs was to seek partition and not declaration. Ram Das v. Sita Bai 2009 (4) Civil Court Cases 259 sharer acquires valid rights to the extent of share, though subject to adjustment at partition. It is argued that the findings of the courts below that plaintiffs were not in possession stand fortified from the report of Local Commissioner as well as Jamabandis of subsequent years. learned counsel submits that Article 58 of the clearly prescribes three years for a suit for declaration from the date of first accrual of cause of action. The sale deed being of 1962, the suit Khatri Hotels Pvt. Ltd. v. Union of . It is further urged that the suit was not maintainable as Ram Chand, predecessor of the plaintiffs, was admittedly alive at the time of filing of the suit and was not impleaded. In view of the above, no substantial question of law arises for determination and the appeal deserves to be Having heard learned counsel for the parties and perused the records, are not in dispute that the sale deed dated 19.03.1962 and lease deed dated 12.03.1962 were executed by Ghusan and - No.12 to 14 has supported the concurrent findings of both courts below. It is argued that the owner is . It is and lease deed for more than their share, the transfer would remain valid subject to partition, and the only remedy available to the plaintiffs was to seek partition and not declaration. Ram Das v. Sita Bai 2009 (4) Civil Court Cases 259, to sharer acquires valid rights to the extent of share, though subject to adjustment at partition. It is argued that the findings of the courts below that plaintiffs were not in possession stand fortified from the report of Local Commissioner as well as Jamabandis of subsequent years. learned counsel submits that Article 58 of the clearly prescribes three years for a suit for declaration from the date of first accrual of cause of action. The sale deed being of 1962, the suit Khatri Hotels Pvt. Ltd. v. Union of . It is further urged that the suit was not maintainable as Ram Chand, predecessor of the plaintiffs, was admittedly alive at ew of the above, no substantial question of law arises for determination and the appeal deserves to be Having heard learned counsel for the parties and perused the records, the sale deed dated 19.03.1962 and lease deed dated 12.03.1962 were executed by Ghusan and TRIPTI SAINI 2025.09.17 09:27 I attest to the accuracy and integrity of this document RSA-5231-2015 Nathua and that that the property in question was never partitioned. The cru the plaintiffs could maintain a courts below committed an error in dismissing their claim. 18. The concurrently held that in case of joint property, alienation made by one co may not bind the other co shoes of the vendor as a co institute a suit for partition and not merely for declaration. This reasoning is firmly supported by the principles laid down in Das v. Sita Bai deed is a necessary pre such declaration is granted, the plaintiffs would not derive possession or specific share without partition proceedings. 19. On limitation also, the concurrent findings deserve accept sale deed having been executed in 1962, the suit filed in 2007 is clearly barred. The plea of knowledge arising in 2007 is without merit in view of the sanctioned mutations and revenue entries. The reliance placed by the on Khatri Hotels Pvt. Ltd 20. Additionally, the finding that the suit was incompetent as Ram Chand was alive at the time of institution cannot be faulted. The plaintiffs claiming as his legal representatives had no right to ma technical defect strikes at the very root of maintainability. 21. Thus, the concurrent findings of fact recorded by below are based upon proper appreciation of evidence and correct application of 2015 (O&M) and that Ram Chand, predecessor of the plaintiffs, was also co that the property in question was never partitioned. The cru the plaintiffs could maintain a suit for declaration simplicito courts below committed an error in dismissing their claim. The learned trial Court as well as the concurrently held that in case of joint property, alienation made by one co may not bind the other co-sharers beyond his share, yet the vendee steps into the shoes of the vendor as a co-sharer. The remedy of the aggrieved co nstitute a suit for partition and not merely for declaration. This reasoning is firmly supported by the principles laid down in Bhartu v. Ram Sarup Das v. Sita Bai (supra). The argument of the appellants that declaration of sale ecessary pre-condition before filing partition is misconceived. Even if such declaration is granted, the plaintiffs would not derive possession or specific share without partition proceedings. On limitation also, the concurrent findings deserve accept sale deed having been executed in 1962, the suit filed in 2007 is clearly barred. The plea of knowledge arising in 2007 is without merit in view of the sanctioned mutations and revenue entries. The reliance placed by the Khatri Hotels Pvt. Ltd. (supra) is apt and applicable. Additionally, the finding that the suit was incompetent as Ram Chand was alive at the time of institution cannot be faulted. The plaintiffs claiming as his legal representatives had no right to maintain the suit during his lifetime. This technical defect strikes at the very root of maintainability. Thus, the concurrent findings of fact recorded by below are based upon proper appreciation of evidence and correct application of -8- Ram Chand, predecessor of the plaintiffs, was also co-sharer and that the property in question was never partitioned. The crucial question is whether suit for declaration simplicitor and whether the courts below committed an error in dismissing their claim. ourt as well as the Appellate Court have concurrently held that in case of joint property, alienation made by one co-sharer sharers beyond his share, yet the vendee steps into the sharer. The remedy of the aggrieved co-sharer is to nstitute a suit for partition and not merely for declaration. This reasoning is firmly Bhartu v. Ram Sarup (supra) and Ram . The argument of the appellants that declaration of sale condition before filing partition is misconceived. Even if such declaration is granted, the plaintiffs would not derive possession or specific On limitation also, the concurrent findings deserve acceptance. The sale deed having been executed in 1962, the suit filed in 2007 is clearly barred. The plea of knowledge arising in 2007 is without merit in view of the sanctioned mutations and revenue entries. The reliance placed by the Lower Appellate Court is apt and applicable. Additionally, the finding that the suit was incompetent as Ram Chand was alive at the time of institution cannot be faulted. The plaintiffs claiming as his intain the suit during his lifetime. This technical defect strikes at the very root of maintainability. Thus, the concurrent findings of fact recorded by both the Courts below are based upon proper appreciation of evidence and correct application of - sharer and cial question is whether r and whether the ourt have sharer sharers beyond his share, yet the vendee steps into the sharer is to nstitute a suit for partition and not merely for declaration. This reasoning is firmly Ram . The argument of the appellants that declaration of sale condition before filing partition is misconceived. Even if such declaration is granted, the plaintiffs would not derive possession or specific ance. The sale deed having been executed in 1962, the suit filed in 2007 is clearly barred. The plea of knowledge arising in 2007 is without merit in view of the sanctioned Lower Appellate Court Additionally, the finding that the suit was incompetent as Ram Chand was alive at the time of institution cannot be faulted. The plaintiffs claiming as his intain the suit during his lifetime. This ourts below are based upon proper appreciation of evidence and correct application of TRIPTI SAINI 2025.09.17 09:27 I attest to the accuracy and integrity of this document RSA-5231-2015 law. The judgments cannot be said to suffer from perversity or illegality so as to warrant interference under Section 100 CPC. Conclusion 22. In view of the above detailed discussion, this Court holds that Courts below have correctly held that the and not in filing a suit for declaration and further that the same was incompetent as it was filed during the lifetime of Ram Chand. The concurrent findings being base principles of law, call for no interference. 23. The p 24. Pending application(s), if any, also stands disposed of. September 15, 2025 tripti Whether speaking/non Whether reportable 2015 (O&M) aw. The judgments cannot be said to suffer from perversity or illegality so as to warrant interference under Section 100 CPC. In view of the above detailed discussion, this Court holds that ourts below have correctly held that the plaintiffs’ remedy lay in seeking partition and not in filing a suit for declaration and that the suit was barred by limitation, and further that the same was incompetent as it was filed during the lifetime of Ram Chand. The concurrent findings being base principles of law, call for no interference. The present Regular Second Appeal is, Pending application(s), if any, also stands disposed of. , 2025 (MANDEEP PANNU Whether speaking/non-speaking : Speaking Whether reportable : Yes/No. -9- aw. The judgments cannot be said to suffer from perversity or illegality so as to In view of the above detailed discussion, this Court holds that both the plaintiffs’ remedy lay in seeking partition that the suit was barred by limitation, and further that the same was incompetent as it was filed during the lifetime of Ram Chand. The concurrent findings being based on evidence and settled resent Regular Second Appeal is, accordingly, dismissed Pending application(s), if any, also stands disposed of. MANDEEP PANNU) JUDGE speaking : Speaking : Yes/No. - aw. The judgments cannot be said to suffer from perversity or illegality so as to both the plaintiffs’ remedy lay in seeking partition that the suit was barred by limitation, and further that the same was incompetent as it was filed during the lifetime of d on evidence and settled TRIPTI SAINI 2025.09.17 09:27 I attest to the accuracy and integrity of this document