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