BHAJAN KAUR Vs. GAJJAN SINGH

JUDGEMENT

(1.) The following substantial questions of law arise for consideration in the second appeal:-

(2.) The defendants 1 and 3 are the appellants. The plaintiff is the brother of the 1st defendant and the 3rd defendant is the wife of 1 st defendant. The 2nd defendant was a transferee from the 1st defendant and the 3rd defendant, who obtained a further transfer from the 2nd defendant exchanged an item of property with the 4th defendant and, therefore, the 4th defendant also had a stake in the property.

(3.) The plaintiff's suit was based on a contention that the plaintiff and the 1st defendant being the sons of Kehar Singh were entitled to all the properties equally and in partition proceedings brought at the instance of the plaintiff on the basis of jamabandi entries of the year 1976-77, the suit properties of an extent of 20 kanals of land had not been included and that was when the plaintiff came to know that the 1st defendant had purported to have effected some sales which were not binding on him. The defence was that the brothers had been selling various parcels of land held by them for the sake of convenience separately and the sales and exchange involving defendants 2 to 4 had been brought between the years 1952 to 1955. The defendant's contention was that the plaintiff knew about the divestment of the properties from the family through the mutations of the years 1952 and 1955 and the plaintiff cannot now seek for a declaration of joint entitlement to the properties which had been already lost before suit instituted in the year 1980. The trial Court accepted the contention and found that the suit itself was not maintainable in the manner framed and had also held that the suit was barred by limitation. In the appeal filed by the plaintiff in which only the defendants 1 and 3 had been made as parties, the appellate Court reversed the judgment of the trial Court holding that the frame of the suit was correct and that there was also no bar of limitation for securing a declaratory right in respect of the suit properties.