RAM PHAL Vs. KHARAK SINGH

JUDGEMENT

(1.) The circumstances, giving rise to this appeal, may be, briefly, stated as under :-

(2.) The plaintiffs, who are now appellants, brought a suit for declaration to the effect that they were owners of the land of which they were in possession, and the said land was shown in Schedule A attached with the plaint. They averred that they were wrongly recorded as tenants in the Jamabandi and the defendants-respondents were out to evict them and had actually obtained ejectment orders against them by making petition under the Punjab Security of Land Tenures Act. The defendants, who included Dallu Singh, resisted the suit. They controverted the material allegations of the plaintiffs-appellants and pleaded, inter alia, that they (the defendants) had taken possession of the land in execution of the ejectment orders and the plaintiff-appellants were not in possession and, as such, the suit being for declaration simpliciter was not maintainable and it was also bad on account of misjoinder of causes of action, and that the plaint if appellants were estopped from maintaining the same. Hence, the trial Court raised the following preliminary issues :-

(3.) During the pendency of the suit, Dallu Singh died and the plaintiff appellants moved an application for impleading his son Dev Raj Singh in his place. The said application was allowed and Dev Raj Singh was impleaded as one of the defendants in place of Dallu Singh. The trial Court did not record any finding on issue Nos. 2 and 3, but finding issue Nos. 1 and 4 against the plaintiff and in the appeal they impleaded Dallu Singh, who as indicated above had already died during the pendency of the suit and did not implead Dev Raj Singh as one of the respondents. Therefore, the learned Additional District Judge, Gurgaon, finding that Dev Raj Singh had not been impleaded as respondent and the period of limitation prescribed for appeal as against him had expired, came to the conclusion that the appeal was not properly constituted and dismissed the same. Aggrieved by the said result, the appellants have come to this Court in second appeal.