SUCHA SINGH AND BALWANT SINGH Vs. NAND SINGH

JUDGEMENT

(1.) This second appeal has been filed by Sucha Singh and Balwant Singh against the judgment of learned Senior Subordinate Judge, Kapurthala, dated may 19, 1975, whereby the judgment of learned Subordinate Judge Ist Class, Phagwara, dated June 26, 1972, was reversed and the suit of the plaintiff was ordered to be dismissed.

(2.) The brief facts leading to the present suit are that land measuring 300 Kanals 13 Marlas situate at Bir Dhandholi was jointly owned by Nand Singh and Tarlok Singh defendants to the extent of one-half share and the other half was owned by the other defendants. Gurdass (defendant No. 3), one of the co-sharers, sold land measuring 32 Kanals consisting of specific Khasra numbers to the plaintiffs vide registered sale-deed dated May 25, 1967, for a consideration of Rs. 20,000/- and put the plaintiffs in possession thereof. Partition Proceedings with respect to the said joint khewat were instituted by some of the co-sharers on November 2, 1966; and said Gurdass having failed to appear inspite of service, the final order of partition was passed on February 7, 1968. It is further stated in the plaint that the plaintiffs were the owners of the land purchased by them and were not bound by the partition proceedings which were taken without serving any notice upon them and that the said proceedings were the result of fraud and collusion between the co-sharers. The plaintiffs had also claimed that their vendor was the exclusive owner of the land in dispute which had fallen to his share by a private partition between the co-sharers. On the pleadings of the parties, the following issues were framed :-

(3.) The trial Court negatived the plea of private partition and held that the plaintiffs had become only the co-sharers by the alleged purchase. It was further held by the trial Court that the plaintiffs were not bound by the partition proceedings as no notices had been served of those proceedings on them. Issues Nos. 3 and 4 were also decided in favour of the plaintiffs and as a result their suit was decreed. Aggrieved by the said decision, Nand Singh filed an appeal and he, having died, respondent Nos. 1 to 7 were impleaded as his legal representatives. The finding of the trial Court that no private partition had been proved between the co-sharers was confirmed by the lower appellate Court. The finding of the trial Court that the partition proceedings were bad as no notices had been served on the plaintiffs was reversed and it was held that no notice was required to be served on them under Section 113 of the Punjab Land Revenue Act, 1887 (hereinafter called the Act). The learned Senior Subordinate Judge further held that the doctrine of lis pendens was applicable to the facts of the present case and the plaintiffs were, therefore, bound by the partition proceedings. The finding of the trial Court on issue No. 3 was also reversed and it was held that the suit was barred by the provisions of Section 158 of the Act. The locus standi of the plaintiffs to file the suit was not challenged before the lower appellate Court and with the above finding the judgment of the trial Court was set aside and the suit was ordered to be dismissed.