JUDGMENT
K.C. Gupta, J.
1. This regular second appeal is directed by the appellant (plaintiff) against the judgment dated 6.11.1997 passed by the Additional District Judge, Faridkot, whereby he dismissed his appeal with costs and upheld the judgment and decree dated 12.4.1991 passed by Sub Judge, III Class, Moga, vide which his suit for declaration that he was owner in possession of the suit land along with consequential relief of permanent injunction for restraining the respondents (defendants) from alienating/transferring the suit land was dismissed.
2. Briefly stated, the facts are that Amar Singh respondent No. 8 got a money decree against Nek Singh respondent No. 2 in civil suit No. 343 dated 4.6.1982 which was decreed on 2.12.1982. In execution of that decree, the land of Nek Singh was sold in an open auction on 3.8.1985 which was purchased by the appellant. The said sale was confirmed by Sub Judge, 1st Class, Moga for Rs. 26,000/- in favour of the appellant and consequently, sale certificate dated 29.3.1986 was issued in his favour. He was put in possession of the suit land and since then he was cultivating the said land.
3. Mohinder Singh respondent No. 1 filed a partition application in the Court of A.C. 1st Grade, Moga, regarding the said land along with other land fully detailed and de- _ scribed in paragraph 2 of the plaint. Nek Singh respondent No. 2 is the son of Mohinder Singh respondent No. 1 and they filed the partition application in connivance with each other. They wanted to get the land partitioned at the back of the appellant and thereby wanted to reduce or delete his ownership. In order to defeat the evil designs of respondents No. 1 and 2, the appellant filed a civil suit for declaration that he was owner in possession of the suit land. Relief of permanent injunction for restraining respondents No. 1 and 2 from getting the suit land partitioned or alienating it, was also claimed. Respondents No. 1 and 2 contested the suit while the other respondents 3 to 11 did not appear despite service. Hence, they were proceeded against ex parte. Objections regarding jurisdiction of the court, maintainability of the suit and that the suit was time barred were taken. !t was also stated that Mohinder Singh had filed the partition application which was pending in the Court of A.C. 1st Grade Moga, since 18.8.1983. The appellant had filed an application on 29.11.1985 for being impleaded as a party in those partition proceedings but the same was dismissed. The appellant did not file any appeal against that order and as such he was not competent to file the suit. Accordingly, the following issues were framed:-
1. Whether the plaintiff is owner of land measuring 7 Kanals 7 Marias as alleged? OPP
2. If issue No. 1 is proved, whether the plaintiff is entitled to injunction prayed for? OPP
3. Whether suit in the present form is not maintainable? OPD
4. Whether this Court has no jurisdiction to entertain and try the sail? OPD
5- Whether the suit is time barred? OPD
6. Whether Mohinder Singh defendant and Nek Singh filed partition application in collusion with each other? If so, us effect? OPP
7. Relief.
4. The parties adduced their evidence. After hearing counsel for the parties, the suit of the appellant was dismissed by holding that the appellant was not proved to be the owner of the land measuring 7 kanals 7 Marias as detailed in the plaint and as such, was not entitled to the relief of permanent injunction. However, issues No. 3 and 4 were decided against the defendants. Under issue No. 5 it was held that the suit was not time barred but the issue was erroneously decided in favour of the defendants. Under issue No. 6 it was held that the defendants were entitled to get the land portioned in accordance with their shares and there was nothing to show that Mohinder Singh and Nek Singh has colluded together to effect the partition.
5. Aggrieved by the said judgment and decree, the plaintiff filed an appeal which was dismissed by the learned Addl. District Judge, Faridkot, vide judgment dated 6.11.1997.
Still aggrieved by the said judgment, the plaintiff has filed the present regular second
appeal.
6. 1 have heard Mr. Vinod Sharma, learned counsel for the appellant, Mr. S.K.S. Bedi, learned counsel for the respondents and carefully gone through the file.
7. It is an admitted fact that the appellant had purchased the suit land in a public auction as the land belonging to Nek Singh respondent No. 2 was put to auction. However, he was not the exclusive owner of the same but was joint owner in possession of the suit land. Therefore, Nek Singh could not have passed a better title than he himself possessed. Although, it is mentioned in the sale certificate that the appellant had purchased specific Khasra numbers but the Khata is still joint and he was in possession of those Khasra numbers, so, it shall be presumed that the appellant had purchased the share in the joint Khewat subject to adjustment at the time of partition between the co-sharers.
8. It may be mentioned here that Mohinder Singh had filed suit No. 391 of 13.8.91 which was decided on 18.7.1983 against Joginder Singh and others. Copy of the judgment is Ex.D1 while copy of the decree sheet is Ex.D2. It shows that Nand Singh who is father of respondent No. 1 Mohinder Singh and grand father of respondent No. 2 Nek Singh was recorded as owner to the extent of l/4th share of two Khewats i.e. Khewat No. 765 and 248 whose total area was 466 Kanals 18 Marias. He had executed a will in favour of Harnek Singh to the extent of his 1/2 share while the remaining 1/2 share in favour of Buta Singh and Sukhdev Singh sons of Hakam Singh. That will was challenged by Joginder Singh another son of Nand Singh under the Hindu law alleging the land to be ancestral property qua his sons. That suit was registered as No. 304/76 RT 336/1979 and the same was decreed on 3.10.1979. It was held Nand Singh was not competent to execute a will regarding more than his notional share. The coparceners consisted three sons of Nand Singh namely Joginder Singh, Mohinder Singh and Hakam Singh and in this way the share of Nand Singh, if partition had taken place during his life time, would have been 1/4th. In other words Nand Singh willed away his 1/4th share. Further he had 1/6th notional share in the entire Khewats and he could have willed away only 1/16th share in the whole Khewat. Thus all the three sons of Nand Singh referred above had 1/16th share each in the joint khewat. In other words the will qua the other notional shares of his three sons was ineffective and inoperative. Subsequently, suit No. 391 of 13.8.1981 was filed by Mohinder Singh alleging the said will. That suit was decreed on 18.7.1983 vide Ex.D1 and Mohinder Singh was declared to have become the owner of 1/16 share of the entire Khewat and the said will was effective only to the extent of 1/16 share of the entire Khewat. Since Harnek Singh through the will was given 1/2 share so, he could have been the owner of the suit land to the extent of 1/32th share by way of will and not 2/32th share as is shown in the copies of Jamabandis Ex.P2 and P3 for the years 1982-83 and 1983-84 respectively. Nek Singh is shown to have effected the sales of land measuring 22 kanals 6 marlas whereas he was entitled t the land only to the extent of 14 kanals 11 Marias. So, he has already sold land more than his share before the appellant purchased the suit land through public auction. Since, Nek Singh was not the owner of any land, as such he could not have passed better title than he himself possessed. There is concurrent finding of fact of the Courts below that the appellant was not the owner of the suit land. There is no illegality or perversity in the findings of the Courts below. These concurrent findings of fact cannot be disturbed in the regular second appeal. No substantial question of law is involved. Hence, this regular second appeal is dismissed.