R.L. Anand, J.
1. This is a defendants’ appeal and has been directed against the judgment and decree dated 11.1.1999, passed by the Addl. Distt. Judge, Muktsar, who dismissed the appeal of the appellants by affirming the judgment and decree of the trial Court who granted a declaration in favour of the plaintiff that he is the owner to the extent of 1/10th share in the suit property.
2. The brief facts of the case are that Madan Gopal, plaintiff-respondent No. 1, filed a suit for declaration to the effect that he was the owner in possession of the suit property to the extent of 1/10th share. The defendant No. 1 Des Raj had purchased the share of Sham Lal, Raj Kumar, Som Parkash and krishan Lal sons of Jagan Nath, while Shanti Devi had sold her share to Gian Chand vide sale deed dated 27.12.1988. Rama Devi, deceased, who is represented by the present appellants, had purchased the share of Amrit Lal, Dwaraki Devi and Krishan Lal, vide sale deed dated 17.9.1964. Since, the property was joint and the respondents were utilizing the mense profits of the property to the exclusion of the plaintiff, therefore, he wanted to get his share in the suit property separated by metes and bounds.
3. The suit was contested by the present appellants mainly on the ground that Des Raj, respondent, was owner to the extent of 1/10th share in the entire property. Certain preliminary objections were raised that the suit was barred under law as previously also the plaintiff had filed a civil suit against the appellants and others which was dismissed on 4.9.1990.
4. From the above small pleadings of the parties the following issues were framed by the trial court:-
“1. Whether the plaintiff is the owner in possession of 1/10th share of the property detailed in the head note of the plaint? OPP
2. If issue No. 1 is proved, whether the plaintiff is entitled to partition of 1/10th share of the constructed property? OPP
3. Whether the suit is not maintainable in the present form? OPD
4. Whether the plaintiff has no cause of action? OPD
5. Whether the defendants are entitled to recover an amount of Rs. 3,15,000/- as alleged? OPD
5A. Whether the plaintiff is liable to file ad valorem court fee on the market value of the suit property? OPP
5. The parties led evidence in support of their case and on the conclusion of the trial, the learned trial court vide the judgment and decree dated 17.1.1995, decreed the suit of the plaintiff and passed a preliminary decree in his favour and also declared that he was entitled to possession by way of partition to the extent of 1/10th share by meets and bounds.
6. Aggrieved by the judgment and decree of the trial court, the present appellants filed the first appeal before the court of the Addl. Distt. Judge,, Muktsar, who for the reasons given in para-8 of the judgment, dismissed the same. Para-8 reads as under:-
“Although in the written statement, the appellants had denied that the respondent was joint owner of the suit property, yet their stress was on the fact that Des Raj has purchased property from Sham Lal and others, sons of Jagan Nath who were in possession of the same as exclusive owners. Similarly, Gian Chand appellant had purchased property in his possession from Shanti Devi who was also in exclusive-possession on the basis of partition and arbitration award as indicated in the sale deed dated 28.8.1964 executed by Amrit Lal and Dwaraki Devi in favour of Rama Devi. Similarly, was the contention of Sant Lal, Prabhu Ram, Hans Raj and Laj Pat Rai appellant, while Anil Kumar appellant in his written statement had denied the assertions of the respondent for want of knowledge. The contention of the appellants is not true and they appeared to be intentionally denying the title of the respondents in the suit property. Madan Gopal while appearing as a witness had deposed that the suit property was previously owned by Jagan Nath and Amrit Lal his maternal uncles, Dwaraki Devi, Shanti Devi his maternal aunts and Savitri Devi his mother. After the death of his mother, he claimed to have become a co-sharer in the suit property. Ex. P1 copy of the jamabandi for the year 1974-75 supports his assertion as Munshi Mal and Jawala Mal were originally recorded as owners of the suit property which is gair-mumkin house and shop in equal shares. Jawala Mal had gifted his share in favour of Jagan Nath son of Shanti Devi in the entire property to the extent of four shares out of his half share and the remaining fifth share was gifted in favour of Madan Gopal son of Savitri Devi and Rama Devi of Sugan Ram. Share of Jagan Nath was inherited by his sons. Thus it is established that the respondent was a co-sharer/co-owner in the entire property to the extent of 1/10th share. In cross-examination of the respondent also, it was suggested that about 40/42 years back. Amrit Lal, Dawarki Devi, Shanti Devi, Savitri Devi and his mother has effected a family settlement and in accordance with arbitration award, all of them partitioned the property and in accordance with their respective shares in their occupation, they had sold away the same. It shows that the appellants had raised a specific stand that the share of the mother of the respondent had been separated in accordance with family partition and she had sold away the same. However, no evidence in this respect has been led by the appellants. Consequently, there remains no scope of doubt that the respondent was a co-sharer in the suit property to the extent of 1/10th share and as such was entitled to seek separate possession of the same by partition.”
7. Aggrieved by the judgment and decree of the courts below, the present appeal.
8. I have heard the counsel for the appellants and with his assistance have gone through the record of this case.
9. Two fold contentions were raised by the counsel for the appellants before this court; firstly, that the suit of the plaintiff was barred under Order 9 Rule 9, CPC, because of the earlier suit which was dismissed on 4.9.1990.
10. The argument is devoid of any merit. Firstly, the judgment and decree of that court has not been exhibited on the record. Secondly, this plea was never pressed by the appellants either before the trial court or before the first appellate court and for this reason, no issue was framed in this regard.
11. Secondly, it was submitted by the counsel for the appellants that the brother of the plaintiff was a party to the sale deed dated 28.8.1964 and now the sale is being challenged by the plaintiff in the year 1991 and the suit of the plaintiff is barred by limitation.
12. I do not agree with the argument of the counsel for the appellants. The suit of the plaintiff is for declaration and joint possession. In these circumstances, the plaintiff was never a party to the sale deed, therefore, it was always open to him to file a suit for declaration and partition on the question of title. It was a recurring cause of action to the plaintiff unless adverse possession is proved against him.
13. In this view of the matter, I do not differ with the judgment of the first appellate court and do not see any merit in this appeal. Dismissed.