V.K. Bali, J.
1. Judgment and decree passed by the learned Subordinate Judge, 1st Class, Gurdaspur, dated 7.10.1978, dismissing suit of the plaintiffs, has since been reversed by the first appellate Court, i.e., Additional District Judge, Gurdaspur vide judgment and decree dated 14.10.1981. It is this judgment of learned
first Appellate Court that has been assailed in the present Regular Second Appeal that has been filed by defendants, in the original lis.
2. Brief facts, as projected in the plaint, reveal that land measuring 15 kanals 4 mar-las was jointly owned by the plaintiffs and defendants 4 to 7. They were owners to the extent of 2/3rd and defendants 4 to 7 were owners to the extent of 1/3rd share in the joint khat. They were in possession of the suit land for the last more than 20 years. Defendants No. 4, however, sold his half share of land measuring 15 kanals 4 marlas to defendants 1 to 3. On the sale aforesaid, defendants 1 to 3 claimed ownership to the extent of 1/2 share in the suit land. It has been the case of the plaintiffs that Surat Singh defendant No. 4 was joint owner to the extent of 1/12th share in the joint Khata and as such he had no right to sell more than his share. Thus, the safe of half share of suit land in favour of defendants 1 to 3 by Surat Singh was illegal, void and ineffective and defendants 1 to 3 had no right to get possession of the said land. Plaintiffs, thus, prayed for a declaration to the effect that they were joint owners in possession of 2/3rd share of land measuring 15 kanals 4 marlas, as detailed in head note of the plaint and situated at village Saraspur, Tehsil & District Gurdaspur. They also sought a decree for permanent injunction, as a consequential relief, restraining them from interfering in their (plaintiffs’) possession.
3. Insofar as defendants 4 to 7 are concerned, they did not contest the suit. However, defendants 1 to 3 opposed the cause of plaintiffs by, inter-alia, pleading that they are bona-fide purchasers of the suit land for consideration. They also took some preliminary objections. The pleadings of the parties resulted into following issues that were framed by the learned trial Court:-
“1. Whether the plaintiffs are joint owners in possession of 2/3rd share of land
measuring 15 kanals and 4 marias? OPP
2. Whether the suit is time barred? OPD
3. Whether the suit is not properly valued for purposes of court fee and jurisdiction? OPD
4. Whether Surat Singh defendant No. 4 was the owner of the suit land to the extent of 1/12th share, if so to what effect?OPP
5. Whether defendants I to 3 have purchased 8 kanals 6 marlas of land out of the suit land from Surat Singh defendant No. 4, if so to what effect? OPD
6. Whether defendants 1 to 3 are bona fide purchasers from Surat Singh regarding the land measuring 8 kanals 6 marlas, if so to what effect? OPD.
7. Relief.
4. Under issue No. 1, trial court held that the plaintiffs were indeed joint owners in the suit land to the extent of 2/3rd share, measuring 15 kanals 4 marlas but they were held not to be in possession of any part of the suit land. Issues 2 and 3 were decided against the defendants. Under Issue No. 4, Surat Singh was held to be owner of only l/I2th share of the suit land. Under issues 5 and 6, it was held that Surat Singh, being joint’owner to the extent of one kanal and 5-1/3 marlas out of the suit land, could have held only this much area to defendants 1 to 3 and were not held to be bona fide pur-chaser.Even though such were the findings of the learned trial Court, suit was dismissed on the only ground that inasmuch as plaintiffs were not held to be in possession of the suit land, they could not maintain as suit simpliciter for declaration.
5. Aggrieved, plaintiffs filed an appeal. During the pendency of the appeal, one of the appellants, namely, Gangi died and her name was struck off from the array of parties. Bawa Singh appellant filed an application under Order 22 Rule 3 for being im-pleaded in place of Gangi on the basis of will dated 18.2.1980. Defendants denied execution of the will by Gangi in favour of Bawa Singh.Learned first Appellate Court framed the issues pertaining to aforesaid controversy and the parties led evidence. No finding was, however, given with regard to authenticity of the will as by order dated
26.8.1981 the first appellate Court held Bawa Singh to be legal representative of Smt. Gangi only for the limited purpose of prosecuting the appeal. Application for implead-ing the legal representatives of Gangi was, thus, disposed of in the manner aforesaid.
6. Naturally, before the Appellate Court, plaintiffs challenged the finings of learned trial Court on Issue No. 1 by canvassing that there was ample evidence on record to prove that they were dispossessed during the pendency of the suit and they were, as a matter of fact, in possession of 2/3rd share being owners at the time of filing the suit. That being so, they could well maintain a suit for declaration with consequential relief of injunction and in case they were dispossessed during the currency of the suit, they could not be non-suited merely on the ground that a suit for declaration simpliciter was not competent. The aforesaid contention of the plaintiffs was examined by the first appellate Court by observing as follows:-
After giving careful thoughts to the arguments of the learned counsel for the appellants, I find sufficient force in the same. Jamabandi, Ex.P1 for the year 1972-73 and Khasra Girdawaris, Ex. P2 for the years 1973 to 1977 are indicative of the fact that the appellants were owners in possession of 2/3rd share of the suit land measuring 15 kanals 4 marlas. The suit having been filed by the appellants on 20.4.1977, the relevant entiy of cultivation for consideration is Rabi 1976-77 and not the Kharif, 1977. Jamabandi, Ex. P1 further indicates that Khasra No. 24/1/1 of Rectangle No. 5 measuring 2 kanals 12 marlas was under mortgage with Surat Singh and Wassan Singh, respondents 4 and 6 and it stood redeemed vide mutation No. 989. Ex. D4 shows that there is entry regarding cultivation of the suit land in Kharif, 1977 in the name of Teja Singh. This entry corresponds to July, 1977. The suit having been filed by the appellants on 20.4.1977 and the entry regarding cultivation in the name of Teja Singh having appeared about three months thereafter, the only inference that can be drawn is that the appellants were in possession of the suit land at the time of filing the suit as continuity of possession is to be presumed. Their grievance that they have been ousted from the suit land during the pendency of the suit is thus correct. A ruling of Lahore High Court reported in Fateh Singh v. Bahab Saha and Ors., A.I.R. 1927 Lahore 28 may be referred to with advantage. It was held there as under: –
“The proviso to Section 42 that no court shall pass a declaration decree where the plaintiff being able to seek further relief than a mere declaration of title,omits to do so” refers to the position of the plaintiff at the date of the suit. Therefore, the plaintiff’s right to maintain the suit for a declaratory decree is not effected by the fact that during the pendency of the suit right to possession also has accured to the plaintiff”.
Section 34 corresponds to Section 42 of the old Specific Relief Act. Thus, the appellants being in possession of the suit land at the time of filing of the suit are entitled to the relief of declaration simpliciter.
6. It has come in evidence of Bachan Singh DW2 that he delivered the possession of the land measuring 8 kanals 6 marlas to the respondents 1 to 3.Curiously enough, Bachan Singh never came in possession of the suit land and even the revenue record does not support the possession in favour of Bachan Singh DW2. Bachan Singh DW2 claims to be in possession of land measuring 8 kanals 6 marlas on the basis of mortgage, Ex. D3. The execution of mortgage has not been proved on the record. The scribe of this document has not even been examined with a view to prove it on the record. In the absence of it, this document, Ex.D3, cannot be taken into consideration. Moreover, no documentary evidence has been brought on record to establish that Bachan Singh ever came into possession of the land measuring 8 kanals 6 marlas. Respondents 1 to 3 have proved on record the sale deeds Ex.D1 and D2 in their favour vide which they purchased 8 kanals 6 marlas of land from Surat Singh. Surat Singh was not owner beyond 1/12th share of the entire khata, which comes to 1 kanal 5-1/3 marlas and thus he had no right to transfer the land beyond his share Surat Singh had
even no right to mortgage the land measuring 8 kanals 6 marlas in favour of Bachan Singh, being more than his share in the suit land measuring 15 kanals 4 marlas”.
7. Without touching the legality and propriety of the findings extracted above, learned counsel for the appellants, however, vehemently contends that an application filed on behalf of Bawa Singh for impleading him as legal representative of Gangi ought to have been taken to its logical end particularly when defendants had alleged before the appellate court that will was an outright act of concoction and forgery. Learned Appellate Court framed the issues and parties even led their evidence but the matter was left in between and Bawa Singh impleaded as legal representative. This procedure is wholly unknown to law, further contends the learned counsel.
8. I have given my thoughtful consideration to the contention noted above.but find no force whatsoever therein. It is too well settled that impleading of legal representative is only for the purpose that estate of the deceased does not remain unrepresented. Only on the dint of being impleaded as a party, such a party does not get any right of succession. It has been specifically recorded by the learned first Appellate Court that Bawa Singh is being impleaded as party only for the purpose of continuing the appeal and not for any other purpose. The proceedings under Order 22 Rule 3 C.P.C. are summary in nature and it is reiterated that a person impleaded as legal representatives, on the dint of order passed in his favour alone, gets no right in the estate or decreased. In view of the observations that have been extracted above and, in particular, that plaintiffs were dispossessed during the currency of the suit, a decree for possession ought to have followed as it is too well established that the Court can always mould the relief in view of changed circumstances. As mentioned, above, all through plaintiffs asserted that they were in possession at the time when suit was filed and in case they have been dispossessed during the pendency of the proceedings before the Civil Court, it cannot not be said on that count alone that they had filed a suit for declaration. As mentioned above, indeed they filed a suit for declaration with consequential relief of permanent injunction. The findings recorded by the trial Court on issue No. 1 were rightly reversed by the first appellate Court.
Finding no merit in this appeal, I dismiss the same, leaving, however, the parties to
bear their own costs.
