AJAIB SINGH Vs. MAKHAN SINGH, ETC.

JUDGEMENT

(1.) THIS in an appeal filed by Ajaib Singh Plaintiff against the judgment dated 24th November, 1965, of Shri H.K. Mehta, Additional District Judge, Amritsar dismissing his appeal against the decree dated 5th August, 1965, of the Sub -Judge First Class, Amritsar, whereby he dismissed his suit for possession of land but left the parties to bear their own costs.

(2.) THE facts of this case are that Gurdit Singh, Dasaundha Singh, Mangal Singh and Tilok Singh, sons of Buta Singh were the owners of a vacant site bearing Khasra No. 720 old/149 new measuring 2 Kanals 2 Marlas situated in village Gohri, tehsil and district Amritsar, and they sold the same on the basis of a registered sale deed, dated 24th November, 1942, to one Ibrahim Hazi Mehtab Din. Ajaib Singh, Plaintiff, son of Dasaundha Singh vendor, Surjan Singh, son of Mangal Singh vendor, Harbans Singh, son of Tilok Singh vendor and Bua Singh and Bawa Singh, sons of Gurdit Singh vendor, filed civil suit in the year, 1946 for a declaration that the sale in suit was made without consideration and legal necessity and it would not affect their reversionary rights after the deaths of the alienors. The District Judge, Amritsar by his judgment, dated 15th November, 1947, passed a decree for declaration as prayed for in the plaint in favour of Ajaib Singh Plaintiff and others against the vendees that the sale shall not affect their reversionary rights after the deaths of the vendors. After passing of the said decree, dated 15th November, 1947, the right, title and interest in this property of Ibrahim was purchased by Banta Singh, son of Kesar Singh of their village. Banta Singh, died about two years prior to the filing of this suit and the Defendants 1 to 4 are his sons, Kartar Kaur Defendant No. 5, is his widow and Dalbir Kaur Defendant No. 6 is his daughter. Dasaundha Singh vendor, died on 5th January, 1961. Ajaib Singh Plaintiff, who is the son of Dasaundha Singh, filed suit for possession of one -fourth share of this property on the basis of the aforesaid decree. The suit was contested by the Defendants. They admitted that the decree had been passed in favour of Ajaib Singh and others. It was pleaded that Dhano and Phiono, the daughters of Dasaundha Singh are also entitled to succeed to his property and therefore, the Plaintiffs alone could not file this suit. They further pleaded that right to sue for possession of the entire property or a portion thereof will arise only for the first time on the death of all the alienors and therefore, the Plaintiff has no cause of action to file this suit. On these pleadings of the parties the following preliminary issue was framed by the trial Court:

(3.) THIS ruling is distinguishable and has no application to the facts of this case. Firstly in the instant case the shares of the alienors in the land transferred by them were definite and each of the four brothers, who alienated this land had 1/4th share in the land sold by them. Secondly the suit is not for the entire property sold by the four brothers in the year 1919 and the suit is only for 1/4th share of the disputed property which belonged to Dasaundha Singh, father of the Plaintiff, who had died. Thirdly in Raja's case (supra) the Plaintiff who had obtained the declaratory decree was found to be the heir of both the alienors. However in the instant case, the Plaintiff claims to be the sole heir of Dasaundha Singh deceased. The sons of all the other alienors were also co -Plaintiffs with him in the declaratory suit. The Plaintiffs will have no cause of action to sue for possession of any portion of the land of the other three alienors who have got children and are alive.