- (1.) This regular second appeal arises out of a suit filed by respondent No. 1/plaintiff - Niranjan Singh for declaration to the effect that he is owner in possession of the land measuring 19 kanals 9 marlas, fully described in the headnote of the plaint situated in the revenue limits of village Goh, Sub Tehsil Khanna, and consequential relief of permanent injunction restraining the defendants from interfering in the possession of the plaintiff. The Court of first instance vide judgment and decree dated 18.03.1983 dismissed the suit holding that land in question is not Joint Hindu Family ancestral coparcenary property of the plaintiff and Kaka Singh (deceased). Respondent No. 1/plaintiff preferred an appeal. Learned Additional District Judge, Ludhiana, vide judgment and decree dated 08.08.1984 reversed the judgment and decree of the Court of first instance and decreed the suit of the plaintiff. Following pedigree table will illustrate the relationship of the parties:- The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal, as pleaded, are that land in dispute was owned by Kaka Singh (deceased) who was the real brother respondent No. 1/plaintiff and defendants. Plaintiff and Kaka Singh constituted Joint Hindu Family and the land in dispute is the ancestral coparcenary property. Kaka Singh died on 24.06.1973 and plaintiff being his real brother is entitled to succeed the property; as such he is in possession of the same. The mutation of inheritance, upon the death of Kaka Singh, sanctioned in favour of the plaintiff and the defendants in equal shares is null and void. Plaintiff is alone entitled to the property because Kaka Singh was not absolute owner of the property and also prayed that suit be decreed. Upon notice, defendant No. 2 did not appear despite service and was proceeded against ex parte on 04.05.1981. Defendant No. 1 contested the suit. Appellant/defendant No. 1 in her written statement raised objection that suit is barred by limitation. The limitation commenced from the date of death of Kaka Singh and not from 26.12.1974 when the mutation was sanctioned. Preliminary objection was also raised that suit is bad for non-joinder of necessary parties i.e. Nikka Singh, Major Singh, Daulat Singh and Sohan Singh and the plaintiff is estopped by his act and conduct from filing the suit as he never objected to the sanctioning of mutation. On merit it was submitted that plaintiff is entitled to only 1/3rd share in property left by Kaka Singh. Inter alia it was also pleaded that Kaka Singh was absolute owner of the property and the property was not the Joint Hindu Family ancestral coparcenary property. Other allegations in the plaint were denied.
(2.) In the replication plaintiff reiterated allegations mentioned in the plaint and denied the averments in the written statement.
(3.) On perusal of the pleadings of the parties, the Court of first instance framed following issues:- "1. Whether the suit is within limitation? OPP 2. Whether the suit is bad due to non-joinder and misjoinder of necessary parties? OPD 3. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the description of the suit land is not correctly given in the plaint, if so, its effect? OPD 6. Whether the suit land is ancestral joint Hindu coparcenary property of the plaintiff and Kaka Singh deceased? OPD 7. Whether the plaintiff is entitled to the declaration and permanent injunction prayed for? OPP 8. Relief.";