Regular Second Appeal No. 4548 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4548 of 2009 Date of decision : October 08, 2010 Om Parkash and others ....Appellants versus Tek Ram and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. RN Lohan, Advocate, for the appellants Mr. Amit Kumar Jain, Advocate, for respondents no. 1 to 3 L.N. Mittal, J. (Oral) This is second appeal by the plaintiffs who have been unsuccessful in both the courts below. Plaintiffs filed suit for declaration that they are owners in possession of 34 kanals 19 marlas land being 2/15th share of 264 kanals 1 marla having been purchased by the plaintiffs vide sale deed dated 21.9.1973. The plaintiffs alleged that in partition proceedings, they have been allotted lesser share in Naksha 'Be' necessitating the filing of the instant suit. Defendants no. 1 to 3 contested the suit and inter alia, pleaded that the share purchased by plaintiffs comes to 28 kanals 11 marlas only as Regular Second Appeal No. 4548 of 2009 -2- father of plaintiffs' vendor had already sold 16 kanals land which was not taken into account. Plaintiffs' case is that said 16 kanals land sold by Rulia father of the vendor of the plaintiffs had been pre-empted by one of the vendors namely Dalip Singh vide judgment and decree dated 31.3.1973 and therefore, share purchased by the plaintiffs is not effected. Learned Additional Civil Judge (Senior Division), Jind vide judgment and decree dated 28.2.2009 dismissed the suit. First appeal preferred by the plaintiffs has been dismissed by learned District Judge, Jind vide judgment and decree dated 14.9.2009 whereas cross-objections preferred by defendants no. 1 to 3 have been accepted. Feeling aggrieved, the plaintiffs have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the contesting respondents no. 1 to 3 contended that suit against defendants no. 4, 6 to 14, 16, 18, 22 and 23 was dismissed as withdrawn by the trial court vide order dated 9.4.2007 but the said defendants are also co-sharers in the total joint land and they being no longer party to the suit, the plaintiffs cannot succeed because if the suit of the plaintiffs is decreed, then share of the said co-sharers who are no longer party to the litigation would also be adversely effected. There is considerable merit in the aforesaid contention. Admittedly, suit against defendants no. 4, 6 to 14, 16, 18, 22 and 23 was dismissed as withdrawn. They are no longer party to the litigation. However, they are also co-sharers in the total joint land. If the suit is Regular Second Appeal No. 4548 of 2009 -3- decreed, interest of the said co-sharers would be adversely effected. Consequently, in their absence, suit cannot be decreed. In other words, the suit is bad for non-joinder of necessary parties as rightly held by both the courts below. There is no illegality in the said finding of the courts below. In view of the aforesaid without dwelling on the other aspects of the case, the instant second appeal is dismissed being devoid of any merit. ( L.N. Mittal ) October 08, 2010 Judge 'dalbir'