JUDGMENT :

TARLOK SINGH CHAUHAN, J.

1. The plaintiff is the appellant, whose suit for declaration and possession was decreed by the learned trial court, however such judgment was reversed by the learned first appellate court constraining him to file the instant appeal.

The parties shall be referred to as the “plaintiff” and “defendants.”

2. The plaintiff filed a suit for declaration to the effect that the mutation No. 601 attested on 29.8.2007 on the basis of the sale deed, dated 25.8.2007, executed by defendant No. 2 late Bal Raj in favour of defendant No. 1 Daya Devi, appellant herein, to the extent of 85/243 share measuring 8-10-00 Bighas of total land measuring 24-06-00 comprised in Khata Khatauni No. 5/5 situated at Mohal Ninuien Pargana Dhundhi, Tehsil and District Chamba, HP is against the preferential right of the plaintiff and is therefore null and void and also inoperative on the rights of the plaintiff. The plaintiff also prayed for a decree of possession of land to the extent of 85/243 share, measuring 8-10-00 bighas, out of the total land measuring 24-06-00 bighas, Khata Khatauni No. 5/5, situated at Mohal Nihuien, as aforesaid.

3. It was further averred by the plaintiff that the land measuring 24-06-00 bighas, comprised in Khasra Nos. 1430, 1535, 1601, 1612, 1613, 1618, 2047/1620, 1621, 1639, 1673, 1683, 1817, 1818, Kitta-13, Khata Khatauni No. 5/5 was recorded in the name of the plaintiff and defendant No. 2 as joint owners in possession as per the jamabandi for the year 2001-2002. The suit land had devolved upon the plaintiff and defendant No. 2 upon the death of their father Late Raghu. Late Raghu had another son namely Gian Chand, who had separated from the joint family a long time ago after taking his separate share. The plaintiff further averred that defendant No. 2 had sold his share by way of a ‘Benami’ transaction to defendant No. 1 vide sale deed dated 25.8.2007 and subsequently mutation No. 601 had been entered and thus both the sale deed as well as the mutation are void as they are in violation of the pre-emptive rights of the plaintiff.

4. As per the plaintiff, the aforesaid khata of the plaintiff is still joint with defendant No. 2 and the plaintiff had a preferential right to acquire the share of defendant No. 2. The defendants were asked by the plaintiff to get both, the sale deed as well as the mutation No. 601 cancelled in the month of October 2007, but the defendants showed their reluctance and hence the suit.

5 The suit was resisted and contested by defendants No. 1 and 2 by filing joint written statement, taking preliminary objections qua non-maintainability, non-existence of cause of action, locus standi and the suit being barred by limitation. On merits, it was admitted that the suit had devolved upon defendant No. 2 and plaintiff after the death of their father Late Raghu. It was further admitted that their third brother Gian Chand had separated from the joint family after taking his separate share. However, the allegation that defendant No. 2 had sold his share by way of a ‘Benami’ transaction to defendant No. 1 vide sale deed dated 25.8.2007 has been categorically denied and the defendants stated that the defendant No. 2, being owner in possession, had every right to sell his share in the land and the plaintiff had no locus standi to challenge the sale deed or the subsequent mutation.

6. It was further averred that the sale deed as well as the mutation are both legal and defendant No. 1 is otherwise bona-fide purchaser of the land. The defendants also denied that the plaintiff had a preferential right over the land of the defendant No. 2 and stated that no such preference was ever put forth by the plaintiff to acquire share of defendant No. 2 in the land and otherwise also defendant No. 2 was under no legal obligation to sell his share to the plaintiff.

7. Replication to the written statement was filed, wherein averments made in the written statement were denied, whereas corresponding averments m