A suit for declaration of title to land under Section 45 of the Punjab Land Revenue Act, 1887, must be filed by a person who is in possession of the land and is aggrieved by an entry in the record-of-rights or annual record.

J.V.Gupta, J.

1. The plaintiff-appellants have filed this appeal against the judgment and decree dated March 1, 1969 of the District Judge, Sangrur, whereby the decree of the trial Court dismissing their suit for obtaining declaration that they were the owners of the suit land, was maintained.

2. The land in dispute was left by Mst. Dharmo, who died somehere in the year 1984-85 B.K. (1927-28 A.D.). Under the law at that time prevailing in the erstwhile Patiala State, the land was taken to be Nazool property. Subsequently, the principles upon which the land could escheat to the State were changed and it was ordered that the land in dispute should go back to the descendants of Toga and Joga of village Sekha. Under these circumstances, the land was mutated on 11.1.1986 B.K. (1929 A.D.) by the Revenue Authorities in favour of defendants Nos. 1 to 5. The land had already been mortgaged by Mst. Dharmo, during her life time, in the year 1975 B.K. (1918 A.D.) in favour of defendants Nos. 6 to 16, who were in possession thereof. The present suit was filed on 15th May, 1965, for declaration to the effect that the plaintiffs are the owners of the suit land measuring 247 Kanals 8 Marlas according to Jamabandi, 1962-63 situated at Sekha and the said entry in the Jamabandi, on the basis of which defendants Nos. 1 to 5 and the other persons, who had been entered as the owners in the Jamabandi, is wrong and due to wrong entry it has no effect on the rights of the plaintiffs regarding the disputed land. The plaintiffs claimed rights of ownership in the land as being thulladers. The trial Court on the basis of the pleadings of the parties, framed the following issues :-

``(1) Whether the plaintiffs are the owners of the land in dispute ? O.P.

(2) If issue No. 1 is proved, whether plaintiffs are entitled to get the declaration as sought for ? O.P.

(3) Whether the suit is within time ? O.P.

(4) Whether the suit is properly valued for purposes of court-fee ? O.P.

(5) Whether the suit is bad for mis-joinder and non-joinder of necessary parties ?

The trial Court dismissed the plaintiffs suit as it came to the conclusion that the plaintiffs were not the owners of the suit land and also on the ground that they failed to prove that they were entitled to get the declaration sought for. However, on the question of limitation, the trial Court found that the suit was within time. On appeal, the learned District Judge maintained the findings of the trial Court on issues Nos. 1 and 2 and dismissed the plaintiffs appeal, but did not give any finding on issue No. 3, as to whether the suit was within time or not. Feeling aggrieved against this, the plaintiffs have filed this second appeal in this Court.

3. At the very outset, the learned counsel for the defendant-respondents raised the objection that this appeal can be disposed of on the ground of limitation alone as the suit filed on 15th May, 1965, for declaration was clearly time barred. According to the learned counsel, there was a specific issue framed by the trial Court and though the finding given thereon was in favour of the plaintiffs, but since it is a question of law, though not decided by the first appellate Court, can be taken up here in second appeal. However, the learned counsel for the plaintiff-appellants was not prepared on this question of limitation and, therefore, in order to provide him an opportunity, the case was adjourned earlier.

4. The learned counsel for the plaintiff-appellants has contended that the contesting defendent-respondents are only proforma defendants and they should not be allowed to take this plea in this appeal. According to the learned counsel, as a matter of fact they were not entitled to take any such plea and it was defendants Nos. 1 to 5, who could contest the same. In any case, it was further submitted that the trial Court decided this issue in favour of the plaintiffs and the correctness of the same was never challenged before the lower appellate Court an