Mr. Rakesh Kumar Jain, J.: - Learned counsel for the appellants has submitted that following two questions of law are involved in this appeal:-

1. Whether the Civil Court had the jurisdiction to set aside the instrument of partition affecting the rights of the minors who were not represented through their natural guardian/Court guardian?

2. Whether a suit for declaration without seeking consequential relief is maintainable?

2. The brief facts of the case are that the plaintiffs filed suit for declaration alleging that they were co-sharers in the land measuring 506 kanal 4 marlas, comprised in Khewat No.406, Khatauni No.85 to 89, situated in village Dhoka. Defendants no.1 to 7 filed an application for partition before the Assistant Collector 1st Grade, Charkhi Dadri, in which the plaintiffs, who were minors at that time, were also arrayed as respondents no.9 to 34 through their next friends, i.e. their respective fathers. The respondents in the partition application were proceeded against ex-parte including the plaintiffs as no-one appeared on their behalf after service was effected by way of proclamation. The Assistant Collector 1st Grade decided the partition application vide order dated 07.05.1982 and a mutation of partition was sanctioned on that basis.

3. The plaintiffs have challenged order dated 07.05.1982 passed by the Assistant Collector 1st Grade and all miscellaneous orders preceding thereto as illegal, null and void because they were not at all represented in the partition proceedings in which they remained ex-parte and unrepresented. The Court had not even appointed Court Guardian on their behalf.

4. The suit was contested by defendants no.1 to 7 who had filed the partition application and the remaining defendants, though represented through their counsel, but did not contest the suit. It was alleged that the suit is not maintainable and the Civil Court does not have the jurisdiction.

5. On the pleadings of the parties, following issues were framed by the Trial Court:-

“1. Whether the partition proceedings and orders dated 5.12.79, 26.12.79, 7.5.82, 11.5.82 and 19.2.1982 passed by Assistant Collector 1st Grade, Charkhi Dadri in respect of the suit land are illegal, against law, null and void and as such not binding on the rights of the plaintiffs and the proforma-defendants?OPP.

2. Whether the property still remains to be joint property of the parties, as alleged?OPP.

3. Whether the mutation No.265 on the basis of the partition is illegal, against law and not binding on the rights of the plaintiffs?OPP.

4. Whether the suit is not maintainable?OPD.

5. Whether the plaintiffs have no locus standi to file the suit?OPD.

6. Whether the Civil Court has no jurisdiction to try and entertain this suit?OPD.

7. Relief.”

6. The Trial Court, after appreciating the evidence, declared the partition proceedings and the impugned partition order as null and void and not binding upon the rights of the plaintiffs as they were wrongly proceeded against ex-parte as there was no representation on their behalf; the suit property was held to be joint amongst the parties; the mutation no.265 sanctioned on the basis of the impugned partition order was held to be a nullity and not binding on the plaintiffs; the suit was dismissed as not maintainable because the plaintiffs were entitled to the further relief of joint possession which was omitted to have been claimed; and issue no.5 was not pressed, but while deciding issue no.6, it was held that the Civil Court had no jurisdiction to decide the suit.

7. The plaintiffs’ appeal was, however, allowed by the lower Appellate Court where, at the first instance, they had assailed the finding recorded by the Trial Court about the jurisdiction of the Civil Court to try the suit. The Lower Appellate Court held that the judgment in the case of Amar Singh and another v. Ram Singh, AIR 1932 Lahore 236 is not applicable to the facts and circumstances of the present case and relied upon the judgments