The provisions of Order 23 Rule 1 CPC do not permit the filing of a fresh suit during the pendency of the previous suit.

JUDGMENT

Amit Rawal, J. - The appellants-plaintiffs are in present regular second appeal against the concurrent findings of fact, whereby the suit claiming declaration to the effect claiming ownership in possession of the land measuring 26 kanals comprised in khata 107 khatuauni 221-222-223, Rect. No.29, Killa 4.7.14, Rect. 17 Killa 10/2 as entered in the jamabandi for the year 1981-82 and situated in village Attari, Had Bast No.151, Tehsil Gurdaspur, has been dismissed by the trial Court and affirmed by the lower Appellate Court.

2. The appellants-plaintiffs instituted the, aforementioned suit, on the premise that plaintiff Nos.1 to3, 4 to 7 and 8 to 13 are owner in possession of the land to the extent of 1/3rd shares, out of total property measuring 26 kanals situated in Village Attari, Tehsil Gurdaspur. One Santi Devi widow of Nand Lal was owner of land measuring 40 kanals 4 marals, which was sold to one Behari Lal son of Dhanpat Rai, vide sale deed dated 03.04.1945. Possession thereof was also delivered to the vendees. Surain Singh, father of the plaintiff Nos.1 to 3, instituted a suit for possession by way of pre-emption against Behari Lal, which was decreed on 24.07.1946. Decree was conditional on deposit of 2500/-, which was deposited, thus, Surain Singh became the owner of the land. Since Karnail Singh and Kartar Singh had also contributed, therefore, Surian Singh along with Karnail Singh and Kartar Singh became the owners. Surain Singh died in 1961 and was succeeded by plaintiff Nos.1 to 3. Kartar Singh died in 1963 and was succeeded by his daughters Ambo and Bhiro and widow Joginder Kaur and on their demise, plaintiff Nos.8 to 13 succeeded. Karnail Singh died in the year 1966 and plaintiff Nos.4 to 7 succeeded and in this process, all the plaintiffs, aforementioned, became owner to the extent of 1/3rd share. Dalip Singh and Harbans Singh residents of Village Maur were incorrectly entered in the revenue record as mortgagees. Defendant Nos.15 to 24 being legal heirs had no right, title and interest, whereas defendant Nos.12 to 14 were tenants of the plaintiffs and had been impleaded as proforma defendants. However, Santi incorrectly and illegally continued to be recorded as owner in the disputed land. Defendant Nos.1 to 11 asserted themselves to be legal heirs of Santi and threatened to dispossess the plaintiffs and therefore, cause of action arose to file the suit.

3. Defendant Nos.12 to 14 were proceeded ex parte and all other remaining defendants were served by way of publication, but failed to put appearance, whereas defendant Nos.1 to 11 contested the suit and admitted that Santi was owner in possession of land measuring 40 kanals 3 marals, but denied that the suit filed by Surain Singh was decreed. The factum of death of Kartar Singh, Surain Singh and Karnail Singh was not denied, but the factum of plaintiff Nos.1 to 3 being legal heirs was emphatically denied. It was averred that Santi died intestate and mutation of her land was rightly sanctioned in favour of Niranjan Dass and Gian Chand and on their demise, in favour of defendant Nos.1 to 11 being their legal heirs.

4. Since the parties were at variance, the trial Court framed the following issues:-

1. Whether Smt. Shanti sold land mentioned in para No.1 of the plaint in favour of Bihari Lal vide sale deed dated 3.4.1945? OPP

2. Whether Surain Singh father of plaintiffs No.1 to 3 preemption the sale and obtained decree? OPD

3. Whether Surain Singh deposited the pre-emption money and became owner of the land? OPP

4. Whether the land in suit was allotted in lieu of land sold by Smt. Shanti in favour of Bihar Lal? OPP

5. Whether Niranjan Dass and Gian Chand predecessor-ininterest of defendant Nos.1 to 11 inherited the land in suit from Smt. Shanti? OPD

6. Whether the suit is bad for non-joinder of necessary parties? OPD

7. Whether the suit is not within time? OPD

8. Whether the plaintiffs are entitled to declaration prayed for? OPP

8-A Whether the suit is barred u