JUDGMENT P.K. Pallis, J. (Oral) The contesting defendant has filed this second appeal feeling aggrieved from the judgment and decree of reversal. Parties, herein-after in this judgment, shall be referred to as plaintiffs and "defendants. 2. Suit, out of which the present appeal has arisen, was filed by the plaintiffs seeking declaration to the effect that they along with proforma defendants No.10 to 15 are joint owners in possession to the extent of 1/2 share along with contesting defendants No. 1 to 9 in respect of the suit land. Consequential relief of permanent injunction was also prayed restraining the defendants from ousting the plaintiffs from the joint possession or claiming themselves to be exclusive owners of the suit land. 3. It is said that the predecessors-in-interest of the parties were tenants-will of the entire suit land and after their death the parties have succeeded to them and on the coming’ into force of the H.P. Tenancy and Land Reforms Act they have become owners of the suit land, but defendants No. 1 to 9 arc claiming their exclusive rights of ownership and possession on the basis of some wrong order, which they obtained in connivance with the revenue officials on review. The review order is said to be void and without jurisdiction, as the same having been passed at the back of the plaintiffs. 4. Defendants No. 1 to 9, while laying contest to the suit, have denied the allegations levelled by the plaintiffs in respect of the joint tenancy and possession of the suit land and it has been averred by them that it was the predecessor -in-incrust of defendants No. 1 to 9 alone, who was the tenant on the suit land and after his death they came in possession of the suit land to the exclusion of plaintiffs and pro form a defendants. It is further said that they have become owners of the suit land, as the proprietary rights stand validly conferred upon them by a competent authority. It was also said that defendants No. 10 to 15 had admitted the rights of the contesting defendants vide affidavit dated March 24, 1978 and nr decree could be passed in favour of the plaintiffs and proforma defendants in, that respect. 5. It was also said that defendants No. 10 to 15 had admitted the rights of the contesting defendants vide affidavit dated March 24, 1978 and nr decree could be passed in favour of the plaintiffs and proforma defendants in, that respect. 5. The learned trial Count, on appreciation of the material placed on record by the parties, recorded a finding to the affect that it is defendants No. 1 to 9 alone and prior to them their predecessor-in-interest who was in possession of the suit land, as tenant. It was also found that the plaintiffs and defendants No. 10 to 15 are not in possession of the suit land and the same is in exclusive possession of the contesting defendants. It was also held that the proprietary rights had been conferred on the contesting defendants legally and validly. In view of these findings, the suit of the plaintiffs was ordered to be dismissed with costs. 6. The judgment and decree was challenged by the plaintiffs in first appeal, which came to be heard and allowed by the learned District Judge, Una. vide impugned judgment. The s t of the plaintiff stands decreed to the effect that they along with defendant Jagan Nath are joint owners in possession of the suit land to the extent of l/3rd share. The share of the plaintiffs and that of proforma defendant Jagan Nath has been found to be I/3rd. The plaintiffs share has been declared to be 1 /6th and Jagan Nath. defendant, has also been declared to be the share- holder to the extent of l/6th. Defendants No. 1 to 9 have been further restrained from ousting the plaintiffs’ 2nd proforma defendants Jagan Nath from joint possession of the suit property. 7. While laying challenge to the impugned judgment, learned Counsel Mr. Kuldip Singh Kanwar, has first raised a preliminary objection. It is said that Jagan Nath, who was defendant No. 15 in the suit and respondent No. 14 in the appeal, died on February 5,1989. that is, during the pungency of the appeal before the learned first appellate Court. The impugned judgment is dated March 4, 1989. The argument is that since the plaintiffs never filed any application to bring on record the legal representatives of deceased defendant Jagan Nath, the defect was fatal and the suit should have been dismissed. that is, during the pungency of the appeal before the learned first appellate Court. The impugned judgment is dated March 4, 1989. The argument is that since the plaintiffs never filed any application to bring on record the legal representatives of deceased defendant Jagan Nath, the defect was fatal and the suit should have been dismissed. It is also said that defendant No. 15 was a necessary party and the decree having been passed in favour of a dead person without his legal representatives having been brought on record, is a nullity,, 8. The question would have been completely different, if the defendant had died after the arguments had concluded and before the judgment was announced. The arguments in the case were concluded on February 22,1989. as per record. The learned Counsel has also relied upon case law in support of his contention. The judgment need not be burdened with the case law sited at the bar for the view being taken herein-after in this judgment. 9. Ms. Devyani Kuthiala, learned Counsel appearing for the plaintiffs, in reply, contends that there was no question of any abatement as the death of defendant occurred on February 5, 1989 and the judgment was announced within a month thereafter. It is further said that no relief was being claimed against the said defendant, who had been impleaded only in the capacity of a proforma defendant. It’ has also been brought to my notice by Ms. Kuthiala that defendants No. 10 to 15 could not be served in the ordinary process and when all efforts had failed, their service was ordered to be effected by way of proclamation in the press. Order, dated December 24, 1982, passed by the learned trial Court in this respect has been brought to my notice. 10. These defendants did not appear even after the publication of the notice and v sre, consequently, ordered to be proceeded expert vide order dated March 29, 1983. 11. Defendant No. 15 thus, never put in his appearance to contest the suit and remained expert throughout. 12. As I look at the plaint, no relief was being claimed against proforma defendant and failure on the part of the plaintiffs to make a prayer for the substitution of the legal representatives in his place was not fatal, as is being urged by the learned Counsel for the defendant. The preliminary objection is, thus, rejected. 12. As I look at the plaint, no relief was being claimed against proforma defendant and failure on the part of the plaintiffs to make a prayer for the substitution of the legal representatives in his place was not fatal, as is being urged by the learned Counsel for the defendant. The preliminary objection is, thus, rejected. !3. Mr. Kuldip Singh Kanwar, while opening his address on merits, contends that proprietary rights were conferred on the contesting defendants by a competent authority and note in this respect finds mention in red ink in the Jamabandi of the -ear 1977-78, Ext. P.l. The plaintiffs, contends the learned Counsel, never laid challenge to the grant of proprietary rights to the defendants and impliedly under the garb of a declaratory decree challenge has been made to that order and the suit would be time barred unless the order was specifically challenged within one year from its date. 14. The learned Counsel next proceeds to submit that the defendants and earlier to them their predecessor-in-interest was in exclusive possession of the suit land as tenant and it was on that strength that he had been declared owner under the provisions of the H.P, Tenancy and Land Reforms Act, 1972 and none of the plaintiffs and proforma defendants were ever in possession of the suit land as tenants and the suit stood rightly dismissed by the learned trial Court. 15. Learned Counsel appearing for the plaintiffs, Ms. Devyani Kuthiala. in reply to the arguments advanced by Mr.Kuldip Singh Kanwar, relies on the observations made by the learned first appellate Court and further contends that there was no need to specifically challenge the order in respect of the conferment of the proprietary rights on the contesting defendants. The plaintiffs and proforma defendants were claiming their rights in the joint tenancy and ownership in respect of the suit land in proportion to their share. It is also contended that the predecessors-in-interest of the parties were, admittedly, in joint cultivating possession as tenants and oh their deaths the parties have entered possession in their own right and mutation to. The plaintiffs and proforma defendants were claiming their rights in the joint tenancy and ownership in respect of the suit land in proportion to their share. It is also contended that the predecessors-in-interest of the parties were, admittedly, in joint cultivating possession as tenants and oh their deaths the parties have entered possession in their own right and mutation to. that effect had been sanctioned in their favour, but the contesting defendants at a later stage got that .order reviewed and the entries were, consequently, changed in their favour at the back of the plaintiffs but that would not amount to the obliteration of the claim of the plaintiffs and proforma defendants from the record wherein they are required to be shown as tenants in joint possession. 16. After hearing the learned Counsel for the parties and after having gone through the impugned judgment and the record. I find that there is no merit in this appeal. 17. It may be noticed that issues No. 1 and 2, as to whether the plaintiffs and defendants No. 10 to 15 are joint owners in possession of the suit land to the extent of 1/2 share, as alleged and whether the suit in the present form is maintainable, were found against the plaintiffs, whereas, the findings on the remaining issues were recorded in their favour against the defendants, issue No.3 is in respect of limitation. Issue No.4 is in respect of jurisdiction. Issue No.5 pertains to res judicata. Issue No.7 is in respect of the non-joinder of necessary parties and issue No.7 is in respect of estoppel. It may also be noticed that the defendants never laid challenge of these issues which were found in favour of the plaintiffs and against them. It has been clearly noticed in para 6 by the learned first appellate Court that the learned Counsel appearing for them during the course of arguments did not address any argument on the findings recorded on these issues. It has been observed, "This means the defendants do not question the finding of the learned trial Court on issues No.3 to 7." 18. Once the position is accepted in the manner it has been observed by the learned first appellate Court, the learned Counsel is not correct in his submission that the suit is time-barred and that the Court has no jurisdiction to try the suit. Mr. Once the position is accepted in the manner it has been observed by the learned first appellate Court, the learned Counsel is not correct in his submission that the suit is time-barred and that the Court has no jurisdiction to try the suit. Mr. Kanwar submits that in view of the provisions contained in Section 3 of the Limitation Act the argument is open to him as twin question being urged by him are pure question of law. 19. I am not prepared to accept this argument for the reasons that the defendants never laid challenge to these findings before the learned first appellate Court and further there was no need to lay specific challenge to the order granting proprietary rights in favour of the defendants. 20. The conferment of proprietary rights in view of the provisions of the aforesaid Act was something automatic. Once it is found that the parties inherited the respective shares of their predecessors-in-interest, the order conferring proprietary rights would be deemed to be for all of them and not exclusively in favour of defendants No. 1 to 9. 21. The matter can be viewed from another angle also. The judgment of the learned first appellate Court was confirmed to only one point, which was in respect of joint ownership and possession of the parties. 22. Polo and Ganga Ram sons of one Gokul are recorded as tenant-at-will in the earlier Jamabandi available on record, Ext.D.4, of the year 1913-14. They were in actual cultivating possession of the suit land as "GAIR MA-ROOS1" tenants. Plaintiffs and proforma defendants are-the heirs and successors of Ganga Ram, whereas, defendants No. l to 9 are heirs and successors of Polo. This fact has been denied. The entries in respect of the tenancy in favour of Polo and Ganga Ram continued to be recorded continuously right from 1913-14 till the conferment of proprietary rights in view of the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act. 23. The entries comprising Jamabandi of the years 1928-29, Ext.D.5, Jamabandi of the year 1936-37, Ext.A.l, Jamabandi of the year 1944-45, Sxt.A.2, Jamabandi of the years 1962-63, Ext.A.3 and Jamabandi of the year 1972-73, Ext.D.8 can be read with advantage in this respect. 24. 23. The entries comprising Jamabandi of the years 1928-29, Ext.D.5, Jamabandi of the year 1936-37, Ext.A.l, Jamabandi of the year 1944-45, Sxt.A.2, Jamabandi of the years 1962-63, Ext.A.3 and Jamabandi of the year 1972-73, Ext.D.8 can be read with advantage in this respect. 24. Two Jamabandies of the year 1936-37 and 1944-45, which were on record of the learned trial Court, but remained un-exhibited, were also exhibited as Ext.D.6 and D.7, respectively. The predecessors-in-incest of the parties were recorded in joint cultivating possession as "GAIR MAROOS1" tenants over the entire suit land. It is further not disputed that the actual physical possession of the suit land remained with the contesting defendants and earlier of them their predecessor-in-interest. 25. The contesting defendants on the strength of the entries contained in this record-of-rights referred to above have 1/2 share in the suit land and the other half belonged to the plaintiffs and proforma defendant. 26. Defendants No. 10 to 14 cannot be found entitled to any relief whatsoever in view of the affidavit of one Ram Rakha. their predecessor-in-interest. which has been placed on record as Ext.DW-5/A. In the affidavit filed by him. it was categorically stated that contesting defendants were in actual physical possession of the suit land and he had no .objection if the land is mutated in their favour. 27. In this view of the situation, the learned first appellate Court was absolutely right in its approach to hold that defendants No. 10 to 14 cannot be granted any relief along with the plaintiffs since their right, title and interest stood relinquished by their predecessor-in-interest in favour of the contesting defendants. "8. Interestingly, it is not the case of the contesting defendants hat they have become owners on account of adverse possession. There is no plea of complete ouster of the plaintiffs and defendant No. 15 nor there is any issue framed in that respect. The plaintiffs as well as proforma defendant No. 15, Jagan Nath can safely be held as joint tenants along with the contesting defendants and would be entitled to the declaration that they are in joint possession of the suit land along with the contesting defendants. The case is not of co-sharers, but co-tenants claiming themselves in joint possession. 29. The plaintiffs as well as proforma defendant No. 15, Jagan Nath can safely be held as joint tenants along with the contesting defendants and would be entitled to the declaration that they are in joint possession of the suit land along with the contesting defendants. The case is not of co-sharers, but co-tenants claiming themselves in joint possession. 29. It is too well known that a co-owner even if found to be-in exclusive possession of the property, the same would be deemed to be held by him en behalf of all the co-owners. The same principle would apply in respect of co-sharers and co-tenants. The possession of one co-sharer means the possession of the entire body of the co-sharers. 30. Unless and until it could be established by raising a proper plea that the plaintiffs and defendant No. 15 at any point of time surrendered, abandoned or relinquished their rights of "tenancy on the suit land, the defendants not be justified claiming exclusive ownership and possession on the suit land. No such case has been pleaded least proved. 31. In a given situation if a tenant has not actually cultivated the land, it cannot be said that he ceases to be a tenant or would be deemed not in possession thereof. 32. It is really strange how the entries spreading over a period of more than half century-could be obliterated or ignored excluding the right, title and interest of the plaintiffs and defendant No. 15 Even if the defendants have been able to establish themselves to be in exclusive possession of the suit land, their possession would be deemed for themselves as well as on behalf of the plaintiffs and proforma defendant. 33. Assuming that the plaintiffs and proforma defendant No. 15 relinquished their rights of tenancy over the suit land, the question would arise as to in whose favour these rights were surrendered. Naturally the surrender would be in favour of the landowners. It is not the case of the defendants that after the plaintiffs and proforma defendant No. 15 surrendered their rights of tenancy to the land-owners, the land-owners inducted them as tenants over the suit land exclusively and fresh contract of tenancy was brought on the surface in that manner. 34. The judgment passed by the learned first appellate Court appears to be absolutely just and proper in the peculiar facts and circumstances of this case. 34. The judgment passed by the learned first appellate Court appears to be absolutely just and proper in the peculiar facts and circumstances of this case. The evidence has been properly appreciated. The appeal calls for no interference and the same is ordered to be dismissed. There shall, however, no order as to costs. -