IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.269/2024 Date of Decision: 01st July, 2025. Garib Dass .....Appellant Versus Biju and Others …..Respondents. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant: Mr. Rahul Mahajan, Advocate. For the Respondent: Mr. Rajiv Sirkeck, Advocate, for respondent No.3. Respondents No.1, 2, 4 to 7 proceeded against ex parte. Bipin Chander Negi, Judge (oral). The appellant, by filing this appeal under Section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 29.04.2024, passed by the Learned District Kinnaur, Civil Division at Rampur Bushahr, District Kinnaur, H.P., in Civil Appeal No.43 of 2023, affirming the judgment and decree dated 31.03.2023, passed by the Learned Senior Civil Judge, Rampur Bushahr, District Kinnaur, HP, in Civil Suit No.21 of 2017. 2. The appellant herein was the plaintiff before the trial Court, and the respondents herein were the defendants. The parties shall hereafter be referred to by the same status as they held before the learned trial Court. The case of the plaintiff, in brief, is that his father was the owner in possession of immovable property situated in Mauza Kehari, Tehsil 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 Kumarsain, District Shimla, and after his death, the suit property was inherited by the plaintiff along with his two brothers, namely, Paras Ram and Ganga Ram. Following the inheritance, the property was separated among all three brothers by way of a mutual family settlement. The plaintiff was allotted Khasra Nos. 31, 35, 41, 42, 44, 45, 46, 47, 48, 49, 50, and 55, while the remaining property was allotted to Paras Ram and Ganga Ram, who further divided it among themselves. After the death of Paras Ram, his immovable property was inherited by defendants No. 1 and 2, who remained at Shimla and failed to develop the property. Defendants No. 1 and 2 sold a ½ share of the property to defendant No. 3 without the knowledge or consent of the plaintiff. Defendant No. 3 subsequently got the land partitioned by the AC 1st Grade, Kumarsain. The mode of partition was challenged by the plaintiff before the Collector, Rampur Bushahr, who dismissed the appeal. The plaintiff then preferred a revision petition before the Divisional Commissioner, Shimla, which is still pending. 3. The plaintiff contends that the defendants had no right to sell the property allotted to him in the family partition. Therefore, the sale deed in respect of that land is liable to be declared null and void, and the defendants should be restrained from interfering with the plaintiff’s peaceful possession of the land so allotted. Hence, the suit was filed. 3 4. Defendants No. 1, 2, 6, and 7, despite service, chose not to contest the suit and were proceeded against ex-parte. The remaining defendants contested the suit by filing written statements. Defendant No. 3, in his written statement, raised preliminary objections regarding the plaintiff’s locus standi, estoppel, cause of action, limitation, and alleged that the plaintiff had not come to court with clean hands. It was further contended that the suit was barred by res judicata and hit by the provisions of Order 2 Rule 2 of the CPC. On merits, the family partition as alleged by the plaintiff was denied, and it was submitted that the land remained joint until it was partitioned by the AC-1st Grade, Kumarsain, on 23.09.2011. The revenue entries in favour of the plaintiff in the Jamabandi for the year 2003-04 were termed false and wrong. It was also submitted that the plaintiff had earlier filed a suit before the Civil Court in which the matter regarding family partition had already been adjudicated. In the previous suit, the plaintiff failed to incorporate the relief now sought in the present suit, and therefore, the present suit is barred by res judicata as well as under Order 2 Rule 2 CPC. On these grounds, defendant No. 3 prayed for the dismissal of the suit. 5. Defendants No. 4 and 5 filed a joint written statement raising preliminary objections regarding maintainability, locus standi, jurisdiction, cause of action, valuation, and estoppel. On merits, while admitting the family partition, they submitted that 4 the family settlement was never acted upon nor incorporated in the revenue records and prayed for the dismissal of the suit. 6. The plaintiff filed a replication reiterating the contents of the plaint and controverting the assertions made in the written statements. 7. On the pleadings of the parties, the following issues were framed on 15.07.2019: 1. Whether the sale deed dated 21.07.2007 bearing registration No.208/2007 and dated 18.02.2009 bearing registration No. 53/2009 executed by defendant No. 1 and dated 1.10.2009 bearing registration No. 280/09 executed by defendant No. 2 in regard to the suit land in favour of defendant No. 3 are wrong, illegal, null and void, as alleged? OPP. 2. If issue No. 1 above is proved in the affirmative, whether the plaintiff is the exclusive owner in possession of the suit land, as prayed for? OPP. 3. Whether the plaintiff is entitled to the consequential relief of permanent prohibitory injunction, as prayed for? OPP. 4. Whether the suit is not maintainable, as prayed for? OPD. 5. Whether the plaintiff is estopped from filing the present suit by his own act, conduct, omission, commission, etc., as alleged? OPD. 6. Whether the plaintiff has no cause of action to file and maintain the present suit against the defendants, as alleged? OPD. 7. Whether the suit is not properly valued for the purpose of court fees and jurisdiction, as alleged? OPD. 8. Whether the suit is hit by the principle of res judicata, as alleged? OPD. 9. Whether the suit is hit by the provisions of Order 2 Rule 2 of the CPC, as alleged? OPD. 10. Relief. 8. The parties led oral as well as documentary evidence before the trial Court. After considering the evidence, the learned trial Court answered issues No. 1 to 7 in the negative and issues No. 8 and 9 in the affirmative, thereby dismissing 5 the suit of the plaintiff vide judgment and decree dated 31.03.2023. 9. Aggrieved by the impugned judgment and decree, the plaintiff/appellant has preferred a first appeal. It was alleged that the impugned judgment was contrary to law and the facts of the case. The findings of the learned trial Court on issues No. 1 to 3 and 4 to 7 were erroneous and illegal and, as such, unsustainable. The trial Court misread and misinterpreted the evidence on record and wrongly dismissed the suit. The trial Court erroneously held that the plaintiff failed to prove that he is the exclusive owner in possession of the land comprised in Khasra No. 31. Further, the plaintiff averred that the trial Court decided the suit beyond the pleadings and diverted the entire case to a wrong conclusion, failing to frame proper and necessary issues, causing grave prejudice to the plaintiff. Various irregularities and illegalities were committed while passing the impugned judgment, leading to an erroneous conclusion in dismissing the suit. The first Appellate court dismissed the first appeal, therefore, the present second appeal was preferred by the plaintiff. 10. Heard counsel for the parties and perused the impugned judgments. 11. The plaintiff, Garib Dass, appeared as PW-1 and tendered his affidavit (Ex. PW-1/A) in examination-in-chief, reiterating the averments made in the plaint. However, during 6 cross-examination, he admitted that defendant No. 3, Surender Kumar, had filed a partition suit before the Tehsildar, Kumarsain, in 2010, and at that time, he was aware that defendants No. 1 and 2 had executed sale deeds in favour of defendant No. 3. The judgment in the previous suit (Ex. DW- 1/E) reveals that the plaintiff had filed that suit on 12.07.2011, whereas the sale deeds under challenge (Ex. PW-1/B and Ex. PW-1/C) were executed in 2007 and 2009. Despite being aware of these sale deeds in 2010, the plaintiff did not challenge them in the previous suit, rendering the present claim barred under Order 2 Rule 2 of the CPC. 12. On the other hand, defendant Surender Kumar appeared as DW-1 and tendered his affidavit (Ex. DW-1/A), reiterating the contents of the written statement. He also produced documents (Ex. DW-1/B to DW-1/L) in evidence. In his cross-examination, he denied the existence of any family partition between the plaintiff and the defendants, as well as the plaintiff’s claim of possessing an apple orchard on the land. He further denied allegations of collusion with revenue officials to take possession of the disputed land. DW-2, Manisha, produced the relevant rojnamcha for 2011-12, while DW-3, Hari Chand, the former Patwari of the area, testified that he had prepared the partition rojnamcha (Ex. DW-1/D) and handed over possession of the land to defendant No. 3 in the presence of the parties, though the plaintiff refused to participate. 7 13. The plaintiff’s claim of a family settlement lacks documentary support. While the Jamabandi entries (Ex. PW-1/D and Ex. PW-1/E) record separate possession of the plaintiff over certain khasra numbers, the ownership column still reflects the names of both the plaintiff and defendants as co-owners. The sale deeds executed by defendants No. 1 and 2 pertained only to their share in the joint holding, and there is no evidence to suggest that they sold more than their entitlement. The plaintiff failed to establish any binding family partition. 14. Moreover, the plaintiff had earlier filed a civil suit concerning the same land, wherein the issue of ownership and possession based on the alleged family partition was decided against him vide judgment dated 29.02.2016. His appeal against this decision was dismissed by the appellate court on 07.04.2017, with a categorical finding that no oral or mutual family partition had taken place. The land was formally partitioned by revenue authorities on 23.03.2011, and the plaintiff’s claim of exclusive ownership was rejected. The defendants No. 1 and 2 had only sold their share, and no evidence was adduced to prove that the sale exceeded their lawful portion. 15. The plaintiff subsequently filed RSA No. 253 of 2017 before the High Court, which was dismissed as withdrawn on 08.08.2017, with liberty granted to challenge the sale deeds separately. However, his admission in cross-examination that 8 he was aware of the sale deeds as early as 2010 but did not challenge them in the previous suit bars the present claim under Order 2 Rule 2 CPC. 16. Therefore, in my view, the plaintiff has failed to substantiate his case. The trial Court and the First Appellate Court have rightly dismissed the suit as well as the appeal, and no illegality or infirmity is found in their judgments. Accordingly, the findings on the issues are affirmed against the appellant. 17. In the aforesaid facts and attending circumstances, there arises no question of law, much-less a substantial question of law for consideration of the Court, therefore, the present appeal is dismissed being devoid of merit. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 01st July, 2025 (T.B/Gaurav Rawat)