Neutral Citation No. ( 2025:HHC:28888 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (OS)No. 24 of 2024 Reserved on 11.08.2025 Pronounced on: 27.08.2025 Kumari Simran Singh …..Appellant Vs. Brijendra Singh and others ...Respondents Coram: The Hon'ble Mr. Justice G.S. Sandhawalia, Chief Justice. The Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting? Yes For the Appellant : Mr. Neeraj Gupta, Senior Advocate with Mr. Ajeet Pal Singh Jaswal, Advocate. For the respondents: Mr. R.K. Bawa, Senior Advocate with Mr. Nitin Thakur, Advocate. G.S. Sandhawalia, Chief Justice. The present Appeal has been preferred by the plaintiff No.1/appellant herein challenging the order dated 03.10.2024, passed by the learned Single Judge passed in OMP No. 516/2023 (in Civil Suit No. 43 of 2023), whereby the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as “CPC” for short) filed by the plaintiff/appellant herein has been dismissed. 2 2. The learned Single Judge, while considering the application under Order 39 Rules 1 and 2 CPC, culled out the necessary and relevant facts from the plaint and noticed that the applicants/plaintiffs had filed a Civil Suit seeking a declaration that they have inherited the suit property from late Sh. Ajay Singh, who had acquired his right in the suit property on the basis of a Will dated 21.11.1993, executed by his father late Raja Harmahendra Singh. It has been noticed that the plea taken was that decree passed in Civil Suit No. 199 of 1995 on 01.09.2003 by learned Additional District Judge-I, Kangra, in case titled Tikka Brijendra Singh Vs. Usha Rani and others, upheld by judgment in RFA No. 271 of 2003 and RFA No. 310 of 2003, whereby the decision of the Additional District Judge was affirmed, was claimed to be a nullity and not binding on the rights of the plaintiffs. The mutation No. 297, dated 07.06.2007, stated to be based on the decree passed in Civil Suit No. 199 of 1995, showing defendant No.1 to be the owner- in-possession was stated to be wrong and illegal and the suit property had vested in the legal heirs of late Ajay Singh. 3. It was pleaded that the plaintiffs are the children of late Ajay Singh, who was the son of late Raja Harmahendra Singh. Raja Harmahendra Singh was the only son of Raja Sham Singh, who died in the year 1932 and his Jageer devolved on the State because of the abolition of Jagirdari by the 3 Government of Punjab. The entire property was given to Raja Harmahendra Singh by the Government, vide notification No. 1563/R dated 07.04.1934. The property was governed by the Rule of primogeniture as long as he was alive. The plaintiffs and proforma defendant No.6-the daughter-in-law of Raja Harmahendra Singh were stated to be residing with Late Raja Harmahendra Singh, who expired on 23.05.2000 at Dada Siba, his native village and after his death, Shri Ajay Singh, father of the plaintiffs, inherited his property. 4. It is not disputed that the defendant No.1 had filed a Civil Suit being Civil Suit No. 199 of 1995 before the Additional District Judge-1 Kangra at Dharamshala,H.P, against Raja Harmahendra Singh and Usha Rani for partition and rendition of account claiming himself to be his only son. Raja Harmahendra Singh had expired during the pendency of the suit on 23.05.2000 and after his death one W.G. Jenson a friend of late Raja Harmahendra Singh, handed over a Will after his death to Ajay Singh, which was executed in his favour and Vikram Singh. Ajay Singh had also brought this fact to the knowledge of the Court but the Court held that defendant No.1 was the son of the first wife of Raja Harmahendra Singh and he had a right to succeed to his estate. The Civil Court, Kangra at Dharamshala decreed the suit and held that Ajay Singh was not the son of late Raja Harmahendra Singh. 4 5. Apparently, Ajay Singh and defendant No.1 preferred appeals before this Court which were registered as RFA No. 271 of 2003 and RFA No. 310 of 2003, but during the pendency of the appeals, Ajay Singh also died on 15.01.2004 and after his death, defendant No.6 challenged the decree on her behalf and on behalf of the plaintiffs in the capacity of legal heirs of Ajay Singh. Since both the appeals were inter-linked, the Court connected both the appeals and decided the same by a common judgment on 25.7.2006. RFA No. 271 of 2003 was dismissed whereas RFA No. 310 of 2003 was partly allowed and the relief was modified by holding that defendants No.2 to 4 therein had settled the dispute and relinquished their share in favour of defendant No.1. 6. A Special Leave to Appeal against the aforesaid common judgment, filed by defendant No. 6 the mother of appellant before the Hon'ble Apex Court, was dismissed on 20.09.2017. A Review petition against the same was dismissed on 21.03.2018 and a Curative Petition too was dismissed on 10.01.2019. 7. However, during the pendency of the Appeal before the Apex Court, vide order dated 07.06.2007, defendant No.1 got the revenue entries recorded in his favour in term so the decree passed by the Civil Court and affirmed in RFAs, as noticed above, was challenged. It is thus averred that the 5 estate of Raja Harmahendra Singh was wrongly mutated on the basis of the said decree and a part of the suit property was acquired by the State. Defendant No.1 in the meantime withdrew some of the compensation as he was not entitled to withdraw the entire compensation. Since the suit property was also owned by the plaintiffs and proforma defendant No.6, defendant No.1 filed a Civil Suit bearing Civil Suit No. 825 of 2013, titled Tikka Brijendra Singh vs. Smt. Meenakshi Singh and others against the plaintiffs and proforma defendant No.6 challenging the registered lease deed dated 22.11.1999 and Mutation No. 173, during the pendency of appeal before the Apex Court. The matter is stated to be pending for adjudication in the Civil Court at Dehra District Kangra. The Civil Court had granted an injunction in favour of defendant No.1 and restrained the plaintiffs and proforma defendant No.6 from selling, alienating, changing the nature of the suit land during pendency of the suit. Since defendant No.1 was interfering with the suit property by taking advantage of interim order granted by the Civil Court, the Court had granted relief in the earlier suit which was not prayed for. It was thus the case of the plaintiffs that since the legal guardian their mother defendant No.6 had failed to file a suit for a declaration to protect the rights of the plaintiffs, they had preferred the Suit before the learned Single Judge. The suit being valued at Rs. 6 crores, for 6 the right and tile over the suit property, in view of the registered Will executed by late Raja Harmahendra Singh was also for their legitimate existence, seeking the relief of declaration as noticed above with a consequential relief of permanent prohibitory injunction restraining the defendants from interfering with the ownership and possession of the plaintiff and a mandatory injunction directing defendant No.6 to release the compensation amount in favour of the plaintiffs. 8. The defendant No. 1 opposed the suit by filing a written statement taking preliminary objections; that the suit is barred by the principle of res judicata, lack of a cause of action, suit being bad for non-joinder and mis-joinder of necessary parties; and the plaintiffs having concealed the material facts. It was asserted that Ajay Singh was held not to be the son of the late Raja Harmahendra Singh as per the findings recorded in the previous proceedings which were affirmed up to the Apex Court. The plaintiffs and proforma defendant No.6 did not have any right over the property of Raja Harmahendra Singh. It is pleaded that the question of Will was decided in the previous suit and could not be adjudicated in the present suit. It has been further averred that since the plaintiffs were not the parties to the settlement, they cannot question the same in the present Suit and he prayed for the dismissal of the suit. 7 9. The application under Order 39 Rules 1 and 2 CPC seeking ad-interim injunction was also opposed by the defendants/respondents. A rejoinder denying the contents of the reply and affirming those of the application was also filed. The learned Single Judge while noticing prima facie that the plaintiffs have failed to establish any right in the property of late Raja Harmahendra Singh as their predecessor Ajay Singh was not held to be the son of Raja Harmahendra Singh, and in case injunction is granted in favour of plaintiff, it is defendant No. 1 who will suffer loss as he had been held entitled to ownership of suit property by the Competent Court of law, has dismissed the application under Order 39 Rules 1 and 2 CPC, against which the instant Appeal has been filed. Reasoning by the learned Single Judge for dismissal of the application: 10. The learned Single Judge, while dismissing the application under Order 39 Rules 1 and 2 CPC, has taken into consideration undisputed facts that the Courts had held in the previous litigation that Ajay Singh, predecessor-in-interest of the plaintiffs was not the son of Raja Harmahendra Singh, the SLP filed against the judgment of this Court; the Review petition and a curative petition were also dismissed by the Hon'ble Supreme Court as noticed above. It has been observed by the learned Single Judge that the findings that Ajay Singh 8 has further pleaded that plaintiffs preferred the suit before the learned Single Judge for the right and title over the suit property in view of the registered Will executed by late Raja Harmahendra Sigh but also for their legitimate existence. The finding that Ajay Singh was not the son of late Raja Harmahendra Singh has attained finality and it was not permissible for the plaintiffs to re-agitate the said issue. They are bound by the decree passed in the previous suit and cannot take a contrary stand to the findings recorded in the previous litigation. Reliance was placed in Samir Kumar Majumder v. Union of India, 2023 SCC OnLine SC 1182 to the effect that no person can be vexed twice over the same dispute. It has been further noticed that the copies of the Will which have been filed on record would go on to show that the first Will dated 19.11.1984, is in favour of Vikram Singh Raja and Ajay Singh Raja as is the second Will dated 21.11.1993. Neither of these Wills were in favour of the plaintiffs, therefore, the plaintiffs had no independent right in the property which was capable of being protected. The suit was contested by Ajay Singh and decree was passed by learned Additional District Judge-I, Kangra at Dharamshala on 01.09.2003 against him. The plaintiffs and defendant No.6 were brought on record as his legal heirs during the pendency of the appeal before this Court which fact finds mention in para-13 of the plaint itself. 9 11. It was observed that it was noticed in the judgment in the RFAs mentioned above that an application for leading additional evidence for proving the school leaving certificate and execution of the Will was filed and it was held that the Will was executed much before the filing of the written statement. No mention of the Will was made in the written statement and the application for additional evidence was rejected. This judgment clearly showed that while late Ajay Singh had not produced any Will before the learned Additional District Judge and defendant No.6 had tried to produce the Will before this Court during the pendency of the appeal. Therefore, the submission that defendant No.6 failed to protect the interest of the plaintiff by not producing the Will, was held not to be correct. 12. The submission that the Court had granted the relief which was not prayed for and the judgment is a nullity, was not accepted by the learned Single Judge as un-disputedly, the earlier Courts had jurisdiction to decide the matter while placing reliance in Rajah Amir Hassan Khan v. Sheo Baksh Singh, 1884 SCC OnLine PC 13 that if the Court has jurisdiction to decide the matter, it has jurisdiction to decide the same rightly or wrongly, which was followed and reiterated in Ujjam Bai v State of Uttar Pradesh, AIR 1962 SC 1621. 10 13. We have heard both the learned Senior Counsels for the appellant and the respondents at length and have meticulously examined the record. Arguments of learned Senior Counsels 14. Mr. Neeraj Gupta, learned Senior Counsel for the appellant has thus contended that the learned Single Judge, in his order held that the plaintiffs have failed to establish any right in the property of late Raja Harmahendra Singh only on account of the fact that their father had been held not to be son of late Raja Harmahendra Singh and plaintiff being successor, is bound by the said findings. A reference is made to the Wills dated 19.11.1984 and 21.11.1993, that two sons, namely, Vikram Singh Raja and Ajay Singh Raja were born from Rani Bhagiavathi, who were only eight and half years and seven and half years, were entitled to the benefits of the Wills as such of the property while specifically excluding his first wife Usha d/o Maharaja Kumar Mahijit Singh of Kapurthala and her son Brijendra Singh defendant No. 1. It was submitted that the said Will was registered at Dharamshala and therefore, irrespective of the findings earlier, there was right as such on the basis of the said Will which had accrued in favour of the father of the plaintiff/appellant and which had further been 11 cemented by the second Will which had been executed at Pune on 21.11.1993, designating the Deputy Commissioner Kangra at Dharamashala as the executor of the said latest Will while canceling his earlier Will dated 31.10.1983 and supplementing the Will dated 19.11.1984. It was thus argued that there was no issue regarding the Will on the earlier round of litigation and therefore, any findings recorded as such would not bind the present plaintiffs since the earlier litigation was on different cause of action. Therefore, the learned Single Judge was not correct in declining the relief of interim injunction. 15. Mr. Gupta learned Senior Counsel also relied upon the order dated 25.04.2024, passed by another learned Single Judge to submit that the application under Order 7 Rule 11 of the CPC by defendant No. 1 had been dismissed and the order had been upheld in appeal vide order dated 17.07.2024 in FAO (OS) No. 9 of 2024 by the Co-ordinate Bench and therefore, findings of another learned Single Judge had been recorded that there was a valid and registered Will, the suit was liable to be proceeded and could not be thrown out. 16. Mr. 16. Mr. R.K. Bawa learned Senior Counsel for the respondents, on the other hand defended the said order and relied upon the fact that the predecessor-in-interest of the plaintiffs, namely, Ajay Singh, who had been arrayed as defendant in the earlier litigation, had filed a separate written 12 statement as defendant No. 8 and claimed himself to be the son of late Raja Harmahendra Singh having right to inherit the property. It is submitted that apparently during the proceedings before the Additional District Judge, Kangra at Dharamshala while referring to para 13 of the judgment, the learned Trial Court had noticed that there was a Will in his favour which had come to his notice after the death of Raja Harmahendra Singh in the year 2000. It was thus submitted that when the RFAs were decided by this Court, the then Chief Justice had dismissed the application under Order 41 Rule 27 CPC which had been filed by the mother of the plaintiffs Meenakshi Singh now defendant No. 6 to bring on record the Will executed by Raja Harmahendra Singh on the ground that it was executed before Ajay Singh had filed written statement in the Trial Court and no mention of the said fact had been made in the written statement. It is thus submitted that the said order having been upheld by the Apex Court, which was not subject matter of challenge before the Trial Court, the suit cannot be maintained once the matter had become final inter se the parties. A finding thus had been recorded that the father of the plaintiffs Ajay Singh was not the son of Raja Harmahendra Singh and therefore, the Will would be of no help, on the basis of which, now challenge is being raised. It is further submitted that defendant is son of Usha Rani the first 13 wife and defendant No. 1 had been held to be son of Raja Harmahendra Singh and grant of injunction would cause irreparable loss and harm once the parties have been in litigation from the year 1995, which had been finally culminated in dismissal of the SLP before the Apex Court on 20.09.2017. Any injunction thus would irreparably affect the rights of the successful parties for another generation and the balance of convenience was not in favour of the present appellant/plaintiff No. 1. Mr. Bawa countered the argument regarding the earlier decision of the application under Order 7 Rule 11 CPC while submitting that the parameters are totally different while deciding such applications and the written statement is also not taken into consideration. Reasons to dismiss the present appeal and to uphold the order of the learned Single Judge. 17. The argument raised by Mr. Neeraj Gupta, learned Senior Counsel, at the first blush is tempting that the suit, on the earlier occasion was a suit for partition and rendition of account; and injunction and no issue had been framed as such on the validity of the Wills in question dated 21.11.1993 and 19.11.1984 which were in favour of their father Ajay Singh. One of the Wills being registered as such, the benefit as such should be given to grant injunction as the sale of property during the pendency of the suit as such would adversely affect 14 the plaintiffs. It is thus contended that there were as many as 14 issues in the earlier litigation but none was pertaining to the validity of the Wills and therefore, the learned Single Judge was not justified as such to dismiss the application under Order 39 Rules 1 and 2 CPC. However, a close reading as such to the findings rendered by the learned Single Judge would go on to show that apparently Ajay Singh, father of the present appellant/plaintiff No. 1 had filed a separate written statement in which he did not as such put forth the case of any Wills in his favour. The written statement is dated 31.05.1999 and the Wills having been executed much prior to that in the year 1984 and 1993. The father as such thus has not fallen back on the same but it had been brought to the notice of the trial Court while marshalling the facts on 01.09.2003 that there was a Will in question which had come to his notice after the death of Raja Harmahendra Singh on 23.05.2000. 18. A perusal of the judgment of the Additional District Judge, Kangra at Dharamshala dated 01.09.2003, in which the written statement was filed by defendant No. 1 would go on to show this factum. The same reads as under: “Ajay Singh the defendant No.6, (previously defendant No.8) has filed a separate written statement. He almost reproduced the claim as put forwarded by defendant No. 1. claiming himself to be the son of Raja Harmohinder Singh and having right to inherit the property of Raja Harmohinder Singh- defendant No.1, exclusively, on the basis of will executed in 15 his favour by Raja Harmohinder Singh in the year 1993 which came to his notice after the death of Raja Harmohinder Singh in the year, 2000.” 19. The matter had been carried in two separate RFAs bearing RFA No. 271 of 2003 before this Court by the father of Ajay Singh initially in the year 2003 and even defendant No. 1 had filed a separate RFA No. 310 of 2003. The matter, as pointed out by the counsel, had been decided on 25.07.2006 in which an application under Order 41 Rule 27 CPC had been moved and an attempt had been made to lead additional evidence that there was a Will written by Raja Harmahendra Singh in favour of Ajay Singh father of the present appellant/plaintiff No. 1, which was rejected by holding as under: “At this stage 1 may also deal with the prayer of the appellant in RFA No. 271 of 2003 for permission to lead additional evidence in terms of Order 41 Rule 27, CPC. Through the medium of this prayer the appellant wants to lead additional evidence with respect to proving a so called school leaving certificate showing a discrepancy in his date of birth and the execution of a Will allegedly written by Raja Harmohindra Singh. It is claimed by the appellant that the date of birth which came to be mentioned in evidence during the trial of the suit was incorrect and that the aforesaid school leaving certificate would reveal his correct date of birth. I have perused the copy of school leaving certificate and have no hesitation in holding that it does not at all inspire confidence of this Court because it does not seem to be a genuine document. Actually, I have been told that the Institution which issued this document is under prosecution 16 for issuing forged documents. Even though I do not rely upon this assertion, I have no hesitation in holding that document actually does not look to be a genuine document and if anyone wanted to prove his date of birth with reference to an academic qualification the best mode of doing so would be to prove the Matriculation certificate issued by the Board of School Education. It is not the contention of the appellant that he did not study up to Matriculation or that the Matriculation certificate was not in his possession. In so far as the proof regarding Will is concerned, the Will had allegedly been executed much before the appellant had filed his written statement in the trial Court. Actually it had allegedly been executed even before defendant No.1 had filed his written statement in the trial Court. None of them had made a mention about this fact either in their respective written statements or otherwise during the course of the trial of the suit. For both the reasons therefore, I reject the prayer of the appellant for leading additional evidence. Since in RFA No. 271 of 2003 1 am affirming the finding of the learned trial Court, that the appellant was not the son of Raja Harmohindra Singh, and his being a son of Raja Harmohindra Singh being a sine qua non, a condition precedent to his claim, right or entitlement qua the property and estate of Raja Harmohindra Singh, I have no hesitation in holding that the appellant has no right or title at all with respect thereto and accordingly the finding to that effect returned by the learned trial Court is affirmed. RFA No. 271 of 2003 therefore, is liable to be dismissed.” 20. The judgments of the Courts below had been modified while dismissing the appeal filed by the mother of the present appellant/plaintiff No. 1 since they had been brought on record as LRs on account of death of Ajay Singh on 15.01.2004. A perusal of the above factual position would thus go on to show that it does not lie in the mouth of the appellant 17 also to plead that the interest of their father was not being protected and looked after by their mother. There is no dispute that the matter was taken up to the Apex Court by their mother Meenakshi Singh along with others by way of SLP on 20.09.2017 and thereafter Review petition was dismissed on 21.3.2018 and Curative petition was also dismissed on 10.01.2019. Thus, once the claim was on the strength of their father having a registered Will in his favour and the attempt by the father and their mother failed to bring on record the registered Will and it has been held that defendant No. 1 as such was the son of Raja Harmahendra Singh, this Court is of the opinion that grant of any injunction at this stage as such would adversely be counter productive to the interest of the defendant No.1 who has been successful in contesting the litigation from the year 1995 against the father and the mother of the present appellant/plaintiff No.1. The learned Single Judge in such circumstances has rightly declined the injunction on account of the fact that the Will had been sought to be propounded earlier but rejected and the defendant No.1 would suffer because he had been held entitled to the ownership of the property in question by the Courts in the earlier round of litigation. 21. A fall back on the order dated 25.04.2024, whereby the application for rejection of the plaint was dismissed and 18 being upheld in appeal on 17.07.2024 in FAO (OS) No. 9 of 2024 would not take the appellant a long way as the issue as such while deciding an application under Order 7 Rule 11 CPC is only whether there is any cause of action. In such circumstances, another learned Single Judge had rejected the application filed by defendant No. 1 for rejection of the plaint on the ground that there was a registered Will. At that stage, as per the settled principles, written statement was not to be taken into account and the parameters as such for deciding the application under Order 7 Rule 11 are totally different than those under Order 39 Rules 1 and 2 CPC wherein pleadings of both the sides have to be examined and the three basic principles have to be kept in mind before grating injunction. The learned Single Judge having done so, no fault as such can be found with the judgment of the learned Single Judge. 22. So viewed, the present appeal is dismissed along with miscellaneous applications, if any. (G.S. Sandhawalia) Chief Justice (Ranjan Sharma) Judge August 27, 2025. (cm Thakur)