2026:HHC:24061 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 284 of 2008 Reserved on: 30.5.2026 Date of Decision: 23.6.2026 Purshotam Singh & ors. ...Appellants Versus Pushpa Devi ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr Atharv Sharma, Advocate. For the Respondent : Mr Ashok Sood, Senior Advocate, with Mr Rajat Rana, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 10.4.2008, passed by learned District Judge, Kangra at Dharamshala, District Kangra, H.P. (learned appellate Court) vide which the judgment and decree dated 28.2.2006, passed by 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:24061 learned Civil Judge, (Senior Division), Nurpur District Kangra, H.P. (learned Trial Court) were upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a declaration that the plaintiff is owner in joint possession of the suit land mentioned in the head note of the plaint and Sale Deed No. 583, dated 3.6.1996 executed by defendant No.2 in favour of defendant No.4, Mutation No.206 and the decree passed in Civil Suit No.257/90, dated 24.9.1991, titled Gian Singh versus Janak Singh do not bind the plaintiff. A consequential relief of Permanent Prohibitory injunction for restraining the defendant from alienating the suit land to anyone or changing its nature in any manner whatsoever was also sought. It was asserted that Rohlu, father of defendants No.1 to 3 and plaintiff’s grandfather, was a tenant of the suit land. He had four sons, Ram Chand, Gian Singh, Janak Singh, and Karnail Singh (plaintiff’s father). All of them were entitled to inherit the tenancy after the death of Rohlu. However, the defendant No.3 got his name recorded in the revenue record to the exclusion of 3 2026:HHC:24061 other sons. Defendants Nos 1 and 2 filed a Civil Suit No.257 of 1990, and they obtained a declaration that they were the owners of the suit land in equal shares. However, the name of the plaintiff’s father was not disclosed in the previous litigation. The mutation No.169 was sanctioned in favour of defendants No.1 to 3 based on a decree passed by the Court. The defendant No.2 sold 1/3 rd share of the suit land to defendant No.4. The defendant No.2 is the owner of only 1/4th share and was not entitled to sell 1/3rd share of the suit land. The defendants refused to acknowledge the plaintiff’s claim. Hence, the suit was filed to seek the relief mentioned above. 3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of locus standi, maintainability and cause of action, plaintiff not being the daughter of Karnail Singh, plaintiff being estopped by her act and conduct from filing the suit and the suit being barred by limitation. The contents of the plaint were admitted to the extent that Rohlu was the tenant of the suit land. The rest of the plaintiff’s claim was denied. It was asserted that revenue entries were not correctly recorded after the death of Rohlu. Hence, a civil suit was filed by defendants No.1 and 2, which was decreed. 4 2026:HHC:24061 Karnail Singh has resided separately from his family since 1952. He had eloped with Melo, a married woman. He went to Amritsar and was convicted of a murder case. Plaintiff was born during the incarceration of Karnail Singh. Melo was not the legally wedded wife of Karnail Singh. He returned to the village in 1954 and again left for Jallandhar and Hoshiarpur. Karnail Singh never cultivated the suit land and cannot be called a tenant. Defendant No.2 rightly alienated his share in favour of defendant No.4. Therefore, it was prayed that the suit be dismissed. 4. A replication denying the contents of the written statement and affirming those of the plaint was filed. 5. Learned Trial Court framed the following issues on 30.6.1997: - 1. Whether the plaintiff and defendants No.1 to 3 are co- owners in joint possession of the suit land, as alleged? OPP. 2. Whether the sale deed dated 3.6.1996, executed by defendant No.2 in favour of defendant No.4, is wrong, illegal and null and void? OPP. 3. Whether a decree in civil suit No. 257/90 dated 24.9.1991 in the case of Gian Singh etc. Vs. Janak Singh, is null and void? OPP. 5 2026:HHC:24061 4. Whether the plaintiff is entitled for the relief of a permanent injunction? OPP. 5. Whether the plaintiff has no locus standi? OPD. 6. Whether the suit is not maintainable in the present form? OPD. 7. Whether the suit is barred by limitation? OPD. 8. Relief. 6. The parties were called upon to produce the evidence, and the plaintiff examined herself (PW1). Defendants examined defendant No.2, Charan Singh (DW1) and Jaishi Ram (DW2). 7. Learned Trial Court dismissed the suit vide judgment and decree dated 1.9.2000. The plaintiff filed an appeal. The Appellate Court framed the following additional issues and remitted the matter to the learned Trial Court. 1(a) Whether the plaintiff is the daughter of Shri Karnail Singh, as alleged? OPP. 1(b) Whether the plaintiff is estopped by her acts and conduct from filing the present suit, as alleged? OPD. 1(c) Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD. 2(a) Whether Smt. Kehro Devi, defendant No.10, is a bona fide purchaser of a part of the suit land, as alleged. If so, its effect? OPD-10. 8. The plaintiff examined Prabhat Singh (PW2) and the defendant examined Nathu Ram (DW3). 6 2026:HHC:24061 9. Learned Trial Court held that Karnail Singh was the son of Rohlu. Plaintiff was proved to be his daughter. Mutation of inheritance should have been attested in favour of all the sons, and Karnail Singh could not have been excluded from the inheritance. Karnail Singh, or the plaintiff, was not impleaded as a party in the previous suit, and the decree passed by the Court does not bind the plaintiff. The plaintiff and defendants No.1 to 3 would be the co-owners to the extent of 1/4th share and the sale deed executed by defendant No.2 in favour of defendant No.4 and Mutation No. 206 were valid only to the extent of the share of defendant No.2. Hence learned Trial Court answered Issues No.1(a), 3 and 4 in the affirmative, Issues No.2 and 2(a) partly in affirmative, Issue No.1(b), 1(c) and 5 to 7 in negative and decreed the suit. 10. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendants filed an appeal which was decided by the learned District Judge, Kangra at Dharamshala, (learned Appellate Court). The Appellate Court concurred with the findings recorded by the learned Trial Court that the inheritance of Rohlu should have been recorded in favour of all the sons. The plaintiff was proven to be the 7 2026:HHC:24061 daughter of Karnail Singh. Karnail Singh, or the plaintiff, was not impleaded in the previous suit, and the judgment and decree would not bind the plaintiff. The plea taken by the defendants that the plaintiff was born during the incarceration of Karnail Singh was not proved by any satisfactory evidence. Learned Trial Court had rightly decreed the suit, and there is no infirmity in the judgment and decree passed by the learned Trial Court. Hence, the appeal was dismissed. 11. Being aggrieved by the judgment and decree passed by the learned Appellate Court, the defendants have filed the present appeal, which was admitted on the following substantial questions of law on 16.3.2009: - 1. Whether both the learned Courts below misread and misappreciated the document Ex. P11 and the statements of DW1 and DW2 to come to the conclusion that plaintiff is the daughter of Sh. Karnail Singh, thereby vitiating the impugned judgments and decrees? 2. Whether both the learned Courts below erred in deciding Issue No.7 qua suit being barred by time and said findings are contrary to provisions of Article 100 of the Limitation Act, thereby vitiating the impugned judgments and decrees? 3. Whether impugned judgments and decrees stand vitiated, being contrary to the judgment passed by this Hon’ble Court in 1991(1) SLC 398? 8 2026:HHC:24061 12. I have heard Mr Atharv Sharma, learned counsel for the appellants/defendants and Mr Ashok Sood, learned Senior Advocate, assisted by Mr Rajat Rana, learned counsel for the respondent. 13. Mr Atharv Sharma, learned counsel for the appellants/defendants, submitted that the learned Courts below erred in appreciating the material placed before them. Karnail Singh was aware of the pendency of the suit, but he did not take any steps for his impleadment. The suit was barred by limitation as it should have been filed within one year from the date of the judgment and decree under Article 100 of the Limitation Act. Karnail Singh never cultivated the land and could not have been recorded as the tenant. It was duly proved that Karnail Singh had not legally married Melo Devi, and the presumption of legitimacy does not apply to the present case. Therefore, he prayed that the present appeal be allowed and judgments and decrees passed by learned Courts below be set aside. He has relied upon the following judgments in support of his submissions: - (i) Sukhwinder Kaur Vs. Santosh Singh, RSA No. 272 of 2006, decided on 8.5.2026; 9 2026:HHC:24061 (ii) Babu and anr. Vs. Diwan Chand & ors. 1999 (1) Shim. L.C. 398; (iii) State of Bihar & ors. Vs. Basheshar Singh alias Sher Singh 2003 (2) SLJ 1616; 14. Mr Ashok Sood, learned Senior Advocate for the respondent, submitted that Karnail Singh or the plaintiff was not impleaded in the previous suit, and the judgment and decree do not bind the plaintiff. It was not necessary to set aside the judgment and decree to get the relief. The defendants had not disclosed the existence of Karnail Singh in the previous litigation, and the judgment and decree were obtained by fraud. This Court should not reassess the evidence while deciding the second appeal. Hence, he prayed that the present appeal be dismissed. He relied upon the following judgments in support of his submissions: - (i) Atma Ram (deceased) through his LRs Roop Ram and others Vs. Lachmi 1998 (1) Shim. L.C. 190; (ii) Bank of India Vs. Nirmala Devi and others, 1997 (1) Shim. L.C. 304; (iii) Charno Devi & ors. Vs. Dali Mal (deceased) through his LRs 1994(2) Shiml.L.C. 279; (iv) Daulat Ram & ors. Vs. State of H.P. & ors. 1979 Shim. L.C. 215; 10 2026:HHC:24061 (v) Parkasho Devi & ors. Vs. Basheshar Singh alias Sher Singh 2003(2) SLJ 1616; (vi) Ajudh Raj & ors. Vs. Moti, AIR 1991 SC 1600; and (vii) Sushima Kishandev Kaushal Vs. The Council for Tibetan Education AIR 2006 HP 122. 15. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. Substantial Question of Law No.1: 16. It was submitted that the plaintiff is not the daughter of Karnail Singh. This submission cannot be accepted. Pushpa Devi (PW1) stated that she is the daughter of Karnail Singh. This statement is corroborated by the entry in the Shajra Nasab, wherein the plaintiff is recorded to be the daughter of Karnail Singh. 17. It was submitted that the entry in the Shajra Nasab is not proof of parentage, and learned Courts below erred in relying upon such entry. This submission cannot be accepted. It was laid down by this Court in Gian Singh v. State of H.P., 1994 SCC OnLine HP 3: AIR 1996 HP 38 that Shajra Nasab is part of the record of rights. It was observed at page 63:- 11 2026:HHC:24061 “70. In other words, we have a set of documents which give the starting point on an attested account of the facts as found at a certain date, and then another set (in precisely the same form), which are continually being corrected by noting all changes occurring since the date of the initial record. The former is provided in Section 33 of the Act, and the latter in Section 34 of the same. Thus, according to Sections 32 and 34 of the Act, a standing record and an annual record must include— (1) Statement showing, so far as may be practicable, (i) the persons who are landowners, tenants, or assignees of land revenue in the estate, or who are entitled to receive any of the rents, profits, or produce of the estate or to occupy land therein; (ii) the nature and extent of the ‘interest of those persons, and the conditions and liabilities attaching thereto; and (iii) the rent, land revenue, rates, cesses, or other payment due from and to each of those persons and to the Government; (2) Such other documents as the Financial Commissioner may, with the previous sanction of the State Government, prescribe. A standing record must also comprise— (3) a statement of customs respecting rights and liabilities in the estate. (4) a map of the estate (Sections 32(2) and 34(2)). A “standing record” should contain the following documents:— (1) A preliminary proceeding. (2) A shajra kishtwar of a field map. (3) A shajra nasab or genealogical tree. (4) A jamabandi or register of the holdings of owners and tenants showing the fields 12 2026:HHC:24061 comprised in each, the revenue for which each owner is responsible, and the rent payable by each tenant. It should also show particulars about the owner and tenant as given below:— (i) In the case of the owner, the father's name, tribe or caste, got or sub-tribe, if any, and residence. (ii) In the case of the tenant or the cultivator, the father's name, tribe or caste, got or subtribe, if any, residence, and status (e.g., maurusi or ghair maurusi). (5) A list of revenue assignments and pensions. (6) A statement of rights in wells. (7) A statement of rights in irrigation, if any, from other sources. (8) A wajib-ul-arz or statement of customs respecting rights or liabilities in the estate. (9) The order of the Settlement Officer determining the assessment. (10) The order of the Settlement Officer distributing the assessment over holdings (Settlement Manual, para 285). 71. The “annual record” consists usually of (a) the jamabandi, (b) a list of revenue assignments and pensions and (c) such maps as are required to show the changes in the map of the estate that have occurred since the previous record was prepared. Jamabandi includes an amended copy of ‘shajra nasab’ also.” 18. It was laid down in Gurmel Singh v. Prem Kaur, 1969 SCC OnLine P&H 305: PLR (1970) 72 P&H 365: 1970 Cur LJ 166, that an entry in the record of rights covers the person and their relationship, and when a person is described as related to 13 2026:HHC:24061 another in the revenue record, it has to be presumed that the parties are so related unless the contrary is proved. It was observed: “6. The word “entry” as appearing in section 44 is not limited to the fact of devolution of a right, interest or liability only, but also covers in its ambit the other facts mentioned in the record-of-rights, which will include the relationship of parties as stated in such records. The presumption about the devolution or transfer of an interest in land will be meaningless without reference to the parties in whose favour such devolution or transfer has taken place. I am, therefore, of the view that it must be presumed under section 44 that a person shown in the record-of-rights as having a particular relationship with another person interested in the estate does possess that relationship unless the contrary is proved. The Courts below committed no illegality in raising the presumption that the plaintiffs were daughters of Uttami, as shown in the revenue records, and it was for the defendants to rebut that presumption, which they failed to do. 18. Therefore, the entry in the Shajra Nasab is to be taken as correct until rebutted by the evidence. 19. Charan Singh (DW1) stated in his cross-examination that he was not aware that mutation of inheritance was sanctioned in the plaintiff’s favour after the death of Karnail Singh. He admitted that the plaintiff is in possession of the land owned by Karnail Singh. He admitted that there was no other daughter except the plaintiff born to Karnail Singh. He 14 2026:HHC:24061 volunteered to say that the plaintiff is not the daughter of Karnail Singh. 20. The statement of this witness is not sufficient to rebut the presumption of correctness attached to the revenue record. He denied, for want of knowledge, that the mutation of inheritance was sanctioned in favour of the plaintiff, which is no denial at all. He admitted that the plaintiff is in possession of the estate of Karnail Singh, which corroborates the entry in the revenue record that the plaintiff had inherited Karnail Singh’s estate after his death. He admitted that the plaintiff had no other daughter except the plaintiff, but then corrected to say the plaintiff is not the daughter. These contradictory statements are hardly sufficient to rebut the presumption attached to the revenue record. 21. Jaishi Ram (DW2) admitted in his cross-examination that Karnail Singh also owned other land, and the mutation of inheritance was sanctioned in the name of his daughter, Pushpa. The statement of this witness does not show that the revenue entries are incorrect. 15 2026:HHC:24061 22. Nathu Ram (DW3) stated that the Panchayat had no record of the fact that the plaintiff is the daughter of Karnail Singh. He specifically stated in his cross-examination that he is not aware of the parentage of the plaintiff. His testimony does not prove that the plaintiff is not the daughter of Karnail Singh. 23. Prabhat Singh (PW2) admitted in his cross- examination that Karnail Singh had left the village, and he was not married at that time. He was not aware of when he was married or to whom. When he returned, Melo Devi was his wife, and the plaintiff was his daughter. Melo was the wife of the Fakiru, and she had three children. He could not say when Melo was married to Karnail Singh. 24. It was submitted that this witness admitted the defendants’ case that Melo was married to Fakiru and that she had children. The marriage with Karnail Singh was not valid without seeking a divorce from Fakiru. This submission will not help the appellants. First, it is not known whether Fakiru was alive or not at the time of the plaintiff’s birth. Secondly, the burden to prove that Melo had a valid subsisting with Fakiru on the date of the plaintiff’s birth was upon the defendants. The 16 2026:HHC:24061 defendants have not stated anything about the date of death of Fakiru. Karnail Singh and Melo resided together as husband and wife and were treated as such. Therefore, the burden was upon the defendants to lead evidence to rebut the presumption. 25. There is no other evidence to show that the plaintiff is not the daughter of Karnail Singh, and the learned Courts below had rightly held that the plaintiff was proven to be the daughter of Karnail Singh. There is no misreading or misappreciation of Shajra Nasab (Ex. P11) and statements of Charan Singh (DW1), Nathu Ram (DW2) by the learned Courts below. Hence, this substantial question of law is answered accordingly. Substantial Question of Law No.2: 26. The copy of the judgment and decree (Ex. P9 and Ex. P10) shows that a civil suit for declaration was filed by Gian Singh and Charan Singh against Jagat Singh on 22.3.1990. Karnail Singh was not added as a party in the suit. Charan Singh (DW1) admitted in his cross-examination that Karnail Singh had died on 2.8.1990, which shows that he was alive on the date of institution of the suit. Pushpa Devi was also not impleaded as a 17 2026:HHC:24061 party in the suit after the death of Karnail Singh. Section 35 of the Specific Relief Act clearly provides that a declaration is binding only on the parties to the suit, persons claiming through them and their trustees. It was laid down by the Bombay High Court in SNP Shipping Services Pvt. Ltd. v. World Tanker Carrier Corporation, 1999 SCC OnLine Bom 584: (2000) 2 Mah LJ 570 that a declaratory decree is a judgment in personam and not in rem. It was observed at page 586: “16…By virtue of section 35 of the Specific Relief Act, a declaration given under section 34 is binding only between the parties. It is a declaration in personam and not in rem. Thus, the Indian Authorities would not be bound by the declaration. It would be of no effect and thus futile…” 27. It was laid down by the Hon’ble Supreme Court in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532: 2011 SCC OnLine SC 636 that a judgment in personam binds the parties to the suit and the judgment in rem binds the whole world. It was observed at page 547: “37. It may be noticed that the cases referred to above relate to actions in rem. A right in rem is a right exercisable against the world at large, as contrasted with a right in personam, which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject matter of the case, whereas 18 2026:HHC:24061 actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. Correspondingly, a judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status, and a judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. (Vide Black's Law Dictionary.)” 28. Therefore, the judgment and decree would not bind the plaintiff. 29. Plaintiff stated in her cross-examination that she and Karnail Singh were aware of the fact that Gian Singh had filed a suit. It was submitted that the plaintiff should have impleaded herself as a party, and since she had not done so, she would be bound by the decree. This submission is only stated to be rejected. Section 35 of the Specific Relief Act clearly provides that a decree would bind only the parties, and there was no requirement for the plaintiff to get impleaded in the previous suit to be bound by the decree. She can ignore the decree as non est in view of the statutory provisions. 30. Thus, the plaintiff, being the successor of Karnail Singh, was entitled to be impleaded in the previous suit, and since she was not impleaded, the judgment and decree would not 19 2026:HHC:24061 bind her. She does not require setting aside the previous judgment and decree, and the provision of Article 100 of Limitation Act does not apply to the present case. Judgments in Sushima Kishandev Kaushal (supra), Ajudh Raj and others (supra), Prakasho Devi (supra), dealing with the limitation, do not apply to the present case. Hence, this substantial question of law is answered accordingly. Substantial Question of Law No.3: 31. No judgment has been reported in 1991(1) SLC 398. Mr Atharv Sharma, learned counsel for the appellants, submitted that there is a typographical error in the judgment referred to 1991(1) SLC 398. In the cited judgment titled Babu (supra), the plaintiff had claimed the tenancy rights, and the defendants claimed succession of the tenancy. This Court held that the defendant cannot succeed unless he proves the possession and payment of the rent. It was observed: 6. In my view even brushing aside the plea of the plaintiffs that it is not by inheritance through late Dhanu they claimed tenancy rights and instead they plead for such claim in their own right stating that they have been granted such tenancy rights, and taking it for consideration, the plea of the 1st defendant that Dhanu was at any rate alive till 19(52-63 wherein ' he was shown to be a tenant and he died, the 1st defendant cannot 20 2026:HHC:24061 succeed in his claim for an equal share along with the plaintiffs as joint tenant in the tenancy rights unless it is further shown and proved by some document that he had been really and actually in joint possession and he had been paying any amount in the shape of Galla-batai to the respective owners of the land in respect of his share. It becomes all the more necessary for the 1st defendant, in the absence of any information in the records produced by the plaintiffs, for such payment to be also on behalf of the. 1st defendant and such records conspicuously not disclosing the name of the 1st defendant in any of the receipts, as well as in the absence of any entry in the revenue records of the name of the 1st defendant as a joint tenant except under the order passed by the Assistant Collector 2nd Garde filed as Ex. DA, to produce positive material to claim substantial property rights. 32. It was held in Atma Ram (deceased) through LRs Vs. Lachmi [1998 (1) Shim. LC 190, where a father was a tenant, and there was no evidence of the termination/abandonment of the tenancy, all the legal heirs would succeed to the tenancy, and even if one person was not cultivating the land, it could not constitute an abandonment. It was observed: - 7. Admittedly, Bhima, the father of the parties, was the tenant qua the land in dispute and on his death, the parties succeeded to the tenancy rights in equal shares. Ex. P-1, Misel Haqiyat for the year 1960-61, records the parties in possession of the land in dispute in equal shares under the owners. It is also not denied that the land in dispute came to be vested in the state under Section 27 of the HP. Abolition of Big Landed Estates and Land Reforms Act, 1953. Consequently, in Ex. P-2, jamabandi for the year 1964-65, the State of HP, is recorded as the owner of the land in dispute, while the parties are shown as in 21 2026:HHC:24061 possession thereof in equal shares as non-occupancy tenants. 8. It is well settled that a tenancy can be terminated either by way of ejectment of the tenant in accordance with law or by relinquishment or abandonment by the tenant. Even a wrongful dispossession of a tenant will not determine the tenancy unless the tenant's right to possess the tenancy has come to an end under some provision of law. 9. The case put forward by the defendant is that sometime in the year 1965-66, the plaintiff, while moving to Uttar Pradesh with a view to settling there, had abandoned his tenancy rights qua the land in dispute, as a result of which the defendant became the sole tenant. The relevant pleadings in this regard are contained in para 2 of the reply on merits of the written statement of the defendant, in the following terms: - "That para No. 2 of the plaint is admitted to the extent that previously the father of the plaintiff and defendant was tenant over the suit land, and after his death, the plaintiff and defendant became tenants of the suit land. But in 1965-66, the plaintiff abandoned his right of tenancy, and the defendant became the tenant of the whole of the suit land and the owner, without any objection, accepted the rent of the suit land from the defendant, meaning thereby the owner has accepted the defendant as tenant over the whole of the suit land. And on 29-10-1966, the defendant was granted proprietary rights of the suit land, and he became the absolute owner of the same. He did deposit the compensation for the suit land also." Again, in para 3, it has been pleaded that the plaintiff left the house of Bhagani in 1965-66 after abandoning his right of tenancy of the suit land in favour of the defendant and settled in Uttar Pradesh. In the present case, no cogent evidence, oral or 22 2026:HHC:24061 documentary, has come on the record to prove abandonment of the tenancy rights on the part of the plaintiff. 10. The apex Court in M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others, AIR 1979 SC 621 has held that waiver means abandonment of a right, and it may be either express or implied from the conduct, but its basic requirement is that it must be an intentional act with knowledge. There is no waiver unless the person who is said to have waived his rights is fully informed as to his right and, with full knowledge of such right, he intentionally abandons it. The High Court of Punjab and Haryana in Kundan (deceased) represented by his L.R.S. and another v. Hah Ram, 1988 SLJ 337, following the ratio laid down by the apex court, has held that abandonment must be an intentional act with knowledge. Mere non- participation in the profits does not amount to abandonment. It was further held that it must be specifically pleaded that the person, who is said to have abandoned his right, had full knowledge with respect to his right and he intentionally had abandoned his share. 11. In the present case, what to talk of evidence, there are no pleadings that the plaintiff had full knowledge of his rights in the land in dispute and that he had intentionally abandoned such rights. Therefore, the learned first appellate court has rightly held that there has been no abandonment on the part of the plaintiff. 33. This judgment was not brought to the notice of this Court while deciding Babu (supra). Therefore, this judgment was rendered per incuriam. Hon'ble Supreme Court held in M.P. Rural Road Development Authority v. L.G. Chaudhary Engineers & Contractors, (2012) 3 SCC 495, that when a judgment is delivered 23 2026:HHC:24061 per incuriam, it loses its binding force and cannot be accepted as a precedent. It was observed: - 28. The principle of per incuriam has been very succinctly formulated by the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd. [1944 KB 718 (CA)]. Lord Greene, Master of Rolls, formulated the principles based on which a decision can be said to have been rendered “per incuriam”. The principles are: (KB p. 729) “… Where the court has construed a statute or a rule having the force of a statute, its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute, the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present in its mind. Cases of this description are examples of decisions given per incuriam.” 29. The decision in Young [1944 KB 718 (CA)] was subsequently approved by the House of Lords in Young v. Bristol Aeroplane Co. Ltd. [1946 AC 163 (HL)], AC at p. 169 of the Report. Lord Viscount Simon in the House of Lords expressed His Lordship's agreement with the views expressed by Lord Greene, the Master of Rolls, in the Court of Appeal on the principle of per incuriam (see the speech of Lord Viscount Simon in Bristol Aeroplane Co. Ltd. case [1946 AC 163 (HL)], AC at p. 169 of the Report). 30. Those principles have been followed by the Constitution Bench of this Court in Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661: (1955) 2 SCR 603] (see the discussion in SCR at pp. 622 and 623 of the Report). 24 2026:HHC:24061 31. The same principle has been reiterated by Lord Evershed, Master of Rolls, in Morelle Ld. v. Wakeling [(1955) 2 QB 379 (CA)], QB at p. 406. The principle has been stated as follows: “… As a general rule, the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding on the court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.” 32. In State of U.P. v. Synthetics and Chemicals Ltd. [(1991) 4 SCC 139] this Court held (SCC p. 162, para 40) that the doctrine of “per incuriam” in practice means “per ignoratium” and noted that the English courts have developed this principle in relaxation of the rule of stare decisis and referred to the decision in Bristol Aeroplane Co. Ltd. [1946 AC 163 (HL)] The learned Judges also made it clear that the same principle has been approved and adopted by this Court while interpreting Article 141 of the Constitution (see Synthetics and Chemicals Ltd. case [(1991) 4 SCC 139], SCC para 41). 33. In MCD v. Gurnam Kaur [(1989) 1 SCC 101], a three- judge Bench of this Court explained this principle of per incuriam very elaborately in SCC para 11 at p. 110 of the Report, and in explaining the principle of per incuriam, the learned Judges held: “11. … A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute.” 34. In para 12, the learned Judges observed as follows: (Gurnam Kaur case [(1989) 1 SCC 101], SCC p. 111) “12. … One of the chief reasons for the doctrine of precedent is that a matter that has once been fully 25 2026:HHC:24061 argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex- cathedra statement, having the weight of authority.” 35. Following the aforesaid principles, this Court is constrained to hold that the decision in Va Tech [(2011) 13 SCC 261], having been rendered per incuriam, cannot be accepted as a precedent to decide the controversy in this case. 34. Therefore, it is difficult to follow the judgment of Babu (supra), in view of the earlier binding precedent of Atma Ram (supra). 35. In the present case also, the defendants claimed that Karnail Singh was working somewhere in Punjab and he was not entitled to inherit the tenancy, which is contrary to the judgment of Atma Singh (supra), and this plea cannot be accepted. 36. The judgment in Daulat Ram (supra) deals with the automatic conferment of proprietary rights, which does not arise in the present case. The judgment in Charno (supra) deals with the succession of the tenancy by females, which is not relevant. Judgment in Bank of India (supra) deals with Contempt of Court and again is not relevant. Judgment in Radha Krishan 26 2026:HHC:24061 Singh talks about the proof of genealogy by oral evidence and is not relevant. The judgment in Sukhwinder Kaur (supra) deals with the excerpts which have not been sought in the present case; hence, none of the cited judgments applies to the present case. 37. Thus, there is no infirmity in the judgments and decrees passed by learned Courts below. Final Order: 38. In view of the above, the present appeal fails and is dismissed. 39. Pending application(s), if any, also stand(s) disposed of. 40. Records of the learned Courts below be sent down forthwith. (Rakesh Kainthla) Judge 23rd June, 2026 (Chander)