Judgment :-

Dalveer Bhandari, J.

1. This appeal emanates from the judgment of the High Court of Himachal Pradesh at Shimla delivered on 26th July, 2000 in Regular Second Appeal No.75 of 1993.

2. Brief facts which are necessary to dispose of this appeal are recapitulated as under. 3. In order to properly comprehend the inter se relationship of the parties, the Genealogycal family tree is reproduced herein.

3 Parcels -Undivided | | ______________________________________________ | | | HARI RAM KHARIA DELU (Died 1954) (Living in Kaljer) (Living in Shoongra) (Living in Soonthi | till death) | | | | | JAMNI, wife, HEMCHAND (Living in Soonthi (Son) till death) | | __________________________ | | DEVUKU SANGMA (Daughter) (Daughter) died young | | __________________________________________ | | | | JEET RAM SANT RAM FULGNA DEVI VIDYAWATI (Son) (Son) (Daughter) (Daughter)

4. Admittedly, Hari Ram, Kharia and Delu were brothers and they inherited an undivided share in the two joint family properties, one situated at Chak Nani measuring 55 Bigha 2 Biswas and the other situated Chak Kaljer, measuring 103 Bigha 10 Biswas.

5. Hari Ram died in 1954 without any male issue and he was survived by his widow Jamni and daughter Debku. After the death of Hari Ram, Jamni inherited the entire share of Hari Ram in both the Chaks and consequently mutation was carried out in her name in the year 1955.

6. Jamni, wife of Hari Ram, gifted 18 Bigha 3 Biswas of land at Chak Nani in favour of Jeet Ram, her grandson (son of her daughter) vide a registered deed on 17.10.1958, leaving balance of 36 Bigha 6 Biswas of land at Chak Nani. It may be relevant to mention here that the gift deed clearly stated that she had given it to Jeet Ram and his wife because they had taken good care of her.

7. Jamni filed an application for partition of the land in Chak Kaljer against her two brothers-in-law Kharia and Delu. A compromise was arrived at between them on 13.11.1963. As per the compromise, an oral gift was made by Jamni to Hem Chand son of Kharia by which she gifted 40 Bigha 10 Biswas of land at Chak Kaljer. As per the settlement dated 4.6.1964 between the parties, Jamni received 36 Bigha 6 Biswas of land at Chak Nani. Approximately 36 Bigha of land was exchanged as per the family arrangement between the parties. Jamni and her daughter Debku were shown as the owner in possession of the Jamabandi record of rights.

8. The appellant Hari Chand Roach purchased 36 Bigha 6 Biswas of land from Jamni and Debku for a consideration of Rs.40,000/- by a registered sale deed on 22.6.1979. Rs.9,000/- was paid at the time of giving possession of the land and the balance amount of Rs.31,000/-was paid in the presence of Sub Registrar and other witnesses.

9. Kharia and Delu filed a suit on 12.7.1979 for declaration and possession and prayed that the sale deed be declared void. The Trial Court i.e. the Court of Sub Judge, 1st Class, Theog, vide its judgment dated 31.12.1987 dismissed the suit holding that Jamni and Debku had a limited interest in the estate. Against the judgment of the Trial Court, appeals were filed by both the parties before the District Judge. The learned District Judge partly allowed the appeal of the present appellant on 15.12.1992 and dismissed the appeal filed by the respondent herein. The Trial Court judgment was affirmed by the learned District Judge.

10. The learned District Judge has dealt with the aspect of family arrangement in great detail in paragraph 3 of her judgment, which reads as under: "Defendants Smt. Jamni and Debku as well as defendant Hem Chand contested the suit. Defendants Smt. Jamni and Debku in their joint written statement raised manifold preliminary objections. Firstly according to them the suit was not properly valued for purposes of court fee and jurisdiction and secondly that the plaintiffs cannot claim relief of possession without raising the necessary pleadings as the plaintiffs have no subsisting right to file the suit. In reply on merits