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2001 Supreme(HP) 66
High Court Of Himachal Pradesh
K.C.SOOD
MAN SINGH - Appellant
Versus
AMAR DAS - Respondent
R.S.A. No. 93 of 1992
Decided On : 04/30/2001
Mr G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate, for the Appellant; Mr. Dinesh Sharma and Mr. Y. Paul, Advocates, for, the Respondents.
The main legal point established in the judgment is the application of the principle of res judicata, the validity of a will, and the binding nature of revenue entries based on a cancelled mutation.
Headnote:
res judicata - Land Dispute - Code of Civil Procedure - [Section 100] - [Order 41 Rule 27] - [H.P. Tenancy and Land Reforms Act] - [Civil Suit No. 18/1] - [Mutation No. 97] - [Khasra No. 570/548/545/503] - [Suini's Will] - [Revenue Entries] - [Partition Proceedings] - [Ex-parte Decree] - [Validity of Will] - [Additional Evidence]
Fact of the Case:
The dispute involved the ownership of a land, with the plaintiff and defendants claiming joint ownership. The plaintiff sought a declaration that he and defendants were joint owners of the disputed land, except for a specific portion. The plaintiff also contested the validity of a will set up by the defendant and challenged the revenue entries and partition proceedings.
Finding of the Court:
The trial judge found in favor of the plaintiff, declaring the revenue entries showing the defendant as co-owner to be illegal and concluding that the will set up by the defendant was not valid. The District Judge upheld the finding that the defendant's claim was not valid and dismissed the defendant's appeal. The second appeal was also dismissed by the court.
Issues: The issues included the validity of revenue entries, the share of Suini in the land, the validity of Suini's will, the ownership of a specific portion of the land, the legality of partition orders, and the applicability of res judicata.
Ratio Decidendi: The court held that the ex parte decree cancelling the mutation of inheritance of the land in favor of Suini operated as res judicata, and the defendant was bound by the judgment of the previous suit. The court also found that the will set up by the defendant was not valid, and the revenue entries showing Suini as the owner were based on an illegal mutation that had been cancelled.
Final Decision: The court dismissed the appeal, finding no substantial questions of law and no grounds for interference with the findings of fact by the lower courts. The application for additional evidence was also dismissed as lacking merit.
Kuldip Chand Sood, J.—Appellant Man Singh, having lost before the trial Court and the first Appellate Court, is in second appeal under Section 100 of the Code of Civil Procedure.
2. The facts necessary for the disposal of this appeal may be noticed:
3. Subject matter of dispute is the land described fully in para 3 of the plaint, hereinafter, referred to as "disputed land". Hari Singh, Bhuria and Narainu were owners of this land to the extent of 1/ 3rd share each. Plaintiff Room Ram is son of Hari Singh whereas Man Singh is son of Liaq Ram defendant No. 2 and grand-son of Bhuria. On the death of Narainu on 4.1.1952 his share was mutated in favour of Suini as his widow. Dis-satisfied with this mutation, plaintiff Room Ram along with defendant No.l Deep Ram, (another son of Bhuria, who was deleted from the array of defendants on his death) and Liaq Ram father of defendant Man Singh filed a suit before the leaned Senior Sub Judge, Mahasu, on 24.3.1952 in terms of suit No. 18/1 of 1952. This suit was for declaration, that mutation No. 97 mutating the share of Narainu in favour of Suini was null and void and for the cancellation of that mutation. This suit was decreed exparte on 10.1.1953 by the then Senior Sub Judge, Mahasu. The mutation was declared to be cancelled. It was the case of the plaintiff and defendants that Suini was not the widow of deceased Narainu as she was released (divorced) by her husband Narainu. As a result of cancellation of the mutation of inheritance of l/3rd share of Narainu in favour of Suini, plaintiff and defendants No. 1 and 2 became the owners of the disputed land to the extent of 1/2 share each i.e. plaintiff 1/2 share, defendants Liaq Ram and Deep Ram 1/2 share (in equal shares).
4. Man Singh defendant, who is none else but son of Liaq Ram, moved an application for the partition of the disputed land before the Asstt. Collector 1st Grade on February 4, 1982 almost 30 years of the judgment of Senior Sub Judge. He claimed title to the 1/ 3rd share of Narainu, on the basis of the Will alleged to have been executed in his favour by Smt. Seuni. His case was that mutation of inheritance of the share of Narainu was attested in favour of Seuni being his widow which entry was not changed and continued in the revenue record. The plaintiff resisted the application and raised a question of title. Notwithstanding the objections of the plaintiff about the title of Man Singh on the disputed land, the application for partition was allowed by the Assistant Collector 1st Grade Kasauli on June 24, 1982 settling the mode of partition. Plaintiff aggrieved filed an appeal before the Collector, Solan Sub Division, which was dismissed on 3.1.1983. Revision before the Financial Commissioner also proved to be unsuccessful.
5. In this background, plaintiff then filed a suit, out of which the present appeal arises, for declaration to the effect that he and defendants No. 1 and 2 are joint owners of the disputed land except the land comprised in Khasra No. 570/548/545/503 measuring 23-2-5 bighas of which plaintiff claimed to be exclusive owner. The revenue entries to the contrary in favour of Suini were wrong and that she had no authority to execute any Will in respect of the disputed land in favour of Man Singh defendant No. 3 and, therefore, the orders of the revenue authorities for partition of the disputed land are null and void and not binding on the rights of the plaintiff. An injunction was also sought against the defendants restraining them from seeking partition of the land in dispute on the basis of wrong revenue entries and from alienating any part of the land or from cutting/removing any tree there from till the land in dispute is partitioned in accordance with law. Case of the plaintiff so far land comprised in Khasra No. 570/548/545/503 is concerned was that his father was tenant of this land and the plaintiff became its sole owner after coming into force of H.P. Tenancy and Land Reforms Act. So fair the Will
