The judgment clarified the principles of identifying suit property and the binding nature of judgments in partition suits on parties involved.

Rajiv Sharma, Judge: This regular second appeal is directed against the judgment and decree dated 28.4.2009 passed by the learned Additional District Judge (2), Kangra at Dharamshala in Civil Appeal No.2-N/XIII/2004.

2. The material facts necessary for adjudication of this regular second appeal are that the appellant/plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) has instituted a suit for injunction. The case of the plaintiff is that he alongwith other co-owners is in possession of land comprised in Khata No.87 min, Khatauni No.181 min, Khasra Nos. 98/1 measuring 1 kanal 15 marlas, 98/2 measuring 4 marlas, 98/4 measuring 4 marlas, 98/6 measuring 1 kanal 2 marlas, plots 4, total land measuring 3 kanals 5 marlas, situate in Mohal Mugdial, Mauza Chhattar, Tehsil Nurpur, District Kangra, which has come to him by virtue of partition in Civil Suit No.38 of 1992 pursuant to which warrant of possession was issued on 24.5.1995 and Rapat Number 398 dated 24.5.1995 was also made. According to him, the defendants/respondents (hereinafter referred to as “the defendants” for convenience sake) are strangers and have no right, title and interest in the suit land, which was abadi.

3. Defendant No.1, Rai Singh died during the pendency of suit before the learned trial Court and his legal representatives, namely, Onkar Singh and Sansar Singh were brought on record vide order dated 10.9.1999.

4.The suit was contested by the defendants. Defendant No.1, Rai Singh (predecessor-in-interest of Onkar Singh and Sansar Singh) and defendant No.2, Rood Singh filed joint written statement. Defendant No.3, Dhian Singh also filed separate written statement. According to defendants, namely, Shri Onkar Singh, Sansar Singh and Rood Singh, they were in joint ownership and possession with plaintiff and have shown ignorance about Civil Suit No.38 of 1992 and warrant of possession. According to Dhian Singh, defendant No.3, he is owner of Abadi in his own independent right. He has further averred that he was not a party to Civil Suit No.38 of 1992 nor any warrant of possession was issued. He has residential abadi in the suit land in an area of 4 marlas.

5. The plaintiff has filed separate replications to the written statements filed by the defendants. Issues were framed on 25.6.1997. The trial Court decreed the suit of the plaintiff. One of the defendants, namely, Shri Dhian Singh filed an appeal before the learned Additional District Judge (2), Kangra at Dharamshala. The other defendants, namely, Onkar Singh, Sansar Singh and Rood Singh were also added as party besides plaintiff, Shri Jai Singh. Respondents No.2 to 4, namely, Shri Onkar Singh, Shri Sansar Singh and Shri Rood Singh were proceeded ex­parte as per orders passed by the learned Additional District Judge on 15.12.2006. The learned Additional District Judge allowed the appeal on 28.4.2009 preferred by Shri Dhian Singh. It is in these circumstances, the present appeal has been preferred by the plaintiff against the judgment and decree dated 28.4.2009 passed by the learned Additional District Judge (2), Kangra at D ha rams hal a.

6. The regular second appeal was admitted by this Court on the following substantial questions of law, on 9. 11.2010:-

1. Whether the Lower First Appellate court erred in appreciating the law applicable, pleading of the parties, evidence adduced by them in its right perspective, thus vitiates the impugned judgment and decree dated 28.04.2009? 2. Whether the impugned judgment and decree dated 28.04.2009 is vitiated being contrary to the provisions of Order 20 Rule 5 of the Code of Civil Procedure and is liable to be quashed and set-aside? 3. Whether the Lower First Appellate Court has misread and misappreciated oral statement of the parties and documentary evidence more particularly the Exhibit P-1 and P-2 and the judicial record i.e. the judgment in Civil Suit No.312/1982 and execution petition No.1/91 and Civil Suit No.38/92 and thereby vitiated the i