The plaintiff must prove the ancestral nature of the property and the relationship with the defendant to claim right in ancestral property. The judgment and decree obtained in a previous suit are final and binding on the parties.

Sandeep Sharma, J.

This appeal has been filed by the appellant plaintiff against the judgment and decree dated 1.12.2006, passed by the learned District Judge, Mandi, District Mandi, H.P., affirming the judgment and decree dated 26.8.2003, passed by the learned Sub Judge Ist Class, Court No.2, Mandi, H.P., whereby the suit filed by the appellant-plaintiff has been dismissed.

2. The brief facts of the case are that the plaintiff appellant (herein after referred to as the `plaintiff’), filed a suit for declaration with consequential relief of injunction wherein he averred that the land comprised in Khata No.127 Khatauni No.134, Khasra No.943 (old) and new Khasra No.913/1, measuring 0-5-1 bigha and the land comprised in Khewat No.127/134 min, Khatauni No.913 min (old), 935/1 (new), measuring 0-4-17 bighas, situated in Mauja Ledo, District Mandi, H.P., (hereinafter referred as the “suit land”), is recorded in the ownership and possession of defendant No.2 Durga. It is alleged that the aforesaid suit property is joint Hindu coparcenary and ancestral property and plaintiff, being grandson of defendant No.2, has got right in the said property by birth. It is further alleged that on 12.12.1991, defendant No.2 has wrongly and illegally entered into an agreement to sell with defendant No.1 for the sale of the suit land, measuring 0-5-0 bigha from each of Khasra numbers for a consideration of Rs.4,000/-. The plaintiff further alleged that defendant No.1 has also obtained ex-parte decree against defendant No.2 for specific performance of contract and injunction as consequential relief with regard to the suit land vide judgment and decree dated 28.8.1998 passed in Civil Suit No.151/96(95), which is collusive, wrong, illegal and not binding on the rights of the plaintiff. It is further alleged by the plaintiff that the defendants were asked time and again to get the said agreement cancelled as well as judgment of trial Court set aside but all in vain, hence the present suit.

3. Defendant No.1, by way of written statement, raised preliminary objections on the ground of maintainability, the present suit being collusive between the plaintiff and defendant No.2 and plaintiff having no locus standi to challenge the decree dated 28.8.1998. On merits, the defendant denied the averments made in para-1 of the plaint and alleged that defendant No.2 is not owner in possession of the suit land. However, defendant No.1 admitted the factum of agreement to sell between him and defendant No.2. It was also denied that the suit land is joint Hindu Coparcenary property and plaintiff is grandson of defendant No.2. Vide averments made in para-3 of the written statement, defendant No.1 has referred to the previous judgment passed on the basis of agreement to sell between him and defendant No.2 and also made reference to the execution of sale deed by way of appointment of Commissioner on 3.7.2000, on the basis of which now he has become owner in possession of the suit property and the said decree is denied to be collusive. Rather, the present suit is alleged to be collusive. It was averred that defendant No.2 has also sold some land out of the suit land to different persons. All the other averments have been denied by defendant No.1 and prayed that the suit be dismissed.

4. Defendant No.2, as per record of the trial Court, has not filed any written statement as he was proceeded exparte.

5. The plaintiff also filed replication to the written statement filed by defendant No.1 and reiterated the allegations made in the plaint and denied those of written statement.

6. The learned trial Court, on the basis of pleadings of the parties, settled inasmuch as 7 issues and decided four issues against the plaintiff and three issues against defendant No.1 and accordingly dismissed the suit of the plaintiff. An appeal preferred before the learned Appellate Court was also dismissed.

7. This second appeal was admitted on the following substantial questions of law:

(1) Whether