IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 393 of 2000 Date of decision June 23, 2008. __________________________________________________________ Mohan Singh ….Appellant Versus Balak Ram ….Respondent _________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the Appellant : Shri Anuj Gupta, Advocate. For the Respondent : Shri Subhash Sharma, Advocate __________________________________________________________ Dev Darshan Sud, J. (Oral) The defendants are aggrieved by the concurrent judgments of the two Courts below decreeing the suit of the plaintiff. The appeal was admitted by this Court on 5th June, 2001 on the following substantial question of law which is reproduced as under:- “Whether the impugned judgment and decree are vitiated and liable to be set aside for not impleading one Ganpat, a legal heir of the deceased defendant Govind?” Learned counsel appearing for the appellant urges that both the Courts below were wrong in not impleading one Ganpat as legal heir of the deceased Govind. It is not disputed that during the pendency of the suit an application under Order 22 rule 4 of Code of Civil Procedure was filed by the plaintiff alleging therein that the defendant Govind died on 11.5.1990 leaving behind Hari Ram, Mohan Singh, Saju, Dhani Ram all sons of late Shri Govind and Smt. Chugi widow as the legal representatives of the 1 Whether reports of Local Papers may be allowed to see the judgment? deceased. In reply to this allegation, the defendant pleaded that the above named persons are the sons and daughters of late Shri Govind but they are not his legal heirs as he had executed a Will in favour of S/Shri Rup Lal, Mani Ram, Devi Ram and Bhagat Ram sons of Shri Hari Ram and also alleged that they have represented his estate and they are the legal representatives of deceased. Thus according to the defendant, Rup Lal, Mani Ram, Devi Ram and Bhagat Ram were necessary parties. It is undisputed that these persons as named in the case have been impleaded in the appeal as the respondents except Dhani Ram. There is no Ganpat representing the estate of the deceased. The memo of appeal shows that Bhagat Ram (actually Dhani Ram son of Govind Ram), has been impleaded as one of the appellants. I am unable to persuade myself with the substantial question of law as alleged for the determination of this Court, since there is no Ganpat as legal representative of late Shri Govind. Learned counsel appearing for the appellant then urges that as Dhani Ram being one of the legal representatives was not arrayed in the suit as well as also in the appeal, thus the suit has become defective. This contention cannot be accepted. The memo of appeal shows that Dhani Ram is also known as Bhagat Ram, appellant No.3, as asserted by the appellants themselves and he is on record before the Courts below. That apart, no objection has been taken by the appellant before the learned District Judge regarding the improper or non-representation of the estate of the deceased and the prejudice caused to the appellant if any or that case would involve passing of contradictory decree(s). This objection of non-representation could have been taken either before the trial Court as an issue or before the learned Appellate Court. The issue and plea having been abandoned both before the trial Court and the appellate Court, cannot be urged in second appeal. No factual foundation having been laid, the question framed does not arise for determination.The substantial question of law in appeal is answered against the appellant that is to say it is held that the estate of late Shri Govind is properly represented. This appeal is dismissed. There shall be no order as to cost. All interim orders shall stand vacated and all miscellaneous applications are dismissed. CMP No. 421 of 2006 This application has been moved by the respondent with a prayer that the appellant be punished as he has violated the interim orders. The allegation of the plaintiff/respondent is that orders passed by this Court on 4.4.2002 have been disobeyed by the appellant. It is alleged that the appellant, during the pendency of the appeal, has raised construction on a portion of the suit land. Prima facie, I was inclined to punish the appellant by ordering his detention in civil prison. However, since the issue of partition is involved, it is clarified that this construction shall not in under any circumstance vest any right in the appellant to claim that land in the partition proceedings or to claim ownership over the land or any land of the constructed portion. During the partition proceedings or execution proceedings or any other proceedings, it will be open to the respondent to urge for the removal or demolition of the construction carried out by the appellant. This application is disposed of accordingly. June 23, 2008 (Dev Darshan Sud), (ms) Judge