IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA 162 of 1997. Judgment Reserved on July 9, 2008. Date of decision July 15, 2008. Kashmiri Lal and others ….Appellants. Versus Sunita Verma and others ….Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellants Mr. Bimal Gupta, Advocate. For respondents 4(a) to 4 (c) Mr. G.D.Verma, Sr. Advocate, with Mr. Romesh Verma, Advocate. For respondent No. 2 Mr. S.S.Mittal, Sr. Advocate with Mr. Devraj Dev, Advocate. Dev Darshan Sud, J. (Oral). This appeal has been filed by the defendants against the concurrent findings of the two Courts below wherein a decree for declaration that the plaintiffs are owners in possession of the suit land as prayed for has been granted with 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - consequential reliefs. The plaintiffs pleaded that they along with their late father Shri Gurnam Singh constituted a joint family and that the suit property as described in the plaint was coparcenery property, Shri Gurnam Singh having inherited it from Shri Babu Ram who was a common ancestor of the plaintiffs. It was alleged that late Shri Gurnam Singh had cultivated bad habit of drinking and developed illicit relations with defendant No. 3 Smt. Prem Dassi. This led to the relations between the parties being strained. Shri Gurnam Singh started alienating coparcenery property without any legal necessity and suit No. 20-1/1975 was instituted by the plaintiffs in the Court of Sub Judge, Nahan seeking a decree of permanent prohibitory injunction against him. This suit was decreed on 30.8.1983. Shri Gurnam Singh died in the year 1986. The allegation in the plaint is that despite a subsisting decree inter partes passed by a Court of competent jurisdiction declaring the share of the plaintiffs and holding that the property was coparcenary property, Shri Gurnam Singh executed three successive Wills depriving the plaintiffs of their share in the land. - 3 - The suit was resisted on a number of grounds by the defendants – appellants. A feeble attempt was made by defendant No. 3 to plead on record that plaintiff No. 3 Smt. Bhagwanti Devi had deserted Gurnam Singh and that he had remarried the defendant as aforesaid in accordance with law. On the pleadings of the parties, the learned trial Court settled ten issues; the crucial issues for decision were whether the plaintiffs and their father late Shri Gurnam Singh constituted a joint Hindu family; whether the property was coparcenery property; whether plaintiff No. 3, namely Bhagwanti Devi, was the legally wedded wife of the deceased and whether Shri Gurnam Singh was owner of 1/4th share of land at the time of his death. These issues were decided in favour of the plaintiffs, that is to say, the deceased was held to be the Karta of the Joint Hindu Family, the property was Coparcenery Property, Smt. Bhagwanti Devi was the legally wedded wife and Shri Gurnam Singh was entitled to only 1/4th share of the estate. An appeal was preferred in the Court of learned District Judge by defendants 1 and 2 Paramjit Singh - 4 - and Smt. Prem Dassi which was dismissed. The defendants are now in appeal. This appeal was admitted on the substantial questions of law 1 to 3 as filed with the grounds of appeal which are: 1. Whether judgment, decree dated 30.8.83 in C.S. No. 20/1 of 79 will operate as res judicata in the present suit? 2. Whether suit property during the life time of Gurnam Singh was his separate property or was it coparcenery property. In case it was a coparcenery property then what share Gurnam Singh had in that property and how much property was available to Gurnam Singh at the time of making three wills dated 8.5.86. 3. Whether the property sold by Gurnam Singh during his life time is to be excluded from the share of all coparceners or from his own share only, if suit property is found to be coparcenery property? Learned counsel appearing for the defendants submits that the learned Courts below were wrong in holding that the judgment and decree - 5 - in Civil Suit No. 20-1/79 constituted resjudicata and the rights of the parties have been determined by this judgment. This argument deserves to be rejected outright. A perusal of Ex.PW-1/A shows that the suit has admittedly been filed by the plaintiffs herein against their father seeking a decree of declaration and injunction. The suit land involved in the litigation in that case is the same which is the subject matter of the present suit. The parties in that suit were the plaintiffs- respondents herein and Shri Gurnam Singh and Smt. Prem Dassi. One of the issues for trial in the suit was the determination of the status of Smt. Bhagwanti Devi and the second was as to whether the land was ancestral etc. The learned Court after holding that a valid marriage subsists between plaintiff No. 3 (Bhagwanti Devi) in the said suit and defendant No. 1 Shri Gurnam Singh, held that the suit property was ancestral property and that the plaintiffs therein (who are the plaintiffs here also) were entitled to 3/4th of the estate of late Shri Gurnam Singh. The pleadings of the parties, that is the plaint Ex.PW-4/A and the written Statements Ex.PW-3/A and Ex.DW- 5/X-1, when considered along with the judgment Ex.PW-1/A - 6 - leave no doubt in my mind that the judgment is binding on the parties herein and constitutes resjudicata as held by the learned Courts below. The appellants cannot now allow matters which have been settled to be reopened again. Questions 2 and 3 Both these points can be disposed of by holding that since the property has been held to be coparcenery property by both the Courts below, there is no misreading of evidence on the record. The learned Courts below have held that the Wills executed by Shri Gurnam Singh are not valid. The obvious consequence is that the mutation which has been attested as a consequence of the Wills was also not binding on the interests of the plaintiffs. These points are therefore, decided against the appellants. The appeal is accordingly dismissed. There shall be no order as to costs. All pending applications shall stand disposed of. July 15, 2008(PC). (Dev Darshan Sud), J.