IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 229 of 1999 Date of Decision : October 27 , 2010 Lakshman …Appellant v. Dharam Chand & Ors. …Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Anand Sharma, Advocate. For respondent No.1 : Mr. Shrawan Dogra, Advocate. For respondents 2 & 6 : Mr. N. K. Sood, Advocate. Sanjay Karol, J (Oral). In this regular second appeal filed under Section 100 of the Code of Civil Procedure defendant Lakshman (appellant herein) has assailed concurrent findings of fact recorded by the Courts below. 2. The appeal was admitted on the following substantial questions of law:- “2. Whether an admission by a party in the pleading of a previous suit is binding on that party in the subsequent suit interse the same parties? 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 5. Whether the learned Courts below were right in holding that the appellant had not pleaded and proved his adverse possession ignoring the fact that in the previous suit filed in the year 1968 the defendant-appellant had already pleaded hostile animus while the present suit was filed on 23.05.1992?” 3. Facts are short. The pedigree table given herein below clarifies the relationship between the parties to the lis: 4. Plaintiff Dharam Chand (respondent No.1 herein) filed a suit for partition and possession of the land claimed to be jointly owned by him with the defendants S/Sh. Dhanpat, Laxman, Parshotam, Smt. Surmi and Smt. Chunko. Contesting defendants S/Sh. Dhanpat, Laxman & Parshotam filed common written statement claiming that land in question is exclusively owned and possessed by defendant No.2 Lakshman. Allegedly family partition took place amongst the ancestors of the parties Chuhru Bali Ram Hari Ram (dead) - Chunko (def.No.5) Sh.Siri Kanth Dharam Chand (plaintiff) Surmi (def.No.4) Dhanpat (deceased def.No.1) Laxman (def.No.2) Parshottam (def.No.3) 3 about 80 to 90 years prior to the institution of the suit on 23.5.1992. Parties were put into possession of their portions which they continued to own and possess. On the very same issue plaintiff had earlier filed a suit in which defendant Surmi accepted this position. However the said suit was dismissed in default. 5. However, defendants No. 4 & 5, Smt. Surmi and Smt. Chunko filed separate written statements supporting the plaintiff’s claim. 6. Based on the pleadings of the parties, trial Court framed the following issues: 1. Whether the parties to the suit, are joint owner in possession over the suit property/land and the plaintiff is entitled to get separated his 1/3rd share from the suit land as alleged? ….OPP 2. Whether there has been any family partition between the parties and property in Mohal Bhanota had fallen in the share of Sh. Hari Ram (father of defendant No.4 and husband of defendant No.5) and one shop situated in Mohal Rikhnali had fallen in the share of Sh. Bali (father of plaintiff) as alleged? ……OPD 1 to 3 3. Whether remaining ½ share of land in Mohal Singi and whole khata of Mohal Chamba had fallen in the share of Sh. Kanth (father of defendants No.1 to 3) in the alleged family partition about 80/90 years back? …….OPD 1 to 3 4. Whether the defendant No.2 had constructed house over the suit land allotted to him after spending huge amount to the knowledge of plaintiff and other defendants, if so, its effect, as alleged? …….OPD 1 to 3 4 5. Whether the revenue entries in respect of the suit property existing jointly in the revenue record are wrong, illegal, null and void as alleged? …….OPD 1 to 3 6. Whether the defendants No.1 to 3 has become owner of the suit land/property by way of adverse possession as alleged? …….OPD 1 to 3 7. Whether the plaintiff is estopped from filing the present suit on account of his act and conduct as alleged? ...OPD 1 to 3 8. Whether the suit of the plaintiff is time barred as alleged? …OPD 1 to 3 9. Relief. 7. Before the trial Court plaintiff essentially took three pleas: (i) that the property in question stood partitioned by way of private partition; (ii) in any event by virtue of adverse possession they have claimed title thereof and (iii) the property in question was exclusively allotted to them by the ‘Raja’ and consequently neither the plaintiff nor defendants No. 4 & 5 had any right, title or interest thereupon. 7. Considering the evidence produced on record and more particularly the depositions of S/Sh. Dharam Chand (PW- 1), Amar Nath (PW-2), Laxman (DW-1), Ram Singh (DW-2), Alla Dad Khan (DW-5), Man Singh (DW-7), Ashok Kumar (DW-8), Shankar Parshad (DW-9) and the revenue record Exts. D1/A & D2/B, trial Court came to the conclusion that parties to the litigation were joint owners and consequently plaintiff’s suit was held to be maintainable. The Court did take into account the 5 admission made by one of the defendants. Earlier suit filed by the plaintiff was dismissed under Order 9 Rule 8 CPC vide order dated 4.4.1977 (Ext.P4) Trial Court found that contesting defendants could not prove deeds of relinquishment alleged to have been executed pursuant to the original partition entered into between the ancestors of the parties. Consequently, plaintiff’s suit was decreed in the following terms :- “Net result of all the discussions made above and conclusions arrived at supra is that the instant suit succeeds and the same is, therefore, decreed. I, accordingly, pass a preliminary decree for possession by way of partition of the suit property comprised in Khata Khatouni Nos. 181/249 and 181/250, Kitas 10, measuring 2455 square yards and 4 square feet situated in Mohalla Surara, Chamba Town in favour of the plaintiff and against the defendants. The plaintiff is entitled to get his 1/3 share separated in the property in question by metes and bounds. The counter claim of the defendants No.1 to 3 being devoid of any merit is dismissed. Keeping in view the relations between the parties, they are left to bear their own costs. Decree sheet be drawn.” 8. Aggrieved of the same defendant Lakshman filed an appeal which stands dismissed in terms of judgment and decree dated 24.5.1999 passed by learned District Judge, Chamba. Findings of fact returned by the trial Court stands fully affirmed by the lower Appellate Court. 9. From Ext.DW-5/C it is apparent that defendant Smt. Surmi had fully supported the present appellant but however the 6 said suit (No. 244) was dismissed in default on 4.4.1977 (Ext.P4). 10. Importantly admission which is sought to be used by the plaintiff in the present suit was not made by him but by the contesting defendants in the previous suit. The said suit was not decided on merits. Admission was not made by the plaintiff. Therefore, question of using the admission made by a third party against the plaintiff does not arise at all. 11. Mr. Anand Sharma, learned counsel for the appellant has invited my attention to the following decisions rendered by various courts “Nathoo Lal vs. Durga Prasad (AIR 1954 SC 355), Basant Singh vs. Janki Singh & Ors. (AIR 1967 SC 341), Mohdammed Seraj vs. Adibar Rehaman Sheikh & Ors. (AIR 1968 Calcutta 550) & Ramji Dayawala & Sons (P) Ltd. vs. Invest Import (AIR 1981 SC 2085)”. 12. In my considered view, reliance on the same is misconceived. Here no admission was made by or on behalf of the plaintiff. Consequently the ratio is totally distinguishable on facts. 13. Earlier suit filed by the plaintiff was dismissed in default. There cannot be any resjudicata or estoppel from filing a subsequent suit for partition. Therefore, reliance on the decision rendered by the Apex Court in Deity Pattabhirramaswamy vs. S. Hanymayya & Ors. (AIR 1959 SC 57) is also misconceived. 7 14. Interestingly contesting defendants have been taking contradictory pleas. If the property in question already stood partitioned then where would the question of acquiring title by way of adverse possession arise. Pleas are absolutely contradictory. Law with regard to adverse possession is now well settled. There are neither any pleadings nor any legal evidence to establish the date from which the contesting defendants actually held the suit property to be hostile to the true owner. 15. Courts below have held the plaintiff to have successfully established its plea of joint ownership based on the revenue entries which continuously and uninterruptedly show the parties to be joint owners. 16. The substantial questions of law are answered accordingly. 17. The present appeal without any merit is dismissed. October 27, 2010. (Sanjay Karol) (rana) Judge.