1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 326 of 2001. Judgment reserved on 27.10.2011. Date of decision: 22.11.2011. Rohani Devi. …Appellant. Versus Mansa Devi. ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellant : Mr. B.K.Malhotra, Advocate. For the Respondent : Mr. Ashok Kumar Sood, Advocate. Kuldip Singh , Judge . The defendant has come in appeal against judgment, decree dated 28.03.2001 passed by learned Additional District Judge, Mandi, in Civil Appeal No. 26 of 1995, affirming judgment, decree dated 28.01.1995 passed by learned Sub Judge Ist Class, Joginder Nagar, in Civil Suit No. 203 of 1991. 2. The fact, in brief, are that Duni Chand, husband of respondent, filed the suit against appellant,Duni Chand died during the pendency of the suit and respondent was substituted as plaintiff. The further case of the respondent is that she is owner in possession of the land comprised in Khasra No.1065/1, measuring 0-2-19 bighas, situated in Mohal Bharol, Sub-Tehsil Lad Bharol. The respondent is 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 owner in possession of suit land on the basis of judgment, decree dated 02.06.1990 and sale deed dated 30.10.1991. The appellant has no right, title or interest over the suit land. The appellant made an unsuccessful attempt to dispossess the respondent from the suit land on 08.11.1991, hence a suit for permanent prohibitory injunction. In the alternative, suit for possession in case respondent is dispossessed from the suit land. 3. The suit was contested by appellant by taking preliminary objections of maintainability, locus-standi, cause of action. On merits, ownership and possession of respondent over the suit land was denied. It has been pleaded that husband of respondent had sold the suit land to appellant and her husband for a consideration of `4,400/-. It has been alleged that appellant is owner in possession of the suit land. The replication was filed in which respondent reiterated her case. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP. 2. Whether the defendant is interfering with the possession of the plaintiff, as alleged? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiff has no locus-standi to file the present suit? OPD. 5. Whether the plaintiff has no cause of action to file the suit? OPD. 6. Whether the defendant has purchased the land in suit for a sum of `4,400/- from the husband of plaintiff No.1 and as such she is in possession of the same, as alleged? OPD. 7. Relief. 3 The issues No.1 and 2 were answered in affirmative, issues No. 3 to 6 in negative and the suit was decreed on 28.01.1995. The learned Additional District Judge while dismissing the appeal on 28.03.2001 affirmed the judgment, decree dated 28.01.1995, hence second appeal which has been admitted on following substantial question of law:- Whether the judgment in personum against another person in a suit in which the appellant or her husband is not a party can be looked into for the purpose of deciding the title in a subsequent suit filed by another person not being party to the earlier suit? 5. I have heard learned counsel for the parties and have also gone through the record. It has been submitted by learned counsel for the appellant that judgment dated 02.06.1990 Ex. P-2 in Civil Suit No. 148 of 1989 Duni Chand Versus Sher Singh is not relevant for purpose of deciding the title in a subsequent suit filed by another person not a party to the earlier suit. It has also been submitted that appellant is owner in possession of the suit land. The view taken by two Courts below does not emerge from the evidence on record. The learned counsel for the respondent has supported the impugned judgment, decree and has submitted that the two courts below have recorded a finding of fact that respondent is owner in possession of the suit land and appellant is interfering in the possession of the respondent over the suit land. It has been submitted that the findings recorded by the two Courts below are in accordance with the evidence on record and, therefore, no interference is called for in the second appeal. The prayer 4 has been made for dismissal of the appeal. 6. Duni Chand, husband of the respondent, filed Civil Suit No. 148 of 1989 against Sher Singh. This suit was decreed by Sub Judge Ist Class, Joginder Nagar, on 02.06.1990, copy of judgment is Ex. P-2. It has been held in Ex. P-2 that the defendant in that case entered into an agreement with plaintiff of that case for sale of land measuring 0-2-19 bighas shown as Khasra No. 1065/1 in the tatima for sale consideration of `5,000/-. It has also been held that entire sale consideration was paid to the defendant on 22.12.1983 and in lieu thereof the possession was also delivered to the plaintiff. Ex. P-1 is the sale deed dated 30.10.1991 which was executed on the basis of decree of specific performance dated 02.06.1990 in Civil Suit No. 148 of 1989. In sale deed Ex.P-1, there is no specific averment regarding handing over of possession in favour of Duni Chand, but in the judgment it has been clearly held that possession of the suit land was handed over to Duni Chand on 22.12.1983. 7. It has been contended that judgment dated 02.06.1990 Ex. P-2 is judgment in personum in which appellant or her husband was not a party and , therefore, the respondent cannot take any benefit from the said judgment. This contention has no force. The title of respondent is traceable to Duni Chand and to Ex. P-2 and sale deed Ex. P-1. The appellant in the written statement has pleaded that husband of respondent i.e. Duni Chand had sold the suit land to the appellant and her husband. The title of Duni Chand was referable to Ex. P-2 and Ex. P-1. Therefore, appellant cannot be heard to say that what has been held 5 in judgment Ex. P-2 that is not binding on her, more particularly, when she claims alleged title over the suit land through Duni Chand. 8. It has been then submitted that appellant and her husband had purchased the suit land from Duni Chand for a consideration of `4,400/- as per affidavit dated 05.08.1989 Ex. DW2 of Duni Chand. It has been alleged that ` 4,400/- were paid to Duni Chand on 07.08.1989 vide receipt Ex. DW3. The appellant cannot take advantage of affidavit Ex. DW2 and receipt Ex. DW3 inasmuch as in these documents the land allegedly purchased by appellant has not been identified. The suit land has not been connected with Ex. DW2 and Ex. DW3. Moreover, on the basis of judgment dated 02.06.1990, Duni Chand became owner of the suit land vide sale deed dated 30.10.1991 Ex. P-1. On 05.08.1989 or 07.08.1989, there is no question of selling the suit land by Duni Chand in favour of appellant. 9. The sale of property having value more than `100/- is possible only through registered document and no such registered document has been placed on record by appellant. The two Courts below have rightly appreciated the material on record. It has not been established that the two Courts below have relied inadmissible evidence while decreeing the suit nor it has been established that the two Courts below have taken perverse view. On the contrary, it has been proved that conclusion drawn by the two Courts below emerges from the evidence on record. The substantial question of law, referred to above, is decided against the appellant. There is no merit in the appeal. 6 10. In view of above discussion, appeal fails and is accordingly dismissed with no orders as to costs. ( Kuldip Singh ), November 22, 2011. Judge. (krt)