IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.398 of 2000 Date of decision : 18.5.2010 ____________________________________________________ Dhian Singh Appellant. Versus Khalvinder Kumar Johli and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No. For the appellant : Mr. Ramakant Sharma, Advocate. For the Respondents : None. Kuldip Singh, J ( Oral) The defendant has come in appeal against judgment, decree dated 17.5.2000 passed by learned Addl. District Judge, Solan Camp at Nalagarh in Civil Appeal No.34-NL/13 of 1999, reversing judgment, decree dated 30.6.1999 passed by learned Sub Judge,Nalagarh in Civil Suit No.264/1 of 1994. 2. The facts in brief are that Ram Saran had filed a suit for declaration with consequential relief of permanent injunction on the grounds that he is owner in possession of land comprised in khasra Nos.485, 487, 490 and 492, khewat/khatauni No.37/40, situate at village Jhiran, Pargana Nalagarh Desh, Tehsil Nalagarh, District Solan _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 vide jamabandi for the year 1993-94. The judgment, decree dated 24.12.1991 passed by learned sub Judge Ist Class, Nalagarh on 24.12.1991 in case No.213/1 of 1988 is illegal, null and void, nonest, inoperative with consequential relief of permanent prohibitory injunction restraining the appellant from interfering in the suit land. 3. The further case of Ram Saran was that Hari Chand son of Shankar Dass was his father, he was resident of village Asola, Tehsil Chakwal, Distt Jhelum ( Pakistan). He was holding property in Pakistan. He migrated to India in the riots of 1947. He was given land measuring 9 bighas 4 biswas comprised in khasra Nos.871/673, 674, 677, 678, 680, 681 and 682, khewat/khatauni No.33/38, situate at village Jhiran, Pargana Nalagarh, Distt Solan by Government of India in lieu of the land which was left by him in Pakistan. Hari Chand was having three sons, plaintiff Ram Saran, Krishan Chand and Tejbhan. Hari Chand had died in the year 1960 leaving behind Ram Saran and his two brothers. Ram Saran was in service in Indian Railways and retired in the year 1971. Krishan Chand died. He was bachelor and Tejbhan died leaving behind no wife and children. Thus, Ram Saran became the sole owner of the suit land as he was the only legal heir of Hari Chand. 4. The appellants had filed Civil Suit No.213/1 of 1988 on 30.6.1988 which was decreed on 24.12.1991. The address of Hari Chand was also wrong in Civil Suit No.213/1 of 1988. The service in Civil Suit No.213/1 of 1988 was effected through publication in news paper Veer Partap which was having no circulation in Yamuna Nagar. It has been alleged that decree dated 24.12.1991 in Civil Suit No.213/1 3 of 1988 is nullity as the same was passed by the Court against Hari Chand who had died in the year 1960. 5. The suit was contested by appellant. It was asserted that Hari Chand son of Shankar Dass was earlier owner of the suit land but he never visited village Jhiran. Hari Chand was defendant in Civil Suit No.213/1 of 1998 and he was not the father of Ram Saran. It was denied that Hari Chand died in the year 1960. It was asserted that news paper Veer Partap was having circulation through out northern India and Hari Chand was validly served by way of publication. 6. The replication was filed, in which stand taken in written statement was denied and the case projected in the plaint are reiterated. It is significant to note that Ram Saran had died when the matter was pending in the trial Court and his legal representatives were brought on record. On the pleadings of the parties, the following issues were framed:- 1. Whether judgment and decree dated 24.12.1991 is a nullity, as alleged? OPP 2. If issue No.1 above is proved, whether the plaintiff is entitled for declaration as prayed for? ..OPP 3. Whether the plaintiff is entitled for the relief of injunction? ..OPP 4. Whether this suit is not within limitation? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Relief. The issues No.1 to 5 were answered in negative and the suit was dismissed by the learned Sub Judge on 30.6.1999. The matter was taken up in appeal by the legal representatives of Ram Saran and learned Addl. District Judge on 17.5.2000 allowed the 4 appeal and held that Hari Chand son of Shankar Dass had died at the time of institution of suit and decree passed in Civil Suit No.213/1 of 1988 was declared nullity and the same was held illegal, null and void, inoperative and ineffective with consequential relief as prayed. 7. Dhian Singh has filed appeal against judgment, decree dated 17.5.2000 which has been admitted on the following substantial questions of law:- 1. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as mis- appreciation of statements of PW1 to PW3 and DW1, DW2? 2. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as mis- appreciation of documents Ext.PW1/K and PW1/L judgment and decree dated 24.12.1991? I have heard Mr. Ramakant Sharma, learned counsel for the appellant and gone through the record, none appeared on behalf of the respondents. It has been submitted on behalf of the appellant that impugned judgment, decree are the result of complete mis-reading, misinterpretation, mis-appreciation of statements of PW1 to PW3 as well as DW1 and DW2. The documents Ex.PW1/K and Ex.PW1/L judgment, decree dated 24.12.1991 have also been misread and misinterpreted. 8. The substantial questions of law No.1 and 2 can be conveniently dealt with collectively therefore both substantial questions of law are taken up for disposal collectively. The case of the respondents is that Hari Chand had died in the year 1960. Ex.PW1/K judgment dated 24.12.1991 in case No.213/1 of 1988 passed by learned Sub Judge, Nalagarh is nullity as the same has been passed against the dead person. On the same grounds decree Ex.PW1/L 5 dated 24.12.1991 passed in Civil Suit No.213/1 of 1988 has been assailed. The predecessor-in-interest of the respondents has specifically pleaded in the plaint that Hari Chand had died in the year 1960. The appellant has denied this assertion in the written statement. PW-1 Kulwinder Kumar Johli son of Ram Saran has stated that Hari Chand had died in the year 1960. He was cross-examined but nothing was extracted in his cross-examination to show that Hari Chand had not died in the year 1960. PW-2 Ram Saran son of Ronki has stated that earlier the owner of the land in dispute was Hari Chand and after his death his three sons used to look after him. In other words PW-2 has also stated that Hari Chand had died. PW-3 Tej Singh has stated that Hari Chand was the allottee of the land and he had died, his grand sons are the owners of his land which is in their possession. The appellant has not put forward the case to various witnesses of respondents that when the earlier suit was filed Hari Chand had not died. 9. DW1 Dhian Singh appellant in his cross-examination has admitted that Hari Chand son of Shankar Dass was the father of plaintiff Ram Saran. He has also stated that he does not know Hari Chand son of Shankar Dass had died in the year 1960. Thus, appellant has admitted that Hari Chand son of Shankar Dass was the father of Ram Saran. The appellant in his statement has not denied that Hari Chand had died in the year 1960. No doubt the parties have not placed on record documentary evidence when Hari Chand had died. The year of death of Hari Chand is to be decided on the basis of preponderance of evidence. The respondents have led positive 6 evidence regarding the death of Hari Chand in the year 1960. The assertion of respondents regarding the death of Hari Chand in the year 1960 has not been denied by the appellant. The learned trial Court in the judgment has not noticed the statement of PW-1, wherein he has specifically stated that Hari Chand had died in the year 1960. The learned trial Court has also not noticed the statement of DW-1 Dhian Singh that he is not aware that Hari Chand had died in the year 1960. The learned Addl. District Judge after due appreciation of material on record has recorded a finding that Hari Chand had died in the year 1960. The earlier suit was filed by the appellant on 30.6.1988 and in that suit Hari Chand was impleaded as defendant who has been proved to have died in the year 1960. In other words the appellant had filed earlier suit against dead person and had obtained judgment, Ex.PW1/K and decree Ex.PW1/L against dead person which is nullity. The view taken by the learned Addl. District Judge emerges from the evidence on record. There is no perversity in the impugned judgment, decree. The substantial questions of law No.1 and 2 are decided against the appellant. 10. No other point was urged. 11. The result of the above discussion, appeal fails and is accordingly dismissed. May 18, 2010 (Kuldip Singh), (sks) Judge.