IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 141 of 2000 Date of decision : 22.3.2011. Kaushalaya Devi …Appellant. Versus Prakash Chand and others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellant: Mr. N.K.Thakur, Advocate. For the respondents No. 2 to 8: Mr. Sanjeev Kuthiala, Advocate. Deepak Gupta, J. (Oral) 1. This Regular Second Appeal is directed against the judgement and decree passed by the learned District Judge, Una in Civil Appeal No. 116 of 1992 dated 28.12.1999 whereby he dismissed the appeal filed by the present appellant (here-in- after referred to as the defendant). 2. Briefly stated the facts of the case are that Kaushalya Devi i.e. present appellant and Loharu Ram S/o Tani Ram had purchased some property together. They thereafter filed a suit No. 514 of 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 1979 against Tara Devi and others who were respondents in the suit of claiming possession of the land. During the pendency of the suit Loharu Ram died. Smt. Kaushalya moved an application for deletion of the name of Loharu Ram claiming that she alone was the sole legal heir of Loharu Ram on the basis of a will executed by Loharu Ram in her favour. This application was contested by Tara Devi and the other defendants and it appears that an order was passed which has not been exhibited till date in which it was held that Kaushalya Devi is the legal heir of Loharu Ram and thus entitled to contest the suit. 3. Thereafter Tani Ram, father of Loharu, filed an application under Order 1 Rule 10 CPC claiming that he is the sole legal heir of Loharu who was his son and had died. He further claimed that Loharu had not married and had died issueless. It was claimed by him that the order if any passed in the suit would affect his rights. This application was contested by Kaushalya Devi on the ground that it is only the rights of Loharu Ram in the estate that 3 are in question in the suit and the question as to upon whom the estate of Loharu has devolved is not a subject matter of the suit. It was further her case that since she had already been on summary inquiry found to be the legal heir of Loharu she alone was entitled to contest the suit. The application was rejected by the trial Court vide order Ext.P-2, relevant portion of which reads as follows:- “It is only for the continuation of the suit that Smt. Kaushalya Devi was substituted in place of the deceased. Applicant Tani Ram if he so likes can file a fresh suit for getting the Will declared as null and void against Smt. Kaushalya Devi. The present suit in hand cannot be made the subject matter of the final adjudication on the point as to whether the Will was got executed by the deceased rightly or not.” 4. This clearly shows that the trail Court was not deciding the dispute between Kaushalya Devi and Tani Ram with regard to the will and had specifically left this question open to be decided. 4 5. Tani Ram filed the present suit in the year 1988 challenging the Will in question. Both the Courts below have decided the suit in favour of Tani Ram, who has since died and respondents are his legal heirs. In the present suit Kaushalya Devi did not care to produce or prove the Will nor any steps were taken to lead secondary evidence to prove the Will. As far as this case is concerned there is not an iota of evidence on record to show that any Will was executed by Loharu Ram in favour of Kaushalya Devi. 6. Shri N.K.Thakur, learned counsel for the appellant has strenuously contended that the judgement of the learned District Judge Ext.D-1 clearly shows that he had held that Kaushalya Devi was the sole legal representatives of deceased plaintiff Loharu. This fact may be correct but it has to be read in conjunction with the findings of the learned trial Court that Kaushalya Devi has been brought on record only for the purpose of representing the estate of Loharu Ram and that order would not bind Tani Ram. Therefore, in the 5 second proceedings filed by Tani Ram it was incumbent upon Kaushalya Devi to have proved the Will and she can not be permitted to rely upon the orders passed in the previous suit in which Tani Ram was not a party and in which his application for being impleaded as a party was opposed by Kaushalya Devi, to argue that the Will proved by her in summary proceedings should be deemed to have been proved in the suit filed by Tani Ram. 7. Though a number of legal questions were framed. The only question of law which arises is whether the order whereby Smt.Kaushalya Devi was brought on record as sole legal representative of Loharu in Civil Suit No. 514 of 1979 is binding on Tani Ram in the subsequent suit. The answer to this question has to be in the negative. There is no doubt that no person can be bound by an order passed in his absence in proceedings in which he was not a party and further more in proceedings where his application to be impleaded as a party was opposed and rejected. 6 8. There is no merit in the appeal, which is accordingly rejected. The stay order dated 10.11.2000 is vacated and the amount of use and occupation deposited shall now go to the successful party, i.e. the heirs of Tani Ram. 22nd March, 2011 ( Deepak Gupta ) ™ Judge.