HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 101 of 2000 Decided on: 3.11.2011. Manohar Lal and another ……Appellant/defendants. Versus Devender Kumar and others ………Respondent/plaintiffs. Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? For the appellants: Mr.Rahul Mahajan, Advocate. For the respondents: Mr.B.K. Malhotra, Advocate. V.K. Ahuja, J.(Oral): This is a regular second appeal filed by the appellant/defendants under Section 100 CPC against the judgment and decree, dated 26.10.1999, passed by the learned District Judge, Kullu, H.P., whereby he dismissed the appeal of the appellants and affirmed the judgment and decree, dated 21.7.1998, passed by the learned Sub Judge, Manali, decreeing the suit of the respondent/plaintiffs. 2. Briefly stated, the facts of the case are that the respondents (hereinafter also referred to as the plaintiffs) filed a suit for declaration and in the alternative for possession by way of redemption as ________________________________ Whether reporters of local newspapers may be allowed to see the judgment? - 2 - against the appellants, (hereinafter also referred to as the defendants). It was alleged by the plaintiffs that they are absolute owners of the land comprised in Khasra Nos.116, 131, 132, 169, 264, 269 and 270, Kita 7, measuring 9-8-0 bighas. They also claimed the relief of injunction against the defendants restraining them from interfering in the possession of the plaintiffs over the suit land. In the alternative, prayer made was for the relief of possession by way of redemption of mortgage of the suit land. It was alleged by the plaintiffs that in pursuance of the decree passed by the Court of the Senior Sub Judge, Kullu, dated 28.3.1995, which was affirmed by the learned Additional District Judge, Mandi, vide his judgment and decree dated 4.11.1995, the suit land has been held to have been mortgaged with the defendants by the predecessor-in-interest of the plaintiffs in the year 1966 for a sum of `1,000/-. The plaintiffs further alleged that they asked the defendants to accept the mortgage money and to clear the title of the plaintiffs by way of redemption but the defendants refused to receive the amount and redeem the suit land. The plaintiffs claimed that they are in possession of the suit land and are entitled for declaration that they are absolute owners in possession of the suit land on payment of mortgage money to the defendants. 3. Defendants No.1 and 2 contested the suit claiming that they are in adverse possession of the suit land and have become owners thereof. They have admitted - 3 - the factum of the institution of the earlier suit but had raised a plea of ownership qua the suit land under the tenancy laws. Defendant No.3 admitted the claim put up by the plaintiffs. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court: “1. Whether the suit is barred by principle of rejudicata as alleged? OPD 2. Whether this court has no jurisdiction to entertain and decide the suit as alleged? OPD 3. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPD 4. Whether the plaintiffs are owners in possession of the suit land as alleged? OPP 5. If issue No.4 is not proved in affirmative, whether the plaintiffs are entitled to the possession of the suit land by redemption of the mortgage? OPP 6. Relief.” 5. Parties led their evidence and the learned trial Court vide its impugned judgment decided Issue Nos.1 to 5 in favour of the plaintiffs and as against the defendants and consequently, decreed the suit of the plaintiffs. On appeal, those findings were affirmed by the learned District Judge vide his judgment, which is under challenge. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The appeal was admitted on the substantial questions of law formulated therein. - 4 - 8. The submissions made by the learned counsel for the appellants were that they have set up a claim of ownership by way of adverse possession, which was not considered by both the courts below. It was also submitted that the learned Appellate Court has brushed aside the statements of the defendants’ witnesses and has not properly appreciated the evidence, which has resulted in the appeal having been decided against the appellants, which findings are liable to be reversed. 9. A perusal of the judgment passed in the earlier case Ext.P-1 shows that the defendants had taken the plea of tenancy in that case and now they have come up with this plea of adverse possession in the present suit. The plea of adverse possession was taken in the previous suit as per Ext.P-1, copy of the judgment, dated 28.3.1985, but the same was abandoned during the course of arguments and now the defendants are precluded from putting up the claim of adverse possession again. Moreover, in case a plea which was available to the defendants is not taken in the previous suit, the same plea cannot be agitated in the subsequent suit and the facts of the present case are that this plea was taken up, but was abandoned and now the defendants are precluded from taking this plea of adverse possession. The rights of the parties were determined by the previous judgment which had been affirmed by the learned Appellate Court also and the suit of the appellant/defendants was dismissed and they were held to be not the tenants of the - 5 - suit land and those findings were affirmed in appeal. The plaintiffs have filed the suit for declaration that they be declared owners in possession and in the alternative they have prayed for the relief of possession by redemption of mortgage. The preliminary decree was, therefore, passed subject to payment of mortgage money of a sum of `1000/- and it was held that the plaintiffs being the mortgagors are entitled to redemption by making the payment of `1000/- being mortgage amount to the defendants. The Courts below had discussed the evidence led by the parties including the judgment in the previous case in between the parties and there is no need for reappraisal of the evidence by this Court sitting in second appeal once the evidence has been appreciated by both the courts below. The appeal was admitted on several substantial questions of law but they do not arise from the pleadings of the parties nor the learned counsel for the appellants was able to make out a case as to how the findings of the learned trial Court, as affirmed by the learned Appellate Court, are incorrect for any reasons and are liable to be set aside. A perusal of the judgment passed by the learned Appellate Court shows that it had considered the documentary evidence placed on record by the parties and had concluded that once the appellants have admitted that they had not filed any second appeal against the judgment and decree passed by the learned Additional District Judge, Mandi in the earlier instituted suit, the earlier judgment passed by the - 6 - learned Senior Sub Judge had become final and binding on the parties. It was held that the land was mortgaged by Smt.Hiri with the defendants on payment of `1000/- and all these questions had been fully determined in the previous suit and no case was set up by the defendants that they were in adverse possession of the suit land which was a new plea taken up by them but had been abandoned earlier. Thus, the question had already been determined in the previously instituted suit in between the parties and those findings are binding upon the appellants and no case is made out for the reappraisal of the evidence on any of the points raised in appeal filed by the appellants. 10. In view of the above discussion, there is no merit in the plea that the evidence of the defendants was not appreciated rightly. The evidence had been discussed by both the courts below and as such there is no merit in the appeal filed by the appellants, which is dismissed accordingly. November 3, 2011 (V.K. Ahuja), (tilak) Judge.