IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 222 of 2008 Date of Decision 16th August, 2011 ________________________________________________________ Vinay Kumar ….Appellant Versus Naveen Kumar & others ….Respondents. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ________________________________________________________ For the Appellant: Mr. N.S. Chandel, Advocate. For the Respondents: Mr. G.D. Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. ____________________________________________________________ Dev Darshan Sud, J(oral) This appeal presents some curious facts. Late Achhar Ram instituted the suit out of which this appeal arises against his son Satpal, (who also died during the pendency of the proceedings), and his daughter-in-law praying for a decree of declaration that he is co-owner in joint possession of the land to the extent of ½ share in land comprised in Khasra No. 199, Khewat No. 47/45, Khatoni No. 62, measuring 6.13 bighas situated at village Ghumani, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur. The plaintiff also prayed for permanent 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 prohibitory injunction in terms of the prayer clause. The suit was partly decreed by the learned trial Court in the following terms: “In view of my aforesaid discussion and findings, suit succeeds and is accordingly decreed with costs. A decree of permanent prohibitory injunction is passed in favour of the plaintiff and against the defendants restraining them from causing any kind of interference in the suit land comprising in Khasra No. 184/173, 187/83 Khewat No. 43/39 Khatoni No. 48 measuring 10 biswas to the extent of 6 biswas situatd at village Awari Khalin, Pargna Tiun, Tehsil Ghumarwin, Distt. Bilaspur, H.P. ½ share in the land comprising in Khasra No. 199, Khewat No. 47/45, Khatoni No. 62 measuring 6-13 bighas situated at village Ghumani, Pargna Tiun, Tehsil Ghumarwin, Distt. Bilaspur H.P. and ½ share in the land comprising in Khasra No. 353, 397 Khewat No. 7/7 Khatoni No. 7 measuring 3.15 bighas and land comprising in khasra No. 348 khewat No. 53 min Khatoni No. 54, measuring 3-5 bighas situated at village Pehrwin, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur H.P. or dispossessing the plaintiff therefrom either by themselves or through their agents, servants etc. Decree be prepared and the file, after completion, be consigned to record room.” In the appeal preferred by the legal representatives of Satpal, (who died during the pendency of the appeal) his sons Naveen Kumar, Praveen Kumar, Anil Kumar, daughter Anupam Kumari and widow Sandhya Devi were brought on record as his legal representatives. Since Achhar Ram also died during this pendency, he was also represented by his legal representatives namely Sat Pal, Vinay Kumar, Vinod Kumar, the sons, wife Shiv Dei and daughters Neelam Kumari, Kanta Devi and Poonam Kumari. 3 2. The learned Appellate Court partly allowed the appeal in the following terms: “As a result of foregoing discussion and findings, the instant appeal is partly allowed and the impugned judgment is partly set aside in respect of suit land comprised in Khasra No. 199 (1/2 share in land measuring 6.13 bighas) in village Ghumani and (1/2 share in khasra No. 353, 397 measuring 3.15 bighas) in village Pehrwin. Consequently the suit of the plaintiff Achhr Ram (since deceased) and now represented by respondent No. ii to vi succeeds partly and is decreed for permanent injunction in respect of part of the suit land comprised in Khasra No. 184/173, 187/83 (to the extent of 0.6 biswas) comprised in Khewat No. 43/39, khatoni No. 48 measuring 10 biswwas in village Awari Khalin and land measuring 3.5 bighas comprised in Khasra No. 348, Khewat No. 53 min, Khatoni No. 54 situated in village Pehrwin, Tehsil Ghumarwin. The remaining claim of the plaintiff is dismissed.The parties are left to bear their own costs in the circumstances of the case. A decree sheet be prepared accordingly.” Only one of the sons of deceased Achhar Ram namely Vinay Kumar has preferred this appeal against the decree. Cross objections have also been filed by the legal heirs of Satpal. This appeal was admitted on two substantial questions of law:- 1. Whether the finding of the learned first appellate Court below is warranted and sustainable in law, specially when no evidence has led by the defendant that the land is ancestral; 2. Whether in the facts and circumstances of the case, especially when no legally sustainable evidence has been led by the 4 respondent to controvert the evidence led by the Appellant/plaintiff, the findings of the first Appellate Court returned contrary to that of learned trial Court are sustainable in law. 3. Looking into the facts of the case, I do not find that these questions would require any answer for the reason that both the plaintiff and one of the defendants are dead and on their death by succession to their respective estates the parties to the suit would inherit the suit land unless there is valid testamentary disposition. 4. In these circumstances, this appeal is disposed of with a direction that each of the parties can have their respective rights determined in a court of competent jurisdiction and the decree passed by the Courts below shall have no bearing on their respective rights of inhermitance. Appeal stands disposed of. All miscellaneous application(s) also stand disposed of. No order as to costs. August 16th,2011 (Dev Darshan Sud), ms Judge