IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 43 of 1999 Date of Decision : October 27, 2010 Sh. Bhola Nath and others Appellants Versus Sh. Bhagi Ram and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1No. For the appellants : Mr. G. D. Verma, Senior Advocate with Mr. Romesh Vema, Advocate, for the appellants. For the respondents : Mr. Ramakant Sharma, Advocate, for respondent No. 1. Sanjay Karol, J. (Oral) This regular second appeal has been filed under the provisions of Section 100 of the Code of Civil Procedure, assailing concurrent findings of facts recorded by the Courts below. 2. The appeal was admitted on the substantial questions of law appended with the grounds of appeal. 3. This Court had made various attempts to get the matter amicably resolved. Regretfully inspite of best efforts parties could not arrive at any settlement. Whether reports of Local Papers may be allowed to see the judgment? 2 4. Facts are not in dispute. Brief genealogy of the parties for understanding the facts of the case are as under:- Chandnu / / Jeet Ram = = = Smt. Ishwaroo (died on 10.2.1969) (died on 23.7.1975) / / / / / / Ram Lal Durga Bhagi Geeta Ram Smt Mathroo Smt Shankari Ram Ram Devi (Deft No.3) (Deft. (Plaintiff) (Deft No.1) (Pre-deceased (Deft. No. 5) No.2) daughter) / / / / / / / Raj Kumari alias Maheshwari alias Rajeshwari Rameshwari Devi (Defendant No. 4) (Defendant No. 6) 5. Plaintiff Sh. Bhagi Ram filed a suit with the following prayer:- “Suit for declaration to the effect that entries in khata No. 5/5, khasra Nos. 115/91, 92, 93, 97, 215/98 and 216/98, kitas 6 measuring 6 Bighas per jamabandi 1983-84 of village Deori, Hadbast No. 98, Tehsil Kasauli, Distt. Solan are wrong, illegal, null, void and inoperative and are not binding upon the plaintiff and the same are against the terms of compromise as decided in case No. 43/1 of 69 decided on 23.7.1970 as it was agreed between the parties that the land aforesaid 6 Bighas was to go at the time of partition to the share of the legal representatives of Jeet Ram of which plaintiff is one and for injunction restraining the defendants from claiming the same to be their exclusive share and to treat the same to be owned and possessed by the plaintiff in equal share.” 3 6. The suit was primarily resisted by defendants No. 1 and 2 (present appellants). 7. On the pleadings of the parties the Trial Court framed the following issues:- “1. Whether entries of suit land in the revenue record are wrong and against the terms of compromise in case No. 43/1 decided on 23.7.70 and not binding upon the plaintiff and to be treated as owned and possessed by plaintiff in equal share? OPP 2. Whether suit is not maintainable? OPD 3. Whether suit is bad for non-joinder of necessary parties? OPD 4. Whether plaintiff has no cause of action? OPD 4a) Whether the suit is time barred as alleged? OPD 4b) Whether the defendants have become owners by way of adverse possession as alleged? OPD 1&2 4c) Whether Smt. Raj Kumari etc. are also co-owners as alleged? OPD 4 to 6 4d) Whether the partition is illegal, null and void as alleged? OPD 4 to 6 5. Relief.” 8. Vide judgment and decree dated 26.8.1992 passed in case No. 154/1 of 87/86 the Sub Judge Ist Class, Kandaghat, District Solan, H.P. decreed the suit in the following terms:- “Cumulative effect of all the discussions made above and conclusions arrived at supra is that present suit succeeds in part and same is thus decreed. I, accordingly, declare that the plaintiff is 4 joint owner in possession to the extent of 1/6th share in the entire land left by Late Shri Jeet Ram including the suit land. I also hold that defendant No. 5 is joint owner in possession to the extent of 1/6th share and defendants No. 4 and 6 are joint owners in possession to the extent of 1/12 share each alongwith plaintiff and defendants No. 1 to 3 in the entire land (which includes suit land) which came to the share of Shri Jeet Ram. Further, I declare entries prevalent in revenue record to the contrary as baseless, illegal and void as well as restrain defendants No. 1 and 2 by a decree of permanent prohibitory injunction from claiming exclusive ownership and possession of the land involved in this suit i.e. Khata No. 5/5, khasra Nos. 115/91, 92, 93, 97, 215/98 and 216/98, kitas 6 measuring 6 Bighas per Jamabandi 1983-84 of village Deori/Tikethatti Hadbast No. 98, Tehsil Kasauli, Distt. Solan (H.P.). Keeping in view relations between the parties, they are left to bear their own costs. Decree sheet be prepared.” 9. Aggrieved of the same defendants Sh. Geeta Ram and Durga Ram filed an appeal which stands dismissed in terms of judgment and decree dated 19.7.1997 passed by learned District Judge, Solan, H.P. in Civil Appeal No. 7-K/13 of 1993. 10. Both the Courts below held the parties to be joint owners in possession of the suit land to the extent of 1/6th share and the revenue entries recording only Sh. Geeta Ram and Sh. Durga Ram to be owners of the land to be illegal and void. 5 11. There is no dispute that parties to the lis are legal heirs of Sh. Jeet Ram. It is also not in dispute that Sh. Jeet Ram was co-owner of land measuring 117 bighas. In the said land parties had no independent share. It is also not in dispute that Sh. Jeet Ram executed Will dated 7.5.1957 bequeathing his interest in favour of Sh. Geeta Ram and Sh. Durga Ram. It is also not in dispute that in the year 1969 Sh. Jeet Ram expired. 12. Instant suit pertains to 6.6 bighas of land. It is claimed by Sh. Geeta Ram and Sh. Durga Ram that by virtue of Will dated 7.5.1957 they have become exclusive owners thereof and consequently revenue entries recording them to be so are correct and legally binding. On the first brush stand taken by the aforesaid defendants appear to be true but however it is not so. 13. Sh. Jeet Ram during his life time had filed Civil Suit No. 43/1 of 1969 against Sh. Ram Dutt co-sharer in the bigger estate. This suit was compromised after the death of Sh. Jeet Ram by his legal heirs i.e. parties to the present suit. Now in terms of this compromise (Ext. PC) entire land holding of Sh. Jeet Ram, including the suit land was taken into account for the purposes of partition and all the legal heirs of Sh. Jeet Ram were held entitled to 14 bighas plus 6.6 bighas (suit land) in equal share. It is true that out of 117 bighas Sh. Jeet Ram was entitled to share bigger than 14 bighas, but however parties to the lis arrived at a settlement and compromised the suit on mutually acceptable and agreeable terms. The legatees had themselves agreed to put the suit land in the 6 common pool for the purposes of distribution/partition amongst all the legal heirs of Sh. Jeet Ram. 14. Consequently I find no infirmity with the findings returned by the Courts below. No substantial question of law arises for consideration at all. Appeal is accordingly dismissed. (Sanjay Karol), Judge. October 27, 2010 (PK)