IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 442 of 2007 Reserved on: 29.5.2008 Date of decision: 03.6.2008 ______________________________________________________ Rup Lal Appellant Versus Mohinder Kumar & Ors. Respondents Coram The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No. For the appellant: Mr. Rajnish K. Lal vice Mr.K.D. Sood, Advocate. For the respondents: Mr. Ashwani K. Sharma, counsel for respondents No.1 and 2. V.K.Ahuja, J. : This is an appeal filed by the appellant against the judgment and decree of the Court of learned Additional District Judge, Ghumarwin, dated 16.6.2007, vide which he dismissed the appeal filed by the appellant and affirmed the judgment and decree of the Court of learned Civil Judge (Senior Division), Bilaspur, dated 31.5.2004, decreeing the suit of the plaintiffs/respondents for declaration and injunction. Briefly stated the facts of the case are that respondents No. 1 and 2 as plaintiffs filed a suit for declaration and permanent Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 injunction as against respondent No. 3 who was impleaded as defendant No. 1, while appellant was impleaded as defendant No. 2. It was alleged by the plaintiffs that they have purchased the land measuring 1-10 Bighas from defendant No. 1 as detailed in the plaint vide sale deed dated 3.1.1997 for a consideration of Rs.19,000/-. It was alleged that defendant No. 2 in connivance with the vendors i.e. defendant No. 1 got a civil suit filed for Specific Performance of Contract alleged to have been executed on 24.6.1996 by defendant No. 1. On 24.1.1997 defendant No. 1 appeared before the Court herself and made a statement that she had entered into a compromise with defendant No. 2 and he was owner in possession of the suit land on the date of institution of the suit and, therefore, a compromise decree was passed in favour of defendant No. 2. The plaintiffs on learning of compromise decree at the time of attestation of mutation by the Assistant Collector, 2nd Grade, filed the suit as against the defendants challenging that the said judgment was obtained through fraud and misrepresentation and was not binding upon the rights of the plaintiffs who had already become owner prior to the filing of the suit by defendant No. 2 and that they became owners by way of registered sale deed executed in their favour by defendant No. 1. The said suit was contested by defendant No. 2 only and not by defendant No. 1 and the said suit was decreed by the learned trial Court holding that the plaintiffs were owners in possession of the suit land on the basis of sale deed dated 3.1.1997. It was also held that the judgment and decree passed in the civil suit by learned Sub Judge, 3 Ghumarwin, is nullity being result of fraud. Those findings were affirmed by the learned first Appellate Court. I have heard the learned counsel for the parties and have gone through the record. It was submitted by the learned counsel for the appellant that the agreement executed in favour of the appellant was executed prior in-time before the sale deed was executed in favour of the plaintiffs and, therefore, the learned trial Court had wrongly held that the said compromise decree was a nullity. The substantial question of law formulated by the learned first Appellate Court was that the findings of the learned trial Court were wrong in view of the compromise decree passed in favour of the appellant and there was no specific proof of fraud or misrepresentation and as such, the appeal was liable to be admitted and the appeal was liable to be accepted. It was also submitted that in view of the judgment of this Court in Om Prakash and others Vs. State of Himachal Pradesh and others, AIR 2001 Himachal Pradesh 18, it was clear that where the trial Court had given its findings together on some of the issues and no separate findings have been recorded, therefore, the case is liable to be remanded to the learned trial Court. A perusal of the above decision shows that the judgment of the trial Court was not containing reasons or grounds for coming to conclusion on each issue. Therefore, on the facts of that case it was held by a Division Bench of this Court that it was no judgment in the eyes of law. 4 The grievance of the appellant’s counsel was in regard to clubbing of Issues No. 1 to 4 and giving joint findings on all these issues by the learned trial Court. This plea was not specifically taken in the grounds of appeal that giving of findings by the learned trial Court on all these Issues No. 1 to 4 has resulted the trial Court not giving correct findings. The only assertions made in the grounds of appeal were that the Courts below have misdirected itself in regard to the findings on Issues No. 1, 2, 3 and 4 and decreeing the suit of the plaintiff. There were no specific assertions that the clubbing together of findings under all these issues have resulted in the learned trial Court or the first Appellate Court giving findings incorrectly. A perusal of Issues No. 1 to 4 shows that the question to be considered by the learned trial Court was as to whether the judgment passed in the civil suit was nullity and defendant No. 2 had purchased the suit land from defendant No. 1 if so its effect and on that basis of sale deed whether the plaintiffs were owners in possession and entitled to the relief claimed by them. The findings under these issues were required to be given by the learned trial Court as to whether the plaintiffs had purchased the suit land prior to the filing of the suit by defendant No. 2 and they had become owners on the basis of sale deed executed in their favour. The defendants set up an agreement to sell prior to that date to file the suit against defendant No. 1. after the date when the plaintiffs had become owners by way of sale deed executed in their favour on 3.1.1997. The learned trial Court was to consider the date when the plaintiffs had become owners, when the decree in question, a 5 compromise decree was passed and accordingly, all these facts have been considered by the learned trial Court by clubbing the findings together under Issues No. 1 to 4. Once defendant No.1 had already executed the sale deed in favour of the plaintiffs on 3.1.1997, there was no question of any statement being made by defendant No. 1 that there was a prior agreement in favour of defendant No. 1 and that he was owner on the basis of said agreement and accordingly, the learned trial Court came to the conclusion that this decree was obtained by fraud and was a nullity. All these questions arose together and the learned trial Court as well as learned first Appellate Court have discussed the evidence in detail and clubbing together of all the findings have not resulted in miscarriage of justice in the facts and circumstances of the case and as such, the case does not deserve to be remanded back to the learned trial Court for hearing the parties afresh and giving its findings separately on each issue. That plea was open to appellant in case there has been miscarriage of justice and findings have not been discussed separately under all these issues and as such, no case is made out for admission of the appeal on any of substantial questions of law formulated with the appeal. During the course of arguments, learned counsel for the appellant has not been able to point out any oral or documentary evidence which was not discussed by the Courts below or was wrongly discussed or was omitted to be discussed and as such, there is no merit in the appeal filed by the appellant, which is 6 accordingly dismissed. However, parties are left to bear their own costs. June 03, 2008 ( V.K. Ahuja ) (BSS) Judge