2026:HHC:11560

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA Nos. 365 and 366 of 2006

Reserved on: 10.3.2026

Date of Decision: 16.4.2026

RSA No. 365 of 2006

Avtar Chand (minor) through Piara Lal ...Appellant

Versus

Satwinder Singh (deceased) through LRs and ors.

...Respondents

RSA No. 366 of 2006

Desh Raj and another ...Appellant

Versus

Satwinder Singh (deceased) through LRs and ors.

...Respondents

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

No.

For the Appellants :Mr. N.K. Thakur, Senior Advocate,

with Mr Divya Raj Singh,

Advocate for the appellants in

RSA No.365 of 2006 and for

appellant No.1 in RSA No.366 of

2006.

For Respondents No.1(a) to

1(c) and 2(a) to 2(e) in both

the appeals

:Mr Bhupender Gupta, Senior

Advocate, with Mr Janesh Gupta,

Advocate.

Respondent No.3 proceeded against ex-parte and the name of

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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respondent No.4 stands deleted in RSA No.365 of 2006.

Name of appellant No.2 stands deleted in RSA No. 366 of 2006

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

and decree dated 31.05.2006, passed by learned Additional

District Judge, Una, HP (learned Appellate Court) vide which the

judgment and decree dated 30.05.2003, passed by learned Sub

Judge First Class, Court No.1, Una, H.P. (learned Trial Court)

were partly upheld. (Parties shall hereinafter be referred to in the

same manner as they were arrayed before the learned Trial Court for

convenience.)

2. Briefly stated, the facts giving rise to the present

appeal are that the plaintiffs filed a civil suit before the learned

Trial Court for seeking possession of one room measuring 18’ x

12’, situated in Khasra No. 1515 (old) and 4208 and 4209 (new)

as recorded in the copy of Jamabandi for the year 1996-1997,

situated at Village Basdehra, Brahmna, Tehsil and District Una,

H.P., (hereinafter referred to as suit land) and consequential

relief of permanent prohibitory injunction for restraining the

defendants from interfering with the suit land, changing its

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nature by raising any further construction and in the alternative

for vacant possession by demolishing the structure.

3. It was asserted that the plaintiffs are the owners in

possession of the suit land. They constructed a pucca room on

the suit land. The defendants, taking advantage of the plaintiffs’

absence, occupied the room. The plaintiffs requested the

defendants to deliver possession of the room to them, but they

refused. They threatened to raise construction on the suit land.

Hence, the suit was filed to seek the relief mentioned above.

4. The suit was opposed by filing a written statement

taking preliminary objections regarding the suit being barred by

res judicata, the plaintiffs being estopped to file the present suit

by their act and conduct, lack of locus standi, and the suit being

bad for non-joinder of necessary parties. The contents of the

plaint were denied on the merits. It was asserted that the

plaintiffs never remained in possession of the suit land. The

revenue entries in their name are wrong, incorrect, illegal and

against the facts. The defendants have been in possession of the

suit land since the time of their ancestors. The room shown in

orange in the site plan prepared by the Draughtsman marked

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DEFGHIJC forming part of the suit land is occupied by

defendants No.1 and 2 as owners. The room and courtyard

shown green, marked with the letters PQRS and QUR, are in

possession of defendant No.3 as owner. An abadi consisting of

two kucha kotha of predecessor-in-interest of defendants No.1

and 2 existed on the suit land, which fell during the heavy rain in

the year 1988. The defendants No.1 and 2 constructed the room

in place of the kuchha kotha shown by green and letters PQRS in

the site plan. A kuchha khadposh ancestral abadi also existed on

the suit land, which fell in the year 1988, and defendant No.3

constructed a tin posh room. The defendants wanted to replace

the tin with a slab, and the plaintiffs filed a false suit to harass

them. Roda and Khema, the predecessor in interest of the

plaintiffs, filed a Civil Suit No. 247 for possession of the suit land

and abadis. The predecessor-in-interest of the defendants made

a statement before Learned Sub Judge First Class, Una, District

at Hoshiarpur, on 10.04.1911, and offered to pay ₹110/- to the

predecessor-in-interest of the plaintiffs. This proposal was

accepted by the predecessors-in-interest of the plaintiffs, and

₹110/- was paid to them on 11.04.1911. The suit was decided as

withdrawn/dismissed. The old Khasra No. 1162 (min) was given

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new Khasra Mo.1463 and 1464. The entries were changed in the

year 1945-46 without the order of any Court or without any

notice to the defendants. New Khsra No. 1515 was given to old

Khasra No. 1463 and 1464 during the consolidation operation.

Khasra No. 4188/1, 4208, 4209, 4210 and 4227 were given to old

Khasra No.1515 during the recent settlement. The suit is barred

by the principle of res judicata. The plaintiffs never constructed

any room, and the defendants never occupied the room

constructed by the plaintiffs. Hence, it was prayed that the suit

be dismissed.

5. A replication denying the contents of the written

statement and affirming those of the plaint was filed.

6. Learned Trial Court framed the following issues on

9.5.2001: -

1.Whether the plaintiffs are owners of the suit property?

OPP.

2.If Issue No.1 is proved, whether the plaintiffs are entitled

to recover possession of the suit property? OPP.

3.Whether the suit is barred by the principle of res judicata?

OPD.

4.Whether the plaintiffs are estopped by their act and

conduct to file the present suit? OPD.

5.Whether the plaintiffs have no locus standi and cause of

action to file the present suit? OPD.

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6.Whether the suit is bad for non-joinder of necessary

parties? OPD.

7.Relief.

7. The parties were called upon to produce the evidence,

and the plaintiff, Satwinder Singh, examined himself (PW1) and

Bhagat Ram (PW2). The defendants examined Hari Dass (DW1),

defendant No. 1 Des Raj (DW2), Malkiyat Singh (DW3), Pyare Lal

(DW4), Baldev Chand (DW5) and Ram Pyara (DW6).

8. Learned Trial Court held that the revenue entries

were in favour of the plaintiffs. The plea taken by the defendants

that ₹110/- was paid by their predecessor to the predecessor of

the plaintiffs was not helpful to the defendants because the land

in that suit was not connected to the present suit. The

defendants had failed to prove any title in themselves to retain

the possession. The status of the defendants was merely that of a

trespasser; hence, the learned Trial Court answered Issue No.1 in

the affirmative, Issue No.2 partly in the affirmative, Issue No. 3

to 6 in the negative and partly decreed the suit.

9. Being aggrieved by the judgment and decree passed

by the learned Trial Court, the defendant No.3, Pyare Lal and

defendants No.1 and 2, Desh Raj and Lashkri Devi, and the

plaintiff filed separate appeals which were decided by the

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learned Additional District Judge, Una (learned Appellate Court).

The learned Appellate Court concurred with the findings

recorded by the learned Trial Court that the land in the earlier

suit was not connected to the suit land. The entries in favour of

the plaintiffs were not rebutted by the defendants. The

defendants had no title to retain possession. The plaintiffs were

entitled to get the possession of the room measuring 18 x 12 feet,

shown with the letters PQRS in the site plan, by demolition of

the superstructure. Hence, the appeal filed by the plaintiff was

allowed, whereas the appeals filed by the defendants were

dismissed.

10. Being aggrieved by the judgments and decrees passed

by learned Courts below, three separate appeals have been filed

before this Court. The appeal bearing RSA No.368 of 2006

preferred by the defendant Avtar Chand against the judgment

and decree passed by learned Appellate Court allowing the

plaintiffs appeal was dismissed by this Court for non-

prosecution on 22.12.2008 and the appeals filed by defendants

Des Raj and Lashkri Devi against the judgment and decree

dismissing their appeal and allowing the appeal filed by Avtar

Chand are pending before this Court.

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11. Both of these appeals were admitted on the following

substantial questions of law vide order dated 12.12.2007: -

1. Whether the impugned judgments are vitiated on account

of misreading and misconstruing the documents, i.e. the

revenue records, Ext. D1, D2, D4 and D12, wherein the

predecessors-in-interest of the appellants have been

recorded in possession over the suit land?

2. What is the effect of the decision of earlier suit No.247 of

1991 between the predecessors-in-interest of the parties

wherein the predecessors-in-interest of the respondents

had admitted and accepted the possession of

predecessors-in-interest the appellants and relinquished

their right on receiving a sum of Rs.110/- and both the

learned Courts below have erred in misconstruing the

judicial record of the earlier suit, which is on the file as

Ext.D8, D9 and D10?

3. Whether, in view of the earlier decision dated 11.4.1911 in

between the predecessors-in-interest of the parties, the

present suit was barred under the principle of res judicata?

12. An additional substantial question of law was framed

by the Court on 15.10.2024: -

Whether dismissal of RSA No.368 of 2006, for non-

prosecution, amounts to res-judicata and the present

appeals are liable to be dismissed, in view of the judgment

rendered by a Division Bench of this Court in Ramesh

Chand Vs. Om Raj, 2022(2) Shim L.C. 1145?

13. I have heard Mr. N.K Thakur, learned Senior

Advocate, assisted by Mr. Divya Raj Singh, learned counsel for

the appellant/defendant and Mr. Bhupender Gupta learned

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Senior Advocate, assisted by Mr. Janesh Gupta, learned counsel

for the respondents 1(a) to 1(c) and 2(a) to 2(e) in both the

appeals.

14. Mr Bhupender Gupta, learned Senior Counsel for the

respondents No.1(a) to 1(c) and 2(a) to 2(e), submitted that the

present appeals are not maintainable because the judgment

passed by the learned Appellate Court decreeing the suit has

attained finality after the dismissal of the appeal (RSA No.368 of

2006), filed by Avtar Chand. Such a finding will constitute a res

judicata in the present appeal. The principle of res judicata not

only applies to the matters adjudicated on merits, but also to the

matters dismissed for non-prosecution. Therefore, he prayed

that the present appeal be dismissed and the substantial

question of law framed on 15.10.2024 be answered in favour of

the respondents. He relied upon the judgment of this Court in

Asha Devi versus Dau Dayal (deceased) through his LRs, 2019

(Suppl.) Him L.R. 2683 and Prem Raj Sharma versus Baldev Verma,

2002(2) Shim. L.C. 74 in support of his submission.

15. Mr N.K. Thakur, learned Senior counsel for the

appellants/ defendants, submitted that the dismissal of the

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appeal filed by Avtar Chand would not affect the present appeal

because Order 41 Rule 4 of the CPC permits one of the

plaintiffs/defendants to obtain reversal of the whole decree

where it proceeds on the ground common to all even though the

other defendants have not filed the appeal. Hence, he prayed

that the substantial question of law be answered against the

defendants and that the earlier substantial questions of law be

adjudicated on the merits.

16. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

Substantial Question of Law framed on 15.10.2024

17. Almost a similar situation arose in Rameshwar Prasad

and others. vs Shyam Beharilal Jagannath and Ors. AIR 1963 SC

1901, wherein a decree was sought for the ejectment of the land.

One of the plaintiffs died, and the appeal abated for failure to

bring on record his legal representatives. It was submitted that

Order 41 Rule 4 of the CPC would permit the other plaintiffs to

continue with the appeal. The Hon’ble Supreme Court held that

Order 41 Rule 4 of CPC does not apply when the decree proceeds

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on a ground common to all and the appeal is dismissed qua some

of the defendants. It was observed: -

“12. The second contention really is that the surviving

appellants could have instituted the appeal against the

entire decree in view of the provisions of O. XLI, R. 4 of

the Code that they were therefore, competent to continue

the appeal even after the death of Kedar Nath and the

abatement of the appeal so far as he was concerned that

the Court could have reversed or varied the whole decree

in favour of all the original plaintiffs and could have

granted relief with respect to the rights and interests of

Kedar Nath as well. We do not agree with this contention.

Rule 4 of O.XLI reads:

"Where there are more plaintiffs or more

defendants than one in a suit, and the decree

appealed from proceeds on any ground common to

all the plaintiffs or to all the defendants, any one of

the plaintiffs or of the defendants may appeal from

the whole decree, and thereupon the Appellate

Court may reverse or vary the decree in favour of all

the plaintiffs or defendants, as the case may be."

These provisions enable one of the plaintiffs or one of the

defendants to file an appeal against the entire decree. The

second appeal filed in the High Court was not filed by

anyone or by even some of the plaintiffs as an appeal

against the whole decree, but was filed by all the plaintiffs

jointly, and, therefore, was not an appeal to which the

provisions of R. 4 of O. XLI could apply.

13. The appeal could not have been taken to be an appeal

filed by some of the plaintiffs against the whole decree in

pursuance of the provisions of R. 4 of O. XLI from the date

when the appeal abated so far as Kedar Nath was

concerned. If the appeal could be treated to have been so

filed, then it would have been filed beyond the period

prescribed for the appeal. At that time, the decree stood

against the surviving plaintiffs and the legal

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representatives of Kedar Nath. The legal representatives

could not have taken advantage of R. 4 of O. XLI. It follows

that R. 4 of O. XLI would not be available to the surviving

plaintiffs at that time.

14. Further, the principle behind the provisions of R. 4

seems to be that anyone of the plaintiffs or defendants, in

filing such an appeal, represents all the other non-

appealing plaintiffs or defendants as he wants the

reversal or modification of the decree in favour of them as

well, in view of the fact that the original decree proceeded

on a ground common to all of them. Kedar Nath was alive

when the appeal was filed and was actually one of the

appellants. The surviving appellants cannot be said to

have filed the appeal as representing Kedar Nath.

15. Kedar Nath's appeal has abated, and the decree in

favour of the respondents has become final against his

legal representatives. His legal representatives cannot

eject the defendants from the premises in suit. It will be

against the scheme of the Code to hold that R. 4 of O. XLI

empowered the Court to pass a decree in favour of the

legal representatives of the deceased Kedar Nath on

hearing an appeal by the surviving appellants, even

though the decree against him has become final. This

Court said in State of Punjab v. Nath Ram, AIR 1962 SC 89 at

p. 91:

"The abatement of an appeal means not only that

the decree between the appellant and the deceased

respondent has become final, but also, as a

necessary corollary, that the appellate Court

cannot, in any way, modify that decree directly or

indirectly. The reason is plain. It is that in the

absence of the legal representatives of the deceased

respondent, the appellate Court cannot determine

anything between the appellant and the legal

representatives which may affect the right of the

legal representatives under the decree. It is

immaterial that the modification which the Court

will do is one to which exception can or cannot be

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taken."

No question of the provisions of R. 4 of O.XLI overriding

the provisions of R. 9 of O.XXII arises. The two deal with

different stages of the appeal and provide for different

contingencies. Rule 4 of O. XLI applies to the stage when

an appeal is filed and empowers one of the plaintiffs or

defendants to file an appeal against the entire decree in

certain circumstances. He can take advantage of this

provision, but he may not. Once an appeal has been filed

by all the plaintiffs, the provisions of Order XLI, Rule 4

became unavailable. Order XXII operates during the

pendency of an appeal and not at its institution. If some

party dies during the pendency of the appeal, his legal

representatives have to be brought on the record within

the period of limitation. If that is not done, the appeal by

the deceased appellant abates and does not proceed any

further. There is thus no inconsistency between the

provisions of R. 9 of O.XXII and those of R. 4 of O.XLI,

C.P.C. They operate at different stages and provide for

different contingencies. There is nothing common in

their provisions which make the provisions of one

interfere in any way with those of the other.

18. Therefore, the plea that the appeal can continue by

taking recourse to Order 41 Rule 4 of the CPC cannot be accepted.

19. The effect of dismissal of the appeal filed by Avtar

Chand questioning the decree of the suit is that the decree of

vacant possession in favour of the plaintiffs has attained finality.

In case the present appeals are adjudicated, and the suit is

dismissed, it would lead to conflicting decrees — one dismissing

the suit passed in the present appeals, namely, RSA Nos. 366 and

365 of 2006, and the other decreeing the suit passed in the

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previous appeal filed by Avtar Chand, registered as RSA No. 368

of 2006. Therefore, it is impermissible to set aside a final decree

and order the dismissal of the suit, the precise relief that has

been claimed in the present appeal. Hence, the necessary

consequence of the dismissal of the earlier appeal would be that

the present appeals are to be dismissed as barred by the

principle of res judicata. In Prem Raj (supra), the suit was

dismissed under Order 17 Rule 3 of the CPC, and it was held by

this Court that the judgment of dismissal amounts to res

judicata. It was observed:

43. Examining the present appeal in the light of the facts

as enumerated hereinabove as well as on the basis of the

decisions of different courts including Supreme Court of

India, I am of the considered view that the relief having

been not expressly allowed in the earlier suit filed by the

defendant shall be deemed to have been declined to him

and thus mere non decision of all of those issues as was

urged on his behalf of the defendant does not stop the

operation of Section 11 Explanation (V) of the Code of Civil

Procedure. Once the judgment was passed under Order 17

Rule 3 CPC particularly when identity of title to property

in both the suits was/is the same, parties were/are the

same and Court was competent to have adjudicated; then

on the basis of the legal position explained above it can be

safely said that the claim of the defendant stood

negatived in the earlier suit. Therefore, questions No. 1

and 6 are decided against the defendant.

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20. A similar view was taken in Asha Devi (supra),

wherein it was observed:

32. It is, thus, clear from the aforesaid exposition of law

that a decision rendered under the provisions of Order

XVII Rule 3 CPC will operate as res judicata and bar a

second suit for the same relief, i.e. mandatory injunction.

Therefore, the suit in the present appeal is clearly not

maintainable and barred by res judicata.

21. Therefore, the effect of the dismissal of the RSA No.

368 of 2006 would be that the present appeals also cannot

proceed further. Hence, the substantial question of law is

answered accordingly.

Substantial Question of Law No. 1 to 3:

22. These substantial questions of law have become

redundant because the appeal is liable to be dismissed because of

the dismissal of the earlier RSA No. 368 of 2006; hence, the

substantial questions of law are held to be redundant.

Final Order:

23. In view of the above, the present appeals fail and are

dismissed

24. Pending application(s), if any, also stand(s) disposed

of.

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25. Records of the learned Courts below be sent down

forthwith.

(Rakesh Kainthla)

Judge

16

th

April, 2026

(Chander)