( 1 ) THE respondents herein filed a civil suit on their own behalf and on behalf of the residents for a declaration that they along with other residents of village Gurshali, Pargana Kemli, Tehsil and District Shimla have a grazing right over an area-measuring 60 bighas and 1 biswa. The appellant was arrayed as one of the defendants in the suit. The appellant claimed himself as an owner and in possession of land measuring 23 bighas 5 biswas and asserted the same in pursuance of decree dated 20-3-1979 in Civil Suit No. 215/1 of 1974. The trial court dismissed the suit holding that the relief prayed for by the plaintiff-respondents cannot be granted as the decree dated 20-3-1979 has become final and binding. Thereafter the plaintiff-respondents preferred an appeal which was dismissed. However, the High Court allowed the second appeal and the decree of the court below was set aside and the suit was decreed. It is against the judgment of the High Court, the defendant-appellant has preferred this appeal. ( 2 ) THIS Court on 9-9-1991 issued notice limited to the question whether grazing right granted should be limited to an extent of 37 bighas and 5 biswas of land. On 11-11-1991 this Court granted leave limited to the land comprising 23 bighas and 5 biswas. ( 3 ) LEARNED counsel, appearing for the appellant, urged that the High court has committed serious error of law in holding that the plaintiff-respondents have also grazing right over the land measuring 23 bighas and 5 biswas. His further contention is that the High Court while decreeing the suit had neither examined nor considered the case of the appellant that he was the owner of 23 bighas and 5 biswas of land. The argument has substance. We have gone through the judgment and found that the High Court after referring to the case of the appellant has not examined the question as to whether the appellant is the owner and in possession of 23 bighas and 5 biswas of land. In absence of such consideration, the judgment of the High Court to the extent it held that the plaintiff-respondents have also grazing right over 23 bighas and 5 biswas of land, is not sustainable. In absence of such consideration, the judgment of the High Court to the extent it held that the plaintiff-respondents have also grazing right over 23 bighas and 5 biswas of land, is not sustainable. Consequently, the judgment of the High Court to the extent it granted grazing right to the plaintiff-respondents over an area of 23 bighas and 5 biswas is set aside. However, this judgment would be subject to the decision in suit filed by the State of Himachal Pradesh in the Court of Sub-Judge, Shimla. ( 4 ) THE appeal is allowed in part. There shall be no order as to costs.