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2009 DIGILAW 1348 (HP)

CHHERING NORBU v. SONI DEVI

2009-12-24

DEEPAK GUPTA

body2009
JUDGMENT Deepak Gupta, J.- These two appeals are being disposed of by one JUDGMENT since common question of facts and law are involved in these appeals. 2. The undisputed facts are that Smt. Soni Devi was married to Shri Sher Singh, brother of Chhering Norbu and Angroop. It is also undisputed that the parties belong to the Lahaul District and fall in a scheduled tribe area within the meaning of Clause 25 of Article 366 of the Constitution of India. 3. After the death of Shri Sher Singh, the inheritance regarding the land of Shri Sher Singh was mutated in favour of Soni Devi. However, Chhering Norbu and Angroop filed an appeal before the Collector, Lahaul and Spiti challenging the attestation of mutation in favour of Soni Devi. Thereafter, Soni Devi filed Civil Suit No. 88 of 2000 in the Court of the learned Senior Sub Judge, Lahaul and Spiti on 28.6.2000. She prayed for a decree for permanent prohibitory injunction restraining the defendants from interfering in her possession or ousting her from the suit land. The defendants filed written statement on 21.7.2001 stating that the suit is barred by the principle of res judicata and lis pendens as Civil Suit No. 108 of 2000 is pending between the same parties. According to the defendants, the plaintiff was not the wife of deceased Sher Singh and Sher Singh had executed a Will dated 1.2.1996 in their favour and therefore, they had become owners in possession of the suit land. 4. It would be pertinent to mention that Chhering Norbu and Angroop had also filed a Civil Suit being Civil Suit No. 108 of 2000 in the Court of learned Senior Sub Judge, Lahaul and Spiti. This Civil Suit was filed on 15.7.2000 i.e. after the suit filed by Soni Devi. In this suit it was alleged by them that the defendant had married their brother Sher Singh but during his life time she had separated from Sher Singh and their marriage was dissolved in the year 1990 as per the local custom. According to them, she had no right in their property and they also alleged that the deceased had executed a Will in their favour. 5. Both the suits should have been tried together but unfortunately this was not done. The suit filed by Soni Devi was heard and decided in her favour. According to them, she had no right in their property and they also alleged that the deceased had executed a Will in their favour. 5. Both the suits should have been tried together but unfortunately this was not done. The suit filed by Soni Devi was heard and decided in her favour. Thereafter, the suit filed by Chhering Norbu and his brother Angroop was dismissed on the ground that the dispute was covered by the earlier JUDGMENT. The appeals filed by Chhering Norbu and Angroop were dismissed. Hence the present appeals. 6. I have heard Shri S.S.Mittal, learned senior counsel on behalf of the appellants and Shri K.D.Sood, learned counsel for the respondent. 7. It is urged on behalf of the appellants that the learned trial Court erred in not taking up both the matters together. It is also alleged that the Courts below erred in holding that the decision taking the suit of Soni Devi would operate as res judicata in the suit filed by Chhering Norbu and Angroop. In this regard, the main contention is that the principal of res judicata would not apply since no such plea was raised and the principle would only apply in case the matter had been decided prior to the decision of the case. In my view it definitely would have been better if the trial Court had consolidated both the suits and decided them together since the questions involved in both the suits were identical. Having said so, it is the duty of the parties to also take appropriate steps in the matter. Chhering Norbu through his counsel did file an application for consolidation of the suits but no document i.e. the pleadings in the other case was filed and in the absence of the pleadings the learned trial Court had no option but to reject this application. One of the main issues in both the suits was whether Sher Singh had executed a Will in favour of his brothers. They were the propounders of the Will. They did not produce the original Will in either case. An application for leading additional evidence was filed by Chhering Norbu and his brother Angroop before the trial Court seeking permission to lead secondary evidence regarding the Will on the ground that the original Will was filed in the Court of the Collector. This application was not pressed and dismissed as such on 19.7.2004. An application for leading additional evidence was filed by Chhering Norbu and his brother Angroop before the trial Court seeking permission to lead secondary evidence regarding the Will on the ground that the original Will was filed in the Court of the Collector. This application was not pressed and dismissed as such on 19.7.2004. Not only this Chhering Norbu and his brother Angroop also filed an application under Section 10 for stay of the proceedings of the Civil suit filed by Soni Devi. They did not press this application also and the same was dismissed as withdrawn. Knowing all these facts the matter was contested and the evidence was recorded in the suit filed by Soni Devi. The Will was not produced or proved. No evidence was led with regard to any custom showing that Soni Devi had no right to inherit the property of her husband. The learned Trial Court accordingly decreed the suit of Soni Devi. 8. In the suit filed by Chhering Norbu and Angroop, the defendant proved and placed on record the JUDGMENT in the earlier suit as Ext.DA. The learned trial Court held that in view of this previous adjudication of the claim between the parties the second suit was covered by the principle of res judicata and had to be decided in favour of Soni Devi. He accordingly dismissed the suit. 9. I have gone through the evidence in both the cases. No evidence qua the Will has been led in either case. In any event having contested the suit filed by Soni Devi on merits, Chhering Norbu and Angroop the defendants in that suit cannot now pray that both the suits should be sent back for trial afresh after consolidating them. 10. It may be true that, that might have been better course but at this stage of the proceedings no purpose would be served in remanding the matters. Therefore, I find that no question of law much less a substantial question of law arises in the second appeals. 11. The same are accordingly rejected.