JUDGMENT Dharam Chand Chaudhary, J. Defendant No.7 in Civil Suit is in second appeal before this Court. He is aggrieved from the judgment and decree dated 27.6.2001 passed by learned lower Appellate Court, whereby the appeal he preferred alongwith defendant No.9 Budh Ram, has been dismissed and the judgment and decree dated 31.3.1999 passed by learned Senior Sub Judge, Kullu, in Civil Suit No.177/91, decreeing thereby the suit filed by respondent No.1, hereinafter referred to as “the plaintiff”, affirmed. 2. The suit was filed for possession of the land, detailed here-as-under: (A)—(i) land measuring 1-17-0 bighas, as comprised in Khasra No.795, 796, 797, 798 and 799 of Khata Khatauni No.23/37; (ii) Land measuring 0-7-0 bighas, being 12/44 share of land measuring 1-7-0 bighas, comprised in Khasra No.855 of Khata/Khatauni No.97/151; (iii) land measuring 0-6-0 bighas, being 6/50 share of land measuring 2-10-0 bighas, comprised in Khasra No.800 of Khata/Khatauni No.137/210; (iv) land measuring 0-1-10 bighas, being 3/11 share of land measuring 0-5-0 bighas comprised in Khasra No.1217/832 and 1218/832 of Khata/Khatauni No.269/408; incorporated in Jamabandi for the year 1986-87 of Phati Dawara Kothi, Baragarh, Tehsil and District Kullu, by way of specific performance of agreement to sell dated 12.12.1988 on payment of balance sale consideration of Rs.15,000/- by executing requisite registered sale deed in favour of the plaintiff and by doing all such other acts as are necessary to confer absolute title on the plaintiff. (B)—and for declaration that the sale deed dated 23.11.90 whereby Hira Lal defendant No.8 has sold land measuring 0-16-7 bighas, being 6/11 share of land measuring 1-10-0 bighas comprised in Khasra Nos. 796, 797, 798 and 799 of Khata/Khatauni No.23/37 incorporated in Jamabandi for the year 1986-87 of Phati Dawara Kothi Baragarh, Tehsil and District Kullu, is null and void and not binding on the plaintiff. 3. However, it is only the land entered in Khata/Khatauni No.23/37, comprised in Khasra Nos.795, 796, 797, 798 and 799, hereinafter referred to as “the land in dispute”, the subject matter of dispute in the present lis. 4. 3. However, it is only the land entered in Khata/Khatauni No.23/37, comprised in Khasra Nos.795, 796, 797, 798 and 799, hereinafter referred to as “the land in dispute”, the subject matter of dispute in the present lis. 4. The suit land was in the joint ownership and possession of Dila Ram, the predecessor-in-interest of respondents No.3 to 6; Neel Chand, the predecessor-ininterest of respondents No.7 to 11 and Fateh Chand (Defendants No. 1 to 6 in the main suit) as well as deceased Budh Ram, the predecessor-in-interest of respondents No.2 (a) and 2(b), defendant No.9 and Hira Lal, the predecessorin-interest of respondents No.13 and 14, defendant No.8 in the trial Court. 5. Deceased Dila Ram was in cultivating possession of the land in dispute measuring 1-17-0 Bighas. He agreed to sell this land vide agreement to sell dated 12.12.1989 Ext. PW4/A to the plaintiff alongwith other land bearing Khasra No.855, Khewat No.97/151 measuring 0-7 Biswas, Khasra No.800, Khata/Khatauni No.137/210, measuring 0-6 Biswas, Khasra No.1217/832 and Khasra No.1219/832, measuring 0-1-10 Biswansi, in a sum of Rs.45,000/-. The agreement was reduced into writing by PW-4 Hari Chand, Advocate, Kullu and witnessed by PW-5 Megh Nath and one Shri Mehar Chand. The part payment of the sale consideration, i.e. Rs.30,000/- was made at the time of execution of the agreement aforesaid; whereas the remaining amount of Rs.15,000/- had to be paid at the time of execution of the sale deed, which was agreed to be executed within one year from the date of execution of the agreement, i.e. 12.12.1989. The plaintiff allegedly was always ready and willing to perform his part of the contract on payment of the balance sale consideration. He approached deceased Dila Ram for execution of the sale deed, however, the latter being old and ailing person could not execute the same and in the meanwhile, died in October, 1990, i.e. well before the period of one year. The plaintiff then approached defendants No. 2 to 6, who succeeded deceased Dila Ram and requested them to execute the sale deed, however, they flatly refused to do so. In the meanwhile, deceased defendant No.8 Hira Lal sold 1-10-0 bighas land out of the land in dispute to defendant No.7 Ses Ram, vide sale deed dated 23.11.1990 Ext. DW2/A, knowing fully well that the land in dispute had already been sold by deceased Dila Ram to the plaintiff. In the meanwhile, deceased defendant No.8 Hira Lal sold 1-10-0 bighas land out of the land in dispute to defendant No.7 Ses Ram, vide sale deed dated 23.11.1990 Ext. DW2/A, knowing fully well that the land in dispute had already been sold by deceased Dila Ram to the plaintiff. This has led in filing the suit for the relief, as pointed out at the outset. 6. The defendants, when put to notice, filed the written statement. Defendants No.1 to 4 have virtually admitted the case as set out in the plaint except that they could not execute the sale deed in favour of the plaintiff on the basis of agreement to sell for the reason that defendant No.8 had already executed a void sale deed in favour of defendant No.7. They, however, have shown their readiness and willingness to perform their part of the contract. 7. Defendant No.8 Hira Lal in a separate written statement filed on his behalf has also admitted the entire case, as set out in the plaint and also that since in his Hissedari Khata he was recorded in possession of the suit land over and above his actual share, therefore, defendant No.7 taking undue advantage of that situation, managed to execute the sale deed Ext. DW2/A, merely on the basis of his vague “Hissedari” possession, by showing Rs.10000/-, as the sale consideration, but actually paid Rs.2000/- only. 8. Defendant No.7 and 9 in the joint written statement filed on their behalf have submitted that since deceased Dila Ram was not exclusive owner in possession of the suit land, therefore, he had no right of whatsoever nature to sell the suit land to the plaintiff. On the other hand, since Hira Lal was in possession of 1-0-0 bigha of land, therefore, he has rightly conveyed the same to defendant No.7 vide registered sale deed (Ext.DW2/A) in the presence of the plaintiff, who as a matter of fact, was Lumberdar. The agreement Ext. PW4/A, therefore, is stated to be null and void having no force of law. 9. On such pleadings of the parties, the following issues were framed: 1. Whether the deceased Dila Ram was owner in possession of the suit land, as alleged? OPP. 2. Whether deceased Dila had executed an agreement to sell in favour of plaintiff for sale consideration of Rs.45,000/-, on 12.12.1989, as alleged? OPP. 3. 9. On such pleadings of the parties, the following issues were framed: 1. Whether the deceased Dila Ram was owner in possession of the suit land, as alleged? OPP. 2. Whether deceased Dila had executed an agreement to sell in favour of plaintiff for sale consideration of Rs.45,000/-, on 12.12.1989, as alleged? OPP. 3. Whether the deceased Dila has received Rs.30,000/- as earnest money from the plaintiff? OPP. 4. Whether the plaintiff is ready and willing to perform his part of contract, as alleged? OPP 5. Whether the plaintiff has got no locusstandi and cause of action to file the present suit? OPD-7 and 9. 6. Whether the suit is not maintainable in the present form? OPD 7 & 9. 7. Whether the suit is bad for non-joinder and mis-joinder of necessary party, as alleged? OPD 7 &9. 8. Whether defendant No.7 is a bonafide purchaser for value and consideration. If so, its effect? OPD-7. 9. Whether the plaintiff is estopped by its act and conduct from filing the present suit as alleged? OPD-7&9. 10. Relief. 10. While answering issue No.1 to 4, learned trial Judge has arrived at a conclusion that deceased Dila Ram was in exclusive possession of the land in dispute and that he had agreed to sell the same to the plaintiff in a sum of Rs.45,000/-, out of which Rs.30,000/- were paid in advance and the remaining amount was agreed to be paid at the time of execution of the sale deed. The plaintiff was ready and willing to execute the sale deed on payment of balance sale consideration, however, deceased Dila Ram and his successors-in-interest failed to execute the same. Remaining issues No. 5 to 9 have been answered against defendants No.7 and 9. Consequently, the decree of specific performance of the agreement to sell with respect to the land in dispute was passed against defendants No. 1 to 6 and the sale deed dated 23.1.1990 Ext. DW2/A executed by deceased defendant Hira Lal in favour of appellant-defendant No.7 Ses Ram was declared null and void and not binding on the plaintiff. 11. The contesting defendants, i.e. 7 and 9, assailed the judgment and decree passed by learned trial Judge before learned District Judge, Kullu, however, unsuccessfully, because the appeal was dismissed, vide judgment and decree, under challenge in the present appeal. 12. 11. The contesting defendants, i.e. 7 and 9, assailed the judgment and decree passed by learned trial Judge before learned District Judge, Kullu, however, unsuccessfully, because the appeal was dismissed, vide judgment and decree, under challenge in the present appeal. 12. The legality and validity of the impugned judgment and decree has been assailed on the grounds, inter alia, that both the Courts below have committed material illegality and irregularity in not framing all the issues, arising out of the pleadings of the parties. The plea that defendant No.5 Neel Chand died during the pendency of the suit in the trial Court and the judgment and decree passed by learned trial Court without taking consequential steps on his death being nullity should have been quashed and set aside, raised before learned lower Appellate Court, has not been taken into consideration nor any findings recorded thereon. The evidence showing Hira Lal as coowner of the suit land has been erroneously ignored and in admissible evidence, such as plea of private partition, which was not at all proved, has been given undue weightage. The judgment and decree Ext. DX and DY in Civil Suit No.67/1994 filed by defendant No.7 qua the suit land and the provisions contained under the H.P. Land Revenue Act, are stated to be ignored erroneously. The plea raised by Hira Lal in the written statement that he had already sold his share in the joint land is stated to be given undue weightage, as he neither stepped into the witness box nor assailed the judgment and decree Ext. DX and DY. Both the Courts below have allegedly erroneously concluded that the judgment and decree Exts. DX and DY were not binding on the plaintiff on account of he being not party in the suit, as according to the appellant-defendant, even if the plaintiff was not a party in that suit, the judgment and decree being a substantive piece of evidence should have been taken into consideration and not brushed aside. The evidence that deceased Dila was paying cess (baach) to the irrigation society on account of irrigation charges qua the suit land vide entries Ext. PW3/A, PW3/B and PW3/C could have not been taken to exclude the other co-sharers from the suit land. The evidence that deceased Dila was paying cess (baach) to the irrigation society on account of irrigation charges qua the suit land vide entries Ext. PW3/A, PW3/B and PW3/C could have not been taken to exclude the other co-sharers from the suit land. Since the land in dispute was validly sold to appellant-defendant vide registered sale deed, the suit of the plaintiff for the discretionary relief of specific performance of the agreement should have not been decreed. 13. This appeal has been admitted on the following substantial questions of law: 1) Whether the judgments and decrees passed by both the Courts below are nullity having been passed against a dead person, i.e. defendant No.5 Shri Neel Chand, who expired during the pendency of the suit and whose legal representatives were not brought on record in the trial Court in time. Has not the lower Appellate court failed to exercise the jurisdiction in not taking into consideration this fact while deciding the appeal? 2) Whether the Courts below have acted in an erroneous and perverse manner in not relying on the entries from the revenue record showing Shri Hiara Lal to be the joint owner having title in the land sold by him to the defendant-appellant? Could the presumption attached to such entries be held to be rebutted by a plea of private partition which did not stand proved and was not in consonance with the provisions of the H.P. Land Revenue Act? 3) When the sale deed in favour of the defendant-appellant was executed on the basis of the judgment and decree passed in Civil Suit No.67/94, which decree attained its finality between the parties to the said suit, could such sale deed to be declared illegal, null and void without there being any specific challenge to the said decree made by the plaintiff-respondent on permissible grounds in accordance with law? Have not both the courts below on erroneous and perverse ground held the sale deed to be illegal and null and void, merely by observing that the said decree is not binding on the plaintiff?” 14. Mr. Have not both the courts below on erroneous and perverse ground held the sale deed to be illegal and null and void, merely by observing that the said decree is not binding on the plaintiff?” 14. Mr. Bhupender Gupta, learned Senior Advocate has argued that on account of the death of defendant No.5 Neel Chand during the pendency of the suit in the trial Court itself, the suit stood abated as a whole because no steps were taken either for substitution of the legal representatives of the said defendant nor setting aside the abatement of the suit and as such the judgment and decree passed against a dead person being a nullity has been sought to be quashed. It has also been pointed out that the suit land was joint and not partitioned. According to Mr. Gupta, even if there was some family arrangement for the convenience of cultivation of land, the characteristics of jointness of the land in dispute cannot be taken away by such arrangement. Hence, the sale of land in dispute to appellant-defendant No.7 could have not been held illegal, merely because of the reason that deceased defendant Hira Lal was not in possession thereof. 15. On the other hand, Shri Sanjeev Kuthiala, learned counsel, representing the respondent-plaintiff while making reference to the provisions under Order 22 Rule 6 CPC has contended that since defendant Neel Chand died after hearing the arguments in the suit and before pronouncement of the judgment, therefore, there is no question of abatement of the suit. It has also been pointed out that said Neel Chand neither opted for putting appearance in the trial Court despite service nor filed the written statement. Therefore, according to Mr. Kuthiala, there is no question of abatement of the suit as a whole on his death, particularly when the appellant-defendant himself brought on record his legal representatives (respondents No.7 to 11 herein). On merits, while inviting the attention of this Court to the written statement filed on behalf of deceased Hira Lal and also the documents Exts. DA to DF, particularly Ext. DF, it has been submitted that said Hira Lal had sold the land over and above his share out of the joint land and as such left with no title in the land in dispute. DA to DF, particularly Ext. DF, it has been submitted that said Hira Lal had sold the land over and above his share out of the joint land and as such left with no title in the land in dispute. The appellant-defendant, therefore, was not a bonafide purchaser and the sale of the land in dispute to him, is void. It has also been pointed out that the Courts below have rightly ignored the judgment and decree Exts. DX and Dy in Civil Suit No.67/94 being passed behind the back of the plaintiff. It has also been contended that since the challenge to the impugned judgment is now only on behalf of defendant No.7 Ses Ram, the judgment and decree qua remaining defendants have attained finality. 16. On analyzing the rival submissions and also the entire record, it is seen that arguments in the suit were heard by learned trial Judge on 24.2.1999. Defendant No.5 Neel Chand, as per ground of appeal No.2, raised by the appellant-defendant No.7 himself in the lower appellate Court, had passed away on 16/17th March, 1999. The trial Court has passed the judgment and decree in the suit on 31.3.1999. The present, therefore, is a case where the death of defendant No.5 occurred after hearing the arguments in the suit and before pronouncement of the judgment. Order 22 Rule 6 CPC deals with such a situation. The Apex Court in N.P. Thirugnanam (D) by LRs Vs. Dr. R. Ragan Mohan Rao and others, AIR 1996 SC 116 , has discussed the scope of the provisions contained under Order 22 Rule 6 of the Code of Civil Procedure and held that in a situation where the party to the suit expires after hearing the arguments and before pronouncement of the judgment, the appeal does not abate. The ratio of the judgment reads as follows: “3. The ratio of the judgment reads as follows: “3. Rule 6 of Order 22 provides that: "No abatement by reason of death after hearing:-"Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place." In the face of the explicit language in Rule 6 of Order 22, there can be no abatement by reason of the death of any party between the conclusion of the hearing and the pronouncement of the judgment. It may be pronounced, notwithstanding the death, and shall have the same force and effect as if judgment had been pronounced before the death took place. Therefore, the contention that the judgment and decree of the appellate court is a nullity is devoid of substance.” 17. True it is that in the case in hand the factum of death of deceased defendant No.5 was not brought to the notice of the trial Court by the plaintiff, may be for the reason that the suit at the time of his death was reserved for pronouncement of judgment. However, on pronouncement of the judgment and decree, it is the defendant-appellant, who has impleaded the legal representatives of deceased defendant No.5 as respondents No.6 to 10 in the appeal before learned lower Appellate Court. They have been now on record, of course, without there being any order to this effect allowing/disallowing their substitution as parties in the lis either by learned trial Court or by learned lower Appellate Court. Learned lower appellate Court has not adverted to the ground raised in this behalf in the appeal. True it is that for want of consequential steps within the stipulated period on the death of a party to the suit, the same abates automatically and the judgment and decree, if any, passed against such person is nullity. Learned lower appellate Court has not adverted to the ground raised in this behalf in the appeal. True it is that for want of consequential steps within the stipulated period on the death of a party to the suit, the same abates automatically and the judgment and decree, if any, passed against such person is nullity. However, Order 22 Rule 4(4) CPC deals with a situation, where a party does not put in appearance despite service nor contest the suit, the name of such party on his/her death can be ordered to be deleted as his/her absence on account of death and non substitution of his/her legal representatives would hardly make any difference nor would change the outcome of the suit/appeal. The present being a case where defendant Neel Chand had failed to put in appearance despite service and rather ordered to be proceeded against exparte, the suit/appeal on his death does not abate nor the non-substitution of his L.Rs on his death is fatal to the plaintiff’s case. Learned Senior Advocate for the defendant-appellant has failed to persuade this Court to take a view other than the one hereinabove supported by law. 18. Therefore, in view of the express provisions contained under Order 22 rule 4(4) and under Order 22 rule 6 CPC and also the ratio of the judgment of the Apex Court supra, the present is a case where it would not be improper to conclude that failure of the plaintiff to take consequential steps on the death of defendant Neel Chand is of no consequence in the present lis and on this score the impugned judgment and decree cannot be said to be legally and factually unsustainable. 19. If adverting to the 2nd substantial question of law, deceased defendant Hira Lal was joint owner in possession of the suit land to the extent of 14-2-3 bighas, as discussed by learned trial Court while answering issue No.8. The documentary evidence, in the form of Jamabandis Exts. DA to DF, particularly Ext. DF, reveals that he had sold the land in his share to several persons and entries to that effect find recorded in the remarks column thereof. As a matter of fact, learned trial Judge has noticed that deceased Hira Lal had sold land measuring 14-4-0 Bighas as compared to his share i.e. 14-2-3 Bighas. DA to DF, particularly Ext. DF, reveals that he had sold the land in his share to several persons and entries to that effect find recorded in the remarks column thereof. As a matter of fact, learned trial Judge has noticed that deceased Hira Lal had sold land measuring 14-4-0 Bighas as compared to his share i.e. 14-2-3 Bighas. Deceased defendant Hira Lal has admitted in the written statement that he had sold the entire land in his share in the suit land. He, therefore, was not left with any share in the suit land. Appellant-defendant No.7 seems to have taken undue advantage of the entries in the revenue record still showing defendant Hira Lal as coowner in possession of the suit land and on account of such wrong revenue entries, the possibility of the execution of sale deed Ext.DW2/A having been managed by the latter with respect to the land in dispute cannot be ruled out, because Hira Lal in the written statement has stated that it is simply on the basis of the entries in the revenue record, defendant No.7 has managed the execution of the sale deed by showing the sale consideration Rs.10,000/- therein, but actually paid Rs.2000/- only. Defendant No.7 no doubt has himself stepped into the witness box as DW-7 and examined the scribe DW-2 Shri D.C. Kapoor, Advocate and the attesting witness DW-3 Ashwani Kumar. However, in view of the evidence discussed hereinabove, when the vendor deceased Hira Lal had not been left with any share in the suit land, the sale deed Ext.DW2/A has rightly been held to be null and void and not binding on the plaintiff. No doubt HIra Lal did not step into the witness box, however, averments in the written statement to the extent that he sold his share in the suit land being supported by documentary evidence Exts. DA to DF, have to be given due weightage. 20. There is no quarrel that the land can only be said to be partitioned amongst the co-sharers only by due process of law, i.e. through revenue agency. But at the same time, the private partition is also legally admissible, however, the same is required to be reported to the revenue authorities and instrument thereto, after effecting the partition between the parties and verifying their possession on the spot, is also required to be prepared. 21. But at the same time, the private partition is also legally admissible, however, the same is required to be reported to the revenue authorities and instrument thereto, after effecting the partition between the parties and verifying their possession on the spot, is also required to be prepared. 21. On behalf of the defendant-appellant, reliance has been placed on the judgment in Mangat Ram Vs. Gulat Ram (since deceased) through his LRS Jagdeep Kumar and others, Latest HLJ 2011 (HP) 274, Sunder and others Vs. Hukmi Devi and others, 1999(1) CLJ (HP) 314 and K.P. Singh alias Karanvir Vs. Sewak Ram and others, Latest HLJ 2009 (HP) 694. There is no quarrel qua the law laid down in the judgments, ibid, however, of no help in this case. 22. Of course, there is no evidence that on the basis of such private partition/family arrangement, the instrument of partition, as required under Section 134 of the H.P. Land Revenue Act, has been prepared by the revenue authorities. The present, therefore, is a case where though the partition in accordance with law has not taken place, however, it stands proved on record that deceased Dila Ram was in possession of the land in dispute by way of family arrangement, may be for the convenience of cultivation thereof. Hence, he could have conveyed the same to the plaintiff by way of sale being one of the cosharers and not in the capacity of absolute owner. Therefore, the land in dispute agreed to be sold to the plaintiff is still a subject matter of legal and valid partition amongst the co-sharers. 23. Even learned lower Appellate Court, on the basis of law discussed in paras 12 and 13 of the impugned judgment, has held that a co-sharer can put the vendee in possession of a specific portion of the joint land, which was in his possession. The possession of deceased Dila Ram is even substantiated from the cess (Baach) being paid to the Irrigation Society on account of maintenance charges of Kuhl, as is evident from the documentary evidence Exts. PW3/A to PW3/C. 24. Both the Courts below, therefore, have neither committed any illegality nor irregularity and rather have rightly held the sale deed Ext. DW2/A as illegal, null and void. Therefore, the above substantial question of law also does not arise in the present appeal. 25. If coming to the judgment and decree Ext. PW3/A to PW3/C. 24. Both the Courts below, therefore, have neither committed any illegality nor irregularity and rather have rightly held the sale deed Ext. DW2/A as illegal, null and void. Therefore, the above substantial question of law also does not arise in the present appeal. 25. If coming to the judgment and decree Ext. DX and DY passed in Civil Suit No.67/94, in my considered opinion, both the Courts below have rightly ignored the same, being obtained by the defendant-appellant behind the back of the plaintiff, that too knowing fully that on the day when Civil Suit No.67/94 was filed by him without impleading the plaintiff as defendant therein, the present suit, already instituted on 31.7.1991, was pending disposal in the Court. Appellant-defendant No.7 was well within the knowledge of the pendency of the present suit, because he had not only entered his appearance, but also filed the written statement. The land in dispute was the subject matter of dispute in that suit. Therefore, filing of an independent suit, i.e. C.S. No.67/94 for declaration that sale deed Ext.DW2/A is legal and valid, that too in the Court of Senior Sub Judge, Lahaul & Spiti at Kullu, without disclosing therein the pendency of the present suit in the Court of Senior Sub Judge, Kullu, itself speaks in plenty qua the act and conduct of the said defendant. 26. Otherwise also, the judgment and decree Ext. DX and Dy is only a piece of evidence so far as this suit is concerned. It has even been admitted by defendant No.7 also in the grounds of appeal. Therefore, the judgment and decree Ext. DX and DY being merely a piece of evidence have been duly considered by both the Courts below and rightly rejected. No doubt, the sale deed Ext. DW2/A vide judgment and decree Ext. DX and DY has been held legal and valid, however, at the same time, in the peculiar facts and circumstances of this case and the evidence available on record, as discussed hereinabove, rightly held as null and void by both the Courts below. Therefore, on this score also, I find no illegality or infirmity in the judgment and decree under challenge in the present appeal. 27. Therefore, on this score also, I find no illegality or infirmity in the judgment and decree under challenge in the present appeal. 27. The net result of the discussion hereinabove would, therefore, be that neither the findings recorded by both the Courts below can be said to be perverse nor the impugned judgment and decree suffers from any illegality or infirmity. The same rather being passed on proper appreciation of the material available on record is legally and factually sustainable, hence deserves to be upheld and the present appeal dismissed. 28. For all the reasons hereinabove, this appeal fails and the same is accordingly dismissed, however, with no order as to costs.