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IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION  

CIVIL APPEAL NO. 2699   OF 2002

HEM SINGH (DEAD) BY L.RS.  AND ORS.        Appellant(s)

                    :VERSUS:

GIANOO AND ORS.                            Respondent(s)

O R D E R

We have heard the learned counsel for the parties.  

This appeal is directed against the judgment and  

order  dated  17.4.2000  passed  by  the  High  Court  of  

Himachal  Pradesh  at  Shimla  in  Regular  Second  Appeal  

No.229 of 1989, whereby the judgment and decree passed by  

the learned Additional District Judge, Mandi, was set  

aside  and  the  appeal  filed  by  the  respondents  was  

allowed.   

This case has a checkered history.   

The appellants herein were the plaintiffs in  a  

suit, bearing No.123/136 of 1964/1965, filed with the  

prayer  for  a  mandatory  injunction  in  which  the  

respondents herein were the defendants. The said suit was

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decreed in favour of the plaintiffs and the defendants  

were  restrained  from  interfering,  in  any  manner,  in  

Khasra  No.1665  measuring  5-0-9  Bighas,  situated  in  

Village Bakarta, Tehsil Sarkaghat.   

The respondents, aggrieved by the order passed by  

the  learned  Senior  Sub  Judge,  Mandi,  filed  an  appeal  

before the District Judge, Mandi.  During the pendency of  

the  said  appeal,  the  parties  entered  into  a  

compromise/family  arrangement  on  the  basis  of  the  

statement  of  Nandlal  (defendant  No.31  in  the  suit)  

According to  the compromise/family  arrangement, Khasra  

No.611 came to the share of the appellants and Khasra  

No.1655 had gone to the share of Nandlal.  The compromise  

entered into by Nandlal reads as under:

“State  that  we  respondents  are  owners  of  

Khasra  No.611  measuring  4-12-15  bighas,  on  

this disputed land possession recorded is also  

ours. Kind of land shown in Khadayan (grazing  

land).  On  this  area  the  appellants  who  are  

potters by caste, have a right to take earth.  

I have no objection to the same. The appellant  

can use this area for taking earth for pottery  

as they have been doing from before.  I take  

responsibility for other shares.  

  Sd/- Nandl Lal”

It may be pertinent to mention that the appellants

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filed another suit bearing Civil Suit No.34/176/103/84  

which  was  dismissed  by  the  Sub  Judge,  First  Class,  

Sarkaghat, Distt. Mandi, on 25.9.1985.  The appellants,  

aggrieved  by  the  order  of  the  Trial  Court  dated  

25.9.1985,  preferred  an  appeal  before  the  Additional  

District Judge, Mandi.  The learned Additional District  

Judge,  Mandi,  passed  a  comprehensive  judgment  on  

29.4.1989,  in  which  he  categorically  dealt  with  the  

aspect of the customary rights of the respondents and  

came to a definite findings which reads as under:

“The  defendants  have  therefore,  failed  to  

prove that they have any customary right for  

digging pits in the land for the purpose of  

taking soil for making earthen pottery etc.”

Aggrieved  by  the  said  judgment  and  order,  the  

respondents  herein  preferred  a  second  appeal  under  

Section 100 of the Code of Civil Procedure before the  

High Court of Himachal Pradesh at Shimla. The High Court  

vide its judgment dated 17.4.2000, set aside the judgment  

and a decree passed by the learned Additional District  

Judge, Mandi and allowed the appeal.   

The  High  Court  has  reproduced  the  issues  which  

were  framed  by  the  Trial  Court  and  the  same  are

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reproduced herein also:

“1. Whether the suit is barred by principle of  

res-judicata?  

2. Whether there is no cause of action for the  

plaintiffs to file the present suit?

3.  Whether  the  plaintiffs  are  estopped  from  

filing the suit as alleged?

4. Whether the suit is barred by order 2, R.2  

C.P.C. as alleged?

5.  Whether  the  suit  land  is  possessed  by  the  

plaintiffs  to  the  exclusion  of  defendants  as  

alleged?

5A. Whether there has been a private partition  

between the plaintiffs and proforma defendants as  

alleged?

6. Whether the defendants have acquired customary  

rights qua the suit land as alleged?

7. Relief.”

The High Court in the impugned judgment observed  

as under:

“...the  learned  trial  court  came  to  the  

conclusion that though the plaintiffs are the  

owners  and  in  possession  of  the  land  in  

dispute,  their  ownership  and  possession  was  

subject  to  the  customary  rights  of  the  

defendants  to  take  earth  from  the  land  in  

dispute.”  

The  aforesaid  observations  were  erroneously  

recorded by the High Court.  The High Court had further  

observed  that   “the  parties  arrived  at  a  compromise

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before the District Judge, Mandi and consequently the  

compromise  decree  was  passed  on  18.3.1969.  In  such  

compromise the customary rights of the defendants to take  

earth  from  land  comprising  of  Khasra  No.611  was  

recognized and the plaintiffs agreed not to interfere  

with such rights of the defendants.”  This finding of the  

High  Court  is  totally  erroneous.  In  the  compromise  

decree,  as  stated  above,  the  customary  rights  of  the  

defendants  were  not  mentioned.  Even  Nandlal  in  his  

statement has not mentioned it, which is clear from the  

aforesaid compromise deed.   

Therefore,  in  this  case,  it  is  clear  that  the  

customary rights of the respondents were not accepted by  

any Court. The finding of the High Court, is therefore,  

totally   erroneous  and  contrary  to  the  documents  on  

record. The High Court also did not appreciate the fact  

that the compromise was not signed by the appellants and  

it was signed by Nandlal only.  Nandlal could not have  

given any undertaking on behalf of the appellants for the  

land of which he was not the owner. The High Court came  

to the following conclusion :

“On  the  basis  of  the  admission  so  made,  the  

present defendants had not pressed their appeal  

before the learned District Judge and the decree  

Ex.D.2 came to be passed. Such admission of the

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customary rights of the defendants would estop  

the plaintiffs from denying the rights of the  

defendants in the land in dispute. Therefore,  

the suit out of which the present appeal has  

arisen  would  be  barred  by  principle  of  

estoppel.”  

This  finding  of  the  High  Court  is  totally  

erroneous and contrary to the documents on record. The  

High Court has decided the case on totally non-existent  

facts.   

In this view of the matter, we are constrained to  

set  aside  the  impugned  judgment  of  the  High  Court.  

Consequently, the judgment and order dated 29.4.1989 of  

the  First  Appellate  Court  i.e  Court  of  Additional  

District Judge, Mandi, is restored and this appeal is  

accordingly allowed. In the facts and circumstances of  

this case, we direct the parties to bear their own costs.  

.....................J (DALVEER BHANDARI)

.....................J (DEEPAK VERMA)

New Delhi; July 29, 2010.

ITEM NO.101               COURT NO.4             SECTION XIV

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                    

CIVIL APPEAL NO. 2699 OF 2002

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HEM SINGH(DEAD) BY LRS. & ORS.                    Appellant (s)

                VERSUS

GIANOO AND ORS.                                   Respondent(s)

Date: 29/07/2010  This Appeal was called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE DALVEER BHANDARI         HON'BLE MR. JUSTICE DEEPAK VERMA

For Appellant(s) Mr. T.N. Singh,Adv. Mr. Shekhar Raj Sharma,Adv.

                Mr. Chandra Prakash Pandey,Adv.

For Respondent(s) Mr. Himinder Lal,Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

We have heard the learned counsel for the parties.  

The impugned judgment of the High Court is set  

aside,  the  judgment  and  order  dated  29.4.1989  of  the  

First Appellate Court i.e Court of Additional District  

Judge, Mandi, is restored and this appeal is allowed in  

terms of the signed order. In the facts and circumstances  

of this case, we direct the parties to bear their own  

costs.  

(A.S. BISHT)              (NEERU BALA VIJ)  COURT MASTER                       COURT MASTER

(Signed order is placed on the file)