SHIV SARAN SINGH THAKUR Vs. RAM SARUP THAKUR

JUDGEMENT

(1.) These two appeals arise out of a judgment of a learned single Judge of this Court by which he decided Civil Suit No. 37 of 1976. The plaintiff is Thakur Ram Singh. The two defendants in the suit are Shri Shiv Saran Singh Thakur and Smt. Sarla Devi. The second defendant, Smt. Sarla Devi, is the wife of plaintiff Ram Swarup.

(2.) The suit was preceded by an earlier suit No. 121 of 1955. In that suit plaintiff Ram Swarup as also the two defendants in the present suit were defendants. A gift deed is said to have been executed by Shri Ram Swarup in favour of Smt. Sarla Devi regarding 1/16th share in the property, which is the subject matter of the present suit, and was also the subject matter of earlier Suit No. 121 of 1955, in the year 1951. When Suit No. 121 of 1955 was filed, one of the defences taken by Shri Ram Swarup as also defendant Shiv Saran Singh Thakur was that defendant Sarla Devi was not a necessary party to the suit. The suit was for partition of properties known as 'bellvue South', Shimla, which was described more fully in Schedule A to the plaint in that suit. The suit was tried by the Senior Sub Judge, Shimla. A copy of the judgment of the learned Senior Sub Judge is Ex.PW 2/2. A perusal thereof shows that on behalf of plaintiff Ram Swarup as also on behalf of the first defendant Shiv Saran Singh Thakur, the objection raised was that Smt. Sarla Devi was not a co-owner of the property. The first issue that the learned Judge framed, on the plea taken in the suit, was whether Smt. Sarla Devi (who was defendant 4 in that suit) was a necessary party. The learned Judge took into consideration the copy of the registered deed (Ex. P6 in that suit) and came to the conclusion that plaintiff Ram Swarup (defendant 3 in that suit) had gifted 1/16 share in favour of his wife, Smt. Sarla Devi. On this basis, it was held that she was a necessary party, being a co-sharer. The concluding portion of the judgment in the earlier suit (para 6 thereof) said :

(3.) It is common ground that the preliminary decree aforesaid was not assailed by any party to the litigation. In other words, the present plaintiff, Shri Ram Swarup, did not challenge the decree in Suit No. 121 of 1955.