Decided on May 15,2012

Har Prakash Appellant
Waziran Respondents


B.S.VERMA, J. - (1.) THIS second appeal is directed against the judgment and decree dated 26.4.2002, passed by First Appellate Court, i.e. Additional District Judge/Fast Track Court -II, Nainital, in Appeal No. 43 of 1998 Smt. Waziran and others versus Har Prakash, whereby the appeal was allowed and the judgment and decree dated 28.3.1998 passed by Additional Civil Judge (J.D.) Kashipur in O.S. No. 249 of 1984, was set aside.
(2.) THIS second appeal has been admitted on the following substantial questions of law: - (1) Whether the findings in civil suit No. 94 of 1955 of the Court of Munsif Kashipur Bishambhar Nath Vs. Bankey Lal and others having been filed in representative capacity were binding on every member of Sweeper Community?. (2) Whether the disputed sale -deed dated 5.4.1969 as well as sale -deed dated 5.2.1968 of disputed land affected by the principle of Lis -pendence and were vitiated by doctrine of Lis -pendence?. (3) Whether Smt. Ganeshia, when she herself was not the owner of the land in dispute, could pass title of the land to her daughter Smt. Gangoo and consequently the disputed sale -deed in favour of the respondents also did not pass any title?. (4) Whether the respondents were estopped by the principle of estoppel and acquiescence when they did not join the subsequent litigation?. (5) Whether judgment not inter -se between the parties is admissible in subsequent litigation?.
(3.) BRIEFLY stated the facts of the case are that plaintiff Mohd. Ishaque (since deceased) has filed suit against defendant Har Prakash and others for a decree of mandatory injunction. Smt. Ganeshia Devi mother of Smt. Gangoo Devi, defendant in the suit, was the original owner of the disputed property. She had transferred the property in dispute vide sale -deed dated 6.2.1968 to Smt. Gangoo Devi. Thereafter Smt. Gangoo Devi transferred the property in question to plaintiff Mohd. Ishaque and Smt. Waziran by way of registered sale -deed dated 5.4.1969 and they entered into possession of the land in question but the defendants had illegally started construction on the land in dispute. The defendants pleaded in the W.S. that the plaintiff did not purchase the property from Smt. Gangoo Devi and the sale -deed dated;

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