Uttarakhand High Court
Maheshlata & Another ... vs Sukhbiri on 11 July, 2022
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Second Appeal No. 98 of 2021
Maheshlata & another ...Plaintiffs/Appellants
Vs.
Sukhbiri ...Defendant/ Respondent
Advocates : Mr. Tapan Singh, Advocate, for the appellants.
Mr. Arvind Vashistha, Senior Advocate assisted by Mr. Munish
Bhardwaj, Advocate for the respondent.
Hon'ble Sharad Kumar Sharma, J.
On 30.05.1994, the plaintiff/appellants, herein, had instituted a suit being Suit No. 203 of 1994, "Maheshlata and another vs. Sukhbiri" in relation to the set of property, which was more appropriately described therein at the foot of the plaint i.e. the land lying in Khasra No. 235/2, 235/3, having an area of 3 Biswa, 6 Biswansi of land, lying in Abadi khetra of village Jagjeetpur, Pargana Jwalapur, Tehsil and District Haridwar. The boundary of the property in question was describe therein as in the North a path way and thereafter, the land of the temple, in the South Harijan Basti, in the East, there was a passage and in the West property of Madan.
2. In the suit thus instituted by the plaintiff/appellant herein had described the property more appropriately in the plaint map which was annexed therein and which constituted 2 as to be the part of the record by way of paper no. 4A/6, and the nature of the decree which was sought by the plaintiff in the suit in question was as under:-
"यह िक वादीगण अदालत से िन�िल�खत मां ग करते ह� :
(v) िडग्री इ�कस�रया बहक यादीगण बर�खलाफ प्रितवादीगण इस अमर की सािदर फरमायी जावे िक वादीगण आराजी िन�िल�खत ए०बी०सी०डी० के त�ा�ामी व मािलक ह� ।
(V) बज�रये िडग्री स्थायी िनषे धा�ा के �ारा प्रितवादी को िनषे ध िकया जावे िक वह वादीगण के क�े आराजी िन�िल�खत म� कोई दखल अ�ाजी प�� या परो� �प से ना कर� , ना करावे ।
(स) खचा� मुकदमा वादीगण को प्रितवादीगण से िदलाया जावे ।
(b) अ� िदगर दादरसी जो राय अदालत म� उिचत हो वह भी सािदर फरमायी जावे"
3. In fact, if the nature of decree, which was sought to be granted in the suit, is taken into consideration, apart from the fact that he was seeking a decree for grant of permanent injunction as against the defendant/respondent of their alleged act of wrongful interference over the property in dispute. The plaintiff has also sought a decree of declaration of their title and ownership with regard to the property described by figure a, b, c, d, as described in the plaint map. Meaning thereby, the suit in question, had an element of declaration of title qua the property in dispute described at the foot of the plaint, when relief modulated was for seeking of declaration.
4. The defendant/respondents were noticed and they filed the written statement on 21.11.1996, and by way of a counter claim, the defendant had sought a decree of grant of possession over the part of the property, lying in Khasra No. 235/1 the relevant part of the relief sought by way of counter claim invoking Order VIII Rule 6A is extracted hereunder:-
" vr% izfroknuh izkFkZuk djrh gS fd:-
3
v& ;g fd iz'uxr lEifRr ftldk fooj.k okni= ds vUr
essa fn;k x;k gS [kljk uEcj 235@1 dk dCtk oknuh
ls izfroknuh dks fnyk;k tkosA
c& ;g fd vU; nknjlh tks jk; vnkyr esa mfpr gks
izfroknuh dks oknuh ls fnyk;h tkosA
l& ;g fd [kpkZ dkmUVj Dyse izfroknuh dks oknuh ls
fnyk;k tkosA
5. The suit proceeded, and after the exchange of pleadings, the learned Trial Court has framed the following issues on 04.12.1996 and an additional issue was framed on 06.07.2021 to the following effect :-
"1 �ा िववािदत स�ि� पर वादीगण को िमलिकयती अिधकार हािसल है ?
2. �ा वाद एसटोपल ए� लॉ ऑफ ए�ीजे शन रे सजु िडकेटा के िस�ां त से बािधत है
3. �ा वाद का मू�ां कन कम िकया गया है ?
4. �ा िववािदत भू िम खसरा सं �ा २३५/१ या २३५/२ व २३५ /३ म� �स्थत है ?
5. �ा प्रितवादनी वादनी से खसरा नं ० २३५/१ पर क�ा प्रा� करने की अिधका�रणी है ?
6. �ा काउ�र �े म का मू�ां कन कम िकया है तथा प्रद� �ायशु �अपया� �है ?
7- अनु तोष, यिद कोई हो, िजसे वादनी व प्रितवादनी प्रा� करने की अिधका�रणी है ? "
6. The parties to the proceedings led their respective evidence, both oral and documentary, and particularly the plaintiff/appellant herein, in support of his contention had placed on record the copy of Khasra, which happens to be a document of possession, in relation to the land in dispute and a copy of an application, which was filed by the plaintiff/appellant. Whereas, the defendant in support of their contention had filed the documents by way of list No. 21C1, 4 that included the judgment rendered by the Court of Munsif Saharanpur, in Case No. 427 of 1925, Teerath Singh vs. Ganeshi Lal & others, as decided on 19.11.1925, as well as in support of their contention, the defendant had also placed on record, the copy of the plaint of the suit as instituted before the Court of Munsif, Saharanpur by way of paper no. 66 Ga1, and the decision rendered there on it of 27.09.1925.
7. The plaintiff/appellants, herein, in support of their contention before the court below has appeared in the witness box and recorded his statement as PW1 Jaybhagwan and PW2 was adduced namely Mr. Rajesh Kumar; in support of their contention, the defendant, had adduced witnesses of DW1 Sukhbiri, wherein, she appeared in the witness box and had also produced the oral testimony of DW2 Mr. Ram Shah in support of their contention which was raised in the written statement, as well as the counter claim.
8. In fact, at this stage itself this, Court feels it to be appropriate to observe that the plaintiff/appellant, apart from placing on record the copy of Khasras in relation to the property in dispute; has not adduced any other authenticated public document of title or that of possession in relation to the property in question; because the Khasra itself would be only confined to be a document, which could only be read for the purposes of possession over the property and not for the purposes of establish title. On the basis of the issue which was framed by the learned Trial Court on 04.12.1996 and 06.07.2001, the issue which would be relevant for consideration for the present second appeal, would be qua the 5 relief raised in the plaint i.e. issue no.1; as to whether the plaintiff/appellant had an ownership and title over the property and was in actual possession. The learned Trial Court proceeded to decide issue no.1 and had recorded a finding, that the plaintiff/appellant have been able to establish their possession over the khasra number, particularly over the property shown by from paper No.1, but no conclusive evidence whatsoever was given in relation to the possession in relation to the disputed property in its entirety. Accordingly, the observation, which was made while deciding issue no.1, on which, the learned counsel for the plaintiff/appellant has heavily placed reliance was as recorded the following findings:-
" िजससे यह �� होता है िक िवप�ी dks ugh irk gS fd �यं की lEifRr िकस जगह gS । ऐसे म� वादनी की स�ि� िकस जगह है , उसका भी उसे पता होना सं शय उ�� करता है । वादनी ने �यं की स�ि� पर उस पर क�ा होना सािबत िकया है िजसे िवप�ी ने भी माना है । पर�ु उसे अपना होना िवप�ी सािबत नहीं कर पाया है । िवप�ी को चािहए था िक इसके िलए सा� पत्रावली म� दा�खल कर� । पर�ु िवप�ी �ारा कोई िव�सनीय सा� िकं िववािदत स्थल िकस खसरा न�र म� है । इसके िलए न तो िवप�ी �ारा कोई माईश मय आखा ही मंगाई गई है । मौके पर वादीगण का न होना तथा खसरा न�र �यं का होना बाद िबन्दु सं �ा १ को वादीगण के प� म� होना सािबत करता है । अत: मेरे िन�ष� म� वाद िबन्दु सं �ा १ वादी के प� तथा प्रितवादनी के िव�� िन�ा�रत िकया जाता है । "
9. In fact, if the aforesaid finding is taken into consideration and it is read in correlation to the nature of decree sought by the plaintiff/appellant, wherein he has sought a declaration of his ownership over the property in question; as well as that of a possession and a grant of decree of permanent injunction. These three reliefs have to be splited, into its consideration (i) qua the finding which has been recorded in relation to a declaration (ii) qua the finding pertaining to the possession, and (iii) based on the possession qua the finding 6 relating to the grant of decree of permanent injunction. These three aspects of consideration in a civil proceeding are entirely distinct to one another and which entails consideration of different factors, particularly when it entails a declaration of title which has an element of title over the property in dispute.
10. But if the relief which the defendant has sought in the counter claim is taken into consideration, it was only confined to a grant of decree of permanent injunction in relation to Khasra No. 235/1, which in fact was not even a subject matter of the suit because if the two description of the properties in the suit and that in the counter claims are taken into consideration, they are admittedly according to their description are absolutely independent to one another and it has not been a case or even the finding which has been recorded by the court below, even if it is presumed that the counter claim raised by the defendant was qua Khasra No. 235/1, the plaintiff/respondent to counter claim has not preferred any independent appeal. The non challenge of the rejection of a counter claim, will have no bearing over a challenge given to the decree rendered in the suit by filing an Appeal for the reason, being that the subject matter of the two proceedings may be that the counter claim is treated as to be an independent Suit under Order VIII Rule 6 A (4), but that independent suit has to be confined to be read in relation to Khasra No.235/1, only which is not a property which is in dispute in the suit, thus concept of res judicata would be alien to the present case, when the subject matter i.e. the property are entirely different in the suit and in the counter claim, and 7 has different cause of action, regards the subject matter of the proceedings.
11. Since the plaintiff has sought a decree of declaration over the property, which was admittedly described in the suit as to be Khasra No. 235/2 and 235/3, having an area of 3 Biswa, 6 Biswanis of land, lying in village Jagjeetpur Pargana Jwalapur, District Haridwar, the two suits i.e. the regular plaint and the counter claim; were independent to one another and non challenge of the rejection of the counter claim which was decided by a common judgment and decree rendered by the trial court will not deprive the defendant/respondent to preclude the defendant to put a challenge to the decree granted in relation to a different set of property, which was subject matter of the Suit, hence, once the subject matter is itself different the principles of res judicata will not apply for the reason being, that if the simplicitor language of Section 11 of the CPC is taken into consideration, which is extracted hereunder:-
"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.-- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.
Explanation II.-- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.8
Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating .1
[Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]
12. As per the opinion of this Court and owing to principle provisions contained under Section 11 of the C.P.C., the basic parameter, which governs to apply the principles of res judicata could be innumerated in the following manner :-
(I) The matter directly and substantially in issue, the reference of the words, "matter" and "issue", would mean the main subject of the suit of the proceedings i.e. a property and the issue would be the nature of the controversy. The matter i.e. the subject matter of the suit cannot be read independently in isolation to the issue involved, in relation to the same subject matter. In that eventuality, if the property is distinct to one another and the relief too is distinguishable, the principle of res judicata then only will not be applicable, because that would be a prior condition to be satisfied.
(II) The second parameter, which is necessarily required is fact of former suit, must have been a suit between a same set of parties, but this condition of the 9 suit being between the same set of parties does not mean that even if the two same set of parties, are litigating in another suit in relation to a different issue or a subject matter, then even the principles of res judicata will not apply. The principle of res judicata will only apply, under those circumstances, where the same set of parties, if they are litigating in a subsequent suit, it relates to the same subject matter i.e. the property in dispute or the issue involved therein between the same parties. If there is any variance in the subject matter or in issue, may be that the subsequent litigation is between the same set of parties, Section 11 will not come into play, if the subject matter and the issue are distinct to one another.
III. The third parameter, which is required to be satisfied for the purposes of attracting Section 11 of C.P.C. would be that the parties have been litigating under the same title, as it engaged consideration in the former suit instituted which cannot be a principle to be applied in the instant case, because in the instant case the parties, who have been litigating, though under the same title, but in relation to a different property, i.e. the subject matter, in that eventuality, even if the parties were litigating under the same title in the former suit in relation to a different set of property, and for a different relief, it would be a distinct matter and distinct issue altogether which will not attract Section 11 of C.P.C.
(IV) Another basic parameters, though it may not engage consideration, as far as the present controversies is concerned that the former suit in relation to the similar 10 matter or an issue must have been decided by the competent court on merits. Since, here this issue is not involved, a detailed elaboration on the same is not required.
13. The Constitution Bench of the Hon'ble Apex Court, as reported in AIR 1966 SC 1332, Sheodan Singh vs. Daryao Kunwar, had at occasion to deal with the implication of Section 11 in the context of competence of the Court trying the former Suit. The basic distinction, which has been carved out for attracting the principles of res judicata has been enumerated in para-20 of the said judgement, which is extracted hereunder:
" Para 20. A consideration of the cases cited on behalf of the appellant therefore shows that most of them are not exactly in point so far as the facts of the present case are concerned. Our conclusion on the question of res judicata raised in the present appeals is this. Where the trial court has decided two suits having common issues on the merits and there are two appeals there from and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial Court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial Court given on merits, and if that is so, the decision of the appeal court will be res judicata whatever may be the reason for the dismissal. It would be a different matter, however, where the decision of the appeal court does not result in the confirmation of the decision of the trial Court given on the merits, as for example, where the appeal court holds that the trial Court had no jurisdiction and dismisses the appeal, even though the trial court might have dismissed the suit on the merits. In this view of the matter, the appeals must fail, for the trial Court had in the present case decided all the four suits on the merits including the decision on the common issues as to title. The result of the dismissal on a preliminary ground of the two appeals arising out of suits Nos. 77 and 91 was that the decision of the trial Court was confirmed with respect to the common issues as to title by the High Court. In consequence the decision on those issues became resjudicata so far as appeals Nos. 365 and 366 are concerned and s. 11 of the Code of Civil Procedure would bar the hearing of those common issues over again. It is not in dispute that if the decision on the common issues in suits Nos. 77 and 91 has become res judicata, appeals Nos. 365 and 366 must fail.11
14. Basically, it has laid down that where the Trial Court has decided two suits having common issues on merits and there are two appeals therefrom and one of them has been dismissed on some preliminary grounds. The Court's would attract principles of res judicata, when in any subsequent decision, which has rendered thereto in relation to the subject matter confirm the decision or affixes a finality to a decision in an earlier decided suit in relation thereto, a reference to para-8 and 9 also becomes necessary, which is extracted hereunder:
" para 8. We may at the out set refer to the relevant provisions of S. 11 of the Code of Civil Procedure insofar as they are material for present purposes. They read thus:
"No Court shall try any suit or issue-in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
"Explanation I-The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
It is not necessary to refer to the other Explanations.
9. A plain reading of s. 11 shows that to constitute a matter res judicata, the following conditions must be satisfied, namely-
(i)The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;
(ii)The former suit must have been a suit between the same parties or between, parties under whom they or any of them claim;
(iii)The parties must have litigated under the same title in the former suit;
(iv) The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and
(v)The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit. Further Explanation I shows that it is not the date on which the suit is filed that matters but the date on which the suit is decided, so that even if a suit was filed later, it will be a former suit if it has been decided earlier. In order therefore that the decision in the earlier two appeals dismissed by the High Court 12 operates as res judicata it will have to be seen whether all the five conditions mentioned above have been satisfied."
15. The Hon'ble Apex Court while dealing with the expression used under Section 11, the former suit, it had laid down that it will always denote to the suit, which has been decided earlier whether instituted prior or not, but it should be under the same claim of litigation, or the same title in relation to the same set of property and for the same cause of action. To attract Section 11, these above parameters are necessary which are not available in the circumstances of the instant case. In that eventuality, the argument extended by the learned counsel for the appellant is not acceptable. In the Constitution Bench of Sheodan Singh (Supra), the Court has considered the ratio of Section 11 in para -13 of the judgment, wherein it has laid down the basic parameters as already observed above, which are required to be satisfied to bar a subsequent proceedings by attracting Section 11. The relevant part of para
-13 is extracted hereunder:-
"Reliance in this connection is placed on the well- settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff 's appearance, or on the ground of non- joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit."
16. Recently, the Andhra Pradesh High Court in a judgment reported in AIR Online 2021 AP 1028 Padala 13 Leelavathi vs. P. Mangayamma, while dealing with the impact of Section 11 in the context of the proceedings of suit for specific performance has considered the implications of Section 11, which was therein read in consonance to the provisions contained under Order 7 Rule 11, in a suit which entailed an issue of declaration of title and permanent injunction in between the parties, who were litigating earlier in the suit in respect of "same suit property". However, the matter could only be collateral or incidental in an issue to be decided in a subsequent suit, if it is a subject which is incidental consideration, the suit will not be barred by principles of res judicata, and more particularly, in the instant case where, it has already been observed above i.e. in relation to a different set of property. Para 33 to 36 of the said judgment is extracted hereunder :-
"Apparently, the learned appellate Judge had lost sight of the fact that such plea was set up in the written statement by the deceased respondent. The findings recorded by the learned trial Judge thus are against the de ceased respondent. She did not file any cross objections in the first appeal. The judgment of the appellate Court did not reflect that the deceased respondent had chosen to canvass in that appeal in terms of Order 41, Rule 22 CPC, while supporting the decree questioning such findings which stood against her. In the absence of such an effort by the deceased respondent at that stage, it was indeed not open for the learned appellate Judge to consider such question and record a finding thereon. It is an improper approach by the learned appellate Judge. Therefore, any finding recorded by the learned trial Judge relating to res judicata or application of its principles cannot have any bearing.
34. Sri M.Radhakrishna, learned counsel for the appellants, referring to application of principles of res judicata relied on Gram Panchayat of Village Naulakha v. Ujagar Singh and others, AIR 2000 SC 3272. In para 10 of this ruling, referring to nature of the claim for an injunction simpliciter and not one on title, re lying on Sajjadanashi Sayed v. Musa Dadabhai Ummer(2000)3 SCC 350: (AIR 2000 SC 1238) observed:
"10. We may also add one other important reason which frequently arises under Section 11,CPC. The earlier suit by the respondent against the Panchayat was only a suit for in junction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be binding on the ques tion of title. See in this connection Sajjadana shin Sayed v. Musa 14 Dadabhai Ummer [(2000) 3 SCC 350: (AIR 2000 SC 1238)] where this Court, on a detailed consideration of law in India and elsewhere held, that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was "necessary" in the earlier suit to decide the question of title for granting or refusing in junction and that the relief for injunction was founded or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case."
35. In Sajjadanashin Sayed referred to above, the test to determine applicability of Section 11,CPC and principles of res judicata in the context of a matter directly and substantially in issue is stated in para 12 as under:
"12. It will be noticed that the words used in Section 11,CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue."
36. In the given facts and circumstances of this case, this question of res judicata did not remain for consideration."
17. It pertains to that there has to be an inter se litigation, with regard to between the same set of parties for the same set of properties in relation to a same subject matter. Since in the regular suit and in the counter claimed i.e. the subject matter i.e. the property in dispute since was entirely different, the principal contemplated under Section 11 of C.P.C. would not apply in the instant case merely because of the fact, that the defendant despite of rejection of the counter claim, has not put a challenge to the rejection of counter claim by filing an independent decree at the most it would be inferred to have attained finality quo the defendant/respondent in relation to the property, which was the subject matter of the counter claim only, Because under the principle of dominos litus, it is exclusively, the choice of the party to the 15 proceedings to put a challenge to the decree rendered against him by virtue of which, he has been affected and hence, preference of a Civil Appeal No. 7 of 2005, qua the part of decreeing of the suit of the plaintiff/appellant, which is an independent decree, will not make it untenable because of the fact that the counter claim has not been put to challenge by filing an independent Appeal, because the affect, which it would have as a consequences of non preference of an appeal would be only, qua the rights which was claimed by the defendant in relation to a different set of property, which was subject matter of the counter claim i.e. Khasra No. 235/1, which has got no bearing to the decree of the suit in question which was in relation to other set of property, other than that of the counter claim.
18. Hence the formulation of the substantial question of law No.2 as formulated by the Coordinate Bench of this Court will not be attracted to made applicable in the instant case, particularly when in the suit and the counter claim the property in dispute was entirely different to one another. In that eventuality, the finding on substantial question of law no.2, will have a direct bearing on the substantial question of law framed, as one, which was almost akin, in its intention, as to what effect would it have, if the defendant has not preferred any appeal against the dismissal of the counter claim, as this Court has already observed the counter claim, was an independent plaint/claim in relation to a different set of property, it will not at all have any bearing over the appeal which was preferred by the defendants/respondents against the decree of the suit in relation to the property which was then 16 actually the subject matter of the suit in question. Hence these two substantial question does not fall for consideration in the light of the specific distinction as already been observed above.
19. This Court also feels it necessary to deal with the judgment and decree which had been rendered by the trial court on 30.05.1994, which has been sought to be read by the plaintiff/appellant herein, as if it happens to be a decree of declaration of his ownership and possession. The relief sought in the Suit has to be distinguished, in its consideration from the perspective of declaration, where it is absolutely a de novo proceedings which has to be resorted by the civil court in order to determine a title and ownership of a person concern, who claims a decree of declaration over the property and that requires a consideration and a finding too while deciding issue no.1, as to the parameters which was adopted by the trial court for declaring a person to be an owner, herein, means a plaintiff/appellant to be the owner of the property in dispute of the suit i.e. Khasra No. 235/2 and 235/1 only, and would not be read in relation to any other property apart from it, which was the subject matter of consideration in the suit.
20. The observations made by the learned Trial Court while deciding issue no.1 particularly, that the reference of which has already been made herein above, by extracting the finding recorded, if that is taken into consideration, while observing, that the plaintiff is in possession and is in owner of the property, in fact, this Court is of the view that ownership could only be determined after an appreciation of evidence and 17 obviously a simplicitor khasra only which is a revenue document of possession cannot be determined as to be document of title relied by the plaintiff/appellant.
21. Hence, the finding of ownership, in the absence of there being any evidence to the contrary, cannot be read in support of the plaintiff/appellant case, to establish his claim for grant of decree of declaration of title over the property, may be that even if the plaintiff/appellant has been able to succeeded, that he is in possession over the property invoked in the suit, based on the khasra, which was relied by him in the proceedings before the Court below.
22. In fact, if the finding on issue no.1 is read in relation to the efforts made by the plaintiff/appellant to establish is title by way of seeking a decree of declaration, if that is taken into consideration, there is no concrete and concluded finding of fact recorded by the court based on relevant acceptable evidence in relation to khasra no. 235/2 and 235/1, as to in what manner, the declaration could have been made in relation to the property in question and that is why the learned trial court, had precautionarily observed that the plaintiff/appellant is an owner in possession, but this observation made while deciding issue no.1, cannot be read and construed that it was a declaration in reality based on material evidence, made because merely recording of an ownership which too is based upon without any appreciation of evidence, the same cannot be take a conclusive shape of a decree of declaration of a right over the property in question, 18 which itself was doubted by the plaintiff/appellant when he has modulated the relief in the suit in question.
23. In that eventuality, this Court is of the view, that the principles of res judicata as sought to be attracted would not apply, and if the decree itself is taken into consideration, where the decree of the learned trial court has observed, that the suit stands decreed, the decree herein will not be construed as to be a decree of declaration, until and unless, there is a specific conclusive finding recorded based on credible evidence by the Court of declaring the plaintiff/appellant, as to be an owner of the property, based upon the evidentiary documents placed on record and its appreciation after providing an opportunity, to the parties concerned.
24. The learned counsel for the appellant had made reference to the judgment which was rendered by the Coordinated Benches of this Court particularly as that in Second Appeal No. 77 2013, Vikram Singh vs. Om Singh & others, wherein, the Court was considering the aspect, as to what would be the effect wherein a suit for the grant of decree of permanent injunction, there was a counter claim raised by the defendant, on the basis of an unregistered sale deed, where he has sought a decree by way of a counter claim, which was not put to challenge. In the said case, the aspect of principle of res judicata, which has been attracted to be drawn as observed in para- 5 and 6 of the judgment was on the basis of Premier Tyres Limited vs. Kerala State Road Transport Corporation as reported in 1993 supp (2) Supreme Court Cases 146, particularly the reference which has been made in 19 para 4 & 6 of the said judgment, I am respectful disagreement, with the said ratio to be applied in the present circumstances of the case, because in the said judgment, it was a case which was being considered by the second appellate court in relation to a same set of property or a different set of property and particularly, when the nature of decree sought in the plaint and the counter claim was that of only grant of decree of a permanent injunction.
25. Hence, this judgment since being based upon altogether different set of circumstances, will not be applicable in the instant case, because the subject matter therein for consideration in the suit and the counter claim was common and even the nature of decree was also common sought by the plaintiff and the defendant therein in the respective suit and counter claim.
26. Another judgment, on which, the reliance has been placed by the learned counsel for the appellant is that, as rendered in Second Appeal No.16 of 2020 Deedar Singh & Others vs. Malkeet Singh. If the factual matrix of the said case is taken into consideration, which was considered therein it was yet again, as per the observations which has been made in para-2, where the facts were being considered, the appellant/defendant therein, were aggrieved against the grant of decree of perpetual prohibitory injunction.
27. This Court is of the view, that if the matter which requires consideration for the grant of perpetual prohibitory injunction is concerned, in those proceedings, considering the 20 question of title or ownership is only incidental in nature. It will not be a conclusive finding, and particularly, it will not be a conclusive inference to be applied in the instant case, when in the said second appeal, there was not even a single element of consideration pertaining to a claim raised by the plaintiff therein for declaration of his title over the property, in question, hence the bearing of non challenge to the dismissal of the counter claim by attracting the principles of res judicata as observed in para-5 of the said judgment, yet again, based on the principles of Premier Tyres Limited will not be attracted to be made applicable in the instant second appeal, and by way of a reiteration, it will not apply because so far the present Second Appeal is concerned, if it is read in relation to the counter claim since it related to a different subject matter or set of property, the same would not be applicable.
28. The learned counsel for the appellant has made reference to yet another judgment, as rendered by the Hon'ble Apex Court and reported in 2015 (2) SCC 682, Rajni Rani and another vs. Kharati Lal and others, wherein, the Courts below therein while considering the implications of counter claim under Order VIII Rule 6A and pertaining to the conclusive determination of rights, amongst the parties was as a consequences of in adjudication made by the Court, in order to attract the Bar of Order 2 Rule 2 of the C.P.C. which was there taken into consideration in the light of the observations made in para 15, 16 and 17 of the said judgment which is extracted here under:-
"15. From the aforesaid enunciation of law, it is manifest that when there is a conclusive determination of rights of parties 21 upon adjudication, the said decision in certain circumstances can have the status of a decree. In the instant case, as has been narrated earlier, the counter-claim has been adjudicated and decided on merits holding that it is barred by principle of Order 2, Rule 2 of C.P.C. The claim of the defendants has been negatived. In Jag Mohan Chawla and Another v. Dera Radha Swami Satsang and Others[3] dealing with the concept of counter-claim, the Court has opined thus:-
"... is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection (sic protraction), the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit."
16. Keeping in mind the conceptual meaning given to the counter-claim and the definitive character assigned to it, there can be no shadow of doubt that when the counter-claim filed by the defendants is adjudicated and dismissed, finality is attached to it as far as the controversy in respect of the claim put forth by the defendants is concerned. Nothing in that regard survives as far as the said defendants are concerned. If the definition of a decree is appropriately understood it conveys that there has to be a formal expression of an adjudication as far as that Court is concerned. The determination should conclusively put to rest the rights of the parties in that sphere. When an opinion is expressed holding that the counter-claim is barred by principles of Order 2, Rule 2 C.P.C., it indubitably adjudicates the controversy as regards the substantive right of the defendants who had lodged the counter-claim. It cannot be regarded as an ancillary or incidental finding recorded in the suit. In this context, we may fruitfully refer to a three-Judge Bench decision in M/s. Ram Chand Spg. & Wvg. Mills v. M/s. Bijli Cotton Mills (P) Ltd., Hathras and Others[4] wherein their Lordships was dealing with what constituted a final order to be a decree. The thrust of the controversy therein was that whether an order passed by the executing court setting aside an auction sale as a nullity is an appealable order or not. The Court referred to the decisions in Jethanand and Sons v. State of Uttar Pradesh[5] and Abdul Rahman v. D.K. Kassim and Sons[6] and proceeded to state as follows:-
"In deciding the question whether the order is a final order determining the rights of parties and, therefore, falling within the definition of a decree in Section 2(2), it would often become necessary to view it from the point of view of both the parties in the present case -- the judgment-debtor and the auction-purchaser. So far as the judgment-debtor is concerned the order obviously does not finally decide his rights since a fresh sale is ordered. The position however, of the auction-purchaser is different. When an auction-purchaser 22 is declared to be the highest bidder and the auction is declared to have been concluded certain rights accrue to him and he becomes entitled to conveyance of the property through the court on his paying the balance unless the sale is not confirmed by the court. Where an application is made to set aside the auction sale as a nullity, if the court sets it aside either by an order on such an application or suo motu the only question arising in such a case as between him and the judgment- debtor is whether the auction was a nullity by reason of any violation of Order 21, Rule 84 or other similar mandatory provisions. If the court sets aside the auction sale there is an end of the matter and no further question remains to be decided so far as he and the judgment-debtor are concerned. Even though a resale in such a case is ordered such an order cannot be said to be an interlocutory order as the entire matter is finally disposed of. It is thus manifest that the order setting aside the auction sale amounts to a final decision relating to the rights of the parties in dispute in that particular civil proceeding, such a proceeding being one in which the rights and liabilities of the parties arising from the auction sale are in dispute and wherein they are finally determined by the court passing the order setting it aside. The parties in such a case are only the judgment-debtor and the auction-purchaser, the only issue between them for determination being whether the auction sale is liable to be set aside. There is an end of that matter when the court passes the order and that order is final as it finally, determines the rights and liabilities of the parties, viz., the judgment-debtor and the auction-purchaser in regard to that sale, as after that order nothing remains to be determined as between them."
After so stating, the Court ruled that the order in question was a final order determining the rights of the parties and, therefore, fell within the definition of a decree under Section 2(2) read with Section 47 and was an appealable order.
17. We have referred to the aforesaid decisions to highlight that there may be situations where an order can get the status of a decree. A Court may draw up a formal decree or may not, but if by virtue of the order of the Court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree. As is evincible, in the case at hand, the counter-claim which is in the nature of a cross-suit has been dismissed. Nothing else survives for the defendants who had filed the counter-claim. Therefore, we have no hesitation in holding that the order passed by the learned trial Judge has the status of a decree and the challenge to the same has to be made before the appropriate forum where appeal could lay by paying the requisite fee. It could not have been unsettled by the High Court in exercise of the power under Article 227 of the Constitution of India. Ergo, the order passed by the High Court is indefensible."
29. This Court is of the view and rather at the risk of repetition too, that the principles of Order 2 Rule 2, which has 23 been applied by extracting the ratio referred thereto in para 15, 16 and 17 will not apply, herein because almost based on the same set of principles, which has already been discussed above, when the nature of decree either in the Suit or under Order VIII Rule 6A, was entirely different. So would be the destiny to the judgement relied as reported in AIR 1993 (SC) 1202, Premier Tyres Limited vs. Kerala State Road Transport Corporation, since I have already discussed the impact of the said judgment, which was referred to by the Coordinate Bench of this Court in the two Second Appeals of Vikram Singh and Dalbeer Singh (Supra), the reiteration of the facts and the principles of applying the principles of res judicata as settled by the said judgment in para-3 of the Hon'ble Apex Court, would not be attracted for the same set of logic and analogy, which this Court has already assigned in the above paragraphs.
30. In that eventuality, in view of the reasons and the observations which has been made by the Appellate Court, pertaining to the decree of the suit of the plaintiff/appellant while reversing the judgment rendered by the Appellate Court in Civil Appeal No. 7 of 2005, does not suffer from any apparent legal vices and, particularly, in the light of the substantial question of law, which was confined for applying the principle of res judicata and particularly which was confined to applying the principle, as to what would be the effect of non challenge to the decree rendered by way of rejection of a counter claim under Order VIII Rule 6A, which has already been answer by this Court in the prior portion of this judgment.
2431. At any stage of the proceedings, it had never been a case of plaintiff/appellant, that the subject matter i.e. the property in dispute either in the plaint or in the counter claim, were the same property, which is a subject matter of dispute.
32. Hence, the substantial question of law as formulated by the Coordinate Bench of this Court does not involves for consideration in the present Second Appeal, and hence, they are answered against the plaintiff/appellant.
33. Accordingly, the Second Appeal lacks merit and the same is accordingly dismissed.
(Sharad Kumar Sharma, J.) 11.07.2022 Nahid