Chattisgarh High Court
Deleted (Smt. Titri Bai) vs Sitaram (Died) Through Lrs on 20 May, 2020
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Second Appeal No. 314 of 2008
Order reserved on 25.02.2020
Order delivered on 20.05.2020
1. Smt. Titri Bai (died and deleted).
2. Smt Jugia Bai, D/o Late Fekan, Agriculturist R/o
Village Litipur, Near Pratappur, Tahsil Bemetara,
District Durg, Chhattisgarh.
3. Hagru S/o Late Fekan, Aged 42 years.
4. Rambai D/o Late Fekan, Aged 33 years.
5. Ramhan D/o Late Fekan (died) through LRs. :
(i). Ravi Pal S/o Late Ramhan, Aged about 19
years.
(ii). Mithlesh Pal S/o Late Ramhan, Aged about 23
years.
Both R/o Village Navagarh, P.S. and Tahsil
Navagarh, District Bemetara, Chhattisgarh.
(iii). Smt. Satrupa D/o Late Ramhan, Aged about
27 years, R/o Village Mudarbod, Tahsil and
District Bemetara, Chhattisgarh.
(iv). Smt. Sangeeta D/o Late Ramhan, Aged about
24 years, R/o Village Tifra, Tahsil and District
Bilaspur, Chhattisgarh.
6. Ramu S/o Fekan, Aged 30 years.
No. 1, 3, 4, 5 and 6 all agriculturists, R/o
Village Nawagarh, Tahsil Nawagarh, District Durg,
Chhattisgarh.
All legal representatives of deceased defendant
No. 3 Fekan substituted during pendency of the
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suit and were respondents 2, 3, 4, 6, 7 and 8 in
the Lower Appellate Court in C.A. No. 4A/2007. Appellants/LRs. Of Defendant No. 3
Versus
1. Sitaram (died) through LRs. : (I). Shanti Bai, Wd/o Sita Ram, Aged about 65 years, Ward No. 10, Near Ram Mandir, Navagarh, Tahsil Navagarh, District Durg, Chhattisgarh. (Now, Distt. Bemetara)
2. Jairam, Aged 44 years.
3. Dilip, Aged 40 years.
All Sons of Late Shriram, Agriculturists, R/o Village Nawagarh, Tahsil Bemetara, District Durg, Chhattisgarh.
4. Ashok Kumar S/o Late Shriram died after the impugned judgment now represented by the following.
A. Smt. Mamta, Wd/o Late Ashok, Aged about 35 years.
B. Somu S/o Late Ashok, Aged about 12 years. C. Kumari Shalu D/o Late Ashok, Aged about 10 years.
D. Vicky S/o Late Ashok, Aged about 6 years. All R/o Village Bazarpara, Nawagarh, Tahsil Nawagarh, District Durg, Chhattisgarh. Nos. 4B to 4D minors, through mother and natural guardian No. 4A Smt. Mamta.
Nos. 1 to 4 were substituted as legal representatives of deceased defendant No. 2 Dharmin Bai during the pendency of the suit on 3 the basis of will and were appellants before the Lower Appellate Court in C.A. No. 4A/2007.
5. Smt. Khorbaharin, Wd/o Late Shriram, Aged about 69 years.
6. Ramesh S/o Late Shriram, Aged about 24 years.
7. Ku. Manju D/o Late Shriram, Aged about 19 years.
8. Smt. Ramkali Bai W/o Garib Gajbihey, Aged about 66 years.
9. Smt. Kaushalya W/o Ramlal Nandgouri, Aged about 64 years.
Nos. 5 to 9 were substituted as legal representatives of the deceased Shriram during pendency of the first appeal. Shriram was plaintiff in the suit and respondent No. 1 in first appeal No. 4A/2007.
10. State of Chhattisgarh, through the Collector, Durg, District Durg, Chhattisgarh.
Respondents/LRs. Of Plaintiff For Appellants : Mr. H.V. Sharma, Advocate For State : Mr. Ravi Kumar Bhagat, Dy. G.A. Hon'ble Shri Justice Sanjay K. Agrawal Order on Board
1. Heard on admission and formulation of substantial question of law in this second appeal preferred by legal representatives of original defendant No.3 Fekan Bai under Section 100 of the CPC. Learned trial court 4 decreed the suit of the plaintiff Shriram and granted decree for registration of sale deed in his favour by defendant No. 1 Ramkunwar Bai and dismissed the counter claim preferred by defendant No.2. Feeling aggrieved against the judgment and decree of the trial court, legal heirs of defendant No. 3 preferred civil appeal No.3/2007 and the legal heirs of defendant No.2 preferred civil appeal No.4A/2000 before the first appellate court. Learned first appellate court allowed the appeal preferred by Sitaram and others (legal heirs of defendant No.2) and dismissed the suit of plaintiff/Shriram and also partly allowed the appeal of legal heirs of defendant No.3/Titri bai and it was maintained against defendants No. 2A to 2D and thereby, granted the counter claim of defendants No. 2A to 2D and directed that defendants No. 2A to 2D are entitled for possession of half of the suit land bearing khasra No. 1741/1 area 1.84 acre, khasra No. 1749/1 area 0.74 acre and khasra No. 1781/1 area 0.88 acre total area 3.46 acre from the legal heirs of defendant No. 3/Fekan Bai.
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2. Mr. H.V. Sharma, learned counsel for the appellants/legal heirs of defendant No.3 would submit that the counter claim made by defendant No. 2 against defendant No. 3 was not maintainable as it relates to different property than the property involved in the suit, and as such, the counter claim as framed and decreed was not maintainable and appeal deserves to be admitted for final hearing by formulating substantial question of law.
3. In order to consider the plea raised at the bar, it would be appropriate to notice Order 8 Rule 6A of the CPC which provides for counter claim by the defendants which states as under: "6A. Counterclaim by defendant - (1) A defendant in a suit may, in addition to his right of pleading a setoff under Rule 6, set up, by way of counterclaim against the claim of the plaintiff any right or claim in respect of a cause of action accuring to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such 6 counterclaim is in the nature of a claim for damages or not:
Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the Court.
(2) Such counterclaim shall have the same effect as a crosssuit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court.
(4) The counterclaim shall be treated as a plaint and governed by the rules applicable to the plaint."
4. The Supreme Court in the matter of Jag Mohan Chawla & Another v. Dera Radha Swami Satsang & Others1 considered the question, whether in the suit for injunction, counter claim for injunction in respect of the same or different properties is maintainable. While answering the issue in affirmative, Their Lordships held that the counter claim even in respect of different property is maintainable. It was observed as under: 1 (1996) 4 SCC 699 7 "5. xxxxxxxxxxxx. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needles protection, 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 counterclaim 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 counterclaim 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. Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6C to seek deletion of the counterclaim. It is seen that the trial Court had not found it necessary to delete the counter claim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises no illegality warranting dismissal of counterclaim. 8
Nonetheless, in the same suit, both the claim in the suit and the counterclaim could be tried and decided and disposed of in the same suit."
5. The principle of law laid down in Jag Mohan Chawla (supra) has been followed with approval by the Supreme Court in the matter of Thomas Mathew v. The Construction Engineer, K.L.D.C. Ltd.2 holding that the purpose of introducing Order 8 Rule 6A was to avoid multiplicity of proceedings and a counterclaim expressly is treated as a crosssuit with all the indicia of pleadings as a plaint including the duty to aver the cause of action and also the payment of the requisite Court fee.
6. Thus, in the aforesaid report, Their Lordships have clearly held that the defendant is within its rights to counter claim in respect of cause of action accrued to him, though it is independent to the cause of action averred by the plaintiff in his suit.
7. The question is whether such a counter claim made by defendants No. 2A to 2D against defendant No. 3 claiming possession was maintainable. The Supreme Court in the matter 2 (2018) 12 SCC 560 9 of Rohit Singh & Others v. State of Bihar (Now State of Jharkhand) & Others3 held that the counter claim made by the defendant along with the plaintiff would be maintainable.
"21. Normally, a counterclaim, though based on a different cause of action than the one put in suit by the plaintiff could be made. But, it appears to us that a counter claim has necessarily to be directed against the plaintiff in the suit, though incidentally or along with it, it may also claim relief against codefendants in the suit. But a counter claim directed solely against the co defendants cannot be maintained. By filing a counterclaim the litigation cannot be converted into some sort of an interpleader suit. Here, defendants 3 to 17 had no claim as against the plaintiff except that they were denying the right put forward by the plaintiff and the validity of the document relied on by the plaintiff and were asserting a right in themselves. They had no case even that the plaintiff was trying to interfere with their claimed possession. Their whole case was directed against defendants 1 and 2 in the suit and they were trying to put forward a claim as against the State and were challenging the claim of the State that the land
3 (2006) 12 SCC 734 10 involved was a notified forest in the possession of the State. Such a counter claim, in our view, should not have been entertained by the trial court."
8. (a). At this stage, it would be appropriate to notice the description of the suit land. Plaintiff claimed the following relief in the plaint : "अ. यह घघषषत ककयय जयवव कक षववयकदत भभषम कव ससबसध मम पसजजबद षवकय पत कदनयसक 17175 उस पर बसधन कयरक नहज हह ।
ब. 2000/ रपयय यय षववयकदत भभषम कक वयसतषवक ककमत कव रप मम जघ भज रयषश नययययलय उषचत समझव पटययव जयनव पर षववयकदत भभषम कव कबजव कक आजषप पयररत कक जयवम । स. उसव वयद वय कदलययय जयवम ।
ड. अनय अननतघष जघ पकरण कक पररषससषतयय मम नययययलय उपयनक एवस सयमयपभणर समझव कदलययय जयवम ।"
(b). Paragraph 5 of the plaint gives details about the sale deed dated 17/01/1975 and states as under : "यह कक कदनयसक 17175 कघ पषतवयदज कमयसक १ नव वयदज कव उक पभवरकययषधकयर कक ओर दनलरभ करतव हए और भभषम कघ बवचनव कय अपनय मनतबय वयदज कव समक पगट न करतव हए पसजजबद षवकय पत दयरय 4 हजयर रपयव कक ककमत दशयरकर षववयकदत भभषम ख. न. 1741:1 टनकड़य : रकबय 0.44 एकड़ कव सयस पषतवयदज कमयसक 3 कव पयस बवच कदयय । वयसतव मम पषतवयदज क. 1 उक भभषम वयषसतषवक ककमत 2400/ र लवकर बचज सज जघ कक उसकय वयसतषवक बयजयर मभलय हह ।11
पषतवयदज कमयसक 3 नव पषतवयदज कमयसक 1 कघ कव वल 2400/ र उक भभषम कक कन ल ककमत कव रप पटययव हह ।"
(c). The copy of the sale deed dated 17/01/1975 has been filed as Exhibit D/1 in which description of the property sold has been mentioned as under : खसरर न. रकबर हह कटह यर लगरन 1741/1 कर टट कड़र 0.92 0.372 2.39 पप सह 1749 कर टट कड़र 0.37 0.150 1781 कर टट कड़र 0.44 0.178 3 1.73 0.790 2.39 पप सह
9. Paragraphs 18, 19, 20 and 21 of the counter claim state as under : "18. वयद पत कक कस षडकय 5 मम वरणरतयननसयर षवकयपत पषतवयदज क. 1 रयमकनस वरबयई नव कदनयसक 17175 कघ षववयकदत षनमषलषखत गयम नवयगढ़, तहसजल बवमवतरय, षजलय दनगर षसतस भभषम कय षवकयपत सव. फव कन कव पक मम कर दवनव कव बयद सवगरय फव कन नव अपनज भभषम कय पमयणजकरण करवय षलयय हह ।
ख. न. रकबर लगरन
1741/1 कर टट . 0.92
1749 कर टट . 0.37
1781 कर टट . 0.44
3 1.73 एकड़
19. इस पकयर सव षनम भभषम सवगरय धरषमन बयई कव नयम सव दजर हह षजसकव एकमयत उतरयषधकयरज गण पषतवयदज क. 2 अ सव 2 ड हह षजसकय षववरण षनमयननसयर हह : ख. न. रकबर लगरन 1741/1 0.373 2.39 12 1749/1 0.450 1781/1 0.178 3 0.701 2.39 र.
ककनतन सवगरय फव कन नव जबरदसतज उपरघक भभषम मम कबजय बनय षलयय हह । इसषलए पषतवयदज क. 2 ब कक ओर सव षनववदन हह कक उसव उपरघक भभषम कय कबजय कदलययय जयवम । षवकयपत कव आधयर सव भज सव. फव कन असवय उसकव वयररसयन कघ इस कस षडकय मम वरणरत भभषम कघ कबजय करनव कय अषधकयर नहह हह ।
20. पषतवयदज क. 2 ब कव वयद मभल कक उतपषत षवकयपत कदनयसक 17175 कव पशयत सवगरय फव कन दयरय षलषखत षववरण कक कस षडकय 19 मम षलषखत भभषम कघ बलयत कबजय कर लवनव कव कयरण पहदय हआ । इस पकयर सव यह वयद अवषध कव असतगरत हह ।
21. पषतवयदज क. २ ब अपनव पषतवयद पत कय मभलययसकन षलषखत षववरण कक कस षडकय 19 मम वरणरत भभषम कय लगयन 2.39 र. कक बजस गननय 47.80 र. पर नयभनतम नयययलय शनलक 5/ र. चसपय करतय हह ।
अतएव षनववदन हह कक पषतवयदज क. 2 अ सव 2 ड कव पक मम षववयकदत भभषम कक षडकक कक जयवम । षवकलप मम यह भज षनववदन हह कक यकद वयदज कय वयद खयररज करनव यघगय हघ जघ कक असवजकयर हह तघ भज सव षवकलप मम षनववदन हह कक षलषखत षववरण कक कस षडकय 19 मम वरणरत भभषम कव कबजव कक षडकक पषतवयदज क. 2 अ सव 2 ड कव पक मम ककयय जयवम ।"
10. The conjoint reading of the plaint allegations, relief claimed in the plaint along with the description of suit land mentioned in the sale deed (Ex. D/1) and the averment made in the counterclaim would show that the suit land shown in the plaint by the 13 plaintiff in his suit and suit land claimed by defendants No. 2A to 2D in counterclaim, both are same, and it cannot be held that the counterclaim was only directed against defendant No. 3. It was also directed against the plaintiff as he was claiming the suit land. Following the principles of law laid down by the Supreme Court in Rohit Singh (supra), the counterclaim was directed not only against the plaintiff but also against defendant No. 3, therefore, counterclaim as framed and filed was maintainable in law.
Learned first appellate Court has not committed any illegality in decreeing the counterclaim filed by defendants No. 2A to 2D in which I do not find any illegality or perversity.
11. The second appeal deserves to be and is accordingly dismissed in limine without notice to the other side. No cost(s).
Sd/ (Sanjay K. Agrawal) Judge Harneet