Himachal Pradesh High Court
Ravinder Singh And Others vs Nirmala Guleria Wd/O Of Rasal Singh on 2 December, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 427 of 2003.
Reserved on 30.11.2016.
.
Decided on: 02.12.2016.
Ravinder Singh and others. ...Appellants/Plaintiffs.
Versus
Nirmala Guleria Wd/o of Rasal Singh ... Respondent/defendant.
of
....................................................................................
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt 1
Whether approved for reporting? No.
For the appellants. : Mr. Ajay Sharma, Advocate.
For the respondent. : Mr. Neeraj Gupta, Advocate.
Ajay Mohan Goel, J.
By way of this appeal, the appellants/defendants have challenged the judgment and decree passed by the Court of learned Addl. District Judge-II, Kangra at Dharamshala in Civil Appeal No. 68-D/2000, dated 6.8.2003 vide which learned appellate court while dismissing the appeal filed by the present appellants upheld the judgment and decree passed by the Court of learned Sub Judge 1st Class (II), Dharamshala in Case No. RBT CS 77/99/98 dated 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:40:30 :::HCHP25.3.2000, vide which learned trial court while decreeing the suit of the plaintiff/respondent for permanent injunction dismissed the .
counter claim of the appellants/defendants with costs.
2. Brief facts necessary for adjudication of the present case are that respondent/plaintiff filed a suit stating therein that he and defendant were brothers whose families were residing separately for of the last more than 25 years. It was further his case that the suit land comprised khata No. 20min/18min khatauni No. 101 min khasra Nos.
rt 254, 256, 260 and 260/1 kitas 4 measuring 0-13-80 hectares situated at Mohal Lehsar Mauza Yol, Tehsil Dharamshala Distt. Kangra was exclusively owned and possessed by him as was entered in the Jamabandi for the year 1996-97. His further case was that plaintiff being in exclusive ownership of the suit land was entitled to remain in possession of the same without any interference from the defendants who were forcibly trying to occupy portion of the suit land by removing/cutting plants of tea bushes from the same as well as by way of digging the suit land with a view to occupy the same. On these bases, the plaintiff filed the suit praying fo r a decree for permanent prohibitory injunction together with mandatory injunction against the defendants.
::: Downloaded on - 15/04/2017 21:40:30 :::HCHP3. The defendant through written statement contested the claim of the plaintiff and stated that it was the defendant who was in .
possession of the suit land comprised in khasra No. 260 and the said possession of the defendant was open, continuous and hostile to the knowledge of plaintiff for the last more than 12 years and defendant had become owner in possession by afflux of time by way of adverse of possession. It was further the case of the defendant that though the families of plaintiff and defendant were residing separately for the last rt more than 25 years, however, the plaintiff had got the land partitioned at the back of the defendant and defendant remained in possession of the suit land comprised in khasra No. 260. It was further the contention of the defendant that revenue entries to the contrary were wrong and false and were liable to be corrected in the name of the defendant. Defendant also filed a counter claim for declaration to the effect that he was in possession of land comprised in khasra No. 260 measuring 0-02-73 hectares situated at Mohal Lehsar Mauza Yol, Tehsil Dharamshla Distt. Kangra and that his possession on the suit land was open, continuous, hostile and within the knowledge of the plaintiff for the last more than 12 years and thus he had become owner of the same by afflux of time. Accordingly, he prayed for a decree of mandatory injunction against the plaintiff to this effect.
::: Downloaded on - 15/04/2017 21:40:30 :::HCHP4. By way of replication the plaintiff reiterated his claim as was put forth in the plaint and denied the counter claim set up by the .
defendant.
5. On the basis of pleadings of the parties and material placed on record, the learned Trial Court framed the following issues:-
"1. Whether the plaintiff is entitled to the relief of injunction, as prayed ? OPP.
of
2. Whether the suit is not maintainable in the present form? OPD.
3. Whether the defendant has become the owner of the land rt measuring 0-02-73 Hectss Kha sra No. 260 by way of adverse possession as claimed in the counter claim? OPD.
4. Whether the defendant entitled to the consequential relief of injunction quay khasra No. 260, as prayed by way of counter claim? OPD
5. Relief."
6. The learned Trial Court returned the following findings on the said issues:-
"Issue No.1 :Yes.
Issue No.2 :No.
Issue No.3 :No.
Issue No.4 : No.
Relief : The suit of the plaintiff is decreed whereas the
counter claim of the defendant is dismissed, per operative part of this judgment"
7. Learned trial court thus decreed the suit of the plaintiff for permanent injunction restraining the defendant including his family members etc. from interfering in any manner over the land ::: Downloaded on - 15/04/2017 21:40:30 :::HCHP measuring 0-13-80 hectares bearing khasra No. 254,256,260 and 260/1 as per Jamabandi for the year 1996-97 situated in Mohal Leshar .
Mauza Yol, Tehsil Dharamshala Distt. Kangra against the defendant with costs, whereas it dismissed the counter claim of the defendant filed against the plaintiff with costs.
8. Feeling aggrieved by the judgment and decree so passed of by learned trial court, defendant filed an appeal before the learned appellate court. It is pertinent to mention that whereas on the one hand rt learned trial court allowed the suit of plaintiff and on the other hand it dismissed the counter claim filed by defendant, challenge to the decree which was passed in favour of plaintiff as well as the dismissal of the counter claim of defendant was made by defendant by way of filing one composite appeal only. Learned appellate court vide its judgment and decree dated 6.8.2003 while dismissing the appeal so filed by the appellant/defendant upheld the judgment and decree passed by learned trial court.
9. Feeling aggrieved by the same, defendant filed this appeal which was admitted on 12.7.2004 on substantial questions of law No.1 and 4:
"Whether both the learned courts below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them, thereby vitiating the impugned judgments and decrees?::: Downloaded on - 15/04/2017 21:40:30 :::HCHP
Whether both the courts below misread and mis-appreciated the evidence and pleadings specifically with respect to the factum of adverse possession, thereby vitiating the impugned judgments and decrees?"
.
10. During the course of arguments leaned counsel for the defendant submitted that in fact this appeal is not maintainable neither was the one which was filed by the present appellant before learned of first appellate court because keeping in view the fact that learned trial court had besides allowing the suit of plaintiff, also simultaneously rt dismissed the counter claim of defendant, defendant could not have had assailed the dismissal of the counter claim as well as the allowing of the suit of plaintiff by filing one composite appeal. In view of this contention of learned counsel for the respondent, in the interest of justice following substantial question of law also arose for determination, on which learned counsel for the appellant as well as learned counsel for the respondent were heard at length:
"Whether a single composite appeal against the judgment and decree passed by learned trial court vide which learned trial court had decreed the suit of plaintiff and dismissed the counter claim of defendant was main tainable?
11. I have heard learned counsel for the parties and also gone through the records of the case as well as judgments and decrees passed by both the courts below.
::: Downloaded on - 15/04/2017 21:40:30 :::HCHP12. A three Judges Bench of Hon'ble Supreme Court in Ramagya Prasad Gupta and others Vs. Murli Prasad and others , AIR .
1974 Supreme Court 1320 has held:-
" 8. It is clear that where a suit has been tried and finally decided on the merits, if the defeated party wishes in another suit between the same parties relating to the same property to have the same questions re-agitated, he cannot be allowed to do so, because his cause of action has passed into a judgment, and of the matter has become res judicata. Even where two appeals have been taken from the same judgment by two different parties to which all others are parties either as appellants or respondents and one of the appeals is dismissed either on merits or for any other reasons, it has been held by some of the High Courts, but we express no opinion thereon, that the other appeal rt has also to be dismissed, because it is barred by the principles of res judicata as otherwise there will be conflict in. the decrees. In the Lahore decision there were two cross suits about the same subject-matter filed simultaneously between the same parties and two decrees were prepared. An appeal being filed in respect of one decree and not in respect of the other, the question was whether the non-filing of the appeal against that decree creates an estoppel against the hearing of the other appeal. In Narh ari's case (supra) what this Court held was, where there has been on.-. trial, one finding and one decision, there need not be two appeals even though two decrees may have been drawn up and consequently the fact that one of the appeals was time barred does not bar the other appeal on the ground of res judicata. In this case, these questions need not be considered. Nor is it relevant to consider whether there is any conflict between the decision in this case and Sheodan Singh's case (supra). In Sheodan Singh's case two suits were field in the Court of the Civil Judge, one for a declaration of the title to the suit property and the second for other reliefs and consequently two other suits were filed by the respondents in the Munsif's court against the appellant claiming joint ownership to the suit property and other reliefs. The four suits were tried together by the Civil Judge. Some of the issues were common to all the suits and one of the commons issues relating to the title of the parties was found in favour of the respondent. The Civil Judge dismissed the appellant's title suit, decreed his other suit partly, and decreed the two suits of the respondent. The appellant filed appeals against the decree in each suit. The High Court dismissed the two appeals arising out of the respondent's suits, one as time barred, and the other for failure to apply for translation and printing of the record. As the title of the respondent to the suit property had become final on account of such dismissal, the respondent prayed for the dismissal of the other two appeals ::: Downloaded on - 15/04/2017 21:40:30 :::HCHP also, as the main question involved therein was the same. The High Court agreed that the appeals were barred by res judicate and dismissed them. Against these order of dismissal, the appellant filed appeals to this Court and contended that-(1) title to the property was not directly and substantially it% issue in .
the respondent's suits (2) the Munsif's Court could not try the title suit filed by the appellant;(3) it could not be said that appeals arising out of the respondent's suits were former suits as such the bar of res judicata will be inapplicable; and (4) the two appeals which were dismissed -one on the ground of limitations and the other on the ground of not printing the records, could not be said to be heard and finally decided. This Court held that the High Court was right in dismissing the appeals as being barred by res indicate inasmuch as the issue as to the title was raised in respondent's suits and it was directly of and substantially in issue in those suits also and did arise out of the pleadings of the parties, and further the High Court's decision in the two appeals arising from the respondent's appeals were undoubtedly earlier and, therefore, the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in that rt case. The decision in Narhari's case (supra) was distinguished by this Court in that case so that it could not be said that that decision was in any way in conflict with the decision in Narhari's case (supra). In appeals arising out of a subsequent suit and an earlier suit where there were common issues, common subject-matter and common trial and the appeals arising out of the subsequent suit were dismissed, a question would arise as to whether the appeals from the earlier suit which were pending arc barred by res judicata A question may also arise where the subject-matter is the same and the issues are common in the two suits but some of the parties are different in one suit, whether the bar of res judicata would operate against the parties who are common. All these aspects need not be considered in these appeals because, in our view, the subject-matter of Title Suit No.68 of 1954 and that of Title Suit No. 94 of 1956 are entirely direct. Even if the issues that are common in the two suits, and it has been admitted by the learned .Advocate for the appellants that some of the issues might be common to both the suits, issues Nos. 4, 9, 12, 13 and 14 at any rate survive, and consequently the bar of res judicata would not apply."
13. A three Judges Bench of Hon'ble Supreme Court in Premier Tyres Limited Vs. Kerala State Road Transport Corporation, AIR 1993 Supreme Court 1202 while dealing with situation where suits are decreed by common judgment and appeal is filed against one ::: Downloaded on - 15/04/2017 21:40:30 :::HCHP judgment and decree whereas appeal is not filed in the connected case held that finality of finding recorded in the connected suit due to non .
filing of appeal precludes the Court from proceeding with appeal in other suit. It was held by Hon'ble Supreme Court that effect of non filing of appeal against a judgment or decree is that it becomes final and as this finality can be taken away only in accordance with law, of therefore, same consequences follows when a judgment or decree in a connected suit is not appealed from.
14. rt In Ram Prakash Vs. Smt. Charan Kaur and another, AIR 1997 Supreme Court 3760, Hon'ble Supreme Court has held:-
"2. It would be obvious that since the claims of the petitioner and the respondents have arisen from the same cause of action and the finding of the appellate Court that damages had accurred to the respondents due to misfeasance or malfeasance having been allowed to become final, the decree which is subject matter of the special leave petition cannot be assailed. The self same question was directly in issue and was the subject matter of both the suits. The same having been allowed to become final, it cannot be gone into since the same had attained finality, the petitioner having not filed any appeal against the appeal dismissing the suit. In view of this situation, the High Court was right in concluding that the decree of dismissal of the suit against the petitioner would operate as res judicata under Section 11 CPC in the appeal against which the petitioner has filed the second appeal."
15. In Sri Gangai Vinayagar Temple and another Vs. Meenakshi Ammal and others (2015) 3 Supreme Court Cases 624, three Judges Bench of Hon'ble Supreme Court has held:-
"27. Procedural norms, technicalities and processal law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute 30 Page 31 becoming sub judice once again. Consolidation orders are passed by virtue of the bestowal of inherent powers on the Courts by Section 151 of the CPC, as clarified by this ::: Downloaded on - 15/04/2017 21:40:30 :::HCHP Court in Chitivalasa Jute Mills vs. Jaypee Rewa Cement (2004) 3 SCC
85. In the instance of suits in which common Issues have been framed and a common Trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. While so opining we do not intend to whittle down the principle that appeals are not expected to be .
filed against every inconvenient or disagreeable or unpropitious or unfavourable finding or observation contained in a judgment, but that this can be done by way of cross-objections if the occasion arises. The decree not assailed thereupon metamorphoses into the character of a "former suit". If this is not to be so viewed, it would be possible to set at naught a decree passed in Suit A by only challenging the decree in Suit B. Law considers it an anathema to allow a party to achieve a result indirectly when it has deliberately or negligently failed to directly initiate proceedings towards this purpose. Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of of justice inevitably and inexorably ensues. The statutory law and the processal law are two sides of the judicial drachma, each being the obverse of the other. In the case in hand, had the Tenant diligently filed an appeal against the decree at least in respect of OS No. 5 of 1978, the legal conundrum that has manifested itself and exhausted so much judicial time, would not have arisen at all."
rt
16. In Rajni Rani and another Vs. Khairati Lal and others, (2015) 2 Supreme Court Cases 682 the Hon'ble Supreme Court has held that 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 counterclaim 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. Hon'ble Apex Court further held that in that regard nothing survives as far as the said defendants are concerned and 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 and the determination should conclusively put to rest the ::: Downloaded on - 15/04/2017 21:40:30 :::HCHP rights of the parties in that sphere. It was further held by Hon'ble Supreme Court that 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. It further held that where a counter claim which is in the nature of cross-
suit has been dismissed nothing else survives for the defendants who of had filed the counterclaim and the order passed by learned trial Judge has the status of a decree and the challenge to the same has to be made rt before the appropriate forum where appeal could lay by paying the requisite fee.
17. Similar view has also been taken by a Coordinate Bench of this Court in Piar Chand and other Vs. Ranjeet Sigh and others , in RSA No. 293 of 2006 decided on 16.9.2016.
18. Reverting to the facts of this case admittedly learned trial court while allowing the suit filed by plaintiff dismissed the counter claim filed by defendant. Whereas the plea of plaintiff that he was owner in possession of the suit land was accepted by learned trial court, the contention raised by way of counter claim that defendant had become owner of the suit land by way of adverse possession was dismissed by learned trial court. In other words, finding returned by learned trial court was that it was the plaintiff who was in possession ::: Downloaded on - 15/04/2017 21:40:30 :::HCHP of the suit land and not the defendant. Defendant rather than filing two separate appeals, one against the decree which was passed in favour of .
the plaintiff by learned trial court in civil suit and second against the dismissal of his counter claim, filed only one appeal before the learned appellate court. In my considered view, the defendant erred in doing so because as the decreeing of the suit of the plaintiff and of dismissal of the counter claim of the defendant were two distinct adjudications though made by way of same judgment and decree by rt learned trial court, both these adjudications assumed the status of a decree and they required to be challenged separately and filing only one appeal against both the said adjudications was not permissible in law. As I have already discussed above, it has been categorically held by Hon'ble Supreme Court in such like matters that a Court may draw a formal decree or not but if by virtue of the judgment of the Court the rights have finally been adjudicated then the same would assume the status of a decree. As the adjudication on the suit filed by the plaintiff and adjudication on the counter claim filed by the defendant assumed the status of two distinct decrees, they were required to be challenged by way of separate appeals by paying the requisite Court fee on each of them. Incidentally though learned first appellate court dismissed the appeal so filed by defendant on merit by affirming the judgment and ::: Downloaded on - 15/04/2017 21:40:30 :::HCHP decree passed by learned trial court, however, in my considered view, the appeal so filed by defendant was otherwise liable to be rejected on .
the ground that the said appeal was not maintainable as defendant had failed to file two appeals one against the decreeing of the suit in favour of plaintiff and other against the dismissal of his counter claim.
Learned appellate court failed to appreciate that in the absence of two of appeals, one appeal so filed was not maintainable, as the findings returned on plaint and counter claim acted as res judicata vis-à-vis rt each other which necessitated the filing of two appeals. Learned appellate court also failed to appreciate that non filing of two distinct and separate appeals amounted to having the same effect where no appeal was filed from a decree in connected case and the effect of non-filing of appeal against judgment or decree that has become final.
In other words because only one appeal was filed, therefore, finality of finding recorded in connected claim on account of non filing of appeal precluded the Court from proceeding with appeal in the other connected claim.
19. To give an illustration, 'A' files a suit for recovery of Rs.100/- against 'B' and 'B' also files a counter claim for recovery of Rs.50/- from plaintiff 'A'. Learned trial court partly decrees the suit of 'A" against defendant 'B' for recovery of Rs.70/- but dismisses the ::: Downloaded on - 15/04/2017 21:40:30 :::HCHP counter claim filed by defendant. In such like circumstance defendant cannot assail the dismissal of his counter claim as well as the partial .
decree of the suit of the plaintiff by one appeal. The defendant will have to file two separate appeals, one challenging the decree passed in favour of the plaintiff and other challenging the dismissal of his counter claim. However, if plaintiff wants to assail the factum of his of suit not being decreed in totality, he is not to file two appeals but he can file only o ne appeal against the partial allowing of his suit.
20. rt It is settled law that counter claim has effect of a cross-
suit and Court can announce a final judgment both on original claim and on the counter claim. Counter claim filed by defendant has to be treated as a plaint and the effect of counter claim is that even if suit of the plaintiff is stayed, discontinued, dismissed or withdrawn, counter claim can be decided independently on merits. In fact counter claim has to be treated as a plaint and is governed by the Rules applicable to plaint and similarly the reply filed in answer to counter claim is to be treated as written statement and is governed by Rules applicable to written statement.
In view of my findings returned above, the judgment and decree passed by the Court of learned Sub Judge 1 st Class (II), Dharamshala in Case RBT CS 77/99/98 dated 25.3.2000 is upheld on ::: Downloaded on - 15/04/2017 21:40:30 :::HCHP the ground that as the defendant had failed to file two separate appeals against the decree of suit by learned trial court in favour of plaintiff .
and against the dismissal of his counter claim, the single composite appeal filed against the judgment and decree so passed by learned trial court before learned appellate court was not maintainable. (This finding is being returned keeping in view the law declared by the of Hon'ble Supreme Court of India though in the present case learned first appellate court did not reverse the findings returned by learned rt trial court.) Substantial question of law so framed is answered accordingly. In view of findings returned in this appeal, in my considered view there is no necessity of adjudicating upon the other substantial questions of law which was framed by the Court on 12.7.2004. No order as to costs. Miscellaneous application(s), if any stands disposed of.
(Ajay Mohan Goel) Judge 2 nd December, 2016.
(Guleria) ::: Downloaded on - 15/04/2017 21:40:30 :::HCHP