Himachal Pradesh High Court
Mohan Singh vs Inder Singh & Others on 6 December, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Regular Second Appeal No.41 of 2006
.
Date of decision: 06.12.2016
Mohan Singh ....Appellant-Plaintiff
Versus
Inder Singh & Others ..Respondents-Defendants
of
Coram
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ?1
rt Yes.
For the Appellant: Mr.N.K. Sood, Senior Advocate
with Mr.Aman Sood, Advocate.
For Respondents No.1: Mr.N.K. Thakur, Senior Advocate
and 2(a) with Ms.Jamuna, Advocate.
Sandeep Sharma,J.
This appeal has been filed by the appellant-
plaintiff against the judgment and decree dated 27.12.2005, passed by the learned District Judge, Chamba, District Chamba, H.P., affirming the judgment and decree dated 30.11.2004, passed by the learned Civil Judge(Junior Division), Chamba, whereby the suit filed by the appellant-
plaintiff has been dismissed.
2. The brief facts of the case are that the appellant-
plaintiff (herein after referred to as the `plaintiff'), filed a suit 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 2for declaration to the effect that the plaintiff alongwith proforma defendants are owners of the land comprised in .
Khasra No.263, situated in village Tissa Kaswati (hereinafter referred to as the `suit land') and the entry in the revenue record in favour of the defendants qua the suit land are wrong and illegal. Plaintiff further prayed that the defendants be restrained permanently from raising any construction over of the suit land and in the alternative for possession of the suit land.
3. rt It is averred by the plaintiff that he is recorded owner in possession of the land comprised in Khasra Nos.264, 265 and 267, measuring 205 square yards and one square feet, which is adjoining to the suit land, which was recorded in the ownership of the plaintiff and proforma defendants, but in possession of defendants Nos.1 and 2 without any status. It is further averred that at one point of time, the suit land was owned by one Sh.Dass son of Sh.Harkha and the same was acquired by the plaintiff and proforma defendants by way of gift vide mutation No.38. It is alleged by the plaintiff that the suit land was given to one Smt.Rukmani widow of Sh.Ram Singh for the purpose of living on 'Dharmarth', but defendants Nos.1 and 2, in connivance with the revenue agency on the basis of some forged Will allegedly executed by Smt.Rukmani, got ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 3 themselves recorded in possession of the same, which entry is wrong, illegal and not binding upon the plaintiff and .
proforma defendants. It is averred by the plaintiff that Smt.Rukmani was not having any right, title or interest in the suit land, except that she was in permissive possession of the same and, as such, the defendants could not have inherited the suit land on the basis of Will. It is further of averred by the plaintiff that the defendants, taking advantage of the wrong entry in connivance with the revenue staff, got rt attested mutation No.64 on 30.1.1976, according to which proprietary rights were conferred upon them qua the suit land without any lawful authority as the suit land, which is comprising of a house, could not have been the subject of acquisition of proprietary rights under tenancy or any other law. It is further averred by the plaintiff that the defendants were recorded in possession of the suit land, not as a tenant, but without any status. Thereafter, defendant No.1 on 27.1.1995 has dismantled the building situated over the suit land with a view to raise fresh construction to which he has no right, title or interest. In the aforesaid background the plaintiff filed a civil suit.
4. Defendants, by way of filing written statement, refuted the claim of the plaintiff on the ground of maintainability, estoppel, limitation and locus standi. They ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 4 also filed counter claim against the plaintiff. On merits, the defendants have denied the claim of the plaintiff that he is .
recorded as owner in possession of the land comprised in Khasra Nos.264, 265 and 267. The possession of defendant No.1 on the suit land has been admitted, whereas it is denied that that the plaintiff and proforma defendants are either owners or in possession of the suit land. It is also denied of that Sh.Dass executed a gift deed qua the suit land in favour of the plaintiff, but stated that one Sh.Ram Singh was a rt tenant of Dass, as he used to cultivate the land comprised in Khasra Nos.267 and 268 as a tenant and a house comprised in Khasra No.263 was gifted to Sh.Ram Singh by Sh.Dass and after the death of Shri Ram Singh, his widow Smt.Rukmani remained in possession of the suit land as owner. Smt.Rukmani, therefore, executed a Will in favour of defendant No.1. It is averred that Smt.Kunanu was not competent to dispose of the house situated over the suit land in favour of the plaintiff and proforma defendants as she was not in possession of the suit property. The possession of the suit property was never delivered to the plaintiff and, as such, revenue entry qua the suit land in favour of the plaintiff and proforma defendants are wrong and the same is not binding upon the defendants. It is further averred by the defendants that they have repaired the house in dispute and ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 5 have also made improvement therein. It is further averred by the defendants that since Smt.Rukmani got the disputed .
house from her husband late Shri Ram Singh, she was competent to dispose of the same. It is denied that the Will executed by Smt.Rukmani is forged document. It is averred by the defendants that for the last more than 38 years Sh.Ram Singh, Smt.Rukmani and thereafter defendants No.1 of and 2 are in possession of the disputed house to the knowledge of the plaintiff and profroma defendants and, as rt such, the defendants have acquired ownership rights over the disputed house by way of adverse possession as the defendants are in physical possession of the disputed house for the last more than 12 years. It is further averred by the defendants that they have also set up a counter claim seeking declaration that the suit property is in their possession as owners and entry in the revenue record qua the suit property in favour of the plaintiff and proforma defendants is null and void and not binding upon the rights of the defendants. In the aforesaid background the defendants prayed for dismissal of the suit.
5. On the pleadings of the parties, the learned trial Court framed the following issues:-
"1. Whether the plaintiff and the proforma defendants are owners of the property comprised in Khasra No.263 as alleged? OPP.::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 6
2. Whether the suit property was given to Smt.Rukmani for residence purpose as 'Dharmarth' as alleged. If so, its .
effect? OPP.
3. Whether the revenue entries existing in favour of the defendants Nos.1 and 2 are wrong and illegal as alleged? OPP.
4. Whether the plaintiff and the proforma defendants are entitled to decree for possession of the disputed property as claimed? OPP.
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5. Whether the suit is not maintainable in the present form? OPD.
6. Whether the plaintiff is estopped from rt filing the present suit by his act and conduct? OPD.
7. Whether the suit is time barred? OPD.
8. Whether the plaintiff has no locus standi to sue? OPD.
9. Whether Smt.Rukmani was competent and validly willed away the suit property in favour of the defendants as alleged? OPD.
10. Whether the disputed property was gifted to Sh.Ram Singh as alleged. If so, its effect? OPD.
11. Whether mutation No.64 has been wrongly and illegally attested in favour of the defendants as alleged?
OPP.
12. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP.
13. Whether the defendants have become the owners of the suit property by way of adverse possession? OPD.
14. Whether the defendants are owners in possession of the suit property as alleged? OPD.::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 7
15. Relief."
.
6. Learned trial Court vide common judgment and decree dated 30.11.2004 dismissed the suit of the plaintiff and decreed the counter claim filed by the defendants.
7. Feeling aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial of Court, whereby suit filed by the plaintiff was dismissed and counter claim by the defendants-respondents were decreed, rt appellant-plaintiff filed an appeal under Section 96 of the Code of Civil Procedure (for short `CPC') read with Section 21 of the H.P. Courts Act assailing therein judgment and decree dated 30.11.2004 passed by learned Civil Judge(Junior Division) in the Court of learned District Judge, Chamba.
8. Learned District Judge, Chamba vide judgment and decree dated 27.12.2005 dismissed the appeal preferred by the plaintiff by affirming the judgment and decree passed by the learned trial Court. Learned first appellate Court also affirmed the decreed passed by the learned trial Court in the counter claim.
9. In the aforesaid background, the present appellant-plaintiff filed this Regular Second Appeal before this Court, details whereof have already been given above.
::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 810. This second appeal was admitted on the following substantial question of law:
.
"(1) Whether the respondents/defendants No.1 and 2 could not have claimed title to the suit property both on the basis of the will from Rukmani, in whose favour a gift had allegedly been made by the original owner Dass, and also on the basis of plea of adverse possession at the same time?
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2. Whether the finding that the respondents/defendants No.1 and 2 have acquired title by prescription, could not have been returned when it rt was also found that possession of Rukmani and prior to her that of Ram Singh, her husband, was permissive?"
11. At this stage, it may be noticed that on 15th November, 2016, the matter was listed before this Court, and attention of Mr. N.K. Sood, Senior Advocate, representing the appellant-plaintiff was invited towards the judgment passed by Hon'ble Apex Court in Rajni Rani and versus Khairati Lal and Others, (2015)2 SCC 682 and Laxmidas Dayabhai Kabrawala vs. Nanabhai Chunilal Kabrawala and others, AIR 1964 SC 11, which was further followed by this Court while dismissing RSA No.293 of 2006, titled as Piar Chand & Others versus Ranjeet Singh & Others, wherein Hon'ble Apex Court has held that while dismissing the counter claim, Court may or may not draw a formal decree but if rights are finally adjudicated, it would assume ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 9 the status of a decree and same needs to be laid challenge, if any, by way of filing separate appeal affixing required court .
fee.
12. In view of aforesaid law having been brought to the notice of Mr.N.K. Sood, learned Senior Advocate, representing the appellant-plaintiff, he sought time to go through the same. Thereafter, today i.e. on 6.12.2016, when of the matter was listed before this Court, this Court in view of aforesaid law having been laid down by the Hon'ble Apex rt Court deemed it fit to frame additional substantial question of law for proper adjudication of the case at hand. The additional substantial question of law is as under:-
1. "Whether the learned First Appellate Court has erred in entertaining the composite appeal having been preferred by the appellant-plaintiff against the judgment and decree passed by learned trial Court dismissing the suit of the plaintiff and decreeing the counter claim preferred by the defendants-respondents that too without affixing separate/ requisite court fee as far as counter claim is concerned.
13. Mr.Sood, learned Senior Advocate, vehemently argued that the judgments passed by both the Courts below are not sustainable as the same are not based upon the correct appreciation of the evidence adduced on record by the respective parties and as such, same deserves to be quashed and set-aside. Mr. Sood, further contended that ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 10 bare perusal of the of the judgments passed by both the Courts below suggests that evidence led on record by the .
appellant-plaintiff has not been read in its right perspective and as such, great prejudice has been caused to the appellant-plaintiff against whom decree for possession has been passed.
14. Mr.Sood, while making his submission qua the of additional issue having been framed by this Court, contended that genuine and legitimate claim of the rt appellant-plaintiff cannot be allowed to be defeated on mere technicalities and this Court has wide power to ignore such technicalities and can proceed ahead to decide the matter on the basis of the evidence adduced on record by the respective parties to do substantive justice in the matter. Mr.Sood, further claimed that the learned trial Court decreed the counter claim of the defendants-respondents and appellant-
plaintiff rightly preferred composite appeal against the same before the learned District Judge laying challenge therein to the composite decree passed in the suit as well as in the counter claim in favour of the defendants. He further contended that no appeal, if any, could be filed without there being any decree and as such, appellant-plaintiff had no option but to file composite appeal, whereby suit of the ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 11 plaintiff was dismissed and counter claim of the defendants-
respondents was decreed.
.
15. In the aforesaid background, Mr. Sood, strenuously argued that the counter claim filed by the defendants-respondents deserve to be dismissed after setting aside the judgment and decree passed by the Courts below.
In support of his contention Mr. Sood, also placed reliance of on the judgments of Hon'ble Apex Court in Narhari and others vs. Shanker and others, AIR 1953 S.C.419, rt Gangadhar and another vs. Shri Raj Kumar, AIR(1983) Supreme Court 1202, Tamilnad Mercantile Bank Shareholders welfare Association(2) versus S.C.Sekar and others (2009)2 Supreme Court Cases 784 and B.S. Sheshagiri Setty and others versus State of Karnataka and others (2016)2 Supreme Court Cases 123.
16. Mr.N.K. Sood, Learned Senior Counsel appearing for the appellant-plaintiff, vehemently argued that the impugned judgment and decree passed by learned first appellate is not sustainable in the eye of law as the same is not based upon correct appreciation of evidence as well as law on point. Mr.Sood contended that bare perusal of impugned judgment passed by learned first appellate Court suggests that the same is based on conjectures and surmises and learned first appellate Court has fallen in grave ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 12 error while affirming the judgment and decree passed by the learned trial Court that too on the very flimsy grounds.
.
17. Mr.N.K. Sood, Learned Senior Counsel appearing for the appellant-plaintiff, vehemently argued that the learned court below has fallen in error of law as also on facts while holding that the defendants have perfected their title by adverse possession. He further contended that of pleadings qua plea of adverse possession were not sufficient and adequate as required in law. It ought to have been rt specifically pleaded and proved how and at what time the hostile title started and began to be prescribed or on what date the defendants came into possession or that possession was open, peaceful and continuous. Mr.Sood forcefully contended that adverse possession does not begin to operate unless the plea of title is renounced and disclaimed and without renouncing and disclaiming the plea of acquisition of title on the basis of Will, the defendants could not have raised the plea of adverse possession. Mr.Sood further contended that the averment made by the defendants that the plaintiff and proforma defendants were not the owners of the suit property and that the title vested in Ram Singh and then Rukmani itself demolishes their case of adverse possession. Mr.Sood vehemently argued that once the courts below have conclusively held that the gift dated ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 13 1.12.1969 (Ex.D-1) in favour of plaintiff and proforma defendants of the suit property from Kunanoo widow of .
Sh.Dass was proper and legal, in that event, the very basic, essential and classic requirement of setting up hostile title against the true owner and further animus to hold suit property in denial to the title of the plaintiff and proforma defendants is missing.
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18. Mr.Sood, forcefully contended that the courts below have wrongly and illegally held that the hostile rt possession of the defendants started from the year 1971. In the absence of such specific pleadings, the starting point could not have been presumed and thus the courts below have made out a case for the defendants on its own presumptions, assumptions, conjectures and surmises.
Mr.Sood vehemently contended that even the oral evidence of the defendants was not sufficient to sustain and establish the plea of adverse possession. Statements of defendants as well as their witnesses have been misread and misconstrued which are contrary to the pleadings of adverse possession and the same not sufficient to constitute a lawful proof of adverse possession and the entire approach of the courts below on the question of adverse possession is illegal, unsustainable and has vitiated the findings.
::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 1419. Mr.N.K. Thakur, learned Senior counsel appearing for the respondents-defendants, supported the .
judgment passed by the learned first appellate Court. Mr. Thakur, vehemently argued that bare perusal of the judgment passed by the learned first appellate Court suggests that the same is based upon the correct appreciation of the evidence adduced on record by the of respective parties and as such, there is no scope of interference, whatsoever, by this Court especially in view of rt the concurrent findings of fact recorded by the Court below.
He further contended that the present appeal is not maintainable in view of the law laid down by the Hon'ble Apex Court in Rajni Rani and another vs. Khairati Lal and Others, (2015) 2 SCC 682, which was further followed by this Court while passing judgment dated 16.9.2016 in RSA No.293 of 2006. Mr. Thakur also placed reliance on the judgment of Hon'ble Apex Court in Laxmidas Dayabhai Kabrawala vs. Nanabhai Chunilala Kabrawala and others, AIR 1964 SC 11.
20. Mr. Thakur, while concluding his arguments, further contended that apart from above, this Court has very limited power while exercising power under Section 100 CPC to re-appreciate the evidence and as such, he placed reliance on the judgment passed by Hon'ble Apex Court in ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 15 Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, herein below:-
.
"16. Based on oral and documentary evidence, both the Courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court of proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that rt premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the Courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
21. I have heard learned counsel for the parties and have gone through the record of the case.
22. Keeping in view the specific objection with regard to maintainability having been raised by the appellant-plaintiff in the light of the judgment passed by the Hon'ble Apex Court, this Court deems it fit to take additional substantial question of law framed by this Court at first instance for adjudication.
::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 1623. Perusal of the counter claim filed on behalf of the defendants-respondents suggests that while filing written .
statement they asserted counter claim but fact remains that no requisite fee was paid on the aforesaid counter claim. The appellant-plaintiff denied the aforesaid counter claim of the respondents-defendants terming the same to be false and claimed that there was no negligence on the part of the of appellant-plaintiff as claimed in the counter claim.
24. Careful perusal of the trial court record further suggests rt that appellant-plaintiff refuted the aforesaid counter claim of the respondents-defendants by way of replication as well as by filing separate written statement.
However, the fact remains that learned trial Court after framing issues, as have been reproduced above, dismissed the suit of the plaintiff and decreed the cross-objection having been filed by the respondents-defendants. Operative part of the judgment and decree passed by the learned trial Court clearly suggests that the learned trial Court dismissed the suit of the appellant-plaintiff for possession, whereas decreed the counter claim of ownership and possession preferred on behalf of the respondents-defendants. Careful perusal of the decree sheet available on record suggests that decree for possession was passed in favour of the respondents-defendants and against the appellant-plaintiff.
::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 1725. Careful perusal of the decree, as referred, hereinabove, suggests that it also stands mentioned, "in .
view of my findings on the aforesaid issues, the suit of the plaintiff fails and the same is, accordingly, dismissed, whereas, the counter claim of the defendants is decreed and the defendants are declared to be the owners in possession of the suit property."
of Perusal of aforesaid decree prepared by the learned trial Court while dismissing the suit and accepting the counter rt claim of the defendants, clearly suggests that proper decree was drawn as far as acceptance of the counter claim filed by the defendants is concerned.
26. Appellant-plaintiff, being aggrieved with the aforesaid judgment and decree, approached the learned District Judge by way of an appeal under Section 96 CPC laying therein challenge to aforesaid judgment and decree passed by the learned trial Court. At this stage, it would be appropriate to reproduce cause title/ head note of appeal preferred by the appellant-plaintiff before the learned District Judge, which reads thus:-
"Civil appeal under section 96 CPC read with section 21 of the H.P. Courts Act against the judgment and decree dated 30.11.2004 passed by the learned Civil Judge (Jr.Division), Chamba in Civil Suit no.2 of 1995, titled as Mohan Singh- Versus-Inder Singh and others, with a prayer to set-aside the same."::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 18
27. Careful perusal of aforesaid cause title as well as relief claimed in the appeal clearly suggests that .
appellant-plaintiff before the learned first appellate Court prayed that the appeal filed by him be accepted with costs and the judgment and decree dated 30.11.20-4 passed by learned trial Court be set aside, but there is no prayer, if any, for setting aside the judgment and decree passed by the of learned trial Court, whereby counter claim filed by the defendants-respondents have been decreed and they were rt declared owners in possession of the suit property.
28. Before adverting to the submissions having been made on behalf of the learned counsel representing both the parties, it would be appropriate to refer to relevant provisions of law applicable in the present case i.e. Order 8 Rule 6A:
"6A. Counter claim by defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set off under rule 6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not:
Provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the court.::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 19
(2) Such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original .
claim and on the counter claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the court.
(4) The counter claim shall be treated as a plaint and governed by the rules of applicable to plaints."
29. Aforesaid provisions of law entitles defendant in a suit to set up counter claim against the claim of the rt plaintiff in respect of cause of action accruing to him against the plaintiff either before or after filing the suit, but definitely before defendant files his defence or before the time stipulated for delivering the defence is expired. Needless to say that aforesaid right of filing counter claim is in addition to his right of pleading as set up in Rule 6. Further perusal of aforesaid provisions of law suggests that counter claim, if any, filed on behalf of the defendant would be treated as a plaint and same would be governed by Rules applicable to the plaint. Similarly, counter claims filed on behalf of the defendant would have same effect as a cross suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and the counter claim.
30. Similarly, Rule 6A(3) enables the plaintiff to file a written statement, if any, to the counter claim filed by the ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 20 defendant. Rule 6D specifically provides that in case suit of the plaintiff is stayed, discontinued or dismissed, the .
counter claim filed on behalf of the defendant would nevertheless be proceeded with.
31. Similarly, Rule 6E provides that if plaintiff fails to file reply to the counter claim made by the defendant, the Court may pronounce judgment against the plaintiff in of relation to the counter-claim made against him/her, or make such order in relation to the counter-claim as it deems fit. It rt would be relevant here to refer to Order VIII Rule 6F:
"6F. Relief to defendant where counter-
claim succeeds.- Where in any suit a set- off or counter-claim is established as a defence against the plaintiffs claim and any balance is found due to the plaintiff or the defendant, as the case may be , the Court may give judgment to the party entitled to such balance."
32. Perusal of aforesaid Order VIII Rule 6F clearly suggests that where in any suit a set-off or counter claim is established as a defence against the plaintiffs' claim and any balance is found due to the plaintiff or the defendant, Court may give judgment to the party entitled to such balance.
Further perusal of Order VIII Rule 6G suggests that no pleadings, if any, subsequent to the written statement filed by a defendant other than by way of defence to set up a claim can be presented except with the leave of Court.
::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 2133. Under Order VIII Rule 10 when any party fails to file written statement as required under rule 1 or rule 9 .
within the stipulated time, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.
34. Careful perusal of aforesaid provisions of law of clearly suggests that counter claim, if any, preferred by the defendant in the suit is in nature of cross suit and even if rt suit is dismissed counter claim would remain alive for adjudication. Since counter claim is in nature of cross suit, defendant is required to pay the requisite court fee on the valuation of counter claim. It has been specifically provided in the aforesaid provisions that the plaintiff is obliged to file a written statement qua counter claim and in case of default court can pronounce the judgment against the plaintiff in relation to the counter claim put forth by the defendant as it has an independent status. As per Rule 6A(2), the Court is required to pronounce a final judgment in the same suit both on the original claim and also on the counter-claim.
35. In the present case, as clearly emerged from the judgment passed by the learned trial Court, learned trial Court effectively determined the rights of the parties on the basis of counter claim as well as written statement thereto ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 22 filed by the respective parties and as such it attained the status of decree. It would be profitable here to reproduce .
definition of the term 'decree' as contained in Section 2(2) of CPC:-
"2.(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the of parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [1][ * * *] Section 144, but shall not rt include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;"
36. Close scrutiny of aforesaid definition of "decree"
clearly suggests that there should be formal expression of adjudication by the Court while determining the rights of the parties with regard to controversy in the suit, which would also include the rejection of plaint. Similarly, determination should be conclusive determination resulting in a formal expression of the adjudication. It is settled principle that once the matter in controversy has received judicial ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 23 determination, the suit results in a decree, either in favour of the plaintiff or in favour of the defendant.
.
37. In this regard, it would be appropriate to place reliance on the judgment of the Hon'ble Apex Court in Rajni Rani and Another vs. Khairati Lal and Others, (2015)2 SCC 682, wherein the Court has held as under:-
of "16. 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 rt 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."
38. After perusing aforesaid judgment passed by Hon'ble Apex Court, this Court need not to elaborate further on the issue at hand because Hon'ble Apex Court has categorically held that if by virtue of order of the Court rights have finally been adjudicated, it would assume the status of decree. Hon'ble Apex Court has also stated that Court may or may not draw a formal decree but if rights are finally ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 24 adjudicated, it would assume the status of a decree. Learned Apex Court has further held that in such like situation order .
passed by trial Judge has the status of decree and challenge to the same has to be made before the appropriate forum where appeal could lay by paying the requisite fee.
39. Apart from above, this Court viewed this matter from another angle also. Admittedly, appellant-plaintiff of claiming himself to be the owner of the suit land, as recorded in Jamabandi for the year 1970-71, filed a suit for declaration rt and permanent prohibitory injunction restraining defendants No.1 and 2 from changing the nature of the suit land. The aforesaid claim having been set up by the plaintiff in the instant Civil Suit was dismissed; meaning thereby that he was not declared as owner of the suit land entitling him to seek possession of the same. Whereas, in the aforesaid suit having been filed by the plaintiff, defendants filed written statement-cum-counter claim seeking declaration to the effect that they may be declared owners in possession of the suit property, which relief was extended by the trial Court by decreeing the counter claim of the defendants declaring them to be the owners in possession of the suit property.
40. Since, as has been observed above, no challenge has been laid to the judgment and decree passed by the trial ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 25 Court decreeing the counter claim of the defendants, whereby they have been declared to be owners in possession .
of the suit property, composite appeal laying therein challenge to the judgment and decree passed by learned Civil Judge in Civil Suit No.2 of 1995 was not maintainable.
Moreover, relief as claimed in the appeal having been filed by the appellant-plaintiff could not be extended to him without of setting aside the judgment and decree passed in the counter claim in favour of the defendants. Once defendants have rt been declared to be owners in possession of the suit property by the trial Court while decreeing their counter claim, it is not understood how relief as prayed for in Civil suit having been filed by the plaintiff can be extended without setting aside the judgment and decree passed in the counter claim.
41. Accordingly, in view of the detailed discussion made hereinabove as well as law laid down by Hon'ble Apex Court, this Court sees no force in the contention put forth on behalf of the counsel representing the appellant-plaintiff that in the absence of specific decree drawn by learned trial Court at the time of decreeing the counter claim filed by the defendants, plaintiff could not file separate appeal.
Substantial question is answered accordingly.
42. Consequently, in view of the detailed discussion made hereinabove, this Court is of the view that learned first ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 26 appellate Court erred in entertaining the composite appeal having been preferred on behalf of the appellant-plaintiff .
laying challenge therein to the judgment passed by the learned trial Court dismissing the suit of the appellant-
plaintiff as well as decreeing the counter claim preferred on behalf of the defendants-respondents. In view of the latest law laid down by the Hon'ble Apex Court as well as provisions of contained in the law as discussed above, appellant-plaintiff being aggrieved with the dismissal of the suit and decreeing rt the counter claim ought to have filed separate appeals by affixing separate court fee and composite appeal, as has been preferred in the present case, was not maintainable. In view of the aforesaid findings having been returned by this Court on the additional substantial question of law, other substantial questions of law have become redundant and as such, are not required to be answered at this stage.
43. As far as judgments relied upon by the learned counsel appearing for the appellant-plaintiff are concerned, this Court is of the view that the same are not applicable in the present facts and circumstances of the case, especially in view of the law laid down by the Hon'ble Apex Court (supra).
44. In view of the detailed discussion made hereinabove, as well as latest law laid down by the Hon'ble Apex Court in Rajni Rani's case (supra), the present appeal ::: Downloaded on - 15/04/2017 21:41:39 :::HCHP 27 is not maintainable and the same is accordingly dismissed.
Interim order, if any, stands vacated. All miscellaneous .
applications are disposed of.
December 6, 2016 (Sandeep Sharma)
(aks) Judge
of
rt
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