2024:HHC:7590
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. : 661 of 2005
Reserved on : 08.08.2024
Decided on : 30.08.2024
Sanjay Kumar & Others
…Appellants
Versus
Siri Ram (deceased) through LRs
…Respondents
Coram
The Hon’ble Mr. Justice Virender Singh, Judge.
1 Yes
Whether approved for reporting?
For the appellants : Mr. Ashok Sood, Senior Advocate,
with Ms. Pooja, Advocate.
For the respondents : Mr. G.D. Verma, Senior Advocate,
with Mr. Sumit Sharma, Advocate.
Virender Singh, Judge
Appellants have preferred the present Regular
Second Appeal, against the judgment and decree dated
19.09.2005, passed by the Court of learned Additional
District Judge (Presiding Officer, Fast Track Court), Solan,
District Solan, Himachal Pradesh (hereinafter referred to as
1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
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the ‘learned First Appellate Court’), in case No.3FT/13 of
2005/2004, titled as ‘Siri Ram Versus Sanjay Kumar &
Others’.
2. Vide judgment and decree dated 19.09.2005,
the appeal, preferred by the predecessor-in-interest of the
respondents, namely Siri Ram, was allowed, by granting
the following relief:-
“40. It has been held above that at least on the
ground of re-marriage Vidya is divested of her
right to the property of her husband Jai Ballabh.
Thus in the revenue record she was wrongly
being shown as co-owner with the defendant.
The defendant is son of Vidya’s husband’s
brother. On her re-marriage her husband’s estate
had reverted to the defendant’s father and on
his death now the defendant has the title. The
defendant thus is owner of the land comprised in
Khata No.3 Khatauni No.3 Khasra No.9 kitas
total measuring 32 bighas 15 biswas situated in
mauza Thana Pargana Gharsiang, Sub-Tehsil
Krishangarh. The defendant is entitled to
declaration to this effect. As such, his counter-
claim is hereby decreed, while the suit of the
plaintiffs/respondents is dismissed. Parties are
left to bear their own costs. Decree be drawn.”
3. The said appeal was preferred, by the
predecessor-in-interest of the respondents, against the
judgment and decree dated 17.08.2004, passed by the
Court of learned Civil Judge (Junior Division), Kasauli,
District Solan, Himachal Pradesh (hereinafter referred to as
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the ‘learned trial Court’) in Civil Suit No.41/1 of 2000/94,
titled as ‘Master Sanjay Kumar (minor) & Others Versus Siri
Ram’.
4. Vide judgment and decree dated 17.08.2004,
the learned trial Court has decreed the suit of the
appellants and dismissed the counter-claim, filed by the
predecessor-in-interest of the respondents, by granting the
following relief:-
“25. Keeping in view my discussion above
issues, the suit of the plaintiff is hereby decreed
and thereby, defendant restrained from cutting
the trees, removing, making and waste or
changing the nature of the land comprised in
Khewat Khatauni No.3 min/3min, Khasra No.3,
measuring 16 bighas 7 biswas, situated in
Mauja Thana, Sub Tehsil Krishangarh, Tehsil
Kasauli, Distt. Solan, either by himself, through
his agents, servants, assignees, family members
etc. The counter-claim filed by the defendant is
hereby dismissed. No order as to the costs.
Decree sheet be drawn accordingly. The file after
due completion be consigned to the record room.”
5. For the sake of convenience, the parties to the
present lis are, hereinafter referred to, in the same manner,
as were, referred to, by the learned trial Court.
6. Brief facts, necessary for the adjudication of the
present appeal, as borne out, from the record, are as
under:-
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6.1. Plaintiffs have filed the suit for permanent
prohibitory injunction, against the defendant, restraining
him from causing interference, cutting trees, removing the
same and making any waste or changing the nature of the
land comprised in Khata Khatauni 3/3 min, Khasra No.3,
measuring 16 bighas 7 biswas, situated in Mauja Thana,
Pargana Gharsiang, Sub-Tehsil Krishangarh, District
Solan, Himachal Pradesh (hereinafter referred to as the
‘suit land’). The said relief has been sought on the ground
that the plaintiffs and the defendant are co-owners in
possession of the suit land.
6.2. It is the case of the plaintiffs that Mutation
No.134 dated 24.03.1992 has been entered and sanctioned
in the revenue record and thereafter, they became the
exclusive owners of 1/2 share, out of the total land.
According to them, the defendant has no right, title or
interest in the suit land. However, according to them, he
has started giving threats to the plaintiffs regarding cutting
of all the valuable trees and also changing the nature of
the suit land forcibly. Some trees are stated to have been
cut by him from the suit land on 31.01.1994.
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6.3. According to the plaintiffs, the suit land is joint
between the parties and as such, defendant, with an
intention to grab the best piece of land, has started
interfering in the possession of the plaintiffs.
7. On the basis of above facts, the plaintiffs have
sought the relief, as claimed.
8. When put to notice, the suit has been contested
by the defendant by filing the written statement, in which,
he has challenged Mutation No.134, sanctioned in favour
of the plaintiffs, as, the same is wrong, illegal, null and
void and not binding upon the rights of the plaintiffs.
8.1. It has also been denied that the plaintiffs have
become owners to the extent of 1/2 share, out of the suit
land. According to the defendant, the plaintiffs have no
right, title or interest in the suit land. Hence, a prayer has
been made to dismiss the suit.
9. Along with the written statement, defendant
has also filed the counter-claim, alleging therein that
Parma Nand was owner in possession of the suit land.
After the death of Parma Nand, his property had been
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inherited by both his sons, namely, Kamla Balabh and Jai
Balabh.
9.1. It is the case of the defendant that Jai Balabh
was married to Vidya Devi. According to him, Vidya Devi
had murdered Jai Balabh, in which, she was sentenced to
undergo imprisonment by Mehlog State. According to the
defendant, since, Jai Balabh was murdered in the year
1940-41, as such, his widow Vidya Devi, being murderer of
her husband, was not entitled to succeed his property.
9.2. It is the further case of the defendant that said
Vidya Devi had again solemnized marriage in the year
1991-92 with one Paras Ram.
9.3. All these facts have been pleaded to show that
Vidya Devi was not entitled to inherit the estate of Jai
Balabh, being his murderer. However, according to the
defendant, after the death of Jai Balabh, a wrong mutation
of inheritance was sanctioned in favour of Vidya Devi, but,
the suit land remained in possession of the defendant and
he is still in possession as owner. He has challenged
Mutation No.134 dated 24.03.1992, sanctioned in favour of
Vidya Devi.
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10. On the basis of above facts, defendant has
sought the following relief:-
“(i) that the defendant is owner in possession of
land comprised in Khata No.3 min, Khatauni
No.3 min, Khasra-Kita 9, measuring 16-7 bigha
i.e. part of total land measuring 32-15 bighas
and land comprised in khata No.1, Khatauni
No.1, Khasra No.38,50 and 116/60, measuring
13-12 bighas, and the plaintiffs have no right,
title or interest whatsoever in the land in
question.”
11. The plaintiffs have filed the replication to the
written statement, as well as, written statement to the
counter-claim, by denying the stand, as taken, by the
defendant, in the written statement.
12. The counter-claim has been contested, by
denying the stand, as taken, by the defendant, in the
counter-claim. It has specifically been denied that Vidya
Devi had murdered Jai Balabh, as such, she was not
entitled to inherit the property of Jai Balabh. According to
the plaintiffs, Vidya Devi was in possession of the suit
land, after the demise of Jai Balabh and mutation has
rightly been entered and attested in her favour.
12.1. It has also been denied that Vidya Devi has
solemnized marriage in the year 1991-92. The daughter of
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Vidya Devi, namely Shanti Devi, is stated to be mother of
the plaintiffs. Other contents of the counter-claim have
been denied. Thus, a prayer has been made to dismiss the
counter-claim.
13. From the pleadings of the parties, following
issues were framed, by the learned trial Court, vide order
dated 25.04.1996:-
“1. Whether the plaintiff is entitled to the relief of
permanent prohibitory injunction, as prayed?
OPP
2. Whether the revenue entries qua the suit land
are wrong and the mutation attested in favour of
Smt. Vidya Devi is illegal, void and wrong, as
alleged? OPD
3. Whether the deceased Vidya Devi has
executed a valid Will qua suit land in favour of
the plaintiff Sanjay Kumar and others, as
alleged? OPD
4. Whether the defendant has no locus standi to
file the counterclaim, as alleged? OPP
5. Whether the defendant is estopped from filing
the suit by his own act and conduct, as alleged?
OPP
6. Whether counter-claim is barred by limitation?
OPP
7. Whether this court has got no jurisdiction to
entertain the counter claim, as alleged? OPP
8. Relief.”
14. After framing of the issues, parties to the lis
were directed to adduce evidence.
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15. After closure of the evidence and upon hearing
learned counsel for the parties, the learned trial Court has
decreed the suit of the plaintiffs and dismissed the
counter-claim, filed by the defendant, vide judgment and
decree dated 17.08.2004.
16. Feeling aggrieved from the said judgment and
decree, passed by the learned trial Court, by virtue of
which, the learned trial Court has decreed the suit of the
plaintiffs and dismissed the counter-claim, filed by the
defendant, the same has been assailed by the unsuccessful
defendant, before the learned First Appellate Court, by way
of a single appeal.
16.1. The learned First Appellate Court has allowed
the said appeal by dismissing the suit of the plaintiffs and
by decreeing the counter-claim, filed by the defendant, vide
judgment and decree dated 19.09.2005.
17. Dissatisfied with the said judgment and decree,
plaintiffs have preferred the present Regular Second
Appeal, before this Court, on the ground that the learned
First Appellate Court has committed an error in law by
relying upon the documents Ex.D-1 to D-6, as, according
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to the appellants, these documents were neither proved in
accordance with law, nor, the same were tendered in
evidence, in accordance with law, giving opportunity to the
appellants to challenge the same.
18. The findings have further been assailed on the
ground that the learned First Appellate Court has wrongly
relied upon these documents and assumed and presumed
that Vidya Devi had re-married with some Paras Ram and
to further presume that Shanti Devi was not conceived
from the loins of Jai Ballabh.
19. The findings have further been assailed on the
ground that the learned First Appellate Court has wrongly
relied upon the oral statements, made by the witnesses, on
approximation of the age of Shanti Devi.
20. In addition to the challenging of the documents
Ex.D-1 to D-6, the appellants have also challenged the
document Ex.D-7. According to them, the same is a forged
document. The learned First Appellate Court, according to
the appellants, has wrongly assumed the conviction of
Vidya Devi, under Section 325 of Indian Penal Code,
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which, according to the appellants, is not proved, by
leading any reliable evidence.
21. On the basis of above grounds, Sh. Ashok Sood,
Senior Advocate, assisted by Ms. Pooja, Advocate,
appearing for the appellants, has prayed that the appeal
may be accepted by setting aside the judgment and decree,
passed by the learned First Appellate Court. It has also
been prayed that the judgment and decree, passed by the
learned trial Court may be restored, as prayed for, as, the
appeal, before the learned First Appellate Court, was not
maintainable, since, the defendant, by way of single
appeal, has challenged the judgment and decree, passed by
the learned trial Court, by virtue of which, the suit of the
plaintiffs was decreed and the counter-claim of the
defendant was dismissed.
21.1. Relying upon the decision of this Court in
‘Ramesh Chand Versus Om Raj and Others’, reported in
2022(2) SLC 1145, it has been prayed that the substantial
question of law, framed on 16.09.2023, may be decided in
favour the appellants, as, the single appeal was not
maintainable before the learned First Appellate Court.
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22. Per contra, Sh. G.D. Verma, Senior Advocate,
assisted by Mr. Sumit Sharma, Advocate, appearing for the
respondents, has argued that there is no substance in the
appeal. Hence, a prayer has been made to dismiss the
same.
23. The present appeal has been admitted, by this
Court, on 16.11.2006, on the following substantial
question of law:-
“Whether the First Appellate Court has
committed an illegality in relying upon
certain entries in the Panchayat record
and in concluding that Vidya Devi had
remarried one Paras Ram prior to coming
into force of Hindu Succession Act, 1956,
particularly when no evidence was led
with regard to the performance of
marriage ceremonies?”
24. Thereafter, the following additional substantial
question of law has been framed, by this Court, vide order
dated 16.09.2023:-
“Whether a single appeal was
maintainable before learned First
Appellate Court against the judgment
and decree passed by learned Trial Court
in decreeing the suit and dismissing the
counter claim?”
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25. Since, the additional substantial question of
law, which has been framed, vide order dated 16.09.2023,
goes to the root of the case, as such, the same is required
to be decided first.
26. Admittedly, in this case, the judgment and
decree, by virtue of which, the civil suit has been decreed
and the counter-claim, preferred by the predecessor-in-
interest of the respondents, has been dismissed, has been
assailed by way of single appeal.
27. In this case, the plaintiffs had filed the suit for
permanent prohibitory injunction, whereas, the defendant
had filed the counter-claim, as referred to above. The
learned trial Court had decreed the suit, filed by the
plaintiffs and dismissed the counter-claim, filed by the
defendant. Against the said judgment and decree,
defendant-Siri Ram has admittedly filed one appeal and
the learned First Appellate Court has allowed the appeal by
dismissing the suit of the plaintiffs and by decreeing the
counter-claim of the defendant.
28. The Division Bench of this Court in ‘Ramesh
Chand Versus Om Raj and Others’, reported in 2022(2)
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Shim. L.C. 1145, has elaborately discussed different
proposition of law and laid down certain principles.
Relevant paragraph 42 of the said judgment is reproduced,
as under:-
“42. The principles deducible from the
afore-discussed law can be summarized
as follows:-
(i) When two suits are consolidated and
tried together with common issues
framed and common evidence led by the
parties, resulting in a common judgment
and decree, the same can be subjected to
challenge by way of a single appeal at
the instance of the aggrieved party;
(ii) Where a single appeal is filed
questioning the judgment and decree
passed in two suits, which were
consolidated and decided by a common
judgment, decision of such single appeal,
by a common judgment, reversing or
modifying the claim in one suit out of the
two, can be challenged by the aggrieved
party also, in a single appeal.
(iii) When two suits though not
consolidated but are decided by a
common judgment, resulting into
preparation of two separate decrees, the
aggrieved party would be required to
challenge both of them by filing separate
appeals;
(iv) When both the suit and the counter
claim are decreed by a common
judgment, regardless of whether
separate decree has been prepared in
the counter claim, both would be required
to be challenged by separate appeals;
(v) In a case where two separate appeals
are required to be filed against judgment
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of the suit and the counter claim and if
appeal is filed only against one and not
against the other, non filing of appeal
against such judgment and decree would
attach finality thereto and would attract
not only the principle of res judicata but
also waiver and estoppel and the
judgment and decree not appealed
against would be taken to have been
acquiesced to by the party not filing
appeal;
(vi) When however, two appeals are filed
against a common judgment passed by
the trial Court, both by the plaintiff and
the defendant, and are disposed of by
the first appellate Court by
modifying/reversing/affirming judgment
of the trial Court, the aggrieved party,
would be required to challenge both by
two separate appeals, in absence of
which, non-filing of appeal against one
shall attract bar of the principles of res-
judicata against another.
(vii) Where more than one appeals are
required to be filed or are filed and one or
more of them are dismissed for default,
delay or any other similar reason, any
such situation would attract res judicata
and such dismissal would satisfy the
requirement of appeal being heard and
finally decided on merits “in a former
suit” for the purpose of attracting
principles of res judicata.”
29. Judging the facts and circumstances of the case
and in view of the decision of the Division Bench of this
Court in Ramesh Chand’s case (supra), the principles, as
enumerated, under Clauses (iv) and (v) of para 42, are fully
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applicable to the facts and circumstances of the present
case, as, non-filing of the appeal, against the counter-
claim, not only amounts to res judicata, but, also waiver
and estoppel.
30. The appeal, preferred before the learned First
Appellate Court, is held to be not maintainable, as, the
defendant was required to file two separate appeals, as, he
had set up his counter-claim by seeking the relief that he
has become owner in possession of the suit land and he
had also sought the consequential relief of permanent
prohibitory injunction restraining the plaintiffs from
interfering in his ownership and possession.
31. The learned trial Court, by way of the judgment
and decree, had decreed the suit of the plaintiffs and
dismissed the counter-claim of the defendant. As such, the
defendant was required to file two separate appeals by
challenging the dismissal of his counter-claim and decree
of the suit, which was in favour of the plaintiffs.
32. Not only this, applying the principle of waiver
and estoppel, the learned First Appellate Court ought to
have dismissed the appeal of the defendant, which was
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preferred against the judgment and decree, passed by the
learned trial Court.
33. Accordingly, the substantial question of law,
framed on 16.09.2023, is decided in favour of the
appellants and as such, the present appeal is liable to be
allowed.
34. Since, the substantial question of law, framed
on 16.09.2023, has been decided in favour of the
appellants, as such, other substantial questions of law
become redundant and are not liable to be decided.
Consequently, the present appeal is allowed, by setting
aside the judgment and decree, passed by the learned First
Appellate Court and by restoring the judgment and decree,
passed by the learned trial Court.
35. Decree sheet be prepared accordingly.
36. Pending miscellaneous application(s), if any,
shall also stand disposed of.
37. Record be sent down.
( Virender Singh )
Judge
August 30, 2024
( Gaurav Thakur )