Chain Lal & Another vs Mohinder Chand

Virender Singh, Judge

Appellants have preferred the present Regular Second Appeal, under Section 100 of the Code of Civil Procedure (hereinafter referred to as the

‘CPC’), against the judgment and decree dated 02.11.2006, passed by the Court of learned District Judge, Chamba Division, Chamba, Himachal

Pradesh (hereinafter referred to as the ‘learned First Appellate Court’), in Civil Appeal No.9 of 2006, titled as ‘Chain Lal & Another Versus

Mohinder Chand’.

Vide judgment and decree dated 02.11.2006, the learned First Appellate Court had dismissed the appeal, which had been preferred by the

appellants, against the judgment and decree dated 21.01.2006, passed by the Court of learned Civil Judge (Senior Division), Chamba, District Chamba,

Himachal Pradesh (hereinafter referred to as the ‘learned trial Court’) in Civil Suit No.136/2002 and Counter-Claim No.131/2005, titled as

‘Mohinder Chand Versus Chain Lal & Another’.

Vide judgment and decree dated 21.01.2006, the learned trial Court had decreed the suit of respondent-Mohinder Chand and dismissed the counter-

claim, filed by the present appellants, by granting the following relief:-

“13. As sequel to my findings on issues No.1 to 6, suit of the plaintiff succeeds and the same is hereby decreed. I hereby pass a decree for permanent prohibitory

injunction restraining the defendants, their agents permanently from interfering in the peaceful possession of the plaintiff and his brothers and sisters over Khasra

No.602, 644, 645, 646, 3153/674, 681, 682,683, 684,686,689,690, Khatta/Khatoni No.158/197, and Khasra No.267, 643, 3154/677, 3155/677, 3157/680,

Khatta/Khatoni No.157/196, Kitta 27 land measuring 44-8 bighas & 9-8 bighas total 53-16 bighas situated at Mohal Dhular, Pargna Dhundi, Tehsil and

District Chamba, H.P., and the suit for mandatory injunction is also decreed in favour of the plaintiff directing the defendants to demolish/dismantle forthwith the

construction of semi-constructed house raised over Khasra No.690/1 as shown in ‘Akas-Tatima’ Ex.PW-9/A which shall form the part of decree. However,

the counter-claim filed by the defendants is hereby dismissed. In the peculiar circumstances of the case, the parties are left to bear their own costs. Decree sheet be

drawn up and the file, after its needful be consigned to records.â€​

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.

Brief facts, necessary for the adjudication of the present appeal, as borne out, from the record, are as under:-

6.1. Plaintiff-Mohinder Chand has filed the suit for permanent prohibitory injunction against the defendants, restraining them from interfering in the

peaceful possession of the plaintiff and his brothers, over Khasra No.642, 644, 645, 646, 3153/674, 681, 682, 683, 684, 686, 689, 690, 691, 694, 696 and

Khasra No.267, 643, 3154/677 and 3157/680, measuring 44 bighas 18 biswas and 9-8 bighas, khata khatoni No.158/197 and 157/196, situated at Mohal

Dhular, Pargna Dhundi, Tehsil and District Chamba, H.P. (hereinafter referred to as the ‘suit land A’) and also filed the suit for mandatory

injunction directing the defendants to demolish/dismantle the construction of a house, started by him, in Khasra No.690/1, against the consent of the

plaintiff (hereinafter referred to as the ‘suit land B’).

6.2. The said suit has been filed on the ground that the plaintiff, along with his two brothers, are owners in possession of the suit land A. Initially, suit

land A was in the name of father of the plaintiff-Sh. Diwan Chand and said Diwan Chand had also having 9 bighas and 8 biswas of land in his name,

as shown in the jamabandi for the year 1996-97, which was mutated in the name of the plaintiff, along with his two brothers and four sisters.

6.3. It is the further case of the plaintiff that he was in service and posted at Gujarat and now, after superannuation, shifted to Chamba. In the month

of June, 2002, he had received the information that the defendants are going to start construction over Khasra No.690, adjoining the Government

waste land. After receiving the said information, he had visited the spot on 25.06.2002 and thereafter, approached the Patwari for preparation of

Tatima, showing encroachment over 1 biswa of land. According to the plaintiff, he had also made the request to the defendants, but, of no avail. As

such, he has filed the suit seeking the relief, as claimed.

When put to notice, the suit has been contested by the defendants by filing the written statement-cum-counter -claim, by taking the preliminary

objections that the suit is not maintainable; that the plaintiff is estopped from filing the suit and that the suit is bad for non-joinder of necessary parties.

7.1. On merits, the factual position, as asserted in the plaint, has been denied and the suit has been contested on the ground that the answering

defendants are the tenants of land, comprised in Khasra No.642, 644, 645, 681, 683, 686, 690, 691, 696, Kitta 9, land measuring 21-11 bighas, since

settlement i.e. prior to year 1960. According to the defendants, Chanalu, the father of the defendants, was a rustic villager, whereas, the plaintiff and

his brothers are highly qualified persons. The father of Sh. Diwan Chand never remained in possession of the suit land. According to them, he was

employed in the firm of Rai Bahadur Jodha Mal as Divisional Manager and his sons are Government employees, as doctors and engineers.

7.2. It is the further case of the defendants that plaintiff got the revenue entries changed in their names unauthorizedly, without the knowledge of their

father. The factum of wrong entries in the record of rights has come to the notice of answering defendants, after filing the suit, by the plaintiff. As

such, they have challenged the revenue entries, showing plaintiff in possession, as, after passing of H.P. Land Reform and Tenancy Act, 1972, the

defendants have become owners of the suit land by operation of law.

7.3. In the alternative, defendants have claimed the adverse possession, over the suit land. Asserting their possession, over the land, bearing Khata

Khatauni No.158/197, measuring 44-8 bighas, since 1960, they have prayed that the suit of the plaintiff may be dismissed and the decree for

declaration to the effect that revenue entries, comprising of Khasra No.642, 644, 645, 646, 681, 682, 683, 684, 686, 689, 694, 690, 691, 696, 3153/674

and Khasra No.3155/677, 3157/680, 267, 643, 3154/677, Kitta 20, land measuring 53-16 bighas, situated in Mohal Dhular, Pargna Dhundhi, Tehsil and

District Chamba, showing the plaintiff as owner in possession, are wrong, illegal and inoperative.

7.4. The defendants have also sought the relief of restraining the plaintiff permanently from interfering in the possession of the defendants, over the

land, bearing Khata Khatauni No.157/196 to 197, measuring 53-16 bighas, situated in Mohal Dhular, Pargna Dhundhi, Tehsil and District Chamba,

H.P.

The plaintiff has filed the replication to the written statement, as well as, written statement to the counter-claim, by denying the stand, as taken, by

the defendants, in the written statement and a prayer has been made to decree the suit, filed by him, by dismissing the counter-claim.

From the pleadings of the parties, following issues were framed, by the learned trial Court, vide order dated 14.10.2004:-

“1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP

If issue No.1 is proved in affirmative, whether the plaintiff is entitled for relief of permanent prohibitory injunction as well as for mandatory injunction as

prayed? OPP

Whether defendant was a tenant and has become owner by operation of law? OPP

If issue No.3 is proved in affirmative, whether the revenue entries in favour of the plaintiff are wrong as alleged? OPD

Whether the defendant is entitled for relief of injunction as prayed? OPD

Whether the defendant has become owner by way of adverse possession as alleged? OPD

Relief.â€​

After framing of the issues, parties to the lis were directed to adduce evidence.

After closure of the evidence and upon hearing learned counsel for the parties, the learned trial Court has decreed the suit of the plaintiff by

passing the decree for permanent prohibitory injunction and also decreed the suit for mandatory injunction in favour of the plaintiff, whereas, the

counter-claim, filed by the defendants, was dismissed, vide judgment and decree dated 21.01.2006.

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 plaintiff and dismissed the counter-claim, filed by the defendants, the defendants have preferred the First Appeal, before the learned First

Appellate Court. However, the said appeal was dismissed by the learned First Appellate Court, vide judgment and decree dated 02.11.2006.

Dissatisfied with the said judgment and decree, defendants have preferred the present Regular Second Appeal, before this Court, on the ground

that both the Courts below have misread the pleadings of the parties and mis-appreciated the evidence, so adduced, by the parties. The learned First

Appellate Court is stated to have not applied the correct proposition of law.

The findings have been assailed also on the ground that the learned Courts below have ignored the fact that it is an admitted case of the plaintiff

that the possession of the suit land was with the defendants. In this regard, the documents, Ex.D-1 and D-2, as well as, subsequent entries, have been

relied upon.

According to the appellants, both the Courts below have wrongly relied upon the agreement, Ex.PW-2/C, PW-4/A and PW-2/A, as such, the said

documents are against the provisions of Section 50 of the H.P. Abolition of Big Landed Estate and Tenancy Act and the same are hit by the

provisions of Section 23 of the Indian Contract Act. Similarly, the document, Ex.PW-4/A, is also stated to be the forged document.

On the basis of above facts, a prayer has been made to allow the appeal by setting aside the judgment and decree, passed by the learned trial

Court and affirmed by the learned First Appellate Court and a prayer has been made to dismiss the suit, as prayed for.

Per contra, the prayer, so made, in the appeal, has been opposed by Sh. Ajay Kumar, Senior Advocate, assisted by Mr. Rohit, appearing for the

respondent, on the ground that the present appeal is not maintainable.

17.1. In order to buttress his contention, learned Senior Counsel, appearing for the respondents, has also relied upon the decision of the Division Bench

of this Court in ‘Ramesh Chand Versus Om Raj and Others’, reported in 2022(2) SLC 1145. Hence, a prayer has been made to dismiss the

present appeal.

The present appeal has been admitted, by this Court, on 19.05.2008, on the following substantial questions of law:-

“1. Whether the revenue entries can be changed without any order of mutation and without giving any opportunity to the appellant/defendant andÂ

whether Assistant Collector was competent to change the entry pertaining to non-occupancy tenant without giving notice to the tenant?

Whether the finding of the courts below are not perverse by relying upon inadmissible documents and without proving the due execution of these documents in

accordance with law i.e. Exhibits PW2/A and PW2/C?

Whether the vested rights of a tenant can be taken away or surrendered on the basis of affidavit and the same is not envisaged as per H.P. Abolition of Big

Landed Estate and Tenancy Act?â€​

Thereafter, the following additional substantial question of law has been framed, by this Court, vide order dated 22.08.2024:-

“Whether the single appeal, which was filed, before the learned First Appellate Court, against the judgment and decree, passed by the learned trial Court,

whereby the suit has been decreed and the counter claim has been dismissed, was maintainable, in view of the decision of this Court in case ‘Ramesh Chand

versus Om Raj and others’, reported in 2022 (2) SLC 1145?â€​

The additional substantial question of law had been framed, in the presence of learned counsel, appearing for the appellants, on 22.08.2024 and the

matter was adjourned to 29.08.2024. On 29.08.2024, no one had put appearance, on behalf of the appellants and as such, the matter was again

adjourned to 30.08.2024. On 30.08.2024, again, no one had put appearance, on behalf of the appellants and after hearing the arguments of learned

counsel, appearing for the respondents, the present matter was reserved for judgment.

Since, the additional substantial question of law, which has been framed, vide order dated 22.08.2024, goes to the root of the case, as such, the

same is required to be decided first.

Admittedly, the learned trial Court had decided Civil Suit No.136/2002, as well as, counter-claim No.131/2005, whereas, the defendants (appellants

herein) had filed only one appeal, bearing Civil Appeal No.9 of 2006, which had been dismissed, by the learned First Appellate Court.

If the facts and circumstances of the present case are seen, in the light of the decision of the Division Bench of this Court in Ramesh Chand’s

case (supra), then, non-filing of two appeals, against the judgment and decree, by virtue of which, the suit had been decreed and counter-claim had

been dismissed, results into the fact that the present appeal is also not maintainable, before this Court. 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 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

suitâ€​ for the purpose of attracting principles of res judicata.â€​

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 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.

Since, non-filing of the separate appeal, before the learned First Appellate Court, amounts to res judicata, as such, the present appeal is also held to

be not maintainable.

Since, the substantial question of law, framed on 22.08.2024, is decided against the appellants and in favour of the respondent, as such, other

substantial questions of law become redundant and are not liable to be decided.

Consequently, the present appeal is hereby dismissed.

Decree sheet be prepared accordingly.

Pending application(s), if any, shall also stand disposed of.

Record be sent down.