In the High Court for the States of Punjab and Haryana at Chandigarh
...
RSA No. 362 of 1993
Date of decision: October 1,2008
Darshan Singh and others ..Appellants.
Versus
Gurbax Singh and others
..Respondent
Coram: Hon'ble Mr.Justice Rakesh Kumar Garg
Present: Mr.G.S.Bal, Advocate
for the appellants.
Mr.P.S.Thiara, Advocate
for the respondents.
...
Rakesh Kumar Garg,J.
This judgment shall dispose of two connected second appeals, i.e.,
RSA No.362 of 1993- Darshan Singh etc. Versus Gurbax Singh etc. and RSA
No.605 of 1993- Gurbax Singh etc. Versus Darshan Singh etc.(arising out of CA
No.64 of 1990 – Darshan Singh etc. Versus Gurbax Singh etc. and Civil Appeal
No.49 of 1990- Gurbax Singh etc. Versus Darshan Singh etc. arising out of
judgment and decree dated 16.9.1986 passed by the trial Court), whereby the
suit filed by the plaintiffs Darshan Singh etc. was dismissed and the defendant-
respondents were held entitled to possession of the disputed land measuring 45
kanals 18 marlas by way of counter claim.
The plaintiffs filed a suit for declaration that the plaintiffs and
defendant No.5 are the owners in possession of the land measuring 60 Kanals 4
Marlas bearing Khata Khatauni No.47/139 to 142, 235/479, 273/532, 147/250
Killa No.31/21/7, 76/25/1, 79/4, 5/1, 6, 15, 206, 39/8/2, 9/23, 79/5/3, 5/4,
29/8/3/2, 39/8/1 situated in village Jalal Ushma, Tehsil Baba Bakala District
Amritsar as entered in the jamabandi for the years 1976-77, 1977-78 and in the
alternative, plaintiff No.1 is in possession of the property as a tenant and for
permanent injunction restraining the defendant No.1 to 4 from interfering in their
possession.
The brief facts as stated in the plaint are that Wassan Singh son of
Santa Singh resident of village Jalal Ushma who was owner of the land in
dispute died issueless on 12.2.1983. The case of the plaintiffs is that Darshan
Singh, plaintiff No.1 during the life time of Wassan Singh used to cultivate the
suit land as tenant under him. The plaintiff and Dalip Singh, defendant No.5 are
the only heirs of Wassan Singh being his collaterals and as such after the death
of Wassan Singh, they became the owners of the land. Defendant Nos.1 to 3
asserted that they had purchased the land from Wassan Singh deceased. The
case of the plaintiff is that Wassan Singh did not sell the land to the defendant
and if there is any sale deed in their favour, the same is illegal, void and
inoperative as Wassan Singh was very old, his eye sight was poor and he was
addicted to opium and the sale deed, if any, was procured illegally from him.
Since defendant Nos.1 to 4 are threatening to take possession of the land, thus
the necessity arose to file the suit. It is also prayed that in case the defendants
are held to be in possession of the some land, then by way of an alternative
relief, the same be got restored to them.
On the other hand, the version of the defendants is that Wassan
Singh himself was in cultivating possession of the land as owner during his life
time and the possession of the land was delivered to them by Wassan Singh at
the time , the sale was effected i.e., on 27.1.1983, which was sold to them for
consideration of Rs.49000/- by Wassan Singh who was perfectly in sound and
disposing mind and in fact they were dispossessed from the land forcibly during
the pendency of the suit except Khasra Nos.29/8/3/2 and 29/9. The defendants
claimed the possession of the land by way of counter claim. It was also averred
that the suit in respect of Khasra No. 29/28/3/2 and 29/9 is not maintainable.
From the pleadings of the parties, the following issues were
framed:-
1. Whether the plaintiffs are in possession of the suit land, If so, to
what effect ?OPP.
2. Whether the plaintiffs are the legal heirs of the deceased
Wassan Singh and are entitled to file the present suit ?OPP.
3. Whether the plaintiffs or any of them is a tenant over the land in
the suit ?OPP.
4. Whether the suit is properly valued for the purposes of court fee
and jurisdiction ?OPD.
5. Whether Wassan Singh had executed any sale deed in favour of
defendants for consideration on 27.1.1988 ?OPD.
6. If issue No.5 is proved, whether the same is illegal,void abinitio
and in operative in law?OPP
Additional issues:
1. Whether by way of alternative relief, the plaintiffs are entitled to
the possession of the land ?OPP
2. Whether the defendants are within their right to have counter
claim as alleged in the amended written statement ?OPD
3. If Addl. Issue No.2 is proved, then whether defendants are
entitled to the possession of suit land except Khasra No.29/8/3/2,
29/9 and 39/8/17 ?OPD.
Issue Nos.1 and 3 were partly decided in favour of the plaintiffs and
Darshan Singh plaintiff was held to be a tenant on a part of the disputed land
while plaintiffs were held to be trespassers in other portion of the land. Issue
No.2 was held against the plaintiffs. Issue No.4 was decided in favour of the
plaintiffs. Under issue Nos.5 and 6, defendant-vendees were held to have
validly purchased the land from Wassan Singh vide sale deed executed on
27.1.1983 Ex.D1.
It was further held under additional issues that the plaintiffs are not
entitled to the possession of the land as alternative relief. Additional Issue Nos.2
and 3 were also decided against the defendants. As a result of the findings of
the trial Court on various issues, Darshan Singh, plaintiff No.1 was held to be in
possession of the part of the disputed land as a tenant, while plaintiffs were held
to be in possession of some other land also as tresspassers. In these
circumstances, the suit filed by the plaintiffs was partly decreed and vendees-
respondents were retrained from interfering in possession of the plaintiffs in the
land in their possession except in due course of law vide judgment and decree
dated 16.9.1986 of the trial Court.
Feeling aggrieved against the judgment and decree of the trial
Court, the parties preferred separate appeals against the same. In CA No.64 of
1990 – Darshan Singh etc. Versus Gurbax Singh etc. filed by the plaintiffs, they
claimed to be owners in possession of the disputed land, having inherited the
same from Wassan Singh deceased being his nearest legal heirs claiming that
the sale deed in favour of defendants was illegal and not binding on their rights.
Darshan Singh plaintiff also claimed to be the tenant of the disputed land. In the
counter appeal No.49 of 1990- Gurbax Singh etc. Versus Darshan Singh etc.,
the defendants claimed that they were the owners of the land in dispute on the
basis of the sale deed Ex.D1 and the tenancy of Darshan Singh was also
denied. It was also argued that the counter claim set up by the defendants were
wrongly denied and they were entitled to possession of the land.
The lower Appellate Court found that the plaintiffs were the nearest
collaterals of Wassan Singh deceased, but Wassan Singh deceased was
survived by his widow Gurdev Kaur and in her presence the plaintiffs could not
claim any right or interest in the estate of Wassan Singh deceased. It was also
found by the lower Appellate Court that though the plaintiffs may be the nearest
collaterals of Wassan Singh deceased, they could not claim any right or interest
in the estate of Wassan Singh deceased as the defendants had purchased the
land in dispute validly vide sale deed Ex.D1 from Wassan Singh as the sale
deed Ex.D1 was executed by Wassan Singh deceased in favour of the Vendee
defendant genuinely and validly. The contention of Darshan Singh, plaintiff was
that he was tenant on the disputed land. It was found that he was not a tenant in
part of the suit land comprised in Khasra No. 76/25/1, 79/4, 5/1, 5/3, 79/5/4,
79/6, 79/15. However, he was in possession of the aforesaid land measuring 45
kanals 18 marlas in illegal and unauthorized possession and not as a tenant and
therefore, the defendants have a right to possession of this land measuring 45
Kanals 18 Marlas by way of counter claim. On the basis of these findings, the
lower Appellate Court dismissed Civil Appeal No.64 of 1990- Darshan Singh etc.
Versus Gurbax Singh etc.. The Civil Appeal No.49 of 1990- Gurbax Singh etc.
Versus Darshan Singh etc. was accepted and decree of the trial Court dated
16.9.1986 was modified and a decree for possession of disputed land
measuring 45 Kanals 18 Marlas comprised in Khasra Numbers 31/21/5(0-2),
76/25/1(6-10), 79/4(5-8), 5/1(5-8)/ 6(10-2), 15(6-5), 306(2-2), 39/8/2(3-16), 39/9
(4-0), 79/5/3(-15), 79/5/4 (1-0), as mentioned in the head note of the written
statement, was passed in favour of the defendant-appellants by way of counter
claim.
Feeling aggrieved against the judgment and decree passed by the
lower Appellate Court in both the appeals, the plaintiffs have filed these two
appeals challenging the same in this Court.
Learned counsel for the appellant has vehemently argued that the
defendants had claimed possession of the land in dispute by way of counter
claim which was filed much after filing of the written statement which is not
permissible in law. It is further argued by the counsel for the appellant that the
counter claim can be made by the defendants only in the suit pertaining to
money matters and not in the suits for declaration or possession of the
immovable property and therefore the lower Appellate Court has erred at law
while granting the decree of possession of the suit land to the defendant-
respondents.
During the course of hearing, it was also found that the appellants
have not framed any substantial question of law in this case. However, instead of
adjourning the case any further with the consent of the counsel for the parties,
the following substantial question of law is framed in this appeal:-
(i) Whether counter claim can be filed after filing of written
statement.
(ii) Whether counter claim is permissible only in money matters and
cannot be filed in suits for declarations and suit for possession etc.
I have heard learned counsel for the parties and perused the
record.
The defendant-respondents have claimed the suit land on the basis
of sale deed dated 27.1.1983 in their favour executed by Wassan Singh. The
possession of the said disputed land is also claimed to be delivered to them
under the aforesaid sale deed. It is also a matter of record that during the
pendency of suit, it was claimed by them that plaintiff-appellant dispossessed the
defendants from the disputed land in illegal manner under the garb of stay orders
issued by the court in the case and claimed to be in possession of the land
comprised in Khasra No.29/8/3/2 and 29/9 and sought possession of the
remaining disputed land purchased by them vide sale deed dated 27.1.1983 by
way of counter claim under Order 8 Rule 6 C.P.C. and on the basis of this
counter claim additional issue No.2 and 3 were framed by the trial Court which
were to the effect whether the defendants are within their rights to have counter
claim as alleged in the amended written statement.
It is also a matter of record that the defendants had filed their
counter claim by amendment of their written statement, which was permitted to
be amended by the court and the plaintiff never challenged the said amendment
of written statement by the respondent and thereafter the additional issues
regarding counter claim of the defendant-respondents were framed on the basis
of pleadings in the written statement which includes the counter claim of the
defendants and thereafter the parties were allowed to prove their case by leading
evidence. Both the parties were well aware of the issues arising out of their
pleadings including counter claim filed by the defendant-respondents and on
conclusion of evidence, arguments were addressed on all the issues including
the issues with regard to counter claim. It is also clear from the judgment of the
trial court that on additional issues 2 and 3 which pertains to counter claim, the
only argument raised by the learned counsel for the plaintiff was to the effect that
the counter claim cannot be filed in a suit for declaration/possession. No such
argument regarding the filing of the counter claim after filing the written
statement was raised. In any case, the law is well settled on this question as
raised by the learned counsel for the appellant. In the case of Rohit Singh &
others Versus State of Bihar (now State of Jharkhand) and others 2007(1) RCR
(Civil) 674, the Hon’ble Supreme Court of India has authoritatively held that the
counter claim can be filed after filing of written statement but not after issues
were framed and evidence closed.
Faced with this situation, learned counsel for the appellant cited
judgment of this court in case of Bank of Baroda Versus Gurcharan Singh 1986
PLJ 43 to the effect that defendant cannot be allowed to file counter claim by
amending written statement. The contention of the learned counsel for the
appellant is misconceived. In the aforesaid case, it was pleaded that the counter
claim was to be treated as plaint and governed by the rules applicable to the
plaint and the same should have been filed before filing the written statement
and it was submitted that there was no proper counter claim filed by the
defendants as provided under Order 8 Rule 6-A of the Code of Civil Procedure.
The aforesaid judgment was considered by this Court in the case of Inder Lal
Khanna Versus Krishan Lal Malhotra and others AIR 1990 (P&H) 149 and this
Court observed as under:-
” As regards this contention, I do not find any merit therein. The
judgment referred to above has no applicability to the facts of the
present case. The plaintiff never objected as such, to the filing of
the counter-claim. Rather the necessary issues arising out of the
counter-claim were framed and the parties were allowed to lead
evidence. No prejudice has been alleged to have been caused to
the plaintiff on account of irregularity, if any in filing the counter-
claim. That being so, the plaintiff cannot be allowed to agitate in the
second appeal that there was no proper counter-claim. In the case
referred to above, it was held that the defendant could not be
allowed to file counter-claim by amending the written statement,which is not the proposition in the present case. Admittedly, the
defendants while making the counter-claim in the written statement
also paid the requisite court-fee thereon and it was duly entertained
by the trial Court.”
Moreover, relying upon the judgment of the Apex Court in Rohit
Singh’s case (supra), this Court in the case of Milkha Singh Versus Parshotam
Dass 2007(1)RCR (Civil) 495 has laid down that in exercise of its discretion, the
Court can permit at a subsequent stage also to raise plea of set off or counter
claim by allowing amendment of written statement
From the record of the case, it is clear that in the present case,
additional issues have been framed after amendment of the written statement
which includes counter claim and the evidence in this case was led thereafter.
Moreover, in the present case, the evidence has been led by both the parties on
the issues arising out of the counter claim filed by the defendant-respondents.
Thus no prejudice has been caused to the plaintiff-appellants in this regard. The
counter claim was filed by amending the written statement which was not
objected to. That being so, the plaintiffs cannot be allowed to agitate in the
second appeal that there was no proper counter claim. Admittedly, the
defendants while making the counter claim in the amended written statement
also paid the requisite court fee thereon and it was duly entertained by the trial
Court.
Thus, there is no force in the first contention raised by the counsel
for the appellant.
It is useful to refer to the provisions with regard to counter claim as
provided under Order 8 Rule 6-A and B of CPC which are reproduced:-
“6-A. 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 the suit butbefore 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.
(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 applicable to plaints.
6-B. Counter-claim to be stated.- Where any defendant seeks to
rely upon any ground as supporting a right of counter claim, he
shall, in his written statement, state specifically that he does so by
way of counter claim.”
In Munshi Ram and others Versus Radha Kishan (accd) and others
AIR 1975 Punjab and Haryana 112, it was held by this Court that counter claim
may be set up in respect of claim as to which party can bring independent
action in the court in which the counter action is brought yet the counter claim
need not be an action of the same nature as the original action or analogous
thereto and though there is no provision in the code for making a counter claim,
the court has the power to treat the counter claim as a cross suit and hear the
original suit and the counter claim together if the latter is properly stamped. In
Pathrose Samual and Another Versus Karumban Parameshwaran, AIR 1988
Kerala 163, it was held by the Kerala High Court that counter claim need not be
limited to money suits only meaning thereby that the suits of other nature were
also covered under the counter claim etc. In Inder Lal Khanna Versus Krishan
Lal Malhotra and others AIR 1990 (P&H) 149. where the defendants set up
counter claim and no objection was taken by the plaintiffs in this regard, it was
held by this Court that the plea that counter claim filed by defendant was not
proper inasmuch as it was not filed before the written statement cannot be raised
by the plaintiff in the second appeal. The sum and substance of the afore quoted
rulings is that the counter claim is not limited to money suits only and as such the
counter claim can be taken up in suits of other nature.
Learned counsel for the appellant has not cited any judgment in
support of his plea as raised by way of second substantial question of law.
On a conjoint reading of the provisions of Order 8 Rule 6-A and B
of C.P.C. and the judgments referred to above, it cannot be said that the remedy
of counter claim is available only in the suit pertaining to suits of recovery only
and thus, the counter claim can be taken up in suits of other nature including
suits for declaration/suits for possession etc.
Thus both the questions of law as framed by this Court are
answered against the appellant.
Learned counsel for the appellant has not challenged the findings
of fact to the effect that the defendants have purchased the land in dispute
validly vide sale deed Ex.P1 from Wassan Singh.
Thus, I find no merit in the appeal and the same is hereby
dismissed with no order as to costs.
October 1, 2008 (RAKESH KUMAR GARG)
nk JUDGE