SATYENDER AND ORS. versus SAROJ AND ORS on 17 August 2022

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[2022] 13 S.C.R. 342

SUPREME COURT REPORTS

[2022] 13 S.C.R.

SATYENDER AND ORS.

A

v.

SAROJ AND ORS.

(Civil Appeal No. 4833 of 2022)

B

AUGUST 17, 2022

[UDAY UMESH LALIT, S. RAVINDRA BHAT ANDSUDHANSHU DHULIA, JJ.]

Code of Civil Procedure, 1908: Or.VIII, r.6A – Counter Claim– Plaintiffs (respondents) filed suit for declaration and possessionCon agricultural land claiming that defendant No. 2 was their tenantwho had sub-let the land to his son (defendant No.1), without theconsent of the plaintiffs and hence, liable to be evicted – DefendantNo.2 filing a separate written statement denied that they were evertenant of the plaintiffs – A counter claim was also set up by defendantDNo. 2 claiming that in addition to the Khasra and Killa numbersgiven in the plaint, he was also in possession of two other Killa nos.i.e., 6//18 and 23 – Trial Court dismissed the suit but allowed thecounter-claim – First appeal of plaintiff was also dismissed – HighCourt partly allowed the second appeal of the plaintiffs by allowingthe claim of the plaintiffs on two plots i.e., 21//3/2 and 7//13 for theEreason that the claim on these plots by plaintiffs went uncontested –High Court also held that the counter claims set up by the defendantcould not be decreed since the plaintiffs themselves had not set upany claim whatsoever for these two plots, and therefore underprovisions of Or.VIII, r.6A, an independent counter claim havingFnothing to do with the plaintiffs can never be allowed – Defendantsfiled instant appeal – Held: The finding of the High Court regardingtwo Killa Nos. 21//3/2 and 7//13 was erroneous as merely becausethe defendant did not raise a counter claim on this property it wouldnot ipso facto mean that a decree ought to have been granted infavour of the plaintiffs – The burden of proof was on the plaintiffsGto prove their case, which they failed – The finding of High Courtregarding the counter claim of the defendants on Killa Nos. 6//18and 23 is correct and is based on right interpretation of Or.VIII,Rule 6A of CPC as plaintiffs never raised any claim on Killa No. 6//18 or Killa No. 23 – Counter claim can be set up only “against theHclaim of the plaintiffs” – Since there was no claim of the plaintiffs342

regarding Killa No. 6//8 and 23, the defendants were barred to raiseany counter claim on these Killa numbers in view of Or.VIII, r.6A ofthe CPC as it has nothing to do with the plaintiffs – Judgment andorder passed by the High Court to the extent that it has decreed theclaim of the plaintiffs on Killa Nos. 21//3/2 and 7//13 is set aside.

Code of Civil Procedure, 1908: s.100 – In the State ofHaryana, a court in second appeal is not required to formulate asubstantial question of law, as what is applicable in Haryana iss.41 of the Punjab Courts Act, 1918 and not s.100 of CPC – PunjabCourts Act, 1918 – s.41.

Disposing of the appeal, the Court

HELD: 1. Section 100 of the CPC as it stands today indeedmandates that a second appeal would lie before the High Courtonly on a substantial question of law, and a Second Appeal has tobe heard on the substantial question of law, so formulated by theHigh Court. The provision of second appeal as it stands todaywas inserted in the CPC by Amendment Act No. 104 of 1976.Prior to the 1976 amendment, there was no requirement ofsubstantial question of law. [Para 10][350-F-G]

Conclusion

2.1 Initially, it was held by this Court (in Kulwant Kaur v.Gurdial Singh Mann3) that after the 1976 Amendment, Section100 of the CPC would be applicable in Punjab & Haryana and notSection 41 of the Punjab Courts Act, 1918 and a second appealhas to be decided only on a “substantial question of law”. It washeld that after the 1976 Amendment Act, Section 41 of the PunjabCourts Act, stood repealed. Additionally, it was also held thatSection 41 of the Punjab Courts Act was repugnant to Section100 CPC in view of Article 254 of the Constitution of India.However, in Pankajakshi, a Constitution Bench held that thereasoning given in Kulwant Kaur for holding that Section 41 ofthe Punjab Courts Act stood repealed was not correct. Section97 of Amendment Act of 1976 provides that only such provisionswould stand repealed which were inserted in the principal Act(i.e., Code of Civil Procedure, 1908), by a State Legislature orHigh Court before the commencement of this Act (i.e., 1976Amendment Act). As Section 41 of the Punjab Courts Act was A

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Aneither an amendment in the principal Act nor a provisioninserted in the principal Act therefore, it would not be coveredby Section 97 of the Amendment Act of 1976, and there was henceno question of it being repealed under the provisions of Section97 of the Amendment Act, 1976. [Paras 11, 12][352-A-B, E-F]

B2.2 It was further held [in Pankajakshi] that the question ofrepugnancy and its application was also not correctly decided inKulwant Kaur as Article 254 of the Constitution of India, was notapplicable in that case. Section 254 would be applicable only tothe laws made after the implementation of the Constitution ofIndia and Section 41 of the Punjab Courts Act is of 1918 vintageCand it was not made by a Legislature of the State after theConstitution of India had come into force. The Punjab CourtsAct, 1918 was enacted under the provisions of the Governmentof India Act, 1935 and although by Article 395 of the Constitutionof India, the Government of India Act, 1935 stood repealed yetDby virtue of provisions of Article 372(1) of Constitution of Indiaall the laws in force in the territory of India immediately beforethe commencement of the Constitution were to continue in forceuntil altered or repealed or amended by a competent legislatureor other competent authority. Since Section 41 of the PunjabCourts Act has not been altered, repealed or amended by StateELegislature of Punjab or Haryana, it will continue to be in force.[Para 13][352-G-H; 353-A-C]

3. The laws as applicable in Punjab in the year 1918, werealso applicable to the present territory of Haryana since it wasthen a part of the State of Punjab. Later on, the creation of theFnew State of Haryana, under the provision given in Section 88 ofthe Punjab Re-organization Act, 1966, the laws applicable in theerstwhile State of Punjab continued to be applicable in the newState of Haryana. Furthermore, State of Haryana formally adoptedthe laws of the erstwhile State of Punjab, under Section 89 of theGPunjab Re-Organisation Act, 1966. Therefore, in the State ofHaryana a court in second appeal is not required to formulate asubstantial question of law, as what is applicable in Haryana isSection 41 of the Punjab Courts Act, 1918 and not Section 100 ofCPC. Consequently, it was not necessary for the High Court toformulate a substantial question of law. [Para 14][353-C-E]H

4. Be that as it may, though the requirement of formulationof a substantial question of law was not necessary, yet Section 41of the Punjab Courts Act, requires that only such decisions areto be considered in second appeal which are contrary to law or tosome custom or usage having the force of law or the court belowhave failed to determine some material issue of law or custom orusage having the force of law. Therefore, what is important isstill a “question of law”. In other words, second appeal is not aforum where court has to re-examine or re-appreciate questionsof fact settled by the Trial Court and the Appellate Court. Theplaintiffs had claimed right over certain agricultural land and theircase was that they have the right to be declared the owner of thisproperty and the possession be handed over to the them, for thereasons that on this particular property defendants and theirpredecessors-in-interest were the tenants of the plaintiffs. Theircase was that defendant No. 2 was their tenant who had sub-letthe property in favour of his son, that is defendant No. 1 andtherefore, the property should be reverted back to the plaintiffsand they should be declared the owner and should be given thepossession of the property as well. Both the Trial Court as wellas the First Appellate Court had held after evaluating theevidence placed by the plaintiffs that defendant No. 2 and hisbrothers (who were not even made a party by the plaintiffs) werethe tenants on the property and defendant No.2 had not sub-letthe property in favour of his son that is defendant No. 1 and therevenue entries being made in this regard in the year 1978 arewrong and without any basis as there was no order of any revenueauthority for making such an entry. In short, the plaintiffs hadfailed to prove their case as owner of the land in dispute. Hencetheir case of declaration and possession was dismissed. TheSecond Appellate Court however, quite erroneously, and withoutany justification, gave an entirely new finding regarding two KillaNos. 21//3/2 and 7//13 on which the plaintiffs claimed relief ofdeclaration and possession, on the same grounds as raised bythem for the other Killa Nos. The pleadings also show that thedefendants had made a general denial of the plaintiffs’ claim forall the plots. Yet, the High Court held that since the defendantshad not made any claim for plot nos. 21//3/2 and 7//13 and thereforeby logic a decree of declaration of possession ought to have been ABC

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Agiven to the plaintiffs for these plots! This reasoning of the secondAppellate Court is erroneous for the simple reason that the burdenof proof was on the plaintiffs to prove their case, which they hadfailed. They have not been able to prove to the satisfaction of theTrial Court as well as the First Appellate Court about their claimof any kind over this property. Merely because the defendant didBnot raise a counter claim on this property it would not ipso factomean that a decree ought to have been granted in favour of theplaintiffs. Plaintiffs have to prove their case on the strength oftheir evidence. For this reason, the reasoning given by the SecondAppellate Court for decreeing the claim of the plaintiff for plotCnos. 21//3/2 and 7//13 is incorrect and to that extent is liable tobe set aside. [Para 15][353-F; 354-A-H; 355-A]

5. The other finding of Second Appellate Court regardingthe counter claim of the defendants on Killa Nos. 6//18 and 23 is,however, correct and is based on right interpretation of OrderDVIII, Rule 6A of CPC. From the pleadings of the plaintiffs, it isclear that they had never raised any claim on Killa No. 6//18 orKilla No. 23. The defendants in their written statement whiledenying the rights of the plaintiffs on the land of which particularshad been given by the plaintiffs, quite ingeniously inserted thetwo Killa Nos.6//18 and 23, setting a counter-claim on these plots.

EThe Trial Court and the First Appellate Court while dismissingthe plaintiffs’ suit had allowed this claim for without assigningany reasons. In fact, this counter claim which was raised by thedefendant is barred under Order VIII, Rule 6A of the CPC. Acounter claim can be set up only “against the claim of theFplaintiffs”. Since there was no claim of the plaintiffs regardingKilla No. 6//8 and 23, the defendants were barred to raise anycounter claim on these Killa numbers in view of Order VIII, Rule6A of the CPC as it has nothing to do with the plaintiffs. It is truethat a counter claim can be made by the defendant, even on a separate or independent cause of action. The Legislature permitsGthe institution of a counter claim, in order to avoid multiplicity oflitigation. But then it has certain limitations such as that thecounter claim cannot exceed the pecuniary limits of thejurisdiction of the court, and that such counter claim must beinstituted before the defendant has delivered his defence orH

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before the time limit for delivering his defence has expired. Moreimportantly, such a counter claim must be against the plaintiff.Evidently, in the present case the counter claim was not againstthe plaintiffs. Moreover, as the plaintiffs had not claimed any rightover the property and the Killa Nos. 6//8 and 23 are not even apart of the suit property described in the plaint by the plaintiffs.Despite the same, such a claim has been allowed against theplaintiffs. In fact, we do not find on record any reply submitted bythe plaintiffs against the counter claim. Such a counter claim shouldhave been excluded in terms of Order VIII, Rule 6C of the CPC.The counter claim set up by the defendants has been rightlyrejected by the High Court. [Para 16][355-B-C, H]

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Pankajakshi & Ors. v. Chandrika & Ors. (2016) 6 SCC157 : [2016] 3 SCR 1018 – followed.

Kirodi v. Ram Parkash & Ors. (2019) 11 SCC 317 :[2019] 7 SCR 968; Jag Mohan Chawla & Anr. v. DeraRadha Swami Satsang & Ors. (1996) 4 SCC 699 :[1996] 2 Suppl. SCR 509 – relied on.

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Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC262 : [2001] 2 SCR 525 – referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4833of 2022.

From the Judgment and Order dated 19.07.2017 of the High Courtof Punjab and Haryana at Chandigarh in RSA No. 140 of 2009.

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Ajay Tewari, Sr. Adv., Abhimanyu Tewari, Ms. Eliza Bar, DilmrigNayani, Advs. for the Appellants.

Sushil Sardana, Ms. Rekha Sardana, Shafik Ahmed, Ram KishorSingh Yadav, Advs. for the Respondents.

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AThe Judgment of the Court was delivered by SUDHANSHU DHULIA, J.

1. This appeal is against judgment dated 19.07.2017 of the HighCourt of Punjab & Haryana given in a Second Appeal (No. 140 of 2009)which was partly allowed by the High Court.B

2. The case arises out of the proceedings initiated by the plaintiffs(respondents herein) for declaration and possession on an agriculturalland. Suit was filed by the plaintiffs, claiming to be owners of the property,which in total measured 80 Kanals, 19 Marlas. The property is in therevenue village Gagarwas, Tehsil Loharu, District Bhiwani (Haryana).CTheir case was that defendant No. 2 was their tenant who had sub-letthe land to his son (defendant No.1), without the consent of the plaintiffs/landlords and hence, the two defendants were liable to be evicted andthe possession of the land was to be handed over to the plaintiffs. Theplaintiffs additionally had built their case on an assertion that the landDwas earlier in possession of one Ram Kaur on which Ganpat Rai, thefather of defendant No. 2 was the tenant. Ganpat Rai surrendered histenancy of the disputed land to Ram Kaur in the year 1976. Later in theyear 1994, the plaintiffs had won a suit against Ms. Ram Kaur and theland which is the subject matter of the present dispute now belongs tothem, hence they have stepped into the shoes of Ms. Ram Kaur and areEnow the owners of the property.

3. Defendant No. 1 (Satyender) is the son of defendant No.2(Ishwar Singh). The stand taken by defendant No.1 was that he had noconcern with the land in question. The defence set up by him was thathe was born in the year 1966 and hence, he was only twelve years ofFage in the year 1978 when the sub-tenancy is alleged to have beencreated in his favour, as per the revenue records. He never cultivatedthe land and the cultivation was done by his father and his two uncles,and the entries made in the revenue record showing him to be a tenantor a sub-tenant are wrong and have been made by the plaintiffs, incollusion with the revenue officials.G

4. Defendant No.2 filed a separate written statement. Accordingto defendant No. 2, one Indraj was the original owner of the property,who had given this land in tenancy to defendant No. 2’s father GanpatRai. Indraj died in the year 1976 and was succeeded by Ms. Ram Kaur.Meanwhile, the father of the defendant No. 2, Ganpat Rai died in theH

year 1978 and consequently he and his two other brothers namely, Sombitand Om Prakash had jointly inherited the tenancy. Thereafter, all thethree brothers became tenants under Ms. Ram Kaur and they continuedto be in possession of the suit property. They denied that they were evertenant of the plaintiffs.

5. In addition to their written statement, a counter claim was alsoset up by defendant No. 2. The defendant No.2 claimed in his writtenstatement that in addition to the Khasra and Killa numbers given in theplaint, he was also in possession of two other Killa nos. i.e., 6//18 and23. In other words, their counter claim on the above two mentioned plotnumbers was in addition to the claim on the plots as mentioned by theplaintiffs. The suit was ultimately dismissed by the Trial Court on thefindings that the plaintiffs could neither prove their right on the property,nor could they prove the fact that the defendant No.2 had created a sub-tenancy in favour of his son, i.e., defendant No.1. The counter claim setup by the defendant No. 2 was decreed.

6. The first appeal filed by the plaintiffs was also dismissed by theAppellate Court. The Appellate Court too held that there was a heavyburden on the appellants to prove that the tenancy of Ganpat Rai hadcome to an end in the year 1976 by surrendering the possession of thedisputed land. This could not be proved by the plaintiffs. It was also thefinding by the Lower Appellate Court that after the death of Ganpat Rai,tenancy was inherited by his three sons namely, Sombir, Ishwar and OmPrakash. Therefore, all of them should have been impleaded as party inthe case because the outcome of the suit would affect them as well.Since they have not been impleaded as a party therefore, the suit is badfor non-joinder of the necessary parties. Regarding the counter claim, itwas held by the First Appellate Court that as a natural consequence ofdismissal of the suit, the counter claim of the defendants qua Killa No.6//18 and 23 was rightly decreed.

7. The matter was taken in second appeal by the plaintiffs. Thesecond appeal of the plaintiffs was partly allowed. Though the HighCourt in the second appeal upheld the findings of the two Courts on thesub-letting and tenancy and upheld the findings of the lower courts infavour of the defendants as there was no sub-letting of the land, yet inthe same breath the High Court has allowed the claim of the plaintiffs onthe two plots i.e., 21//3/2 and 7//13 for the reasons that for these twoplots though the plaintiffs had raised their claim and the defendants had A

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Anot raised any counter claim on these plot numbers, which wentuncontested.

8. In addition, it was also held by the High Court that the counterclaims set up by the defendant (on plot Nos. 6//18 and 23) could not bedecreed since the plaintiffs themselves had not set up any claimBwhatsoever for these two plots, i.e., Killa No. 6//18 and 23 and thereforeunder provisions of Order VIII, Rule 6A of the Code of Civil Procedure1908 (hereinafter referred to as “CPC”), an independent counter claimhaving nothing to do with the plaintiffs can never be allowed.

9. The defendants are now before this Court. The first groundCraised by the counsel for the appellant/defendant before this Court isthat the High Court while deciding a second appeal did not formulateany substantial question of law, which was an essential requirement underSection 100 of the CPC. The learned counsel would argue that a secondappeal can only be admitted and heard on a substantial question of lawand since no substantial question of law was formulated nor any argumentsDadvanced by the parties before the Second Appellate Court (High Court)as mandated by Section 100 of the CPC, the order of the High Court isliable to be set aside on this ground alone. This seemingly attractiveargument, however, does not hold any good in the present case as thesubject matter of the present dispute is from Haryana where the governingEprovision would be Section 41 of the Punjab Courts Act, 1918 and notSection 100 of CPC. This was held by a Constitution Bench of thisCourt in Pankajakshi & Ors. v. Chandrika & Ors.[1] which was laterfollowed in Kirodi v. Ram Parkash & Ors.[2]

10. Section 100 of the CPC as it stands today indeed mandatesFthat a second appeal would lie before the High Court only on a substantialquestion of law, and a Second Appeal has to be heard on the substantialquestion of law, so formulated by the High Court. The provision of secondappeal as it stands today was inserted in the CPC by Amendment ActNo. 104 of 1976. Prior to the 1976 amendment, there was no requirementof substantial question of law. The earlier, i.e., unamended position readGas under: - “100. Second appeal – (1) “Save where otherwise expresslyprovided in the body of this Code or by any other law for the time 1 (2016) 6 SCC 157H2 (2019) 11 SCC 317

being in force, an appeal shall lie to the High Court from everydecree passed in appeal by any Court subordinate to a High Courton any of the following grounds, namely:

(a) the decision being contrary to law or to some usage havingthe force of law; (b) the decision having failed to determine some material issueof law or usage having the force of law;

(c) a substantial error or defect in the procedure provided bythis Code or by any other law for the time being in force, whichmay possibly have produced error or defect in the decision ofthe case upon the merits.

(2) An appeal may lie under this section from an appellate decreepassed ex parte.”

Under the Punjab Courts Act, 1918, a similar provision is given asregards a second appeal. This is in Section 41 of the Act which is in parimateria to the unamended Section 100 of the CPC and reads as follows:- “41. Second appeal— (1) An appeal shall lie to the High Courtfrom every decree passed in appeal by any Court subordinate tothe High Court on any of the following grounds, namely:

(a) the decision being contrary to law or to some custom orusage having the force of law:

(b) the decision having failed to determine some material issueof law or custom or usage having the force of law,

(c) a substantial error or defect in the procedure provided bythe Code of Civil Procedure 1908 [V of 1908], or by any otherlaw for the time being in force which may possibly haveproduced error or defect in the decision of the case upon themerits; [Explanation. - A question relating to the existence or validityof a custom or usage shall be deemed to be a question of lawwithin the meaning of this Section]

(2) An appeal may lie under this section from an appellate decreepassed ex parte.”

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Issues

A11. Initially, it was held by this Court (in Kulwant Kaur v. GurdialSingh Mann[3]) that after the 1976 Amendment, Section 100 of the CPCwould be applicable in Punjab & Haryana and not Section 41 of thePunjab Courts Act, 1918 and a second appeal has to be decided only ona “substantial question of law”. It was held that after the 1976 AmendmentAct, Section 41 of the Punjab Courts Act, stood repealed. Additionally, itBwas also held that Section 41 of the Punjab Courts Act was repugnant toSection 100 CPC in view of Article 254 of the Constitution of India.

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12. As referred above, the present Section of the 100 CPC wasinserted in the CPC by the Amendment Act of 1976. Section 97 of theAmendment Act of 1976 which was relied upon by this Court in KulwantCKaur reads as under: - “97. Repeal and savings. — (1) Any amendment made, or anyprovision inserted in the principal Act by a State Legislature or aHigh Court before the commencement of this Act shall, exceptinsofar as such amendment or provision is consistent with theDprovisions of the principal Act as amended by this Act, standrepealed.”

In Pankajakshi (supra) a Constitution Bench held that thereasoning given in Kulwant Kaur (supra) for holding that Section 41 ofthe Punjab Courts Act stood repealed was not correct. Section 97 ofEAmendment Act of 1976 provides that only such provisions would standrepealed which were inserted in the principal Act (i.e., Code of CivilProcedure, 1908), by a State Legislature or High Court before thecommencement of this Act (i.e., 1976 Amendment Act). As Section 41of the Punjab Courts Act was neither an amendment in the principal ActFnor a provision inserted in the principal Act therefore, it would not becovered by Section 97 of the Amendment Act of 1976, and there washence no question of it being repealed under the provisions of Section 97of the Amendment Act, 1976.

13. It was further held [in Pankajakshi] that the question ofGrepugnancy and its application was also not correctly decided in KulwantKaur as Article 254 of the Constitution of India, was not applicable inthat case. Section 254 would be applicable only to the laws made afterthe implementation of the Constitution of India and Section 41 of thePunjab Courts Act is of 1918 vintage and it was not made by a Legislature H3 (2001) 4 SCC 262

of the State after the Constitution of India had come into force. ThePunjab Courts Act, 1918 was enacted under the provisions of theGovernment of India Act, 1935 and although by Article 395[4] of theConstitution of India, the Government of India Act, 1935 stood repealedyet by virtue of provisions of Article 372(1)[5 ]of Constitution of India allthe laws in force in the territory of India immediately before thecommencement of the Constitution were to continue in force until alteredor repealed or amended by a competent legislature or other competentauthority. Since Section 41 of the Punjab Courts Act has not been altered,repealed or amended by State Legislature of Punjab or Haryana, it willcontinue to be in force.

14. We may also add here that we are presently concerned withthe laws in the State of Haryana. All the same, the laws as applicable inPunjab in the year 1918, were also applicable to the present territory ofHaryana since it was then a part of the State of Punjab. Later on, thecreation of the new State of Haryana, under the provision given in Section88 of the Punjab Re-organization Act, 1966, the laws applicable in theerstwhile State of Punjab continued to be applicable in the new State ofHaryana. Furthermore, State of Haryana formally adopted the laws ofthe erstwhile State of Punjab, under Section 89 of the Punjab Re-Organisation Act, 1966. Therefore, in the State of Haryana a court insecond appeal is not required to formulate a substantial question of law,as what is applicable in Haryana is Section 41 of the Punjab Courts Act,1918 and not Section 100 of CPC. Consequently, it was not necessaryfor the High Court to formulate a substantial question of law.

15. Be that as it may, though the requirement of formulation of asubstantial question of law was not necessary, yet Section 41 of thePunjab Courts Act, requires that only such decisions are to be consideredin second appeal which are contrary to law or to some custom or usagehaving the force of law or the court below have failed to determine 4 Article 395-Repeals The Indian Independence Act, 1947, and the Government ofIndia Act, 1935, together with all enactments amending or supplementing thelatter Act, but not including the Abolition of Privy Council Jurisdiction Act,1949, are hereby repealed.

5 372(1) Notwithstanding the repeal by this Constitution of the enactmentsreferred to in Article 395 but subject to the other provisions of this Constitution,all the laws in force in the territory of India immediately before thecommencement of this Constitution, shall continue in force therein until alteredor repealed or amended by a competent Legislature or other competent authority.

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Asome material issue of law or custom or usage having the force of law.Therefore, what is important is still a “question of law”. In other words,second appeal is not a forum where court has to re-examine or re-appreciate questions of fact settled by the Trial Court and the AppellateCourt. The plaintiffs had claimed right over certain agricultural land andtheir case was that they have the right to be declared the owner of thisBproperty and the possession be handed over to the them, for the reasonsthat on this particular property defendants and their predecessors-in-interest were the tenants of the plaintiffs. Their case was that defendantNo. 2 was their tenant who had sub-let the property in favour of his son,that is defendant No. 1 and therefore, the property should be revertedCback to the plaintiffs and they should be declared the owner and shouldbe given the possession of the property as well. Both the Trial Court aswell as the First Appellate Court had held after evaluating the evidenceplaced by the plaintiffs that the defendant No. 2 and his brothers (whowere not even made a party by the plaintiffs) were the tenants on theproperty and defendant No.2 had not sub-let the property in favour ofDhis son that is defendant No. 1 and the revenue entries being made inthis regard in the year 1978 are wrong and without any basis as therewas no order of any revenue authority for making such an entry. Inshort, the plaintiffs had failed to prove their case as owner of the land indispute. Hence their case of declaration and possession was dismissed.EThe Second Appellate Court however, quite erroneously, and withoutany justification, gave an entirely new finding regarding two Killa Nos.21//3/2 and 7//13 on which the plaintiffs claimed relief of declaration andpossession, on the same grounds as raised by them for the other KillaNos. The pleadings also show that the defendants had made a generaldenial of the plaintiffs’ claim for all the plots. Yet, the High Court heldFthat since the defendants had not made any claim for plot nos. 21//3/2and 7//13 and therefore by logic a decree of declaration of possessionought to have been given to the plaintiffs for these plots! This reasoningof the second Appellate Court is erroneous for the simple reason thatthe burden of proof was on the plaintiffs to prove their case, which theyGhad failed. They have not been able to prove to the satisfaction of theTrial Court as well as the First Appellate Court about their claim of anykind over this property. Merely because the defendant did not raise acounter claim on this property it would not ipso facto mean that a decreeought to have been granted in favour of the plaintiffs. Plaintiffs have toprove their case on the strength of their evidence. For this reason, theH

SATYENDER AND ORS. v. SAROJ AND ORS.[SUDHANSHU DHULIA, J.]

reasoning given by the Second Appellate Court for decreeing the claimof the plaintiff for plot nos. 21//3/2 and 7//13 is incorrect and to thatextent is liable to be set aside.

Analysis

16. The other finding of Second Appellate Court regarding thecounter claim of the defendants on Killa Nos. 6//18 and 23 is, however,correct and is based on right interpretation of Order VIII, Rule 6A ofCPC. From the pleadings of the plaintiffs, it is clear that they had neverraised any claim on Killa No. 6//18 or Killa No. 23. The defendants intheir written statement while denying the rights of the plaintiffs on theland of which particulars had been given by the plaintiffs, quite ingeniouslyinserted the two Killa Nos.6//18 and 23, setting a counter-claim on theseplots. The Trial Court and the First Appellate Court while dismissing theplaintiffs’ suit had allowed this claim for without assigning any reasons.In fact, this counter claim which was raised by the defendant is barredunder Order VIII, Rule 6A of the CPC. Order VIII, Rule 6A reads asunder:- [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, byway of counter-claim against the claim of the plaintiff, any rightor claim in respect of a cause of action accruing to the defendantagainst the plaintiff either before or after the filing of the suit butbefore the defendant has delivered his defence or before the timelimited for delivering his defence has expired, whether suchcounter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniarylimits of the jurisdiction of the court.

(2) Such counter-claim shall have the same effect as a cross-suitso as to enable the Court to pronounce a final judgment in thesame suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement inanswer to the counter-claim of the defendant within such periodas may be fixed by the court.

(4) The counter-claim shall be treated as a plaint and governed bythe rules applicable to plaints A counter claim can be set up only “against the claim of theplaintiffs”. Since there was no claim of the plaintiffs regarding Killa No.

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A6//8 and 23, the defendants were barred to raise any counter claim onthese Killa numbers in view of Order VIII, Rule 6A of the CPC as it hasnothing to do with the plaintiffs. It is true that a counter claim can bemade by the defendant, even on a separate or independent cause ofaction (Jag Mohan Chawla & Anr. v. Dera Radha Swami Satsang& Ors.[6]).B

The Legislature permits the institution of a counter claim, in orderto avoid multiplicity of litigation. But then it has certain limitations suchas that the counter claim cannot exceed the pecuniary limits of thejurisdiction of the court, and that such counter claim must be institutedbefore the defendant has delivered his defence or before the time limitCfor delivering his defence has expired. More importantly, such a counterclaim must be against the plaintiff! Evidently, in the present case thecounter claim was not against the plaintiffs. Moreover, as the plaintiffshad not claimed any right over the property and the Killa Nos. 6//8 and23 are not even a part of the suit property described in the plaint by theDplaintiffs. Despite the same, such a claim has been allowed against theplaintiffs. In fact, we do not find on record any reply submitted by theplaintiffs against the counter claim. To be fair, such a counter claimshould have been excluded in terms of Order VIII, Rule 6C of the CPC.Suffice it to state here that the counter claim set up by the defendantshas been rightly rejected by the High Court.

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17. The judgment and order dated 19.07.2017 passed by the HighCourt to the extent that it has decreed the claim of the plaintiffs on KillaNos. 21//3/2 and 7//13 is hereby set aside. This appeal hence standsdisposed of on the aforesaid terms.

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Devika Gujral