Himachal Pradesh High Court

Reserved On : 18.09.2024 vs Bal Krishan on 4 October, 2024

Author: Virender Singh

Bench: Virender Singh

2024:HHC:9532

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. : 259 of 1995 Reserved on : 18.09.2024 Decided on : 04.10.2024

Bal Krishan Sharma ...Appellant

Versus

Bal Krishan ...Respondent

Coram The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes For the appellant : Dr. Lalit K. Sharma, Advocate.

For the respondents : Mr. Rajesh Mandhotra, Advocate.

Virender Singh, Judge

Appellant-Bal Krishan Sharma has preferred

the present Regular Second Appeal, against the judgment

and decree dated 30.01.1995, passed by the Court of

learned District Judge, Mandi, Kullu and Lahaul-Spiti

Districts, at Mandi, Himachal Pradesh (hereinafter referred

1 Whether Reporters of local papers may be allowed to see the judgment? Yes.

2 2024:HHC:9532

to as the 'learned First Appellate Court'), in Civil Appeal

No.13 of 1994, titled as 'Bal Krishan Sharma Versus Bal

Krishan' and Civil Appeal No.20 of 1994, titled as 'Bal

Krishan Versus Bal Krishan Sharma'.

2. Vide judgment and decree dated 30.01.1995,

the learned First Appellate Court had dismissed Civil

Appeal No.13 of 1994, preferred by the appellant, whereas,

Civil Appeal No.20 of 1994, preferred by the respondent,

was allowed, by granting the following relief:-

"17. In view of the findings given above Civil Appeal No.13/94 titled Bal Krishan Sharma v. Bal Krishan is dismissed whereas Civil Appeal No.20/94 titled Bal Krishan v. Bal Krishan Sharma is allowed and the impugned judgment and decree so far it grants permanent prohibitory injunction restraining the defendant from raising any construction over five metres of land shown as Sarak in Khasra No.2969/1764 as per the copy of jamabandi Ex.DA/1 is set aside, but maintained so far the relief of mandatory injunction has been dismissed. Consequently the suit of the plaintiff is dismissed as a whole. In the facts and circumstances of the case there is no order as to costs."

3. The aforesaid appeals were preferred by the

parties to the lis, against the judgment and decree dated

31.12.1993, passed by the learned Senior Sub-Judge, 3 2024:HHC:9532

Mandi, Himachal Pradesh (hereinafter referred to as the

'learned trial Court') in Civil Suit No.37 of 1991, titled as

'Bal Krishna Sharma Versus Bal Krishan'.

4. Vide judgment and decree dated 31.12.1993,

the learned trial Court had decreed the suit for permanent

prohibitory injunction, preferred by the appellant, by

granting the following relief:-

"12. In view of my discussion and findings on issue Nos 1 to 10 above, suit of the plaintiff succeeds partly and decree is passed in favour of the plaintiff and against the defendant for permanent prohibitory injunction restraining the defendant from raising any construction over five metres of land shown as sarak in Khasra No.2969/1764 as per the copy of Jamabandi Ex.DA/1 coupled with the copy of Khasra girdwari Ex.DB, and rest of the suit of the plaintiff for mandatory injunction is dismissed in view of my findings on the issues discussed above. Parties are left to bear their own costs in view of the facts and circumstances of the case. Decree sheet be drawn up accordingly."

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. The plaintiff has filed two appeals, before this

Court, against the judgment and decree, passed by the 4 2024:HHC:9532

learned First Appellate Court. Both the appeals were

registered as RSA No.259 of 1995 and RSA No.278 of 1995

and the same were dismissed in default vide order dated

28.09.2007. However, the present appeal i.e. RSA No.259

of 1995 was ordered to be restored to its original number

vide order dated 27.12.2007, passed by this Court,

whereas, RSA No.278 of 1995, as per record, was not

restored to its original number, till date.

7. By way of the present appeal, the findings of the

learned Courts below have been assailed on the ground

that the learned First Appellate Court has fallen into grave

error while coming to the conclusion that the right of path

over Sarak (road) in question has been acquired by the

appellant as easement of necessity.

8. The findings of the learned First Appellate Court

have further been assailed on the ground that the learned

First Appellate Court has wrongly concluded that the

learned trial Court has not decided whether the right of

path has been acquired by the appellant by grant of

transfer or by way of easement and the positive evidence, 5 2024:HHC:9532

which has been led by the plaintiff, in this regard, was not

considered.

9. The findings have further been assailed on the

ground that the learned First Appellate Court has wrongly

concluded that the plaintiff has 4-5 ft. wide road in front of

his house, from where, he can go to the main road. The

learned First Appellate Court has wrongly reversed the

finding of the learned trial Court on issue No.1, as, there

was no material on record to arrive at such conclusion.

10. On the basis of the grounds of appeal, Dr. Lalit

K. Sharma, Advocate, appearing for the appellant, has

prayed that the appeal may be allowed, as prayed for.

11. Per contra, the prayer, so made, by learned

counsel for the appellant, has been vehemently opposed by

Mr. Rajesh Mandhotra, Advocate, appearing for the

respondent, highlighting the fact that with the dismissal of

RSA No.278 of 1995, on 28.09.2007, the present appeal is

also liable to be dismissed, as, the same is hit by the

principle of res judicata.

6 2024:HHC:9532

11.1. In order to buttress his contention, learned

counsel for the respondent has relied upon the decision of

the Division Bench of this Court in 'Ramesh Chand

Versus Om Raj and Others', reported in 2022(2)

Shim.L.C 1145. Hence, a prayer has been made to

dismiss the present appeal.

12. In order to understand the controversy,

involved in the present case, it has to be seen as to what

relief has been sought by the plaintiff in the civil suit, filed

before the learned trial Court.

12.1. The plaintiff has filed the suit for permanent

prohibitory and mandatory injunction, against the

defendant, on the ground that he is owner in possession of

the single-storeyed pucca house, constructed over Khasra

No.226/290, Khasra No.2995/1751, measuring 106-75 sq.

mts., situated in Mauja Sain, Mandi Town (hereinafter

referred to as the 'suit land').

12.2. According to the plaintiff, there is 'gair mumkin

sarak' over Khasra No.2969/1764 on the western side of

the plaintiff's house and the said passage is stated to have 7 2024:HHC:9532

been purchased by the defendant, from the original owner

of the land of the parties to the lis.

12.3. It is the case of the plaintiff that the said gair

mumkin sarak, situated over Khasra No.2969/1764 is

meant for use as path for the original owner of the

adjoining land, as well as, by the plaintiffs. However, the

defendant has started the construction over Khasra

No.2969/1764 in order to change the nature of gair

mumkin sarak.

12.4. Asserting the right of easement by necessity, it

is the further case of the plaintiff that he, being in service

at Chamba, was not present in the town, as such, the

defendant has raised the construction over the portion of

the ground floor roof and made efforts to raise further

construction to deprive the plaintiff from using the said

path.

13. On the basis of above facts, plaintiff has prayed

that the suit may be decreed, as prayed for.

14. When put to notice, the suit has been

contested/resisted by the defendant by filing the written 8 2024:HHC:9532

statement, in which, he has taken the preliminary

objections to the effect that the suit is not maintainable;

that no enforceable cause of action has arisen to the

plaintiff; that the suit is not properly valued for the

purpose of Court fee and jurisdiction; that the suit is bad

for non-supply of better particulars; that the plaintiff has

no locus standi to file the present suit; that the suit is bad

for mis-joinder and non-joinder of the cause of action and

that the suit has been filed with mala fide intention and

the plaintiff has not come to the Court with clean hands.

14.1. On merits, the factual position, as asserted in

the plaint, has been denied and the suit has been

contested by pleading that the plaintiff is not the owner of

the house, because, he has encroached upon the land of

the defendant in his absence.

14.2. According to the defendant, by way of

encroachment, the plaintiff has constructed the retaining

wall and by raising the construction, the plaintiff has also

blocked the flow of the nalla (water channel). However, the

defendant has admitted that he has purchased the suit 9 2024:HHC:9532

land and has constructed the house on the sarak and

other land in the year 1987-88. The said passage is meant

to be used by him only, as the said passage is upto the

land, purchased by him.

15. On the basis of above facts, defendant has

prayed that the suit may be dismissed.

16. Plaintiff has filed the replication, to the written

statement, filed by the defendant, denying the preliminary

objections, as well as, the contents of the written

statement, by virtue of which, the suit has been contested,

by re-asserting the contents of the plaint.

17. From the pleadings of the parties, following

issues were framed, by the learned trial Court, vide order

dated 09.09.1991:-

"1. Whether the plaintiff has right of path through the 'sarak' in dispute as alleged? OPP

2. Whether the defendant has raised the construction of brickwall and projection etc. during the absence of the plaintiff as alleged, if so its effect? OPP

3. Whether the plaintiff is entitled to the permanent prohibitory and mandatory injunction? OPP 10 2024:HHC:9532

4. Whether the suit is not maintainable in the present form? OPD

5. Whether the plaintiff has no enforceable cause of action? OPD

6. Whether the suit is not properly valued for the purposes of court fee and jurisdiction if so what is the correct valuation? OPD

7. Whether the suit is bad for non-supply of better particulars? OPD

8. Whether the plaintiff has no locus standi to file the present suit? OPD

9. Whether the suit is bad for misjoinder and non-joinder of the cause of action? OPD

10. Whether the defendant is entitled to special costs? OPD

11. Relief."

18. After framing of the issues, parties to the lis

were directed to adduce evidence.

19. After closure of the evidence and upon hearing

learned counsel for the parties, the learned trial Court had

decreed the suit for permanent prohibitory injunction vide

judgment and decree dated 31.12.1993, however, the relief

of mandatory injunction had not been granted to the

plaintiff.

20. Feeling aggrieved from the said judgment and

decree, passed by the learned trial Court, the defendant

had preferred Civil Appeal No.20 of 1994 by assailing the 11 2024:HHC:9532

findings of the learned trial Court, by virtue of which, the

suit of the plaintiff has been decreed, as referred to above.

20.1. On the other hand, plaintiff-Bal Krishan

Sharma had also preferred Civil Appeal No.13 of 1994,

assailing the judgment and decree, passed by the learned

trial Court, by virtue of which, the relief of mandatory

injunction has been denied to him.

20.2. The learned First Appellate Court had

dismissed Civil Appeal No.13 of 1994, preferred by the

plaintiff and had allowed Civil Appeal No.20 of 1994,

preferred by the defendant and the judgment and decree,

by virtue of which, the relief of permanent prohibitory

injunction, granted to the plaintiff, had been set aside and

suit of the plaintiff was ordered to be dismissed, as a

whole.

21. The present appeal has been admitted, by this

Court, on 25.08.1995, on the following substantial

questions of law:-

"1. Whether easementary rights acquired by way of prescription can be denied to 12 2024:HHC:9532

a person on the ground that alternate way is available to that person?

2. Whether the presumption of truth is attached to revenue record and the registered sale deed in which Khasra No.2969/1764 has been recorded as Gair Mumkin Sarak?

3. Whether the First Appellate Court can change the findings of lower Trial Court on point which was not at issue between the parties?"

22. Thereafter, the following additional substantial

question of law has been framed, by this Court, vide order

dated 18.09.2024:-

"4. Whether the dismissal of RSA No.278 of 1995, in default, preferred against the impugned judgment and decree, passed by the learned First Appellate Court, would amount to res judicata, in view of the decision of this Court in 'Ramesh Chand versus Om Raj and others, reported in 2022(2) SLC 1145'?"

23. Since, the additional substantial question of

law, which has been framed, vide order dated 18.09.2024,

goes to the root of the case, as such, the same is required

to be decided first.

24. The present appeal has been filed, by the

plaintiff (appellant herein), against the judgment and 13 2024:HHC:9532

decree, passed by the learned First Appellate Court in Civil

Appeal No.20 of 1994, whereby, the learned First Appellate

Court has allowed the appeal by setting aside the judgment

and decree, passed by the learned trial Court, by virtue of

which, the relief of permanent prohibitory injunction was

granted in favour of the plaintiff, whereas, RSA No.278 of

1995 had been filed against the judgment and decree,

passed by the learned First Appellate Court in Civil Appeal

No.13 of 1994, whereby, the learned First Appellate Court

has dismissed the appeal, preferred by the plaintiff against

the judgment and decree, passed by the learned trial

Court, by virtue of which, the relief of mandatory

injunction has not been granted.

25. It would not be out of place to record herein

that with the dismissal of RSA No.278 of 1995, the findings

of the learned trial Court, on issue No.3, as affirmed by the

learned First Appellate Court, have attained finality.

26. If, the above factual position is seen, in the light

of the decision of the Division Bench of this Court in

Ramesh Chand's case (supra), then, there is no legal 14 2024:HHC:9532

hesitation for this Court to hold that the present appeal is

also hit by the principle of res judicata. 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 15 2024:HHC:9532

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."

27. Applying the principle of res judicata, as

enumerated, under Clause (vii) of para 42 of the aforesaid

judgment, the additional substantial question of law is

required to be decided against the appellant.

16 2024:HHC:9532

28. Ordered accordingly.

29. Since, additional substantial question of law

No.4, framed on 18.09.2024, has been decided against the

appellant, as such, other substantial questions of law

become redundant and are not liable to be decided. Thus,

the present appeal is liable to be dismissed being hit by the

principle of res judicata on account of dismissal of appeal,