____________________________________________________ vs Subhash Chand And Others
2025 Latest Caselaw 5773 HP

Himachal Pradesh High Court

____________________________________________________ vs Subhash Chand And Others on 20 May, 2025

      IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

                                    RSA No. 10 of 2020
                                Decided on: 20.05.2025
____________________________________________________
Jagdish Ram and others              ........... appellants
                       Versus

Subhash Chand and others

                                          ..........respondents
____________________________________________________
Coram:
Hon'ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting? 1

For the appellants                     :      Mr. Vivek Singh Attri, Advocate.

For the respondents                    :      None for respondents No. 1, 2(a)
                                              to 2(d), 3 and 5.

                            Mr.        :
                                   Diwakar   Dev   Sharma,
                            Additional Advocate General, for
                            respondent No.4/State.
____________________________________________________
Bipin Chander Negi, Judge (oral)

The facts leading to the filing of the present second

appeal are that the respondents (hereinafter referred to as the

plaintiffs) had initially filed a suit for permanent prohibitory and

mandatory injunction in the lower court, alleging that the suit land,

owned by the State of Himachal Pradesh and recorded as Share-

Aam path, was being used by the plaintiffs and other members of

the general public to pass themselves and their cattle to reach the

main PWD road situated south of the suit path. The plaintiffs

claimed that the general public, including themselves, had been

using this path without any interference. It was further alleged that

Whether the reporters of the local papers may be allowed to see the judgment?

on the east of the Share-Aam path lay the cultivable land of

defendant Nos. 1 to 3, who, without any right, title, or interest, had

enclosed the land by putting up a fence and encroached upon the

public path. The plaintiffs came to know about this encroachment

in the first week of December 2008 and subsequently moved an

application to the Gram Panchayat, which in turn approached the

Tehsildar. However, the Kanungo was not allowed to demarcate

the land by defendant Nos. 1 to 3. The Gram Panchayat also

passed a resolution on 07.09.2009, requesting the government to

remove the encroachment, but no action was taken.

2. Further applications were moved to the SDM, Dehra,

on 22.12.2008, yet no action was initiated by defendant No. 4.

The plaintiffs contended that the Gram Panchayat had intended to

construct a pucca path for the use of the general public but was

unable to do so due to the actions of the defendants. The existing

path passed through the land of adjoining owners on the western

side, with their consent, but this consent could be withdrawn at

any time. The plaintiffs also highlighted that the current path was

unsuitable for children and the elderly due to water pipes running

above it, making it unsafe and unfit for use. They argued that

unless the encroached land was vacated, the plaintiffs and the

general public would be deprived of their rightful use of the path

due to the wrongful acts of defendant Nos. 1 to 3. Despite

multiple applications and a notice under Section 80 of the CPC,

no action was taken, leading to the filing of the suit.

3. The suit was contested by defendant Nos. 1 to 3,

who filed separate written statements raising preliminary

objections regarding maintainability, cause of action, and

estoppel. On merits, they denied the existence of a Share-Aam

path in Khasra No. 148, asserting that the Share-Aam path was

located in Khasra Nos. 147 and 160, and thereafter in Khasra

Nos. 154 to 157, and had been in use for over 20 years. They

alleged that Khasra No. 147, which was a Share-Aam path, had

been encroached upon by the plaintiffs themselves. The

defendants denied encroaching upon any government land and

claimed that no demarcation had ever been conducted. They

further alleged that the plaintiffs were attempting to harass them

by falsely claiming a path through their land (Khasra No. 109),

where their abadi was situated. The defendants also referred to a

prior case decided by the Gram Panchayat on 07.11.1992,

wherein a demarcation had been conducted, and the path had

been in use since then. They denied the plaintiffs' allegations

regarding the unsuitability of the existing path and asserted that

the path in Khasra Nos. 147, 160, 157, 156, 155, and 154

connected to the PWD road in Khasra No. 191 and was used by

all, including for vehicles like tractors and jeeps. They accused

the plaintiffs of obstructing the path in Khasra No. 147, which was

government land, and prayed for the dismissal of the suit.

4. Defendant No. 4, in its written statement, raised

preliminary objections regarding maintainability, cause of action,

jurisdiction, and the bar under Section 10 of the CPC. On merits,

it admitted that the suit land was owned by the State of Himachal

Pradesh and recorded as Share-Aam path, which had been used

as a passage since time immemorial. It confirmed that defendant

Nos. 1 to 3 had encroached upon Khasra No. 148 (measuring 0-

01-80 hectares) and that other individuals had encroached upon

Khasra Nos. 155/1 and 156/1. However, Khasra No. 154

remained vacant, and the path was still in use. Defendant No. 4

stated that proceedings under Section 163 of the H.P. Land

Revenue Act had been initiated against the encroachers,

including defendant Nos. 1 to 3, and thus the civil court lacked

jurisdiction to decide the matter. It further claimed that action was

taken only after receiving the notice under Section 80 of the CPC.

Defendant No. 5 adopted the written statement of defendant No.

5. The plaintiffs filed replications reaffirming their plaint

allegations. Defendant Nos. 1 to 3 also filed a counter-claim

seeking to restrain the plaintiffs from interfering with the path in

Khasra No. 147, which they claimed was a Share-Aam path used

by the public and connected to the PWD road. They alleged that

the plaintiffs were intentionally obstructing this path and sought an

injunction against them. The plaintiffs contested the counter-

claim, denying any obstruction and asserting that the counter-

claim was filed merely to harass them and stop the use of the

government land in Khasra No. 148.

6. The trial court framed the following issues on

18.03.2011:

1. Whether Share-Aam path exists over the suit land, as alleged? ...OPP.

2. Whether plaintiffs are entitled for the relief of mandatory injunction, as prayed for?...OPP.

3. Whether plaintiffs are also entitled for the relief of permanent injunction, as prayed for?...OPP.

4. Whether suit is not maintainable?...OPD.

5. Whether plaintiffs are estopped from filing the suit by their act and conduct?...OPD.

6. Whether suit is barred under Section 10 CPC?...OPD-4

7. Whether this Court has no jurisdiction to try and decide the suit?...OPD-4.

8. Whether the defendant Nos. 1 to 3/counter-

claimants are entitled for the relief of injunction, as prayed for?...OPD/Counter- Claimants.

9. Whether counter-claim of the defendants is not maintainable?...OPP.

10. Relief.

7. After evaluating the evidence, the trial court decreed

the plaintiffs' suit, answering issues No. 1 to 3 and 9 in their

favour and dismissing the counter-claim of defendant Nos. 1 to 3.

Dissatisfied, the appellants (defendant Nos. 1 to 3) filed a first

appeal, challenging the judgment on grounds of erroneous

appreciation of evidence and pleadings, contending that the

findings were based on surmises and conjectures. The first

appeal was dismissed, leading to the filing of the present second

appeal.

8. Perused the impugned judgment and heard counsel

for the parties.

9. In the present case, the defendants filed a single first

appeal against the decreeing of the suit of the plaintiffs and

dismissal of the counter claim of the defendants by the trial court.

It is a settled law that counter claim has effect of a cross-suit and

court can announce a final judgement both on original claim and

on the counter claim. Counter Claim has to be treated as a plaint

and is governed by the rules applicable to the plaint and similarly

the reply filed in answer to counter claim is to be treated as

written statement and is governed by Rules applicable to written

statement.

10. In Ramesh Chand v. Om Raj & Others (RSA No.57

of 2017) it was held that:

(i) A common judgment in consolidated suits can be challenged via a single appeal;

(ii) If two suits are decided by a common judgment but with separate decrees, separate appeals must be filed;

(iii) A common judgment in a suit and counterclaim requires separate appeals, and failure to challenge one results in finality, attracting res judicata;

(iv) If two appeals against a common judgment are filed but one is dismissed (for default, delay, etc.), res judicata applies.

In view of these principles, the first appellate court was correct to hold that the appeal was not maintainable as the plaintiffs failed to file separate appeals against the decreeing of the suit of the plaintiff and dismissal of the counter claim of the defendants.

11. In the aforesaid facts and attending circumstances,

there arises no question of law, much-less a substantial question

of law for consideration of the Court, therefore, the appeal is

dismissed being devoid of any merit. Pending miscellaneous

applications, if any, also stand disposed of.

(Bipin Chander Negi) Judge May 20, 2025 tarun