Karnataka High Court
Rama And Anr vs Babu S/O Chandu Mehtre on 29 May, 2024
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RSA No. 200054 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200054 OF 2019
(DEC/POSS/INJ)
BETWEEN:
1. RAMA S/O LAXMAN DHANGAR
AGE: 56 YRS OCC: AGRICULTURE
R/O: VILLAGE MORKHANDI
TQ: BASAVAKALYAN, DIST: BIDAR.
2. MAHALAPPA S/O LAXMAN DHANGAR
AGE: ABOUT 53 YEARS, OCC: AGRICULTURE
R/O: VILLAGE MORKHANDI
TQ: BASAVAKALYAN, DIST: BIDAR.
...APPELLANTS
(BY SRI BASAVAKIRAN G.R., ADV. FOR
Digitally signed SRI D. P. AMBEKAR, ADVOCATE)
by SWETA
KULKARNI
Location: High AND:
Court of
Karnataka
BABU S/O CHANDU MEHTRE
AGE: 63 YEARS OCC: AGRICULTURE
R/O: VILLAGE MORKHANDI
TQ: BASAVAKALYAN, DIST: BIDAR-585327
...RESPONDENT
(BY SRI RAVI B. PATIL, ADVOCATE)
THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO
(a) ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND
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RSA No. 200054 of 2019
DECREE DATED 26.07.2018 PASSED BY THE SENIOR CIVIL
JUDGE, BASAVAKALYAN, DISMISSING R.A.NO.18/2014 AND
CONFIRMING THE JUDGMENT AND DECREE DATED 04.04.2014
PASSED BY THE CIVIL JUDGE AT BASAVAKALYAN, DISMISSING
O.S. NO.59/2006, WITH COSTS THROUGH OUT; FURTHER
DECREE THE SAID SUIT OS NO.59/2006 AND DISMISS THE
COUNTER-CLAIM OF THE DEFENDANT THEREIN, ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present regular second appeal by the plaintiffs
assailing the judgment and decree of the courts below,
whereby, suit seeking for declaration, recovery of possession,
perpetual injunction and for mesne profit was dismissed and
the counter claim filed by the defendant was allowed declaring
the son of the defendant as owner and possessor of the suit
properties.
2. Parties herein are referred to as per their rankings
before the trial Court for the sake of convenience.
3. Relief of declaration declaring that they are the
absolute owners of suit property bearing Sy.No.50/Ga
measuring 2 acres 17 guntas and for declaration declaring that
they are entitled for recovery of possession of suit property and
further for mesne profits from the date of dispossession and for
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permanent injunction restraining the defendant from alienating
the suit property. The plaintiffs contended that the father of
the plaintiffs was the absolute owner in possession of the suit
property and on his death the plaintiffs have succeeded over
the suit property. That the defendant, without there being any
right, got the name of their father entered in the revenue
records from 1961 - 1962, that the defendant has dispossessed
the plaintiffs illegally.
4. Pursuant to the suit summons issued by the trial
Court, the defendant appeared and contested the suit by filing
written statement inter alia contending that originally Sy.No.51
was measuring 3 acres 24 guntas and earlier Ram S/o Laxman
was owner of half portion measuring 1 acre 33 guntas of
Sy.No.51 and Ambu S/o Khandu was owner of remaining
portion of Sy.No.51 and the name of Ambu was appearing in
the revenue records to the extent of 1 acre 9 guntas of
Sy.No.51 and in the revision settlement those were
renumbered as Sy.No.134/8 and 134/11 and remaining 1 acre
33 guntas which was in the name of Ram S/o Laxman was
given new number Sy.No.134/4. It is stated that Sy.No.50 was
renumbered as Sy.No.133 and Sy.No.51 was renumbered as
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Sy.No.134 as they were adjacent to each other. It is stated
that the father of the plaintiffs Sri Laxman sold his half portion
of Sy.No.51 measuring 1 acre 33 guntas to Ambu S/o Khandu.
The property sold by Laxman to Ambu was bounded as under:
East: Land of Beerappa Satwaji
West: Land of Hanmanth Hotage
North: Land of Bhalchandrarao
South: Land of Jaiwanth,
and after the purchase, name of Ambu has been entered in the
revenue records. It is further stated that there was a partition
between defendant, Chandu and Ambu wherein Sy.No.51 @
134/8 measuring 1 acre 23 guntas and Sy.No.134/11
measuring 34 guntas were allotted to the share of defendant
and the defendant has given the said property to his son
Beerappa and Beerappa is the owner and possessor of the suit
property. It is stated that the plaintiffs by showing wrong
boundaries of the suit property are trying to claim their
ownership over the suit property.
5. The defendant, under the counter claim stated that
his son Beerappa is the owner and possessor of Sy.No.51 alias
134/8 measuring 1 acre 23 guntas and Sy.No.51 alias 134/11
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measuring 24 guntas out of 2 acres 7 guntas with the
boundaries as stated below:
East: Beerappa Shetewadi
West: Land of Hanmanth Phatage
North: Land of Balchandra Rao
South: Land of Jaiwanth
and to declare that Beerappa is the absolute owner of the said
property and consequently restrain the plaintiffs from
dispossessing from suit property.
6. Based on the pleadings, the trial Court framed the
following issues:
"ISSUES
1. Whether the plaintiffs prove that they are lawful
owners and in possession of suit land Sy.No.50/Ga,
measuring 02-Acres 17-Guntas of Morkhandi village
as on the date of filling of this suit?
2. Whether the plaintiffs prove that the defendant is
denying their ownership over the suit land and also
disturbing their peaceful possession over the same?
3. Whether the defendant proves that his son
Beerappa is owner and possessor of land
sy.no.51(old) corresponding new no.134/8,
measuring 01-Acre 23-Guntas, and sy.no.134/11
measuring 24-Guntas of Morkhandi village?
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4. Whether the defendant proves that plaintiffs are
denying ownership and possession of his son
Beerappa over land sy. No.134/8 and 134/11 of
Morkhandi village?
5. Whether the plaintiffs are entitled for the relief
claimed for?
6. Whether the defendant is entitled for the relief
claimed for?
7. What order or decree?
7. In order to substantiate their claim, plaintiff No.1
has examined himself as PW-1, two witnesses as PW-2 and PW-
3 and got marked documents at Exs.P-1 to P-3. On the other
hand, defendant examined himself as DW-1, son Beerappa as
DW-2 and three witnesses as DW-3 to DW-5 and got marked
documents at Exs.D-1 to D-13.
8. The trial Court, on basis of the pleadings, oral and
documentary evidence, held that the plaintiffs have failed to
prove that they are the lawful owner in possession of the suit
property in Sy.No.50/Ga, measuring 2 acres 17 guntas. The
trial Court, while answering issue Nos.3 and 4, held that the
defendant proved that his son Beerappa is the owner and
possessor as per the schedule mentioned in the counter claim
and by the impugned judgment and decree, dismissed the suit
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of the plaintiffs and allowed the counter claim filed by the
defendant.
9. The plaintiffs preferred appeal before the first
appellate Court aggrieved by the judgment and decree in
O.s.No.59/2006. No separate appeal was preferred against the
allowing of counter claim of defendant.
10. The first appellate Court, on re-appreciation of the
entire oral and documentary evidence, has concurred with the
judgment and decree of the trial Court. Aggrieved by the
concurrent findings of the courts below, the present second
appeal by the plaintiffs.
11. Heard Sri Basavakiran G.R., learned counsel
appearing on behalf of Sri D.P. Ambekar, learned counsel for
the appellants and Sri Ravi B. Patil, learned counsel for the
respondent.
12. The suit property is suit land Sy.No.50/Ga
measuring 2 acres 17 guntas of Morkhandi village with the
following boundaries:
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East: Land of Beerappa Mehtre
West: Land of Hanmanth Hotage
North: Land of Bhalachandra
South: Land of Jaiwanth
The plaintiffs sought for declaration, recovery of possession,
perpetual injunction and also for mesne profits in respect of the
suit land. The defendant's counter claim is land Sy.No.51 @
134/8 measuring 1 acres 23 guntas and Sy.No.134/11
measuring 24 guntas out of 2 acres 7 guntas of Morkhandi
village with the following boundaries:
East: Land of Beerappa Shetawadi
West: Land of Hanmanth Phatage
North: Land of Balachandra Rao
South: Land of Jaiwanth
The trial Court framed issue Nos.3 and 4 as to whether the
defendant proved that his son Beerappa is owner and possessor
of land Sy.no.51 corresponding new number 134/8 measuring
1 acre 23 guntas and Sy.No.134/11 measuring 24 guntas of
Morkhandi village and allowed the counter claim filed by the
defendant. In respect of the allowing of counter claim, the
plaintiffs did not prefer any appeal. What was appealed before
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the first appellate Court was the dismissal of the suit of the
plaintiffs. It is relevant to note that the counter claim is a cross
suit and the decree passed in the suit and the counter claim
amounts to two decrees arising from the common judgment
and one appeal preferred against the two decrees is not
maintainable. Sections 96 of CPC provides for an appeal which
reads as under:
"96. Appeal from original decree.--(1) Save where
otherwise expressly provided in the body of this Code or
by any other law for the time being in force, an appeal
shall lie from every decree passed by any Court exercising
original jurisdiction to the Court authorized to hear
appeals from the decisions of such Court.
(2) An appeal may lie from an original decree
passed ex parte.
(3) No appeal shall lie from a decree passed by the
Court with the consent of parties.
(4) No appeal shall lie, except on a question of law,
from a decree in any suit of the nature cognizable by
Courts of Small Causes, when the amount or value of the
subject-matter of the original suit does not exceed ten
thousand rupees."
Order VIII Rule 6-A CPC mainly relates to the counter
claim by the defendants, which reads as under:
"6A. Counter-claim by defendant.--(1) A defendant in a
suit may, in addition to his right of pleading a set-off
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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 but
before 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."
13. The plain reading of Order VIII Rule 6-A CPC
envisages that the 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
but before the defendant has delivered his defence or before
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the time limited for delivering his defence has expired, whether
such counter-claim is in the nature of a claim for damages or
not. Proviso set out in the said order is that the counter-claim
shall not exceed the pecuniary jurisdiction of the Court. Sub-
rule (4) to Order VIII Rule 6-A provides that a counter-claim is
to be treated as a plaint and is to be governed by the rules
applicable to the plaints. Sub-rule (2) to Order VIII Rule 6-A
envisages that a counter-claim is to be treated as a cross suit
so as to enable the Court to pronounce a final judgment in the
same suit, both on original claim and on counter-claim. Sub-
rule (2) and (4) of Order VIII Rule 6-A enable the Court to
pronounce a final judgment in the same suit and the counter-
claim to be treated as plaint as governed by the rules
applicable to the plaint.
14. Section 2 (2) of CPC defines "decree" and Section
96 of CPC, envisages that an appeal shall lie from every decree
passed by any Court. Keeping in mind the aforesaid provisions
of law, once the matter in controversy has received conclusive
determining, the suit results in a decree in favour of the
plaintiffs or in favour of the defendants. In the instant case, the
counter claim has been adjudicated and decided on merits and
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the claim of the defendant has been allowed and final order
determining the rights of the parties has been adjudicated by
the trial Court and therefore, well within the definition of decree
under Section 2 (2) read with Section 47 of CPC and was an
appealable order. Considering the facts of the instant case with
regard to the claim of the plaintiffs and the claim with regard to
counter-claim made by the defendant, the appellants ought to
have filed a separate appeal against the decreetal of counter-
claim, which he had suffered, since both are independent
claims and the same have been adjudicated.
15. The Apex Court in the case of Rajni Rani and
Another vs. Khairati Lal and Others1 and also in the case of
R. Rathinavel Chettiar and Another vs. V. Sivaraman and
Others2 under similar circumstances as in the present case, at
para No.16 has held that there may be situations where an
order can get the status of a decree. A Court may draw up of a
formal decree or may not, but if by virtue of the order of the
court, the rights have finally been adjudicated, irrefutably it
would assume the status of a decree and further held that as is
(2015) 2 SCC 682
(1999) 4 SCC 89
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evincible, in the case at hand, the counterclaim which is in the
nature of a cross-suit has been dismissed and nothing else
survives for the defendants who had filed the counterclaim and
therefore, the Apex Court held that the order passed by the
trial Court has the status of a decree and the challenge to the
same has to be made before the appropriate forum where
appeal could lay by paying the requisite Court fee. In view of
the detailed discussion by the Apex Court in the case of Rajni
Rani and Rathinavel stated supra, the specific decree drawn
by the trial Court at the time of the decreetal of the counter
claim, the plaintiffs ought to have filed a separate appeal and
the single appeal would not have been maintainable before the
First Appellate Court.
16. Accordingly, the single appeal before the first
appellate Court was not maintainable. The decree in the
counter-claim has attained finality. The son of the defendant is
declared as owner in possession of the schedule property in the
counter-claim. The boundaries mentioned in the plaint to the
suit property and the boundaries in the counter-claim are
same. The trial Court has rightly dismissed the suit of the
plaintiffs and allowed the counter-claim filed by the defendant.
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The plaintiffs have preferred the appeal against the dismissal of
the suit and against the allowing of the counter-claim, no
appeal is preferred by the plaintiffs and the same has attained
finality. The manner in which the Courts below have
considered the entire oral and documentary evidence and
arrived at a conclusion that the plaintiffs are not entitled for
declaration, this Court is of the considered view that the same
does not warrant any interference and no substantial question
of law arises for consideration.
17. For the foregoing reasons, this Court pass the
following:
ORDER
The Regular Second Appeal is dismissed. The judgment
and decree of the Courts below stand confirmed.
Sd/-
JUDGE
swk
CT: VD
