Madhya Pradesh High Court
Divakar Rao vs Sateesh (Deleted) Through Lrs Smt ... on 1 August, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:16274
1 SA-255-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 1 st OF AUGUST, 2025
SECOND APPEAL No. 255 of 2008
DIVAKAR RAO
Versus
SATEESH (DELETED) THROUGH LRS SMT SNEHALATA DAUNGRA
@ VANDNA DAUNGRE AND OTHERS
Appearance:
Shri Tej Singh Mahadik - Advocate for appellant.
Shri Yogesh Singhal - Advocate for respondents.
ORDER
This Second Appeal under Section 100 of CPC has been filed against
the judgment and decree dated 20.02.2008 passed IV Additional District
Judge, Gwalior in Regular Civil Appeal No.49A/2006 by which appeal filed
by appellant has been dismissed.
2. The facts necessary for disposal of the present appeal, in short, are
that plaintiff filed civil suit for declaration of title and permanent injunction
thereby challenging the registered partition deed (Ex.P/1) on the ground that
father of appellant was not in a fit state of mind to participate in the partition
proceedings. A counter claim was filed by defendant No.6/ Smt. Aruna
Govind Dongre and it was prayed that possession of property marked in blue
lines in a map attached to the counter claim be given to the respondent No.6.
3. Trial Court after framing the issue and recording evidence dismissed
the suit filed by appellant and decreed the counter claim.
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4 . Being aggrieved by judgment and decree passed by Trial Court,
appellant preferred a civil appeal i.e. under Section 96 of CPC and by
impugned judgment and decree, appeal filed by appellant was dismissed.
5 . Challenging the judgment and decree passed by Court below, it is
submitted by counsel for appellant that both the Courts below have failed to
see that Madhavrao Dongre was not in a fit state of mind to participate in the
partition proceedings, therefore, registered partition deed (Ex.P/1) is null and
void. It is further submitted that Trial Court had committed material illegality
by decreeing the counter claim. However, it was fairly conceded that no
separate appeal against judgment and decree passed in the counter claim was
filed by appellant.
6. Heard the learned counsel for appellant.
7 . It is fairly conceded by counsel for appellant that no medical
prescription was filed by appellant to show that his father Madhovrao
Dongre was suffering from any physical and mental ailment. Further
partition deed (Ex.P/1) is a registered document. Therefore, a presumption
can be drawn that sub-registrar must have performed his duties in accordance
with law and must have verified from the executants about the contents of
partition deed. As the appellant has miserably failed to prove that Madhavrao
Dongre was suffering from any mental and physical ailment, therefore,
Courts below did not commit any mistake by recording the concurrent
findings of fact that partition deed (Ex.P/1) was executed by Madhavrao
Dongre in full senses and he was not suffering from any physical and mental
ailment.
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8 . So far as the question of decree passed in the counter claim is
concerned, it is contended by counsel for appellant that no separate decree
was passed by Trial Court in the counter claim.
9 . Now the only question for consideration is as to whether a
composite and single appeal can be filed against judgment and decree passed
in the civil suit as well as judgment and decree passed in the counter claim or
not? Counter claim is always treated to be separate suit and therefore,
counter claim might have been decided by common judgment and decree
passed by Trial Court, but a separate appeal is required to be filed against the
judgment and decree passed in the counter claim.
10. This Court in the case of Baboolal Vs. Kishanlal And Others decided
on 18.06.2025 in Second Appeal No.401/2006 has held as under:-
"11. The Supreme Court in the case of Rajni Rani And Another Vs.
Khairati Lal And Others reported in (2015) 2 SCC 682 has held as under:
12. From the aforesaid enunciation of law, it is manifest that
when there is a conclusive determination of rights of parties upon
adjudication, the said decision in certain circumstances can have
the status of a decree. In the instant case, as has been narrated
earlier, the counterclaim has been adjudicated and decided on
merits holding that it is barred by principle of Order 2 Rule 2
CPC. The claim of the defendants has been negatived. In Jag
Mohan Chawla v. Dera Radha Swami Satsang [(1996) 4 SCC
699] dealing with the concept of counterclaim, the Court has
opined thus : (SCC p. 703, para 5)
"5. ... is treated as a cross-suit with all the indicia of
pleadings as a plaint including the duty to aver his cause
of action and also payment of the requisite court fee
thereon. Instead of relegating the defendant to an
independent suit, to avert multiplicity of the proceeding
and needless protection (sic protraction), the legislature
intended to try both the suit and the counterclaim in the
same suit as suit and cross-suit and have them disposed of
in the same trial. In other words, a defendant can claim
any right by way of a counterclaim in respect of any cause
NEUTRAL CITATION NO. 2025:MPHC-GWL:16274
4 SA-255-2008
of action that has accrued to him even though it is
independent of the cause of action averred by the plaintiff
and have the same cause of action adjudicated without
relegating the defendant to file a separate suit."
17. Consequently, the appeal is allowed and the order passed by
the High Court is set aside. However, as we are annulling the
order on the ground that revision was not maintainable, liberty is
granted to the respondents to prefer an appeal before the
appropriate forum as required under law. We may hasten to add
that we have not expressed any opinion on the merits of the case.
There shall be no order as to costs.
12. The High Court of Himachal Pradesh in the case of Sh. Prakash
Chand, deceased through his LRs. Vs. Anjani and others decided on
20.09.2022 passed in Regular Second Appeal No.92/2020 has held as
under:
6. Record demonstrates that against the dismissal of the suit and
the decree of the CounterClaim, plaintiffs preferred only one
single appeal, i.e. Civil Appeal No.14J of 2016, which was
dismissed by the Court of learned Additional District JudgeII,
Kangra at Dharamshala, District Kangra, H.P., vide judgment
and decree dated 04.12.2019, by holding as under:
"19. In Parso versus Dumnu Ram and others 2017(3) Shim.
Law Cases 1270, while deciding the substantial question of
law, "whether one single appeal filed by plaintiff against the
judgment and decree dated 30.09.2005 passed by the Court
of learned Civil Judge (Sr. Divn.) Chamba, in Civil Suit
No.38 of 2021 was maintainable in view of the fact that
vide its judgment and decree dated 30.09.2005, learned trial
Court while dismissing the suit filed by the plaintiff had
decreed the counter claim filed by the defendant", the
Hon'ble High Court on relying upon the judgments of the
Hon'ble Supreme Court Court while answering this
substantial question of law, has held that the single appeal is
not maintainable.
20. In the present case also, the plaintiffs/ appellants have
also field the single appeal against the dismissal of the suit
of the plaintiffs and decreeing of the counter claim of the
defendant No.3. In view of the law cited supra and in the
present facts and circumstances of the case, single appeal is
not maintainable. Accordingly, point no.1 is decided in the
negative and against the appellants/ plaintiffs.
Final Order:
21. In view of my above said discussion supra and findings,
the present appeal is dismissed being not maintainable and
the impugned judgment & decree dated 15.2.2016, passed
by learned Civil Judge (Jr. Div.), Jawali, in Civil Suit
No.97/2006, titled as "Parkash Chand & Ors. v. Anjali &
NEUTRAL CITATION NO. 2025:MPHC-GWL:16274
5 SA-255-2008
Ors." and Counter Claim No.23/16/2006, titled as "Rattan
Chand v. Parkash Chand & Ors." is affirmed and upheld.
Pending application, if any, is disposed off accordingly.
The parties are left to bear their own costs. Decree sheet be
drawn accordingly. Record of learned court below be
returned alongwith copy of judgment of this Court. The file
of this Court after its due completion be consigned to
Record Room.
11. Incidently, this issue recently was the subject matter of a
reference before this Court and the Hon'ble Division Bench of
this Court in RSA No.57 of 2017, titled Shri Ramesh Chand
Versus Om Raj & others and other connected matters , decided
on 17.05.2022, has held 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 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 resjudicata but also
waiver and estoppal 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, nonfiling 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
NEUTRAL CITATION NO. 2025:MPHC-GWL:16274
6 SA-255-2008
the purpose of attracting principles of res judicata. 43. In
view of the position of law delineated hereinabove, the
judgment passed by this Court in RSA No.561 of 2005,
titled Pohlo Ram vs. Jindu Ram and others decided on
28.10.2005 cannot be held to have laid down good law
whereas judgments passed in (i) Smt. Satya Devi vs. Partap
Singh and others, AIR 2006 HP 75 and (ii) H.P. State
Forest Corporation through its Divisional Manager vs.
Kahan Singh, 2017(1) Him. L.R. 36 and in (iii) Mohan
Singh vs. Inder Singh & others 2017(1) Him. L.R. 368, are
held to have been decided correctly."
Thus, it was held that single appeal against the dismissal of suit and
decree of counter-claim is not maintainable and if the counter-claim is
not challenged, then its finding would become final and would operate
as res judicata .
13. Similar view has been taken by Division Bench of High Court of
Himachal Pradesh in the case of Shri Ramesh Chand Vs. Om Raj and
others decided on 17.05.2022 passed in Regular Second Appeal
No.57/2017 in which it has been held 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 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 resjudicata but
NEUTRAL CITATION NO. 2025:MPHC-GWL:16274
7 SA-255-2008
also waiver and estoppal 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.
(Emphasis supplied)
14. Similar view has been taken by the High Court of Kerala in the
case of Girija Vs. Ranjan in Regular Second Appeal No.14/2015. The
High Court of Uttarakhand in the case of Ghanshyam Singh and others
Vs. Narendra Singh decided on 22.07.2022 in Second Appeal
No.76/2022 has also taken the same view and held as under:
"41. Hence, for the aforesaid reasons, this Court is of the view
that one composite Appeal as against the two independent and
distinct decrees, rendered in an independent proceeding where
the counterclaim has to be treated as an independent suit would
not be tenable."
11. Admittedly, no civil appeal was filed by appellant under Section
96 of CPC against the decree passed in the counter claim. Furthermore, no
separate appeal has been filed under Section 100 of CPC against the decree
passed in the counter claim.
12. Under these circumstances, this Court is of considered opinion that
appellant himself has allowed the decree passed in the counter claim to attain
finality.
13. No other argument is advanced by counsel for appellant.
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1 4 . As no substantial question of law arises in the present appeal,
accordingly, judgment and decree dated 20.02.2008 passed IV Additional
District Judge, Gwalior in Regular Civil Appeal No.49A/2006 is hereby
affirmed. This second appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Rashid
