[Cites 13, Cited by 0]
Madhya Pradesh High Court
Bhaiyalal & Anr. vs Gyani Chand & Anr. on 18 March, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:10012
1 FA-56-2003
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 18 th OF MARCH, 2026
FIRST APPEAL No. 49 of 2003
GYANI CHAND (DIED) THROUGH LRS
Versus
BHAIYA LAL AND OTHERS
Appearance:
Shri Anand V. Bhardwaj, Advocate for the appellants.
Shri N.K.Gupta, Senior Advocate with Shri Saket Sharma, Advocate for the
respondents.
WITH
FIRST APPEAL No. 56 of 2003
BHAIYALAL & ANR.
Versus
GYANI CHAND (DIED) THROUGH LRS
Appearance:
Shri N.K.Gupta, Senior Advocate with Shri Saket Sharma, Advocate for appellants.
Shri Anand V. Bhardwaj, Advocate for respondents.
JUDGMENT
By this common judgment, F.A. No.56/2003 filed by Bhaiyalal and Harnam
Singh, who are respondent Nos.1 and 2 in F.A. No.49/2003 shall also be decided.
2. Both the appeals have been filed, under S.96 of CPC, against the
judgment and decree dated 28/11/2002 passed by I Additional District Judge,
Guna in Civil Suit No.33A/87.
3. F.A. No.49/2003 has been filed by the plaintiff against partial dismissal
of their suit, as well as, decree by which counter-claim in part was allowed against
the plaintiff. Similarly, F.A. No.56/2003 has been filed against the partial decree of
NEUTRAL CITATION NO. 2026:MPHC-GWL:10012
2 FA-56-2003
suit and partial dismissal of counter-claim. Thus, F.A. No. 49/2003 has been filed
by plaintiff whereas F.A. No.56/2003 has been filed by defendant Nos. 1 and 2.
4. Facts necessary for disposal of present appeal, in short, are that plaintiff
filed a suit for possession and mesne profit at the rate of Rs. 20/- per day as well as
for declaration that reply dated 9/2/1987 sent by defendants to notice dated
4/2/1987 be declared as null and void. It was the case of the plaintiffs that two-
storeyed house, boundaries of which are mentioned in paragraph 1 of the plaint,
situated in Village Aaron, Tahsil Aaron, District Guna is in the exclusive
ownership of plaintiff. In the intervening night of 2nd and 3rd of January, 1987,
defendants along with other armed persons came to the house of plaintiff and
defendant No.3 broke open the lock of the house and defendant No.1 put his own
lock. Accordingly, it was pleaded that defendants have illegally dispossessed the
plaintiffs. Plaintiff lodged the report against the defendants on 3/1/1987 but no
help was given by the Police. Complaints were also made to Senior Officers but it
did not yield any result. Therefore, by notice dated 4/2/1987, plaintiff had
requested the defendants to return the possession of house within a period of 3
days and till possession is returned back, plaintiff also claimed mesne profit at the
rate of Rs.20/- per day from 2/1/1987. Defendants sent false reply to the notice
and by their reply dated 9/2/1987 they denied taking illegal possession . It was
also mentioned in the reply that on 27/12/1985, plaintiff had taken a loan of
Rs.90,101/- from them and on the very same day a mortgage deed was executed in
favour of defendants through the brother of plaintiff namely Kevalchandra. It was
claimed that the reply sent by defendants to notice dated 4/2/1987 is based on false
averments. In fact, defendants have taken illegal possession of house in question in
the intervening night of 2nd and 3/1/1987. It was claimed that on 27/12/1985,
neither plaintiff had taken loan of Rs.90,101/- nor had executed any mortgage
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3 FA-56-2003
deed. Even possession was also not handed over. So far as execution of mortgage
deed by Kevalchandra, who is brother of plaintiff, is concerned, it was claimed
that Kevalchandra had separated himself from the plaintiff and is residing and
running a business separately. It was once again pleaded that neither plaintiff had
taken loan of Rs.90,101/- on 27/12/1985 nor executed any mortgage deed through
his brother Kevalchandra. The mortgage deed dated 27/12/1985 is a forged
document. Thus, it was claimed that defendants had taken illegal possession of the
house in question in connivance with Kevalchandra.
5. The defendants filed their written statement and denied that possession
was taken illegally in the intervening night of 2nd and 3rd January 1987. It was
claimed that on 27/12/1985, plaintiff had taken a loan of Rs. 90,101/- from
defendant Nos.1 and 2 and by way of security of loan, he had handed over the
possession of the house in dispute to the defendants. A mortgage deed was also
executed in favor of Harnam Singh by plaintiff through his brother Kevalchand
and plaintiff also signed the same. The plaintiff had also agreed that he would
repay the mortgage amount which has not been done. The defendants are in
possession of the house in dispute from 27/12/ 1985.
6. A counter-claim was also filed by the defendants for recovery of
mortgage amount of Rs.90,101/- and it was prayed that in case if the counter claim
is allowed, then the defendants would pay the court-fee on the decretal amount. It
was further claimed by defendants that when the plaintiff did not repay the
mortgage amount, then with the permission of Kevalchand and the plaintiff,
defendant Nos.1 and 2 had carried out the construction work on the second floor of
the house and had spent Rs.1,50,000/-, but it appears that no prayer for refund of
said amount was made in the counter-claim, and no court-fee was paid for the said
NEUTRAL CITATION NO. 2026:MPHC-GWL:10012
4 FA-56-2003
relief.
7. In view of the averments made by defendants in the written statement as
well as the counter-claim, the plaintiff amended his plaint and denied that the
defendants had spent Rs.1,50,000/- with the consent of the plaintiff for carrying
out any construction/renovation work in the house. It was also denied that any
consent was given by Kevalchand for said purpose and it was claimed that even
otherwise Kevalchand had no right to give such consent.
8. The trial Court after framing issues and recording evidence partially
decreed the suit and partially decreed the counter claim. It was held by the trial
Court that on 27/12/1985, plaintiff had taken a loan of Rs. 90,101/-, but it was held
that defendants have failed to prove that possession of the house was also given by
the plaintiff at that time. However, the possession of defendants was found proved.
Accordingly, it was held that upon payment of Rs. 90,101/- by the plaintiff to
defendant No.1, defendants shall hand over the vacant possession of the house to
the plaintiff. So far as the interest on the mortgage amount of Rs. 90,101/- is
concerned, it was held by the trial Court that since the defendants are in possession
of the house in question, therefore they are not entitled for any interest and it was
held that the defendants have taken illegal possession of the house in question after
breaking open the lock of the plaintiff. So far as the additional construction raised
by defendants is concerned, it was held that since defendants had illegally taken
possession of the house in question and carried out the construction work without
written consent of the plaintiff, therefore defendants are not entitled for any
amount which they have spent for raising construction and, thus a decree was
passed to the effect that plaintiff shall repay Rs. 90,101/- within a period of two
months to defendant No.1 and defendants shall hand over the vacant possession of
the house to the plaintiff within a period of two months. Thus the suit filed by the
NEUTRAL CITATION NO. 2026:MPHC-GWL:10012
5 FA-56-2003
plaintiff for delivery of possession has been decreed, but the prayer for mesne
profit was denied. Similarly, the counter-claim filed by defendant for recovery of
Rs.90,101/- was decreed. However, the claim of defendants for recovery of the
amount spent by them on the construction was denied.
9. Plaintiff Gyanichand died during the pendency of these appeals and
accordingly his legal representatives were brought on record. Smt. Kamlabai, who
was the widow and one of the legal representative of Gyanichand also died during
the pendency of appeals and her name was deleted and, therefore, the children of
Gyanichand are prosecuting the appeal.
10. Challenging the judgment and decree passed by the trial Court by which
the suit was partially dismissed, it is submitted by counsel for appellants/plaintiff
that plaintiff is also entitled for mesne profits which have been denied. By
challenging the decree passed in counter-claim, it was submitted that the trial
Court has wrongly relied upon the agreement (Ex.D/3) to hold that plaintiff had
taken a loan of Rs.90,101/- from the defendant, therefore, it was submitted that
decree for refund of Rs.90,101/-is bad.
11. In fact, by filing this singular appeal, plaintiff has also challenged the
decree passed by the trial Court in the counter-claim.
F.A. No. 56/2003 .
12. Challenging the rejection of their counter-claim, it was submitted by
counsel for appellants/ defendants that defendants are also entitled for the cost
incurred by them for raising construction/ improvement in the property in dispute
and are also entitled for interest on Rs.90,101/-.
13. Heard, learned counsel for the parties.
14. The first question for consideration is as to whether single appeal filed
NEUTRAL CITATION NO. 2026:MPHC-GWL:10012
6 FA-56-2003
by plaintiff against the partial dismissal of suit and partial decree of counter-claim
is maintainable or not ?
15. 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 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
NEUTRAL CITATION NO. 2026:MPHC-GWL:10012
7 FA-56-2003
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 & 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
NEUTRAL CITATION NO. 2026:MPHC-GWL:10012
8 FA-56-2003
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, nonf iling of appeal against
one shall attract bar of the principles of resjudicata 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. 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.
NEUTRAL CITATION NO. 2026:MPHC-GWL:10012
9 FA-56-2003
(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, 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."
16. Thus, it is clear that although the case might have been decided by a
single judgment, but where the counter claim filed by the defendant has been
decreed then it amounts to a separate decree and separate first appeal should have
been filed. In the present case, as already pointed out, plaintiff has filed F.A. No.
49/2003 against non grant of relief of mesne profits as well as against the decree
NEUTRAL CITATION NO. 2026:MPHC-GWL:10012
10 FA-56-2003
for refund of Rs.90,101/-. So far as non grant of mesne profits is concerned, it can
be said that the suit filed by the plaintiff in that regard was dismissed but so far as
the decree for refund of Rs.90,101/- is concerned, it is a decree passed in the
counter-claim filed by defendants. Under these circumstances, the appellant
should have filed two different appeals i.e. one against the dismissal of his suit and
another against the partial decree of counter claim, but only a singular appeal has
been filed. If this appeal is treated as an appeal against dismissal of his claim for
mesne profits, then the decree for refund of Rs.90,101/- would remain intact and if
this appeal is treated as an appeal against the counter-claim, then the grant of
decree for possession subject to payment of Rs.90,101/- can be considered.
17. Thus, the moot question for consideration is as to whether the present
appeal can be treated as an appeal against the decree passed in the counter-claim or
not. The plaintiff had valued his suit at Rs.50,000/- for return of possession and for
the purposes of declaration, the suit was valued at Rs.300/- and in all for the
purposes of valuation, the suit was valued at Rs.50,300/- and a court fee of
Rs.4505/- was paid. In the present appeal also, the appellant has paid the court fee
of Rs.4505/- only. No court fees on the decree by which the plaintiff has been
directed to refund an amount of Rs.90,101/- has been paid. In fact, decree for
possession was already in favor of the plaintiff, therefore the plaintiff should have
paid the court-fee in accordance with the decree for refund of Rs.90,101/- passed
against the plaintiff as well as against the denial of mesne profit, but that has not
been done.
18. Under these circumstances, it is held that the appeal filed by
appellant/plaintiff i.e. FA No.49/2003 cannot be treated as an appeal against the
decree passed in the counter claim. Since the court-fee has not been paid in
accordance with subject matter of appeal and no application under section 149 of
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11 FA-56-2003
CPC was ever filed by plaintiff/appellants, therefore the appeal cannot be
considered at all.
19. Under these circumstances, F.A. No.49/2003 is hereby dismissed.
F.A. No. 56/2003 .
20. Although by counter-claim, defendants had prayed for recovery of
Rs.90,101/- but did not pray for refund of Rs.1,50,000/- which according to the
defendants were spent for raising construction on the first floor. The defendants
have preferred this appeal against non-grant of decree for refund of expenses, as
well as, against non-grant of interest on Rs.90,101/-. It was the case of the
defendants that the plaintiff had taken a loan of Rs.90,101/- and in lieu thereof,
plaintiff had given the vacant possession of the house in question to the
defendants. However, the trial Court has come to a conclusion that there was no
declaration in the agreement (Ex.D/3) to the effect that the possession of the house
in question is being delivered by way of security but it was merely mentioned in
the agreement (Ex.D/3) that the plaintiff is mortgaging the house in question.
There are 5 types of mortgages and it was nowhere mentioned that the mortgage is
usufructuary mortgage and the possession of the house is also being given to the
defendants. Thus the defendants have failed to prove that usufructuary mortgage
was ever created by the plaintiff in favor of the defendants and possession of the
house in question was ever given to the defendant in lieu of mortgage amount. It is
the case of the plaintiff that in the intervening night of 2nd and 3/1/1987,
defendants had forcibly taken possession of the house in question. Therefore, the
trial Court rightly did not award any interest on the amount of Rs.90,101/-. So far
as non grant of expenses incurred by defendants in raising
construction/improvement in the house in question is concerned, it is suffice to
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12 FA-56-2003
mention here that in counter-claim no such relief was claimed and no court-fee
was paid on the same. Even in this appeal, no court-fee for recovery of
Rs.1,50,000/- has been paid.
21. Under these circumstances, this Court is of considered opinion that no
case is made by defendants/appellants in F.A. No.56/2003 warranting
interference.
22. No other argument is advanced by counsel for the parties.
23. Accordingly, judgment and decree dated 28/11/2002 passed by I
Additional District Judge, Guna in Civil Suit No.33A/87, is hereby affirmed.
24. F.A. No.49/2003 and F.A. No.56/2003 are hereby dismissed.
25. No order as to costs.
(G. S. AHLUWALIA)
JUDGE
(and)
