SATYENDER AND ORS. VERSUS SAROJ AND ORS

 SATYENDER AND ORS. VERSUS  SAROJ AND ORS

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4833 OF 2022
(Arising out of SLP (C) No.948 OF 2018)
 SATYENDER AND ORS. …….APPELLANTS
VERSUS
 SAROJ AND ORS. …….RESPONDENTS
J U D G M E N T
Sudhanshu Dhulia, J.
1. This appeal is against judgment dated 19.07.2017 of the
High Court of Punjab & Haryana given in a Second Appeal (No.
140 of 2009) which was partly allowed by the High Court.
2. The case arises out of the proceedings initiated by the
plaintiffs (respondents herein) for declaration and possession on
an agricultural land. Suit was filed by the plaintiffs, claiming to be
owners of the property, which in total measured 80 Kanals, 19
Marlas. The property is in the revenue village Gagarwas, Tehsil
Loharu, District Bhiwani (Haryana). Their case was that defendant
No. 2 was their tenant who had sub-let the land to his son
2
(defendant No.1), without the consent of the plaintiffs/landlords
and hence, the two defendants were liable to be evicted and the
possession of the land was to be handed over to the plaintiffs. The
plaintiffs additionally had built their case on an assertion that the
land was earlier in possession of one Ram Kaur on which Ganpat
Rai, the father of defendant No. 2 was the tenant. Ganpat Rai
surrendered his tenancy of the disputed land to Ram Kaur in the
year 1976. Later in the year 1994, the plaintiffs had won a suit
against Ms. Ram Kaur and the land which is the subject matter of
the present dispute now belongs to them, hence they have
stepped into the shoes of Ms. Ram Kaur and are now the owners
of the property.
3. Defendant No. 1 (Satyender) is the son of defendant No.2
(Ishwar Singh). The stand taken by defendant No.1 was that he
had no concern with the land in question. The defence set up by
him was that he was born in the year 1966 and hence, he was only
twelve years of age in the year 1978 when the sub-tenancy is
alleged to have been created in his favour, as per the revenue
records. He never cultivated the land and the cultivation was
done by his father and his two uncles, and the entries made in the
revenue record showing him to be a tenant or a sub-tenant are
3
wrong and have been made by the plaintiffs, in collusion with the
revenue officials.
4. Defendant No.2 filed a separate written statement.
According to defendant No. 2, one Indraj was the original owner
of the property, who had given this land in tenancy to defendant
No. 2’s father Ganpat Rai. Indraj died in the year 1976 and was
succeeded by Ms. Ram Kaur. Meanwhile, the father of the
defendant No. 2, Ganpat Rai died in the year 1978 and
consequently he and his two other brothers namely, Sombit and
Om Prakash had jointly inherited the tenancy. Thereafter, all the
three brothers became tenants under Ms. Ram Kaur and they
continued to be in possession of the suit property. They denied
that they were ever tenant of the plaintiffs.
5. In addition to their written statement, a counter claim was
also set up by defendant No. 2. The defendant No.2 claimed in his
written statement that in addition to the Khasra and Killa numbers
given in the plaint, he was also in possession of two other Killa
nos. i.e., 6//18 and 23. In other words, their counter claim on the
above two mentioned plot numbers was in addition to the claim
on the plots as mentioned by the plaintiffs. The suit was ultimately
4
dismissed by the Trial Court on the findings that the plaintiffs
could neither prove their right on the property, nor could they
prove the fact that the defendant No.2 had created a sub-tenancy
in favour of his son, i.e., defendant No.1. The counter claim set up
by the defendant No. 2 was decreed.
6. The first appeal filed by the plaintiffs was also dismissed by
the Appellate Court. The Appellate Court too held that there was
a heavy burden on the appellants to prove that the tenancy of
Ganpat Rai had come to an end in the year 1976 by surrendering
the possession of the disputed land. This could not be proved by
the plaintiffs. It was also the finding by the Lower Appellate Court
that after the death of Ganpat Rai, tenancy was inherited by his
three sons namely, Sombir, Ishwar and Om Prakash. Therefore,
all of them should have been impleaded as party in the case
because the outcome of the suit would affect them as well.
Since they have not been impleaded as a party therefore, the
suit is bad for non-joinder of the necessary parties. Regarding
the counter claim, it was held by the First Appellate Court that
as a natural consequence of dismissal of the suit, the counter
claim of the defendants qua Killa No. 6//18 and 23 was rightly
decreed.
5
7. The matter was taken in second appeal by the plaintiffs. The
second appeal of the plaintiffs was partly allowed. Though the
High Court in the second appeal upheld the findings of the two
Courts on the sub-letting and tenancy and upheld the findings of
the lower courts in favour of the defendants as there was no subletting of the land, yet in the same breath the High Court has
allowed the claim of the plaintiffs on the two plots i.e., 21//3/2 and
7//13 for the reasons that for these two plots though the plaintiffs
had raised their claim and the defendants had not raised any
counter claim on these plot numbers, which went uncontested.
8. In addition, it was also held by the High Court that the
counter claims set up by the defendant (on plot Nos. 6//18 and
23) could not be decreed since the plaintiffs themselves had not
set up any claim whatsoever for these two plots, i.e., Killa No.
6//18 and 23 and therefore under provisions of Order VIII, Rule
6A of the Code of Civil Procedure 1908 (hereinafter referred to as
“CPC”), an independent counter claim having nothing to do with
the plaintiffs can never be allowed.
9. The defendants are now before this Court. The first ground
raised by the counsel for the appellant/defendant before this
6
Court is that the High Court while deciding a second appeal did
not formulate any substantial question of law, which was an
essential requirement under Section 100 of the CPC. The learned
counsel would argue that a second appeal can only be admitted
and heard on a substantial question of law and since no
substantial question of law was formulated nor any arguments
advanced by the parties before the Second Appellate Court (High
Court) as mandated by Section 100 of the CPC, the order of the
High Court is liable to be set aside on this ground alone. This
seemingly attractive argument, however, does not hold any good
in the present case as the subject matter of the present dispute is
from Haryana where the governing provision would be Section
41 of the Punjab Courts Act, 1918 and not Section 100 of CPC. This
was held by a Constitution Bench of this Court in Pankajakshi &
Ors. v. Chandrika & Ors.
1 which was later followed in Kirodi v.
Ram Parkash & Ors.2
10. Section 100 of the CPC as it stands today indeed mandates
that a second appeal would lie before the High Court only on a
substantial question of law, and a Second Appeal has to be heard
1
(2016) 6 SCC 157
2
(2019) 11 SCC 317
7
on the substantial question of law, so formulated by the High
Court. The provision of second appeal as it stands today was
inserted in the CPC by Amendment Act No. 104 of 1976. Prior to
the 1976 amendment, there was no requirement of substantial
question of law. The earlier, i.e., unamended position read as
under: -
“100. Second appeal – (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 to the High Court from every
decree passed in appeal by any Court
subordinate to a High Court on any of the
following grounds, namely:
(a) the decision being contrary to law
or to some usage having the force of
law;
(b) the decision having failed to
determine some material issue of law
or usage having the force of law;
(c) a substantial error or defect in the
procedure provided by this Code or
by any other law for the time being in
force, which may possibly have
produced error or defect in the
decision of the case upon the merits.
(2) An appeal may lie under this section from an
appellate decree passed ex parte.”
Under the Punjab Courts Act, 1918, a similar provision is given as
regards a second appeal. This is in Section 41 of the Act which is
8
in pari materia to the unamended Section 100 of the CPC and
reads as follows: -
“41. Second appeal— (1) An appeal shall lie
to the High Court from every decree passed in
appeal by any Court subordinate to the High
Court on any of the following grounds, namely:
(a) the decision being contrary to
law or to some custom or usage
having the force of law:
(b) the decision having failed to
determine some material issue of
law or custom or usage having the
force of law,
(c) a substantial error or defect in the
procedure provided by the Code of
Civil Procedure 1908 [V of 1908], or
by any other law for the time being
in force which may possibly have
produced error or defect in the
decision of the case upon the merits;
[Explanation. - A question relating to
the existence or validity of a custom
or usage shall be deemed to be a
question of law within the meaning of
this Section]
9
(2) An appeal may lie under this section from
an appellate decree passed ex parte.”

11. Initially, it was held by this Court (in Kulwant Kaur v.
Gurdial Singh Mann3
) that after the 1976 Amendment, Section
100 of the CPC would be applicable in Punjab & Haryana and not
Section 41 of the Punjab Courts Act, 1918 and a second appeal has
to be decided only on a “substantial question of law”. It was held
that after the 1976 Amendment Act, Section 41 of the Punjab
Courts Act, stood repealed. Additionally, it was also held that
Section 41 of the Punjab Courts Act was repugnant to Section 100
CPC in view of Article 254 of the Constitution of India.
12. As referred above, the present Section of the 100 CPC was
inserted in the CPC by the Amendment Act of 1976. Section 97 of
the Amendment Act of 1976 which was relied upon by this Court
in Kulwant Kaur reads as under: -
“97. Repeal and savings. — (1) Any
amendment made, or any provision
inserted in the principal Act by a State
Legislature or a High Court before the
commencement of this Act shall,
except insofar as such amendment or
provision is consistent with the
provisions of the principal Act as
3
(2001) 4 SCC 262
10
amended by this Act, stand
repealed.”
In Pankajakshi (supra) a Constitution Bench held that the
reasoning given in Kulwant Kaur (supra) for holding that Section
41 of the Punjab Courts Act stood repealed was not correct.
Section 97 of Amendment Act of 1976 provides that only such
provisions would stand repealed which were inserted in the
principal Act (i.e., Code of Civil Procedure, 1908), by a State
Legislature or High Court before the commencement of this Act
(i.e., 1976 Amendment Act). As Section 41 of the Punjab Courts
Act was neither an amendment in the principal Act nor a
provision inserted in the principal Act therefore, it would not be
covered by Section 97 of the Amendment Act of 1976, and there
was hence no question of it being repealed under the provisions
of Section 97 of the Amendment Act, 1976.
13. It was further held [in Pankajakshi] that the question of
repugnancy and its application was also not correctly decided in
Kulwant Kaur as Article 254 of the Constitution of India, was not
applicable in that case. Section 254 would be applicable only to
the laws made after the implementation of the Constitution of
India and Section 41 of the Punjab Courts Act is of 1918 vintage
11
and it was not made by a Legislature of the State after the
Constitution of India had come into force. The Punjab Courts Act,
1918 was enacted under the provisions of the Government of India
Act, 1935 and although by Article 3954 of the Constitution of India,
the Government of India Act, 1935 stood repealed yet by virtue of
provisions of Article 372(1)5 of Constitution of India all the laws in
force in the territory of India immediately before the
commencement of the Constitution were to continue in force until
altered or repealed or amended by a competent legislature or
other competent authority. Since Section 41 of the Punjab Courts
Act has not been altered, repealed or amended by State
Legislature of Punjab or Haryana, it will continue to be in force.
14. We may also add here that we are presently concerned with
the laws in the State of Haryana. All the same, the laws as
applicable in Punjab in the year 1918, were also applicable to the
4 Article 395-Repeals The Indian Independence Act, 1947, and the Government of
India Act, 1935, together with all enactments amending or supplementing the latter
Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are
hereby repealed.
5 372(1) Notwithstanding the repeal by this Constitution of the enactments referred to
in Article 395 but subject to the other provisions of this Constitution, all the laws in
force in the territory of India immediately before the commencement of this
Constitution, shall continue in force therein until altered or repealed or amended by
a competent Legislature or other competent authority.
12
present territory of Haryana since it was then a part of the State of
Punjab. Later on, the creation of the new State of Haryana, under
the provision given in Section 88 of the Punjab Re-organization
Act, 1966, the laws applicable in the erstwhile State of Punjab
continued to be applicable in the new State of Haryana.
Furthermore, State of Haryana formally adopted the laws of the
erstwhile State of Punjab, under Section 89 of the Punjab ReOrganisation Act, 1966. Therefore, in the State of Haryana a court
in second appeal is not required to formulate a substantial
question of law, as what is applicable in Haryana is Section 41 of
the Punjab Courts Act, 1918 and not Section 100 of CPC.
Consequently, it was not necessary for the High Court to
formulate a substantial question of law.
15. Be that as it may, though the requirement of formulation of a
substantial question of law was not necessary, yet Section 41 of
the Punjab Courts Act, requires that only such decisions are to be
considered in second appeal which are contrary to law or to some
custom or usage having the force of law or the court below have
failed to determine some material issue of law or custom or usage
having the force of law. Therefore, what is important is still a
“question of law”. In other words, second appeal is not a forum
13
where court has to re-examine or re-appreciate questions of fact
settled by the Trial Court and the Appellate Court. The plaintiffs
had claimed right over certain agricultural land and their case
was that they have the right to be declared the owner of this
property and the possession be handed over to the them, for the
reasons that on this particular property defendants and their
predecessors-in-interest were the tenants of the plaintiffs. Their
case was that defendant No. 2 was their tenant who had sub-let the
property in favour of his son, that is defendant No. 1 and therefore,
the property should be reverted back to the plaintiffs and they
should be declared the owner and should be given the possession
of the property as well. Both the Trial Court as well as the First
Appellate Court had held after evaluating the evidence placed by
the plaintiffs that the defendant No. 2 and his brothers (who were
not even made a party by the plaintiffs) were the tenants on the
property and defendant No.2 had not sub-let the property in
favour of his son that is defendant No. 1 and the revenue entries
being made in this regard in the year 1978 are wrong and without
any basis as there was no order of any revenue authority for
making such an entry. In short, the plaintiffs had failed to prove
their case as owner of the land in dispute. Hence their case of
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declaration and possession was dismissed. The Second Appellate
Court however, quite erroneously, and without any justification,
gave an entirely new finding regarding two Killa Nos. 21//3/2 and
7//13 on which the plaintiffs claimed relief of declaration and
possession, on the same grounds as raised by them for the other
Killa Nos. The pleadings also show that the defendants had made
a general denial of the plaintiffs’ claim for all the plots. Yet, the
High Court held that since the defendants had not made any claim
for plot nos. 21//3/2 and 7//13 and therefore by logic a decree of
declaration of possession ought to have been given to the
plaintiffs for these plots! This reasoning of the second Appellate
Court is erroneous for the simple reason that the burden of proof
was on the plaintiffs to prove their case, which they had failed.
They have not been able to prove to the satisfaction of the Trial
Court as well as the First Appellate Court about their claim of any
kind over this property. Merely because the defendant did not
raise a counter claim on this property it would not ipso facto mean
that a decree ought to have been granted in favour of the
plaintiffs. Plaintiffs have to prove their case on the strength of
their evidence. For this reason, the reasoning given by the
Second Appellate Court for decreeing the claim of the plaintiff for
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plot nos. 21//3/2 and 7//13 is incorrect and to that extent is liable
to be set aside.
16. The other finding of Second Appellate Court regarding the
counter claim of the defendants on Killa Nos. 6//18 and 23 is,
however, correct and is based on right interpretation of Order
VIII, Rule 6A of CPC. From the pleadings of the plaintiffs, it is clear
that they had never raised any claim on Killa No. 6//18 or Killa No.
23. The defendants in their written statement while denying the
rights of the plaintiffs on the land of which particulars had been
given by the plaintiffs, quite ingeniously inserted the two Killa
Nos.6//18 and 23, setting a counter-claim on these plots. The Trial
Court and the First Appellate Court while dismissing the plaintiffs’
suit had allowed this claim for without assigning any reasons. In
fact, this counter claim which was raised by the defendant is
barred under Order VIII, Rule 6A of the CPC. Order VIII, Rule 6A
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 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
16
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 counterclaim.
(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
A counter claim can be set up only “against the claim of the
plaintiffs”. Since there was no claim of the plaintiffs regarding
Killa No. 6//8 and 23, the defendants were barred to raise any
counter claim on these Killa numbers in view of Order VIII, Rule
6A of the CPC as it has nothing to do with the plaintiffs. It is true
that a counter claim can be made by the defendant, even on a
17
separate or independent cause of action (Jag Mohan Chawla &
Anr. v. Dera Radha Swami Satsang & Ors.6
).
 The Legislature permits the institution of a counter claim, in
order to avoid multiplicity of litigation. But then it has certain
limitations such as that the counter claim cannot exceed the
pecuniary limits of the jurisdiction of the court, and that such
counter claim must be instituted before the defendant has
delivered his defence or before the time limit for delivering his
defence has expired. More importantly, such a counter claim
must be against the plaintiff! Evidently, in the present case the
counter claim was not against the plaintiffs. Moreover, as the
plaintiffs had not claimed any right over the property and the Killa
Nos. 6//8 and 23 are not even a part of the suit property described
in the plaint by the plaintiffs. Despite the same, such a claim has
been allowed against the plaintiffs. In fact, we do not find on
record any reply submitted by the plaintiffs against the counter
claim. To be fair, such a counter claim should have been
excluded in terms of Order VIII, Rule 6C of the CPC. Suffice it
to state here that the counter claim set up by the defendants has
6
(1996) 4 SCC 699
18
been rightly rejected by the High Court.
17. The judgment and order dated 19.07.2017 passed by the
High Court to the extent that it has decreed the claim of the
plaintiffs on Killa Nos. 21//3/2 and 7//13 is hereby set aside. This
appeal hence stands disposed of on the aforesaid terms.
…………………………………J.
(UDAY UMESH LALIT)
…………………………………J.
 (S. RAVINDRA BHAT)
.…………………………………J.
 (SUDHANSHU DHULIA)
New Delhi;
August 17, 2022.

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