IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 268/2000 Reserved on:8.10.2009 Decided on: 15.12. 2009 ________________________________________________ Mohinder Lal alias Surinder Lal …Appellant. Versus Rajinder Kumar and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Karan Singh Kanwar, Advocate. For the Respondents :Mr. Rajnish K. Lal, Advocate vice Mr. K.D. Sood, Advocate for respondents No. 1 to 4. Mr. Ajay Mohan Goel, Advocate for respondents No. 6, 8 and 9. Mr. Hoshiar Kaushal, Advocate for respondents No.7 (a) to 7 (d). ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 20.4.1998 passed by the learned Additional District Judge, Sirmaur in CA No. 19-N/13 of 1994 to the extent that it has been decided against the appellant and proforma 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 respondents with a further prayer that counter-claim of the appellant and proforma respondents be decreed. Material facts necessary for the adjudication of this Regular Second Appeal are that respondents No. 1 to 4-plaintiffs and their mother Sukhwanti (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a civil suit for permanent injunction restraining the defendants from interfering in the shop/land comprised in Khasra No. 38. The suit was contested by the defendants. The learned Civil Judge decreed the suit on 28.2.1994. Issue No.4 was also decided against the defendants. The defendants preferred an appeal before the leaned Additional District Judge, Sirmaur. The learned Additional District Judge allowed the appeal and the judgment and decree of the trial court dated 28.2.1994 were set aside. However, in view of the findings on point No.2, the counter-claim of the defendants was also dismissed. The defendants have filed the present Regular Second Appeal only to the extent whereby their counter-claim has been dismissed by the learned first Appellate Court. This Regular Second Appeal was admitted on the following substantial questions of law. 1. “Whether counter-claim put forward by appellant and proforma respondents is not maintainable in view of Article 67 of the Limitation Act, 1963? 2. Whether learned Addl. Distt. Judge has erred in not decreeing the counter-claim of appellant and proforma respondent by mis-construing, misapplying the Article 67 of the Limitation Act, 1963 in the instant case?” 3 Mr. Karan Singh Kanwar has vehemently argued that the judgment to the extent whereby counter-claim of his clients has been dismissed is liable to be interfered with. Mr. Rajnish K. Lal has supported the judgment and decree passed by the first appellate court rejecting the claim of the defendants. Mr. Ajay Mohan Goel and Mr. Hoshiar Kaushal have adopted the arguments of Mr. Rajnish K. Lal. I have heard the learned counsel for the parties and perused the record carefully. Since both the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. The defendants had filed eviction petition No. 16/2 of 1973 under section 14 of the Himachal Pradesh Rent Controller Act, 1971 against Rameshwar Dass and predecessor-in-interest of the plaintiffs Sh. Milkhi Ram. The copy of the petition is Ex.P-5. Primarily it was contended that that Rameshwar Dass was the tenant while Milkhi Ram was inducted as sub-tenant by him. S/Sh. Rameshwar Dass and Milkhi Ram had filed replies Ex.DW-1/C and Ex.DW-1/D. The petition was allowed vide Ex. DW-1/A on 27.11.1973. The execution petition Ex.DW-1/E was filed by the defendants. The execution petition was dismissed for want of prosecution on 5.7.1975 vide Ex.DW-1/G. The learned trial court decreed the suit on 28.2.1994 accepting the plea of the plaintiffs. The learned trial court has dismissed the counter-claim. However, the learned first appellate court has set aside the judgment 4 of the trial court. The learned first appellate court has also rejected the counter-claim preferred by the defendants seeking possession of the suit property. The plaintiffs and contesting defendants had relationship of landlord and tenant. The limitation prescribed for recovering the possession from the tenant by the landlord is 12 years under Article 67 of the Indian Limitation Act. The tenancy was determined on 27.11.1973. The landlords i.e. defendants have failed to recover the same within a period of 12 years. In these circumstances, the learned first appellate court has come to the right conclusion that the counter-claim of the defendants for the recovery of possession of the suit property on the basis of title was hit by section 67 of the Indian Limitation Act. The counter-claim was filed by the contesting defendants on 15.9.1992. The same is beyond the expiry of 12 years from the date of determination of tenancy/eviction order. The learned first appellate court has correctly applied the law while rejecting the counter-claim of the defendants. Accordingly, in view of the aforesaid reasoning, there is no merit in this Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), J. 15.12. 2009. *awasthi*