IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.157 of 1998 with Cross Objections No.94 of 1999 Judgment reserved on : 6.4.2010 Date of decision : 20.5.2010 ____________________________________________________ Balbir Singh …Appellant. Versus Smt. Kinzom ( deceased) …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? Yes For the appellant : Mr. Anand Sharma, Advocate. For the Respondent : Mr. K.D. Sood, Advocate. Kuldip Singh, J The plaintiff has come in appeal against judgment, decree dated 17.1.1998 passed by learned District Judge, Kullu in Civil Appeal No.21/96, partly affirming and partly modifying judgment decree dated 30.3.1996 passed by learned Senior Sub Judge, Kullu in Civil Suit No.160/90 and 80/95. The judgment shall dispose of RSA No.157 of 1998 and Cross-Objections No.94 of 1999. 2. The facts in brief are that the appellant had filed a suit for declaration with consequential relief of injunction alleging that land measuring 3-1 bighas, Phati Soil, Kothi Barshal (for short suit land) is recorded in ownership and possession of respondent by virtue of grant of patta as nautor and mutation No.2363 was sanctioned on 15.6.1990. _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 The appellant has alleged that he is in adverse possession of the suit land through his father since the year 1955. The father of the appellant had planted fruit bearing trees. The appellant has inherited the estate of his father after his death. The suit land is adjacent to ancestral land of the appellant. The possession of the suit land was never delivered to respondent on the basis of nautor grant. The respondent had started interference on the suit land. In these circumstances, the suit was filed. 3. The suit was contested by respondent, in which several preliminary objections such as maintainability, resjudicata in view of decision dated 1.1.1987 in CWP No.457/85, estoppel, necessary parties, suppression of material facts, lack of notice under Section 80 CPC to the State, maintainability as well as competency of the appellant to file suit, lack of cause of action, were taken. On merits, respondent has pleaded her possession on the suit land. She has pleaded that she had raised orchard on the suit land. The appellant has no concern with the suit land and he has no right, title or interest in the suit land. The alleged adverse possession of appellant was denied. 4. The further case of the respondent is that the suit land was allotted to respondent on 19.4.1978 under the 1975 Scheme and the possession was delivered to her. Moti Ram father of the appellant had filed a revision against the grant made in favour of respondent on the ground that she was not a permanent resident of District Kullu and she was not landless lady. The Collector had cancelled the grant and ordered the Tehsildar to initiate eviction proceedings against 3 respondent. The respondent filed writ petition challenging the cancellation of grant. During the pendency of the writ petition Moti Ram had died and his legal representatives including appellant were brought on record. They contested the writ petition. The High Court decided the writ petition on 1.1.1987. The appellant filed fresh revision under Rule 9-A of the 1975 Scheme which was dismissed by the Collector on 30.6.1989 and the grant made in favour of respondent was held valid. Thereafter mutation No.2363 dated 15.6.1990 was attested in favour of the respondent. The respondent prayed for dismissal of the suit and also prayed that in case it is found that appellant had succeeded in dispossessing the respondent from whole or any part of suit land then possession of the same on the basis of title may be ordered to be delivered to the respondent by way of counter- claim. 5. In the replication the appellant asserted his case and denied the case set up by respondent. On 25.7.1994 the suit of the appellant was decreed by the learned trial Court and he was held owner of suit land by way of adverse possession. The respondent was restrained from interfering in ownership and possession of appellant over the suit land. The respondent filed appeal against judgment, decree dated 25.7.1994, the learned Addl. District Judge allowed the appeal on 8.5.1995 and set aside the judgment, decree dated 25.7.1994 and remanded the case for fresh disposal after taking on record written statement of appellant in answer to counter claim. In this way, matter went back to the trial Court. On the pleadings of the parties, the following issues were framed by the trial Court:- 4 1. Whether the plaintiff has acquired title to the suit land by adverse possession? ..OPP 2. Whether the plaintiff is entitled to the relief of injunction? ..OPP 3. Whether the suit is barred by principle of resjudicata? ..OPD 4. Whether the plaintiff is estopped from instituting the suit by his act and conduct? …OPD 5. Whether the suit is bad for non-joinder? OPD 6. Relief. After remand, the following issue was framed:- (i) If issue No.1 is not proved, whether the defendant is entitled to decree of possession as counter-claim of the suit land as alleged? ..OPD The issues No.1,2,3, and 5 were answered in negative, issues No.4, (i) were answered in affirmative and suit of the appellant was dismissed whereas counter-claim of the respondent was decreed by learned Senior Sub Judge on 30.3.1996. The appellant filed appeal against judgment, decree dated 30.3.1996. The learned lower Appellate Court upheld judgment, decree dated 30.3.1996 dismissing the suit of the appellant but set aside the judgment, decree dated 30.3.1996 allowing the counter claim of the respondent. 6. The appellant has assailed judgment, decree dated 17.1.1998 in the present appeal in which the respondent has filed cross-objections. The appeal has been admitted on following substantial questions of law:- 1. Whether learned Courts below ignored material documents on record, more especially Ex.PW-2/B, Ex.PW-3/A, Ex.PW- 3/B and Ex.PW-3/D? 2. Whether the Courts below erred on relying upon the decision of Civil Writ Petition No.457/95 when the decision was not on merits? 5 3. Whether the written statement filed by the defendant can be construed as a counter-claim? 7. The cross-objections have been admitted on following substantial question of law:- “That material evidence has been misconstrued. It had been rightly found that the land had been allotted to Kinzom and the appellant was not in adverse possession of the property, the court has erred in law in not allowing the counter claim on the basis of the title of the defendant? 8. I have heard Mr. Anand Sharma, learned counsel for the appellant and Mr. K.D. Sood, learned counsel for the respondent/cross-objector. It has been submitted on behalf of the appellant that two Courts below have misconstrued and misinterpreted oral and documentary evidence on record while dismissing the suit of the appellant. The Courts below have erred in relying judgment dated 1.1.1987 in CWP No.457/85 of the High Court. The Courts below have not appreciated that there is no legally constituted counter-claim. In brief, it has been submitted on behalf of the appellant that the appellant has proved his adverse possession on the suit land. The learned counsel for the respondent has supported the impugned judgment, decree upholding the dismissal of the suit of the appellant but has submitted that learned lower Appellate Court has erred in not allowing the counter-claim of respondent on the basis of title. 9. The Substantial questions of law Nos. 1 to 3 and substantial question of law in cross-objections are interconnected and can be disposed of conveniently collectively; therefore, all of them are taken up for disposal. 6 10. Ex.PW-2/B is the copy of report dated 4.4.1998 of Girdwar who in the report has given the reference of statements of Balbir Singh and deceased Kinzom as well as statements of Bartandaran. He has reported perhaps most of the nautor land of Kinzom is in possession of Balbir Singh. Ex.PW-3/A is the joint statement of Bartandaran who have stated that Balbir Singh is in possession of land right from very beginning which has been allotted to Kinzom by way of nautor. Ex.PW-3/B is the statement of Kinzom in which she has stated that she was granted land by way of nautor. Balbir Singh is taking the crop of apples from the trees situate on that land. In this context she has stated that land was not in her possession. There is no document Ex. PW-3/D on record. The Ex.DB is the order dated 30.6.1989 passed by Deputy Commissioner setting aside the order dated 3.10.1981 of the then Collector, Kullu and revived the order of Tehsildar, Kullu dated 19.4.1978 granting nautor to Kinzom. Ex.PA is the mutation No.2363 dated 15.6.1990 which was attested on the basis of order dated 30.6.1989 of the Deputy Commissioner (Collector), Kullu. Ex.DC is the copy of writ order dated 1.1.1987 in CWP No.457/85, quashing earlier order dated 3.10.1981 of the Collector and remanding the case to Collector. 11. The objection of appellant before the Collector after remand by the High Court was that Kinzom was not permanent resident of Kullu and has got sufficient landed property in Lahul & Spiti, she was not eligible for grant of nautor land under the aforesaid Scheme. The learned District Judge rejected the counter-claim of respondent and refused to grant decree of possession by way of 7 counter-claim to respondent. The learned District Judge has also held that respondent is at liberty to get possession of land in dispute by executing order dated 30.6.1989 Ex.DB. It has also been held that Tehsildar is at liberty to initiate proceedings against the appellant for taking possession, if he is in unauthorized possession of the land in dispute. 12. The grant of nautor land has been established in favour of respondent in view of order dated 30.6.1989 Ex.DB. The appellant has failed to prove his adverse possession on the suit land. The two Courts below have not accepted the plea of appellant of adverse possession on the suit land. The view taken by two Courts below in rejecting the plea of adverse possession of appellant on the suit land emerges from the evidence on record. There is no perversity in the impugned judgment, decree when the learned District Judge has not accepted the plea of adverse possession of appellant on the suit land. 13. It has been submitted on behalf of the appellant that counter-claim raised by the respondent is no counter-claim. It has been submitted that Order 8 Rule 6A sub rule 4 CPC provides that the counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. The objection of court fee for raising counter- claim was taken and it was also pleaded that counter-claim is not made out and therefore, the counter claim is no maintainable. The perusal of counter-claim raised by respondent indicates that except for using the word counter-claim the respondent has not pleaded minimum facts, cause of action, valuation jurisdiction in the ‘counter claim’ so as to treat it as counter-claim. The respondent has not affixed court fee on 8 the counter-claim. In other words the counter claim is not in the form of plaint which is the requirement of counter-claim under Order 8 Rule 6A (4) CPC. In The Himachal Pradesh State Forest Corporation Ltd. and another v. Gurcharan Dass Sekhri 1999 (1) SLC 98 it has been held that failure of the defendant to comply with the imperative provisions, his counter-claim is liable to be rejected under Order 7, Rule 11 CPC. In the counter-claim raised by respondent provisions of Order 7 applicable to plaint have not been complied, hence ‘counter claim’ of respondent is no counter claim and respondent is not entitled to any relief on the basis of such counter claim. 14. The learned District Judge has rightly appreciated the material on record. There is no perversity in the impugned judgment, decree. The view taken by learned District Judge emerges from the evidence on record. The learned counsel for appellant has failed to make out any case for interference; similarly learned counsel for respondent has also failed to make out a case in support of counter- claim. In these circumstances substantial questions of law Nos.1,2 are decided against the appellant but substantial question of law No.3 is decided in favour of appellant. The substantial question of law framed in cross-objections is decided against the respondent. 15. No other point was urged. 16. The result of the above discussion, appeal and cross objections are dismissed with no order as to costs. May 20, 2010 (Kuldip Singh), (sks) Judge. 9