( 2025:HHC:37255 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 280 of 2016. Decided on : 6 th November, 2025. Ranjit Kumar ...Appellant. Versus Kanta Devi & Anr. ....Respondents. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the Appellants: Mr. Sanjeev Kuthiala, Senior Advocate with Mr. Abhishek and Ms. Sana Rana, Advocates. For the Respondent: Mr. Lakshay Thakur, Advocate. Satyen Vaidya, Judge (Oral). This Regular Second Appeal has been filed by the appellant/defendant/counter claimant against the judgment and decree dated 25.02.2016 passed by the learned Additional District Judge-III, Kangra at Dharmashala (Camp at Baijnath) in Civil Appeal No. 18-P/X/III/2014, whereby the judgment and decree dated 24.04.2014 passed by the learned Civil Judge (Senior Division), Palampur, District Kangra, in Counter Claim No. 330/09/2013 has been set aside. 1 Whether reporters of the local papers may be allowed to see the judgment? 2  ( 2025:HHC:37255 ) 2. Respondents herein (hereinafter referred to as the plaintiffs) had filed Civil Suit No. 309/08/13 before the learned Civil Judge (Senior Division), Palampur for declaration to the effect that they had perfected the title over the land comprised in Khata No. 226, Khatauni No. 383, Khasra No. 393/1, measuring 0-00-50 hectares, situated at Mohal Kachhal Jaggain, Tehsil Jaisinghpur, District Kangra H.P. (for short “suit land”), by way of adverse possession. The contrary entries in the revenue records were also challenged. As a consequence, relief of decree of permanent prohibitory injunction restraining the appellant herein (hereinafter referred to as the defendant) from interfering in the suit land had also been sought. 3. The defendant in addition to contesting the claim of plaintiffs, had filed counter claim and had sought a decree of possession against the plaintiffs in respect of the suit land on the basis of title. 4.. The suit filed by the plaintiffs was registered as Civil Suit No. 309/08/13 and the counter claim filed by the defendant was registered as Counter Claim No. 330/09/2013. 5. Learned trial Court had framed the following issues:- 3  ( 2025:HHC:37255 ) 1. Whether the plaintiffs have become owners and in possession of the suit land by principles of adverse possession, as alleged?OPP 2. Whether the suit of the plaintiffs is not maintainable in the present form?OPD 3. Whether the plaintiffs have no cause of action to file the present suit?OPD 4. Whether the plaintiffs have no locus standi to file the present suit?OPD. 5. Whether the suit is bad for non joinder and mis- joinder of necessary parties?OPD 6. Whether the plaintiffs are estopped by their act and conduct from filing the present suit?OPD. 7. Whether the defendants are entitled for decree of possession of the suit land as claimed in the counter claim?OP Counter Claimant. 8. Relief. 6. Issues No. 2, 3, 4 and 7 were answered in the affirmative, whereas, all other issues were answered in negative. The suit of the plaintiffs was dismissed and the counter claim of defendant was decreed. Plaintiff were directed to handover the possession of the suit land to the defendant/counter claimant. 7. Plaintiffs assailed the judgment and decree passed by the learned trial Court in Counter Claim No. 330/09/2013 by preferring the first appeal under Section 96 of the Code of Civil Procedure. The said appeal has been allowed by the 4  ( 2025:HHC:37255 ) learned First Appellate Court vide impugned judgment and decree and the counter claim of the defendant has been dismissed. 8. The instant appeal was admitted on 28.09.2016 on the following substantial questions of law:- “1. Whether the learned Courts below have misread and misappreciated the pleadings of the parties as also the evidence on record, both oral and documentary especially the statements of PW-1, PW- 2, DW-1, DW-2, EX.P-1, Ex.DW1/A, Ex. D-1, Ex.DW1/A to EX.DW1/C and on account of such misreading and misappreciation, whether the findings of both the learned Courts below are sustainable in law? 2. Whether the demarcation given in accordance with law as per the standing instructions of the Financial Commissioner and High Court Rules and Orders were to be taken for consideration for the purpose of establishing the factum of encroachment for the relief of possession in the counter claim and whether the findings to the contrary are sustainable in law and the findings are perverse?” 9. I have heard learned counsel for the parties and have also gone through the entire record carefully. 10. At the very out set, Mr. Sanjeev Kuthiala, learned Senior Advocate representing the appellant/defendant/ counter claimant has pointed out that though the learned trial 5  ( 2025:HHC:37255 ) Court had dismissed the Civil Suit No. 309/08/13 and had also decreed the Counter Claim No. 330/09/2013 by a common judgment, the plaintiff had filed only one appeal against the judgment and decree passed in Counter Claim No. 330/09/2013 and the judgment and decree passed by the learned trial Court in Civil Suit No. 309/08/13 had remained unchallenged. By making reference to the judgment dated 17.05.2022 passed by the Division Bench of this Court in RSA RSA No. 57 of 2017, titled as Ramesh Chand vs. Om Raj & Ors. along with connected matters, reported in 2022 (2) SLC 1145, it has been urged that in absence of challenge to the decree passed in Civil Suit No. 309/08/13, the findings recorded by the learned trial Court in said Civil Suit had become res judicata inter se the parties and hence, the learned First Appellate Court has erred in allowing the Civil Appeal No. 18-P/X/III/2014, which was filed only against the judgment and decree passed in the Counter Claim. 11. The factual aspect as highlighted by the learned Senior Advocate is clearly borne from the record. It being so, another substantial question of law that has arisen for consideration is as under:- “(i) Whether the learned First Appellate Court has erred in allowing the Civil Appeal No. 18-P/X/III/2014 6  ( 2025:HHC:37255 ) without there being any challenge to the judgment and decree passed by the learned trial Court in Civil Suit No. 309/08/13?” 12. Leaned counsel for the parties have further been heard on the substantial question of law as noted above. 13. As noticed above, the factual aspect of the matter is not in dispute. The plaintiffs had sought a decree of declaration with respect to the suit land by alleging to have become owner thereof by way of adverse possession. The title of defendant/counter claimant was admitted. On the other hand, the defendant/counter claimant on the basis of his title had claimed possession of the suit land. In view of this controversy, the issues as noticed above were framed by the learned trial Court. 14. It is also not in dispute that the learned trial Court had separately registered the Civil Suit filed by the plaintiffs and the counter claim filed by the defendant/counter claimant. The civil suit was dismissed whereas the counter claim was decreed. It is also not in dispute that the plaintiffs had assailed only the judgment and decree passed by the learned trial Court in counter claim and the judgment and decree passed in civil suit had remained unchallenged. 7  ( 2025:HHC:37255 ) 15. While answering the question referred to the Larger Bench, the Division Bench of this Court in Ramesh Chand (supra) 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 8  ( 2025:HHC:37255 ) 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 res judicata 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 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 9  ( 2025:HHC:37255 ) merits “in a former suit” for the purpose of attracting principles of res judicata.” 16. The conjoint reading of sub paras- (iv) and (v) of para-42 in Ramesh Chand (supra) makes it clear that when both the suit and the counter claim are decided by a common judgment regardless whether separate decree has been prepared in the counter claim, both are required to be challenged by separate appeals and if it is not so challenged, and only a single appeal is filed, it would not be maintainable for the simple reason that the judgment and decree passed in other, which had remained unchallenged, would operate as res judicata inter se the parties. 17. On the above premise, the contention raised by Mr. Sanjeev Kuthiala, lerned Senior Advocate deserves to be upheld. Learned First Appellate Court had clearly failed to take notice of above noted important aspect of the matter. The only appeal against the decree passed in Counter Claim could not have been entertained in the absence of any challenge to the decree passed in the Civil Suit. In this view of the matter, the impugned judgment and decree dated 25.02.2016 passed by the learned First Appellate Court in Civil Appeal No. 18-P/X/III/2014 cannot be sustained. 10  ( 2025:HHC:37255 ) 18. In result, the substantial question of law framed today is answered in favour of the appellant/defendant/ counter claimant. In this view of the matter, the other substantial questions of law framed on 28.09.2016 have been rendered redundant and need not be answered separately. 19. In result, the instant appeal is allowed and the judgment and decree dated 25.02.2016 passed by the learned Additional District Judge-III, Kangra at Dharamshala (Camp at Baijnath), District Kangra, H.P. in Civil Appeal No. 18-P/X/III/2014 is set aside and the judgment and decree dated 24.04.2014 passed by the learned Civil Judge (Senior Division) Palampur in Counter Claim No. 330/09/2013 is affirmed. 20. Decree sheet be prepared accordingly. 21. Records be sent back. (Satyen Vaidya) Judge 6th November, 2025. (jai)