( 2025:HHC:26994 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 71 of 2018. Decided on : 7 th August, 2025. Mandir Naga Pandav Narwana & Ors. ...Appellants. Versus Saran Chand (now deceased) through legal representative Vikas Sharma ....Respondent. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the Appellants: Mr. Atharav Sharma, Advocate. For the Respondent: Mr. H.S. Rana, Advocate. Satyen Vaidya, Judge (Oral). Heard. 2. This Regular Second Appeal has been filed under Section 100 of the Code of Civil Procedure (for short “the Code”) arises from judgment and decree dated 29.12.2017 passed by the learned District Judge, Kangra at Dharamshala, in Civil Appeal No. 22-D/XIII/2010, whereby the judgment and decree dated 03.04.2010 passed by the learned Civil Judge (Sr. Division), Kangra at Dharamshala in Civil Suit 232 of 2004 has been set aside. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2025:HHC:26994 3. The brief facts are that the Civil Suit No. 232 of 2004 was filed by the appellants herein (hereinafter referred to as the “plaintiffs”) against the respondent herein (hereinafter referred to as the “defendant”) for declaration, injunction and possession in respect of land comprised in Khata No. 274 min, Khatauni No. 522, Khasra Nos. 1117 and 1118 measuring 0-10-49 hectares situated at Up Mohal Narwana, Mauza Yol, Tehsil Dharamshala, District Kangra, H.P. (for short “suit land”. A decree in the following terms was prayed for:- “Suit under Sections 34, 38 and 39 of the Specific Relief Act, 1963 for the grant of decree of declaration to the effect that the plaintiff is owner in possession in the land comprised in Khata No.274 min Khatauni No. 522, Khasra No. 1117 and 1118 area measuring 0-10-49 hectares situated at Up Mohal Narwana, Mauza Yol, Tehsil Dharamshala, Distt. Kangra (HP), vide jumabandi 1999-2000 and entries in the name of defendant in the column of possession as tenant at WILL are wrong, illegal, contrary to the spot position and same may be declared so and same are liable to be corrected in the name of plaintiffs with permanent injunction restraining the defendant from changing the nature of the suit land by raising construction, cutting and removing the trees from the suit land by issuance of permanent injunction and if the defendant will succeed in raising any construction in the suit land during the pendency of the suit, the suit 3 ( 2025:HHC:26994 land be restored back in its original state by issuance of mandatory injunction.” 4. The premise on which the suit was filed by the plaintiffs was that the suit land was owned by them. The defendant was alleged to be in wrongful possession of the suit land. It was alleged that the defendant had occupied the suit land on the basis of wrong revenue entries. 5. The defendant had set up his defence by way of written statement. In addition to the various legal objections raised by the defendants, the contest on merits was made with the averment that the suit land had been purchased by the defendant from the predecessor-in-interest of plaintiff No.2 vide sale deed dated 13.03.1986. In alternative plea of adverse possession was raised. 6. The defendant also preferred a counter claim and prayed for decree in following terms:- “The defendant prays for a decree under Section 34 and 38 of the Specific Relief Act for declaration that the defendant/claimant is owner in possession of the suit land bearing Khata No. 2274 min, Khatauni No.552, Khasra Nos. 1117 and 1118, kita 2 area measuring 0-10-49 hects. (inmal Rs.1.57 P) situated in Up-Mahal Narwana, Mahal Yol, Teh. Dharmshala, (as per jamabandi for the year 1999-2000) by purchase vide sale deed dated 13.03.1956, registered vide Wasiga No. 190 dated 17.03.1956 by the Sub- 4 ( 2025:HHC:26994 Registrar Dharamshala, (HP) and the revenue entries showing otherwise are liable to be corrected accordingly; with a consequential relief restraining the plaintiffs from interfering in any manner whatsoever, in the peaceful title and possession of the defendant on the suit land. Alternatively, if for any defect in the title or sale transaction, if the same is held illegal, void, then for a decree that the defendant has perfected his title by prescription since the date of sale deed, being in hostile, uninterrupted and open possession of the suit land, with a consequential relief injunction the plaintiffs from interfering in the possession of the defendant in any manner whatsoever.” 7. Learned trial Court had framed the following issues:- 1. Whether the plaintiff is owner in possession of the suit land, as alleged?OPP 2. Whether the revenue entries in the column of possession in the name of defendant as tenant at Will are wrong, as alleged?OPP 3. Whether the plaintiff is entitled for the possession of the suit land, as alleged?OPP 4. Whether the plaintiff is entitled for a decree of permanent prohibitory injunction, as alleged? OPD. 5. Whether the plaintiff has no cause of action, as alleged?OPD 6. Whether the plaintiff has no locus standi to file this suit?OPD. 5 ( 2025:HHC:26994 7. Whether the plaintiffs are estopped to file the suit by their act, conduct and acquiescence, as alleged?OPD 8. Whether the suit is time barred, as alleged?OPD. 9. Whether the suit is barred under Order 9, rule 8 and 9 CPC, as alleged?OPD. 10. Whether the suit is not maintainable in the present form, as alleged?OPD. 11. Whether the suit is not correctly valued for the purpose of court fees and jurisdiction, as alleged?OPD. 12. Whether the suit is barred under Order 2, Rule 2 CPC, as alleged?OPD. 13. Whether the suit is bad for non joinder of necessary parties?OPD. 14. Whether the defendant is owner of the suit land/property by purchase by way of counter claim, as alleged?OPD 14-A Whether the defendant has perfected title over the suit land/property by way of adverse possession?OPD. 15. Relief. 8. Issue No.1 was answered in affirmative partially, whereas, all other issues were decided in negative. Resultantly, the suit of the plaintiffs was decreed and the counter claim of the defendant was dismissed. 9. The instant appeal was admitted on 05.03.2018 on the following substantial questions of law:- 6 ( 2025:HHC:26994 “1. Whether the learned first appellate court below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them in its right perspective, thereby vitiating the impugned judgment and decree? 2. Whether document Ex.DW1/A and DW1/B having not been proved in accordance with law, mere putting exhibit marks on the same, in law, will not sufficient proof for reading said document in evidence, but learned District Judge having acted contrary thereby vitiating the impugned judgment and decree? 3. Whether Mohatmim having no authority to sell property of the temple at its sweet will and said aspect having been declared by Hon’ble Apex Court, learned District Judge having failed to advert to the same vide judgment and decree, thereby vitiating the impugned judgment and decree? 10. The plaintiffs subsequently came up with an application under Section 100(4) of the Code for framing additional substantial question of law as under:- “(i) Whether judgment and decree passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 22-D/13 of 2010, impugned in the present appeal is also unsustainable in the eyes of law and liable to be quashed and set aside in view of the verdict of the Division Bench judgment of this Hon’ble Court in RSA No. 57 of 2017 along with connected matters?” 7 ( 2025:HHC:26994 11. At the time of hearing, Mr. Atharav Sharma, learned counsel for the plaintiffs has placed reliance on the judgment passed by a Division Bench of this Court on 17.05.2022 in RSA No. 57 of 2017, titled as Ramesh Chand vs. Om Raj & Ors. along with connected matters, reported in 2022 (2) SLC 1145 to urge that the single appeal before the learned First Appellate Court was not maintainable and thus the impugned judgment and decree can not be sustained. 12. On the other hand, learned counsel representing the defendant would contend that the aforesaid judgment in Ramesh Chand (supra) will have no application in the facts of the case for the reason that even if there was no challenge to the dismissal of the counter claim, findings rendered on the counter claim by the learned trial Court will not operate as res judicata. 13. The Hon’ble Division Bench in Ramesh Chand (supra) was called upon to decide a question whether the common appeal questioning the correctness of judgment and decree passed in civil suit as well as in counter claim was legally maintained? 14. The question referred to the Hon’ble Division Bench was answered as under:- 8 ( 2025:HHC:26994 “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 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 9 ( 2025:HHC:26994 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 merits “in a former suit” for the purpose of attracting principles of res judicata.” 15. Admittedly, in the facts of the case in hand, the learned trial Court had not only decided the suit, but had also 10 ( 2025:HHC:26994 decided the counter claim of the defendant. It is also not in dispute that the defendant has filed only one appeal under Section 96 of the Code. In such circumstances, this Court being bound by the judgment of the Larger Bench in Ramesh Chand (supra) cannot take a different view. It has clearly been held by the Hon’ble Division Bench that when both the suit and counter claim are decided vide common judgment, regardless of whether separate decree has been prepared in the counter claim, both would be required to be challenged by separate appeals. It has further been laid down that where two separate appeals are required to be filed against the 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 the judgment and decree not appealed against would be taken to have been acquiesced to by the party not filing the appeal. 16. Again coming to the facts of the case in hand, specific issues i.e. Issue No.14 and 14-A were framed by the learned trial Court as under:- 11 ( 2025:HHC:26994 “14. Whether the defendant is owner of the suit land/property by purchase by way of counter claim, as alleged?OPD 14-A Whether the defendant has perfected title over the suit land/property by way of adverse possession? OPD.” 17. Both these issues were answered by the learned trial Court after returning detailed reasons and finally the learned trial Court had answered both the issues in negative. Meaning thereby, the defendant was not held the owner of the suit land by way of its purchase. Similarly, defendant was also held not to have acquired title by way of adverse possession. Once, these findings have attained finality on account of non challenge to the same by way of an appeal against the judgment in counter claim, these would definitely apply as res judicata. 18. In light of above discussion, the prayer made in CMP No. 5734 of 2024 deserves to be allowed. The only substantial question of law available in the facts of the case is as under:- “(i) Whether judgment and decree passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 22-D/13 of 2010, impugned in the present appeal is also unsustainable in the eyes of law and liable to be quashed and set aside in view of the verdict of the Division Bench 12 ( 2025:HHC:26994 judgment of this Hon’ble Court in RSA No. 57 of 2017 along with connected matters?” 19. In result, the substantial question of law as framed above is answered in affirmative. The judgment and decree dated 29.12.2017 passed by the learned District Judge, Kangra at Dharamshala, in Civil Appeal No. 22-D/XIII/2010, is set aside. The appeal is allowed with no order as to the costs. 20. The other substantial questions of law framed on 05.03.2018 have been rendered redundant and need not be answered in view of what has been held hereinabove. The appeal is accordingly disposed of. 21. Decree sheet be prepared accordingly. 22. Records be sent back. (Satyen Vaidya) Judge 7th August, 2025. (jai)