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2026 DAILYLAW 16836 (HP)

Desh Raj v. Vinod Kumar

2026-03-02

Romesh Verma

body2026
JUDGMENT : ROMESH VERMA, J. The appellants have preferred the present Regular Second Appeal, under Section 100 of the Code of Civil Procedure, against the judgment and decree, dated 02.09.2009, passed by learned Additional District Judge (I), Kangra at Dharamshala (H.P), (hereinafter referred to as “the First Appellate Court”), in Civil Appeal No.113-D/04, titled as ‘Vinod Kumar & Anr. Vs. Desh Raj & Anr.’. 2. That vide judgment and decree, dated 02.09.2009, the learned First Appellate Court had allowed the appeal, preferred by the respondents and the judgment passed by the Court of learned Civil Judge (Senior Division), Kangra at Dharamshala, H.P. (hereinafter referred to as ‘the trial Court’), in Civil Suit No.120/2000, titled as, ‘Desh Raj & Anr. Vs. Vinod Kumar & Anr.’ was reversed whereby the suit filed by the plaintiffs was decreed and counter claim filed by the defendant was dismissed. 3. Vide judgment and decree, dated 02.09.2009, the learned First Appellate Court, while allowing the appeal, has dismissed the suit of the plaintiffs and decreed the Counter-Claim of the defendants. 4. Learned First Appellate Court decreed the counter claim of the present respondents by holding the defendants/respondents to be owners to the extent of 5/8 and 3/8 shares, respectively, in respect of the land comprised in Khata Nos. 117, 118, and 119, as per the jamabandi for the year 1998–99, situated at Mohal Sukkar Khas, Mouza Sukkar, Tehsil Dharamshala, District Kangra, qua the estate and share of Gauri Ram, along with the super structure raised by the deceased Gauri Ram. The plaintiffs/appellants were further restrained by way of permanent prohibitory injunction from interfering therein in any manner. 5. For the sake of convenience, the parties, to the present lis, are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court. 6. Brief facts leading to filing the present appeal, before this Court, may be summed up, as under:- Plaintiffs, Desh Raj and Chandu Lal, both sons of late Gauri Ram, filed a suit for declaration in the Court of the learned Civil Judge (Senior Division), Kangra at Dharamshala, H.P., on 30.10.2000. As per the averments made in the plaint, it was stated that the plaintiffs and the defendants are the legal representatives of deceased Gauri Ram, who was the only son of late Sh. Tara Chand. As per the averments made in the plaint, it was stated that the plaintiffs and the defendants are the legal representatives of deceased Gauri Ram, who was the only son of late Sh. Tara Chand. It was further stated that the suit property consists of land along with superstructures raised thereon, comprising land measuring 3-87-59 hectares, to the extent of 1/8th share measuring 0-96-81 hectares, situated at Mohal Sukkar Khas, Mauza Sukkar, Tehsil Dharamshala, District Kangra, H.P. (hereinafter referred to as “the suit land”). 7. According to the jamabandi for the year 1998– 99, the suit land is recorded as being co-owned and possessed by the parties. It was averred that the suit property was inherited by Tara Chand from his forefathers, and after the death of late Sh. Tara Chand, the property devolved upon Gauri Ram, father of the plaintiffs and defendant No. 1 and husband of defendant No. 2. Gauri Ram thus inherited and acquired the aforesaid suit land from his father. 8. It was further stated that deceased Gauri Ram, predecessor-in-interest of the plaintiffs and defendants, executed a registered Will dated 24.06.1998 in favour of the plaintiffs to the extent of 1/3rd share and in favour of defendant No. 1 to the extent of 2/3rd share out of the suit land, in lieu of the services rendered by them. The said Will was executed by him voluntarily, while in sound disposing state of mind and in full senses. 9. However, it was alleged that the defendants, behind  the  back  and  without  the  knowledge  of  the plaintiffs, manipulated the execution of another Will dated 13.08.1999 in connivance with the marginal witnesses by playing fraud, misrepresentation, undue influence, and undue pressure upon deceased Gauri Ram. It was contended that at the relevant time, deceased Gauri Ram was not in a sound disposing state of mind, had lost his memory, had become physically infirm, his eyesight had weakened, therefore he was not in a fit condition to execute the Will dated 13.08.1999. Accordingly, the said Will was stated to be illegal, null and void, and not binding upon the plaintiffs. 10. Consequently, the suit for declaration was filed to the effect that the plaintiffs and defendant No. 1, being the legal representatives of deceased Gauri Ram, are joint owners in possession of the suit property along with the superstructures, on the basis of the valid Will dated 24.06.1998. 10. Consequently, the suit for declaration was filed to the effect that the plaintiffs and defendant No. 1, being the legal representatives of deceased Gauri Ram, are joint owners in possession of the suit property along with the superstructures, on the basis of the valid Will dated 24.06.1998. It was further prayed that the said Will be declared genuine, legal, and operative, and binding upon the defendants; that the mutation be attested and sanctioned on the basis of the Will dated 24.06.1998; and that the subsequent Will dated 13.08.1999, being the result of fraud, misrepresentation, undue influence, and undue pressure, be set aside as null and void and not binding upon the plaintiffs. 11. The suit filed by the plaintiffs was contested by the defendants on various preliminary objections, including lack of cause of action, locus standi, estopped by their act, conduct and deeds, non-joinder of necessary parties, maintainability, valuation etc. 12. On merits, the defendants contended in their written statement that the plaintiffs had not approached the Court with clean hands and had not presented the correct factual position regarding the suit land. It was specifically denied that late Gauri Ram had executed a Will in June 1998 in favour of the parties. However, it was stated that even if such a Will had been executed, the same stood revoked by the subsequent Will dated 13.08.1999, which, according to the defendants, was validly executed and was not the result of fraud, undue influence, misrepresentation, or coercion. 13. The defendants denied that late Gauri Ram had become mentally incapable in the year 1999 or that he had lost  his  memory  or  become  physically  infirm. It  was asserted that the Will dated 13.08.1999 was the last and final Will executed by deceased Gauri Ram, and that the same was executed while he was in a sound disposing state of mind and in a fit mental condition, having fully understood and explained the circumstances leading to its execution. 14. It was further stated that the plaintiffs were living separately from deceased Gauri Ram and were not rendering any services to him; rather, it was the defendants who were serving and looking after him. The defendants asserted that the Will dated 24.06.1998 stood superseded by the subsequent Will dated 13.08.1999, which prevailed, and therefore the defendants alone succeeded to the suit property. Consequently, all averments made in the plaint were denied in toto. The defendants asserted that the Will dated 24.06.1998 stood superseded by the subsequent Will dated 13.08.1999, which prevailed, and therefore the defendants alone succeeded to the suit property. Consequently, all averments made in the plaint were denied in toto. 15. Along with the written statement, the defendants also filed a counter claim. In the counter claim, they prayed that defendants be declared successors to the estate of deceased Gauri Ram on the basis of the Will dated 13.08.1999 to the extent of 5/8 and 3/8 shares, respectively, in respect of the land comprised in Khata Nos. 117, 118, and 119, as per the jamabandi for the year 1998–99, situated at Mohal Sukkar Khas, Mouza Sukkar, Tehsil Dharamshala, District Kangra, along with the superstructures raised thereon, being the recorded share of deceased Gauri Ram. It was further prayed that the plaintiffs be restrained by way of permanent prohibitory injunction from interfering in the suit property in any manner whatsoever. Alternatively, a decree for possession of the estate of late Gauri Ram was also sought in the event the plaintiffs were found to be in occupation thereof. 16. The plaintiffs had filed the replication and written statement to the counter claim as filed by the defendants and the averments as made in the plaint were reiterated and the averments as made in the counter claim were denied. 17. In the written statement filed to the counter claim the plaintiffs reiterated their stand as taken in the plaint and based their claim on the basis of the Will dated 24.06.1998. It was averred that Gauri Ram had executed a Will in favour of plaintiffs and defendant No.1. The Will as alleged by the counter claimants dated 13.08.1999 was denied being null and void. 18. From the pleadings of the parties, the following issues were framed by the learned Trial Court, on 8.10.2001 and on 12.03.2003, respectively:- “1. Whether the suit land is joint Hindu Coparcenary property qua deceased Gauri Ram and the parties, as alleged? OPP 2. Whether the plaintiffs being legal heirs of deceased Gauri Ram have inherited the suit land, as alleged? OPP 3. Whether accused Gauri Ram was not competent to bequeath the property by executing the Will in favour of defendants? OPP 4. Whether deceased Gauri Ram had executed will dated 13.08.1999 in favour of the defenants? OPD 5. OPP 2. Whether the plaintiffs being legal heirs of deceased Gauri Ram have inherited the suit land, as alleged? OPP 3. Whether accused Gauri Ram was not competent to bequeath the property by executing the Will in favour of defendants? OPP 4. Whether deceased Gauri Ram had executed will dated 13.08.1999 in favour of the defenants? OPD 5. Whether the plaintiffs have no locus standi & cause of action to sue? OPD 6. Whether the plaintiffs are estopped from filing suit by their act, conduct and deeds? OPD 7. Whether the suit is bad for non-joinder of necessary parties? OPD 8. Whether the suit is not maintainable in the present form? OPD 9. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD. 10. Whether the plaint lacks material particulars as alleged? OPD. 10A. Whether Gauri Ram executed a registered and valid Will dated 24.06.1998 in favour of plaintiffs and defendant No.1 as alleged? OPP 10B. Whether Gauri Ram executed a legal and valid Will dated 13.3.1999 in favour of the defendants in the Counter Claim?OPD 10C. Whether the defendants are entitled to a decree for permanent prohibitory injunction? OPD 10D. Whether in the alternative the defendants are entitled to a decree for possession of the estate of Gauri Ram? OPD” 19. Thereafter the parties were directed to adduce evidence in support of their contentions and after closure of the evidence, the learned Trial Court heard the respective counsels of both the parties and on 15.11.2004 decreed the suit as filed by the plaintiffs, however, the counter claim as preferred by the defendants was ordered to be dismissed. 20. Aggrieved by the judgment and decree dated 15.11.2004 passed by the learned Civil Judge (Senior Division), Kangra at Dharamshala, the defendants preferred Civil Appeal No. 113-D/04 on 14.12.2004 before the learned Appellate Court, who vide its judgment and decree dated 02.09.2009, allowed the appeal preferred by the defendants and consequently dismissed the suit of the plaintiffs/appellants. The counter claim filed by the defendants/respondents was decreed, holding them to be owners to the extent of 5/8 and 3/8 shares, respectively, in respect of the land comprised in Khata Nos. The counter claim filed by the defendants/respondents was decreed, holding them to be owners to the extent of 5/8 and 3/8 shares, respectively, in respect of the land comprised in Khata Nos. 117, 118, and 119, as per the jamabandi for the year 1998–99, situated at Mohal Sukkar Khas, Mouza Sukkar, Tehsil Dharamshala, District Kangra, qua the estate and share of deceased Gauri Ram, along with the superstructures raised thereon. 21. The decree was pertaining to land measuring 3-87-59 hectares, to the extent of 1/8th share measuring 0-96-81 hectares, situated at Mohal Sukkar Khas, Mauza Sukkar, Tehsil Dharamshala, District Kangra, H.P., and the plaintiffs were further restrained by way of permanent prohibitory injunction from interfering therein in any manner whatsoever. 22. Feeling dissatisfied and aggrieved by the judgment and decree, dated 02.09.2009, passed by learned Additional District Judge (I), Kangra at Dharamshala (H.P), the present appeal has been preferred, before this Court, by the plaintiffs. 23. The judgment and decree, passed by the learned First Appellate Court, has been assailed on the ground that the learned First Appellate Court has reversed the well- reasoned judgment, passed by the learned Trial Court, in a very mechanical manner, and without assigning any reason. 24. It has further been contended that the findings as returned by the learned First Appellate Court are based on no evidence and the same are an outcome of conjectures and surmises without going into the controversy and has relied upon the evidence which does not prove the case of the defendants. 25. It has been further contended that the learned First Appellate Court allowed the appeal by granting relief to the defendants which was neither properly pleaded nor proved, inasmuch as the defendants failed to establish the due execution and validity of the Will dated 13.08.1999 allegedly executed by deceased Gauri Ram in their favour. 26. It has also been contended that the learned First Appellate Court wrongly disbelieved the registered Will dated 24.06.1998 executed by deceased Gauri Ram in favour of the plaintiffs, and erroneously accepted and relied upon the Will dated 13.08.1999, which had not been proved in accordance with law. 27. The present appeal was admitted by this Court, vide order dated 14.12.2009, on the following substantial questions of law:- “1. 27. The present appeal was admitted by this Court, vide order dated 14.12.2009, on the following substantial questions of law:- “1. Whether learned First Appellate Court below erred in appreciating the law applicable, pleadings of the parties, evidence adduced by them in its right perspective, thus vitiating the impugned judgment and decree? 2. Whether impugned judgment and decree passed by learned First Appellate Court below holding document Exhibit D-1 to be true and genuine document stands vitiated being de hors the pleadings and evidence adduced by the parties and as such impugned judgment and decree thus is liable to be quashed and set aside? 3. Whether Exhibit PW-4/A is true and genuine document having been proved in accordance with law and contrary findings returned by learned First Appellate Court below vitiating the impugned judgment and decree?” 28. Thereafter, on 27.02.2026, following additional substantial question of law was framed:- “1) Whether a single appeal was maintainable before the learned First Appellate Court against the judgment and decree passed by the learned Trial Court in decreeing the suit and dismissing the counter claim?” 29. Since the additional substantial question of law framed on 27.02.2026 goes to the root of the case, both learned counsels have addressed elaborate submissions thereon, the said substantial question of law is required to be decided first. 30. Mr. Ajay  Sharma,  learned  Senior  Advocate, assisted by Mr. Atharv Sharma, Advocate, appearing for the appellants, submitted that the single appeal filed by the respondents before the learned First Appellate Court against decreeing the suit of the plaintiffs/appellants and dismissing the counter claim filed by defendants/respondents was not maintainable. He contended that the respondents were required to prefer two separate appeals one challenging the decree in the suit and another challenging the dismissal of their counter claim. 31. Mr. Ajay Sharma further submitted that since the defendants/respondents had preferred a single appeal arising out of the judgment and decree passed by the learned Trial Court, the said appeal was not maintainable in view of the settled mandate laid down by the Hon’ble Apex Court as well as the Division Bench of this Court. 32. On the other hand, Mr. Bhupinder Gupta, learned Senior Advocate, assisted by Ms. 32. On the other hand, Mr. Bhupinder Gupta, learned Senior Advocate, assisted by Ms. Rinki Kashmiri, Advocate, submitted that since the learned Trial Court had decreed the suit of the plaintiffs and dismissed the counter claim of the defendants by a single consolidated decree, the only consequence of the same was that the respondents were entitled to file a single appeal before the First Appellate Court. 33. Learned Senior Counsel further submitted that the contention of the appellants that the single appeal preferred before the learned First Appellate Court was not maintainable is contrary to the record. Since the defendants/respondents had filed a counter claim seeking a declaration qua the Will dated 13.08.1999, the single appeal preferred before the learned First Appellate Court was perfectly maintainable. Lastly, he submitted that the objections and submissions as raised by the appellants are unfounded and liable to be rejected. 34. As per the provisions of Order VIII Rule 6(A) to 6(G) of the CPC, a defendant, in a suit, may, set up, the counter-claim against the claim of the plaintiff regarding any right or claim, in respect of a cause of action, accruing to the defendant, against the plaintiff, either before or after the filing of the suit, but before the defendant has delivered his defence or before the time limited for delivering his defence, has expired. 35. As per the provisions of Order VIII Rule 6(A) to 6(G) of the CPC, such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court as the effect of the cross-suit and Counter Claim will be treated as the plaint, for which, the plaintiff has right to file written statement, and when counter claim has been filed, the Court will pronounce the final judgment, not only in the suit filed by the plaintiff, but in the suit filed by the defendant, i.e., the Counter claim. 36. The provisions of Order VIII Rule 6(A) to 6(G) of the CPC are very clear and are unambiguous and in view of the legal exposition of the law, it is no longer res-integra that the counter claim is the cross suit and dismissal of the counter claim is a decree and the same is appellable. 37. The scope and nature of the Counter Claim have elaborately been discussed by the Hon’ble Supreme Court in Jag Mohan Chawla & Anr. Vs. 37. The scope and nature of the Counter Claim have elaborately been discussed by the Hon’ble Supreme Court in Jag Mohan Chawla & Anr. Vs. Dera Radha Swami Satsang & Ors, reported in (1996) 4 SCC 699 . Relevant Paragraph-5 of the judgment is reproduced as under:- “5. The question, therefore is: whether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable? Whether counter-claim can be made on different cause of action? it is true that preceding CPC Amendment Act, 1976, Rule 6 of Order 8 limited the remedy to set off or counter- claim laid in a written statement only in a money suit. By CPC Amendment Act, 1976, Rules 6A to 6G were brought on statute. Rule 6-A(1) provides that 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 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 damage or not. A limitation put in entertaining the counter-claim is as provided in the proviso to sub-rule (1), namely, the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Sub-rule (2) amplified that 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 counter- claim. The plaintiff shall be given liberty to file a written statement to answer the counter-claim of the defendant within such period as may be fixed by the Court. The counter-claim is directed to be treated, by operation of sub-rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai case of suit and cross suit by way of counter-claim. The counter-claim is directed to be treated, by operation of sub-rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai case of suit and cross suit by way of counter-claim. Therein, suit was filed for enforcement of an agreement to the effect that partnership between the parties had been dissolved and the partners had arrived at a specific amount to be paid to the appellant in full satisfaction of the share of one of the partners in the partnership and thereby decree for settlement of accounts was sought. Therein the legal representatives of the deceased partner contended in the written statement, not only denying the settlement of accounts but also made a counter-claim in the written statement for the rendition of accounts against the appellant and paid the court fee as plaint. They also sought a prayer to treat the counter- claim as a cross suit. The trial Court dismissed the suit and the counter-claim. On appeal, the learned Single Judge accepted the counter-claim on a plaint in a cross suit and remitted the suit for trial in accordance with law. On appeal, per majority, this Court had accepted the respondents' plea in the written statement to be a counter- claim for settlement of their claim and defence in written statement as a cross suit. The counter-claim could be treated as a cross suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits, decree must be conformable to Order 20, Rule 18, CPC but the object of the amendments introduced by Rules 6A to 6G are conferment of a statutory right on the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In sub-rule (1) of Rule 6A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words "any right or claim in respect of a cause of action accruing with the defendant" would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needles protection, the legislature intended to try both the suit and the counter- claim in the same suit as suit and cross suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6-C to seek deletion of the counter-claim. It is seen that the trial Court had not found it necessary to delete the counter- claim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises no illegality warranting dismissal of counter- claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided anddisposed of in the same suit. Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises no illegality warranting dismissal of counter- claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided anddisposed of in the same suit. In Mahendra Kumar v. State of Madhya Pradesh where a Bench of two Judges of this Court was to consider the controversy, held that since the cause of action for the counter-claim had arisen before filing of the written statement, the counter-claim was maintainable. The question therein was of limitation with which we are not concerned in this case. Thus considered we find that there is no merit in the appeal.” 38. Similar view has again been reiterated by a three judge Bench of the Hon’ble Supreme Court in Satyender & Ors. Vs. Saroj & Ors., reported in 2022 Live Law (SC) 679. Relevant paragraph 16 of the judgment is reproduced as under:- “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. 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 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 separate or independent cause of action (Jag Mohan Chawla & Anr. v. Dera Radha Swami Satsang & Ors.). The Legislature permits the institution of a counter claim, in order to avoid multiplicity of litigation. It is true that a counter claim can be made by the defendant, even on a separate or independent cause of action (Jag Mohan Chawla & Anr. v. Dera Radha Swami Satsang & Ors.). 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 been rightly rejected by the High Court.” 39. Perusal of the judgments reveals that a counter claim is to be treated as a plaint and governed by the same rules applicable to a plaint. It has been held that a counter claim can be set up only against the claim of the plaintiff; therefore, in substance, a counter claim is in the form of a plaint, and the dismissal of a counter claim is appealable. 40. Coming to the facts of the case, the learned Trial Court,  vide  its  judgment  and  decree  dated  15.11.2004, decreed the suit filed by the plaintiffs and dismissed the counter claim preferred by the defendants. The learned Trial Court specifically framed issues with respect to the execution of the Will dated 24.06.1998 in favour of the plaintiffs and the Will dated 13.08.1999 in favour of the defendants. Issue No. 10B, as framed in the counter claim, reads as follows:- “10B. Whether Gauri Ram executed a legal and valid Will dated 13.3.1999 in favour of the defendants in the Counter Claim? Issue No. 10B, as framed in the counter claim, reads as follows:- “10B. Whether Gauri Ram executed a legal and valid Will dated 13.3.1999 in favour of the defendants in the Counter Claim? OPD” 41. In a natural corollary decreeing of the suit and the Counter Claim shows that there were two decrees, one, by virtue of which, the suit of the plaintiffs was decreed and another, by virtue of which, the counter claim of the defendants was dismissed, in that eventuality, the defendants were required to file two separate appeals. 42. Therefore, in such circumstances, the material question which arises for determination, before this Court, is whether the learned First Appellate Court can interfere with the judgment and decree, passed by the learned Trial Court in the absence of two separate appeal. 43. The said question came up for consideration before the Division Bench of this Court in case titled Ramesh Chand Vs. Om Raj, reported in 2022(2) Shim. L.C. 1145, wherein the Hon’ble Division Bench has enumerated certain principles in this regard. Relevant Paragraph-42 of the judgment is reproduced 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 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 res-judicata 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.” 44. Though, the learned Senior Counsel, appearing for the defendants/respondents has tried to make out an exception to the aforesaid judgment, however, the said excercise is a futile attempt because the present case is squarely covered by the judgment of Hon’ble Division Bench of this Court (Supra). 45. Though, the learned Senior Counsel, appearing for the defendants/respondents has tried to make out an exception to the aforesaid judgment, however, the said excercise is a futile attempt because the present case is squarely covered by the judgment of Hon’ble Division Bench of this Court (Supra). 45. Keeping in view, the exposition of law as laid down by Hon’ble Apex Court as well as the Division Bench of this Court, on account of non-filing of the separate appeal before the learned First Appellate Court, against the judgment and decree, passed by the learned Trial Court, attracts the principles of res-judicata and the learned First Appellate Court could not have interfered with the findings of the learned Trial Cout, vide judgment and decree dated 02.09.2009, by virtue of which, suit of the plaintiffs was decreed, whereas, counter claim, set up by the defendants, was dismissed. 46. In such situation, the additional substantial question of law, framed on 27.02.2026, is accordingly decided, in affirmative, in favour of the appellants. 47. Although, other substantial questions of law have also been framed, by this Court, but, since the above- mentioned additional substantial question of law has been decided, in affirmative, in favour of the appellants, as such, other substantial questions of law have become redundant. 48. The Hon’ble Apex Court in a similar situation in a case which has gone from this High Court in SLP (C ) D No.59467/2024 titled as Charan Singh versus Ram Saroop, decided on 03.02.2025, while dealing and deciding the same issue, came to the conclusion that reliance was rightly placed by the First Appellate Court on precedents to hold that a composite appeal was not maintainable in law but, at the same time, the First Appellate Court ought to have borne in mind that Courts exist for rendering justice albeit in accordance with law. The Hon’ble Apex Court held that once the First Appellate Court found correctly that challenge to the common judgment of the Trial Court had been laid in a composite appeal but it is the requirement of law to file two appeals with separate memorandum of appeal which had not been filed by the appellant, the Court ought to have at least alerted the appellant by making him aware of the requirement of law and giving him the liberty to file a separate memorandum of appeal. Further, it has been held in para-7 that in fact in terms of Order XLI Rule 1 of the CPC, the Appellate Court has the power to even dispense with the requirement of law of filing copy of the impugned judgment twice over if it is part of the memorandum of appeal already filed. It has been  held that if even after being alerted the appellant had failed to file a separate memorandum, the First Appellate Court would have been perfectly justified in dismissing the appeal. The Hon’ble Apex Court also held that it is not shown to them that any endeavor was made. 49. From the aforesaid principles of law laid down by the Hon’ble Apex Court, it is clear that the Court is required to alert the appellant regarding the requirement of law and afford him the liberty to file a separate memorandum of appeal. Since the First Appellate Court in that case failed to do so, the Hon’ble Apex Court examined the judgments of the High Court and the First Appellate Court and remitted the matter back to the First Appellate Court with liberty to the party to file a separate memorandum of appeal in accordance with law. 50. The Hon’ble Apex Court further directed that, in case the appellant files a separate memorandum of appeal, the same shall be registered without limitation and decided in accordance with law. 51. Taking into consideration the Legal Principle laid down by the Hon’ble Supreme Court, this Court is of the opinion that after setting aside the judgment and decree passed by the learned First Appellate Court dated 02.09.2009, the matter is remitted back to the learned First Appellate Court with liberty to the defendants/respondents to file an independent appeal within a period of three weeks from today. Once filed, the same shall be registered without limitation, being treated as a bar and both appeals shall thereafter be decided afresh on their own merits. 52. Consequently, the present appeal is liable to be allowed. After setting aside the judgment and decree dated 02.09.2009, passed by the learned Additional District Judge (I), Kangra at Dharamshala (H.P.), in Civil Appeal No. 113- D/04, titled ‘Vinod Kumar & Anr. vs. Desh Raj & Anr.’, the parties are relegated to the Court of First Appeal. 53. 52. Consequently, the present appeal is liable to be allowed. After setting aside the judgment and decree dated 02.09.2009, passed by the learned Additional District Judge (I), Kangra at Dharamshala (H.P.), in Civil Appeal No. 113- D/04, titled ‘Vinod Kumar & Anr. vs. Desh Raj & Anr.’, the parties are relegated to the Court of First Appeal. 53. It is directed that if the respondents prefer an independent, separate appeal within a period of three weeks from today, both Civil Appeal No. 113-D/2004 and the new appeal shall be decided together expeditiously. It is made clear that if the respondents fail to do so within three weeks from today, they shall lose the benefit of this order. 54. Therefore, after allowing the present Regular Second Appeal, the appeal is remitted to the Court of the learned First Appellate Court by restoring it to its original number, to be decided alongside the other appeal, if any, filed by the respondents on or before 30.04.2026. Parties are directed to remain present before the First Appellate Court on 11.03.2026. 55. The pending application(s), if any, also stands disposed of.