2026:HHC:15245 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. : 527 of 2011 Decided on : 06.05.2026 Mast Ram (deceased) through LRs & Ors. …Appellants Versus Sangat Ram & Ors. …Respondents The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the appellants : Mr. Sumit Sharma, Advocate. For the respondents : Mr. Sanjeev Kuthiala, Senior Advocate, assisted by Ms. Tamanna Sharma, Advocate, for respondents No. 1 to 7. None for remaining respondents. Virender Singh, Judge (Oral) The appellants have preferred the present Regular Second Appeal, against the judgment and decree dated 09.09.2011, passed by the Court of learned Additional District Judge, Mandi, Camp at Karsog (hereinafter referred to as ‘the learned First Appellate Court’), in Civil Appeal No. 54 of 2010, titled as “Sangat Ram & Others Versus Smt. Lachmu & Others’. 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 2026:HHC:15245 2. Vide judgment and decree dated 09.09.2011, the learned First Appellate Court has allowed the appeal preferred by the present respondents, which had been preferred by them against the judgment and decree dated 04.05.2010, passed by the Court of learned Civil Judge (Junior Division) Karsog, District Mandi, H.P. (hereinafter referred to as ‘the learned trial Court’), in Civil Suit No. 42 of 2007, titled as “Sangat Ram & Others Vs Smt. Lachmu & Others’. 3. Vide judgment and decree dated 04.05.2010, the learned trial Court has dismissed the suit preferred by the present respondents for declaration and the counter claim has been decreed. Relevant paragraph 21 of the judgment of the learned trial Court, is reproduced as under: “21. In view of my findings on the aforesaid issues, suit filed by the plaintiffs is dismissed and counter claim is decreed. Counter claimants are entitled to possession of suit land comprised in Khewat No. 5, Khatauni No. 14, Khasra No. 575/416 situated in muhal Bhadarnu. Counter claim be registered, if not earlier registered. Let decree sheet be drawn accordingly. File after due completion be consigned to record room.” 3 2026:HHC:15245 4. The relief, which has been granted by the learned First Appellate Court in the above appeal, is reproduced as under:- “25. In view of the above, present appeal is accepted and judgment passed by the learned trial Court is set aside. Plaintiffs are declared to be owners in possession of land comprised in Khewat Khatauni No. 5/10, Khasra No. 416/3/3 measuring 2-16-12 bighas situated in Bhadarnu, Tehsil Karsog, District Mandi, as mentioned in rapat rojnamcha No. 434 dated 03.06.1970 and the defendants are restrained from interfering with the suit land. Since Rs. 500/- which were admitted to be paid in the year 1970 were not paid, therefore, plaintiffs are directed to pay an amount of Rs. 1,50,000/- to the defendants. Counter claim filed by the defendants is dismissed. Decree sheet be prepared.” 5. Perusal of the said judgment and decree passed by the First Appellate Court, demonstrates that the appeal of the plaintiffs was allowed and their suit was decreed, whereas the counter claim of the defendants was ordered to be dismissed. 6. For the sake of convenience, parties to the lis, are hereinafter, referred to, in the same manner, in which, they were referred to, by the learned trial Court. 7. Perusal of the record shows that the plaintiffs filed the suit for permanent prohibitory injunction, with respect to the land bearing Khewat No. 5, Khatauni No. 14, Khasra No. 575/416 (hereinafter referred to as ‘the suit 4 2026:HHC:15245 land’). In the said suit, the defendants have also filed the counter claim. Vide judgment and decree dated 04.05.2010, the learned trial Court has dismissed the suit of the plaintiffs, whereas, the counter claim preferred by the defendants has been decreed and counter claimants were held entitled for possession of the suit land. 8. Admittedly, the plaintiffs instead of filing two different appeals before the learned First Appellate Court have assailed the judgment and decree dated 04.05.2010, by way of a single appeal, which has been allowed by the learned First Appellate Court. 9. In view of the decision of this Court in “Ramesh Chand Versus Om Raj and others, 2022 (2) Shim. LC 1145”, two appeals were required to be filed by the appellants, one, against the dismissal of their suit by the learned trial Court and second, against the judgment and decree, by virtue of which, the counter claim of the defendants was decreed. In this regard, it is apt to reproduce relevant paragraph 42 of the judgment, as under:- “42. The principles deducible from the afore- discussed law can be summarized as follows:- 5 2026:HHC:15245 (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 estoppel and the judgment and decree not appealed against would be taken to have been acquiesced to by the party not filing appeal; 6 2026:HHC:15245 (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.” 10. The present case falls within the ambit of point 42(iv) of the said judgment. 11. In view of the above, now next question, which arises for determination, before this Court is as to whether the plaintiffs can be non-suited on account of non- assailing the judgment and decree, by virtue of which the counter claim of the defendants was decreed. The answer to this question is in negative, in view of the decision of Hon’ble Supreme Court in “Charan Singh Versus Ram Saroop, SLP (C) D. No. 59467/2024, decided on 7 2026:HHC:15245 February 03, 2025”. The relevant paragraphs 8 and 9, of the judgment, are reproduced, as under: “8. The first appellate court having failed to alert the appellant, we would have expected the High Court to intervene to set right the wrong by its interdiction. Technicality of a nature such as this should not have been allowed to prevail over substantive justice. The appellant had filed two second appeals before the High Court, meaning thereby that he had been properly advised while such advice might have been missing in the district of which the parties are residents. Unfortunately, the High Court did not address the point from the proper perspective either. While spurning the objection of learned counsel for the respondents, who has vehemently argued that there is no occasion to interfere since the appellant did not adhere to the law, we find good reason and ground to interfere. 9. For the ends of justice, we set aside the impugned second appellate judgment and decree of the High Court together with the first appellate judgment and decree. This would result in revival of the first appeal on the file of the first appellate court. We grant liberty to the appellant to file a separate memorandum of appeal, without certified copy of the impugned judgment and decree, within three weeks from date. Once it is filed, the same shall be registered without limitation being treated as a bar. Should there be a default, the appellant shall lose the benefit of this order.” 12. Being guided by the above decision of Hon’ble Apex Court, the present appeal is allowed, by setting aside the judgment and decree passed by the learned First Appellate Court, and the first appeal is ordered to be 8 2026:HHC:15245 revived and restored to its original number in the files of the learned First Appellate Court, by granting the liberty to the plaintiffs to file the new appeal assailing the judgment and decree, by virtue of which, the counter claim of the defendants was decreed, within a period of four weeks, from the date of their appearance before the learned First Appellate Court. 13. In view of the persuasive submissions made by learned counsel appearing for the plaintiffs, they are exempted from filing the certified copy of the judgment and decree of the learned trial Court, while filing the appeal before the learned First Appellate Court. 14. It is further clarified that if the appeal is filed within prescribed period i.e. four weeks, in that eventuality, question of limitation will not arise against the plaintiffs. 15. Parties to the lis, through their counsel, are directed to appear before the learned First Appellate Court on 22.05.2026. 16. The amount, which has been deposited by the plaintiffs, before this Court, be also remitted back to the 9 2026:HHC:15245 learned First Appellate Court, along with up to date interest. 17. Record be sent back immediately. (Virender Singh) 06th May, 2026 Judge (Pramod Kumar)