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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4833 OF 2022

(Arising out of SLP (C) No.948 OF 2018)

SATYENDER AND ORS. …….APPELLANTS

VERSUS

SAROJ AND ORS. …….RESPONDENTS

J U D G M E N T

Sudhanshu Dhulia, J.

1. This appeal is against judgment dated 19.07.2017 of the

High Court of Punjab & Haryana given in a Second Appeal (No.

140 of 2009) which was partly allowed by the High Court.

2. The case arises out of the proceedings initiated by the

plaintiffs (respondents herein) for declaration and possession on

an agricultural land. Suit was filed by the plaintiffs, claiming to be

owners of the property, which in total measured 80 Kanals, 19

Marlas. The property is in the revenue village Gagarwas, Tehsil

Loharu, District Bhiwani (Haryana). Their case was that defendant

No. 2 was their tenant who had sub-let the land to his son

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(defendant No.1), without the consent of the plaintiffs/landlords

and hence, the two defendants were liable to be evicted and the

possession of the land was to be handed over to the plaintiffs. The

plaintiffs additionally had built their case on an assertion that the

land was earlier in possession of one Ram Kaur on which Ganpat

Rai, the father of defendant No. 2 was the tenant. Ganpat Rai

surrendered his tenancy of the disputed land to Ram Kaur in the

year 1976. Later in the year 1994, the plaintiffs had won a suit

against Ms. Ram Kaur and the land which is the subject matter of

the present dispute now belongs to them, hence they have

stepped into the shoes of Ms. Ram Kaur and are now the owners

of the property.

3. Defendant No. 1 (Satyender) is the son of defendant No.2

(Ishwar Singh). The stand taken by defendant No.1 was that he

had no concern with the land in question. The defence set up by

him was that he was born in the year 1966 and hence, he was only

twelve years of age in the year 1978 when the sub-tenancy is

alleged to have been created in his favour, as per the revenue

records. He never cultivated the land and the cultivation was

done by his father and his two uncles, and the entries made in the

revenue record showing him to be a tenant or a sub-tenant are

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wrong and have been made by the plaintiffs, in collusion with the

revenue officials.

4. Defendant No.2 filed a separate written statement.

According to defendant No. 2, one Indraj was the original owner

of the property, who had given this land in tenancy to defendant

No. 2’s father Ganpat Rai. Indraj died in the year 1976 and was

succeeded by Ms. Ram Kaur. Meanwhile, the father of the

defendant No. 2, Ganpat Rai died in the year 1978 and

consequently he and his two other brothers namely, Sombit and

Om Prakash had jointly inherited the tenancy. Thereafter, all the

three brothers became tenants under Ms. Ram Kaur and they

continued to be in possession of the suit property. They denied

that they were ever tenant of the plaintiffs.

5. In addition to their written statement, a counter claim was

also set up by defendant No. 2. The defendant No.2 claimed in his

written statement that in addition to the Khasra and Killa numbers

given in the plaint, he was also in possession of two other Killa

nos. i.e., 6//18 and 23. In other words, their counter claim on the

above two mentioned plot numbers was in addition to the claim

on the plots as mentioned by the plaintiffs. The suit was ultimately

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dismissed by the Trial Court on the findings that the plaintiffs

could neither prove their right on the property, nor could they

prove the fact that the defendant No.2 had created a sub-tenancy

in favour of his son, i.e., defendant No.1. The counter claim set up

by the defendant No. 2 was decreed.

6. The first appeal filed by the plaintiffs was also dismissed by

the Appellate Court. The Appellate Court too held that there was

a heavy burden on the appellants to prove that the tenancy of

Ganpat Rai had come to an end in the year 1976 by surrendering

the possession of the disputed land. This could not be proved by

the plaintiffs. It was also the finding by the Lower Appellate Court

that after the death of Ganpat Rai, tenancy was inherited by his

three sons namely, Sombir, Ishwar and Om Prakash. Therefore,

all of them should have been impleaded as party in the case

because the outcome of the suit would affect them as well.

Since they have not been impleaded as a party therefore, the

suit is bad for non-joinder of the necessary parties. Regarding

the counter claim, it was held by the First Appellate Court that

as a natural consequence of dismissal of the suit, the counter

claim of the defendants qua Killa No. 6//18 and 23 was rightly

decreed.

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7. The matter was taken in second appeal by the plaintiffs. The

second appeal of the plaintiffs was partly allowed. Though the

High Court in the second appeal upheld the findings of the two

Courts on the sub-letting and tenancy and upheld the findings of

the lower courts in favour of the defendants as there was no sub-

letting of the land, yet in the same breath the High Court has

allowed the claim of the plaintiffs on the two plots i.e., 21//3/2 and

7//13 for the reasons that for these two plots though the plaintiffs

had raised their claim and the defendants had not raised any

counter claim on these plot numbers, which went uncontested.

8. In addition, it was also held by the High Court that the

counter claims set up by the defendant (on plot Nos. 6//18 and

23) could not be decreed since the plaintiffs themselves had not

set up any claim whatsoever for these two plots, i.e., Killa No.

6//18 and 23 and therefore under provisions of Order VIII, Rule

6A of the Code of Civil Procedure 1908 (hereinafter referred to as

“CPC”), an independent counter claim having nothing to do with

the plaintiffs can never be allowed.

9. The defendants are now before this Court. The first ground

raised by the counsel for the appellant/defendant before this

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Court is that the High Court while deciding a second appeal did

not formulate any substantial question of law, which was an

essential requirement under Section 100 of the CPC. The learned

counsel would argue that a second appeal can only be admitted

and heard on a substantial question of law and since no

substantial question of law was formulated nor any arguments

advanced by the parties before the Second Appellate Court (High

Court) as mandated by Section 100 of the CPC, the order of the

High Court is liable to be set aside on this ground alone. This

seemingly attractive argument, however, does not hold any good

in the present case as the subject matter of the present dispute is

from Haryana where the governing provision would be Section

41 of the Punjab Courts Act, 1918 and not Section 100 of CPC. This

was held by a Constitution Bench of this Court in Pankajakshi &

Ors. v. Chandrika & Ors.

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which was later followed in Kirodi v.

Ram Parkash & Ors.

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10. Section 100 of the CPC as it stands today indeed mandates

that a second appeal would lie before the High Court only on a

substantial question of law, and a Second Appeal has to be heard

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(2016) 6 SCC 157

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(2019) 11 SCC 317

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on the substantial question of law, so formulated by the High

Court. The provision of second appeal as it stands today was

inserted in the CPC by Amendment Act No. 104 of 1976. Prior to

the 1976 amendment, there was no requirement of substantial

question of law. The earlier, i.e., unamended position read as

under: -

“100. Second appeal – (1) “Save where otherwise

expressly provided in the body of this Code or by

any other law for the time being in force, an

appeal shall lie to the High Court from every

decree passed in appeal by any Court

subordinate to a High Court on any of the

following grounds, namely:

(a) the decision being contrary to law

or to some usage having the force of

law;

(b) the decision having failed to

determine some material issue of law

or usage having the force of law;

(c) a substantial error or defect in the

procedure provided by this Code or

by any other law for the time being in

force, which may possibly have

produced error or defect in the

decision of the case upon the merits.

(2) An appeal may lie under this section from an

appellate decree passed ex parte.”

Under the Punjab Courts Act, 1918, a similar provision is given as

regards a second appeal. This is in Section 41 of the Act which is

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in pari materia to the unamended Section 100 of the CPC and

reads as follows: -

“41. Second appeal— (1) An appeal shall lie

to the High Court from every decree passed in

appeal by any Court subordinate to the High

Court on any of the following grounds, namely:

(a) the decision being contrary to

law or to some custom or usage

having the force of law:

(b) the decision having failed to

determine some material issue of

law or custom or usage having the

force of law,

(c) a substantial error or defect in the

procedure provided by the Code of

Civil Procedure 1908 [V of 1908], or

by any other law for the time being

in force which may possibly have

produced error or defect in the

decision of the case upon the merits;

[Explanation. - A question relating to

the existence or validity of a custom

or usage shall be deemed to be a

question of law within the meaning of

this Section]

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(2) An appeal may lie under this section from

an appellate decree passed ex parte.”

11. Initially, it was held by this Court (in Kulwant Kaur v.

Gurdial Singh Mann

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) that after the 1976 Amendment, Section

100 of the CPC would be applicable in Punjab & Haryana and not

Section 41 of the Punjab Courts Act, 1918 and a second appeal has

to be decided only on a “substantial question of law”. It was held

that after the 1976 Amendment Act, Section 41 of the Punjab

Courts Act, stood repealed. Additionally, it was also held that

Section 41 of the Punjab Courts Act was repugnant to Section 100

CPC in view of Article 254 of the Constitution of India.

12. As referred above, the present Section of the 100 CPC was

inserted in the CPC by the Amendment Act of 1976. Section 97 of

the Amendment Act of 1976 which was relied upon by this Court

in Kulwant Kaur reads as under: -

“97. Repeal and savings. — (1) Any

amendment made, or any provision

inserted in the principal Act by a State

Legislature or a High Court before the

commencement of this Act shall,

except insofar as such amendment or

provision is consistent with the

provisions of the principal Act as

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(2001) 4 SCC 262

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amended by this Act, stand

repealed.”

In Pankajakshi (supra) a Constitution Bench held that the

reasoning given in Kulwant Kaur (supra) for holding that Section

41 of the Punjab Courts Act stood repealed was not correct.

Section 97 of Amendment Act of 1976 provides that only such

provisions would stand repealed which were inserted in the

principal Act (i.e., Code of Civil Procedure, 1908), by a State

Legislature or High Court before the commencement of this Act

(i.e., 1976 Amendment Act). As Section 41 of the Punjab Courts

Act was neither an amendment in the principal Act nor a

provision inserted in the principal Act therefore, it would not be

covered by Section 97 of the Amendment Act of 1976, and there

was hence no question of it being repealed under the provisions

of Section 97 of the Amendment Act, 1976.

13. It was further held [in Pankajakshi] that the question of

repugnancy and its application was also not correctly decided in

Kulwant Kaur as Article 254 of the Constitution of India, was not

applicable in that case. Section 254 would be applicable only to

the laws made after the implementation of the Constitution of

India and Section 41 of the Punjab Courts Act is of 1918 vintage

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and it was not made by a Legislature of the State after the

Constitution of India had come into force. The Punjab Courts Act,

1918 was enacted under the provisions of the Government of India

Act, 1935 and although by Article 395

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of the Constitution of India,

the Government of India Act, 1935 stood repealed yet by virtue of

provisions of Article 372(1)

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of Constitution of India all the laws in

force in the territory of India immediately before the

commencement of the Constitution were to continue in force until

altered or repealed or amended by a competent legislature or

other competent authority. Since Section 41 of the Punjab Courts

Act has not been altered, repealed or amended by State

Legislature of Punjab or Haryana, it will continue to be in force.

14. We may also add here that we are presently concerned with

the laws in the State of Haryana. All the same, the laws as

applicable in Punjab in the year 1918, were also applicable to the

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Article 395-Repeals The Indian Independence Act, 1947, and the Government of

India Act, 1935, together with all enactments amending or supplementing the latter

Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are

hereby repealed.

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372(1) Notwithstanding the repeal by this Constitution of the enactments referred to

in Article 395 but subject to the other provisions of this Constitution, all the laws in

force in the territory of India immediately before the commencement of this

Constitution, shall continue in force therein until altered or repealed or amended by

a competent Legislature or other competent authority.

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present territory of Haryana since it was then a part of the State of

Punjab. Later on, the creation of the new State of Haryana, under

the provision given in Section 88 of the Punjab Re-organization

Act, 1966, the laws applicable in the erstwhile State of Punjab

continued to be applicable in the new State of Haryana.

Furthermore, State of Haryana formally adopted the laws of the

erstwhile State of Punjab, under Section 89 of the Punjab Re-

Organisation Act, 1966. Therefore, in the State of Haryana a court

in second appeal is not required to formulate a substantial

question of law, as what is applicable in Haryana is Section 41 of

the Punjab Courts Act, 1918 and not Section 100 of CPC.

Consequently, it was not necessary for the High Court to

formulate a substantial question of law.

15. Be that as it may, though the requirement of formulation of a

substantial question of law was not necessary, yet Section 41 of

the Punjab Courts Act, requires that only such decisions are to be

considered in second appeal which are contrary to law or to some

custom or usage having the force of law or the court below have

failed to determine some material issue of law or custom or usage

having the force of law. Therefore, what is important is still a

“question of law”. In other words, second appeal is not a forum

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where court has to re-examine or re-appreciate questions of fact

settled by the Trial Court and the Appellate Court. The plaintiffs

had claimed right over certain agricultural land and their case

was that they have the right to be declared the owner of this

property and the possession be handed over to the them, for the

reasons that on this particular property defendants and their

predecessors-in-interest were the tenants of the plaintiffs. Their

case was that defendant No. 2 was their tenant who had sub-let the

property in favour of his son, that is defendant No. 1 and therefore,

the property should be reverted back to the plaintiffs and they

should be declared the owner and should be given the possession

of the property as well. Both the Trial Court as well as the First

Appellate Court had held after evaluating the evidence placed by

the plaintiffs that the defendant No. 2 and his brothers (who were

not even made a party by the plaintiffs) were the tenants on the

property and defendant No.2 had not sub-let the property in

favour of his son that is defendant No. 1 and the revenue entries

being made in this regard in the year 1978 are wrong and without

any basis as there was no order of any revenue authority for

making such an entry. In short, the plaintiffs had failed to prove

their case as owner of the land in dispute. Hence their case of

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declaration and possession was dismissed. The Second Appellate

Court however, quite erroneously, and without any justification,

gave an entirely new finding regarding two Killa Nos. 21//3/2 and

7//13 on which the plaintiffs claimed relief of declaration and

possession, on the same grounds as raised by them for the other

Killa Nos. The pleadings also show that the defendants had made

a general denial of the plaintiffs’ claim for all the plots. Yet, the

High Court held that since the defendants had not made any claim

for plot nos. 21//3/2 and 7//13 and therefore by logic a decree of

declaration of possession ought to have been given to the

plaintiffs for these plots! This reasoning of the second Appellate

Court is erroneous for the simple reason that the burden of proof

was on the plaintiffs to prove their case, which they had failed.

They have not been able to prove to the satisfaction of the Trial

Court as well as the First Appellate Court about their claim of any

kind over this property. Merely because the defendant did not

raise a counter claim on this property it would not ipso facto mean

that a decree ought to have been granted in favour of the

plaintiffs. Plaintiffs have to prove their case on the strength of

their evidence. For this reason, the reasoning given by the

Second Appellate Court for decreeing the claim of the plaintiff for

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plot nos. 21//3/2 and 7//13 is incorrect and to that extent is liable

to be set aside.

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. 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

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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 counter-

claim.

(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

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separate or independent cause of action (Jag Mohan Chawla &

Anr. v. Dera Radha Swami Satsang & Ors.

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).

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

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(1996) 4 SCC 699

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been rightly rejected by the High Court.

17. The judgment and order dated 19.07.2017 passed by the

High Court to the extent that it has decreed the claim of the

plaintiffs on Killa Nos. 21//3/2 and 7//13 is hereby set aside. This

appeal hence stands disposed of on the aforesaid terms.

…………………………………J.

(UDAY UMESH LALIT)

…………………………………J.

(S. RAVINDRA BHAT)

.…………………………………J.

(SUDHANSHU DHULIA)

New Delhi;

August 17, 2022.