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CASE NO.: Appeal (civil)  4517 of 2006

PETITIONER: ROHIT SINGH & ORS

RESPONDENT: STATE OF BIHAR (NOW STATE OF JHARKHAND) & ORS

DATE OF JUDGMENT: 17/10/2006

BENCH: S.B. SINHA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

(ARISING OUT OF S.L.P. (C) NO.22886 OF 2005  and  CIVIL APPEAL NO.4518 OF 2006 (ARISING OUT OF SLP (C) No.4168 of 2006)

P.K. BALASUBRAMANYAN, J.

1.              Leave granted.   

2.              Respondent No. 6 herein as the Plaintiff filed a suit  T.S. No. 9 of 1996 for a declaration of his title to the suit  property, for confirmation of his possession over it and if it  were to be found that the plaintiff had been dispossessed from  the plaint schedule property during the pendency of the suit,  for the grant of a decree for recovery of possession through the  process of court, for a perpetual injunction restraining the  defendants from interfering with his peaceful possession of the  plaint schedule property and for other incidental reliefs.  The  suit was filed against two defendants; the Divisional Forest  Officer and the State of Bihar, who are respondents 1 and 2  herein.  Defendants 1 and 2 filed a written statement denying  the claim of title and possession by the plaintiff.   They  pleaded that the property was vested forest having been  notified as such under Section 29 of the Forest Act, 1927,  which remained vested in the State; that the plaintiff had no  cause of action and that the suit was not maintainable for  want of notice under Section 80 of the Code of Civil Procedure.   The suit went to trial.  Evidence was closed.  Arguments  concluded.  Judgement was reserved.   

2.              At that stage, certain third parties who are the  appellants herein, filed an application under Order I Rule  10(2) of the Code of Civil Procedure claiming that they are in  possession of properties including the suit property as owners  and that they have right, title, interest and khas possession  over the suit land.  They submitted that their presence before  the court was necessary in order to enable the court to  effectually and completely adjudicate upon and settle all the  questions involved in the suit.  It is to be noted that there was  no allegation that the plaintiff was attempting to interfere with  their right or possession.  It was only stated that they had  come to know that the plaintiff had filed a suit based on some  illegal and invalid documents and was proceeding with the

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suit speedily without impleading them. The said application  was allowed by the trial court.   The impleaded parties were  ranked as defendants 3 to 17 in the suit.   

3.              A written statement was filed on behalf of  defendants 3 to 12 disputing the claim of the plaintiff and  pleading that the suit properties were held by them as  descendants of one Tikait Maharaj Singh and they were in  khas possession of the land.  They pleaded that they were in  peaceful possession of the plaint schedule property by  inheritance that they and their ancestors have acquired raiyati  right over a large extent of land which took in the suit land,  both under law by adverse possession and under the  provisions of the Bihar Land Reforms Act.   They reiterated  that they were claiming to be in peaceful possession of the suit  lands ever since the time of their ancestors.   The land had not  been demarcated by the forest authorities in the year 1964-65.

4.              In the mean time, certain other persons claiming to  be lessees of portions of the land filed applications for getting  themselves impleaded in the suit.  They were ranked as  defendants 18 to 20 by the court which, though permitted  their intervention, directed that they can only watch the  proceedings and participate in the trial but they would have  no right to file any written statement.   

5.              Again, after some delay and after the suit had gone  on, an application was made on behalf of defendants 12 to 17  seeking an amendment of the written statement earlier filed  and adding a sentence at the end of paragraph 16 reiterating  their claim of acquisition of title based on long and  uninterrupted possession.  This amendment was allowed by  the trial court.  We think that it will be useful to quote  paragraph 16 of the written statement as amended. "16.    That the statements made in paras 9 to  11 are incorrect and concocted and are denied.   These defendants are in peaceful possession of  the suit lands ever since the time of their  ancestors. These defendants have claimed  acquisition of title based on long and  uninterrupted possession so they crave leave  to get their title declared in the suit for which a  declaratory court fee is paid."

It is seen that the trial court permitted them to pay the court  fee as proposed by them.   But, it has to be seen that no  prayer for a decree was added in the written statement by way  of amendment, even for the declaration sought for, for which  court fee was paid.

6.              The manner in which the trial court went about  trying the suit is baffling.  Clearly, the relevant procedural and  other aspects were ignored by the trial court or were not  brought to its notice.   Impleading third parties against whom  the plaintiff was making no claim and that too after the issues  are framed, evidence is closed, arguments are concluded and  judgment is reserved was not proper.   Thereafter, after again  closing the evidence permitting them to make a vague  amendment to their written statement and permitting them to  pay court fee on a relief which was not even claimed as a  specific relief in the written statement and entertaining the  vague claim not even supported by the necessary pleadings  can only be described as strange.  

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7.              Ultimately, the trial court held that the suit by the  Plaintiff was not maintainable for want of notice under Section  80 of the Code of Civil Procedure.  It further held that the  plaintiff has not established his claim based on a Hukamnama  allegedly granted by one F.F. Christian and that the plaintiff  had failed to prove his possession or right to possession.  Thus  the suit was found liable to be dismissed.  Thereafter, the trial  court proceeded, as if defendants 3 to 17 have made a  counter-claim in the suit as against defendants 1 and 2, and  defendants 18 to 20 and that it has to adjudicate on such a  counter-claim.  It recorded a clear finding: "Of course, there is no tangible proof of act of  possession on the day of vesting but I find that  his case has not at all been denied by either  plaintiff or defendants 1 and 2."

Then, it proceeded to grant a decree to defendants 3 to 17 on  the ground of non-traverse.  This was on the basis that on the  trial court allowing the amendment of the written statement by  defendants 12 to 17 and on their paying court fee, there has  come into existence a counter-claim in terms of Order VIII  Rule 6A of the Code and since the plaintiff, defendants 1 and 2  or defendants 18 to 20 had not filed any answer to the  counter-claim, that must be treated as a default under Order  VIII Rule 6E of the Code and defendants 3 to 17 should be  granted a decree on the basis that the counter-claim had not  been denied.  It totally forgot its own order (the correctness of  which itself is doubtful) that though added, defendants 18 to  20 were not entitled to file written statements and were merely  to be observers.  Nor did it bear in mind that the suit had  never been posted for the pleadings of the plaintiff or of  defendants 1 and 2 in answer to the alleged counter-claim.   Thus, on the basis of the alleged default in filing an answer to  the counter-claim, the trial court decreed the counter-claim of  defendants 3 to 17.   A decree was hence passed dismissing  the suit and decreeing the counter-claim declaring that  defendants 3 to 17 are and have got absolute right, title and  interest in the suit property and they are entitled to recovery of  possession of the same.  From whom, it was not clarified.   It  was not noticed that there was no prayer for recovery of  possession or for any relief consequential to the declaration  sought for though not by way of a formal prayer.  

8.              Defendants 1 and 2 challenged the decree of the  trial court in T.A. No. 26 of 2000.  Defendants 18 to 20 on  their part challenged the decree of the trial court in T.A. No.  24 of 2000.  In both these appeals though the plaintiff was  impleaded as a respondent and he was served, he did not even  appear.  Of course, he did not also file an appeal against the  dismissal of his suit.   The dismissal of  the suit thus became  final.

9.              The learned Additional District Judge, who heard  the appeals, rejected the initial prayer of defendants 18 to 20  that the suit be remanded to the trial court and they be given  an opportunity to file a written statement in the suit or an  answer to the alleged counter-claim on the ground that they  had not challenged the order of the trial court initially made,  impleading them and ordering them only to watch the  proceedings.  Obviously, the court failed to see that such an  interlocutory order could also be challenged in an appeal from  the decree by invoking Section 105(1) of the Code of Civil  Procedure.    Thereafter, disbelieving a notification issued on  8.12.1953 under Section 29 of the Indian Forest Act, 1927 on

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the ground that issues of the vernacular newspapers in which  its translation was published had not been produced by the  State to show that the procedural requirements were complied  with, the court proceeded to dismiss the appeal of defendants  1 and 2 on the same basis as adopted by the trial court, that  defendants 1 and 2 had not filed an answer to the alleged  counter-claim made by defendants 3 to 17.  That court did not  properly consider the question whether there was in fact a  counter-claim in law, whether such a counter-claim was  maintainable and whether a counter-claim could be  entertained after closure of evidence, that too at the instance  of some strangers who sought to get themselves impleaded so  as to assert their right, not against the plaintiff, but against  the State, the defendant.  It did not also investigate whether  the title claimed by defendants 3 to 17 was established by  them.  It did not also scrutinise whether there was adequate  pleading as known to law in support of a case of prescriptive  title, whether such an inconsistent prescriptive title could be  set up after claiming proprietary title in the property and  whether there was any acceptable evidence to establish a title  by adverse possession.   The manner in which the Additional  District Judge has disposed of the appeals and the questions  arising therein is more disappointing than the manner in  which the suit was tried and disposed of by the munsiff, who  could at least be assumed to be inexperienced.   One would  have expected the Additional District Judge to show a little  more awareness of the procedural and substantive law and his  obligation as a first appellate court.  Thus, the first appellate  court ended up by dismissing both the appeals but purported  to modify the decree of the trial court by declaring the title and  interest of defendants 3 to 17 and granting them a decree  permanently restraining defendants 1 and 2 and defendants  18 to 20 from carrying on further mining operations.  It did  not even advert to the written statement to see whether there  was any prayer in the so called counter-claim justifying such a  decree.  It incidentally noted that the suit of the plaintiff was  liable to be dismissed for want of notice under Section 80 of  the Code.   

10.             Being dissatisfied with the decision of the first  appellate court, defendants 1 and 2 filed S.A. No. 50 of 2004  in the High Court.  Defendants 18 to 20 filed S.A. No. 32 of  2004.  Both these appeals were admitted on the substantial  questions of law that were formulated by that court at the time  of admission.  The questions related to the jurisdiction to  entertain and decide the counter-claim of a set of defendants  made against another set of defendants, whether the court  had jurisdiction to decide the dispute inter se between the  defendants after dismissing the suit, whether the scope of a  counter-claim in terms of Order VIII Rule 6A of the Code had  not been totally misunderstood and whether on the pleadings  and the evidence in the case, the courts below were justified in  passing the decree on the counter-claim that was challenged  in the Second Appeal.  A learned judge of the High Court, on a  consideration of the relevant aspects, held that the courts  below without adverting to the requirements of Order VIII Rule  6A and without following the correct procedure of law had  treated the amendment petition as a counter-claim and had  passed a decree in favour of defendants 3 to 17 which was  unsustainable.  It was held that the courts had totally ignored  the correct procedure of law and the rules of evidence while  deciding the issue raised.  The judgments, hence could not be  sustained.  Thereafter, the second appellate court allowed the  Second Appeals and setting aside the decrees passed by the  trial and the first appellate courts, remanded the suit to the

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trial court for rendering a fresh judgment in accordance with  law on the basis of the evidence adduced by the parties.   Challenging the decision in the two Second Appeals, the  appeal has been filed by defendants 3 to 17 by filing two  separate petitions for special leave to appeal.   

11.             Learned counsel for the appellants contended that a  counter-claim was maintainable even if the cause of action put  forward by the defendants in the suit did not arise out of the  cause of action put in suit by the Plaintiff and that under such  circumstances, the trial court and the first appellate court  rightly considered the claim put forward by the appellants as a  counter-claim and were justified in adjudicating it in the  manner in which it was done.  It was also contended that  Order VIII Rule 6A of the Code did not preclude the filing of a  counter-claim by one defendant against a co-defendant even  though no relief was claimed as against the plaintiff.  It was  also contended that in the absence of an answer to the  counter-claim being filed by defendants 1 and 2 or defendants  18 to 20, the trial court was justified in proceeding on the  terms of Order VIII Rule 6E of the Code and in allowing the  counter-claim on the basis that there was no resistance or  answer to the claim made by way of amendment in the written  statement.  It is therefore submitted that the High Court was  not justified in interfering with the decision of the first  appellate court.  On the scope and content of Order VIII Rule  6A of the Code, he referred to various decisions including  those of this court, culminating in the one in Ramesh Chand  Ardawatiyab vs. Anil Panjwani (2003 (7) SCC 350) and  contended that the conclusion answered by the High Court  was not warranted.

12.             On behalf of defendants 1 and 2 in the suit, it is  contended that there was no counter-claim at all made by  defendants 3 to 17 as known to law, that such a counter-claim  as against defendants 1 and 2 was not maintainable; that a  counter-claim at the instance of persons who got themselves  impleaded after the evidence was closed and the trial was over,  could not be entertained, even if maintainable, that the High  Court having found that the counter-claim had been wrongly  entertained by the trial court and the first appellate court  ought to have simply allowed the second appeals and  dismissed the alleged counter-claim of defendants 3 to 17 and  the remand of the suit was not called for especially when the  suit filed by the plaintiff had been dismissed by the trial court  and he had not challenged the said dismissal.  It was therefore  submitted that once the counter-claim was found to be not  maintainable, all that was required to be done, was to vacate  the decree passed by the trial court and the first appellate  court on that counter-claim and to simply leave the suit of the  plaintiff as dismissed. On behalf of defendants 18 to 20 it was  submitted that the procedure adopted by the trial court and  the first appellate court was unknown to law and their  interests could not be affected without even permitting them to  file written statements in the suit and the decree that was  granted was even otherwise unsustainable, since there is no  prayer by way of counter-claim that they had to answer and  there is no discussion of the pleadings or the evidence by the  trial court and the first appellate court before upholding the so  called counter-claim of defendants 3 to 17.  It is also pointed  out that inconsistent cases have been set up by defendants 3  to17 and even if it was permissible, there was no pleading as  known to law in support of a case of adverse possession or  prescriptive title set up in the written statement and under  those circumstances there was absolutely no necessity for

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remanding the suit to the trial court.  The plaintiff’s suit  having been dismissed and that dismissal having become  final, the High Court should have simply vacated the decree on  the counter-claim and closed the litigation.   

13.             In reply, it is reiterated that in view of the  amendments to the Code brought about by Act 104 of 1976,  the scope for entertaining a counter-claim was enlarged and  the counter-claim made by the appellants falls well within the  ambit of Order VIII Rule 6A of the Code.

14.             We shall first consider whether there was a counter  claim in the suit in terms of Order VIII Rule 6A of the Code in  this case.   The suit was filed against the Divisional Forest  Officer and the State of Bihar as defendants 1 and 2 on  26.2.1996 by respondent No.6 herein.   After the written  statement was filed by the defendants issues were framed and  the suit went to trial.  On 3.6.1996 and 6.6.1996 the evidence  on the side of the plaintiff was concluded.   On 14.6.1996 the  evidence on the side of the defendants was completed.  On  24.6.1996 arguments were concluded.  Judgment was  reserved.  25.6.1996 was fixed as the date for pronouncing the  judgment.  The judgment was not pronounced and it appears  that the judge was subsequently transferred.  Therefore, on  20.8.1996 arguments were again heard by the successor judge  and judgment was reserved.  27.8.1996 was fixed as the date  for judgment.   Apparently, it was not pronounced.  It is  thereafter that defendants 3 to 17 filed an application on  11.9.1996 for intervention in the suit.  We have already  referred to the allegations in that application for impleading  filed. We only notice again that they claimed to be in  possession of the property and that their presence before the  court was necessary in order to enable the court to effectually  and completely adjudicate upon and settle all the questions  involved in the suit.   On 19.9.1996 the application for  intervention was allowed.   On 30.9.1996 a written statement  was filed by defendant Nos.3 to 12.   We have already  summarised the pleas raised therein.    

15.             After this, the witnesses of the plaintiff were recalled  and permitted to be cross-examined by these defendants.   That was on 5.10.1996.   Again the witnesses for defendants 1  and 2, were recalled and they were permitted to be cross- examined on behalf of these defendants.   The evidence on the  side of defendants 3 to 17 was let in.  It commenced on  24.2.1997 and was closed on 30.1.1997.   Thereafter  arguments were heard again and the arguments on the side of  the defendants including that of defendants 3 to 17 were  concluded on 4.3.1997.  The suit was adjourned for  arguments on the side of the plaintiff.   On 5.3.1997, the suit  was dismissed for default of the plaintiff.   It was then restored  on 29.5.1998.   It was thereafter on 5.6.1998, that defendants  3 to 17 filed an application for amending the written  statement.   The amendment was allowed on 20.7.1998.    There was no order treating the amended written statement as  a counter-claim or directing either the plaintiff or defendants 1  and 2 to file a written statement or an answer thereto.    Defendants 3 to 17 had questioned the pecuniary jurisdiction  of the trial court in their written statement.   That plea was  permitted to be withdrawn on 4.2.1999.   It is clear that after  the evidence was closed, there was no occasion for impleading  the interveners.  Even assuming that they were properly  impleaded, after they had filed their written statement, the  suit had gone for further trial and further evidence including

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that of the interveners had been taken, the evidence again  closed and even arguments on the side of the interveners had  been concluded.   The suit itself was dismissed for default only  because on behalf of the plaintiff there was a failure to address  arguments.  But the suit was subsequently restored.  At that  stage no counter-claim could be entertained at the instance of  the interveners.  A counter-claim, no doubt, could be filed  even after the written statement is filed, but that does not  mean that a counter-claim can be raised after issues are  framed and the evidence is closed.   Therefore, the entertaining  of the so called counter-claim of defendants 3 to 17 by the trial  court, after the framing of issues for trial, was clearly illegal  and without jurisdiction.   On that short ground the counter- claim so called, filed by defendants 3 to 17 has to be held to be  not maintainable.    

16.             As can be seen, what defendants 3 to 17 did, was to  merely amend their written statement by adding a sentence to  paragraph 16 of the written statement they originally filed.   In  paragraph 16 it was only pleaded that those defendants were  claiming to be in peaceful possession of the suit lands ever  since the time of their predecessors.   They wanted to add that  they had claimed acquisition of title based on long and  uninterrupted possession and they crave leave to get their title  declared in the suit for which a declaratory court fee is paid.    It may be noted that not even a prayer was sought to be added  seeking a declaration of their title as is the normal practice.   It  is, therefore, clear that on going through the original written  statement and the amendment introduced, that there was no  counter-claim in terms of Order VIII Rule 6A of the Code in the  case on hand, which justifies a trial of that counter-claim even  assuming that such a counter-claim was maintainable even if  no relief was claimed against the plaintiff in the suit but it was  directed only against the co-defendants in the suit.  The  counter-claim so called is liable to be rejected on that ground  as well.   17.             Thirdly, it is seen that the trial court never formally  treated the written statement as a counter-claim and give an  opportunity to defendants 1 and 2 or defendants 18 to 20 to  file their pleas in answer.   It was not open to the trial court to  proceed on the basis that no answer has been filed to the  counter-claim and a decree thereon can be granted in terms of  Order VIII Rule 6E of the Code.   The trial court clearly found  that there was no evidence on the side of defendants 3 to 17 in  support their claim of possession but still granted a decree to  defendants 3 to 17 only on the ground of the alleged default of  defendants 1 and 2 and defendants 18 to 20 in filing an  answer to the counter-claim made by defendants 3 to 17.    Strangely, the court failed to keep in mind its earlier order that  defendants 18 to 20, could not file a written statement and  they could only watch the proceedings and participate in the  trial.  The whole procedure adopted was unsustainable and  the decree granted on the so called failure of defendants 1 and  2 on the one hand and defendants 18 to 20 on the other, to  file an answer to the counter-claim, is clearly unsustainable in  law.

18.             Normally, a counter-claim, though based on a  different cause of action than the one put in suit by the  plaintiff could be made.  But, it appears to us that a counter- claim has necessarily to be directed against the plaintiff in the  suit, though incidentally or along with it, it may also claim  relief against co-defendants in the suit.   But a counter-claim  directed solely against the co-defendants cannot be

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maintained.  By filing a counter-claim the litigation cannot be  converted into some sort of an inter-pleader suit.   Here,  defendants 3 to 17 had no claim as against the plaintiff except  that they were denying the right put forward by the plaintiff  and the validity of the document relied on by the plaintiff and  were asserting a right in themselves.   They had no case even  that the plaintiff was trying to interfere with their claimed  possession.  Their whole case was directed against defendants  1 and 2 in the suit and they were trying to put forward a claim  as against the State and were challenging the claim of the  State that the land involved was a notified forest in the  possession of the State.   Such a counter-claim, in our view,  should not have been entertained by the trial court.

19.             The observations of this Court in Ramesh Chand  Ardawatiya  (Supra) that: "Looking to the scheme of Order 8 as amended  by Act 104 of 1976, we are of the opinion, that  there are three modes of pleading or setting up  a counter-claim in a civil suit.   Firstly, the  written statement filed under Rule 1 may itself  contain a counter-claim which in the light of  Rule 1 read with Rule 6-A would be a counter- claim against the claim of the plaintiff  preferred in exercise of legal right conferred by  Rule 6-A.   Secondly, a counter-claim may be  preferred by way of amendment incorporated  subject to the leave of the court in a written  statement already filed.   Thirdly, a counter- claim may be filed by way of a subsequent  pleading under Rule 9."

are of no avail to defendants 3 to 17 on the facts and in the  circumstances of this case.  In the reported decision, this  Court did not have to consider whether a counter-claim can be  filed after the trial is concluded and whether it could be solely  directed against a co-defendant.   The Court was also not  dealing with an inchoate counter-claim in that case.

20.             We also find that there was no prayer as such by  way of counter-claim.   A mere plea that prescriptive title may  be declared and payment of court fee for a declaratory relief  would not suffice.    Even assuming that this could be treated  as a prayer for declaration of title by defendants 3 to 17, there  was no warrant for granting a decree to defendants 3 to 17 for  recovery of possession as was done by the trial court by way of  counter-claim or a decree for permanent injunction as was  granted by the first appellate court.  Even the requisite court  fees were not paid.   Since the reliefs granted by those courts  are not reliefs prayed for, that part of the decree, in any event,  could not be sustained.

21.             As regards the finding that the notification under  Section 29 of the Forest Act has not been proved, the same  has also to be held to be unsustainable.  The Gazette  notification issued 32 years prior to the suit was produced and  marked in evidence and no circumstance proved, justified an  inference that it might not have been published as enjoined by  law.   The regularity of issue of such a notification should have  been presumed leaving it to defendants 3 to 17 to rebut that  presumption.   For the present, all that is required is to vacate  the finding in that regard entered by the lower appellate court.

22.             Having thus found that the counter-claim made by  defendants 3 to 17 could not have been entertained as a

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counter-claim in the case on hand, we find that the High  Court has committed an error in remanding the suit to the  trial court for proceeding with it afresh.  The suit filed by the  plaintiff had been dismissed by the trial court.   The plaintiff  had not appealed against the decree.   The dismissal of the  suit has thus become final.   Since the counter-claim sought  to be made is found to be not entertainable, obviously there is  no question of the counter-claim being tried as a counter- claim or being treated as a fresh plaint.  It is, therefore,  necessary, though defendants 1 and 2 and defendants 18 to  20 have not appealed to this Court against the decision of the  High Court, to modify the decision of the High Court by setting  aside the order of remand made by that court and simply  leaving it as a case where the suit would stand dismissed and  in which no counter-claim had been made.

23.             In this view, even while dismissing the appeal filed  by defendants 3 to 17, and upholding the decision vacating  the decree on the counter-claim, we set aside the order of  remand passed by the High Court and pass a decree  confirming the dismissal of the suit filed by the plaintiff and  holding that there was no valid or tenable counter-claim which  could be entertained in the present suit.   Defendants 1 and 2  would be entitled to their costs in the courts below from  defendants 3 to 17 and the parties are left to bear their  respective costs in this Court.