JUDGMENT :

1. The present second appeal has been preferred against the judgment and decree dated 28.08.2023 passed by the Additional District Judge No.5, Jodhpur Metropolitan in Civil Appeal No.22/18 whereby the judgment and decree dated 02.05.2018 passed by the Additional Civil Judge No.9, Jodhpur Metropolitan in Civil Suit No.02/16 (NCV No.13291/2014) has been affirmed.

Vide judgment and decree dated 02.05.2018, learned Trial Court proceeded on to decree the suit as preferred by the plaintiff for permanent and mandatory injunction.

2. It is relevant to note at this stage itself that, a counter claim was also filed by the defendant in the said suit qua which issue No.9 was framed. Although issue No.9 has been decided against the defendant, the operative portion of the judgment and decree dated 02.05.2018 does not make any mention of allowing or rejection of the counter claim. The first Appellate Court proceeded on to affirm the judgment and decree of the learned Trial Court but it too did not make any mention about the allowing or dismissal of the counter claim of the defendant.

3. Learned counsel for the appellant raised three grounds before this Court, firstly, the patta/lease in question on basis of which the plaintiff claimed his ownership was obtained by fraud and hence, the said document was void ab initio. It has been submitted that no decree could have been passed on basis of a fraudulent document and further that, even if no ground/counter claim for declaration of the said document to be void was raised/made, the same being void ab initio, could not have been relied upon by both the Courts below. In support of his submission, counsel relied upon the judgment passed in the case of Prem Singh & Ors. vs. Birbal & Ors., (2006) 5 SCC 353. Secondly, the learned Trial Court committed a serious illegality in not complying with the provisions of Order 13 Rule 4, CPC. The documents as exhibited do not bear the signature of the Presiding Officer which is a mandate in terms of provisions of Order 13 Rule 4, CPC. Hence, because of the said illegality, the documents as exhibited could not have been read in evidence. Thirdly, as the impugned judgment and decree does not reflect anything about the result of the counter claim as preferred by the defendant, the same is a nullity and deserves to be set aside on this count alone.

4. Per contra, in response to the arguments raised by learned counsel for the appellant, learned counsel for the respondent submitted as under:-

i) It was nowhere the case of the appellant that the document i.e. patta/lease in question was a forged document. The only averment raised by the plaintiff was that the said patta has been obtained dehors the law and hence, is invalid. The ground that the patta is forged has been raised for the first time before this Court and hence, cannot be entertained.

Further, the plea regarding a document being invalid does not ipso facto make the same forged and hence, cannot be said to be void until and unless the same is proved to be so.

ii) The averment of the plaintiff that the patta was obtained by fraud cannot also be considered in absence of impleadment of the authority issuing the said patta.

iii) Once the plaintiff raise a plea of adverse possession, he is estopped from challenging the title of the defendant. It was the specific averment of the plaintiff himself that he is in possession of the property in question since last more than 12 years and hence, prayed for a decree in his favour on the basis of adverse possession. Since the said plea has been raised, it would be presumed that he has admitted the title of the defendant and hence, cannot be permitted to question the same.

iv) So far as the ground of non-compliance of provision of Order 13 Rule 4, CPC and no order regarding the counter claim of the defendant having been made is concerned, both the grounds were not even raised by the appellant before the first Appellate Court. Even before this Court, the ground of the counte