Point of Law : Admittedly were to act as res judicata, filing of one appeal only against said two decrees at stage of preferring an appeal under Section 96 of Civil Procedure Code was fatal as has been rightly held by learned Appellate Court.

JUDGMENT :

1. As both these appeals arise out of the judgment and decree dated 15.02.2016, passed by the Court of learned Civil Judge (Junior Division), Jawali, District Kangra, H.P., in Civil Suit No.97 of 2006, alongwith Counter Claim No.23/16/2006, as affirmed by the Court of learned District JudgeII, Kangra at Dharamshala, H.P., vide judgment and decree dated 04.12.2019, in Civil Appeal No.14J/ 2016, the same are being disposed of with the consent of the parties by a single judgment.

2. Brief facts necessary for the adjudication of the present appeals are as under :-

The appellants/plaintiffs filed a suit for declaration and permanent prohibitory injunction against the respondents qua the suit land, stating in the plaint that earlier they were Gair Marusi tenants over the suit land and defendants were having no right, title or interest over the suit land and had no right to get the suit land partitioned and that plaintiffs had become owners of the suit land by virtue of the provisions of the Himachal Pradesh Tenancy and Land Reforms Act. Accordingly, a declaration was sought that order passed by A.C. 1st Grade, Jawali, dated 07.04.2005, partitioning the suit land and orders dated 07.11.2005 and 30.08.2005, passed by S.D.M. Jawali, upholding the orders of partition, be declared as illegal, null and void. Further, consequential relief of permanent prohibitory injunction for restraining the defendants from interfering in the peaceful possession of the plaintiffs and dispossessing them from the structure and machinery on the basis of wrong orders was also prayed for. Alternatively, a relief of mandatory injunction and possession was also sought, on the ground that if during the pendency of the suit, defendants succeeded in dispossessing the plaintiffs, then their possession be restored.

3. The suit was resisted by the defendants. Defendants No.1, 2 and 4 resisted the suit, inter alia, on the ground that the plaintiffs were not in possession of the suit land as Gair Marusi tenants and there was no infirmity with the orders passed by the Revenue Authorities, which were sought to be declared as illegal and void. It was further the stand of said defendants that otherwise also the plaintiffs were having statutory remedy to challenge these orders which was not availed. It was further the case of said defendants that the suit land was lying vacant at the spot.

4. Defendant No.3 resisted the suit, inter alia, on the ground that neither the plaintiffs nor their predecessor-in-interest were ever inducted as Gair Marusi tenants over the suit land. As per defendant No.3, he had constructed a shed over the part of the suit land and father of the plaintiffs in the year 1972 took said structure on yearly rent of Rs.60/with the understanding that the same shall be returned to defendant No.3, when requested. The rent was increased in the year 1995 and was settled at Rs.500/per year. Further, as per defendant No.3, after the death of Nakelu Ram, plaintiffs came in possession of said shed and started paying annual rent on same terms. In the year 2002, intention of the plaintiffs changed and they stopped paying the rent and thereafter, defendants served a notice upon them under Section 106 of the Transfer of Property Act in terms whereof, the plaintiffs were requested to pay rent from March, 2002 onwards till March, 2005, but plaintiffs refused to admit the claim of the defendants. By way of said notice, plaintiffs were also called upon to hand over the vacant possession of the rented premises, as the same were required by defendant No.3 for personal necessity, but this was also not done. Defendant No.3 also filed a Counter-Claim for ejectment and recovery of rent, on the grounds already narrated hereinabove.

5. Learned Trial Court, in terms of judgment and decree dated 15.02.2016 dismissed the suit filed by the plaintiffs and decreed the Counter-Claim filed by defendant No.3. Para-53 of the judgment passed by the learned Trial Court reads as unde