The court upheld that a failure to appeal a counter-claim can invoke the principles of res judicata and waive any rights to contest the opposing judgment.

Virender Singh, J.

1. Appellant-Shashi Prabha has preferred the present Regular Second Appeal, against the judgment and decree dated 27.12.2011, passed by the Court of learned District Judge, Kinnaur, Civil Division at Rampur Bushahr, Himachal Pradesh (hereinafter referred to as the ‘learned First Appellate Court’), in Civil Appeal No.44 of 2010, titled as ‘Ramesh Prakash & Others Versus Mohinder Singh & Another’.

2. Vide judgment and decree dated 27.12.2011, the learned First Appellate Court has allowed the appeal, by decreeing the suit, filed by respondents No.1 to 5 and dismissed the counter-claim, filed by the appellant, by granting the following relief:-

“34. As a sequel to my findings on the above points, this appeal succeeds and I allow it with the result, the impugned judgment and decree of the learned trial Court are set aside and the suit of the plaintiffs for permanent prohibitory injunction is decreed and the defendants are restrained from dismantling the premises, situated on land comprising Khata KhatoniNo.205/408, Khasra No.1045, in Mauza Muhal, Tehsil Kumarsain, District Shimla, H.P, till the plaintiffs are got evicted therefrom in accordance with law. The decree for possession of the premises, in suit, passed by the learned trial Court, while allowing the counter claim, is set aside and the counter claim is dismissed. The parties are left to bear their own costs. Decree sheet be prepared.”

3. The said appeal has been filed, against the judgment and decree dated 04.11.2010, passed by the Court of learned Civil Judge (Junior Division), Rampur Bushahr, District Shimla, Himachal Pradesh (hereinafter referred to as the ‘learned trial Court’) in Civil Suit No.38-1 of 2007 and Counter-Claim No.118/1 of 2010, titled Pas ‘Ramesh Prakash & Others Versus Mohinder Singh &Another’.

4. Vide judgment and decree dated 04.11.2010, the learned trial Court has granted the following relief:-

“20. In the light of my findings on aforesaid issues, suit of the plaintiffs is dismissed, and counter claim is decreed by holding that the defendants are entitled for possession of the suit premises on the land having Khasra No. 1045 in Mauza/Muhal/Tehsil Kumarsain, District Shimla, H.P. Decree sheet be drawn accordingly.”

5. For the sake of convenience, the parties to the present lis are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.

6. Brief facts, necessary for the adjudication of the present appeal, as borne out, from the record, are as under:-

6.1 Plaintiffs have filed the suit for permanent prohibitory injunction against defendant-Mahinder Singh, on the ground that they were tenants in the house, on the land, denoted in Khata No.205/408, Khasra No.1045, Abadi Deh, measuring 0-01-53 hectares, situated at Mauja, Muhal and Tehsil Kumarsain, District Shimla, H.P. (hereinafter referred to as the ‘suit land/house in question’).

6.2 It is the case of the plaintiffs that Rajmata Kumarsain died in the year 1986 and plaintiffs were paying rent to Rajmata till 1986. Thereafter, the rent was not paid being not claimed by anybody. The adjoining house, called Hira Mahal, situated over Khasra No.1059, was transferred in the name of H.P. State and the suit land was also got transferred from Rajmata and none has claimed to be its owner till date.

6.3 It is the further case of the plaintiffs that plaintiff No.1 is stated to be running a store in the house, whereas, plaintiff No.2 is a vegetable seller. Plaintiffs No.3 and 5 ar