Single appeal challenging trial court's decree in suit and dismissal of counter-claim held not maintainable; separate appeals required as counter-claim is cross-suit. First appellate judgment set aside; remitted with liberty to file separate appeal.

JUDGMENT :

ROMESH VERMA, J.

The appellants have preferred the present Regular Second Appeal, under Section 100 of the Code of Civil Procedure, against the judgment and decree, dated 02.09.2009, passed by learned Additional District Judge (I), Kangra at Dharamshala (H.P), (hereinafter referred to as “the First Appellate Court”), in Civil Appeal No.113-D/04, titled as ‘Vinod Kumar & Anr. Vs. Desh Raj & Anr.’.

2. That vide judgment and decree, dated 02.09.2009, the learned First Appellate Court had allowed the appeal, preferred by the respondents and the judgment passed by the Court of learned Civil Judge (Senior Division), Kangra at Dharamshala, H.P. (hereinafter referred to as ‘the trial Court’), in Civil Suit No.120/2000, titled as, ‘Desh Raj & Anr. Vs. Vinod Kumar & Anr.’ was reversed whereby the suit filed by the plaintiffs was decreed and counter claim filed by the defendant was dismissed.

3. Vide judgment and decree, dated 02.09.2009, the learned First Appellate Court, while allowing the appeal, has dismissed the suit of the plaintiffs and decreed the Counter-Claim of the defendants.

4. Learned First Appellate Court decreed the counter claim of the present respondents by holding the defendants/respondents to be owners to the extent of 5/8 and 3/8 shares, respectively, in respect of the land comprised in Khata Nos. 117, 118, and 119, as per the jamabandi for the year 1998–99, situated at Mohal Sukkar Khas, Mouza Sukkar, Tehsil Dharamshala, District Kangra, qua the estate and share of Gauri Ram, along with the super structure raised by the deceased Gauri Ram. The plaintiffs/appellants were further restrained by way of permanent prohibitory injunction from interfering therein in any manner.

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

6. Brief facts leading to filing the present appeal, before this Court, may be summed up, as under:-

Plaintiffs, Desh Raj and Chandu Lal, both sons of late Gauri Ram, filed a suit for declaration in the Court of the learned Civil Judge (Senior Division), Kangra at Dharamshala, H.P., on 30.10.2000. As per the averments made in the plaint, it was stated that the plaintiffs and the defendants are the legal representatives of deceased Gauri Ram, who was the only son of late Sh. Tara Chand. It was further stated that the suit property consists of land along with superstructures raised thereon, comprising land measuring 3-87-59 hectares, to the extent of 1/8th share measuring 0-96-81 hectares, situated at Mohal Sukkar Khas, Mauza Sukkar, Tehsil Dharamshala, District Kangra, H.P. (hereinafter referred to as “the suit land”).

7. According to the jamabandi for the year 1998– 99, the suit land is recorded as being co-owned and possessed by the parties. It was averred that the suit property was inherited by Tara Chand from his forefathers, and after the death of late Sh. Tara Chand, the property devolved upon Gauri Ram, father of the plaintiffs and defendant No. 1 and husband of defendant No. 2. Gauri Ram thus inherited and acquired the aforesaid suit land from his father.

8. It was further stated that deceased Gauri Ram