Counter Claim--Appeal--Where suit and counter claim is decided by a common judgment and a composite decree has been prepared, two separate appeals are not required to be filed

JUDGMENT

Mrs. Rekha Mittal, J.:- Challenge in the present appeal has been directed against judgment and decree dated 31.5.2012 passed by the Additional District Judge, Gurgaon whereby appeal against the judgment and decree dated 26.2.2011 passed by the trial court decreeing suit of the plaintiffs-appellants and dismissing counter claim filed by the defendants/respondents was accepted, judgment and decree impugned were set aside and suit filed by the appellants-plaintiffs was dismissed and counter claim preferred by the respondents-defendants was allowed.

2. The facts relevant for disposal of present appeal are that the plaintiffs filed suit for permanent injunction restraining defendantsrespondents from raising pucca wall from point E to D and F to C and some portion of killa No. 11/1 of Rect. No. 27 or to change nature of suit property. It is also prayed that in case the defendants are successful in doing so, mandatory injunction may be granted directing the defendants to remove the same from suit property. It is averred that plaintiffs along with other co-sharers are in joint possession of land comprised in killa No. 14/3 (3-16), 14/1(2-18), 15 (8-8) Rect. No. 27, Killa No. 11/1 (5-8), 11/9 (0-6) gair mumkin Khad Gadha 20/1 (1-13), situated in village Darrapur, Tehsil Pataudi District Gurgaon. The defendants are co-owners in possession of khasra No. 138 marked by letters ‘EFGM’. Defendants have constructed pucca wall from point F to G and point E.M. of about 7 feet height and there is no wall at point F to E adjacent to killa No. 11/9 of the plaintiffs measuring N-20 Karam, S-22 Karan, E-31 Karam and W-22 Karam respectively.

3. Defendants filed the written statement raising preliminary objections regarding maintainability; cause of action; locus standi; estoppel; suit being bad for non-joinder and misjoinder of parties; concealment of true and material facts and suit being not properly valued for the purpose of jurisdiction. On merits, it has been averred that site plan attached with the plaint is not as per existing state of affairs. The correct site plan is given by the defendants. The wall constructed by the defendants is in their own land. The plaintiffs are strong headed persons and on 2.6.2004, they made encroachment upon portion ABGFED. On 23.6.2004, the defendants applied to Illaqua Tehsildar for demarcation of their land and a commission was sent to inspect the disputed spot and it was reported to the Tehsildar that the plaintiffs have made encroachment upon land of the defendants regarding which they filed counter claim.

4. The plaintiffs filed replication to the written statement of defendants.

5. The trial court framed issues, reproduced in para 7 of judgment of the said court. The parties adduced their evidence, referred to in para 8 thereof. Having heard counsel for the parties in the light of materials on record, trial court decreed suit of the plaintiffs and defendants were restrained from raising construction on disputed land. However, counter claim of defendants was dismissed.

6. In appeal preferred by the defendants, the court reversed the judgment and decree passed by the trial court, noticed hereinbefore.

7. Counsel for the appellants has challenged the judgment passed by the first Appellate Court primarily on two counts. The first submission made by counsel is that vide judgment and decree dated 26.2.2011, the trial court decreed the suit for injunction of the plaintiffs and dismissed the counter claim, treated as cross suit in the eye of law. It is vehemently argued that since the defendants filed only one appeal, findings recorded in counter claim would constitute res judicata qua the suit for injunction filed by the plaintiffs, therefore, the first Appellate Court committed grave error rather illegality by accepting appeal of the defendants whereby suit of the plaintiffs was dismissed and counter claim of the defendants was allowed. In support of his contention, he has relied upon judgments of Hon’ble