IMPORTANT POINT
Once plaintiffs/appellants have been held to be not entitled to be granted with decree of declaration in relation to property in question, they cannot claim to the contrary in counter-claim.

JUDGMENT (ORAL)

Sharad Kumar Sharma, J.—The present plaintiffs/appellants have preferred a suit being Civil Suit No.77 of 2002, “Maharaj Singh and another vs. State of Uttarakhand and others”.

2. In the suit thus preferred by the present plaintiffs/appellants, he has prayed for the following reliefs:—

“(Matter in Other Language)”

3. The suit thus instituted on 24.07.2002, at the behest of the present plaintiffs/appellants, they had claimed for a decree of grant of permanent injunction, as against the employees of the defendant/respondent nos. 1 to 6. The private respondent-Pandit Purnanand Shiksha Samiti was impleaded as defendant no. 7 by virtue of an amendment made on 27.07.2006. In the suit thus instituted by the plaintiffs/appellants, i.e. Suit No. 77 of 2002, what would be more important is the relief which was sought, that is by way of relief, be a declaration in relation to the property which was detailed at the foot of the plaint as given in Schedule ‘A’, and further to the effect that a declaration was sought qua government order 1379/71 dated 07.03.1972.

4. On the issuance of the notices in the suit in question, the defendant/respondent no. 1 had filed a written statement on 30.08.2005, wherein, while denying the plaint allegations, he has invoked provisions contained under Order 8 Rule 6 (A) praying for a grant of the following decree:—

“(Matter in Other Language)”

5. With respect to the counter claims which are filed under Order 8 Rule 6(A), it goes without saying that it has to be decided as an independent suit, and it will constitute as to be a decree on its own, as per the provisions contained under Order 8 Rule 6A(4).

6. Being aggrieved against the judgment and decree, as it was rendered by the learned Trial Court, whereby, the plaintiffs’/appellants’ suit for the grant of declaration and a decree of permanent injunction, was dismissed and the counter claim preferred by defendant/respondent no. 7, who was later on impleaded in relation to Khasra No. 363kha having an area of 0.016 hectare and Khasra No. 364 having an area of 0.387 hectare, total 0.403 hectare of village Amritpur, Tehsil Jaspur, District Udham Singh Nagar, was decreed consequential for the eviction of the plaintiffs.

7. It is an admitted case that as of today, as against the dismissal of suit, for the grant of decree of permanent injunction and declaration, has already been dismissed, as against which no Second Appeal has been preferred by the plaintiffs/appellants as against the dismissal of the First Appeal. In fact, whatsoever the wisdom prevailed with the plaintiffs/appellants, they have preferred the Second Appeal confining his relief by putting a challenge to a decree in relation to the decreeing of the counter claim.

8. The challenge to the counter claim has been attempted to be made by the plaintiffs/appellants preferring the Second Appeal by formulation of following substantial questions of law:—

“1. Whether the judgment and order passed by the lower courts are sustainable in law?

2. Whether the decision passed by this Hon’ble Court in respect of the entitlement of the respondent no. 1 over the land recorded in Khasra No. 364 and 365 of Village Amritpur, Tehsil Juspur District Udham Singh Nagar is binding on the courts below?

3. Whether the respondent no. 1 who has no interest or title over the land in possession of the appellants can seek the relief of ejectment and possession against them?

4. Whether the respondent no. 1 can claim any interest over the land recorded in Khasra No. 364 and 365 of village Amritpur, Tehsil Juspur District Udham Singh Nagar beyond the area as determined by this Hon’ble Court?”

9. What has been attempted to be argued by the learned counsel for the plaintiffs/appellants is that, in fact, the controversy pertaining to their rights in relation to the property was a subject matter which was under consideration before the High Court in Writ Petition (PIL) No. 1197 of 2005 (M/B), ‘Rishipal Singh Rana vs. S