A counter-claim is treated as a cross-suit. When a trial court decree involves both a suit and a counter-claim, the aggrieved party must file separate appeals against each to avoid the bar of res-judicata, unless the appellate court grants an opportunity to rectify this procedural defect.

Whether approved for reporting?¹Whether reporters of the local papers may be allowed to see the judgment?

The present appeal under Section 100 of the Code of Civil Procedure arises out of the judgment and decree dated 31.08.2017 as passed by the learned Additional District Judge, Sirmour at Nahan (H.P), (hereinafter referred to as “the First Appellate Court”), whereby the appeal filed by defendant No.2/counter claimant was allowed and the suit filed by the plaintiffs/present appellants was partly decreed and the judgment and decree dated 20/08/2014 as passed by the learned Civil Judge (Senior Division), Court No.1, Paonta Sahib, District Sirmaur, H.P. (hereinafter referred to as ‘the Trial Court’) was modified, whereby the suit filed by the plaintiffs was decreed and the counter claim as filed by defendant No.2/respondent was dismissed.

2. The brief facts of the case are that Smt. Kamla Devi filed a suit for permanent prohibitory injunction to restrain the defendants from interfering and occupying the land comprised in old/pre settlement Khasra No.1091/815/584/30 (old No.815/584/1) and the post settlement Khasra No.1905, 1096, 1097, 1098 and 1917 measuring 0-5 bighas situated in Mauza Paonta Sahib.

3. It was averred in the plaint that she is owner in possession of the suit land and she purchased the land measuring 0-5 bighas from Darshan Singh And Harbhajan Singh. The said purchase was duly incorporated in the revenue record vide mutation No.983. The revenue authorities made certain changes in the revenue record and on that account plaintiff filed correction application before the Settlement Officer. The defendants under the garb of the errors in the revenue records is interfering in the suit land and on 06.08.2007, they tried to stack the boulders with intention to block the ingress and egress of the plaintiff to her house from the national highway. Though the defendants were stopped by the plaintiff and her sons to refrain from doing illegal acts but they threatened to occupy the suit land under the garb of wrong settlement record. The correction application filed by the plaintiff may take some time for final disposal and since the Settlement Officer is not empowered to restrain the defendants from interfering in the suit land, therefore suit was filed seeking decree of permanent injunction against the defendants.

4. The suit was contested by the defendants. During the pendency of the suit, defendant No.2 was arrayed as party defendant and both the defendants filed their separate written statements and all the averments and the contentions as raised in the plaint were refuted and denied. Defendant No.2 apart from filing the written statement, also filed a counter claim seeking relief of injunction, so as to restrain the non-counter claimant from interfering in the land of the counter claimant comprised in Khata Khatauni No.279/546 min, old field No.812/584/2 and new field No.1909 measuring 166-99 Sq.Mtrs. situated at Mohalla Paonta Sahib. It was averred in the counter claim that he is the owner in possession of the suit land, whereas the plaintiff has got no right, title or interest over the same. The non-counter claimant is claiming right of path from the suit land and she has recently installed a gate in their property towards the land of the counter claimant. Non-counter claimants/plaintiffs are interfering in their land thereby preventing him from protecting his land by fencing or raising boundary wal