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Allahabad High Court · body

2018 DIGILAW 895 (ALL)

CANTONMENT BOARD v. SHAKUNTALA DEVI

2018-04-13

B.AMIT STHALEKAR

body2018
JUDGMENT Hon’ble B. Amit Sthalekar, J.—The appellant in the second appeal is the Cantonment Board, Kanpur and has laid challenge to the judgement and decree of the I Additional Sessions Judge, Kanpur dated 18.1.1993 dismissing the first appeal No. 650 of 1989 (Cantonment Board v. Smt. Shakuntala Devi) arising out of original suit No. 277 of 1977. 2. Briefly stated the facts of the case are that the respondents were granted lease of House No. 35, Cariappa Road, Cantonment Board, Kanpur. The original suit No. 277 of 1977 was filed by the Cantonment Board, Kanpur for permanent injunction restraining the respondents from making unauthorized construction in the said premises. It was stated that the Area Overseer had submitted a report that the respondents had collected construction material and were going to lay foundation and make construction in the said premises in an unauthorized manner. The case was contested by the then respondent Nos. 1 and 2. Two written statements were filed by the respondents and it was denied that any unauthorized construction was being made by them in the premises i.e. House No. 35 Cariappa Road, Kanpur. What was stated was that they were only carrying out maintenance and repairs and whatever construction was being made was being made in an authorized manner. It was denied that the existing construction had been demolished and thereafter new construction was being carried out. The case of the defendant-respondents was that the Cantonment Board had itself written to them on 31.5.1965 that the said House No. 35 was not in a habitable condition and that its condition was deteriorating day by day and a part of it had also fallen, as a result of which the defendant-respondents had no other place to go. Considering all these facts the respondents then submitted an application under Schedule V in reply to the notice given by the Board under Section 185 of the Cantonment Act, 1924 (the Act, 1924) to stop erection or re-erection. There were also talks between the Cantonment Board-lessor and the respondents-lessee. Considering all these facts the respondents then submitted an application under Schedule V in reply to the notice given by the Board under Section 185 of the Cantonment Act, 1924 (the Act, 1924) to stop erection or re-erection. There were also talks between the Cantonment Board-lessor and the respondents-lessee. The respondent No. 2 in her written statement stated that she has carried out repairs in the building within her own rights and in accordance with law, information of which alongwith Map/Plan was also submitted to the Cantonment Board on 24.3.1969 but the Cantonment Board did not thereafter give any information to the lessee respondents as to whether the Plan had been sanctioned or not and, therefore, on the expiry of 15 days from the submission of the Plan there was a deemed presumption that the Plan had been sanctioned. It is stated that sub-section (6) of Section 181 of the Act, 1924 provides that where the Board neglects or omits for one month after a receipt of a valid notice calling the attention of the Board to deliver to the person who has given the notice any order of any nature specified in this section, and such person thereafter by a written communication sent by registered post to the Board calls the attention of the Board to the neglect or omission, then, if such neglect or omission continues for a further period of fifteen days from the date of such communication the Board shall be deemed to have given sanction to the erection or re-erection, as the case may be, unconditionally. In spite of this the respondents, to avoid any litigation deposited a sum of Rs. 10,000/- with the Cantonment Board on 30.7.1984 through Bank Draft No. 727202 towards compounding charges in terms of the Cantonment Board resolution dated 11.5.1984. The respondent No. 2 in her written statement made a counter claim for a declaration that sanction be deemed to have been granted by virtue of sub-section (6) of Section 181 of the Act, 1924 and the construction made in the House No. 35 Cariappa Road, Cantt. Kanpur should be deemed to be as per Rules and Regulations of the Cantonment Act, 1924 and the construction should be deemed to have been regularized by the plaintiff Cantonment Board as per the Plan submitted and the plaintiff’s resolution No. 11 dated 11.5.1984. Kanpur should be deemed to be as per Rules and Regulations of the Cantonment Act, 1924 and the construction should be deemed to have been regularized by the plaintiff Cantonment Board as per the Plan submitted and the plaintiff’s resolution No. 11 dated 11.5.1984. Further relief of declaration was sought declaring that the plaintiff has no authority whatsoever to issue any notice of demolition of the building No. 35 Cariappa Road, Cantt. Kanpur. The trial Court framed following 7 issues : (i) whether the respondent has any authority to make construction in the premises in question without sanction of the competent authority; (ii) whether the suit was maintainable; (iii) whether the suit was barred by limitation; (iv) whether the plaintiff is entitled to any relief and if so, what; (v) whether the Plan submitted by the respondents on 24.3.1969 would be deemed to have been sanctioned; (vi) whether the plaintiff vide its resolution dated 11.5.1984 has compounded the construction made by the respondents; (vii) whether the respondent No. 2 is entitled to any relief as claimed by him in his counter claim. 3. On behalf of the plaintiff one John Robert appeared as P.W. 1 and stated that he was the Overseer of the Board since 1964 and he had seen unauthorized construction being carried out in House No. 35 Cariappa Road and, therefore, he submitted his report in writing. In cross-examination this witness admitted that on 24.3.1969, the respondents had submitted a Plan to the Cantonment Board which was duly received in the Cantonment Board though he denied having any knowledge whether any reminder was submitted by the respondents defendant on 26.7.1969. This witness further admitted that the Plan was forwarded to the Military Estate Officer (M.E.O) which was returned on 13.6.1969 and information of this was also given to the defendant. It was stated that this information was sent through Form B. This witness further stated that in column 12 of Form B there is a mention that the defendant respondent had submitted a reminder on 26.7.1969 under sub-section (6) of Section 181 of the Cantonment Act, 1924 which was received in the Cantonment Board on 29.6.1969. The witness further stated that in this Form B there is nowhere any mention that the Plan had been returned to the defendant respondents or on what date it had been returned. The witness further stated that in this Form B there is nowhere any mention that the Plan had been returned to the defendant respondents or on what date it had been returned. The witness also stated that there is a practice that Plan which are not accepted are duly returned to the authority concerned and, therefore, he is presuming that the Plan was returned to the defendant. He also stated that the Map/Plan was returned to the defendant respondents and the signature of the daughter of the defendant respondent was taken in the Peon Book. This witness also admitted that the constructions made by the defendant respondent had been compounded and compounding fee of Rs. 10,000/- had been deposited by the defendant. The witness also admitted that in column 11 of Form B which requires the date of return of map to be mentioned, no date has been mentioned and this column is blank. The witness also admitted that the construction was made by the defendants strictly as per the construction Bye laws. He also admitted that in the Map/Plan it has not been mentioned anywhere that it has been rejected and is, therefore, being returned to the defendant. 4. The trial Court has recorded a finding that the statement of the witnesses, the Map/Plan and other relevant documents have been duly filed as exhibits in the suit. 5. On behalf of the defendant respondents one Yashoda Nandan was examined as D.W-1. Yashoda Nandan has stated that he is a munim in the plaintiff’s department and is acquainted with all the facts relating to the House No. 35 and he was looking after the matter. He has stated that he himself submitted the application dated 24/25.3.1969 in the Cantonment Board with regard to the Map/Plan for sanction of the same relating to House No. 35 having an area 31093 sq. ft. which was submitted in three copies. He has further stated that the Map/Plan was neither sanctioned nor was sanction rejected. He has further stated that he had submitted a letter in the Cantonment Board on 8.5.1969 in this regard and also obtained the signature of the Executive Officer. This witness also admitted that one reminder dated 26.6.1969 through registered post was sent by the defendant and was received in the office of the plaintiff Cantonment Board on 28.7.1969. He has further stated that he had submitted a letter in the Cantonment Board on 8.5.1969 in this regard and also obtained the signature of the Executive Officer. This witness also admitted that one reminder dated 26.6.1969 through registered post was sent by the defendant and was received in the office of the plaintiff Cantonment Board on 28.7.1969. However, for more than one month after this date, the plaintiff Cantonment Board neither sanctioned the Plan/Map of the defendant-respondents nor rejected the same and when no reply was received even after one month, construction was commenced by the defendants in the Bungalow No. 35. The witness also stated that in 1976-77 no new construction was being carried out in the Bunglow No. 35. The witness also confirmed that the construction made had been duly compounded by the Cantonment Board on a deposit of Rs. 10,000/- by the defendant-respondents as compounding charges. 6. D.W.-3 was also examined who has proved his report and stated that the construction in question had been completed in 1969/1970 and he has also confirmed the submission of the Map/Plan for grant of sanction alongwith notice and that the same was neither granted nor refused. 7. The trial Court referring to the list of document 168 Ga has recorded a finding that Form B shows that the defendant respondent had submitted the Map/Plan which was received in the Board on 28.3.1969 and received in the office of M.E.O. on 3.5.1969. In Form B Column No. 4,5,6 and 7 are blank and in Column 8 it is mentioned that the Map/Plan was returned to the Board on 13.6.1969 but thereafter column No. 9,10 and 11 are blank. Column No. 11 requires mentioning of the date when the Plan/Map was returned to the defendant respondents which has not been mentioned. In column 12 it is mentioned that registered notice dated 28.6.1969 under Section 181 (6) dated 29.7.1969 was received and so far as the column 11 remaining blank the case of the plaintiff Board was that it was due to mistake even though this Plan was returned through Peon Book on 16.8.1969. In column 12 it is mentioned that registered notice dated 28.6.1969 under Section 181 (6) dated 29.7.1969 was received and so far as the column 11 remaining blank the case of the plaintiff Board was that it was due to mistake even though this Plan was returned through Peon Book on 16.8.1969. The trial Court has also held that the counsel for the plaintiff submitted that earlier a suit no 2098 of 1970 between the same parties had been filed and which had been adjudicated but the Court held that neither the plaint nor the judgment of the said suit was filed by the plaintiff to show what was the relief claimed therein and what was the judgement of the Court. The trial Court has further recorded a finding that the Peon Book reveals that the notice was served on one Km. Sudha who is stated to be the minor daughter of the defendant No. 2 and that service upon a minor daughter cannot be deemed to be service in law in view of the mandatory requirement of Section 254 of the Act, 1924. The trial Court has therefore recorded a finding that though the notice sent by the defendant respondent was duly served upon the Cantonment Board but the Cantonment Board did not submit any reply thereto either accepting or rejecting the Map/Plan and, therefore, in view of sub-section (6) of Section 181 of the Act, 1924 sanction would be deemed to have been granted to the defendant for making construction. The trial Court has further held that from the evidence on record it has been established that the construction was completed in 1969-70 and that no new construction was made in 1976-77 at the time when the suit was filed. 8. With regard to the counter claim set up by the defendant respondent No. 2, the case of the plaintiff was that the suit counter claim was instituted in the year 1986 for the first time through the written statement and was, therefore, barred by time. This plea was rejected by the trial Court recording a finding that the defendant No. 2 in the counter claim has sought a declaration that the construction made as per the Plan submitted on 24/25.3.1969 be declared regular and as per Rules since the defendant no 2 had sought permission for making construction as per Plan over an area of 31093 sq. ft. and till the time of raising the counter claim construction had been made only over 24000 sq. ft. of area and 7093 sq. ft. remained vacant over which the defendant respondent No. 2 claims a right to make construction. The objection of the plaintiff that in view of the provisions of Section 183 of the Act, construction ought to have been completed within one year from the date of sanction or deemed sanction as the case may be, but that was not done and, therefore, no declaration could have been granted. This plea was rejected by the trial Court holding that the period of one year prescribed under Section 183 of the Act, 1924 relates to the maximum period of one year from the date of sanction within which construction must begin and not completion of construction within one year of the date of sanction. With regard to the resolution of the Cantonment Board dated 11.4.1984, the trial Court has recorded a clear finding that from the overwhelming evidence on record it is established that as per the said resolution of the Board the defendant respondent no 2 had deposited a sum of Rs. 10,000/- with the Board and thereafter the construction made by the defendant had been compounded and regularized in terms of the resolution, copy of which has been filed as Exhibit-8 with regard to issue No. iv and vii with regard to the reference sought by the plaintiff as well as by the defendant No. 2 in her counter claim. The trial Court has rejected the claim of the plaintiff that the defendants were making any unauthorized construction in the Bungalow No. 35, Cariappa Road, Cantt. Kanpur in view of sub-section (6) of Section 181 of the Act, 1924. 9. So far as the relief set up by the defendant No. 2 in her counter claim the trial Court has held that the construction has been made by the respondent No. 2 strictly in terms of the deemed sanction granted by the Cantonment Board by virtue of the provisions of sub-section (6) of Section 181 of the Act, 1924 in terms of the Map/Plan dated 24.3.1969, which was duly submitted in the Cantonment Board and it was never rejected by the Cantonment Board. Thus in totality the trial Court dismissed the plaintiff suit and decreed the counter claim of the defendant respondent. 10. Thus in totality the trial Court dismissed the plaintiff suit and decreed the counter claim of the defendant respondent. 10. Aggrieved by the judgment and decree of the trial Court dated 28.8.1989, the plaintiff Cantonment Board preferred first appeal No. 650 of 1989 (Cantonment Board v. Smt. Shakuntala Devi). This appeal was also dismissed by the appellate Court holding that the defendants notice dated 24.3.1969 has been duly received in the office of the Cantonment Board but when there was no reply to the same even after expiry of one month either sanctioning or refusing sanction to the Map/Plan submitted by the defendant-respondents, the defendant commenced repairs and construction in the premises in dispute. A finding has further been recorded by the appellate Court confirming the finding of the trial Court that the defendants had also deposited a sum of Rs. 10,000/- towards compounding charges which has been duly accepted by the Cantonment Board and therefore, the construction made cannot be said to be illegal. 11. The appellate Court also held that the alleged reply/notice sent by the Cantonment Board alleging rejecting the Map/Plan of the defendants was stated to be served upon one Km. Sudha, minor daughter of the respondent No. 2 and such service cannot be said to be valid service as provided under Section 254 of the Cantonment Act, 1924 and therefore, by operation of Sub-section (6) of Section 181 of the Act, 1924 sanction would be deemed to have been granted by the Cantonment Board to the Map/Plan submitted by the defendant-respondent. 12. Shri Shakti Dhar Dube, learned counsel for the appellant submitted that any one who intends to erect and re-erect any building in a cantonment area is required to apply for sanction by giving notice in writing of his intention under Section 179 of the Act, 1924 and the Board retains the power to sanction or refuse the same under Section 181 of the Act, 1924. He submitted that though a notice was sent by the defendant respondents to the Cantonment Board but the same was duly rejected by the Board and duly informed by the Board by service upon Km. Sudha. 13. He submitted that though a notice was sent by the defendant respondents to the Cantonment Board but the same was duly rejected by the Board and duly informed by the Board by service upon Km. Sudha. 13. Section 254 of the Act, 1924 provides for service of notice and lays down that any notice, order or requisition issued under this Act where the person on whom it is to be served or presented cannot be found shall be served or presented by affixing the notice, order or requisition on some conspicuous part of his last known place of abode or business if within the cantonment or by giving or tendering notice, order or requisition on some adult member of his family. Clause (b) of sub-section (1) of Section 254 of the Act, 1924 reads as under: “254(1)(b). if such person cannot be found, by affixing the notice, order or requisition on some conspicuous part of his last known place of abode or business, if within the cantonment, or by giving or tendering the notice, order or requisition to some adult male member or servant of his family, or by causing it to be affixed on some conspicuous part of the building or land, if any, to which it relates.” 14. In the present case the admitted position, even of the plaintiff-appellant is that the notice was served upon Km. Sudha who was the minor daughter of the defendant No. 2. In such circumstances, service of such a notice on a minor would not be deemed to be a valid service or presentation in view of the mandatory requirement of clause (6) of sub-section (1) of Section 254 of the Cantonment Act, 1924. 15. The next submission of the learned counsel for appellant was that since the notice of rejection had been duly served on the defendant, the construction made thereafter by the defendants was illegal. 15. The next submission of the learned counsel for appellant was that since the notice of rejection had been duly served on the defendant, the construction made thereafter by the defendants was illegal. This submission of the learned counsel for the appellant is equally fallacious because the concurrent findings of fact of the Courts below was that the notice submitting the Map/Plan by the defendants was duly received in the office of the Cantonment Board on 28.3.1969 and in the office of the Military Estate Officer (M.E.O.) on 3.5.1969 and column 11 of Form B being blank, there is nothing on record to corroborate the contention of the appellant that the sanction had been declined and duly communicated to the defendant respondents. Sub-section (6) of Section 181 of the Act, 1924 reads as under: “(6) Where the Board neglect or omits for one month after the receipt of the valid notice to make or deliver to the person who has given the notice any order of any nature specified in this section, and such person thereafter by a written communication sent by registered post to the Board calls the attention of the Board to the neglect or omission, then, if such neglect or omission continues for a further period of fifteen days from the date of such communication the Board shall be deemed to have given sanction to erection or re-erection, as the case may be, unconditionally.” 16. Sub-section (6) of Section 181 of the Act, 1924 clearly states in clear and unambiguous terms that where the Board neglects or omits for one month after the receipt of the valid notice to make or deliver to the person who has given the notice, any order of any nature specified in this section, and such person thereafter by a written communication sent by registered post to the Board calls the attention of the Board to the neglect or omission, then, if such neglect or omission continues for a further period of fifteen days from the date of such communication the Board shall be deemed to have given sanction to erection or re-erection, as the case may be, unconditionally. 17. 17. Sub-section (3) of Section 181 of the Act, 1924 further provides that the Board, before sanctioning the erection or re-erection of a building of land which is under the management of the Military Estate Officer, (now Defence Estate Officer) shall refer the application to the Military Estates Officer to ascertain whether there is any objection on the part of the Government to such erection or re-erection; and the Military Estates Officer shall return the application together with his report thereon to the Board within thirty days after it has been received by him. Sub-section (3) of Section 181 of the Act, 1924 reads as under: “(3) The Board, before sanctioning the erection or re-erection of a building of land which is under the management of the Defence Estate Officer, now Military Estates Officer, shall refer the application to the Military Estates Officer to ascertaining whether there is any objection on the part of the Government to such erection or re-erection; and the Military Estates Officer shall return the application together with his report thereon to the Board within thirty days after it has been received by him.” 18. In the present case the clear findings of the Courts below on the basis of the documents on record is that the column No. 11 of Form B which refers to the date of communication of information to the defendant being blank and in view of the statements of the prosecution witnesses and defence witnesses since there is nothing on record to show that the sanction was denied by the appellant, sanction would be deemed to have been granted by the Board to the defendants. 19. The learned counsel for the appellant then submitted that earlier a Suit No. 2098 of 1970 (Smt. Shakuntala Devi and others v. Cantonment Board, Kanpur) filed by the defendants seeking injunction restraining the Cantonment Board from interfering with their peaceful possession had been dismissed by judgment dated 11.8.1978 and therefore, the construction made by the defendant-respondents was absolutely illegal and the notice by the Cantonment Board restraining the respondents from making authorized construction was liable to be decreed. As already noted above by the Court this judgment was never placed before the trial Court, however, a typed copy of the same which is not a certified copy has been placed before the Court which shows that suit proceedings was in respect of a notice sent by the Cantonment Board in respect of a notice sent by the husband of Smt. Shakuntala Devi, late Kailash Nath Garg seeking permission to carry out repairs in the Bungalow No. 35 in response to which a notice was sent by the Cantonment Board to late Smt. Shakuntala Devi on 4.6.1970 and thereafter, an order was passed by the Cantonment Board for demolition of the alleged unauthorised construction on 6.11.1970. This shows that if, at all, there was such a proceeding then that suit proceeding No. 2098 of 1970 was in respect of some other notice and not the notice giving rise to the present suit. Even otherwise, if the suit for permanent injunction filed by the defendant-respondents was dismissed by the trial Court in respect of the same notice there would have been no necessity for the Cantonment Board to file the present Suit against the defendant-respondents and that the decree would have operated as res judicata in the present Suit No. 277 of 1977 filed by the Cantonment Board and this Suit, therefore, would not have been maintainable. 20. The appellant has also filed an application under Order XLI Rule 27 C.P.C. read with Section 100(5) read with Order VI Rule 17 C.P.C. seeking to raise additional substantial questions of law as well as seeking permission to file additional documents. Through this application the appellant is seeking to bring on record the judgement of the trial Court in suit No. 2098 of 1970 (Smt. Shakuntala Devi and another v. Cantonment Board, Kanpur) which has already been referred to herein above and which was decided on 11.8.1978. The affidavit filed in support of this application under Order XLI Rule 27 C.P.C. does not disclose any reason as to why the certified copy of this judgment was not or could not be filed before the trial Court or even before the first appellate Court. Order XLI Rule 27 C.P.C. provides certain conditions in which additional evidence may be filed and reads as under: “27. Order XLI Rule 27 C.P.C. provides certain conditions in which additional evidence may be filed and reads as under: “27. Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to the produced, by an Appellate Court, the Court shall record the reason for its admission. 21. Rule 27 mandates that party to the appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court unless he is able to establish that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not after the exercise of due diligence be produced by him at the time when the decree appealed against was passed. The affidavit of the appellant is completely silent and does not state why the judgement in suit No. 2098 of 1970 could not be filed before the first appellate Court nor does the affidavit state that this judgement was not within the knowledge of the appellant and could not be produced despite exercise of due diligence. The application seeking amendment as well as seeking to file additional evidence is accordingly rejected. 22. With regard to the counter claim of the defendant-respondent No. 2 seeking a declaration against the Cantonment Board it is to be noted that the trial Court by the impugned judgment decreed the counter claim of the defendant-respondent No. 2. The application seeking amendment as well as seeking to file additional evidence is accordingly rejected. 22. With regard to the counter claim of the defendant-respondent No. 2 seeking a declaration against the Cantonment Board it is to be noted that the trial Court by the impugned judgment decreed the counter claim of the defendant-respondent No. 2. Though a first appeal was filed by the Board against the judgment of the trial Court decreeing the counter claim of the defendants the appellate Court dismissed the appeal and no second appeal has been preferred against the said decree, decreeing the counter claim and therefore, the decree of the trial Court with regard to the counter claim set up by the defendant-respondent No. 2 has become final and cannot be questioned in the present second appeal. 23. Even otherwise, the contention of the learned counsel for the appellant that the counter claim itself was not maintainable is wholly fallacious. Order VIII Rule 6-A of the Code of Civil Procedure provides that a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing before the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time for delivering defence has expired. Order VIII Rule 6-A reads as under : “6A. Counter claim by defendant.—(1) A defendant in a suit may, in addition to his right of pleading a set off under rule 6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of to suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not: Provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter claim shall have the same effect as a cross suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the Court. (4) The counter claim shall be treated as a plaint and governed by the rules applicable to plaints.” 24. Order XX Rule 19 CPC provides that where the defendant has been allowed a set-off or counter-claim against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party. Order XX Rule 19 reads as under : “19. Decree when set off or counter claim is allowed.—(1) Where the defendant has been allowed a set off or counter claim against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party. (2) Appeal from decree relating to set off or counter claim]—Any decree passed in a suit in which a set-off or counter claim is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off or counter claim had been claimed. (3) The provisions of this rule shall apply whether the set off is admissible under rule 6 of Order VIII or otherwise.” 25. Sub-Rule (2) of Rule 19 of Order XX further provides that any decree passed in a suit in which a set-off or counter-claim is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off or counter-claim had been claimed. 26. The contention of the appellant is that since there was only one decree, therefore, only one second appeal has been filed. 26. The contention of the appellant is that since there was only one decree, therefore, only one second appeal has been filed. Reliance has been placed upon a judgment of the Supreme Court in Narhari v. Shanker, AIR 1953 SC 419 , wherein the Supreme Court in paragraphs 1, 2, 3, and 4 has held as under : “1. The suit out of which these appeals arise was one for possession of two-thirds of the land covered by survey No. 214 and for mesne profits. The plaintiffs claim possession on the ground that survey No. 214 was an inam land and according to the family custom, belonged to them exclusively as members of the senior line as against the defendants who were of the junior lines. There are two sets of defendants: Nos. 1 to 4 belong to one branch of the family and Nos. 5 to 8 to another. Each set claim that they are in possession of one-third of the land and maintain that they are entitled ‘to it as their share of the family property. They deny the custom of exclusive possession by the senior branch, alleged by the plaintiffs. The trial Court decreed the suit. From this decree, two separate appeals were taken by the two sets of the defendants to the Sadar Adalat, Gulbarga, each claiming one-third portion of the land and each paid the Court fee to the extent of their share. The first appellate Court, i.e., the Sadar Adalat, allowed both the appeals and dismissed the plaintiffs’ suit by one judgment dated 30th Bahman 1338 Fasli and ordered a copy of the judgment to be placed on the file of the other connected appeal. On the basis of this judgment, two decrees were prepared by the first appellate Court. The plaintiffs preferred two appeals to the High Court. The first was filed on 23rd Aban 1345 Fasli and with it was attached the decree passed in the appeal of defendants No. 1 to 4. Later, on 17th Azur 1346 Fasli, another appeal was filed and with it the decree passed in the appeal of defendants Nos. 5 to 8 was attached. This latter appeal was twenty-nine days beyond the period of limitation for appeals. Later, on 17th Azur 1346 Fasli, another appeal was filed and with it the decree passed in the appeal of defendants Nos. 5 to 8 was attached. This latter appeal was twenty-nine days beyond the period of limitation for appeals. It was filed on one-rupee stamp paper and a note was made therein that the full Court fee had been paid in the appeal filed earlier, which has been registered as Appeal No. 331 of 1346 Fasli. At the hearing of the appeals, a preliminary objection was raised by the defendants that as the other appeal, i.e., No. 332 of 1346 Fasli was filed beyond the period of limitation, it cannot be maintained and that when the other appeal is thus dismissed, the principle of res judicata would apply to the first appeal, i.e., No. 331 of 1346 and it should also fail. The High Court held that the plaintiffs should have filed two separate appeals within the period of limitation and as the other appeal was admittedly time barred, the first appeal also failed by the application of the principle of res judicata. The High Court dismissed both the appeals. Against this judgment of the High Court two appeals were preferred to the Judicial Committee of the State and they are now before us under article 374(4) of the Constitution. 2. The High Court in its judgment relied on the decision given in Jethmal v. Ranglal, 17 Deccan LR 322 (A). That was a case of a money suit where the plaintiff’s claim was partially decreed and from this judgment both the parties had appealed, the plaintiff to the extent of the suit dismissed and the defendant to the extent of the suit decreed. The first appellate Court dismissed the plaintiff’s suit in toto, thus allowing the defendant’s appeal and dismissing the plaintiff’s appeal, and two separate decrees were made. The plaintiff appealed from one decree only, which was passed against him and it was held that the principle of res judicata applied. 3. The first appellate Court dismissed the plaintiff’s suit in toto, thus allowing the defendant’s appeal and dismissing the plaintiff’s appeal, and two separate decrees were made. The plaintiff appealed from one decree only, which was passed against him and it was held that the principle of res judicata applied. 3. Notwithstanding, this ruling of the Judicial Committee of the State, the High Court, in several cases, i.e., Nandlal v. Mohiuddin Ali Khan, 22 Deccan LR 400 (B), ‘Nizamuddin v. Chatur Bhuj, 23 Deccan LR 457 (C); Gayajee Pant v. Habibuddin, 28 Deccan LR 1094 (D) and Jagannath v. Sonajee, 29 Deccan LR 108 (E), has held that when the suit is one and two appeals arise out of the same suit, it is not necessary to file two separate appeals. 4. In the judgment of the High Court, though reference is given to some of these decisions, it is merely mentioned that the appellant relies on these decisions. The learned Judges perhaps thought that in the presence of the Hyderabad Judicial Committee decision in 17 Deccan LR 322 (A), they need not comment on these decisions at all. There is also a later decision of the Judicial Committee of the State in Bansilal v. Mohanlal, 33 Deccan LR 603 (F-G), where the well known and exhaustive authority of the Lahore High Court in Mst. Lachmi v. Mst. Bhuli, AIR 1927 Lah 289 (H) was followed. In the Lahore case, there were two cross suits about the same subject-matter, filed simultaneously between the same parties, whereas in the present case, there was only one suit and one judgment was given by the trial Court and even in the first appeal to the Sadar Adalat, there was only one judgment, in spite of there being two appeals by the two sets of defendants. The plaintiffs in their appeal to the High Court have impleaded all the defendants as respondents and their prayer covers both the appeals and they have paid consolidated Court-fee for the whole suit. It is now well-settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. As has been observed by Tek Chand J. in his learned judgment in AIR 1927 Lah 289 (H) mentioned above, the determining factor is not the decree but the matter in controversy. As has been observed by Tek Chand J. in his learned judgment in AIR 1927 Lah 289 (H) mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one. Besides, the High Court was wrong in not giving to the appellants the benefit of Section 5 of the Limitation Act because there was conflict of decisions regarding this question not only in the High Court of the State but also among the different High Courts in India.” 27. With great respect it may be stated that the judgment of the Supreme Court in the case of Narhari (supra) is on its own facts. In that case, there was only one suit for possession of the 2/3rd of the land in which the plaintiff claimed possession on the ground that Survey No. 214 was an inam land and according to family custom belonged to them exclusively as members of the senior line as against the defendants who were of the junior line. The defendants No. 1 to 4 belonged to one branch of the family and defendants No. 5 to 8 to another branch. The defendants claimed to be in possession of 1/3rd of the land. The suit was decreed by the trial Court. Two separate appeals were filed. The defendants No. 1 to 4 belonged to one branch of the family and defendants No. 5 to 8 to another branch. The defendants claimed to be in possession of 1/3rd of the land. The suit was decreed by the trial Court. Two separate appeals were filed. The appeals were allowed and the plaintiff’s suit was dismissed by one judgment and it was ordered that the copy of the judgement be placed on the file of the connected appeal and accordingly, two decrees were prepared by the first appellate Court. The plaintiffs preferred two appeals to the High Courts. It was in that context that the Supreme Court held that one judgement did not operate as res judicata since there was one trial, one finding and one decision and therefore, there need not have been two appeals even though two decrees may have been drawn up by the appellate Court and the two decrees in substance are one. In my opinion, the said judgment has absolutely no application to the facts of the present case. In the present case, there were two decrees, one decreeing the counter-claim set up by the defendant-respondent No. 2 and one by which the plaintiffs suit was dismissed, therefore, if the appellant wanted to challenge the decree in the counter-claim he should have filed a second appeal against the same. 28. The right to set up a counter-claim was introduced in the Code of Civil Procedure by Amendment Act No. 104 of 1976 w.e.f. 1.2.1977 introducing Rule 6-A in Order VIII. Likewise the amendment in Order XX Rule 19 providing for appeal against a counter-claim was also introduced by the Amendment Act No. 104 of 1976 and Sub Rule 2 of Rule 19 clearly provides that any decree passed in a suit in which a set-off or counter-claim is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject, if no set-off or counter-claim had been claimed. Thus, when the counter-claim set up by the defendant-respondent No. 2 had been decreed by the trial Court it cannot be said that, that decree can be examined in the present second appeal without preferring any second appeal against the said decree. Thus, when the counter-claim set up by the defendant-respondent No. 2 had been decreed by the trial Court it cannot be said that, that decree can be examined in the present second appeal without preferring any second appeal against the said decree. Having not preferred any second appeal against the decree in the counter-claim of the defendant-respondent No. 2 and the decree of the trial Court decreeing the counter-claim of the defendant-respondent No. 2 having become final, in my opinion, it is not open for the appellants to question the same in the present second appeal. 29. For reasons aforesaid, in my opinion no good ground has been made out for admitting this second appeal. The judgments of the Courts below are based on pure and concurrent findings of fact and no substantial question of law arises in this second appeal. The second appeal is accordingly dismissed.