Holding

In Haryana, second appeals are governed by Section 41 of the Punjab Courts Act, not Section 100 CPC, and the High Court’s decree in favour of the plaintiffs on Killa Nos. 21//3/2 and 7//13 is set aside while the defendants’ counter‑claim on Killa Nos. 6//18 and 23 is correctly rejected.

Summary

The plaintiffs (respondents) sued for declaration and possession of agricultural land, alleging the defendants were tenants who sub‑let the property. The defendants denied tenancy and filed a counter‑claim for two other plots. The trial court dismissed the suit but allowed the counter‑claim; the first appeal upheld this. The High Court, in a second appeal, erroneously granted the plaintiffs relief on two plots (Killa Nos. 21//3/2 and 7//13) on the basis that the defendants raised no counter‑claim, and also held the defendants' counter‑claim on Killa Nos. 6//18 and 23 to be invalid. The Supreme Court held that in Haryana a second appeal is governed by Section 41 of the Punjab Courts Act, not Section 100 of the CPC, and that the burden of proof remained on the plaintiffs, who failed to establish title to the two plots, so the High Court’s decree in their favour was set aside, while the dismissal of the defendants’ counter‑claim was affirmed.

Issues considered

The applicability of Section 100 CPC versus Section 41 Punjab Courts Act for second appeals in Haryana
Whether the High Court could decree relief for the plaintiffs on Killa Nos. 21//3/2 and 7//13 despite lack of proof
Whether the defendants' counter‑claim on Killa Nos. 6//18 and 23 is barred under Order VIII Rule 6A CPC
Whether a counter‑claim must be made against a specific claim of the plaintiff

Legislation cited

Amendment Act No. 104 of 1976 (CPC Amendment)s. Section 97
Code of Civil Procedure, 1908s. Order VIII Rule 6A, s. Order VIII Rule 6C, s. Section 100
Punjab Courts Act, 1918s. Section 41

Subjects

Second appealSection 100 CPCSection 41 Punjab Courts ActCounter claimOrder VIII Rule 6ABurden of proofAgricultural land possessionHaryana lawSubstantial question of law

Judgment

342 [2022]REPORTS
SUPREME COURT 13 S.C.R. 342 [2022] 13 S.C.R.

A SATYENDER AND ORS.
v.
SAROJ AND ORS.
(Civil Appeal No. 4833 of 2022)
B AUGUST 17, 2022
[UDAY UMESH LALIT, S. RAVINDRA BHAT AND
SUDHANSHU DHULIA, JJ.]
Code of Civil Procedure, 1908: Or.VIII, r.6A – Counter Claim
– Plaintiffs (respondents) filed suit for declaration and possession
C
on agricultural land claiming that defendant No. 2 was their tenant
who had sub-let the land to his son (defendant No.1), without the
consent of the plaintiffs and hence, liable to be evicted – Defendant
No.2 filing a separate written statement denied that they were ever
tenant of the plaintiffs – A counter claim was also set up by defendant
D No. 2 claiming that in addition to the Khasra and Killa numbers
given in the plaint, he was also in possession of two other Killa nos.
i.e., 6//18 and 23 – Trial Court dismissed the suit but allowed the
counter-claim – First appeal of plaintiff was also dismissed – High
Court partly allowed the second appeal of the plaintiffs by allowing
the claim of the plaintiffs on two plots i.e., 21//3/2 and 7//13 for the
E
reason that the claim on these plots by plaintiffs went uncontested –
High Court also held that the counter claims set up by the defendant
could not be decreed since the plaintiffs themselves had not set up
any claim whatsoever for these two plots, and therefore under
provisions of Or.VIII, r.6A, an independent counter claim having
F nothing to do with the plaintiffs can never be allowed – Defendants
filed instant appeal – Held: The finding of the High Court regarding
two Killa Nos. 21//3/2 and 7//13 was erroneous as merely because
the defendant did not raise a counter claim on this property it would
not ipso facto mean that a decree ought to have been granted in
favour of the plaintiffs – The burden of proof was on the plaintiffs
G
to prove their case, which they failed – The finding of High Court
regarding the counter claim of the defendants on Killa Nos. 6//18
and 23 is correct and is based on right interpretation of Or.VIII,
Rule 6A of CPC as plaintiffs never raised any claim on Killa No. 6/
/18 or Killa No. 23 – Counter claim can be set up only “against the
H claim of the plaintiffs” – Since there was no claim of the plaintiffs
342
SATYENDER AND ORS. v. SAROJ AND ORS. 343

regarding Killa No. 6//8 and 23, the defendants were barred to raise A
any counter claim on these Killa numbers in view of Or.VIII, r.6A of
the CPC as it has nothing to do with the plaintiffs – Judgment and
order passed by the High Court to the extent that it has decreed the
claim of the plaintiffs on Killa Nos. 21//3/2 and 7//13 is set aside.
Code of Civil Procedure, 1908: s.100 – In the State of B
Haryana, a court in second appeal is not required to formulate a
substantial question of law, as what is applicable in Haryana is
s.41 of the Punjab Courts Act, 1918 and not s.100 of CPC – Punjab
Courts Act, 1918 – s.41.
Disposing of the appeal, the Court C
HELD: 1. Section 100 of the CPC as it stands today indeed
mandates that a second appeal would lie before the High Court
only on a substantial question of law, and a Second Appeal has to
be heard on the substantial question of law, so formulated by the
High Court. The provision of second appeal as it stands today D
was inserted in the CPC by Amendment Act No. 104 of 1976.
Prior to the 1976 amendment, there was no requirement of
substantial question of law. [Para 10][350-F-G]
2.1 Initially, it was held by this Court (in Kulwant Kaur v.
Gurdial Singh Mann3) that after the 1976 Amendment, Section E
100 of the CPC would be applicable in Punjab & Haryana and not
Section 41 of the Punjab Courts Act, 1918 and a second appeal
has to be decided only on a “substantial question of law”. It was
held that after the 1976 Amendment Act, Section 41 of the Punjab
Courts Act, stood repealed. Additionally, it was also held that
Section 41 of the Punjab Courts Act was repugnant to Section F
100 CPC in view of Article 254 of the Constitution of India.
However, in Pankajakshi, a Constitution Bench held that the
reasoning given in Kulwant Kaur for holding that Section 41 of
the Punjab Courts Act stood repealed was not correct. Section
97 of Amendment Act of 1976 provides that only such provisions G
would stand repealed which were inserted in the principal Act
(i.e., Code of Civil Procedure, 1908), by a State Legislature or
High Court before the commencement of this Act (i.e., 1976
Amendment Act). As Section 41 of the Punjab Courts Act was

H
344 SUPREME COURT REPORTS [2022] 13 S.C.R.

A neither an amendment in the principal Act nor a provision
inserted in the principal Act therefore, it would not be covered
by Section 97 of the Amendment Act of 1976, and there was hence
no question of it being repealed under the provisions of Section
97 of the Amendment Act, 1976. [Paras 11, 12][352-A-B, E-F]
B 2.2 It was further held [in Pankajakshi] that the question of
repugnancy and its application was also not correctly decided in
Kulwant Kaur as Article 254 of the Constitution of India, was not
applicable in that case. Section 254 would be applicable only to
the laws made after the implementation of the Constitution of
India and Section 41 of the Punjab Courts Act is of 1918 vintage
C and it was not made by a Legislature of the State after the
Constitution of India had come into force. The Punjab Courts
Act, 1918 was enacted under the provisions of the Government
of India Act, 1935 and although by Article 395 of the Constitution
of India, the Government of India Act, 1935 stood repealed yet
D by virtue of provisions of Article 372(1) of Constitution of India
all the laws in force in the territory of India immediately before
the commencement of the Constitution were to continue in force
until altered or repealed or amended by a competent legislature
or other competent authority. Since Section 41 of the Punjab
Courts Act has not been altered, repealed or amended by State
E Legislature of Punjab or Haryana, it will continue to be in force.
[Para 13][352-G-H; 353-A-C]
3. The laws as applicable in Punjab in the year 1918, were
also applicable to the present territory of Haryana since it was
then a part of the State of Punjab. Later on, the creation of the
F new State of Haryana, under the provision given in Section 88 of
the Punjab Re-organization Act, 1966, the laws applicable in the
erstwhile State of Punjab continued to be applicable in the new
State of Haryana. Furthermore, State of Haryana formally adopted
the laws of the erstwhile State of Punjab, under Section 89 of the
G Punjab Re-Organisation Act, 1966. Therefore, in the State of
Haryana a court in second appeal is not required to formulate a
substantial question of law, as what is applicable in Haryana is
Section 41 of the Punjab Courts Act, 1918 and not Section 100 of
CPC. Consequently, it was not necessary for the High Court to
formulate a substantial question of law. [Para 14][353-C-E]
H
SATYENDER AND ORS. v. SAROJ AND ORS. 345

4. Be that as it may, though the requirement of formulation A
of a substantial question of law was not necessary, yet Section 41
of the Punjab Courts Act, requires that only such decisions are
to be considered in second appeal which are contrary to law or to
some custom or usage having the force of law or the court below
have failed to determine some material issue of law or custom or
B
usage having the force of law. Therefore, what is important is
still a “question of law”. In other words, second appeal is not a
forum where court has to re-examine or re-appreciate questions
of fact settled by the Trial Court and the Appellate Court. The
plaintiffs had claimed right over certain agricultural land and their
case was that they have the right to be declared the owner of this C
property and the possession be handed over to the them, for the
reasons that on this particular property defendants and their
predecessors-in-interest were the tenants of the plaintiffs. Their
case was that defendant No. 2 was their tenant who had sub-let
the property in favour of his son, that is defendant No. 1 and
D
therefore, the property should be reverted back to the plaintiffs
and they should be declared the owner and should be given the
possession of the property as well. Both the Trial Court as well
as the First Appellate Court had held after evaluating the
evidence placed by the plaintiffs that defendant No. 2 and his
brothers (who were not even made a party by the plaintiffs) were E
the tenants on the property and defendant No.2 had not sub-let
the property in favour of his son that is defendant No. 1 and the
revenue entries being made in this regard in the year 1978 are
wrong and without any basis as there was no order of any revenue
authority for making such an entry. In short, the plaintiffs had
F
failed to prove their case as owner of the land in dispute. Hence
their case of declaration and possession was dismissed. The
Second Appellate Court however, quite erroneously, and without
any justification, gave an entirely new finding regarding two Killa
Nos. 21//3/2 and 7//13 on which the plaintiffs claimed relief of
declaration and possession, on the same grounds as raised by G
them for the other Killa Nos. The pleadings also show that the
defendants had made a general denial of the plaintiffs’ claim for
all the plots. Yet, the High Court held that since the defendants
had not made any claim for plot nos. 21//3/2 and 7//13 and therefore
by logic a decree of declaration of possession ought to have been
H
346 SUPREME COURT REPORTS [2022] 13 S.C.R.

A given to the plaintiffs for these plots! This reasoning of the second
Appellate Court is erroneous for the simple reason that the burden
of proof was on the plaintiffs to prove their case, which they had
failed. They have not been able to prove to the satisfaction of the
Trial Court as well as the First Appellate Court about their claim
of any kind over this property. Merely because the defendant did
B
not raise a counter claim on this property it would not ipso facto
mean that a decree ought to have been granted in favour of the
plaintiffs. Plaintiffs have to prove their case on the strength of
their evidence. For this reason, the reasoning given by the Second
Appellate Court for decreeing the claim of the plaintiff for plot
C nos. 21//3/2 and 7//13 is incorrect and to that extent is liable to
be set aside. [Para 15][353-F; 354-A-H; 355-A]
5. The other finding of Second Appellate Court regarding
the counter claim of the defendants on Killa Nos. 6//18 and 23 is,
however, correct and is based on right interpretation of Order
D VIII, Rule 6A of CPC. From the pleadings of the plaintiffs, it is
clear that they had never raised any claim on Killa No. 6//18 or
Killa No. 23. The defendants in their written statement while
denying the rights of the plaintiffs on the land of which particulars
had been given by the plaintiffs, quite ingeniously inserted the
two Killa Nos.6//18 and 23, setting a counter-claim on these plots.
E The Trial Court and the First Appellate Court while dismissing
the plaintiffs’ suit had allowed this claim for without assigning
any reasons. In fact, this counter claim which was raised by the
defendant is barred under Order VIII, Rule 6A of the CPC. A
counter claim can be set up only “against the claim of the
F plaintiffs”. Since there was no claim of the plaintiffs regarding
Killa No. 6//8 and 23, the defendants were barred to raise any
counter claim on these Killa numbers in view of Order VIII, Rule
6A of the CPC as it has nothing to do with the plaintiffs. It is true
that a counter claim can be made by the defendant, even on a
separate or independent cause of action. The Legislature permits
G the institution of a counter claim, in order to avoid multiplicity of
litigation. But then it has certain limitations such as that the
counter claim cannot exceed the pecuniary limits of the
jurisdiction of the court, and that such counter claim must be
instituted before the defendant has delivered his defence or
H
SATYENDER AND ORS. v. SAROJ AND ORS. 347

before the time limit for delivering his defence has expired. More A
importantly, such a counter claim must be against the plaintiff.
Evidently, in the present case the counter claim was not against
the plaintiffs. Moreover, as the plaintiffs had not claimed any right
over the property and the Killa Nos. 6//8 and 23 are not even a
part of the suit property described in the plaint by the plaintiffs.
B
Despite the same, such a claim has been allowed against the
plaintiffs. In fact, we do not find on record any reply submitted by
the plaintiffs against the counter claim. Such a counter claim should
have been excluded in terms of Order VIII, Rule 6C of the CPC.
The counter claim set up by the defendants has been rightly
rejected by the High Court. [Para 16][355-B-C, H] C
Pankajakshi & Ors. v. Chandrika & Ors. (2016) 6 SCC
157 : [2016] 3 SCR 1018 – followed.
Kirodi v. Ram Parkash & Ors. (2019) 11 SCC 317 :
[2019] 7 SCR 968; Jag Mohan Chawla & Anr. v. Dera
Radha Swami Satsang & Ors. (1996) 4 SCC 699 : D
[1996] 2 Suppl. SCR 509 – relied on.
Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC
262 : [2001] 2 SCR 525 – referred to.
Case Law Reference E
[2016] 3 SCR 1018 followed Para 9
[2019] 7 SCR 968 relied on Para 9
[2001] 2 SCR 525 referred to Para 11
[1996] 2 Suppl. SCR 509 relied on Para 16 F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4833
of 2022.
From the Judgment and Order dated 19.07.2017 of the High Court
of Punjab and Haryana at Chandigarh in RSA No. 140 of 2009.
G
Ajay Tewari, Sr. Adv., Abhimanyu Tewari, Ms. Eliza Bar, Dilmrig
Nayani, Advs. for the Appellants.
Sushil Sardana, Ms. Rekha Sardana, Shafik Ahmed, Ram Kishor
Singh Yadav, Advs. for the Respondents.
H
348 SUPREME COURT REPORTS [2022] 13 S.C.R.

A The Judgment of the Court was delivered by
SUDHANSHU DHULIA, J.
1. This appeal is against judgment dated 19.07.2017 of the High
Court of Punjab & Haryana given in a Second Appeal (No. 140 of 2009)
which was partly allowed by the High Court.
B
2. The case arises out of the proceedings initiated by the plaintiffs
(respondents herein) for declaration and possession on an agricultural
land. Suit was filed by the plaintiffs, claiming to be owners of the property,
which in total measured 80 Kanals, 19 Marlas. The property is in the
revenue village Gagarwas, Tehsil Loharu, District Bhiwani (Haryana).
C Their case was that defendant No. 2 was their tenant who had sub-let
the land to his son (defendant No.1), without the consent of the plaintiffs/
landlords and hence, the two defendants were liable to be evicted and
the possession of the land was to be handed over to the plaintiffs. The
plaintiffs additionally had built their case on an assertion that the land
D was earlier in possession of one Ram Kaur on which Ganpat Rai, the
father of defendant No. 2 was the tenant. Ganpat Rai surrendered his
tenancy of the disputed land to Ram Kaur in the year 1976. Later in the
year 1994, the plaintiffs had won a suit against Ms. Ram Kaur and the
land which is the subject matter of the present dispute now belongs to
them, hence they have stepped into the shoes of Ms. Ram Kaur and are
E now the owners of the property.
3. Defendant No. 1 (Satyender) is the son of defendant No.2
(Ishwar Singh). The stand taken by defendant No.1 was that he had no
concern with the land in question. The defence set up by him was that
he was born in the year 1966 and hence, he was only twelve years of
F age in the year 1978 when the sub-tenancy is alleged to have been
created in his favour, as per the revenue records. He never cultivated
the land and the cultivation was done by his father and his two uncles,
and the entries made in the revenue record showing him to be a tenant
or a sub-tenant are wrong and have been made by the plaintiffs, in
G collusion with the revenue officials.
4. Defendant No.2 filed a separate written statement. According
to defendant No. 2, one Indraj was the original owner of the property,
who had given this land in tenancy to defendant No. 2’s father Ganpat
Rai. Indraj died in the year 1976 and was succeeded by Ms. Ram Kaur.
Meanwhile, the father of the defendant No. 2, Ganpat Rai died in the
H
SATYENDER AND ORS. v. SAROJ AND ORS. 349
[SUDHANSHU DHULIA, J.]

year 1978 and consequently he and his two other brothers namely, Sombit A
and Om Prakash had jointly inherited the tenancy. Thereafter, all the
three brothers became tenants under Ms. Ram Kaur and they continued
to be in possession of the suit property. They denied that they were ever
tenant of the plaintiffs.
5. In addition to their written statement, a counter claim was also B
set up by defendant No. 2. The defendant No.2 claimed in his written
statement that in addition to the Khasra and Killa numbers given in the
plaint, he was also in possession of two other Killa nos. i.e., 6//18 and
23. In other words, their counter claim on the above two mentioned plot
numbers was in addition to the claim on the plots as mentioned by the
plaintiffs. The suit was ultimately dismissed by the Trial Court on the C
findings that the plaintiffs could neither prove their right on the property,
nor could they prove the fact that the defendant No.2 had created a sub-
tenancy in favour of his son, i.e., defendant No.1. The counter claim set
up by the defendant No. 2 was decreed.
6. The first appeal filed by the plaintiffs was also dismissed by the D
Appellate Court. The Appellate Court too held that there was a heavy
burden on the appellants to prove that the tenancy of Ganpat Rai had
come to an end in the year 1976 by surrendering the possession of the
disputed land. This could not be proved by the plaintiffs. It was also the
finding by the Lower Appellate Court that after the death of Ganpat Rai, E
tenancy was inherited by his three sons namely, Sombir, Ishwar and Om
Prakash. Therefore, all of them should have been impleaded as party in
the case because the outcome of the suit would affect them as well.
Since they have not been impleaded as a party therefore, the suit is bad
for non-joinder of the necessary parties. Regarding the counter claim, it
was held by the First Appellate Court that as a natural consequence of F
dismissal of the suit, the counter claim of the defendants qua Killa No.
6//18 and 23 was rightly decreed.
7. The matter was taken in second appeal by the plaintiffs. The
second appeal of the plaintiffs was partly allowed. Though the High
Court in the second appeal upheld the findings of the two Courts on the G
sub-letting and tenancy and upheld the findings of the lower courts in
favour of the defendants as there was no sub-letting of the land, yet in
the same breath the High Court has allowed the claim of the plaintiffs on
the two plots i.e., 21//3/2 and 7//13 for the reasons that for these two
plots though the plaintiffs had raised their claim and the defendants had H
350 SUPREME COURT REPORTS [2022] 13 S.C.R.

A not raised any counter claim on these plot numbers, which went
uncontested.
8. In addition, it was also held by the High Court that the counter
claims set up by the defendant (on plot Nos. 6//18 and 23) could not be
decreed since the plaintiffs themselves had not set up any claim
B whatsoever for these two plots, i.e., Killa No. 6//18 and 23 and therefore
under provisions of Order VIII, Rule 6A of the Code of Civil Procedure
1908 (hereinafter referred to as “CPC”), an independent counter claim
having nothing to do with the plaintiffs can never be allowed.
9. The defendants are now before this Court. The first ground
C raised by the counsel for the appellant/defendant before this Court is
that the High Court while deciding a second appeal did not formulate
any substantial question of law, which was an essential requirement under
Section 100 of the CPC. The learned counsel would argue that a second
appeal can only be admitted and heard on a substantial question of law
and since no substantial question of law was formulated nor any arguments
D advanced by the parties before the Second Appellate Court (High Court)
as mandated by Section 100 of the CPC, the order of the High Court is
liable to be set aside on this ground alone. This seemingly attractive
argument, however, does not hold any good in the present case as the
subject matter of the present dispute is from Haryana where the governing
E provision would be Section 41 of the Punjab Courts Act, 1918 and not
Section 100 of CPC. This was held by a Constitution Bench of this
Court in Pankajakshi & Ors. v. Chandrika & Ors.1 which was later
followed in Kirodi v. Ram Parkash & Ors.2
10. Section 100 of the CPC as it stands today indeed mandates
F that a second appeal would lie before the High Court only on a substantial
question of law, and a Second Appeal has to be heard on the substantial
question of law, so formulated by the High Court. The provision of second
appeal as it stands today was inserted in the CPC by Amendment Act
No. 104 of 1976. Prior to the 1976 amendment, there was no requirement
of substantial question of law. The earlier, i.e., unamended position read
G as under: -
“100. Second appeal – (1) “Save where otherwise expressly
provided in the body of this Code or by any other law for the time

1
(2016) 6 SCC 157
2
H (2019) 11 SCC 317
SATYENDER AND ORS. v. SAROJ AND ORS. 351
[SUDHANSHU DHULIA, J.]

being in force, an appeal shall lie to the High Court from every A
decree passed in appeal by any Court subordinate to a High Court
on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having
the force of law;
(b) the decision having failed to determine some material issue B
of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by
this Code or by any other law for the time being in force, which
may possibly have produced error or defect in the decision of
the case upon the merits. C

(2) An appeal may lie under this section from an appellate decree
passed ex parte.”
Under the Punjab Courts Act, 1918, a similar provision is given as
regards a second appeal. This is in Section 41 of the Act which is in pari D
materia to the unamended Section 100 of the CPC and reads as follows:-
“41. Second appeal— (1) An appeal shall lie to the High Court
from every decree passed in appeal by any Court subordinate to
the High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some custom or E
usage having the force of law:
(b) the decision having failed to determine some material issue
of law or custom or usage having the force of law,
(c) a substantial error or defect in the procedure provided by
the Code of Civil Procedure 1908 [V of 1908], or by any other F
law for the time being in force which may possibly have
produced error or defect in the decision of the case upon the
merits;
[Explanation. - A question relating to the existence or validity
of a custom or usage shall be deemed to be a question of law G
within the meaning of this Section]
(2) An appeal may lie under this section from an appellate decree
passed ex parte.”

H
352 SUPREME COURT REPORTS [2022] 13 S.C.R.

A 11. Initially, it was held by this Court (in Kulwant Kaur v. Gurdial
Singh Mann3) that after the 1976 Amendment, Section 100 of the CPC
would be applicable in Punjab & Haryana and not Section 41 of the
Punjab Courts Act, 1918 and a second appeal has to be decided only on
a “substantial question of law”. It was held that after the 1976 Amendment
Act, Section 41 of the Punjab Courts Act, stood repealed. Additionally, it
B
was also held that Section 41 of the Punjab Courts Act was repugnant to
Section 100 CPC in view of Article 254 of the Constitution of India.
12. As referred above, the present Section of the 100 CPC was
inserted in the CPC by the Amendment Act of 1976. Section 97 of the
Amendment Act of 1976 which was relied upon by this Court in Kulwant
C Kaur reads as under: -
“97. Repeal and savings. — (1) Any amendment made, or any
provision inserted in the principal Act by a State Legislature or a
High Court before the commencement of this Act shall, except
insofar as such amendment or provision is consistent with the
D provisions of the principal Act as amended by this Act, stand
repealed.”
In Pankajakshi (supra) a Constitution Bench held that the
reasoning given in Kulwant Kaur (supra) for holding that Section 41 of
the Punjab Courts Act stood repealed was not correct. Section 97 of
E Amendment Act of 1976 provides that only such provisions would stand
repealed which were inserted in the principal Act (i.e., Code of Civil
Procedure, 1908), by a State Legislature or High Court before the
commencement of this Act (i.e., 1976 Amendment Act). As Section 41
of the Punjab Courts Act was neither an amendment in the principal Act
F nor a provision inserted in the principal Act therefore, it would not be
covered by Section 97 of the Amendment Act of 1976, and there was
hence no question of it being repealed under the provisions of Section 97
of the Amendment Act, 1976.
13. It was further held [in Pankajakshi] that the question of
G repugnancy and its application was also not correctly decided in Kulwant
Kaur as Article 254 of the Constitution of India, was not applicable in
that case. Section 254 would be applicable only to the laws made after
the implementation of the Constitution of India and Section 41 of the
Punjab Courts Act is of 1918 vintage and it was not made by a Legislature
3
H (2001) 4 SCC 262
SATYENDER AND ORS. v. SAROJ AND ORS. 353
[SUDHANSHU DHULIA, J.]

of the State after the Constitution of India had come into force. The A
Punjab Courts Act, 1918 was enacted under the provisions of the
Government of India Act, 1935 and although by Article 3954 of the
Constitution of India, the Government of India Act, 1935 stood repealed
yet by virtue of provisions of Article 372(1)5 of Constitution of India all
the laws in force in the territory of India immediately before the
B
commencement of the Constitution were to continue in force until altered
or repealed or amended by a competent legislature or other competent
authority. Since Section 41 of the Punjab Courts Act has not been altered,
repealed or amended by State Legislature of Punjab or Haryana, it will
continue to be in force.
14. We may also add here that we are presently concerned with C
the laws in the State of Haryana. All the same, the laws as applicable in
Punjab in the year 1918, were also applicable to the present territory of
Haryana since it was then a part of the State of Punjab. Later on, the
creation of the new State of Haryana, under the provision given in Section
88 of the Punjab Re-organization Act, 1966, the laws applicable in the D
erstwhile State of Punjab continued to be applicable in the new State of
Haryana. Furthermore, State of Haryana formally adopted the laws of
the erstwhile State of Punjab, under Section 89 of the Punjab Re-
Organisation Act, 1966. Therefore, in the State of Haryana a court in
second appeal is not required to formulate a substantial question of law,
as what is applicable in Haryana is Section 41 of the Punjab Courts Act, E
1918 and not Section 100 of CPC. Consequently, it was not necessary
for the High Court to formulate a substantial question of law.
15. Be that as it may, though the requirement of formulation of a
substantial question of law was not necessary, yet Section 41 of the
Punjab Courts Act, requires that only such decisions are to be considered F
in second appeal which are contrary to law or to some custom or usage
having the force of law or the court below have failed to determine

4
Article 395-Repeals The Indian Independence Act, 1947, and the Government of
India Act, 1935, together with all enactments amending or supplementing the
latter Act, but not including the Abolition of Privy Council Jurisdiction Act,
G
1949, are hereby repealed.
5
372(1) Notwithstanding the repeal by this Constitution of the enactments
referred to in Article 395 but subject to the other provisions of this Constitution,
all the laws in force in the territory of India immediately before the
commencement of this Constitution, shall continue in force therein until altered
or repealed or amended by a competent Legislature or other competent authority. H
354 SUPREME COURT REPORTS [2022] 13 S.C.R.

A some material issue of law or custom or usage having the force of law.
Therefore, what is important is still a “question of law”. In other words,
second appeal is not a forum where court has to re-examine or re-
appreciate questions of fact settled by the Trial Court and the Appellate
Court. The plaintiffs had claimed right over certain agricultural land and
their case was that they have the right to be declared the owner of this
B
property and the possession be handed over to the them, for the reasons
that on this particular property defendants and their predecessors-in-
interest were the tenants of the plaintiffs. Their case was that defendant
No. 2 was their tenant who had sub-let the property in favour of his son,
that is defendant No. 1 and therefore, the property should be reverted
C back to the plaintiffs and they should be declared the owner and should
be given the possession of the property as well. Both the Trial Court as
well as the First Appellate Court had held after evaluating the evidence
placed by the plaintiffs that the defendant No. 2 and his brothers (who
were not even made a party by the plaintiffs) were the tenants on the
property and defendant No.2 had not sub-let the property in favour of
D
his son that is defendant No. 1 and the revenue entries being made in
this regard in the year 1978 are wrong and without any basis as there
was no order of any revenue authority for making such an entry. In
short, the plaintiffs had failed to prove their case as owner of the land in
dispute. Hence their case of declaration and possession was dismissed.
E The Second Appellate Court however, quite erroneously, and without
any justification, gave an entirely new finding regarding two Killa Nos.
21//3/2 and 7//13 on which the plaintiffs claimed relief of declaration and
possession, on the same grounds as raised by them for the other Killa
Nos. The pleadings also show that the defendants had made a general
denial of the plaintiffs’ claim for all the plots. Yet, the High Court held
F
that since the defendants had not made any claim for plot nos. 21//3/2
and 7//13 and therefore by logic a decree of declaration of possession
ought to have been given to the plaintiffs for these plots! This reasoning
of the second Appellate Court is erroneous for the simple reason that
the burden of proof was on the plaintiffs to prove their case, which they
G had failed. They have not been able to prove to the satisfaction of the
Trial Court as well as the First Appellate Court about their claim of any
kind over this property. Merely because the defendant did not raise a
counter claim on this property it would not ipso facto mean that a decree
ought to have been granted in favour of the plaintiffs. Plaintiffs have to
prove their case on the strength of their evidence. For this reason, the
H
SATYENDER AND ORS. v. SAROJ AND ORS. 355
[SUDHANSHU DHULIA, J.]

reasoning given by the Second Appellate Court for decreeing the claim A
of the plaintiff for plot nos. 21//3/2 and 7//13 is incorrect and to that
extent is liable to be set aside.
16. The other finding of Second Appellate Court regarding the
counter claim of the defendants on Killa Nos. 6//18 and 23 is, however,
correct and is based on right interpretation of Order VIII, Rule 6A of B
CPC. From the pleadings of the plaintiffs, it is clear that they had never
raised any claim on Killa No. 6//18 or Killa No. 23. The defendants in
their written statement while denying the rights of the plaintiffs on the
land of which particulars had been given by the plaintiffs, quite ingeniously
inserted the two Killa Nos.6//18 and 23, setting a counter-claim on these
plots. The Trial Court and the First Appellate Court while dismissing the C
plaintiffs’ suit had allowed this claim for without assigning any reasons.
In fact, this counter claim which was raised by the defendant is barred
under Order VIII, Rule 6A of the CPC. Order VIII, Rule 6A reads as
under:-
[6A. Counter-claim by defendant.—(1) A defendant in a suit may, D
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 the suit but
before the defendant has delivered his defence or before the time E
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 F
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. G
(4) The counter-claim shall be treated as a plaint and governed by
the rules applicable to plaints
A counter claim can be set up only “against the claim of the
plaintiffs”. Since there was no claim of the plaintiffs regarding Killa No.
H
356 SUPREME COURT REPORTS [2022] 13 S.C.R.

A 6//8 and 23, the defendants were barred to raise any counter claim on
these Killa numbers in view of Order VIII, Rule 6A of the CPC as it has
nothing to do with the plaintiffs. It is true that a counter claim can be
made by the defendant, even on a separate or independent cause of
action (Jag Mohan Chawla & Anr. v. Dera Radha Swami Satsang
& Ors.6).
B
The Legislature permits the institution of a counter claim, in order
to avoid multiplicity of litigation. But then it has certain limitations such
as that the counter claim cannot exceed the pecuniary limits of the
jurisdiction of the court, and that such counter claim must be instituted
before the defendant has delivered his defence or before the time limit
C for delivering his defence has expired. More importantly, such a counter
claim must be against the plaintiff! Evidently, in the present case the
counter claim was not against the plaintiffs. Moreover, as the plaintiffs
had not claimed any right over the property and the Killa Nos. 6//8 and
23 are not even a part of the suit property described in the plaint by the
D plaintiffs. Despite the same, such a claim has been allowed against the
plaintiffs. In fact, we do not find on record any reply submitted by the
plaintiffs against the counter claim. To be fair, such a counter claim
should have been excluded in terms of Order VIII, Rule 6C of the CPC.
Suffice it to state here that the counter claim set up by the defendants
has been rightly rejected by the High Court.
E
17. The judgment and order dated 19.07.2017 passed by the High
Court to the extent that it has decreed the claim of the plaintiffs on Killa
Nos. 21//3/2 and 7//13 is hereby set aside. This appeal hence stands
disposed of on the aforesaid terms.

F
Devika Gujral Appeal disposed of.
(Assisted by : Deepak Panwar, LCRA)

G

H 6
(1996) 4 SCC 699