Full Judgment Text
2025 INSC 1310
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No…………..of 2025
[@ Special Leave Petition (C) No.11050 of 2025]
Sanjay Tiwari
…Appellant
Versus
Yugal Kishore Prasad Sao & Ors.
…Respondents
J U D G E M E N T
K. VINOD CHANDRAN, J.
1. Leave granted.
2. The appellant who is the plaintiff in a suit, is aggrieved
with the order of the High Court, which affirmed the order of
the Trial Court admitting a counter claim by the defendant
Nos.2 and 3, who were subsequently impleaded, on their
application. The counter claim was against the first
defendant; against whom the plaintiff had sought a specific
performance of the very same land; subject matter of the
suit.
Signature Not Verified
Digitally signed by
POOJA SHARMA
Date: 2025.11.12
17:40:50 IST
Reason:
Page 1 of 10
C.A. @ SLP(C) No.11050 of 2025
3. The High Court dismissed the application filed under
Article 227 on the ground of avoiding multiplicity of
litigation, reasoning that the entire issue can be decided in
the suit as to whether the counter claim is maintainable or
not.
4. Heard the learned counsel for the appellant and the
respondents herein. While learned counsel for the appellant
contends that there can be no counter claim against the co-
defendant in a suit filed by him, the defendants who raised
the counter claim pleaded that they may be left liberty to
agitate their cause in appropriate proceedings. Learned
counsel for the appellant specifically relied on the decisions
1
in Rohit Singh & Ors. v. State of Bihar and Rajul Mano
Shah @ Rajeshwari Rasiklal Sheth v. Kiranbhai
2
Shakrabhai Patel & Anr. .
5. On the brief facts, it is to be noticed that the plaintiff
filed a suit for specific performance on the contention that
defendant No.1, who was the sole defendant had entered
1
(2006) 12 SCC 734
2
(2025) 10 SCR 152
Page 2 of 10
C.A. @ SLP(C) No.11050 of 2025
into an oral agreement on 02.12.2002 to sell 0.93 acres of
land, more fully described in the plaint. The first defendant,
was the sole defendant impleaded in the plaint filed. The
entire consideration agreed upon was paid on 03.12.2002 by
way of three demand drafts, upon which a receipt was
issued in favour of the plaintiff, promising transfer of the said
land in favour of the plaintiff, which was witnessed by three
defendants, claimed the plaintiff. The plaintiff also asserted
that he was put in possession of the property on which he
had built a boundary wall.
6. The original sole defendant filed a written statement
contending that two others (defendant Nos.2 and 3,
subsequently impleaded) were the persons in possession of
part of the suit property and hence the suit is bad for non-
joinder of the necessary parties. It was claimed that on
01.12.2002, a portion of the very same land, 50 decimals,
nd rd
was agreed to be transferred to the 2 and 3 defendants,
the consideration of which, Rs.2,95,000/- was required to be
paid on 03.12.2002. However, it is also admitted that in the
st
meanwhile, the 1 defendant due to his financial need sold
Page 3 of 10
C.A. @ SLP(C) No.11050 of 2025
43 decimals of land to the father of the plaintiff for an amount
of Rs.2,55,000/-. There is also an averment that the plaintiff
nd
made payment of Rs.2,55,000/- by demand drafts and 2
rd
and 3 defendants made payment of Rs.2,95,000/- by
deposit in a bank account.
7. As of now, the question of non-joinder of necessary
nd rd
parties does not arise since the 2 and 3 defendants
themselves filed an application for impleadment, which was
allowed, upon which the plaintiff had taken up a challenge
before the High Court, rejected as per Annexure P11.
nd rd
However, the written statement filed by 2 and 3
defendants assert that their agreement was to purchase the
entire land for Rs.5,50,000/- out of which they have paid
st
Rs.2,95,000/-. They also raised a counter claim against 1
defendant that they are entitled to be transferred the entire
land which was allowed to be taken up by the Trial Court
and challenged unsuccessfully before the High Court;
impugned herein.
8. Admittedly, even if the allegation of an agreement of
nd rd
sale with 2 and 3 defendants is accepted, there is no
Page 4 of 10
C.A. @ SLP(C) No.11050 of 2025
st
contention that the amount agreed upon was paid to the 1
defendant or that they were always ready and willing to pay
the balance sale consideration. It is also pertinent that in the
nd rd
written statement filed, the 2 and 3 defendants concede
that 43 decimals of land was purchased by plaintiff’s father
and their agreement was confined to purchase of 50
decimals of land. It is the specific case put forth that the area
shown in the receipt was fraudulently changed from 43 to 93
decimals.
9. Rohit Singh (supra) was a case in which the plaintiff
filed a suit for specific performance and possession, against
two defendants. The suit went to trial, the evidence was
closed, arguments concluded and reserved for judgment.
Then the third parties filed an impleading application
claiming right over the suit property by way of a counter
claim, which was allowed by the Trial Court. Though the
plaintiff’s claim was rejected, that of the impleaded
respondents stood allowed against which the defendant
Nos.1 and 2, the Divisional Forest Officer and the State of
Bihar filed an appeal unsuccessfully, which was challenged
Page 5 of 10
C.A. @ SLP(C) No.11050 of 2025
in a second appeal, successfully. The appellants before this
Court contended that the counter claim was maintainable
even if the cause of action put forth by the defendants in the
suit did not arise out of the cause of action based on which
the suit was filed by the plaintiff.
10. The counter claim was rejected by this Court for
multiple reasons, one of which, that it could not have been
raised after the issues are framed and the evidence was
closed. Then, that though a contention was raised regarding
the counter claim, there was not even a prayer seeking a
declaration of title, in which event, there was no counter
claim in terms of Order 8, Rule 6A of the Code of Civil
Procedure, 1908. It was also found that the Trial Court only
treated the written statement as a counter claim and
afforded no opportunity for the defendant Nos.1 and 2 to
effectively contest the same by way of pleadings. Finally, it
was held that a counter claim though can be based on
different cause of action than that are put forth in the suit, it
should be one incidental or connected with that cause of
Page 6 of 10
C.A. @ SLP(C) No.11050 of 2025
action and it has necessarily to be directed against the
plaintiff and cannot be directed against the co-defendant.
11. Rajul Mano Shah (supra) was a case in which the
plaintiff filed a suit against her sister-in-law from alienating
the latter’s portion of the undivided share of a joint family
property in favour of a third party; the second defendant.
The sister-in-law died while the suit was pending, and the
second defendant sought substitution of the original
defendant No.1 with a Court appointed officer which came
to be allowed. The counter claim raised was for specific
performance of the agreement, allegedly executed by the
first defendant and for partition, which prayer of partition
was claimed to be an incidental prayer against the plaintiff
in the suit. This Court found that the claim of specific
performance is independent of the claim of partition, since
the second defendant should first establish a right of claim
over the property, which is absent till he succeeds against
the estate of the first defendant; in which event only the
question of setting up of a counter claim against the plaintiff
by way of a prayer for partition would arise.
Page 7 of 10
C.A. @ SLP(C) No.11050 of 2025
12. The said declaration squarely applies in the present
nd rd
case also. True, if the 2 and 3 defendants are in
possession of any part of the property, their impleadment in
the suit is necessary since the plaintiff would also have to
claim recovery of possession in the event of a decree of
nd rd
specific performance. Now, the 2 and 3 defendants
having already been impleaded, the suit does not suffer
from the defect of non-joinder of necessary parties.
13. It also has to be noticed that despite raising a claim for
nd rd
conveyance of the entire property, the 2 and 3
defendants do not have a concrete case, even for a counter
claim. Their first assertion in the written statement is that
they had agreed to purchase the entire land for
Rs.5,55,000/- against which Rs.2,95,000/- was already paid.
However, they conceded that 43 decimals from the very
same property was agreed to be conveyed by the first
defendant to the plaintiff for consideration of Rs.2,55,000/-.
Their contention is also that the plaintiff had fraudulently
changed the area from 43 decimals to 93 decimals. Their
claim towards the end of the written statement is that, in any
Page 8 of 10
C.A. @ SLP(C) No.11050 of 2025
event 50 decimals of the suit property has to be conveyed to
them based on the part payment made by them for which
nd rd
there is no agreement. The 2 and 3 defendants, hence,
are found to have no concrete claim against the property
and in any event, the impleading application in the suit was
also filed only in the year 2006 after the period of limitation
seeking the claim of specific performance, the cause of
action for which, even according to the defendants, arose on
02.12.2002.
14. As has been held in the decisions cited, the counter
claim against the co-defendant cannot survive and the same
nd rd
has to be rejected. Impleadment of the 2 and 3
defendants though voluntarily made by themselves, saves
the suit from the defect of non-joinder of necessary parties,
on the ground of possession, even if it is so found. We make
it clear that we have not held on merits regarding the
possession as such and it would be for the Trial Court to
determine the same and if necessary, grant recovery of
possession, if that is sought for by the plaintiff appropriately
in the suit.
Page 9 of 10
C.A. @ SLP(C) No.11050 of 2025
15. We find no reason to leave liberty to the defendants 2
& 3 to file a separate suit at this stage, when the claim would
be grossly delayed, which was hit by limitation even at the
time of filing of the counter claim; which in any event cannot
survive against the plaintiff.
16. The Civil Appeal is hence allowed, and the parties are
left to agitate their cause before the Trial Court, leaving
open all contentions except – that of the counter claim of the
defendants 2 & 3, which stands set aside.
17. Pending application(s), if any, shall stand disposed of.
……..…..……………………. J.
(K. Vinod Chandran)
………….……………………. J.
(N. V. Anjaria)
New Delhi;
November 12, 2025.
Page 10 of 10
C.A. @ SLP(C) No.11050 of 2025
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No…………..of 2025
[@ Special Leave Petition (C) No.11050 of 2025]
Sanjay Tiwari
…Appellant
Versus
Yugal Kishore Prasad Sao & Ors.
…Respondents
J U D G E M E N T
K. VINOD CHANDRAN, J.
1. Leave granted.
2. The appellant who is the plaintiff in a suit, is aggrieved
with the order of the High Court, which affirmed the order of
the Trial Court admitting a counter claim by the defendant
Nos.2 and 3, who were subsequently impleaded, on their
application. The counter claim was against the first
defendant; against whom the plaintiff had sought a specific
performance of the very same land; subject matter of the
suit.
Signature Not Verified
Digitally signed by
POOJA SHARMA
Date: 2025.11.12
17:40:50 IST
Reason:
Page 1 of 10
C.A. @ SLP(C) No.11050 of 2025
3. The High Court dismissed the application filed under
Article 227 on the ground of avoiding multiplicity of
litigation, reasoning that the entire issue can be decided in
the suit as to whether the counter claim is maintainable or
not.
4. Heard the learned counsel for the appellant and the
respondents herein. While learned counsel for the appellant
contends that there can be no counter claim against the co-
defendant in a suit filed by him, the defendants who raised
the counter claim pleaded that they may be left liberty to
agitate their cause in appropriate proceedings. Learned
counsel for the appellant specifically relied on the decisions
1
in Rohit Singh & Ors. v. State of Bihar and Rajul Mano
Shah @ Rajeshwari Rasiklal Sheth v. Kiranbhai
2
Shakrabhai Patel & Anr. .
5. On the brief facts, it is to be noticed that the plaintiff
filed a suit for specific performance on the contention that
defendant No.1, who was the sole defendant had entered
1
(2006) 12 SCC 734
2
(2025) 10 SCR 152
Page 2 of 10
C.A. @ SLP(C) No.11050 of 2025
into an oral agreement on 02.12.2002 to sell 0.93 acres of
land, more fully described in the plaint. The first defendant,
was the sole defendant impleaded in the plaint filed. The
entire consideration agreed upon was paid on 03.12.2002 by
way of three demand drafts, upon which a receipt was
issued in favour of the plaintiff, promising transfer of the said
land in favour of the plaintiff, which was witnessed by three
defendants, claimed the plaintiff. The plaintiff also asserted
that he was put in possession of the property on which he
had built a boundary wall.
6. The original sole defendant filed a written statement
contending that two others (defendant Nos.2 and 3,
subsequently impleaded) were the persons in possession of
part of the suit property and hence the suit is bad for non-
joinder of the necessary parties. It was claimed that on
01.12.2002, a portion of the very same land, 50 decimals,
nd rd
was agreed to be transferred to the 2 and 3 defendants,
the consideration of which, Rs.2,95,000/- was required to be
paid on 03.12.2002. However, it is also admitted that in the
st
meanwhile, the 1 defendant due to his financial need sold
Page 3 of 10
C.A. @ SLP(C) No.11050 of 2025
43 decimals of land to the father of the plaintiff for an amount
of Rs.2,55,000/-. There is also an averment that the plaintiff
nd
made payment of Rs.2,55,000/- by demand drafts and 2
rd
and 3 defendants made payment of Rs.2,95,000/- by
deposit in a bank account.
7. As of now, the question of non-joinder of necessary
nd rd
parties does not arise since the 2 and 3 defendants
themselves filed an application for impleadment, which was
allowed, upon which the plaintiff had taken up a challenge
before the High Court, rejected as per Annexure P11.
nd rd
However, the written statement filed by 2 and 3
defendants assert that their agreement was to purchase the
entire land for Rs.5,50,000/- out of which they have paid
st
Rs.2,95,000/-. They also raised a counter claim against 1
defendant that they are entitled to be transferred the entire
land which was allowed to be taken up by the Trial Court
and challenged unsuccessfully before the High Court;
impugned herein.
8. Admittedly, even if the allegation of an agreement of
nd rd
sale with 2 and 3 defendants is accepted, there is no
Page 4 of 10
C.A. @ SLP(C) No.11050 of 2025
st
contention that the amount agreed upon was paid to the 1
defendant or that they were always ready and willing to pay
the balance sale consideration. It is also pertinent that in the
nd rd
written statement filed, the 2 and 3 defendants concede
that 43 decimals of land was purchased by plaintiff’s father
and their agreement was confined to purchase of 50
decimals of land. It is the specific case put forth that the area
shown in the receipt was fraudulently changed from 43 to 93
decimals.
9. Rohit Singh (supra) was a case in which the plaintiff
filed a suit for specific performance and possession, against
two defendants. The suit went to trial, the evidence was
closed, arguments concluded and reserved for judgment.
Then the third parties filed an impleading application
claiming right over the suit property by way of a counter
claim, which was allowed by the Trial Court. Though the
plaintiff’s claim was rejected, that of the impleaded
respondents stood allowed against which the defendant
Nos.1 and 2, the Divisional Forest Officer and the State of
Bihar filed an appeal unsuccessfully, which was challenged
Page 5 of 10
C.A. @ SLP(C) No.11050 of 2025
in a second appeal, successfully. The appellants before this
Court contended that the counter claim was maintainable
even if the cause of action put forth by the defendants in the
suit did not arise out of the cause of action based on which
the suit was filed by the plaintiff.
10. The counter claim was rejected by this Court for
multiple reasons, one of which, that it could not have been
raised after the issues are framed and the evidence was
closed. Then, that though a contention was raised regarding
the counter claim, there was not even a prayer seeking a
declaration of title, in which event, there was no counter
claim in terms of Order 8, Rule 6A of the Code of Civil
Procedure, 1908. It was also found that the Trial Court only
treated the written statement as a counter claim and
afforded no opportunity for the defendant Nos.1 and 2 to
effectively contest the same by way of pleadings. Finally, it
was held that a counter claim though can be based on
different cause of action than that are put forth in the suit, it
should be one incidental or connected with that cause of
Page 6 of 10
C.A. @ SLP(C) No.11050 of 2025
action and it has necessarily to be directed against the
plaintiff and cannot be directed against the co-defendant.
11. Rajul Mano Shah (supra) was a case in which the
plaintiff filed a suit against her sister-in-law from alienating
the latter’s portion of the undivided share of a joint family
property in favour of a third party; the second defendant.
The sister-in-law died while the suit was pending, and the
second defendant sought substitution of the original
defendant No.1 with a Court appointed officer which came
to be allowed. The counter claim raised was for specific
performance of the agreement, allegedly executed by the
first defendant and for partition, which prayer of partition
was claimed to be an incidental prayer against the plaintiff
in the suit. This Court found that the claim of specific
performance is independent of the claim of partition, since
the second defendant should first establish a right of claim
over the property, which is absent till he succeeds against
the estate of the first defendant; in which event only the
question of setting up of a counter claim against the plaintiff
by way of a prayer for partition would arise.
Page 7 of 10
C.A. @ SLP(C) No.11050 of 2025
12. The said declaration squarely applies in the present
nd rd
case also. True, if the 2 and 3 defendants are in
possession of any part of the property, their impleadment in
the suit is necessary since the plaintiff would also have to
claim recovery of possession in the event of a decree of
nd rd
specific performance. Now, the 2 and 3 defendants
having already been impleaded, the suit does not suffer
from the defect of non-joinder of necessary parties.
13. It also has to be noticed that despite raising a claim for
nd rd
conveyance of the entire property, the 2 and 3
defendants do not have a concrete case, even for a counter
claim. Their first assertion in the written statement is that
they had agreed to purchase the entire land for
Rs.5,55,000/- against which Rs.2,95,000/- was already paid.
However, they conceded that 43 decimals from the very
same property was agreed to be conveyed by the first
defendant to the plaintiff for consideration of Rs.2,55,000/-.
Their contention is also that the plaintiff had fraudulently
changed the area from 43 decimals to 93 decimals. Their
claim towards the end of the written statement is that, in any
Page 8 of 10
C.A. @ SLP(C) No.11050 of 2025
event 50 decimals of the suit property has to be conveyed to
them based on the part payment made by them for which
nd rd
there is no agreement. The 2 and 3 defendants, hence,
are found to have no concrete claim against the property
and in any event, the impleading application in the suit was
also filed only in the year 2006 after the period of limitation
seeking the claim of specific performance, the cause of
action for which, even according to the defendants, arose on
02.12.2002.
14. As has been held in the decisions cited, the counter
claim against the co-defendant cannot survive and the same
nd rd
has to be rejected. Impleadment of the 2 and 3
defendants though voluntarily made by themselves, saves
the suit from the defect of non-joinder of necessary parties,
on the ground of possession, even if it is so found. We make
it clear that we have not held on merits regarding the
possession as such and it would be for the Trial Court to
determine the same and if necessary, grant recovery of
possession, if that is sought for by the plaintiff appropriately
in the suit.
Page 9 of 10
C.A. @ SLP(C) No.11050 of 2025
15. We find no reason to leave liberty to the defendants 2
& 3 to file a separate suit at this stage, when the claim would
be grossly delayed, which was hit by limitation even at the
time of filing of the counter claim; which in any event cannot
survive against the plaintiff.
16. The Civil Appeal is hence allowed, and the parties are
left to agitate their cause before the Trial Court, leaving
open all contentions except – that of the counter claim of the
defendants 2 & 3, which stands set aside.
17. Pending application(s), if any, shall stand disposed of.
……..…..……………………. J.
(K. Vinod Chandran)
………….……………………. J.
(N. V. Anjaria)
New Delhi;
November 12, 2025.
Page 10 of 10
C.A. @ SLP(C) No.11050 of 2025