A single first appeal cannot challenge separate decrees dismissing a suit and allowing a counterclaim.

The plaintiff claimed ownership of property bearing Survey No. 2511-A, Ahmedabad, and sought a perpetual injunction restraining the defendant from demolishing a Chowkdi and brick wall allegedly situated in the rear passage of his premises, as well as from interfering with his alleged possession and easementary rights.

The defendant, owner of adjoining Survey No. 2509, denied the plaintiff’s rights and contended that the Chowkdi and wall were unauthorised encroachments on a public passage, through which the defendant and members of the public had a right of way.

He filed a counterclaim seeking removal of the structures and a permanent injunction against further encroachment.

The City Civil Court dismissed the plaintiff’s suit and partly allowed the counterclaim, declaring that the plaintiff had no right to obstruct or encroach upon the public passage and directing restoration of the status quo ante.

The plaintiff preferred the present First Appeal under Section 96 of the Code of Civil Procedure, 1908 (“CPC”).

Whether the Chowkdi and brick wall were constructed with the permission of the Ahmedabad Municipal Corporation?

Whether the plaintiff had any legal right to construct or retain the Chowkdi and wall on Corporation-owned public land?

Whether the City Civil Court erred in dismissing the plaintiff’s suit and allowing the defendant’s counterclaim?

Whether a single First Appeal under Section 96 CPC was maintainable against the decree dismissing the suit and the separate decree allowing the counterclaim?

Order VIII Rule 6A(2) and (4) CPC provide that a counterclaim has the effect of a cross-suit, is to be treated as a plaint, and permits the court to pronounce judgment on both the original claim and the counterclaim.

Section 96 CPC provides an appeal from every “decree,” not from a judgment or collectively from multiple separate decrees.

The distinction between a judgment and a decree follows Sections 2(9) and 2(2) CPC: the judgment contains the court’s reasons, whereas the decree is the formal adjudication crystallising the parties’ rights.

The Court relied on Darayas Bamanshah Medhora, Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332, Premier Tyres Ltd. v. Kerala State Road Transport Corporation, AIR 1993 SC 1201, and Ram Prakash v. Charan Kaur, AIR 1997 SC 3760, for the principles that separate decrees require separate appellate challenges and that an unchallenged decree may attain finality, attracting res judicata, acquiescence, or issue estoppel.

The Court also applied the principle that temporary municipal permission to use public land does not confer a permanent proprietary or construction right.

The plaintiff’s own evidence established that the wall and Chowkdi stood on Corporation land.

The evidence of the plaintiff’s witnesses further showed that the passage was a public municipal passage available for use by members of the public.

Exhibits 71 and 72 only evidenced permission, upon payment of fees, to use the Chowkdi during the limited period from 1 April 1970 to 31 March 1975; they did not authorise permanent construction or retention of the structures.

The Corporation’s witness confirmed that the passage belonged to the Corporation and that both structures constituted unauthorised construction and encroachment on public land.

Accordingly, the plaintiff could not claim an injunction to protect an unauthorised obstruction of a public passage.

Independently, the Court held that the counterclaim operated as a cross-suit and resulted in a decree separate from the decree dismissing the plaintiff’s suit.

Since the appellant’s single memorandum purported to challenge both decrees without clearly specifying the relief sought, the appeal was defective and not maintainable under Section 96 CPC.

The appeal therefore failed both on merits and on maintainability.

The Court further held that a single First Appeal could not challenge the two separate decrees arising from the suit and counterclaim.

The judgment and decree dated 04 July 2007 of the City Civil Court, Ahmedabad, were confirmed; any interim relief was vacated, the connected civil application was disposed of as infructuous, and no order as to costs was made.