While dealing with a property dispute matter relating to the recovery of possession, the Supreme Court has reaffirmed that a counter-claim against the co-defendant cannot survive, and the same has to be directed against the plaintiff.

The appellant plaintiff approached the Apex Court challenging the order of the High Court affirming the order of the Trial Court admitting a counterclaim by the second and third defendants, who were subsequently impleaded, on their application. The counterclaim was against the first defendant, against whom the plaintiff had sought a specific performance of the very same land which was the subject matter of the suit.

Referring to the judgment in Rohit Singh & Ors. v. State of Bihar (2006) and Rajul Mano Shah @ Rajeshwari Rasiklal Sheth v. Kiranbhai Shakrabhai Patel & Anr (2025), the Divison Bench of Justice K. Vinod Chandran and Justice N. V. Anjaria stated, “As has been held in the decisions cited, the counter claim against the co-defendant cannot survive and the same has to be rejected. Impleadment of the 2 nd and 3rd 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.”

Senior Advocate Shikhil Suri represented the Petitioner while AOR Surender Singh Hooda represented the Respondent.

Factual Background

The plaintiff filed a suit for specific performance on the ground that the first defendant had entered into an oral agreement to sell 0.93 acres of land. The first defendant was the sole defendant impleaded in the plaint filed. The entire consideration agreed upon was paid by way of three demand drafts, and the plaintiff also asserted that he was put in possession of the property on which he had built a boundary wall.

The original sole defendant filed a written statement contending that two others (defendants 2 and 3) were the persons in possession of part of the suit property, and a portion of the very same land, 50 decimals, was agreed to be transferred to the second and third defendants. A written statement was filed by the second and third defendants asserting that they agreed to purchase the entire land for Rs 5,50,000 out of which they have paid Rs 2,95,000. They had also raised a counterclaim against the first defendant that they were 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. A challenge was made to this order before the Apex Court.

Reasoning

The Bench noted that if the second and third defendants were in possession of any part of the property, their impleadment in the suit was necessary since the plaintiff would also have to claim recovery of possession in the event of a decree of specific performance. The second and third defendants, having already been impleaded, the suit did not suffer from the defect of non-joinder of necessary parties, the Bench noted.

The Bench noticed that the second and third defendants were found to have no concrete claim against the property, and 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 arose in 2002.

Reference was also made to the judgment in Rohit Singh (supra) wherein 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 action and it has necessarily to be directed against the plaintiff and cannot be directed against the co-defendant.

The Bench thus allowed the Civil Appeal, leaving the parties to agitate their cause before the Trial Court, leaving open all contentions except that of the counterclaim of the second and third defendants. “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”, it concluded.

Cause Title: Sanjay Tiwari v. Yugal Kishore Prasad Sao (Neutral Citation: 2025 INSC 1310)

Appearance

Appellant: Senior Advocate Shikhil Suri, AOR Ram Lal Roy, Advocates Rajeev Ranjan, Shailesh Kumar Sinha

Respondent: AOR Surender Singh Hooda, AOR Sriram P., Advocates Sriram Parakkat, Neha Kumari, Anandhu S Nair, Maneesha Sunilkumar

Click here to read/download Judgment



Justice K. Vinod ChandranJustice N.V. Anjaria

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.