Himachal Pradesh High Court
Kamal Raj And Another vs Mehar Singh (Now Deceased) Through His ... on 18 December, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 227 of 2004.
Judgment reserved on: 03.12.2018.
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Date of decision:18.12.2018.
Kamal Raj and another . ..Appellants/Plaintiffs Versus Mehar Singh (now deceased) through his LRs:
Vidya Devi and others ...Respondents/Defendants Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellants : Mr. Ashok Sharma, Senior Advocate, with Mr. Inder Rana, Advocate.
For the Respondents : Mr. R.K. Sharma, Senior Advocate, with Mr. Arun Kumar, Advocate, for respondents No.1(a) to 1(h).
Tarlok Singh Chauhan, Judge The plaintiffs are the appellants, whose suit for possession was dismissed by the learned trial Court and said judgment and decree was affirmed by the learned first appellate Court on 22.12.2003, constraining them to file the instant appeal.
The parties shall be referred to as the 'plaintiffs' and the 'defendant'.1
Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 2
2. Brief facts of the case are that the plaintiffs filed a suit for .
possession by way of demolition in respect of the land comprised in Khata No. 23, Khatauni No. 74, Khasra No.173/1 measuring 52.50 sq.meters and Khasra No. 175 measuring 60.65 meters situated in Tika Bhater Kalan, Tappa Bajuri, Tehsil and District Hamirpur. (hereinafter referred to as the suit land). The plaintiffs claimed ownership and possession over Khasra Nos. 173, 174, 175 (old khasra No. 322 min, measuring 152.15 sq. meters). It is averred that the defendant was trespasser over the suit land and was owner of the adjoining land but he had illegally raised construction over the suit land in the month of January, 1988. Hence the suit.
3. The suit was contested by the defendant by filing written statement wherein preliminary objections qua non-joinder of necessary parties, valuation, limitation and estoppel were raised. On merits, it was claimed that the defendant had acquired the title over the suit land by virtue of adverse possession being in possession since 1972 in the shape of construction, cultivation and plantation over the suit land.
4. On the basis of the pleadings, the leaned trial Court on 8.2.1991 framed the following issues:
1. Whether the plaintiffs are entitled for possession of suit land after demolition of structure therefrom, as alleged? OPP ::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 3
2. Whether the suit is bad for non-joinder of necessary parties? OPD
3. Whether the suit is not properly valued for the purposes of .
court fee and jurisdiction, if so, what is proper valuation? OPD
4. Whether the suit is not within time? OPD
5. Whether the plaintiffs are estopped from filing the suit by their acts and conduct? OPD
6. Whether the defendant has become owner of the suit land by way of adverse possession? OPD
7. Whether the suit property is not properly specified, if so, its effect? OPD
8. Relief.
5. After recording the evidence and evaluating the same, the learned trial Court vide judgment and decree dated 10.9.1997 dismissed the suit of the plaintiffs, constraining the appellants/plaintiffs to file Civil Appeal No. 46/97-RBT.13/03 before the learned first appellate Court.
6. At the same time, the defendants filed cross Civil Appeal No. 16/98-RBT/12/03 against the findings on issues No.3 to 7.
7. Both the aforesaid appeals came to be dismissed vide two separate judgments and decrees passed on 22.12.2003. However, even though the appeal filed by the respondents/defendants were dismissed.
But, the findings on issues No.3, 5 and 7 were answered in their favour.
::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 48. Admittedly, the appellants/plaintiffs have only challenged the judgment and decree passed in Civil Appeal No. 46/97-RBT.13/03 whereby their appeal came to be dismissed.
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9. At the outset, Mr. R.K.Sharma, Senior Advocate, assisted by Mr. Arun Kumar, Advocate, learned counsel for the respondents/defendants has questioned the very maintainability of the appeal on the ground that since the judgment rendered by learned first appellate Court in cross Civil Appeal No. 16/98-RBT/12/03 has attained finality, therefore, the present appeal itself is not maintainable and placed reliance upon the following judgments:
(1) Smt. Satya Devi vs. Partap Singh and others, AIR 2006 HP 75;
(2) Rajni Rani and another vs. Khairati Lal and others (2015) 2 SCC 682 ; and (3) Piar Chand and others vs. Ranjeet Singh and others 2016 (Supp) SLC 612.
10. On the other hand, Mr. Ashok Sharma, Senior Advocate, assisted by Mr. Inder Rana, Advocate, learned counsel for the appellants/plaintiffs would contend that even though the issues 5 and 7 may have been decided by the learned first appellate Court against the plaintiffs/appellants, yet nonetheless the fact remains that the appeal itself was not maintainable and even otherwise was formally dismissed and there is no provision in law under the Code for filing an appeal against a ::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 5 mere finding as the appeal is only maintainable against a judgment and decree and has placed reliance upon the following judgments:
(1) Smt. Ganga Bai vs. Vijay Kumar and others (1974) 2 .
SCC 393, (2)Deva Ram and another vs. Ishwar Chand and another (1995) 6 SCC 733: and (3) Muddasani Venkata Narsaiah (dead) throughlegal representatives vs. Muddasani Sarojana (2016) 12 SCC
288.
11. Adverting to the facts, it would be necessary to notice that the defendants had not filed an appeal under Section 96 of CPC before the first appellate Court but had filed cross-objections under Order 41 Rule 22 CPC against the findings on issues No.3 to 7. Therefore, the moot question is whether the appeal at the first instance was maintainable because it is only after the appeal is held to be maintainable can the further questions like res judicata etc. be decided.
12. The issue is no longer res integra in view of the judgment of the Hon'ble Supreme Court in Banarsi and others vs. Ramphal (2003) 9 SCC 606, wherein the Hon'ble Supreme Court dealt with in detail the position of law as existing before and after the amendment carried out in the Code of Civil Procedure by Act 104 of 1976 w.e.f. 1.2.1977 and thereafter held that under Sections 96 and 100 CPC, an appeal can only be filed by a person, who is aggrieved by the decree and no appeal lies against a mere finding.
::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 613. It was further observed that the CPC amendment of 1976 had not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in .
whose favour the decree stands in its entirety was neither entitled nor obliged to prefer any cross objection. However, with the insertion of sub-rule (1) it was permissible to file a cross objection against a finding and this would arise in the following three situations:
(i) The impugned decree is partly in favour of the appellant
(ii) and partly in favour of the respondent;
The decree is entirely in favour of the respondent though an issue has been decided against the respondent;
(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
In the type of cases (i) it would be necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross objection. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross objection laying challenge to any finding adverse to him as the decree is ::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 7 entirely in his favour and he may support the decree without cross objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross objection to a finding recorded against .
him either while answering an issue or while dealing with an issue. The advantage of preferring such cross objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent. It is further clarified that the fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross objection, failing which, the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. It is also clarified that the law continues to remain so post-1976 amendment.
It shall be profitable to reproduce the relevant observations which read thus:
"7. The first question is whether without cross objection by the respondent, could the Appellate Court have set aside the decree passed by the Trial Court and instead granted straightaway a decree for specific performance of contract? This would require reference to the principles underlying right to file an appeal and right to prefer cross objection or when does it become necessary to prefer cross objection ::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 8 without which decree under appeal cannot be altered or varied to the advantage of the respondent and/or to the disadvantage of the appellant. Rule 22 of Order 41, as amended by CPC Amendment Act 104 of 1976, with effect from 1.2.1977 is reproduced hereunder in .
juxtaposition with the text of the provision as it stood prior to the amendment.
Order 41 Rule 22 Text as amended by Act 104 Test pre-amendment of 1976 (w.e.f. 1-2-1977) R.22. Upon hearing, respondent R.22. Upon hearing, respondent may object to decree as if he may object to decree as if he had preferred a separate had preferred a separate appeal.-(1) Any respondent, appeal.-(1) Any respondent, though he may not have though he may not have appealed from any part of the appealed from any part of the decree, may not only support the decree, may not only support decree [but may also state that the decree on any of the the finding against him in the grounds decided against him in Court below in respect of any the Court below, but take any issue ought to have been in his cross-objection to the decree favour; and may also take any which he could have taken by cross-objection] to the decree way of appeal, provided he has which he could have taken by filed such objection in the way of appeal, provided he has Appellate Court within one filed such' objection in the month from the date of service Appellate Court within one on him or his pleader of notice month from the date of service of the day fixed for hearing the on him or his pleader of notice of appeal, or within such further the day fixed for hearing the time as the Appellate Court may appeal, or within such further see fit to allow. time as the Appellate Court may see fit to allow.
Explanation.-A respondent aggrieved by a finding of the Court in the judgment on which ::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 9 the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on .
that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.
(2) - (3) * * * * to * (2) - (3) (4) Where in any case in which Where, in any case in which any respondent has under this any respondent has under this * * * * rule filed a memorandum of rule filed a memorandum of objection, the original appeal is objection, the original appeal is withdrawn or is dismissed for withdrawn or is dismissed for default, the objection so filed default, the objection so filed may nevertheless be heard and may nevertheless be heard and determined after such notice to determined after such notice to the other parties as the court the other parties as the court thinks fit." thinks fit."
8. Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal (See Phoolchand and Anr. v. Gopal Lal, [1967] 3 SCR 153; Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P) Ltd., [1970] 3 SCC 573; Smt. Ganga Bai v. Vijay Kumar and Ors., [1974] 2 SCC 393. No appeal ::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 10 lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment.
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9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the Court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by the defendant, in spite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek to support the decree by challenging finding on ground (B) and persuade the appellate court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of defendant-appellant the decree could still be sustained by reversing the finding on ground (B) though the plaintiff-respondent has neither preferred an appeal of his own nor taken any cross objection. A right to file cross objection is the exercise of right to appeal though in a different form. It was observed in Sahadu Gangaram Bhagade v. Special Deputy Collector. Ahmednagar and Anr., [1971] 1 SCR 146 that the right given to a respondent in an appeal to file cross objection is a right given to the same extent as is a right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking any cross objection is the exercise of right of appeal and takes the place of cross-appeal though the form differs. Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross objection though certain finding may be against him. Appeal and cross-objection - both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was well-settled position of law under the unamended CPC.
::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 1110. CPC Amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any .
cross objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross objection. The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:-
(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent;
(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent;
(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross objection. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross ::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 12 objection to & finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross .
objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.
12. The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an appeal of his own or taken cross objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. The law continues to remain so post-1976 amendment."
14. Now, adverting to the facts, as observed above, the defendants had assailed the findings on issues No.3 to 7 by filing cross-objection. It is also not in dispute that insofar as the findings on issues No.5 and 7 are concerned, the same were considered and decided in favour of the defendants. Therefore, in such circumstances, there was no question of the cross-objection as filed by the defendants being dismissed but the same obviously were to be partly allowed in light of the findings qua issues No.5 and 7. Since the learned first Appellate Court despite deciding issues No.5 and 7 in favour of the defendants, still choose to dismiss the appeal filed by the defendants. The net result was that the appellant could not question those findings as the appeal in terms of the consistent law of the Hon'ble Supreme Court would only lie against a decree and not a mere findings.
::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 1315. Once that be so, then obviously, the plaintiffs have been deprived of a valuable right of filing an appeal against the judgment rendered by learned first Appellate Court in Civil Appeal No. 16 of 1998 whereby he decided issues .
No. 5 and 7 in favour of the defendants. In such circumstances without affording an opportunity to the plaintiffs to file an appeal against said findings, it would be a travesty of justice in case the defendants are allowed to raise objection regarding the maintainability of this appeal only on the ground that they have not questioned the judgment and decree passed by learned first Appellate Court in Civil Appeal No.16 of 1998.
16. As already observed above, once the first Appellate Court proceeded to decide issues No.5 and 7 in favour of the defendants, obviously then the appeal filed by the defendants could not have beeen ordered to be dismissed and the same was required to be partly allowed. It was only then in such circumstances that if despite the decree, the plaintiffs would not have filed separate appeal could it be argued that the findings recorded in the previous appeal had attained finality and would operate res judicata.
17. Having said so, the further question with regard to the maintainability of the appeal which otherwise I have held is only maintainable against the decree and not a finding, the present appeal cannot at this stage be held to be not maintainable without first setting aside the judgment and decree passed by the learned first Appellate Court in Civil Appeal No. 16 of 1998 whereby he dismissed the appeal filed by the defendants. Since issues No. 5 and 7 therein had been decided in favour of the defendants, therefore, the judgment passed by the learned first Appellate Court in the said appeal is set-
::: Downloaded on - 19/12/2018 22:56:38 :::HCHP 14aside and modified to the extent that the appeal shall now stand partly allowed in view of issues No.5 and 7 being decided in favour of the defendants. Ordered accordingly.
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18. Since the judgment and decree passed by learned first Appellate Court in Civil Appeal No. 16 of 1998 has been modified, the plaintiffs now have 90 days time to assail the judgment and decree passed in Civil Appeal No. 16 of 1998 and if they still do not choose to assail the same within the stipulated period, it is only thereafter the effect of that judgment can be seen.
19. Since I have only decided the preliminary question regarding maintainability of the appeal, the merits of the case including substantial question of law cannot at this stage be gone into.
List the appeal after expiry of statutory period of 90 days of filing of the appeal.
( Tarlok Singh Chauhan ) th 18 December, 2018(GR) Judge ::: Downloaded on - 19/12/2018 22:56:38 :::HCHP