Patna High Court
Prahalad Chandra Mahato And Ors. vs The State Of Bihar And Ors. on 30 July, 1975
Equivalent citations: AIR1976PAT109, AIR 1976 PATNA 109
JUDGMENT S.K. Choudhuri, J.
1. This second appeal by defendants Nos. 6 to 10 has been preferred against the judgment of the first Additional District Judge, Singhbhum who dismissed the appeal of the plaintiffs and also set aside the decree which was passed by the trial court in favour of defendants Nos. 6 to 10 in respect of their half share i.e., 8 annas share in the disputed property.
2. The plaintiffs filed a suit for declaration that the tank situate in Survey Plot No. 307 with its embankment which is Survey Plot No. 306 are the homestead and khas property of the plaintiffs and the pro forma defendants (defendants Nos. 11 to 22) and for further declaration that defendants Nos. 6 to 10 (appellants before this court) have no title in the suit property and their recognition as tenant by the State is illegal. There was also a further prayer for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs.
3. The plaintiffs' case in short was that the ancestors of the plaintiffs and the pro forma defendants excavated a tank for their domestic and agricultural use in Survey Plot No. 307. The further case was that the plaintiffs and their ancestors migrated to some other village but some time after the cadastral survey plaintiffs Nos. 1 and 2 came back to their original village, that is, village Rangatanr and constructed their residential house in several plots (which are not in dispute). The further pleading was that the tank with its ridge is the khas property and part of the homestead of the plaintiffs and pro forma defendants and they are still in possession by rearing fish. The estate of the plaintiffs vested in the State of Bihar some time in 1956-57 and the plaintiffs filed return showing the tank and the embankment aforesaid as part of their homestead and accordingly the State issued notices for fixation of rent. The further case of the plaintiffs was that there was a partition in the family through partition Suit No. 33 of 1966 which was compromised and the suit property was kept Ijmal amongst the cosharers. It was stated in the plaint that in the revisional survey of 1964 the disputed property was recorded in the name of defendants Nos. 6 to 10 (appellants before this court) on the basis of a registered kabuliat dated 2-3-1944 executed in favour of some of the cosharers namely Ramratan Mahanty and others to the extent of 8 annas share in spite of the objection preferred by the plaintiffs. The plaintiffs alleged that this kabuliat was never acted upon and the appellants never came in possession. With the aforesaid allegations the plaintiffs filed the present suit
4. The suit was contested by defendants Nos. 1 to 5 who are State of Bihar and its officers and also by defendants Nos. 6 to 10 (appellants before this court). These two sets of defendants filed separate written statements. The defence taken by the State was that the tank was recorded as Gair Mazarua Gair Abad Malik and it was never a part of the plaintiffs' homestead or agricultural holding. All the villagers irrigated their lands by water of this tank. It was denied that the plaintiffs or their co-sharers ever reared or caught fish in the tank and the further pleading in defence was that the tank with its embankment vested in the State of Bihar under the Bihar Land Reforms Act free from encumbrance and the settlement in favour of the appellants was alleged to be illegal and inoperative. It was also stated that survey entry in 1964 in favour of the appellants is wrong.
5. The appellants namely defendants Nos. 6 to 10 who filed a separate written statement took the defence that the tank with its embankment is their raivati holding and they are coming in possession on the basis of a kabuliat granted by the co-sharers since a very long time. They challenged the correctness of the plaintiff's case to the effect that they are in possession as their homestead. Their specific defence was that 8 annas interest in the suit property was taken under the kabuliat dated 2-3-1944 and the rest 8 annas was taken by them under oral settlement and thus they were coming in possession of the whole of the tank as their own. They also pleaded that title in the tank in suit property has been perfected by adverse possession.
6. The trial court found that the plaintiffs were never in khas possession of the disputed property and their shares in the disputed property, have vested in the State of Bihar on vesting of the estate. It further found that the appellants acquired a full raity right in the disputed property by remaining in possession for more than 12 years as raiyats and the State Government issued receipts to them for consideration for several years. It therefore held that the said suit is barred by limitation to the extent of half share in the disputed property. With the aforesaid findings the trial court dismissed the suit.
7. An appeal was preferred by all the plaintiffs before the lower appellate court. It appears from the judgment of the lower appellate court that before that court the learned advocate for the plaintiffs gave up the case that the tank was a part of the plaintiffs' homestead. The lower appellate court however on a consideration of the evidence came to a finding that the entire tank vested in the State Government under Section 4 (a) of the Bihar Land Reforms Act and that defendants Nos. 6 to 10 (appellants before this court) including the plaintiffs have no right whatsoever in the tank. It accordingly dismissed the appeal with modification in the decree of the trial court to the effect that defendants Nos. 6 to 10 have no right in the disputed property as the same vested in the State of Bihar. Hence the present second appeal has been preferred by defendants Nos. 6 to 10.
8. Mr. R. S. Chatterji, learned counsel appearing on behalf of the appellants contended that the lower appellate court acted illegally in setting aside the decree passed by the trial court which was in favour of the appellants to the extent of half share in the disputed property, without there being any appeal or cross-objection preferred by the State and its officers (defendants 1 to 5). The learned counsel argued that the trial court passed a decree in favour of the appellants to the extent of half share in the disputed property and the same having become final it was not justified in interfering with the said decree in an appeal preferred by all the plaintiffs. His argument further was that a decree having been passed by the trial court in favour of the appellants which was appealable, the State of Bihar and its officers (defendants Nos. 1 to 5), if were aggrieved, could have preferred an appeal under Section 96 of the Civil Procedure Code but the same not having been done the judgment and decree of the lower appellate court effecting the appellants should be set aside in this second appeal. Learned counsel contended that Rule 4 and Rule 33 of Order 41 of the Code of Civil Procedure (hereinafter to be referred as the Code) have no application to the present case and that being so, the lower appellate court was not justified in the exercise of its power under the said provisions in interfering with the decree passed by the trial court in favour of the appellants.
9. In Order to appreciate the point raised by learned counsel for the appellants it is necessary first to examine Order 41, Rule 4 of the Code. It runs thus:--
"Where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree and thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants as the case may be."
On plain reading of this Rule it is manifest that the power under Rule 4 can be exercised by a court of appeal where an appeal is preferred by any of the plaintiffs or of the defendants. Therefore it is clear that if all the plaintiffs prefer an appeal then this provision has no application. In the present case the appeal was preferred before the lower appellate court by all the plaintiffs. Therefore, on its plain language, the said rule has no application. The lower appellate court thus in my opinion could not invoke the power under Rule 4 of the Code to disturb the decree passed in favour of the appellants by the trial court in an appeal preferred by all the plaintiffs. Now I come to Rule 33 of Order 41 to find out if the lower appellate court could in the present case interfere with the decree in favour of the appellants in an appeal preferred by all the plaintiffs. Rule 33 of Order 41 of the Code (leaving the proviso which is not relevant for our purpose) runs as follows:--
"The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make suck further or other decree or Order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection."
On plain reading of this rule again, it appears that the power given to the appellate court is very wide. This Rule was subject to interpretation in various decisions from time to time but I may usefully refer to two Supreme Court decisions hereafter. In Nirmala Bala Ghose v. Balai Chand Ghose, (AIR 1965 SC 1874) the fact was that one Balai Chand Ghose filed two suits for declaration that he was the owner of the properties described in the schedules annexed to the respective plaints. A third suit was filed by the same Balai and he claimed that it be declared that his wife was a benamidar for him and that the dedication dated the 15th September, 1944, did not amount to absolute dedication of the suit properties to the two deities Shri Satyanarain Jiu and Shri Lakshminarayan Jiu and the plaintiff was the sole shebait of the two deities. The trial court decreed the first two suits holding that the plaintiff w.as the owner of the disputed properties and the deed of endowment dated the 8th March, 1939, executed by Nirmala was sham and colourable. In the third suit it was held that Nirmala was a benamidar of Balai (plaintiff) of the properties in suit and the deed of endowment dated the 15th September, 1944, did not amount to absolute dedication to the aforesaid two deities. High Court of Judicature at Calcutta in appeal modified the decree passed by the trial court by holding that the deed dated the 8th March, 1939, was not sham but it amounted to partial dedication in favour of the deity Sri Gopalji. The appeal from the third suit was however dismissed subject to the clarification that it created only a charge in favour of the deity or deities and subject to this charge the property belonged to Balai. Accordingly three appeals were preferred before the Supreme Court. It may be stated here that first two suits were resisted by Nirmala on behalf of herself personally and as representing the deity Sri Gopalji. In the third suit the two deities (defendants Nos. 1 and 2) were represented by one Sunil Shekhar Bhattacharji and Nirmala was impleaded as third defendant. When the trial court passed a decree no appeal was preferred on behalf of the two deities aforesaid namely Sri Satyanarain Jiu and Sri Lakshminarayan Jiu and thus the decree against those two deities passed by the trial court became final. In these circumstances the Supreme Court held as follows:--
"In this appeal the two deities are also impleaded as party-respondents, but the deities have not taken part in the proceeding before this court, as they did not in the High Court. The decree against the two deities has become final, no appeal having been preferred to the High Court by the deities. It is not open to Nirmala to challenge the decree in so far as it is against the deities because she does not represent the deities. It was urged however that apart from the claim which Nirmala has made for herself, the court has power and is indeed bound under Order 41, Rule 33, Code of Civil Procedure to Pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute "dedication in favour of the two deities."
After quoting Order 41, Rule 33 of the Code the judgment of the Supreme Court further states:--
"The Rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the court to adjust the rights of the parties. Where in an appeal the court reaches a conclusion which is inconsistent with the opinion of the court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41. Rule 33 may properly be invoked, The Rule however does not confer an unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from."
I may also refer to the recent case of the Supreme Court in Harihar Prasad Singh v. Bahniki Prasad Singh, (AIR 1975 SC 733). Their Lordships in paragraph 36 of the iudgment in this case while interpreting Order 41. Rule 33 of the Code have fully approved the Bench decision of the Madras High Court in Krishna Reddy v. Ramireddy, (AIR 1954 Mad 848). The relevant portion from paragraph 36 of the judgment of the Supreme Court may usefully be quoted here which is as follows:--
"Though Order 41, Rule 33 confers wide and unlimited jurisdiction on courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well-defined principles in accordance with which that jurisdiction should be exercised. Normally a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so. no relief should ordinarily be given to him under Order 41, Rule 33.
But there are well-recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to read just the rights of other parties. A second class of cases based on the same principle is where the question is one of settling mutual rights and obligations between the same parties. A third class of cases is when the relief prayed for is single and indivisible but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is the possibility that there might come into operation at the same time and with reference to the same subject-matter two decrees which are inconsistent and contradictory. This, however, is not an exhaustive enumeration or the class of cases in which courts could interfere under Order 41, Rule 33. Such an enumeration would neither be possible nor even desirable."
9-A. Now adverting to the present case, the appeal before the lower appellate court, as already stated was preferred by all the plaintiffs and the said appeal was dismissed. There was therefore no occasion for the lower appellate court for interference with the trial court judgment which was passed in part in favour of the appellants. It is only when it becomes necessary to readjust the rights of the parties that the appellate court could interfere with such decree though no appeal was preferred against such decree. It w,as also not necessary to interfere with the trial court decree as the appeal before the lower appellate court was dismissed in toto and no occasion arose to settle or adjust the mutual rights and obligation between the parties. It was also not a case where the plaintiffs suit was decreed by the trial court against a number of defendants and that an appeal was preferred by some of the defendants before the lower appellate court. Thus keeping the aforesaid principles as indicated in the two decisions of the Supreme Court discussed by me above it becomes clear that the lower appellate court was not justified while dismissing the appeal of the plaintiffs to interfere with the decree passed by the trial court which was in favour of the appellants, in absence of an appeal by defendants 1 to 5 as against that part of the decree.
10. Mr. S.B.N. Singh. learned counsel appearing on behalf of the State and its officers, respondents Nos. 1 to 5 (defendants Nos. 1 to 5) however contended that the lower appellate court was justified in interfering with the decree passed in favour of the appellants though no appeal was preferred by his clients. He relied upon one passage from the ease of Virdhachalan Pillai v. Chaldean Syrian Bank Ltd., (AIR 1964 SC 1425). He drew my attention to paragraph 32 of the said judgment at page 1438 which runs as follows:--
"Learned counsel for the appellant raised a short preliminary objection that the learned Judges of the High Court having categorically found that there was an antecedent debt which was discharged by the suit mortgage loan only to the extent of Rs. 59,000/- and odd and there being no appeal by the Bank against the finding that the balance of Rs. 80,000/- had gone in discharge of an antecedent debt, the respondent was precluded from putting forward a contention that the entire sum of Rs. 80,000/- covered by Exts. A and B went for the discharge of antecedent debts. We do not see any substance in the objection because the respondent is entitled to canvass the correctness of findings against it in Order to support the decree that has been passed against the appellant."
In my opinion the aforesaid dictum laid down in paragraph 32 has no application to the present case. I therefore uphold the contention raised by learned counsel for the appellants.
11. In the result, the appeal is allowed. The judgment and decree of the lower appellate court in so far as it interfered with the decree passed by the trial court which was in favour of the appellants (defendants Nos. 6 to 10) are set aside and those of the trial court are restored. In the circumstances of the case the parties are directed to bear their respective costs throughout.