Patna High Court
Bir Singh vs Budhu Ram And Ors. on 22 March, 1950
Equivalent citations: AIR1950PAT346, AIR 1950 PATNA 346
JUDGMENT Das, J.
1. The main question for decision in this second appeal is if the Court of appeal below was justified under the provisions of Order 41, Rule 83, Civil P. C., in modifying a part of the decree passed by the Court of first instance, on an appeal by the defendant-appellant, but without any appeal or cross-objection having been preferred by the plaintiffs-respondents against that part of the decree which was against them.
2. The facts relevant to the aforesaid question are the following. The plaintiffs-respondents brought a suit for a declaration of title and recovery of possession in respect of 14 kathas and 17 dhurs of land comprised in plot No. 390 situated in village Banuchapra. They alleged that the fruit a of some trees on the land were settled with the defendant-appellant for five years. After the expiry of the period of the lease in 1939, the plaintiffs-respondents got back possession. It was further alleged that there were some structures on the land, namely, a pacca house, a hut, a latrine and a nad. According to the plaintiffs-respondents they constructed the aforesaid structures except the nad, which was made by the appellant with the permission of the respondents. In 1943, the appellant again wanted to take settlement of the fruits, but the respondents refused. This led to a proceeding under Section 144, Criminal P, C., as a result of which the respondents were dispossessed by the appellant on 15th September 1944. The case of the appellant was that he had taken settlement of the land in batai from the father of plaintiff-respondent 1 in the year 1928. The appellant alleged that by reason of the said settlement and his continued possession since then, he had acquired a right of occupancy in the land. It was alleged by the appellant that he constructed the pacca house, the hut, the latrine and the nad. The latrine and the nad were alleged to have been constructed some 8 or 9 years ago but the other structures were alleged to have been constructed more than 12 years ago. It may be stated here that no question of adverse possession arose in the case because the appellant himself admitted that the structures were constructed with the permission of the respondents. The questions which were considered and decided by the Courts below were (i) whether the story of batai settlement in 1928, set up by the present appellant, was true; (2) whether the appellant had acquired any right of occupancy as an under-raiyat under the provisions of Section 48A, Bihar Tenancy Act, and (3) whether the structures in question were built and constructed by the appellant or the respondents. The first two questions were answered against the present appellant, and the third in his favour. The Court of first instance held that there was no settlement of the land, and the appellant was a trespasser in respect of the land, but a licensee or tenant at will in respect of the structures, he having made those structures with the permission of the respondents for temporary occupation. On these findings, the first Court that is, the learned Munsif passed a decree in favour of the plaintiff-respondents with regard to the land, but ground (found?) that the respondents were not entitled to recover possession of the land on which the structures stood without asking the appellant to quit the structures or remove them. In other words, the learned Munsif passed a modified decree in favour of the respondents giving them possession of the land other than the land on which the structures stood, as also mesne profits, etc. An appeal was preferred by the present appellant, who was defendant in the action, against that part of the decree of the learned Munsif which allowed possession of the land minus the structures. This appeal was heard by the learned Subordinate Judge of Motihari. He affirmed the three main findings of the learned Munsif but he held that the learned Munsif was wrong in thinking that a notice to quit or a demand was necessary before the respondents could succeed in respect of the land on which the structures stood. This part of the decree of the learned Munsif was against the respondents. The respondents had not preferred any appeal or cross objection. The learned Subordinate Judge then expressed himself as follows:
"No doubt, there is no cross-appeal or objection on the side of the plaintiffs, but under Order 41, Rule 33, Civil P. C., I think the appellate Court has power to pass proper order on the facts of the case."
On this view, the learned Subordinate Judge passed a decree directing the appellant to remove the structures and restore the land to its original condition within a month, failing which he directed, the structures would be removed at his cost. The learned Subordinate Judge dismissed the appeal of the appellant, but modified the decree in so far as it was against the respondents though the latter bad not preferred any appeal or cross-objection.
3. Learned counsel for the appellant has contended before us that the learned Subordinate Judge had no jurisdiction to interfere with that part of the decree against which no appeal nor any cross objection had been preferred by the party aggrieved. Secondly, he has contended that even if the learned Subordinate Judge had jurisdiction under the provisions of Order 41, Rule 33, Civil P. C., this was not a proper case in which the jurisdiction should have been exercised. There is a large volume of case law on the purpose and scope of Order 41, Rule 33, Civil P. C. with particular reference to the illustration given under the rule. Some decisions have held that the illustration is not meant to be exhaustive of the class of cases in which the rule applies; other decisions have held that the illustration indicates the principle underlying the purpose and scope of the rule. I do not think that it is necessary in this case to examine, in detail, the entire case law on the subject, because the decision in this case need not be rested on the higher plane of absence of jurisdiction. It is, I think, beyond dispute that the general principle is that a decree is binding on the parties to it unless it is set aside in appropriate proceedings, if a party wishes to have a decree against him modified or reversed, he must comply with certain requirements as to filing of appeals, objections and so forth. Therefore, though Order 41, Rule 33, Civil P. C., is in very wide terms, it must not be interpreted in such a way as to abrogate the other provisions in the Code with regard to the filing of appeals, cross objections, etc. It follows, therefore, that as an ordinary rule an appellate Court must not reverse or vary a decree in favour of a party who has not preferred any appeal or cross-objection against it and this general rule should hold good notwithstanding the enactment of Rule 33 which enables an appellate Court, in exceptional cases to pass such decree as ought to have been passed, or as the nature of the case may require, although the party in whose favour the decree is being made, may not have tiled an appeal or cross-objection. The illustration gives some indication of the class of cases in which Rule 33 will apply; for example, it applies to cases where, as a result of interference in favour of the appellant, further interference with the decree of the lower Court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience.
4. Keeping the aforesaid general principles in mind, I propose to examine some of the decisions of this Court to which our attention has been drawn. The earliest decision of this Court, to which our attention has been drawn, is Bam Chander v. Dwarka Nath, 5 Pat. L. W. 213 a (A. I. R. (4) 1917 pat. 52). That was a case in which the first Court decreed the suit against one Ambika Charan on his confession, and as against another person Madho Prasad, he decreed the suit for Rs. 49, (the two suits being suits for rent). Against these decrees, the landlord appealed, but neither defendant filed any cross-appeal against the decree made against him. The learned Subordinate Judge, while upholding the findings of the learned Munsif, said that on those findings the suits must be dismissed in toto for they were each suits for rent for a partition of a holding and not for a whole-holding. The landlord then came in second appeal to this Court, and one of the questions raised was whether the lower appellate Court had power to set aside decrees which were not appealed from. With regard to the decree against Arabia Chandra, it was held that the decree was obtained by consent, and no appeal lay; there, fore, the learned Subordinate Judge was wrong in interfering with that decree. In respect to the decree against Madho Prasad, the learned Subordinate Judge was right in his interpretation of the rights of the parties; their Lordships then expressed themeselves as follows with regard to Order 41, Rule 88, Civil P. C.:
"As we read that section it applies only to cases in which for the ends of justice and for the equitable execution of a decree the appellate Court considers it necessary to make a material variation in the decree. It does not seem to us that where there has been no cross-appeal the whole amount decreed should be wiped off on considerations which may commend themselves to the appellate Court. If it were so, there would be an end of all cross-appeals. A litigant has no desire to pay court fees upon a relief which he can obtain in the appellate Court without a fee. We are of opinion that the setting aside of the decree against Madho Prasad was without jurisdiction and must be declared void."
The decision, no doubt, put the matter on the higher plane of jurisdiction; but as I have already said, it is not necessary to go to that extent. One can say, that, speaking generally it would be wrong for the appellate Court to interfere with that part of the decree against which the aggrieved party has neither come up in appeal nor by way of a cross-objection. In Panchu v. Anand Thakur, 2 Pat. 712: (A. I, R. (11) 1924 Pat. 160), the real question was one of limitation, but certain observations were made-with regard to Order 41, Rule 33. The observation were to the following effect :
"It is contended by the learned Vakil that the High Court had no such power under order 41, Rule 33. The question is not whether the High Court would hare exercised the power; the question is whether there was a possibility of the High Court in the appeal of the plaintiff dismissing the plaintiff's entire suit. In my opinion, the case of the plaintiff being that all the defendants were joint tort-teasors and bad jointly taken possession of the plaintiff's land, It was open to the High Court, under the provisions of Order 41, Rule 33, to dismiss the plaintiff's entire suit if it came to the conclusion that his appeal, as against defendants 3, 7 and 15 could not succeed. I do not say that the High Court would, in the particular case, or in fact in any case, take that course, but the possibility was always there, and in my opinion, the plaintiff was entitled to wait till the appeal was disposed of in the High Court before proceeding with his execution as against those defendants against whom his suit had succeeded in the Court of first instance."
It is clear that their Lordships were considering a theoretical possibility only, and thought that Order 41, Rule 33, wag sufficiently wide in terms to admit of the theoretical possibility of interference, even though the party aggrieved had preferred no appeal or cross-objection. With regard to the theoretical possibility, their Lord-ships took a wide view. The next decision in Kesho Prasad Singh v. Narayan Dayal, 4 pat, 87 : (A. I. R, (12) 1925 Pat, 285), There Dawson Miller C. J. expressed himself as follows with regard to Order 41, Rule 33 :
"In my opinion, Order 41, Rule 33 has no application to a cage like this. The plaintiff succeeds in that suit in part, that is to say, although he claimed a higher rent, he in fact succeeded in obtaining the smaller rent. He obtained a part of that which he claimed and that was the result of certain findings of the Munsit that the holdings had in fact been split up and that the plaintiff was entitled to sue for rent in the one case in respect of a holding of 6.94 acres, and although he had claimed a greater rent than he was entitled to he was certainly entitled to the rent proportionate to that area, The defendants, after that decision was given and the decree passed against them, were content and remained satisfied with that decree. They made no attempt to appeal and even when the plaintiff appealed they entered no cross-appeal or cross-objection, and in my opinion, it was not competent to the learned Judge, when the only question before him was whether the plaintiff was entitled to the extra rent which had been refused him, to enter into the question whether or not he was entitled to any rent. This matter was not before the learned Judge and although the wording of Order 41, Rule 33, may be very wide and give a large discretion to the Court, it is in my view, clearly not meant to apply to a case like the present. The object of that order is, speaking generally, to enable the appellate Court, where its decision interferes with or modifies or extends the decision of the lower Court, to give effect to that decision by interfering, if necessary, even with the right and liabilities of those who are not in fact appealing from the decision of the trial Court. Unless it is necessary in the interest of justice to give effect to the appellate Court's decision by interfering in some way or other with the rights of those parties which are not the subject of appeal before us then it seems to me that the appellate Court has no right whatever to interfere."
I think that the facts of this decision are the nearest approach to the facts of the case under our present consideration. In a much later decision in Mohan Bikram v. Deonarain, A, I. R. (32) 1945 Pat. 453 : (24 Pat, 379), the same view was expressed. In a still more recent decision in Sant Prasad Singh v. Charitar Singh, 30 P.L.T. 359, the main decision was whether it was open to a defendant respondent to file a cross objection against a co-respondent under the provisions of Rule 22 of Order 41. Incidentally, it was observed that the language of Rule 33 of Order 41 was very wide and under that rule, the Court had power to make a proper decree and such power could be exercised in favour of all or any of the parties, even though they might not have filed an appeal or objection. The decision can hardly be taken as a decision on the scope of Rule 33 of Order 41.
6. Our attention has been drawn to some decisions of the Privy Council. In Nobin Chandra v. Chandra Madhab, 44 Cal. 1: (A. I. R. (8) 1916 P. C. 148), their Lordships referred to Section 561, Civil P. C., 1882, corresponding to Order 41, Rule 22, and said that in the absence of any cross appeal or any memorandum of appeal under Order 41, Rule 22, it was not competent for the appellant to get any further remedy than the restoration of the order of the Subordinate Judge. What happened was that in a suit for rendering accounts, the claim was for rendering accounts for a period of about eight years. The Subordinate Judge ordered an account for about five years only. On appeal, the High Court reduced the period to five mouths. It was against that order that an appeal was taken to the Privy Council by the plaintiff, and their Lordships observed that as the appellants had not preferred any cross-appeal or memorandum of appeal to the High Court, they could not ask that the accounts should be ordered for the whole period of the agency. In Muhammad Khaleef Shirazi & Sons v. Les Tanneries Lyonnaises, A. I. R. (13) 1926 P. C. 34 : (49 Mad. 435), their Lordships said that Order 41, Rule 33, Civil P. C., was not intended to apply to cases in which an appeal was being preferred direct to His Majesty in Council, which waa not allowable under the Code of Civil Procedure, or under the Letters Patent of the High Court. In Anath Nath v. Dwarka Nath, A. I. R. (26) 1939 P. C. 86 : (I. L.R. (1939) Kar. 149), their Lordships said as follows with regard to Order 41, Rule 33 :
"It was contended, however, that the language of Rule 83 of the same order was wide enough to cover the case. Even if their Lordships assume that the High Court was not wholly without power to entertain this ground of appeal--an assumption to which they do not commit themselves--they are clearly of opinion that B. 33 could not rightly be used in the present case so as to abrogate the important condition which prevents an Independent appeal from being in effect brought without any notice of the grounds of appeal being given to the parties who succeeded in the Court below."
6. Learned counsel for the respondents has placed very great reliance on two decisions, Subramanian Chettiar v. Sinnammal, 53 Mad. 881; (A. I. R. (17) 1930 Mad. 801 (F. B.)) and a single Judge decision of Lahore, Dayal Ram v. Ladha Ram, A. I. R. (20) '1933 Lah. 40 : (140 I. C. 22). In the Madras Full Bench decision, it wag held that the powers given to an appellate Court by Order 41, Rule 33, Civil P. C., were very wide, and could be exercised in a proper case even in favour of a respondent who had neither appealed nor filed a memorandum of cross-objection. It was pointed out, however, that the exercise of such extraordinary power was a matter of discretion with the appellate Court on the circumstances of the case. In the Madras case, it appears that the defendant conceded that the plaintiff, an attaching decree-holder, bad the right to redeem. The concession was made on the basis of a decision which was subsequently overruled. In those circumstances, it was held that the defendant could raise the point again. The Lahore decision purports to follow the Madras decision.
7. If we look at the case before us, not from the extreme point of view of absence of jurisdiction, but from the limited point of view of the proper exercise of the jurisdiction under Order 41, Rule 33, Civil P. C., it seems clear to me that the learned Subordinate Judge was wrong in modifying the decree of the learned Munsif with regard to the structures, when the respondents, the aggrieved party, had apparently accepted that decree and made no grievance of it. In the course of the argument before us, the question arose as to whether there would be any difficulty in giving effect to the decree of the learned Munsif for part of land. There are no materials before us from which it can be said that the decree of the learned Munsif for part of the land cannot be given effect to. Another question that has been canvassed before us on behalf of the respondents is that in order to avoid multiplicity of suits, the decree of the learned Munsif was properly modified by the learned Subordinate Judge. It is contended that the learned Munsif was wrong in thinking that a notice to quit was necessary; furthermore the respondents can easily bring another action after giving such notice, if necessary. Speaking for myself, I think the learned Munsif was wrong in thinking that a notice to quit was necessary; but if a party accepts a wrong decision, and does not file any appeal or cross-appeal, I doubt whether he can be heard to say that justice requires that the decision should be altered. To hold that he is so entitled without any exception, would be to abrogate the provisions as to the filing of appeals and cross-appeals.
8. For these reasons, I am of the view that the learned Subordinate Judge wrongly exercise ed his jurisdiction under Order 41, Rule 33, Civil P, C , in interfering with that part of the decree of the learned Munsif against which the rerpondents had neither preferred any appeal nor any cross appeal.
9. Learned counsel for the appellant faintly contended before us that his client had taken settlement of the land in 1928 and acquired occupancy right by continued possession. The concurrent finding of the Courts below is that the story of settlement was false. The appellant did not, therefore, hold as an under-raiyat, nor did he acquire occupancy right. It was further admitted that the possession of the appellant was permissive possession so far as the structures were concerned. In that view of the matter, no question of adverse possession arose. On merits, I think, the appellant has no case of remaining on the land against the wish of the rightful owners.
10. I would accordingly allow this appeal only in part to the extent indicated below. The decree of the learned Subordinate Judge, so far as it modifies the decree of the learned Munsif with regard to the land on which the structures stand, will be set aside, and the decree of the learned Munsif restored. The plaintiff respondents will get their costs of the first Court, and also mesne profits decreed by the learned Munsif and affirmed by the learned Subordinate Judge. There will be no order for costs in the Court of appeal below nor of this Court.
Sarjoo Prasad, J.
I entirely agree.