Patna High Court
Naresh Ahir And Ors. vs Mst. Barhiya And Anr. on 5 January, 1985
Equivalent citations: AIR1985PAT287, AIR 1985 PATNA 287, (1985) BLJ 643 (1985) PAT LJR 520, (1985) PAT LJR 520
JUDGMENT M.P. Varma, J.
1. This second appeal is against the judgment of reversal of the trial court judgment by the lower appellate court. The defendants first set of the suit are the appellants. The plaintiffs respondents had brought the suit for declaration of title and confirmation of possession in respect of the suit properties and in the alternative they also sought relief for recovery of possession.
2. The facts leading to the case are that the land stood recorded in the name of Kauleshwar Bind and the plaintiffs claimed title from him. According to their case the name of Kauleshwar Bind stood recorded in the cadestral survey. Kauleshwar Bind was grandfather of Ramu Bind, who was married to plaintiff No. 1 Barachia and was great grandfather of plaintiff No. 2. After the death of Ramu Bind plaintiffs came in possession of the suit land. Since they had good relation with the ex-landlord and were rendering services to him, no rent receipt was ever obtained, as they did not consider it necessary, but they continued to exercise peaceful possession over the suit property. It was in Magh 1370 fasli that the defendants first party prevented the plaintiffs from harvesting. Hence, the necessity of the suit. The defendants-appellants claimed the right over the property as Sikmidar for the last thirty to forty years and that there was commutation of Bhawali rent in their favour. It was specifically pleaded on their behalf that the plaintiffs were not connected with the recorded tenant Kauleshwar Bind and they were strangers to the suit properties. In other words in the suit itself in the trial court the plaintiffs' status of their relationship and connection with the recorded tenant was seriously disputed. The suit was dismissed on contest at the trial stage delivering judgment in favour of the defendants, but the finding with regard to the status of the plaintiffs having relationship with the recorded tenant Kauleshwar Bind was against the pleadings of the defendants' appellants and that plaintiffs were not strangers to the suit properties. But the court did not find title with the plaintiffs on the ground that the title of the plaintiffs ancestors had already extinguished by virtue of general and special law of limitation, as Kauleshwar Bind had abandoned the holding and the defendants were coming in possession thereof entering upon the land treating it as abandoned and found possession of the defendants over the same for over forty years. The plaintiffs made an appeal against the judgment and decree of the trial court and before the appellate court the respondents-appellants sought to support the judgment and decree, but at the same time they attempted to assail the findings of the trial court stating that the plaintiffs were strangers to the suitproperties having no connection whatsoever with the recorded tenant Kauleshwar Bind and as such, the plaintiffs did not derive any interest in the suit property through him. However, the defendants-respondents in the lower appellate court had not filed any cross-objection against the decree of the trial court. The appellate court while disposing of the appeal and reversing the judgment of the trial court took the following issue, as framed by the trial court for deciding the appeal:
"Whether the plaintiffs were strangers to the family of Kauleshwar or Kauleshwar Bind was the Ajaiya Sasur (father-in-law) or paradada of the plaintiff No. 2,"
3. The lower appellate court did not permit the defendant appellants to assail the same on the simple ground that they ought to have filed cross-objection against the finding of the trial court's judgment as to the relationship between the plaintiff-respondents and the reorded tenant Kauleshwar Bind. In the impugned judgment, the lower appellate court had said that there was no necessity of giving any finding on the aforementioned issue and no interference was called for and the findings of the trial court were accepted and the same was disposed of accordingly.
4. In this appeal it has been contended by the learned Advocate Sri Indu Shekhar Singh that the lower appellate court committed serious error of law in shutting out the appellants in challenging the issue involved on the misconceived notion that the appellants ought to have filed cross-objection against the judgment of the trial court. It has also been contended that the respondents were within their right to canvass the point in support of the correctness of the decree of the trial court inasmuch as the plaintiffs could not succeed if the point had been decided in favour of the appellants and the case, therefore, needs to be remanded for adjudication by the lower appellate court.
5. Admittedly the defendants-appellants had not filed any cross objection against the decree of the trial court. It has rightly been contended that no such cross-objection was needed to be filed as the decree was in their favour. It has also been contended that the defendants appellants were within their competence to assail the findings of the trial court in support of the decree in spite of non-filing of any cross-objection. Order 41, Rule 22 of the Civil P. C. lays down that any respondent, though he may not have appealed from any part of the decree may not only support the decree but may also state the findings against him in the court below in respect of any issue which ought to have been in his favour. In view of the aforesaid provisions it was wrong for the lower appellate court to have shut them out in attacking the findings made against them in the judgment of the court below, i.e. the trial court in respect of the issue and in agitating that the same ought to have been decided in their favour in passing the decree. The counsel for the respondents Mr. Keshari Singh has, in all fairness, conceded that the lower appellate court was in error in refusing to permit the defendants to assail the findings of the trial court though they did not appeal from any part of the decree or did not file any cross objection thereto against the findings of the trial court as to the relationship between the plaintiffs and the recorded tenants and it was wrong for the court to hold that there was no necessity of giving any finding or that no interference was called for on that score.
6. In my opinion, as according to the provisions laid down under Order 41, Rule 22 of the Civil P. C. which is applicable in this case in all force, the defendants appellants were entitled to canvass the correctness of the findings and/or any observation made against them in supporting the decree itself and at the same time they were not taking any cross objection to any part of the decree and so cross objection too was not filed. In shutting out the appellant in canvassing the same the appellate court below committed serious error of law. The judgment, therefore, stands vitiated. The impugned judgment is set aside, and with the aforesaid observations the case is remanded to the court below for disposal according to law. In the circumstances of the case there shall be no order for costs.