Telangana High Court
Dist Collector Hyd vs B.Ranga Reddy Died 12 Ors on 18 January, 2023
Author: M.Laxman
Bench: M.Laxman
* THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR
+ C.C.C.A. No.194 of 1998
% Dated 01.10.2012
# State of A.P. rep. by Collector, Hyderabad
District, Nampally, Hyderabad and others
...Appellants
Vs.
$ B. Ranga Reddy and others.
...Respondents
! Counsel for the Appellants: Sri A. Sudershan Reddy,
Advocate-General
^ Counsel for the Respondents: Sri Challa Sitaramaiah, learned Senior
Counsel, representing Sri B. Rajendra
and M. Narender Reddy
< Gist :
> Head Note:
? Cases Referred:
1. (1974) 2 SCC 151
2. (1979) 4 SCC 163
3. (2005) 6 SCC 304
4. 1993 Supp(2) SCC 146
5. 1993 Supp(2) SCC 149
6. 1995(2)ALT 122(DB)
7. AIR 1966 SC 1332
8. (2010) 7 SCC 717
9. AIR 1996 Karnataka 296
10. (1974) 2 SCC 393
11. (1995) 6 SCC 733
12. (2007) 11 SCC 75
13. (2001) 8 SCC 173
14. AIR 1996 Madras 94
15. AIR 1995 SC 1205
16. (2004) 1 SCC 712
17. (2002) 2 SCC 85
18. (2003) SCC 34
19. (2003) 9 SCC 606
HON'BLE SRI JUSTICE B. CHANDRA KUMAR
C.C.C.A. No.194 of 1998
Order:
The preliminary objection raised by Sri Challa Sitaramaiah, learned
Senior Counsel, representing Sri B. Rajendra and M. Narender Reddy,
learned counsel for the respondents, is that the present appeal is not
maintainable since the appellants herein i.e., State of Andhra Pradesh have
not challenged the common findings in O.S. Nos.274 and 276 of 1983, but
challenged only the findings in O.S. No.141 of 1984 and, therefore, this
appeal is hit by the principle of Res judicata.
The brief facts of the case are as follows. One Ghulam Ahmed Khan
filed O.S. No.274 of 1983 claiming title to an extent of Ac.6.08 guntas in
Survey No.9/13, Khairatabad village, within the specified boundaries
seeking declaration of title and for injunction. One Mohd. Osman filed O.S.
No.276 of 1983 claiming title to an extent of Ac.3.00 guntas in Survey
No.9/13 of Khairatabad village within the specified boundaries. One Ranga
Reddy, Vijaya Reddy and 7 others filed O.S. No.141 of 1984 claiming title to
an extent of Ac.19.23 guntas in Survey Nos.49 and 50 in Rasoolpura village,
Hyderabad within the specified boundaries. In all these suits, the relief
sought is declaration of title and injunction and certain other reliefs.
All these three suits were tried together; evidence was recorded in
O.S. No.274 of 1983. The defendants Nos.5 to 9 i.e., State of Andhra
Pradesh, represented by its District Collector, Hyderabad and other officials
in O.S. No.274 of 1983 were arrayed as Defendants 3 to 7 in O.S. No.276 of
1983 and defendants 3, 4, 5, 9 and 10 in O.S. No.141 of 1984. The plaintiffs
in O.S. Nos.274 and 276 of 1983 were arrayed as defendants 1 and 2 in
O.S. No.141 of 1984. The plaintiffs 1 and 2 in O.S. No.141 of 1984 were
arrayed as defendants 1 and 2 in O.S. No.274 of 1983. The first plaintiff in
O.S. No.141 of 1984 was arrayed as defendant No.1 in O.S. No.276 of 1983.
The main question in all these three suits was whether the disputed
land forms part of Survey No.9/13 in Khairatabad village as claimed by the
plaintiffs in O.S. Nos.274 and 276 of 1983 or forms part of Survey Nos.49
and 50 in Rasoolpura as claimed by the plaintiffs in O.S. No.141 of 1984 or
in Survey No.43 of Bholakpur village as claimed by the State of A.P.
The specific case of the State of A.P., is that Survey No.9/13 is situated
to the side of the Secretariat building besides mint compound and whereas
the Ministers Road is situated at the side of Deccan Continental Hospital
and, therefore, there is no relevancy between the boundaries of the suit
schedule property as mentioned by the plaintiffs. It is also the case of the
State of A.P. (hereinafter referred to as 'Government' for convenience since
referred as Government in the lower Court judgment) that Survey No.43 of
Bholakpur village is a Government Shikkam Talab i.e., Tank Bed
Government land and such lands vest in Government.
On behalf of the plaintiffs, PWs. 1 and 2 were examined and Exs.A-1
to A-4 were marked. On behalf of the defendants, DWs. 1 to 12 were
examined and Exs.B.1 to B.90 were marked. Exs.C-1 to C-3 and EXs.X.1 to
X.10 were also marked. The issue No.1 is almost same in all the three
suits.
In O.S. No.274 of 1983, the issue No.1 is as follows. Whether the suit
property is part of Survey No.9/13 of Khairatabad village as claimed by the
plaintiffs or whether it is a part of Survey Nos.49 and 50 of Rasoolpura
village as claimed by the defendants 1 and 2 or whether it is the part of
Survey No.43 of Bholakpur village as claimed by the Government? On this
issue in O.S. No.274 of 1983, the lower Court gave a finding that the
plaintiffs miserably failed to establish that the suit property forms part of
Survey No.9/13 of Khairatabad village, and the Government also failed to
establish that the suit land forms part of Survey No.43 of Bholakpur village,
but held that the defendants 1 to 4 clearly established that that the suit land
forms part of Sy.Nos.49 and 50 of Rasoolpura village. In the result, the
lower Court dismissed the suit in O.S. No.274 of 1983. With regard to issue
No.1 in O.S. No.276 of 1983 i.e. which is almost the same issue as framed in
O.S. No.274 of 1983, the lower Court held that the finding of issue No.1 in
O.S. No.274 of 1983 holds good therein also. Similar finding was given in
O.S. No.141 of 1984 also. As far as the findings in O.S. No.274 and 276 of
1983 are concerned, the Government i.e. , defendants 5 to 9 in O.S. No.274
of 1983 and the defendants 3, 4, 5, 9 and 10 in O.S. No.276 of 1983 have
not preferred any Appeal. Therefore, the findings on issue No.1 in O.S.
Nos.274 and 276 of 1983, according to the learned Senior Counsel for the
respondents became final and therefore those findings operate as res
judicata between co-defendants. The plaintiff in O.S. No.274 of 1983
preferred an appeal in C.C.C.A. No.1 of 1999, the plaintiff in O.S. No.276 of
1983 preferred an appeal in C.C.C.A. No.7 of 1999, the defendants 1 and 2
in O.S. No.141 of 1984 preferred C.C.C.A. No.206 of 1998 and the
Government i.e., defendants 3 to 6 and 9 to 13 in O.S. No.141 of 1984
preferred C.C.C.A. No.194 of 1998.
The main contention of Sri Challa Sitaramaiah, learned Senior
Counsel, representing Sri B. Rajendra and M. Narender Reddy, learned
counsel, is that as far as the Government is concerned the findings against
the Government in O.S. Nos.274 and 276 of 1983 became final and operate
a s res judicata. Thus, his main contention is that the appeals filed by the
Government are not maintainable since the findings have become final and
hit by the principles of res judicata. Sri Sitaramaiah has placed reliance on
some decisions which will be referred while discussing the points.
The learned Advocate-General Sri A. Sudershan Reddy has
submitted that the plea of res judicata may not deserve any consideration.
His main submission is that no decree is passed against the Government in
O.S. Nos.274 and 276 of 1983 and when the Government have not suffered
any decree the question of filing an appeal against such decree does not
arise and there is no possibility to prefer an appeal. It is also submitted that
no appeal lie against a mere finding and therefore even if there is some
finding against the Government, there is no need to file an appeal. It is
submitted that the Government have disputed the boundaries and location of
the suit property and the suits filed by the plaintiffs in those two suits have
been dismissed.
The main submission of the learned Advocate-General is that the
government have suffered a decree in O.S. No.141 of 1984 and therefore the
Government preferred an appeal against the judgment and decree passed in
O.S. No.141 of 1984 and the unsuccessful plaintiffs in other two suits filed
appeals. The learned Advocate-General referring to Order 41 Rule 33 of
CPC submitted that the appellate Court shall have power to pass any
decree and make any order notwithstanding the fact that no appeal has
been preferred challenging a part of the decree and such power 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 objections. It is
further argued that the lower Court based its findings on the judgments of the
Special Court under the A.P. Land Grabbing (Prohibition) Act, 1982 in
L.G.C. No.10 of 1990 and subsequently the judgment of the Land Grabbing
Court has been set aside in W.P. No.260 of 1998 and W.P. No.2111 of
1998.
It is not in dispute that the three suits in O.S. Nos.274 and 276 of 1983
and O.S. No.141 of 1984 are tried together and a common judgment has
been delivered, however, three separate decrees and judgments have been
passed.
It is not in dispute that C.C.C.A. No.1 of 1999, C.C.C.A. No.7 of 1999
and C.C.C.A. No.194 of 1998 have been filed challenging the judgment and
decree passed in O.S. Nos.274 and 276 of 1983 and O.S. No.141 of 1984
respectively. It is also not in dispute that the Writ Petition Nos.260 and 2111
of 1998 have been preferred by the State Government against the judgments
of the Special Court referred above in Exs.B.88 and 89 and those writ
petitions have been allowed on 04.06.2009 and the matter has been
remanded back to the Special Court; after remand, the Special Court has
allowed L.G.C.Nos.104 and 105 of 1990 on 04.07.2011 while recording the
finding that the land grabbed is found to be falling on the northern side of the
railway track, a part of Survey No.43 of Bholakpur village. The learned
Advocate-General argued that the contentions of the plaintiffs in O.S. No.141
of 1984 is that Survey No.43 does not fall on the northern side of the railway
track is not available to them since the earlier judgments marked in Exs.B.88
and 89 have been set aside and subsequently different view has been taken
by the Special Court constituted under the Land Grabbing Act. It is also
contended that since the appeals have been filed challenging the judgments
in O.S. Nos.274 and 276 of 1983, they have not attained finality and
therefore, the respondents cannot plead that the findings in those decisions
act as res judicata to the present appeals.
Sri Challa Sitaramaiah submits that challenging the judgments in
LGC Nos.104 and 105 of 1990, dated 04.07.2011, W.P. Nos.34050 and
21554 of 2011 are filed and they are now pending before this Court.
Since the judgments in LGC Nos.104 and 105 of 1990 dated
04.07.2011 seems to have been challenged in Writ Petition Nos.34050 and
21544 of 2011 now it cannot be said that the findings of the lower Court in
the common judgment have lost its basis.
In the above circumstances, the points that arise for consideration are
:
1) Whether the findings of the lower Court on issue No.1
in O.S. Nos.274 and 276 of 1983 have to be treated as decree
and whether they operate as res judicata against the
Government, since the Government have not filed any appeals
challenging the said findings?
2) Whether the Government of Andhra Pradesh was not
required to file appeals on the ground that no enforceable
decree was passed against it?
Section 11 of CPC reads as follows.
11. Res Judicata: No Court shall try any suit or issue in
which the matter directly and substantially in issue has been directly
and substantially in issue in a former suit between the same parties,
or between parties under whom they or any of them claim, litigating
under the same title, in a court competent to try such subsequent
suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.
Explanation I.- The expression "former suit" shall denote a
suit which has been decided prior to the suit in question whether or
not it was instituted prior thereto.
Explanation II.- For the purposes of this section, the
competence of a court shall be determined irrespective of any
provisions as to a right of appeal from the decision of such Court.
Explanation III.- The matter above referred to must in the
former suit have been alleged by one party and either denied or
admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have
been made ground of defence or attack in such former suit shall be
deemed to have been a matter directly and substantially in issue in
such suit.
Explanation V.- Any relief claimed in the plaint, which is not
expressly granted by the decree, shall for the purposes of this
section, be deemed to have been refused.
Explanation VI.- Where persons litigate bona fide in respect
of a public right or of a private right, claimed in common for
themselves and others, all persons interested in such right shall, for
the purposes of this section, be deemed to claim under the persons
so litigating.
Explanation VII.- The provisions of this section shall apply to
a proceeding for the execution of a decree and references in this
section to any suit, issue of former suit shall be construed as
references respectively, to a proceeding for the execution of the
decree, question arising in such proceeding and a former
proceeding for the execution of that decree.
Explanation VIII.- An issue heard and finally decided by a
court of limited jurisdiction, competent to decide such issue, shall
operate as res judicata in a subsequent suit, notwithstanding that
such court of limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has been
subsequently raised."
To attract the principle of Res judicata it is necessary that the issue in
the present suit and in a former suit must be directly and substantially the
same issue and the Court must be a competent Court. As far as the
competency of Court is concerned the same is not in dispute. It is also
settled law that the Res judicata debars a Court from exercising its
jurisdiction to determine the lis if it has attained finality. Though the principle
no doubt appears to be technical aspect but the same appears to be on the
principle that there should be a finality to the litigation and no party shall be
allowed to raise the same issue which has been decided between the same
parties in a previous suit.
Order 14 of the CPC which deals with the issues, is as follows:
1 . Framing of issues: (1) Issues arise when a material
proposition of fact or law is affirmed by the one party and denied by
the other.
(2) Material propositions are those propositions of law or fact
which a plaintiff must allege in order to show a right to sue or a
defendant must allege in order to constitute his defence.
(3) Each material proposition affirmed by one party and
denied by the other shall form the subject of a distinct issue.
(4) Issues are of two kinds:
(a) issues of fact,
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading
the plaint and the written statements, if any, and after examination
under rule 2 of Order X and after hearing the parties or their
pleaders, ascertain upon what material propositions of fact or of law
the parties arc at variance, and shall thereupon proceed to frame
and record the issues on which the right decision of the case
appears to depend.
(6) Nothing in this rule requires the Court to frame and record
issues where the defendant at the first hearing of the suit makes no
defence.
Thus, issues are framed with regard to only those pleadings which
are asserted by one party and denied by the other. Admittedly, issue No.1 in
these suits has been framed basing on the pleadings of the parties.
Order 14, Rule 2 of CPC reads as follows.
2. Court to pronounce judgment on all issues.- (1)
Notwithstanding that a case may be disposed of on a preliminary
issue, the Court shall, subject to the provisions of sub-rule (2)
pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same
suit, and the Court is of opinion that the case or any part thereof
may be disposed of on an issue of law only, it may try that issue
first if that issue relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in
force,
and for that purpose may, if it thinks fit, postpone the settlement of
the other issues until after that issue has been determined, and may
deal with the suit in accordance with the decision on that issue.
Order 20 Rule 5 CPC reads as follows.
5. Court to state its decision on each issue: In suits in
which issues have been framed, the Court shall state its finding or
decision, with the reasons therefor, upon each separate issue,
unless the finding upon any one or more of the issue is sufficient for
the decision of the suit.
Order 20 Rule 6 CPC reads as follows.
6. Contents of decree.- (1) The decree shall agree with the
judgment; it shall contain the number of the suit, names and
descriptions of the parties, their registered addresses, and
particulars of the claim, and shall specify clearly the relief granted or
other determination of the suit.
Decree is defined in Section 2 of CPC, which reads as follows.
(2) "decree" means the formal expression of an adjudication
which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of the
matters in controversy in the suit and may be either preliminary or
final. It shall be deemed to include the rejection of a plaint and the
determination of any question within Sec. 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal
from an order, or
(b) any order of dismissal for default.
Explanation.- A decree is preliminary when further
proceedings have to be taken before the suit can be completely
disposed of. It is final when such adjudication completely disposes
of the suit. It may be partly preliminary and party final.
Section 96 deals with the appeals, which is as follows.
96. Appeal from original decree.- (1) Save where
otherwise expressly provided in the body of this Code or by any
other law for the time being in force, an appeal shall lie from every
decree passed by any court .exercising original jurisdiction to the
Court authorized to hear appeals from the decisions of such
Court.
(2) An appeal may lie from an original decree passed ex
parte.
(3) No appeal shall lie from a decree passed by the Court
with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a
decree in any suit of the nature cognizable by courts of small
causes, when the amount or value of the subject-matter of the
original suit does not exceed ten thousand rupees.
Thus, it is clear that an appeal shall lie from a decree. A plain
reading of definition of 'decree' reveals that decree means the formal
expression of adjudication whereby the court conclusively determines the
rights of the parties with regard to all or any of the matters in controversy in
the suit.
Thus, it is clear that "decree" does not mean only the operative
portion of the judgment. The common understanding of "decree" that it is
only an operative portion of judgment appears to be not correct.
A combined reading of the definition of 'decree', Order 14 Rule 1 of
CPC makes it clear that the decision on issues or on any matter in
controversy shall be deemed to be a decree.
Admittedly, the plaintiff in O.S. No.274 of 1983 filed a suit for
declaration and title and for permanent injunction. His specific case is that
the suit schedule land measuring Ac.6-08 guntas, forms part of larger extent
of Ac.26-00 and 0-38 guntas in Sy.No.9/13 of Khairatabad village, Taluq
Garbe, Zilla Atraf Balda, Surfekhas Mubarak, originally belonged to
Surfekhas, Hyderabad. It is also his case that he applied to the District
Collector in 1348 fasli to grant patta for the extent in his possession and
enjoyment. The District Collector issued a letter No.1530 dated 4th Khurdad
1351 fasli to the Tahsildar directing him to enter the names of the plaintiff
and others in the revenue records as per the supplemental setwar. It is also
his case that when one Ashagowni Rangaiah filed a petition claiming the
land, the Collector dismissed the said petition in judgment No.119 of 1355
fasli dated 15th Amardad and the Collector issued a letter dated 21st
Shahrwar 1355 fasli to the Tahsildar requiring him to enter the names of the
plaintiff and others in the revenue records as pattedars.
The case of the first defendant is that the suit land forms part of
Survey Nos.49 and 50 of Rasoolpura village. On behalf of the Government
fifth defendant i.e., the Collector, Hyderabad District, filed written statement.
It appears that the Collector in his written statement admitted that the then
Collector passed judgment in Case No.119 of 1355 FAsli in file No.2222
deleting the Sy.Nos.49 and 50 of Rasoolpura village as the same were
overlapping Sy.No.43 of Bholakpur village. However, it is denied that the
names of the plaintiff and others were directed to be entered into the
revenue records as the pattedars.
The specific case of the Government is that the suit property is the
Sikhim Talab Government land and neither the plaintiff nor the defendants 1
to 4 have any right over the said property.
The plaintiff in O.S. No.276 of 1983 claimed an extent of Ac.3-00
guntas on the same grounds as pleaded by the plaintiff in O.S. No.274 of
1983. The defence of the defendants is almost same. Thus, the
Government has taken a specific stand that the suit land is in Sy.No.43 of
Bholakpur village and not in Sy.No.9/13 of Khairatabad village and
Sy.Nos.49 and 50 of Rasoolplura village. Thus, the main controversy that
fell for consideration is whether the disputed land forms part of Sy.Nos.9/13
as claimed by the plaintiffs in O.S.Nos.274 and 276 of 1983 or Sy.Nos.49
and 50 of Rasoolpura as claimed by the plaintiffs in O.S. No.141 of 1984 or
Sy.No.43 of Bholakpur village as claimed by the Government.
It appears that the lower court has not believed Ex.A5 assigning
certain reasons. There is no need to discuss that point whether the reasons
assigned by the lower Court are valid or not while deciding the preliminary
objections. Suffice to say that the lower Court passed a detailed judgment
and decided the main controversy between the parties. It has to be seen
that not only the judgments of the Special Court but several other oral and
documentary evidence was considered by the lower Court. The lower Court
observing that the Government and the plaintiffs failed to prove that the
alleged judgment of the Collector in case 115 of 1355 fasli was implemented
and incorporated in the revenue records. It also came to the conclusion that
Sy.Nos.49 and 50 of Rasoolpura village have not been deleted from the
revenue records of Rasoolpura village. The lower Court has also taken into
consideration the circumstance that the proceedings in respect of Sy.Nos.49
and 50 of Rasoolpura village were not available and Ex.B6 revision map did
not show deletion of Sy.Nos.49 and 50. Whether the findings are based on
proper appreciation of evidence or not cannot be gone into at this stage but
suffice to say that the main controversy between the parties has been
decided.
In the above circumstances, we have to see whether the principle of
res judicata apply when the Government have not filed appeals challenging
the judgments passed in O.S. Nos.274 and 276 of 1983.
It has to be seen that in the operative portions of the judgments the
lower Court categorically held that the plaintiffs failed to establish that the
suit property forms part of Sy.No.9/13 of Khairatabad village but the
defendants 1 to 4 clearly established that it forms part of Sy.Nos.49 and 50
of Rasoolpura village. However, the Government also failed to establish
that the suit land forms part of Sy.No.43 of Bholakplur village. In O.S.
No.141 of 1984 the lower Court on issue No.1 held that the findings of issue
No.1 in O.S.No.274 of 1983 holds good and coming to issue No.2, the lower
Court held that the plaintiffs established their title and they are entitled for the
reliefs of declaration and possession. Though they were in possession of
the property originally, the Special Executive Magistrate took possession of
the property after the initiation of Section 145 of Cr.P.C proceedings. So, the
Government is bound to surrender possession to the plaintiffs in this suit
O.S. No.141 of 1984.
It is true that on Issue No.6 in O.S. No.141 of 1984 there was a
specific direction to the Government to deliver possession of the suit
property to the plaintiffs within two months. It is also a fact that there is no
specific direction against the Government in the decree as far as O.S.
Nos.274 and 276 of 1983 are concerned, but the fact remains that, a specific
finding was given in those cases that the Government failed to establish that
the suit land forms part of Sy.No.43 of Bholakpur village and it was further
held that defendants 1 to 4 established that it forms part of Sy.Nos.49 and 50
of Rasoolpura village. Thus, there is a clear declaration of rights and title of
the parties. It appears that when there is a clear declaration that the
Government failed to establish that the suit land forms part of 43 of
Bholakpur village and that the defendants 1 to 4 proved that it forms part of
Sy.Nos.49 and 50 of Rasoolpura village such findings, when not challenged
seems to have became final. When such findings have been given in
common judgment and when appeal is filed challenging the judgment and
decree passed in one suit and the findings in other two suits remain
unchallenged, such findings become final. When findings declaring the
rights of the parties become final they operate as res judicata in subsequent
proceedings. The plaintiffs in O.S.Nos.274 and 276 of 1983 have
challenged the findings of the lower Court and their main contention is that
the lower Court committed an error in not localizing the land with reference
to the revenue records in proper perspective. They have also taken a
ground that plaintiffs in O.S. No.141 of 1984 failed to trace their source of
title, the Government filed CCCA No.194 of 1998, the findings of the lower
Court in O.S. No.141 of 1984 have been challenged on various grounds, of
course the findings are common since the three suits have been clubbed
together and the issues settled are also common. It appears that in the
appeals filed by the plaintiffs in O.S. Nos.274 and 276 of 1983 the main
question that falls for consideration is whether thesuitproperty is in
Sy.No.9/13 of Khairatabad or in Sy.Nos.49 and 50 of Rasoolpura village.
The point raised by the Government whether suit property is in Sy.No.43 of
Bholakpur village and it is Government land cannot be considered in the
appeals filed by the plaintiffs in O.S. Nos.274 and 276 of 1983. Even if it is
argued that the conflict is between co-defendants, the principle of res
judicata appears to be applicable.
The learned Senior Counsel Sri Challa Sitaramaiah has placed
reliance on the following decisions: In a decision of the Apex Court reported
[1]
in Iftikhar Ahmed and others v. Syed Meharban Ali and others , it was
held as follows.
"Now it is settled by a large number of decisions that for a
judgment to operate as res judicata between or among co-
defendants, it is necessary to establish that (1) there was a conflict
of interest between co-defendants; (2) that it was necessary to
decide the conflict in order to give the relief which the plaintiff
claimed in the suit and (3) that the Court actually decided the
question."
It is also further submitted that the contesting parties must not be
common and in support of his contention reliance is placed on the decision
of the Apex Court in Pandit Ishwardas v. State of Madhya Pradesh and
[2]
others , whereunder the Apex Court observed as follows.
"The plea of res judicata may be sustained, without anything
more, if the questions at issue and the parties are the same, subject
of course to the other conditions prescribed by S. 11 Civil Procedure
Code. It is, however, not necessary that all the parties to the two
litigations must be common. It is sufficient that the issue should be
between the same parties or between parties under whom they or
any of them claim. Further, once the questions at issue in the two
suits are found to be the same, the fact that the material which led to
the decision in the earlier suit was not again placed before the Court
in the second suit cannot make the slightest difference.
In order to sustain the plea of res judicata, it is not necessary
that all the parties to the two litigations must be common. All that is
necessary is that the issue should be between the same parties or
between parties under whom they or any of them claim."
For the same proposition, reliance is placed in case between Makhija
Construction and Engineering (Petitioner) Limited v. Indore
[3]
Development Authority , wherein it was held as follows.
"The principle of res judicata has been held to bind co-
defendants if the relief given or refused by the earlier decision
involved a determination of an issue between co-defendants (or co-
respondents as the case may be)"
It is further argued that the Government have not filed cross-
objections, therefore it cannot question the findings without filing either the
appeal or cross-objections, however it may support the findings of lower
Court. Reliance is also placed on the decisions of the Apex Court in
[4]
Premier Tyres Limited v. Kerala State Road Transport Corporation ,
[5]
Union of India v. Hari Krishna Khosla (Dead) by L.Rs , and also in K.
Krishnan and others v. Tirumala Tirupathi Devasthanams, rep. by the
[6]
Executive Officer, Tirupati and another .
The Division Bench of this Court placing reliance on the judgment of
[7]
th e Apex Court in Sheodan Singh v. Daryao Kunwar , came to the
conclusion that once a decree passed in a suit attained finality, it cannot be
disturbed indirectly by adjudicating the very same questions in another
appeal.
In the above referred decision, the Apex Court observation is quoted
which is as follows.
"Four suits were consolidated and tried together with the
consent of the parties. By a common judgment, the civil Court
disposed of the four suits but separate decrees were drawn up in
each suit. Five issues were common in all the suits, and there were
other issues in each case separately. One of the common issues
related to the respective rights of the parties to the suit property.
Against the decrees in the four suits, two appeals were preferred to
the High Court and two appeals to the District Court and later the
appeals were transferred from the District Court to the High Court to
be heard along with the other two connected appeals. Two of the
four appeals were dismissed by the High Court - one on the ground
of limitation and the other on account of failure to apply for
translation and printing of the record as required by the rules of the
High Court. The question as whether the dismissal of the two
appeals would constitute res judicata in so far as the other two
surviving appeals were concerned. A Full Bench of the Allahabad
High Court took the view that the surviving two appeals must fail on
the ground of res judicata."
Then, this Court observed as follows.
"We are therefore of opinion that where a decision is given on the
merits by the trial Court and the matter is taken in appeal and the
appeal is dismissed on some preliminary ground, like limitation or
default in printing, it must be held that such dismissal when it
confirms the decision of the trial Court on the merits itself amounts
to the appeal being heard and finally decided on the merits
whatever may be the ground for dismissal of the appeal."
The decree which attained finality cannot be disturbed indirectly by
adjudicating the very same questions in the present appeal.
Sri Challa Sitaramaiah, learned Senior Counsel, has relied on a
decision of the Apex Court in Laxman Tatyaba Kankate and another v.
[8]
Taramati Harishchandra Dhatrak , in support of his contention that the
Government cannot attack the findings and the decree without filing cross-
objections.
The learned Senior Counsel placing reliance on the decision of the
High Court of Karnataka in case between N. Hanumantha Rao v.
[9]
Corporation of the City of Bangalore , has also referred to Order 41,
Rule 1 and Section 11 of CPC and submitted that the word used in Section
11 is finding of issue and it does not refer to any enforceable decree or
direction. Thus, his main contention is that when there is a specific finding
such finding has to be challenged by filing an appeal and when no appeal is
filed, Section 11 of CPC attracts.
Learned Advocate-General has relied on the judgment reported in
[10]
Smt. Ganga Bai v. Vijay Kumar . In that case defendant No.1 executed
a mortgage deed his behalf and his minor son. The plaintiff filed a suit and
obtained preliminary decree for the sale of defendant No.1's interest in the
mortgaged property. Defendants 2 and 3, sons of defendant No.1, pleaded
partition. However, the trial Court held that the partition deed was a sham
and colourable transaction. The plaintiff filed an appeal against the decree
directing the sale of half of the mortgaged property only. Defendants 2 and 3
filed appeals and subsequently moved an amendment to challenge the
preliminary decree. The amendment was allowed and the High Court set
aside the preliminary decree and held that the deed of partition was real and
genuine. When the matter was carried to the Apex Court, the main point that
fell for consideration was whether the appeal filed by defendants 2 and 3
was maintainable. The Apex Court observed as follows.
"It is thus clear that the appeal filed by defendants 2 and
3 in the High Court was directed originally not against any part
of the preliminary decree but against a mere finding recorded
by the trial Court that the partition was not genuine."
In para 25 of the judgment the Apex Court observed as follows.
"Whether the partition between the father and sons was
sham or real had no impact on the judgment of the trial Court
and made no material difference to the decree passed by it.
The finding recorded by the trial Court that the partition was a
colourable transaction was unnecessary for the decision of the
suit because even if the Court were to find that the partition
was genuine, the mortgage would only have bound the interest
of the father as the debt was not of a character which, under
the Hindu law, would bind the interest of the sons........."
It was further observed thus.
"As the matte relating to the partition was not directly and
substantially in issue in the suit, the finding that the partition
was sham cannot operate as res judicata."
Thus, it has to be seen that the finding recorded by the trial Court that
the partition was a colorable transaction was found to be unnecessary for
the decision of the suit and thus the issue of partition was not directly and
substantially an issue in that suit, but in this case the finding on issue No.1
which went against the Government appears to be a finding was on main
controversy and it cannot be said that such finding do not make any material
difference or unnecessary operate as res judicata. In the circumstances, it
appears that the above referred decision can be distinguished on facts.
Learned Advocate-General has relied on a decision reported in Deva
[11]
Ram v. Ishwar Chand . In that case on facts it was found that in
subsequent suits, the issue which was raised and tried in the previous suit
was not raised, framed and tried and no finding therefore came to be
recorded as to whether the defendants were tenants of the land in the suit.
In para 24 of the said decision it was observed as follows.
"In the previous suit, which was instituted by the
respondents, an issue, namely, Issue No.5 was framed on the
status of the appellant as to whether they were the tenants of
the land in suit under the respondents but in the subsequent
suit this issue was not raised as the appellants who were the
defendants in the subsequent suits did not plead that they
were the tenants under the respondents. What they pleaded
was that they were in possession since a long time namely
from Samvat 2005 and had, therefore, acquired title by adverse
possession. Consequently, in the subsequent suits, the issue
which was raised and tried in the previous suit was not raised,
framed or tried and no finding, therefore came to be recorded
as to whether the defendants were tenants of the land in suit. It
is true that the instant suit which is the subsequent suit, is
between the same parties who had litigated in the previous
suit and it is also true that the subject matter of this suit,
namely, the disputed land, is the same as was involved in the
previous suit but the issues and causes of action were
different. Consequently, the basic requirement for the
applicability of rule of res judicata is wanting and, therefore, in
the absence of pleadings, in the absence of issues and in the
absence of any finding, it is not open to the learned counsel for
the appellants to invoke the rule of res judicata on the ground
that in the earlier suit it was found by trial Court that the
appellants were the tenants of the land in dispute under the
respondents."
Thus, it was finally held that an appeal does not lie against mere
findings recorded by the Court unless the findings amount to a decree or
order. Thus, what is to be seen is whether the findings amount to a decree
or order. The crux of the issue appears to be whether a person is
prejudicially and adversely affected by the decree. Since the issue in the
previous suit was not the issue in the subsequent suit in the above referred
decision, the said decision can be distinguished on facts.
[12]
I n S. Nazeer Ahmed v. State Bank of Mysore , the appellant
borrowed a sum of Rs.1,10,000/- from the plaintiff Bank for purchase of a
bus. He secured repayment of that loan by hypothecating the bus and
further by equitably mortgaging two items of immovable properties. The
Bank first filed O.S. No. 131 of 1984 for recovery of the money due. The said
suit was decreed. The Bank, in execution, sought to proceed against the
hypothecated bus. The bus could not be traced and the money could not be
recovered. The Bank tried to proceed against the mortgaged properties in
execution. The appellant resisted by pointing out that there was no decree
on the mortgage and the bank could, if at all, only attach the properties and
could not sell it straightaway. That objection was upheld. The Bank
thereupon instituted the present suit, O.S. No. 35 of 1993, for enforcement of
the equitable mortgage. The appellant resisted the suit by pleading that the
suit was barred by Order II Rule 2 of the Code of Civil Procedure. The trial
Court held that the suit was not hit by Order II Rule 2 of the Code, however,
the suit was dismissed holding that it was barred by limitation. The Bank
filed an appeal in the High Court. The High Court held that though the suit is
h i t by Order 2 Rule 2 of the Code, but since the appellant had not
challenged the finding of the trial Court that the suit was not hit by Order 2
Rule 2 of the Code by filing a memorandum of cross-objections, the plea in
that behalf could not be and need not be upheld. The Apex Court observed
that the bar under Order 2 Rule 2 has been kept out by Order 34 Rule 14 of
the Code. The Apex Court further observed that it is clear from sub-rule (1)
of Rule 14 of Order 34 of the Code that notwithstanding anything contained
in Order 2 Rule 2 of the Code, a suit for sale in enforcement of the mortgage
can be filed by the plaintiff Bank and in fact that is the only remedy available
to the Bank to enforce the mortgage since it would not be entitled to bring the
mortgaged property to sale without instituting such a suit. It was also
observed that Order 34 Rule 14 has been enacted for the protection of the
mortgagor. Thus it was held that bar under Order 2 Rule 2 has been kept
out by Order 34 Rule 14 of the Code. T h e Apex Court in para 7 of the
judgment further observed thus.
".........The respondent in an appeal is entitled to
support the decree of the trial court even by challenging any of
the findings that might have been rendered by the trial court
against himself. For supporting the decree passed by the trial
court, it is not necessary for a respondent in the appeal, to file
a memorandum of cross-objections challenging a particular
finding that is rendered by the trial court against him when the
ultimate decree itself is in his favour. A memorandum of cross-
objections is needed only if the respondent claims any relief
which had been negatived to him by the trial court and in
addition to what he has already been given by the decree
under challenge. We have therefore no hesitation in accepting
the submission of the learned counsel for the appellant that the
High Court was in error in proceeding on the basis that the
appellant not having filed a memorandum of cross-objections,
was not entitled to canvass the correctness of the finding on
the bar of Order II Rule 2 rendered by the trial court."
In the present case, there is clear finding against the Government.
When there is a clear finding that the suit land does not form part of Survey
No.43 of Bholakpur village as claimed by the Government, it was obligatory
on the part of the Government to file cross-objections. What Government
can do is it can support the findings of the lower Court. The findings of the
lower Court is that the suit land forms part of Survey Nos.49 and 50 of
Rasoolpura village. Obviously the Government cannot support such finding,
because its case is that the suit land forms part of Survey No.43 of
Bholakpur village.
In the appeals filed by the plaintiffs the main question that falls for
consideration is whether the suit properties form part of Survey No.9/13 of
Khairatabad village or it forms part of Survey Nos.49 and 50 of Rasoolpura
village. The question whether the suit land forms part of Survey No.43 of
Bholakpur village as claimed by the Government does not fall for
consideration in the appeals in CCCA 1 of 1999 or in CCCA No.9 of 1999
i.e., appeals filed by the plaintiffs in O.S. Nos.274 and 276 of 1983.
Therefore, without filing cross-objections the Government cannot challenge
the findings of the trial court.
[13]
In Rachakonda Narayana v. Ponthala Parvathamma , relied on
by the learned Advocate-General, the plaintiff entered into an agreement of
sale to purchase plot A comprising 2 acres patta land and plot B comprising
Ac.1.30 Cents Sivaijama land from defendant No.1. One Bhima Naik issued
a registered notice claiming that he is the owner of the land comprising in
plot B measuring Ac.1.30 Cents and that the defendant No.1 has no right to
sell the same. Then the plaintiff filed a suit for specific performance of the
agreement against defendant No.1 in respect of Ac.2-00 of patta land only
and sought proportionate deduction of the price for the land. Defendant No.1
took a plea that the plaintiff cannot seek to enforce a new contract. The Trial
Court held that the plaintiff is not entitled to seek enforcement of new
contract. The plaintiff filed an appeal before the first appellate Court. Before
the first appellate Court for the first time it was stated by defendant No.1 that
he has no title in respect of plot B land and the same belonged to his wife.
The first appellate Court decreed the suit holding that the plaintiff is entitled
to decree for specific performance in respect of the land comprised in plot A
measuring Ac.2-00 of land. The defendant preferred second appeal and the
second appeal was allowed holding that since the plaintiff did not come with
the suit claiming the benefit of sub-section (3) of Section 12 of the Specific
Relief Act and claimed performance of only part of the whole agreement,
and therefore he was not ready and willing to perform his part of the whole
contract. Then the Apex Court, taking into consideration of the fact that for
the first time at the appellate stage defendant No.1 stated that he had no title
in respect of plot B Sivaijama land and it is on account of the said statement
the plaintiff filed an application for amendment of the plaint relinquishing his
claim in respect of Plot B of land and under the circumstances it was open
to the plaintiff to move for amendment of the plaint pleading therein the
ingredients for part-performance of the contract as provided under sub-
section (3) of Section 12 of the Act. In the above circumstances, it was
observed that an appeal is a continuation of the suit. When an appellate
court hears an appeal, the whole matter is at large. The appellate Court can
go into any question relating to rights of the parties which a trial Court was
entitled to dispose of provided the plaintiff possess that right on the date of
filing of the suit.
There cannot be any doubt to say that an appeal is continuation of the
suit. In view of the stand taken by defendant No.1 the appellant moved an
application for amendment of the plaint. In this case, the Government have
not filed any appeal nor cross-objections. Had Government filed an appeal,
it could have said that the whole matter is at large and the appellate Court
can go into any question relating to the rights of the parties. Without filing an
appeal and cross-objections, in my considered view, the Government cannot
challenge the findings recorded by the trial Court which went against it.
[14]
I n Kuppuswami v. Krishnaveni , the plaintiffs filed suit for
injunction. The said suit has been dismissed by the trial Court as well as by
the appellate Court holding that the plaintiffs are trespassers and they are
not entitled for injunction. The Trial Court held that there was an
encroachment by the plaintiffs to the extent of one foot. Aggrieved by the
said observation the first defendant filed cross-objections in the appeals filed
by the plaintiffs. The cross-objection has been dismissed without any
discussion. The Madras High Court held that the cross-objection itself is not
maintainable since the decree is not based on finding about the extent of
trespass but is based on the factum of the trespass. I am unable to agree
with the view taken by the Madras High Court. It is clear to my mind that a
decree means not only an enforceable decree. Many persons seem to have
under a wrong impression that the decree means an enforceable decree i.e.,
operative portion of the judgment. The definition of decree under Section
2(2) of CPC makes it clear that the "decree" means the formal expression of
an adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to all or any of
the matters in controversy in the suit. Thus, it appears that a formal
expression of an adjudication whereby the Court which conclusively
determines the rights of the parties with regard to all or any of the matters in
controversy on all or any one issue in a suit amounts to a decree. Therefore,
wherever there is a clear finding by a Court, the finding which exclusively
determines the rights of the parties amounts to a decree. Suppose in a case
a woman as first plaintiff claims maintenance for herself and also for her
minor son i.e., the second plaintiff, if a finding is given in such a suit that the
said woman is not the legally wedded wife of the defendant and that the
second plaintiff is not the legitimate son of the defendant, whether the
plaintiffs are not effected by such finding. Even if maintenance is granted to
second plaintiff on the ground that illegitimate son is also entitled for
maintenance whether the finding that the second plaintiff is not the legitimate
son of the defendant has to be challenged or not. Therefore, in a case
where there is a clear finding adjudicating the rights of the parties or
declaring the status of the parties or declaring the rights of the parties or a
conclusive finding has been given with regard to localization of the disputed
property such finding in my view assumes the character of a decree and if
not challenged operates as res judicata in future proceedings between the
same parties. Such findings have to be challenged by filing an appeal or at
least by filing cross objections.
[15]
In Mahboob Saheb v. Syed Ismail , one Maqdoom had entered
into an agreement of sale to sell his land and had also executed sale deeds
to discharge antecedent debts. A suit for specific performance was filed
against the said Maqdoom in O.S. No.4 of 1966 and the said suit was
decreed. In another suit filed by one Ismail on the foot of promissory
mortgage it was held that Maqdoom had jointly gifted the lands to his sons
and wife by registered gift deed. The question that came up for
consideration is whether the decree in O.S. No.3/1/1951 operates as res
judicata. It was held that no evidence has been adduced to establish
acceptance of the gift by or on behalf of the minor or delivery of possession
or taking possession. It was also held that the gifts have not been proved.
T h e Apex Court observed that the trial Court negatived the plea of res
judicata as preliminary issue. The issue of res judicata was not raised
before the appellate Court. It was held by the appellate Court that Maqdoom
played fraud upon his creditors by creating false oral gifts. It was also found
that the decree obtained in O.S. No.3/1/1951 was collusive or fraudulent to
defraud the creditors. The pleadings in the said former suit were not made
available. It was found that there was no conflict of interest between the
defendants in the said suit and that the main dispute in that suit was whether
the creditors could proceed against Maqdoom and whether the property was
liable to sale for realization of mortgage debt. It was held in that context the
relevancy and validity of gift was immaterial. In the light of the above facts,
the Apex Court observed as follows.
".............But for application of this doctrine between
co-defendants four conditions must be satisfied, namely, that
(1) there must be a conflict of interest between the defendants
concerned; (2) it must be necessary to decide the conflict in
order to give the reliefs which the plaintiff claims; (3) the
question between the defendants must have been finally
decided; and (4) the co-defendants were necessary or proper
parties in the former suit. This is the settled law as held in S. M.
Sadat Ali Khan v. Mirza Wiquar Ali, AIR 1943 PC 115;
Shashibushan Prasad Mishra v. Babjui Raj, (1969) 2 SCR
971: ( AIR 1970 SC 809); and Iftikhar Ahmed v. Syed
Meharban Ali, (1974) 2 SCC 151: (AIR 1974 SC 749)"
"...........In other words, if a plaintiff cannot get at his
right without trying and deciding a case between co-
defendants, the court will try and decide the case, and the co-
defendants will be bound by the decree. But if the relief given
to the plaintiff does not require or involve a decision of any
case between co-defendants, the co-defendants will not be
bound as between each other."
"...........The doctrine of res judicata must, however, be
applied to co-defendants with great care and caution. The
reason is that fraud is an extrinsic collateral act, which vitiates
the most solemn proceedings of courts of justice. If a party
obtains a decree from the court by practising fraud or collusion,
he cannot be allowed to say that the matter is res judicata and
cannot be re-opened. There can also be no question of res
judicata in a case where signs of fraud or collusion are
transparently pregnant or apparent from the facts on record."
In the present case, it is clear that there is a conflict of interest
between the co-defendants and there is no allegation that the lower Court
decree was obtained by playing fraud or collusion. Therefore, the said
decision appears to be not helpful to the appellants.
The learned Advocate-General has relied on a decision reported in
[16]
Dharam Dutt v. Union of India . In that case, on 30.06.1990, the
President of India promulgated an Ordinance whereby a statutory body
known as the Indian Council of World Affairs was constituted with power to
hold and dispose of property both movable and immovable. The
constitutional validity of this Ordinance was challenged by filing a writ
petition before the High Court of Punjab and Haryana at Chandigarh. The
learned single Judge of the High Court allowed the writ petition holding the
Ordinance to be ultra vires of the Constitution of India, violating Articles 14,
19(1)(a) and 19(1)(c) thereof and also beyond the legislative competence of
the Parliament. The Union of India filed a letters patent appeal against this
judgment of the learned single Judge. During the pendency of the said
appeal, the ordinance was replaced by an Act of Parliament, namely, the
Indian Council of World Affairs Act, 2001 (Act 29 of 2001). A Writ Petition
was filed challenging the constitutional validity of the said Act. It was held
by the Apex Court that the doctrine of colourable legislation does not involve
any question of bona fides or mala fides on the part of the legislature. The
Supreme Court observing that the decision of the learned Single Judge was
not left unchallenged and the correctness of the judgment of the learned
Single Judge was put in issue by the Union of India by filing an intra-court
appeal observed that filing of an appeal destroys the finality of the judgment
under appeal. It was further observed that the issues determined by the
learned Single Judge were open for consideration before the Division
Bench. However, the Division Bench was denied the opportunity of hearing
and the aggrieved party could not press for decision of the appeal on merits,
as before the appeal could be heard it was rendered infructuous on account
of the Ordinance itself having ceased to operate. The judgment of the
Division Bench refusing to dwell upon the correctness of the judgment of the
Single Judge had the effect of leaving the matter at large. Upon the lapsing
of the earlier Ordinance pending an appeal before a Division Bench, the
judgment of the Single Judge about the illegality of the earlier Ordnance,
cannot any longer bar the Apex Court from deciding about the validity of a
fresh law on its own merits, even if the fresh law contains similar provisions.
In that case the Union of India being an aggrieved party filed the
appeal. In the above circumstances it was observed that filing of an appeal
destroys the finality of the judgment under appeal. In the case on hand, the
Government have not filed any appeal or counter claim challenging the
findings of the lower Court with regard to claim of the Government.
Reliance is also placed on the decision in Madhukar D. Shende v.
[17]
Tarabai Aba Shedage , wherein it was held that res judicata is mixed
question of fact and law. In that case no arguments were advanced raising
the plea of res judicata before any of the Courts below or the High Court.
[18]
In Baldev Singh v. Surinder Mohan Sharma , one Ajay Kumar
filed a suit for permanent injunction against the first respondent. The said
suit was dismissed as withdrawn. It appears that the first respondent
entered into an agreement to sell the property with the father of the
appellant. The first respondent filed a suit for possession against Ajay
Kumar treating him as his tenant and the appellant as sub-tenant. In that
case the appellant made a statement that he had been staying with his wife
Paramjit Kaur and his first wife is Sarbjit Kaur. On the basis of the said
statement, the first respondent made complaints to the employers of the
appellant alleging that he contracted second marriage during the life time of
his first wife. A suit was filed by Sarbjit Kaur contending that the appellant
had divorced her in the year 1982 and that the said suit was decreed
declaring that the marriage of Sarbjit Kaur and the appellant had been
dissolved with effect from 27.01.1982. Questioning the said judgment, the
first respondent filed an application before the High Court of Punjab and
Haryana at Chandigarh under Article 227 of the Constitution of India. His
case is that he is not party to the suit, so he cannot file any appeal against
the said judgment. When the matter went to the Apex Court, the Apex Court
observed that the appellant and Sarbjit Kaur have a right of privacy. Such a
right of privacy extends not only to the matrimonial home but also to the
matter of dissolution of a marriage. A third party who has nothing to do with
the relationship of the appellant and the said Sarbjit Kaur cannot be
permitted to intrude into their privacy by preferring an appeal. T h e locus
standi of a person who preferred an appeal came up for consideration in the
said case. It was further held that the allegations made by the first
respondent does not disclose any cause of action and it was not a bona fide
one. Admittedly, the first respondent was not an aggrieved party in the civil
suit filed by Sarbjit Kaur. He was only a third party. He was having some
other litigation with the appellant. In the above circumstances, the Apex
Court observed that an appeal would be maintainable only at the instance of
a person aggrieved by and dissatisfied with the judgment and decree.
Coming to the facts of this case can we say that the Government is not an
aggrieved partyand not dissatisfied with the judgment and decree passed by
the lower Courts in O.S. No.s274 and 276 of 1983? So, on facts the above
referred case appears to be not relevant.
Both Sri Challa Sitaramaiah, learned Senior Counsel, and the
learned Advocate-General have referred to the judgment reported in
[19]
Banarsi v. Ram Phal . In that case, the first respondent filed a suit for
specific performance contending that based on the agreement of sale dated
03.11.1988 he had paid an amount of Rs.2,40,000/- and agreed to pay the
balance of Rs.50,000/- at the time of execution of the sale deed. The
appellants filed a separate suit seeking cancellation of the agreement of
sale on the ground that the nature of transaction between the parties was
one of loan. The two suits were consolidated and tried together. In the
judgment, the appellants were directed to deposit the amount paid by the
first respondent within two months and it was further directed that if the
appellants/defendants failed to deposit the said amount within a period of
two months, the plaintiff was directed to deposit Rs.50,000/- and to get the
sale deed executed in his favour. The appellants filed two appeals in the
High Court and both the appeals were dismissed. The respondent did not
prefer any appeal of his own nor filed any cross-objection. However, while
rejecting the appeals, the appellate Court held that the suit filed by the
plaintiff Ram Phal is liable to be decreed for specific relief and original suit
filed by Banarsi is liable to be rejected. The appellants preferred two
second appeals. The High Court dismissed both the appeals holding that
no substantial question of law arose for consideration. Then the matter was
carried to the Apex Court. The question that arose for consideration is
whether appellate court could have set aside the decree passed by the trial
court and grant straight away a decree for specific performance of contract
when there were no cross-objections by the respondents. Then the Apex
Court examined the legal position of Order 41 Rule 22 CPC before and after
amendment of CPC by Amendment Act 104 of 1976 with effect from
01.02.1977. The Apex Court observed as follows.
"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 Am: vs. Gopal Lal 1967 (3) SCR 153; Smt.
Jatan Kanwar Golcha vs. M/'s. Golcha Properties (P) Ltd. 1970
(3) SCC 573 : Smt. Ganga Bai vs. Wjay Kumar and Ors.-
(1974) 2 SCC 393). No appeal 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.
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 plain tiff, 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. 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.
The 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.
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 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.
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 findings are of two kinds. Finding may be a decision on an issue
framed in a suit and will only cover material questions which arise in a
particular case for decision. The Court may give final decision on an issue
i.e., upon a controversy between the parties. There may be a finding which
may not be necessary or called for while deciding the main controversy
between the parties. Where a finding, if on a material issue, which declares
the rights of the parties, comes within the definition of a decree, has been
given, such finding has to be challenged though there may not be any
executable decree against the party. A party need not challenge a finding
which is not absolutely necessary nor called for in a suit, but where it
appears that a finding which effects the rights of the parties or declares the
right or title of a party and if not challenged would become final and may
operate as res judicata and such finding is to be treated as a decree though
not an executable decree and has to be challenged in an appeal.
In the case on hand, the lower Court has given a categorical finding
against the Government that the suit land is part of Survey No.43 of
Bholakpur village. Though the suit filed by the plaintiffs has been dismissed
the issue has been decided against the Government and in the absence of
any appeal filed by the Government or cross-objections by them they cannot
seek the modification of the decree. Though the decree is against the
plaintiffs, but part of the decree is definitely against the Government. Again
at the cost of repetition it has to be observed that the definition of decree
makes it clear that decree means formal expression of an adjudication which
conclusively determines the rights of the parties with regard to all or any of
the matters in controversy in the suit. Therefore, where a Court has
conclusively determined an issue it cannot be said as a mere finding, but it
has to be treated as a decree within the definition of Section 2(2) of the Code
of Civil Procedure 1908. The conclusive determination against the
Government cannot be treated as a passing observation or a finding on an
issue which is not in controversy. If there is mere passing of a remark or a
finding with regard to unconnected matter or a finding not on an issue which
is not material then it can be treated as a mere finding. But when the Court
has conclusively determined the rights of the parties with regard to all or any
of the matters in controversy in the suit the same in my view attracts the
definition of decree. The word "A decree" cannot be restricted to the
operative portion of the judgment as understood commonly.
Sri C. Challa Sitaramaiah, learned Senior Counsel, raised a
preliminary objection that the appeal filed by the Government is not
maintainable since the Government have not preferred appeals challenging
the judgment and decree in O.S. Nos.274 and 276 of 1983 and since the
decrees passed in those cases became final. It is also his submission that
since the claim of the Government has been negatived and the Government
did not prefer any appeal the findings of the lower Court on the said issue
became final and since the judgment passed by the lower Court in the
above referred two suits operate as Res judicata, the present appeal filed by
the Government is not maintainable. I find considerable force in the
submission of the learned Senior Counsel Sri Challa Sitaramaiah and hold
that the objections raised by him are sustainable.
Accordingly, I hold that the findings of the trial court in O.S. Nos.274
and 276 of 1983 that the suit land is not part of Survey No.43 of Bholakpur
village operates as Res judicata against the Government, since they have
not preferred any appeals against the said findings. Therefore, the appeal
filed by the Government in CCCA No.194 of 1998 is not maintainable. As
far as the issue with regard to the powers of the appellate Court, under Order
XLI Rule 33 CPC, are concerned, the same has to be considered in other
appeals, therefore I am not inclined to express any final opinion on the said
point.
_____________________
B. CHANDRA KUMAR, J.
Date. 01st October 2012. Note:
LR copy to be marked. (B/O) DSH/Nsr [1] (1974) 2 SCC 151 [2] (1979) 4 SCC 163 [3] (2005) 6 SCC 304 [4] 1993 Supp (2) SCC 146 [5] 1993 Supp (2) SCC 149 [6] 1995(2) ALT 122(DB) [7] AIR 1966 SC 1332 [8] (2010) 7 SCC 717 [9] AIR 1996 Karnataka 296 [10] (1974) 2 Supreme Court Cases 393 [11] (1995) 6 SCC 733 [12] (2007) 11 SCC 75 [13] (2001) 8 SCC 173 [14] AIR 1996 Madras 94 [15] AIR 1995 SC 1205 [16] (2004) 1 SCC 712 [17] (2002) 2 SCC 85 [18] (2003) SCC 34 [19] (2003) 9 SCC 606