Himachal Pradesh High Court
Smt. Ram Rakhi vs Smt. Atti And Anr. on 18 May, 1993
Equivalent citations: AIR1993HP137
JUDGMENT Kamlesh Sharma, J.
1. This regular second appeal is directed against the decree and judgment dated 10-10-1988 passed by the District Judge, Una whereby the appeal of the respondents/ plaintiffs was accepted, the decree and judgment dated 30-9-1985 of Sub Judge (I), Una was set aside and the suit of the respondents/plaintiffs was decreed for possession by redemption of mortgage. They were ordered to deposit the mortgage money within a period of two months. It was also directed that on deposit of the mortgage amount, the appellant/defendant will deliver possession of the suit land to the respondent/ plaintiffs.
2. The suit of the respondents/plaintiffs was that one of them Smt. Atti was owner in possession of the suit land as stated in the heading of the plaint. The suit land consists of two parcels of land situated in two villages i.e. Bhalkoon and Baroa, which will hereinafter be referred to as villages 'A' and 'B'. The land in village 'A' is measuring 3 kanals 8 marlas and comprised in Khasra Nos. 367, 405, 408, 526 and 532 and land in village 'B' is measuring 9 kanals 7 marlas comprised in Khatoni Nos. 71, 72, 73, 74, 75, 76 and 77 as shown in jamabandi for the year 1971-72, which was later on brought on record as Ext. P4. The case of the respondents/ plaintiffs was that Smt. Atti had mortgaged the suit land in April, 1950 in favour of appellant/defendant for an amount of Rs. 425/- and had delivered its possession to her. For mortgage of land in village 'B' Mutation No. 194 was attested on 18-4-1950 and for land in village 'A' though Mutation No. 166 was entered on 13-12-1955 but it was rejected on 21-4-1957 behind the back of respondent/plaintiff Smt. Atti as alleged by her. She had made a gift of a part of mortgaged land in favour of respondent/ plaintiff Smt. Dropti, who is her daughter, therefore, Smt. Dropti was also added as plaintiff. The suit was filed on 23-2-1980.
3. The appellant/defendant resisted the suit on the ground that mortgage in question was created much prior to the year 1950 and it did not subsist. The alternative case of the appellant/defendant was that her husband and after his death, she herself was in possession of the suit land as a tenant and in case of redemption of the mortgage her tenancy will revive and she will continue in possession as a tenant. The defence that the mortgage was created much prior to April, 1950 and it was not subsisting on the date of filing of the suit weighed with the trial Court and it dismissed the suit. But the claim of the appellant/defendant that her husband and after his death she herself was the tenant over the suit land and her tenancy will revive after the suit land is redeemed was rejected. However, in appeal the findings of trial court are reversed so far the first point is concerned and it was held that the suit land was mortgaged in April, 1950 and was liable to be redeemed. The findings on other point were not examined by the District Judge on the ground that these were not challenged by the appellant/ defendant who was respondent before him by filing cross objections. Now, in the present regular second appeal the appellant/ defendant has challenged the findings of the courts below on both the points.
4. This Court has heard learned counsel for the parties and gone through the record.
5. So far first point is concerned that the mortgage had been created within 30 years before the institution of the suit, this Court does not find any reason to interfere with. The District Judge has correctly appreciated the oral and documentary evidence on record to come to the conclusion that the mortgage in respect of the suit land was created in April, 1950 and thereafter. Besides oral evidence, the mutation No. 194 in respect of land in village 'B' and mutation No. 166 in respect of land in village 'A' the entries in revenue record, with which this Court will deal in extenso while dealing with the second point, clearly establish on record that the mortgage in respect of land of village 'B' was created on 18-4-1950 and in respect of land in village 'A' was created either on 13-12-1955 or thereafter i.e. within a period of 30 years of the institution of Civil Suit on 23-2-1980. Therefore, findings of the District Judge in respect of first point are confirmed.
6. About second point Mr. Barowalia, learned counsel for the respondents/ plaintiffs has raised preliminary objection that it cannot be considered by this Court in the present appeal as the appellant/defendant had not filed cross-objections challenging the finding of the trial Court, which have now become final between the parties. The District Judge had also not considered this point for this reason. For making his submission Mr. Barowalia has relied upon Krishan Dev v. Smt. Ram Piari, AIR 1964 Him Pra 34. But in view of the amended provisions of Order 41, Rule 22 read with Rule 33, C.P.C. this preliminary objection is without any force.
7. Amended Order 41, Rule 22, Sub-rule (1) which is relevant in the present controversy is as under:--
22. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
Explanation -- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may under this rule file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent.
By way of amendment for the words "on any of the grounds decided against him in the Court below but take any corss-objection", the words "but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour and may also take any cross-objection" have been substituted. An explanation has also been added empowering the respondent to file cross-objection in respect to a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour.
8. The amended Rule 22(1) of Order 41, C.P.C. gives two distinct rights to the respondent in the appeal, the first is to uphold the decree of the Court on any of the grounds on which that Court decided against him and the second right is to take any cross-objection to the decree which the respondent might have taken by way of appeal. In the first case the respondent supports the decree and in the second case he objects the decree. Since the same person cannot support a decree by asserting that the matter decided against him should have been decided in his favour, the explanation has been added. However, the powers of the Appellate Court are given in Rule 33 which is as under:--
33. The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondent or parties, although such respondents or parties may not have filed any appeal or objection (and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees):
(Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused or make such order).
9. The bare reading of this provision shows that the Appellate Court has been given very wide powers to pass any decree or make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is only to a part of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or cross-objection. The only restriction to the powers of Appellate Court is that it cannot make an order under Section 35A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. Therefore in view of amendment in Rule 33, Order 41, C.P.C. the First Appellate Court could consider and decide the second point even without the cross-objections preferred by the appellate/ defendant before it. In view of this, the appellant/defendant was entitled to defend the decree of trial court passed in his favour and still challenge the findings against him even without filing the cross-objections. For holding this view, this Court has taken support from the judgments of other High Courts i.e. Jatani Dei v. Udayanath Behera, AIR 1983 Orissa 252; American Pipe Company v. State of Uttar Pradesh, AIR 1983 Cal 186 and Janak Pandey v. Sudama Singh, AIR 1986 Pat 61. The judgment in Krishan Dev v. Ram Piari, (AIR 1964 Him Pra 34) was on unamended provision of law, hence not applicable.
10. Now, the question arises whether any substantial question of law arises to interfere with the findings of fact arrived at by the trial court that the husband of the appellant/ defendant and after his death, she herself was not the tenant over the suit land as alleged by her. The answer is yes. The trial court has presumed that though the husband of appellant/defendant was recorded as tenant in the jamabandi for the year 1944-45 before the creation of mortgage yet he ceased to be a tenant. There was no basis for making such a presumption which has adversely affected the rights of appellant/defendant. Change of revenue entries would not indicate that the tenant ceased to be in possession till something to the contrary is proved.
11. Now, this Court will first deal with the land in village 'B'. If the jamabandi for the year 1971-72 Ext. P4 is perused, it will be clear that the land comprised in Khatoni No. 73 has been recorded as under mortgage of appellant/defendant mortgage out of the share of respondent/plaintiff Smt. Atti in the total land comprised in all the Khatonis mentioned in the heading of the plaint. The Khasra numbers of the land pertaining to Khatoni No. 73 are not given in the heading of the plaint which can be ascertained from column No. 6 of this jamabandi. From these Khasra numbers the land which was in the possession of defendant/appellant as mortgagee and before mortgage as tenant before 1971 -72 can be located in earlier jamabandis. Out of these Khasra numbers, only in Khasra No. 105 measuring 3 kanals 8 marlas the husband of the appellant/defendant was recorded as tenant in the jamabandi for the year 1944-45 (Ext. P1) and jamabandi for the year 1945-46 (Ext. P5). Thereafter in the jamabandi for the year 1953-54 (Ext. P6) the appellant/ defendant is recorded as tenant as widow of Hira in respect of Khasra No. 105 and also two more Khasra numbers 72 and 75. In the column of cultivation also there is a change that the rent is one-third instead of one-half as used to be paid by Hira, the husband of the appellant/ defendant. These entries are repeated in another jamabandi for the year 1953-54 (Ext. D8). The appellant/defendant was record mortgagee in respect of Khasra Nos. 72, 75 and 105 for the first time in the jamabandi for the year 1966-67 (Ext. D9) and Khatoni Ishtemal (Ext. D12). Therefore, from the joint reading of all these documents along with Mutation No. 194, which was duly attested on 18-4-1950, the only conclusion which can be drawn is that the husabnd of appellant/defendant and thereafter she herself was the tenant over part of suit land in village 'B' comprised in Khasra No. 105 measuring 3 kanals 8 marlas and after the redemption of mortgage her tenancy will revert in respect of this land only.
12. In respect of land of village 'A' in the jamabandi for the year 1946-47 (Ext. P2) one Babu was the tenant in respect of Khasra Nos. 367, 405, 408 and 532. Thereafter, in the jamabandi for the year 1950-51 (Ext. D1), the appellant/defendant is shown as tenant on payment of rent of one-half of the produce in respect of Khasra Nos. 405, 408 and 532. In the jamabandi for the year 1954-55(Ext. D2) she is recorded in possession in all the five Khasra numbers but in the column of remarks it is noted that her possession is on account of mortgage. In the later jamabandis for the years 1962-63 (Ext. D3), 1967-68 (Ext. D4), 1972-73 (Exts. D5 and P3) and 1978-79 (Ext. D6) this entry has been repeated. Therefore, the joint reading of these jamabandis with Mutation No. 166, which was entered on 13-12-1955 though rejected on 21-4-1957, clearly establishes that the appellant/ defendant was tenant in respect of Khasra Nos. 405, 408 and 532 measuring 2 kanals 1 marla only before the mortgage and tenancy in respect of this land will revert to her on redemption of mortgage.
13. The result of above discussion is that the appeal is accepted only to the extent that the husband of the appellant/defendant and thereafter she herself was the tenant over the land in village 'B' comprised in Khasra No. 105 measuring 3 kanals 8 marlas and the appellant/defendant herself was tenant over the land in village 'A' comprised in Khasra Nos. 405, 408 and 532 measuring 2 kanals 1 marla only, tenancy of which will revert to her after redemption of mortgage. The findings of the trial court in this regard are set aside. The decree and judgment of the District Judge, Una is modified to this extent.
14. No orders as to costs.