Karnataka High Court
Shri Annasaheb Balesha Waghe, Smt. ... vs Shri Appasaheb Dada Pommai, Shri Appaji ... on 13 March, 2007
Equivalent citations: ILR2007KAR2395, 2007(5)KARLJ424, AIR 2007 (NOC) 1834 (KAR.) = 2007 (4) AIR KAR R 89, 2007 (4) AIR KAR R 89, 2007 A I H C 2268, (2007) 5 KANT LJ 424, (2007) 59 ALLINDCAS 955 (KAR)
Author: N. Kumar
Bench: N. Kumar
JUDGMENT N. Kumar, J.
1. This second appeal is filed by the defendant Nos. 1 to 4. The facts leading to this litigation are as under:
One Dada Lagammanna Pommai and his wife Godabai bad no issues. It is the case off the plaintiff that he was taken in adoption on 11.5.1971. After adoption, in the year 1972, Dada Lagammanna Pommai died. Thereafter, as adopted son, this plaintiff inherited his estate and he was cultivating the lands along with his mother. They jointly claimed occupancy rights before the Land Tribunal, Chikkodi in respect of the lands under cultivation and the same was granted. Thereafter, they have divided the properties. In the said partition, 30 tolas of gold and Rs. 60,000/- was given to Smt. Godabai and the agricultural land fell to the share of the plaintiff.
It appears that Smt. Godabai executed a Will in respect of the properties on 5.5.1976 in favour of the defendant No. 5 and one Balesha Waghe and they were cultivating the said lands. Therefore, the plaintiff was constrained to file O.S.No. 197/76 seeking a decree of permanent injunction against the defendants. The said suit after contest came to be dismissed holding that the plaintiff was not in possession on the date of the suit. The plaintiff challenged the said decree in R.A.No. 106/84, which also came to toe dismissed and thus the said decree became final Therefore the plaintiff filed the present suit for declaration of his title, for injunction and in the alternative for possession of the suit schedule property. The defendants filed written statement contesting the claim of the plaintiff. They contended that plaintiff is not the adopted son of Dada Lagammanna Pommai and Smt. Godabai. The set up title to the schedule property under a will dated 5.5.1976 executed by Smt. Godabai in their favour. The trial Court framed issues. Both the, parties adduced evidence. The trial Court held that the plaintiff in the adopted son, the defendants failed to establish the Will set up by them. However, the judgment and decree between the parties in O.S. 197/76 and R.A. 106/84 would operate as res judicata, and therefore it dismissed the suit of the plaintiff.
Aggrieved by the said judgment and decree, the plaintiff preferred R.A. 73/2002. The lower appellate court after re-appreciation of the evidence on record and after formulating the points for consideration held that the judgment and decree in the earlier proceedings would not operate res judicata in the present proceedings, because in the earlier proceedings the plaintiff sought only bare injunction, whereas the present suit is for declaration of title. Secondly, the appellate Court held that the Will set up by the defendants is not established. However, it did not go into the question whether the plaintiff is the adopted son, on the ground that the defendants have not challenged the said finding of the trial Court by preferring a cross appeal. Therefore it allowed the appeal and set aside the judgment and decree of the trial Court and granted a decree of declaration and possession. Aggrieved by the said judgment and decree of the lower appellate court, the defendant Nos. 1 to 4 are in this second appeal.
2. The learned Counsel for the appellants assailing the judgment and decree of the lower appellate Court contended that the lower appellate Court committed a serious error in not considering the case of the defendants and coming to the conclusion that the plaintiff is the adopted BOW, on the ground that they had not challenged the said finding of the trial Court by preferring a cross appeal, which is totally contrary to law. No Cross appeal need be filed terms of compromise challenge a finding. He also contends that the finding recorded on the question of Will is contrary to the material on record.
3. Learned Counsel for the respondents supported the impugned judgment and decree of the lower appellate Court.
4. Therefore, the substantial question that arise for conclusion in this appeal is:
Is it not open to the respondent in a Regular appeal to challenge the finding on issues which are held against him, without filing cross objection when the decree is completely in his favour?
5. The lower appellate Court on the question of adoption, held as under:
It is an admitted, fact that, the properties belonging to the joint family of plaintiff, Godabai and her husband. The Lower Court has already given a dear finding that plaintiff is the adapted son of Godabai. The Godabai and her husband have taken the plaintiff adoption and this fact has been confirmed by the Lower Court while answering the Issues No. 1 and 2. Therefore, there is no question in going with regard to validity of the adoption or not. Because, this has been already finally decided by the Lower Court and there is no cross appeal with regard to the finding on adoption. Therefore, now remains that, there was a joint family of plaintiff, his father and his mother.
6. Therefore the question is whether the Lower Appellate Court was right in its approach.
7. Section 96 and Section 100 of CPC provides for an appeal being preferred from decree passed by any Court exercising original jurisdiction or from every decree passed in an appeal by any decree sub-ordinate to the High Court respectively. None of the provisions enumerate the person who can file an appeal However, it is settled by 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 affected by the decree, he is not entitled to file an appeal. It is equally well settled that the appeal lies only against a decree.
8. With the amendment to the CPC in 1999, an appeal may toe preferred against the decree if the decree is not yet drawn up without filing a copy of the decree and in such cases, the judgment is treated as a decree. As soon as the decree is drawn, the judgment shall cease to have the effect of a decree. In other words the judgment in a case is treated as a decree for the purpose of preferring an appeal till the Court office draws a decree in terms of the judgment. However for the purpose of execution the said judgment cannot be treated as a decree. Therefore, in either event, the appeal is only against the decree and not against a finding on any issue or finding in support of an issue.
9. Order 41 Rule 22 CPC provides for a respondent objecting to a decree as if, he had preferred a separate appeal. It reads as under:
22. Upon hearing, respondent may object to decree as if he had preferred separate appeal.-
(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 to 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 an 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 an 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 sutt, the decree, is, wholly or in part, in favour of that respondent.] (2) Form of objection and provisions applicable thereto.- Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) ****** (4) Where, in any ease in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to pauper appeals shall, so far as they can be made applicable to an objection under this rule.
10. The aforesaid provision confers on respondent certain rights. They are: Firstly, he can support a decree. Secondly, be 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 thirdly, he may also prefer a cross-objection to the decree which he could have taken by way of an appeal. This right to file cross-objection is nothing but the exercise of right to appeal, though in a different form. The right given to the respondent in appeal to file cross objections is a right given to same extent as is a right of appeal to lay challenge to the impugned decree if be can be said to aggrieved thereby. Taking any cross-objection is the exercise of right of appeal and takes the place of cross appeal. 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.
11. A party who has fully succeeded in the suit, need not prefer an appeal nor take any cross objections though certain findings can 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 the well settled position of law under the unamended CPC prior to 1976. In 1976, CPC was amended making slight modification to Order 41 Rule 22 CPC and also introducing the explanation. But it has not materially or substantially altered the law except for a marginal difference. Even after the amendment, a party in whose favour the decree stands in its entirety is neither required to nor obliged to prefer any crows objections. However, the insertion by way of explanation makes it permissible to file a cross-objection against a finding. The amendment inserted by 1976 is clarificatory and also enabling and this may be made precise by analysing the provision:
(i) The impugned decree may be partly in favour of the appellant and partly in favour of the respondents;
(ii) The decree may be entirely in favour of the respondent though an issue has been decided against the respondent;
(iii) The decree may be 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.
12. In the first type of case, it is necessary for the respondent to file cross objection/cross appeal, 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 position is the same even after amendment.
13. In the second and third type of cases, before amendment of 1976 the respondent was not entitled to or was permitted to take any cross objection as he was not the person aggrieved by the decree. After amendment in the light of the explanation, though it is still not necessary for the respondent to take any cross objection for laying challenge to any finding adverse to him, as the decree is entirely in his favour and he may support the decree without such cross objections, the amendment made in the text of Sub-rule (1) read with the explanation newly inserted, gives him a right to take cross objections to a finding recorded against him either white answering issue or while dealing with the issue. The advantage of preferring such cross objection is spelt 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 prior to amendment of 1976. In pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question of correctness or otherwise of any finding recorded against the respondent.
14. Therefore, it follows that Order 41 Rule 22 gives two distinct rights to the respondent in the appeal. The first is the right of upholding the decree of the court of first instance on any of the grounds on which that court decided against him; and the second right is that of taking cross-objection to the decree which the respondent might have taken by way of appeal. In the first case he supports the decree and in the second case he attacks the decree. The use of the word "Support" makes it plain that the right given is limited to the sustaining of the decree in so far as it is in his favour, and does not extend beyond so as to enable him to obtain an alteration giving him a further advantage. This he can secure only by an appeal or cross-objection.
15. Rule 22 is a special provision which gives a respondent, who being satisfied with partial success has not appealed within limitation, another opportunity of challenging the part of the decree which has gone against him upon his opponent preferring an appeal by filing a cross-objection. However, respondent can challenge adverse findings without filing appeal or cross objection. If no cross-objections are filed at all by a respondent, the appellate court has no power to grant any relief to him in a case where the granting of such relief is not necessarily incidental to the relief granted to the appellant; nor has the appellate court the power, in the absence of cross-objections to disturb so much of the original decree as is favourable to the appellant so as to place him in a worst position. However, now as the law stands, even against the finding, a cross objection is permitted. But it is left to the choice of the party. Even without filing such cross-objection, it is open to the respondent to challenge the finding which is held against him though the decree is in his favour. But on the ground that he has not preferred cross-objections, as contemplated in the explanation, the appellate Court hearing the appeal cannot refuse to hear the respondent on the finding against his interest. However in spite of all these amendments, still no appeal lies against a finding.
16. Therefore, what emerges from the aforesaid discussion is:
An appeal lies only against the decree and no append lies against a finding. A party who has not preferred on appeal against a portion of the decree of which he is aggrieved may prefer a cross objection which is in the nature of a cross appeal, in an appeal preferred by the opposite party against the decree, which is partly in his favour and partly against him. However, in an appeal against a decree, the respondent can challenge a finding which is against him though decree is in his favour, without filing a cross objections. He can also file cross objection challenging the said adverse finding. The difference is when the respondent challenges an adverse finding, without filing a cross objection and if the appellant withdraws the appeal or the appeal is dismissed for default, then the right of the respondent to get that adverse finding set aside is lost. But if he has filed a cross objection challenging the said adverse finding, notwithstanding the appellant withdrawing the appeal or the appeal is dismissed for default he can independently prosecute this cross objection and the Court is under on obligation to consider the said cross objection and pass order on merits.
17. Therefore, the finding recorded by the appellate Court in the instant case that the appellant herein, who was the respondent before the lower appellate court hat no right to challenge the finding on the issue of adoption which was held against him in the trial Court, as he has not preferred cross appeal is erroneous. Therefore, the said finding requires to be set aside. If the case of the defendants that the plaintiff is not the adopted son is accepted by the first appellate Court, in which event, even if the Will set up by the defendants is not established, he would have no cause of action to maintain the suit against the defendants, who are now admittedly in possession of the property.
In that view of the matter, the issue ought to have been heard and decided by the first appellate Court on merits even though the respondents before him have not preferred any cross objection. It is made clear that the other finding recorded by the lower appellate Court are not considered at this stage. Now the matter is remitted back to the lower appellate Court with a direction to the appellate Court to record a finding on the question of the validity of adoption and then on the basis of the finding to be arrived at thereon it has discretion to modify its decree. In the event of the said finding going against the appellant herein and if he chooses to file an appeal against the said judgment and decree, all the questions which are now urged in respect of other findings are also open for consideration. In that view of the matter, I pass the following order:
i) Appeal is allowed in part.
ii) The finding of the lower appellate court that the appellants herein have no right to challenge the finding on the question of adoption by the trial Court as he has not preferred cross appeal is hereby set aside.
iii) The trial Court is directed to go into the question of adoption after hearing the parties and then decide whether the finding recorded by the trial Court on the question of adoption is correct or not and then pass appropriate order. It is once again made clear that the finding recorded by the trial Court in all other aspects is kept in tact to be assailed in future.
iv) Parties to bear their own costs.
v) Parties are directed to appear before the lower appellate Court on 28.3.2007. On such appearance, the tower appellate Court shall dispose of the appeal on merits within three months from that date.