Allahabad High Court
Roshan Lal vs Ashok Kumar And Ors. on 20 April, 1988
Equivalent citations: AIR1988ALL318, AIR 1988 ALLAHABAD 318, (1988) 2 ALL RENTCAS 92
ORDER S.D. Agarwala, J.
1. This is a writ petition under Article 226 of the Constitution of India. Suit No. 274 of 1971 was filed in the court of Munsif, Etah, for eviction of Roshan Lal petitioner. The suit was filed by plaintiff-respondents 1, 2 and 3 on the allegation that the petitioner was a tenant of Smt. Champa Devi and after her death the petitioner became the tenant of respondents Nos. 1 to 3. It was further alleged that the petitioner had committed default in payment of the rent and as such he was liable to be evicted After coming into force of the U.P. Civil Laws (Amendment) Act No. 37 of 1972, this original suit was transferred to the court of Judge, Small Causes Court, Etah.
2. The Judge, Small Clauses Court heard the said suit and came to me conclusion that the provisions of Section 23 of the Provincial Small Cause Courts Act were not applicable to the instant suit and since the question of title was involved, the plaint was returned to be decided as a regular suit. Title in fact had been set up by Roshan Lal petitioner on the allegation that he became owner of the property in dispute by virtue of a Will executed in his favour. This suit was thereafter numbered as original suit No. J85 of 1974 in the Court of Munsif, Etah, The suit was dismissed by the Munsif of Etah on 16th November, 1977. Against the said judgment, dated 16th November, 1977, a civil appeal number 211 of 1977 was filed by the plaintiff-respondents. This appeal was dismissed by a judgment, dated 31-1-1981. The appellate court took the view that the suit was purely a suit between landlord and tenant and the question of title was not involved and as such the decision on the question of title in favour of the petitioner was erroneous. The lower appellate court, therefore, set aside the said finding without going into the merits of the case but dismissed the suit on the ground that the suit was defective as notice under Section 111(g) of the T. P. Act was not given.
3. The petitioner in whose favour the trial court decided the question of title is aggrieved by the decision of the appellate court, dated 31-1-1981, and consequently he has filed the present petition in this Court. 1 have heard Sri Dhruva Narain learned counsel for the petitioner, and Sri B. B. Paul learned counsel for the plaintiff-respondents. Learned counsel for the petitioner has contended that the suit involved a pure question of title in regard to the immoveble property in respect of which a suit for ejectment had been brought and as such the trial court was right in deciding the question of title. The finding to the contrary recorded by the lower appellate court in the impugned judgment is manifestly erroneous. He has further urged that though no decree . has been passed against him but he has been seriously prejudiced by the said judgment because the finding of the trial court has been set aside without going into the merits of the case and as such it is necessary in the interest of justice that the matter be remanded to the lower appellate court for decision of the appeal afresh in accordance with law. Sri B. B. Paul learned counsel for the plaintiff-respondents has at the outset taken a preliminary objection to the effect that since a final decree was passed by the lower appellate court dismissing the suit on 31st January 1981, the petitioner had an alternative remedy by way of filing a second appeal in this Court under Section 100 of theCode of Civil Procedure, and consequently this petition is not maintainable. In reply Sri Dhruva Narain has urged that the judgment, dated 31st January, 1981, is in favour of the petitioner to the effect that a decree has been passed in his favour dismissing the suit. He is only aggrieved with the finding recorded by the lower appellate court setting aside the question of title decided in his favour by the trial court. The question, therefore, primarily to be decided is as to whether the petitioner in whose favour a decree has been passed could file a second appeal in this Court under the provisions of the Code of Civil Procedure. Section 100 of the Code of Civil Procedure provides for an appeal from every decree passed in an appeal by any court subordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. It is significant to note that second appeal lies against a decree and not against a judgment. The decree is in favour of the petitioner and as such the question of filing a second appeal under Section 100 of the Code of Civil Procedure does not arise. He is only aggrieved by the finding recorded in the judgment in which a decree has been passed in favour of the p etitioner. In this connection Explanation to Order 41, Rule 22, Code of Civil Procedure is relevant which is quoted below :
"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."
It would be apparent that the question of filing a cross-objection under Order 41, Rule 22 would arise only if an appeal had been filed against the impugned decree. If no appeal is filed then there is no procedure prescribed in, the Code of Civil Procedure for a party aggrieved by a finding to enable him to challenge the same. In the instant case since the decree was in favour of the petitioner, he could not have possibly filed an appeal The respondents also admittedly did not file an appeal. If the respondents had filed an appeal then the petitioner could under the Explanation to Order 41, Rule 22 of the Code of Civil Procedure quoted above, file a cross-objection challenging the finding given in the judgment on which the decree was based and not otherwise. In the circumstances it is clear that no appeal lay against the decree, dated 31st January, 1981, so far as the petitioner is concerned. In Virendra Singh v. Smt. Phoolmati, 1978 Ace CJ 430, a Division Bench of this Court has observed that a right to file a cross-object ion under Order 41, Rule 22 C.P.C. is dependent upon filing of an appeal by the other party and in that sense it can be said to be an incidence of the appeal itself. But yet confirment of such a right cannot be treated as laying down of procedure for the disposal of the appeal I further add that as observed above, the right to file a cross-objection when an appeal is already pending, is entirely different from a party having right by itself to file an appeal against a decree. In Budh Sen v. Sheel Chandra Agarwal, AIR 1978 All 88, a Division Bench of this Court has categorically held that the Civil Procedure Code does not contemplate an appeal against a mere finding inthe absence of any challenge to the decree itself. In view of the above, I am clearly of the opinion that the petitioner did not have a right to file an appeal merely against a finding when the ultimate decree was in his favour. The preliminary objection consequently raised by SriB. B. Paul, learned counsel for the respondents, in my opinion, is substantiated.
4. In so far as the submission of learned counsel for the petitioner is concerned, from a reading of the pleadings of the parties and from the order passed by the Judge, Small Causes Court which held that a question of title is involved in the suit, it is clear that the view taken by the lower appellate court is manifestly erroneous. This suit was not purely a suit between landlord and a tenant. The issues framed in the suit are relevant to examine the submissions made by the petitioner. The issues are quoted below :
1. Whether the plaintiffs are the owners of the house and shops in suit ?
2. Whether the defendant is the tenant of the property in suit ?
3. Whether the suit is barred by Section 34 of the Specific Relief Act,
4. Whether the defendant is the owner of the house and shops in suit on the basis of will, dated 7-1-71 of Smt. Champa Devi ?
5. Whether the defendant has become owner of the property in suit by adverse possession ?
6. Whether the suit is undervalued and it has not been properly valued and Court fees paid are .insufficient ?
7. To what relief, if any, are the plaintiffs entitled.
8. Whether the suit is not maintainable as alleged in para 15 of W.S.
9. Whether the court has no jurisdiction to try the suit in the present form ?
From the issues it is clear that the first issue related to the question as to whether the plaintiff-respondents are the owners of the house and shops in suit. Issue No. 4 was specifically on the question whether the petitioner is the owner of the house and shops in suit on the basis of a will, dated 7-1-71 executed by Smt. Champa Devi. Consequently it is clear that decision of the suit depended upon a decision on these two material issues, namely, as to whether the plaintiff-respondents are the owners of the house and shops in suit and whether the petitioner is the owner of the house and shops in suit on the basis of a Will, dated 7-1-71. The observation made by the lower appellate court that it was a pure suit between the landlords and tenant and the question of title is foreign to this suit, in my opinion, is manifestly erroneous. The submission consequently made by learned counsel for the petitioner is well-founded. The lower appellate court has after holding that the question of title was foreign to the purpose of the suit set aside the finding recorded by the trialcourt without going into the merits of the case. This could not have been done by the lower appellate court. The lower appellate court before setting aside the finding should have gone into the entire evidence on record.
5. In view of the above, in my opinion neither the plaintiff-respondents nor the defendant-petitioner will, in any way, be prejudiced if the matter is heard afresh by the lower appellate court on merits treating this suit to be a title suit and not a suit merely on the basis of landlord and tenant.
6. In the result, the petition is allowed. The judgment and decree, dated 31-1-1981, are quashed. The matter is remanded back to the lower appellate court for decision of the appeal afresh in the light of the observations made, above. The parties are directed to bear their own costs.