Son Tshering Lepcha vs Sangay Tshering Lepcha on 12 December, 2014

[Cites 13, Cited by 0]

Sikkim High Court

Son Tshering Lepcha vs Sangay Tshering Lepcha on 12 December, 2014

1. By this Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (in short the "CPC") the Appellants-Plaintiffs seeks to assail judgment of the District Judge, South Sikkim at Namchi, dated 30-05-2014 dismissing Title Appeal Case No.01 of 2010 filed by him against the judgment and decree of the Civil Judge, South Sikkim at Namchi, dated 09-07-2008 in Title Suit No.07 of 2007. 2(i). To set out the factual matrix, a suit for declaration of title, recovery of possession and injunction was filed by the Appellants-Plaintiffs against the Respondent-Defendant in respect of certain plots of 3 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha land described in the Schedules 'A', 'B' and 'C' to the plaint.

(ii) As per the Appellants-Plaintiffs, Late Sarmit Lepcha related as an aunt to them, was possessed of various plots of land bearing nos. 57, 58, 64, 68 and 73 as per the survey record of 1950-52 situated under Chumlok Block, Wok Elakha, South Sikkim. Out of these, she sold to the Respondent-Defendant a land known as 'Rigidhang' bearing plot no.64 (old) as described in Schedule 'A' to the plaint around the year 1961 but, before the sale could be registered she died and later the entire land standing in her name including Schedule 'A' property was mutated in the name of Late Tashi Tshering Lepcha, father of the Appellants- Plaintiffs No.2 to 4 and grandfather of Appellant- Plaintiff No.1.

(iii) Later on, Tashi Tshering Lepcha confirmed that Late Sarmit Lepcha had sold to the Respondent- Defendant land comprised of the Schedule 'A' to the plaint which as per the survey record of 1950-52 was Plot no.64 and later renumbered as plots no.3, 6 and 7 4 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha during the survey operations of 1980-82. In the year 2003, the Respondent-Defendant applied to the SDM, Namchi, for mutation of the land purchased by him from Sarmit Lepcha and, the SDM while allowing the application, by order dated 24-05-2003, not only directed mutation of Schedule 'A' land but also additional plots bearing no.57, 58, 68 and 73 as described in Schedule 'B' to the plaint, from the name of Late Tashi Tshering Lepcha to that of the Respondent-Defendant. It was the case of the Appellants-Plaintiffs that the order dated 24-05-2003 was illegal and in excess of the powers vested in the SDM. It was alleged that based on that order the Respondent-Defendant also got plot no.120 belonging them described in Schedule 'C' to the plaint mutated in his name along with those described in Schedules 'A' and 'B', the latter property also being part of their holding.

(iv) In substance, the case of the Appellants- Plaintiffs was that it was only Schedule 'A' land which Late Sarmit Lepcha had sold to the Respondent- Defendant and which was what Late Tashi Tshering 5 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha Lepcha predecessor-in-interest of the Appellants- Plaintiffs, had confirmed. Whereas, Schedules 'B' and 'C' land continued to remain in his name being the rightful owner which had since devolved upon the Appellants-Plaintiffs after his demise. Thus, the mutation of Schedules 'B' and 'C' land from Late Tashi Tshering Lepcha to the Respondent-Defendant was erroneous. The Appellants-Plaintiffs accordingly applied for rectification of the order but, before the proceedings could end, they chose to withdraw the application having preferred to file the Title Suit.

(v) On the aforesaid pleadings, the Appellants- Plaintiffs had prayed for the following:-

(a) a declaration that only Schedule A property was sold to the defendant and the plaintiffs are the owners of Schedule B and C properties;

(b) a declaration that the impugned order dated : 24.05.2003 passed by the Sub-

Divisional Magistrate, Namchi is unsustainable and a decree for setting aside the said order;

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Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha

(d) costs of the suit and other consequential relief.

(vi) In his written statement, the Respondent- Defendant denied the contentions raised by the Appellants-Plaintiffs and stated that although no plot numbers had been mentioned at the time of the sale, it was the entire land described in the Schedules 'A', 'B' and 'C' which Late Sarmit Lepcha had sold to him. It was averred that the Suit was barred by principles of estoppel as the Appellants-Plaintiffs had not challenged the order of the SDM dated 24-05-2003 and had even withdrawn their application for review of the order in Misc. Case No.07/SDM/05. After the purchase, the Respondent-Defendant has been in exclusive possession of those land since the year 1961 openly and adversely and, thus had acquired right, title and interest over those by way of adverse possession.

(vii) Based on the pleadings, the Trial Court framed the following issues:-

RSA No.01 of 2014

Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha

1. Whether Late Sarmit Lepcha had sold Schedule A property to the defendant in the year 1961?

2. Whether the plaintiffs are the rightful owners of Schedule B and C properties?

3. Whether the defendant is in exclusive possession of the suit properties since the year, 1961?

4. Relief, if any?

(viii) Upon consideration of the pleadings, evidence and the records, the Trial Court by judgment dated 09-07-2008 decreed the Suit partially in favour of the Appellants-Plaintiffs rejecting their claim on the lands described in Schedules 'A' and 'B' but, holding the Appellants-Plaintiffs as the rightful owner of Schedule 'C' land as it belonged to his father Late Tashi Tshering Lepcha and consequently ordered for rectification of the land records.

(ix) Title Appeal Case No.1 of 2010 filed by the Appellants-Plaintiffs against the above judgment and decree before the Court of the District Judge, South and West Sikkim at Namchi, was dismissed on 01-04- 8 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha 2013 as the copy of the decree having not been filed, it was held to be in breach of Order XLI Rule 1 CPC.

(x) In RSA No.2 of 2013 preferred against this judgment, this Court vide judgment dated 28-02-2014 set aside the judgment in Title Appeal Case No.1 of 2010 and directed that the case be heard and disposed of on merits. Title Appeal Case No.1 of 2010 was thus restored to its original number and was heard and finally disposed of by the impugned judgment dated 30-05-2014 against which the present RSA has been preferred.

(xi) The First Appellate Court upon hearing the parties reversed the entire findings of the Trial Court setting aside the decree thereby dismissing the Suit. It is relevant to note that, as is also found recorded in the impugned judgment, on the date of final hearing, an application was filed on behalf of the Respondent- Defendant under Section 3 of the Limitation Act, 1963 praying that the Suit be dismissed as being barred by the law of limitation. Upon this, an additional issue as to "whether the suit of the Plaintiffs is barred by limitation" 9 RSA No.01 of 2014

Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha was framed by the First Appellate Court and, as the parties did not have further evidence to adduce on the additional issue, the Appeal was heard on all questions including the additional issue culminating in the impugned judgment.

(xii) In this Appeal, the primary questions raised on behalf of the Appellants-Plaintiffs are that -- (a) the First Appellate Court ought to have confined itself to the challenge put up in the First Appeal and should not have granted relief to the Respondent-Defendant on the other findings in the judgment of the Trial Court in the absence of an Appeal or a Cross Objection having been filed by him and, therefore, by doing so, it had exceeded its jurisdiction and was contrary to law and the procedure and (b), the issue on question of limitation ought not to have been decided in favour of the Appellants-Plaintiffs as the finding of the Trial Court had gone in favour of the Appellants-Plaintiffs after examination of the facts pertaining to the question against which also no Appeal was filed nor a Cross Objection preferred by the Respondent-Defendant.

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Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha

(xiii) This Court after due consideration framed the following questions as substantial questions of law that were considered as being involved in the present Second Appeal:-

(i) Whether learned first appellate court could set aside/reverse the judgment and decree in respect of the issues decided in favour of the Appellants/Plaintiffs by Ld. Trial Court, without any appeal, cross appeal or cross-

objection having been preferred by the respondent.

(ii) Whether learned first appellate Court could re-consider the point of limitation in the appeal having preferred by the plaintiff/ appellant.

(xiv) Upon notice, the parties were heard at length on 01-12-2014.

3(i). Mr. N. Rai, Learned Senior Counsel, appearing on behalf of the Appellants-Plaintiffs, contended that the First Appellate Court exceeded its jurisdiction in deciding the Appeal in favour of the Respondent-Defendant who had neither filed an Appeal nor a Cross Objection and, therefore, being contrary to 11 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha Order XLI Rule 22 CPC, it deserved to be set aside. It was submitted that Title Appeal Case No.1 of 2010 was filed by the Appellants-Plaintiffs being aggrieved only on the part of the judgment of the Trial Court dated 09- 07-2008, holding the Respondent-Defendant to be owner of the land described in Schedule 'B'. It was contended that neither Order XLI Rule 22 nor Order XLI Rule 33 CPC vested the First Appellate Court with the jurisdiction to reopen the entire decree.

(ii) It was further contended that when the questions of limitation had been duly considered on the facts and correctly decided in favour of the Appellants- Plaintiffs, it was not open for the First Appellate Court to have entered into that question in the absence of an Appeal or Cross Objection.

(iii) The crux of his submission on both the questions was that having regard to the scope and ambit of Order XLI Rules 22 and 33 CPC, in the absence of an Appeal or a Cross Objection, the only option available to the Respondent-Defendant was to support the decree of the Court below. If he intended 12 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha to challenge any part it, he could do so only by filing an Appeal or a Cross Objection. Objection of maintainability of the Suit on the ground of limitation was only a ruse to get over the finding on the plea of adverse possession held by the Trial Court against the Respondent-Defendant.

(iv) In support of his submission, Mr. Rai referred to the following decisions:-

(a) Management of Sundaram Industries Limited vs. Sundaram Industries Employees Union : (2014) 2 SCC 600;

(b) Banarsi and Others vs. Ram Phal : AIR 2003 SC 1989;

(c) Choudhary Sahu (Dead) by Lrs. vs. State of Bihar : AIR 1982 SC 98;

(d) Shankar Sadu Wanjhe vs. Smt. Parwatibai Ramchandra Dongre : AIR 1976 Bombay 241; and

(e) Nirmala Bala Ghose and Another vs. Balai Chand Ghose and Others : AIR 1965 SC 1874.

4(i) Mr. A. K. Upadhyaya, Learned Senior Counsel, appearing on behalf of the Respondent- Defendant, resisted the Appeal by submitting that by virtue of Section 107(1) CPC, the First Appellate Court 13 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha possessed of the necessary powers to frame issues and decide the question of limitation even at the appellate stage. The Learned Senior Counsel re-emphasised the well-established proposition that limitation is a mixed question of law and fact and, therefore, the second question framed by this Court as a substantial question of law was erroneous. He further went on to contend that the First Appellate Court being the ultimate Court of facts, its decision was binding on both the parties and could not be agitated in the Second Appeal.

(ii) It was urged that whether or not a Suit is barred by the limitation is a question which the Court has to decide at the threshold in terms of Section 3 of the Limitation Act and under this provision, a duty was cast upon the Court to consider this aspect even if it has not been set up as a defence. As per Mr. Upadhyaya, there was no embargo under the law upon the Lower Appellate Court to consider this question since it went to the very root of the case. Reference in this regard was made to -

(a) Food Corporation of India and Others vs. M/s. Babulal Agrawal : AIR 2004 SCW 493; 14 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha

(b) Ashok K. Khurana vs. M/s. Steelman Industries and Another : AIR 2000 Delhi 336; and

5(i). Upon careful consideration of the rival submissions, pleadings and the impugned judgment, I find that the questions raised in the present Appeal in the light of the substantial questions of law framed by this Court, would require consideration in the backdrop of the provisions of Order XLI Rules 22 and 33 CPC.

(ii) Since the questions owe its genesis to the judgment dated 09-07-2008 in Title Suit No.7 of 2007 passed by the Civil Judge, South Sikkim, giving rise to the Title Appeal Case No.1 of 2010, the decision of which is under consideration in the present Appeal, it would be essential to identify the nature of the decree that was passed thereunder.

(iii) As noted earlier, at the trial altogether four issues had been framed. Issue no.1 pertaining to Schedule 'A' property was held entirely in favour of the Respondent-Defendant, a position not disputed by the 15 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha Appellants-Plaintiffs at the trial. While part of issue no.2 pertaining to Schedule 'B' property was decided against the Appellants-Plaintiffs, Schedule 'C' property was held in their favour and was accordingly, inter alia, ordered as under:-

"1. The claim of the plaintiffs on Schedule A and B lands stands dismissed. The property under Schedule C bearing plot No.120 under Chumlok block, Wok elaka, South Sikkim standing in the name of Lt. Tashi Tshering Lepcha was wrongly recorded in the name of the defendant. The land records be rectified accordingly."

(iv) The Civil First Appeal was thus directed solely against the finding of the Trial Court on a portion pertaining to Schedule 'B' land which as per them, was the rightful property of Late Tashi Tshering Lepcha and had thus stood recorded in his name.

(v) For convenience, we may first take up question no.2 framed as substantial question of law. Significantly the question as to whether or not the Respondent-Defendant was in exclusive possession of the suit property since the year 1961 was an issue specifically framed as would appear from issue no.3 16 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha which though repetitive, may again be reproduced below:-

"3. Whether the defendant is in exclusive possession of the suit properties since the year, 1961?"

(vi) The issue, as will be evident from the discussions, was framed in the context of the plea of adverse possession raised by the Respondent- Defendant in his written statement in respect of the entire suit properties. This assumes significance in the context of the additional issue framed by the First Appellate Court on the prayers on behalf of the Respondent-Defendant. The question as to whether the Suit was barred by limitation or not thus had direct nexus to the plea of adverse possession pleaded on behalf of the Respondent-Defendant.

(vii) Adverse possession is irrefutably a mixed question of law and fact. It has not only to be pleaded but also proved. It is also trite that mere use of the word 'possession' would not be sufficient. The nature of the possession in the sense that the kind of activities, how and in what manner the land was 17 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha utilised, which was sufficient in time and continuity openly, hostile to the claim of the true owner, has to be stated and demonstrated. We find that the Trial Court has considered the evidence on the question in detail and then arrived at the conclusion that as the Respondent-Defendant had commenced making his claim only since the year 2003, he had failed to establish adverse possession. It was also held that the basis of the claim on the scheduled properties by the Respondent-Defendant was conflicting and incongruous in as much on the one hand he was basing it as its true owner and on the other by way of adverse possession. Moreover, the written statement being bereft of a counter-claim on that account no such decree could have been passed in favour of the Respondent- Defendant.

(viii) The additional issue which the First Appellate Court had framed is obviously broadly worded as would appear from its reproduction earlier and would bring within its sweep the question of adverse possession which the Trial Court has found to have considered it in the light of Section 27 and Article 65 of the Limitation 18 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha Act. Under such circumstance, the additional issue framed by the First Appellate Court appears to be quite superfluous and redundant. In deciding the additional issue, it appears to have gone into the findings against issue no.3 and, after discussing the evidence, differed with the Trial Court on the question and held it in favour of the Respondent-Defendant as having been successful in establishing his claim of adverse possession over the suit property. Thus also holding that the suit was barred by the law of limitation.

(ix) Section 107(1) CPC referred to by Mr. A. K. Upadhyaya no doubt provides for a general power of the Appellate Court but, as would appear from opening words of that very provision, it is "Subject to such conditions and limitations as may be prescribed". This certainly would mean subject to the conditions and limitations prescribed in the Civil Procedure Code. I have also no difficulty in accepting the proposition laid down in Ashok K. Khurana (supra) placed by him. Section 3 of the Limitation Act is mandatory and absolute in nature, the peremptory nature of the words used therein "enjoins upon the courts to dismiss any suit 19 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha instituted, appeal preferred application made, after the prescribed period of limitation, although limitation has not been set up as a defence". However, in order to exercise its power at the threshold, the factum of suit as being barred by the law of limitation should be clearly discernable from the pleadings contained in the plaint without requiring to go into facts that may be disputed.

(x) In Food Corporation of India (supra) it has been held that -

"12. .............................. in all fairness it is always desirable that if the defendant would like to raise such an issue, he would better raise it in the pleadings so that the other party may also note the basis and facts by reason of which suit is sought to be dismissed as barred by time. It is true that the Court may have to check at the threshold as to whether the suit is within limitation or not. There is always an office report on the limitation at the time of filing of the suit. But in case the Court does not prima facie find it to be beyond time at that stage, it would not be necessary to record any such finding on the point much less a detailed one. In such a situation at least at the appellate stage, if not earlier, it would be desired of the defendant to raise such a plea regarding limitation. In the present case except for making a passing reference in the list of dates/synopsis no such ground or question has been raised or framed on the point of limitation. It is quite often that question of limitation involves question of facts as well which are supposed to be raised and indicated by the defendant. The objecting party is not supposed to conveniently keep quite till the matter reaches the Apex Court and wake up in a non-serious manner to argue that the Court failed in its duty in not dismissing the suit as barred by time. The trial Court may not 20 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha find the suit to be barred by time and proceed with the case but in that event the Court would not be required to record any such finding unless any plea is raised by the defendant. ...................." [underlining mine]

(xi) In the present case also we find that no specific plea had been taken on behalf of the Respondent-Defendant in his written statement on the question of limitation except to claim the suit properties by adverse possession. Therefore, there was no occasion for the Trial Court to frame issue on the question which as per the First Appellate Court it ought to have. On a perusal, the pleadings in the plaint obviously reveal that the case of the Appellants-

Plaintiffs was that it was only the land described in Schedule 'A' that was sold by Late Sarmit Lepcha to the Respondent-Defendant and not those under Schedules 'B' and 'C' and, which having been wrongly recorded in the name of the Respondent-Defendant, in pursuance of the order of the SDM dated 24-05-2003, it was objected to by the Appellants-Plaintiffs culminating in the Title suit. The facts and circumstances thus would not warrant dismissal of the suit at the threshold. Even before the First Appellate Court neither an Appeal 21 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha nor Cross Objection was filed by the Respondent- Defendant as required under Order XLI Rule 22 CPC against the decree on this account except an application purported to be under Section 3 of the Limitation Act and, that too, quite leisurely on the day when the case was listed for hearing.

(xii) I am, therefore, of the considered view that the First Appellate Court has fallen in error and mis- directed itself in entering into the question of limitation. It appears that in the garb of framing additional issue, it has entered into merits of the finding on adverse possession arrived at by the Trial Court which had remained unchallenged, the Respondent-Defendant having chosen neither to file any Appeal nor a Cross Objection against decree of the Trial Court.

(xiii) Coming now to the first question, in order to arrive at a decision on this, I may set down hereinbelow the scope of Order XLI Rule 22 and Order XLI Rule 33 CPC. In Chaudhary Sahu (supra) in a situation pari materia to the present case, it was held as follows:-

RSA No.01 of 2014

Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha "4. The sole contention raised on behalf of the appellants in the various appeals is that in the absence of any appeal or cross-

objection filed by the State of Bihar the Commissioner was not justified in reversing the finding in favour of the appellants, namely, the finding on the question of allotment of units or regarding the classification of land. This contention, as observed earlier, was raised before the High Court in the writ petition as well. The High Court, however, repelled the contention by applying the provisions of O. 41, R. 22. Reliance has also been placed by the State of Bihar on the provisions of O. 41, R. 33 C.P.C. in support of the order of the Commissioner. The High Court, however, did not rely upon O. 41, R. 33 and rest content by relying on provisions of Order 41, Rule 22.

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6. We will first refer to the provisions of O. 41, R. 22 Insofar as it is material for the purposes of this case, it reads :

"22.(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but 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."

7. The first part of this rule authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the Court below. The first part thus authorises the respondent only to support the decree. It does not authorise him to challenge the decree. If he wants to challenge the decree, he has to take recourse to the second part, that is, he has to file a cross-objection if he has not already filed an appeal against the decree. Admittedly, the State of Bihar had neither filed any appeal nor cross-objection. Obviously, 23 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha therefore, on the strength of the first part of sub-cl. (1) of R. 22 of O. 41 the State of Bihar could only support the decree not only on the grounds decided in its favour but also on the grounds decided against it. The Commissioner however, has set aside the finding in favour of the appellant on the strength of O. 41, R. 22(1). In our opinion this he could not do.

8. The only other Order on which the State of Bihar could rely upon is O. 41, R. 33 C.P.C. The High Court did not consider the provisions of O. 41, R. 33 as in its opinion the order of the Commissioner could be supported on the strength of O. 41, R. 22. In the view that we have taken regarding the applicability of O. 41, R. 22 it becomes pertinent to consider the applicability of O. 41, R. 33, C.P.C. Insofar as material, it reads:

"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 respondents or parties, although such respondents or parties may not have filed any appeal or objection.

Illustration.-- A claims a sum of money as due to him from X or Y, and in a suit against both, obtains a decree against X. X appeals and A and Y are respondents. The appellate Court decides in favour of X. It has power to pass a decree against Y."

This rule is widely expressed and it must be applied with great caution. The object of this rule is to empower the appellate Court to do complete justice between the parties. Under this rule the Court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree and such power may be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection.

9. Reliance has been placed on Nirmala Bala Ghosh v. Balai Chand Ghose, 24 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha (1965) 3 SCR 550 : (AIR 1965 SC 1874). This Court dealing with the scope of O. 41, R. 33, observed as follows (at p. 1884 of AIR) :

"The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by O. 41, R. 33 may properly be invoked. The rule, however, does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from."

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12. The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross- objection, it must be exercised with care and caution. The rule does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the court appealed from.

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14. In these appeals the Collector on the basis of the material placed before him allowed certain units to the various appellants. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under O. 41, R. 33. The 25 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation." [underlining mine]

(xiv) The position of law that emerges from the above decision is that the first part of Order XLI Rule 22 CPC authorises the Respondent-Defendant to support the decree not only on the grounds decided in his favour but also any of the grounds decided against him in the Court below. It does not authorise him to challenge the decree but, if he wants to do so, he has to take recourse to the second part, i.e., file a Cross Objection if he has not already filed an Appeal against the decree. The exception to this is provided under Rule 33 CPC which though expressed wide in terms, it does not confer an unrestricted right to reopen a decree which has become final, merely because the First Appellate Court does not agree with opinion of the Trial Court. The object of Rule 33 CPC is to enable the First Appellate Court to adjust the rights of the parties and to avoid contradictory and inconsistent decision on 26 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha the same questions in the Suit. Otherwise, the provisions of Order XLI Rule 22 CPC would be rendered otiose. This being a departure to Rule 22 CPC that requires a party to file an Appeal or Cross Objection if he intends to challenge the decree, it must be exercised with care and caution with due regard to the object of the provision.

(xv) In the present case, as would appear from paragraph 25 of the impugned judgment, the First Appellate Court has gone into the findings on all the issues when the Appeal was confined only to Schedule 'B' land. Although the findings on issue no.2 relating to Schedule 'C' land and issue no.3 on adverse possession, had gone against the Respondent- Defendant, he had chosen not to prefer any Appeal nor did he file any Cross Objection. The decree in respect of Schedule 'C' land and on adverse possession are surely separable and can exist without those passed in respect of the others. Nothing prevented the Respondent-Defendant from filing his own Appeal or taking a Cross Objection against the findings by which he was aggrieved. The judgment of the Trial Court also 27 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha did not result in any inconsistent, iniquitous, contradictory or unworkable decree coming into existent so as to warrant exercise of power under Rule 33 of Order XLI. It was, therefore, not open for the First Appellate Court to have reopened the decree which had become final. By entering into those questions, the First Appellate Court had exceeded its jurisdiction and had even ventured to set aside the portion of the judgment of the Trial Court which had not been challenged to the detriment of the Appellants- Plaintiffs, only because it held a different view. (xvi) In Banarsi (supra) the Apex Court has further elucidated the scope of Order XLI Rule 33 CPC as follows:-

"15. ......................................... The object sought to be achieved by conferment of such power on the appellate Court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care in discretion while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellant Court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left 28 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court: secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. .............................................

18. In Harihar Prasad Singh & Ors. v. Balmiki Prasad Singh & Ors., (1975) 1 SCC 212, the following statement of law made by Venkatarama Aiyar, J. (as his Lordship then was) in the Division Bench decision in Krishna Reddy v. Ramireddi, AIR 1954 Madras 848 was cited with approval which clearly brings out the wide scope of power contained in Rule 33 and the illustration appended thereto, as also the limitations on such power:

"Though Order 41, Rule 33 confers wide and unlimited jurisdiction on Courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well-defined principles in accordance with which that jurisdiction should be exercised. Normally, a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under Order 41, Rule 33. But there are well-recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties. A second class of cases based on the same principle is where the question is one of settling mutual rights and obligations between the same parties. A third class of cases is when the relief prayed for is single and indivisible but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only 29 RSA No.01 of 2014 Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha to the appellants there is the possibility that there might come into operation at the same time and with reference to the same subject- matter two decrees which are inconsistent and contradictory. This, however, is not an exhaustive enumeration of the class of cases in which Courts could interfere under Order 41, Rule 33. Such an enumeration would neither be possible nor even desirable.""

[underlining mine] (xvii) The facts and circumstances of the case at hand are not such as to fall within width, amplitude and the permissible limits set out in terms of the above ratio for the Appellate Court to enter into those areas which had been abandoned by the Respondent- Defendant in exercise of its discretion, presumably under Order XLI Rule 33 CPC.

6. For the aforesaid reasons, both the questions of substantial law are answered in the negative and consequently, the impugned judgment is set aside. For the reason that by implication the finding of the Trial Court on Schedule 'B' land is upheld by the impugned judgment of the First Appellate Court, the judgment and decree of the Trial Court is restored to its original form.

RSA No.01 of 2014

Shri Son Tshering Lepcha and Others vs. Shri Saney Tshering Lepcha

7. In the result, the Second Appeal is allowed in part.

8. No order as to cost.

9. A copy of this judgment and the original case records be transmitted to the Court of the District Judge, South Sikkim at Namchi, for necessary compliance.

Sd/-

( S. P. Wangdi ) Judge 12-12-2014

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