Gujarat High Court
Fatima D/O Rasulbhai Kajubhai And W/O ... vs Mirza Akbarbhai Rasulbhai on 4 July, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/177/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 177 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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FATIMA D/O RASULBHAI KAJUBHAI AND W/O FATESANG GHORI
Versus
MIRZA AKBARBHAI RASULBHAI
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Appearance:
MR PM BHATT(183) for the PETITIONER(s) No. 1,2,3
for the RESPONDENT(s) No. 1,2,3,3.1,4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 04/07/2018
ORAL JUDGMENT
1. This Second Appeal under Section100 of the CPC is at the instance of the original plaintiffs and is directed against the judgment and order dated 09/02/2018 passed by the Principal District Judge, Vadodara in the Regular Civil Appeal No.74/2011 arising from the Page 1 of 15 C/SA/177/2018 JUDGMENT judgment and decree dated 13/05/2011 passed by the Additional Civil Judge, Padra, in the Regular Civil Suit No.108 of 2010.
2. It appears from the materials on record that the appellants herein
- original plaintiffs preferred a Regular Civil Suit against the defendants for cancellation of three saledeeds and also prayed for permanent injunction with respect to the suit properties bearing land Survey Nos.657, 658 and 681 situated at mouje Village Padra, District Vadodara. The plaintiffs claimed that the suitproperties are ancestral properties. The defendant no.1 is the brother of the plaintiffs. According to the appellants, the land in question was running in the name of their father late Rasulbhai Kajubhai. Rasulbhai passed away on 27/06/1960. On demise of Rasulbhai Kajubhai, the names of mother and brother of the plaintiffs came to be entered in the revenue records. According to the plaintiffs, the names were entered fraudulently. According to the plaintiffs, as the suit properties are ancestral, they have right, title and interest over the same. Three parcels of land came to be sold by the mother of the plaintiffs by three different saledeeds dated 31/12/1963; 02/08/1967 and 06/12/1969 respectively. According to the plaintiffs, the mother could not have executed the three saledeeds of ancestral properties thereby depriving the three daughters of their share in the suitproperties.
3. The defendants appeared and filed their writtenstatement at Exh.37. It appears that the defendant no.1 i.e. the brother of the plaintiffs supported the case put up by the plaintiffs. The Trial Court vide Exh.19 framed the following issues: (1) Whether plaintiffs prove that suit properties mentioned para2 of the plaint are ancestral properties of plaintiffs and defendant no.1?
Page 2 of 15C/SA/177/2018 JUDGMENT (2) Whether plaintiffs prove that suit properties was unlawfully sold by the mother of plaintiffs and defendant no.1 on the basis of forged pedigree to the defendants no.2, 3 and 4?
(3) Whether plaintiffs are entitled to get the reliefs claimed in the plaint?
(4) What order and/or Decree?
4. The issues framed by the trial Court came to be answered as under: (1) In the affirmative.
(2) In the affirmative.
(3) In the negative.
(4) As per final order.
5. The first two issues referred to above came to be answered by the trial Court in the affirmative. The third issue whether the plaintiffs were entitled to seek the reliefs as prayed for in the plaint came to be answered in the negative.
6. The findings of the trial court as regards the issue no.3 are as under:
10. So far as to the issue no.3 is concerned, for the determination of this issue, the suit properties have been classified into two parts. First with respect to suit property bearing survey no.681 and second with respect to suit properties bearing survey no.657 and 658. the case of the plaintiff is the mother of the plaintiffs and defendant no.1 unlawfully got posted her sole name in the revenue record after the death of the father of the plaintiffs namely Mr. Rasulbhai Kajubhai vide mutation entry no.1838 with respect to suit properties by furnishing of false information to the revenue officer regarding real legal heirs of Mr. Rasulbhai Kajubhai and she got posted her sole name instead of posting of names of all legal heirs of Mr. Rasulbhai Kajubhai. Furthermore the mother of the plaintiffs sold suit properties to the defendants no.2, 3 and 4. But looking to the documents produced by the plaintiffs, it appears that the suit property bearing survey no.681 was first sol to the defendant no.2 in the year of 1969 Page 3 of 15 C/SA/177/2018 JUDGMENT and subsequently, such property was sold by the defendant no.2 to Mr. Ravji Mahiji who was the ancestral of the defendant no.3 and 4 in the year of 1995. So such property has been enjoying by the defendants no.3 and 4 since such property came into their hand succession. So considering this fact that when the ancestral of the defendants no.3 and 4 purchased suit property bearing survey no.681, the name of the defendant no.2 was on revenue record. So the ancestral of the defendants no.3 and 4 cannot be imputed the notice of the fact that the mother of the plaintiffs wrongfully sold suit property bearing survey no.681 was voidable at the option of the plaintiffs. Furthermore, it is not the case of the plaintiffs that such property was not sold for an consideration. Conversely the ancestral of the defendants no.3 and 4 namely Mr. Ravji Mahiji purchased such property by paying consideration and it is registered before Registrar. So such transaction was nongratuitous. And it is well settled law that the voidable contract is valid unless it has been held void by court of competent jurisdiction and at that point of time, there was no proceeding initiated by the present plaintiffs. So the case of the ancestral of the defendants no.3 and 4 falls as category of bonafide purchaser of value without notice. Furthermore the maxim that "non seller can give better title than he himself has" does not apply here but it falls under the category of an exception of this maxim. Furthermore the plaintiffs is of 70 yeas old lady. She could has taken any action when her mother has done wrongful act. So the law of limitation also apply here and it is also well settled law that "the law helps those who are watchful and not to those who sleep over his right". Furthermore the plaintiffs have not specified in their plaint when they came to know about wrongful act committed by the mother of the plaintiffs so that the period of limitation may be known. The pleading of the plaintiffs is silence about such thing. So in view of the aforesaid reasons, the plaintiffs are not entitled to any relief so far as to suit property bearing survey no.681. So far as to suit properties bearing survey no.657 & 658 are concerned, such properties were sold by the mother of the plaintiffs and defendant no.1 in the year of 1963 and 1967 by way of registered saledeed. The present plaintiffs have never challenged such transaction till filing of this suit. So more than four decades has been elapsed which is clearly beyound the period of limitation prescribed by the Limitation Act. Furthermore it is not the case of the plaintiffs that they were not aware of such transaction and even there is no pleading on the part of the plaintiffs in their plaint when they came to know about such transaction. Furthermore such transaction was no nongratuitous but it was for consideration and the ancestral of the defendants no.3 and 4 had paid entire consideration of such properties to the mother of the plaintiffs when the transaction took place between Mr. Ravji Mahiji and the mother of the plaintiffs and defendant no.1. So the ancestral of the defendants no.3 and 4 can be said to be bonafide purchaser of value without not Page 4 of 15 C/SA/177/2018 JUDGMENT of the defective title of the mother of the plaintiffs and defendant no.1. So in view of the aforesaid discussion, this court is of firmly on the opinion that the plaintiffs are not entitled to any relief with respect to suit properties. Hence finding on issue no.3 is in negative.
11. So far as to the issue no.4 is concerned, in view of the aforesaid reason and determination of issues no.1 to 3, I hereby pass following final order in the interest of justice.
7. Thus, it appears from the judgment and decree of the trial Court that although the trial Court held that the suitproperties are ancestral and the mother of the plaintiffs could not have transferred the suit properties, yet having regard to the fact that the saledeeds were executed almost more than 50 years back the suit was barred by law of limitation.
8. The plaintiffs being dissatisfied with the judgment and order passed by the trial Court preferred a First Appeal in the District Court at Vadodara. The First Appeal came to be dismissed vide judgment 09/02/2018 passed by the Principal District Judge, Vadodara. It is important to state at this stage that although no substantive appeal was filed by the defendants so far as the findings of the trial Court as regard the issues nos.1 and 2 concerned, yet crossobjections were filed by the defendants nos.2 and 3 to the findings on issues nos.1 and 2 framed by the trial court.
9. The first appellate Court explained the concept of family settlement in context of the Mohammedan Law and took the view that the trial Court ought not to have declared the properties to be ancestral as there is no concept of devolution of ancestral property in Mohammedan Law. To put it in other words, the parties are Muslims, they would be governed by their personal law. The first appellate Court while dismissing the appeal mainly concentrating on the issue of Page 5 of 15 C/SA/177/2018 JUDGMENT limitation held as under: ISSUE NO. 1 AND 2 :
17) It is admitted position that Ld. Trial Court in manifest words reached to the conclusion that suit property are ancestral property whereby plaintiffs and defendant No.1 have right upon it. Ld. Trial Court has also believed that this suit property was unlawfully sold by the mother of the plaintiffs and defendant No.1 by producing forged pedigree, to defendant No.2, 3 and 4. Plaintiffs have also came out with the case that the suit property is ancestral property (see para3 of the plaint). Plaintiffs have also averred that on death of grandfather Kajubhai Mirza, the father of plaintiffs Rasulbhai Kajubhai Mirza, on principle of inheritance, acquired suit property and since then, plaintiffs and defendant No.1 hold share by birth in the said property (see para3 of the plaint). So, the base and pivot of plaintiffs claim is depend and hinge upon concept and noun of the suit property as ancestral property. It is true that Ld. Trial Court has also believed that suit property is ancestral property and against such finding of Issue No.1, respondents have not preferred separate memorandum of appeal, but, as per the argument of Ld. Advocate for the respondents by way of oral crossobjection, respondent No.3 and 4 are challenging the finding of Issue No.1 and 2 framed by the Ld. Trial Court. So, it is right time to refer Order41, Rule22 of C.P. Code, which is reproduced herein under Order41, R22 of C.P.C.
"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 in the Court below in respect of any issue ought to have been in his favour; and may also take any crossobjection] 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.
(2) Form of objection and provisions applicable thereto__ Such crossobjection shall be in the form of a memorandum, and the provisions of rule], so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
[***] Subrule (3) omitted by the Code of CPC (Amendment) Act, 1999, S. 31 (vii) (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or Page 6 of 15 C/SA/177/2018 JUDGMENT 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, apply to an objection under this rule."
17.1) In case of Nalini Vs. Padmanabhan Krishnan; AIR 1994 Kerala 14, Hon'ble Kerala High Court held that "even in second appeal, defendant can challenge the finding of particular issue although he had filed no appeal or cross objection in the first Appellate Court."
18) Before Hon'ble Supreme Court in case of S. Nazer Ahmed Vs. State Bank of Mysore; AIR 2007 S.C. 989, the issue was, "when an appeal is filed, the respondent can file crossobjection. But the real question is whether the respondent without filing a cross objection can assail the finding on any issue by the lower Court. The Hon'ble Supreme Court held that 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 him. For supporting the decree passed by the trial Court, it is not necessary for a respondent in the appeal to file a memorandum of crossobjections 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."
19) Keeping in mind the law laid down by and on touch stone of Order41, Rule22 of C.P. Code, it is not obligatory for respondent to file memorandum of cross objection to challenge finding of a particular issue which is adverse to him. He can even by oral argument challenge that finding while supporting the legitimate decree when it is in his favour. If defendant/respondent has filed counter suit before the Ld. Trial Court and made prayer for a specific relief against the plaintiff and if such relief is negated by the Ld. Trial Court and made prayer if defendant wants that relief is to be in his favour. In appeal filled by unsuccessful plaintiffs, he needs to file memorandum of crossobjection.
20) So, in present case, although respondent No.3 and 4 have not filed memorandum of cross objection, his arguments qua finding of Issue No.1 and 2, which runs against them, can be considered under the concept of cross objection.
Page 7 of 15C/SA/177/2018 JUDGMENT
21) As noted earlier, undeniably parties are governed by Mohammedan Law. Their rule of succession is also governed by specific provision made thereunder Mohammedan Law.
22) Section122 of the Mohammedan Law penned by B.R. Verma published by Law Publishers (India) Pvt. Ltd., 7th Edition reads as:
"Sec. 122. Rights of the heirs arise on the date of a person's death. __ The right of an heir comes into existence only on the death of the person of whom he or she is an heir."
23) Thus, in Mohammedan Law, inheritance descends and not ascends. In so far as claiming any property as an ancestral property is concerned, one has to claim right by birth. This idea or custom is not recognized by the tenet of Mohammedan Law. According to Mohammedan Law, no one can have any share in the inheritance of another till after his death. The right of each heir is several and distinct and arises immediately on the death of the person of whom he is an heir. (See Amir Dulhin v. Baij Nath Singh, I.L.R.21 Cal.311 at p.316). The right of an heirapparent or a presumptiveheir who is entitled to succeed on the death of a person does not arise till the death of such person. In Muslim Law, his right to succeed is nothing more than a mere spes successions, that is, a mere chance of succession.
23.1) The principle nemo est heirs viventis (a living person has no heir) applies to Mohammedans law. Unlike the case of Hindu co parceners or recognized a son or daughter cannot claim any interest in the properties of a Muslim in his lifetime.
24) So, the concept of ancestral property is alien and foreign to the tenets of the Mohammedan Law. No one in Muslim can claim that a particular property is ancestral property and it received in the hand of their father from grandfather and as being a ancestral property, they have right in the property of their father. Looking to this very basic and fundamental concept of Mohammedan Law, I am of the opinion that Ld. Trial Court has completely misguided itself that the plaintiffs as the daughters of deceased Rasulbhai Kajubhai has received the suit property from his father, the plaintiffs have right in this ancestral property.
25) Now, if we go through the pleadings itself, it speaks voluminous. According to plaintiffs, deceased Rasulbhai Kajubhai died on 27.6.1960 and mutation entry qua suit property took place on 3.10.1961. Some of the property went in share of Baxanben, whereas some of them have gone in share of Baxanben as well as defendant No.1 and all the three properties came to be sold by registered sale deed on 31.12.1963, 2.8.1967 and 6.12.1969.
Page 8 of 15C/SA/177/2018 JUDGMENT
26) Concept of Family Settlement is also recognized in the Mohammedan Law. It is well settled that a family arrangement among the Mohammedan governed by the personal Law of the Muslims is binding between the parties inter se, the same way an arrangement binds the Hindus since the principles governing such family settlement is the same. Reference may be made to the case of Md. Amin V. Fhakir Ahmed; AIR 1952 SC 358. In this case it was a question about the validity of the transfer of interest in the property of a minor by a de facto guardian. The Hon'ble Supreme Court held that such a transfer is void yet Hon'ble Supreme Court recognized the as a family settlement.
26.1) Normally, a family settlement may be effected to allay disputes existing or apprehended in the interest of harmony in the family or the preservation of property. However, it is not always necessary that there should be existence of dispute or possibility of dispute in future. It would be sufficient if it is shown that there were actual or possible claim and counter claim by parties. Oral family settlement is also recognized.
27) Before appreciating this issue, it is worth to refer deposition of plaintiff Fatima, wife of Fatesang Ghori produced at Ex60. In cross examination, she accepted that she does not know, whether her mother and father have any immovable property. She admitted that at the relevant time, she was married and after the marriage, she never went to her parental house. She has also admitted that she does not know any particulars of property for which she claims relief. At one instance, she admitted that these three agricultural fields are not sold to any one and they still running in the name of their father in revenue record. On second instance, she said that these suit properties are sold. She also admitted that she does not know whether her mother had sole any of the property and she has no knowledge up till the date. She admitted that she has not gone to collect the particulars and papers from Government Office qua this suit property. She has also admitted that she does not know that agricultural land of which Survey Number is sold to whom, but, according to her, it was informed to her by one Ahmedbhai Imambhai. She has also admitted that the suit/plaint is prepared by his advocate. She has just put the thumb impression upon it. She has also admitted that she has preferred this suit because the prices of this agricultural land is now sky rocketing and therefore, she thinks to get share from this suit property. She has also admitted that she had never preferred any litigation before revenue office challenging the revenue entries. She has also admitted that she had never claimed any share qua suit property before any revenue office. She has also admitted that she knows that these suit properties are sold out 40 to 50 years before.
Page 9 of 15C/SA/177/2018 JUDGMENT
28) According to above factual aspects, it can be estimated that on the death of deceased Rasulbhai Kajubhai, whereat, all the three plaintiffs were married, or family settlement took place between Baxanben and defendant No.1, by which, out of three, two agricultural lands fell in share of bai Baxan and one fell in share of defendant No.1 and such fact is appearing from mutation entries that took place wayback in the year 1961, not being objected till date by the plaintiffs. So, this estimation is substantiated and is presumed that the present plaintiffs have accepted the family settlement and therefore, they never think for filing of challenge to mutation entry till the filing of suit, which also ignited at the hand of Mr. Ahmedbhai Imambhai, said to have been relative of plaintiffs, for the purpose of getting money as the prices of suit property goes sky rocketing. So, there is no substance in the suit. The family settlement took place on the death of Rasulbhai Kajubhai. The suit property fell in share of plaintiffs as well as defendant No.1. They encash them wayback by selling precisely 40 to 50 years ago. Now, plaintiffs came as to extort the money from defendant and the title owner of the suit property.
29) It is deemed that each one came to know about transaction as sale took place and registered with subregistrar office. In present case, all three sale deeds were came to be registered wayback in 1963, 1967 and 1969. Mutation entry on the basis of this registered sale deed also took place in revenue records and for years together, their purchasers are enjoying the suit property. Plaintiffs have not averred that these deeds are obtained by fraud and they came to know about the fraud only before filing of the suit. It is very clear case of the plaintiffs that these registered sale deeds were got registered wayback in the year 1963, 1967 and 1969 respectively. At that time, these sale deeds were executed by the person, whose name was entered into the revenue record, which never got challenged by the plaintiffs and therefore, as per the Article59 of the Indian Limitation Act, such suits have to be filed within three years when the facts entitling the plaintiffs to have the instruments or decree cancelled or set aside or the contract rescinded first become known to him. Here, by illusion, cherima as well as jugllary of words, plaintiffs tried to bring the suit within prescribed limitation, but, it was hopeless and rightly been believed by the Ld. Trial Court that suit is time barred. 30) The authorities upon which Ld. Advocate Mr. Pandya relied upon are distinguishable on the facts of those cases. In case of Kedar Prasad (supra), Hon'ble Allahabad High Court held that if property of joint family sold by one member to any of the third party, other members though not party to the instruments can bring suit for cancellation of sale deed as their interests would be seriously injured if the sale deed is left unchallenged in the present case, as discussed herein above, case belongs to Mohammedan Community, where by concept of joint family is alien and therefore, this authority has no applicability.
Page 10 of 15C/SA/177/2018 JUDGMENT 33.1) Having gone through the plaint of the present case, this Court does not find that present plaintiffs are deceived by the purchaser and fraud was played upon them. It was plaintiffs case that they have right in the suit property as it is termed as ancestral property and without their consent, suit property is sold. So, facts of both the case have clench on factual scenario and therefore, this case is not applicable.
35) In case on hand, respondent/ defendant No.3 and 4, by filing written statement, have vociferously and vehemently objected on the issue of limitation and which Ld. Trial Court has decided kneecap of Issue No.3. Thus, the ratio flowing from this Judgment is also not applicable to the facts of the case on hand.
36) In nutshell, for above reasons, the finding of the Ld. Trial Court qua Issue No.1 and 2 does not survive and accordingly, they are upturned under Order41, Rule22 C.P.C. and Issue No. 1 and 2 framed by the Ld. Trial Court is answered in Negative, whereas, finding qua limitation delivered by the Ld. Trial Court subsists and accordingly, it is upheld.
10. Being dissatisfied with the judgment and order passed by the first appellate Court dismissing the appeal, the appellants - original plaintiffs are here before this Court with the present Second Appeal under Section100 of the CPC.
11. The following questions have been formulated in the memorandum of the Second Appeal as substantial questions of law.
(1) Whether the saledeed dtd.31/12/1963, 02/08/1967 and 06/12/1969 are void or voidable in law?
(2) Whether the lower appellate Court could have allowed the appeal on the admission of original defendant no.1 in his reply Exh.29 about the ancestral property and the appellants' share in it by setting aside the judgment of the Ld. Additional Civil Judge, dtd.13/5/2011?
Page 11 of 15C/SA/177/2018 JUDGMENT (3) Whether the Ld. Appellate Court can straight way without framing any issue of law of limitation to be framed by the Ld. Trial Court, give a finding on the law of Limitation without allowing the original plaintiffs to lead any evidence in respect thereto?
(4) Whether the judgment and decree of the courts below are erroneous in law?
(5) Whether though there was no legal necessity for sale of the suit land and, therefore, the sale transaction are not legal and valid so as to bind the original plaintiffs?
(6) Whether the executants of the sale transactions can be considered as Karta of joint family and, therefore, the sale deeds in question can be considered as valid and binding to the plaintiffs?
12. Mr. P.M.Bhatt, the learned counsel appearing for the appellants vehemently submitted that the first appellate Court committed a serious error in reversing the findings of the trial Court on the issues nos.1 and 2 under the provisions of Order 41 Rule 22 of the CPC. According to Mr. Bhatt, in the absence of any cross appeal by the defendants nos.2 and 3 so far as the findings of the trial Court on issues nos.1 and 2 are concerned, the first appellate Court could not have taken the view that the concept of property being ancestral would not be applicable to the Muslims.
13. The second contention of the Mr. Bhatt is that having regard to the fact that the trial Court held that the suitproperties are ancestral and they could not have been transferred by the mother of the plaintiffs, the entire transaction could be termed as a void transaction and Page 12 of 15 C/SA/177/2018 JUDGMENT therefore, the issue of limitation pales into insignificance. To put it in other words, according to Mr. Bhatt, the suit was maintainable though it came to be filed almost after more than 50 years from the date of the registration of the three saledeeds.
14. Having heard Mr. Bhatt, the learned counsel appearing for the appellants and having gone through the two judgments of the courts below, I am of the view that none of the questions formulated in the memorandum of the Second Appeal could be termed as substantial questions of law. Indisputably, the suit came to be filed almost after more than 50 years from the date of the registration of the saledeeds. I am not impressed by the submission of Mr. Bhatt that as the sale transactions are void, the period of limitation would not apply and the suit filed by the plaintiffs was well within time. I am also not impressed by the submission of Mr. Bhatt as regards the findings of the first appellate Court so far as the issues nos.1 and 2 are concerned.
15. Order 41 Rule 22 is extracted herein 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 in the Court below in respect of any issue ought to have been in his favour; and may also take any crossobjection] 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.
(2) Form of objection and provisions applicable thereto__ Such crossobjection shall be in the form of a memorandum, and the provisions of rule], so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
[***] Subrule (3) omitted by the Code of CPC (Amendment) Act, Page 13 of 15 C/SA/177/2018 JUDGMENT 1999, S. 31 (vii) (4) Where, in any case 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, apply to an objection under this rule."
16. It is true that pursuant to the oral crossobjections raised by the defendants the findings on issues nos.1 and 2 recorded by the trial Court came to be reversed by the appellate Court, but in doing so, cogent reasons have been given relying upon case law. The first appellate Court has referred to a decision of the Supreme Court in the case of S. Nazer Ahmed Vs. State Bank of Mysore; AIR 2007 SC 989, wherein observed as under: "when an appeal is filed, the respondent can file cross objection. But the real question is whether the respondent without filing a crossobjection can assail the finding on any issue by the lower Court. The Hon'ble Supreme Court held that 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 him. For supporting the decree passed by the trial Court, it is not necessary for a respondent in the appeal to file a memorandum of crossobjections 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."
17. In view of the aforesaid discussion, I do not see any good reason to interfere with the judgment and order passed by the first appellate Court. There is no substantial question of law involved in this Second Page 14 of 15 C/SA/177/2018 JUDGMENT Appeal.
18. This appeal, therefore, fails and is hereby dismissed.
(J.B.PARDIWALA, J) aruna Page 15 of 15