Patna High Court
Ganganath Jha And Ors. vs Shashi Nath Jha And Ors. on 10 August, 1972
Equivalent citations: AIR1973PAT126, AIR 1973 PATNA 126, ILR (1973) 52 PAT 483, 1973 PATLJR 186, 1972 BLJR 926
JUDGMENT S.P. Sinha, J.
1. The main appeal stood dismissed on the 30th September, 1963, for non-compliance of an order dated the 31st July, 1963. The cross-objection has only survived for consideration.
2. The cross-objectors were two, (1) Shashi Nath Jha and (2) his minor son Bibhutinath Jha, who were plaintiffs in the suit and respondents in the appeal. There was no vakalatnama for cross-objector No. 2 and consequently this Court by its order dated the 7th November, 1963, ordered the cross-objection to be deemed to be on behalf of cross-objector No. 1 only. The cross-objection is thus now only on behalf of plaintiff-respondent No. 1.
3. Before I go into the merits of the cross-objection the first point, which requires consideration is as to whether on the facts and circumstances of the case the provisions of Order 41, Rules 4 and 33 of the Code of Civil Procedure, hereinafter to be referred to as the Code, apply mutatis mutandis to the cross-objection. This question has assumed importance in this case because of the fact that the cross-objection is now only on behalf of one of the plaintiffs, though the impugned decree had proceeded on a ground common to both the plaintiffs. If the provisions of Order 41, Rules 4 and 33 do not apply to cross-objections, there may be conflicting decree as between the said two plaintiffs. The cross-objection by one of the plaintiffs only would then fail.
4. Mr. Rama Kant Verma appearing for the sole cross-objector submitted that a cross-objection is in effect an appeal against the decree. The same grounds which could be taken by way of an appeal against the decree are taken by way of a cross-objection. An appellate Court has then to pass a decree in accordance with Rule 33 of Order 41. Therefore, even if the cross-objection is by one of the plaintiffs, but if the ground on which the decree is assailed is common to all the plaintiffs, the appellate Court could reverse or vary the decree in favour of all of them. Mr. Verma, therefore, submitted that there was no reason for not extending the scope of the provisions of Rules 4 and 33 of Order 41 and make it applicable to the cross-objection.
5. In my opinion, the argument is well-founded and acceptable. The scope of Rules 4 and 33 of Order 41 of the Code cannot be restricted to appeals and cross-appeals only.
5-A. Under Rule 4 of Order 41 one of the several plaintiffs or one of the several defendants can obtain reversal of whole decree if the ground upon which such reversal is sought, is common between all the plaintiffs or between all the defendants. Under Rule 22 of Order 41 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. Under Rule 33 the Appellate Court has power to pass any decree or make any order which ought to have been passed or made, as the case may require, notwithstanding that an appeal was in respect of a part of the decree and that such power may be exercised in favour of all or any of the respondents or parties, although such respondents, who are parties, may not have filed any appeal or objection.
5-B. Under Rule 22 of Order 41 any respondent, within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, can "take any cross-objection to the decree which he could have taken by way of appeal". The expression "Any respondent" in this rule is significant. The cross-objection need not be by the entire body of the respondents, but it can be by any one of them. Then, under Rule 33, the appellate Court has power to pass any decree or to make such further or other decree as the case may require and this power may be exercised in favour of all or any of the respondents or parties, though such respondents or parties may not have filed any appeal or cross-objection. The scope of Rule 4 then becomes clear that if the appeal or the cross-objection by any one of the plaintiffs or by any one of the defendants proceeds on a ground common to all the plaintiffs or to all the defendants, the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or all the defendants, as the case may be. The only requirement for varying or reversing the decree in favour of all the plaintiffs or all the defendants is that the ground on which the decree has been assailed by one of them is a ground which is common to all of them. It is immaterial that such ground has been raised by way of appeal or by way of cross-objection. Similarly, it is immaterial whether the appeal or the cross-objection is by one of the plaintiffs or by one of the defendants. In the instant case I find that the ground on which the decree has been assailed is common to both the cross-objectors. Therefore, notwithstanding, there being in effect no cross-objection by one of the plaintiff-respondents, the decree could still be varied at the instance of only one of them, though in favour of both the plaintiff-respondents.
6. Mr. Rama Kant Verma made reference to a decision of the Calcutta High Court in the case of Debendra Narayan Singh v. Narendra Narayan Singh, AIR 1920 Cal 428 where the main appeal stood dismissed. There was no cross-appeal but only a cross-
objection against the main decree. It was observed:
"Order 41, Rules 4 and 33, give an Appellate Court ample power to make the appropriate order needed in the interest of justice. Under the former rule, on appeal by one of the parties upon a ground common to all, the decree may be varied in favour of all; under the latter rule, Appellate Court has power to make the proper decree, notwithstanding that the appeal is as to a part only of the decree, and such power may be exercised in favour of all or any of respondents or parties, even though such respondents or parties may not have filed any appeal or objection."
I am respectfully in agreement with the above observations.
7. In my opinion, therefore, Rules 4 and 33 of Order 41 mutatis mutandis apply to cross-objections under Rule 22 thereof, and consequently the cross-objection by only one of the plaintiffs may enure to the benefit of the other one.
8. Coming to the merits of the case I may at the very outset state that although the cross-objection relates to Plot No. 1123 of khata No. 233 and Plots Nos, 303 and 304 of khata No. 116 of village Gangauli, Mr. Rama Kant Verma, appearing for the cross-objector, has not been able to place any material to support the objector's claim with regard to Plots Nos. 303 and 304. That part of the claim is accordingly dismissed.
9. Regarding Plot No. 1123 of Khata No. 233 the relevant facts are as under: A suit was filed for declaration that by a private partition held in the year 1335 Fasli the properties mentioned in the schedules of the plaint got partitioned between the different parties and that the said partition be confirmed or in the alternative if it be found that there was no such partition, a decree for partition be passed. The parties agreed that there had been partition in the year 1335. The difference, however, was with regard to the different plots, which fell to the share of the different parties on such partition. Now, according to the cross-objector, who was the plaintiff, 8 kathas of Plot No. 1123 from the south, out of a total area of 8 kathas 14 dhurs, had been allotted to his share. Since none of the defendants, neither defendants 1, 2 and 3 nor defendants 8, 9 and 10 nor defendant No. 8/Ka claimed any portion of Plot No. 1123 for themselves, the same should have been allotted to the share of the plaintiffs.
On reading the impugned judgment and decree it has not been easy for me to appreciate their true import. I may recapitulate that the plaintiff as also all the defendants claimed that there had already been a private partition in respect of the properties. The difference only remained with regard to the allotment of particular plots to different parties. The plaintiff had indicated by the schedule attached to the plaint the actual partition of the properties. So had defendants 1 to 3 and 8 to 10. Defendant No. 8/Ka, however, attached to her written statement only a schedule of such properties which she claimed to be in her possession. She did not make out a schedule of all the properties as divided between the various parties. Subsequently, however, it appears that she produced memoranda of partition; Exts. A and A/-1, which contained an exhaustive list of the partition of the properties made between the parties. The trial Court observed that there was no material reason to disbelieve the memoranda of partition, Exts. A and A/1. In the penultimate portion of its judgment, however, the trial Court observed that it was not prepared to rely upon the correctness of the schedules given either by the plaintiffs or defendants 1 to 3 or 8 to 10, but that the schedule mentioned in the written statement of defendant No. 8/Ka was correct The observation, to quote, was:
"the schedules of partition as given by the plaintiffs are not correct and schedules of defendants 1 to 3 and 8 to 10 are also not correct but the schedule mentioned in the written statement of defendant 8/Ka as allotted to Rameshwar Jha is correct".
In the decree that was prepared the recitation was that "it is declared that there had already been private partition by metes and bounds and parties are coming in possession according to their share as given in schedules filed by defendant No. 8/Ka".
If the reference to the schedules filed by defendant No. 8/Ka is in respect of the one attached to her written statement, it is not a complete list of all the properties, but if the reference is to Exts. A and A/1, the judgment and the decree are ambiguous. The judgment and decree of the trial court, therefore, required clarification to this extent that it had to be stated that the parties were coming in possession according to their share, as given in Exts. A and A/1 filed by defendant No. 8/Ka.
10. Coming to the claim of the plaintiff over Plot No. 1123, I think, the claim of the plaintiff has got to be allowed to the extent claimed by him because he did claim 8 kathas of the said plot from the south and the other defendants have not claimed it. Defendants 1 to 3 and 8 to 10 have in fact admitted that 8 kathas 5 dhurs of the plot was in plaintiff's possession. Since, however, the plaintiff's claim is only with respect to 8 kathas, he cannot get a relief higher than that claimed. The plaintiff is, therefore, declared to be in possession of 8 kathas of Plot No. 1123 from the south as his share on partition of the properties. The decree is varied to this extent.
11. With the above observations the cross-objection is allowed in part. There will be no order as to costs.
S.P. Singh, J.
12. I agree.