Madras High Court
Syed Hussain vs Madan Khan And Ors. on 23 January, 1894
Equivalent citations: (1894)ILR 17MAD265
JUDGMENT
1. The Judge's finding is that there was no completed sale. He gives his reasons for so finding, and it is not open to us in second appeal to consider that question of fact. This appeal, so far as the plot A is concerned, must therefore fail.
2. It is contended further with regard to the plot C, in which the other respondents disclaim all interest, that sixth defendant not having appealed from the District Munsif's decree, the District Judge could not disturb that decree so far as it affected this plot C. On the other hand the fifth respondent's vakil refers to the cases in Seshadri v. Krishnan I.L.R. 8 Mad. 192 and Nagamma v. Subba I.L.R. 11 Mad. 197 and urges that when the ground of decision is common, the Court is entitled under Section 544 of the Code of. Civil Procedure to alter a decree in favour of a party who has not appealed, even in respect of property in which those who have appealed disclaim all interest. We are not prepared to accept this contention. Section 544 appears to us to presuppose a common ground of decision affecting property in which both those who have appealed and those who have not appealed have an interest either direct or indirect. This was the ground on which the decisions proceed in the two cases cited. The present case is on all fours with that in Appa Rau v. Ratnam I.L.R. 13 Mad. 249. The principle is that laid down by Jackson, J., in Sriram Ghatak v. Braga Mohan Ghosal 3 B.L.R. App. 41 that the section applies only to decrees incapable of division and relates to property in which all the plaintiffs or all the defendants are interested.
3. We therefore set aside the lower Appellate Court's decree so far as the land G is concerned and affirm it with regard to the land A.
4. Appellant must pay the costs in this Court of the respondents other than the sixth defendant, who and appellant will bear their own costs.