Orissa High Court
Gopal Patra And Ors. vs Loknath Patra And After Him Bidulata ... on 27 March, 2000
Equivalent citations: 2000(I)OLR590, 2000 A I H C 3582, (2000) 3 CIVLJ 614, (2000) 1 ORISSA LR 590, (2000) 3 CURCC 209
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT P.K. Mohanty, J.
1. Plaintiffs are the appellants against the reversing judgment of the learned Subordinate Judge, Jagatsinghpur in a suit for declaration.
2. The short facts of the plaintiffs-appellants' case are that they filed a suit for declaration of title, confirmation of possession and alternatively for recovery of possession of the plaint schedule land. It is their case that the suit land was acquired by Nidhi Patra, father of plaint Nos. 1 and 2 by way of purchase from joint family, funds. Nidhi Patra sold away the suit land in favour of defendant No. 2 by a sale deed on 9.10.1968 illegally, without consideration and was an outcome of collusion of defendant Nos. 1 and 2 with Nidhi Patra. According to the plaintiffs, they possessed the suit land continuously without any interruption till date and even if such sale deed exists, defendant No. 2 never possessed the suit land and the plaintiffs- appellants possessed the same without any interruption from any side. The said land was sold away to defendant No. 1 by defendant No. 2 on 19.9.1991 without any consideration and whereafter on the strength of such sale deed, the plaintiffs initiated a proceeding Under Section 144, Cr.P.C.
3. The learned trial Court found that (a) the suit property is the self-required property of Nidni (b) sale deed executed by Nidhi Patra is for legal necessity and is valid (c) the plaintiffs are in continuous possession of the suit property althroughout and defendant No. 2 was never is possession (d) title of defendant No. 2 was extinguished as he was not in possession. The plaintiffs' suit was decreed on the aforesaid finding. The defendants 1 and 2 filed Title Appeal and the learned lower appellate Court found that defendants 1 and 3 are in possession of the suit property contrary to the finding of possession in favour of the plaintiffs found by the trial Court and in view of the finding of the trial Court that the said deed executed by Nidhi is valid, the right, title and interest of defendant No. 2 was declared as there was no cross-objection against the adverse finding rendered by the trial Court.
4. The main submission of the learned counsel for the appellant in this appeal is that the learned lower appellate Court has grossly erred in law in not considering the submission of the plaintiffs regarding the validity of the sale deed executed by Nidhi Patra in favour of defendant No. 2 on the ground that no cross-appeal was filed by the plaintiffs. According to the learned counsel, the lower appellate Court has misconstrued and misread the provisions of Order 41, Rule 22, C.P.C. in holding that a cross-objection was necessary to be filed as against the finding recorded against the plaintiffs. The learned counsel has further submitted that the finding regarding possession of defendant Nos. 1 and 2 without taking into consideration Exts. 1, 2 series and 3, is unsustainable. According to the learned counsel, Ext. 1 is the original title deed by Nidhi Patra, who acquired the suit property in 1950, which has been produced in the Court from the custody of the plaintiffs and as such this is a strong place of evidence in favour of the plaintiffs. The learned appellate Court having not considered the effect of the deed and the fact that Nidhi told the suit property to the defendant No. 2, the title deed would have been made over to the purchaser. The non-consideration of the validity of the sale deed executed by Nidhi Patra in favour of Defendant No. 2 vitiates the judgment.
5. The learned counsel for the respondents however submits that the learned trial Court has found that the suit land was the self- acquired property of Nidhi Patra and that he has not acquired the same from joint family funds, inasmuch as Nidhi Patra executed the Regd. Sale Deed dated 9.10.1968 in favour of defendant No. 2 vide Ext. A out of his own free will and such finding having not been challenged before the lower appellate Court by way of filing a cross- appeal, such a contention challenging the finding is not tenable in law. It is his submission that the learned lower appellate Court having found that Nidhi Patra after executing the sale deed in favour of his nephew defendant No. 2 in the year 1968 delivered possession of the land to him and that the defendant No. 2 from the date of his purchase, has possessed and exercised his rights over the disputed land. A submission has also been made that in absence of the clear assertion as to the starting point of adverse possession and hostile animosity, the finding regarding adverse possession was illegal. In any view of the matter, it is submitted that in the present second appeal, the finding recorded by the lower appellate Court being not vitiated by non-consideration of the material evidence on record, nor there being any illegality, the same should not be interfered with.
6. In view of the rival contentions advanced by the learned counsel for the parties, the moot point for consideration is, as to whether the finding of the lower appellate Court that the respondents therein, the present appellants having not filed a cross-objection in terms of Order 41, Rule 22, C.P.C. as against the adverse findings recorded against him, he could not challenge the finding is sustainable in law.
Order 41, Rule 22 of the Code of Civil Procedure may be quoted hereunder :
Rule 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 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.
(2) Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof the appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.
(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 rue."
7. Thus, on a reading of the aforesaid provision, it is clear that where an issue is decided against the respondent, but a decree in his favour has been passed, it is not necessary for him to file an objection, but he could support the decree on the ground that the said issue ought to have been decided in his favour. A reference may be made to a Division Bench decision of this Court in Sukadev Prusty and Ors. v. Gokhei Prusty and Ors. reported in 61 (1986) CUT 453. The Division Bench held that Order 41, Rule 22 of the Code does not only enable a respondent to file a cross-objection against a decree to enable him to challenge any finding against him, although the decree itself may be in his favour and could argue in opposition to the appeal of the plaintiff, a contention which, if accepted by the trial Court, would have necessitated the total dismissal of the suit. There is nothing in Order 41, Rule 22 of the C.P.C. prohibiting such a contention to be raised.
8. The plaintiff-appellant could not have filed an appeal against the decree passed in his favour. The only thing that he could have done is to file a cross-appeal or cross-objection in case any part of the decree that went against him, after notice of the appeal filed by the defendant or he could argue that the finding recorded against him in the Court below in respect of any issue ought to have been given in his favour. The Rule, therefore, has to be read in its entirety and on such a reading the net conclusion would be that without filing a cross- objection, the plaintiff-respondent in the Court below could have supported the decree as well as challenge the finding against him in any issue that ought to have been in his favour. Non-filing of a cross-objection so far as the findings are concerned does not debar the respondent from contending that such issues are illegal and ought to have been in his favour. The approach by the learned lower appellate Court in this regard is, therefore, unsustainable and the contentions raised ought to have been considered in the light of materials available on record and decided.
9. The contention of the learned counsel for the appellant with regard to non-consideration of the material evidence on record, more specifically. Ext. 2 series, the rent receipts showing payment of rent by the complainant prior to Ext. A dated 9.10.1968 and also after filing of the suit and the order of the Assistant Settlement Officer during Settlement proceeding, Ext. 3 cannot be said to be without any substance.
But in view of the finding that the learned lower appellate Court has not approached the case in its proper perspective and has misconstrued the provision of Order 41, Rule 22, C.P.C., the decision rendered is not sustainable in law and, therefore, at this stage I need not go into the other contentions raised in this appeal. Since the learned lower appellate Court has not considered the matter in its proper perspective. in accordance with law, this case should be remitted back for fresh consideration in accordance with law keeping in view the observations made herein.
10. In the result, the appeal is allowed, the judgment and decree of the lower appellate Court is set aside and the matter is remitted back to the learned lower appellate Court for reconsideration of the appeal on the materials available on record after hearing the learned counsel for the parties in the light of the observation made in this appeal. This being an old mater, the lower appellate Court should hear and conclude the appeal preferably within three months from the receipt of the records. The lower Court records be transmitted forthwith.
The second appeal is allowed to the extent indicated above, but in the facts and circumstances of the case, there shall be no order as to costs.