HANMANTHRAO v. SARUPCHAND — 1974 DIGILAW 66 (KAR)

( 1 ) THE appellants are the plaintiffs. The respondents are the defendants. The suit was filed for a declaration of title to and possession of the lands s. No. 56 measuring 21 acres knqwn as 'keri Hola,' situate in Kollur Village, gulburga. Dist. The trial Cqurt decreed the suit. The first Deft alone appealed. The lower appellate Court allowed the appeal and dismissed the the suit against both defendants 1 and 2. ( 2 ) ACCORDING to the plaintiffs the suit land originally belonged to one venkamma who died issueless in the year 1954. She had mortgaged the land in favour of Deft. 1 under a registered deed dt. 9-5-1953 with the stipulation that Deft. 1 was to remain in possession of the property for a period of 10 years and then hand over the possession to the mortgagor. It was alleged that Deft. 2 is in possession of the suit land illegally along with deft. 1. The plaintiffs claimed to be the nearest heirs of Venkamma. Since the period of 10 years expired, the suit was filed for possession and mesne profits from 1963. ( 3 ) THE Defts. filed a joint written statement admitting that the said venkamma was the original owner of the property and that she died- in the year 1954. They denied that the plaintiffs are the heirs of Venkamma. They also averred that in addition to the suit land, Venkamma had mortgaged two more lands during the subsistence of the said mortgage, she had received rs. 1000 and executed an agreement to sell the suit property on condition that the other lands mortgaged by her should be surrendered to her. Therefore, the Defts. claim that they are in possession of the suit property under S. 53a of the Transfer of Property Act. They also alleged that since deft. 2 is a tenant under Deft. 1, the suit fqr possession is not maintainable. ( 4 ) THE trial Court framed the following issues: " (i) Whether the defendants prove that Melgirirao the grandfather of the plaintiffs had gone in adoption to a different family in Bellary Dist. ? (ii) Do defendants prove that Venkamma wife of Rajendrarao executed an agreement deed as mentioned in para 2 of the written statement ? (iii) Whether the suit in the present form is tenable ? (iv) To what reliefs the parties are entitled ? ". ? (ii) Do defendants prove that Venkamma wife of Rajendrarao executed an agreement deed as mentioned in para 2 of the written statement ? (iii) Whether the suit in the present form is tenable ? (iv) To what reliefs the parties are entitled ? ". The issues were originally framed on 2-6-1967 and the case was posted for evidence of plaintiffs. Later, on 15-6-1967, the plaintiffs filed an application for amendment of the first issue. That application was allowed and issue No. 1 was amended as it stands now on 3-6-1968. Since that date, the Defts began taking time to adduce their evidence. The trial Court observed that in spite of many chances given to the Defts. , they did not bring their witnesses Thereafter on 24-10-1968, the Defts. engaged a new counsel who filed an application for an adjournment for the purpose of examining their witnesses. Since the suit was pending from 1966, the trial court rejected the said application as it was of the opinion that the said application was only a manoeuvre io get an adjournment. So arguments were heard on 24-10-1968 and 25-10-1968. ( 5 ) ON the " first issue, the trial Court held that defendants have failed to prove their case and decided against them. On issue No. 2, it held that the Defts. neither filed the alleged agrement executed by Venkamma nor examined any witness in support of the said agreement on receipt of rs. 1000, and decided against the Defts. The Defts. contended in their written statemtet that Defts. 1 and 2 had become tenants of the suit land after the expiry of the mortgage period and no decree for eviction could be passed against them. Reliance was placed on Ss. 5 and 103 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. The trial Court held that the period of the mortgage had expired on 8-5-1963 and the Defts. cannot remain in possession on the basis of the mortgage deed. It also held that deft. 1 does not come under the definition 'tenant' provided under S. 5 of the said Act. ( 6 ) WITH regard to the contention of Deft. 2, that he should be deemed tp be in possession as a tenant, the trial Court rejected that contention since, in its opinion, there was nothing on record to show that Deft. 1 does not come under the definition 'tenant' provided under S. 5 of the said Act. ( 6 ) WITH regard to the contention of Deft. 2, that he should be deemed tp be in possession as a tenant, the trial Court rejected that contention since, in its opinion, there was nothing on record to show that Deft. 2 was cultivating the lands on behalf of Deft. 1 during the mortgage period and that Deft. 1 inducted Deft. 2 on the land as a tenant. It held that in the absence of any oral or documenary evidence, it cannot be said that Deft. 1 was a tenant of the suit land. It accordingly, decreed the suit. ( 7 ) AS already stated, the first defendant alone appealed. The points set down by the lower appellate Court for consideration are :" (1) Whether the plaintiffs have proved their title to the property ? (2) If yes, whether the trial Court was right in granting a decree for possession in view of their admission that Deft. 2 was a tenant under the mortgagee?". On the first point, the lower Appellate Court decided in favour of the plaintiffs. In relation to the second point, it was urged by Deft. 1 that under S. 4 of the Mytore-Land Reforms Act, Deft. 2 must be considered to be a deemed tenant and reliance was placed on a decision in AIR 19g4 sc. 1320. The lower appellate Court agreed with the contention urged by deft. 1 who was the appellant before it and held that the finding of the trial Court was erroneous. It observed that though the second Deft, had not filed the appeal, the fact that he is a tenant of the mortgagee was admitted in the plaint itself and that a decree for possession would violate the provisions of the tenancy law, that such a decree cannot be granted by the civil Court and that the plaintiffs must approach the Court constituted under the Land Reforms Act. ( 8 ) THE lower appellate Court has proceeded on the basis of the admitted facts. in the plaint itself that the second Deft is a tenant under the mortgagee-Deft. 1. But it is ppinted out by Mr. ( 8 ) THE lower appellate Court has proceeded on the basis of the admitted facts. in the plaint itself that the second Deft is a tenant under the mortgagee-Deft. 1. But it is ppinted out by Mr. Swamy, appearing for the appellants, that there is no such admission and that what is staged in the plaint is that both the defendants are in illegal possession of the suit land. ( 9 ) IT is the contention of Mr. Swamy that the lower appellate Cqurt was in error in dismissing the suit even though the second Deft. had not filed an appel. As against this, Mr. Gunjal, urged that the lower apellate court had the power under Or. 41, R. 33 CPC to grant such reliefs to the second defendant as well. ( 10 ) THE trial Court held that since the first Deft. had not adduced any evidence in support of his contention that Venkamma had executed an agreement in his favour subsequent to the date of the mortgage, the first deft, was not entitled to continue in possession subsequent to the expiry of the period of mortgage. The lower appellate Court has not considered the correctness of this finding of the trial Court. It held that the finding of the trial Court with regard to the tenancy of the second Deft. , was erroneous in law. It is on this account that the lower appellate Court set aside the entire decree of the trial Court and dismissed the suit against both the defts. The finding of the trial Court that the first Deft is not entitled to continue in pqssessiqn of the suit land subsequent to the period of the mortgage, cannot be said to be erroneous in view of the fact that the first deft. did nqt even produce the alleged agreement executed by Venkamma in his favour nqr was there any evidence adduced in this behalf. Hence it has to be considered whether, under these circumstances, the lower appellate court could set aside the decree of the trial Court and dismiss the suit against bqth the Defts. even though the second Deft. had not filed an appeal against the decree of the trial Court. . ( 11 ) IN Jang Bir v. Smt. Jamna, AIR. 1932 Lah. 37. even though the second Deft. had not filed an appeal against the decree of the trial Court. . ( 11 ) IN Jang Bir v. Smt. Jamna, AIR. 1932 Lah. 37. , B and J sued for possession of the property claiming to be heirs of G who died issueless challenging the transfer made by G. The trial Court dismissed the suit holding that the plaintiffs were not the heirs of G. J alone appealed and the lower Appellate court, finding that J who was the sister's daughter of G. , was not the heir, passed a Decree in favour of B, the sister qf G who was joined as a respondent. It was held that the rights of J and B were not identical and that it could not be said that the decree of the trial Court proceeded on a ground common to both of them and that Or. 41, R. 4 CPC was not applicable. ( 12 ) IN Ramautar Gope v. Sreonandan Mtstri, AIR. 1962 Pat. 273. a suit filed against a Municipal Corporation along with other defendants was decreed rejecting the plea of the Municipality that the suit was hit by Sec. 508 of the patna Municipal Corporation Act. The Municipality did not appeal against the decision but it was arrayed as respondent in the appeal filed by the other defendants It was urged that the appellate Court should give reliefs to the Municipality in exercise of its inherent power under Or. 41, Rr. 4 and 33 of CPC. It was held that when there was a clear remedy available to the corporation, and when they have chosen nqt to prefer any appeal against the decision, there is no justification for exercising the inherent powers in their favour. ( 13 ) IN Madanlal Kothari v Bank of Maharashtra, AIR. 1964 MP. 262. a decree for eviction was passed against a tenant and his sub-tenant. In appeal, the. tenant was impleaded as respondent. It was held that Or. 41, R. 4 was not applicable since the defence raised by the sub-tenant had nothing to do with the defence of the tenant and that the tenant who had been made respondent, cannot, in that appeal urge that the decree be set aside. ( 14 ) IN order to exercise the power under Or. 41, R. 4 CPC. 41, R. 4 was not applicable since the defence raised by the sub-tenant had nothing to do with the defence of the tenant and that the tenant who had been made respondent, cannot, in that appeal urge that the decree be set aside. ( 14 ) IN order to exercise the power under Or. 41, R. 4 CPC. , a decree of the trial Court must proceed on a ground common to both the Defts. In the present case the first Deft. contended that he was entitled to continue in possession of the suit property on the basis of the alleged agreement having been executed in his favour by Venkamma,. The second deft. contended that he had been inducted by the first Deft. as a tenant into the suit property and that he was entitled to continue in possession of the suit land as a tenant. Hence it cannot be said that the decree of the trial Court proceeded on a grqund common to both the defendants. ( 15 ) MR. Gunjal has relied on the decision in Isri Prasad Singh v. Jagat Prasad Singh, AIR. 1937 Pat. 628. wherein it has been held that in order to afford relief under Or 41, R 4 CPC. , it is not necessary that there must be one cause of action. But, that was a suit for contribution and it was observed that in such suits, it is necessary that all the parties should be before the court and the powers of the appellate Coun under R. 33 read with R. 20 of or. 41 should be used without any hesitation. ( 16 ) ' The scope of Or. 41, R. 33 has been considered in Rameshwar prasad v. Shambehari Lal Jagannath, AIR. 1963 SC. 1901. While referring to Rule, 33 of order 41, it was observed as follows ;" This rule is under the sub-heading "judgment in Appeal". Rule 31 provides that the judgment of the Appellate Court shall be in writing and shall state inter alia the relief to which the appellant is entitled in case the decree! appealed from is reversed or varied. While referring to Rule, 33 of order 41, it was observed as follows ;" This rule is under the sub-heading "judgment in Appeal". Rule 31 provides that the judgment of the Appellate Court shall be in writing and shall state inter alia the relief to which the appellant is entitled in case the decree! appealed from is reversed or varied. Rule 32 provides as to what the judgment may direct and states that the judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly. The reversal or variatiion in the decree would therefore, be in accordance with what the appellant had been found to be entitled. The decree, therefore, is not to be reversed Or varied with respect to such rights to which the appellant is not found entitled. Rule 33 really provides as to what the Appellate Court can find the appellant entitled to Tt empowers the Appellate Court to pass any decree and make any order which ought to hare been passed or made in the proceedings before it and thus could have reference only to the naturel of the decree or order in so far as it affects the rights of the appellant. " (Underlining (italics) is mine) it is thus clear that the power of the appellate Court under Or 41, Rr. 4 and 33 can be exercised in favour of a respondent only as a necessary consequence of the relief granted to the appellant in the case and not independently of it What the lower Appellate Court has done in the present case is tp afford relief to the first defendant-appellant also because it held that the decree passed by the trial Court against the second Deft. , who had not appealed was erroneous. The decision of the lower Appellate Court is, therefore, contrary to Law. 16. Mr. Gunial relied on a decision in Ali Sab Ladsab v. A. Hanmantrao, (1967) 1 Myslj 485. wherein it has been held that when the Deft. , who had not appealed was erroneous. The decision of the lower Appellate Court is, therefore, contrary to Law. 16. Mr. Gunial relied on a decision in Ali Sab Ladsab v. A. Hanmantrao, (1967) 1 Myslj 485. wherein it has been held that when the Deft. claims to be a tenant, the Court ought to frame an issue with regard to his tenancy and refer the same for decision to the land Tribunal. In the present case, there was no issue framed with regard to the tenancy claimed by the second Deft. It is also, urged by him that the decree passed against the second Deft, is a nullity and that such a contention could be raised in the appeal, and he has relied on a decision in Kiram Singh v. Chawan Paswan, AIR. 1954 SC, 340, ( 17 ) IT is no doubt true that it was open to the second Deft to urge that the decree passed against him is contrary to Law, but he did not file an appeal against the decree of the trial Court. The lower Appellate Court could afford relief to the second Deft in the appeal filed by the first Deft. only under Or. 41, Rr. 4 and 33 CPC But neither of the said provisions is applicable to the present case for the reasons stated above ( 18 ) IT is also urged by Mr. Gunjal that the suit may be remanded to the trial Court to afford further opportunity to the defendans to adduce their evidence. No such contention was urged in the lower Appellate Court. Moreover, no sufficient grounds have been made out for justifying the conduct of the defendants in not adducing evidence in support of their case in the trial Court in spite of several opportunities afforded to them. Hence, the request made by Mr. Gunjal, has to be rejected. ( 19 ) THIS appeal is, therefore, allowed. The judgment and decree of the lower Appellate Court are set aside and those of the trial Court are restored. Parties shall bear their own costs in this appeal. --- *** --- .