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2008 DIGILAW 215 (CHH)

Panchu Yadav v. State of Chhattisgarh

2008-08-25

DILIP RAOSAHEB DESHMUKH, RAJEEV GUPTA, SUNIL KUMAR SINHA

body2008
Judgement SUNIL KUMAR SINHA, J. :- These appeals are directed against the judgment of conviction and order of sentence dated 17th of December, 2002 passed in Special Case No. 155/2001 by the Special Judge under S. C. and S. T. (Prevention of Atrocities) Act, 1989, Bilaspur, whereby appellant Panchu Yadav has been convicted under S. 302, I. P. C. and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Special Act) and sentenced to undergo imprisonment for life in two counts respectively and to pay a fine of Rs. 500/- in the first count, in default thereof to further undergo S. I. for two months and the appellant Ram Bharose has been convicted under S. 302/34, I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- in default thereof, to further undergo S. I. for two months. 2. The case of the prosecution is that on 18-8-2001, Dilip Kumar, since deceased, was grazing his cattle in Gadahiyadihkhar. Ishwari Prasad (PW 2) and Bhuruwa Ram (PW 4) were also grazing their cattle in nearby place. At about 3 p.m. appellant Panchu came there along with his one associate. He started abusing Dilip, saying why he had brought his cattle for grazing to this place. Some hot exchanges took place between them. The allegations are that Panchu gave one Lathi blow to Dilip, on which, Dilip fell down and when Dilip stood up he gave another blow, due to which, Dilip became unconscious and later on he died. Mahettar (PW 1) is the grand-father of the deceased. He reached to the place of occurrence immediately and the incident was narrated to him. Thereafter he went to the Police station and lodged the First Information Report, Ex. P. 1. 3. The Investigating Officer reached to the scene of occurrence, prepared inquest, Ex. P. 4, on the body of deceased and sent the dead body for postmortem vide Ex. P-9-A. The post-mortem examination was conducted by Dr. Ashok Singh (PW 7), who prepared his report Ex. P. 10. The autopsy surgeon noticed two external injuries, one contusion and one lacerated wound on the forehead and left fronto-parietal region with fracture of fronto-parietal bone. He opined that the cause of death was shock due to intracranial hemorrhage. The caste certificate of the deceased Dilip, Ex. Ashok Singh (PW 7), who prepared his report Ex. P. 10. The autopsy surgeon noticed two external injuries, one contusion and one lacerated wound on the forehead and left fronto-parietal region with fracture of fronto-parietal bone. He opined that the cause of death was shock due to intracranial hemorrhage. The caste certificate of the deceased Dilip, Ex. P. 9, was also seized. Thereafter, appellant Panchu was taken into custody and his memorandum under S. 27 of the Evidence Act was recorded vide Ex. P-5, in pursuance of which, a bamboo club was seized under Ex. P. 6. The seized articles were sent for their chemical examination to the Forensic Science Laboratory from where Report Ex. P-13 was received. In further investigation, appellant Ram Bharose was arrested on 26-9-2001 and was put to test identification parade on 12-10-2001. He was identified by Ishwari Prasad (PW 2) and Bhuruwa Ram (PW 4) and identification memo Ex. P-14 was prepared by the Executive Magistrate. 4. After completion of the usual investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Mungeli. The matter was committed and was received by the Special Judge, Bilaspur, who conducted the trial and convicted and sentenced the accused appellants as aforementioned. 5. Shri V. C. Ottalwar, learned counsel for the appellants argued that so far as appellant Ram Bharose is concerned, he has been falsely implicated in this case and on the basis of evidence adduced against him, no case under S. 302/34, I. P. C. is proved against him beyond reasonable doubts. He referred to the evidence of P. W. 2 and P. W. 4 and pointed out various discrepancies in their evidence, particularly in relation to the omissions regarding the acts attributed to Ram Bharose by these witnesses in their police case diary statements. About Panchu, he argued that in the facts and circumstances, the offence committed by Panchu would not travel beyond Section 304, Part II, I. P. C. About the conviction under the Special Act, he submitted that there is absolutely no material to convict appellant Panchu under the said provisions, therefore, the conviction under S. 3(2)(v) of the said Act is absolutely without any material on record. 6. On the other hand, learned State Counsel opposed these arguments and supported the judgment and order passed by the trial Court. 7. 6. On the other hand, learned State Counsel opposed these arguments and supported the judgment and order passed by the trial Court. 7. We have heard learned counsel for the parties at length and have also heard the records of the Sessions Case. 8. Ishwari Prasad (PW 2) deposed that "on the date of incident, he had gone for grazing his cattle along with Bhuruwa Ram (PW 4). Deceased Dilip was also grazing his cattle. Panchu and Ram Bharose came there. They were abusing Dilip by taking name of his caste and were saying that why he had brought his cattle for grazing in this field. Thereafter, Ram Bharose gave one lathi blow to the deceased, on which, he fell down and when he stood up, Panchu gave another lathi blow on his head." He was cross examined with reference to his police case diary statements Ex. D-2 and Ex. D-3. In his two case diary statements, this witness had stated that Panchu has assaulted the deceased with lathi on which he fell down and when he stood up, he gave another lathi blow to him. He had stated in these statements that another person was also accompanying Panchu Ram, but he does not know the name of that person. He has very specifically stated that the person who was accompanying Panchu Ram had not made any assault to the deceased. His first statement Ex. D-2 was recorded on 19-8-2001 and the second statement Ex. D-3 was recorded on 20-8-2001. When he was faced with these statements, he denied all this and stated that he had told to the Police what he is telling in his Court evidence. 9. P. W. 4 Bhuruwa Ram is the other eye witness. He has also deposed in similar fashion. According to him, when they were grazing their cattle, Panchu and Ram Bharose came there, they started abusing the deceased, there were some hot exchanges between them and thereafter appellant Ram Bharose gave a lathi blow to the deceased on which he fell down and when he stood up another blow was given by Panchu Ram. In para 4 of his evidence, he admitted that when Mehattar Ram reached to the scene of occurrence and asked that who caused injuries, he had stated the names of both the appellants to him. He is the brother of deceased and grandson Mehettar Ram (PW 1). In para 4 of his evidence, he admitted that when Mehattar Ram reached to the scene of occurrence and asked that who caused injuries, he had stated the names of both the appellants to him. He is the brother of deceased and grandson Mehettar Ram (PW 1). He was also faced with his police case diary statements Ex. D-4 and D-5, in which, he had stated that Panchu had given two lathi blows to the deceased and he was not knowing the name of that person who had accompanied Panchu Ram and that person had not assaulted the deceased, at all, and ran away from the scene of occurrence. He denied about the omissions and deposed that he had told to the Police what he is telling in his Court evidence. In fact, he could not explain in the Court evidence that when he was knowing the name of Ram Bharose then why he had not mentioned his name at the time of his 161 statements. 10. On appreciation of evidence of these two witnesses, we find that omissions on the part of these witnesses about not mentioning the name of appellant Ram Bharose in their Police Case Diary statements are fatal to the prosecution. When P. W. 4 admitted that he told the names of both the assailants to his grandfather, who immediately reached to the scene of occurrence, then there was no reason with this witness for not taking his name at the time of recording 161 statements and only saying that another person was accompanying appellant Panchu Yadav. The same would be the situation in respect of PW 2 because he also named the appellant Ram Bharose in his Court evidence, but he had not taken his name in case diary statements. 11. If we look into the contents of the First Information Report, Ex. The same would be the situation in respect of PW 2 because he also named the appellant Ram Bharose in his Court evidence, but he had not taken his name in case diary statements. 11. If we look into the contents of the First Information Report, Ex. P. 1, it would appear that even the presence of another person with appellant Panchu is missing in the F. I. R. If, in fact, the maker of the F. I. R. was told by the eye-witnesses that Panchu was accompanied by Ram Bharose then certainly some description to this effect would have been there in the F. I. R. This shows that in fact the maker of the F. I. R. was not briefed about the role of any other person in crime, in question except that of Panchu and this creates doubt about the involvement of appellant Ram Bharose in crime in question. 12. In light of the above background, in fact, the evidence of test identification is of no use to the prosecution. If Ram Bharose was previously known to the eye witnesses, as they are claiming in their Court evidence, they would have told his name to the Police when their 161 statements were being recorded and in that situation, there would have been no necessity of arranging the test identification parade. But they did not do so and in the identification parade, they identified Ram Bharose telling his name as Arjani. Therefore, in light of the Court statements of these two eye witnesses, no reliance can be placed on the test identification parade held on 12-10-2001 and finally, we are of the considered view that in the above facts and circumstances, the prosecution has failed to make out a case beyond reasonable doubts against appellant Ram Bharose and he is entitled to benefit of doubt. 13. Now we shall consider the case of appellant Panchu. On the evidence of two eye-witnesses, it appears that the quarrel between the deceased and this appellant began on account of grazing of cattle of the deceased in a particular area. During the quarrel, firstly, this appellant had some hot exchanges with the deceased and then all of a sudden he assaulted the deceased with a bamboo club which he was possessing. The bamboo club was 138 cms long and was having a diameter of 7-11 centimeters. During the quarrel, firstly, this appellant had some hot exchanges with the deceased and then all of a sudden he assaulted the deceased with a bamboo club which he was possessing. The bamboo club was 138 cms long and was having a diameter of 7-11 centimeters. This kind of bamboo club is generally kept by the villagers, who are engaged in cattle grazing. On appreciation of the entire material on record, we do not find that in fact, the appellant was having an intention to cause the murder of the deceased. It appears that on a petty matter, without there being a premeditation and preparation, a sudden quarrel took place without any intention, in which this appellant dealt with lathi blows to the deceased which proved fatal exception 4 of Section 300, IPC covers the act done in a sudden fight. It comes into play if the death is caused without premeditation in a sudden fight without the offender's having taken undue advantage or acted in a cruel or unusual manner and the fight had taken place with the person killed. The law is that to bring a case within Exception 4, all the ingredients mentioned in it must be found. 14. If we examine the case on hand on the above principles, it would appear that there was no premeditation and in a sudden fight between the deceased and the appellant Panchu, in heat of passion, upon a sudden quarrel without the appellant's having taken undue advantage, the Lathi blows were given to the deceased, which does not show that he has acted in a cruel or unusual manner. In these facts and circumstances, in our opinion, this case would fall within Exception 4 of Section 300, IPC and as the appellant was having knowledge that the act done by him is likely to cause death, but he did so without any intention to cause death or to cause such bodily injury so as to cause death, he would be liable for punishment u/S. 304, Part II, IPC. 15. As far as conviction u/S. 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, we find that the same is based on no material on record. 15. As far as conviction u/S. 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, we find that the same is based on no material on record. Clause (v) of sub-section (2) of Section 3 of the Special Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. This clearly indicates that for attracting above provisions of this sub-section, the offence alleged under the IPC must be an offence punishable with imprisonment for a term of 10 years or more and it must have been committed on the ground that the victim is a member of Scheduled Caste or Scheduled Tribe. On a careful scrutiny of the entire evidence on record, we do not find any evidence to indicate that appellant Panchu had committed this offence for the reason and on the ground that deceased Dilip was belonging to scheduled caste. It appears that only on account of calling the caste of the victim at the time of hot exchanges between the victim and this appellant, the trial Judge has taken the view that an offence u/S. 3(2)(v) of the Special Act would be made out in this case. We are unable to sustain the view taken by the learned trial Judge in this regard and the conviction and sentence awarded to appellant Panchu u/S. 3(2)(v) of the Special Act deserve to be set aside. . 16. In the result :- (i) Cr. A. No. 86/2003 filed by appellant Ram Bharose is allowed. The conviction and sentence awarded to him u/S. 302/34, IPC are set aside. He is acquitted of the charges framed against him. (ii) Cr. A. No. 85/2003 filed by appellant Panchu Yadav is partly allowed. The conviction and sentences awarded to him under Ss. 302, IPC and 3(2)(v) of the Scheduled Castes and scheduled Tribes (Prevention of Atrocities) Act, 1989 are set aside. Instead, he is convicted u/S. 304, Part II, IPC and sentenced to undergo rigorous imprisonment for 10 years. (ii) Cr. A. No. 85/2003 filed by appellant Panchu Yadav is partly allowed. The conviction and sentences awarded to him under Ss. 302, IPC and 3(2)(v) of the Scheduled Castes and scheduled Tribes (Prevention of Atrocities) Act, 1989 are set aside. Instead, he is convicted u/S. 304, Part II, IPC and sentenced to undergo rigorous imprisonment for 10 years. The appellant shall be entitled to set off for the period already undergone by him. Appeal allowed. JUDGMENT :- Legal representatives of the deceased tenant Thakurmal have preferred this second appeal against the judgment and decree dated 29-2-1996 passed by the Additional District Judge, Baloda Bazar (henceforth 'the lower appellate Court') in Civil Appeal No. 111-A/91 affirming the judgment and decree for eviction of the tenant passed by the Civil Judge Class-II, Baloda Bazar (henceforth 'the trial Court') in Civil Suit No. 52-A/84 on 6-9-1985. 2. Admittedly, Shankar Rao Bhosle, who died in 1974, had inducted Thakurmal Sindhi as a tenant over a house situated near Old Bus Stand Simga, Tahsil Baloda Bazar, District Raipur (henceforth 'the suit house') on a monthly rent of Rs. 10/-. The tenancy was monthly commencing on the first day of every English Calendar month. Provisions of Madhya Pradesh Accommodation Control Act 1961 did not apply to the suit house. On death of Shankar Rao Bhosle in March, 1974, the suit house fell to the share of Chakradhar Rao Bhosle in a mutual partition with his brother Raghupat Rao Bhosle. Chakradhar Rao Bhosle served a registered notice dated 2-4-1984 Ex. P. 1 on Thakurmal Sindhi for terminating the tenancy with the expiry of tenancy in April, 1984 and seeking eviction from the suit house and arrears of rent since May 1981 to April, 1984 with damages which was returned unserved with the remarks "out of station - refused". 3. The tenant Thakurmal Sindhi resisted the suit and averred that Shankar Rao Bhosle had on 1-7-1972 agreed to sell the suit house to him and had, after receiving an advance of Rs. 600/-, executed a receipt Ex. D-1 on 1-7-1972 in his favour. In this manner, from 1-7-1972 he was in possession of the suit house as owner. Relationship of landlord and tenant never existed between the plaintiff Chakradhar Rao Bhosle and the defendant Thakurmal Sindhi. Shankar Rao Bhosle could not execute a registered sale-deed in favour of Thakurmal Sindhi because of illness. D-1 on 1-7-1972 in his favour. In this manner, from 1-7-1972 he was in possession of the suit house as owner. Relationship of landlord and tenant never existed between the plaintiff Chakradhar Rao Bhosle and the defendant Thakurmal Sindhi. Shankar Rao Bhosle could not execute a registered sale-deed in favour of Thakurmal Sindhi because of illness. After the death of Shankar Rao Bhosle in 1974, Thakurmal Sindhi requested Raghupat Rao Bhosle to execute a sale-deed in his favour, which was denied. 4. The trial Court framed as many as seven issues. It recorded a finding that after the death of Shankar Rao Bhosle, the suit house fell to the share of Chakradhar Rao Bhosle, who is the owner of the suit house. It was further held that Shankar Rao Bhosle had, on 1-7-1972 agreed to sell the Suit house to Thakumal Sindhi for a consideration of Rs. 4,000/- and received an advance of Rs. 600/-. However, since a registered sale-deed was not executed and a suit for specific performance was also not filed by Thakurmal Sindhi, he was not entitled to protect his possession under Section 53-A of the Transfer of Property Act, 1882. It was also held that by notice dated 2-4-1984 Ex. P-1, which was refused by Thakurmal Sindhi, the tenancy was determined by the plaintiff Chakradhar Rao Bhosle. On these findings, the trial Court, by judgment and decree dated 6-9-1985 passed in Civil Suit No. 52-A/84, granted a decree for eviction and ordered payment of Rs. 600/- by the plaintiff Chakradhar Rao Bhosle to the tenant Thakurmal Sindhi. 5. Being aggrieved, Thakumal Sindhi preferred Civil Appeal No. III -A/91 before the lower appellate Court. During pendency of the appeal, Thakurmal Sindhi died on 19-1-1993. His legal representatives were brought on record. The lower appellate Court dismissed the appeal while affirming the findings of the trial Court that tenancy was determined on refusal of the quit notice by the tenant and the tenant was not entitled to protect his possession under Section 53-A of the Transfer of Property Act, 1882. It reversed the finding recorded by the trial Court on issue No. 5 and held that the tenant had failed to prove that Shankar Rao Bhosle had agreed to sell the suit house to him for a consideration of Rs. 4,000/-. It was held that the receipt Ex. It reversed the finding recorded by the trial Court on issue No. 5 and held that the tenant had failed to prove that Shankar Rao Bhosle had agreed to sell the suit house to him for a consideration of Rs. 4,000/-. It was held that the receipt Ex. D-1 could not be construed as an agreement to sell the suit house and, therefore, neither Thakurmal Sindhi acquired title over the suit house nor was entitled to protect his possession under Section 53-A of the Transfer of Property Act, 1882. 6. The following substantial questions of law arise for determination of this appeal. "(A) Whether an endorsement "out of station - refused" would amount to a valid tender of the notice and would lead to the presumption of valid service, of quit notice, u/ S. 114 of the Evidence Act ? (B) Whether on the facts and in the circumstances of the case the appellant is entitled to protect his possession under the provisions of S. 53-A of Transfer of Property Act? (C) Whether in the absence of a cross-objection having been filed by the respondent/plaintiff, the lower appellate Court was justified in reversing finding recorded by the trial Court on issue No. 67?" 7. Submissions of Shri P. K. C. Tiwari, learned senior Advocate for the appellants and Smt. Renu Kochar, learned counsel for the respondent were heard at length. Record is perused. 8. As regards the first question of law, Section 27 of the General Clauses Act, 1897 reads as under : "27. Meaning of service by post - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." A perusal of the endorsements made by the postman on the envelope of the notice Ex. P-2 sent by registered post acknowledgment due shows that Thakumal Sindhi was absent at the address on 5-4-1984, was out of station on 6-4-1984 and had refused to accept the notice on 7-4-1984. Thakurmal Sindhi did not either state on oath that on 5-4-1984 and 6-4-1984 he was present at the address given in the notice or did not refuse the notice on 7-4-1984. He further admitted in cross-examination that the postman of the Simga Post Office did not bear any grudge against him. In Anil Kumar v. Nanak Chandra Verma, AIR 1990 SC 1215, the Supreme Court has held that the question whether the tenant had rebutted the presumption of service of notice is a question of fact. In that case, the trial Court had considered the evidence of the tenant that he was not at all present during the period when the postman visited the premises for service and the endorsement of the postman was, therefore, not correct. It was argued that the tenant had discharged the initial burden by examining himself and it would be for the other side to prove valid service of notice. The Supreme Court held that there could be no hard and fast rule on this aspect and unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself was inherently unreliable, the position may be different. It was always a question of fact in each case whether there was sufficient evidence from the tenant to discharge the initial burden. The Supreme Court upheld the concurrent finding of fact recorded by the trial Court and accepted by the High Court that notice was refused by the tenant. In the present case also the plaintiff Chakradhar Rao Bhosle has proved that the notice Ex. P-1 was sent by registered post to Thakurmal Sindhi. Thakurmal D.W. 1 has admitted in cross-examination in paragraph 3 that address written on the envelope of the notice Ex. P-1 is his correct address. The presumption of valid service of notice under Section 27 of the General Clauses Act, 1897 in favour of the plaintiff, has thus not been rebutted in this case. Thakurmal D.W. 1 has admitted in cross-examination in paragraph 3 that address written on the envelope of the notice Ex. P-1 is his correct address. The presumption of valid service of notice under Section 27 of the General Clauses Act, 1897 in favour of the plaintiff, has thus not been rebutted in this case. In this view of the matter, the lower appellate Court was justified in holding that refusal of the registered notice to quit by Thakurmal Sindhi is proved by the endorsement "out of station - refused" and amounts to valid service of quit notice. The first substantial question of law is accordingly answered in the affirmative. 9. As regards the question of law No. (B), the law relating to the doctrine of part performance as laid down by the Supreme Court of India in Sardar Govindrao Mahadik v. Devi Sahai, AIR 1982 SC 989 is as under : "31........To qualify for the protection of the doctrine of part-performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are prerequisites to invoke the equitable doctrine of part performance. After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract. The acts claimed to be in part performance must be unequivocally referable to the pre-existing contract and the acts of part performance must unequivocally point in the direction of the existence of contract and evidencing implementation or performance of contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract." The Supreme Court further dealt with a situation in which the person claiming benefit of part performance of a contract was already in possession prior to the contract and observed as under : "39. Induction into possession of an immovable property for the first time subsequent to the contract touching the property, may be decisive of the plea of part performance. Mere possession ceases to be of assistance when as in this case the person claiming benefit of part performance is already in possession, prior to the contract and continues to retain possession............. 40.................There is an understandable and noteworthy difference in the probative value of entering into possession for the first time and continuing in possession with a claim of change in character. Where person claiming benefit of part performance of a contract was already in possession prior to the contract, the Court would expect something independent of the mere intention of possession to evidence part performance........................ 41. Section 53-A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract. And if it is shown that he was not ready and willing to perform his part of the contract he will not qualify for the protection of the doctrine of part performance..........." 10. Applying the principles laid down by the Supreme Court of India to the facts of the present case the receipt Ex. D-1 it does not mention the consideration for which Shankar Rao Bhosle had agreed to sell the suit house to Thakurmal Sindhi. Under Section 25 of the Indian Contract Act, 1872, an agreement without consideration is void. For want of consideration, the receipt Ex. D-1 cannot be construed as an agreement to sell the suit house by Shankar Rao Bhosle to Thakurmal Sindhi. It is pertinent to note that Raghupat Rao, P.W. 2 had produced a copy of the reply given by Thakurmal Sindhi to the notice given by him to Thakurmal Sindhi after the death of Shankar Rao Bhosle in which while Thakurmal Sindhi had categorically admitted that he was the tenant of Shankar Rao Bhosle in the suit house and was willing to pay the arrears of rent, if any. The factum of the agreement to sell the suit house by Shankar Rao Bhosle to Thakurmal Sindhi was not revealed. It is not in dispute that Thakurmal Sindhi did not institute a suit for specific performance of the contract. The factum of the agreement to sell the suit house by Shankar Rao Bhosle to Thakurmal Sindhi was not revealed. It is not in dispute that Thakurmal Sindhi did not institute a suit for specific performance of the contract. In this manner, the finding recorded by the lower appellate Court in paragraph 9 of the impugned judgment that Thakurmal Sindhi, who was a tenant in the suit house, was not entitled to protect his possession under Section 53-A of the Transfer of Property Act, 1882, being in conformity with law laid down by the Supreme Court of India is impeccable. Question of law No. (B) is accordingly answered in the negative. 11. I shall now deal with substantial question of law No. (C). In Jhawarlal Bothara v. Smt. Kusumlata Agarwal (dead) through her L.Rs. I.D. Agrawal, 2007 (3) CGLJ 175 : (AIR 2008 (NOC) (Chh) 488 this Court held as under : "15. A reading of Order 41, Rule 22 of the Code of Civil Procedure, 1908 leaves no room for any doubt that if the respondent, in whose favour the decree is passed, desires to support the decree, it is open to him to urge in the other party's appeal that the finding of the Court below against him on any given aspect ought to have been in his favour and it is not mandatory for the respondent to file a cross-objection under Order 41. Rule 22 of the Code. The words "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" in Order 41, Rule 22 of the Code permits the respondent, who may not have appealed from any part of the decree to support the decree and state that the finding against him in the Court below in respect of any issue ought to have been in his favour. When the respondent, thus, supports the decree, he need not file any cross-objection because when the decree is in his favour, cross-objection in such a situation is inconceivable. When the respondent, thus, supports the decree, he need not file any cross-objection because when the decree is in his favour, cross-objection in such a situation is inconceivable. Though the respondent is not precluded under Order 41, Rule 22 of the Code from filing a cross-objection against a finding recorded by the Court passing the decree in his favour, it is not mandatory for him to do so because the decree is in his favour and he may, during the course of arguments, agitate that the finding against him in the Court below in respect of any issue also ought to have been in his favour. A similar view has been taken in Manoharan Chetti v. M/s. C. Coomaraswamy Naidu and Sons, Madras, AIR 1980 Madras 212, Naresh Ahir v. Mst. Barhiya, AIR 1985 Patna 287 and Jatani Dei v. Udayanath Behera, AIR 1983 Orissa 252. Therefore, the contention of the learned counsel for the respondent/plaintiff that due to non-filing of a cross-objection under Order 41, Rule 22 of the Code by the appellant/defendant before the lower appellate Court he is precluded from doing so in second appeal is liable to rejection." The above decision rendered by this Court applies with full force to the question of law under consideration. Question of law No. (C) is accordingly decided in the affirmative. 12. For the reasons aforesaid, this appeal has no merit and is accordingly dismissed. In the facts and under the circumstances of the case, there shall be no order as to costs. 13. A decree be drawn accordingly. Appeal dismissed.