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2010 DIGILAW 823 (PNJ)

Ramjilal v. Chandgi

2010-02-08

VINOD K.SHARMA

body2010
Judgment Vinod K.Sharma, J. 1 This is defendant/appellants appeal against the judgment and decree passed by the learned lower appellate Court decreeing the suit for declaration filed by the plaintiff/respondents claiming to be owner in possession of half share of the property along with defendant/appellant by way of inheritance from Sh. Parsada. 2 The case of the plaintiff was that he being son of Sh. Parsada was entitled to inherit 1/3rd share along with the appellant/defendant, therefore, was in joint possession of 2/3rd share in the property. The other l/3rd share was under the ownership of their mother being widow of Sh. Parsada. 3 It is not in dispute that the mother also died intestate, therefore, the property in her name was also to be inherited equally by the plaintiff and the defendant/appellant. 4 The plaintiff/respondent also challenged the mutation dated 10.6.1940, which was sanctioned in favour of the appellant/defendant by treating him to be the sole heir of Sh. Parsada. 5 On the pleadings of the parties, the learned trial Court framed the following issues:- "1. Whether plaintiff and defendant No.l are real brothers and defendant No.2 is the real mother and parties are legal representatives of deceased Sh. Parsada son of Gordhan as alleged? OPP 2. Whether mutation No. 678 sanctioned on 10.6.1940 is against facts and is not binding on the rights of plaintiff? OPP 3. Whether suit of plaintiff is against law and facts and is liable to be dismissed? OPD 4. Whether plaintiff has no locus standi? OPD 5. Whether plaintiff is estopped by his own acts and conduct from filing the suit? OPD 6. Whether suit is not maintainable in its present form? OPD 7. Whether suit is time barred? OPD 8. Whether plaintiff has not come in the Court with clean hands and has suppressed the material facts? OPD 9. Whether suit of plaintiff is based on mala fide? OPD 10. Whether suit is not valued for the purposes of Court fee and jurisdiction? OPD 11. Whether suit has been instituted in order to harass the defendant No. 1 and he is entitled to special costs U/s 35-A of CPC? OPD 12. Relief." 6 On appreciation of evidence, the learned trial Court decided issue No.l in favour of the plaintiff and against defendant / appellant and held that the plaintiff and defendant No.l are the real brothers and defendant No.2, their real mother. OPD 12. Relief." 6 On appreciation of evidence, the learned trial Court decided issue No.l in favour of the plaintiff and against defendant / appellant and held that the plaintiff and defendant No.l are the real brothers and defendant No.2, their real mother. All the three, therefore, were held to be legal representatives of deceased Sh. Parsada son of Gordhan. 7 On issue No.2, the plaintiff was non-suited by holding that the suit to challenge the mutation dated 10.6.1940 was hopelessly barred by time as the mutation sanctioned on 10.6.1940 was challenged for the first time in the year 1991 i.e. after lease of 51 years. 8 Issues No.2 to 6 & 8 to 11 were decided against the defendant/appellant being not pressed, whereas issue No.7 was decided in favour of the defendant and against the plaintiff, and consequently the suit was dismissed. 9 The plaintiff/respondent preferred an appeal against the judgment and decree to challenge the findings of the learned trial Court on issues No.2 & 7, on the plea that the suit filed by the plaintiff for declaration on the basis of ownership and possession could not be held to be time barred and further that mutation confers no title. 10 The learned lower appellate Court accepted this contention and reversed the findings of the learned trial Court on issues No.2 & 7 and consequently, decreed the suit for declaration and joint possession. 11 The learned counsel for the appellant contends that this appeal raises the following substantial question of law:- "Whether the judgment and decree passed by the learned lower appellate Court is contrary to the provisions of Order 41 Rule 22 of the Code of Civil Procedure as the appellant was not permitted to support the decree passed by challenging the finding on the issues decided against him? 12 In support of this substantial question of law the learned counsel for the appellant referred to the judgment of the learned lower appellate Court, wherein the challenge to the finding on issue No.l to support the decree was not allowed to be raised merely because the appellant/defendant had not filed cross-objections or the cross-appeal against the findings of the learned trial Court on issue No. 1. 13 The learned counsel for the appellant referred to para 12 & 13 of the learned lower appellate Court, which reads as under :- "12. 13 The learned counsel for the appellant referred to para 12 & 13 of the learned lower appellate Court, which reads as under :- "12. While arguing on this point, learned counsel for the respondents took the plea that appellant is not son of Parshada but he was born out of the wedlock of Smt. Patori and Laxman because Smt. Patori Devi had performed Kareva marriage with Laxman after the death of Parshada. In fact Parshada was having only one son Ramji Lal. This fact has been admitted by PW4 that Smt. Patori Devi performed Karewa marriage with Laxman. 13. I have given the considerable thought to the arguments advanced by both the learned counsel for the parties. The plea taken by the learned counsel for the appellant legally tenable that the respondent No.l has not challenged the findings recorded by the learned trial Court, respondent can not challenge the findings recorded by the learned trial court in issue No.l. In fact issue No.l is an issue of facts. If no cross appeal has been filed against the findings recorded by the learned trial Court, respondent can not challenge the findings recorded by the learned Trial court on issue No. 1 rather findings are to be affirmed." 14 The learned counsel for the respondent, however, vehemently contends that the appellant cannot be allowed to raise this plea for the first time in the regular second appeal in view of the fact that the learned lower appellate Court while rejecting the contention raised by the appellant had also gone into the merits of the issue, and affirmed the findings of the learned trial Court on appreciation of evidence. 15 The contention of the learned counsel for the respondent, therefore, was that the concurrent finding of fact recorded by the learned Courts on appreciation of evidence are not open to challenge in this Court, in regular second appeal. 16 On consideration, I find force in the contention raised by the learned counsel for the appellant. 15 The contention of the learned counsel for the respondent, therefore, was that the concurrent finding of fact recorded by the learned Courts on appreciation of evidence are not open to challenge in this Court, in regular second appeal. 16 On consideration, I find force in the contention raised by the learned counsel for the appellant. 17 The order 41 Rule 22 of the Code of Civil Procedure reads as under :- "Upon hearing respondent may object to decree as if he had preferred a 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 Appellant 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) Form of objection and provisions applicable thereto.- 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. [****] (4) Whether, 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 appeal by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule." 18 The bare reading of Order 41 Rule 22 of the Code of Civil Procedure shows that it is always open to the respondent in appeal to support the decree passed in his favour on points other than the one decided in his favour by challenging the findings recorded against the respondents. 19 The contention of the learned counsel for the appellant, that even if the appellant was not in a position to support the findings of the learned trial Court on issues No.2 & 7 still under law he could support the decree by challenging the finding on the issues decided against him, even without filing appeal or cross-objections, deserves to be accepted. 20 For the reasons stated, the substantial question of law is answered in favour of the appellant. 21 This appeal is allowed, the judgment and decree passed by the learned lower appellate Court is set aside. The case is remanded back to the learned lower appellate Court to decide the appeal afresh after permitting the appellant, herein to contest the finding on issue No.l, and thereafter dispose of the appeal on merit in accordance with law. 22 The parties, through their counsel, are directed to appear before the learned lower appellate Court on 9.3.2010. No costs.