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2013 DIGILAW 229 (PAT)

Nagendra Kumar Gami v. Md. Mohiuddin Ansari

2013-02-19

MUNGESHWAR SAHOO

body2013
Mungeshwar Sahoo, J. – Since the first appeal filed by the plaintiffs has been dismissed, the cross-objection filed by respondent No.1 has been listed for final hearing. 2. The first appeal was filed by the plaintiffs appellants against the judgment and decree dated 26.11.1971 passed by the learned Additional Subordinate Judge, Darbhanga in Partition Suit No. 176 of 1965/ 49 of 1968. 3. The plaintiffs appellants filed the aforesaid suit claiming partition to the extent of 8 anna share in the suit property. The defendant No.9 Mohd. Yusuf intervened and filed application for being impleaded as party respondent. The defendant Nos. 7 and 8 also filed written statement. They are the purchasers. 4. After trail the trial court held that the plaintiffs have not been able to prove their title and possession to the extent as clamed as such there is no unity of title and possession. Accordingly dismissed the plaintiffs’ suit. However, in the last three lines of paragraph 16 the trial court observed that in view of the existence of Bymokasa it cannot held that Biltu acquired interest by inheritance to the extent alleged by the plaintiffs and on the other hand title and possession of defendant No.9 over 9 kattha stands proved. The cross-objection has been filed by the original respondent Mr. Habiburrahman @ Biltu. 5. The learned counsel Mr. Jitendra Kishore appearing on behalf of the cross-objector submitted that the dispute was between the plaintiffs in the one side and the respondents in the other side. The trial court resolved this dispute and dismissed the plaintiffs’ suit but while dismissing the plaintiffs’ suit the trial court without there being any counter claim or dispute between inter se defendants decided the title between the defendant No.1 and defendant No.9. The learned counsel further submitted that the defendant No.9 was added under Order 1 Rule 10 C.P.C., therefore, the dispute inter se defendants could not have been decided. 6. On the other hand, the learned senior counsel Mr. Keshav Srivastava appearing on behalf of the respondents submitted that the cross-objection by the respondent against the respondent is not maintainable. The learned counsel further submitted that the defendant No.9 was added under Order 1 Rule 10 C.P.C., therefore, the dispute inter se defendants could not have been decided. 6. On the other hand, the learned senior counsel Mr. Keshav Srivastava appearing on behalf of the respondents submitted that the cross-objection by the respondent against the respondent is not maintainable. The learned counsel further submitted that since the appeal has been dismissed as incompetent therefore, also the cross-objection is not maintainable because Order 41 Rule 22 sub-rule 2 Clause 4 provides that if the original appeal is withdrawn or is dismissed for default then also cross-objection be heard but in the present case neither original appeal has been withdrawn or has been dismissed for default. 7. In view of the above contentions of the parties, the point arises for consideration in this cross-objection is, as to whether this cross-objection is maintainable and if maintainable then whether the part of the judgment against which cross-objection has been filed is sustainable or not? 8. Admittedly, the first appeal has been dismissed as become incompetent as a whole on 7.2.2000 for non-compliance of the peremptory order directing the appellants for taking steps for issuance of appeal notice on the respondent 1 series and respondent No.9(f). 9. Order 41 Rule 22 sub-rule 2 Clause 4 reads as follows : – “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.” 10. According to the learned counsel for the respondent No.11(C) who was one of the heirs of original defendant No.9 that the appeal has not been withdrawn or it has not been dismissed for default is concerned, in my opinion, the word “dismissed for default” has not been used here for the limited purpose. Admittedly, the appellant was directed to take steps for notice on the respondents and when no steps were taken the appeal was dismissed against the heirs of respondent No.1. Since the suit was partition suit this Court held that the whole appeal has become incompetent and accordingly dismissed the appeal. Now therefore, the dismissal of the appeal was because of default on the part of the appellant. Since the suit was partition suit this Court held that the whole appeal has become incompetent and accordingly dismissed the appeal. Now therefore, the dismissal of the appeal was because of default on the part of the appellant. I do not agree with the submission of the learned counsel for the respondent No.11 (C). 11. So for the submission of the learned counsel for the respondent No.11(C) that the cross-objection by original respondent No.1 against the respondent No.11(C) itself is not maintainable is concerned, no doubt, it is settled principles of law that the cross-objection as a general rule is not maintainable if it is filed by the respondent against a respondent but in the present case at our hand the plaintiffs filed the simple suit for partition. The trial court dismissed the plaintiffs’ suit. The defendant No.9 neither filed counter claim nor paid any court fee for declaration of his title and the trial court declared his title viz. a viz. original respondent No.1. It is also settled principles of law that inter se dispute between the defendants could not have been decided by the trial court without therebeing any counter claim and payment of court fee. In the case of Mahanth Dhangir vs. Mahanth Mohan 1987 (Suppl.) SCC 528 the Apex Court has held that generally the cross-objection could be urged against the appellant. It is only by way of exception to this general rule that one respondent may urge objection as against other respondents. The type of such exceptional cases are also very much limited. The Apex Court also held that if objection cannot be urged under Rule 22 against co-respondent, Rule 33 could take over and come to the rescue of the objector. The appellate court could exercise the power under Rule 33 even if the appeal is only against a part of the decree of the lower court. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondent. 12. In view of the law laid down by the Hon’ble Apex Court the cross-objection cannot be thrown out rightly saying that it is not maintainable. In the present case, the other circumstance is that the original respondent filed title suit for setting aside that part of the judgment/ finding of the trial court. 12. In view of the law laid down by the Hon’ble Apex Court the cross-objection cannot be thrown out rightly saying that it is not maintainable. In the present case, the other circumstance is that the original respondent filed title suit for setting aside that part of the judgment/ finding of the trial court. The respondent No.11(C) objected the maintainability of the suit on the ground of pendency of this cross-objection and the suit was dismissed holding that since the cross-objection is pending in this first appeal. The plaintiff of that suit may pursue his grievance before the High Court. 13. In the case of Kasturi vs. Iyyamperumal (2005) 6 SCC 733 the Apex Court held at paragraph 16 that the expression “all the questions involved in the suit” used in Order 1 Rule 10(2) C.P.C. it is clear that only the controversies raised as between the parties to the litigation must be gone into, that is to say, controversies with regard to the right which is set up and relief claimed on one side and denied on the other and not the controversies which may a rise between the plaintiffs or the defendants inter se or question between the parties to the suit and a third party. 14. Admittedly, here the question between the defendants inter se has been decided. It is also settled principles of law that if any decree is passed against a person against his right, title and interest he can file appeal even if he is not a party to the suit. If a person who is not party but is affected adversely by judgment and decree can file appeal then why a person who is party can be debarred from challenging that part of the decree which is against him ? Now if his appeal is maintainable then why the cross-objection will not be maintainable? If it is held here that cross-objection is not maintainable then not at this stage the cross-objector will have no forum to approach against that part of finding that is declaration of title in favour of defendant no.9 and non title of original defendant no.1. In my opinion, therefore, cross-objection is maintainable. So far this question is concerned, it is pure question of law and it is not dependent on either fact or evidence. 15. In my opinion, therefore, cross-objection is maintainable. So far this question is concerned, it is pure question of law and it is not dependent on either fact or evidence. 15. In view of the above facts and circumstances of the case and the law laid down by the Apex Court it is held that that part of the judgment by which the title of the defendant No.9 has been declared viz. a viz. the defendant No.1 by the trial court in paragraph 16 is contrary to the settled principles of law. 16. In the result, the cross-objection is allowed and that part of the order whereby the title of defendant No.9 has been declared against the original respondent No.1 is hereby set aside.