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2013 DIGILAW 836 (JHR)

Radhey Shyam Ram v. Muni Tiwari

2013-07-11

P.P.BHATT

body2013
Order The petitioner by way of the present petition under Article 227 of the Constitution of India has prayed for issuance of an appropriate writ/order/direction to quash/set aside the order dated 27.6.2012 passed by the learned District Judge, Garhwa in Title Appeal No. 01 of 2011, whereby the learned District Judge refused to admit the cross objection filed on behalf of the petitioner after re-hearing the same pursuant to the order dated 28th March 2012, passed by this Court in W.P. (C) No. 69 of 2012. 2. Heard the learned counsel for the petitioner as well as learned counsel for the Respondents. 3. Perused the impugned order as well as other materials placed on record. 4. The learned counsel for the petitioner while narrating the facts, giving rise to the present petition submitted that the respondents/plaintiffs filed Title Suit No. 45 of 1994 for declaration of their right, title and interest and also for recovery of possession of the suit land on the basis of two sale deeds dated 5.8.1980 and 21.5.1982 executed in their favour by the father of the petitioner, namely, Sarju Ram (now deceased), who was made defendant no. 19 in the said suit. 5. The case of the plaintiffs/respondents is that the plaintiff no. 2 purchased Schedule 'A' land of the suit by registered sale deed dated 5.8.1980 executed in her favour by Sarju Ram and simultaneously plaintiff no. 2 also executed an agreement to re-convey the land so purchased in favour of Sarju Ram between 5.8.1980 to 5.8.1983. Similarly, plaintiff no. 1 purchased Schedule 'B' land of the suit by registered sale deed dated 21.5.1982 executed in his favour by Sarju Ram and simultaneously the plaintiff no. 1 also executed an agreement to re-convey the land so purchased in favour of Sarju Ram between 21.5.1982 to 21.5.1984. The plaintiff nos. 1 and 2 are husband and wife, they amalgamated Schedule 'A' and 'B' lands into one block, as described in Schedule 'C' as suit land. It is the further case of the plaintiffs that later on, Sarju Ram agreed to forgo his right to have re-conveyance by executing a 'Sada' deed of agreement on 5.8.1983 for consideration, discharging the plaintiff no. 1 from all obligations and liabilities of re-conveyance but thereafter, instituted Title suit No. 9 of 1984 against the plaintiff no. It is the further case of the plaintiffs that later on, Sarju Ram agreed to forgo his right to have re-conveyance by executing a 'Sada' deed of agreement on 5.8.1983 for consideration, discharging the plaintiff no. 1 from all obligations and liabilities of re-conveyance but thereafter, instituted Title suit No. 9 of 1984 against the plaintiff no. 1 for specific performance of contract dated 21.5.1982 only, which was dismissed on 21.4.1984 and thereafter, Title Appeal No. 1 of 1989 filed by Sarju Ram against the said judgment is pending before the District Judge, Palamau. However, after institution of Title Suit No. 9 of 1984, the defendant nos. 1 to 18 have got bogus Sale deeds executed in their favour by Sarju Ram and on the strength of the said sale deeds, defendant nos. 1 to 18 tried to acquire the suit land during the absence of plaintiff no. 1 and his family members, defendant nos. 1 to 8 tried to dig the foundation for construction of building over the suit land. The learned counsel for the petitioner submitted that the petitioner's father, Sarju Ram died during the pendency of the suit and since he had not filed his written statement before his death, the learned trial court exercising its jurisdiction under Order XXII Rule 4(4) of the Code of Civil Procedure, exempted the plaintiffs vide its order dated 21.2.2002 from substituting heir and legal representative of the deceased, Sarju Ram in place of defendant no. 19 in this suit, as such, the petitioner who was the sale heir and legal representative of late Sarju Ram was not substituted in the suit in place of his deceased-father. It is further submitted that, however, on advice of his counsel, the petitioner appeared in the case and filed a petition for arraying him as a party and also filed his written statement but the same was returned and not accepted by the trial court and the suit was eventually decreed in terms of the Judgment and Decree dated 20th December, 2010, passed by the learned Sub-Judge-1, Garhwa and in view of Order XXII, Rule 4-A of the Code of Civil Procedure, the said judgment have the same force and effect, as if it has been pronounced before the death of Sarju Ram o took place. It is further submitted that the defendant no. It is further submitted that the defendant no. 9 of Title Suit No. 45 of 1994, namely, Smt. Nirmala Devi, who claimed to be one of the purchasers from Sarju Ram preferred Title Appeal No. 1 of 2011 against the aforesaid Judgment and Decree dated 20th December, 2010 and in the said appeal, the petitioner has been made respondent no. 20. It is further submitted that on receipt of the notice of appeal, the petitioner appeared and filed his cross-objection with sufficient court fee within the time prescribed under the law for filing the cross-objection and there was no defect, in the form of cross-objection. It is further submitted that the petitioner raised a number of valid grounds mainly on the questions of law for assailing the impugned Judgment and Decree under appeal. It is further submitted that in response thereto, the plaintiffs-respondents filed a reply to the aforesaid cross-objection in the form of their written statement and prayed for dismissal of the cross-objection on the grounds that Sarju Ram did not file his written statement and the suit proceeded exparte against him and as the cross-objector was not substituted in the suit in place of Sarju Ram and as he was not a party in the suit, he could not be said aggrieved by the judgment under appeal and he has no locus standi for filing the cross-objection. It is further submitted that in view of the provision of Section 96(2) read with Order XXII, Rule 4(4) of the Code of Civil Procedure, the objection raised by the plaintiffs-respondents in their written statement were not tenable in law. However, the learned court of appeal vide its order dated 20th December, 2011 refused to admit the cross-objection filed by the petitioner on the grounds that as the petitioner is not aggrieved party by the judgment of lower court, he has no right or locus standi to file cross-objection. It is further submitted that thereafter, the petitioner filed a civil writ petition being W.P.(C) No. 69 of 2012 for setting aside the aforesaid order dated 20th December, 2011 and this Court vide its Judgment and order dated 28th March, 2012, set aside the order dated 20th December, 2011 and disposed of the writ petition by making certain observations and remanded the matter back to the appellate court for deciding the matter afresh. It is further submitted that on remand, the parties were heard afresh on the point of admission of the cross-objection. However, the learned court below without proper appreciation of the submissions made and the observations made by this Court while disposing of W.P.(C) No. 69 of 2012, once again refused to admit the cross-objection on similar grounds vide its order dated 27.6.2012 on which it had earlier refused. It is further submitted that the impugned order dated 27.6.2012 passed by the appellate court is illegal and contrary to law and without jurisdiction. It is further submitted that the court below has committed an error in refusing to admit the cross-objection second time on similar grounds, though the said grounds were not held valid by this Court in W.P.(C) No. 69 of 2012. It is also submitted that the impugned order is bad in law and amounts to miscarriage of justice and if allowed to stand, it would cause irreparable, substantial loss and injuries to the petitioner's right over the suit land and, as such, liable to be quashed. It is further submitted that the petitioner has raised a number of valid grounds in his cross-objection on the point of law and in the event of his success, the judgment and decree under appeal, passed in Title Appeal No. 45 of 1994 in favour of plaintiffs on the basis of two illegal sale deeds with respect to his ancestral land, are bound to be set aside, the petitioner has valid legal right and locus standi to prefer the cross-objection and therefore, the petitioner has approached this Court for redressal of his grievance, since the petitioner has no other alternative, equally efficacious remedy against the impugned order, than to move to this Court in its writ jurisdiction under Article 227 of the Constitution of India. 6. The learned counsel for the respondents-plaintiffs submitted that Sarju Ram, father of the petitioner sold/transferred the suit land to the respondent nos. 1 and 2 vide registered sale deed in the year 1980 and 1982 and handed over the right, title and possession of the suit land. After the above transfer, there was an agreement dated 21.5.1982 of re-convey the suit property between Sarju Ram and these respondents. 1 and 2 vide registered sale deed in the year 1980 and 1982 and handed over the right, title and possession of the suit land. After the above transfer, there was an agreement dated 21.5.1982 of re-convey the suit property between Sarju Ram and these respondents. Sarju Ram vide Agreement dated 5.8.1983 agreed to forgo his right of re-conveyance by getting another consideration, withdraw himself from the above agreement and discharged the present respondents from all obligations and liabilities of above agreement of re-conveyance. It is further submitted that the petitioner's father Sarju Ram, thereafter maliciously in connivance with some persons, had filed Title Suit No. 9 of 1984 against these respondents and prayed for specific performance of the agreement dated 21.5.1982 executed by these respondents in favour of Sarju Ram, father of the petitioner. Title Suit No. 9 of 1984 was contested by these respondents, who were defendants therein. It is further submitted that Sarju Ram admitted that he sold the suit land to Muni Tiwari and Suchitra Tiwari and handed over the right, title and possession of the suit land. It is further submitted that Title Suit No. 9 of 1984 was ultimately dismissed in terms of the judgment dated 21.9.1988 and decree dated 7.10.1988. Thereafter, the said Sarju Ram filed Title Appeal No. 1 of 1989, challenging the judgment and decree dated 21.9.1988, passed in Title Suit No. 9 of 1984. The said Title Appeal No. 1 of 1989 was dismissed in terms of the judgment dated 30th July, 1998. It is further submitted that by dismissal of Title Suit No. 9 of 1984 and Title Appeal No. 1 of 1989, title of these respondents over the suit properties stood affirmed and confirmed. It is further submitted that; despite the above fact, the petitioner's father, Sarju Ram illegally made several deeds of transfer of the suit lands in favour of different persons, who are respondent nos. 3 to 21 in the instant writ petition, although he had no title over the suit properties. It is further submitted that; despite the above fact, the petitioner's father, Sarju Ram illegally made several deeds of transfer of the suit lands in favour of different persons, who are respondent nos. 3 to 21 in the instant writ petition, although he had no title over the suit properties. It is further submitted that in view of the aforesaid facts and circumstances, these respondents filed Title Suit No. 45 of 1994 in the court of the learned Munsif, Garhwa, praying for declaration of title and recovery of possession with respect to the suit properties on the strength of registered sale deeds dated 5.8.1980 and 21.5.1982 and also on the basis of judgment and decree of Title Suit No. 9 of 1984, also prayed that the defendant nos. 1 to 18 and 20 to 23 (subsequent purchasers) have no right, title and possession on the basis of subsequent sale deeds executed by Sarju Ram, after dismissal of Title Suit No. 9 of 1984 and Title Appeal No. 1 of 1989. It is further submitted that in Title Suit No. 45 of 1994, the petitioner's father, Sarju Ram was impleaded as defendant no. 19 and the subsequent purchasers during and after the judgment of Title Suit No. 9 of 1984 from Sarju Ram were arrayed as party-defendant nos. 1 to 18 and 20 to 23 and here in the instant writ petition, they have been impleaded as respondent nos. 3 to 21. It is further submitted that Title Suit No. 45 of 1994 instituted by these respondents was decreed by terms of the judgment dated 20th December, 2010 and the learned court below granted a decree of title, recovery of possession and permanent injunction. It is further submitted that Sarju Ram, father of the present petitioner did not contested the suit, as during the stage of final argument, Sarju Ram died and therefore the learned trial court exempted the plaintiff under Order XXII Rule 4(4) of the Code of Civil Procedure to substitute his heirs. It is further submitted that the present petitioner was not party in Title Suit No. 45 of 1994 and neither he appeared or filed any petition or written statement, the judgment and decree were not against him because no land was left after transfer by his father. It is further submitted that the present respondent nos. It is further submitted that the present petitioner was not party in Title Suit No. 45 of 1994 and neither he appeared or filed any petition or written statement, the judgment and decree were not against him because no land was left after transfer by his father. It is further submitted that the present respondent nos. 1 and 2, who were plaintiff in Title Suit No. 45 of 1994 filed Execution Case No. 3 of 2011 in the court of Sub-Judge-1, Garhwa against the respondents/defendants from the suit land on the basis of the judgment and decree passed in Title Suit No. 45 of 1994, which is pending. The learned counsel for the respondents further submitted that against the judgment and decree passed in Title Suit No. 45 of 1984. only defendant no. 9, Nirmala Devi filed appeal only with respect to 5 decimal of land, which is smaller part of the suit land, admeasuring about 75 decimals and impleaded the present petitioner as respondent erroneously and therefore, the present petitioner appeared and filed cross-objection under Order XLI Rule 22 of the Code of Civil Procedure for the entire suit land, which is beyond the scope of appeal with absolutely new facts claiming for the entire suit land. It is further submitted that after rejection of cross-objection by the lower appellate court vide its order dated 20th December, 2011, the petitioner-crass-objector filed W.P.(C) No. 69 of 2012. In the said writ petition, case was remanded to the court below with a direction to pass a fresh order, whereafter the learned lower appellate court as per the direction given in W.P.(C) No. 69 of 2012, passed a fresh order dated 27.6.2012, after adjudication and careful consideration of all aspects involved in the matter and thereby rejected the cross-objection. It is further submitted that the present petitioner filed Title Suit No. 51 of 2011, and also filed objection in Execution Case No. 3 of 2011 under Section 47 of the Code of Civil Procedure on same and similar grounds, as raised in cross-objection and proceeded simultaneously in alternative way. It is also submitted that the present petitioner pleaded absolutely wrong facts and remained silent and concealed about previous adjudications in Title Suit No. 9 of 1984, Title Appeal No. 1 of 1989 and Title Suit No. 45 of 1994. It is also submitted that the present petitioner pleaded absolutely wrong facts and remained silent and concealed about previous adjudications in Title Suit No. 9 of 1984, Title Appeal No. 1 of 1989 and Title Suit No. 45 of 1994. The learned counsel for the respondents further submitted that the suit land of Title Suit No. 9 of 1984, Title Suit No. 45 of 1994 and Title Suit No. 51 of 2011 are same, which had already been adjudicated earlier. It is also contended that the cross-objection filed by the petitioner is also barred by the provisions of Section 11 of the Code of Civil Procedure and also barred by the provision of Order II Rule 2 of the Code of Civil Procedure. It is further submitted that the cross-objection is not against the appellant. Rather, the same is between the respondent and respondent, which is not maintainable in the eye of law. Moreover, the cross-objection is barred by the law of estoppel, waiver and acquiescence as well as barred by the law of res judicata because the claim of father of the cross-objector had already been refused by the competent court in Title Suit No. 9 of 1984 and Title Appeal No. 1 of 1989. It is further submitted that the judgment and decree of Title Suit No. 9 of 1984 and Title Appeal No. 1 of 1989 become absolute, which shall not be reagitated by the son of Sarju Ram in the year 2011 in illegal manner and mode. It is also submitted that in fact, the petitioner filed the cross-objection, which is not cross-objection rather, the same is counter claim, whereby the petitioner claimed his right, title and possession over the suit land as his own, on absolutely new grounds, which is not legally maintainable at the appellate stage. It is further submitted that Title Suit No. 45 of 1994, none of the defendants pleaded the question of fraud and C.N.T. Act in their pleadings and therefore, now it is not open for the petitioner to raise such point. It is lastly submitted that the present respondents have been deprived to get the benefit/fruit of the judgment and decree passed in favour of them in Title Suit Nos. 9 of 1984 and 45 of 1994, on account of such baseless attempts made by the petitioner. It is lastly submitted that the present respondents have been deprived to get the benefit/fruit of the judgment and decree passed in favour of them in Title Suit Nos. 9 of 1984 and 45 of 1994, on account of such baseless attempts made by the petitioner. The learned counsel for the respondents by referring the supplementary counter affidavit filed by them and the documents annexed thereto, pointed out that in the Title Suit No. 45 of 1994, the learned court below exempted the plaintiffs from substituting the defendant no. 19, Sarju Ram vide order dated 21.2.2002. It is also submitted that the Title Suit No. 45 of 1994, decreed in favour of the plaintiffs, the name of the deceased-defendant no. 19 mentioned in decree erroneously, which is subsequently corrected vide order dated 1st March, 2011. 7. Considering the aforesaid rival submissions and on perusal of the materials placed on record, it appears that the court below after careful consideration of the facts and circumstances involved in the case as also considering the submissions made before it at the time of hearing of cross-objection, passed a detailed and reasoned order and declined to admit the cross-objection filed by the petitioner. The arguments advanced by the learned counsel for the petitioner that the learned lower appellate court has not regarded the observations made by this Court in W.P.(C) No. 69 of 2012 while remanding the case for de novo hearing, cannot be accepted, as the learned lower appellate court has discussed in detail about each and every objection raised by the petitioner/cross-objector. The learned lower appellate court while dealing with cross-objections afresh, taken note of the observations made by this Court in W.P.(C) No. 69 of 2012 that the case was remitted back for deciding afresh mainly on two grounds. The first ground is that the cross-objector had appeared in the lower court and had filed its written statement, which was not accepted by the lower court and the second contention is that the two sale-deeds by which the respondent nos. 1 and 2 are said to have got title over the suit land were hit by Section 46 of the C.N.T. Act and for the purpose of detailed examination, the learned lower appellate court after going through the entire records of the lower court, found that the cross-objector never appeared before the lower court nor filed its written-statement. 1 and 2 are said to have got title over the suit land were hit by Section 46 of the C.N.T. Act and for the purpose of detailed examination, the learned lower appellate court after going through the entire records of the lower court, found that the cross-objector never appeared before the lower court nor filed its written-statement. Thus, it is palpably false to say that the cross-objector, Radhey Shyam Ram appeared before the lower court after the death of his father and filed its written statement also, which was not accepted, because neither any petition appears to have been filed on behalf of Radhey Shyam Ram nor any written statement has been kept in the record of the lower court filed by Radhey Shyam Ram in any capacity. In this context, the learned court below perused the cross-objection, dated 16th March, 2011 supported by the affidavit, wherein, it has been deposed by Radhey Shyam Ram, the cross-objector that he declares and solemnly affirms that the cross-objection to the memo of appeal has been drafted at his instance and instruction and the same has been read over and explained to him in Hindi. The contents of the same are true to the best of his knowledge, information and belief. Thereafter, the learned court below in its order, reproduced the contents of paragraph 8 of the cross-objection, which reads as under:- "That the cross-objector appeared and filed his written statement and contested the suit, but the learned Sub-Judge, did not consider the matter properly and decreed Title Suit No. 45 of 1994". After taking factual note of these averments made in the cross-objection, the court below reached to the conclusion' that this fact is palpably false, except that the suit was decreed. The court below has also taken further note of the fact that the cross-objector Radhey Shyam Ram has sworn in another affidavit, dated 19.6.2012. This affidavit has also been sworn by him on the basis of the facts, which are true to his knowledge and belief. In this affidavit, which is in Hindi, it has been deposed that the learned lawyer, Shri Kedar Nath Shukla, who had expired now, and as to what should he do. This affidavit has also been sworn by him on the basis of the facts, which are true to his knowledge and belief. In this affidavit, which is in Hindi, it has been deposed that the learned lawyer, Shri Kedar Nath Shukla, who had expired now, and as to what should he do. The late Kedar Nath Shukla gave a petition for arraying him as a party and filed his written statement, which he gave to learned Munsif, Qarhwa after three days of 'Makar sankranti', which he returned, to him, saying that nothing could be done in this context now. He told all things to late Kedar Nath Shukla and returned all the documents to him. This fact has also been deposed on solemn affirmation being true to the best of knowledge and belief to the cross-objector, Radhey Shyam Ram. By taking note of these facts, the court below observed in its order, that now this fact goes to show that he never appeared before the court below and neither he filed his written statement nor contested the suit. Moreover, it is against the statement in para 8 of the cross-objection, which goes to show that he filed his written statement and contested the suit. On perusal of the impugned order passed by the lower appellate court, it appears that the petitioner, Radhey Shyam Ram did not appear before the court below nor filed its written statement. The learned lower appellate court while rejecting the cross-objection filed by the petitioner, has taken note of the prevailing rule of practice in the lower court that when any petition is filed on behalf of any person, it is kept on the record, even though it is rejected. No such petition for making him party under Order 1 Rule 10 of the Code of Civil Procedure as submitted by the learned lawyer for the cross-objector is on the record, nor any written statement is on the record. The second affidavit, dated 19.6.2012 has been filed to show that he tried to become a party. It is pertinent to mention here that he filed a petition in the year 2001 and it was returned by the learned Munsif, Garhwa. He should have complained the matter to the learned District Judge, concerned or to the High Court, as the case may be, but he had kept mum till 11 years approximately. It is pertinent to mention here that he filed a petition in the year 2001 and it was returned by the learned Munsif, Garhwa. He should have complained the matter to the learned District Judge, concerned or to the High Court, as the case may be, but he had kept mum till 11 years approximately. Therefore, the contention of the cross-objector that he appeared before the lower court and filed his written statement and contested the suit, cannot be accepted and the court below has rightly and properly, after careful consideration of the materials on record, after perusal of the entire record of the lower court, reached to the conclusion that there is no substance in the contention raised by the cross-objector that he appeared before the lower court and filed his written statement and contested the suit and therefore, this Court is of the view that the said finding, which is based on record, is not required to be disturbed as the court below has not committed any error while appreciating the material on record and reaching to the conclusion that there is no substance in the contentions of the cross-objector on this issue. The another ground, which has been raised and agitated before the learned court below is with regard to the two sale deeds executed in favour of the respondent nos. 1 and 2 that they are hit by Section 46 of the C.N.T. Act. The learned lower appellate court rightly and properly, while dealing with this issue, observed that this question touches the merit of the appeal because the learned lower court while dealing with the issue nos. 1 and 3, the issue no. 1, being on the maintainability of the suit, has discussed the question of 46 (1-b) and 46(iii) of the C.N.T. Act and has decided the issue in negative in favour of the plaintiffs. Therefore, this matter under Section 46(iii) of the C.N.T. Act is sub-judice in the appeal before the lower appellate court and it cannot be decided while considering the admission of the cross-objection. The learned lower appellate court has rightly and properly observed that the only point, which could be decided, is as to whether the cross-objector is entitled to raise that question of sale deed being barred by the C.N.T. Act. The learned lower appellate court has rightly and properly observed that the only point, which could be decided, is as to whether the cross-objector is entitled to raise that question of sale deed being barred by the C.N.T. Act. In this context, the learned lower appellate court has taken note of the arguments advanced by the learned counsel for the respondent nos. 1 and 2, who have stated that Sarju Ram, the father of the cross-objector, Radhey Shyam Ram has sold the suit land vide sale deed, Exhibit 1/A and 1/B in favour of the respondent nos. 1 and 2 and 'thereafter, he handed over the possession. There was deeds of agreement of re-conveyance of the lands by the respondent nos. 1 and 2 separately, which was issued on the date of the sale deeds in their favour, which are Exhibits 1/A and 1/B, late Sarju Ram had issued notice (Exhibit-5) to Muni Devi (Respondent No.1), this notice has been issued by B. Deo, Advocate on behalf of his client, Shri Sarju Ram, the father of the cross-objector of Radhey Shyam Ram. It has been mentioned in the said notice that his client, Sarju Ram, sold 0.52 acres of land in two pieces of 0.44 and ½ acres and 0.7 and ½ acres in Plot No. 653, pertaining to Khata No. 123 of village Sahijana, P.S. Garhwa for consideration of Rs.3,000/- by registered sale deeds and possession of land so sold was also handed over. From these facts, it reveals that the father of the cross-objector has admitted that he had sold the suit land and delivered the possession of the same. Therefore, the respondent no. 1 became the owner of the land so sold and title have been passed in favour of him. It also appears that late Sarju Ram filed Title Suit No. 9 of 1984 for specific performance of contract in this suit, as he had admitted that the title to Respondent No.1, Surendra Nath Tiwari was passed and possession was delivered to him in respect of 52 decimals of land of Plot No. 653 and Khata No. 123, which is the suit plot. This suit was dismissed by the court of learned court of Munsif, Garhwa vide its judgment dated 21.8.1988. Thus, it appears that the title of Respondent nos. This suit was dismissed by the court of learned court of Munsif, Garhwa vide its judgment dated 21.8.1988. Thus, it appears that the title of Respondent nos. 1 and 2 over the suit land and their possession has been admitted by the late father of cross-objector and therefore, the court below after recording this material fact has rightly, observed that the cross-objector Radhey Shyam Ram cannot raise this issue now in this appeal, because title and possession of the respondent nos. 1 and 2 has been admitted by his father, Sarju Ram in the year 1984 itself. 8. In view of the aforesaid facts, the learned lower appellate court has rightly and properly reached to the conclusion that the cross-objector is stopped from saying that the respondent nos. 1 and 2 did not get title over the suit land through the sale deed. It also appears that based on these facts, the learned lower appellate court has rightly and properly observed that the plea or question raised about the title of the respondent nos. 1 and 2 in any suit or appeal is barred by the principle of res judicata also. 9. On perusal of the order passed by the learned lower appellate court, it further appears that the learned lower appellate court has also considered in detail on the point of admission of cross-objection as to whether the cross-objector can file the cross-objection in this appeal and while dealing with this aspect of the matter, the learned lower appellate court has gone into the facts of the original suit No. 45 of 1994 filed by the respondent nos. 1 and 2, namely, Muni Tiwari and Suchitra Tiwari against several persons for declaration of their title over the suit land and for recovery of possession of the same and for declaration that the sale deed executed in favour of the defendant nos. 1 to 18 and 20 to 22 by the defendant no. 19 (Sarju Ram) are-void, illegal and without consideration and for recovery of possession, evicting the defendants, who had not acquired the possession in any manner. In the said complaint, it has been averred that when the plaintiff no. 1 to 18 and 20 to 22 by the defendant no. 19 (Sarju Ram) are-void, illegal and without consideration and for recovery of possession, evicting the defendants, who had not acquired the possession in any manner. In the said complaint, it has been averred that when the plaintiff no. 1, Muni Tiwari was suffering from heart ailment and staying at New Delhi, his wife, Suchitra Tiwari was looking after him at New Delhi and his sons were studying in Universities and colleges, the other defendants purchased the suit land from the defendant no. 1, Sarju Ram and came in possession of the same. In this suit, the defendant no. 19 has been made party only because he has sold the suit land to Muni Tiwari and Suchitra Tiwari, the plaintiffs in the year 1980 and 1982 respectively and that the suit land was sold by him in favour of defendant nos. 1 to 18 in the year 1990 when the said Sarju Ram lost his case for re-conveyance from the court of learned Munsif, Garhwa in the year 1988 being Suit No. 9 of 1984 and Title Appeal No. 1 of 1989 was pending. By taking note of this pleading, the learned lower appellate court has observed that no relief has been claimed against the respondent no. 19, Sarju Ram in the said suit as he was performa defendant only as he had sold the lands to the plaintiffs as well as the other defendants in the said suit and therefore, he did not file any written statement in the lower court nor did he appear before the trial court. In this context, the learned lower appellate court has observed that the person, who had not filed any written statement and who had not pleaded and made out any case, cannot be said to be aggrieved by the judgment delivered by the court. The defendant No. 19, Sarju Ram died during the trial of the suit and the plaintiffs were exempted from substituting the name of the cross-objector in place of his father. The defendant No. 19, Sarju Ram died during the trial of the suit and the plaintiffs were exempted from substituting the name of the cross-objector in place of his father. Usually, the son or legal heirs of the deceased-party steps in the shoes of his father but here late Sarju Ram had no case and it has also been found that the cross-objector Radhey Shyam Ram did not appear in the lower court nor contested the suit, so he cannot be said to be aggrieved by the judgment of the lower court. The law relating to filing of cross-objection is provided under Order XLI Rule 22 of the Code of Civil Procedure, which provides as under:- "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 on any of the grounds decided against him in the Court below, but 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 Form of objection and provisions applicable thereto. - (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. (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 rule." 10. Thus, for filing cross-objection, the cross-objector should have been aggrieved by any finding on the issue in the decree. By taking note of this provision, contained in Order XLI, Rule 22 of the Code of Civil Procedure, the learned court below on the basis of facts, which have been emerged from the record, reached to the conclusion that as in the lower court, there was no written statement filed rule behalf of the cross-objector or his father, Sarju Ram, he cannot be said to be aggrieved by the judgment of the lower Court at any point of time and therefore, he is not entitled to file any cross-objection. The learned counsel for the respondents has also submitted that the appellant in appeal before the lower appellate court in collusion with the respondent no. 20, Radhey Shyam Ram (petitioner herein) has made him respondent no. 20 in the appeal. The lower appellate Court has also taken note of this argument, when it was advanced before it and while taking note of this argument on behalf of the respondent nos. 1 and 2, the lower appellate court observed that this point is also a considerable point for deciding as to whether the cross-objection of the cross-objector should be admitted or not. On perusal of the order passed by the, lower appellate court, it also appears that the learned lower appellate court has taken note of the various case-laws/authorities, cited before it and has also dealt with the said case-law in the light of the facts and circumstances of the case. On perusal of the order passed by the, lower appellate court, it also appears that the learned lower appellate court has taken note of the various case-laws/authorities, cited before it and has also dealt with the said case-law in the light of the facts and circumstances of the case. After a detailed discussion of the facts and circumstances involved in the case and after careful consideration of the submissions made by the learned counsel for the parties, in the lower appellate court, as also after careful consideration of the provision of law and the case-law, relevant for the purpose of taking decision, the learned lower appellate court find that cross-objector was not party in the lower court, nor he is aggrieved by any finding of the judgment of the lower court and therefore, he is not entitled to file cross-objection and the cross-objection filed on behalf of the cross-objector, cannot be admitted like appeal, and therefore, the cross-objection was not admitted. 11. In view of the above position, intervention of this Court under Article 227 of the Constitution of India is unwarranted as the learned lower appellate court has not committed any error in exercising jurisdiction and powers vested with it while rejecting the cross-objection filed by the petitioner. The learned counsel• for the petitioner alternatively submitted that since his client has already filed a title suit No. 51 of 2011, claiming right, title and interest in the SUK property, the observations made by tile learned lower appellate court while rejecting his cross-objection may be set aside so that it may not operate as res judicata. The above arguments advanced by the learned counsel for the petitioner cannot be accepted because the learned lower appellate court, after careful examination of the entire records, has recorded its findings, which are based on facts and law in respect of the maintainability of the cross-objection. So far as the Title Suit No. 51 of 2011 filed by the petitioner is concerned, the said suit is filed, claiming right, title and interest in the property and in the said suit, the plaintiff is required to prove his title independently on the basis of material evidence possessed by the plaintiff in respect of suit property. It also appears that the plaintiff has also filed objection under Order XXI Rule 97/98 read with Section (sic-Rule?) 101 of the Code of Civil Procedure before the executing court. It also appears that the plaintiff has also filed objection under Order XXI Rule 97/98 read with Section (sic-Rule?) 101 of the Code of Civil Procedure before the executing court. The said provision clearly indicates that the issue raised in the objection are required to be decided by the executing court and not by way of a separate suit. In this background of the matter, whether suit filed by the petitioner being Title Suit No. 51 of 2011 is how far maintainable, is another question, which needs to be considered by the learned executing court as well as the learned court, where the Title Suit No. 51 of 2011 is pending. 12. The above facts is suggestive of the conduct of the petitioner that the petitioner has made attempts/efforts so as to create obstruction, in execution of the decree, passed in favour of the respondent nos. 1 and 2 and thereby deprived them from enjoying the fruits of the decree. This Court is of the view that such abuse and misuse of the process of law is not permissible under law and therefore, in view of the above discussions, the present petition deserves to be dismissed. Accordingly, this writ petition is dismissed.