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2018 DIGILAW 508 (GAU)

Afizuddin v. Harpati Bewa

2018-03-23

MIR ALFAZ ALI

body2018
JUDGMENT : MIR ALFAZ ALI, J. 1. This second appeal by the defendant is filed against the judgment and decree dated 22.06.2016 passed in Title Appeal No. 5/2013, whereby the learned Civil Judge, Dhubri, dismissed the appeal filed by the defendant and upheld the judgment and decree passed by the learned Munsiff in Title Suit No. 425/2007. 2. The facts leading to the present second appeal, may briefly be stated thus. The respondent herein, as plaintiff instituted a suit for declaration of right, title and interest, cancellation of Sale Deeds No. 1281 and 1282 dated 31.08.1998, permanent injunction and recovery of possession by evicting the defendants. 3. The pleaded case of the plaintiffs was that the predecessor of the plaintiffs, Late Khoibar Ali was the owner of the suit land by right of purchase through auction sale. Later on, a plot of land measuring 1 Katha 4 Lecha was acquired by the Government. After the death of Khoibar Ali in 1997, the plaintiffs approached the revenue authority for mutation of their name. However, the Settlement Officer, Dhubri rejected the prayer of the petitioner and granted mutation in favour of the defendants. Taking advantage of the said mutation, the defendants No. 1 to 3 sold 4 bigha, 1 katha 8 lechas of land to the defendants No. 4 to 7 by registered sale deed No. 1281 and 1282 dated 31.08.1998. Thereafter the defendants also occupied the remaining portion of the suit land illegally, forcing the plaintiffs to bring the suit seeking the reliefs as indicated above. 4. The pleaded case of the defendants was that they have been possessing the suit land for long time and also got their names mutated. According to the defendants, the plaintiffs or their predecessor never possessed the suit land nor they have any right or title over the suit land. 5. On the basis of the above pleading, learned Munsiff framed the following issues: (1) Whether the suit is maintainable in its present form? (2) Whether the suit is barred by limitation? (3) Whether there is a cause of action for this suit? (4) Whether the plaintiffs were in possession of the suit land? (5) Whether defendant no. 1 and 2 have any right to alienate the suit land by way of sale to the other defendants? (6) Whether the plaintiffs have right, title and interest over the suit land? (3) Whether there is a cause of action for this suit? (4) Whether the plaintiffs were in possession of the suit land? (5) Whether defendant no. 1 and 2 have any right to alienate the suit land by way of sale to the other defendants? (6) Whether the plaintiffs have right, title and interest over the suit land? (7) Whether the plaintiff is entitled to the reliefs as claimed for? (8) To what other relief or reliefs the plaintiff is entitled to? 6. Both the parties adduced evidence oral as well as documentary and the learned Munsiff, after hearing the parties decreed the suit of the plaintiffs. Feeling aggrieved, the defendants preferred the first appeal before the learned Civil Judge. Learned Civil Judge, by the impugned judgment and decree upheld the judgment and decree of the learned Munsiff and dismissed the appeal. Learned Civil Judge while allowing the appeal modified the original decree granting the relief of cancellation of the sale deed No. 1281 and 1282. 7. Aggrieved by the judgment and decree of the first appellate court, the defendants preferred the instant appeal, which was admitted to be heard on the following substantial question of law: “Whether the learned first appellate court modified the decree passed by the learned Trial Court granting cancellation of a sale deed in excess of the jurisdiction vested in Section 96 of the Code of Civil Procedure, 1908, in absence of any cross objection required to be filed by the respondents/plaintiffs under Order XLI Rule 22 of the Code of Civil Procedure, 1908?” 8. Learned counsel for the appellants, Ms. P. Bhattacharjee placing reliance on the decisions of the Apex Court in Hardevinder Singh vs. Paramjit Singh, (2013) 9 SCC 261 and Ravinder Kumar Sharma vs. State of Assam, AIR 1999 SC 3571 submitted that in absence of cross objection filed by the appellant/plaintiff, learned appellate court ought not to have modified the decree, granting the relief of cancellation of sale deeds. It was submitted by the learned counsel, that when the learned Munsiff did not grant the relief of cancellation of the sale deeds, in absence of cross appeal or cross objection, learned appellate court did not have the jurisdiction to modify the decree, granting the relief, which was not given by the Trial Court. 9. Refuting the submission of the learned counsel for the appellants, learned counsel for the respondents, Mrs. 9. Refuting the submission of the learned counsel for the appellants, learned counsel for the respondents, Mrs. R. Choudhury, submitted that in view of the amended provision of Order 41, Rule 22 CPC, cross objection was not necessary, inasmuch as, learned trial Court did not decide any issue against the plaintiffs. 10. Order 41 Rule 22 CPC providing for filing cross objection by respondent reads as under: “22. 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 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. Explanation - A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.” 11. The Apex Court in Hardevinder Singh (supra), while elaborating the provision of Order 41 Rule 22 CPC held as under: “After the 1976 amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference is basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross- objection. In Banarsi and Others vs. Ram Phal (supra), it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein. In Banarsi and Others vs. Ram Phal (supra), it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein. Category No. 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In respect of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him, in the pre-amendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree. But post-amendment, read in the light of explanation to sub-rule (1), though it is still not necessary for the respondent to take any cross- objection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross- objection. It gives him the right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. It is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the un-amended Code.” 12. What therefore follows from the above decision is that the amendment of Order 41 Rule 22 in the year 1976 is clarificatory and it envisages three situations or category of cases. The first category deals with a decree, which is partly in favour of the appellant and partly in favour of the respondent. What therefore follows from the above decision is that the amendment of Order 41 Rule 22 in the year 1976 is clarificatory and it envisages three situations or category of cases. The first category deals with a decree, which is partly in favour of the appellant and partly in favour of the respondent. In such case, it is necessary for the respondent to file an appeal or to take a cross objection against that part of the decree, which is against him, if he seeks to get rid of that part of the decree, though he is entitled to support the part of the decree which is in his favour without taking any cross objection. The second category deals with a decree which is entirely in favour of the respondent, though an issue had been decided against him. The third category deals with the decree which was entirely in favour of the respondent, where all the issues had been answered in his favour, but there was a finding which goes against him. So far the second and third category of decree is concerned, it is not necessary for the respondents to take any cross objection to challenge such finding adverse to him, as the decree is entirely in his favour. However, the respondent has an option to file cross objection and since filing of cross objection in the second and third category is optional, there is no bar on the part of the respondent to challenge any finding in respect of any issues or any finding therein against him. 13. In the instant case, learned Trial Court decided all the issues in favour of the plaintiffs and decreed the suit in entirety. However, while passing the decree, the original court did not grant the relief of cancellation of sale deeds, though the plaintiffs specifically prayed for cancellation of the sale deeds. It is submitted by the learned counsel for the appellant, that no issue was framed with regard to cancellation of sale deed No. 1281 and 1282 and no finding was also recorded by the learned Trial Court and therefore, learned Civil Judge traveled beyond its jurisdiction by granting such relief of cancellation of the sale deeds by way of modification of the decree. 14. 14. It is settled position of law that failure to frame issue is not fatal, if the party led evidence being conscious to the point in controversy. When the party went on trial being fully aware of the rival cases and also led all evidence, it cannot be said that absence of a specific issue is fatal to the case or that there occurs any prejudice. Evidently, pleaded case of the plaintiffs was that the sale deeds were executed by the defendants No. 1 to 3 in favour of the defendants No. 4 to 7 without any right, title and interest and plaintiffs also prayed for relief for cancellation of those sale deed. It is no doubt true, that no specific issue as to the validity of the sale deeds was framed. However, while discussing the issue pertaining to right, title and interest of the party, learned Munsiff thoroughly discussed about the sale deed and right and title of the vendor to execute such sale deeds and having discussed the evidence adduced by the parties, both oral and documentary, the learned Trial Court came to the finding, that the defendants No. 1, 2 and 3 did not have right to transfer the land by way of sale. However, while passing the decree inspite of specific prayer made by the plaintiff in the plaint for cancellation of the sale deeds, no relief was granted to that effect. Learned appellate court having taken note of all those evidences and pleading of the parties, modified and molded the decree and granted the relief of cancellation of the sale deeds in question. 15. Order 41 Rule 33 empowers the appellate court wide power to modify/mold or interfere with the decree of the lower court in the interest of justice. If the appellate court finds that molding of the decree or interference with the decree of the trial court is necessary to do justice to the parties, the appellate court is empowered to mold and modify the decree in appropriate cases for doing justice to the parties. If the appellate court finds that molding of the decree or interference with the decree of the trial court is necessary to do justice to the parties, the appellate court is empowered to mold and modify the decree in appropriate cases for doing justice to the parties. When the appellate court is vested with the power to modify or interfere with the decree for doing justice to the parties, such modification and molding of the decree cannot be faulted only because of absence of cross objection, unless the respondent is under any obligation as per provision of law to take a cross objection on the facts and circumstances of the case. 16. The point, therefore, needs to be considered in the instant case is whether in the facts and circumstances of the case, it was obligatory on the part of the respondent/plaintiffs to take a cross objection or to file a cross appeal. Admittedly, learned Munsiff decreed the suit of the plaintiffs in entirety and all the issues were also decided in favour of the plaintiffs and there was also no adverse finding in the decree against the plaintiffs. However, learned Munsiff while passing the decree, the relief of cancellation of the sale deeds though, sought for by the plaintiffs, was not included in the decree or such relief was missed out. The suit having been decreed in entirety in favour of the plaintiffs and all the issues having decided in favour of the plaintiffs and no adverse finding having been recorded by the learned Trial Court against the plaintiffs, there was no scope or necessity on the part of the plaintiffs/ respondents to take any cross objection against the decree. 17. The suit having been decreed in entirety in favour of the plaintiffs and all the issues having decided in favour of the plaintiffs and no adverse finding having been recorded by the learned Trial Court against the plaintiffs, there was no scope or necessity on the part of the plaintiffs/ respondents to take any cross objection against the decree. 17. Though, no issue on the point of cancellation of the sale deeds was framed by the learned Trial Court, the issue in controversy with regard to cancellation of sale deed was within the knowledge of both the parties and in fact, both the parties had adduced evidence and the learned Trial Court also recorded findings that the defendants No. 1, 2 and 3 did not have the right to alienate the suit property and inspite of all those findings, when the learned Trial Court missed out a vital relief, which ought to have been granted on the facts and circumstances of the case, learned appellate court, in my considered view, has not committed any irregularity by molding and modifying the decree and granting the relief of cancellation of sale deeds No. 1281 and 1282, for doing justice, reason being that, such relief was neither contrary to pleading nor dehorse evidence. The appellate court was very much within its jurisdiction and power to mold the decree for doing justice to the parties in view of Order 41 Rule 33 of the CPC. Since filing of cross objection/cross appeal was not obligatory on the part of the plaintiffs in the instant case and the learned appellate court was very much empowered to mold and modify the decree in the facts and circumstances of the case, the appellate judgment modifying the decree to the extent as indicated above has not suffered from any illegality or irregularity. 18. For the reasons stated above, the substantial question of law is answered in negative and decided in favour of the respondents/plaintiffs. In view of the finding on the substantial question of law, I find the appeal to be without merit and accordingly dismissed. No cost.