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SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, JJ.
State of Andhra Pradesh & Ors. – Appellants
Versus
B. Ranga Reddy (D) By Lrs. & Ors. – Respondents
Civil Appeal No. 17486 of 2017 with Civil Appeal No. 17487 of 2017 and Contempt Petition (Civil) No. 204 of 2014
Decided On : 09-08-2019
(a) Code of Civil Procedure, 1908 - Order LX Rule 22 and 33 - Order of consolidation of suits and an order rendering common judgment in different suits - No distinction. (Para 14)
(b) Code of Civil Procedure, 1908 - Order LX Rule 22 and 33 - A party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross objections - It is permissible to file cross objections against the finding - The respondent may defend himself without filing any cross objections to the extent to which decree is in his favour - However, in the absence of cross appeals or cross objections, the First Appellate Court has no jurisdiction to modify the decree. (Para 18, 19, 20)
(c) Code of Civil Procedure, 1908 - Order LX Rule 22 and 33 - Trial court passing order consolidating more than one suit and a common judgment - Appeal against that judgment makes the entire dispute sub-judice again. (Para 23)
(d) Code of Civil Procedure, 1908 - Section 11 - Instantly trial court consolidating three suits - Passing a common judgment - Parties filing three appeals against the three decrees - Appeal in two suits pending - The two suits will not operate as res judicata. (Para 26, 31)
(e) Code of Civil Procedure, 1908 - Order XLI Rule 22 - Trial court deciding three suits together by common judgment - Three appeals filed against such judgment and decrees in respect of all the three suits - Appeals pending - First and second suits cannot be said to be former suits as their decrees have not attained finality - Held, finding on the issues in the first and second suits cannot be challenged in third the appeal. (Para 32, 37, 38, 39)
(f) Section 96, Order XLI Rule 22 and 33 - Appeal lies against decree, not finding - Dismissal of a suit simpliciter cannot be appealed against - However, findings therein can be disputed even without filing cross-objections - Appellate court has jurisdiction to pass any order which ought to have been passed or made by the trial court. (Para 36)
Facts of the case:
Three separate suits were filed against the defendants including the State: first, Original Suit No. 274 of 1983 in respect of 6.08 guntas of land comprising in Survey No. 9 of 2013 of Khairatabad Village; second suit bears Original Suit No. 276 of 1983 in respect of 3 guntas of land comprising in Survey No. 9 of 2013 of Khairatabad Village; and third suit bears Original Suit No. 141 of 1984 which has been filed in respect of land measuring 19.23 guntas in respect of land falling in Survey Nos. 49 and 50 in Rasoolpura Village. The stand of the State in all the suits is that the land in all the three suits falls in Survey No. 43 of Village Bholakpur, which is a Government Shikkam Talab measuring 145 acres 35 guntas, popularly known as Hussain Sagar Talab.
Suit no, 274 and 276 were dismissed but suit no, 141 was decreed with cost.
The State filed appeal arising out of judgment and decree in Original Suit No. 141 of 1984 (Third Suit). In the said appeal, an objection was raised that the findings recorded on Issue No. 1 in Original Suit Nos. 274 of 1983 and 276 of 1983 have to be treated as decree and would operate as res judicata. The appeal was dismissed by the High Court.
Finding of the Court:
Appeal lies against decree not finding. Findings in Original Suit Nos. 274 of 1983 and 276 of 1983 having been challenged in appeals against the decrees which are still pending, cannot operate as res judicata for appeal against judgment and decree in Original Suit No. 141 of 1984.
Result: Appeals allowed. Contempt petition disposed of.
JUDGMENT :
HEMANT GUPTA, J.
1. The challenge in the present appeals is to an order passed by the High Court of judicature of Andhra Pradesh at Hyderabad on October 01, 2012 whereby an appeal filed by the appellants was found to be hit by the principle of res judicata and was dismissed.
2. The brief facts leading to the present appeals are that three separate suits were filed against the defendants including the State: first, Original Suit No. 274 of 1983 in respect of 6.08 guntas of land comprising in Survey No. 9 of 2013 of Khairatabad Village; second suit bears Original Suit No. 276 of 1983 in respect of 3 guntas of land comprising in Survey No. 9 of 2013 of Khairatabad Village; and third suit bears Original Suit No. 141 of 1984 which has been filed in respect of land measuring 19.23 guntas in respect of land falling in Survey Nos. 49 and 50 in Rasoolpura Village. The stand of the State in all the suits is that the land in all the three suits falls in Survey No. 43 of Village Bholakpur, which is a Government Shikkam Talab measuring 145 acres 35 guntas, popularly known as Hussain Sagar Talab. All three suits were tried together. The evidence was recorded in Original Suit No. 274 of 1983. The issues and the findings recorded by the learned trial court on issues of title are as under:
“ORIGINAL SUIT NO. 274 OF 1983 – FIRST SUIT
Issues
(1) Whether the suit property is part of Sy. No. 9/13 of Khairatabad Village as claimed by the plaintiff or whether it is a part of Sy. Nos. 49 and 50 of Rasoolpura Village as claimed by the defendants 1 to 4 or whether it is the part of Sy. No. 43 of Bholakpur Village as claimed by the Government?
Finding
Para 40. The plaintiff miserably failed to establish that the suit property forms part of Sy. No. 9/13 of Khairatabad Village. But the defendants 1 to 4 clearly established that it forms part of Sy. Nos. 49 and 50 of Rasoolpura. However, the Government also failed to established that the suit land forms part of Sy. No. 43 of Bholakpur Village.
(2) Whether the plaintiff is entitled for declaration of his title to the suit property and whether he is entitled for the consequential relief of permanent injunction or in the alternative for possession of the suit property?
Finding
Para 41. The plaintiff miserably failed to establish his title and possession in the suit property and as such, he is not entitled for the relief of declaration or permanent injunction or possession.
(3) To what relief?
Finding
Para 44. In the result, the suit is dismissed with costs.
ORIGINAL SUIT NO. 276 OF 1983 – SECOND SUIT
Issues
(1) Whether the suit property is part of Sy. No. 9/13 of Khairatabad Village as claimed by the plaintiff or whether it is a part of Sy. No. 49 and 50 of Rasoolpura village as claimed by the defendants 1 and 2 or whether it is the part of Sy. No. 43 of Bholakpur Village as claimed by the Government?
Finding
Para 45. Issue No. 1 in Original Suit No. 274 of 1983 and this issue are practically one and the same and as such the finding on issue No. 1 in Original Suit No. 274 of 1983 holds good for this issue also.
(2) Whether the plaintiff is entitled for declaration of his title to the suit property and Whether he is entitled for the consequential relief of permanent injunction or in the alternative for possession of the suit property?
Finding
Para 46. The plaintiff in this suit also failed to establish his title and possession in the suit property and as such, he is not entitled for the reliefs of declaration or permanent injunction or alternative relief of possession.
(3) To what relief?
Finding
Para 49. In the result, the suit is dismissed with costs.
ORIGINAL SUIT NO. 141 OF 1984 – THIRD SUIT
Issues
(1) Whether the suit property is part of Sy. Nos. 49 and 50 of Rasoolpura Village as claimed by the plaintiffs or Whether it is part of Sy. No. 9/13 of Khairatabad Village as claimed by the defendants 1 and 2 or Whether it is part of Sy. No. 4J of Bholakpur Village as claimed by the Government?
Finding
Para 50. The finding on Issu
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