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2007(5) Kar. L.J. 424
N. KUMAR, J.
ANNASAHEB BALESHA WAGHE AND OTHERS -Appellant
versus
APPASAHEB DADA POMMAI AND OTHERS -Respondent
Regular Second Appeal No. 2948 of 2006.
Decided on :13th March, 2007
Practice and procedure - Respondent - Adverse finding in a suit against - Cross-objections by - Nature of - Remedies against adverse finding - Difference betwee - Effect. See, Code of Civil procedure, 1908 - Order 41, Rule 22.
Code of Civil Procedure, 1908 - Order 41, Rule 22 - Adverse finding against respondent - Remedies against - Difference between them.[Kumar, J]: An appeal lies only against the decree and no appeal lies against a finding. A party who has not preferred an appeal against a portion of the decree of which he is aggrieved may prefer a corss objection which is in the nature of a cross papeal, in an appeal preferred by the opposite party against the decree, which is partly in his favour and partly against him. However, in an appeal against a decree, the respondent can challenge a finding which is against him though decree is in his favour, with out filing a corss objections. He can also file cross objection challenging the said adverse finding. Teh difference is when the respondent challenges an adverse finding, without filing a cross objection adn if the appellant withdraws the appeal or the appeal is dismissed for default, then the right of the respondent to get that adverse finding set aside is lost. But if he has filed a cross objection challenging the said adverse finding, notwithstanding the appellant withdrawing the appeal or the appeal is dismissed for default he can independently prosecute his corss objection and the Court is under an obligation to consider the said corss objection and pass order on merits.
Judgment - When can be treated as decree. See, Code of Civil Procedure (Amendment) Act, 1999.
Appeal - Against dcree - Respondent can challenge adverse finding against him without filing conss-objections - Effect of non-filing of cross-objections. [Kumar, J]: An appeal lies only against the decree and no appeal lies against a finding. A party who has not preferred an appeal against a portion of the decree of which he is aggrieved may prefer a corss objection which is in the nature of a cross papeal, in an appeal preferred by the opposite party against the decree, which is partly in his favour and partly against him. However, in an appeal against a decree, the respondent can challenge a finding which is against him though decree is in his favour, with out filing a corss objections. He can also file cross objection challenging the said adverse finding. Teh difference is when the respondent challenges an adverse finding, without filing a cross objection adn if the appellant withdraws the appeal or the appeal is dismissed for default, then the right of the respondent to get that adverse finding set aside is lost. But if he has filed a cross objection challenging the said adverse finding, notwithstanding the appellant withdrawing the appeal or the appeal is dismissed for default he can independently prosecute his corss objection and the Court is under an obligation to consider the said corss objection and pass order on merits.
Appeal - Who can prefer. See, Code fo Civil Procedure, 1908 - Sections 96 & 100.
Respondent - Adverse finding against in a suit - Remedies against - Effect of arailing them. See, Code of Civil Procedure, 1908 - Order 41, Rule 22.
Code of Civil Procedure, 1908 - Sections 96 and 100 - Appeal - Who can prefer - Not enumerated in - No person can file an appeal unless he is aggrieved by decree - No appeal lies against a finding on an issue. [Kumar, J]: Section 96 and sEction 100 of CPC provides for an appeal being preferred from decree passed by any Court exercising original jurisdiction or from every decree passed in an appeal by any decree sub-ordinate to the High Court respectively. None of the provisions enumerate the person who can file an appeal. However, it is settled by long catena of decisions that, to be entitled to file an appeal, the person must be one aggrieved by the decree. Unless, a person is prejudicially or affected by the decree, he is not entitled to file an appeal. It is equally well settled that the appeal lies only against a decree.
Code of Civil Procedure, 1973 - Order 21 - Execution - Judgment cannot be treated as deeree for.
Cross-objections - Against adverse finding - Respondent can challenge an adverse finding against him through decree was passed in his favour by filing cross objections so also by filing appeal - Difference. See, Code of Civil Procedure, 1908 - Order 41, Rule 22.
This second appeal is filed by the defendants 1 to 4. The facts leading to this litigation are as under:
One Dada Lagammanna Pommai and his wife Godabai had no issues.
It is the case of the plaintiff that he was taken in adoption on 11-5-1971. After adoption, in the year 1972, Dada Lagammanna Pommai died. Thereafter, as adopted son, the plaintiff inherited his estate and he was cultivating the lands along with his mother. They jointly claimed• occupancy rights before the Land Tribunal, Chikkodi in respect of the lands under cultivation and the same was granted. Thereafter, they have divided the properties. In the said partition, 30 tolas of gold and Rs. 60,000/- was given to Smt. Godabai and the agricultural land fell to the share of the plaintiff.
It appears that Smt. Godabai executed a Will in respect of the properties on 5-5-1976 in favour of the defendant 5 and one Balesha Waghe and they were cultivating the said lands. Therefore, the plaintiff was constrained to file O.S. No. 197 of 1976 seeking a decree of permanent injunction against the defendants. The said suit after contest came to be dismissed holding that the plaintiff was not in possession on the date of the suit. The plaintiff challenged the said decree in R.A. No. 106 of 1984, which also came to be dismissed and thus the said decree became final. Therefore the plaintiff filed the present suit for declaration of his title, for injunction and in the alternative for possession of the suit schedule property. The defendants filed written statement contesting the claim of the plaintiff. They contended that plaintiff is not the adopted son of Dada Lagammanna Pommai and Smt. Godabai. They set up title to the schedule property under a Will dated 5-5-1976 executed by Smt. Godabai in their favour. The Trial Court framed issues. Both the parties adduced evidence. The Trial Court held that the plaintiff is the adopted son, the defendants failed to establish the Will set up by them. However, the judgment and decree between the parties in O.S. No. 197 of 1976 and R.A. No. 106 of 1984 would operate as res judicata, and therefore it dismissed the suit of the plaintiff.
Aggrieved by the said judgment and decree, the plaintiff preferred R.A. No. 73 of 2002. The lower Appellate Court after reappreciation of the evidence on record and after formulating the points for consideration held that the judgment and decree in the earlier proceedings would not operate as res judicata in the present proceedings, because in the earlier proceedings the plaintiff sought only bare injunction, whereas the present suit is for declaration of title. Secondly, the Appellate Court held that the Will set up by the defendants is not established. However, it did not go into the question whether the plaintiff is the adopted son, on the ground that the defendants have not challenged the said finding of the Trial Court by preferring a cross-appeal. Therefore it allowed the appeal and set aside the judgment and decree of the Trial Court and granted a decree of declaration and possession. Aggrieved by the said judgment and decree of the lower Appellate Court, the defendants 1 to 4 are in this second appeal.
2. The learned Counsel for the appellants assailing the judgment and decree of the lower Appellate Court contended that the lower Appellate Court committed a serious error in not considering the case of the defendants and coming to the conclusion that the plaintiff is the adopted son, on the ground that they had not challenged the said finding of the Trial Court by preferring a cross-appeal, which is totally contrary to law. No cross-appeal need be filed terms of compromise challenge a finding. He also contends that the finding recorded on the question of Will is contrary to the material on record.
3. Learned Counsel for the respondent supported the impugned judgment and decree of the lower Appellate Court.
4. Therefore, the substantial question that arise of conclusion in this appeal is.-
"Is it not open to
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