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1975 Supreme(Pat) 153
PATNA HIGH COURT
S.K.Choudhuri, J.
Prahalad Chandra Mahato
Versus
State Of Bihar
Appeal From Appellate Decree No. 636 of 1970 ;
Decided On : JULY 30, 1975
The power under Order 41, Rule 33 of the Code of Civil Procedure to interfere with a decree in favor of a non-appellant should be exercised with discretion and only when it is necessary to readjust the rights of the parties or to settle mutual rights and obligations between the same parties.
Headnote:
CIVIL PROCEDURE CODE - ORDER 41, RULE 33 - INTERPRETATION - POWER OF APPELLATE COURT TO INTERFERE WITH DECREE IN FAVOUR OF NON-APPELLANT - SCOPE AND LIMITATIONS - APPEAL BY ALL PLAINTIFFS - NO OCCASION TO INTERFERE WITH DECREE IN FAVOUR OF DEFENDANTS - LOWER APPELLATE COURT NOT JUSTIFIED IN INTERFERING WITH TRIAL COURT DECREE IN ABSENCE OF APPEAL BY DEFENDANTS.
Fact of the Case:
Plaintiffs filed a suit for declaration that a tank and its embankment were their homestead and khas property and for further declaration that defendants had no title in the suit property. The trial court dismissed the suit. On appeal, the lower appellate court dismissed the appeal and set aside the trial court decree in favor of the defendants. The defendants appealed to the High Court.
Finding of the Court:
The High Court held that the lower appellate court was not justified in interfering with the trial court decree in favor of the defendants in the absence of an appeal by the State and its officers. The court observed that the power under Order 41, Rule 33 of the Code of Civil Procedure to interfere with a decree in favor of a non-appellant should be exercised with discretion and only when it is necessary to readjust the rights of the parties or to settle mutual rights and obligations between the same parties.
Issues: Whether the lower appellate court was justified in interfering with the trial court decree in favor of the defendants in the absence of an appeal by the State and its officers.
Ratio Decidendi: The power under Order 41, Rule 33 of the Code of Civil Procedure to interfere with a decree in favor of a non-appellant should be exercised with discretion and only when it is necessary to readjust the rights of the parties or to settle mutual rights and obligations between the same parties. In the present case, the appeal before the lower appellate court was preferred by all the plaintiffs and the said appeal was dismissed. There was therefore no occasion for the lower appellate court for interference with the trial court judgment which was passed in part in favor of the appellants.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree of the lower appellate court in so far as it interfered with the decree passed by the trial court in favor of the defendants, and restored the decree of the trial court.
1. This second appeal by defendants Nos. 6 to 10 has been preferred against the judgment of the first Additional District Judge, Singhbhum who dismissed the appeal of the plaintiffs and also set aside the decree which was passed by the trial court in favour of defendants Nos. 6 to 10 in respect of their half share i.e., 8 annas share in the disputed property.
2. The plaintiffs filed a suit for declaration that the tank situated in Survey Plot No. 307 with its embankment which is Survey Plot No. 306 are the homestead and khas property of the plaintiffs and the pro forma defendants (defendants Nos. 11 to 22) and for further declaration that defendants Nos. 6 to 10 (appellants before this court) have no title in the suit property and their recognition as tenant by the State is illegal. There was also a further prayer for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs.
3. The plaintiffs case in short was that the ancestors of the plaintiffs and the pro forma defendants excavated a tank for their domestic and agricultural use in Survey Plot No. 307. The further case was that the plaintiffs and their ancestors migrated to some other village but some time after the cadastral survey plaintiffs Nos. 1 and 2 came back to their original village, that is, village Rangatanr and constructed their residential house in several plots (which are not in dispute). The further pleading was that the tank with its ridge is the khas property and part of the homestead of the plaintiffs and pro forma defendants and they are still in possession by rearing fish. The estate of the plaintiffs vested in the State of Bihar some time in 1956-57 and the plaintiffs filed return showing the tank and the embankment aforesaid as part of their homestead and accordingly the State issued notices for fixation of rent. The further case of the plaintiffs was that there was a partition in the family through partition Suit No. 33 of 1966 which was compromised and the suit property was kept Ijmal amongst the co-sharers. It was stated in the plaint that in the revisional survey of 1964 the disputed property was recorded in the name of defendants Nos. 6 to 10 (appellants before this court) on the basis of a registered kabuliat dated 2-3-1944 executed in favour of some of the co-sharers namely Ramratan Mahanty and others to the extent of 8 annas share in spite of the objection preferred by the plaintiffs. The plaintiffs alleged that this kabuliat was never acted upon and the appellants never came in possession. With the aforesaid allegations the plaintiffs filed the present suit.
4. The suit was contested by defendants Nos. 1 to 5 who are State of Bihar and its officers and also by defendants Nos. 6 to 10 (appellants before this court). These two sets of defendants filed separate written statements. The defence taken by the State was that the tank was recorded as Gair Mazarua Gair Abad Malik and it was never a part of the plaintiffs homestead or agricultural holding. All the villagers irrigated their lands by water of this tank. It was denied that the plaintiffs or their co-sharers ever reared or caught fish in the tank and the further pleading in defence was that the tank with its embankment vested in the State of Bihar under the Bihar Land Reforms Act free from encumbrance and the settlement in favour of the appellants was alleged to be illegal and inoperative. It was also stated that survey entry in 1964 in favour of the appellants is wrong.
5. The appellants namely defendants Nos. 6 to 10 who filed a separate written statement took the defence that the tank with its embankment is their raiyati holding and they are coming in possession on the basis of a kabuliat granted by the co-sharers since a very long time. They challenged the correctness of the plaintiffs case to the effect that they are in possession as their homestead. Their specific defence was that 8 annas interest in the suit property was taken under
