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1978 Supreme(Gau) 27
GAUHATI HIGH COURT
B. N. SARMA, J.
Kali Charan Raj Bongshi -Appellant
Versus
Roheswaripriya Raj Bongshi -Respondent
Second Appeal No. 40 of 1974
Decided On : 19-09-1978
J.N. Sarma, K. Sarma and C.K. Sarma Barua
The power of an appellate court under Order 41 Rule 33 of the Civil Procedure Code to interfere with a decree against which no cross-appeal or cross-objection has been taken is limited to cases where it is necessary for the purpose of giving relief to the appellant. Where the appeal is to be dismissed, the court cannot interfere with such a decree.
Headnote:
CIVIL PROCEDURE CODE, 1908 - ORDER 41 RULE 33 - SCOPE AND AMBIT - POWER OF APPELLATE COURT TO INTERFERE WITH DECREE AGAINST WHICH NO CROSS-APPEAL OR CROSS-OBJECTION HAS BEEN TAKEN - LIMITED TO CASES WHERE NECESSARY FOR GIVING RELIEF TO APPELLANT - NOT EXERCISABLE WHERE APPEAL IS TO BE DISMISSED.
Fact of the Case:
Plaintiff filed a suit for declaration of title and recovery of possession of land, claiming to have purchased 2 kathas 10 lechas of land from the defendant under a registered sale deed. The defendant contested the suit, alleging that she sold only 1 katha 10 lechas of land in a different dag number. The trial court found that the plaintiff tampered with the sale deed and register to alter the dag number and area, but decreed the suit for 1 katha 10 lechas in the correct dag number, as admitted by the defendant. The plaintiff appealed, aggrieved by the partial decree. The defendant did not file any cross-appeal or cross-objection against the decree for 1 katha 10 lechas.
Finding of the Court:
The appellate court dismissed the appeal and set aside the trial court's decree, holding that the plaintiff was not entitled to any relief for the land in the incorrect dag number and that the trial court was not justified in decreeing the suit for 1 katha 10 lechas in the correct dag number, as the plaintiff did not seek such relief in the plaint.
Issues: Whether the appellate court had the jurisdiction to set aside the trial court's decree for 1 katha 10 lechas in the correct dag number, in the absence of any cross-appeal or cross-objection from the defendant.
Ratio Decidendi: The Supreme Court held that the appellate court's power under Order 41 Rule 33 of the Civil Procedure Code to interfere with a decree against which no cross-appeal or cross-objection has been taken is limited to cases where it is necessary for the purpose of giving relief to the appellant. Where the appeal is to be dismissed, the court cannot interfere with such a decree. In this case, the appellate court found that there was no merit in the appeal and dismissed it. It was not necessary to set aside the trial court's decree for 1 katha 10 lechas in order to give relief to the appellant or adjust the rights of the parties. Therefore, the appellate court had no jurisdiction to set aside that decree.
Final Decision: The Supreme Court allowed the appeal, set aside the appellate court's decree, and restored the trial court's decree for 1 katha 10 lechas in the correct dag number.
JUDGEMENT :- This is an appeal by the plaintiff, whose suit was partially decreed by the trial court but dismissed in entirety by the appellate court in the First Appeal.
The plaintiffs case was that he purchased 2 kathas 10 lechas of land comprised in dag No. 828 of K.P. Patta No. 54 of village Bhathuakhana, Mauza Tihu from defendant Roheswaripriya, who is his aunt, under a registered sale deed dated 20-11-1967. As the defendant caused obstruction in his possession after the sale, the plaintiff filed the suit for declaration of his title to the land and for recovery of khas possession.
2. The defendant filed a written statement and contested the suit alleging, inter alia, that she did not sell any land to the plaintiff under dag No. 828. She, however, admitted that on 20-11-1967 she sold 1 katha 10 lechas of land to the plaintiff under registered sale deed in dag No. 813. The fact that she caused obstruction in the possession of the plaintiff over the suit land was also denied. The suit was also resisted on some other technical grounds with which we are not concerned in this Second Appeal.
3. Upon the pleadings as many as 5 issues were framed including one as to whether the plaintiff acquired good title over the suit land by right of purchase dated 20-11-1967, which was issue No. 3.
4. On a consideration of the evidence adduced by the parties, the learned Munsiff held that the defendant had actually sold 1 katha 10 lechas of land in dag No. 813 and not 2 kathas 10 lechas of land in dag No. 828, as alleged by the plaintiff. He further found that the plaintiff in collusion with a peon of the Sub-Registrars Office tampered with the sale deed as well as with the Register in the office of Sub-Registrar, altering dag No. 813 into dag No. 828 and the area 1 katha 10 lechas into 2 kathas 10 lechas. However, in view of the admission made by the defendant that she had sold 1 katha 10 lechas of land to the plaintiff in dag No. 813 under a registered sale deed on the same date, the Munsiff decreed the suit for this land, although the plaintiff did not seek any land relief in his plaint for any land in that dag.
5. Being aggrieved by the decree of the trial court, for not decreeing the suit in terms of the plaint, the plaintiff took an appeal before the Assistant District Judge. No appeal or cross objection was filed by the defendant against the decree passed by the trial court in respect of dag No. 813. In deciding the appeal the learned Assistant District Judge agreed with the finding of the trial court that the plaintiff committed forgery in respect of the sale deed and that he was not entitled to get any decree in respect of 2 kathas 10 lechas of land comprised in dag No. 828. He further held that when the plaintiff did not seek any relief in his plaint in respect of dag No. 813, the Munsiff was not justified in decreeing the plaintiffs suit for 1 katha 10 lechas comprised in that dag. In this view of the case, the learned Assistant District Judge dismissed the appeal and also set aside the decree passed by the trial court. Being aggrieved by this decree of the First Appellate Court, the plaintiff has come up with the present Second Appeal.
6. Mr. J.N. Sarma, the learned counsel for the appellant submits before me that when the defendant did not take any appeal against the decree passed by the trial court in respect of 1 katha 10 lechas of land comprised in dag No. 813 and that decree became final for that reason, the learned lower appellate court committed an error in law by setting aside that decree in the appeal filed by the plaintiff-appellant.
7. Mr. K. Sarma, the learned counsel appearing on behalf of the Respondent, on the other hand, submits that in view of the provisions of R.33 of O.41 of the Civil P.C. which give wide power to the Court, the learned Assistant District Judge was competent to pass the decree which has been appealed against, for ends of justice.
8. Rule 33 of Order 41 of the Civil P.C. reads as follows :-
"The
