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1957 Supreme(Ori) 80
HIGH COURT OF ORISSA
NARASIMHAM,G.C.DAS, JJ.
Kora Rana
Versus
Saibo Behera
Second Appeal No. 294 of 1953,
Decided On : 04-12-1957
M.S. Rao, and M.K.C. Rao, for Appellant; Advocate General for State.
The power of an appellate court under O. 41, R. 33 to pass a decree in favor of a party who has not filed a cross-appeal or objection is not absolute and should be exercised in accordance with the general principles of the Civil Procedure Code, including the requirement that a party aggrieved by a decree should ordinarily appeal against it within the prescribed time.
Headnote:
CIVIL PROCEDURE CODE - O. 41, R. 33 - SCOPE AND APPLICABILITY - COURT'S POWER TO PASS DECREE IN FAVOUR OF PARTY NOT FILING CROSS-APPEAL OR OBJECTION - LIMITATIONS - INTERPRETATION OF RULE IN CONTEXT OF OTHER PROVISIONS OF THE CODE.
Fact of the Case:
Plaintiff sued to recover possession of disputed properties after evicting defendants, claiming purchase by registered deed in 1936 and subsequent absence from Burma. Defendants claimed purchase from plaintiff's brother and son, and that plaintiff had suffered a legal death due to absence for over seven years, resulting in valid title acquisition. Trial court found joint family properties and no legal necessity for sale, decreeing joint possession and mesne profits. On appeal, the lower appellate court concurred with the findings but modified the decree, holding the properties to be plaintiff's self-acquired properties and granting full possession and mesne profits. Defendant-appellant challenged the appellate court's exercise of powers under O. 41, R. 33 without a cross-appeal or objection from the plaintiff.
Finding of the Court:
The court held that O. 41, R. 33 confers wide jurisdiction on appellate courts to pass decrees in favor of non-appealing parties, but this power should not abrogate other provisions of the Code regarding appeals and cross-objections. The general rule is that an appellate court should not reverse or vary a decree in favor of a party who has not appealed or cross-objected, and this rule should apply despite the enactment of R. 33. The court noted that R. 33 is intended for cases where interference in favor of an appellant necessitates further interference to adjust the rights of other parties, settle mutual rights and obligations, or avoid inconsistent and contradictory decrees in cases with single and indivisible relief claimed against multiple defendants.
Issues: 1. Whether the appellate court erred in exercising its powers under O. 41, R. 33 to modify the decree in favor of the plaintiff without a cross-appeal or objection. 2. Whether the suit properties were the joint family properties or the self-acquired properties of the plaintiff.
Ratio Decidendi: 1. The court held that the appellate court erred in exercising its powers under O. 41, R. 33 to modify the decree in favor of the plaintiff without a cross-appeal or objection. The court reasoned that the controversy before the appellate court was limited to the validity of the impugned sale, and the question of whether the suit properties were joint family properties or self-acquired properties was not in dispute. In the absence of a cross-appeal or objection from the plaintiff, the appellate court should not have entered into a discussion of this issue and should have upheld the trial court's finding that the properties were joint family properties. 2. The court did not delve into the issue of whether the suit properties were joint family properties or self-acquired properties, as it found that this issue was not properly before the appellate court.
Final Decision: The court allowed the appeal, set aside the judgment of the appellate court, and restored the decree of the trial court, granting the plaintiff joint possession of the suit-lands in respect of his eight annas interest and Rs. 98-4-0 towards past mesne profits.
Judgement
G. C. DAS, J. :-
This is a defendants appeal directed against an appellate decree passed by the learned Subordinate Judge, Berhampur, in Title Appeal No. 36 of 1951, allowing the plaintiff to recover full possession of the suit-properties from the defendants, and to realise past mesne profits, as decreed by the learned Munsif.
2. The plaintiff commenced a suit (Title suit No. 114/49) for recovery of possession of the disputed properties after evicting the defendants therefrom. The plaintiffs case was that he purchased the suit properties by a registered deed of sale on 2-11-1936, and sometime thereafter left for Burma. He returned from Rangoon in the year 1949, to find the defendants in possession of the said land and they would not vacate in spite of his repeated demands.
He sent a registered notice to the defendants calling upon them to deliver possession of the suit-lands with mesne profits. To this notice, the first defendants reply was that he had purchased the suit-lands from Champa Beherani and Abhimanyu Behera and thereafter he had sold them to the second and the third defendants and that he was in possession thereof as their tenant. The plaintiffs case therefore was that neither Champa Beherani nor Abhimanyu had any right to sell the suit-lands; Champa being the widow of his separated brother and Abhimanyu being her son. Thus, he contended that the sale by Champa and Abhimanyu was not binding upon him, and that since the defendant-1 had not acquired any title under the impugned sale-deed, defendants 2 and 3 cannot derive any higher right than that of the defendant 1.
3. The defence, inter alia, was that after the death of the plaintiffs brother Gobardhan Behera, the plaintiff married his widow Champa and left for Rangoon about two years after his purchase of the suit-scheduled properties.
He was not heard of until 1949. The defence case further was that the plaintiff never sent any money to Champa for her and her sons maintenance. Thus, Champa and Abhimanyu had the compelling necessity to alienate the suit-properties. The defendants also took a defence that Champa and Abhimanyu represented the entire interest in the suit-properties since the plaintiff had suffered a legal death being unheard of for more than seven years in Rangoon. Accordingly the 1st. delendant had acquired valid title to the suit-properties and he had subsequently sold them to the second and the third defendants who are owners thereof in their own title. Thus, under the circumstances, the defendants are not liable to pay any mesne profits.
4. On these pleadings the trial judge came to the finding that Champa was the wife of the plaintiff and that Abhimanyu was his son through her. The main finding by the trial judge which was the basis of his decree was that the suit-properties were joint family properties and that there was no legal necessity to justify the sale. On these findings, the learned trial judge decreed the plaintiffs suit in part and directed the plaintiff to recover joint possession of the suit lands in respect of his half interest and also to recover Rs. 98-4-0 towards the past mesne profits.
5. The plaintiff apparently seems to have been satisfied with the above decree. The defendants, however, preferred an appeal before the District Judge, Berhampur, against that part of the decree by which they were aggrieved. It may be mentioned here that there was no cross-appeal or objection filed by the plaintiff in respect of that part of the decree which was against him. The appeal was ultimately heard by the learned Subordinate Judge, Berhampur, who concurred with the findings of the trial Judge that there was no legal necessity for the sale. The court of appeal further came to the finding that Champa Beherani not being a coparcener of the joint family, could not be the manager thereof during the absence of the plaintiff, and hence she could not sell the suit-properties to the 1st. defendant as a manager of the joint family.
Although there w
