AFIZUDDIN and 8 ORS vs HARPATI BEWA and 7 ORS

1.This second appeal by the defendant is filed against the judgment and decree dated 22.06.2016 passed in Title Appeal No. 5/2013, whereby the

learned Civil Judge, Dhubri, dismissed the appeal filed by the defendant and upheld the judgment and decree passed by the learned Munsiff in Title

Suit No. 425/2007.

The facts leading to the present second appeal, may briefly be stated thus. The respondent herein, as plaintiff instituted a suit for declaration of

right, title and interest, cancellation of Sale Deeds No. 1281 & 1282 dated 31.08.1998, permanent injunction and recovery of possession by evicting the

defendants.

The pleaded case of the plaintiffs was that the predecessor of the plaintiffs, Late Khoibar Ali was the owner of the suit land by right of purchase

through auction sale. Later on, a plot of land measuring 1 Katha 4 Lecha was acquired by the Government. After the death of Khoibar Ali in 1997, the

plaintiffs approached the revenue authority for mutation of their name. However, the Settlement Officer, Dhubri rejected the prayer of the petitioner

and granted mutation in favour of the defendants. Taking advantage of the said mutation, the defendants No. 1 to 3 sold 4 bigha, 1 katha 8 lechas of

land to the defendants No. 4 to 7 by registered sale deed No. 1281 & 1282 dated 31.08.1998. Thereafter the defendants also occupied the remaining

portion of the suit land illegally, forcing the plaintiffs to bring the suit seeking the reliefs as indicated above.

The pleaded case of the defendants was that they have been possessing the suit land for long time and also got their names mutated. According to

the defendants, the plaintiffs or their predecessor never possessed the suit land nor they have any right or title over the suit land.

On the basis of the above pleading, learned Munsiff framed the following issues:

(1) Whether the suit is maintainable in its present form?

(2) Whether the suit is barred by limitation?

(3) Whether there is a cause of action for this suit?

(4) Whether the plaintiffs were in possession of the suit land?

(5) Whether defendant no. 1 and 2 have any right to alienate the suit land by way of sale to the other defendants?

(6) Whether the plaintiffs have right, title and interest over the suit land?

(7) Whether the plaintiff is entitled to the reliefs as claimed for?

(8) To what other relief or reliefs the plaintiff is entitled to?

Both the parties adduced evidence oral as well as documentary and the learned Munsiff, after hearing the parties decreed the suit of the plaintiffs.

Feeling aggrieved, the defendants preferred the first appeal before the learned Civil Judge. Learned Civil Judge, by the impugned judgment and decree

upheld the judgment and decree of the learned Munsiff and dismissed the appeal. Learned Civil Judge while allowing the appeal modified the original

decree granting the relief of cancellation of the sale deed No. 1281 & 1282.

Aggrieved by the judgment and decree of the first appellate court, the defendants preferred the instant appeal, which was admitted to be heard on

the following substantial question of law.

“Whether the learned first appellate court modified the decree passed by the learned Trial Court granting cancellation of a sale deed in excess of

the jurisdiction vested in Section 96 of the Code of Civil Procedure, 1908, in absence of any cross objection required to be filed by the

respondents/plaintiffs under Order XLI Rule 22 of the Code of Civil Procedure, 1908?â€​

Learned counsel for the appellants, Ms. P. Bhattacharjee placing reliance on the decisions of the Apex Court in Hardevinder Singh Vs. Paramjit

Singh reported in (2013) 9 SCC 261 and Ravinder Kumar Sharma Vs. State of Assam reported in AIR 1999 SC 3571 submitted that in absence of

cross objection filed by the appellant/plaintiff, learned appellate court ought not to have modified the decree, granting the relief of cancellation of sale

deeds. It was submitted by the learned counsel, that when the learned Munsiff did not grant the relief of cancellation of the sale deeds, in absence of

cross appeal or cross objection, learned appellate court did not have the jurisdiction to modify the decree, granting the relief, which was not given by

the Trial Court.

Refuting the submission of the learned counsel for the appellants, learned counsel for the respondents, Mrs. R. Choudhury, submitted that in view of

the amended provision of Order 41, Rule 22 CPC, cross objection was not necessary, inasmuch as, learned trial Court did not decide any issue against

the plaintiffs.

Order 41 Rule 22 CPC providing for filing cross objection by respondent reads as under “22. Upon hearing respondent may object to decree as

if he had preferred a separate appeal- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the

decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour; and may also take

any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one

month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate

Court may see fit to allow.

Explanation- A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file

cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the court on any other

finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.â€​

The Apex Court in Hardevinder Singh (supra), while elaborating the provision of Order 41 Rule 22 CPC held as under: “After the 1976

amendment of Order 41 Rule 22, the insertion made in sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference is

basically that a respondent may defend himself without taking recourse to file a cross-objection to the extent the decree stands in his favour, but if he

intends to assail any part of the decree, it is obligatory on his part to file the cross- objection. In Banarsi and others v. Ram Phal (supra), it has been

observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein. Category No. 1 deals with the

impugned decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed

that in such a case, it is necessary for the respondent to file an appeal or take cross -objection against that part of the decree which is against him if he

seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-objection. In respect

of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree

entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him,

in the pre-amendment stage, he could not take any cross-objection as he was not a person aggrieved by the decree. But post-amendment, read in the

light of explanation to sub-rule (1), though it is still not necessary for the respondent to take any cross- objection laying challenge to any finding

adverse to him as the decree is entirely in his favour, yet he may support the decree without cross- objection. It gives him the right to take cross-

objection to a finding recorded against him either while answering an issue or while dealing with an issue. It is apt to note that after the amendment in

the Code, if the appeal stands withdrawn or dismissed for default, the cross-objection taken to a finding by the respondent would still be adjudicated

upon on merits which remedy was not available to the respondent under the unamended Code.â€​

What therefore follows from the above decision is that the amendment of Order 41 Rule 22 in the year 1976 is clarificatory and it envisages three

situations or category of cases. The first category deals with a decree, which is partly in favour of the appellant and partly in favour of the respondent.

In such case, it is necessary for the respondent to file an appeal or to take a cross objection against that part of the decree, which is against him, if he

seeks to get rid of that part of the decree, though he is entitled to support the part of the decree which is in his favour without taking any cross

objection. The second category deals with a decree which is entirely in favour of the respondent, though an issue had been decided against him. The

third category deals with the decree which was entirely in favour of the respondent, where all the issues had been answered in his favour, but there

was a finding which goes against him. So far the second and third category of decree is concerned, it is not necessary for the respondents to take any

cross objection to challenge such finding adverse to him, as the decree is entirely in his favour. However, the respondent has an option to file cross

objection and sicne filing of cross objection in the second and third category is optional, there is no bar on the part of the respondent to challenge any

finding in respect of any issues or any finding therein against him.

In the instant case, learned Trial Court decided all the issues in favour of the plaintiffs and decreed the suit in entirety. However, while passing the

decree, the original court did not grant the relief of cancellation of sale deeds, though the plaintiffs specifically prayed for cancellation of the sale

deeds. It is submitted by the learned counsel for the appellant, that no issue was framed with regard to cancellation of sale deed No. 1281 & 1282 and

no finding was also recorded by the learned Trial Court and therefore, learned Civil Judge traveled beyond its jurisdiction by granting such relief of

cancellation of the sale deeds by way of modification of the decree.

It is settled position of law that failure to frame issue is not fatal, if the party led evidence being conscious to the point in controversy. When the

party went on trial being fully aware of the rival cases and also led all evidence, it cannot be said that absence of a specific issue is fatal to the case or

that there occurs any prejudice. Evidently, pleaded case of the plaintiffs was that the sale deeds were executed by the defendants No. 1 to 3 in favour

of the defendants No. 4 to 7 without any right, title and interest and plaintiffs also prayed for relief for cancellation of those sale deed. It is no doubt

true, that no specific issue as to the validity of the sale deeds was framed. However, while discussing the issue pertaining to right, title and interest of

the party, learned Munsiff thoroughly discussed about the sale deed and right and title of the vendor to execute such sale deeds and having discussed

the evidence adduced by the parties, both oral and documentary, the learned Trial Court came to the finding, that the defendants No. 1, 2 & 3 did not

have right to transfer the land by way of sale. However, while passing the decree inspite of specific prayer made by the plaintiff in the plaint for

cancellation of the sale deeds, no relief was granted to that effect. Learned appellate court having taken note of all those evidences and pleading of

the parties, modified and molded the decree and granted the relief of cancellation of the sale deeds in question.

Order 41 Rule 33 empowers the appellate court wide power to modify/mold or interfere with the decree of the lower court in the interest of

justice. If the appellate court finds that molding of the decree or interference with the decree of the trial court is necessary to do justice to the parties,

the appellate court is empowered to mold and modify the decree in appropriate cases for doing justice to the parties. When the appellate court is

vested with the power to modify or interfere with the decree for doing justice to the parties, such modification and molding of the decree cannot be

faulted only because of absence of cross objection, unless the respondent is under any obligation as per provision of law to take a cross objection on

the facts and circumstances of the case.

The point, therefore, needs to be considered in the instant case is whether in the facts and circumstances of the case, it was obligatory on the part

of the respondent/plaintiffs to take a cross objection or to file a cross appeal. Admittedly, learned Munsiff decreed the suit of the plaintiffs in entirety

and all the issues were also decided in favour of the plaintiffs and there was also no adverse finding in the decree against the plaintiffs. However,

learned Munsiff while passing the decree, the relief of cancellation of the sale deeds though, sought for by the plaintiffs, was not included in the decree

or such relief was missed out. The suit having been decreed in entirety in favour of the plaintiffs and all the issues having decided in favour of the

plaintiffs and no adverse finding having been recorded by the learned Trial Court against the plaintiffs, there was no scope or necessity on the part of

the plaintiffs/respondents to take any cross objection against the decree.

Though, no issue on the point of cancellation of the sale deeds was framed by the learned Trial Court, the issue in controversy with regard to

cancellation of sale deed was within the knowledge of both the parties and in fact, both the parties had adduced evidence and the learned Trial Court

also recorded findings that the defendants No. 1, 2 & 3 did not have the right to alienate the suit property and inspite of all those findings, when the

learned Trial Court missed out a vital relief, which ought to have been granted on the facts and circumstances of the case, learned appellate court, in

my considered view, has not committed any irregularity by molding and modifying the decree and granting the relief of cancellation of sale deeds No.

1281 & 1282, for doing justice, reason being that, such relief was neither contrary to pleading nor dehorse evidence. The appellate court was very

much within its jurisdiction and power to mold the decree for doing justice to the parties in view of Order 41 Rule 33 of the CPC. Since filing of cross

objection/cross appeal was not obligatory on the part of the plaintiffs in the instant case and the learned appellate court was very much empowered to

mold and modify the decree in the facts and circumstances of the case, the appellate judgment modifying the decree to the extent as indicated above

has not suffered from any illegality or irregularity.

For the reasons stated above, the substantial question of law is answered in negative and decided in favour of the respondents/plaintiffs. In view of

the finding on the substantial question of law, I find the appeal to be without merit and accordingly dismissed. No cost.

Send down the LCR.