Bhubindra Narayan Bhattachariya vs Mt. Tarupriya Debya and Others

Ram Labhaya, J.—The suit out of which this appeal arises was for a declaration, first, of right and title to and confirmation of possession of 40 bighas of land covered by thirty year B. K. patta No. 8 of village Barmakhibaha, Mouza Tihu and secondly, that defendant 1 had acquired no right, title and interest in respect of the land in suit by the auction sale of the land in her favour held in execution of her mortgage decree against Dharmanath, defendant.

The suit was decreed in the Court of the learned Additional Munsiff of Gauhati. On appeal the decree of the trial Court was reversed by the learned Additional Judge, A. V. D., and the suit dismissed.

Defendant 2 has appealed, plaintiff respondent, whose suit has been dismissed, has filed cross objections. The learned Counsel for Mt. Tarupriya Debya, defendant, respondent, has raised a preliminary objection. He urges that both the appeal and the cross-objections are not competent. The appellant has no right of appeal as the suit was dismissed, and plaintiff-respondent has got no right to file cross-objections against a co-respondent when ho is not seeking any relief against the appellant.

The relevant facts are as follows : Three brothers, namely, Madhanath, Prananath and Chandranath jointly owned land measuring 835B 12 L. of N. K. patta No. 2/33. Prananath died leaving a son Kanunath. The land was partitioned between the two brothers and their nephew Kanunath. An area measuring 278 B. 1 K. 171/3 L. fell to the share of Chandranath. He had two sons, Dharmanath and Anantanath. This Anantanath is the plaintiff in the case.

On 23rd March 1919, Dharmanath, son of Chandranath, Kanunath, son of prananath and Madhu, son of Madhunath, sold 168-B. of land to one Kameswar. Each of the three purported to sell 56 bighas. Dharmnath''s brother Ananta was a minor at the time of sale. Kameswar, the vendee, discovered this fact after the sale. He prevailed upon Dharmanath to execute a fresh deed of sale by which the entire 66 bighas of land were conveyed to Kameswar from the share of Dharmanath alone. Kameswar evidently took this step to protect himself against any future attack from the minor. He later brought a suit for a declaration of his right to the entire land purchased by him, viz., 168 bighas from the three vendors. His suit was decreed. On 3rd April 1923, he obtained a separate patta for this land. At that time patta No. 8 covering art area of 220-B. 1 K. 17� L. (which increased to 223.B. 1K. 17� L. in 1923-28 Resettlement Operation) was issued in the name of Dharmanath and Anantanath.

The result of the sale to Kameswar was that the share of Dharmanath was reduced by 66 bighas. The share of Anantanath remained in tact.

On 2nd June 1924 Dharmanath mortgaged 40 bighas of land to Bhubindra Narayan Bhattacharyya, defendant 2. On the same day he mortgaged 48 bighas to Mt. Tarupriya Debya, defendant 1.

The family, consisting of the two brothers Dharmanath and Anantanath, owed some money to the Kamrup Land Mortgage Bank, Ltd., and also to one Lalit Chandra Dutta. To pay off these debts, they sold an area of 86-B. 1 K. 8 L. of land to Lalit Chandra Dutta on 26th June 1933. Lalit got a separate patta (NO. 17) for the area sold to him. The share of Dharmanath was reduced by another 43 bighas. The area left with him after the sale came to 40-B. 1 K. 17 L., while Anantanath owned 96-B. 19 L, of land in Patta. NO. 8.

On 25th April 1935, Anantanath got his name mutated with respect to 96-B. 19 L. of patta NO. 8. It was alleged in the plaint by Anantanath that as a result of the partition, Dharmanath got certain area in specified dags.

On 13th May 1936, Dharmanath sold to. Bhubindra Narayan, defendant 2, 40 bighas of land from patta No. 8 in consideration of the mortgage debt which had been incurred by him. on 2nd June 1924. The vendee got a separate. patta (NO. 19) issued in his name in respect of the area sold to him on 30th August 1939..

Mt, Tarupriya, the other mortgagee from Dharmanath, instituted a suit for sale of the mortgaged property on the basis of the mortgage of 2nd June 1924. Dharmanath was the sole defendant in the case. The suit was decreed on 31st March 1936. She then had the property sold. It was purchased by her at the auction sale on 19th August 1937. Symbolical possession was delivered to her on 22nd July 1938.

Mt. Tarupriya, defendant 1, applied for mutation in her favour on the basis of the auction sale. Her application was rejected. She appealed. The Deputy Commissioner allowed her appeal without annulling the patta in favour of defendant 2. The order was upheld by the Revenue Tribunal.

Plaintiff, Anantanath, feeling aggrieved by the order of the Revenue Tribunal, has instituted this suit. His case in short was that Dharmanuth had sold 56 bighas of land to Kameswar, 43 bighas to Lalit Chandra Dutta and 40 bighas to defendant 2. The last sale was on 13th May 1935. On this date his share in the land of patta NO. 8 was reduced to 1 K. 17� L. in dag No. 567. The rest belonged to the plaintiff. The sale in execution of the decree of defendant 1 came in 1937 when Dharmanath owned only an area measuring 1 K. 17� L. He, therefore, asked for a declaration that the sale in her favour was invalid and inoperative. It is noteworthy that he admitted that the private Bale in favour of Bhubindra Narayan, defendant 2, was valid and binding. The relief was claimed only against defendant 1, the sale in whose favour was the latest in point of time. Defendant 2 was impleaded only as a pro forma defendant. No relief was asked for against him. He, in turn, fully supported the plaintiff.

Defendant 1 was the only contesting defendant. Her case was that the sale in favour of Kameswar was not from the share of Dharmanath alone. The sale in favour of Lalit was collusive and fraudulent and the sale in favour of defendant 2 was hit by the doctrine of lis pendens. In consequence, she contended that defendant Dharmanath was the owner of the land sold at her instance and purchased by her. There were other defences raised but we are not concerned with them at this stage of the litigation.

The two issues relevant to the question now before us were as follows:

Issue No. 5; Whether the alleged sale in favour of one Kameswar Chakravarty was only from the share of Dharmanath alone as alleged in the plaint ?

Issue No. 6 : Whether the alleged sale in favour of Lalit Chandra Dutta and defendant 2, Bhubindra Bhattachariya are legally operative and binding on defendant ?

The suit was dismissed (?)in the trial Court. The learned Munsiff found in favour of the plaintiff on both the issues (5 & 6). His finding was that the sale to Kameswar was undoubtedly from the share of Dharmanath and the sales in favour of Lalit and Bhubindra were both valid and binding and on the date of the auction sale in favour of defendant 1 Dharmanath was only entitled to about 1 K. 17� L. He, therefore, granted plaintiff the declaration that he bad prayed for against defendant 1. She appealed.

The learned Additional Judge allowed the appeal. He agreed with the trial Court that the sale in favour of Kameswar was from the share of Dharmanath alone. He further agreed with the view that the sale in favour of Lalit was valid and binding. But as regards the sale in favour of defendant 2 (Bhubindra) his finding was that it was hit by the doctrine of Us pendens and was, therefore, subject to the title of defendant 1, which she acquired by her sale in execution of her mortgage decree. It will be observed that the sales in favour of Lalit and defendant 2 had been directly challenged by defendant 1, and they formed the subject-matter of Issue 6 reproduced above.

It is clear that plaintiff could get the relief asked for if the sale in favour of defendant 2 as also the previous sales by Dharmanath from his share had been held to be valid and binding on defendant 1. She was stoutly resisting this claim. Defendant 2 in his own interest supported the plaintiff though arrayed on the same side with defendant 1. The legal effect of the sale in his favour was a matter which was in controversy between the two defeadants. This controversy had to be resolved before plaintiff could get the relief be had prayed for. In fact, the sale to defendant 2 was admitted as valid in the plaint. Defendant 1 contested its validity to the extent that it prejudiced her rights. The matter thus was directly and substantially in issue. It was also beard and finally decided. Defendant 2 was a necessary or at least a proper party to the suit. The appellate decree dismissing the suit rests on the landing that the sale to defendant 2 and the partition between plaintiff and his brother both came during the pendency of the mortgage suit instituted by defendant 1 and therefore could not affect the result of that litigation.

In spite of the fact that the suit has been dismissed and the decree in terms does not embody the finding adverse to defendant 2, he has appealed. The decree merely dismisses the suit. The finding adverse to defendant 2 though not incorporated in the decree, forms the basis of the decree undeniably. The question is whether defendant 2 has, in these circumstances, the right of appeal from the decree.

The question is by no means easy as there is considerable conflict of judicial authority on the point.

It is well settled that under certain circumstances decision of issues between co-defendants even though not incorporated in the decree, may operate as res judicata. Section 11, Code of Civil Procedure., provides that no Court shall try any suit or issue in which the matter was directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, if other conditions of Section 11 are satisfied. It is clear that an issue between the same parties as distinguished from a suit when directly and substantially in issue shall operate as res judicata if it was heard and finally decided. The conditions necessary for a finding to operate as res judicata between co-defendants are that there should be a conflict of interest between co-defendants and that it should be necessary to resolve the conflict in order to give relief to the plaintiff. The conflict or the issue must have been finally decided and the co-defendants must have been either necessary or at least proper parties in the former suit. All these conditions are fulfilled in present case. The issue as to the sale in defendant''s favour arose between plaintiff and defendant 1. Plaintiff accepted the validity of the sale in defendant''s favour. Both plaintiff and defendant 2 were ranged against defendant 1 so far as this issue was concerned. It is obvious that it was heard and finally decided and its decision was necessary for the disposal of the plaintiff''s suit, defendant 1 was necessary party and defendent 2 was at least a proper party if not a necessary one. The finding on the issue, therefore, must operate as res judicata against defendant 2 in any subsequent litigation between defendant 1 and defendant 2.

The authority on the proposition that in the circumstances stated above an issue would operate as res judicata between co-defendants is voluminous with a strikingly large consensus of legal opinion. There is no trace of any serious conflict. Mr. Ghose has not questioned this proposition; he has merely argued that even if the finding against defendant 2 is res judicata, ho has no right of appeal as the finding is not incorporated in the decree. In these circumstances I shall refer only to AIR 1931 231 (Privy Council) in support of the proposition.

Section 96, Code of Civil Procedure. allows appeals from decrees. ''Decree'' means a formal expression of an adjudication which so far as the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. As stated above the contention of Mr. Ghose is that a mere finding not incorporated in the decree gives no right of appeal. In the circumstances of this case I have come to the conclusion that the finding on Issue 6, so far as defendant 2 is concerned, will operate as res judicata in any subsequent litigation between him and defendant 1. If he is denied the right of appeal, it would be a case of manifest injustice. Mr. Ghose, however, relies on Niamut Khan v. Phadu Buldia 6 cal. 319 : (7 C. L. R. 227) a Full Bench decision, He points out, relying on this Full Bench decision, that the defendant could have the finding incorporated in the decree before appealing and if he has failed to take the necessary steps for being able to appeal, he cannot complain of any injustice. In this Full Bench case, plaintiff had prayed for the enhancement of rent. The plea was that the rent was not enhanceable. It was held that the defendant was precluded from denying that the rent of the tenure was enhanceable by reason of the fact that the question had been decided in a former litigation between the parties. The former suit was also for enhancement of rent. The defences raised were that no notice of enhancement had been given and that the rent was not enhanceable. The suit was dismissed on the ground that no notice had been given. But the Munsiff had stated in the judgment that he considered the rent enhanceable. He did not believe in the genuineness of the documentary evidence produced by the defendant. The decree merely ordered that the suit should be dismissed. The finding that the rent was liable to be enhanced was not embodied in the decree. The learned Judges held that though defendant had no right of appeal against the finding by reason of its absence from the decree, it would still operate as res judicata. They observed that

the material findings in each case should be embodied in the decree and if they are not, it is incumbent on the parties to avoid their being bound by decision against which they have no right of appeal, to apply to have the decree amended so that it may be in accordance with the judgment.

Though the dispute in this case was not between co-defendants, the decision in the case does support Mr. Ghose''s contention to this extent that if a finding is not incorporated in the decree, there is no right of appeal against it in a defendant against whom the suit is dismissed. It is, however, worthy of note that the finding that rent was liable to enhancement did not form the basis of the decree It was also not necessary for the decision of the plaintiff''s case and these are features which distinguish this decision from the present case.

The next Calcutta case which bears on the point is Krishna Chandra v. Mohesh Chandra 9 C. W. N. 584. This has been relied on by the learned Counsel for the respondent. In this case Woodroffe J. held

on a review of the authorities that a defendant has the right to appeal notwithstanding that the suit has been dismissed as against him, if he is aggrieved by the decree.

He further held

that the question whether a party is aggrieved by a decree is a question of fact to be determined in each case according to its peculiar circumstances.

The suit before him was for recovery of rent which had fallen in arrears. It was instituted against 5 defendants. The first 3 defendants were described as tenant-defendants. The holding of which they were alleged to be tenants was put up for sale at the instance on defendant 5. Defendant 4 was the auction-purchaser of the holding and was alleged to have purchased it on behalf of and as benamidar of the first 3 defendants. A decree for rent was prayed for against the first 3 tenant-defendants. These defendants denied that they had any concern with the land or that defendant 4 was their benamidar. Defendant 4 supported them. He alleged that, he was the sole owner of the tenancy rights and the real tenant. He denied that any rent was due to the plaintiffs.

Plaintiffs had not asked for any relief against defendant 4 Their case was that he was a mere benamidar. An ex parte decree was passed against the first 3 defendants. Defendant 4 applied to have the ex parts decree set aside and also the sale held thereunder which was alleged to have taken place after fraudulent suppression of the sale proclamation. The suit was restored and the sale was set aside. The learned Munsiff found that the tenant-defendants had no connection with the jumma in suit and that defendant 4 was not their benamidar. He, therefore, decreed the claim against defendant 4 and dismissed it against the first 3 defendants.

The plaintiffs appealed from the decree contending that the first 3 defendants and not defendant 4 were their tenants. The learned District Judge in appeal held that defendant 4 had nothing to do with the case. He, therefore, set aside all previous orders obtained by defendant 4. The result was that the ex parte decree was restored. It was argued in the High Court that as the effect of the ex parte decree which had been restored was to dismiss the suit against the appellant (defendant 4), he could not appeal against the decree which was in his favour. The learned Judge referring to Jamna Singh v. Kamarunnissa 3 ALL. 152 166 167 observed that

it may reasonably be assumed that any party to the suit in which a decree is passed may, if he is dissatisfied with it, appeal from it.

The Code does not expressly say by whom an appeal may be preferred. He, however, inferred from the language of Section 577. Code of Civil Procedure. of 1882, which corresponds to Order 41, Rule 82 of the Code of 1908, that parties who are allowed to appeal are those who may desire that a decree should be varied or reversed. The test for determing whether there was a right of appeal that found favour with him was the common sense consideration that ''there can be no appeal when there is nothing to appeal about.'' It follows from this that only those parties who are adversely effected by the decree may appeal. Applying the test, he proceeded to observe that "In some cases a suit may be dismissed as against the defendant and yet the latter may have a right of appeal." The ratio for this view was that

it is not because the suit is formally dismissed as against the defendant that no appeal lies but because such dismissal is ordinarily not merely no grievance but an actual benefit to the defendant. In such cases there would be nothing to complain of. But inhere is something to complain of then notwithstanding that the suit is dismissed against him he may appeal.

If the decree was apparently favourable to the defendant but was really unfavourable when seen in the light of the record and could prove injurious to "him, then the defendant would be aggrieved and could appeal. Whether a party is aggrieved by such a decree is a matter to be decided on the facts of each case, The earlier Full Bench case Niamut Khan v. Phadu Buldia 6 cal. 319 : (7 C. L. R. 227 was not referred to or discussed. The decisions in these two Calcutta oases are not reconcilable.

The view of the Full Bench of the Calcutta High Court as expressed in Niamut Khan v. Phadu Buldia 6 Cal. 319 : (7 C. L. R. 227) was followed by the majority of the Court composing a Full Bench of the Allahabad High Court in Jamait Unnissa v. Lutfunnisa 7 ALL. 606 (F. B.). Oldfield and Mahmood JJ., dissented from this view.

Oldfield J., was of the view that the decree to agree with the judgment, should contain the material points for determination arising out of the claim and material for the decision thereon and if this has not been done, the defect is a good ground of appeal notwithstanding that the decree, on its face, may be altogether in favour of the appellant and notwithstanding that he may not have applied for amendment of the decree or for review of judgment.

Mahmood J. agreeing in the conclusion arrived at by Oldfield J., held that the finding of the first Court on the validity or otherwise of the deed in question in that suit was not a mere obiter dictum but was binding upon the defendant as res judicata notwithstanding the fact that the suit against her was dismissed on another ground:

that whatever has the force of res judicata is necessarily appealable and that the word "from" as used in Section 540 (now Section 96, Code of Civil Procedure.) and the expression "objection to the decree" in Section 561, Code of Civil Procedure. of 1882 (which corresponds to Order 41, Rule 22) refer not only to matters existing on the face of the decree but also to those which should have existed but do not exist there; and that the defendant in the present case was aggrieved or injured by the omission in the decree of the first Court, and therefore, entitled to file objections to it, and, for the same reason, to appeal to the High Court.

The learned Judge was definitely of the view that failure on the part of the defendant to have the decree amended did not make her incapable of obtaining the same result by the exercise of her right of appeal.

It will be observed that the view so forcefully and lucidly expressed by Mahmood J., is completely in accord with the view expressed by Woodroffe J., in Krishna Chandra v. Mohesh Chandra 9 C. W. N. 584.

In Jamna Das v. Udey Bam 21 ALL. 117:(1898 A. W. N. 201) plaintiffs sued as second assignees of a debt for its recovery and impleaded other assignees, the original debtors, and certain persons whom they alleged to have been prior assignees of the debt, but whose assignment, according to them, had become void through non-fulfilment of the conditions upon which it was made. They got a decree against the original debtors. An appeal by the first assignees was dismissed on the ground that there was no decree against them. On second appeal, it was held that the appeal would lie inasmuch as the decree, though not a decree against the appellants, necessarily implied a finding that the assignment to the appellants, upon the basis of which they resisted the plaintiffs'' claim had become void.

The learned Judges of the Division Bench in this case did not agree with the contention that it was necessary for the appellants to procure an entry in the decree of the finding that the assignment in their favour had become void as the decree as it stood necessarily implied a finding to that effect.

The decision of the Full Bench case reported in Jamait Unnissa v. Lutfunnissa 7 ALL. 606 (FB) was not referred to though the view taken in the case is in consonance with the rule enunciated by Mahmood J., in his judgment by which he dissented from the majority of the learned Judges composing the Court.

There are two more case3 from the Allahabad High Court which have been brought to our notice in the course of the argument. These are Nirmal Singh Vs. Zamir Uddin Khan and Others, and Nirmal Singh Vs. Zamir Uddin Khan and Others, The last case was relied on by the learned Counsel for the respondent.

In Nirmal Singh Vs. Zamir Uddin Khan and Others, Allsop J., relied on Jamna Das v. Udey Ram 21 ALL. 117 : (1898 A. W. N. 201) and held that a vendor who was the pro forma defendant in the suit was aggrieved by the decree 6ven though the suit had been dismissed. The suit was for the recovery of arrears of rent by a person who claimed to be the proprietor on the basis of a sale in his favour by the pro forma defendant. The tenants pleaded that they were themselves the proprietors. The suit was dismissed on the finding that the tenants were proprietors. The plaintiff did not appeal. The pro forma defendant was allowed to appeal though the suit was dismissed. The basis of the decision was that the finding between co-tenants might operate as res judicata. As a result the case was remanded to the lower appellate Court for disposal of the appeal on merits. This was a decision in second Appeal NO. 1021 of 1933 decided on 27th August 1935, from the decision of the District Judge of Bareilly dated 5th April 1933. The same case came up before a Division Bench of the Court in December 1936. The decision is reported in Nirmal Singh v. Zamiruddin A.I.R.1937 ALL. 868 : (169 I. C. 395). The learned Judges held that the pro forma defendant had no right of appeal. They however, based their conclusion on the view that the finding adverse to the appellant will not operate as res judicata between him and the co-defendant as they were arrayed on the same side. This decision has been relied on by the learned Counsel for the respondent. It obviously does not help him for the ratio decidendi in the case was that the decision in the case would not operate as res judicata in any subsequent litigation. If this conclusion could be arrived at in a case, there would be no right of appeal in the defendant against whom the suit has been dismissed. The ratio adopted would also show that the view that prevailed with the learned Judges was not in consonance with the rule enunciated by the majority of the Judges in the Full Bench decision of the Allahabad High Court reported in Jamait Ummissa v. Lutfunnissa 7 ALL. 606 (F. B.).

In Madras the view expressed by Woodroffe J., in Krishna Chandra v. Mohesh Chandra 9 C. W. N. 581 has been consistently followed. In Yusuf Sahib v. Durgi 30 Mad. 447 : (17 M. L. J. 260), one Yusuf obtained an ex parte money decree against Timma as yeiman of an Aliyasantana family. Timma sued the other members of the family for a declaration that the family property was liable for the payment of certain debts incurred by him including that due to Yusuf for which an ex parte decree had been passed against him Yusuf and other creditors were parties to the suit. The suit was dismissed. After this, on, the basis of the ex parte decree in his favour Yusuf attached certain immovable property of the family in execution of his decree against Timma The other members of the family objected to the attachment. The objection petition was dismissed. They then instituted a declaratory suit both against Yusuf and Timma for a declaration that the attached property was not liable to be Bold in execution of the decree against Timma. The Courts below decreed the suit holding that Yusuf was bound by the decree in the declaratory suit instituted by Timma. Yusuf appealed. It was held that the decision in the previous declaratory suit in which Timma was the plaintiff was on a matter raised and actively contested between co-defendants and operated as res judicata in the subsequent suit in which such co-defendants were arrayed as plaintiff and defendant. It was further held that where a decision dismissing a suit is in fact wholly against the defendant, such defendant can appeal against it. In coming to this conclusion the learned Judges observed as follows:

We are inclined to take the view of Woodroffe J., in Krishna Chandra v. Mohish Chandra 9 C. W. N. 584 and to hold that Yusuf had a right to appeal, the decree dismissing the suit being so far as he was concerned wholly against him except in regard to the immaterial question of costs.

In Venkates Warlu v. B. Lingayya AIR 1924 Mad. C89 : (47 Mad. 633) Kumaraswami Sastri, J., following Krishna Chandra v. Mohish Chandra 9 C. W. N. 584 and Yusuf Sahib v. Durgi 30 Mad. 447 : (17 M. L. J. 260) held

that where the point adversely decided to the defendant is correctly and substantially in issue and where in other proceedings the matter would be res judicata, it would be contrary to all principles of justice and equity to hold that he is precluded from agitating the matter in appeal merely because the suit was decided in his favour on some other ground.

In Raghava Aiyengar v. Irula Thevan AIR 1926 Mad. 974: (97 I. C. 346) Krishan, J. following Venkateswarlu v. B. Lingayya A.I.R.1924 Mad. 689; (47 Mad. 683) held that though the decree was formally in favour of the mortgagors there were findings against, their contentions on which the Court acted when dismissing the plaintiff''s suit and therefore they had a right of appeal.

In Tansukh Rai and Others Vs. Gopal Mahto and Others, , a Division Bench of the Patna High Court expressed the view that there was no right of appeal to a party against a finding which is against him when the decree is not based on it and the decree is in his favour.

It is clear that even according to this view a party will have the right of appeal if the adverse finding forms the basis of the decree even though the decree may be in his favour.

It is fairly obvious from a review of the authorities considered above that the weight of all recent authority is in favour of the view expressed in Krishna Chandra v. Mohesh chandra 9 0. W. N. 584. The Full Bench case of the Calcutta High Court reported in Niamut Khan v. Phardu Buldia 6 Cal. 319: (7 C. L. R. 227) was decided in 1880. It was followed by the majority of the learned Judges composing the Full Bench in Jamait Unnisa v. Lutfunnissa. 7 ALL. 606 (F. B.) in 1885. Since then these Full Bench decisions have not been referred to or relied on in recent cases consider. ed above and the view that has prevailed is that notwithstanding that a suit has been dismissed against a defendant, he has the right on appeal if he is aggrieved by the decree. The question whether he is aggrieved by the decree is a question of fact to be determined in each case according to its peculiar circumstances. In order to find out whether a defendant is aggrieved by a decree dismissing the suit against him, it is not merely the form but the substance of the decree and the judgment that should be looked into. When the point adversely decided to such a defendant is directly and substantially in issue and where it will operate as res judicata in subsequent proceedings, the defendant should have the right of appeal against the decree though the particular finding is not embodied or incorporated in the decree. This is in accord with the dictum of Savigny that

everything that should have the" authority of ret judicata is, and ought to be, subject, to appeal, and reciprocally an appeal is not admissible on any point not having the authority of res judicata.

Following the rule stated above I come to the conclusion that the defendant-appellant should not be denied the right of appeal in this case. The finding on issue No. 6 was necessary for the decision of the case as set up by the plaintiff. The matter was in issue between the plaintiff and defendant 2, on one side and defendant 1 on the other. It will operate as res judicata in any subsequent litigation between the defendants. Even though it is not incorporated in the decree, the right of appeal against it exists in defendant 2. The grounds of appeal are mainly directed against this finding though the relief which the appellant seeks is not expressly stated. His learned Counsel would have been content if it could have been held that the fiinding on Issue No. 6 would not have the authority of res judicata in any subsequent litigation but this is not possible. In my opinion, the appeal, therefore, should be heard and disposed of on merits.

The preliminary objection is directed also against cross objections put in by the plaintiff whose suit has been dismissed. The only point raised in the cross objections is that the decree of the lower appellate Court has not been correctly drawn up inasmuch as plaintiff-respondent though held entitled to 96 B. 19 L. from the land of patta No. 8 this finding or conclusion was not incorporated in the decree. It is clear that all that the plaintiff seeks to achieve by his cross objections is a declaration that he is entitled to his 96 B. 19 L. His position in the plaint was somewhat different. He then wanted a declaration that the sale in favour of defendant 1 was ineffectual and inoperative. He now apparently does not press that position and leaves the controversial issue for contest between the co-defendants. His appeal therefore is not directed against the co-respondent alone. It is directed equally against the appellant.

The preliminary objection raised by Mr. Ghose, therefore, ought not to prevail. The general rule which has prevailed in the High Courts of Allahabad, Bombay, Calcutta and Patna and the Judicial Commissioner''s Courts of Upper Burma and Peshawar is that the right of respondent to urge cross objections should be limited to his urging them against the appellant and it is only by way of exception to this general rule that one respondent may urge cross-objections as against the other respondents. Following this view a Division Bench of the Lahore High Court held in AIR 1944 433 (Lahore) that a respondent cannot file cross-objections against a co-respondent when he has not appealed from the decree and the cross-objections do not in any way affect the appellant. I am in respectful agreement with this view.

In this case, considering the relief asked for in cross objections, it cannot be said that the cross-objections do not affect the appellant. In fact, if the relief asked for is allowed, to plaintiff, respondent either the appellant or the defendant-respondent may be affected. The plaintiff in merely asking for a declaration of title with respect to 96 bighas in his favour is leaving the co-defendants to fight out their own battle between themselves. the cross-objections cannot be regarded as directed solely against a co-respondent and would not be incompetent, therefor.

My conclusion, therefore, is that both the appeal and the cross-objections should be disposed of on the merits. The preliminary objection raised by Mr. Ghose is overruled.

The appeal by defendant 2 is directed against the finding that the sale in his favour was made during the pendency of the mortgage suit instituted by defendant 1 and is therefore hit by the rule of lis pendens embodied in Section 52, T. P. Act. The effect of the operation of the rule obviously is that rights acquired by defendant 2 by the decree in her favour and the subsequent auction sale in execution would not be affected by the sale. The learned Counsel for defendant-appellant urges that Section 52 would not apply inasmuch as the immovable property which formed the subject-matter of the suit was not properly or adequately described. We do not think there is any force in this contention.

Dharmanath had mortgaged 40 bighas out of his share to defendant 1. The suit was for sale of the mortgaged property and 40 bighas out of the share of Dharmanath from the lands of patta No. 8 were sold in execution of the mortgage decree in favour of defendant 1. There can thus be no dispute about the identity of the property sold. The sale in favour of defendant 1 is of specified land from the lands of patta NO. 8.

The two sales cannot stand together and cannot be given effect to fully. There is an essential conflict between the two. In these circumstances the sale in favour of defendant 2 could not affect the rights acquired by defendant 1 in the litigation which culminated in the sale of the property in her favour.

The learned Counsel next "pointed out that Section 62 creates a prohibition against transfers of property with respect to which any right is directly and specifically in question. He contended that a partition would not be such a transfer and, therefore, the partition of land between the plaintiff and Dharmanath would not be within the mischief of the section. The learned Counsel has not produced any authority in support of this proposition, and we do not think his reading of the section is correct. The section prevents not merely the transfer of immovable property when any right to it is directly and specifically in question but it also prevents dealing with the property otherwise. Partitioning the property is certainly dealing with it. A partition may or may not be regarded as a transfer. It does, however, alter the mode of enjoyment of the property and can produce a result very similar to transfer in certain cases. In any case the language of the section is wide enough to cover a partition. The learned Second Additional Judge was perfectly correct in the view that both the partition between plaintiff and Dbarmanath and the sale in favour of the appellant could have no adverse effect on the result of the litigation in favour of defendant 1. The learned Counsel has not cited any authority in supports of the proposition that Section 52 does not cover partitions. On the other hand, the interpretation we have placed on Section 52 receives support from Ishwar Lingo Desai v. Dattu Gopal 87 Bom. 427 : (19 I. C. 885). The learned Counsel, therefore, cannot urge that partition would bind defendant 1 and thus enable Dharmanath to dispose of specified dags out of the lands of patta NO. 8 to defendant 2 during the pendency of her mortgage suit.

The last point taken up by the learned Counsel was that the finding that the sale in favour of defendant 2 (appellant) was in contravention of the provisions of 8. 52 is likely to prejudice his rights even on the basis of his mortgage which was created in 1924. We think these fears are absolutely groundless. All that the Courts below have decided was that Dharmanath sold 43 bighas of land to Lalit Chandra. On that date he admittedly owned more than 43 bighas though perhaps the entire area then owned by him was subject to encumbrances. He had mortgaged 40 bighas to defendant 1 and 48 defendant 2 in 1924. On the date of sale to Lalit, he certainly owned in excess of what he was selling but he could sell only his rights in that area. After the sale to Lalit he was still the owner of 40);. 1K. 17� L. The total area before the sale that he owned was 83B. 2K. 11�L, The mortgages covered 88 bighas. The area thus sold was encumbered but all questions which may arise between defendants 1 and 2, the mortgagees on one side and Lalit on the other or between the two mortgagees do not arise in this case. They have not boon raised either by the plaintiff or by defendant 1; nor have they been heard and decided. The fears of the learned Counsel in this respect are absolutely unfounded. The finding against defendant 1 is limited to the sale transaction in his favour and that transaction too is affected by the finding only to the extent to which it militates against the rights of defendant 1 which she acquired in pursuance of her mortgage decree.

The appeal for the reasons given above must fail. The cross-objections can meet with no better fate. The relief claimed now is that it be declared that plaintiff was the owner of 96B. 19L., from the land of periodic patta No. 8. It is pointed out that the learned Second Additional Judge came to that conclusion and it was necessary that this finding should have been incorporated in the decree. We do not think this prayer can be granted. The relief originally claimed by the plaintiff was that he was the exclusive owner of certain specified dags and that the auction sale in favour of defendant 1 was inoperative and unenforceable except to the extent of a small area in one specified dag. He now wants a declaration to the effect that he is entitled to an unspecified area measuring 96B. 19L., out of the entire lands of the patta. The relief now claimed is entirely different and even in excess of that claimed in the plaint.

We do not think that the plaintiff is entitled to have the declaration of ownership with respect to 98B. 19L., incorporated in the decree in this case. So far as the relief claimed in the plaint is concerned, he is obviously not entitled to it. The cross-objections too, therefore, must be disallowed.

The parties have been left to bear their own costs in the Courts below. But defendant-respondent shall recover her costs in this Court from the appellant as well as the plaintiff whose cross-objections have been disallowed.

Thadani, C. J.

I agree that the appeal and cross-objections should be dismissed, but would refrain from expressing my view as to whether the appeal is competent, as it is not necessary, for the purposes of our decision.

For the same reason, it is not necessary to express my opinion as to whether the decision on issue 6 would operate as res judicata between defendants 1 and 2 in a suit should one be brought by one against the other defendant.