Govinda Iyer vs Kumar and Others

This petition has been filed by the 8th respondent in the appeal to transpose him as the 3rd appellant in the second appeal.

Plaintiffs 3 and 4 in O. S. 545 of 19M on the file of the District Munsif, Salem, are the appellants in the second appeal. The father of the

appellants herein as the sole plaintiff filed the suit for partition and separate possession of his one-third share in the suit properties. His case was

that his grandfather Rajulier and his wife Kasturi Bai Ammal had executed a settlement deed Ex. Bi dated 1-3-1937, that as per that settlement, he

is entitled to a third share in the suit properties, that Rajulier and his wife had executed another settlement deed, Ex. B11, dated 12-5-1944 giving

the suit properties not only to the sons of the first wife of his father, Krishna Iyer, but also to the children of his second wife, the first defendant that

Rajulier and his wife had no power to alter the provisions made in the earlier settlement deed, Ex. B1 dated 1-3-1937, and that, therefore, the

plaintiff is entitled to seek partition on the basis of the settlement deed dated 1-3-1937 ignoring the later settlement deed dated 12-5-1944. The

suit was resisted mainly by the second wife and her children who are defendants 2 to 7, their contention being that the original settlement deed

dated 1-3-1937 was not given effect to, that, the only settlement which was acted upon by the parties was only the settlement deed, Ex. B11,

dated 12-5-1944, that as per the said settlement deed, specific properties have been allotted to each of the defendants and the plaintiff, and that all

the parties having acted upon and taken possession of the properties as per the later settlement deed dated 12-5-1944, the suit filed by the plaintiff

for partition, on the basis of the original settlement deed dated 1-3-1937, is not maintainable. They also contended that the specific properties

allotted to them under the settlement deed dated 12-5-1944, having been exclusively enjoyed by them ever since that date, they should be taken to

have acquired title by adverse possession if the settlement deed Ex. B11 is taken to be invalid.

Pending the suit, the original plaintiff Gopal, died and his wife was, therefore, impleaded as second plaintiff and her children as plaintiffs 3 and 4.

The trial court held that Rajulier and his wife, who had executed the settlement deed Ex. B1 dated 1-3-1937, had no power to revoke the same

and execute a fresh settlement deed, as they have done under Ex. B11 dated 12-5-1944, and that, therefore, the later settlement deed, Ex. B11

cannot be taken to be valid. But having regard to the fact that defendants 2 to 7 have enjoyed specific properties allotted to them under the later

settlement deed dated 12-5-1944, exclusively and in assertion of their own right, it held that they should be taken to be in adverse possession of

those properties since 1944, that the suit in this case having been filed In 1966 long after the plaintiff attained 21 years of age, the suit, should be

taken to be barred by time as against defendants 2 to 7, since defendants 8, and 9 did not contest the suit, a preliminary decree was passed against

them for partition and separate possession of the plaintiff''s one-third share in respect of the properties allotted to the children of the first wife

Ananthammal. Aggrieved against the dismissal of the suit as against defendants 2 to 7, plaintiffs 2 to 4, the legal representatives of the original

plaintiff, filed an appeal. That appeal also was dismissed by the lower appellate court holding that defendants 2 to 7 have acquired title by adverse

possession as they have been in exclusive possession of the properties in assertion of their own right from 12-5-1944 the date of the last settlement

deed Ex. Bill executed by Rajulier and his wife. Plaintiffs 3 and 4 have filed the present second appeal questioning the concurrent findings of both

the courts below that defendants 2 to 7 have perfected title to the suit properties by adverse possession and, therefore, the plaintiffs'' suit for

partition and separate possession on the basis of the settlement deed dated 1-3-1937, is barred by time. Pending the appeal, the first appellant has

attained majority and at his instance he has also been appointed as next friend and guardian of his sister, the second appellant.

The learned counsel appearing for the first appellant represents that the appellants are not keen in. prosecuting the appeal and, therefore, the

appeal may be dismissed as not pressed. Somehow, coming to know of the attitude of the first appellant, the 8th respondent in the appeal has filed

C. M. P. 13306 of 1979 to transpose him as the 3rd appellant in the second appeal. This petition for transposition filed by the both respondent is

opposed by respondents 2 to 7, who are defendants 2 to 7 in the suit as also the appellants.

According to the learned counsel for the 8th respondent, since he supported the case of the plaintiffs in the suit and as he is also entitled to a

third share in the suit properties and now that the appeal is being abandoned by the appellants, it is just and necessary that, he is transposed as the

third appellant. It is pointed out by the learned counsel that the court has got ample powers to transpose a respondent as appellant under Order

23, Rule IA, C. P. C. whenever the appellant withdraws or abandons an appeal. Though the learned counsel for the respondents 2 to 7 contended

that Order 23, Rule 1A, C. P. C. will apply only to a suit and not to a second appeal, as in this case, I am of the view that in view of Section 107

of the Code, the procedural provisions applicable to suits can also be applied to appeals or second appeals as far as it is practicable. We have to,

therefore, proceed on the basis that the court has got power to transpose a respondent as appellant when the appellant seeks to withdraw or

abandons the appeal in suitable cases.

The learned counsel for respondents 2 to 7 then contends that if the 8th respondent is transposed as an appellant, the appeal, so far as he is

concerned, should be taken to have been filed only on the date of the transposition and on that basis the appeal, as far as he is concerned, should

be taken to be barred by time as the transposition has been made more than 90 days provided for filing an appeal against the judgment of the

lower appellate court. It is also pointed out by the learned counsel that though the 8th respondent took part in the suit, he did not file an appeal

against the decree passed In the suit, that he did not also file a second appeal against the dismissal of the appeal filed by the plaintiffs by the lower

appellate court, that in those circumstances the 8th respondent cannot be taken to be a person aggrieved against the judgment of the courts below

and that if really he sails with the plaintiffs and seeks to get his alleged one-third share along with the plaintiffs in the suit, he should have challenged

the decisions of both the courts below by filing appeals at the appropriate time. He having failed to do so cannot now take advantage of the

pendency of this appeal filed by the plaintiffs. On the issue as to whether the question of limitation will arise if the 8th respondent is transposed as

the 3rd appellant, the learned counsel for the both respondent states that See. 22 of the Limitation Act 1908 will apply only to suits and not to

appeals and, therefore, the appeal cannot be taken to have been filed on the date of transposition. In support of that stand, learned counsel refers

to the decision reported in Bhubenshwar Prasad Narain Singh Vs. Sidheswar Mukherjee and Others, . In that caw, it has been held that as Section

22 of the Limitation Act 1908 will not apply to appeals, if a respondent is transposed as an appellant, the appeal, which has already been filed,

cannot be taken to have been filed by the transposed party on the date of transposition, that the date of filing the appeal is only one and the appeal

will not have two different dates of filing, one relating to the original appellant and the other relating to the transposed appellant. I am in entire

agreement with the view expressed in the above decision about the applicability of the provisions of Section 22 of the Limitation Act, .1908, to the

transposition of a respondent as appellant in an appeal. Therefore, no question of limitation will arise if the 8th respondent is transposed as the 3rd

appellant in the second appeal.

However, by transposing the 8th respondent as the 3rd appellant in the second appeal, the scope of the appeal will definitely be widened. If the

Both respondent is transposed as an appellant, one of the questions that will straightway arise for consideration of the court is whether he is

stopped from questioning the validity of the later settlement deed dated 12-5-1944, by virtue of his conduct in accepting that settlement and

dealing with the properties, given there under by way of mortgage etc. As a matter of fact, a mortgage deed executed by the 8th respondent has

been marked as Ex. B12 and in that document the 8th respondent has specifically stated that he had got the property on the basis of the settlement

deed dated 12-5-1944. Having regard to the position that the 8th respondent has taken advantage of the settlement deed dated 12-5-1944,

without questioning the validity of the same, and has been dealing with the properties all these years, the other respondents are entitled to contend

that he is estopped from questioning the validity of the subsequent settlement deed. Thus, by transposing the 8th respondent as an appellant, the

scope of the appeal will be widened. The court will be reluctant to transpose a respondent as an appellant in such cases where there is likelihood

of the scope of the appeal being widened. As a matter of fact, in the decision reported in Bhubenshwar Prasad Narain Singh Vs. Sidheswar

Mukherjee and Others, , already referred to, the Division Bench specifically points out that the appellate court will not exercise its power of

transposition and will not allow a respondent to be transposed to the category of an appellant where the result of such transposition is likely to be

that new grounds, not common to the appellants already on the record, may have to be determined for disposing of the appeal. Further, there is

already a decree against the 8th respondent in the suit and he cannot be treated as an appellant along with the plaintiffs who are decree-holders, on

the facts and circumstances of this case, the court will not be justified in transposing the 8th respondent to the position of an appellant which will -

have the effect of widening the scope of the appeal. In this view, I dismiss this petition for transposing the 8th respondent as the third appellant.

Petition dismissed.