Laxman Appa Sonawane (Deceased by his Legal Representatives) and Another vs Yamunabai Narayan Shinde and Others

J.A. Patil, J.—This second Appeal by the original defendants has been admitted on the following substantial questions of law, namely, (i) Whether the lower Appellate Court has committed an error of jurisdiction by modifying the decree of the Trial Court in the absence of the cross objection or cross Appeal by the plaintiff and (ii) Whether the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (for short ''Act 1971'') are applicable to the suit property. The relevant facts which lie in the backdrop of these two questions may be stated in brief as under:-

The dispute between the parties relates to an open piece of land bearing Sub-Plot No. 176 of Final Plot No. 9-B of T.P. Scheme No. 1 of Raviwar Peth, Solapur. The respondent/plaintiff filed a suit for recovery of possession of the suit property, on the ground that she is owner of the suit property and that she had purchased the same under a registered sale deed dated 3.10.1974 from her father Sambha Bala Narayankar. The plaintiff averred that the defendants have absolutely no right or interest in the suit property, but they were allowed to occupy the same as licensees and that they have put up two huts upon the suit property. After purchasing the suit property, the plaintiff called upon the defendants to remove the huts and deliver vacant possession of the suit property. Since the defendants failed to comply with this demand, the plaintiff was required to file a suit for recovery of possession.

The defendants resisted the suit by contending inter alia that the plaintiff is not the owner of the suit property and that they have been in actual possession of the suit property since 1954. The defendants further contended that the Municipality had passed a resolution to transfer the suit property to them. But the plaintiffs father Sambha Bala Narayankar purchased it in his own name by misleading the defendants that he had purchased the property for them. The defendants further alternatively contended that they had become owners of the suit property by adverse possession for more than 12 years. The next contention of the defendants is that the suit property forms a part of a slum area and as such the provisions of the Act 1971, apply to the same. The defendants raised a preliminary objection to the maintainability of the suit on the ground that no permission as contemplated by Section 22 of the Act, 1971 was obtained by the plaintiff before filing the suit.

The learned Trial Judge upon consideration of the evidence on record negatived defendants'' all contentions except the contention that: the suit property forms a part of the slum area. The learned trial Judge, however, took a. view that prior permission of the competent authority to file a suit as contemplated by Section 22 of the Act, 1971 was not necessary since the plaintiff would not be able to execute the decree without such permission. In this view of the matter, the learned trial Judge proceeded to decree the plaintiffs claim for recovery of possession. However, subject to the condition that recovery of possession shall be made "after obtaining the permission from the Competent Authority in this behalf as per the provisions of Section 22 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971".

Feeling aggrieved by the said judgment and decree, the defendants filed an appeal in the District Court, Solapur. The Plaintiff, however, did not file any cross objection or appeal even though the decree passed in her favour was subjected to the condition of her obtaining necessary permission from the Competent Authority. During the pendency of the appeal, the defendants amended their written statement so as to incorporate a contention that the suit property was declared as a vacant land and as such the provisions of the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 were applicable, with the result that the jurisdiction of the Civil Court to entertain any such suit was barred by Section 8 of the said Act. In view of the additional contention taken up in the Appellate Court, the defendants led additional evidence by examining two witnesses, one of whom was Laxman Digamber Deshpande, a Surveyor from the Slums Improvement Department of the Municipal Corporation, Solapur. The learned Assistant Judge, who heard and decided the appeal, negatived the contention that the suit property is a vacant land as contemplated by the above mentioned Act. The learned Assistant Judge, however, held that the suit property is not declared as a slum area and therefore, the provisions of Section 22 of the Act, 1971 are not applicable. The said conclusion is based upon the evidence given by the defendant''s witness Laxman Digambar Deshpande. In this view of the matter, the learned Assistant Judge proceeded to dismiss the Appeal. However, in view of this finding that the suit property is not a part of slum area, he thought it necessary to modify the decree suitably so as to delete the condition requiring the plaintiff to obtain permission of the competent authority u/s 22 of the Act, 1971 before taking possession of the suit property in execution of the decree.

I have heard Shri R.M. Agrawal, the learned advocate for the appellants/defendants and Shri A.S. Kumbhakoni, the learned Advocate for the respondent/plaintiff. Shri Agrawal pointed out that the Trial Court held that the suit property was a part of slum area and that the plaintiff did not file any cross objection or appeal to challenge that finding. Shri Agrawal, therefore, contended that the lower Appellate Court was not at all called upon to decide the question as to whether the suit property forms part of slum area or not under the provisions of the Act, 1971. Shri Agrawal further pointed out that witness Laxman Deshpande was sought to be examined to prove the fact that the suit property is a vacant land and he was not examined on the issue whether the suit property forms a part of slum area or not under the provisions of the Act, 1971. Therefore, according to him it was an error on the part of the learned Assistant Judge who has recorded a different finding on that question, which was in fact not in dispute in the appeal. Shri Agrawal submitted that by modifying the Trial Court''s decree, the learned Assistant Judge has deprived the defendants of their substantive right created by the Trial Court''s decree. As against this submission, Shri Kumbhakoni submitted that the defence regarding the suit property being a part of slums area is very vague since no particulars are given as Lo whether and when the suit properly was declared as slum and no Gazette was produced to show that the suit property was notified as a part of the slums area. Shri Kumbhakoni further pointed out that the patch holders cards at Exhs. 55 and 58 as well as the receipt Exhs. 56, 57, 59 and 60 produced by the defendants do not refer the suit properly. While explaining the necessity for modifying Trial Court''s decree, Shri Kumbhakoni pointed out that the learned Assistant Judge could not have ignored the admission given by the defendants witness Laxman Deshpande in the examination-in-chief itself to the effect that the suit property is not declared as a slum area u/s 4 of the Act, 1971. Consequently, according to him it became necessary for the learned Assistant Judge to hold that the suit property is not slum area. Shri Kumbhakoni also submitted that having arrived at such a conclusion, the learned Assistant Judge deleted the condition in the Trial Court''s decree, requiring the plaintiff to obtain necessary permission from the Competent Authority when as a matter of fact the provisions of the Act, 1971 are not at all applicable. Shri Kumbhakoni, submitted that the learned Assistant Judge has rightly exercised his power under Order 41, Rule 33 of the CPC to remove anomalous position. In support of their respective claims, both the learned advocates relied upon several decisions of the Apex Court to which reference will be made in due course of this judgment.

This being a second Appeal, no interference with the findings on question of fact is permissible. Therefore, the findings on the question of fact, namely, that the plaintiff is the owner of the suit property and that the defendants have failed to prove their plea of ownership by adverse possession, cannot be disturbed. The Trial Court decreed the suit for possession, holding that the plaintiff is the owner of the suit property. However, it held that the suit land forms a part of slum area and therefore, it passed a conditional decree in favour of the plaintiff, requiring her to obtain permission of the Competent Authority u/s 22 of the Act, 1971. It is material to note that the plaintiff did not file any cross objection or appeal, challenging the finding recorded by the Trial Court in this respect and for removing the condition to put upon her in the decree. Therefore, under the normal circumstances, it was not necessary for the appellate Court to upset the finding, as the same had become practically final. However, as stated above the defendants got their written statement amerced during the pendency of the appeal and got incorporated therein the condition that the suit property was a vacant land. The Appellate Court allowed the defendants to lead additional evidence in support of the new plea taken by the defendants. The defendants examined two witnesses one of whom is Laxman Deshpande, who was working as Surveyor attached to the Slum Improvement Department of the Municipal Corporation, Solapur. It is not known as to why the defendants examined this witness and why they did not ascertain before hand that he would depose on the question of the suit property being a vacant land. However, curiously enough this witness did not speak anything as to whether or not the suit property is a. vacant land. Instead he made a statement in the examination-in-chief itself to the effect that the suit property was not declared as slum area u/s 4 of the Act 1971. It will thus be seen that the defendants themselves led evidence in the Appellate Court to prove that the suit property is not a part of slums area, when as a matter of fact the Trial Court had recorded a clear finding in their favour. The question, therefore, arises as to whether and how the Appellate Court could have ignored the important admission of the defendants'' witness on the aforementioned question. Shri Kumbhakoni, the learned advocate for the respondent/plaintiff therefore, submitted before me that in view of the said admission brought on the record by the defendants themselves, it became necessary for the appellate Court to exercise its power under Order 41, Rule 33 of the C.P. Code to modify the Trial Court''s decree.

Order 41, Rule 22: Upon hearing respondent may object to decree as if he had preferred separate appeal. �

(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (taut 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.)

Then Order 41, Rule 33 reads as under:-

Power of Court of Appeal. -The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, arid this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection (and may, where there have been decreed in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:)

Provided that the Appellate Court shall not make any order u/s 35, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

The main contention of Shri Agrawal is that in the absence of any cross-objection or appeal it was not open to the lower Appellate Court to modify the Trial Court''s decree. In this respect Shri Agrawal relied upon two rulings of the Supreme Court, The first is Tummalla Atchaiah Vs. Venka Narasingarao, wherein power of the Court of appeal to interfere with the decree of the Trail Court was considered and it was held that without a specific ground in cross-objection, alternation of decree of the Trial Court is not proper. The second decision relied on by Shri Agrawal is in the case of Choudhary Sahu (Dead) by Lrs Vs. State of Bihar, wherein the Apex Court considered the scope of power of the Appellate Court under Order 41, Rules 22 and 33 of the C.P. Code. It was pointed out that first part of the Rule 22 does not authorise the respondent to challenge the decree. If he wants to challenge the decree he has to take recourse to the second part i.e. he has to file the cross objection if he has not already filed an appeal against the decree. The Supreme Court then considered the power of the Appellate Court under Rule 33 and observed that the object of the said Rule is to empower the Appellate Court to do complete justice between the parties and to avoid contrary and inconsistent decision on the same question in the same suit. The Supreme Court held that Court''s power under Rule 33 is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross objection. As regards the exercise of the powers under Rule 33, the Supreme Court observed that ordinarily the power conferred by this Rule will be confined to those cases where as a result of interference in favour of the appellant, further interference with the decree of the lower Court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscious.

The nature and scope of the power of the Appellate Court under Order 41, Rule 33 was again considered by the Supreme Court in the case of Chaya and Others Vs. Bapusaheb and Others, wherein it observed:-

This provision is based on a salutary principle that the Appellate Court should have the power to do complete justice between the parties. The object of the rule is also to avoid contradictory and inconsistent decisions on the same questions in the same suits. For this purpose, the rule confers a wide discretionary power on the Appellate Court to pass such decree or order as ought to have been passed or as the nature of the case may require, notwithstanding the fact that the appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross-objection. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the Appellate Court should not hesitate to exercise the discretion conferred by the said rule.

In the case of K. Muthuswami Gounder Vs. N. Palaniappa Gounder, the Supreme Court had an occasion to explain the scope of the powers under Order 41, Rule 33 of the C.P. Code and it was observed that Rule 33 cannot enable the Appellate Court to pass any decree or order which ought to have been made and to make such further order of decree as the case may be in favour of all or any of the parties even though (i) the appeal is as to part only of the decree: and (ii) such party or parties may not have filed an appeal. The Supreme Court held that the necessary condition for exercising the power under the Rule is that the parties to the proceedings are before the Court and the question raised properly arises out of the judgment of the lower Court and in that event the Appellate Court could consider any objection to any part of the order or decree of the Court and set it right. The Supreme Court also observed that the general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings, ordinarily the Appellate Court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal and this Rule holds good notwithstanding Order 41, Rule 33, C.P. Code. However, in exceptional cases the Rule enables the Appellate Court to pass such decree or order as ought to have been passed even if such decree would be in favour of the parties who have not filed any appeal.

In the case of Mahant Dhangir and Another Vs. Madan Mohan and Others, it was pointed out that the sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and the respondents but also between the respondent and co-respondents. The only constraint on the power is that the parties before the lower Court should be, therefore, before the Appellate Court. In the case of Ravinder Kumar Sharma v. State of Assam and Ors. AIR 1999 S.C.W. 3578 it was held that the respondent can question adverse finding without filing cross objection and that the filing of cross objection is optional and not mandatory.

Thus taking into consideration the weight of these authorities, it will be clear that in suitable cases the Appellate Court has power to modify the Trial Court''s decree even though the respondent may not have filed any cross objection or appeal. It is true that in the instant case the plaintiff did not challenge the finding of the Trial Court that the suit property forms a part of slum area. In fact she accepted the conditional decree, requiring her to obtain permission of the competent authority before executing the decree for possession. However, the finding of the Trial Court on the question as to whether the suit land forms a part of slum area became necessary in view of the evidence led by the defendants themselves before the Appellate Court. If that evidence had not been led then there would have been no justification for the lower Appellate Court to upset the finding of the trial Court in the absence of any cross objection or appeal. The lower Appellate Court could not have ignored the vital admission given by the defendant''s witness Laxman Deshpande in his examination-in-chief itself. Therefore, in my view in the aforementioned circumstances, the lower Appellate Court was justified in reversing the findings of the Trial Court and holding that the suit property did not form a part of slum area. Once it is held that the suit property does not form a part of slums area, then it goes without saying that the provisions of the Act, 1971 do not apply to the suit property. Consequently, there is no question of the plaintiffs obtaining permission of the competent authority before executing the decree of possession. Therefore, consistent with the findings arrived at, it was necessary for the lower Appellate Court to remove the anomalous position by deleting the condition put in the Trial Court decree. If the lower Appellate Court had not modified the decree of the Trial Court then there would have been a contradiction or inconsistency between the finding and final order. Therefore, in order to avoid such contradiction or inconsistency, the lower Appellate Court had no option but to modify the Trial Court decree suitably so as to keep the final order consistent with the findings that the suit property does not form a part of slum area under the Act, 1971. In view of these reasons, I am unable to accept the submission of Shri Agrawal that the lower Appellate Court was not justified in modifying the Trial Court decree and that the defendants are deprived of their substantive right. On the contrary, in view of the special circumstances which arose fortitutously, it became necessary for the lower Appellate Court to reverse the finding of the Trial Court as to the nature of the suit property and maintain consistency.

In the result, I do not find any merit in this appeal and the same is, therefore, dismissed with no order as to costs. Certified copy expedited.