Mallanna alias Appaiah vs Smt. Muninanjamma alias Nanjamma

The Court

The appellant-plaintiff has preferred this regular second appeal being aggrieved by the judgment and decree dated 6-1-1995 passed by the Principal Civil Judge, Bangalore District in R.A. No. 64 of 1994 setting aside the judgment and decree of the II Principal Munsiff, Bangalore, dated 19-7-1994 in O.S. No. 542 of 1989 urging on various grounds.

The appellant filed Original Suit in No. 130 of 1989 on 4-3-1989 for eviction of the respondent from the suit schedule property. The respondent in turn filed the O.S. No. 542 of 1989 on 9-8-1989 for specific performance of the Sale Agreement. In respect of these two original suits, trial was held separately, both the original suits were clubbed together, common judgment was passed and decrees were drawn separately. The respondent preferred one appeal against the common judgment and decree in respect of the decree passed in O.S. No. 130 of 1989. The contention of the appellant''s Counsel that, the Court below has erroneously allowed the appeal and interfered with the judgment and decree of the Trial Court passed in the original suit, even though the judgment and decree passed on O.S. No. 542 of 1989 is not challenged in the regular appeal.

This Court while admitting the appeal on 7-2-1997 framed the following substantial questions of law for consideration.--

(a) Whether the First Appellate Court was justified in entertaining a single appeal against the judgment and decrees passed in two separate cases, one for specific performance and another for possession in O.S. Nos. 542 and 130 of 1989 respectively?

(b) Whether the First Appellate Court was justified in rejecting the suit claiming possession?

(c) Whether the First Appellate Court was justified in holding that relationship of landlord and tenant came to an end on execution of the agreement of sale?

It is not in dispute that, two cases were filed in the Trial Court and a common judgment was passed with two separate decrees. Since the judgment was common, the aggrieved party was required to file two regular appeals. But, in the instant case, only one appeal was filed before the lower Appellate Court challenging the judgment and decree passed in O.S. No. 130 of 1989. Further, the judgment and decree of the Trial Court in two suits pertain to the same property and between the same parties, the result of the appeal preferred before the lower Appellate Court may conflict with the other decree which was not challenged. Therefore, the appellant should have preferred two appeals. Since that has not been done, by the defendant/respondent the judgment and decree of the lower Appellate Court passed in respect of O.S. No. 542 of 1989 is liable to be set aside.

On the first substantial question of law about the justification of the lower Appellate Court entertaining single appeal, it has to be held that it was not justified in doing so. The reason is, admittedly two suits were filed by the parties against each other. For the sake of convenience the Trial Court bas passed a common judgment. The trial of the suits was separate and the judgment and decree in the two suits are different. The First Appellate Court has reversed the result in both the suits in a single appeal. That was not permissible in law. Even though the judgment is common, for all practical purposes it shall be treated as two judgments and decrees. Hence the lower Appellate Court was not justified in passing the judgment and decree under appeal in a single appeal filed before it. As there was no challenge to the judgment and decree in O.S. No. 542 of 1989 before the First Appellate Court, there should not have been any interference with the same by the lower Appellate Court. The lower Appellate Court has exceeded its jurisdiction by exercising power in a field where it was not called for.

In the result, this appeal is allowed. The judgment and decree passed by the First Appellate Court is set aside only to the extent it has set aside the judgment and decree of the Trial Court in O.S. No. 542 of 1989. The judgment of the Trial Court in O.S. No. 542 of 1989 is restored.