Nanjundappa and Others vs Rudra and Others

N. Kumar, J.—This regular first appeal is preferred by defendant Nos. 5, 8, 10, 11, 12, 19, 23 and 24 against the preliminary decree passed in O.S. No. 406/1998 by the II Addl. Civil Judge (Sr. Dn.) at Mysore on 17.02.2010, where the plaintiffs suit for partition and separate possession has been decreed as prayed for.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

The subject matter of the suit consists of agricultural land, sites and houses which are clearly set out in the schedule to the plaint as items 1 to 30 (hereinafter referred to as the ''schedule properties''). The case of the plaintiffs is that they are the sons of first defendant Nanjappa, who is the son of Vatal Kariyappa. After the death of Vatal Kariyappa, first defendant and his younger brother Sannappa, divided the family properties by metes and bounds. Thereafter, the plaintiffs and first defendant are in joint possession and enjoyment of the suit schedule properties. When the first defendant was making efforts to alienate the suit schedule properties, they requested him to divide the joint family properties. But he did not comply with the said demand. Since the suit schedule properties are the joint family properties of the plaintiffs and first defendant, plaintiffs are entitled for 3/4th share over the same. Defendant Nos. 2 to 22 are the tenants in respect of the suit schedule properties. Plaintiffs were in possession of their respective houses in Sy. No. 225/1 measuring 2 acres 10 guntas. Defendants 2 to 22 have not given any advance amount. However, they have been paying rent to the plaintiffs as set out in para-9 of the plaint. The plaintiffs are entitled for 3/4th share over the rent collected out of the house constructed in Sy. No. 225/1. Therefore, they filed a suit for partition and separate possession of their 3/4th share in all the plaint schedule properties.

The first defendant did not file any written statement, though he was duly served. However, it is the appellants herein who are defendant Nos. 2, 4, 5, 8, 10, 11, 12, 19, 20, 21, 22 and 23 filed a written statement. They admitted the relationship set out in the plaint. They denied the allegation that the defendants are the tenants in the plaint schedule properties under the first defendant. If really they were the tenants, plaintiffs would not have failed to mention the monthly rent and advance as secured deposit from which date the tenancy commences. The suit is filed by the plaintiffs in collusion with the first defendant. The allegation that the plaintiffs and defendant No. 1 are in joint possession of the property was denied. The property in question is not ancestral property. The first defendant has already executed sale deed, agreement of sale etc., in favour of the defendants. The plaintiffs are aware of these facts. After handing over the possession under various documents like sale deed, agreement of sale etc., the defendants have taken physical possession and are in enjoyment of their respective shares. This fact is informed to Hinkal Panchayat by the first defendant. Khata has been changed in the name of the respective defendants. After taking physical possession and change of khata, the defendants have constructed houses by investing huge amount. The plaintiffs and defendant No. 1 to enrich themselves and to have wrongful gain, have filed this false suit in collusion with each other. Thereafter, they have set out in detail the purchases made by them either under the sale deed or under the agreement of sale. Thereafter, they contend that they are the absolute owners of the suit schedule properties. The plaintiffs ought to have valued the suit under Section 35(1) of the Karnataka Court Fees And Suits Valuation Act, 1958. The suit is not properly valued, Court fee paid is insufficient, suit is bad for non-joinder of necessary parties and therefore, they sought for dismissal of the suit.

On the aforesaid pleadings, the Trial Court has framed the following issues:

Whether plaintiffs prove that the suit schedule properties are ancestral joint family property of plaintiffs and 1st defendant?

Whether plaintiffs prove that they have got share in the schedule property if yes, what is the quantum of share?

Whether defendants prove that the suit is filed in collusion with 1st defendant?

Whether plaintiffs prove that the defendants 2 to 22 are tenants of suit schedule properties?

Whether defendants prove that they are in possession of properties of in their own rights?

Whether defendants prove that C.F. paid is not proper?

Whether plaintiff is entitled for decree for partition and separate possession?

Additional Issue No. 1:

Whether the suit is bad for non-joinder of necessary parties?

Additional Issue No. 2:

Whether the 24th defendant proves that he is absolute owner in possession of suit property by virtue of registered gift deed dated 22.4.2006?

The plaintiffs in order to substantiate their claim examined the first plaintiff as PW 1 and produced four documents which are marked as Exs. P1 to P4. Defendant No. 10 was examined as DW 1. They also examined six more witnesses as DWs. 2 to 7. They got marked 164 documents as Exs. D1 to 164.

The Trial Court after considering the aforesaid material on record and after hearing the learned Counsel has recorded a finding that the plaintiffs have proved that the suit schedule properties are the ancestral joint family properties of plaintiffs and the first defendant. They have proved that they have got share in the schedule properties. The defendants have proved that the suit is filed in collusion with the first defendant. The plaintiffs have not proved that defendant Nos. 2 to 22 are the tenants of the suit schedule properties. The defendants also have failed to prove that they are in possession of the properties of their own rights. The defendants have proved that the Court fee paid is not proper. After recording a finding that the suit ought to have been valued under Section 35(1) and not Section 35(2) of the Karnataka Court Fees And Suits Valuation Act, 1958 (hereinafter referred to as ''the Act'' for brevity), the Court directed the plaintiffs to pay Court fee under Section 35(1) of the Act. It also held that that the suit is not bad for non-joinder of parties. It also recorded a finding that defendant No. 24 has failed to prove that he is the absolute owner in possession of the suit property by virtue of a registered gift deed dated 22.04.2006. Thus it decreed the suit of the plaintiffs declaring that they are entitled to 3/4th share together. The Court directed that the plaintiffs 1 to 3 shall pay Court fee of Rs. 74,00,000/- as a condition precedent for drawing up of preliminary decree. Aggrieved by the said judgment and decree of the Trial Court, the appellants/defendants are before this Court.

The learned Counsel for the appellants submitted in terms of the decree passed by the Trial Court, Court fee is paid on Rs. 74 lakhs. The main ground on which the impugned judgment and decree is challenged by the appellants is, when once the Trial Court held that valuation of the suit under Section 35(2) of the Act is incorrect and Court fee paid is not sufficient, it ought to have dismissed the suit. Giving an opportunity to the plaintiffs to pay the Court fee under Section 35(1) of the Act, and decreeing the suit by drawing up a decree subject to payment of Court fee, is erroneous and therefore, the judgment and decree of the Trial Court requires to be set aside.

From the aforesaid facts, it is clear that the appellants are not the members of the joint family of plaintiffs and first defendant. The suit is one for partition and separate possession of the legitimate share of the plaintiffs in the joint family property, on the ground that the schedule property is ancestral property/joint family property and that there is no partition. The suit is filed by the sons against their father. The father has not contested the matter. The appellants who are the contesting defendants in the Trial Court though they contended that the schedule property is not the ancestral property, is a property which exclusively belongs to the first defendant, from whom they have purchased the property, got the khata transferred, put up constructions by investing huge amounts, they have failed to establish that the schedule properties are the ancestral properties. Therefore, when once the relationship between the parties is not in dispute, they constitute a joint family and the schedule properties are the joint family properties/ancestral properties and admittedly, there is no partition between them, the Court committed no error in decreeing the suit of the plaintiffs for partition and separate possession as prayed for. Rightly the appellants who are strangers to the family against whom no decree is passed by the Trial Court have not challenged this finding of fact. The entire attack is based on the judgment of this Court in the case of B.S. Malleshappa Vs. Koratagere B. Shivalingappa and others, , wherein it has been held that neither the defendant nor the Court can alter the suit as one for a different relief or a suit falling in a different category and require the plaintiff to pay Court fee on such altered category of suit because if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) of the Act and pay Court fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied.

Per contra, the learned Counsel for the respondents submitted as the appellants are not aggrieved persons at all, this appeal preferred by them is not maintainable. Secondly, he contended that the finding recorded by the Trial Court that the plaintiffs are not in joint possession of the schedule property, they are out of possession and therefore, the suit ought to have been valued under Section 35(1) of the Act, is erroneous and contrary to the material on record. In the plaint, it is specifically pleaded that the plaintiffs are in joint possession with the first defendant. When once such plea is there, in view of the judgment of this Court in the case of Nanjamma Vs. Akkayamma and Others , the valuation of the suit under Section 35(2) of the Act, is proper and therefore the said finding requires to be set aside.

In the light of the aforesaid facts, the points that arise for our consideration in this appeal are as under:

i) Whether the respondents who have succeeded in the suit can challenge the finding against them without preferring any cross-appeal?

ii) Whether the Trial Court was justified in holding that the suit ought to have been valued under Section 35(1) and not under Section 35(2) of the Karnataka Court Fees And Suits Valuation Act, 1958?

Re. Point No. 1:

Answering issue No. 6, the Trial Court has recorded a categorical finding that after appreciating the evidence of the parties and taking note of the respective contentions in the written statement that the suit schedule property no more remained an agricultural property and on the other hand, several houses are constructed therein, the plaintiffs have paid fixed Court fee of Rs. 200/- towards their share. The documents produced by the defendants go to show that the khata of the property is mutated in the name of the defendants in Hinkal Gram Panchayat.

The tenor of the contentions taken by the plaintiffs itself established that suit schedule property is not an agricultural property. On the other hand, the same has been utilized for non-agricultural purpose. The plaintiffs have failed to prove that defendant Nos. 2 to 24 are the tenants in the suit property. On the contrary, the defendants have proved that they are in possession of respective sites and houses by virtue of unregistered sale deed, sale agreement, panchayat kanoon etc. Defendant Nos. 1 to 7 have deposed regarding the value of the respective properties which was not controverted to in the cross-examination. Therefore, the evidence of DWs. 1 to 6 regarding value of property stands undisputed. Then it proceeds to hold that it is the duty of the Court to consider what was the value of the property as on the date of filing of the suit. It observed, however, one thing is established that the plaintiffs are not in joint or constructive possession of the suit schedule property. Thereafter, it proceeds to hold, taking into consideration the value mentioned in the written statement, the value of the property in the possession of the defendants is around Rs. 74 lakhs. Therefore it holds defendants are right in contending the plaintiffs ought to have valued the suit on the market value and should have paid the Court fee under Section 35(1) of the Act. Consequently, it held the valuation of the suit under Section 35(2) of the Act is not proper and the same is not in accordance with law. Therefore, it directed the plaintiffs to pay Court fee of Rs. 74 lakhs before a preliminary decree declaring their rights is passed. This finding of the Trial Court is challenged by the learned Counsel for the respondents on the ground that the Trial Court has not read the pleadings properly. He points out that in para-2 of the plaint, the plaintiffs have averred that first defendant and his brother Sannappa were born to late Vatal Kariyappa. After the death of Vatal Kariyappa, the first defendant and his brother Sannappa effected partition of all the joint family properties. Thereafter, the plaintiffs and the first defendant acquired several properties after the nucleus of the joint family property and they continued as members of the joint family and they are in possession of the joint family property. Therefore, there is a specific plea in the plaint that plaintiffs are in joint possession of the plaint schedule properties with the first defendant, though other defendants are in exclusive possession of respective properties under the unregistered sale deeds, agreement of sale and by virtue of the khata endorsements. The plaintiffs valued the suit under Section 35(2) of the Act. Now, the Court has held that the suit ought to have been valued under Section 35(1) of the Act. This Court had an occasion to consider in such circumstances, how a suit is to be valued. In the case of Nanjamma referred to supra, where at paragraphs 47 to 52, it has been held as under:

SECTION 35 of the Karnataka Court Fees and Suits Valuation Act, 1958 deals with partition suits. It reads as under:

Partition suits.--(1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiffs share.

(2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:--Rupees fifteen if the value of plaintiff''s share is Rs. 3,000 or less; Rupees thirty if the value is above Rs. 3,000 but not more than Rs. 5,000. Rupees one hundred if the value is above Rs. 5,000 but below Rs. 10,000 and Rupees two hundred if the value is Rs. 10,000 and above.

(3) Where, in a suit falling under sub-section (1) or sub-section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in sub-section (2), according as such defendant has been excluded from possession or is in put possession.

(4) Where, in a suit falling under sub-section (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in Section 38 separate fee shall be payable on the relief of cancellation in the manner specified in that section."

The Apex court in the case of Neelavathi and Others Vs. N. Natarajan and Others, has held as under:

"126. Court fee is payable under S. 37(1) , T.N. Act, if the plaintiff is ''excluded'' possession of the joint property. The general principle of law is that in the case of co-owners, possession of one is possession of all unless ouster or exclusion is proved. To continue to be in joint possession in law it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property is not disputed, the law presumes that he is in joint possession. To apply S. 37(1) there should be a clear and specific averment in the plaint that Plaintiff has been excluded from joint possession. An averment that remain in joint possession would not amount to exclusion from possession."

The Apex Court interpreting Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, which is similar to the provisions of Section 35(1) of the Karnataka Court Fees & Suit Valuation Act in the case of Jagannath Amin Vs. Seetharama (dead) by LRs. and Others, has held as under:

"It will be seen that the Court Fee is payable under Section 37(1) if the plaintiff is "excluded" from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family, and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the Mitakshara Coparcenary property, acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided ''joint family property'' though not in the strict sense of the term. The general principle of the law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally, it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled in law. The averments in the plaint that the plaintiff could not remain in joint possession as they were not given any income from the joint family property would not amount to their exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiffs had been excluded from possession.

The Division Bench of this Court in the case of B.S. Malleshappa Vs. Koratagere B. Shivalingappa and others, after referring to the various judgment of the Apex Court held as under:

"11. We may now conveniently summarize the principles relating to Court-fee in regard to suits for partitions and appeals therefrom:

(i) Payment of Court-fee will depend on plaint averment alone. Neither the averments in the written statement, nor the evidence nor the final decision have a bearing on the decision relating to Court-fee.

(ii) The scope of investigation under Section 11 is confined practically to determine two points: (i) under valuation of the subject matter of the suit; and (ii) category; under which the suit falls, for the purpose of Court-fee. Once the category of suit is determined with reference to plaint averments, the Court cannot subsequently change the category on the basis of the averments in the written statement or on the basis of evidence and arguments. In short, if the suit is found to fall under S. 35(2) of the Act on the plaint averments, the Court has no power to convert the suit as one falling under S. 35(1) of the Act, at any point of time, much less while rendering judgment. The only exception is when the plaint is amended.

(iii) The plaintiff in a suit being dominus litis has the choice of filing a suit of a particular nature or seek a particular relief. Neither the defendant nor the Court can alter the suit as one for a different relief or as a suit falling in a different category and require the plaintiff to pay Court-fee on such altered category of suit.

(iv) If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categorizes the suit under Section 35(2) of the Act. He is therefore, liable to pay Court-fee only under Section 35(2) . If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay the Court-fee under Section 35(1) of the Act does not arise. Even after written statement and evidence (which may demonstrate absence of possession or joint possession), if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court-fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied.

(vi) On appreciation of evidence, if the Court disbelieves the claim of plaintiff regarding joint possession, it can only hold that the case does not fall under Section 35(2) and therefore plaintiff is not entitled to relief. It cannot, in the judgment, hold that the case of plaintiff should be categorized under Section 35(1) nor direct the plaintiff to pay Court-fee on market value under Section 35(1) of the Act.

(vii) The Court-fee payable on an appeal is the same as the Court-fee payable on the suit. Therefore, even if the Trial Court holds that plaintiff was not in joint possession or that plaintiff had been excluded from possession, there will be no change in the Court-fee payable in an appeal by the plaintiff against such decision. The Court-fee on the appeal will still be the same as the Court-fee paid on the plaint in the Court of first instance.

RECENTLY, this Court in the case of Sampangi Gowda & Others v. Muddanna & Another, RFA No. 872/2013 dated 04.04.2014, has held as under:

"11. therefore, the general principle of law is that in the case of co-owners, possession of one is possession of all unless ouster or exclusion is proved. To continue to be in joint possession in law it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property is not disputed, the law presumes that he is in joint possession.

Therefore, what the Court has to look into is the averment in the plaint. If in the plaint it is averred that the plaintiffs and defendants are in joint possession, notwithstanding the fact that they are living separately, even at two different places, in law it makes no difference. In the eye of law, in the case of co-parcenary, joint family or co-ownership, possession of one co-parcener or member of the joint family or co-owner is possession of all. Then the case would fall under Section 35(2) of the Act. To take the case out of Section 35(2) there should be a clear and specific averment in the plaint that the plaintiff has been excluded from joint possession. In fact, in the case of coparcenary or joint family property, the averment should be that the plaintiff has been ousted from possession. If there is a clear and specific averment in the plaint that they have been excluded from joint possession to which they are entitled to in law, then the case would fall under Section 35(1) of the Act. In a suit for partition, if the Court after trial records a finding that the plaintiff is not in possession and the plaintiff challenges the said finding, the correctness of the said finding has to be gone into by the Appellate Court. Therefore, as the finding has not attained finality, the question of the appellants paying Court fee on the basis of the said finding would not arise. Therefore, the High Court office cannot insist on payment of Court Fee on the basis of the findings recorded by the Trial Court on the issue regarding possession.

Therefore what follows is, in order to determine whether the Court Fee paid is proper on the plaint, what the Court should look to is the averments in the plaint and not the written statement or the evidence. Mere averment in the plaint that the plaintiffs and defendants are in joint possession is sufficient, notwithstanding the fact they are living separately, even at two different places, because in law it makes no difference."

IN the case of a property belonging to coparcenary, joint family or co-ownership, possession of one coparcener or a member of the joint family or a co-owner is the possession of all. To hold that the plaintiff is in joint possession on the date of the suit, it is not necessary that the plaintiff should be in actual physical possession of the whole or part of the property which is the subject matter of the suit. Even the plaintiff need not be getting a share in the income from the property. So long as the plaintiff has a right to a share, the law presumes that he is in joint possession.

THEREFORE, even if the evidence adduced by the parties discloses that the plaintiff is not in physical possession of the property or any portion thereof it is of no consequence. Thus a mere averment in the plaint that the plaintiff is in joint possession with the defendant in the schedule property is sufficient to bring the valuation of the suit within the ambit of Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958.

In para 6 of the plaint, the plaintiff has categorically stated that she is in joint possession of the suit schedule property. The defendants on the other hand claim to be in exclusive possession. After the death of Bachappa, the plaintiff became the co-owner. The possession of one co-owner is the possession of all the co-owners. Therefore, the valuation of the suit under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 is proper. The Trial Court was not justified in directing the plaintiff to value the same under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958.

Therefore, in view of the aforesaid legal position, when there is a specific recital in the plaint that plaintiffs are in joint possession of the schedule property with the first defendant, the valuation of the suit under Section 35(2) of the Act, was proper, the Trial Court committed an error in holding that because the appellants are in exclusive possession of their respective portions, the plaintiffs are not in possession, the suit ought to have been valued under Section 35(1) of the Act. Therefore, the said finding requires to be set aside.

On the question whether the respondents-plaintiffs can seek setting aside a finding without preferring a cross-objection is concerned, the legal position is well settled as depicted in Order 41 Rule 22 of CPC. This Court had an occasion to consider the said question in the case of Shri Annasaheb Balesha Waghe, Smt. Chayagouda Balehsa Waghe, Rukmini Balesha Waghe and Akkatai Appasaheb Patil Vs. Shri Appasaheb Dada Pommai, Shri Appaji Satagouda Waghe, Sri Babasaheb Appaji Waghe and Smt. Housabai Appaji Waghe, , wherein after referring to Order 41 Rule 22 of CPC, it has been held at paragraphs-9 to 16 as under:

Order 41 Rule 22 CPC provides for a respondent objecting to a decree as if, he had preferred a separate appeal. It reads as under:

"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, but may also state that the finding against him to 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]

(2) Form of objection and provisions applicable thereto.-Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

(3) *******

(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

(5) The provisions relating to pauper appeals shall, so far as they can be made applicable to an objection under this rule".

The aforesaid provision confers on respondent certain rights. They are: Firstly, he can support a decree. Secondly, be 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 thirdly, he may also prefer a cross-objection to the decree which he could have taken by way of an appeal. This right to file cross-objection is nothing but the exercise of right to appeal, though in a different form. The right given to the respondent in appeal to file cross objections is a right given to same extent as is a right of appeal to lay challenge to the impugned decree if be can be said to aggrieved thereby. Taking any cross-objection is the exercise of right of appeal and takes the place of cross appeal. Thus, it is clear that just as an appeal is preferred by a person aggrieved by the decree, so also a cross objection is preferred by one who can be said to be aggrieved by the decree.

A party who has fully succeeded in the suit, need not prefer an appeal nor take any cross objections though certain findings can be against him. Appeal and cross objection, both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was the well settled position of law under the unamended CPC prior to 1976. In 1976, CPC was amended making slight modification to Order 41 Rule 22 CPC and also introducing the explanation. But it has not materially or substantially altered the law except for a marginal difference. Even after the amendment, a party in whose favour the decree stands in its entirety is neither required to nor obliged to prefer any cross objections. However, the insertion by way of explanation makes it permissible to file a cross-objection against a finding. The amendment inserted by 1976 is clarificatory and also enabling and this may be made precise by analysing the provision:

(i) The impugned decree may be partly in favour of the appellant and partly in favour of the respondents;

(ii) The decree may be entirely in favour of the respondent though an issue has been decided against the respondent;

(iii) The decree may be entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

In the first type of case, it is necessary for the respondent to file cross objection/cross appeal, against that part of the decree which is against him, if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross objection. The position is the same even after amendment.

In the second and third type of cases, before amendment of 1976 the respondent was not entitled to or was permitted to take any cross objection as he was not the person aggrieved by the decree. After amendment in the light of the explanation, though it is still not necessary for the respondent to take any cross objection for laying challenge to any finding adverse to him, as the decree is entirely in his favour and he may support the decree without such cross objections, the amendment made in the text of Sub-rule (1) read with the explanation newly inserted, gives him a right to take cross objections to a finding recorded against him either white answering issue or while dealing with the issue. The advantage of preferring such cross objection is spelt out by sub Rule (4). In spite of the original appeal having been withdrawn or dismissed for default, the cross objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent prior to amendment of 1976. In pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question of correctness or otherwise of any finding recorded against the respondent.

Therefore, it follows that Order 41 Rule 22 gives two distinct rights to the respondent in the appeal. The first is the right of upholding the decree of the court of first instance on any of the grounds on which that court decided against him; and the second right is that of taking cross-objection to the decree which the respondent might have taken by way of appeal. In the first case he supports the decree and in the second case he attacks the decree. The use of the word "Support" makes it plain that the right given is limited to the sustaining of the decree in so far as it is in his favour, and does not extend beyond so as to enable him to obtain an alteration giving him a further advantage. This he can secure only by an appeal or cross-objection.

Rule 22 is a special provision which gives a respondent, who being satisfied with partial success has not appealed within limitation, another opportunity of challenging the part of the decree which has gone against him upon his opponent preferring an appeal by filing a cross-objection. However, respondent can challenge adverse findings without filing appeal or cross objection. If no cross-objections are filed at all by a respondent, the appellate court has no power to grant any relief to him in a case where the granting of such relief is not necessarily incidental to the relief granted to the appellant; nor has the appellate court the power, in the absence of cross-objections to disturb so much of the original decree as is favourable to the appellant so as to place him in a worst position. However, now as the law stands, even against the finding, a cross objection is permitted. But it is left to the choice of the party. Even without filing such cross-objection, it is open to the respondent to challenge the finding which is held against him though the decree is in his favour. But on the ground that he has not preferred cross-objections, as contemplated in the explanation, the appellate Court hearing the appeal cannot refuse to hear the respondent on the finding against his interest. However in spite of all these amendments, still no appeal lies against a finding.

Therefore, what emerges from the aforesaid discussion is:

An appeal lies only against the decree and no append lies against a finding. A party who has not preferred on appeal against a portion of the decree of which he is aggrieved may prefer a cross objection which is in the nature of a cross appeal, in an appeal preferred by the opposite party against the decree, which is partly in his favour and partly against him. However, in an appeal against a decree, the respondent can challenge a finding which is against him though decree is in his favour, without filing a cross objections. He can also file cross objection challenging the said adverse finding. The difference is when the respondent challenges an adverse finding, without filing a cross objection and if the appellant withdraws the appeal or the appeal is dismissed for default, then the right of the respondent to get that adverse finding set aside is lost. But if he has filed a cross objection challenging the said adverse finding, notwithstanding the appellant withdrawing the appeal or the appeal is dismissed for default he can independently prosecute this cross objection and the Court is under on obligation to consider the said cross objection and pass order on merits.

Therefore, it is clear that the respondents can challenge a finding which is against them though the decree is in their favour without filing a cross-objection. Therefore, the objection to the said finding on court fee is well taken by the respondents and the said finding recorded by the Trial Court is hereby set aside.

Re. Point No. 2:

The entire argument of the learned Counsel for the appellants is based on the judgment of this Court in the case of B.S. Malleshappa, where after extensively referring to various judgments on the point how a valuation in respect of a suit for partition is to be made. The principles have been summarized in paragraph-12 which reads as under:

"12. We may now conveniently summarize the principles relating to Court fee in regard to suits for partitions and appeals therefrom:

(i) Payment of Court fee will depend on plaint averment alone. Neither the averments in the written statement, nor the evidence nor the final decision have a bearing on the decision relating to Court fee.

(ii) The scope of investigation under Section 11 is confined practically to determine two points: (i) Undervaluation of the subject-matter of the suit; and (ii) category under which the suit falls, for the purpose of Court fee. Once the category of suit is determined with reference to plaint averments, the Court cannot subsequently change the category on the basis of the averments in the written statement or on the basis of evidence and arguments. In short, if the suit is found to fall under Section 35(2) of the Act on the plaint averments, the Court has no power to convert the suit as one falling under Section 35(1) of the Act, at any point of time, much less while rendering judgment. The only exception is when the plaint is amended.

(iii) The plaintiff in a suit being dominus litis has the choice of filing a suit of a particular nature or seek a particular relief. Neither the defendant nor the Court can alter the suit as one for a different relief or as a suit falling in a different category and require the plaintiff to pay Court fee on such altered category of suit.

(iv) If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categorizes the suit under Section 35(2) of the Act. He is therefore liable to pay Court fee only under Section 35(2) . If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay the Court fee under Section 35(1) of the Act does not arise. Even after written statement and evidence (which may demonstrate absence of possession or joint possession), if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied.

(v) On appreciation of evidence, if the Court disbelieves the claim of plaintiff regarding joint possession, it can only hold that the case does not fall under Section 35(2) and therefore plaintiff is not entitled to relief. It cannot, in the judgment, hold that the case of plaintiff should be categorized under Section 35(1) nor direct the plaintiff to pay Court fee on market value under Section 35(1) of the Act.

(vi) The Court fee payable on an appeal is the same as the Court fee payable on the suit. Therefore, even if the Trial Court holds that plaintiff was not in joint possession or that plaintiff had been excluded from possession, there will he no change in the Court fee payable in an appeal by the plaintiff against such decision. The Court fee on the appeal will still be the same as the Court fee paid on the plaint in the Court of first instance."

Relying on Clause-4 of the aforesaid summary, where it has been held that if on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to said property or the suit may be dismissed. But the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay Court fee under Section 35(1) of the Act does not arise. Even after written statement and evidence (which may demonstrate absence of possession or joint possession), if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied.

Further at Clause-5, it has been held on appreciation of evidence, if the Court believes that the claim of plaintiff regarding joint possession, it can only hold that the case does not fall under Section 35(2) and therefore, the plaintiff is not entitled to the relief. It cannot, in the judgment, hold that the case of the plaintiff should be categorized under Section 35(1) nor direct the plaintiff to pay Court fee on the market value under Section 35(1) of the Act.

The learned Counsel appearing for the respondents submits that the aforesaid observations of the Division Bench of this Court run counter to Section 11 of the Act. In particular, he points out that subsection (2) of Section 11 of the Act, categorically states that if the Court decides that the subject matter of the suit as not being properly valued or that Court fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court''s decision and the deficient fee shall be paid. If the plaint be not amended or if the deficient fee be not paid within the time, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.

In the instant case, it is not necessary for us to go into the said question because while answering point No. 1, we have set aside the finding of the Trial Court that the Court fee paid under Section 35(2) of the Act, is not proper and we have held the Court fee paid on the memorandum of plaint under Section 35(2) is proper.

Once that finding stands, the judgment relied on by the learned Counsel for the appellants has no application to the facts of this case.

In that view of the matter, we do not see any substance in the said contention. For the aforesaid reasons, we pass the following:

The appeal is dismissed.