Narayanappa and Rangaiah, Since dead by L.Rs. (a) Siddagangamma, b) Rama Krishnaiah, c) Revanna, d) Gopalaiah, Minor, Rep. by natural guardian mother i.e., appellant No. 2(a) vs Narasimhaiah

The appellants in both the appeals have challenged the Judgments and Decrees in R.A. No. 140/2008 dismissing the suit of the appellants in O.S. No. 113/1995 claiming the relief of declaration and injunction, granted by the trial Court and granting a decree for partition in the suit instituted by respondent No. 1 in O.S. No. 541/1995 by setting aside the Judgment and Decree of the trial Court, dismissing the said suit. The facts relevant for the purpose of this appeal are as under:

The parties are referred to as they were referred in the original proceedings, for the sake of convenience.

The appellants in R S.4. No. 1128/2010 filed O.S. No. 113/1995, claiming the relief of declaration and injunction in relation to the land bearing Sy. No. 114/6, measuring 1 acres 6 guntas of Hirethottalakere village described in the schedule to the plaint and the respondent in the said appeal is the defendant No. 1 in the suit, whereas the respondent in R.S.A. No. 1739/2011 filed the suit in O.S. No. 541/1995, claiming the relief of partition and separate possession of his share in 5 items of suit properties and the suit property in O.S. No. 113/1995 is item No. 4 in the said suit. In the said suit instituted, there are as many as 6 defendants.

The trial Court clubbed both the suits, framed the issues and recorded the evidence. Ultimately, after hearing learned counsel for the parties, granted a decree in O.S. No. 113/1995 filed by the appellants herein and dismissed the suit filed by respondent No. 1 herein in O.S. No. 541/1995. Respondent No. 1-Narayanappa instead of filing two appeals against the Judgment and Decrees of both these suits, filed R.A. No_140/2008, challenging the Judgments and Decrees in both the suits i.e., O.S. No. 113/1995 and 541/1995 and the first appellate Court after hearing learned counsel for the parties has allowed the appeal and dismissed the suit filed by the appellants herein for the relief of declaration and injunction and granted a decree for partition in the suit filed by respondent No. 1 herein. Aggrieved by the Judgment and Decree of the first appellate Court, the present appeals have been filed.

This Court vide order dated 01.08.2012 raised The following substantial question of law for consideration:

Whether the first appellate Court was justified in setting aside the Judgments and Decrees in two suits in a single appeal filed by respondent No. 1 herein?

I have heard learned counsel for the appellants. Learned counsel for the respondent is absent.

It is the submission of learned counsel for the appellants in both the appeals that there are two Judgments and Decrees i.e., in O.S. No,113/1995 and O.S. No. 541/1995 though clubbed. In such circumstances, it is the contention that a single appeal against two judgment and decrees is not maintainable and this point has not been considered by the first appellate Court before proceeding on merits of the appeal. As could be seen from the provisions of the Order XLI Rule 1 CPC., every appeal should be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court and the copy of the Judgment has to be accompanied with the appeal memo. It is provided that where two or more suits have been tried together and a common Judgment has been delivered therefore and two or more appeals are filed against any decree covered by that Judgment, the appellate Court may dispense with the filing of more than one copy of the Judgment. By reading of the Order XLI Rule 1 CPC., it could be inferred that a single appeal has to he preferred against a Judgment and Decree in one suit. Though the appellant had instituted the suit in Q.S. No. 113/1995 for declaration and injunction, the other suit filed by respondent No. 1 in Q.S. No. 541/1995 for partition and separate possession, the facts relating to the relief of declaration and injunction are different from one in a suit for partition and separate possession. Furthermore, the were as many as five properties in O.S. No541/1995, whereas in the suit for declaration relates to only one item of the property. Even as could be seen from the Judgment and Decree passed by the trial Court, there are many defendants in both the suits instituted. All these persons were made as parties in the appeal. To avoid inconvenience in hearing of the matter, i# is necessary that there has to be only one appeal against the Judgment and Decree. In such circumstances, respondent No. 1 could have filed two appeals against the Judgments and Decrees in O.S. No. 113/1995 and O.S. No. 541/1995. The first appellate Court has not looked into this aspect and has allowed the appeal by granting the relief in favour of respondent No. 1, dismissing the suit of the appellants and granting decree for partition in the suit instituted by respondent No. 1. There is an inherent defect in the procedure adopted in the institution of appeal and therefore, the first appellate Court has no competency to set aside the Judgments and Decrees in two suits in a single appeal. In that view of the matter, the substantial question of law raised is answered in negative.

In the result, both the appeals are allowed by setting aside the Judgment and Decree passed by the first appellate Court in R.A. No. 140/2008 dated 29.10.2009. The matters are remitted back to the first appellate Court to consider the aforesaid question and dispose of the appeals in accordance with law. The first appellate Court after receipt of the records, shall dispose of the appeals within 6 [six] months from the date of service of notice to the parties.