Natesa Pillai vs Namasivayam Pillai and Others

S.S. Subramani, J.—Plaintiff in O.S. No. 849 of 1974, on the file of District Munsif''s Court, Chidambaram, is the appellant.

Appellant filed the above suit, for declaration of title to the suit property and for permanent injunction on the following allegations:

First defendant sold the property to the plaintiff as per Ex. A-1 dated 5.12.T938, and ever-since that date, plaintiff alleged that he is in possession

of the same. It is said that the east west measurement of the property is 37 1/2 feet. It is further said that the plaintiff was the owner of the property

situated east of the suit property, which was sold to the third defendant, and the east west measurement was 25 3/4 feet. Defendants, who are

neighbouring property owners, are trying to trespass into the suit property and, therefore, the suit was filed for the reliefs mentioned above.

3.In the written statement filed by defendants 1 and 2, they admitted that the plaintiff is the owner of the property covered under Ex. A-1. But they

said that the east west measurement is not 37 1/2 English feet, but it is only 37 1/2 human feet. According to them, the total east to west

measurement is 150 human feet. The entire property originally belonged to one Swaminatha Pillai who executed a settlement deed on 1.5.1929,

evidenced by Ex. B-1, in favour of plaintiff, first defendant and his elder brother Ramalingam Pillai, who died unmarried and issueless. The

property allotted to Ramalingam Pillai also devolved on plaintiff and first defendant. There was a partition between them. First defendant sold his

half share to in plaintiff as per Ex. A-1. But the measurement is not 37 1/2 feet as claimed by plaintiff, and, even if there is any such statement, the

same cannot affect his right, since he cannot convey a better title than what he possessed on the date of Ex. A-1.

On the above pleadings, trial court took evidence, both oral and documentary. Commissioners were also deputed. Exs. A-1 to A-3 were

marked on the side of the plaintiff. Plaintiff examined himself as P.W. 1. Exs. B-1 to B-3 were marked on the side of the defendants. First

defendant got himself examined as D.W. 1. Exs. C-1 to C-7 are the Reports and Plans filed by the Commissioners.

After discussing the entire evidence, trial court came to the conclusion that the plaintiff is not entitled to 37 1/2 feet, but only to 32 3/4 feet, and

the same was identified as DCEF plot in the Commissioner''s plan. A decree was granted as follows:

The plaintiff is entitled to declaration and injunction only in respect of 32 3/4 feet east to west and not the entire suit property as contended by him.

So far as this extent is concerned, the defendants have no objection in declaring the title of the plaintiff I answer this issue accordingly.

Trial court held further thus:

Issue No. 5: In the result, the suit is partly decreed, declaring the title of the plaintiff with regard to 32 3/4 feet east to west and granting injunction

only as regards to that portion. In other respects the suit is dismissed. The parties are directed to bear their respective costs. Exs. C-6 and C-7

Commissioner''s final report and plan shall form part of the decree.

Aggrieved by the judgment, plaintiff preferred A.S. No. 148 of 1978, on the file of Subordinate Judge''s Court Chidambaram. Defendants did

not file any cross-appeal, nor were they aggrieved by the decision of the trial court. But while disposing of the Appeal, the lower appellate court

passed a decree as follows : In paragraph 19 of the judgment, it declared thus:

...A perusal of Exs. C-6 and C-7 reveals that the respondents are entitled to claim 25 3/4 feet east west, west of the points A-1 B marked in Exs.

C-7, i.e., the respondents are entitled to claim a vacant site measuring 1''9"" both on the northern side and the southern side west of the point C D

marked in Ex. C-7 in view of Ex. A-2 sale deed. Thus, it is crystal clear that the appellants would be entitled to claim a vacant site measuring 31''

east-west only west of the property of the respondents, measuring 25 3/4 feet. Therefore, I hold that the finding of the lower court that the

appellant is entitled to claim 32 3/4 feet east-west in the vacant site is not a correct one. For the reasons stated above, I hold that the finding of the

lower court regarding issue No. 4 is not a correct one, and that the decree of the lower court has to be modified regarding the east-west

measurements of the suit property, as proved by documentary evidence Exs. C-6 and C-7. Hence, I find the point No. 3 partly in favour of the

appellant.

On the basis of the said finding, the decree passed by the trial court was also modified against the appellant. After the disposal of the appeal, the

appellant herein filed I.A. No. 56 of 1982 to review the judgment on the ground that the modification made by the lower appellate court was

without jurisdiction since the respondents have not filed any appeal or cross-appeal. After getting notice of that review petition, respondents filed

I.A. No. 73 of 1980 to review the judgment. It is the grievance of the appellant that the said Interlocutory Application to review the judgment was

allowed even without giving notice to him and an order was passed as follows:

Vacant site measuring 31 feet east-west, east of the ""EF"" line marked in Ex. C-7, west of 25 3/4 feet from Al B line marked in Ex. C-7.

The said modification was directed to be incorporated in paragraph 20 lines 17 and 18 of the judgment.

It is against the order allowing the review and dismissal of I.A. No. 56 of 1982, the civil revision petition is filed, and against the decree, second

appeal is filed.

At the time Of admission of the second appal, the following substantial questions of law have been raised:

(1) Whether the lower appellate court, in an appeal at the instance of the plaintiff who succeeded in the trial court, was right in taking away the

relief granted, in the absence of any appeal or cross-objections by the defendants? and

(2) Whether, as a matter of construction of Ex. A-1, the appellant is not entitled to an east-west measurement of 37 1/2 feet of land?

Even though the appellant has taken grounds challenging the correctness of the judgment and decree of the courts below, at the time of

argument, the only point canvassed was confined to ground No. 1 and, therefore, I need not answer that question for the disposal of this second

appeal.

I have already stated that the trial court while partly granting a decree in favour of the plaintiff, has stated that the defendants have no objection

in passing a decree declaring the title of the plaintiff for 32 3/4 feet east west, and in fact, that was not the subject-matter of the appeal before the

lower appellate court. The subject-matter of the appeal was only that portion of the decree which went against the plaintiff. He claimed that he is

entitled to a decree for the entire 37 1/2 English feet east west. Since the defendants also did not have any objection for passing a decree as

granted by the trial court. They also did not prefer any cross-appeal or cross-objection. But when the lower appellate court disposed of the

appeal, it modified the decree against the appellant, and even the decree granted by the trial court, as conceded by the defendants, was changed.

Now, the question is, whether the lower appellate court is justified in modifying the decree when there was no cross-objection or cross-appeal by

the defendants.

Order 41, Rule 22, C.P.C. governs the right of a respondent to support the decree of the trial court without filing any cross-appeal or cross-

objection. But at the same time, if he wants a modification of the same, the appellate court cannot do so without the respondent filing a cross-

appeal. Order 41, Rule 22, C.P.C. reads thus:

(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 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.

Form of objection and provisions applicable thereto: (2) 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) Unless the respondents files with the objection a written acknowledgement from the party who may be affected by such objection or his

pleader of having received a copy thereof, the appellate court shall cause a copy to be served, as soon as may be after the filing of the objection,

on such party or his pleader at the expense of the respondent. ,

(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.

In Thadigadapa Jayalakshmamma and Another Vs. Guntupalli Ramachandrayya, , a Full Bench of this Court considered a similar question,

and, at page 700, their Lordships held thus:

...The court cannot set the decree aside, because it has become final, but it is open to the defendants to repel the plaintiffs'' case for an increased

decree by showing that they were not really entitled to a decree at all....

Concurring with the above legal position, another Judge held thus:

...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....

The Full Bench decision of this Court was approved by the Supreme Court and the same is reported in Sri Chandre Prabhuji Jain Temple and

Others Vs. Harikrishna and Another, . In paragraph 21, their Lordships held thus:

In The Management of Itakhoolie Tea Estate Vs. Its Workmen, , the question whether in such circumstances, a respondent who has not appealed

from, the decree can be allowed to urge such a plea in answer to a claim by an appellant for a further decree although the plea might imperil the

decree already obtained, was left undecided. But the Full Bench decision of the Madras High Court in Venkata Rao v. Satyanarayanamurthy AIR

1943 Mad. 698 : ILR 1944 Mad. 149, has held that it is open to a respondent who had not filed cross-objection with respect to the portion of the

decree which had gone against him"" to urge in opposition to the appeal of the plaintiff, a contention which if accepted by the trial court would have

necessitated the total dismissal of the suit"" but that the decree in so far as it was against him would stand. The decree of the High Court here in so

far as it held that the mortgage money can be recovered only from the half-share in the properties was also a decree in favour of the respondents

as it did not allow the claim of the appellants to recover it from the entire interest in the properties. To that extent, the Vespondents had a decree in

their favour. That decree they could support'' on any of the grounds decided against them by the court which passed decree. And when they do

this, they are only supporting and not attacking that decree. We think that the rule laid down by the Madras High Court in the above decision is

found....

[Italics supplied]

In view of the above two decisions, it cannot be doubted that the modification of the decree against the appellant which was not the subject-

matter of the appeal or cross-appeal was without jurisdiction. In fact, the respondents could not have agitated the matter since the trial court had

recorded the statement of the first defendant that he had no objection in passing such a decree. It is more or less a conceded judgment that was

granted by the trial court.

Learned Counsel for the respondents submitted that the appellate court has got power under Order 41, Rule 33, C.P.C. 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,

and the learned Counsel further reiterated the words in that Rule, ''and 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''. It is the contention of the learned Counsel that the power of the appellate court is very wide, and if any

defect in the judgment of the trial court is brought to the notice of the appellate court, the appellate court is given the power to rectify that mistake.

Though the said argument seems to be attractive, I do not think the legal position submitted by learned Counsel is correct. In Nirmala Bala

Ghose and Anr. v. Balai Chand Ghose AIR 1965 5.C. 1874 : (1965) 2 S.C.W.R. 988, their Lordships said thus:

...The rule, however, does not confer an unrestricted right to re-open decrees which have become final merely because the appellate court does

not agree with the opinion of the court appealed from....

Their Lordships further held thus:

Order 41, Rule 33 is primarily intended to confer power upon the appellate court to do justice by granting relief to a party who has not appealed,

when refusing to do so, would result in making inconsistent, contradictory and unworkable orders.

In this case, while modifying the decree granted by the trial court; the lower appellate court said that the respondents are entitled to an area of

1''9"" and that area will have to be deducted while measuring the east-west measurement of the plaintiff''s property. The declaration granted in

favour of the respond dents has nothing to do with the decree to be granted to the plaintiff and before the trial court, they did hot seek any

declaration, nor did they request for a decree in their favour. Having conceded that the plaintiff is entitled to 32 3/4'', they cannot appeal to the

lower appellate court that they are entitled to a vacant site of 1''9"" both on the northern side and southern side. The modification was not to cure an

inconsistent, contradictory or unworkable decree, and no special reasons have been mentioned by the lower appellate court to exercise the power

under Order 41, Rule 33. C.P.C.

In Tummalla Atchaiah Vs. Venka Narasingarao, , their Lordships said that the power under Order 41, Rule 33, C.P.C. cannot be exercised,

which would have been subject-matter of an appeal or cross-appeal. In that case, the plaintiff filed the suit for cancellation or setting aside of a

registered assignment deed/executed by him in favour of the defendant and for recovery of possession. The trial court passed a decree canceling

the deeds. But a condition was provided that the plaintiff has to pay a sum of Rs. 13,000 for cancellation. The defendant alone preferred an appeal

and against the condition imposed for payment of Rs. 13,000 there was no appeal or cross-objection. In spite of the same, when the matter was

taken in appeal, the defendant''s appeal was dismissed. But the amount of Rs. 13,000 directed to be paid by the plaintiff was reduced to Rs.

7,600. That part of the decree of the High Court was challenged before the Supreme Court, and while considering the same, their Lordships held

thus:

...that the High Court was wrong in taking recourse to Order 41, Rule 33, C.P.C. in interfering with the decree of the trial court in relation to

payment of Rs. 13,000. Without a specific ground in the cross-objection and without payment of court-fees on the said amount he was not entitled

to get any relief by the court, under Order 41, Rule 33, C.P.C.

The above said decision of the Supreme Court was followed in the decision reported in Ram Chandra Choudhary and Another Vs. Mosstt.

Rampabitri Devi and Others, , wherein it was held thus:

If a part of the decree has not been appealed from, then that cannot be modified or set aside is that part is not dependent upon the decree the

appellate court intends to pass in the appeal.

Where the plaintiff''s suit for recovery of possession of land was decreed to certain extent, the appellate court would have no jurisdiction to

increase the extent of land in the appeal filed by the defendant.

In view of the settled position of law declared by the Supreme Court, and also followed by other High Courts, it cannot be doubted that the

contention raised by the respondents that the lower appellate court can exercise the power under Order 41, Rule 33, C.P.C. cannot be sustained.

The modification of the trial court decree by the lower appellate court is, therefore, without jurisdiction and illegal. Question No. 1 is, therefofe,

answered in favour of the appellant.

The decree of the lower appellate court is, therefore, set aside, and that of the trial court is restored. The second appeal is allowed to the

extent indicated above.

C.R.P. No. 1886 of 1987: Insofar as the revision is concerned, the same is also to be allowed in view of my finding in the second appeal.

Further, no notice was given to the appellant herein before passing the impugned order. No ground is also made out to invoke the jurisdiction

under Order 47, Rule 1, C.P.C. for reviewing the judgment. When the defendants did not have any objection for the trial court passing a decree as

done by it, the defendants have no right to file an interlocutory application to review the judgment on the ground of any error apparent on the fact

of the record. No other sufficient cause is also shown to review the judgment. The order of the court below passed in I.A. No.56 of 1982 filed by

the appellant is, therefore, liable to be allowed. The order passed on the application filed by the respondents is liable to be set aside, and I do so

accordingly.

In the result, the civil revision petition is also allowed by allowing I.A. No. 56 of 1982 filed by the appellant herein. No costs.