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(Rai) Govind Chand Vs. Gajadhar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1934All677
Appellant(Rai) Govind Chand
RespondentGajadhar
Excerpt:
- - in view of the plaintiff's failure to raise in the lower appellate court the point which has been raised in this court, i direct that he should bear his own coats in this court......court of the subordinate judge, mirzapur, not by bijai mal but by gajadhar. in the memorandum of appeal gajadhar challenged the decree of the trial court on all grounds on which bijai mal, the contesting defendant could have done. bijai mal, was impleaded as a respondent along with the plaintiff. he, did not enter appearance in spite of personal service. the appeal was argued by both the parties on the merits and was allowed. the decree of the trial court was set aside and the plaintiff's suit was dismissed. the present is a second appeal by the plaintiff against gajadhar and bijai mai. one of the grounds taken in the memorandum of appeal is that, in view of gajadhar's application disclaiming all interest in the subject-matter of the litigation, he was not competent to appeal from the.....
Judgment:

Niamatullah, J.

1. This is by far the most curious case I have had experience of. It has arisen out of a suit brought by Rai Govind Chand, against Gajadbarand Bijai Mai for possession of a piece of land by demolition of certain constructions alleged to have been made by the defendants. The plaintiff is the sole zamindar of village Sikhar, in which the land in dispute is situate. His case was that the land in dispute had become 'parti' the house of Gajadhar, which stood thereon, having fallen down many years before the suit and that the defendants started a new construction about eight days before the institution of the suit. On the date fixed for settlement of issues, an application signed by the defendant Gajadhar and by his pleader was filed in the trial Court. He declared that he had no interest in the house or the land, and that he had been improperly impleaded as the defendant. He prayed that an order of discharge from the array of the parties be passed and costs awarded to him. The defendant Bijai Mai, who is the brother of Gajadhar, contested the suit. His defence was that the house in dispute originally belonged to Gajadhar and was sold in execution of a decree against him. One Sheo Baran purchased it in auction. Sheo Baran sold it to Earn Kishore by a deed, dated 8th August 1906. Earn Kishore, in his turn, sold it to the son of Bijai Mai by a deed, dated 14th September 1927. The defendant Bijai Mai asserted in his written statement that Gajadhar had nothing whatever to do with the house. He did not admit that the site of the house had become parti'. He said in para. 10 of his written statement that the house was in a dilapidated condition {mutuazalzal halat men that), and that he started construction after purchasing the same from Ram Kishore. He denied the plaintiff's right to recover possession having regard to the provisions of the wajib-ul-arz of the village.

2. The trial Court struck a number of issues arising from the plaint and the written statement of Bijai Mai. No order seems to have been passed on the application of Gajadhar. Probably the trial Court intended to take notice of it in its judgment. This was not however done, and the issues having all been decided in favour of the plaintiff, his suit was decreed with costs, without naming the defendant against whom the decree was to operate or mentioning that it was against both the defendants. The decree was, however, so framed as to be one in favour of the plaintiff against the defendants. The plaintiff had also claimed a relief for compensation for certain trees cut down by the defendants. His suit for that relief was dismissed.

3. An appeal was filed in the Court of the Subordinate Judge, Mirzapur, not by Bijai Mal but by Gajadhar. In the memorandum of appeal Gajadhar challenged the decree of the trial Court on all grounds on which Bijai Mal, the contesting defendant could have done. Bijai Mal, was impleaded as a respondent along with the plaintiff. He, did not enter appearance in spite of personal service. The appeal was argued by both the parties on the merits and was allowed. The decree of the trial Court was set aside and the plaintiff's suit was dismissed. The present is a second appeal by the plaintiff against Gajadhar and Bijai Mai. One of the grounds taken in the memorandum of appeal is that, in view of Gajadhar's application disclaiming all interest in the subject-matter of the litigation, he was not competent to appeal from the decree of the trial Court and, at all events, he should not have been allowed to assail the decree, except so far as it adversely affected him. It may be mentioned here that the only extent to which the trial Court's decree can be said to affect him adversely is as regards costs, which were awarded in general terms by the judgment and expressly against both the defendants by the decree. Bijai Mai has not entered appearance in this Court. Gajadhar, who is the contesting respondent, is represented by a learned Counsel. It is inconceivable that Gajadhar should have thought of appealing from the decree of the trial Court after this application disclaiming interest in the subject matter of the litigation. It is likewise inconceivable that Bijai Mai, who had contested the plaintiff's claim tooth and nail in the trial Court should have acquiesced in the decree passed by that Court and refrained from appealing there from. The learned advocate for the appellant suggests that Bijai Mai having lost the case in the first Court did not care to appeal. I am not convinced by this explanation.

4. It seems to me that a deplorable mistake was committed in drawing up the appeal and filing it. The judgment of the trial Court refers to Gajadhar as 'defendant No. 1' and to Bijai Mai as 'defendant No 2.' The pleader, who drew upi the memorandum of appeal and filed it, probably confused the two names, and instead of filing an appeal on behalf of Bijai Mal did so on behalf of Gajadhar. If there had been nothing else to prevent justice being done between the parties, I would have had recourse to Section 151, Civil Procedure Code, in rectifying errors which were inadvertently committed. The matter, however is one in which that course does not seem tome to be permissible. The petition of appeal to the lower appellate Court was signed by a pleader, who had been appointed by Gajadhar under a 'vakalat-iriiama' bearing his signature as Gajadhar baqalam khud'. Bijai Mai did not engage any pleader, nor put in appearance. By mo stretch of imagination can it be 'maintained that the appeal filed in those circumstances should be considered to be the appeal of Bijai Mal. While there is no reason to believe that the intention of the pleader appearing for the appellant in the lower appellate Court was to file an appeal on behalf of the contesting defendant and that he took Gajadhar to be such a defendant and filed the appeal on his behalf. Gajadhar and Bijai Mai being both ignorant persons did not question the irregularity of the action of the pleader and thought that the appeal must have been tiled on behalf of the right person. What is worse, the appeal was filed by the pleader who had conducted the case on behalf of Bijai Mai in the trial Court. If my surmise is correct he was guilty of gross negligence throughout the pendency of the appeal in the lower appellate Court. The plaintiff also overlooked the fact that his opponent in the lower appellate Court was Gajadhar, who had disclaimed all interest in the house, and not Bijai Mai. The lower appellate Court also did not notice the fact that the appeal was by Gajadhar who had on his showing no interest in the case and not by Bijai who had contested the suit. The question is whether an omission on the part of the plaintiff to contend in the lower appellate Court as is done here that the appellant Gajadhar was not competent to file an appeal from a decree which did not adversely affect him is fatal to his appeal. I am unable to hold that the plaintiff is estopped in any manner. The objection taken by him in this Court goes to the very root of the appeal preferred against him by Gajadhar. The utmost that can be done is to make him pay costs of this appeal, which was rendered necessary by his negligence in the lower appellate Court.

5. I do not think Section 151, Civil P.C. can be invoked so as to treat Gajadhar's appeal as the appeal of Bijai Mai only because it should have been filed on behalf of Bijai Mai and it was the intention of the pleader filing to appear on behalf of the contesting defendant. The fact remains that the pleader, who filed the appeal, had no authority from Bijai Mal to file the appeal. He did not file one on behalf of Bijai Mal. I am unable to relieve Bijai Mal of the effect of negligence on the part of the pleader instructed to file an appeal for his benefit, assuming my theory is right. The next question is whether it was open to Gajadhar to urge all such pleas in the lower appellate Court as could have been done by Bijai Mal. Section 96, Civil P.C. gives right of appeal from every decree passed by a Court of jurisdiction. The right of appeal vests in every party adversely affected by the decree. In so far as the decree awarded costs against Gajadhar, the decree did adversely affect him. He had a right of appeal; but the question is whether he had a right of appeal from every part of the decree. The expression 'decree' is defined in the Civil P.C. as meaning the formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. In one document, described as decree, there may be several adjudications. The formal expression of the Court of an adjudication as regards a particular right in controversy may be separate and distinct from a formal expression of an adjudication on another right in controversy.

6. In other words, in one document described as a decree there may be several decrees within the meaning of that expression as defined in Section 2(2), Civil P.C. In so far as the decree of the trial Court determined the plaintiff's right to recover possession of the land in dispute and to have the house constructed by Bijai Mai demolished, it was a decree which did not adversely affect Gajadhar, who on his own showing, had no interest in the subject matter of the suit. It did adversely affect Gajadhar so far as it awarded costs against him. Id likewise affected him adversely in as far as a decree was passed against him in the face of what he stated in his application his prayer that he be forthwith discharged from the array of the parties. In this view the appeal of Gajadhar to the lower appellate Court was competent so far as costs ware concerned and in respect of the relief of possession and demolition for which the plaintiff had no cause of action against him. He could not appeal from that part of the decree which awarded to the plaintiff possession of the land and the relief of demolition of the construction made by Bijai and existing at the date of the decree.

7. For the reasons stated above, I am constrained to allow the plaintiff's appeal on the preliminary ground, set aside the decree passed by the lower appellate Court and modify the decree of the trial Court so far as it awards costs against Gajadhar or decrees the suit for possession and demolition against him, he having no interest whatever in the subject matter of the suit. The decree passed by the trial Court, so far as it is against Bijai Mal, will stand. In view of the plaintiff's failure to raise in the lower appellate Court the point which has been raised in this Court, I direct that he should bear his own coats in this Court. The parties shall pay their own costs in the lower appellate Court.


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