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Jatani Dei Vs. Udayanath Behera - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 60 of 1978
Judge
Reported inAIR1983Ori252
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 22
AppellantJatani Dei
RespondentUdayanath Behera
Appellant AdvocateB.R. Rao and ;B.L.N. Swamy, Advs.
Respondent AdvocateN.C. Patnaik, ;B. Mohanty, ;R.K. Moharana, ;A. Pasayat and ;B. Patnaik, Advs.
DispositionAppeal allowed
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........the property on receipt of the consideration under the registered sale deed, ext. a.4. the learned trial judge held ext. a to be genuine and valid and for consideration. he further found that raghunath died 40 years back; but was of the view that the widow and the daughters succeeded raghunath and so, the plaintiff was entitled to relief under section 4 of the partition act.5. defendant 1 carried an appeal. therein his point was that in view of the finding of the learned trial judge that raghunath died 40 years back, the daughters had no share in the property and the widow, the only heir, having transferred the property for legal necessity and on receipt of consideration, the decree passed by the trial judge was erroneous in law.6. the appellate judge rightly framed the point as 'the.....
Judgment:

R.C. Patnaik, J.

1. This second appeal is directed against the appellate decree passed by the Subordinate Judge, Bhubaneswar dismissing the plaintiff's suit under Section 4, Partition Act, reversing the decree granted by the Munsif, Bhubaneswar.

2. Raghunath Jena, the original owner, died 16 or 17 years back leaving behind Bela (defendant 2), the widow and Jatani (plaintiff) and Ratani (defendant 3), the daughters. The plaintiff married one Kulamani and Kulamani and the plaintiff lived with Bela in the residential house left behind by Raghunath. It is alleged that on 19-8-1975 under a registered sale deed the widow sold the residential house to defendant 1. The sale deed is assailed as nominal and fraudulent. It has further been asserted that defendant 1 being a stranger, the plaintiff was entitled to get the property reconveyed under Section 4 Partition Act. The cause of action for the suit is alleged to be the threats of defendant 1 to dispossess the plaintiff.

3. Defendants 2 and 3 supported the plaintiff. The plea of defendant 1 is that Raghunath died 40 years back leaving behind the widow as the only heir and for legal necessity, the widow sold the property on receipt of the consideration under the registered sale deed, Ext. A.

4. The learned trial Judge held Ext. A to be genuine and valid and for consideration. He further found that Raghunath died 40 years back; but was of the view that the widow and the daughters succeeded Raghunath and so, the plaintiff was entitled to relief under Section 4 of the Partition Act.

5. Defendant 1 carried an appeal. Therein his point was that in view of the finding of the learned trial Judge that Raghunath died 40 years back, the daughters had no share in the property and the widow, the only heir, having transferred the property for legal necessity and on receipt of consideration, the decree passed by the trial Judge was erroneous in law.

6. The appellate Judge rightly framed the point as 'the only point for consideration in this appeal is whether the plaintiff can maintain a suit under Section 4 of the Partition Act'. He, however, fell into error in not permitting the plaintiff-respondent before him to challenge the correctness of the finding of the trial Judge regarding the time of death of Raghunath on the ground that 'this finding of fact by the trial Court is not disputed by way of filing a cross appeal''.

7. Holding that the daughters were not heirs of Raghunath and the widow became the full owner on the coming into force of the Hindu Succession Act, 1956, the plaintiff, who was not a share holder in the dwelling house, was not entitled to relief under Section 4 of the Partition Act, the appellate Judge dismissed the suit. If the finding that Raghunath died 40 years back remains unshaken, the conclusion is inescapable.

8. However, it has been urged by Mr. B. L. N. Swamy learned counsel for the appellant, that the appellate judge denied the plaintiff-appellant the opportunity of challenging the finding recorded by the trial judge on the erroneous assumption that the finding was not available to be challenged without a cross objection. He submitted that under the provisions of Order 41, Rule 22 of the Civil P. C. any respondent can, in order to support a decree passed by the lower court, may assert that the findings recorded against him should have been recorded in his favour.

9. Order 41, Rule 22 C. P. C. permits the respondent who may not have appealed from any part of the decree to support the decree and state that the finding against him in the court below in respect of any issue ought to have been in his favour. When the respondent supports the decree, he need not file any cross objection because when the decree is in his favour cross objection is not maintainable. Cross objection, in such situation, is inconceivable, Cross objection is filed against a part of the decree.

10. In view of the aforesaid settled position in law, this second appeal is bound to be allowed and the matter remitted to the lower appellate court for a rehearing of the appeal. The respondent has the right, if he so chooses, to challenge the finding recorded, against him by the learned trial Judge.

11. The second appeal is accordingly allowed, the judgment and decree of the lower appellate court are set aside and the matter is remitted to the lower appellate court for disposal according to law keeping in mind the observations made above. The appeal be disposed of within two months from the date of receipt of the record. There would be no order as to costs.


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