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Nanda Lal Agarwalla Vs. Rameswar Lal Sharma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberC.O.T. Nos. 2565 and 2566 of 1976 in S.A. Nos. 1033 and 1034 of 1976
Judge
Reported inAIR1979Cal30
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 22
AppellantNanda Lal Agarwalla
RespondentRameswar Lal Sharma
Appellant AdvocateSakti Nath Mukherji and ;Deba Prosad Mukherji, Advs.
Respondent AdvocateBidyot Kumar Banerji, Adv.
Cases Referred(Smt. Ganga Bai v. Vijay Kumar). In
Excerpt:
- .....been, in fact, joint in estate), the widow could have supported the decree, without filing a cross appeal as to that finding, on the ground that the decree had been rightly made, (though not for the reason given) in her favour'. the facts of this case are different and i do not see how the proposition of law laid down in this case helps the appellants. mr. mukherji next relies on a decision reported in (1969) 73 cal wn 88 (nrisingha prosad rakshit v. the commissioner of bhadreswar municipality). in this case, thesuit was filed for recovery of damages on the ground of negligence. on negligence, the finding was against the defendant. but, nevertheless the suit was dismissed. in an appeal by the plaintiff the defendant filed a cross objection challenging the finding on the ground of.....
Judgment:

N.C. Mukherji, J.

1. These two cross objections were filed in the two appeals which arise out of the judgment and decrees passed by Shri S. K. Ghosal, Additional District Judge, 9th Court, Alipore in Title Appeal Nos. 1067 and 1148 of 1973 dated 15-5-7,6 substantially affirming those of Shri S. Chakraborty, Munsif, 4th Court, Sealdah in Title Suit Nos. 332 and 333 of 1967 dated 11-8-73.

2. The plaintiffs brought two suits for ejectment of the defendants on the ground of building and rebuilding and for own use and occupation. The trial court decreed the suits on both the grounds. Being aggrieved, the plaintiffs preferred two appeals before the learned District Judge. The appeals were heard by the learned Additional District Judge, who affirmed the findings of the learned Munsif that the plaintiffs were entitled to get decrees for ejectment on the ground of building and rebuilding. The learned Judge also agreed with the finding of the learned Munsif that the plaintiffs required the premises for own use and occupation. But the learned Judge refused to pass decrees for eviction on that ground as it was found by the learned Judge that the plaintiffs were not full owners of the suit premises and were only co-sharers. In that view of his finding, the learned Judge dismissed the appeals. Being aggrieved, the defendants have come up to this Court. The plaintiffs have filed two cross objections challenging the finding of the learned Judge that the plaintiffs are not entitled to get decrees for eviction on the ground of own use and occupation. On August 7, 1978 it was stated by the learned Advocate appearing on behalf of the appellants that he had instructions not to proceed with the appeals. In the circumstances, the appeals were dismissed for non-prosecution without any order as to costs. Though the two appeals were dismissed, it was mentioned by the learned advocate appearing on behalf of the cross objectors that the cross objections should be disposed of. The cross objections were then placed for hearing,

3. Mr. Sakti Nath Mukherji, learned Advocate appearing on behalf of the appellants, takes a preliminary objection regarding the maintainability of the cross objections. It is contended by Mr. Mukherji that the respondents got decrees for ejectment in the court of appeal below. The finding of the learned Judge that the plaintiffs are not entitled to get a decree for ejectment on the ground of own use and occupation has not been incorporated in the decree and that being so, Mr. Mukherji submits that in such circumstances, the respondents cannot challenge those decrees by filing cross objections. Mr. Mukherji contends that the decree passed by the learned court of appeal below being wholly in favour of the plaintiff the plaintiff could not have filed any appeal challenging a finding which has been made against him, inasmuch as the decrees passed by the learned court of appeal below are not based on such finding. Mr. Bidyut Kumar Banerji, learned advocate appearing on behalf of the respondents cross-objectors, contends that the plaintiff filed suits on two grounds namely, building and rebuilding and that after building and rebuilding the premises in question would be used for establishing the plaintiff's sons in business. The trial court decreed the suits for eviction on both the grounds. The court of appeal below also affirmed the findings of the trial court that the plaintiffs succeeded in proving both the grounds. But, in view of the fact that the plaintiff is not the sole owner of the property in dispute and that he is only one of the co-owners it was found that he was not entitled to get a decree for own use and occupation. The learned court of appeal below relied on the decision reported in : (1973)77CALLT613(HC) (Sriram Pasrisha v. Jagannath Sen). This decision was reversed by the Letters Patent Bench in the decision reported in (1975) 1 Cal LJ413 (Jagannath Sen v. Sriram Pasrisha). The decision of the Letters Patent Bench was affirmed by the Supreme Court in a case reported in AIR 1978 SC 2335 (Sri Ram Pasrisha v. Jagannath). Now, it is the settled position that a co-owner is entitled to get a decree on the ground of own use and occupation. Mr. Mukherji states that in view of the decisions referred to above, it must be said that the finding of the court of appeal below is not correct. Mr. Banerji contends that the plaintiffs' case for eviction was on the ground of own use and occupation. For the purpose of own use and occupation, it is necessary to rebuild the suit premises. If he gets a decree only on the ground of building and rebuilding and if the decree on the ground of own use and occupation is refused, the plaintiff will be very much prejudiced. In fact, the court of appeal below found that the plaintiff required the suit premises for own use and occupation. But relying on the decision which has since been overruled, the learned court of appeal below found against the plaintiff, Mr. Benerji contends that the plaintiff has been very much affected by the finding and as such, the plaintiff's cross objections are quite maintainable. It is true that in the decree the finding has not been incorporated. But Mr. Banerji submits that the decree should be read with the judgment and in the judgment it has been clearly stated that the plaintiff cannot get a decree for eviction on the ground of own use and occupation, but he is entitled to a decree for eviction on the ground of building and rebuilding. True it has not been mentioned in the decree that the plaintiffs ground for eviction on the ground of own use and occupation has been refused, nevertheless, reading the judgment and decrees there cannot be any doubt that the plaintiff's case on the ground of own use and occupation has been negatived by the court of appeal below and that being so, the plaintiff is very much aggrieved by the decrees. Mr. Banerji in support of his contention that in the circumstances of the case, cross objections filed by the plaintiff are quite maintainable first relied on a decision reported in AIR 1950 Assam 119 (Bhubindra Narayan Bhattacharjya v. Mt. Tarupriya Debya). In this case, the question arose as to who could file an appeal. It has been held 'notwithstanding that suit has been dismissed against a defendant, he has the right of appeal if he is aggrieved by thedecree. The question whether he is aggrieved by the decree is a question of fact to be determined in each case according to its particular circumstances. In order to find out whether a defendant is aggrieved by a decree dismissing the suit against him, it is not merely the form but the substance of the decree and the judgment that should be looked into. Where the point adversely decided to such a defendant is directly and substantially in issue and where it will operate as res judicata in subsequent proceedings, the defendant should have the right of appeal against the decree though the particular finding is not embodied or incorporated in the decree.' Mr. Banerji contends that in the present case also much importance should not be attached to the form of the decrees, the substance of the decrees and the judgment should be looked into and considering the facts of the case there can be no hesitation to say that the plaintiff is very much aggrieved by the decree passed by the learned court of appeal below. That being so, he could have preferred appeals, against such decrees. But, when the defendants have preferred the appeals, the cross objections filed by the plaintiff are quite maintainable. Mr. Banerji also seeks reliance from the decision reported in (1905) 9 Cal WN 584 (Krishna Ch. Goldar v. Mohesh Ch. Saha). The next case relied on by Mr. Banerji has been reported in (Union of India, Ministry of Food and Agriculture, New Delhi v. Pearl Hosiery Mills). In this case, their Lordships after considering the provisions of Section 96 of the Civil Procedure Code held as follows, 'Section 96 Civil Procedure Code does not in terms lay down as to who can file an appeal; it does not prescribe that it is only that person against whom a decree has been passed or against whom a relief has been granted, who can come in appeal. Any person who can show that he is aggrieved by the decree, can file an appeal against the same. For determining as to who is an aggrieved person, one has to look to all the circumstances of the case and the substance of the decree passed.' In coming to the decision their Lordships relied on the decision reported in (1905) 9 Cal WN 584. The next case relied on by Mr. Banerji has been reported in (1935) 39 Cal WN 567 (Hara Ch. Das v. Bhola Nath Das). In this case, it has been held 'under the strict letter of the provision in theCivil Procedure Code relating to the right of appeal, no appeal lies by a party in whose favour a decree has been passed against a finding contained in the judgment. But on grounds of justice, it is justifiable and even necessary to read in the provision in the Code an implication in favour of suitable exceptions; and the rule in this respect which has been engrafted on the statute by a current of judicial decisions and which it is right to follow, is that a party in whose favour a decree has been passed may, nevertheless, have a right to appeal against a finding adverse to him -- the test to be applied in each particular case being whether the finding, sought to be appealed against, is one to which the rule of res judicata may be held to be applicable so as to disentitle the aggrieved party to agitate the question covered by the finding in any other proceeding'. Mr. Banerji contends that if the finding of the court of appeal be- low be allowed to stand, then in any subsequent proceeding the plaintiff will be precluded from raising the point that he is entitled to get a decree on the ground of own use and occupation and as the plaintiff is very much aggrieved by the decrees passed by the court of appeal below he could very well file appeals against the adverse finding made against him though the finding has not been incorporated in the decree and if the plaintiff could file appeals, the cross objections which have been filed by him must be considered as maintainable. Mr. Banerji also relies on a decision reported in (1938) 42 Cal WN 492 (Tarapada Ghose v. Sakhi Kanta Behara). In this case, his Lordship fully relied on the decision reported in (1935) 39 Cal WN 567.

4. Mr. Mukherji contends that no appeal lies against a finding specially in a case when the decree is wholly in favour of a person against whom a finding has been made and when the finding has not been incorporated in the decree and when the decree has been passed in full. Mr. Mukherji contends that in this case the plaintiff brought suits for eviction true on two grounds. Nevertheless, his suits for eviction have been decreed by the appellate court, though the appellate court found that he was not entitled to get decrees for eviction on one of the grounds. In such circumstances, according to Mr. Mukherji, the plaintiff could not have preferred appeals against such judgment and decrees and that being so, the cross objections filed by the plaintiff are not maintainable. Mr. Mukherji in support of his contention refers to a number of decisions. The first case cited by Mr. Mukherji has been reported in (1881) ILR 6 Cal 319 (FB) (Niamut Khan v. Bhadu Buldia). In this case, it has been held that 'the material findings in each case should be embodied in the decree, and if they are not, it is incumbent on the parties, to avoid their being bound by decisions against which they have no right of appeal, to apply to amend the decree in accordance with the judgment.' In this case, it was further held that 'unless the finding is embodied in the decree, the party against whom the issue is decided will have no right to appeal against it. Appeals can only be preferred against the decrees, not against the judgments of the lower Courts'. The next case relied on by Mr. Mukherji has been reported in (1885) ILR 11 Cal 301 (Run Bahadur Singh v. Lucho Koer). In this case, a suit was brought in the Court of the Subordinate Judge by a Hindu against a widow of his deceased brother, claiming his property by right of survivorship, the issue being whether, at the death of the latter, the ownership of the brothers was joint or separate. An order under Act XXVII of 1860, granting a certificate to the widow did not on the above issue, operate as res judicata in the widow's favour, being a proceeding of representation, and not otherwise of title. It was held, in this case that 'the brother having appealed against a decree dismissing the suit as res judicata (the judgment which that decree followed having, nevertheless, found that the widow was disentitled by reason of the brothers having been, in fact, joint in estate), the widow could have supported the decree, without filing a cross appeal as to that finding, on the ground that the decree had been rightly made, (though not for the reason given) in her favour'. The facts of this case are different and I do not see how the proposition of law laid down in this case helps the appellants. Mr. Mukherji next relies on a decision reported in (1969) 73 Cal WN 88 (Nrisingha Prosad Rakshit v. The Commissioner of Bhadreswar Municipality). In this case, thesuit was filed for recovery of damages on the ground of negligence. On negligence, the finding was against the defendant. But, nevertheless the suit was dismissed. In an appeal by the plaintiff the defendant filed a cross objection challenging the finding on the ground of negligence. It was held 'but where (as here) only a particular issue of negligence is found against the defendant-Municipality, and at the same time the decree dismissing the whole of the suit is completely in its favour, a cross objection as I find on the record is clearly called for'. The facts of this case are completely different from the facts of the present case. In the present case, the plaintiff sought eviction on two grounds. Firstly, that he requires the suit premises for his own use and occupation and secondly, for the said purpose the suit premises is required to be rebuilt. As has already been indicated the plaintiff got decrees for eviction on the ground of building and rebuilding. But, his prayer for eviction on the ground of own use and occupation was refused. That being so, it must be said that one of the main reliefs, sought for by the plaintiff, has been refused by the court of appeal below and that being so, it cannot be said that there was no necessity of filing any cross objection by the plaintiff. Mr. Mukherji next relies on a decision reported in 73 Cal LJ 475: (AIR 1942 Cal 1) (Fateh Nasib v. Swarup Chand Hukum Chand (Firm)). In this case, it has been held that 'where several issues were framed, the decision on each issue which supports the ultimate decision in the case must be regarded as res judicata between the parties to to the suit. If a decision on the issue does not support the ultimate decree such decision cannot operate as res judicata between the parties to the suit.' Mr. Mukherji relying on this decision contends that the decrees passed by the Court of appeal below are not based on the finding made in the judgment and that finding has not been incorporated in the decree and as such, that finding cannot operate as res judicata. That being so, the plaintiff could not prefer any appeal against such finding and as such, the cross objections filed by the plaintiff are also not maintainable. The last case relied on by Mukherji has been reported in : [1974]3SCR882 (Smt. Ganga Bai v. Vijay Kumar). In this case, it has been held that 'the provisions of Sections 96, 100, 104(1), 105 read with Order 43. Rule 1 of the Code show that an appeal lies only as against a decree or an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal'. It was further held, in this case that 'the appeal was not maintainable in law as it was directed against a mere finding recorded by the trial court. The High Court was in error in entertaining the appeal'. In the present case, it cannot be said that the cross objections have really been filed against a finding of the court of appeal below. It is really against decrees of the court of appeal below. True that the finding has not been incorporated in the decrees, but reading the judgment there cannot be any doubt that the learned court of appeal below refused to pass decrees in favour of the plaintiff on the ground of own use and occupation. Thus, one of the main reliefs sought for by the plaintiff was refused by the learned court of appeal below. Mr. Mukherji next submits that in this case there is no pleading to the effect that the plaintiff has no other reasonably suitable accommodation besides the suit premises and unless that is pleaded and proved the plaintiff is not entitled to get a decree. Mr. Banerji repels this argument of Mr. Mukherji by stating that in para. 9 of the plaint it has been stated that the plaintiff is in dire need to place his sons in business who are all grown up and are quite competent to run a business independently, that Titagarh specially Mahatma Gandhi Road is an excellent business place at a controlled industrial area. Now a days, there is absolutely dearth of any business site here. Mr. Banerji also submits that these averments in para. 9 of the plaint have not been denied. In para. 6 of the written statement, it has been stated that the deed of partition is not an effective and legal deed and as such, the plaintiff cannot become the owner of the suit property as alleged in para. 4 of the plaint. The mutation of the plaintiff's name in the local Municipality and payment of Government revenue cannot confer title on the plaintiff as claimed by him. In para. 7 of the written statement it has been stated that in view of the above, all statements in the plaint from paragraphs 5 to 11 become meaningless and irrelevant. On such pleadings, both the courts below found that the plaintiff required the suit premises for own use and occupation. I find from the pleadings that the plaintiff has statedthat the Titagarh is a business centre and there is no other suitable site at Titagarh for business purpose besides the suit premises. The statements made in para. 9 of the plaint go to show that the plaintiff has stated that besides the suit premises he has no other reasonably suitable accommodation.

5. Mr. Mukherji next contends that the respondents have challenged the decree passed by the court of appeal below. That being so, he ought to have paid ad valorem court-fees instead of paying court-fees of Rs. 2/-. I do not think that the respondents are required to pay ad valorem court-fees on the memorandum of appeal. The court-fees paid by the respondents on the cross objections are found sufficient.

6. After hearing the learned Advocates for the parties at length and on a careful consideration of the decisions referred to by the learned Advocates and the legal position I find that the cross objections are quite maintainable and they should be allowed.

7. In the result, the cross objections are allowed on contest. The judgment passed by the learned court of appeal below is modified to the extent that the finding of the learned court of appeal below that the plaintiff is not entitled to get decrees on the ground of own use and occupation is set aside. It is found that the plaintiff is also entitled to get a decree on the ground of own use and occupation. The decree passed by the learned court of appeal below is modified to the following effect :--

The plaintiff do get decrees for eviction both on the ground of building and rebuilding and on the ground of own use and occupation. There will be no order for costs in these cross objections.


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