Banerjee and Stevens, JJ.
1. The points urged in the appeal of the defendants are--first, that the Courts below is wrong in holding that only a portion of the claim was barred by Section 13 of the Code of Civil Procedure, whereas it ought to have held that the whole of the claim was barred, partly under Section 13 and partly under Section 43 of the Code of Civil Procedure; second, that the Court below is Wrong in holding that the plaintiffs' claim was not barred by limitation, whereas upon the evidence it was clearly so barred; and, third that upon the question of title the Court below ought to have held that the plaintiffs have failed to make out their right to the lands in dispute.
2. For the plaintiffs, respondents, it is urged, by way of cross-objection, under Section 561 of the Code of Civil Procedure, first, that the Court below is wrong in holding that any part of the claim was barred under Section 13 of the Code of Civil Procedure; second, that the Court below is wrong in holding that the claim as against the subsequently added defendants was barred by the rule of three years' limitation; and, third, that the Court below was wrong in holding that the title of the plaintiffs was not made out with reference to a portion of the claim, whereas it ought to have held that; the plaintiffs' title had been made out with reference to the whole of the land in suit.
3. A preliminary objection was taken on behalf of the defendants respondents to the hearing of the cross-objections, on the double ground of these defendants having been wrongly made respondents in the case, and of the cross-objections, not being tenable by the plaintiffs respondents against their co-respondents.
4. We shall deal with the appeal first and then with the cross-objections and before disposing of the cross-objections we shall consider the preliminary Objection to their tenability.
5. In support of the first contention urged on behalf of the appellants no tangible ground has been shown why we should hold that the land of plot No. 1 on the Amin's map was either included in the claim in the previous suit, or that the claim in respect thereof had been relinquished in that suit. In the previous suit the present plaintiffs or their predecessors in title claimed three plots of land, all lying to the east of a certain khal. That khal, notwithstanding some change in position and magnitude by the shifting of its banks by encroachment or recess, is clearly shown by the evidence to be the same as the khal running north and south as shown in the present Amin's map, to the west of which lie the lands that have been decreed in favour of the plaintiffs in this suit. It cannot therefore possibly be said that any part of the land decreed in favour of the plaintiff's by the Court below formed part of the subject-matter of the former suit. Moreover, the land which the plaintiffs claimed in the former suit they claimed as being included in halkas Nos. 64 and 16, which they alleged to be their property, and no part of the lands of halka No. 15 was then in dispute; nor is it shown that the plaintiffs were then out of possession of any portion of the land now in dispute; so that it was not necessary for them to include in the former suit the lands now claimed by them. We must, therefore, hold that neither Section 13 nor Section 43 of the Code of Civil Procedure can bar the plaintiffs' claim to the lands in respect of which a decree has been granted in their favour by the Court below.
6. With reference to the second point urged on behalf of the appellants, namely, that the Court below should have held that the plaintiffs' claim was barred by the twelve years' rule of limitation, we are of opinion that though the lower Court's statement of the rule of law applicable to such cases may not be quite correct, and though, where the evidence on the side of the plaintiffs is absolutely false and unsatisfactory, it may not always be safe to apply the principle that possession follows title, yet having regard to the nature of the lands in dispute, and to the nature of the evidence, we think that the safe rule to apply with reference to the claim in respect of plot No. 1 would be that possession followed title, as has been held in the cases of Radha Gobind Roy v. Inglis (1880) 7 C.L.R., 364, and in Mahomed Ali Khan v. Khaja Abdul Gunny (1883) I.L.R., 9 Cal., 744, in which the case of Radha Gobind Roy v. Inglis (1880) 7 C.L.R., 364, has been explained.
7. [The third contention was on the facts, and this portion of the judgment it is unnecessary to report.]
8. Coming now to the cross-objections of the plaintiffs respondents, we must first of all dispose of the preliminary objection to the hearing of the same as against the defendants other than those who have preferred the appeal. It is urged on their behalf that the right of a respondent to prefer cross-objections under Section 561 of the Code of Civil Procedure is limited to urging them against the appellant, and that there is no right accorded to one respondent to prefer cross-objections against another respondent. In support of this contention the third paragraph of Section 561, is referred to, which speaks of the acknowledgment of the appellant or his pleader, or a notice to the appellant or his pleader, in respect of the cross-objections as being to necessary preliminary to their being entertained; and the cases of Kkermukuree Dossee v. Nilambur Mundul (1865) 2 W.R., 227; Hossain Buksh Putooah v. Baroo Beparee (1866) 5 W.R., 49; Tarucknath Roy v. Taboorunnissa Chowdhrain (1867) 7 W.R., 39; Greesh Chunder Singh v. Gour Mohun Banerjee (1867) 7 W.R., 49; Gudadhur Banerjee v. Monmohinee Dossee (1867) 7 W.R., 366; Lallchand v. Kudmoo Koonwar (1867) 7 W.R., 532; Goonomonee Dossia v. Parbutty Dossia (1868) 10 W.R., 326; Anunto Dass Sein v. Ramjoy Sein (1869) 11 W.R., 435; Anwar Jan Bibee v. Azmut Ali (1871) 15 W.R., 26; Sharoda Soonduree Debee v. Gobind Monee (1875) 24 W.R., 179, and Atma Ram v. Balkishen (1883) I.L.R., 5 All, 266, are relied upon by the learned Vakils for the defendants respondents. On the other hand, it is urged for the plaintiffs respondents that the defendants respondents being clearly interested in the result of the appeal, which necessarily includes the result of the cross-objections, at least as against the appealing defendants, they have been rightly made parties under Section 559 of the Code of Civil Procedure, and they being thus before the Court at the hearing of the appeal and of the cross-objections, if the Court is satisfied upon the cross-objections (which must be heard) that the judgment of the Court below is wrong, there is nothing in the law to prevent it from doing, full justice and from reversing or altering the decree of the Court below upon the cross-objections, not only as against the appealing defendants, but also as against the defendants who have been subsequently brought on the record as party respondents. It was further urged that the rule that one respondent cannot urge cross-objections as against another respondent cannot be correct in its broad generality, but must be taken subject at least to one exception, namely, that when a case in the Court below proceeds upon a common ground with reference to all the defendants, in an appeal by some of them only, cross-objections against all of them may be urged, just as in an appeal by some of them the entire decree may be set aside under Section 544 of the Code of Civil Procedure in favour of all the defendants. And in support of this view the case of Anund Chunder Goopto v. Mohesh Chunder Mozoomdar (1864) 1 W.R., 226; Pran Kishore Deb v. Mahomed Ameer (1874) 21 W.R., 338; Timmayya Mada v. Lakshmana Bhakta (1883) I.L.R., 7 Mad., 215, and Upendra Lal Mukerjee v. Girindra Nath Mukerjee (1898) I.L.R., 25 Cal., 565, have been referred to.
9. The question raised in the preliminary objection, which has given rise to some conflict of decisions, is not altogether free from difficulty. There are no doubt considerations both ways. On the one hand, it may be said that the right of urging cross objections on the part of the respondent ought to be limited to urging them as against those of his adversaries in the Court below, who are dissatisfied with the decree of that Court, and who have preferred an appeal against the same, and that other parties, who have not preferred any appeal against the decree of the Court below, and against whom no appeal has been preferred, ought to be left unaffected by the appeal, except so far as it may benefit them under the provisions of Section 544. On the other hand, it may be urged that cases may arise in which the appeal of some only of the defendants or of the plaintiffs may open up matters which render it necessary for the ends of justice that the whole case should be gone into, and some of the respondents should be allowed the opportunity of urging cross-objections against their co-respondents.
10. Upon a consideration of the cases cited and of the arguments on both sides, we think that there are two questions that have to be separately considered--first, whether the non-appealing defendants have been rightly added as respondents; and, second, whether, if they have rightly been added as respondents, it is open to the plaintiffs respondents to urge cross-objections against them.
11. With reference to the first question we think that the answer should be in the affirmative. Upon the appeal of the defendants appellants the plaintiffs have taken cross-objections which must be maintainable against the appealing defendants; and if they are successful, they may result in letting the plaintiffs into possession of the lands in respect of which the plaintiffs' claim has been dismissed in the Court below, at least to the extent of the shares of the appealing defendants, and may thus affect the non-appealing defendants by introducing strangers who may interfere with their possession. It must, therefore, be held that the non-appealing defendants are persons who are interested in the result of the appeal within the meaning of Section 559 of the Code of Civil Procedure, and, if that is so, they have been rightly made parties.
12. Upon the second question, we are of opinion that no hard and fast rule can be laid down, and that the correct principle deducible from the cases cited may be shortly stated thus. As a general rule the right of a respondent to urge cross-objections should be limited to his urging them against the appellants; and it is only by way of exception to this general rule that one respondent may urge cross-objections as against the other respondents, the exception holding good (we do not attempt to lay down any definite exhaustive rule on the point) among other eases in those in which the appeal of some of the parties opens out questions which cannot be disposed of completely without matters being allowed to be opened up as between co-respondents. One instance of this kind is to be found in cases of the class considered in Upendra Lal Mukerjee v. Girindra Nath Mukerjee (1898) I.L.R., 25 Cal., 565. The view we take is in accordance with that taken in the case of Anwar Jan Bibee v. Azmut Ali (1871) 15 W.R., 26, where the learned Judges observe: 'It has been held in a long series of decisions that the cross-appeal cannot reopen any questions which have been decided between co-respondents, but must have reference to the appellant, and the points which are in dispute between the respondent, who takes the cross-appeal and the appellant. It is quite possible that there may be cases in which, when an appellant succeeds in his appeal, questions will be opened up as between the co-respondents, which would otherwise have been decided, and it is also possible when interests are identical that a respondent succeeding in his cross-appeal may open up questions as between himself and his co-respondents.'
13. That being our view of the law, let us see whether there is any thing exceptional in this case that would justify the plaintiffs respondents urging their cross-objections as against the non-appealing defendants. We are of opinion that the question ought to be answered in the negative. The plaintiffs respondents laid claim to certain plots of land. Their claim was decreed only in part. They did not prefer any appeal against that part of the decree which dismissed their claim, or more correctly speaking they preferred an appeal, but was found to be out of time and the petition of appeal was returned. There upon they contented themselves with preferring cross-objections with reference to the portions of the claim that had been disallowed. The appeal, however, in which they urged these cross-objections was at the instance of some only of the defendants in the case, the remaining defendants having been apparently satisfied with the decree that was made against them. Is there anything in justice which ought to entitle the plaintiffs to say that notwithstanding that they did not do that which was their proper course, namely, prefer an appeal against that portion of the decree, which went against them, they are entitled, upon the appeal of some only of their adversaries in the Court below to open up the whole ease as against the other defendants, who were satisfied with the decree? As we have said above the ground upon which this right of theirs is sought to be based is that as the cross-objections must be heard as against the appealing defendants, and as the remaining defendants are on the record, if the Court is satisfied upon the cross-objections that the decree of the Court below is wrong on any point it ought not to allow the erroneous decree to remain in force and perpetuate an injustice when there is nothing expressly laid down in the law to prevent its doing full justice. We do not think that is a correct way of stating the point. The correct way of stating it would be this, namely, whether upon the cross-objections of the plaintiffs, which must be heard as regards the appealing defendants, if the Appellate Court finds that the decree of the Court below is wrong, it ought nevertheless to allow such erroneous decree to stand and to abstain from rectifying it in full and thereby doing complete justice on the ground of the plaintiffs having deprived themselves of such measure of justice by their default in preferring an appeal in time, and when the question is thus stated the answer to it should evidently be in the affirmative, unless there be any exceptional reasons in the case. We may add that there is one important consideration pointed out in the argument on behalf of the defendants respondents, which strongly supports the view we take, namely, that to allow the plaintiffs in such a case to urge their cross-objections against the non-appealing defendants would be to place those defendants in a situation of risk, without their having done anything to incur that risk, and without their being able to withdraw themselves from that position. In the case of the appellants if any cross-objections are urged against them by the plaintiffs respondents they have the option of withdrawing the appeal and thereby preventing the cross-objections being heard, if upon consideration they find it better for them to allow the decree of the Court below to stand as it is. In the case of persons in the situation of the non-appealing defendants, they have not the power of withdrawing from the position of risk in which they may be placed, not by any action of their own, but merely by the action of their fellow-defendants or fellow-plaintiffs as the case may be.
14. In this view of the matter, it becomes unnecessary to consider the special argument, which was addressed to us on behalf of those of the defendants respondents against whom the suit was dismissed in the Court below on the ground of three years' limitation-a ground which is not common to them, and to the other defendants. If, however, it were necessary to say anything on this point, we should simply have said that the main reason upon which the learned Counsel for the plaintiffs respondents bases the right of his clients to urge their cross-objections against the non-appealing defendants, namely, the fact of the case in the Court below having proceeded upon a common ground, could not apply to those defendants.
15. [The Court then considered the cross-objections as against the appealing defendants, and the decision being on the facts it is unnecessary to report it. The judgment concluded as follows.]
16. This disposes of all the contentions raised by way of cross-objection.
17. The result is that the appeal must be dismissed with costs, subject to the modification referred to above, namely, that the decree of the lower Court should not extend beyond the thak line of mouzah Deghalia as shown on the Amin's map; and the cross-objections must be disallowed with costs.
18. The defendants respondents will get separate costs. The chittas must be treated as papers printed for the purposes of the cross-objections.