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Munish Chandra Dutta and ors. Vs. Ajit Sankar De and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in166Ind.Cas.1007
AppellantMunish Chandra Dutta and ors.
RespondentAjit Sankar De and anr.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 22 - suit decided against defendants on grounds of limitation and title cross-objection not filed--defendants, if can support decree of dismissal on these grounds. - .....procedure code, the defendants could (i) have supported the first court's decree on any of the grounds decided against them, or (ii) have taken any cross-objection to the decree which they might have taken on appeal. as regards the second point it is clear that, owing to the nature of the first court's decision, it was not possible for the defendants to have appealed either against the decree or against any of the first court's findings. as regards the first point, the grounds which were decided against the defendants in the first court were: (a) limitation and (b) title. it follows from the language of order xli, rule 22, civil procedure code, that as these grounds were decided against the defendants, they were at liberty to support the decree of dismissal on these grounds, even.....
Judgment:

Edgley, J.

1. In the suit oat of which this appeal arises, the plaintiff sued the defendants for a declaration of his title and confirmation of possession in respect of a certain plot of land. He contended that it was included within his holding No. 67 of Touzi No. 1068 and that in the Record of Rights it had been shown wrongly as appertaining to defendants holding. The plaintiff had instituted a suit under Section 106 of the Bengal Tenancy Act but this suit had been dismissed. The case for the defendants was to the effect that the Record of Rights was correct and that the plaintiff's suit was not maintainable haying regard to the provisions of Section 109 of tile Bengal Tenancy Act. They also maintained that they were in adverse possession of the disputed land.

2. The first Court held that the plaintiff's suit was not maintainable, as it was barred, by the principles of res judicata but as regards limitation and title, the findings were in favour of the plaintiff. The plaintiff appealed to the lower Appellate Court and the learned District Judge reversed the first Court's finding on the question of res judicata. Apparently the defendants, who were the respondents in the lower Appellate Court, then sought to support the first Court's decree of dismissal on the grounds which had been decided against them. It was, however, held by the learned District Judge that this could not be done as cross-objections had not been filed.

3. It is argued by the learned Advocate for the appellants in this case that, having regard to the language of Order XLI, Rule 22 of the Civil Procedure Code, the learned District Judge was wrong in the view which he to took as regards the filing of cross-objection. In the case out of which this appeal arises, having regard to the issues decided by the first Court, it was not possible for the defendants to appeal against the decree of the first Court or any part of that decree. After the plaintiff had appealed, having regard to the provisions of Order XLI, Rule 22, Civil Procedure Code, the defendants could (i) have supported the first Court's decree on any of the grounds decided against them, or (ii) have taken any cross-objection to the decree which they might have taken on appeal. As regards the second point it is clear that, owing to the nature of the first Court's decision, it was not possible for the defendants to have appealed either against the decree or against any of the first Court's findings. As regards the first point, the grounds which were decided against the defendants in the first Court were: (a) limitation and (b) title. It follows from the language of Order XLI, Rule 22, Civil Procedure Code, that as these grounds were decided against the defendants, they were at Liberty to support the decree of dismissal on these grounds, even although they had filed no cross-objection.

4. This being the case, the judgment and decree of the lower Appellate Court must be set aside and the case is remanded to that Court for re-hearing according to law.

5. The costs will abide the final result in this Court. As regards the finding on the question of res judicata, which was decided against the defendants in the lower Appellate Court, no objection has been raised in this Court.


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