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Case Number

Second Appeal No. 363 of 1988

Attorney(S)

C.B.Barovalia
Bhupender Gupta

Judges

Ms. Kamlesh Sharma, J.

Acts

provisions of Order 41, Rule 22 read with Rule 33, C.P.C
force.7. Amended Order 41, Rule 22, sub-rule (1)
Rule 22(1) of Order 41, C.P.C
Rule 33, Order 41, C.P.C

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Smart Summary

Summary of the Opinion — Regular Second Appeal

Factual and Procedural Background

This regular second appeal challenges the decree and judgment dated 10-10-1988 of the District Judge, Una, which had accepted the respondents/plaintiffs' appeal, set aside the Sub Judge (I), Una's decree and judgment dated 30-9-1985, and decreed the plaintiffs' suit for possession by redemption of mortgage. The District Judge ordered the plaintiffs to deposit the mortgage money within two months and directed that on such deposit the appellant/defendant would deliver possession of the suit land.

The respondents/plaintiffs alleged that Smt. Atti (one of the plaintiffs) was owner in possession of the suit land (parcels in two villages referred to in the opinion as village 'A' and village 'B') and that she mortgaged the suit land in April 1950 in favour of the appellant/defendant for Rs. 425, delivering possession to the mortgagee. Mutation No. 194 was attested on 18-4-1950 for land in village 'B'; Mutation No. 166 was entered on 13-12-1955 for land in village 'A' but was later rejected on 21-4-1957 as alleged by Smt. Atti. A portion of the mortgaged land was allegedly gifted to Smt. Dropti, who was added as a plaintiff. The suit was filed on 23-2-1980.

The appellant/defendant resisted the suit on two main grounds: (i) that the mortgage was created much prior to 1950 and therefore did not subsist at the time of suit; and (ii) alternatively, that the husband of the appellant, and after his death the appellant herself, were tenants in possession and that, on redemption of the mortgage, their tenancy would revive. The trial court accepted the defence that the mortgage was not subsisting and dismissed the suit, but rejected the appellant's tenancy claim. On first appeal the District Judge reversed the trial court on the subsistence of the mortgage, holding it had been created in April 1950, and therefore was redeemable; the District Judge did not examine the tenancy point (the second point) on the ground that the appellant, who had been the respondent in that appeal, had not filed cross-objections. In this second appeal the appellant challenges both points.

Legal Issues Presented

Whether the mortgage in respect of the suit land was created within thirty years of the institution of the suit (i.e., whether it subsisted and was therefore liable to be redeemed).
Whether the appellant/defendant (and her husband before his death) was in fact a tenant of parts of the suit land such that the tenancy would revive on redemption of the mortgage.
Whether the Appellate Court (the District Judge) could consider and decide the tenancy point in the appeal notwithstanding that the respondent (the present appellant/defendant) had not filed cross-objections — i.e., the effect of the amended Order 41, Rule 22 read with Rule 33, C.P.C., on the respondent's right to challenge findings adverse to him/her.

Arguments of the Parties

Appellant/Defendant's Arguments

The mortgage was created well before April 1950 and thus did not subsist at the institution of the suit (i.e., the plaintiffs could not redeem it).
Alternatively, the appellant's husband and, after his death, the appellant herself were tenants in possession; on redemption of the mortgage their tenancy would revive and they would continue in possession as tenants.
Before the District Judge the appellant (being respondent in that appeal) appears to have filed cross-objections, but in the proceedings challenged in this second appeal the appellant contends the courts below erred in their factual findings on tenancy.

Respondents/Plaintiffs' Arguments

A preliminary objection was raised by the respondents/plaintiffs that the tenancy point could not be considered by the Appellate Court because the appellant/defendant had not filed cross-objections challenging the trial court's finding and therefore those findings had become final between the parties. In support of that submission the respondents relied on Krishan Dev v. Smt. Ram Piari, AIR 1964 Him Pra 34.
The respondents maintained the mortgage was created in or after April 1950 and was therefore redeemable (this was the basis for the relief awarded by the District Judge).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Krishan Dev v. Smt. Ram Piari, AIR 1964 Him Pra 34	Relied on by respondents to support the proposition that a respondent who did not file cross-objections could not challenge findings (under the pre-amendment law).	The Court held that Krishan Dev was decided under the unamended provisions of law and therefore was not applicable to the present case in view of the amendments to Order 41, Rule 22 and Rule 33, C.P.C.
Jatani Dei v. Udayanath Behera, AIR 1983 Orissa 252	Support for the proposition that an appellate court may exercise wide powers (post-amendment) and consider points even where cross-objections were not filed by a respondent.	The Court cited this decision as authority consistent with the view that the Appellate Court could consider the second point without cross-objections.
American Pipe Company v. State of Uttar Pradesh, AIR 1983 Cal 186	Supportive precedent for the Appellate Court's broad powers under amended Order 41, Rule 33 to pass appropriate decrees or orders even if respondents did not file appeals or objections.	The Court relied on this case to reinforce the interpretation of Rule 33 and to justify review of the tenancy point despite the absence of cross-objections.
Janak Pandey v. Sudama Singh, AIR 1986 Pat 61	Another High Court decision cited to support the proposition that appellate courts have wide powers post-amendment to entertain issues not raised by cross-objection.	Cited by the Court as part of the body of authority supporting its conclusion that the District Judge could consider and decide the tenancy point without cross-objections having been filed by the appellant/defendant.

Court's Reasoning and Analysis

The Court proceeded by addressing the principal questions in sequence and applying documentary and oral evidence to the legal framework conveyed by the amended Civil Procedure Code provisions.

1. Subsistence of the mortgage (first point):

The Court affirmed the District Judge's conclusion that the mortgage in respect of the suit land was created in April 1950 (and for the land in village 'A' either on 13-12-1955 or thereafter), hence within thirty years of the suit (filed 23-2-1980). This conclusion rested on an assessment of the oral and documentary evidence, specifically the attested Mutation No. 194 for village 'B' dated 18-4-1950 and Mutation No. 166/entries in revenue records for village 'A'. The Court found no reason to interfere with the District Judge's appreciation of that evidence.

2. Whether the Appellate Court could decide the tenancy point without cross-objections:

The Court considered a preliminary objection that the appellant could not challenge the tenancy finding because she had not filed cross-objections in the first appeal. The Court analysed the amended provisions of Order 41, Rule 22(1) (as amended) and Rule 33, C.P.C. It quoted Rule 22(1) and its Explanation and Rule 33, noting that the amendment to Rule 22(1) expanded the rights of a respondent to state that a finding against him ought to have been in his favour and to take cross-objections within time. The Court emphasised two distinct rights under the amended rule: (i) to support the decree; and (ii) to take cross-objections (to object to the decree). The Court observed Rule 33 confers very wide powers on the Appellate Court to pass any decree or make any order which ought to have been passed, and to exercise those powers notwithstanding that the appeal is only as to part of the decree and even though some parties may not have filed appeals or objections. On that statutory reading, and having regard to the proviso in Rule 33 limiting orders under Section 35A, the Court concluded that the appellate court could consider and decide the tenancy point even if the respondent had not filed cross-objections. The Court rejected reliance on Krishan Dev because that case addressed the position under the unamended law. The Court also cited several High Court decisions (Jatani Dei, American Pipe Company, Janak Pandey) in support of this interpretation.

3. Merits of the tenancy claim (substantial question of law and factual reassessment):

The Court held that a substantial question of law arose to justify interference with the trial court's finding that the husband of the appellant and thereafter the appellant herself were not tenants. The trial court had presumed that the tenancy recorded in earlier revenue entries ceased, but the Court found no basis for that presumption. The Court emphasised the legal proposition that a change in revenue entries does not by itself prove that a tenant ceased to be in possession unless evidence to that effect is produced.

4. Document-by-document analysis leading to the conclusion about tenancy rights:

The Court examined jamabandis and revenue entries for both villages and correlated them with the mutation entries: - Village 'B': Jamabandi for 1971-1972 (Ext. P4) recorded part of Khatoni No. 73 as under mortgage in respect of Smt. Atti's share. Earlier jamabandis showed that the husband of the appellant was recorded as tenant in Khasra No. 105 (Ext. P1 and Ext. P5 for 1944-45 and 1945-46). The appellant herself appeared as tenant (as widow of Hira) in the jamabandi for 1953-54 (Ext. P6), with a change in rent share from one-half to one-third. The appellant was first recorded as mortgagee in the jamabandi for 1966-1967 (Ext. D9). Reading these documents together with Mutation No. 194 (18-4-1950), the Court concluded that the husband and thereafter the appellant were tenants in respect of Khasra No. 105 (measuring 3 kanals 8 marlas) and that on redemption of the mortgage tenancy as to that land would revert to them. - Village 'A': Jamabandi for 1946-47 (Ext. P2) recorded one Babu as tenant for several Khasras. By 1950-51 (Ext. D1) the appellant was shown as tenant for Khasra Nos. 405, 408 and 532 paying one-half share. In the 1954-55 jamabandi (Ext. D2) she was recorded in possession with a remark that possession was on account of mortgage; this notation recurs in later jamabandis (Exts. D3, D4, D5, P3, D6). Mutation No. 166 (entered 13-12-1955 and later rejected 21-4-1957) together with the jamabandis led the Court to conclude that the appellant was tenant in respect of Khasra Nos. 405, 408 and 532 (measuring 2 kanals 1 marla) before the mortgage and that such tenancy would revert on redemption.

Holding and Implications

Holding:

The Court's final decision was to partially allow the appeal. The core ruling is: APPEAL ACCEPTED IN PART.

Specific outcomes and direct effects on the parties:

The Court confirmed that the mortgage in respect of the suit land was created in April 1950 (and in respect of certain parcels in village 'A' on or after 13-12-1955) and therefore was within thirty years of the suit; the District Judge's finding on this point was affirmed.
The Court set aside the trial court's findings that the husband of the appellant and thereafter the appellant herself were not tenants. It held instead that:
- In village 'B' the husband of the appellant and thereafter the appellant were tenants in respect of Khasra No. 105 measuring 3 kanals 8 marlas; on redemption of the mortgage tenancy in respect of this land will revert to them.
- In village 'A' the appellant was tenant in respect of Khasra Nos. 405, 408 and 532 measuring 2 kanals 1 marla; on redemption of the mortgage tenancy in respect of these lands will revert to her.
The decree and judgment of the District Judge, Una, were modified to the extent indicated above. The trial court findings on those tenancy points were set aside.
No orders as to costs were made.

Broader implications:

The opinion interprets and applies the amended provisions of Order 41 (Rule 22(1)) and Rule 33, C.P.C., to permit an Appellate Court to consider and decide points adverse to a respondent even if the respondent did not file cross-objections; it rejects the applicability of a pre-amendment authority (Krishan Dev) to the amended scheme. The Court relied on several High Court precedents consistent with that view. The opinion does not expressly state that it is laying down a new precedent beyond applying the amended statutory provisions and existing High Court authorities; its practical effect is the modification of the decree in favour of the appellant/defendant only to the extent described above.

Order: The appeal is accepted in part and modified as above. No costs. Order accordingly.

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Smt. Ram Rakhi v. Smt. Atti And Another

1. This regular second appeal is directed against the decree and judgment dated 10-10-1988 passed by the District Judge, Una whereby the appeal of the respondents/plaintiffs was accepted, the decree and judgment dated 30-9-1985 of Sub Judge (I), Una was set aside and the suit of the respondents/plaintiffs was decreed for possession by redemption of mortgage. They were ordered to deposit the mortgage money within a period of two months. It was also directed that on deposit of the mortgage amount, the appellant/defendant will deliver possession of the suit land to the respondent/plaintiffs.

2. The suit of the respondents/plaintiffs was that one of them Smt. Atti was owner in possession of the suit land as stated in the heading of the plaint. The suit land consists of two parcels of land situated in two villages i.e Bhalkoon and Baroa, which will hereinafter be referred to as villages ‘A’ and ‘B’. The land in village ‘A’ is measuring 3 kanals 8 marlas and comprised in Khasra Nos. 367, 405, 408, 526 and 532 and land in village ‘B’ is measuring 9 kanals 7 marlas comprised in Khatoni Nos. 71, 72, 73, 74, 75, 76 and 77 as shown in jamabandi for the year 1971-1972, Which was later on brought on record as Ext. P4. The case of the respondents/plaintiffs was that Smt. Atti had mortgaged the suit land in April, 1950 in favour of appellant/defendant for an amount of Rs. 425/- and had delivered its possession to her. For mortgage of land in village ‘B’ Mutation No. 194 was attested on 18-4-1950 and for land in village ‘A’ though Mutation No. 166 was entered on 13-12-1955 but it was rejected on 21-4-1957 behind the back of respondent/plaintiff Smt. Atti as alleged by her. She had made a gift of a part of mortgaged land in favour of respondent/plaintiff Smt. Dropti, who is her daughter, therefore, Smt. Dropti was also added as plaintiff. The suit was filed on 23-2-1980.

3. The appellant/defendant resisted the suit on the ground that mortgage in question was created much prior to the year 1950 and it did not subsist. The alternative case of the appellant/defendant was that her husband and after his death, she herself was in possession of the suit land as a tenant and in case of redemption of the mortgage her tenancy will revive and she will continue in possession as a tenant. The defence that the mortgage was created much prior to April, 1950 and it was not subsisting on the date of filing of the suit weighed with the trial Court and it dismissed the suit. But the claim of the appellant/defendant that her husband and after his death she herself was the tenant over the suit land and her tenancy will revive after the suit land is redeemed was rejected. However, in appeal the findings of trial court are reversed so far the first point is concerned and it was held that the suit land was mortgaged in April, 1950 and was liable to be redeemed. The findings on other point were not examined by the District Judge on the ground that these were not challenged by the appellant/defendant who was respondent before him by filing cross objections. Now, in the present regular second appeal the appellant/defendant has challenged the findings of the courts below on both the points.

4. This Court has heard learned counsel for the parties and gone through the record.

5. So far first point is concerned that the mortgage had been created within 30 years before the institution of the suit, this Court does not find any reason to interfere with. The District Judge has correctly appreciated the oral and documentary evidence on record to come to the conclusion that the mortgage in respect of the suit land was created in April, 1950 and thereafter. Besides oral evidence, the mutation No. 194 in respect of land in village ‘B’ and mutation No. 166 in respect of land in village ‘A’ the entries in revenue record, with which this Court will deal in extenso while dealing with the second point, clearly establish on record that the mortgage in respect of land of village ‘B’ was created on 18-4-1950 and in respect of land in village ‘A’ was created either on 13-12-1955 or thereafter i.e within a period of 30 years of the institution of Civil Suit on 23-2-1980. Therefore, findings of the District Judge in respect of first point are confirmed.

6. About second point Mr. Barowalia, learned counsel for the respondents/plaintiffs has raised preliminary objection that it cannot be considered by this Court in the present appeal as the appellant/defendant had not filed cross-objections challenging the finding of the trial Court, which have now become final between the parties. The District Judge had also not considered this point for this reason. For making his submission Mr. Barowalia has relied upon Krishan Dev v. Smt. Ram Piari, AIR 1964 Him Pra 34. But in view of the amended provisions of Order 41, Rule 22 read with Rule 33, C.P.C this preliminary objection is without any force.

7. Amended Order 41, Rule 22, sub-rule (1) which is relevant in the present controversy is as under:—

22. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

Explanation — A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may under this rule file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent.

By way of amendment for the words “on any of the grounds decided against him in the Court below but take any cross-objection”, the words “but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour and may also take any cross-objection” have been substituted. An explanation has also been added empowering the respondent to file cross-objection in respect to a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour.

8. The amended Rule 22(1) of Order 41, C.P.C gives two distinct rights to the respondent in the appeal, the first is to uphold the decree of the Court on any of the grounds on which that Court decided against him and the second right is to take any cross-objection to the decree which the respondent might have taken by way of appeal. In the first case the respondent supports the decree and in the second case he objects the decree. Since the same person cannot support a decree by asserting that the matter decided against him should have been decided in his favour, the explanation has been added. However, the powers of the Appellate Court are given in Rule 33 which is as under:—

33. The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondent or parties, although such respondents or parties may not have filed any appeal or objection (and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees):

(Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused or make such order).

9. The bare reading of this provision shows that the Appellate Court has been given very wide powers to pass any decree or make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is only to a part of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or cross-objection. The only restriction to the powers of Appellate Court is that it cannot make an order under Section 35A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. Therefore in view of amendment in Rule 33, Order 41, C.P.C the First Appellate Court could consider and decide the second point even without the cross-objections preferred by the appellate/defendant before it. In view of this, the appellant defendant was entitled to defend the decree of trial court passed in his favour and still challenge the findings against him even without filing the cross-objections. For holding this view, this Court has taken support from the judgments of other High Courts i.e Jatani Dei… v. Udayanath Behera…., AIR 1983 Orissa 252; American Pipe Company… v. State Of Uttar Pradesh…., AIR 1983 Cal 186 and Janak Pandey v. Sudama Singh, AIR 1986 Pat 61. The judgment in Krishan Dev v. Ram Piari, (AIR 1964 Him Pra 34) was on unamended provision of law, hence not applicable.

10. Now, the question arises whether any substantial question of law arises to interfere with the findings of fact arrived at by the trial court that the husband of the appellant/defendant and after his death, she herself was not the tenant over the suit land as alleged by her. The answer is yes. The trial court has presumed that though the husband of appellant/defendant was recorded as tenant in the jamabandi for the year 1944-1945 before the creation of mortgage yet he ceased to be a tenant. There was no basis for making such a presumption which has adversely affected the rights of appellant/defendant. Change of revenue entries would not indicate that the tenant ceased to be in possession till something to the contrary is proved.

11. Now, this Court will first deal with the land in village ‘B’. If the jamabandi for the year 1971-1972 Ext. P4 is perused, it will be clear that the land comprised in Khatoni No. 73 has been recorded as under mortgage of appellant/defendant mortgage out of the share of respondent/plaintiff Smt. Atti in the total land comprised in all the Khatonis mentioned in the heading of the plaint. The Khasra numbers of the land pertaining to Khatoni No. 73 are not given in the heading of the plaint which can be ascertained from column No. 6 of this jamabandi. From these Khasra numbers the land which was in the possession of defendant/appellant as mortgagee and before mortgage as tenant before 1971-1972 can be located in earlier jamabandis. Out of these Khasra numbers, only in Khasra No. 105 measuring 3 kanals 8 marlas the husband of the appellant/defendant was recorded as tenant in the jamabandi for the year 1944-1945 (Ext. P1) and jamabandi for the year 1945-1946 (Ext. P5). Thereafter in the jamabandi for the year 1953-1954 (Ext. P6) the appellant/defendant is recorded as tenant as widow of Hira in respect of Khasra No. 105 and also two more Khasra numbers 72 and 75. In the column of cultivation also there is a change that the rent is one-third instead of one-half as used to be paid by Hira, the husband of the appellant/defendant. These entries are repeated in another jamabandi for the year 1953-1954 (Ext. D8). The appellant/defendant was record mortgagee in respect of Khasra Nos. 72, 75 and 105 for the first time in the jamabandi for the year 1966-1967 (Ext. D9)and Khatoni Ishtemal (Ext. D12). Therefore, from the joint reading of all these documents along with Mutation No. 194, which was duly attested on 18-4-1950, the only conclusion which can be drawn is that the husabnd of appellant/defendant and thereafter she herself was the tenant over part of suit land in village ‘B’ comprised in Khasra No. 105 measuring 3 kanals 8 marlas and after the redemption of mortgage her tenancy will revert in respect of this land only.

12. In respect of land of village ‘A’ in the jamabandi for the year 1946-1947 (Ext. P2) one Babu was the tenant in respect of Khasra Nos. 367, 405, 408 and 532. Thereafter, in the jamabandi for the year 1950-1951 (Ext. D1), the appellant/defendant is shown as tenant on payment of rent of one-half of the produce in respect of Khasra Nos. 405, 408 and 532. In the jamabandi for the year 1954-1955 (Ext. D2) she is recorded in possession in all the five Khasra numbers but in the column of remarks it is noted that her possession is on account of mortgage. In the later jamabandis for the years 1962-1963 (Ext. D3), 1967-1968 (Ext. D4), 1972-1973 (Exts. D5 and P3) and 1978-1979 (Ext. D6) this entry has been repeated. Therefore, the joint reading of these jamabandis with Mutation No. 166, which was entered on 13-12-1955 though rejected on 21-4-1957, clearly establishes that the appellant/defendant was tenant in respect of Khasra Nos. 405, 408 and 532 measuring 2 kanals 1 marla only before the mortgage and tenancy in respect of this land will revert to her on redemption of mortgage.

13. The result of above discussion is that the appeal is accepted only to the extent that the husband of the appellant/defendant and thereafter she herself was the tenant over the land in village ‘B’ comprised in Khasra No. 105 measuring 3 kanals 8 marlas and the appellant/defendant herself was tenant over the land in village ‘A’ comprised in Khasra Nos. 405, 408 and 532 measuring 2 kanals 1 maria only, tenancy of which will revert to her after redemption of mortgage. The findings of the trial court in this regard are set aside. The decree and judgment of the District Judge, Una is modified to this extent.

14. No orders as to costs.

Order accordingly.

Smt. Ram Rakhi v. Smt. Atti And Another

Summary of the Opinion — Regular Second Appeal

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant/Defendant's Arguments

Respondents/Plaintiffs' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Smt. Ram Rakhi v. Smt. Atti And Another

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