LAWS(GAU)-1998-11-18

SOHANLAL AGARWALLA Vs. KRISTO MOHAN CHOUDHURY

Decided On November 23, 1998
SOHANLAL AGARWALLA Appellant
V/S
KRISTO MOHAN CHOUDHURY Respondents

JUDGEMENT

(1.) This Second Appeal, has been filed by the plaintiff. The plaintiff brought a suit being Title Suit No. 130 of 1979 before the learned Munsiff No. 1 at Dibrugarh for declaration of title and recovery of has possession by demolishing the house of defendant No. 1. That suit was decreed by the Trial Court. There was an appeal being Title Appeal No. 5 of 1987 before the learned Additional District Judge, Dibrugarh and the learned Additional District Judge allowed the appeal arid reversed the judgment of the Trial Court. The Trial Court held inter alia as follows :

(2.) 1 have heard Mr. A.K. Goswami, learned Advocate for the appellant and Mr. A. Roy, learned Advocate for the principal-respondent. None appears for the proforma-re- spondent. Mr. Goswami raises three questions:

(3.) Before we go in the detail let us have a look at the facts of the case. The plaintiff herein purchased the suit land alongwith other land uide Exhibit-1, the deed of sale, dated 29.3.1971 from proforma-defendant. As the defendant No. 1 was in possession of a part of the land of the deed of sale and did not vacate the same, so this case was filed. Before this suit was filed another suit was filed that is. Title Suit No. 169/1 and in that suit the defendant No. 1 appeared and filed a written statement claiming that a part of the suit land was taken on lease on 3.5.1953 from Pabitra Jiban Das and thereafter on 18.6.65 Pabitra Jiban Das by executing the Exhibit-X took an amount of Rs. 5,000/- from him as loan and there was a clause that if this amount of Rs. 5,000/- with interest is not paid within 31.12.70, the land which was the subject-matter of that document shall be deemed to be sold in favour of defendant No. 1 and Pabitra failed to pay the money as promised and as such by virtue of this document the defendant No. 1 became the owner of the land, and as he also claims the protection under Section 53A of the Transfer of Property Act. That earlier suit was withdrawn by the plaintiff and thereafter this suit, the present Title Suit No. 130/79 was filed. In the aforesaid suit the defendant No. 1 filed the Written Statement and he took the same plea as taken in the earlier suit meaning thereby that he is protected under Section 53A of the Transfer of Property Act and he is also entitled to be protected under Section 5 of the Assam Act as he has constructed the houses thereon of permanent in nature within 5 years of lease. It is the concurrent findings of fact of both the Courts below that the defendant No. 1 constructed permanent houses within 5 years from the date of lease and he was in continuous possession. But the Trial Court held that the defendant No. 1 is not entitled to protection under Section 53A of the Transfer of Prop erty Act and it was further held by the Trial Court that as the title of the plaintiff was denied so he will also not be entitled to protection under Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 These two findings of the Trial Court were reversed by the Appellate Court. Let us take the questions one by one. First question is whether without filing a cross-objection a finding can be challenged. Let us have a look at Order 41, Rule 22 of the Code of Civil Procedure which is the provision for filing cross-objection. In Order 41 Rule 22 it should be borne in mind that there are two remedies :-(i) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also challenge that the findings 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. (ii) He may challenge part of the decree by filing cross-objection. The 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. The respondent without filing cross-objection can canvas the correctness of finding against him in order to support the judgment that has been passed against the appellant. The respondent challenging the finding which is assailed does not want alteration of the decree. If any authority is required for this proposition of law one may look, Shri Chander Prabhuji Jain Temple and Ors. v. Harikrishna and Ors., The Management of Itakhoolie Tea Estate v. Its Workmen, wherein in paragraphs 5 and 6, the Supreme Court has pointed out that a respondent may support the decree on any of the grounds decided against him in the Court below. But it does not and can not confer on him a right higher than that he would have had if he had preferred an appeal against the ground decided against him. A ground will not be available which he cannot urge as an appellant. The Supreme Court has pointed out that the respondent can support the decree on any of the grounds decided against him. Therefore, the law is settled, against the finding given in decision as indicated in AIR 1973 SC 2565, a respondent can challenge the finding even without cross-objection. Both these decisions are before the amendment of 1976. But in the amendment of 1976 no substantial change has been introduced changing this proposition of law. So the finding of the Appellate Court that without filing a cross-objection a finding can not be challenged by the respondent is erroneous in law and the same shall stand set aside as urged by Shri Goswami That does not allow him to cross the hurdle.