BIR SINGH Vs. BUDHU RAM

JUDGEMENT

(1.) The main question for decision in this second appeal is if the Court of appeal below was justified under the provisions of Order 41, Rule 83, Civil P. C., in modifying a part of the decree passed by the Court of first instance, on an appeal by the defendant-appellant, but without any appeal or cross-objection having been preferred by the plaintiffs-respondents against that part of the decree which was against them.

(2.) The facts relevant to the aforesaid question are the following. The plaintiffs-respondents brought a suit for a declaration of title and recovery of possession in respect of 14 kathas and 17 dhurs of land comprised in plot No. 390 situated in village Banuchapra. They alleged that the fruit a of some trees on the land were settled with the defendant-appellant for five years. After the expiry of the period of the lease in 1939, the plaintiffs-respondents got back possession. It was further alleged that there were some structures on the land, namely, a pacca house, a hut, a latrine and a nad. According to the plaintiffs-respondents they constructed the aforesaid structures except the nad, which was made by the appellant with the permission of the respondents. In 1943, the appellant again wanted to take settlement of the fruits, but the respondents refused. This led to a proceeding under Section 144, Criminal P, C., as a result of which the respondents were dispossessed by the appellant on 15th September 1944. The case of the appellant was that he had taken settlement of the land in batai from the father of plaintiff-respondent 1 in the year 1928. The appellant alleged that by reason of the said settlement and his continued possession since then, he had acquired a right of occupancy in the land. It was alleged by the appellant that he constructed the pacca house, the hut, the latrine and the nad. The latrine and the nad were alleged to have been constructed some 8 or 9 years ago but the other structures were alleged to have been constructed more than 12 years ago. It may be stated here that no question of adverse possession arose in the case because the appellant himself admitted that the structures were constructed with the permission of the respondents. The questions which were considered and decided by the Courts below were (i) whether the story of batai settlement in 1928, set up by the present appellant, was true; (2) whether the appellant had acquired any right of occupancy as an under-raiyat under the provisions of Section 48A, Bihar Tenancy Act, and (3) whether the structures in question were built and constructed by the appellant or the respondents. The first two questions were answered against the present appellant, and the third in his favour. The Court of first instance held that there was no settlement of the land, and the appellant was a trespasser in respect of the land, but a licensee or tenant at will in respect of the structures, he having made those structures with the permission of the respondents for temporary occupation. On these findings, the first Court that is, the learned Munsif passed a decree in favour of the plaintiff-respondents with regard to the land, but ground (found?) that the respondents were not entitled to recover possession of the land on which the structures stood without asking the appellant to quit the structures or remove them. In other words, the learned Munsif passed a modified decree in favour of the respondents giving them possession of the land other than the land on which the structures stood, as also mesne profits, etc. An appeal was preferred by the present appellant, who was defendant in the action, against that part of the decree of the learned Munsif which allowed possession of the land minus the structures. This appeal was heard by the learned Subordinate Judge of Motihari. He affirmed the three main findings of the learned Munsif but he held that the learned Munsif was wrong in thinking that a notice to quit or a demand was necessary before the respondents could succeed in respect of the land on which the structures stood. This part of the decree of the learned Munsif was against the respondents. The respondents had not preferred any appeal or cross objection. The learned Subordinate Judge then expressed himself as follows:

(3.) Learned counsel for the appellant has contended before us that the learned Subordinate Judge had no jurisdiction to interfere with that part of the decree against which no appeal nor any cross objection had been preferred by the party aggrieved. Secondly, he has contended that even if the learned Subordinate Judge had jurisdiction under the provisions of Order 41, Rule 33, Civil P. C., this was not a proper case in which the jurisdiction should have been exercised. There is a large volume of case law on the purpose and scope of Order 41, Rule 33, Civil P. C. with particular reference to the illustration given under the rule. Some decisions have held that the illustration is not meant to be exhaustive of the class of cases in which the rule applies; other decisions have held that the illustration indicates the principle underlying the purpose and scope of the rule. I do not think that it is necessary in this case to examine, in detail, the entire case law on the subject, because the decision in this case need not be rested on the higher plane of absence of jurisdiction. It is, I think, beyond dispute that the general principle is that a decree is binding on the parties to it unless it is set aside in appropriate proceedings, if a party wishes to have a decree against him modified or reversed, he must comply with certain requirements as to filing of appeals, objections and so forth. Therefore, though Order 41, Rule 33, Civil P. C., is in very wide terms, it must not be interpreted in such a way as to abrogate the other provisions in the Code with regard to the filing of appeals, cross objections, etc. It follows, therefore, that as an ordinary rule an appellate Court must not reverse or vary a decree in favour of a party who has not preferred any appeal or cross-objection against it and this general rule should hold good notwithstanding the enactment of Rule 33 which enables an appellate Court, in exceptional cases to pass such decree as ought to have been passed, or as the nature of the case may require, although the party in whose favour the decree is being made, may not have tiled an appeal or cross-objection. The illustration gives some indication of the class of cases in which Rule 33 will apply; for example, it applies to cases where, as a result of interference in favour of the appellant, further interference with the decree of the lower Court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience.