RAM CHANDRA CHOUDHARY Vs. MOSSTT RAMPABITRI DEVI

JUDGEMENT

(1.) This suit giving rise to this second appeal by the defendants, was filed sometime in the month of May, 1959, for declaration of title and recovery of possession with respect to 4 kathas 12 dhurs 34 dhurkis of land appertaining to plots Nos. 19412, 19413. 19489 and 19490. Subsequently by an amendment in the year 1961, the area with respect to which declaration was sought was increased to 5 kathas 16 dhurs 12 dhurkis appertaining to Plots Nos. 19411, 19412, 19413, 19434, 19485, 19487 and 19489. The claim of the plaintiffs was resisted by the defendants-appellants. According to the defendants, plaintiffs had no title to the suit land and, as such, the defendant prayed that the same may be dismissed. The trial Court, however, on appreciation of evidence adduced in the case came to the conclusion that the plaintiffs were entitled to get declaration of their title and recovery of possession with respect to 3 kathas 18 dhurs of land, including 5 dhurs 57 dhurkis of Plot No 19412 and 1 katha 9 dhurkis of Plot No. 19413. The suit, therefore, was decreed in part to the extent indicated. The defendant thereafter, filed an appeal before the District Judge. The appeal was heard on 26-9-1966 and was allowed. Thereafter the matter came up in Second Appeal No. 937 of 1966 to this Court. Mr. Justice B. D. Singh, who heard the appeal was not satisfied with the judgment. He, therefore, allowed the appeal and sent the case back on remand to the lower appellate Court for a fresh decision in accordance with law. When the matter went back to the Court of appeal below, it was again heard on merit. The lower appellate Court again modified the decree passed by the trial Court by its judgment and decree dated 28-9-1970. Second Appeal No. 38 of 1971 was then filed which was heard by Mr. Justice Lalit Mohan Sharma. Mr. Justice Sharma also allowed this second appeal and remanded the case back to the lower appellate Court for a fresh decision in accordance with law. After the case went for the second time to the Court of appeal below, the plaintiffs filed an application for amendment of the plaint seeking that a relief for grant of mesne profits be also passed as against the defendant. The prayer for mesne profits was allowed. The appeal was then heard on merit. The lower appellate Court, this time also modified the decree passed by the trial Court. While so modifying, it decreed the suit with respect to 10 dhurs 57 dhurkis of Plot No. 19412 and 1 katha 9 dhurs in respect of Plot No. 19413. It also passed a decree for mesne profits against the defendants. Thereafter, this second appeal was filed in this Court.

(2.) The following points were formulated at the time of admission of the appeal by the Court's order dated 14-11-1980:--

(3.) Mr. Shreenath Singh, learned counsel for the appellants first contended that the trial Court had given a decree for 5 dhurs 57 dhurkis of Plot No. 19412 and for 1 katha 9 dhurkis of Plot number 19413. He submitted that the plaintiffs did not prefer any appeal against the decree passed by the trial Court. The appeal was preferred only by the defendant. Therefore, according to Mr. Singh, the Court of appeal below had no jurisdiction to increase the area of Plot No. 19412 from 5 dhurs 57 dhurkis to 10 dhurs 57 dhurkis. Likewise Mr. Singh contended that the Court of appeal below had no jurisdiction to increase the area of Plot No. 19413 from 1 katha 9 dhurkis to 1 katha 9 dhurs. This according to Mr. Singh was not only illegal but beyond the competence of the Court of appeal below. Mr. Mishra, on the other hand, contended that the Court below had jurisdiction under Order 41, Rule 33 of the Civil P. C. to pass such decree or orders as the case may require. According to him, although no appeal was preferred by the plaintiffs, but the case required the decree to be modified in the manner it was done. To substantiate his argument that the lower appellate Court has jurisdiction to give a relief although no appeal has been preferred for that purpose, learned counsel has cited the decision in the case of Giani Ram v. Ramji Lal, (AIR 1969 SC 1144) wherein the Supreme Court has observed that if the appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the subordinate Court, it may pass Or make such further or other decree or order as the justice of the case may require. To understand the law laid down by this decision, it will be pertinent to keep the facts of the case in mind. The relevant facts are that the sons, daughters and the widow of the alienor challenged the validity of the transfer made in favour of the alienee. The transfer was upheld by the High Court. The sons then preferred an appeal before the Supreme Court. The Supreme Court was of the view that the transfer was not valid. It, therefore, while decreeing the suit, held that although the daughters and the widow had not filed an appeal yet they could be given relief under Order 41, Rule 33 of the Civil P. C. The important aspect in that case was that the sons had preferred an appeal and in that appeal the entire subject matter of the suit was involved. Therefore, it could not be said in that case that although the properly was not the subject matter of the appeal, relief was given to the respondents in an appeal filed by the appellants.