Andhra Pradesh High Court - Amravati

Potluri Somanath vs Aluri Srinivasa Rao Died Per Lr on 23 September, 2024

APHC010308912004
                     IN THE HIGH COURT OF ANDHRA
                                 PRADESH
                                                         [3365]
                             AT AMARAVATI
                       (Special Original Jurisdiction)

     MONDAY, THE TWENTY THIRD DAY OF SEPTEMBER
          TWO THOUSAND AND TWENTY FOUR

                             PRESENT

   THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR

                   SECOND APPEAL NO: 1259/2004

Between:

Potluri Somanath and Others                    ...APPELLANT(S)

                                AND

Aluri Srinivasa Rao Died Per Lr and Others   ...RESPONDENT(S)

Counsel for the Appellant(S):

   1. M SRI ATCHYUT

Counsel for the Respondent(S):

   1. KRISHNA MOHAN SIKHARAM

The Court made the following:
                                  2
                                                       Dr. VRKS, J
                                                S.A.No.1259 of 2004




      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

              SECOND APPEAL No.1259 of 2004


JUDGMENT:

O.S.No.96 of 1997 was tried and was disposed of by

judgment and decree passed in favour of the plaintiffs by learned

Junior Civil Judge at Gannavaram on 18.08.2001. There were

ten defendants in the said suit. Aggrieved by the said judgment,

defendant No.2 alone preferred A.S.No.3 of 2002. Learned

Additional Senior Civil Judge at Gudivada by judgment dated

16.08.2004 allowed the appeal and consequently set aside the

judgment of the trial Court and dismissed the suit. Aggrieved

plaintiffs preferred this appeal against the appellate Court

judgment in terms of Section 100 C.P.C. There is sole

respondent in this appeal and this respondent is defendant No.2

in the suit. Pending appeal he died. Appellant impleaded the

legal representative of the deceased sole respondent arraying

him as respondent No.2. Despite service of notice on respondent

No.2, none entered appearance.

2. A learned Judge of this Court admitted this appeal and

formulated the following substantial questions of law:

Dr. VRKS, J

1. Whether Gram Panchayat is a necessary party to the suit, when admittedly the scheduled land is within the limits of VGTMUDA?

2. Whether a person who purchased the property without verifying the vendor's title deeds can be a bona fide a purchaser?

3. Whether the plaintiff has to necessarily seek for cancellation of sale deed in a suit for declaration of joint right in the plaint schedule land?

3. On a memo filed for appellants the following additional

substantial questions of law were also formulated on 22.03.2024:

1. Whether the defendants are necessary parties to the first appeal? If they are necessary parties, what is the effect of their non-impleadment in the first appeal? AIR 1965 (SC) 271 and AIR 1962 (SC) 89 and AIRONLINE 2018 SC 1364.

2. Whether the first appellate Court got the jurisdiction to entertain the first appeal and set aside the trial Court judgment and decree in the absence of defendants 1 and 3 to 10, who remained ex parte in the suit, since the same is contrary to Order XLI Rules 14, 22 and 33 of C.P.C., is not such decree perverse? vide 2002 (06) 415 (DB).

Dr. VRKS, J

4. Sri Radhakrishna and Sri M.Sri Atchyut, the learned

counsels for appellants submitted arguments and cited legal

authorities. Since none entered appearance for respondents, no

arguments were submitted on their behalf.

5. Sri Vinod Babu and Sri Phanindra Babu are real brothers.

Smt. Potluri Rajeswari is wife of Sri Vinod Babu. The

appellants/plaintiffs are children of those spouses. The property

in dispute is an extent of Ac.0.31 cents of dry land in Survey

No.139/1 of China Avutapalli Village of Krishna District. Vivid

description of it is in the plaint schedule. Surapaneni Anulatha

and Surapaneni Vidyullatha are real sisters and are daughters of

one Sri Surapaneni Venkata Krishna Rao. These two sisters'

maternal grandfather is Sri Maddineni Venkaiah. On 21.09.1971

the said Maddineni Venkaiah executed a registered Will under

which he bequeathed certain properties to his granddaughters

who are just referred above.

6. Surapaneni Anulatha and Surapaneni Vidyullatha executed

two registered sale deeds on 22.01.1981. Ex.A.1 is one such

registered sale deed. By this document they sold two items of

immovable property to Smt. Potluri Rajeswari who is mother of

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the appellants/plaintiffs. Under the first item Ac.5.78½ cents of

agricultural land spread over various different survey numbers

was sold. Under item No.2 Ac.0.15½ cents out of Ac.0.31 cents

in Survey No.139/1 was sold. It is referred therein that this

Ac.0.31 cents is for joint way. Therefore, half of this which comes

to Ac.0.15 ½ cents property was sold.

7. The other sale deed is Ex.A.2. Under this document

Surapaneni Anulatha and Surapaneni Vidyullatha sold two items

of property to Sri Potluri Phanindra Babu/defendant No.1 in the

suit. Under item No.1 they sold Ac.2.54½ cents of land in various

survey numbers. In item No.2 they sold Ac.0.15½ cents out of

Ac.0.31 cents in R.S.No.139/1 to defendant No.1. In this also it is

referred that this Ac.0.31 cents is meant for joint way and in that

Ac.0.15½ cents was sold to defendant No.1.

8. It is thus seen that item No.2 in Exs.A.1 and A.2 referred to

Ac.0.31 cents in R.S.No.139/1 and it was sold to two different

purchasers in equal measure. Boundaries mentioned therein tally

with each other.

Dr. VRKS, J

9. It is in the context of the above facts, the dispute has

arisen. The owner of the property under Ex.A.1 Smt. Poturi

Rajeswari died on 03.08.1981 and the property covered by

Ex.A.1 was succeeded by her husband and two

children/appellants/plaintiffs. The father of the appellants

relinquished his share by a registered deed on 11.08.1981. Thus,

the appellants became the absolute owners of the property

covered by Ex.A.1. What fell in dispute and what is mentioned in

plaint schedule is only item No.2 of Exs.A.1 and A.2.

10. In the plaint these appellants stated that Sri Poturi

Phanindra Babu alienated his properties through his father to

whom he had given a General Power of Attorney on 03.01.1987

and in these alienations the common pathway property

mentioned in item No.2 of both the documents were also sold out

by him. It is stated that defendant No.1 sold the property as plots

covered in item No.2 of Ex.A.1 also. It is further stated that

defendant Nos.2 to 10 at different points of time under different

registered sale deeds as per Exs.A.3 to A.12 purchased those

plots. Alleging that those alienations, to the extent concerning

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plaintiffs' rights over item No.2 of Ex.A.1-sale deed do not bind

them, they prayed the following reliefs in the suit:

11. Therefore, the plaintiffs pray that this Honourable Court be

pleased to pass a decree in their favour

(a) declaring the plaintiffs' joint right in the plaint schedule land;

(b) directing the defendants to vacate the plaint schedule land and keep it vacant after removing the constructions made, if any, by the 2nd defendant in the plaint schedule land;

(d) granting such other reliefs as the Honourable Court deems fit and necessary in the circumstances of the case.

12. Defendant Nos.1 and 3 to 10 received summons but did not

choose to appear and contest and were set ex parte. Defendant

No.2- Sri Aluri Srinivasa Rao alone contested the suit and filed

his written statement. He denied the plaint averments. It is

stated that he is a bona fide purchaser for value. The plaint

mentioned schedule property has no traces on ground and is not

in existence. The alleged rights of plaintiffs even if there, stood

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extinguished as he and other defendants have been in

possession of such properties for nearly 19 years. That he

constructed a factory spending huge amounts of money in the

property purchased by him and that there is 24 feet wide road on

the west of all plot Nos.1 to 10. On 18.05.1979 the Gram

Panchayat issued an approved layout for plot Nos.1 to 10 and

that layout does not indicate set apart of any 33 feet wide road

alleged by plaintiffs. That the Ac.0.31 cents mentioned in the

plaint schedule is not part of the properties purchased by this

defendant. He sought dismissal of the suit.

13. Learned trial Court settled the following issues for trial:

1. Whether the plaintiffs are entitled to the relief of declaration that they got joint right in the plaint schedule property?

2. Whether the defendants are in possession of the plaint schedule land in any manner? If so whether the defendants are liable to be evicted from it?

3. Whether the defendants made any constructions in the schedule land? If so whether the defendants are liable to get them removed from it?

4. Whether the right of plaintiffs, if any, in the schedule land is extinguished by operation of law and by being in

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possession of the defendants since more than the statutory period under law?

5. To what relief?

14. First plaintiff testified as PW.1 and got examined PW.2 and

got marked Exs.A.1 to A.28. Defendant No.2 testified as DW.1

and got marked Exs.B.1 to B.3.

15. Agreeing with the claim of the plaintiffs with definite findings

supported by reasons, the learned trial Court decreed the suit in

favour of the plaintiffs in the following terms:

"In the light of the afore discussion and in the result, the suit of the plaintiffs is hereby decreed whereunder it is declared that the plaintiffs got joint right in the schedule land and in consequence of that the defendants 2 to 10 are directed to vacate the schedule land to the extent of their respective purchases and the second defendant is further directed to remove the structure of the factory if they are found within or part of the schedule land after getting the western and southern boundaries of the schedule land demarcated. In the circumstances there be no order as to costs."

16. Defendant No.2 preferred A.S.No.3 of 2002 showing

plaintiffs as respondent No.1 and respondent No.2. Be it noted

that defendant Nos.3 to 10 were not shown in the cause title of

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the appeal. In the memorandum of grounds of appeal, it is stated

that defendant Nos.1 and 3 to 10 in O.S.No.96 of 1997 in the trial

Court were set ex parte and as against them no relief is claimed

in this appeal and therefore they are not added as respondents in

this appeal. The prayer made in the said appeal reads as below:

17. The appellant therefore humbly prays that this Honourable

Court be pleased to pass order:

1. setting aside the decree and judgment dt.18.08.2001 in O.S.No.96 of 1997 on the file of Junior Civil Judge, Gannavaram;

2. awarding costs of appeal and in the lower Court;

3. to grant such other equitable reliefs as the Honourable Court deems it fit and just in the circumstances of the case.

18. Learned Senior Civil Judge after due hearing of the appeal

agreed with the claim of the appellant therein/defendant No.2 and

set aside the trial Court judgment and dismissed the suit forcing

the plaintiffs to come with this appeal.

19. Two vital submissions from the learned counsel for

appellants are:

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1. That the judgment of the appellate Court is perverse as

it failed to consider the evidence properly and recorded

findings referring to facts which are incorrect from the

visible recitals of the documents.

2. Failure to array defendant No.1 and defendant Nos.3 to

10 as respondents in A.S.No.3 of 2002 is against the

procedure contemplated under Order XLI Rules 14, 22

and 33 C.P.C. and that vitiates the entire appeal and

therefore, the impugned judgment of the appellate Court

shall be set aside. In this regard, the learned counsel

cited:

1. Dodla Chinnabbai Reddy v. Dodla Kumara Swami

Reddy1

2. State of Punjab v. Nathu Ram2

3. Kanakarathanammal v. V.S.Loganatha Mudaliar3

4. Pankajbhai Rameshbhai Zalavadia v. Jethabhai

Kalabhai Zalavadiya4

2002 (6) ALD 415 (DB) (AP)

AIR 1962 SC 89

Dr. VRKS, J

5. Sunkara Lakshminarasamma v. Sagi Subba Raju5

20. Learned counsel argues that unless parties to suit are

parties to first appeal, the first appellate Court ought not to have

adjudicated the dispute and even if such question was not raised

by these appellants before the first appellate Court, this Court has

to consider the same and in fact these appellants had no duty to

raise such question of non-impleadment of necessary parties.

Adjudication of such appeal by the first appellate Court would

result in contradictory judgments.

21. On earnest consideration of the submissions of the learned

counsel and the rulings cited and the judgments of the Courts

below and the entire material on record, the following aspects are

to be stated:

One question raised before the trial Court as well as the

appellate Court was that property described in the plaint schedule

could not be identified. Learned trial Court on considering the

entire evidence of PWs.1 and 2 and DW.1 and Exs.A.1 and A.2

stated that property can certainly be identified and for fixation of

AIR 1965 SC 271

AIR 2018 SC 490

Dr. VRKS, J

accurate boundaries a surveyor could be taken out even at a later

stage. It referred to the boundary recitals in these documents

and the boundaries as were available on ground and as spoken

to by the witnesses and then reached to that conclusion. It then

considered the evidence on record and stated that defendant

No.1 without there being any right alienated more property than

what he had under Ex.A.2 and thereby caused loss of property to

plaintiffs. It held issue No.1 in favour of the plaintiffs. It then

considered the other issues and held that defendant Nos.2 to 10

were found to be in possession of various extents of Ac.0.15½

cents of property of plaintiffs which is part of plaint schedule

Ac.0.31 cents and therefore, they are liable to vacate that part of

the land and held issue No.2 in favour of the plaintiffs. Learned

trial Court found that only defendant No.2 had certain

constructions of his lime and chemical factory in the land

purchased by defendant No.2 and it directed removal of those

constructions only if they fall within any part of the property of the

plaintiffs. It held issue No.3 accordingly. About the

extinguishment of right of plaintiffs, it addressed issue No.4 and

after detailed reasons held that their rights were never

AIR Online 2018 SC 1364

Dr. VRKS, J

extinguished. Accordingly, it answered all the issues in favour of

the plaintiffs and decreed the suit in their favour.

22. Learned first appellate Court could not agree with that

judgment of the trial Court. It framed the following two points for

its consideration:

1) Whether the judgment and decree of the lower Court is sustainable according to law?

2) Whether there are any valid grounds to allow the appeal?

23. At paragraph No.22 it stated "It is also noticed that there is

no mention of 33 feet width road from south to north to the plots 1

to 10 in Exs.A.1 and A.2. But, first item it was alleged about the

33 feet width of path way for ingress and egress in the registered

notice Ex.A.15 issued by the plaintiffs". At paragraph No.23 it

mentioned "The schedules of Exs.A.1 to A.10 clearly disclosed

that no joint path way is mentioned. It is abundantly clear from

the recitals of the schedule in Exs.A.1 to A.10 that the joint path

way is not mentioned whereas 24 feet path way is mentioned to

the west of plot Nos.1 to 10." Then it stated that learned trial

Court erred in discarding Ex.B.1 approved plan of Gram

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Panchayat dated 18.05.1979. At paragraph No.24 it stated "It is

also noticed that Surapaneni Anulatha and Vidyullatha have

gifted 24 feet path way to the Gram Panchayat, China Avutapalli

and the same was also mentioned in all the sale deeds Exs.A.1 to

A.10 but it was nowhere mentioned about joint path way of the

plaint schedule property". The above findings and observations

are the basis on which the learned appellate Court went on to

upset the judgment of the trial Court. This Court has to state that

all the above observations of the first appellate Court are

perverse and are against the record and they are out of

misreading of the material evidence. The same stands

demonstrated now. Exs.A.1 and A.2 are two documents

executed by the original owners. Defendant No.1 traces his title

under Ex.A.2. Plaintiffs trace their title through Ex.A.1. Both

documents were executed by the same vendors, namely,

Surapaneni Vidyullatha and Anulatha. In both these documents

there is absolutely no reference to any layout and any plots.

They are agricultural lands and they are sold as agricultural

lands. They have no mention about any plots and they have no

mention of any gift of land in favour of the Gram Panchayat.

Pleadings on both sides over which the trial had taken place do

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not mention anything questioning the correctness of Exs.A.1 and

A.2. Trial Court was right in observing that there was no dispute

about contents of Exs.A.1 and A.2 and the legality of these two

documents. That finding which was based on pleadings and

evidence was not reversed by the first appellate Court. A reading

of Exs.A.1 and A.2 show clear and categorical recitals stating that

Ac.0.31 cents is the land meant for joint pathway and to each of

the purchasers the vendors sold joint half which comes to Ac.0.15

½ cents. The observations of the learned first appellate Court

that there are no recitals about joint pathway in Exs.A.1 and A.2

is a clear misreading of the apparent recitals in the document and

therefore perverse. Exs.A.1 and A.2 were executed on

22.01.1981.

24. Ex.B.2 is certified copy of registered gift deed dated

17.02.1988. This was filed by defendant No.2 during trial. This

was executed by defendant No.1-Sri Potluri Phanindra Babu. It

was executed in favour of China Avutapalli Gram Panchayat. In

this he mentions that for public purpose and layout roads and to

provide any other amenities he is gifting Ac.0.25 cents of land to

the Gram Panchayat. Tracing his title he mentions the names of

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his vendors and then stated that his vendors Surapaneni

Vidyullatha and Anulatha obtained an approved layout dated

18.05.1979 and therefore he is thus gifting his Ac.0.25 cents

situate in R.S.No.139/1. The observations of the learned first

appellate Court that Surapaneni Vidyullatha and Anulatha gifted

24 feet pathway to Gram Panchayat is a clear perversity since

they never gifted and Ex.B.2 indicates gifting of land to Gram

Panchayat by defendant No.1. Coming to Ex.B.2, it refers to

approved layout. Defendant No.2 produced approved layout as

per Ex.B.1. It was issued in favour of executants of Exs.A.1 and

A.2. It was issued on 18.05.1979. Now the sequence of events

have to be seen. On 18.05.1979 Surapaneni Vidyullatha and

Anulatha had their properties laid out and obtained an approved

layout. Did they act upon it? One aspect that must always be

considered is that though they obtained this approved layout in

the year 1979, they did not make a reference to it on 22.01.1981

when they executed Exs.A.1 and A.2. Thus, they never acted

upon approved layout and they did not actually proceed with the

development of property as proposed in the layout. They sold the

property as an agricultural land and not as plots. They did not gift

any property to Gram Panchayat for common roads. It is never

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the case of either of the parties that an approved layout would

stand forever and would enure to the benefit of everyone. A

layout stands for two or three years and it requires renewal.

There is no pleadings and evidence to show that it was ever

renewed. In the eyes of law an approved layout is not an

assurance of title. By the time defendant No.1 got the property

under Ex.A.2 on 22.01.1981 the alleged layout lost its existence.

It is never the case of defendant No.1 or the case of defendant

No.2 that anything subsequent to it had occurred to bring back life

to the stale layout. Be that as it may. Under Exs.A.3 and A.5 to

A.12 it was in the year 1987 defendant No.1 alienated the

properties to defendant Nos.3 to 10. In all these documents he

mentions plot numbers referring to the above referred Ex.B.1

stale layout. Under Ex.A.4 it was on 25.01.1991 defendant No.2

purchased his plots of land wherein also reference is made to

Ex.B.1-layout. Thus, defendant No.1, who never applied for

layout and who purchased agricultural land under Ex.A.2, sold his

property as if he laid the plots. The consequence of his acts

resulted in description of boundaries in these documents as they

are plots. Comparing them as against Ex.A.1 is logically

incorrect. This was never noticed by the appellate Court and it

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went on to give the wrong comparison and that led it to reach to

wrong conclusions. Having sold out his properties in the year

1987 then defendant No.1 executed Ex.B.2-gift deed in the year

1988. Thus, he was indulging in acts that are against the truth

and facts and the documents. The entire defence of defendant

No.2 rested on such in accuracies. In fact defendant No.2

deposing as DW.1 stated in his examination-in-chief "I do not

know whether the plaintiffs have got joint right in the schedule

property. I do not know the particulars of the schedule mentioned

property and as to where it exists." He stated that he received

notice from plaintiffs but did not give reply notice. He further

stated that he did not verify the title deeds of his

vendor/defendant No.2 before he purchased his property under

Ex.A.4. He further stated that he did not make any attempt to

obtain the title deeds of defendant No.1 so as to verify whether

there is any reference in that document about the approved plan

and layout mentioned in Ex.B.1. He also said that the said plan

was not referred to in his own sale deed. Though he spoke about

24 feet wide road, he admits that there is no specific recital in any

of the documents to the effect that the mother of plaintiffs was

given any right to pass through that 24 feet bazaar to reach her

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lands. Learned trial Court appropriately appreciated all this

evidence but unfortunately by a skewed reasoning the learned

first appellate Court gravely erred in considering the evidence.

Therefore, this Court has no hesitation to state that the judgment

impugned is perverse and cannot be maintained.

25. The question whether VGTMUDA or Gram Panchayat is

competent to issue approved layout and whether they are

necessary parties to the suit have no relevance in deciding the

issue. They only approved what was submitted to them and as

stated earlier, their approval does not confer title on the property

where it never existed with the persons who submitted such plans

for their approval. Since the suit for declaration of title is for

immovable property, their presence or absence makes no

difference.

26. Respondent No.1/defendant No.2 though claimed to be a

bona fide purchaser, he demonstrated through his evidence that

he did not even care to look at the title deeds of his predecessors

in title and did not care to see whether there was subsisting

layout etc. One who has taken reasonable care is the one who is

said to be acting bona fidely. Defendant No.2 through his own

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evidence demonstrated that he did not take usual care that was

expected of a purchaser. Therefore, it is difficult to state that he

is a bona fide purchaser.

27. Before the Courts below one of the contentions raised was

as to whether the plaintiffs were obliged to seek cancellation of

Exs.A.3 to A.12. Learned trial Court held that it was not

necessary. Learned first appellate Court thought otherwise. Be it

noted appellants/plaintiffs did not alienate any part of their

property covered by Ex.A.1. Someone who has no right over

such property covered by Ex.A.1 if alienates the same to others

that does not bind plaintiffs in any manner. A document so

executed is void since the executant had no right to convey any

title. A void document can be ignored by the plaintiffs. Moreover,

plaintiffs are not the executants of Exs.A.3 to A.12. Therefore,

question of their seeking cancellation of those documents does

not arise. They only seek declaration of their right over the joint

property and that is permissible under law. Since Exs.A.3 to A.12

conveyed property drawn from Ex.A.2 and a little further from

Ex.A.1 it is only to that extent plaintiffs were seeking their reliefs

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and therefore there was no need for them to seek declaration of

invalidity of Exs.A.3 to A.10.

28. It is already noticed that there are ten defendants in the

suit. Defendant No.2 alone contested the suit. Rest of the

defendants did not make their appearance and never contested

the suit. Order XLI Rule 4 C.P.C. provides that where there are

more plaintiffs or more defendants than one in a suit and the

decree appealed from proceeds on any ground common to all the

plaintiffs or to all the defendants, anyone of the plaintiffs or of the

defendants may appeal from the whole decree and thereupon the

appellate Court may reverse or vary the decree in favour of all the

plaintiffs or defendants, as the case may be. Therefore,

defendant No.2 alone appealing is permissible and in such an

event the decree impugned before the appellate Court could be

set aside in its entirety also. However, the question is whether

the other defendants were required to be made respondents in

the appeal or not. Rule 9.(7) of Andhra Pradesh Civil Rules of

Practice and Circular Orders, 1980 reads as below:

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"9.(7) Cause - title of plaint etc.:--

(1) A plaint, or original petition, shall be headed with a cause-title, as in Form No.1. The cause-title shall set out the name of the Court, and the names of the parties, separately numbered, and described as plaintiffs and defendants or petitioners and respondents as the case may be.

(2) Cause title of memorandum of appeal:- A memorandum of appeal shall be headed with a cause-title setting out the names of the courts to and from which the appeal is brought, the names of the parties, separately numbered and described as appellants and respondents, and also the full cause title of the suit or matter in the lower court, as in Form No.2.

(3) Cause - title of subsequent proceedings:- All proceedings, subsequent to a plaint or original petition shall be headed with cause-title as in Form No.1 and all proceedings subsequent to a memorandum of appeal shall be headed with a cause-title as in the first part of Form No. 2.

(4) Description of contents:- Every proceedings shall also contain, immediately after the cause-title, a short description of its contents, as in Form Nos.5 and 6."

29. The purport of Order XLI Rule 14 read with Rule 22 C.P.C.

is that all the parties to the suit should be made parties to the

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appeal. Any respondents though he may not have appealed from

any part of the decree he may either support the decree or may

oppose the decree. In Dodla Chinnabbai Reddy's case (supra

1), at paragraph No.32 a Division Bench of this Court stated that

it is not open to the appellate Court to dispense with notice so far

as hearing of the main appeal is concerned, in respect of

defendants who remained ex parte in the trial Court. Thus, the

first appellate Court ignored the principles of law in entertaining

the appeal as it heard the appeal even without having all the