Dadarao Tukaram Kosare And Ors. vs Shyam Co-Operative Housing ...
2004 Latest Caselaw 626 Bom

JUDGMENT

Anoop V. Mohta, J.

1. This Second Appeal filed by the original defendant Nos. 1 to 3, appellants herein, and thereby challenged the Judgment and Decree dated 7-2-1989, whereby the Judgment and Decree passed by the Trial Court dated 18-2-1986, was set aside and further declared that the plaintiff/ respondent No. 1 herein, is entitled to withhold possession of the suit property except against the lawful transferee of plaintiff society.

2. The Second Appeal was admitted on 5-7-1991 on the following question of law :

"Whether the parties succeeding in the Trial Court can support the Judgment and Decree passed in their favour without filing a Cross objection only as regards the findings which are recorded against them by the Court, would be the substantial point for consideration in this appeal."

3. Heard the learned Advocates for the parties. The original plaintiff/society had brought this suit against the original defendants for possession and damages. The original defendants did not lead any evidence in support of its case, even though they filed their written statement. The plaintiff lead evidence in support of his case. After considering the material, as well as, evidence on the record, the learned Trial Judge, came to the conclusion that Shri Admane, Chairman of the plaintiff society was forced to file the suit. The possession of defendants was illegal and unauthorised, therefore entitled for the possession from the defendants. However, in spite of this finding on this issue, dismissed the suit filed by the plaintiff.

4. Therefore, the original plaintiff had preferred First Appeal against the contesting defendants. After considering the same evidence and material on record, and in view of the factual position, affirmation of the issues as referred above, reversed the order and decree passed by the learned Trial Court, and allowed the case as observed above.

5. Heard Mr. Chandurkar, the learned Advocate appearing for the appellant. After going through the record, as well as, the reasoning given by the Court below, in my view also the Appellate Court has rightly interfered with the order passed by the Trial Court, and set aside the same. The Appellate Court after re-appreciation of evidence and material on the record and as admittedly, there was no evidence lead by the defendants, and evidence was only lead by the plaintiff, the finding cannot be said to be contrary to record or unjust or perverse. The finding given by both the Courts below on fact, are concurrent, so far as the claim of the plaintiff is concerned. The conclusion arrived at by the trial Court also was not correct. The Appellate Court therefore rightly set aside the same and granted the relief as prayed by the plaintiff.

6. The question of law as framed above, is a settled position of law, as conceded by both the parties. The fact of this case nowhere support the appellants on merits itself. There cannot be any dispute that the party succeeding in the trial Court can support the judgment and decree passed in their favour, but, finding which are against cannot be challenged, without filing the cross objection. The facts and circumstances of the case however, plays important role while deciding even this aspect. When Court comes to a particular conclusion on merit based on evidence available on record such findings cannot be interfered with, in the Second Appeal, even if there is some merit in the contention raised. In the facts of this case, on merit itself there is no material placed on record to justify interference.

7. The learned Judge after considering , Shankar Sadu Wanjhe v. Smt. Parwatibai Ramchandra Dongre based on para No. 20, considered the contention raised by the appellants and observed that the respondents/original defendants No. 1 and 3, have not brought any cross objection and, therefore, the respondents cannot agitate the findings which are against them. The scheme of the Order 41, Rule 22 has to be read in the context and as interpreted by our Court in the case referred above (Shankar- supra) as also , Padmadevi v. Kabal Singh. Therefore, on this count also there is no reason to interfere with the order passed by the Appellate Court.

8. So far as the question of jurisdiction is concerned, there is no dispute that this question can be raised by any party in spite of the fact that there was no such cross objection raised as contemplated by Order 41 Rule 22, even if such question is based on admitted facts and circumstances of the case. However, in the present matter the Appellate Court has considered the question of jurisdiction and accordingly proceeded with the matter by holding that the suit is maintainable in the Civil Court itself. This finding is infact given by both the Courts. In view of this, I see there is no reason to interfere with the order passed by the learned Appellate Court.

9. The Second Appeal is accordingly dismissed. No order as to cost.