Bombay High Court

Dashrath vs Assam: Air 1999 Sc 3571 And Urged ... on 7 December, 2009

Bench: A.P. Bhangale

                                                                 1


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                                   
                                     BENCH AT NAGPUR, NAGPUR.

                                        SECOND APPEAL NO.  49/1997




                                                                                     
                      Dashrath  s/o Chindhuji   Dhurve  ...               ...APPELLANT




                                                                                    
                                         v e r s u s


                      Pandurang s/o Rajaram  Gedam                            ..                 ...RESPONDENT




                                                                    
    ............................................................................................................................
                                         
                       Ku.Sharwari     Deshpande   Adv.h/for     Mr   A.C.   Dharmadhikari,      
                       Advocate for appellants
                       Advocate for respondent absent
                                        
    ------------------------------------------------------------------------------------------------------------

                                                            CORAM:   A.P.BHANGALE, J.
                                                            DATED :   7th DECEMBER,,  2009
       


     JUDGMENT :

This appeal is directed against judgment and order dated

19th August, 2006 passed by learned 2nd Additional District Judge,

Wardha in Regular Civil Appeal No.135 of 1994 whereby the appeal

challenging dismissal of Regular Civil Suit No. 25 of 1992 by the IV

Joint Civil Judge, Jr.Dn., Wardha was dismissed.

2. The facts which gave rise to the Second Appeal, in nutshell,

are as under :

The plaintiff (respondent) instituted Regular Civil Suit No.

25/1992 for declaration and permanent injunction against appellant

(original defendant). The plaintiff claimed possession of suit Plot No.

55/A admeasuring 50 'x 20' in the field "Maila Bardi" belonging to

'Niyojit Adiwasi Griha Nirman Sahakari Sanstha, Wardha', a Co-

operative society. The plaintiff claimed that he is the owner and in

possession of suit plot and was a member of the society and allotted the

suit plot for residential purpose by resolution dated 20.5.1983 passed

in general meeting of the society. The plot was transferred and

mutated in his name in Gram Panchayat records. The plaintiff also

claimed that he had constructed a house temporary shed, for which he

was penalised by Gram Panchayat in 1991. The plaintiff had

lodged a Police complaint through his next friend against the

defendant on 3.8.1991 when defendant tried to encroach upon suit

plot by constructing the house. The defendant denied the suit claim and

claimed ownership and possession of the suit plot.

3. The trial Court found that the plaintiff possessed the suit

plot but the allotment letter (Exh.43) and receipt of payment (Exh.

51) did not establish the allotment of the suit plot. As against

plaintiff's claim, the defendant relied upon allotment letter (Exh.64)

and established the date of allotment as 16.4.1989. The records of

Gram Panchayat as to mutation of plaintiff's name, indicate that it

was done in the year 1991. The evidence did not establish that the

suit plot was allotted in favour of the plaintiff prior to 16.04.1989.

The plaintiff relied upon document Exh.51 which reveals serial number

524 ; whereas defendant relied upon document Exh.63 which reveals

receipt of serial number 45 (prior to the plaintiff's document ). Thus,

the trial Court recorded a finding of the fact that the document of title of

the defendant appeared trustworthy although plaintiff could establish

that he had constructed the house on suit plot, which was unauthorized

and for which penalty was levied (Exh.47), house tax receipt (Exhs.

49 & 50) were also produced. Thus, the trial Court found that plaintiff

was in unlawful possession of suit plot though he had no title to the suit

plot; while the defendant was the true owner of the plot. Thus, suit

was dismissed with costs.

4. The learned Additional District Judge, Wardha recorded

concurrent findings of fact on the ground that plaintiff failed to prove

his title to the suit plot; but he was in possession of suit plot which was

unauthorized. The title of the defendant was found more clear than

that of plaintiff. The plaintiff had not examined Secretary of the Society

concerned. Cross-objection filed by the defendant challenging finding

recorded by the trial Court regarding possession of suit plot with the

plaintiff was also dismissed on the ground that the counter-claim in

the suit was not filed in the trial Court. Thus, Cross-objections were

dismissed by the first Appellate Court.

5. The defendant challenged dismissal of Cross-objection by the

first Appellate Court. In support of the appeal, it is contended that in

view of Order 41 Rule 22 of the Civil Procedure Code ( in short " the

CPC"), any respondent may also state that findings by the trial Court

ought to have been recorded in his favour. Learned Advocate made

reference to the ruling in Ravinder Kumar Sharma vs. State of

Assam: AIR 1999 SC 3571 and urged that it is open for any respondent

in Appeal to question adverse finding without filing Cross-objection as

filing of the same in Appeal is held optional and not mandatory. The

filing of cross-objections against the adverse finding was not obligatory.

6. Be that as it may; at the stage of Second Appeal to be

entertained in view of Section 100 of the CPC, the appellant has to

make out a substantial question of law in relation to rejection of the

counter-claim. When there are concurrent findings of fact as to

material issued in the suit, challenge by Second Appeal is barred in view

of Sec.100 of the CPC. In Chacko and another vs. Mahadevan :

2007 (6) Mh.L.J. 594, it is observed by Hon'ble Apex Court in

paragraph No.6 as under:

"6. It may be mentioned that in a First

Appeal filed under section 96 CPC, the

Appellate Court can go into questions of fact whereas in a Second Appeal filed under section 100 CPC the High Court can not interfere with

the findings of fact of the first Appellate Court, and it is confined only to questions of law."

7. Findings of fact by the first Appellate Court cannot be

interfered with by the High Court in Second Appeal under section 100 of

the CPC. But the question of law raised to the effect as to whether the

first Appellate Court was right in rejecting Cross-objection filed by

respondent ? needs consideration. The first Appellate Court was not

right in rejecting the Cross-objection of the respondent (defendant) on

the ground that the defendant had not filed counter-claim in the trial

Court. In Ravinder Kumar Sharma vs. State of Assam : AIR 1999

SC 3571 ,in para 22, the Hon'ble Apex Court observed thus :

".................. We hold that the respondent-

defendant in an appeal can without filing cross- Objections attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose sustaining the decree to the extent the lower Court had dismissed the suit against the defendant-respondent. The filing of

Cross-objections after the 1976 Amendment is

purely optional and not mandatory."

8. The first Appellate Court as last court of facts, is expected

to record correct finding of fact with due regard to settled legal position

and material evidence led in the case. Conclusions are required to be

based upon admissible evidence including upon Cross-objection, if any,

in the first Appeal.

9. In the facts and circumstances of the case, considering the

legal position, in my opinion, the interest of justice would be sub-served

if the impugned judgment and order by the first Appellate Court in

Regular Civil Appeal No.135/1994 is set aside and the case is remitted

back to the first Appellate Court, with a direction to decide the Cross-

objection in accordance with law and to record findings of fact in view

of the challenge by the defendant ( appellant-herein) to the adverse