Bombay High Court
Ashok Bhanudas Choudhari And ... vs Kashinath Vishwanath Gade on 17 July, 2017
Bench: P.R. Bora
1 AO 7/2016
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER 7 OF 2016
1. Ashok Bhanudas Choudhari
Age : Major, Occ : Service & Agri,
R/o. Chanda, Tq. Newasa,
Dist. Ahmednagar
2. Ganpat Patilba Chavan
Age : Major, Occu : Service & Agri.,
R/o. Newasa Fata, Tq. Newasa,
Dist. Ahmednagar
3. Babasaheb Bansi Kale,
Age : Major, Occu : Agri.,
R/o. Behind Mukindpur
Irrigation Colony
Near Sent Meri Schook Newasa Fata,
Tq. Newasa, Dist. Ahmednagar
4. Digambar Padmakar Kulkarni,
Age : Major, Occu : Service.
R/o. Behind Mukindpur Irrigation
Colony, New Sent Meri Schook,
Newasa Fata, Tq. Newasa,
Dist. Ahmednagar
5. Nivrutti Bhanudas Lokhande
Age : Major, Occu : Agri
R/o. Behind Mukindpur
Irrigation Colony,
Near Sent Meri School,
Newasa Fata, Tq. Newasa,
Dist. Ahmednagar
6. Kashinath Rangnath Dahale
Age : Major, Occu : Agri
R/o. Newasa Bk.,
Tq. Newasa, Dist. Ahmednagar
7. Bramhanath Pandurang Pawar
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2 AO 7/2016
Age : Major, Occu : Service,
R/o. Behind Mukindpur
Irrigation Colony,
Near Sent Meri School,
Newasa Fata, Tq. Newasa,
Dist. Ahmednagar
8. Vasant Vitthal Jape
Age : Major, Occu : Agri.,
R/o. Newasa Bk.,
Tq. Newasa, Dist. Ahmednagar
9. Latabai Tukaram Pawar,
Age : Major, Occu : Household,
R/o. Newasa Bk.,
Tq. Newasa, Dist. Ahmednagar,
10. Chaburao Shahadu Panmand
Age :Major, Occu: Agri.
R/o. Behind Mukindpur
Irrigation Colony,
Near Sent Meri School,
Newasa Fata,
Tq. Newasa Dist. Ahmednagar
= APPELLANTS
(Ori. Defendants)
VERSUS
1. Kashinath Vishwanath Gade
Age : 72 years, Occu. Agri.,
R/o. Mukindpur, Tq. Newasa,
Dist. Ahmednagar
2. Shahabuddin Riyaj Mahammad
Age : Major Occu. Service
R/o. Newasa Fata, Tq. Newasa,
Dist. Ahmednagar
(Resp.No.2 Deleted as per Court
order dated 07.10.2016.)
3. Prayagabai Bhausaheb Kale
Age: Major, Occu.: Household,
both R/o. Behind Mukindpur
Irrigation Colony Near St. Merry
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3 AO 7/2016
School, Newasa Phata,
Tq. Newasa,Dist. Ahmednagar. = RESPONDENTS
(orig. Plaintiffs)
-----
Mr. Ajeet B.Kale, Advocate for Appellants;
Mr. AD Shinde, Adv. for Respondent No.1.;
Respondent No.2 deleted;
Respondent No.3 served;
-----
CORAM : P.R.BORA, J.
DATE :
17 th
July,2017.
ORAL JUDGMENT:
1) Heard. The present appeal is filed
taking exception to the order passed by the
District Judge, Newasa on 19th September, 2014 in
Regular Civil Appeal No.241/2014.
2) A short question falls for my
consideration in the facts of the present appeal
is, - whether the first Appellate court could
have disposed of the appeal finally, without
deciding the cross objection filed therein by the
present appellants, i.e. original respondents ?
3) The aforesaid appeal was filed by
4 AO 7/2016
present Respondent No.1, challenging the judgment
and decree dated 28th January, 2013 passed by
Joint Civil Judge Junior Division, Newasa in
Regular Civil Suit No.273/2000. In the aforesaid
appeal the present appellants filed the cross-
objection with the following prayers, -
" Therefore, the Respondents pray
that by considering the entire
evidence on record, facts and
circumstances of the case, the
findings recorded by the learned
may kindly be modified and those
issues may kindly be answered in the
negative and the suit of the
Appellant may kindly be dismissed
throughout with costs."
4) The learned District Judge, vide the
impugned judgment and order, has allowed the
aforesaid appeal filed by the present respondent
and has remitted the matter to the civil court
for deciding it afresh by setting aside the
judgment and decree passed in the Regular Civil
Suit. Aggrieved by, the present appeal is filed.
5 AO 7/2016
5) Shri Kale, learned Counsel appearing for
the appellants, submitted that the appellate
court has manifestly erred in passing the
impugned order without passing any order on
cross-objections or deciding the cross-objections
filed by the appellants. The learned Counsel
submitted that in view of the provisions under
Order 41 Rule 22 of the Code of Civil Procedure,
the first appellate court was bound to decide
the cross-objections either way and could not
decided the main appeal leaving the cross-
objection undecided.
. The learned Counsel in order to support
his contentions, relied upon two judgments of the
Hon'ble Apex Court, first in the case of
Assistant Commissioner and Land Acquisition
Officer, Gulbarga Vs. Chandrashekhar Shivlingappa
Balgundgi - AIR 1996 Karnataka 110, and the
other in the case of Hari Shankar Rastogi Vs.
Shri Sham Manohar and Ors. - 2005 (2) Mh.L.J.
1158.
6 AO 7/2016
6) Shri Shinde, learned counsel appearing
for the respondent, vehemently opposed the
submissions made on behalf of the learned Counsel
appearing for the appellants. The learned
Counsel submitted that merely because it is not
mentioned in the impugned judgment and order that
the cross objection filed by the present appeal
and is dismissed or rejected, no such inference
can be drawn that the first appellate court has
not considered the cross-objection or the issues
raised by the appellants in the said cross
objection while deciding the appeal and passing
the impugned order. The learned Counsel
submitted that the judgments relied upon by the
appellants may not be applicable in the facts of
the present case.
7) The learned Counsel further submitted
that even otherwise, the finding which is much
opposed and alleging that the relief of perpetual
injunction has been wrongly granted is to be now
re-considered by the trail Court in view of the
7 AO 7/2016
impugned order and full opportunity will be to
the present appellants also to put forth their
case and even to adduce the necessary evidence
there for and as such, no prejudice is likely to
be caused to the present appellants by the
impugned order.
8) The learned Counsel further submitted
that a clinching evidence has come on record
showing that though the present Respondent is
owner of the land admeasuring 1 hectare and 58
Are land, he is in actual possession of 1
hectare and 43 Are land and the present
appellant, though, is owner of the land
admeasuring 60 Are land, presently he is in
actual possession of 75 Are land. The learned
Counsel submitted that since beginning, a very
specific case has been pleaded by the respondent
that the present appellants have encroached upon
15 Are portion belonging to them.
9) The learned Counsel further submitted
8 AO 7/2016
that since clause 3 of the order passed by the
Trial Court directing appointment of T.I.L.R. and
get the measurements done of the suit land, is
not challenged by the present appellants, the
same has been executed and necessary orders in
that regard have been by the Executing Court for
carrying out the measurements of the said land
through T.I.L.R. And accordingly the actual
measurements have also been done and report is
submitted to the Court which in unequivocal terms
indicate that the present appellants have
encroached upon 15 Are land belonging to present
respondent No.1. The learned Counsel submitted
that there is no merit in the appeal and
therefore prayed for its dismissal.
10) Perusal of the impugned judgment and
order reveals that the first Appellate court has
not even referred to the objections raised by the
respondents, i.e. present appellants in their
cross objection. Though it may not be
appropriate, at this stage, to make any comment
9 AO 7/2016
or to make a detail discussion on the merits of
the issues raised in the cross objection, it
cannot be said that no issues were raised in the
cross objection so that the first appellate court
even did not refer to the said objections and
straight way decided the appeal finally without
deciding the said cross objection.
11) The Hon'ble Apex Court in the case of
Assistant Commissioner and Land Acquisition
Officer (cited supra) has held that it is always
desirable that the appeal and the cross objection
are considered and disposed of together. As has
been held in the said matter, the Hon'ble Apex
court there may be cases in which some times
while disposing of the appeal, the court may omit
to consider and dispose of the cross objection
either by inadvertence or by any other reason.
It is further held that disposal of the appeal on
merits does not preclude the Court from
considering the cross objection filed in the
court independently even if the appeal is
disposed of. In the instant case, the said
10 AO 7/2016
course also has not been adopted by the first
Appellate Court.
12) In the case of Hari Shankar (cited
supra), the Hon'ble Apex has laid down certain
principles referring to Order 41 Rule 22 of the
Code of Civil Procedure, which are thus, -
"(1) Appeal is a substantive
right. It is a creation of the
statute. Right to appeal does not
exist unless it is specifically
conferred.
(2) Cross-objection is like an
appeal. It has all the trappings of
an appeal. It is filed in the form
of memorandum and the provisions of
Rule 1 of Order 41 of the Code, so
far as these relate to the form and
contents of the memorandum of appeal
apply to cross-objection as well.
(3) Court fee is payable on
cross-objection like that on the
memorandum of appeal. Provisions
relating to appeal by an indigent
person also apply to cross-
objection.
(4) Even where the appeal is
withdrawn or is dismissed for
default, cross-objection may
nevertheless be heard and
determined.
11 AO 7/2016
(5) The respondent even though
he has not appealed may support the
decree on any other ground but if he
wants to modify it, he has to file
cross-objection to the decree which
objections he could have taken
earlier by filing an appeal. Time
for filing objection which is in the
nature of appeal is extended by one
month after service of notice on him
of the day fixed for hearing the
appeal. This time could also be
extended by the court like in
appeal.
(6) Cross-objection is nothing
but an appeal, a cross-appeal at
that. It may be that the respondent
wanted to give a quietus to the
whole litigation by his accepting
the judgment and decree and order
even if it was partly against his
interest. When, however, the other
party challenged the same by filing
an appeal the statute gave the
respondent a second chance to file
an appeal by way of cross-objection
if he still felt aggrieved by the
judgment and decree or order."
13) In view of the law laid down, as above,
it appears to me that the first Appellate court
has erred in not deciding the cross objection
filed by the present appellants in either way.
The impugned order, therefore, will have to be
quashed and set aside and is accordingly quashed
12 AO 7/2016
and set aside. The matter is remitted back to
the first Appellate court to decide the appeal as
well as the cross objection afresh in accordance
with law and on its own merits.
. Though from the record it appears that
the appeal was fully heard by the first Appellate
court, in view of the remand, it would be
advisable for the first appellate court to again
hear the appellants and the respondents briefly
on the merits of the appeal as well as the
cross objection. In view of the fact that the
parties are litigating since last fifteen years,
I deem it appropriate to direct the first
appellate court to decide the appeal as well as
cross objection afresh on its own merits, as
expeditiously as possible and preferably within
the period of two months from the date of this
order.
. The parties to appear before the first
appellate court on 25th July, 2017 without any
notice from the first appellate court.
13 AO 7/2016
14) The first appeal stands allowed in the
aforesaid terms. Pending civil application, if
any, stands disposed of.
(P.R.BORA)
JUDGE
bdv/
