Pasha A Wahid Died Thr Lrs Kazi ... vs Atikh Ahmed Narlya ...
2021 Latest Caselaw 15739 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                            SECOND APPEAL NO.66 OF 2013



A. PASHA S/O A. WAHID (DIED), THROUGH, LRS. KAZI ASHFAK AND ORS.
                                      VERSUS
    ATIKH AHMED S/O NARLYA HUSSAIN @ HASNODDIN AND OTHERS
                                        ...
               Mr. Mujtaba Gulam Mustafa, Advocate for appellants
              Mr. B.S. Kudale, Advocate for respondent Nos.5A to 5C
                                        ...

                                   CORAM :     SMT. VIBHA KANKANWADI, J.
                                   RESERVED ON :        07th OCTOBER, 2021.
                                   PRONOUNCED ON : 15th NOVEMBER, 2021


ORDER :

1 Present appeal has been filed by the legal representatives of the

original plaintiff to challenge the Judgment and Decree passed in Regular

Civil Appeal No.134/2004 by learned District Judge-1, Majalgaon, Dist. Beed,

thereby the said appeal filed by the legal representatives of original

defendant No.5 came to be allowed and the suit filed by the original plaintiff

was dismissed.

2 Predecessor of present appellant-original plaintiff had filed

Regular Civil Suit No.239/1992 for declaration of ownership and perpetual

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injunction. That suit was partly decreed by the Joint Civil Judge Junior

Division, Majalgaon on 16.02.2002. Only the relief of declaration was given

and the relief of injunction was rejected. The legal representatives of original

defendant No.5 had preferred said Regular Civil Appeal No.134/2004 (Old

R.C.A. No.30/2002), which was allowed by the learned District Judge-1,

Majalgaon, thereby dismissing the suit filed by the original plaintiff. Hence,

this Second Appeal.

3 Heard learned Advocate Mr. Mujtaba Gulam Mustafa for

appellants and learned Advocate Mr. B.S. Kudale for respondent Nos.5A to

5C.

4 It has been vehemently submitted on behalf of the appellants

that in fact, the learned Trial Judge had erred in holding that the original

plaintiff is not in possession of the suit property and thereby rejecting the

prayer for perpetual injunction. The learned Trial Judge failed to consider

that the title runs with possession. Second Appeal is a continuation of the

suit and, therefore, Second appeal is maintainable on both counts, that is, for

challenging the findings given by the Trial Court as well as the Judgment and

Decree that is passed against them by the First Appellate Court. The plaintiff

had come with a case that one Abdul Wahed had 1/3 rd share in Sy.No.254/A.

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Abdul Pasha, Khurshid and Hasnoddin were the sons of Abdul Wahed. After

death of Abdul Pasha, they got 1/3rd share each in the said land i.e. owned by

Abdul Wahed. The suit land is to the extent of 03 Acres 10 Gunthas, more

particularly described in plaint para No.1. It is the part of the share of Abdul

Wahed. Plaintiffs are the heirs of Abdul Pasha. Defendant Nos.1 to 4 are the

heirs of Hasnoddin. Plaintiffs are the owners and possessors of the suit land.

Defendant Nos.1 to 4 being the heirs of Hasnoddin had 1/9 th share in

Sy.No.254-A. However, they had sold 4 acres 35 Gunthas of land to

defendant No.5. Plaintiff is not party to the said sale deed and, therefore,

that sale deed is not binding on him. In fact, whether the defendant Nos.1 to

4 could have sold property in excess of their share, was the question

involved. Therefore, when it was held by the learned Trial Judge that the

plaintiff had proved title over the suit property, the consequential prayer of

injunction ought to have been granted. Therefore, the substantial questions

of law are arising in this case.

5 Per contra, the learned Advocate appearing for the respondent

Nos.5A to 5C vehemently submitted that the original plaintiff did not

challenge the part of the decree, which was rejected, either by way of cross

appeal or by way of cross objection. The title will not run with the

possession, but it is vice versa, that is, the possession will run with the title.

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When there was evidence on record to show that the possession was not with

the plaintiff, relief of injunction was rightly rejected by the Lower Court.

Further, the First Appellate Court correctly held that only the relief of

declaration cannot be granted, and when the consequential prayer could

have been made by the plaintiff, however, he failed to pray that, then the

discretionary relief of declaration could not have been granted in favour of

the plaintiff. Reliance has been placed on the decision in Union of India vs.

Ibrahim Uddin and another, (2012) 8 SCC 148, wherein it has been held that

-

"Section 34 of Specific Relief Act provides that courts have discretion as to declaration of status or right. However, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so. Thus, it is not permissible to claim the relief of declaration without seeking consequential relief."

Appeal has therefore, be properly decided. It does not require

any interference. No substantial question of law, as contemplated under

Section 100 of the Code of Civil Procedure, is arising in this case.

6 At the outset, it is to be noted that initially the suit that was filed

was for declaration as well as permanent injunction, however, definitely, it

would have been within the knowledge of the plaintiff, as to who was in

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possession. The transaction between defendant Nos.1 to 4 and 5 had taken

place long back. In fact, the revenue record would show that defendant

No.5's name was standing in the cultivation column and it was never

challenged by the plaintiff. Exhs.80 and 81 would show that in the inquiry

that had taken place around 1977-79 possession of defendant No.5 has been

held and confirmed from 1974 and it was continued till 1985. The suit has

been filed in the year 1992; yet, the plaintiff preferred to file suit for

declaration of ownership and permanent injunction. No consequential relief

about taking back the possession from defendant No.5 was ever prayed even

after the written statement was filed. Now, as regards question of fact is

concerned, both the Courts have come to the conclusion that plaintiff had

failed to prove his possession over the suit property. This Court under the

scope of Section 100 of the Code of Civil Procedure cannot go much deep in

that aspect, as it is question of fact, and concurrent finding of fact need not

be so disturbed. Another fact to be noted is that the original plaintiff did not

file cross appeal or cross objection. Reliance can be placed on Municipal

Corporation of Delhi vs. Intnl. Security and Intl. Agency Ltd., AIR 2003 SC

1515, it has been held that -

"Substantive right is the right of appeal, the form of cross objection is a matter of procedure. Even otherwise, there are three situations, viz. (1) the impugned decree is partly in favour of the appellant and partly in

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favour of the respondent; (2) the decree is entirely in favour of the respondent though an issue has been decided against him; and (3) the decree is entirely in favour of the respondent and all the issues have also been answered in his favour, but there is a finding in the Judgment which goes against him. Only in the first category of cases it is necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him if he seeks to get rid of the said finding. In the second and third category of cases in consonance with the amended Code of Civil Procedure, it is not necessary for the respondent to take any cross objection laying challenge to any finding adverse to him as the decree is entirely in his favour.

Similar view has been taken in Laxman Tatyaba Kankate vs.

Taramati Harishchandra Dhatrak, 2010(6) Mh.L.J. 295 (SC).

6.1 Further, similar ratio has also been taken in Hardevinder Singh

vs. Paramjit Singh and others, 2014 (2) Mh.L.J. 126, in which reliance was

placed on the decision in Banarsi and others vs. Ram Phal, AIR 2003 SC

1989, wherein it was observed that -

"The amendment inserted in 1976 is clarificatory and three situations have been adverted to therein. Category 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any cross-

                                              7                                      SA_66_2013



          objection.

Thus, the suit was partly decreed and there was specific rejection

of the relief of the injunction. Inspite of that, the original plaintiff did not file

any cross-objection or cross appeal, challenging that part of the finding and

decree which had gone against him. It cannot be raised for the first time now

in the Second Appeal.

7 The learned Trial Judge failed to consider that only relief of

declaration cannot be given without any consequential relief. The decree of

declaration was discretionary relief under Section 34 and, therefore, the ratio

laid down in Union of India (supra) would be applicable here. That

discretion was not properly and judiciously exercised by the Lower Court; the

First Appellate Court has rightly exercised it and allowed the appeal, thereby

dismissing the suit. Under such circumstance, there are no substantial

questions of law involved in this case, as contemplated under Section 100 of

the Code of Civil Procedure, requiring admission of the Second Appeal.

Hence, the Second Appeal stands dismissed at the threshold.

( Smt. Vibha Kankanwadi, J. )

agd