Mr. K.L. Chandak vs Mr. Jai Chand & Ors.
2011 Latest Caselaw 1229 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment Reserved on: 24.02.2011
                   Judgment Delivered on: 01.03.2011


+       RSA No.85/2004 and CMs. 4643/2004 & 10869/2004


MR. K.L. CHANDAK                                 ...........Appellant
              Through:          Mr. Vinod Tyagi, Advocates

                    Versus

MR. JAI CHAND & ORS.                            ..........Respondents
              Through:          Mr. D.K. Rustagi & Mr. B.S. Bagga,
                                Advocates

        CORAM:
        HON'BLE MS. JUSTICE INDERMEET KAUR

      1. Whether the Reporters of local papers may be allowed to
         see the judgment?

      2. To be referred to the Reporter or not?             Yes

      3. Whether the judgment should be reported in the Digest?
                                                           Yes

INDERMEET KAUR, J.

1 This appeal has impugned the judgment and decree dated

02.01.2004 which had reversed the findings of the trial Judge dated

18.09.1995. Vide the judgment and decree dated 18.09.1995, the

suit filed by the plaintiff Jai Chand seeking possession of the suit

property i.e. property bearing Plot No. G-36, Shakarpur, Shahdara

Delhi measuring 100 square yards had been dismissed. Vide the

judgment and decree dated 02.01.2004, this finding was reversed;

the suit of the plaintiff stood decreed.

2       The factual matrix is as follows:-

(i)     The plaintiff claimed to be the owner of the aforenoted suit

premises. He had purchased it vide sale deed dated 14.08.1985

(Ex. PW-1/2). The possession of the plot had been delivered to him.

He had constructed one room along with a kitchen.

(ii) Defendant sometime in the year 1980 had tress-passed into

the suit property and raised an unauthorized construction therein.

Inspite of requests, the defendant had failed to deliver the vacant

possession of the suit land to the plaintiff. Suit was accordingly

filed.

(iii) In the written statement, the preliminary objection was that

the suit has not been properly valued for the purpose of court fee

and jurisdiction; plaintiff has no right/title in the property.

Defendant is the lawful owner of the suit premises which he had

purchased from Santosh Rani who in turn had purchased it from

Mohan Lal and Mohan Lal had purchased the said property from

Inderjeet Singh. Inderjeet Singh was the owner by virtue of a sale

deed dated 13.02.1970 (Ex. DW-3/1). In the alternative, the

defendant had also set up a plea of adverse possession.

(iv) On the pleadings of the parties, the following seven issues

were framed:-

"1. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD

2. Whether the suit is bad for non-joinder for necessary parties? OPD

3. Whether the suit has not been signed by the competent person? OPP

4. Whether the suit is barred by time? OPD

5. Whether the plaintiff is the owner of the suit premises? OPP

6. Whether the plaintiff is entitled to the decree of permanent injunction as asked for in the plaint? OPP

7. Relief."

(v) Two additional issues were also framed thereafter. Oral and

documentary evidence was led by the respective parties which

included two witnesses on behalf of the plaintiff and nine witnesses

on behalf of the defendant.

(vi) Issues No. 1 to 4 were decided in favour of the plaintiff;

issues No. 5 & 6 were decided against the plaintiff. Trial Court was

of the view that the plaintiff has not been able to establish his

ownership in the suit property; per contra oral and documentary

evidence adduced by the defendant established that he is in

possession of the suit land since 1980; balance of convenience was

in favour of the defendant. Suit was dismissed. The additional

issues had been left open by the trial court. No positive finding was

returned on this count.

(vii) The impugned judgment had not challenged the findings on

issues No. 1 to 4 for the reason they had been returned in favour of

the plaintiff. On issues No. 5 & 6, the Court was of the view that

the plaintiff had established that he is the owner of 100 square

yards of plot No. G-36; the contention of the defendant that

although he had purchased 75 square yards of suit land bearing

No. G-33-A, he had failed to show that G-33-A had thereafter been

converted to G-36. This contention of the defendant had been

repelled; the identity of the suit property was established; it was

held that the defendant was in occupation of 100 square yards of

land whereas he had purchased 75 square yards of land. He was

held to be in illegal and unlawful possession of the plot of land

owned by the plaintiff. Suit of the plaintiff was decreed. Additional

issues framed qua adverse possession had also been decided

against the plaintiff; the finding returned was that the plea of

adverse possession set up by the defendant had not been

established.

3 This is a second appeal. After its admission on 26.08.2008,

the following four substantial questions of law have been

formulated. They read as under:-

"1. Whether a decree passed by trial court in a suit for possession and

injunction dismissing that suit is joint and indivisible qua six legal

representatives of a sole plaintiff who died during pendency of the suit

substituted under Order XXII of the Code of Civil Procedure?

2. Whether first appeal is maintainable if all legal representatives of a

deceased plaintiff are not impleaded therein while such decree appealed

from is joint and indivisible?

3. Whether courts have rightly decided the question of limitation?

4. Whether the learned first Appellate Court has erred in law in

expanding the scope of first appeal by adjudicating the additional issues

Nos. 1 and 2 which were not decided by the learned trial court and the

respondent No. 1 himself not having prayed for the adjudication thereof

by the learned Additional District Judge?"

4 On substantial questions of law No. 1 & 2, learned counsel

for the appellant has submitted that the appeal is not maintainable.

The suit had been filed by Bhani Ram through his legal

representatives. There were six legal representatives namely his

one widow, two sons and three daughters. This suit had been

dismissed on 18.09.1995 which was a decree against all the

plaintiffs. It is pointed out that the appeal has been filed before the

first appellate Court only by one legal representative namely Jai

Chand without impleading the other legal representatives. The

impugned judgment had decreed the suit of the plaintiff on

02.01.2004; result of this decree is that the suit stands decreed qua

Jai Chand but qua other legal representatives of the deceased

Bhani Ram, the suit stood dismissed on 18.09.1995 which

judgment has since attained a finality. The judgment of the first

appellate court reversing that decree qua one legal representative

alone would be inconsistent with the decree of 18.09.1995; such

inconsistent decrees cannot be allowed to stand. To substantiate

this proposition, learned counsel for the appellant has placed

reliance upon AIR 1988 SC 54 Mahant Dhangir & Another Vs. Shri

Madan Mohan & Others. It is contended that the parties before the

lower court should be represented before the appellate court in the

absence of which if there are two inconsistent decrees, they cannot

be permitted to operate. For the same proposition reliance has also

been placed upon AIR 1971 SC 240 Ch. Surat Singh & Others Vs.

Manohar Lal & Others, AIR 1971 SC 241 Dev Raj Anand Vs.

Bhagwandas & Another, AIR 1972 SC 1181 Ramagya Prasad Gupta

& Others Vs. Murli Prasad & Others, AIR 1965 SC 1531 Union of

India Vs. Shree Ram Bohra & Others, AIR 1983 NOC 119 (KANT)

Vasant Appanna Mang. & Others Vs. Gangadhar Madhavarao

Inamdar & Others, AIR 1978 Orissa 91 Suns Majhi Vs. Bhairab

Prasad Bahera, AIR 1978 Orissa 224 Fakirmohan Rana & others

Vs. Sri Basanti Debi Thakurani & Others, AIR 1974 Bombay 118

Rshmabai & Others Vs. Sona Puna Patil & Another, AIR 1977 HP

56 Prem Singh Vs. Smt. Raj Rani Devi, AIR 1974 Rajasthan 152

Nathu & Others Vs. Laxmi Narani & others, AIR 1971 Canclutta

252 Aswini Kumar Roy & Another Vs. Kshitish Chandra Sen Gupta

& Others, AIR 1927 Patna 23 Badri Narain & Others Vs. East

Indian Railway & Another, AIR 1974 Karanatak 115 Rajabibi &

Others Vs. S. Ameerali & Another and AIR 1973 Allahabad 328

Jamal Uddin & another Vs. Mosque at Mashakganj & others.

Reliance has also been placed upon JT 2010 (8) SC 115 Budh Ram

& Others Vs. Bansi & Others. It is pointed out that the suit was

even otherwise barred by limitation; Article 65 of the First

Schedule of the Limitation Act , 1963 prescribes a period of 12

years for filing a suit for possession and this period of 12 years has

to be counted from the date when the possession of the defendant

becomes adverse. It is submitted that the defendant was in adverse

possession through his predecessor namely Smt. Santosh Rani who

in turn had purchased this property from Mohal Lal who in turn

had purchased it from Inderjeet Singh in 1970 and as such the

adverse possession of the defendant stood established from 1970.

The suit filed by the plaintiff in 1984 was beyond this period of 12

years; it was barred by limitation and this has not been correctly

construed by the trial court or in the impugned judgment. On the

last substantial question of law, it has been urged that the

additional issues i.e. question of adverse possession has been

decided by the first appellate court when no argument had been

urged on this score; it is pointed out that these issues had been left

open by the trial court and the first appellate court has committed

an error in deciding the additional issues when neither party had

pressed them. It has lastly been urged that this Court is a Court of

equitable jurisdiction and admittedly since both the parties had

alleged that they had purchased the suit property from their

respective purchasers through registered documents, it would be

proper if this Court orders demarcation of the property to be

effected through the appointment of a Local Commissioner; the

controversy could be rested.

5 Arguments have been countered. Learned counsel for the

respondents has placed reliance upon 1971 (1) SCC 265 Mahabir

Prasad Vs. Jage Ram & Others to substantiate his contention that

in view of provisions of Order 41 Rule 4 of the Code of Civil

Procedure (hereinafter referred to as the „Code‟) even if one single

plaintiff or defendant is joined in appeal proceedings, the appeal is

competent. It is submitted that in this case a relinquishment deed

of June, 1994 had been executed by the remaining five legal heirs

in favour of the present respondent namely Jai Chand thereby

relinquishing their shares in the suit property in his favour; it was

in these circumstances that the appeal came to be filed by the

appellant alone. The appeal was well competent and does not

suffer from any infirmity. Even otherwise this plea was never

raised before the first appellate court. It is pointed out that the

plea of limitation now set up before this appellate Court is a mixed

question of fact and law and cannot be gone into as no cross appeal

had been filed by the appellant before the first appellate court

challenging the findings of the trial Judge on the question of

limitation which had been returned in favour of the plaintiff/

respondent. This submission cannot now be adverted to. It is

further submitted that the question of adverse possession was

rightly decided by the impugned judgment. The findings on no

score call for any interference.

6 Record has been perused. The substantial questions of law as

formulated and noted hereinabove shows that the appellant has not

challenged the impugned judgment on its merit. He is not

aggrieved by the findings returned on issues No. 5 & 6 whereby

the impugned judgment had noted that the plaintiff by virtue of his

sale deed Ex. PW-1/2 was the owner of the suit land; this measured

100 square yards and had municipal No. G-36; the claim of the

defendant that G-36 had become G-33A had been rejected; the suit

land in possession of the defendant was also 100 square yards;

case set up byt the defendant was that in terms of Ex. DW-3/1

which was the first sale document in favour of his predecessor

Inderjeet Singh was for 75 square yards; suit land comprised of

100 square yards; the defendant was held to be an unauthorized

occupant of 100 square yards which was owned by the plaintiff;

suit for possession was accordingly decreed. This fact finding

returned in the impugned judgment has not been assailed as is

evident from the substantial questions of law formulated by this

Court.

7 Admittedly suit had been filed by Bhani Ram. During the

course of the trial, he had expired and his six legal representatives

including his one widow, two sons and three daughters had been

impleaded. Trial Judge had dismissed the suit of the plaintiff (who

were then represented through his six legal representatives) on

18.09.1995. This was a dismissal against all the legal

representatives of the plaintiff who were a collective body and the

representatives of deceased Bhani Ram. Appeal had been filed by

Jai Chand alone. The other legal representatives had not joined the

proceedings in the appellate court. The contention before the first

appellate court was that the other legal representatives in terms of

a registered relinquishment deed dated June, 1994 (admitted

document) had relinquished their shares in favour of Jai Chand.

This document is prior in time to the date of dismissal of the suit

which was on 18.09.1995. In terms of this relinquishment deed Jai

Chand alone was the owner of the suit land. This relinquishment

deed although had seen the light of the day before the first

appellate court yet this being an admitted document clearly

prescribes that in June, 1994 Jai Chand was the owner of the suit

land; he alone was the interested party. The decree of dismissal of

the suit on 18.09.1995 was thus a decree against Jai Chand alone.

It did not affect the other legal representatives as they had no right

or title left in the property at that time.

8 The first appellate Court had reversed this finding of the trial

court on 01.02.2004. It had decreed the suit of Jai Chand. The

question of an inconsistency in the two decrees does not arise;

rights of Jai Chand alone had been affected. The first judgment

dismissing his suit on 18.09.1995 was a dismissal of the rights of

Jai Chand alone; before the appellate Court the suit of Jai Chand

alone was decreed. The other legal representatives having

relinquished their rights in favour of Jai Chand had no interest left

in the suit property. Even before the first appellate court, nosuch

objection was taken; no cross-appeal or cross objections were filed.

9 Order XLI Rule 4 of the Code reads as under:-

"4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all- Where there are more plaintiffs or more defendants then one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one 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."

Order XLI Rule 4 of the Code thus permits one of the several

plaintiffs or one of the several defendants to obtain a reversal of

the whole decree. Even assuming that the decree of dismissal

(dated 18.09.1995) was a decree against all the legal

representatives of Bhani Ram, the appeal filed by one legal

representative namely Jai Chand was competent. Rule 33 of the

said Order is relevant. It reads as under:-

"Power of Court of Appeal.-The Appellate Court shall have power to pass any decree and make any order which ought ot have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:"

Rule 33 of this Order give wide powers to the appellate court

to pass any decree and to make any order notwithstanding that the

appeal has been filed only by one person; decree can be passed

against those respondents as well who have not filed any appeal or

objection; condition being that they must be parties to the suit.

This provision is based on the salutary principle that the appellate

Court should have the powers to do complete justice between the

parties. It confer a wide discretionary power on the appellate court

notwithstanding the fact that the appeal is with regard to a part of

a decree or that the parties in whose favour the power is proposed

to be exercised has not filed any appeal or cross-objection. The

words „as the case may require‟ in fact has been given the widest

power to the appellate Court to pass any order or decree to meet

the ends of justice. Order XLI Rule 4 of the Code has to be read in

conjunction with Order XLI Rule 33 of the Code which thus

empowers the appellate court to do complete justice between the

parties by passing such an order which ought to have been passed

or made although none of the parties affected of the decree have

appealed against it. The judgments relied upon by learned counsel

for the appellant on this score are all inapplicable to the facts of

the instant case. These are on the issue of abatement and if &

when it arises; each case is distinct. In 33 (1987) DLT 363 Chander

Bhan and Others Vs. Pehlad and Others a Bench of this Court had

held that where one of the original defendants had died and his

legal heirs had not been brought on record, appeal filed by the co-

defendant when the case of both the defendant was common was

maintainable; it had not abated. In 1980 RLR 440 Banarsi Das etc.

Vs. Mewa Devi it was held that where an eviction order is made

against more than one tenant and all the tenants do not appeal or

are made respondents even then eviction order can be got set

aside by one of the tenants by filing an appeal.

10 Substantial questions of law No. 1 & 2 are answered

accordingly.

11 Substantial questions of law 3 & 4 are bordered on issue of

limitation. Issue No. 3 had been framed by the trial court on this

point. This issue had been decided in favour of the plaintiff.

Obviously, the plaintiff was not aggrieved by this finding; he had

restricted his appeal only on the findings of the trial Judge on

issues no. 5 & 6. Issue No. 3 was never his grievance. No cross-

appeal or cross-objection had been filed by the

defendant/appellant. The appellant cannot now raise this issue in

second appeal. Even otherwise this was a mixed question of fact

and law; it was not question of law alone. Facts have necessarily to

be gone into to answer the plea as to whether the suit was within

limitation or outside limitation.

12 At this stage, it would also be relevant to state that additional

issues which related to adverse possession had been left open by

the trial Judge. The impugned judgment had returned a finding

that the defence set up by the defendant of adverse possession is

negatived; it had been rejected. The impugned judgment had

nowhere faulted in arriving at this conclusion. This finding had

been returned in the last but one para of the impugned judgment.

It reads as follows:-

"The respondent-defendant has set up ownership on the basis of title documents, against the claim of the appellant-plaintiff having purchased the suit property on 25.04.1981 and further has disputed the identity of the property and thus, the plea of adverse possession is not available to the respondent-defendant. Moreover, the respondent- defendant has traced his possession over the suit property from Mrs. Santosh Rani, who had come in possession of the suit property only in the year 1979 vide GPA „Mark-I‟ and thus the possession of the respondent- defendant has not matured to the status of being adverse to the appellant-plaintiff. Therefore, it cannot be said that the respondent- defendant has become the owner of the suit property by adverse possession.

In view of the aforesaid discussion, the judgment and decree dated 18.09.1995 of the ld. trial court is set aside and the suit of the appellant- plaintiff is decree and the appellant- plaintiff shall ve the possession of the property bearing No. G-36, Laxmi Nagar, Shakarpur, Shahdara, Delhi-110092 and the respondent defendant is restrained from creating any third party interest in the suit property. "

13 The submission of learned counsel for the appellant that

these additional issues could not have been decided when the

appellant had not assailed is a plea bereft of any merit. A first

appellate court is duty bound to reappreciate and reexamine the

pleas taken by the respective parties including the reappreciation

and reexamination of the evidence both oral and documentary. It is

not the case of the appellant that the evidence before the first

appellate court to decide these additional issues was insufficient or

some other evidence had to be led by the defendant. No perversity

has been pointed out on the merits of this finding; only contention

being that these additional issues could not have been decided in

the absence of any plea in this behalf. There is no merit in this

contention. Plea of adverse possession set up by the defendant

having being negatived, the question of limitation by adverting to

the provisions of Article 65 do not have to be gone into. Article 65

deals with recovery of immoveable property where the defendant

sets up the claim of adverse possession. This claim has been

rejected.

14 The case set up by the plaintiff is that he is the owner of the

suit property and he claimed his possession from the defendant

who is an unauthorized occupant. The defendant had also set up a

counter claim of ownership; he having purchased it from Santosh

Rani who in turn had purchased it from Mohan Lal who had vide

Ex.DW-3/1 purchased it from Inderjeet Singh. In one breath the

defendant was claiming ownership in his own right and in the

second breath he was claiming adverse possession. This plea of

adverse possession tracing it back to the first purchaser i.e.

Inderjeet Singh is absolutely absurd; plea of adverse possession

was available to the defendant; Inderjeet Singh is nowhere in the

said category. These are even otherwise two inconsistent pleas and

cannot be taken.

15 The plea of equity set up by the appellant also has no force.

Suit had been filed on 21.02.1984. The documentary evidence

relied upon by the defendant i.e. Ex. DW-1/1, Ex.DW-2/1 & Ex. DW-

2/2 were all documents which were after the date of filing of the

suit; contention of the respondent is that these documents had

been created; they were forged; they were rejected on this count;

under these circumstance equity does also not lie in favour of such

a party.

16 The substantial questions of law 3 & 4 are answered against

the appellant.

17    There is no merit in this appeal.

18    Appeal as also pending applications are dismissed.




                                          INDERMEET KAUR, J.

MARCH 01, 2011
A