Bablu Barnwal vs Niranjan Singh S/O Brinda Singh
2025 Latest Caselaw 6694 Jhar

Jharkhand High Court

Bablu Barnwal vs Niranjan Singh S/O Brinda Singh on 4 November, 2025

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

                                                                 2025:JHHC:33209




IN THE HIGH COURT OF JHARKHAND AT RANCHI
           C.M.P. No. 636 of 2025

1. Bablu Barnwal, S/o Late Jai Prakash Lal
2. Lalo Modi
3. Krishna Lal Barnwal
   Both sons of Late Saudagar Modi
   All residents of village Amtaro, P.O. & P.S. Gawan, District Giridih,
   Jharkhand
                                                    .....   ....    Petitioners
                                 Versus
1. Niranjan Singh S/o Brinda Singh
2. Bablu Kumar Singh, S/o Late Sahadeo Singh
3. Rajendra Singh
4. Shambhu Sharan Singh
5. Shiv Shankar Singh
6. Guddu Kumar
7. Pawan Kumar
   Nos. 3 to 7 sons of Late Sahdeo Singh
   All residents of village sadja, P.O. & P.S. Gawan, District Giridih, Jharkhand
                                               ...     ....      Opposite Parties

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Petitioner                : Mr. Amar Kr. Sinha, Advocate
                                    Mr. K.K. Ambastha, Advocate
                                    Mr. Sandeep Verma, Advocate
                                    Mr. Sumit Kumar, Advocate
For the Opposite Parties          : Mr. J.P. Jha, Sr. Advocate
                                    Mr. Sanjeev Thakur, Advocate
                                    Mr. Ranjan Prasad Sinha, Advocate
                        ------

Order No. 09 / Dated : 04.11.2025.

Heard, learned Counsel for the parties.

1. Petitioners are the judgment-debtors and the instant civil miscellaneous petition has been filed for quashing the order dated 19.04.2025 passed by the learned Civil Judge (Junior Division), Giridih in Execution Case No. 03 of 2020 (Annexure-7), whereby and whereunder, petition under Section 47 of the CPC has been rejected.

2. Plaintiffs filed the suit for the following reliefs:

a. Declaration of right, title and interest over Schedule-B lands being part and parcel of Schedule-A lands.

b. Possession of the Plaintiffs over the suit lands be confirmed. c. Khas vacant possession of the suit lands be recovered and delivered to the Plaintiffs by demolishing structures and constructions at the cost of defendants which have been raised over a portion of Schedule B lands.

d. That an order of temporary injunction be passed, and the defendant

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be restrained from raising constructions or structures over Schedule-B lands or any part or parcel thereof, or from changing nature, and physical feature of this suit, land, and the same be made permanent on adjudication.

3. Schedule-A land comprises an area, measuring 0.40 Decimals within Police Station -Gawan, Mouza- Amtaro, Khata No.1, Khewat No.1, Touzi No.11, Thana No.185 of which at present, 36 Decimals was in possession of plaintiffs. Schedule B Land measures 0.18 decimals which was part and parcel of Schedule-A lands.

4. Plaintiffs' suit was partly decreed vide judgment dated 09.10.2009 with respect to 18 decimals of land under khata no.1 plot no.127.

5. Accordingly decree was drawn declaring the plaintiffs to be absolute owners with all right, title and interest over Schedule-B lands being part and parcel of Schedule-A lands. The position of plaintiffs over the suit lands was confirmed. The other reliefs with regard to recovery of khas vacant possession and permanent injunction was also allowed.

6. Despite the suit having been decreed in favour of the plaintiffs, defendants surprisingly preferred Civil Appeal No.10 of 2010 on the ground that suit was only partly decreed for 18 decimals under Khata No.1, Plot No.126.

7. The said Appeal was allowed on contest and the judgment as well as decree passed by the learned Trial Court was set aside.

8. Learned First Appellate Court at Para-11 of the judgment recorded a finding that the plaintiffs had acquired their right, title and interest as well as possession over the entire lands mentioned in Schedule-A i.e. area measuring 36 decimals of Plot No.127 and the defendants had no right, over the suit land on the basis of his alleged sale-deed which was never acted upon. It was also noted that the defendant(s) had never challenged sale-deed of plaintiffs bearing No.15832 dated 29.07.1966.

9. Defendants/Petitioners being aggrieved by the judgment and decree of the First Appellate Court preferred the Second Appeal being S.A. No.53 of 2021 which was dismissed by observing with the following observations at Paras 6 & 7 :-

6. There is no order passed by the learned First Appellate Court that the suit of the plaintiff has been decreed. Rather, the entire judgment and decree passed by the Trial Court has been set aside.

7. Learned counsel for the appellants abandons the grounds mentioned in the instant Second Appeal and submits that since the suit has not been decreed so, the defendant is not aggrieved by the judgment and decree passed by the learned first appellate

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Court and as the appellate court by its judgment has set aside the judgment and decree passed in Title Suit No.32 of 2009 of the Court of Munsif, Giridih, there is no judgment and decree against the appellant/ defendant, so, the appellants do not press the instant Second Appeal.

10.The petition filed by the present petitioners/ judgment-debtors under Section 47 of the CPC, 1908 was filed on 24.09.2024, inter-alia, on the ground that the First Appellate Court had not confirmed the right, title and interest of the plaintiffs over Schedule-A as no relief was prayed with respect to it and further the plaintiffs were already in possession over 18 decimals of land under Schedule-B.

11.Learned Executing Court dismissed the petition on the ground that the plaintiffs' suit was partially decreed to the extent of claim in respect of 18 decimals of land under Khata No.1, Plot No.127. This part of the decree has not been set aside in appeal, rather, it has been noted in Paras 10 and 11 of the judgment of the First Appellate Court that the plaintiffs had acquired right, title and interest as well as possession over Schedule -A lands.

12. It is argued by learned counsel for the petitioners that there does not exist any executable decree, as the judgment and decree of the learned Trial Court has been set aside by the First Appellate Court.

13. This has been taken note of and observed in the aforesaid second appeal preferred by the Defendant, that there does not remain any judgment or decree by which the appellant/defendant could be said to be aggrieved. Consequently the second appeal was dismissed.

14.It was open to the plaintiffs to have assailed the judgment and decree of the First Appellate Court which they failed to do so. Consequently, the judgment of the First Appellate Court attained finality, which in express term had set aside the judgment and decree of the trial Court.

15. It is argued by the learned counsel for the plaintiffs/ decree-holders that for proper construction of a decree, findings recorded by the learned First Appellate Court needs to be looked into. In paras 10 & 11, as referred to above, the First Appellate Court has noted that the defendant(s) had no title, over Schedule-A lands and sale-deed was never acted upon their favor. These findings of fact cannot be completely ignored while construing the true meaning of decree and findings. It is contended that the findings of the first appellate court, as well as the trial court are in favor of the plaintiffs, which has not been set aside by any court of law. Rather, the second appeal preferred

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by the defendant/judgement debtor has been dismissed, thereby confirming the judgment of the first appellate court.

FINDING

16.This is a rather peculiar case where the plaintiffs' suit is decreed for the relief claimed, yet the trial court says that the suit is partly decreed. Plaintiffs added to the confusion by preferring first appeal, which is more confounded by the judgment and decree in appeal.

17. The first appellate court has set aside the judgment and decree passed by the learned trial court, although it has affirmed the findings of the trial court and held that Defendant had no right over Schedule A land. However, the relief with respect to Schedule-A lands, has not been allowed in clear terms, and consequently decree also does not speak about the relief with respect to it.

On a proper perusal of judgement, it is manifest that the first appellate court did not intend to set aside the judgement passed by the trial court with respect to Schedule B land, which was against partial decree. In the result, although the judgment decree of the trial court has been set aside, but no decree has been made with respect to schedule A land for which the appeal was filed.

18. The question which naturally arises is, can an appellate court set aside part of a decree in a civil appeal, which is not in challenge before it?

19.Under section 96 and order 41 of the CPC, an appellate court's jurisdiction is confined to the portion of the decree which has been appealed against. Therefore, ordinarily, the appellate court cannot set aside or modify that part of the decree which has not been appealed against. Order 41 R 33 CPC, however, empowers the appellate court to pass any decree or pass any order which ought to have been passed or made, even as to parties who had not appealed, to do complete justice between the parties. Jurisdiction and power of the first appellate court have been summed up by Apex Court as under:-

Banarsi v. Ram Phal, (2003) 9 SCC 606

22. For the foregoing reasons we are of the opinion that the first appellate court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross-objection. The interference by the first appellate court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first appellate court.

20.Thus, it follows that an appellate court, as a general rule, cannot modify or annul any portion of a decree that has not been appealed or challenged

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by any party, except where specific statutory provisions or exceptional circumstances permit such intervention.

21.In the present case, the trial court decreed the suit in favour of the plaintiffs with respect to the Schedule-B land. Since the defendant did not assail this finding, it attained finality. Consequently, the first appellate court, while exercising jurisdiction under Section 96 of the Code of Civil Procedure, lacked the authority to set aside this portion of the decree in the absence of any challenge to it. In a civil proceeding, the judgment constitutes the reasoning, while the decree embodies its final outcome. The first appellate court, however, delivered a .convoluted judgment in which the decree was not consistent with the judgment. Nevertheless, the executing court retains the authority to construe and enforce the decree as rendered by the trial court, particularly since that decree was never challenged by the petitioner/judgment debtor.

22.As the defendant/judgment debtor did not prefer an appeal against the judgment and decree of the trial court, the same attained finality in respect of the Schedule-B land. Moreover, in the second appeal, a co-ordinate bench of this Court dismissed the appeal filed by the judgment debtor.

23. Therefore, this Court holds that the trial court's judgment and decree

concerning the Schedule-B land constituted an executable decree, whereas the same cannot be said for the Schedule-A land. Although it was open to the plaintiffs to challenge the first appellate court's judgment, given the ambiguity it contained, the plaintiffs chose not to do so at its own peril.

24. In the light of the above reasons, Civil Miscellaneous Petition accordingly

stands dismissed. Executing Court to proceed with execution with respect to Schedule B land. Pending I.A., if any, stands disposed of.

(Gautam Kumar Choudhary, J.)

sandeep/ -

uploaded 7.11.2025