No Acts & Articles mentioned in this case
High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
R.S.A. No. 419 of 2002
Reserved on: 30.5.2017
Date of decision: 20.6.2017.
_____________________________________________________________
Phuyian(deceased) through her L.Rs. Umed Ram
and Ors.
…..Appellants
Versus
Krishan Kumar (deceased) through his L.Rs.
..…Respondents
______________________________________________________________
Coram:
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? Yes.
______________________________________________________________
For the appellants: Mr. Bimal Gupta, Sr. Advocate
with Mr. Vineet Vashisht
Advocate.
For the respondents: Mr. Ankush Dass Sood , Sr.
Advocate with Mr. Rakesh K.
Sharma, Advocate.
Chander Bhusan Barowalia, Judge.
The present regular second appeal is
maintained by the appellants against the judgment and
decree dated 13.7.2001, passed by the learned Additional
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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District Judge, Solan, H.P., in Civil Appeal No.3-S/13 of
2001, whereby the learned Appellate Court has modified
the judgment and decree dated 22.11.2000, passed by the
then learned Sub Judge, Ist Class, Kandaghat, District
Solan, H.P., in Civil Suit No.18-K/1 of 1998, with the prayer
to set aside the impugned judgment and decree passed by
the learned Appellate Court.
2. The dispute in the present case is with regard to
the land comprised in Khewat/ Khatauni No.39/66 Khasra
No.837 (old Khasra No.510/329 min), 849 (old Khasra
No.568/336 min), 850 (old Khasra No.568/336 min.), 852
(old Khasra No.568/336 min) and 854 (old Khasra
No.510/329) min, kita 5, measuring 2044 sq.mtrs (2 bighas
09 biswas) situated in Mauza, Salihari (Sapar) Pargana
Bagri-Khurd, Tehsil Kandaghat, District Solan, H.P.
(hereinafter referred to as the suit land). It has been
alleged that said Puran Chand had expired on 13.12.1997
and after his sad demise, the plaintiff Krishan
Kumar(since deceased) (hereinafter to be referred as the
appellant) was owner in possession of the suit land after the
death of his father Puran Chand. It has also been alleged
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that the defendants (hereinafter to be referred as the
appellants) and their deceased father Mathu Ram have or
had any concerned over the suit land after 10.4.1976. It has
also been averred that earlier various civil suits were filed
by the deceased Mathu Ram with regard to the suit land
against the deceased Puran Chand, which were dismissed
by the Court since long ago. It has been alleged that
deceased Mathu Ram in connivance with the settlement
staff got the revenue entries of the suit land, qua possession
in his favour, which entries are illegal, void and against the
factual position existing on the spot.
3. It has been alleged that the suit was contested
by all the defendants(appellants), except defendant No.3
and they also filed written statement. They pleaded that
they are in possession of the suit land since time
immemorial and are cultivating the same peacefully and
without any interruption and interference from any side and
pleaded that Mathu Ram (deceased) was inducted, as
tenant, by the predecessor -in-interest of the
defendants/respondents and after passing of H.P. Tenancy
and Land Reforms Act, the father of the defendants became
owner-in-possession of the suit land and the entries in the
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revenue record have rightly been changed by the revenue
staff after due enquiry and verification.
4. On the pleadings of the parties, the trial Court
framed the following issues:
“1. Whether Sh. Puran Chand, Advocate was
owner-in-possession of the suit land, as
alleged?
… OPP
2. Whether Puran Chand has expired on
13.12.1997 at Chandigarh?
… OPP
3. If issue No.2 is proved in affirmative,
whether the plaintiff is the only son of
Shri Puran Chand and is not owner -in-
possession of the suit land ?
… OPP
4. Whether the change of the entries by the
Settlement Officer is illegal, void, wrong
and against the factual position existing
on the spot, qua the suit land, as alleged?
… OPP
5. Whether the suit is not maintainable in
the present form?
…. OPD
6. Whether the plaintiff is estopped from
filing the suit by his own acts, conducts
and acquiescence?
…. OPD
7. Whether the suit is not properly valued
for the purpose of Court fee and
jurisdiction?
…. OPD
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8. Whether late Sh. Mathu Ram had been
inducted as tenant by the predecessor-in-
interest of the plaintiffs?
…. OPD
9. Whether after the passing of the H.P.
Tenancy Land reforms Act, the father of
the defendants has become owner in
possession of the suit land?
…. OPD
10. Relief.”
5. The learned trial Court decided Issues No.1 to 4
and partly allowed Issue No.8 in favour of the plaintiffs and
Issues No.5,6, 7 and 9 in favour of the defendants and
decreed the suit.
6. Feeling aggrieved and dis-satisfied by the
judgment and decree passed by the learned Trial Court, the
plaintiff filed an appeal before the learned lower Appellate
Court. Learned lower Appellate Court partly allowed the
appeal and modified the judgment and decree to the extent
that the plaintiff-respondent is entitled for a decree of
possession on the basis of title and is not entitled for a
decree of permanent prohibitory injunction restraining the
defendants from causing interference in the suit land
because the possession of the plaintiffs-respondent is not
found in possession over the suit land. Hence, the present
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appeal, which was admitted on the following substantial
question of law:- .
“a). Whether the learned first
Appellate Court was right in granting
decree, for possession, in favour of the
plaintiff in a suit for permanent
prohibitory injunction, against the
defendant in the facts and
circumstances of this case?”
7. I have heard the learned counsel for the parties
and have also gone through the record.
8. Learned counsel for the appellants has argued
that there was no prayer for decree of possession. However,
the lower Appellate Court has granted decree of possession,
which is not permissible.
9. On the other hand, the learned counsel
appearing for the respondents, has argued that the
judgment passed by the learned Appellate Court is as per
law and the finding of the learned Appellate Court holding
the defendants in possession of the suit land is wrong. He
has further argued that the findings against him are
required to be set right after applying the provisions of
Order 41, Rule 33 CPC. In rebuttal, the learned counsel for
the appellants has argued that as there is no cross-appeal
neither cross objections. Provisions of Order 41 Rule 33
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CPC cannot be relied upon which are exceptional.
10. To appreciate the arguments of the learned
counsel for the parties, I have gone through the record of
the case, in detail.
11. Vinay Kumar Gupta has appeared as PW-I and
has stated that Puran Chand, Advocate was his
grand-father, who died in the year 1997. He has further
deposed that his father Krishan Kumar was son of Puran
Chand and that he is the Power of Attorney holder of
Krishan Kumar. He has further stated that the property of
deceased Puran Chand devolved upon his father Krishan
Kumar. Further, he has stated that Mathu Ram and his
family have no legal right, title or interest in or over the suit
land. He has further stated that Mathu Ram was tenant of
his grand–father and in the year 1976 and the land was
resumed by his grand-father. He further stated that after
resumption of land under tenancy of Land Reforms Act,
Mathu Ram has no right, title or interest over the suit land.
He has further stated that Mathu Ram filed civil suit and
the same was dismissed, even an appeal filed by said
Mathu Ram, was also dismissed. He also stated that the
plaintiff is in possession of the suit land and the defendants
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intended to raise construction over the suit land. He has
further deposed that Mathu Ram had died and now the
defendants are trying to take the possession over the suit
land and in case the defendants are found in possession of
the suit land, then a decree for possession be granted to him.
He has also deposed that had the land was resumed entries
to the contrary, which has come in favour of the defendants,
are not as per law.
12. DW1, Munu Ram has stated that in the revenue
papers, father of the plaintiff Puran Chand, has been
recorded, as owner, but the suit land is in the possession of
the defendants. He has further stated that prior to the
defendants, the predecessor-in-interest of the defendants
was in possession of the suit land. He has also stated that
predecessor-in-interest of the defendants died in the year
1995 and, thereafter, the defendants came in possession of
the suit land. He has also stated that the plaintiffs and his
predecessor-in-interest had never come to the suit land and
they are residing at Chandigarh only. He has further stated
that in the settlement took place in the year 1991-92,
defendants became owners in possession of the suit land and
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they were rightly recorded.
13. DW2, Hari Nand stated that he had seen the
suit land and the same adjoins to his land. He has stated
that the suit land was in possession of Mathu Ram and
after the death of Mathu Ram, his children came in
possession of the suit land. He has also stated that the
plaintiff did not remain in the suit land. He has also stated
that the plaintiff used to reside at Chandigarh and in the
settlement, possession of the defendants was recorded, as
per the factual position.
14. DW3, Medh Ram has stated that he has seen the
suit land and the same adjoins his land and the suit land
was being cultivated by Mathu Ram. He has further stated
that the plaintiff did not remain in possession of the suit
land at any point of time. In the settlement which took
place in the year, 1992-93, he was present on the spot and
the possession was recorded by the Settlement Authority, as
per the factual position. From the record, it is clear that
defendants were owner in possession of the suit land.
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15. Mathu Ram earlier was inducted, as a tenant
over the suit land and the predecessor in interest of the
respondents and after passing of H.P. Tenancy and Land
Reforms Act, the appellants have beco me owners in
possession of the land. Resumption order in favour of Puran
Chand was challenged by Mathu Ram by way of filing civil
suits, but he could not succeed in those civil suits. Even in
the appeal, he has failed, so, it is clear that resumption was
there in favour of Puran Chand qua the suit land. However,
it has come on record that thereafter it was Mathu Ram and
his successors, who remained in possession of the suit land
and the settlement took place and the possession of Mathu
Ram was recorded and, thereafter, continued with the L.Rs.
of Mathu Ram i.e. defendants.
16. Though, the defendants are required to prove its
tenancy by way of agreement and payment of rent, but qua
the suit land, the defendants have failed to prove this fact in
the Court of law. Meaning thereby that the plea that they
are joint owner after 1976 of the suit land, could not be
fortified by them.
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17. In the present case, no bilateral agreements of
the subsequent tenancy has been found on record by the
defendant. No receipt of tenancy has been placed on record
by the defendant under law. DW2 , Hari Nand, when
appeared in the witness box, did not state that the
subsequent tenancy was created in favour of the defendant.
He did not state that any rent was paid by the defendant in
his presence. He also did not state that the defendant was
tenant over the suit land. DW3, Medh Ram also did not
state that any subsequent tenancy was created between the
parties in his presence and he did not state that any rent
was paid by the defendant. He also did not state that the
defendant was tenant over the suit land. Even the revenue
entries shows that Mathu Ram has been recorded, as Kabiz
and subsequent tenancy of Mathu Ram has not been
recorded. Further, in the revenue entries, the rent column is
found blank. It has been alleged that the revenue record
has been prepared by the public official, while discharging
his official duties, which is relevant fact under Section 35 of
the Indian Evidence Act. Hence Section 35 of the Indian
Evidence Act is reproduced as under for the sake of
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convenience:
“35. Relevancy of entry in public record,
made in performance of duty: An entry in
any public or other official book register or
record stating a fact, in issue of relevant
fact and made by a public servant in the
discharge of official duty or by any other
person in performance of a duty specially
enjoined by the law of the country in
which such book, register or record is kept
is itself a relevant fact.”
18. This Court finds that Mathu Ram had not been
inducted as subsequent tenant of the plaintiff over the suit
land, therefore, Mathu Ram father of the defendants has not
become owner of the suit land after passing of H.P. Tenancy
and Land Reforms Act. On the contrary, the suit land has
been alleged to be resumed by the deceased Puran Chand,
Advocate, as per the provision of law and after resumption,
no subsequent tenancy was created in favour of the deceased
Mathu Ram by deceased Puran Chand, qua the suit land, as
required under law.
19. It has also been alleged that the appellants are
in possession of the suit land and the learned trial Court did
not appreciate the oral evidence adduced by the appellants
in support of their contentions qua possession. This Court
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finds that DW2, Hari Nand has specifically stated that the
suit land is in the possession of the defendant and that his
land adjoins the suit land. DW3, Medh Ram has also
specifically deposed that the suit land is in possession of the
defendant and also that his land adjoins the suit land.
DW1, Munu Ram has also deposed that the suit land is in
the possession of the defendant. The testimony of DW1 qua
the possession of the suit land has been corroborated by
DW2 & DW3 and also by the revenue entries Ex.PW1/D, in
which Mathu Ram has been recorded as Kabiz. It has also
been alleged that the revenue entries have been recorded by
the public officials. It has also been alleged that respondent
Krishan Kumar did not adduce any independent witness in
order to prove that he is in possession of the suit land. It
has been alleged that Krishan Kumar only examined his
General Power of Attorney and did not adduce any oral
evidence qua possession in support of his contention. This
Court finds that a person in settled possession can be
dispossessed only by way of due process of law. However,
Krishan Kumar did not adduce any positive, cogent and
reliable evidence qua the possession over the suit land and
did not rebut the evidence adduced by the defendant and did
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not rebut the testimonies of DW1,DW2 and DW3 qua
possession over the suit land. He also did not adduce any
rebuttal evidence in support of his contention.
20. This Court finds that the plaintiff had not
examined the official(s) from the revenue department, to
ascertain that the entry in favour of Mathu Ram is against
the factual position. Nothing has come on record that the
entry in favour of the defendants is against the factual
position neither Patwari nor Tehsildar, field Kanungo or
any other official of the Revenue Department has been
examined by the plaintiff. The Settlement Authority, who
has made the entry in favour of the defendants with regard
to cultivation, has not been examined. The statements of
DW1 Munu Ram, DW2 Hari Nand and DW3 , Medh Ram
were recorded on 29.9.2000, which specifically proves that
the defendants are in possession of the suit land. The
testimonies of DWs 1, 2 and 3 inspires confidence qua the
possession of the defendant over the suit land. Statement of
PW1 has thus no relevance and has not rebutted the
presumption of truth attached to the revenue entries when
other witnesses of the defendants also support the case of
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the defendants to that regard.
21. Now, it is the defendants, who are in possession
of the suit land. Now coming to the fact that when the
plaintiff has not prayed for a decree of possession, can the
decree of possession be granted to the plaintiff? This Court
finds that there was no cross-objection or cross-appeal filed
by the plaintiff in the Court below, neither in this Court, so,
in these circumstances whether to apply the provisions of
Order 41 Rule 33 CPC and then pass a decree of possession
in favour of the plaintiffs, is required to be scrutinized by
this Hon’ble Court. The Hon’ble Apex Court in a case titled
Choudhary Sahu (dead) by LRs. Versus State of Bihar,
(1982)1 Supreme Court Cases 232, has held as under:
“12. The object of this rule is to avoid
contradictory and inconsistent decisions on
the same questions in the same suit. As the
power under this rule is in derogation of the
general principle that a party cannot avoid a
decree against him without filing an appeal
or cross-objection, it must be exercised with
care and caution. The rule does not confer an
unrestricted right to re-open decrees which
have become final me rely because the
Appellate Court does not agree with the
opinion of the court appealed from.
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13. Ordinarily, the power conferred by this
Rule will be confined to those cases where as
a result of interference in favour of the
appellant further interferen ce with the
decree of the lower court is rendered
necessary in order to adjust the rights of the
parties according to justice, equity and good
conscience. While e xercising the power
under this Rule the Court should not lose
sight of the other provisions of the Code
itself nor the provisions of other laws, viz.,
the Law of the Limitation or the law of court
fees etc.”
22. Further, the Hon’ble Supreme Court in a case
titled Banarsi and others versus Ram Phal, (2003) 9
Supreme Court Cases 606, has held as under:
“11. In the type of case (i) it was 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 that part of the
decree which is in his favour he is entitled to support
without taking any cross objection. The law remains
so post amendment too. In the type of cases (ii) and
(iii) pre-amendment CPC did not entitle nor permit
the respondent to take any cross objection as he was
not the person aggrieved by the decree. Under the
amended CPC, read in the light of the explanation,
though it is still 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 and he may support the decree without cross
objection; the amendment made in the text of sub-
rule (1), read with the explanation newly inserted,
gives him a right to take cross objection to & finding
recorded against him either while answering an issue
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or while dealing with an issue. The advantage of
preferring such cross objection is spelled out by sub-
rule (4). In spite of the original appeal having been
withdrawn or dismissed for default the cross
objection taken to any finding by the respondent
shall still be available to be adjudicated upon on
merits which remedy was not available to the
respondent under the unamended CPC. In pre -
amendment era, the withdrawal or dismissal for
default of the original appeal disabled the respondent
to question the correctness or otherwise of any
finding recorded against the respondent.”
14. The learned counsel for the respondent
forcefully argued that even in the absence of appeal
preferred by the plaintiff or cross objection taken by
the plaintiff-respondent the Appellate Court was not
powerless to grant the decree which it has done in
exercise of the power conferred by Rule 33 of Order
41 of the CPC. Rule 33 of Order 41 as also Rule 4
thereof, which have to be read necessarily together,
are set out hereunder:
ORDER 41
Appeals from Original Decrees
33. Power of Court of Appeal.-The Appellate Court
shall have power to pass any decree and make any
order which ought to 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
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[exercised in respect of all or any of the decrees,
although an appeal may not have been filed against
such decrees:
Provided that the Appellate Court shall not
make any order under Section 35A, in pursuance of
any objection on which the Court from whose decree
the appeal is preferred has omitted or refused to
make such order.
Illustration
A claims a sum of money as due to him from X
or Y, and in a suit against both obtains a decree
against X. X, appeals and A and Y are respondents.
The Appellate Court decides in favour of X. It has
power to pass a decree against Y.
“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 than 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."
“15. Rule 4 seeks to achieve one of the several
objects sought to be achieved by Rule 33, that is,
avoiding a situation of conflicting decrees coming
into existence in the same suit. The above said
provisions confer power of widest amplitude on the
appellate court so as to do complete justice between
the parties and such power is unfettered by
consideration of facts like what is the subject matter
of appeal, who has filed the appeal and whether the
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appeal is being dismissed, allowed or disposed of by
modifying the judgment appealed against. While
dismissing an appeal and though confirming the
impugned decree, the appellate court may still direct
passing of such decree or making of such order which
ought to have been passed or made by the court
below in accordance with the findings of fact and law
arrived at by the court below and which it would have
done had it been conscious of the error committed by
it and noticed by the Appellate Court. While allowing
the appeal or otherwise interfering with the decree or
order appealed against, the appellate court may pass
or make such further or other, decree or order, as the
case would require being done, consistently with the
findings arrived at by the appellate court. The object
sought to be achieved by conferment of such power
on the appellate court is to avoid inconsistency,
inequity, inequality in reliefs granted to similarly
placed parties and unworkable decree or order
coming into existence. The overriding consideration
is achieving the ends of justice. Wider the power,
higher the need for caution and care while exercising
the power. Usually the power under Rule 33 is
exercised when the portion of the decree appealed
against or the portion of the decree held liable to be
set aside or interfered by the appellate court is so
inseparably connected with the portion not appealed
against or left untouched that for the reason of the
latter portion being left untouched either injustice
would result or inconsistent decrees would follow.
The power is subject to at least three limitations:
firstly, the power cannot be exercised to the prejudice
or disadvantage of a person not a party before the
Court; secondly, a claim given up or lost cannot be
revived; and thirdly, such part of the decree which
essentially ought to have been appealed against or
objected to by a party and which that party has
permitted to achieve a finality cannot be reversed to
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the advantage of such party. A case where there are
two reliefs prayed for and one is refused while the
other one is granted and the former is not
inseparably connected with or necessarily depending
on the other, in an appeal against the latter, the
former relief cannot be granted in favour of the
respondent by the appellate court exercising power
under Rule 33 of Order 41.”
23. Similar view has been taken by the Hon’ble
Supreme Court of India in a case titled Lakshmanan and
others versus G. Ayysamy, (2016)13 Supreme Court Cases
165, by holding as under:
“6. The fact remains that as per the finding of the
trial court, the suit came to be filed in the year 2002 and
the windows had been in existence for nearly four years
only anterior to the filing of the said suit and not for 20
years, so as to attract the acquisition by prescription as
provided under Section 15 of the Indian Easements Act,
1882, wherefor, the respondent/plaintiff was entitled to
the relief of removal of those three windows in the
Western wall of the appellants/defendants and for
closure of that area occupied by those windows and the
defendants shall comply with the same by closing down
the windows, the said decree is granted even though
there is neither an appeal nor cross-objection filed by the
respondent/plaintiff before the High Court contending
the substantial question of law would arise in his
appeal/cross objection in view of the fact that the said
relief(s) was rejected by both the courts below.
7. Learned counsel for the appellants Mr. K.K. Mani
submits that the grant of such relief by the High Court in
exercise of its second appellate jurisdiction is contrary to
law laid down by this Court in Banarsi and Ors. v. Ram
Phal. Paras 6 and 7 read thus:
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"6. The appeals raise a short but interesting
question of frequent recurrence as to the power of the
appellant court to interfere with and reverse or modify
the decree appealed against by the appellants in the
absence of any cross-appeal or cross-objection by the
respondent under Order 41, Rule 22 CPC and the scope
of power conferred on the appellate court under Rule 33
Order 41 CPC.
7. The first question is whether without cross-
objection by the respondent, could the appellate court
have set aside the decree passed by the trial court and
instead granted straight away a decree for specific
performance of contract. This would require reference
to the principles underlying right to file an appeal and
right to prefer cross-objection or when does it become
necessary to prefer cross-objection without which
decree under appeal cannot be altered or varied to the
advantage of the respondent and/or to the disadvantage
of the appellant.
It has also been held by this Court in Samundra Devi v.
Narendra Kaur SCC(para 21), that this power under
Order 41, Rule 33 CPC cannot be exercised ignoring a
legal interdict.
15. Rule 4 seeks to achieve one of the several objects
sought to be achieved by Rule 33, that is, avoiding a
situation of conflicting decrees coming into existence in
the same suit. The abovesaid provisions confer power of
widest amplitude on the appellate court so as to do
complete justice between the parties and such power is
unfettered by consideration of facts like what is the
subject matter of appeal, who has filed the appeal and
whether the appeal is being dismissed, allowed or
disposed of by modifying the judgment appealed
against. While dismissing an appeal and though
confirming the impugned decree, the appellate court
may still direct passing of such decree or making of such
order which ought to have been passed or made by the
court below in accordance with the findings of fact and
law arrived at by the court below and which it would
have done had it been conscious of the error committed
by it and noticed by the Appellate Court. While allowing
the appeal or otherwise interfering with the decree or
order appealed against, the appellate court may pass or
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make such further or other, decree or order, as the case
would require being done, consistently with the findings
arrived at by the appellate court. The object sought to be
achieved by conferment of such power on the appellate
court is to avoid inconsistency, inequity, inequality in
reliefs granted to similarly placed parties and
unworkable decree or order coming into existence. The
overriding consideration is achieving the ends of justice.
Wider the power, higher the need for caution and care
while exercising the power. Usually the power under
Rule 33 is exercised when the portion of the decree
appealed against or the portion of the decree held liable
to be set aside or interfered by the appellate court is so
inseparably connected with the portion not appealed
against or left untouched that for the reason of the latter
portion being left untouched either injustice would result
or inconsistent decrees would follow. The power is
subject to at least three limitations: firstly, the power
cannot be exercised to the prejudice or disadvantage of
a person not a party before the Court; secondly, a claim
given up or lost cannot be revived; and thirdly, such
part of the decree which essentially ought to have been
appealed against or objected to by a party and which
that party has permitted to achieve a finality cannot be
reversed to the advantage of such party. A case where
there are two reliefs prayed for and one is refused while
the other one is granted and the former is not
inseparably connected with or necessarily depending on
the other, in an appeal against the latter, the former
relief cannot be granted in favour of the respondent by
the appellate court exercising power under Rule 33
Order 41. (emphasis supplied)
8. In support of the same proposition of law,
learned counsel for the appellants placed reliance upon
another judgment of this Court in the case of Pralhad
and Ors. v. State of Maharashtra, wherein this Court
after interpretation of Order 41, Rule 33 CPC has clearly
held that in the absence of an independent appeal or
cross-objection being filed by the aggrieved party, the
relief which was denied by the courts below cannot be
granted in the second appeal filed by the appellant.”
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24. From the evidence on record, it is clear that it is
the defendants who are in possession of the suit land, as
the plaintiff even after the resumption of the suit land
never came in possession of the suit land. The revenue
entries in favour of the defendants are as per law. The
plaintiff’s witnesses while appearing in the witness box
have specifically stated that in case the defendants are
found in possession of the suit land then the decree for
possession be granted in favour o the plaintiff. The
statements of DW1, DW2 and DW3 coupled with the
statements of the plaintiff’s witness shows that it is the
defendants who are in possession of the suit land and
though it is on record that the plaintiffs grand father got
the land resumed under the H.P. Tenancy and Land
Reforms Act, but the suit land remained in possession of
the defendants throughout.
25. Now, it is on record that the land was resumed
as the defendants earlier were tenants of the grand-father
of the plaintiff. It is also evident from the record that
thereafter physical possession was never taken by the
plaintiff of the suit land and again the defendants were
recorded in possession of the suit land. However, nothing
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has come on record in the statement of DW 3, Medh Ram,
whether any fresh subsequent tenancy was created in
between the parties. However, they remained ‘Kabiz’ on the
suit land. The entry of the defendants being in possession
of the suit land is not rebutted by the plaintiff by a cogent
evidence.
26. In the present case, the suit was not for
possession in the Courts below. The suit was simplicitor for
injunction under Section 38 of the Specific Relief Act and
not for possession. The substantial question which arises:
“Whether the learned first Appellate Court was right
in granting decree for possession, in favour of the
plaintiff in a suit for permane nt prohibitory
injunction, against the defendant in the facts and
circumstances of this case?”
27. Now, here the interpretation of Order 41 Rule
33 CPC is required.
“Order 41 provides Appeals from Original Decrees
and Rule 33 thereof is reproduced as under for the
sake of convenience:.
33. Power of Court of Appeal.- The Appellate
Court shall have power to pass any decree and
make any order which ought to 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
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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:
Provided that the Appellate Court shall not
make any order under section 35A, in pursuance of
any objection on which the court from whose
decree the appeal is preferred has omitted or
refused to make such order.”
28. However, this Court observes as under:
a) the power to grant a relief, which was not
claimed by the plaintiff is required to be
exercised very cautiously;
b) the power cannot be exercised against a party
who is not party in the litigation; and
c) a claim given-up or lost, cannot be revived
and a part of the decree, which is required to
be appealed against or objected to. Neither
any such claim is appealed against nor
objected to, that relief cannot be granted if
the finality is attained.
29. In the present case, decree of possession was
never prayed for by the plaintiff. Can this decree be granted
by the learned lower Appellate Court, while holding that it
was the defendants, who were in possession of the suit land,
is considered in the light of the above mentioned Rules and
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this Court finds that even if before the learned Trial Court,
that prayer for decree for possession would have made but
only injunction was granted and without there being any
appeal to that effect, the lower Appellate Court after
applying these provisions could not have granted the decree
for possession, i.e. in the absence of appeal by the plaintiff
against the findings, if those were prayed in the civil suit.
This was a hypothetical situation, which does not exist in
the present case. In the present case, if the plaintiff has not
bothered to pray for a decree for possession and it was a suit
simplicitor for injunction and when the learned lower
Appellate Court has rightly come to the conclusion, it is the
defendants, who are in possession of the suit land, decree for
possession cannot be granted to the plaintiff. So, the
substantial question of law framed by this Court is
answered holding that the learned lower Appellate Court
was not right in granting a decree for possession in favour of
the plaintiff over the suit land, as from the record, it is clear
that the defendants are in possession of the suit land from
1976 and before that as tenant and decree for possession
never prayed for.
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30. Resultantly, the present appeal is allowed and the
judgments and decrees passed by the learned Courts below are
set-aside and the suit of the plaintiff is dismissed. However, in
the peculiar facts and circumstances of this case, there is no
orders as to costs. Pending application(s) if any, also stands
disposed of.
(Chander Bhusan Barowalia)
Judge
June 20,2017
(M. gandhi)
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