Whether the second appeal is maintainable with out filing appeal or cross objection ? - Held No.
The
appellant herein, who is defendant No.6 in the suit, has not challenged
that finding. Without filing an appeal against the judgment and decree
of the trial Court, the appellant cannot file Second Appeal.=
In view of the fact that the issue recorded by the trial Court
against the appellant/defendant No.6 has not been challenged by him
by filing an appeal or cross objections when the plaintiff filed the
appeal before the first appellate Court, she is debarred from filing the
Second Appeal, as she has not availed her right to file an appeal or
cross objections in the first instance. Therefore, the appeal is not
maintainable and hence, it is liable to be dismissed.
http://csis.ap.nic.in/csis/MainInfo.jsp?mtype=SA&mno=67&year=2014
| SA 67 / 2014 | SA 67 / 2014 | CASE IS:DISPOSED |
|
THE HON’BLE SRI JUSTICE K.C.BHANU
SECOND APPEAL No.67 OF 2014
JUDGMENT:
This Second Appeal, under Section 100 of the Code of Civil
Procedure, 1908, (for short, “C.P.C.”) is directed against the judgment
and decree, dated 4.2.2004, in A.S.No.25 of 2000 on the file of VII
Additional District Judge, Madanapalle, whereunder and whereby, the
judgment and decree, dated 21.3.2000, in O.S.No.102 of 1996 on the
file of the Senior Civil Judge, Piler were confirmed.
2. For better appreciation of facts, the parties hereinafter are
referred to as they are arrayed in the trial Court.
3. The plaintiff filed the suit against defendant Nos.1 to 8 originally
seeking division of the plaint schedule properties into 24 equal shares
and allotment of 9 such shares in his favour by separate metes and
bounds and for the other usual reliefs. Defendant No.9 was
subsequently added as per the order, dated 20.1.1988, in I.A.No.682 of
1987. The brief facts in the plaint are as follows:
The suit schedule properties are the ancestral properties of the
plaintiff, defendant No.3 and their father Srinivasulu Setty, each of
them had 1/3rd share in the property. Srinivasulu Setty got five
daughters, who are defendant Nos.2 and 4 to 7. All the daughters of
Srinivasulu Setty were married. After the death of Srinivasulu Setty,
who died intestate, his 1/3rd share devolved upon his five daughters
and two sons and each of them became entitled to 1/24
th share. Defendant No.1 is the wife of Srinivasulu Setty. Plaintiff, who was
originally entitled to 1/3rd share in the suit property, on the death of his
father, became entitled to 1/24th share and thus, entitled to 9/24th
share in the suit property.
After the death of Srinivasulu Setty, defendant No.3 became
greedy and intended to take away the income from the share of the
plaintiff also for which he did not agree. The plaintiff got issued a
notice on 14.9.1986 calling upon defendant No.3 to divide the property
and to allot his share separately. Defendant No.3 got issued a reply
notice with incorrect facts and figures. Defendant No.3 is trying to sell
away the joint family property to defendant No.8 without any manner of
right in spite of the protest by the plaintiff. Defendant No.9 is the
brother of defendant No.8. Defendant Nos.8 and 9 had taken the sale
deed from defendant No.3 in respect of some portion of the plaint
schedule properties. Hence, the suit.
4. Defendant Nos.2, 4 and 5 remained ex parte.
5. Defendant No.6 filed a written statement, which was adopted by
defendant Nos.1, 5 and 7, contending that except the relationship
between the parties as mentioned in the plaint, the other averments
are not true and correct. He contended that plaint schedule properties
excluding few items are the self acquired and separate properties of
late Srinivasulu Setty. Srinivasulu Setty executed two registered wills,
dated 27.8.1987, in favour of defendant Nos.2 and 4 to 7 and another
registered will, dated 5.9.1982, in favour of defendant No.1 to the
knowledge of the plaintiff and all the defendants in a sound and
disposing state of mind. The wills came into effect after the death of
Srinivasulu Setty. Defendant No.6 contended that herself, defendant
Nos.1, 5 and 7 were not aware of exchange of notices between the
plaintiff and defendant No.3. He also contended that they also came to
know of the alienations made by defendant No.3 in respect of some of
the items of plaint schedule properties detrimental to their interest and
contended that the alienations are illegal and not valid and binding on
them. Srinivasulu Setty had a little ancestral property, which he got in
a partition with his brothers, which took place around 1940. However,
the registered partition deed was executed among the brothers of Srinivasulu Setty only in the year 1972. There was practically noincome from the said property, as it was not cultivable due to drought
conditions. In the partition, Srinivasulu Setty was allotted several
debts to his share. He had a large family to maintain and so, in such
strained economic circumstances, he discharged his liabilities,
educated his children and performed their marriages with his hard
earnings and also acquired properties. Defendant No.1’s parents’
native place is Medikurthi. She got some property. It was also utilised
for the acquisitions made by Sreenivasulu Setty. The family suffered a
great deal due to the fraud committed by the first wife of defendant
No.3.The ancestral property owned by Srinivasulu Setty was covered
by item Nos.1 to 3 of the plaint schedule. Item Nos.1 and 2 of the plaint
schedule are in fact dry lands and the extents mentioned are incorrect.
Item Nos.4 to 19 are all self acquired and separate properties of
Srinivasulu Setty wherein neither the plaintiff nor defendant Nos.1 to 7
have any right in view of the Wills executed by Srinivasulu Setty.
Neither the plaintiff nor defendant No.3 has any right in the suit
property. On the death of Srinivasulu Setty, the plaintiff and defendant
Nos.2 to 7 became entitled to 1/8th share each in item Nos.4, 5 and 14
to 19, which were the separate and self acquired properties of
Srinivasulu Setty. In item Nos.1 to 3, which are ancestral properties,
Sreenivasulu Setty, plaintiff and defendant No.3 became entitled to
1/3rd share each and after the death of Srinivasulu Setty, plaintiff and
defendant No.3 became entitled to 9/24th share while defendant
Nos.1, 2 and 4 to 7 are entitled to 9/24th share. The defendant
appears to have executed a sale deed in respect of item No.4 in favour
of defendant Nos.8 and 9 and item Nos.14 and 16, which are not
binding on her and others. The plaintiff brought on record the persons,
who purchased the property from defendant No.3, being aware of the
same. He suspects collusion between the plaintiff and defendant No.3
and hence, prayed to dismiss the suit.
6. Defendant No.8 filed a written statement contending that
defendant No.3 purchased some properties covered by survey number
250 with his self earnings on 6.2.1965 for Rs.1500/- under a registered
sale deed, which is item No.4 of the plaint schedule property. He has
been in possession and enjoyment of the same. The Revenue
authorities have also issued the passbook in the name of defendant
No.3. He purchased item No.4 of the suit property from defendant
No.3 under a registered sale deed, dated 29.12.1986 for a
consideration of Rs.12,000/- and came into possession of the same.
Item No.4 of the plaint schedule property never belonged to the joint
family of the plaintiff and hence, prayed to dismiss the suit.
7. Defendant No.3 did not choose to file a written statement.
8. Basing on the above pleadings, the following issues were
framed for trial:
“1. Whether the plaint schedule properties
are the ancestral properties of the plaintiff
and defendants?
2. Whether the plaintiff is entitled for an
share if so, to what share?
3. Whether the plaintiff is entitled for
partition and separate possession?
4. To what relief?”
9. Later, the following additional issues were framed:
1.Whether item No.4 of the plaint
schedule
is the absolute property of D-8 and D-9
and whether they are in absolute
possession of the said item of property?
2. Whether in the plaint schedule, item
No.4 was the separate and self
acquired property of third defendant?”
10. During trial, P.Ws.1 to 3 were examined and Exs.A-1 to A-3 were
got marked on behalf of the plaintiff. On behalf of the defendants,
D.Ws.1 to 10 were examined and Exs.B-1 to B-12 were got marked.
On behalf of defendant Nos.8 and 9, defendant No.3 was examined as
C.W.1 and Exs.C-1 and C-2 were got marked.
11. The trial Court, after considering the evidence on record, passed
a preliminary decree holding as under:-
“1) Plaintiff and the 3rd defendant are entitled to 9/24th
share each and defendants 1, 2 and 4 to 7 are each
entitled to 1/24th share in the plaint schedule items 1 to 3,
15 and 20 which are held to be the ancestral and the
joint family properties of the plaintiff and defendants 1 to7.
2) Defendants 1, 2 and 4 to 7 are exclusively entitled to
the plaint schedule items 6 to 13 by virtue of the
registered wills Exs.B3 and B4 executed by Nama
Sreenivasulu Setty which are held to be his self acquired
properties according to their respective allotments under
the said two Wills.
3) The plaintiff and defendants 1 to 7 are equally entitled
to 1/8th share each in the plaint schedule items 5, 14, 16
to 19, 21 and 22 as they are held to be the self acquired
properties of Nama Sreenivasulu Setty.
4) D8 and D9 are declared to be the absolute owners of
the plaint schedule item No.4 by virtue of Ex.B-8 sale
deed.”
12. Against the said judgment and decree, the unsuccessful plaintiff
filed the appeal insofar as declaration that defendant Nos.8 and 9 are
the absolute owners of item No.4 by virtue of Ex.B-8 sale deed. The
appellant herein, who is defendant No.6 in the suit, has not challenged
that finding. Without filing an appeal against the judgment and decree
of the trial Court, the appellant cannot file Second Appeal.
13. Learned counsel for appellant placed reliance on a decision
reported in Hardevinder Singh v. Paramjit Singh and others
[1]wherein it is held at para No.21 as under:
“After the 1976 Amendment of Order 41 Rule 22, the insertion
made in sub-rule (1) makes it permissible to file a cross objection
against a finding.The difference is basically that a
respondent may defend himself without taking recourse to file a
cross-objection to the extent the decree stands in his favour, but if he
intends to assail any part of the decree, it is obligatory on his part to
file the cross-objection. In Banarsi v. Ram Phal [(2003)9 SCC 606],
it has been 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-objection. In respect
of two other categories which deal with a decree entirely in favour of
the respondent though an issue had been decided against him or a
decree entirely in favour of the respondent where all the issues had
been answered in his favour but there is a finding in the judgment
which goes against him, in the pre-amendment stage, he could not
take any cross-objection as he was not a person aggrieved by the
decree. But post-amendment, read in the light of the Explanation to
sub-rule (1), 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, yet he may support the decree
without cross-objection.It gives him the right to take cross
objection to a finding recorded against him either while answering an
issue or while dealing with an issue. It is apt to note that after the
amendment in the Code, if the appeal stands withdrawn or dismissed
for default, the cross-objection taken to a finding by the respondent
would still be adjudicated upon on merits which remedy was not
available to the respondent under the unamended Code.”
Even as per the ratio laid down in the above decision, the appellant
herein has to file an appeal or cross objections against the part of
decree, which is against him, before the first appellate Court. But he
did not do so.
14. In view of the fact that the issue recorded by the trial Court
against the appellant/defendant No.6 has not been challenged by him
by filing an appeal or cross objections when the plaintiff filed the
appeal before the first appellate Court, she is debarred from filing the
Second Appeal, as she has not availed her right to file an appeal or
cross objections in the first instance. Therefore, the appeal is not
maintainable and hence, it is liable to be dismissed.
15. Accordingly, the Second Appeal is dismissed at the stage of
admission. There shall be no order as to costs. Miscellaneous
petitions, if any, pending in this Second Appeal shall stand closed.
______________________
JUSTICE K.C.BHANU
Date: 21.3.2014
AMD
THE HON’BLE SRI JUSTICE K.C.BHANU
SECOND APPEAL No.67 OF 2014
DATE : 21.3.2014
AMD
[1]
(2013) 9 Supreme Court Cases 261
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