Sunday, 19 August 2018

Whether decree can be re-opened by appellate court in absence of cross objection by affected party?

 In so far as the first substantial question of law is concerned, it can be seen that the trial Court while answering Issue No. 1 held that the plaintiff had proved that the sale-deed dated 16th August, 1983 was a valid document. On that count, it granted the relief of declaration of title in favour of the plaintiff. It is only the plaintiff who preferred an appeal as the relief of possession and damages was refused by the trial Court. No Cross-objections were filed by the defendant. In such a situation, therefore, in absence of any Cross-objection or Cross-appeal by the defendant, the decree in so far as declaration of the plaintiff's title is concerned could not have been reopened. The legal position in this regard is well settled and reference in that regard can be made to the decision in Indrakumar Daulat Khushlani Vs. Atmaram Vitthal Zade [MANU/MH/2879/2014 : 2015 (3) Mh.L.J. 613]. It is, thus, clear that the first appellate Court committed an error in setting aside the partial decree passed by the trial Court without the same being challenged by the defendant. Substantial question of law No. 1 is answered by holding that the appellate Court committed an error in setting aside the decree with regard to declaration of the plaintiff's ownership.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 384 of 2003

Decided On: 09.02.2018

 Tulshidas  Vs. Madhukar

Hon'ble Judges/Coram:
A.S. Chandurkar, J.

Citation: 2018(4) MHLJ 370

1. The appellant is the original plaintiff who had filed a suit for declaration that he was the owner of the suit property being Plot No. 273 along with a prayer for possession. According to the plaintiff, the defendant who was his uncle was in need of an amount of Rs. 5,000/- for the education of his son. He, therefore, entered into an agreement to sell the suit property to the plaintiff for a consideration of Rs. 5,000/-. On 16th August, 1983, the plaintiff paid the entire consideration after withdrawing the amount from his savings account. A sale-deed came to be executed on the same day. The defendant was, however, permitted to occupy the suit house being the plaintiff's uncle. In May, 1988, the plaintiff called upon the defendant to hand over possession; but as the same was not done, suit was filed seeking a declaration along with possession.

2. In the Written Statement filed by the defendant, the case of the plaintiff was denied. According to him, the defendant was in need of amount of Rs. 3,000-00 and for said purpose, a nominal sale-deed by way of security came to be executed. It was further pleaded that the defendant had constructed a permanent structure during his course of occupation as a licensee of the premises.

3. After the parties led evidence, the trial Court held that the plaintiff had proved his title to the suit property by virtue of the sale-deed at Exh. 19. It, however, held that the plaintiff was not entitled for possession on the count that the license was irrevocable in view of Section 60 of the Easements Act, 1908 [for short, "the said Act"]. The suit was accordingly partly decreed. Being aggrieved by the denial of relief of possession, the plaintiff filed an appeal. The appellate Court maintained the judgment of the trial Court as regards refusal of the relief of possession. It also set aside the relief granted to the plaintiff with regard to declaration of title. It directed the plaintiff to refund amount of Rs. 5,000/- with interest at the rate of six per cent per annum. Being aggrieved, the plaintiff has filed this appeal.

4. The following substantial questions of law were framed in the appeal:-

"1. Whether the Additional District Judge, Khamgaon can set aside the substantive judgment and the decree of declaration of ownership granted in favour of the appellant/plaintiff by the trial Court in favour of the respondent/defendant without there being any cross objection filed by him under Order 41 Rule 22 or the substantive appeal challenging the said part of the decree in the appeal filed by the plaintiff for the relief which was refused by the trial Court?

2. When a person without the consent of the plaintiff erects a permanent structure on the land of the plaintiff, can it be said that on account of the said construction a permanent licence is created in favour of the said person?"

5. Shri D.R. Khapre, learned counsel for the appellant, submitted that in absence of any challenge by the defendant to the decree passed by the trial Court as to declaration of the plaintiff's title the appellate Court could not have examined the correctness of that finding. The defendant did not file any Cross-objection under provisions of Order-XLI, Rule 22 of the Code of Civil Procedure, 1908 and, therefore, it was not open for the appellate Court to have gone into the correctness of the decree passed by the trial Court in his favour. It was then submitted that the defendant had taken a specific defence that the sale-deed at Exh. 19 was a nominal document and that he had not lost his title to the suit property. The claim based on provisions of Section 60 of the said Act was not liable to be considered on merits in view of the inconsistent pleadings of the defendant. While claiming ownership to the suit property, it was also pleaded that the defendant was a licensee. These inconsistent stands did not go hand in hand and, therefore, the appellate Court was not justified in coming to the conclusion that by virtue of provisions of Section 60 of the said Act, no decree for possession could be passed. For said purpose, he placed reliance on the decisions in [1] Raychand Vanmalidas Vs. Manekal Mansukhbhai [MANU/MH/0071/1945 : AIR 1946 Bom. 266], [2] Chapsibhai Dhanjibhai Dand Vs. Purushottam [MANU/SC/0564/1971 : AIR 1971 SC 1878] and [3] Shankar Gopinath Apte Vs. Gangabai Hariharrao Patwardhan [MANU/SC/0499/1976 : AIR 1976 SC 2506]. It was, thus, submitted that the suit was liable to be decreed in its entirety.

6. Ms. Deepali Sapkal, learned counsel for the respondent - defendant, supported the impugned judgment. It was submitted that the appellate Court rightly reversed the decree granting declaration of title in favour of the plaintiff. The evidence on record was not sufficient to justify the grant of that relief. It was further submitted that the nature of construction undertaken by the defendant was of a permanent character and hence the provisions of Section 60 of the said Act were rightly applied. It was always open for the defendant to take inconsistent pleas in the Written Statement and, therefore, merely because such inconsistent pleas have been taken would not be a ground to refuse relief to the defendant. The defendant was residing in the premises even after executing the sale-deed and, therefore, his occupation as a licensee was justified.

7. I have heard the learned counsel for the parties at length and with their assistance I have perused the records of the case.

8. In so far as the first substantial question of law is concerned, it can be seen that the trial Court while answering Issue No. 1 held that the plaintiff had proved that the sale-deed dated 16th August, 1983 was a valid document. On that count, it granted the relief of declaration of title in favour of the plaintiff. It is only the plaintiff who preferred an appeal as the relief of possession and damages was refused by the trial Court. No Cross-objections were filed by the defendant. In such a situation, therefore, in absence of any Cross-objection or Cross-appeal by the defendant, the decree in so far as declaration of the plaintiff's title is concerned could not have been reopened. The legal position in this regard is well settled and reference in that regard can be made to the decision in Indrakumar Daulat Khushlani Vs. Atmaram Vitthal Zade [MANU/MH/2879/2014 : 2015 (3) Mh.L.J. 613]. It is, thus, clear that the first appellate Court committed an error in setting aside the partial decree passed by the trial Court without the same being challenged by the defendant. Substantial question of law No. 1 is answered by holding that the appellate Court committed an error in setting aside the decree with regard to declaration of the plaintiff's ownership.

9. With regard to the nature of occupation of the defendant and the finding that the license in his favour was irrevocable under Section 60 of the said Act, it is necessary to refer to the respective pleadings of the parties. While the plaintiff came up with a specific case that he was the owner of the suit property by virtue of the sale-deed dated 16th August, 1983, according to the defendant this document was nominal in nature and executed by way of security for the amount borrowed. It was pleaded that the ownership of the defendant continued and the defendant did not lose his title by virtue of the sale-deed. In alternate, it was pleaded that the occupation of the defendant was by way of a license and a permanent structure had been constructed. As noted above, the relief with regard to declaration of title was rightly granted in favour of the plaintiff by the trial Court.

10. The Full Bench of this Court in Raychand Vanmalidas [supra] has held that though a party may raise inconsistent pleas of ownership and easement in the alternative in the same suit, such party has to elect one of the pleas through the course of the proceedings. Even if a party does not choose one of the alternate pleas, he can lead evidence on both and it is for the Court to decide whether he is entitled to succeed on one of his pleas. This judgment of the Full Bench was considered by the Hon'ble Supreme Court on Chapsibhai Dhanjibhai Dand [supra] and the same came to be affirmed. It was observed that after taking the plea of ownership and failing in the same, a party cannot subsequently turn around and claim that right as an easement by prescription. For establishing the right based on easement, such right has to be exercised on the property owned by somebody else and not as an incident of his own ownership of that property. In the light of this legal position, it is clear that the defendant having failed to prove his ownership cannot now be permitted to turn around and claim that by virtue of easementary right, he had undertaken a permanent construction and, therefore, was not liable to be evicted. In Shankar Gopinath Apte [supra], this position has been reiterated by emphasizing that the party undertaking the work of a permanent character should do so while "acting upon the license" under Section 60(b) of the said Act.

11. In view of this legal position, it is found that both the Courts committed an error in refusing the relief of possession to the plaintiff by relying upon the provisions of Section 60(b) of the said Act. Having failed to prove his title, it was not open for the defendant to fall back upon his other plea that he had easementary right in the suit property. Both the Courts refused the relief of possession by wrongly applying the law. Substantial question of law No. 2 is answered by holding that the defendant is not entitled to claim that on account of permanent construction being made, the license was irrevocable.

12. As a sequel to the aforesaid answers to the substantial questions of law, the plaintiff is entitled to succeed. Accordingly, the judgment of the appellate Court in Regular Civil Appeal No. 17 of 1999 dated 5th April, 2003 is quashed and set aside. Regular Civil Suit No. 167 of 1989 is decreed in its entirety.

13. Second Appeal is allowed in aforesaid terms leaving the parties to bear their own costs. In the circumstances, the respondent is granted time of three months to hand over possession to the appellant.


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