Nagendra Kumar Gami & Ors vs. Md. Mohiuddin Ansari & Ors. AIR 2013 (NOC) 227 (Pat.)
The plaintiff appellant had filed a suit for Partition. The trial court held that the plaintiffs have not been able to prove their title and possession to the extent as claimed and as such there is no unity of title and possession. Accordingly, the trial court dismissed the plaintiffs’ suit. However, in the last three lines of paragraph 16, the trial court observed that in view of the existence of Bymokasa it cannot held that Mr. Biltu (original Respondent No.1) acquired interest by inheritance to the extent alleged by the plaintiffs and on the other hand, title and possession of defendant No.9 over 9 kattha stands proved.
The first appeal was filed by the plaintiffs appellants against the judgment and decree of trial court. The cross objection had been filed by the original respondent Mr. Biltu.
The learned counsel appearing on behalf of the cross-objector submitted that the dispute was between the plaintiffs in the one side and the respondents on the other side. The trial court resolved this dispute and dismissed the plaintiffs’ suit but while dismissing the plaintiffs’ suit the trial court without there being any counter claim or dispute between the defendants inter se decided the title between the defendant No.1 and defendant No.9. The learned counsel further submitted that the defendant No.9 was added under Order 1 Rule 10 C.P.C. Therefore, the dispute between the defendants inter se could not have been decided.
The point arose for consideration is as to whether cross-objection is maintainable and if maintainable then whether the part of the judgment against which cross objection has been filed is sustainable or not.
The Hon’ble Court observed that, it is a settled principles of law that the cross-objection as a general rule is not maintainable if it is filed by the respondent against a respondent, but in the present case, the plaintiffs filed a simple suit for partition. The trial court dismissed the plaintiffs’ suit. The defendant No.9 neither filed counter claim nor paid any court fee for declaration of his title and the trial court declared his title visa- vis original respondent No.1. It is also a settled principle of law that an inter se dispute between the defendants could not have been decided by the trial court without there being any counter claim and payment of court fee. In the case of Mahanth Dhangir vs. Mahanth Mohan 1987 (Suppl.) SCC 528 the Apex Court has held that generally the cross-objection could be urged against the appellant. It is only by way of exception to this general rule that one respondent may urge objection as against other respondents. The Apex Court also held that if objection cannot be urged under Rule 22 against co-respondent, Rule 33 would come to the rescue of the objector. The appellate court could exercise the power under Rule 33 even if the appeal is only against a part of the decree of the lower court. The scope of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondent.
In view of the law laid down by the Hon’ble Apex Court, the cross-objection cannot be thrown out saying that it is not maintainable. In the present case, the other circumstance is that the original respondent filed title suit for setting aside that part of the judgment/finding of the trial court. The respondent No.11(C) objected to the maintainability of the suit on the ground of pendency of this cross-objection and the suit was dismissed holding that since the cross-objection is pending in this first appeal, the plaintiff of that suit may pursue his grievance before the High Court. In the case of Kasturi vs. Iyyamperumal (2005) 6 SCC 733 the Apex Court held at paragraph 16 that the expression “all the questions involved in the suit” used in Order 1 Rule 10(2) C.P.C. makes it clear that only the controversies raised as between the parties to the litigation must be gone into, that is to say, controversies with regard to the right which is set up and relief claimed on one side and denied on the other and not the controversies which may arise between the plaintiffs or the defendants inter se or question between the parties to the suit and a third party. Admittedly, here the question between the defendants inter se has been decided. It is also a settled principle of law that if any decree is passed against a person against his right, title and interest he can file an appeal even if he is not a party to the suit. If a person who is not party but is affected adversely by judgment and decree, can file appeal then why a person who is party should be debarred from challenging that part of the decree which is against him ? Now if his appeal is maintainable then why the cross-objection will not be maintainable? If it is held here that cross-objection is not maintainable then at this stage the cross-objector will have no forum to approach, against that part of finding which is a declaration of title in favour of defendant no.9 and non title of original defendant no.1. Therefore, cross-objection is maintainable. So far as this question is concerned, it is pure question of law and it is not dependent on either fact or evidence.
The cross-objection is allowed and that part of the order whereby the title of defendant No.9 has been declared against the original respondent No.1 is hereby set aside.
