RSA No.462 of 1991 & X-Objection No.5 of 1991 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.462 of 1991 & X-Objection No.5 of 1991 Date of decision: 21.07.2010 Harbans Singh and others ....Petitioners Versus Naib Singh @ Bhura Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. O.P. Goyal, Sr. Advocate, with Ms. Kamaljit Kaur, Advocate, for the petitioners. Mr. Arun Jain, Sr. Advocate, with Mr. J.S. Chandail, Advocate, Mr. Shiv Kumar, Advocate, & Mr. Jai Vir, Advocate, for the respondents. ***** VINOD K. SHARMA, J (ORAL) RSA No.462 of 1991 The defendant/appellants by way of this regular second appeal have impugned the judgment and decree dated 9.11.1990, passed by the learned Additional District Judge, Faridkot, vide which the decree passed by the learned trial Court was set aside. The suit filed by the plaintiff/respondent was decreed by the learned trial Court against which the defendant/appellants preferred an appeal. The decree passed in appeal reads as under: - “COPY OF DECREE SHEET In the Court of Shri Hardial Singh, Addl. District Judge, RSA No.462 of 1991 & X-Objection No.5 of 1991 -2- Faridkot. 1. Makhan Singh son of Bishan Singh 2. Harbans Singh son of Makhan Singh 3. Gurdev Singh son of Makhan Singh son of Bishan Singh, residents of village Puhlewals, Tehsil Muktsar. ......Appellants Versus 1) Nishan Kaur wife of Makahn Singh son of Bishan Singh 2) Naib Singh son of Makhan Singh son of Bishan Singh, residents of village Bhangchari Tehsil Mukatsar .....Respondents Date of presentation of suit in first court – 7.4.1984 Date of decision in the first court 14.12.1985 Civil appeal at No.RT 124 of 1989 from the judgment and decree dated 14.12.1985 of the court of Shri S.K. Garg A.S.SJ, Muktsar. Suit for declaration to the effect that land measuring 704 Kanal 1 marla and a house House Tax No.6213, East Malout Road 21, West house of Mehar Singh 20, North Clinic of Dr. Hadip Singh 58 Sough House of Harbans Singh 66 Situated at Malout Road Muktsar ½ share of land measuring 608 Kanal 2 marla and agriculture land measuring 441 kanal 8 marla comprised in Khewat No.42, Khatauni No.102 and 107 No. 29, Kila Number 6 Mil (4-0) 7 Min (2-10) 7/2 Min (1-10) 8 min (4-0) 13(8-0) 14(8-0) Min 56 Kila number 4(8-0) 5(7-12) 6(7-12) 7(8-0) 14(6-18) 15(5-3) Min 57 Kila No.1 (8-0) 11/1(4-0) Min 27 Kila No.21/2(0-18) 21/3 (1-11) 21/3 (1-11) 21/4 (3-11) 22(8-0) M.N. 81. 2/2 (2-4) 3 (8-0) 4(8-5) 5/2 (4-13) 10(7-8) 11(7.7) 1 20(8-0) M.N. 82 Kila No. 6/1 (1-0) 14(8-0) 15(8-0) 16(8-0) 17 (8-0), M.N 27 Kila No.23 (1-0) 24(7-0) M.N. 28 Kila No.10 (1-19), 11(7-0), 19(4-18) 20/2(7-0) 21(8-0) 22(8- RSA No.462 of 1991 & X-Objection No.5 of 1991 -3- 0) 23 (3-4) M.N. 25 Kila No.1 (8-0) 2(8-0) 3(8-0) 4 (8- 0)5 (4-12) 6 min (4-0) 7/1 Min (2-20) 7/2 Min (1-10) 8 Min (4-0) 9(4-0) 10(4-0) M.N. 29 Kila No.3 Min (4-0) 4 (2-17) 8 Min(3-100) 12(2-7) M.N. 81 Kila No.7 (8-0) 8 (8-0) 9 (8-0) 21 (8-0) M.N. 82 Kila No.24 (8-0) 25(8-0) M.N. 91 Kila No.4(6-11) 5(4-11) M.N. 92 Kila No.1 (2- 13), entered in Jamabandi for the year 1988-89 situtated at village Kabra Tehsil Mukatsar and land measuring 164 kanal 14 marlas khewat No.4 khatauni No.67 khewat No.19 khautani No.30 and comprised in khasra No.194(3-19) N, B, 21 Kila No. 7 (7-9) M.N. 35 Kila No.7/2(5-2) 8/2 (4-9) 132(17-11) 14(8-0) 133 (2-14) M.N. 39 Kila No.4(4-0) 8/2 (2-17) 2 (8-0) ½ (0- 19) 3 (7-12) 9 (5-8) M.N. 35 Kila No.22/3 (4-8) 23(7- 12) M.N. 21 Kila No.5(3-4) 6(8-0) M No.39 Kila No.10 (7-12) M.N. 21 Kila No.13(8-0) 14(8-0) 15(8-0) M.N. 35 Kila No.24 (3-0) 17(3-0) 18(7-12) M.N. 21 Kila No.8 (7-16) 9/1 (3-11)M.N. 35 Kila No.17 Min (5-0) 24 Min (5-0) 25/1 (0-8) M.N. 39 Kila No.4 Min (4-11) 5/2 (0-7) entered in jamabandi for the year 1980-81 situated in village Phulewala Tehsil Mukatsar is the coparcenary and joint hindu family property of the plaintiff and defendants and is entitled to 1/5 share of the property and for joint possession in the property as a consequential relief on the basis of the oral and documentary proof.” “MEMO OF APPEAL Nishan Kaur Vs. Makhan Singh etc. Value of the suit for the purposes of court fee – 195/- Value of the suit for the purpose of jurisdiction – 195/- The appellants named above appeal before me from the judgement and decree dated of the court of Shri S. K. Garg D.S.J. Muktsar. The appeal coming on this day for final disposal before RSA No.462 of 1991 & X-Objection No.5 of 1991 -4- me in the presence of Shri Om Parkash Garg, Counsel for the appellants and Shri Ranjit Singh Wahniwal, counsel for the respondent(s). It is ordered that I accept the appeal and set aside the judgment and decree passed by the trial court. However, keeping in view the circumstances of the case I leave the parties to bear their own costs. MEMO OF COSTS Appellant(s) Respondent(s) 1. Stamp for appeal 26-00 -- 2. Stamp for power 1-25 1-25 3. Process fee 1-50 -- 4. Counsel fee 14-62 14-62 Total 43-37 15-87 Given under my hand and the seal of the court the 9th day of November, 1990. Sd/- Addl. District Judge Faridkot 9.11.1990” The plaintiff/respondent on the other hand filed cross- objections against the judgment and decree. On consideration, I find that following substantial question of law arises for consideration in this appeal: - “Whether the appeal filed by the defendant/appellants against the decree passed in their favour is maintainable?” Learned senior counsel for the appellants does not dispute that the appeal is against the decree and not the judgment and once the decree was in their favour, this appeal was not competent. Consequently, the substantial question of law is answered against the appellants and it is ordered that the appeal filed by the appellants is not maintainable. RSA No.462 of 1991 & X-Objection No.5 of 1991 -5- Accordingly, this regular second appeal is ordered to be dismissed. X-Objection No.5 of 1991 The learned counsel for the cross-objectors contends that the cross-objections be decided on merits as these have to be treated as independent appeal. It is not in dispute that the judgment and decree under challenge was passed on 9.11.1990, whereas the cross-objections were filed within 30 days of 30.9.1991 i.e. after receipt of notice of this appeal. The contention of the learned senior counsel for the cross- objectors is that the cross-objections being within time, as prescribed for filing cross-objections, these deserve to be decided on merits by treating the cross-objections to be independent appeal. This plea of the learned senior counsel cannot be accepted in view of the law laid down by the Hon'ble Supreme Court in Municipal Corporation of Delhi and others Vs. International Security & Intelligence Agency Ltd., (2004) 3 Supreme Court Cases 250, wherein the Hon'ble Supreme Court has been pleased to lay down, that the cross- objections can be filed only against an appeal which is competent. Once, an appeal is held to be in-competent, then the cross-objections also fail along with the appeal. The only exception is that the cross- objections should be within limitation. The Hon'ble Supreme Court further clarified that for the purpose of counting limitation regarding cross-objections the limitation has to be counted from the date of judgment and decree in appeal and not from the date of notice of appeal. The cross-objections were filed after the period of limitation RSA No.462 of 1991 & X-Objection No.5 of 1991 -6- had expired, as decree dated 9.11.1990 was challenged on 30.9.1991 i.e. beyond the period of limitation and no application for condonation of delay was filed, the cross-objections are also ordered to be dismissed, being not competent. (Vinod K. Sharma) Judge July 21, 2010 R.S.