HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 61 of 1999 Reserved on: 14.7.2010. Decided on: 24.8.2010 Anil Kumar and others ………Appellants. Versus Mohni Devi and others. ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.Karan Singh Kanwar, Advocate. For respondents No.1 to 6: Mr.K.D. Sood, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellants under Section 100 of the CPC against the judgment and decree, dated 24.9.1998, passed by the learned District Judge, Sirmaur at Nahan, whereby the appeal filed by the appellants against the judgment and decree of the court of learned Senior Sub Judge, Sirmaur at Nahan, was dismissed. 2. Briefly stated the facts of the case are that the appellants, hereinafter also referred as the plaintiffs, filed a suit for partition of the joint property as against the respondents, hereinafter also referred to as the defendants. It was alleged by the plaintiffs that the property comprised in Khasra Nos.171, 288, 289, 290, 291, 292 and 293 in 7 plots, measuring 132.62 square meters, consisted of a residential house as ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - well as vacant land situated in Rani Tal. It was alleged that the plaintiffs and defendant are the joint owners in possession of the property. The defendant is owner to the extent of 1/2 portion of the aforesaid land whereas the plaintiffs are the owners to the extent of remaining half share out of the same. It was further alleged that the plaintiffs and the defendant are in joint possession of the aforesaid property and their possession is so recorded in the revenue record. The defendant, with a view to cover the best portion of the said property, is trying to raise fresh construction therein and has recently laid projection/slab. The defendant had also not obtained any permission from the Municipal Committee for constructing the slab nor he had consulted the plaintiffs. 3. It was further alleged that the defendant is already in possession of more share and, therefore, the plaintiffs requested the defendant not to extend the construction and he declined to do so. Hence the plaintiffs prayed that a decree for partition of the property by metes and bounds be passed in favour of the plaintiffs and as against the defendant and after passing of the preliminary decree, a Local Commissioner be appointed to effect the partition by metes and bounds. 4. Defendant denied that the suit property was joint of the plaintiffs and defendant. He also pleaded that the revenue entry showing the suit property as joint is against the facts and is not binding upon the defendant. It was further pleaded that the grand father of the plaintiffs and father of the defendant Shri Ram Parsad was - 3 - the owner of the suit property. The defendant and deceased Rameshwar Dutt mortgaged the entire property and obtained a loan of Rs.1200/- from the Bank of Sirmaur on 9.1.1954. The loan amount was later on paid by the defendant. In 1964, father of the plaintiffs joined the service and wanted to construct his house on the property mentioned above and taking into consideration the desire of Rameshwar Dutt, predecessor in interest of the plaintiffs, father of defendant namely Ram Parsad decided to have family settlement and consequently a family settlement was made by Ram Parsad and he made Rameshwar Dutt as owner of the property comprised in Khasra No.473 (old) measuring 125.4 square yards. The defendant was also made owner of the property comprised in Khasra No.466 measuring 59 square yards and Khasra No.474 measruing 136 square yards. It was also pleaded that the area allotted in favour of the predecessor-in-interest of the plaintiffs was less in comparison with the area of the defendant, but the said area was preferred by Rameshwar Dutt because it was of better situation and location. Apart from this, the father of the defendant has been in possession of an area measuring 20 square yards belonging to Municipal Committee since the time immemorial. However, said Rameshwar Dutt later on desired his father to make a gift in his favour with a view that he may raise loan, being owner of the property, through a gift. The father of the defendant executed a gift deed in favour of Rameshwar Dutt on 20.2.1965 and on that basis Rameshwar Dutt became - 4 - the owner. The father of the defendant also wanted that similar gift deed be executed in favour of the defendant but it involved stamp duty and at that time the defendant was not in a position to pay the same. Therefore, the property gifted to the plaintiffs remained his exclusive property and the defendant became owner of the property in suit on the basis of the said family settlement. It was also pleaded that the plaintiffs are not in possession of any part of the suit property, which mainly consists of house in which the defendant and his family is residing and the vacant portion is also in possession of the defendant. Thus, it was pleaded that the plaintiffs are not in possession of any part of the suit property and are not entitled to the relief claimed by them. 5. On the pleadings of the parties, the following issues were settled by the learned trial Court: 1. Whether the suit property is joint property of the parties and the plaintiffs are entitled to its partition? OPP 2. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? If so, what is its effect? OP Parties 3. Whether the father of the defendant and grand father of the plaintiffs effected family settlement and allotted the suit land in favour of the defendants, as alleged? If so, to what effect? OPD 4. Whether the defendant made improvements in the suit land within the knowledge of the plaintiffs? If so, to what effect? OPD 5. In case issue No.1 is not proved in favour of the plaintiffs, whether the defendant is - 5 - entitled to seek adjustment of the land which is recorded in the name of the plaintiffs on the basis of gift from their father? OPD 6. Whether the revenue entries are fraudulent and against the facts? If so, to what effect? 7. Relief. 6. Parties led their evidence and the learned trial Court vide its judgment decided issues No.1 to 3 by holding that the entire suit property was not proved to have been allotted to Ram Rattan, predecessor-in-interest of the defendant, and consequently decreed the suit of the plaintiffs partly that half portion of the suit property is jointly owned by the parties and the plaintiffs’ share comes to 25.65 square meters and they are entitled to possession of this share out of the vacant joint portion of the suit property by way of partition by metes and bounds. The findings on other issues are not material. 7. On appeal by the plaintiffs, the appeal was dismissed and the relief was modified. The suit was also dismissed in entirety. 8. I have heard the learned counsel for the parties and have gone through the record of the case. 9. The submissions made by the learned counsel for the appellants were that no appeal had been preferred by the heirs of the defendant and, therefore, the learned District Judge was wrong in modifying the judgment and decree of the learned trial court in favour of the heirs of - 6 - defendant in the absence of any appeal by them or any cross objections. It was also submitted that the evidence regarding alleged family settlement led on behalf of the original legal heirs was contradictory and, therefore, the learned District Judge has misconstrued the oral and documentary evidence on record. It was further submitted that the defendants had failed to prove the family settlement. It was further submitted that the heirs of defendant have no exclusive title to the suit land to the exclusion of the plaintiffs and as such the findings recorded by the learned District Judge are liable to be set aside. 10. The contentions put forth by the learned counsel for the respondents were that even though no cross appeal had been filed by the defendant before the learned District Judge, still the relief could be modified in view of the facts and circumstances of the case and as such the learned District Judge had rightly modified the relief and dismissed the suit of the plaintiffs in full. 11. The present appeal was admitted by this Court on the following substantial questions of law: 1. Whether the learned District Judge has misconstrued, misinterpreted the oral and documentary evidence on record in deciding that there was family settlement in which Ram Rattan was allotted suit property? 2. Whether the learned District Judge has erred in setting aside findings returned by learned Senior Sub Judge that the suit property is jointly owned by the plaintiffs - 7 - and defendant even though heirs of original defendant did not file any appeal against the judgment, decree dated 28.5.1997 of learned Senior Sub Judge and have also did not file any cross objection in CA No.32- CA/13 of 1997 which was filed against the judgment, decree dead 28.5.1997 of learned Senior Sub Judge, Sirmour? 3. Whether learned District Judge has misconstrued, misinterpreted the statements of PW-1 Anil Kumar, DW-1 Smt.Veena, DW-2 Ram Gopal and has erred in not considering the statement of PW-2 Smt.Bimla? 4. Whether learned District Judge has erred in taking the view that gift deed in favour of Rameshwar Dutt was made by is father, Ram Parshad because Rameshwar Dutt wanted to take loan on that property even though no evidence is on record to show that Rameshwar Dutt had taken loan on the property gifted in his favour by his father, Ram Parshad? 12. To substantiate his submissions, the learned counsel for the appellants had relied upon the following decisions. The decision in State of Punjab and others versus Bakshish Singh, (1998) 8 Supreme Court Cases 222, shows that the followings observations were made in paras 8, 9 and 10, which are relevant are being reproduced below: “Order 41, Rule 33 CPC gives very wide power to the appellate court to do complete justice between the parties and enables it to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any appeal or cross-objections. The discretion, however, has to be exercised with care and caution and that too in rare cases where there have been inconsistent findings and an order or decree has been passed which is wholly - 8 - uncalled for in the circumstances of the case. The appellant court cannot in the garb of exercising power under this Rule, enlarge the scope of the appeal. Whether this power should or should not be exercised depends upon nature and facts of each case. If trial court can dispose of a case finally, the appellate court can also by virtue of Section 107(1)(a) CPC, determine a case finally.” 13. The decision in Choudhary Sahu (dead) by LRs. versus State of Bihar, (1982) 1 Supreme Court Cases 232, shows that the following observations were made in paras 12, 13 and 14: “(2) The object of Rule 33 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 merely because the appellate court does not agree with the opinion of the court appealed from. 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 interference 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 exercising 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 limitation or the law of court fees etc. In the present case in the absence of any appeal by the respondent State there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under Order 41, Rule 33. The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the respondent State when the same - 9 - had become final and rights of the State had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation.” 14. On the other hand, the learned counsel for the respondents had submitted that the Appellate Court can exercise the same powers as vested in the trial Court and in exercise of those powers, the relief can be modified in case the plaintiffs were not entitled to such relief as has been granted by the learned trial Court. In support of this submission, the learned counsel for the respondents relied upon the following decisions. 15. The decision in S.M.S. Subramanian Chettiar and another versus Sinnammal and others, A.I.R. 1930 Madras 801 Full Bench, shows that the following observations were made: “The illustration to the rule is a type of one class of cases, which calls for the exercise of the powers conferred by R.33, but it does not by any means exhaust the class of cases in which the powers of the appellate Court under this rule may be invoked. Where a plaintiff, being dissatisfied with a decree passed in his favour, prefers an appeal, the appellate Court, in a proper case, has jurisdiction to exercise its powers in favour of the respondent by dismissing the plaintiff’s case in toto, though the respondent did not prefer a cross-appeal or memorandum of objections challenging the decree passed by the first Court.” 16. The following observations were made in the decision in S.Sankarappa Gounder versus K.C. Gopalan and others, AIR 1973 Kerala 149 Full Bench, by referring to the provisions of Order 41 Rule 33: - 10 - “If a finding is set aside on a ground of common to the appellant as well as to the non-appealing parties, the benefit of the decision is available to all.” 17. Reliance was also placed upon the decision in Koksingh versus Smt.Deokabai, AIR 1976 Supreme Court 634, in which the following observations were made in paras 6 and 7, while considering the provisions of Order 41 Rule 33, which are relevant and are being reproduced below: “If an appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the Court below, it may pass or make such further or other decree or order as the justice of the case may require. Thus under Order 41 Rule 33, the High Court is competent to pass a decree for the enforcement of a charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree.” 18. Thus, from a perusal of the above decisions, this point stands settled that even if no cross appeal had been filed by the defendant, the relief could be modified by the learned Appellate Court in the facts and circumstances of the case if it was found that the plaintiff was not entitled to the relief partly granted by the learned trial Court in its favour. Thus, this question, in so far as the order passed by the learned First Appellate Court modifying the relief is concerned, it calls for no interference except on the facts of the case. 19. Coming to the facts of the present case, the disputed property including the house and vacant land was earlier owned by Ram Parsad, who was the father of Ram Rattan and Rameshwar Dutt. The plaintiffs are the successors of Rameshwar Dutt whereas the defendants are the - 11 - successors of Ram Rattan. This fact is also not disputed that Ram Parsad had given the property comprised in Khasra No.473 measuring 125.4 square meters to Rameshwar Dutt by executing a gift deed, dated 20.2.1965. The disputed property measures a little more than the half of the total land i.e. 132.62 square meters. This plea of the plaintiffs cannot be accepted that the suit property measuring 132.62 square meters continued to be joint, in spite of the gift deed in favour of Rameshwar Dutt by Ram Parsad. The facts of the case clearly show that since Rameshwar Dutt wanted to take loan, he may have requested for the execution of the gift deed in his favour and it was made almost of half share in his favour. In so far as the remaining part is concerned, it continued as joint in revenue record since the parties did not feel the necessity to execute a gift deed in favour of the defendant for which stamp duty etc. had to be paid. 20. The learned trial Court as well as the learned Appellate Court have concluded, on the basis of the evidence, that half of the disputed property was allotted to Ram Rattan at the time of family settlement and these findings are liable to be affirmed that there was a family settlement between Ram Parsad and his sons. This fact was not only admitted by the plaintiff Anil Sharma in his own deposition but was also stated by DW-2 Ram Gopal Sharma, besides DW-1 defendant Veena Devi. It was also admitted by the plaintiff Anil Sharma that their grand father Ram Parsad was treating both his sons Rameshwar Dutt and Ram Rattan alike. This was also admitted by Anil Sharma in his - 12 - cross examination that in lieu of the land comprised in Khasra No.473 measuring 125.4 square meters allotted to his father, his grand father had given to his Taya Ram Rattan half share out of the disputed property. This admission of Anil Sharma clearly leads to the conclusion that there was some family settlement and in that family settlement, the half share was gifted to the plaintiff and the remaining half was given to the defendant, though in the revenue record, it continued in the name of the parties. Unless and until, the factum of family partition was notified to the Revenue Officer, he was not required to make any correction in the revenue record. The learned Appellate court had also referred to the evidence and concluded that there was a family settlement between the parties and one of the plaintiff Anil Sharma had admitted the question of family settlement. There is nothing on the record to show that the predecessor-in-interest of the plaintiffs was favourably deposed towards Rameshwar Dutt or he was not having cordial relations with Ram Rattan and, therefore he wanted to give double benefit to the predecessor-in- interest of the plaintiffs by way of gift deed and still a share in the joint property. The learned Appellate Court had rightly concluded that the part of the disputed property, a major portion of which was a house, was allotted to Ram Rattan at the time of family settlement. 21. No other point was urged. 22. The net conclusion, which can be drawn by this Court, is that the findings recorded by the learned Appellate Court, dismissing the suit of the plaintiffs in - 13 - full, are based upon correct appreciation of evidence and as such these findings do not call for an interference by this Court. 23. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellants, which is dismissed accordingly. However, the parties are left to bear their own costs. August 24, 2010. (V.K. Ahuja), (TILAK) Judge.