|CITATION||Appeal (civil) 9393 of 1995|
|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice Brijesh Kumar and Justice D.M. Dharmadhikari|
|DATE OF JUDGEMENT||19.02.2003|
In the present case, the Apex Court applied Order 41 Rule 4 of the Code of Civil Procedure and observed, “the appellate court can, by invoking Order 41 Rule 4 read with Order 41 Rule 33 of the Code Could grant relief even to the non-appealing plaintiffs and make an adverse order against all the defendants and in favor of all the plaintiffs. In such a situation, it is not open to urge on behalf of the defendants that the decree of dismissal of suit passed by the trial court had become final inter se between the non-appealing plaintiffs and the defendants.”
The facts of the case are as follows: The present Appellants were Defendants before the Trial Court in a suit for partition instituted in the Court of Civil Judge. The suit filed by the deceased Plaintiff (represented by his legal representatives impleaded as Respondents) for the partition of the erstwhile Watan or Inam lands of his family was dismissed by the Trial Court. The First Appellate Court by the judgment of reversal decreed the suit of the Plaintiff and it had been confirmed by the High Court in the second appeal recognizing the Plaintiff’s right of the partition of the suit lands to the extent of 1/3 share. The preliminary decree has been framed for passing a final decree and grant of separate possession.
The main issues in the case were:
- Whether or not the Plaintiff-Respondent had established his relationship.
- Whether or not the Plaintiff was entitled to claim partition.
- Whether or not the appeal was maintainable even though not all legal representatives preferred an appeal.
Contentions of the parties
The Defendants contended that the original deceased Plaintiff Bapu Koyappa Patil failed to prove his relationship with the main ancestor Suryaji, who was the first Watandar, hence his claim for the partition to the extent of 1/3 share was rightly negative by the Trial Court.
It was also urged that the courts below ought to have dismissed the suit for partition on the ground that it was barred by limitation as the predecessors-in-title of the Defendants had prescribed his adverse possession on the land. It was further contended that not all the legal representatives of the original Plaintiff had preferred an appeal against the dismissal of the suit by the trial court and hence the appeal wasn’t maintainable.
Summary of court decision and judgment
The Supreme Court made the following observations:
- The evidence had been duly taken note of by the High Court. Thus, it was not open to the Defendants to raise ground on the correctness of the finding of fact on the issue of relationship. The evidence of pedigree relied by the first appellate court and the High Court was relevant and admissible to prove the relationship under Section 30(5) and Section 50 of the Evidence Act.
- The two questions- whether the plaintiff-respondent has established his relationship (as given in the pedigree) and secondly whether the plaintiff is entitled to claim partition? had been answered substantially by the High Court and the Supreme Court held that there was more than substantial compliance of the provisions of Section 100 of Code of Civil Procedure and a prayer for remand is absolute without any merit.
- In a suit for partition, Plaintiff and Defendants are parties of equal status. If the right of partition has been recognized and upheld by the court, merely because only some of the plaintiffs had appealed and not all, the court was not powerless. It could invoke provisions of Order 41 of Rule 4 read with Order 41 of Rule 33 of Code of Civil Procedure. The object of Order 41 of Rule 4 is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on ground common to him and others. The court in such an appeal may reverse or vary the decree in favor of all the parties who are in the same interest as the appellant.
The appeal was thus dismissed by the Apex Court.
Order 41 Rule 4 reads as follows:
“One of several plaintiffs or defendants may obtain reversal of the whole decree where it proceeds on ground common to all.- Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeding on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favor of all the plaintiffs or defendants, as the case may be.”
In Lal Chand (Dead) By L.Rs. v. Radha Kishan, the Court observed that the Trial Court and High Court must give due regard to O41 R4 which given the Appellate Court the power to reverse or vary the decree, even if an appeal is preferred by only one plaintiff or defendant. Thus, the present case was decided correctly in view of the law and precedents.
Just because all parties to a suit do not subsequently prefer an appeal, the statutory right of the other parties to appeal cannot be taken away. Order 41 Rule 4 ensures protection of this right.
 Lal Chand (Dead) By L.Rs. v. Radha Kishan, 1977 AIR 789.