Judgment:
A.P. Bhangale, J.
1. This appeal is directed against judgment and order dated 19th August, 2006 passed by learned 2nd Additional District Judge, Wardha in Regular Civil Appeal No. 135 of 1994 whereby the appeal challenging dismissal of Regular Civil Suit No. 25 of 1992 by the IV Joint Civil Judge, Jr.Dn., Wardha was dismissed.
2. The facts which gave rise to the Second Appeal, in nutshell, are as under:
The plaintiff (respondent) instituted Regular Civil Suit No. 25/1992 for declaration and permanent injunction against appellant (original defendant). The plaintiff claimed possession of suit Plot No. 55/A admeasuring 50 'x 20' in the field 'Maila Bardi' belonging to 'Niyojit Adiwasi Griha Nirman Sahakari Sanstha, Wardha', a Cooperative society. The plaintiff claimed that he is the owner and in possession of suit plot and was a member of the society and allotted the suit plot for residential purpose by resolution dated 20.5.1983 passed in general meeting of the society. The plot was transferred and mutated in his name in Gram Panchayat records. The plaintiff also claimed that he had constructed a house temporary shed, for which he was penalised by Gram Panchayat in 1991. The plaintiff had lodged a Police complaint through his next friend against the defendant on 3.8.1991 when defendant tried to encroach upon suit plot by constructing the house. The defendant denied the suit claim and claimed ownership and possession of the suit plot.
3. The trial Court found that the plaintiff possessed the suit plot but the allotment letter (Exh.43) and receipt of payment (Exh. 51) did not establish the allotment of the suit plot. As against plaintiff's claim, the defendant relied upon allotment letter (Exh.64) and established the date of allotment as 16.4.1989. The records of Gram Panchayat as to mutation of plaintiff's name, indicate that it was done in the year 1991. The evidence did not establish that the suit plot was allotted in favour of the plaintiff prior to 16.04.1989. The plaintiff relied upon document Exh.51 which reveals serial number 524 ; whereas defendant relied upon document Exh.63 which reveals receipt of serial number 45 (prior to the plaintiff's document ). Thus, the trial Court recorded a finding of the fact that the document of title of the defendant appeared trustworthy although plaintiff could establish that he had constructed the house on suit plot, which was unauthorized and for which penalty was levied (Exh.47), house tax receipt (Exhs. 49 & 50) were also produced. Thus, the trial Court found that plaintiff was in unlawful possession of suit plot though he had no title to the suit plot; while the defendant was the true owner of the plot. Thus, suit was dismissed with costs.
4. The learned Additional District Judge, Wardha recorded concurrent findings of fact on the ground that plaintiff failed to prove his title to the suit plot; but he was in possession of suit plot which was unauthorized. The title of the defendant was found more clear than that of plaintiff. The plaintiff had not examined Secretary of the Society concerned. Cross objection filed by the defendant challenging finding recorded by the trial Court regarding possession of suit plot with the plaintiff was also dismissed on the ground that the counterclaim in the suit was not filed in the trial Court. Thus, Cross objections were dismissed by the first Appellate Court.
5. The defendant challenged dismissal of Cross objection by the first Appellate Court. In support of the appeal, it is contended that in view of Order 41 Rule 22 of the Civil Procedure Code (in short ' the CPC'), any respondent may also state that findings by the trial Court ought to have been recorded in his favour. Learned Advocate made reference to the ruling in Ravinder Kumar Sharma v. State of Assam : AIR 1999 SC 3571 and urged that it is open for any respondent in Appeal to question adverse finding without filing Cross objection as filing of the same in Appeal is held optional and not mandatory. The filing of cross objections against the adverse finding was not obligatory.
6. Be that as it may; at the stage of Second Appeal to be entertained in view of Section 100 of the CPC, the appellant has to make out a substantial question of law in relation to rejection of the counterclaim.
When there are concurrent findings of fact as to material issued in the suit, challenge by Second Appeal is barred in view of Section 100 of the CPC. In Chacko and Anr. v. Mahadevan : 2007 (6) Mh.L.J. 594, it is observed by Hon'ble Apex Court in paragraph No. 6 as under:
6. It may be mentioned that in a First Appeal filed under Section 96 CPC, the Appellate Court can go into questions of fact whereas in a Second Appeal filed under Section 100 CPC the High Court can not interfere with the findings of fact of the first Appellate Court, and it is confined only to questions of law.
7. Findings of fact by the first Appellate Court cannot be interfered with by the High Court in Second Appeal under Section 100 of the CPC. But the question of law raised to the effect as to whether the first Appellate Court was right in rejecting Cross objection filed by respondent needs consideration. The first Appellate Court was not right in rejecting the Cross objection of the respondent (defendant) on the ground that the defendant had not filed counterclaim in the trial Court. In Ravinder Kumar Sharma v. State of Assam : AIR 1999 SC 3571 ,in para 22, the Hon'ble Apex Court observed thus:.We hold that the respondent defendant in an appeal can without filing cross Objections attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose sustaining the decree to the extent the lower Court had dismissed the suit against the defendant respondent. The filing of Cross objections after the 1976 Amendment is purely optional and not mandatory.
8. The first Appellate Court as last court of facts, is expected to record correct finding of fact with due regard to settled legal position and material evidence led in the case. Conclusions are required to be based upon admissible evidence including upon Cross objection, if any, in the first Appeal.
9. In the facts and circumstances of the case, considering the legal position, in my opinion, the interest of justice would be subserved if the impugned judgment and order by the first Appellate Court in Regular Civil Appeal No. 135/1994 is set aside and the case is remitted back to the first Appellate Court, with a direction to decide the Cross objection in accordance with law and to record findings of fact in view of the challenge by the defendant (appellant herein) to the adverse finding by means of Cross objection filed in First Appellate Court. Accordingly, the Appeal is allowed. The impugned judgment and order is set aside. The parties shall appear before the first Appellate Court on 11.01.2010 at 11.00 a.m. or, on any other adjourned date as may be fixed by the first Appellate Court (District Judge, Wardha) and advance their respective submissions. The first Appellate Court shall hear and decide the Appeal in accordance with law, as early as possible.