Rangaiah S/O Sannappa Vs. Pattanaika and ors. - Court Judgment

Excerpt:
a. civil procedure code (cpc), 1908 (central act no. v of 1908) - sections 100 and 103 - order 41, rule 22 -- defendant claiming to be in possession of half the extent of suit property resisted the suit for declaration and injunction and incidentally alternative plea of adverse possession also had been set up. trial court found that defendant is in possession of 8 gunthas only as against his claim for 10 gunthas and decreed the suit of the plaintiff accordingly. the lower appellate court dismissed the appeal of the plaintiff. in second appeal the high court found that the both the courts below had glossed over the important admission contained in para 3 of the written statement and decreed the suit as prayed for. ;on merits, this is one of cases wherein the case should have been decreed on the basis of the written statement alone. paragraph (3) of the written statement is not only an answer to the plaintiff's claim but also an admission. para (3) reads as follows:-; the fact of allotment of 20 guntas in favour of the plaintiff's father is admitted. but what is claimed is that the defendant was enjoying 10 guntas. that is why, the defendant has chosen to put forth the plea of adverse possession. the plea of adverse possession has been rightly found by the courts below as not sustainable. reliance was placed on ex.d1 wherein the entry in favour of the plaintiff has been made only for 12 guntas. in any event, the defendant's claim to 8 guntas, even under ex.d1 must be traced to some title. in the absence of any title found in favour of the defendant, his alleged possession of 8 guntas cannot be construed as legal. this is the result of the reading of the written statement and non-appreciation of the same, by the courts below. therefore, it must be construed that the defendant admitted the claim of the plaintiff inrespect of 20 guntas and on his failure to prove any right to possession over 8 guntas, the plaintiff must be given decree for 20 guntas. ;b. civil procedure code, 1908 (central act no. v of 1908) - section 103 and order xli rule 22. claim of the plaintiff for 12 gunthas out of total 20 gunthas, had been decreed by the trial court. in appeal filed by the plaintiff, even though the defendant had not filed any cross objections, instead of just dismissing the first appeal. the lower appellate went to the extent of dismissing the entire suit. held -- the lower appellate court has acted illegally and arbitrarily and disposal of the appeal in such cavalier fashion deserves condemnation. ;the disposal of the first appeal by the first appellate court deserve condemnation. when there is no appeal by the defendant, question of grant of the decree inrespect of 12 guntas, the appellate court has no power to dismiss the suit, order 41 rule 22 speaks about the objection the respondent may raise as if he had preferred separate appeal. this is how order 41 rule 22 reads:; in this case, no cross-objection has been made. in that event the appellant court has no power to dismiss the suit. it can either agree with the appellant-plaintiff and give the plaintiff more than what the trial court has given. but certainly, it cannot deprive the plaintiff the benefit of the decree granted to him by the trial court. ; it is necessary to place on record the power of the high court in second appeal visa-vis the power of the first appellate court. the power of the high court to deal with the second appeal is made extensive by the amendment by act 104/76. section 103 reads as follows:-; 'section 103. power of high court to determine issue of fact:-in any second appeal, the high court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-; a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or ; b)which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100.'; therefore the power of the high court is different from that of the first appellate court. in this case, the first appellate court though fit to assume the power under section 103 which is improper. - karnataka municipal corporations act, 1976 section 288 (4) (2) & karnataka public premises (eviction of unauthorised occupants) act, (32 of 1974), section 2(c): [a.n. venugopala gowda, j] removal of telephone booth erected on foot path permission for temporary construction granted under section 288 (2) of the municipal corporations act of 1976 - held, footpaths vested in corporation is not a public premises. corporation is empowered under section 288 (4) to direct removal of such temporary construction to serve convenience to general public. provisions of public premises act is not applicable to telephone booth or any temporary structure put on footpaths. applicants were directed to remove telephone booth. section 288 (4): [a.n. venugopala gowda, j] removal of telephone booth erected on foot path licence period granted to install a telephone booth on foot path was expired and not extended corporation resolving not to extend licence for any foot path business appellant was notified of the intended action of corporation held, it amounts to granting opportunity of hearing thereby complying with the requirement of hearing. karnataka public premises (eviction of unauthorised occupants) act (32 of 1974) section 2 (c): [a.n. venugopala gowda, j] telephone booth erected on foot path with permission for temporary construction granted under section 288 (2) of the municipal corporations act of 1976 - held, footpaths vested in corporation is not a public premises. corporation is empowered under section 288 (4) to direct removal of such temporary construction to serve convenience to general public. provisions of public premises act is not applicable to telephone booth or any temporary structure put on footpaths.order xli rule 22. claim of the plaintiff for 12 gunthas out of total 20 gunthas, had been decreed by the trial court. in appeal filed by the plaintiff, even though the defendant had not filed any cross objections, instead of just dismissing the first appeal. the lower appellate went to the extent of dismissing the entire suit. held -- the lower appellate court has acted illegally and arbitrarily and disposal of the appeal in such cavalier fashion deserves condemnation. the disposal of the first appeal by the first appellate court deserve condemnation. when there is no appeal by the defendant, question of grant of the decree inrespect of 12 guntas, the appellate court has no power to dismiss the suit, order 41 rule 22 speaks about the objection the respondent may raise as if he had preferred separate appeal. this is how order 41 rule 22 reads:'upon hearing respondent may object to decree as if he had preferred separate appeal:- any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour.'in this case, no cross-objection has been made. in that event the appellant court has no power to dismiss the suit. it can either agree with the appellant-plaintiff and give the plaintiff more than what the trial court has given. but certainly, it cannot deprive the plaintiff the benefit of the decree granted to him by the trial court. it is necessary to place on record the power of the high court in second appeal visa-vis the power of the first appellate court. the power of the high court to deal with the second appeal is made extensive by the amendment by act 104/76. section 103 reads as follows:-'section 103. power of high court to determine issue of fact:-in any second appeal, the high court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,- a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or b)which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100.' therefore the power of the high court is different from that of the first appellate court. in this case, the first appellate court though fit to assume the power under section 103 which is improper.

Judgment:
ORDER

XLI RULE 22. Claim of the plaintiff for 12 Gunthas out of total 20 Gunthas, had been decreed by the Trial Court. In Appeal filed by the plaintiff, even though the defendant had not filed any cross objections, instead of just dismissing the first Appeal. The Lower Appellate went to the extent of dismissing the entire suit. HELD -- The lower Appellate Court has acted illegally and arbitrarily and disposal of the Appeal in such cavalier fashion deserves condemnation.

The disposal of the first Appeal by the First Appellate Court deserve condemnation. When there is no appeal by the defendant, question of grant of the decree inrespect of 12 guntas, the Appellate Court has no power to dismiss the suit, Order 41 Rule 22 speaks about the objection the respondent may raise as if he had preferred separate appeal. This is how Order 41 Rule 22 reads:

'Upon hearing respondent may object to decree as if he had preferred separate Appeal:- Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour.'

In this case, no cross-objection has been made. In that event the Appellant Court has no power to dismiss the suit. It can either agree with the appellant-plaintiff and give the plaintiff more than what the Trial Court has given. But certainly, it cannot deprive the plaintiff the benefit of the decree granted to him by the Trial Court.

It is necessary to place on record the power of the High Court in second appeal visa-vis the power of the First Appellate Court. The power of the High Court to deal with the second appeal is made extensive by the amendment by Act 104/76. Section 103 reads as follows:-

'Section 103. Power of High Court to determine issue of fact:-In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-

a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

b)Which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100.'

Therefore the power of the High Court is different from that of the first Appellate Court. In this case, the First Appellate Court though fit to assume the power under Section 103 which is improper.