/ORDER

B M Shyam Prasad, J. - These appeals are filed impugning the common judgment dated 29.03.2006 in R.A.No.136/2004 and 165/2004 on the file of the IV-Fast Track Court, Gulbarga. These appeals are filed by the plaintiff in the suit in O.S.No.871/1991 on the file of the II-Additional Civil Judge (Jr.Dn.) at Gulbarga. For convenience, the parties are referred to as they are arrayed in the plaint. The plaintiffs suit in O.S.No.871/1991 is for the following:

(i) for declaration of title and possession to disputed portions of land in Sy.No.36/3 of Melkunda (B) Village, Gulbarga Taluk with a direction to remove the wall constructed within this property,

(ii) for further declaration that the plaintiff and the defendant are the common owners of the land in Sy.No.36/2 measuring 14 guntas of Melkunda (B) Village, Gulbarga Taluk and District, and

(iii) for injunction against the respondent from obstructing the plaintiff from utilizing the Well in this land in Sy.No.36/2 of Melkunda (B) Village, Gulbarga Taluk for cultivation of his land in Sy.No.36/3 and 4.

2. The trial Court partly decreed the suit in O.S.No.871/1991 vide its judgment dated 25.09.1999 declaring that the plaintiff was the absolute owner of the disputed portions of the land in Sy.No.36/3 of Melkunda (B) Village, Gulbarga Taluk and he was entitled for possession thereof. The trial Court directed the defendant to remove certain constructions alleged put up by the defendant in the encroached portions. But, the Trial Court dismissed the suit as regards the prayers for declaration that the land in Sy.No.36/2 of Melkunda (B) Village, Gulbarga Taluk was the common property and for injunction against interfering with the plaintiffs right to draw water from the Well therein.

3. As such, the plaintiff and the defendant filed their respective first appeals that were numbered as R.A.Nos.136/2004 and 165/2004 after being transferred to the Court IV Fast Track Court, Gulbaraga. The appellate Court dismissed the plaintiffs appeal in RA No. 165/ 2004 as against the Trial Courts rejection of the prayer for declaration that the land in Sy.No.36/2 of Melkunda (B) Village, Gulbarga Taluk was common property and for injunction. But, the appellate Court allowed the defendants appeal in RA No. 136/2004. The appellate Court set aside the grant of the decree of declaration of ownership and possession of the disputed portions of the land in Sy.No.36/3 of Melkunda(B) village, Gulbarga Taluk. As such, there are two appeals by the plaintiff before this Court.

4. A nutshell of the facts essential for the disposal of the present appeals would be as hereinafter stated:

(a) Sri Apparaya-plaintiff and Sri Shivarayadefendant are brothers. Their forefathers were the owners of the land in Sy.No.36 of Melkunda (B) Village, Gulbarga. In a partition effected amongst their predecessors-in-title, the lands in Sy.No.36/3 and 36/4 were allotted to the plaintiffs predecessors-in-title and the land in Sy.No.36/1 was allotted to the defendants predecessors-in-title. There is no dispute about the allotment of these three lands inter se the predecessorsin- title of the plaintiff and the defendant. The plaintiff asserted that the defendant had encroached about 5 x 250 of land in Sy.No.36/3 breaking the bund that separate the lands in Sy.No.36/1 and 2 on one side and 36/3 on the other. The defendant had also constructed two rooms and a cattle shed encroaching upon another portion of the land in Sy.No.36/3. Further, the plaintiff asserted that the land in Sy.No.36/2, which contains a well, was earmarked as a common property. The plaintiff was also entitled to draw from this Well for the purposes of cultivation of his lands in Sy No.36/3 and 36/4. But, the defendant was claiming the encroached portions as his absolute properties. Therefore, the plaintiff was constrained to file a suit for declaration as aforesaid.

(b) The defendant contested the suit. The defendant denied that he had encroached upon on any portion of the plaintiffs land in Sy No. 36/3. The defendant asserted that because the irrigated lands were being given to his predecessors-in-title, they were given lands in Sy.No.36/1 and 2 that actually measure only 2 acres 38 guntas. But, because the plaintiffs predecessors-in-title were granted dry lands, they were allotted a much larger extent measuring 9 acres 34 guntas in Sy.No.36/3 and 36/4. The defendant denied that the plaintiff was entitled for any manner of right in the land in Sy.No.36/2 or any amenity therein, including the Well in this land.

5. The Trial Court framed different Issues which required the plaintiff interalia to prove that he was the exclusive owner of the portions in Sy.No.36/3 and 36/4 (sic) and that the land in Sy.No.36/2 was a common property with the Well from which he could draw water for cultivation of his lands in Sy.Nos.36/3 and 36/4. The plaintiff examined himself as PW.1. A Court commissioner was appointed at the instance of the plaintiff, and the Court Commissioner was examined as PW.2. The plaintiff relied upon Exs.P1 to P12, which included the plaint sketch (which indicate the encroached portions in red and blue colors), survey records, record of rights. Importantly, the exhibits also included Commissioners report with sketch, panchanama and notices issued by the Commissioner. The defendant did not examine himself, but his son and power of attorney, was examined as DW.1.

6. The trial Court relied upon the Commissioners Report and the evidence on record to conclude that the defendant had encroached upon portions of the plaintiffs land in Sy.No.36/3 and the plaintiff was entitled for declaration of title to such encroached portions and for possession. As regards the right to Well in the land in Sy.No.36/2, the trial Court dismissed the plaintiffs claim. The trial Court observed that the plaintiff had pleaded that land in Sy.No.36/4 was sold and repurchased in the year 1975. The sale deed did not indicate that the owner of the land would be entitled for irrigation facilities from the Well land in Sy.No.36/2. If such right was enjoined with the ownership of the land in Sy No.36/3 or 36/4, they same would have been mentioned in the sale deed. It was obvious that the plaintiff and his family members were not drawing water from the Well in dispute for over a period of 17 to 18 years. The grant of decree of declaration of title and possession of the disputed portions and the refusal of the grant of declaration of the right to use the Well impelled both the plaintiff and the defendant to file their respective first appeals.

7. During the pendency of the appeals, the defendant died. His legal heirs were brought on record. The Appellate Court heard only the learned counsel for the legal heirs of the defendant, and the learned counsel for the plaintiff was not heard. In fact, the detailed proceedings are recorded on 22.03.2006 in the appeal filed by the defendant, but such proceedings are absolutely illegible. However, there is no dispute that the learned counsel for the plaintiff was not heard. The appellate Court by the impugned common judgment has dismissed the plaintiffs appeal confirming the trial Court judgment as regards refusal of declaration of the right to draw water from the Well land in Sy.No.36/2. The appellate Court has allowed the appeal filed by the defendant and continued by his legal heirs; consequently, the decree in favour of the plaintiff as regards declaration of title to alleged encroached portions in the land in Sy.No.36/3, for possession thereof and removal of construction is set-aside.

8. The appeals are admitted for consideration of common substantial question of law which is as follows:-

"When two appeals are clubbed and the appellant in one of the appeals remains absent, whether the Court would be justified in proceeding ex-parte without hearing the appellant in his appeal and whether there would be due compliance with Order XLI Rule 17 CPC"

9. The learned counsel for the appellant insofar as dismissal of the plaintiffs appeal submits that the counsel for the plaintiff was not heard, and there cannot be any dispute about this because of para No.9 of the impugned common judgment. The learned counsel, relying upon the provisions of Order 41 Rule 17 of CPC, submits that when on the day fixed for hearing (or any other day to which the hearing may be adjourned) if the appellant does not appear, the appellate Court may only dismissal the appeal for default. The Court cannot decide the appeal on merits in the absence of counsel for the appellant or the appellant. Therefore, it is incumbent upon an appellate Court when the appellant is not present to dismiss the appeal for default and if judgment is rendered on merits it cannot be sustained in law. The learned counsel for the appellant relies upon the decision of Honble Supreme Court in the case of Abdur Rahman /vs/ Athifa Begum, (1996) 6 SCC 62 and Ajit Kumar Singh /vs/ Chiranjibi Lal, (2002) 3 SCC 609 with emphasis on the following paragraph:-

"There can be no doubt that the High Court erroneously interpreted Rule 11 (1) of Order 41 CPC. The only course open to the High Court was to dismiss the appeal for non-prosecution in the absence of the advocate for the appellants. The High Court ought not to have considered the merits of the case to dismiss the second appeal (See: Rafiq /vs/ Munshilal.) The same view was reiterated in Abdur Rahman /vs/ Athifa Begum".

10. The learned counsel for the appellant submits in the light of the circumstances in which the appeals are decided and the law, both the second appeals ought to be allowed with the first appeals being restored to the board of the Appellate Court for fresh consideration.

11. The learned counsel for the defendant contends the appellant cannot make a grievance about the judgment being delivered without hearing him in these second appeals. The appropriate course for the plaintiff is to file application under Order 41 Rule 19 of CPC stating the reasons as to why both he and his counsel remained absent on 22.03.2006. The appellant should have asked for re-admission of the appeal insofar as dismissal of his appeal stating reasons for absence. The plaintiff had to file another application under Order 41 Rule 21 of CPC insofar as the ex-parte decision in the appeal by the defendant. If the plaintiff had filed such applications, the bonafides of the reasons could be examined. The plaintiff wants to prevent such enquiry. Therefore, the present appeals are filed.

12. The learned counsel for the defendant relies upon the decision of the Honble Supreme Court in the case of Harbans Pershad Jaiswal (Dead) by Legal Representatives /vs/ Urmila Devi Jaiswal (Dead) by Legal Representatives, (2014) 5 SCC 723. The Honble Supreme Court in the circumstances similar to the present case, the defaulting appellant before had filed necessary application in the application under Order XLI Rule 9 of CPC. The Honble Supreme Court examined the reasons stated in support of the application and discussed the defaulting appellants application because reasons were not sufficient. Therefore, the present appeals should not be allowed.

13. The provisions of Order XLI Rule 17 read as follows:

"17 Dismissal of appeal for appellants default.-

(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed

Explanation-Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.

(2) Hearing appeal ex parte - Where the appellant appears and the respondent does not appear the appeal shall be heard ex parte".

It is obvious from these provisions that in the case of cross appeals when one of the appellants does not appear, the appellate Court has to segregate two appeals and deal with the appeals under Order XLI Rule 17 (1) or Order XLI Rule 17 (2) of CPC. In the event the appeal is dismissed for default under Order XLI Rule 17 (1) of CPC, the appellant will have the remedy under Order 41 Rule 19 of CPC. If the other appeal is decided on merits ex-parte as provided for under Order XLI Rule 17 (2), the defaulting respondent/ cross appellant will have the remedy under Order 41 Rule 21 of CPC. However, the appellate Court cannot decide both the cross appeals on merits when one of the appellants is absent.

14. The appellate Court without following this procedure has decided both the appeals on merits, and this could not have been done in view of the Explanation to Order XLI Rule 17 (1) of CPC. Therefore, this Court is of the opinion that there is non-compliance with the provisions of Order 41 Rule 17 of CPC. The substantial question is answered accordingly. Consequentially, one of these second appeals viz., will have to be allowed. In the facts and circumstances of the case discussed, it cannot be reasonably said that the other second appeal is to be dismissed because the plaintiff (appellant) has not filed an application under Order XLI Rule 21 of CPC, especially because of the lapse of time. Furthermore, this Court is also of the opinion in the interest of justice that the appeals are to be allowed without expressing any opinion on the merits of the case and the first appeals be restored to the file of the first appellate Court for fresh consideration on merits. As such the following:

ORDER

i) The appeals are allowed, and the impugned common judgment and decree dated 29.03.2006 in R.A.No.136/2004 and 165/2004 on the file of the IV-Fast Track Court, Gulbarga are set aside;

ii) The First Appellate Court shall take up the appeals in R.A.No.136/2004 and 165/2004 for hearing on 22.07.2019;

iii) The parties shall appear before the First Appellate Court on 22.07.2019 without further notice of the first hearing;

iv) The First Appellate Court shall dispose of the appeals expeditiously, but within an outer limit of six months from 22.07.2019. The parties shall assist the First Appellate Court in the expeditious disposal of the appeals without seeking unnecessary adjournments.