Authored By : Banerjee, J.F. Stevens

Banerjee and J.F. Stevens, JJ.

1. The points urged in the appeal of the defendantsare--first, that the Courts below is wrong in holding that only a portion ofthe claim was barred by Section 13 of the Code of Civil Procedure, whereas itought to have held that the whole of the claim was barred, partly under Section13 and partly under Section 43 of the Code of Civil Procedure; second, that theCourt below is Wrong in holding that the plaintiffs claim was not barred bylimitation, whereas upon the evidence it was clearly so barred; and, third thatupon the question of title the Court below ought to have held that theplaintiffs have failed to make out their right to the lands in dispute.

2. For the plaintiffs, respondents, it is urged, by way ofcross-objection, under Section 561 of the Code of Civil Procedure, first, thatthe Court below is wrong in holding that any part of the claim was barred underSection 13 of the Code of Civil Procedure; second, that the Court below iswrong in holding that the claim as against the subsequently added defendantswas barred by the rule of three years limitation; and, third, that the Courtbelow was wrong in holding that the title of the plaintiffs was not made outwith reference to a portion of the claim, whereas it ought to have held that;the plaintiffs title had been made out with reference to the whole of the landin suit.

3. A preliminary objection was taken on behalf of thedefendants respondents to the hearing of the cross-objections, on the doubleground of these defendants having been wrongly made respondents in the case,and of the cross-objections, not being tenable by the plaintiffs respondentsagainst their co-respondents.

4. We shall deal with the appeal first and then with thecross-objections and before disposing of the cross-objections we shall considerthe preliminary Objection to their tenability.

5. In support of the first contention urged on behalf of theappellants no tangible ground has been shown why we should hold that the landof plot No. 1 on the Amins map was either included in the claim in theprevious suit, or that the claim in respect thereof had been relinquished inthat suit. In the previous suit the present plaintiffs or their predecessors intitle claimed three plots of land, all lying to the east of a certain khal.That khal, notwithstanding some change in position and magnitude by theshifting of its banks by encroachment or recess, is clearly shown by theevidence to be the same as the khal running north and south as shown in the presentAmins map, to the west of which lie the lands that have been decreed in favourof the plaintiffs in this suit. It cannot therefore possibly be said that anypart of the land decreed in favour of the plaintiffs by the Court below formedpart of the subject-matter of the former suit. Moreover, the land which theplaintiffs claimed in the former suit they claimed as being included in halkasNos. 64 and 16, which they alleged to be their property, and no part of thelands of halka No. 15 was then in dispute; nor is it shown that the plaintiffswere then out of possession of any portion of the land now in dispute; so thatit was not necessary for them to include in the former suit the lands nowclaimed by them. We must, therefore, hold that neither Section 13 nor Section43 of the Code of Civil Procedure can bar the plaintiffs claim to the lands inrespect of which a decree has been granted in their favour by the Court below.

6. With reference to the second point urged on behalf of theappellants, namely, that the Court below should have held that the plaintiffsclaim was barred by the twelve years rule of limitation, we are of opinionthat though the lower Courts statement of the rule of law applicable to suchcases may not be quite correct, and though, where the evidence on the side ofthe plaintiffs is absolutely false and unsatisfactory, it may not always besafe to apply the principle that possession follows title, yet having regard tothe nature of the lands in dispute, and to the nature of the evidence, we thinkthat the safe rule to apply with reference to the claim in respect of plot No.1 would be that possession followed title, as has been held in the cases ofRadha Gobind Roy v. Inglis (1880) 7 CLR 364, and in Mahomed Ali Khan v. KhajaAbdul Gunny ILR (1883) Cal 744, in which the case of Radha Gobind Roy v. Inglis(1880) 7 CLR 364, has been explained.

7. [The third contention was on the facts, and this portionof the judgment it is unnecessary to report.]

8. Coming now to the cross-objections of the plaintiffsrespondents, we must first of all dispose of the preliminary objection to thehearing of the same as against the defendants other than those who havepreferred the appeal. It is urged on their behalf that the right of a respondentto prefer cross-objections under Section 561 of the Code of Civil Procedure islimited to urging them against the appellant, and that there is no rightaccorded to one respondent to prefer cross-objections against anotherrespondent. In support of this contention the third paragraph of Section 561,is referred to, which speaks of the acknowledgment of the appellant or hispleader, or a notice to the appellant or his pleader, in respect of thecross-objections as being to necessary preliminary to their being entertained;and the cases of Kkermukuree Dossee v. Nilambur Mundul (1865) 2 WR 227; HossainBuksh Putooah v. Baroo Beparee (1866) 5 WR 49; Tarucknath Roy v. TaboorunnissaChowdhrain (1867) 7 WR 39; Greesh Chunder Singh v. Gour Mohun Banerjee (1867) 7WR 49; Gudadhur Banerjee v. Monmohinee Dossee (1867) 7 WR 366; Lallchand v.Kudmoo Koonwar (1867) 7 WR 532; Goonomonee Dossia v. Parbutty Dossia (1868) 10WR 326; Anunto Dass Sein v. Ramjoy Sein (1869) 11 WR 435; Anwar Jan Bibee v.Azmut Ali (1871) 15 WR 26; Sharoda Soonduree Debee v. Gobind Monee (1875) 24 WR179, and Atma Ram v. Balkishen : ILR (1883) All 266, arerelied upon by the learned Vakils for the defendants respondents. On the otherhand, it is urged for the plaintiffs respondents that the defendantsrespondents being clearly interested in the result of the appeal, whichnecessarily includes the result of the cross-objections, at least as againstthe appealing defendants, they have been rightly made parties under Section 559of the Code of Civil Procedure, and they being thus before the Court at thehearing of the appeal and of the cross-objections, if the Court is satisfiedupon the cross-objections (which must be heard) that the judgment of the Courtbelow is wrong, there is nothing in the law to prevent it from doing, fulljustice and from reversing or altering the decree of the Court below upon thecross-objections, not only as against the appealing defendants, but also asagainst the defendants who have been subsequently brought on the record asparty respondents. It was further urged that the rule that one respondentcannot urge cross-objections as against another respondent cannot be correct inits broad generality, but must be taken subject at least to one exception, namely,that when a case in the Court below proceeds upon a common ground withreference to all the defendants, in an appeal by some of them only,cross-objections against all of them may be urged, just as in an appeal by someof them the entire decree may be set aside under Section 544 of the Code ofCivil Procedure in favour of all the defendants. And in support of this viewthe case of Anund Chunder Goopto v. Mohesh Chunder Mozoomdar (1864) 1 WR 226Pran Kishore Deb v. Mahomed Ameer (1874) 21 WR 338 Timmayya Mada v. LakshmanaBhakta ILR (1883) Mad 215, and Upendra Lal Mukerjee v. Girindra Nath MukerjeeILR (1898) Cal 565, have been referred to.

9. The question raised in the preliminary objection, whichhas given rise to some conflict of decisions, is not altogether free fromdifficulty. There are no doubt considerations both ways. On the one hand, itmay be said that the right of urging cross objections on the part of therespondent ought to be limited to urging them as against those of hisadversaries in the Court below, who are dissatisfied with the decree of thatCourt, and who have preferred an appeal against the same, and that otherparties, who have not preferred any appeal against the decree of the Courtbelow, and against whom no appeal has been preferred, ought to be leftunaffected by the appeal, except so far as it may benefit them under theprovisions of Section 544. On the other hand, it may be urged that cases mayarise in which the appeal of some only of the defendants or of the plaintiffs mayopen up matters which render it necessary for the ends of justice that thewhole case should be gone into, and some of the respondents should be allowedthe opportunity of urging cross-objections against their co-respondents.

10. Upon a consideration of the cases cited and of thearguments on both sides, we think that there are two questions that have to beseparately considered--first, whether the non-appealing defendants have beenrightly added as respondents; and, second, whether, if they have rightly beenadded as respondents, it is open to the plaintiffs respondents to urgecross-objections against them.

11. With reference to the first question we think that theanswer should be in the affirmative. Upon the appeal of the defendantsappellants the plaintiffs have taken cross-objections which must bemaintainable against the appealing defendants; and if they are successful, theymay result in letting the plaintiffs into possession of the lands in respect ofwhich the plaintiffs claim has been dismissed in the Court below, at least tothe extent of the shares of the appealing defendants, and may thus affect thenon-appealing defendants by introducing strangers who may interfere with theirpossession. It must, therefore, be held that the non-appealing defendants arepersons who are interested in the result of the appeal within the meaning ofSection 559 of the Code of Civil Procedure, and, if that is so, they have beenrightly made parties.

12. Upon the second question, we are of opinion that no hardand fast rule can be laid down, and that the correct principle deducible fromthe cases cited may be shortly stated thus. As a general rule the right of arespondent to urge cross-objections should be limited to his urging themagainst the appellants; and it is only by way of exception to this general rulethat one respondent may urge cross-objections as against the other respondents,the exception holding good (we do not attempt to lay down any definiteexhaustive rule on the point) among other cases in those in which the appeal ofsome of the parties opens out questions which cannot be disposed of completelywithout matters being allowed to be opened up as between co-respondents. Oneinstance of this kind is to be found in cases of the class considered in UpendraLal Mukerjee v. Girindra Nath Mukerjee ILR(1898) Cal 565. The view we take isin accordance with that taken in the case of Anwar Jan Bibee v. Azmut Ali(1871) 15 WR 26, where the learned Judges observe: "It has been held in along series of decisions that the cross-appeal cannot reopen any questionswhich have been decided between co-respondents, but must have reference to theappellant, and the points which are in dispute between the respondent, whotakes the cross-appeal and the appellant. It is quite possible that there maybe cases in which, when an appellant succeeds in his appeal, questions will beopened up as between the co-respondents, which would otherwise have beendecided, and it is also possible when interests are identical that a respondentsucceeding in his cross-appeal may open up questions as between himself and hisco-respondents."

13. That being our view of the law, let us see whether thereis any thing exceptional in this case that would justify the plaintiffsrespondents urging their cross-objections as against the non-appealingdefendants. We are of opinion that the question ought to be answered in thenegative. The plaintiffs respondents laid claim to certain plots of land. Theirclaim was decreed only in part. They did not prefer any appeal against thatpart of the decree which dismissed their claim, or more correctly speaking theypreferred an appeal, but was found to be out of time and the petition of appealwas returned. There upon they contented themselves with preferring cross-objectionswith reference to the portions of the claim that had been disallowed. Theappeal, however, in which they urged these cross-objections was at the instanceof some only of the defendants in the case, the remaining defendants havingbeen apparently satisfied with the decree that was made against them. Is thereanything in justice which ought to entitle the plaintiffs to say thatnotwithstanding that they did not do that which was their proper course,namely, prefer an appeal against that portion of the decree, which went againstthem, they are entitled, upon the appeal of some only of their adversaries inthe Court below to open up the whole case as against the other defendants, whowere satisfied with the decree As we have said above the ground upon whichthis right of theirs is sought to be based is that as the cross-objections mustbe heard as against the appealing defendants, and as the remaining defendantsare on the record, if the Court is satisfied upon the cross-objections that thedecree of the Court below is wrong on any point it ought not to allow theerroneous decree to remain in force and perpetuate an injustice when there isnothing expressly laid down in the law to prevent its doing full justice. We donot think that is a correct way of stating the point. The correct way ofstating it would be this, namely, whether upon the cross-objections of theplaintiffs, which must be heard as regards the appealing defendants, if theAppellate Court finds that the decree of the Court below is wrong, it oughtnevertheless to allow such erroneous decree to stand and to abstain fromrectifying it in full and thereby doing complete justice on the ground of theplaintiffs having deprived themselves of such measure of justice by theirdefault in preferring an appeal in time, and when the question is thus statedthe answer to it should evidently be in the affirmative, unless there be anyexceptional reasons in the case. We may add that there is one importantconsideration pointed out in the argument on behalf of the defendantsrespondents, which strongly supports the view we take, namely, that to allowthe plaintiffs in such a case to urge their cross-objections against thenon-appealing defendants would be to place those defendants in a situation ofrisk, without their having done anything to incur that risk, and without theirbeing able to withdraw themselves from that position. In the case of theappellants if any cross-objections are urged against them by the plaintiffsrespondents they have the option of withdrawing the appeal and therebypreventing the cross-objections being heard, if upon consideration they find itbetter for them to allow the decree of the Court below to stand as it is. Inthe case of persons in the situation of the non-appealing defendants, they havenot the power of withdrawing from the position of risk in which they may beplaced, not by any action of their own, but merely by the action of theirfellow-defendants or fellow-plaintiffs as the case may be.

14. In this view of the matter, it becomes unnecessary toconsider the special argument, which was addressed to us on behalf of those ofthe defendants respondents against whom the suit was dismissed in the Courtbelow on the ground of three years limitation-a ground which is not common tothem, and to the other defendants. If, however, it were necessary to sayanything on this point, we should simply have said that the main reason uponwhich the learned Counsel for the plaintiffs respondents bases the right of hisclients to urge their cross-objections against the non-appealing defendants,namely, the fact of the case in the Court below having proceeded upon a commonground, could not apply to those defendants.

15. [The Court then considered the cross-objections asagainst the appealing defendants, and the decision being on the facts it isunnecessary to report it. The judgment concluded as follows.]

16. This disposes of all the contentions raised by way ofcross-objection.

17. The result is that the appeal must be dismissed with costs,subject to the modification referred to above, namely, that the decree of thelower Court should not extend beyond the thak line of mouzah Deghalia as shownon the Amins map; and the cross-objections must be disallowed with costs.

18. The defendants respondents will get separate costs. Thechittas must be treated as papers printed for the purposes of thecross-objections.

.

Bishun Churn Roy Chowdhry and Ors. vs. Jogendra Nath Roy and Ors. (25.07.1898 - CALHC)