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Judgment
Rakesh Kainthla, Judge
The present appeal is directed against the judgment and decree dated 10.06.2008 passed by learned Presiding Officer/Additional District Judge (Fast Track Court), Hamirpur (learned Appellate Court) vide which the judgment and decree dated 01.10.2004 passed by learned Civil Judge (Senior Division), Hamirpur (learned Trial Court) were upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit seeking permanent prohibitory injunction for restraining the defendants from interfering in the suit land mentioned in the head note and para 1 of the plaint. The plaintiff also sought mandatory injunction directing the defendants to restore the suit land to its original position in case the defendants succeed in dispossessing the plaintiff and breaking open the shutter affixed on the suit land. It was asserted that late Jagan Nath had compromised the matter. It was agreed that Jagan Nath would exchange his land to the extent of 3.60 square meters comprised in Khasra No. 1041 in favour of the plaintiff, and the plaintiff would exchange his land measuring 5.60 square meters in length and 5.00 square meters in width with Jagan Nath. The exchange was implemented on the spot, and the parties entered into possession of their respective land, but the exchange was not entered into the revenue record. The defendants started interfering with the plaintiff's possession over the exchanged land. Hence, the suit was filed to seek the relief mentioned above.
The suit was opposed by filing a written statement taking preliminary objections regarding lack of locus standi, the plaintiff being stopped by his act and conduct from filing the suit, and the suit being barred by limitation. The contents of the plaint were denied on merits. It was asserted that the defendants had constructed two shops mentioned in the site plan having two shutters opening towards the common passage. The front portion of Khasra No. 1041 was left vacant to be used by the plaintiff and defendants as passage. This fact was confirmed by the report of the Local Commissioner appointed in a different suit pending between the parties. No formal exchange had taken place, and it was only agreed that the land of the parties would be used for common purposes. The plaintiff violated the terms and conditions of the agreement between him and the defendant's father. He extended the projection of his hotel over the common space left as the passage. He has filed the present suit to justify the encroachment made by him. Hence, it was prayed that the suit be dismissed.
The learned Trial Court framed the following issues on 17.03.2003: -
(i)Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP
(ii)Whether the plaintiff is entitled for the relief of mandatory injunction in the alternative? OPP
(iii)Whether the plaintiff has no locus standi to file the suit? OPD
(iv)Whether the plaintiff is estopped from filing the suit by his act and conduct? OPD
(v)Whether the suit is barred by limitation? OPD
(vi)Whether the plaintiff has not come to the Court with clean hands, if so, its effect? OPD
(vii)Relief.
The parties were called upon to produce the evidence and the plaintiff Janak Raj examined himself (PW1). The defendants examined Pawan Kumar, defendant No.1 (DW1) and Prabhat Sharma (DW2).
The parties also entered into a compromise before the Court on 20.09.1999, vide which they cancelled the earlier agreement, and agreed that they would deliver the possession of the encroached land to each other on or before 04.10.1999. The time was sought to implement this compromise on the spot. A local commissioner was also appointed, who submitted his report, and objections were preferred to his report.
Learned Trial Court held that the earlier compromise was rescinded during the pendency of the suit. The plaintiff failed to prove that Khasra No. 1042 was in the defendants’ possession and the defendants were not delivering possession to the plaintiff. The report of demarcation proved that the plaintiff is in unlawful possession of the defendants’ land to the extent of 2 square meters. The plaintiff's version that the defendants had encroached upon the suit land was not proved on record. Hence, the learned Trial Court answered issues No. 1 to 6 in the negative and dismissed the suit.
The defendants filed an appeal against the judgment and decree passed by the learned Trial Court, which was decided by the learned Presiding Officer/Additional District Judge (Fast Track Court), Hamirpur (learned Appellate Court). The learned Appellate Court held that the plaintiff's suit was dismissed, all the issues were decided against the plaintiff, the defendants were not aggrieved by the judgment and decree passed by the learned Trial Court, and they had no right to prefer an appeal against the judgment and decree. The appeal filed by them was not maintainable. Hence, it was dismissed with special costs of ₹3,000/-
Being aggrieved by the judgment and decree passed by the learned Courts below, the defendants have filed the present appeal, which was admitted on the following substantial questions of law on 18.05.2010:
(i)Whether the findings of the Court below are a result of complete misreading, misinterpretation of the evidence and material on record and against the settled position of law?
I have heard Mr Ajay Sharma, learned Senior Advocate, assisted by Mr Tarun Brakta, learned counsel for the appellants/defendants and Ms Vishali Lakhanpal, learned counsel for the respondents/plaintiffs.
Mr Ajay Sharma, learned Senior Counsel for the appellants/defendants, submitted that the parties had entered into a compromise before the learned Trial Court, which was never implemented. The learned Trial Court held that the earlier compromise was rescinded by the compromise effected before the court. An anomalous situation arose before the learned Trial Court whereby the earlier compromise had been rescinded, and the new compromise was not being implemented. This is impermissible. The plaintiff was found to be the encroacher on the defendants' land, and the defendants were entitled to delivery of vacant possession. Learned Courts below erred in not delivering possession to the defendants as per the compromise entered into between the parties. Therefore, he prayed that the present appeal be allowed and the judgments and decrees passed by learned Courts below be set aside.
Ms Vishali Lakhanpal, learned counsel for the respondent/plaintiff, submitted that the plaintiff's suit was dismissed by the learned Trial Court. All the findings were answered in the negative, and there was no finding in favour of the plaintiff or against the defendants. The appeal was not maintainable before the learned Appellate Court, and the learned Appellate Court had rightly held that the appeal was not maintainable. The present appeal is also not maintainable at the instance of the defendants. Hence, she prayed that the present appeal be dismissed.
I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
Substantial Question of Law No.1:
It is undisputed that the learned Trial Court had dismissed the suit, which means that the decree was passed in favour of the defendants. Therefore, the plaintiff could have been aggrieved by the judgment and decree, and the defendants, in whose favour the decree was passed, could not have any grievance regarding it. Hence, the learned Appellate Court had rightly held that the appeal preferred by the defendants before the learned First Appellate Court was not maintainable.
In State of Rajasthan v. Chander Singh, 1971 SCC OnLine Raj 6: 1972 RLW 47, a decree was passed in favour of a government official, but the suit was dismissed against the State of Rajasthan. State of Rajasthan preferred an appeal, and it was held that the appeal filed by the State of Rajasthan was not maintainable because the State was not a person aggrieved. It was observed at page 51:
16.The result of the foregoing discussion is that this appeal must be treated as one by the State of Rajasthan only. As already stated above, no decree has been passed against the State of Rajasthan, and the suit must be held to have been dismissed against the State by the trial court. Consequently, the State of Rajasthan has also no locus standi to file the appeal.
17.The learned Deputy Government Advocate submitted that even though the decree has not been passed against the State of Rajasthan, the amount decreed against Shri Sukhwal will have to be paid by the Government, and, therefore, the State of Rajasthan can maintain the appeal. I do not see any substance in this argument. That is a matter between the State and Shri Sukhwal and does not concern the plaintiff at all. So far as the plaintiff is concerned, he cannot claim any amount against the State in execution of the decree in appeal. The learned Dy. Government Advocate failed to point out how the State could maintain the appeal from the judgment and decree passed against Shri Sukhwal in his personal capacity?
18.The result is that I allow the second preliminary objection, and dismiss the appeal as not maintainable. In the circumstances of the case, the parties are left to bear their own costs.
It was held in Banarsi v. Ram Phal, (2003) 9 SCC 606: 2003 SCC OnLine SC 229 at page 615 that only a person who is aggrieved by the judgment and decree can file an appeal. A party who has fully succeeded in the suit need not file the appeal or the cross-objections. It was observed:
“9……Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross-objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross-objection, though certain finding may be against him. Appeal and cross-objection — both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was the well-settled position of law under the unamended CPC.”
The term person aggrieved was interpreted in Nalakath Sainuddin v. Koorikadan Sulaiman, (2002) 6 SCC 1: 2002 SCC OnLine SC 602 and it was held that an aggrieved party means a person feeling aggrieved by the ultimate decision. A party who has succeeded in securing the relief is not a party aggrieved even though a finding may be against him. It was observed at page 11:
17.….. (iii) “Any aggrieved party”, the expression employed in Section 20(1), means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for, is not a party aggrieved though the order contains a finding or two adverse to him. The respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded against him. However, if the non-petitioning party feels entitled to a more beneficial or larger order in his favour but was allowed a lesser or smaller relief, then to the extent of claiming the more beneficial or larger relief, he should have filed a revision petition of his own as he was “an aggrieved party” to that extent.
Similarly, it was held in Baldev Singh v. Surinder Mohan Sharma, (2003) 1 SCC 34: 2002 SCC OnLine SC 1040, that an appeal is maintainable only at the instance of a person aggrieved and dissatisfied with the judgment. It was observed at page 38:
10.There is no dispute that as against a decree, an appeal would be maintainable in terms of Section 96 of the Code of Civil Procedure. Such an appeal, however, would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. As noticed hereinbefore, the dispute between the parties was in relation to a property. The first respondent herein, save and except, inter alia, making complaints against the appellant and his wife to their respective employers purported to be relying on or on the basis of the statements made by the appellant herein during cross-examination in the aforementioned suit, had nothing to do with the status of Sarbjit Kaur and the appellant herein as spouses or otherwise.
In the present case, the plaintiff's suit was dismissed, and the decree was passed in the defendants' favour. The defendants could not have been the persons aggrieved, and it was rightly held that the appeal filed by them was not maintainable.
It was submitted that the parties had entered into a compromise before the learned Trial Court vide which they had rescinded their earlier compromise. The learned Trial Court found the plaintiff to be in unauthorised occupation of the defendants' land and failed to deliver possession as per the compromise. This submission will not help the defendants. The defendants had not preferred any counter claim against the plaintiff and no decree could have been passed in their favour. Their remedy lies elsewhere and not in filing an appeal. Thus, the fact that a compromise was effected between the parties will not assist the defendants in getting a decree in their favour.
Therefore, the findings of the Court cannot be said to be the result of complete misreading or misinterpretation of the evidence and material on record. Hence, this substantial question of law is answered accordingly.
Final Order:
In view of the above, the present appeal fails and is dismissed with a cost of ₹10,000/-.
The present appeal stands disposed of, and so also the pending miscellaneous applications, if any.
The record of the learned Courts below be returned along with a copy of this judgment.