Gujarat High Court
Janakbhai Jethabhai Patel … vs Gunvantbhai Jethabhai Patel … on 21 July, 2026
NEUTRAL CITATION
C/FA/1749/2001 CAV JUDGMENT DATED: 21/07/2026
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Reserved On : 06/07/2026
Pronounced On : 21/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1749 of 2001
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2009
In R/FIRST APPEAL NO. 1749 of 2001
With
R/CROSS OBJECTION NO. 240 of 2009
In
R/FIRST APPEAL NO. 1749 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
✔
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JANAKBHAI JETHABHAI PATEL DECD.THROUGH THE LRS & ANR.
Versus
GUNVANTBHAI JETHABHAI PATEL DECD.THROUGH THE LRS & ORS.
==========================================================
Appearance:
MR CHINMAY M GANDHI(3979) for the Appellant(s) No. 1.1
MS RUMI M GANDHI(3472) for the Appellant(s) No. 1.1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 1
MR VIKRAM J THAKOR(2221) for the Defendant(s) No. 1.1,1.2,1.3
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. This appeal under Section 96 of the Code of Civil
Procedure, 1908 (for short “the Code”), has been preferred by
the appellant – original defendant assailing the judgment and
decree dated 30.11.200 passed by learned City Civil Court in
Civil Suit No.5987 of 1987, whereby the suit filed by the
plaintiff came to be dismissed.
1.1 As discernible from the written submissions filed by
the learned advocate for the appellant, the present appeal has
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been preferred against the observations and findings recorded
by the learned City Civil Court on Issue Nos.1, 2, 7, 8, and 8A.
1.2 Notice of the appeal was duly served upon the
plaintiff. Pursuant thereto, plaintiff filed Cross Objection
under Order XLI Rule 22 of the Code of Civil Procedure, 1908
(for short “the Code’), challenging the judgment and decree.
2. For the sake of brevity and convenience, the
parties are referred to by their original status before the
learned City Civil Court.
FACTUAL MATRIX:
3. The brief facts of the case, as emerging from the
impugned judgment, are as under:
3.1 The plaintiff and defendant are real brothers and
the son of deceased Jethalal Laldas Patel, who expired on
02.08.1974, leaving behind the plaintiff and defendant and
other Class-I legal heirs.
3.2 The subject matter of the suit is a bungalow
constructed on Sub-plot No.6B of the Sarvodaya Colony
Co-operative Housing Society Limited (hereinafter referred to
as “the suit property”). The said Sub-plot No.6B was
registered in the name of the defendant as a member of the
Co-operative Housing Society in the year 1964 and has
continued to stand in his name ever since.
3.3 According to the plaintiff, deceased Jethalal Laldas
Patel executed his last Will on 08.08.1969. The plaintiff
contends that the Will, inter alia, recites that although Sub-
plot No.6B and the bungalow constructed thereon stand in the
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name of defendant, they were purchased out of the funds of
the Hindu Undivided Family (HUF) in the name of the elder
son, namely, defendant.
3.4 During the lifetime of the deceased Jethalal Laldas
Patel, defendant occupied the ground floor of the suit
property, whereas plaintiff occupied the first floor, and both
continued to remain in possession of their respective portions.
3.5 Relying upon the aforesaid Will, plaintiff further
contended that the sub-plot and the bungalow were purchased
with the assistance of a loan, the installments of which were
paid equally by plaintiff and defendant. It was also contended
that both brothers have contributed equally towards the
administrative expenses of the Society and jointly used the
margin land, compound wall, gates, and other common
amenities.
3.6 The cause of action for filing the suit arose when
the defendant, without obtaining requisite permission from
the Ahmedabad Municipal Corporation (AMC), constructed a
small room on the margin land of Sub-plot No. 6B and
obstructed the plaintiff from freely using the said margin land.
3.7 In the backdrop of the aforesaid facts, original
plaintiff – Gunvantbhai Jethalal Patel, prayed for the following
reliefs as set out in paragraph 12 of the plaint:
“12.A. We the Plaintiffs and the Defendants had become
equal owners of the property that is Bungalow No. 6-B,
Suryodaya Co.Op. Housing Society Ltd., Nr. Sardar Patel
Colony, Ahmedabad having plot-area of 300 square yard
whereon the construction on each of the floors, i.e. thePage 3 of 28
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ground floor and the first floor, measures at 100 square
yard. Vide the oral partition, the ground floor was conveyed
to the Defendant and the first floor to we the Plaintiffs. The
margin area and other amenities in the bungalow, such as
water connection, sewage lines etc., are of common
ownership and usage. In accordance with the partition so
effected, we, the plaintiffs and the defendants, have been in
continuous possession and enjoyment of the said property.
However, the defendant fails to execute the partition deed in
accordance therewith, giving rise to disputes concerning our
respective rights. With a view to prevent such disputes also,
the Hon’ble Court may be pleased to issue orders to the
effect that the Defendants execute a partition-deed for the
disputed property and bear half of its cost and on failing to
do so, a Court-Commissioner may be appointed by the
Hon’ble Court, cost of which is to be borne by the
Defendant.
For the purpose of this relief, the suit is valued at Rs. 5/-,
and a court fee stamp of Rs. 30/- has been affixed thereto.
B. As per the Partition effected, the open margin space,
compound wall, water-tanks, sewage-lines, the existing
water-connections and other amenities are of common
ownership. As it is the Defendant who is the member of the
society, he has been using these amenities as if they are of
his sole and absolute ownership. Since it is necessary to
restrain the defendant from doing so, this Honorable Court
may be pleased to grant a permanent injunction restraining
the defendant from carrying out any digging or construction
work in the margin space on an exclusive ownership basis
without the written consent of the plaintiff; and further
restraining the defendant from using amenities such as
drainage, water taps, etc., in a manner that causes damage
to our undivided half-share or deprives us of our rights, and
that the defendant may not commit such acts directly or
indirectly. Presently, there is one common water connection.
Until a second water connection is obtained, this Honorable
Court may be pleased to grant a permanent injunction
directing the defendant to permit We the plaintiffs to utilize
the water during half of the current water supply hours, and
restraining the defendant from using or storing water from
this connection, either directly or indirectly, during such
hours.
For the purpose of this relief, the suit is valued at Rs. 5/-,
and a court fee stamp of Rs. 30/- has been affixed thereto.
C. The Hon’ble Court may be pleased to grant the cost of
this suit in favor of we the Plaintiffs.
D. The Hon’ble Court may be pleased to grant any other
relief deemed fit.
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3.8 By filing the written statement at Ex.33, original
defendant resisted the suit. Apart from denying the averments
made in the plaint, defendant pleaded ignorance regarding
the execution of the Will. The defendant further contended
that he is the exclusive owner of the suit/bungalow and the
plaintiff has no right, title, or interest therein.
3.9 The defendant asserted that he had constructed
the bungalow from his own funds and, therefore, is the
exclusive owner and is in lawful possession thereof. It was
further contended that the plaintiff, being the younger
brother, has been residing in the bungalow only with the
permission of defendant and, therefore, has no independent
right, title, or interest in the suit property. According to the
defendant, during his lifetime, deceased Jethalal had paid a
certain amount to the plaintiff in the year 1960, but the
plaintiff squandered the said amount. As the plaintiff had no
alternative accommodation, he requested his father for
permission to reside in the bungalow and, accordingly, started
residing on the first floor along with the deceased-Jethalal.
3.10 It was, therefore, contended that the plaintiff is in
possession of the suit property only with the consent of
defendant and in accordance with the wishes of the deceased
Jethalal. The plaintiff’s possession is that of a permissive
occupier and cannot mature into any legal right adverse to the
title of the defendant. It was also contended that the suit is
barred by limitation and is further barred by the provisions of
the Benami Transactions (Prohibition) Act, 1988.
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3.11 The learned Trial Court framed the necessary
issues and permitted both parties to lead oral as well as
documentary evidence. Upon appreciation of the evidence on
record, the learned Trial Court dismissed the suit.
3.12 Being aggrieved, plaintiff preferred First Appeal
No.6957 of 1999. The defendant also preferred First Appeal
No.6757 of 1999 before this Court. Both the appeals were
heard together, and by a common judgment dated 20.01.2000,
this Court set aside the judgment and decree and remanded
the matter to the learned Trial Court for a fresh decision in
accordance with law.
3.13 Pursuant to the order of remand, the learned Trial
Court conducted a fresh trial and, by judgment and decree
dated 30.11.2000, again dismissed the suit.
3.14 Being aggrieved by the observations and findings
recorded on certain issues, defendant preferred the present
First Appeal. The plaintiff, though not having preferred any
appeal against the judgment and decree, filed cross-objections
under Order XLI Rule 22 of the Code of Civil Procedure
challenging the findings of dismissal of the suit recorded by
the learned Trial Court.
APPEARANCE OF LEARNED ADVOCATES FOR THE RESPECTIVE
PARTIES:
4. Heard learned advocate Mr. Chinmay Gandhi
appearing for the appellant and learned advocate Mr.VikramPage 6 of 28
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Thakor appearing for the respondents have filed their written
submissions. The written submissions filed by the learned
advocates for both the parties are taken on record.
SUBMISSION OF LEARNED ADVOCATE FOR THE APPELLANT:
5. In addition to his oral submissions, learned
advocate Mr. Chinmay Gandhi has tendered written
submissions along with the relevant citations. His
submissions, in brief, are as follows:
5.1 That the learned Trial Court committed a serious
error in recording common findings on Issue Nos. 1 to 4. It is
submitted that the documentary evidence on record, more
particularly Exs.130 to 134 and Exs. 138 to 194, unequivocally
establishes that the suit property, namely Sub-plot No.6-B, the
bungalow, was allotted to the defendant by an allotment letter
dated 25.11.1963. It is further submitted that the defendant
has produced municipal tax bills issued by AMC, which clearly
indicate that the suit bungalow was purchased and
constructed by defendant. Therefore, according to the
appellant, the learned Trial Court committed a manifest error
in holding that the suit property was the self-acquired
property of the deceased father Jethalal Laldas Patel.
5.2 That the learned Trial Court committed a serious
error in accepting the Will without the same being duly
proved in accordance with law and, thereafter, relying upon
the recitals therein to conclude that the suit/bungalow was
the self-acquired property of the deceased. It is contendedPage 7 of 28
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that a Will cannot be treated as duly proved merely because it
is registered, particularly when its genuineness is under
challenge. Registration may lend a degree of authenticity to a
document; however, it does not create an irrebuttable
presumption regarding its genuineness. It is further submitted
that the registration of a Will does not render it sacrosanct or
immune from challenge. Merely examining an attesting
witness would also not be sufficient to establish the
genuineness of the Will, especially when the Will is
surrounded by suspicious circumstances.
5.3 That the Will is the sole document on the basis of
which the plaintiff has founded the suit and claimed the
reliefs. In the absence of proof of the Will in accordance with
Section 63 of the Indian Succession Act, read with the
applicable provisions governing proof of Wills, the document
remains nothing more than a piece of paper and cannot confer
or establish any title in favour of the deceased in respect of
the suit property.
5.4 That the learned Trial Court ought to have
appreciated that the plaintiff had hopelessly failed to establish
that the deceased father Jethalal Laldas Patel had any source
of income at the time when the suit bungalow was purchased
in the year 1963. On the contrary, defendant has produced
overwhelming documentary evidence to establish that he had
been earning since the year 1956 and continued in service
until his retirement in the year 1993.
5.5 That, admittedly, plaintiff was pursuing his studies
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until the year 1967 and had no independent source of income
to contribute towards the repayment of loan obtained for the
construction of bungalow. In the absence of any documentary
evidence, learned Trial Court erroneously accepted that the
deceased Jethalal Laldas Patel had obtained a loan of
Rs.5,000/- from the Society and thereafter another loan of
Rs.15,000/-, aggregating to Rs.20,000/-. Such a finding is
contrary to the plaintiff’s own admission in his deposition at
Ex.52, wherein he admitted that his father had stopped
working around the years 1955-1956 and the partnership
business commenced by him thereafter did not continue for
long. It is further admitted that the deceased retired from the
partnership and thereafter lived the life of a retired person.
5.6 That the learned Trial Court erroneously accepted
the existence of a HUF, ignoring the evidence on record.
According to the appellant, the eldest brother, Chhotalal, had
separated from the family about 35 years earlier, as is evident
from the recitals in the Will. Therefore, in the absence of all
the coparceners constituting a joint family, the finding
regarding the existence of HUF is legally unsustainable.
5.7 That, on a simple arithmetical calculation,
deceased Jethalal Laldas Patel would have been about 94
years of age at the time of his death on 03.08.1974 and,
therefore, about 83 years old in the year 1963. In such
circumstances, it is highly improbable that any person or
institution would have advanced a loan of Rs.20,000/- to a
person of such advanced age.
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5.8 That, although the loan is alleged to have been
obtained in the name of the deceased Jethalal Laldas Patel,
the Co-operative Housing Society neither admitted him as a
member nor recorded his name in its register. On the
contrary, defendant alone was admitted as a member of the
Society, and the allotment letter was also issued in his favour.
These circumstances, according to the appellant, clearly
establish that the suit property is the self-acquired property of
the defendant.
5.9 That, both the attesting witnesses to the alleged
Will are close relatives. One of them, namely Mr. Popatlal
Mangubhai Parikh, is the father-in-law of the plaintiff, who is
the principal beneficiary under the alleged Will, whereas
another son has been disinherited thereunder. These
circumstances, according to the appellant, create serious
suspicion regarding the genuineness of the Will, and
therefore, the plaintiff, being the propounder of the Will, was
under a legal obligation to dispel such suspicious
circumstances by leading cogent and convincing evidence.
5.10 That the attesting witness examined at Exh. 80
admitted that he did not know the deceased Jethalal Laldas
Patel prior to four days before the execution of the alleged
Will. This circumstance, according to the appellant, further
strengthens the suspicion surrounding the execution and
genuineness of the Will.
5.11 That where a Will is surrounded by suspicious
circumstances, it cannot be accepted as having been validly
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executed merely on the basis of its registration or the
examination of an attesting witness. It is the settled position
of law that the propounder of the Will must satisfactorily
remove all suspicious circumstances and establish that the
testator executed the Will voluntarily, with a sound disposing
state of mind and with full knowledge of its contents.
5.12 In support of his submissions, he has relied upon
the following decisions:-
(i) Ramesh Chand (D) Thr. Lrs. V. Suresh Chand & Anr.
reported in 2025 INSC 1059;
(ii) Kavita Kanwar V. Pamela Mehta reported in AIR
2020 SC 2614;
(iii) Leela & Ors. V. Muruganantham & Ors. reported in
2025 INSC 10;
(iv) Jagdish Chand Sharma V. Narain Singh Saini
(Dead) through his LRs & Ors. reported in AIR 2015 SC
2149;
(v) Jaswant Kaur V. Amrit Kaur reported in AIR 1977
Supreme Court 74;
(vi) H Venkatachala Venkatachala Iyengar V. B. N.
Thimmajamma reported in AIR 1959 Supreme Court
443;
5.13 That the plaintiff’s suit, seeking partition of the suit
property and a direction to the defendant to execute a
partition deed, is barred by the provisions of the Benami
Transactions (Prohibition) Act, as admittedly the ownership of
the suit property/bungalow stands in the name of the
defendant alone. In support of this submission, reliance was
placed upon the judgment of this Court in Paragbhai M Desai
since Decd. through his heirs V. Dahyabhai M. Desai since
Decd. through his heirs reported in 2019 JX (Guj)618 as well
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as the judgment of the Division Bench of this Court in Heirs of
Vrajlal J. Ganatra V. Heirs of Parshottam S. Shah & Anr.
reported in 1996 (1) GLH 65.
5.14 Lastly, it is contended that the plaintiff’s suit was
clearly barred by law, as before claiming any right in the
immovable property on the basis of a Will, it was incumbent
upon the plaintiff to obtain probate or letters of
administration. Such proceedings ought to have been initiated
within the prescribed period of limitation under Article 137 of
the Limitation Act. However, in the present case, plaintiff,
without obtaining probate or letters of administration, directly
relied upon the Will of deceased Jethalal Laldas Patel and
sought the relief of partition after more than 13 years from
the date of his death. Therefore, according to the appellant,
the suit is hopelessly barred by limitation.
5.15 In view of the aforesaid submissions, the appellant,
who is the original defendant, urged this Court to reverse the
findings recorded on Issue Nos.1, 2, 7, 8 and 8A, while
maintaining the final conclusion of dismissing the suit.
SUBMISSION OF LEARNED ADVOCATE FOR THE RESPONDENT:
6. In addition to his oral submissions, learned
advocate Mr.Vikram Thakor has tendered written submissions
along with the relevant citations and opposed the First Appeal
and sought the reliefs prayed for in the Cross Objection. His
submissions, in brief, are as follows:
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6.1 It was primarily contended that no adverse decree
had been passed against the defendant-appellant. The appeal
has been preferred merely against certain findings and
observations recorded by the learned Trial Court, whereas the
suit itself stood dismissed. Since no decree has been passed
against the defendant-appellant, it was submitted that an
appeal under Section 96 of the Code is not maintainable. In
support of this contention, strong reliance was placed upon
the judgment of the Hon’ble Supreme Court in Devaram &
Anr. v. Ishwarchand & Anr., reported in (1995) 6 SCC 733.
6.2 That an appeal under Section 96 of the Code lies
only against a decree. Mere findings recorded by the learned
Trial Court while dismissing the suit do not constitute a
“decree” within the meaning of Section 2(2) of the Code of
Civil Procedure. At the most, Order XLI Rule 22 of the Code
enables a respondent to challenge adverse findings without
filing a separate appeal. Therefore, according to the
respondent, defendant could not have preferred the present
appeal merely to seek reversal of certain findings recorded by
the learned Trial Court.
6.3 That, from the very beginning, both, plaintiff and
the defendant, have been in joint possession of the bungalow.
The plaintiff’s family has been residing on the first floor,
whereas the defendant’s family has been residing on the
ground floor. Such joint possession continues even today.
These circumstances, coupled with the evidence on record,
establish that although the bungalow was purchased in the
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name of defendant, the consideration was paid by their father
from the funds of HUF. The housing loan was repaid by the
plaintiff and defendant in equal proportion. Consequently, the
bungalow is a joint family property, as is evident from Exs. 33
and 53.
6.4 Referring to the judgment of the Hon’ble Supreme
Court in Subraya M.N. v. Vittala M.N. & Ors., reported in
(2016) 8 SCC 705, learned advocate Mr. Thakore submitted
that where property is purchased in the name of one family
member for the benefit of the entire family, it cannot be
treated as the self-acquired property of that individual. It is
further submitted that the defendant had earlier instituted a
suit against the plaintiff for recovery of possession on the
ground that the plaintiff was only a permissive occupant.
However, defendant subsequently abandoned the said
proceedings, which clearly indicates that he was aware that
the bungalow was jointly owned by the plaintiff and defendant
and was liable to be partitioned. It is also submitted that the
Will executed by deceased father Jethalal has been duly
proved through the evidence of an attesting witness. The
evidence establishes that the bungalow was the self-acquired
property of deceased father Jethalal and under his Will, the
plaintiff and defendant are entitled to equal shares therein.
6.5 It is submitted that, in view of the judgments of the
Hon’ble Supreme Court in Clarence Pais & Ors. v. Union of
India, reported in (2001) 4 SCC 325, and this Court in
Minaxiben Shashikantbhai Patel v. District Collector,
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Gandhinagar, reported in (2007) 1 GLR 277, probate is not
mandatory in the State of Gujarat for establishing rights
under a Will. In any case, plaintiff has duly proved the
execution of the Will. The Will is a registered document and
its genuineness stands established. It is further submitted that
the Will is only a collateral document and the plaintiff has not
sought any independent relief on the basis of the Will.
Therefore, according to the respondent, the question whether
probate has been obtained is of no consequence.
6.6 With regard to the Cross Objection, it is submitted
that the plaintiff has established his undivided share in the
suit property under the Will of the father Jethalal. Therefore,
the findings of the learned Trial Court that no decree for
partition could be granted without determining the share of
the third brother, Hiralal, is erroneous and legally
unsustainable.
6.7 Apart from the aforesaid judgments, learned
advocate Mr. Thakor also relied upon the decisions in Chief
Conservator of Forest, Government of Andhra Pradesh v.
Collector, reported in (2003) 3 SCC 472, and State of Punjab
v. Bhagwantpal Singh alias Bhagwant Singh (deceased)
through LRs, reported in 2024 INSC 518.
6.8 Both the aforesaid judgments were relied upon to
contend that possession is a strong indicator of ownership.
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6.9 On the basis of the aforesaid submissions, learned
advocate Mr.Thakor prayed that the First Appeal be dismissed
and the Cross Objection be allowed and consequently
plaintiff’s suit be allowed.
THE ANALYSIS:
7. Regard being had to the rival submissions of
learned advocates of both sides and considering the impugned
judgment and decree as well as the record and proceedings,
the questions arise that whether defendant, who succeeded in
the suit as suit is dismissed can maintainable in appeal under
Section 96 of the Code to reverse mere finding of same issue?
Second question arise that whether plaintiff who completely
failed in suit as suit has been dismissed in toto, can by way of
cross objection under Order XLI Rule 22 of the Code seek
recovery of decree and to seek relief that plaintiff’s suit be
allowed?
8. The Special Civil Suit No.5987 of 1987 was
instituted by the plaintiff seeking the reliefs referred to
hereinabove. The suit ultimately came to be dismissed. The
plaintiff, despite dismissal of the suit, did not prefer a
separate appeal under Section 96 of the Code challenging the
legality and correctness of the judgment and decree passed by
the Trial Court. Instead, it is the defendant who has preferred
the present First Appeal under Section 96 of the Code against
the decree dismissing the suit.
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9. By way of the present First Appeal, defendant
seeks reversal of the findings recorded on Issue Nos. 1, 2, 7, 8
and 8A, as specifically stated in paragraph 23 of the written
submissions.
10. The plaintiff, who did not challenge the impugned
judgment and decree by filing a First Appeal, has, however,
filed Cross-Objections under Order XLI Rule 22 of the Code
seeking complete reversal of the impugned judgment and
decree and a decree in his favour.
11. At the outset, it would be apposite to refer to
Section 2(2) of the Code of Civil Procedure, which defines the
expression “decree” as under:
“2(2)”decree” means the formal expression of an
adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard
to all or any of the matters in controversy in the suit and
may be either preliminary or final. It shall be deemed to
include the rejection of a plaint and the determination of any
question within [* * *] section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal
from an order, or
(b) any order of dismissal for default.
Explanation .-A decree is preliminary when further
proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication
completely disposes of the suit. It may be partly preliminary
and partly final;
12. A “decree” means the formal expression of an
adjudication which, so far as the Court expressing it is
concerned, conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the
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suit. It may be either preliminary or final. It includes the
rejection of a plaint but does not include any adjudication
from which an appeal lies as an appeal from an order or any
order of dismissal for default.
13. Section 96 of the Code, which provides the remedy
of First Appeal from original decree, reads as under:
96. Appeal from original decree .- (1) Save where otherwise
expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie from every
decree passed by any Court exercising original jurisdiction
to the Court authorized to hear appeals from the decisions of
such Court.
(2) An appeal may lie from an original decree passed ex
parte .
(3) No appeal shall lie from a decree passed by the Court
with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a
decree in any suit of the nature cognizable by Courts of
Small Causes, when the amount or value of the subject-
matter of the original suit does not exceed [ten thousand
rupees.]
14. Section 96 of the Code provides for Appeal from
every original decree passed by a Court exercising original
jurisdiction. The Legislature has consciously used the
expression “every decree”, thereby making it clear that the
statutory remedy of appeal is available only against a decree,
whether passed after contest or ex parte, and not merely
against the findings recorded while deciding the issues.
15. It would also be apposite to refer to Order XLI Rule
22 of the Code, which permits the filing of Cross Objections.
The said provision reads as under:
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22. Upon hearing respondent may object to decree as if
he had preferred separate appeal.–(1) 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; and may also
take any cross-objection] to the decree which he could have
taken by way of appeal provided he has filed such objection
in the Appellate Court within one month from the date of
service on him or his pleader of notice of the day fixed for
hearing the appeal, or within such further time as the
Appellate Court may see fit to allow.
[Explanation. –A respondent aggrieved by a finding of the
Court in the judgment on which the decree appealed against
is based may, under this rule, file cross-objection in respect
of the decree in so far as it is based on that finding,
notwithstanding that by reason of the decision of the Court
on any other finding which is sufficient for the decision of
the suit, the decree, is, wholly or in part, in favour of that
respondent.]
(2) Form of objection and provisions applicable thereto.
–Such cross-objection shall be in the form of a
memorandum, and the provisions of rule 1, so far as they
relate to the form and contents of the memorandum of
appeal, shall apply thereto.
[***]
(4) Where, in any case in which any respondent has under
this rule filed a memorandum of objection, the original
appeal is withdrawn or is dismissed for default, the objection
so filed may nevertheless be heard and determined after
such notice to the other parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent persons
shall, so far as they can be made applicable, apply to an
objection under this rule.”
16. Order XLI Rule 1 of the Code provides that every
appeal shall be preferred in the form of a memorandum
signed by the appellant or his pleader and shall be
accompanied by a copy of the judgment. Order XLI Rule 1(2)
further provides that the memorandum of appeal shall set
forth, concisely and under distinct heads, the grounds of
objection to the decree appealed against without any
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argument or narrative.
17. Order XLI Rule 22 provides that a respondent,
though he may not have appealed from any part of the decree,
may not only support the decree but may also contend that
the findings recorded against him on any issue ought to have
been in his favour. The Rule further provides the respondent
to take Cross-Objections to that part of the decree which he
could have challenged by way of an independent appeal,
provided such Cross-Objections are filed within the prescribed
period.
18. The Hon’ble Supreme Court, in Devaram & Anr. v.
Ishwarchand & Anr. (supra), in paragraphs 27 to 31, has held
as under:
“27. Thus, an appeal does not lie against mere “findings”
recorded by a court unless the findings amount to a “decree”
or “order”. Where a suit, is dismissed, the defendant against
whom an adverse finding might have come to be recorded on
some issue, has no right of appeal and he cannot question
those findings before the appellate court. (See Ganga Bai v.
Vinay Kumar & Ors. : (1974) 3 S.C.R.882).
28. In Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy
[A.I.R. 1922 P.C.241]. It was observed as under:
“Their Lordships do not consider this will be found an
actual plea of res judicata, for the defendants, having
succeeded on the other plea had not occasion to go further
as to the finding against them: but it is the finding of a
court which was dealing with facts nearer of their ken than
the facts are to the Board now, and it certainly creates a
paramount duty on the appellant to displace the finding, a
duty which they have now been able to perform.”
29.Similar view was also expressed in an earlier decision in
Run Bahadur Singh v. Luchokoer [1885 ILR 11 CAL.301
(P.C.)].
30. The Oudh Chief Court in Pateshwar Din & Anr. v.
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Mahant Sarjudas (A.I.R. 1938 Oudh 18) held that where a
decree in previous suit is wholly in favour of a person and
gives him all the reliefs sought for by him, he has no right of
appeal against the decree so as to enable him to contest any
adverse finding against him in such suit. Hence, such
adverse finding cannot operate as res judicata as against
him in a subsequent suit.
31. The High Court of Andhra Pradesh in Bansi Lal Ratwa v.
Laxminarayan & Anr. [1969 (2) Andhra Weekly Reporter]
and the Full Bench of the High Court of Patna in Arjun Singh
& Anr. v. Tara Das Ghosh & Anr. [A.I.R. 1974 Patna 1] have
taken the view that an appeal would not lie against mere
adverse finding unless such finding would constitute res
judicata in subsequent proceedings. We are, however, not
concerned with this aspect of the matter in the present case
nor are we concerned with the earlier aspect as the plea of
res judicata having not been raised in the written statement,
the appellant cannot be permitted to raise the plea here.
19. In view of the aforesaid settled legal position, the
present appeal preferred by the defendant-appellant merely to
challenge the findings recorded by the learned Trial Court on
Issue Nos. 1, 2, 7, 8 and 8A is not maintainable. The findings
recorded while dismissing the suit do not constitute a
“decree” capable of being challenged by way of an appeal
under Section 96 of the Code or by Appeal From Order.
Consequently, the First Appeal deserves to be dismissed as
not maintainable.
20. The next question that arises for consideration is
whether the Cross-Objection preferred by the original plaintiff
under Order XLI Rule 22 of the Code, seeking a decree in his
favour despite not having challenged the decree dismissing
the suit by filing a separate appeal, whether is maintainable.
21. In Banarsi & Ors. v. Ram Phal, reported in (2003) 9
SCC 606, the Hon’ble Supreme Court, in paragraph 8,
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observed as under:
“8.Sections 96 and 100 of the CPC make provision for an
appeal being preferred from every original decree or from
every decree passed in appeal respectively; none of the
provisions enumerates the person who can file an appeal.
However, it is settled by a long catena of decisions that to be
entitled to file an appeal the person must be one aggrieved
by the decree. Unless a person is prejudicially or adversely
affected by the decree he is not entitled to file an appeal
(See Phoolchand and Anr. v. Gopal Lal, [1967] 3 SCR 153;
Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P) Ltd.,
[1970] 3 SCC 573; Smt. Ganga Bai v. Vijay Kumar and Ors.,
[1974] 2 SCC 393. No appeal lies against a mere finding. It
is significant to note that both Sections 96 and 100 of the
CPC provide for an appeal against decree and not against
judgment.
22. The question, therefore, is whether the respondent-
original plaintiff can, by filing Cross-Objection under Order
XLI Rule 22 of the Code, seek to set aside the entire decree
dismissing his suit and obtain the relief which could have
been claimed only by filing an appeal under Section 96 of the
Code.
23. Before adverting to the aforesaid issue, it would be
appropriate to refer to paragraphs 10, 11 and 12 of the
judgment in Banarsi (supra), wherein the Hon’ble Supreme
Court has explained the scope and effect of Order XLI Rule 22
after its amendment. Relevant paras 10 and 11 read as under:
“10. The CPC amendment of 1976 has not materially or
substantially altered the law except for a marginal
difference. Even under the amended Order 41 Rule 22 sub-
rule (1) a party in whose favour the decree stands in its
entirety is neither entitled nor obliged to prefer any cross
objection. However, the insertion made in the text of sub-
rule (1) makes it permissible to file a cross objection against
a finding. The difference which has resulted we will shortly
state. A respondent may defend himself without filing any
cross objection to the extent to which decree is in his favour;
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must take cross objection. The amendment inserted by 1976
amendment is clarificatory and also enabling and this may
be made precise by analysing the provision. There may be
three situations:-
(i) The impugned decree is partly in favour of the
appellant and partly in favour of the respondent;
(ii) The decree is entirely in favour of the
respondent though an issue has been decided
against the respondent;
(iii) The decree is entirely in favour of the
respondent and all the issues have also been
answered in favour of the respondent but there is
a finding in the judgment which goes against the
respondent.
11. In the type of case (i) it was necessary for the
respondent to file an appeal or take cross objection
against that part of the decree which is against him if
he seeks to get rid of the same though that part of the
decree which is in his favour he is entitled to support
without taking any cross objection. The law remains so
post amendment too. In the type of cases (ii) and (iii)
pre-amendment CPC did not entitle nor permit the
respondent to take any cross objection as he was not
the person aggrieved by the decree. Under the
amended CPC, read in the light of the explanation,
though it is still not necessary for the respondent to
take any cross objection laying challenge to any finding
adverse to him as the decree is entirely in his favour
and he may support the decree without cross objection;
the amendment made in the text of sub-rule (1), read
with the explanation newly inserted, gives him a right to
take cross objection to & finding recorded against him
either while answering an issue or while dealing with an
issue. The advantage of preferring such cross objection
is spelled out by sub-rule (4). In spite of the original
appeal having been withdrawn or dismissed for default
the cross objection taken to any finding by the
respondent shall still be available to be adjudicated
upon on merits which remedy was not available to the
respondent under the unamended CPC. In pre-
amendment era, the withdrawal or dismissal for default
of the original appeal disabled the respondent to
question the correctness or otherwise of any finding
recorded against the respondent.”
24. Worthy reference can be made to the judgment of
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the Uttarakhand High Court in Durga Singh Chauhan & Ors v.
Rajendra Kothiyal & Ors. reported in 2020 AIR (Uttaranchal)
155, in paragraph Nos.14, 15, 17 & 18 observed as under:
“14. The learned counsel for the petitioners submits that in
view of the judgment as reported in 2019 SCC Online SC
1009, State of Andhra Pradesh and others Vs. B. Ranga
Reddy (D) by Lrs and others, particularly a reference has
been made by the learned counsel for the petitioner to the
contents of para 18 of the said judgment, which reads as
under :-
“18) This Court while considering the amendments
made in the Code in the year 1976, held that even
under the amended provisions of Order XLI Rule 22 of
the Code, a party in whose favour the decree stands in
its entirety is neither entitled nor obliged to prefer
any cross objections. However, by an amendment in
Order XLI Rule 22 of the Code, it is permissible to file
cross objections against the finding. The respondent
may defend himself without filing any cross objections
to the extent to which decree is in his favour. The
Court held as under:
“10. The CPC amendment of 1976 has not materially
or substantially altered the law except for a marginal
difference. Even under the amended Order 41 Rule 22
sub-rule (1) a party in whose favour the decree stands
in its entirety is neither entitled nor obliged to prefer
any cross-objection. However, the insertion made in
the text of sub-rule (1) makes it permissible to file a
cross-objection against a finding. The difference which
has resulted we will shortly state. A respondent may
defend himself without filing any cross-objection to
the extent to which decree is in his favour; however, if
he proposes to attack any part of the decree he must
take cross-objection. The amendment inserted by the
1976 amendment is clarificatory and also enabling
and this may be made precise by analysing the
provision. There may be three situations:
(i) The impugned decree is partly in favour of the
appellant and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent
though an issue has been decided against the
respondent.
(iii) The decree is entirely in favour of the respondent
and all the issues have also been answered in favour
of the respondent but there is a finding in the
judgment which goes against the respondent.
11. In the type of case (i) it was necessary for the
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respondent to file an appeal or take cross-objection
against that part of the decree which is against him if
he seeks to get rid of the same though that part of the
decree which is in his favour he is entitled to support
without taking any cross-objection. The law remains
so post-amendment too. In the type of cases ( ii) and
(iii) pre-amendment CPC did not entitle nor permit the
respondent to take any cross-objection as he was not
the person aggrieved by the decree. Under the
amended CPC, read in the light of the explanation,
though it is still not necessary for the respondent to
take any cross-objection laying challenge to any
finding adverse to him as the decree is entirely in his
favour and he may support the decree without cross –
objection; the amendment made in the text of sub-rule
(1), read with the explanation newly inserted, gives
him a right to take cross-objections to a finding
recorded against him either while answering an issue
or while dealing with an issue. The advantage of
preferring such cross-objection is spelt out by sub-rule
(4). In spite of the original appeal having been
withdrawn or dismissed for default, the cross-
objection taken to any finding by the respondent shall
still be available to be adjudicated upon on merits
which remedy was not available to the respondent
under the unamended CPC. In the pre-amendment
era, the withdrawal or dismissal for default of the
original appeal disabled the respondent to question
the correctness or otherwise of any finding recorded
against the respondent.”
15. In the said judgment, it was altogether a different
situation contemplated. It was a situation, where the Court
was interpreting the implications of the provisions
contained under Order 41 Rule 22 of the CPC, where a
party to the proceedings of the Suit in whose favour the
decree stands in its entirety is neither entitled to or obliged
to prefer any cross objection. But, here in the instant case,
it is altogether a different situation. Hence, the situation is
entirely different from the view point that it is the plaintiffs’
appeal, which was preferred by him against the dismissal of
their suit and it is not the defendants’ appeal against the
dismissal of the counter claim and the ratio as propounded
therein and the distinction, which has been carved out is in
relation to the implication of Order 41 Rule 22, it will not be
expanding its ambit to invoke Order 41 Rule 22 of the CPC
in an appeal of plaintiff, challenging rejection of counter
claim without putting a challenge to the rejection of the
Order 8 Rule 6A by filing an independent appeal and
because if in case, Order 41 Rule 22 is only a challenge to
part of finding of decree of suit, in that eventuality, the
order of rejection of Order 8 Rule 6A, it would amount to
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that there is no challenge to the decree rendered in
pursuance to the rejection of Order 8 Rule 6A, thus, the
application by permitting the liberty by filing the cross
objection under Order 41 Rule 22, which is an intention of
the petitioner and implications contemplated under the CPC
and hence, this exception which has to be sought to be
carved out by the petitioner by referring to para 18 of the
judgment would not be attracted in the instant case, hence,
it is declined to be accepted.
17. This Court is slightly apprehensive to accept the
aforesaid ratio for the reason that the said judgment was
considering the propriety of an award as rendered in the
arbitration proceedings under the Arbitration and
Conciliation Act of 1940, wherein, in the said proceedings,
the provisions of the CPC under the old Act was made
applicable. But reference to para 12 on which the reliance
has been made is yet again not dealing with the situation,
which is at hand as to whether “by filing the counter claim
under Order 41 Rule 11 in an appeal preferred by the
plaintiff against the decree whose suit has been dismissed,
can it be used as an alternative platform to challenge a
decree of dismissal of counter claim under Order 8 Rule
6A.” The answer to it by this Court is absolutely in a
negative and against the petitioner that he is bound to file
an independent appeal against the rejection of Order 8 Rule
6A and it cannot be done by camouflage by filing a counter
claim under Order 41 Rule 22 in an appeal of plaintiff
against dismissal of suit, which has been preferred in an
appeal preferred by the plaintiff against the dismissal of his
suit. The reason being since the counter claim under Order
8 Rule 6A is decided as an independent Suit, which takes
the shape of decree, it would only be challenged by way of
independent appeal and not under Order 41 Rule 22 of the
CPC.
18. An identical issue was dealt by Kerala High Court in a
judgment reported in 2011 (1) Civil Court Cases 314
(Kerala), Thomas Vs. Sudha, wherein, the Court has held as
under :-
“Civil Procedure Code, 1908, O.41 R.22, O.8 R.6 – Suit as
well as counter claim dismissed – Plaintiff filed appeal
against dismissal of suit – Defendant cannot question the
correctness of dismissal of counter claim by way of cross
objections – Counter claim for all intent and purposes is a
suit and dismissal of same gives rise to a distinct decree –
Against dismissal of a counter claim, only an appeal lies.”
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25. Thus, by filing Cross-Objection, respondent may
challenge that part of the decree which is adverse to him or
support the decree while assailing the findings recorded
against him. However, where the plaintiff has failed to obtain
any decree in his favour and has not preferred appeal under
Section 96 of the Code, he cannot, by way of Cross-Objection
alone, seek the substantive relief which could have been
claimed only through an independent appeal against the
decree.
26. The right to file Cross-Objection is incidental to,
and not independent of, the substantive right of appeal.
Where the decree is partly in favour of one party and partly
against him, such party may choose not to file an appeal and
may rest satisfied with the partial success. However, if the
opposite party challenges the decree by filing an appeal, the
respondent may then exercise his right by filing Cross
Objection against the adverse part of the decree. Thus, the
substantive right is the right of appeal, whereas the filing of
Cross Objection is merely a matter of procedure.
27. The finding of the Hon’ble Supreme Court in
Jamshed Hormusji Wadia V. Port of Mumbai reported in
(2004) 3 SCC 214, as under:-
“A person who has entirely succeeded before a court or
tribunal below cannot file an appeal solely for the sake of
clearing himself from the effect of an adverse finding or an
adverse decision on one of the issues as he would not be a
person falling within the meaning of the words ‘person
aggrieved’. In an appeal or revision, as a matter of general
principle, the party who has an order in his favour, is
entitled to show that even if the order was liable to be set
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could be sustained by reversing the finding on some other
ground which was decided against him in the court below.”
28. In the backdrop of the aforesaid legal position,
neither the First Appeal nor the Cross-Objection are
maintainable. The plaintiff, having failed to challenge the
decree dismissing the suit by filing an appeal under Section
96 of the Code, cannot seek to assail the said decree by way of
Cross Objection. Likewise, the defendant cannot maintain a
First Appeal under Section 96 of the Code merely to challenge
the findings recorded by the learned Trial Court in the
absence of any decree operating against him.
THE CONCLUSION:
29. In view of the aforesaid legal position, this Court
finds no merit in either the First Appeal or the Cross
Objection. Accordingly, First Appeal and Cross-objection
stand dismissed. Interim relief, if any, stands vacated. R&P, if
any, be sent back to the concerned Court.
30. Connected Civil Application, if any, does not
survive and stands disposed of accordingly.
(J. C. DOSHI,J)
MANOJ
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