BARAJ SETHI Vs. S. JAGANNATH REDDI AND ORS.
HIGH COURT OF ORISSA
S. Jagannath Reddi
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Mohapatra, J. -
(1.) THIS appeal has been filed by Defendant No. 1 against the reversing judgment of the lower appellate Court arising out of a suit for declaration of title and for recovery of possession. Bahadur and Beero were two brothers. Beero having died his widow Subainya is Defendant No. 2. Bahador had two sons, Bhaigo and Budhia. Budhia died issueless. Magi, the daughter of Bhaigo, is Defendant No. 5. Defendant No. 4 is the daughter's son of Bhaigo. Bhaigo was long unhealed of since he had been to Rangoon. The Plaintiff bases his title on a registered sale -deed dated 16 -11 -49 executed by Defendants 4 and 5. The defence however is to the effect that the property in dispute fell to the share of Beero and after Beero's death it was Defendant No. 2 who was in possession of the suit property and executed a sale -deed on 13.11.45 in favour of Defendant No. 1. Defendant No. 3 was indeed a stranger to any of these transactions; but the allegation is to the effect that Plaintiff has been dispossessed by all the three Defendants and he has made a common prayer for recovery of possession as against all the Defendants. The prayer for declaration of title is also a common prayer as against the Defendants.
(2.) THE trial Court dismissed the Plaintiff's suit on the finding that the Plaintiff had not been able to prove his title to the disputed property. The lower appellate Court has reversed this finding and has given a decree in favour of the Plaintiff on the basis that the Plaintiff has title to the property. Mr. M.S. Rao, appearing on behalf of the Appellant (Defendant No. 1) has taken a point which can dispose of the entire appeal without going into the merits of the case. By the order dated 14.7.53 before the lower appellate Court, the appeal was not pressed against Defendant No. 5. The appeal therefore stood dismissed against Defendant No. 3. Mr. Rao's contention is that if the appeal stood dismissed against Defendant No. 3, the judgment and decree against Defendant No. 3 of the trial court must stand. Now on the dismissal against Defendant No. 5 the appeal becomes incompetent and cannot proceed, because if the appeal is allowed and the Plaintiff's title is found, it leads to an inconsistent finding and anomalous position. There cannot be two finding in the same suit when the Plaintiff bases his title on the selfsame document against all the Defendants. He does not put forth any special or distinct Case against them regarding his title. Now if the finding that the Plaintiff has not been able to prove his title is bound to stand, it is not possible for any Court in the same suit to come to a different finding that the Plaintiff has been able to prove his title the title being the same and common as against all. To me, as it appears, the point must prevail and this appeal must succeed.
(3.) MR . Murty, appearing on behalf of the Respondents, however contends that the present appeal not having been brought by Defendant No. 3 is incompetent. The point has no substance in the face of the provisions of order XLI, Rule 4 , Code of Civil Procedure, as all the three Defendants were affected jointly by the decree passed against them, each one of them has got the right of appeal and if the present appeal succeeds then the entire decree passed by the lower appellate Court must be set aside.;
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