A. P. Singh, J. - (1.) These two appeals arise from the same suit being suit No. 398 of 1982. In the suit, appellants of Second Appeal No. 2095 of 1989, namely, Smt. Asharfi, Smt. Rameshwari, Satya Dev and Ram Avtar were defendant Nos. 1 to 4, whereas Sohan Lal appellant of Second Appeal No. 416 of 1990 was defendant No. 5. The suit was filed by the plaintiff-respondent, Mukut Lal, claiming injunction against the defendant Nos. 1 to 4 so as to restrain them from demolishing staircase (Zeena) marked by letters 'a, 'ba', 'sa' and 'da' and from interfering with his possession over the said Zeena. According to the plaint case of Mukut Lal, Sohan Lal-defendant No. 5 was using the Zeena with his permission though he had no right or title in the said Zeena. He was made formal party though no relief was claimed against him. Against the decree passed by the trial Court, appeal was filed by defendant Nos. 1 to 4, which is Appeal No. 206 of 1983. The appeal of defendant Nos. 1 to 4 was dismissed. However, while dismissing the appeal, the first appellate Court also set aside the finding which was recorded by the trial Court in favour of Sohan Lal, his brother. Because of setting aside of the finding about the joint ownership of Zeena by him and Mukut Lal, Sohan Lal-defendant No. 5 has filed Second Appeal No. 416 of 1990. Since common questions for fact and law are involved in both the appeals, they are being decided by a common judgment. Facts of the case so far as it is necessary for deciding the appeals are concerned, are as follows: Mukut Lal, plaintiff claimed to be the owner in possession of the Zeena, which according to him, he with his brother purchased from Smt. Rameshwari Devi and Smt. Asharfi Devi by sale-deed dated 1. 2. 1964 along with land shown in the map. Sohan Lal used the zeena with his permission though he too had no concern with it. He very recently came to know that the defendant Nos. 1 to 4 had filed some case against Sohan Lal claiming title in the zeena and in that connection want to demolish it. Sohan Lal claimed that defendant Nos. 1 to 4 were not the owners of the whole of the zeena in which they had only half share; hence they could only sell their half share in the zeena. It was also claimed that as per the trial court's decree passed in suit No. 184/74, he too became owner of half share in the zeena. It was claimed that plaintiff Mukut Lal was fully aware of the litigation between defendant Nos. 1 and 2 and defendant no. 5, hence he is estopped from taking any objection against it. Defendant nos. 1 to 4 filed their separate written statement and denied the plaint case. They stated that the zeena in question was never sold to the plaintiff by them and what was sold was only land measuring 61' x 21'3". There was Ab-chak land behind the zeena in straight line which was called a Aarazi Zeena', it was for this reason that the words Aarazi Zeena', were used in the sale deed. The word thus related to the land lying behind the zeena and not to the zeena. It was also stated that the dispute about the zeena subject-matter of suit No. 184/74 which was finally decided between them and Sohan Lal hence the plaintiff had no concern with the zeena in suit. Trial Court decreed the suit on the finding that the defendant Nos. 1 to 4 had no concern with the zeena which was purchased by plaintiff and defendant No. 5 vide sale deed dated 1. 2. 1964 and it has become the joint property of plaintiff and defendant No. 5. First appeal was filed by the appellant challenging the decree passed in favour of the plaintiff and it was maintained by the appellants that Mukut Lal was wrongly held owner of the zeena with which he had no concern. Mukut Lal too without filing any appeal or cross objection challenged in the appellate court Munsif's finding that he was the joint owner of the zeena with Sohan Lal. The plaintiff maintained that Sohan Lal had no concern with the zeena which belonged exclusively to him and the Munsif had wrongly held Sohan Lal as its joint owner along with the plaintiff. An objection was also raised on Sohan Lal's behalf in the first appellate court on the ground that since neither appeal nor cross objection had been filed by Mukut Lal, the plaintiff, against the finding recorded by the Munsif, therefore, findings which had been recorded in his favour could not be legally questioned in the appeal filed by defendant Nos. 1 to 4 against the plaintiff. The first appellate court, however, placing reliance on B. D. Agarwal v. Smt. Radha Devi, AIR 1989 Allahabad 133, held that without there being any cross objection or appeal from the plaintiff- respondent, he can question trial court's findings which may have recorded against him. The first appellate court was also of the view that since no relief was claimed by Mukut Lal against Sohan Lal hence Mukut Lal was not required to file either cross objection or appeal against Sohan Lal. Objection raised on behalf of Sohan Lal that the one respondent of an appeal cannot file cross-objection against another respondent of that appeal as laid down by the Supreme Court in Mahant Dhangiri v. Madan Mohan, AIR 1988 SC 54 was distinguished by the first appellate court on the ground that since Mukut Lal had not filed a cross objection, the dictum of the Supreme Court was not applicable.
(2.) IN appeal No. 2095 of 1989, which has been filed under Section 100 of the Code of Civil Procedure, 1908 defendants 1 to 4 have taken exception to the view which has been expressed by the courts below on issue No. 1 that the sale-deed executed by them on 1. 2. 1964 in favour of the plaintiff also included the disputed zeena apart from the land admeasuring 61' x 21' 3". It was con tended by the learned counsel on behalf of appellants that the courts below have il legally read/interpreted the sale deed dated 1. 2. 1964 (Ex. 1) so as to illegally include in it a property which was not at all its subject-matter; according to the learned counsel what sold was specifically described in the map which had been appended to the sale deed (Ex. 1) and also by giving its boun daries and measurements in the sale deed and nothing else was sold. On the other hand, on behalf of the plaintiff Mukut Lal it was asserted by his learned counsel that the zeena in dispute was specifically described in the sale deed as the property sold along with the land admeasuring 61' x 21' 3". It was emphasised that the measurement which was given in the sale deed was only of the land which was sold in the sale-deed along with the zeena. The measurement and the boundaries was not in respect of all the properties which were sold by the appel lants.
(3.) Upon hearing the arguments of the learned counsel for plaintiff Mukut Lal and defendants 1 to 4 the scope of this appeal (No. 2093 of 1989), which has been filed by defendant Nos. 1 to 4 and the controversy involved in it is confined to the answers of the question as to what was the property which was sold to the plaintiff vide sale deed dated 1. 2.1964 (Ex. 1) by the appellants ; whether tie zeena in dispute in the suit too as sold through that sale deed ?;