JUDGMENT
P.G. Agarwal, J.
1. Heard Mr. B.M. Sarma, learned counsel for the appellant and Mr. K. Basar, learned counsel for the respondents.
2. The respondents/plaintiffs instituted a Title Suit No. 85/86 praying for a declaration that the gift deed No. 1544/85 and the subsequent sale deeds No. 362/86 and 363/86 are void and inoperative and for declaration of the plaintiffs’ right; title over the suit land and for delivery of khas possession by evicting the defendant. The suit was decreed by the Trial Court whereupon the present appellant preferred the Title Appeal No. 43/89. But the appeal was also dismissed. Hence the second appeal.
3. The case of the plaintiff in brief is that the suit land is a joint family property and although it stood in the name of proforma defendant No. 4 Smt. Khalai Boro, it was possessed and enjoyed by all the members of the joint family. The proforma defendant No. 4 due to her old age, had become mentally imbalanced and taking advantage of the said situation the defendant No. 2 got the land gifted to him through a registered deed No. 1544/85 and thereafter the defendant No. 2 executed two sale deeds in favour of defendant No. 1 transferring the suit land in his favour. Subsequently the defendant No. 1 forcibly evicted the plaintiffs from the suit land and hence the suit.
4. The suit was contested by the defendants by filing written statement and the Trial Court framed as many as six issues. Thereafter the Trial Court decreed the suit as prayed for. The defendants have lost in both the Courts below and the appellant has preferred this second appeal.
5. Although, at the time of admission of the appeal as many as six substantial questions of law were formulated but during the course of arguments the learned counsel for the appellant has made submission in respect of the following substantial question of law only.
6. It is submitted that when the Trial Court did not pass any decree setting aside the deed and rejected the prayer of the plaintiffs and the plaintiffs also did not file any appeal of cross objection against the said decision of the Trial Court, whether in absence of any appeal or cross objection, the appellate Court can grant relief to the plaintiff.
7. The appellate Court however, in its judgment has granted relief to the plaintiff in respect of the same by quashing the gift deed.
8. On perusal of the impugned judgment of the Trial Court we find that the Trial Court had decided issue No. 5 as follows :
“Issue No. 5
In view of findings on issue No. 4 it is proved that Sri Nripen Boro was a minor at the time of executing-sale deeds No. 362/86 and No. 363/86. Being a minor he had no right to transfer of land, because a minor is not competent to do so in view of Section 11 of Indian Contract Act. His sale of land to defendant No. 1 is not only voidable but void too. Therefore, the issue is decided that the sale deed No. 362/86 and No. 363/86 are illegal, void and fraudulent. Hence the issue is decided accordingly.”
9. On perusal of the judgment of the Trial Court, we find that although these two sale deeds were set aside by the Trial Court it did not pass any specific order as regards the gift deed although issue was framed.
10 The learned counsel for the respondent on the other hand has submitted that the provision of Order XLI, Rule 33, CPC covers the present situation. Order XLI, Rule 33, CPC reads as follows :
“(33) Power of Court of Appeal–The Appellate Court shall have the power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection (and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees).”
11. Mr. Basar, learned counsel for the respondents has placed reliance on the observations of the Apex Court in the case of Bihar Supply Syndicate v. Asiatic Navigation reported in (1993) 2 SCC 639, and the Apex Court has held as follows :
“(29) Really speaking the Rule is in three parts. The first part confers on the appellate Court very wide powers to pass such orders in appeal as the case may require. The second part contemplates that this wide power will be exercised by the appellate Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The third part is where there have been decrees in cross suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although any appeal may not have been filed against such decrees.”
12. The scope and ambit of appeal under Rule 33, CPC was considered by the Apex Court in the case of Mahant Dhangir v. Madan Mohan reported in AIR 1988 SC 54, and the Apex Court held as follows :
“The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate Court could also pass such other decree or order as the case may require. The words “as the case may require” used in Rule 33, Order XLI have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these: That the parties before the lower Court should be there before the appellate Court. The question raised must properly arise out of the judgments of the lower Court. If these two requirements are there, the appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It may be urged by any party to the appeal. It is true that the power of the appellate Court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.”
13. The above decision was reiterated in the case of Delhi Electric Supply Undertaking v. Basanti Devi reported in AIR 2000 SC 43.
14. Coming to the facts of the present case, as stated above, we find that the Trial Court did not give any findings as regards the gift deed and although no appeal or cross objection was filed by the plaintiff, the appellate Court considered the matter and granted relief to the plaintiff. The conditions laid down under Order XLI, Rule 33 were satisfied in the present case. The records show that the defendant did not examine the donor to support the case of gift deed.
15. In view of the above the question raised by the appellant is answered against him and it is held that in view of the provisions of Order XLI, Rule 33, CPC, the appellate Court had the necessary powers to grant relief.
16. The next point raised by the appellant in this case is that the land was purchased in the name of the proforma defendant No. 4 and she was the sole and exclusive owner of the suit land and hence during her lifetime, the plaintiffs who are the grandchildren cannot claim any share even. This seems to be altogether a new plea raised for the first time before this Court in second appeal. In the pleadings, the appellant were altogether silent about this plea and it was not raised before the first appellate Court also. In view of the decision of the Apex Court in the case of Santosh Hazari v. Purushottam Tiwari reported in (2001) 3 SCC 179, a new plea cannot be raised for the first time in second appeal.
17. Mr. Sarma submits that this being a question of law it can be raised.
18. The plaintiffs in their pleadings categorically stated that although the land was purchased in the name of proforma defendant it was a joint family property and it was possessed and enjoyed by all the members of the joint family.
19. Admittedly, the purchase in the name of the proforma defendant was made prior to the coming into force of the Benami Transaction Act, which has got prospective application only. The proforma defendant was a party and she did not contest the matter. In Santosh Hazari (supra), the Apex Court held that a new plea raised before the High Court for the first time must have foundation in the pleadings. Admittedly, in the present case there was not even a whisper whatsoever and the claim of the plaintiffs that it was a joint family property was nowhere challenged. In view of the above, we answer the question against the appellant.
20. In the present case, the two sale deeds executed by defendant No. 2 in favour of defendant No. 1 were cancelled on the ground that the vendor was a minor and he had no power to transfer the suit land. The defendant No. 2 claimed that he was a major and he was a voter at the relevant time and in support of the plea he produced a copy of the voters list. On the other hand the plaintiffs claimed that the defendant No. 2 was a minor and in support of their plea they produced a certificate issued by the school. The Courts below accepted the School certificate in preference to the voters list. We also find that the certificate issued by the school authorities being prior in time, must be given more weightage than the voters list and there is no infirmity in the finding and the finding that the defendant No. 2 was a minor stands well established.
21. In view of the above, we find no merit in this appeal. The appeal accordingly stands dismissed. No order as to cost.