* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 09.5.2011
+ R.S.A.No. 149/2008
SHRI NANAK CHAND & ORS. ...........Appellant
Through: Mr.Sunil Chauhan, Advocate.
Versus
SHRI JAI LAL (SINCE DECEASED) THROUGH LRS.
..........Respondent
Through: Mr.N.S.Dalal and
Mr.D.P.Singh, Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
CM No.9586/2008 (Exemption)
Allowed subject to just exceptions.
R.S.A.No. 149/2008
1. This appeal has impugned the judgment and decree dated
08.4.2008 which had endorsed the finding of the trial judge dated
15.5.2003 whereby the suit filed by the plaintiff Nanak Chand
RSA No.149/2008 Page 1 of 7
seeking possession of the suit property measuring 9 bighas 12
biswas bearing Killa No.46/3 (4-16),8(4-16) in village Jatkhore,
Delhi had been dismissed.
2. The case of the plaintiff is that his predecessor had agreed
to sell the aforenoted land to the defendant vide agreement to sell
executed in 1966. He had requested the defendant to get the sale
deed executed and registered by making the payment of the
balance agreement amount but the defendant failed to do so.
Licence granted by the plaintiff to the defendant for cultivating
has since been expired. Legal notice dated 19.1.1990 was sent to
the defendant calling upon him to vacate the suit land but he
failed to do so. Present suit was accordingly filed.
3. In defence it is stated the defendants had become the owner
by virtue of the agreement to sell which was executed by the
predecessor of the plaintiff in their favour; their possession cannot
be disturbed; they are entitled to be protected under Section 53 A
of the Transfer of Property Act (hereinafter referred to as the
TPA); further this court does not have pecuniary jurisdiction to
entertain the suit.
4. From the pleadings of the parties the following 10 issues
were been framed:
“1. Whether the suit has not been properly valued for the purposes
RSA No.149/2008 Page 2 of 7
of court fee and jurisdiction? OPD
2. Whether this Court has got no pecuniary jurisdiction to try this
case? OPD
3. Whether the suit is barred by provisions of Section 41(h) of the
Specific Relief Act? OPD
4. Whether the suit is barred by time? OPD
5. Whether the plaintiffs have got no locus-standi to file the
present suit? OPD
6.Whether the plaintiffs are the owner of suit land measuring 9
bighas 12 biswas of Killa No.46/3 (4-16), 8(4-16) situated in the
revenue estate of Village Jathkhore, Delhi? OPP
7.Whether the defendant is merely a licencee under the plaintiff?
OPP
8.Whether the plaintiffs have got any cause of action in their
favour against the defendants?
9.Whether the plaintiffs are entitled to the relief claimed? OPP
10.Relief.”
5. Oral and documentary evidence was led. The trial judge was
of the view that the court does not have the pecuniary jurisdiction
to entertain the suit. This was disposed of while dealing with
issue no.2. Trial judge, however, proceeded to deal with the
merits of the case; on merits the court was of the view that the
plaintiff has failed to establish his case; suit of the plaintiff was
dismissed.
6. In first appeal it was contended that the trial judge had
noted that it had no pecuniary jurisdiction to deal with the case;
yet Trial Judge had proceeded to decide it on merits; this was an
RSA No.149/2008 Page 3 of 7
illegality. This point was noted by the first appellate court. The
first appellate court was of the view that this was an illegality. It
had held that Court had re-appreciated the evidence, oral and
documentary and the trial judge had the pecuniary jurisdiction to
deal with the matter. On merits also it had endorsed the finding
of the trial judge. Suit of the plaintiff was dismissed.
7. This is a second appeal. It is yet at the stage of admission.
On behalf of the appellant, it is pointed out that the trial Judge
had returned a positive finding that it has no pecuniary
jurisdiction. In this view of the matter it should not have dealt
with the case on merits. No cross appeal had been filed by the
defendant before the first Appellate Court. The first appellate
court could not have upset the finding on pecuniary jurisdiction.
8. Even on merits, the finding returned is perverse.
9. Reliance has been placed upon AIR 2008 SC 493 A Lewis &
Anr. Vs. M.T.Ramamurthy & Anr. to substantiate his submission
that the protection of Section 53A of the TPA which had been
granted to the defendant is an illegality as the defendant was
himself not willing to perform his part of the contract and in these
circumstances this protection could not hae been afforded to him.
10. Arguments have been countered.
11. It is pointed out that the powers of the first appellate court
RSA No.149/2008 Page 4 of 7
under Order 41 Rule 33 of the Code of Civil Procedure are wide
and nothing prevents the first appellate court from dealing any
objection of the respondent; even though he has not filed a cross
appeal.
12. Order XLI Rule 33 of the Code reads as follows:
“33. Power of Court of Appeal – the Appellate Court shall
have 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:
Provided that the Appellate Court shall not make any order
under section 35A, in pursuance of any objection on which the Court
from whose decree the appeal is preferred has omitted or refused to
make such order.”
13. In this context the Supreme Court in AIR 1988 SC 54
Mahant Dhangir & Anr. Vs. Madan Mohan & Ors. while dealing
with this aspect has noted as follows:
“The appellate court could exercise that power in favour of
all or any of the respondents although such respondent may not
have filed any appeal or objection. The sweep of the power under
Rule 33 is wide enough to determine any question not only betweenRSA No.149/2008 Page 5 of 7
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 of Order 41 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
judgment 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.”
14. The first appellate court had ample power to deal with the
objections about the issue of the pecuniary jurisdiction of the
court; after adverting to the evidence it had rightly concluded that
the Civil Court has the necessary jurisdiction to deal with the
matter. This answers the first objection of the learned counsel for
the appellant. On merits also the two fact finding courts have
returned a positive finding holding that the plaintiff has not been
able to substantiate his case. In fact, it is the case of the plaintiff
himself that his predecessor had executed documents of transfer
i.e. an agreement to sell in favour of the defendant under which
he had a possession. Doctrine of part performance as contained
RSA No.149/2008 Page 6 of 7
in Section 53A of the Transfer of Property Act was rightly
adverted to. The judgment of Lewis (supra) relied upon by the
learned counsel for the appellant has no application. In this case
the court had held that the protective umbrella of Section 53A of
the TPA will not be available if the transferee has been passive
and not taken any effective steps; i.e. where there is no evidence
to show that he was willing to perform his part of the contract.
Present suit was not a suit for specific performance. This
contention had not arisen.
15. Substantial questions of law have been embodied on pages
13 and 14 of the appeal. No such substantial question of law has
arisen. Appeal is dismissed in limine.
INDERMEET KAUR, J.
MAY 09, 2011
ss/nandan
RSA No.149/2008 Page 7 of 7