http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

CASE NO.: Appeal (civil)  910 of 2007

PETITIONER: Nathuni Ram

RESPONDENT: Raghupat Ram and Ors

DATE OF JUDGMENT: 23/02/2007

BENCH: Dr. ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T (Arising out of SLP (Civil) No. 6902 of 2005)

Dr. ARIJIT PASAYAT, J.

       Leave granted.  

       Challenge in this appeal is to the judgment rendered by a  learned Single Judge of the Jharkhand High Court.  The  plaintiff, who had filed the second appeal before the High  Court under Section 100 of the Code of Civil Procedure, 1908  (in short the ’Code’), has filed this appeal.   

       Detailed reference to the factual aspect is really  unnecessary.

       Plaintiff had filed the suit for declaration of title as well  as confirmation of possession over the suit land.  The  description of the property was given as plot No. 51 measuring  36 decimal of land appertaining to Khata No. 80 of Village  Japla, Dhorhara, District Palamu.  The suit was dismissed by  the learned Munsif Daltonganj.

       An appeal was carried before the first appellate court.  In  the appeal, learned VIII Additional District Judge, Palamau   held that the appellant’s claim was to be accepted in respect of  22 decimal of land and that the defendants had got possession  over 14 decimals of land.  Appellant filed appeal under Section  100 of the Code questioning correctness of the view expressed  by the first appellate court. The following question was formulated in the second appeal  treating the same to be a substantial question of law.   "Whether the Court of appeal below erred in  law in rejecting plaintiff’s claim over 14  decimals out of total 36 decimals land of plot  No. 51, when Raiyati Settlement obtaining in  1342 Fasli was not negatived."

It is to be noted that the defendants had not questioned  correctness of the judgment and decree of the first appellate  Court.  Hereafter starts the confusion. Though the defendants  had not questioned correctness of the view expressed by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

first appellate court and even had not tried to support the  conclusions during hearing of the second appeal filed by the  appellant, yet the High Court set aside the order of the first  appellant court and consequentially confirmed the judgment of  the trial court.  As if that was not enough, in the ultimate  conclusion the High Court noted that the appeal filed by the  appellant was allowed.  In fact the relief that was granted to  the appellant by the first appellate court was reversed.         In support of the appeal learned counsel for the appellant  submitted that the course adopted by the High Court is clearly  contrary to law.  Admittedly there was no appeal questioning  the first appellate court’s view regarding appellant’s  entitlement to 22 decimals of land.  In the absence of an  appeal by the defendants it was not open to the High Court to  take a contrary view.

Learned counsel for the respondents fairly conceded that  there was no appeal filed by them so far as the relief granted  by the first appellant court i.e. 22 decimals of land.  It was  also fairly conceded that there was no stand taken by them  before the High Court to the effect that the relief granted to the  appellant was not legal.   

As noted above there are confusions galore in the High  Court’s order; firstly the appeal was dismissed but the first  appellate court’s order which was in favour of the appellant  was set aside without any challenge from the defendants ;  secondly in the appellant’s appeal the relief which was not  questioned by anybody could not have been nullified; thirdly,  the High Court’s ultimate conclusion was that the appeal was  allowed while it was otherwise.        Above being the position we allow the appeal to the  extent that the relief granted to the appellant by the first  appellate court stands confirmed.  The High Court’s order,  directing that the appellate court’s judgment is to be reversed  and that of the trial court is to be restored, cannot stand to  that extent.

The appeal is allowed without any orders as to costs.