High Court’s Power In Appeal Written By Adv. R.S. Agrawal

Through the judgment in the case – Akhil Bharatvarshiya Marwari Agarwal Jatiya Kosh & Others v. Brijlal Tibrewal  & Others, delivered on December 14, 2018, a 3-judge bench of the Supreme Court consisting of Justice A.K. Sikri, Justice Ashok Bhushan and justice M.R.Shah,  has drawn a line regarding the appellate powers of High Courts, through its ruling that the appellant – Original Defendants cannot be put in a worse condition than beyond the judgment and decree passed by the Trial Court  which were challenged before the first appellate Court in appeal and that too in the absence of any cross-appeal or cross-objection from the original plaintiffs’ side.

The Court has observed that while dismissing an appeal filed by a defendant , HC could not pass any further order beyond the judgment and decree0assed by the trial court in the absence of any cross-objection  and/or cross-appeal preferred by the plaintiff. At the most HC can dismiss appeal confirming the judgment and decree passed by the trial court.

The trial court while decreeing the suit filed by the plaintiff  had only directed the defendant to convey the title and execute the document in favour of the Society in respect of the suit building and land to the extent of the suit building , which was1009 sq. meters. While dismissing the appeals, the Bombay HC directed the defendant to execute the deed of conveyance to the extent of 2700 sq. meters of land.

According to the Supreme Court, the HC’s judgment ,which go beyond the judgment and decree passed by the trial court is not sustainable , more particularly , in absence of cross-appeal and /or cross objections filed by the plaintiffs.

Once the HC dismissed the appeal, thereafter, the HC could not have passed any further order beyond the scope and ambit of the appeal before it and by doing so in this case, it has exceeded its jurisdiction and exercised power not vested in it.

The Supreme Court has pointed out that the HC has passed the order exceeding its jurisdiction after dismissing the appeal, while responding to a “Note for Speaking to Minutes” which cannot be considered at par with a review application or in a given case, with an application for clarification/modification of the earlier order.

All the appeals in this case are interconnected and between the same parties and with respect to the same properties, which have been disposed of by the Supreme Court by this common judgment.

Aggrieved and dissatisfied with the impugned order passed by the HC on December 23, 2014 in the first appeal 466/2010 and the order of July 4, 2015 in the Civil Application 1698/2015 in the first appeal 466/2016, the original defendants have preferred these appeals.

Further, dissatisfied with the impugned final order of September 10, 2015, passed by the HC in WP 992/2015, the original petitioners of the said petition have filed these appeals.

The appellant-Trust acquired 9797 sq. meters of land on October 30, 1974, with a charitable object of providing housing to weaker sections of the Society. The said area of 9797 sq. meters included  Plot 97/ A-5/2 of the village Chinchavli, Malad(East),Mumbai, admeasuring 2593.70 sq. meters. According to the Trust, the Mumbai Municipal Corporation sanctioned plan of the Trust in the year 1974-75 for construction of building A-1 on sub-plot carved out of the Plot 97/A-5/2 (the disputed property).

The said building was to consume the area of 1009 sq. meters equivalent to 1205 sq. yards. That, between1975-78 the Trust constructed the building A-1 comprising 20 flats each admeasuring built-up area of 588 sq. feet and the purchasers took possession of their respective flat. Thereafter, about 26 years after of their taking possession, the purchasers-respondents herein (the original plaintiffs) filed Suit No. 4111/2004 for directing the Trust and others to execute the conveyance of plot A/1 claiming that they were entitled to plot area of around 1205  sq. yards (1009.70 sq. meters).The trial court decreed the suit.

Feeling aggrieved with the judgment and decree passed by the  trial court the original defendants moved the HC in appeal. The HC dismissed the appeal by judgment on December 4, 2014, specifically holding that a deed of conveyance of the land to the extent of the building to be in respect of the land only to the extent of the building to be executed within nine months .

It appears that the Trust had submitted a reply before the Divisional Joint Registrar Co-operative Societies, that the plaintiffs are entitled to 1009 sq. meters of the plot only and not 2593 sq. meters, as was claimed by them. Thereafter, the HC on an oral application of the respondents herein (original plaintiffs), by way of “Note for speaking to the Minutes” clarified that the words “2700 sq. feet “ in para 8 of the judgment and order of December 4,2014, should be read as “2700 sq. meters”, but in the operative part, it was mentioned that conveyance only to the extent of plot be executed and, therefore, the order deserves to be corrected by way of mentioning the  area “2700 sq. meters”.

Through the impugned order the HC virtually modified its earlier order of December 4, 2014 and directed the execution of the deed of conveyance of the land to the extent of building,that is 2700 sq. meters. It appears that on the basis of the order of December 23, 2014 passed by the HC directing to execute the conveyance of the land to the extent of the building – 2700 sq. meters, as per the order of January 13, 2015, the Divisional Registrar passed an order granting deemed conveyance of the area admeasuring  2593.70 sq. meters.

It appears that, thereafter, the appellants herein (plaintiffs) –the Trust and other filed Civil Application 1698/2015 in the first appeal 466/2010, praying for modification of the direction to execute the deed of conveyance to the extent of 2700 sq. meters. Simultaneously, the petitioner also filed WP 992/20125, challenging the order passed by the Divisional Registrar granting the deemed conveyance.

Through the impugned order, the HC dismissed the Civil Application1698/2015 in the first appeal 466/2010. However, by dismissing the Civil Application, the HC had further clarified that the appellants shall be entitled to consume the balance FSI of plot of the land. Through the said order, the HC also dismissed the WP 992/2015 and confirmed the order of deemed conveyance for the area admeasuring 2593.70 sq. meters.

In the light of the Plaintiffs’ assertion that they are entitled to an area of land corresponding to the built –up area of the building so constructed on such land, therefore , the HC is not justified in directing the defendant –Trust to execute the deed of conveyance with respect to the land admeasuring to the extent of 2700 sq. meters.

In view of this, the orders passed by the HC deserve to be quashed and set aside and the civil appeals arising from these orders are required to be allowed and hence accordingly, allowed.

The Supreme Court has directed the impugned order of the Joint Divisional Registrar to be modified to the extent of granting deemed conveyance of the area admeasuring 1009 sq. meters only. The appeals stand disposed of accordingly.

Note - The information contained in this post is for general information purposes only. We try our level best to avoid any misinformation or abusive content. If you found any of such content on this website, please report us at [email protected]

Interested to publish an article at Law Corner? Click Here to submit your article.

Law Corner

Leave a Comment