# STATE OF ANDHRA PRADESH & ORS v. B. RANGA REDDY (D) BY LRs & ORS

- **Citation:** [2019] 10 S.C.R. 143
- **Court:** Supreme Court of India
- **Decided:** 2019-08-09
- **Case number:** Civil Appeal No. 17486 of 2017
- **Bench:** L. Nageswara Rao, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-andhra-pradesh-ors-v-b-ranga-reddy-d-by-lrs-ors-33118
- **Pages:** 32

## Headnote

Code of Civil Procedure, 1908 - ss.11, 96 and Or. XLI, r.22,
Or.XLI, r.33 - Three separate suits were filed against the defendants
including the State - First and second suit were in respect of land
falling in Survey No.9 of 2013 of Khairatabad Village - Third suit
was in respect of land falling in Survey Nos.49 and 50 in Rasoolpura
Village - State contested on the ground that the land in all the three
suits fell in Survey No.43 of Village Bholakpur, which is a
Government Shikkam Talab - All the suits tried together - First two
suits dismissed, however, the third suit was decreed against the State
- State filed appeal against the decree in the third suit, which was
objected on the ground that the findings recorded on Issue No.1 in
the first and second suit have to be treated as decree and would
operate as res judicata - High Court inter alia held that without filing
cross-objections, the Govt. cannot challenge the findings of the
trial court - On appeal, held: Present is a case where the decree is
of dismissal of suit therefore, entirely in favour of the State and not
executable - Decree of dismissal of the first and second suit has
not attained finality and are under challenge by the plaintiffs and
the defendants-State are entitled to dispute findings on Issue No.1
- All the issues are open for consideration before the First Appellate
Court including the findings of fact on Issue No.1 - Defendants
have right to dispute such findings by filing cross-objections u/Or.
XLI, r. 22, as amended in the year 1976 or even in the exercise of
the powers conferred on the Appellate Court u/Or. XLI, r. 33 -
Further, s.11 and Explanation I would be applicable in subsequent
proceedings between the same parties or between the parties under
whom they or any of them claimed under the same title - But the
findings in the first and second suit will not operate as res judicata
as such findings are subject matter of challenge in the appeals filed
by the plaintiffs in their respective suits - High Court failed to draw
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the distinction between the decree and a finding on an issue - It is
the decree against which an appeal lies in terms of s.96 - DefendantsState could not file appeal against a decree which was of dismissal
of suit simpliciter - Order of the High Court set aside.
Words & expressions - "Decree", "Judgment" - Meaning of
- Discussed - Code of Civil Procedure, 1908 - ss.2(2), 2(9).
Suits - Consolidation of - Plea of the respondents drawing
distinction between an order of consolidation of suits and the order
where common judgment is rendered in different suits - Held: Not
tenable in law.
Allowing the appeals, the Court
HELD: 1.1 The findings recorded by the High Court are
patently erroneous. The present is a case where the decree is of
dismissal of suit therefore, entirely in favour of the State and not
executable. [Paras 12, 19] [156-H; 160-D]
1.2 The decree in Civil Suit No. 274 of 1983 or 276 of 1983
(First Suit and Second Suit) has not attained finality and the same
are still subject matter of appeal before the First Appellate Court
wherein, the findings recorded by the trial court can be set aside
while maintaining ultimate decree of dismissal of the suit. The
decree of dismissal of the first and second suit has not attained
finality which are under challenge by the plaintiffs and the
defendants-State are entitled to dispute findings on Issue No.1
even without filing cross objections or in terms of Order XLI
Rule 33 of the Code of Civil Procedure, 1908 that the decree of
dismissal of suit on the grounds other than what weighed with
the learned trial court. All the issues are open for consideration
before the First Appellate Court. [Paras 26, 31] [166-F-G;
169-E-F]
1.3 Section 11 and Explanation I of the Code would be
applicable in subsequent proceedings between the same parties
or between the parties under whom they or any of them claimed
under the s

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STATE OF ANDHRA PRADESH & ORS.
v.
B. RANGA REDDY (D) BY LRs & ORS.
(Civil Appeal No. 17486 of 2017)
AUGUST 09, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Code of Civil Procedure, 1908 - ss.11, 96 and Or. XLI, r.22,
Or.XLI, r.33 - Three separate suits were filed against the defendants
including the State - First and second suit were in respect of land
falling in Survey No.9 of 2013 of Khairatabad Village - Third suit
was in respect of land falling in Survey Nos.49 and 50 in Rasoolpura
Village - State contested on the ground that the land in all the three
suits fell in Survey No.43 of Village Bholakpur, which is a
Government Shikkam Talab - All the suits tried together - First two
suits dismissed, however, the third suit was decreed against the State
- State filed appeal against the decree in the third suit, which was
objected on the ground that the findings recorded on Issue No.1 in
the first and second suit have to be treated as decree and would
operate as res judicata - High Court inter alia held that without filing
cross-objections, the Govt. cannot challenge the findings of the
trial court - On appeal, held: Present is a case where the decree is
of dismissal of suit therefore, entirely in favour of the State and not
executable - Decree of dismissal of the first and second suit has
not attained finality and are under challenge by the plaintiffs and
the defendants-State are entitled to dispute findings on Issue No.1
- All the issues are open for consideration before the First Appellate
Court including the findings of fact on Issue No.1 - Defendants
have right to dispute such findings by filing cross-objections u/Or.
XLI, r. 22, as amended in the year 1976 or even in the exercise of
the powers conferred on the Appellate Court u/Or. XLI, r. 33 -
Further, s.11 and Explanation I would be applicable in subsequent
proceedings between the same parties or between the parties under
whom they or any of them claimed under the same title - But the
findings in the first and second suit will not operate as res judicata
as such findings are subject matter of challenge in the appeals filed
by the plaintiffs in their respective suits - High Court failed to draw
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the distinction between the decree and a finding on an issue - It is
the decree against which an appeal lies in terms of s.96 - DefendantsState could not file appeal against a decree which was of dismissal
of suit simpliciter - Order of the High Court set aside.
Words & expressions - "Decree", "Judgment" - Meaning of
- Discussed - Code of Civil Procedure, 1908 - ss.2(2), 2(9).
Suits - Consolidation of - Plea of the respondents drawing
distinction between an order of consolidation of suits and the order
where common judgment is rendered in different suits - Held: Not
tenable in law.
Allowing the appeals, the Court
HELD: 1.1 The findings recorded by the High Court are
patently erroneous. The present is a case where the decree is of
dismissal of suit therefore, entirely in favour of the State and not
executable. [Paras 12, 19] [156-H; 160-D]
1.2 The decree in Civil Suit No. 274 of 1983 or 276 of 1983
(First Suit and Second Suit) has not attained finality and the same
are still subject matter of appeal before the First Appellate Court
wherein, the findings recorded by the trial court can be set aside
while maintaining ultimate decree of dismissal of the suit. The
decree of dismissal of the first and second suit has not attained
finality which are under challenge by the plaintiffs and the
defendants-State are entitled to dispute findings on Issue No.1
even without filing cross objections or in terms of Order XLI
Rule 33 of the Code of Civil Procedure, 1908 that the decree of
dismissal of suit on the grounds other than what weighed with
the learned trial court. All the issues are open for consideration
before the First Appellate Court. [Paras 26, 31] [166-F-G;
169-E-F]
1.3 Section 11 and Explanation I of the Code would be
applicable in subsequent proceedings between the same parties
or between the parties under whom they or any of them claimed
under the same title. But the findings in the first and second suit
will not operate as res judicata as such findings are subject matter
of challenge in the appeals filed by the plaintiffs in their respective
suits. All the three suits have been decided together and the
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three appeals pending against such judgment and decrees.
Therefore, it cannot be said that the first and the second suit are
the former suits as the decree passed therein has not attained
finality. The findings recorded therein will not, therefore, operate
as res judicata as the State is not obliged to challenge findings on
Issue No.1 in the first and second suit even after the amendment
of Order XLI Rule 22 of the Code. The High Court has failed to
draw the distinction between the decree and a finding on an issue.
It is the decree against which an appeal lies in terms of Section
96 of the Code. Decree in terms of Section 2(2) of the Code means
formal expression of an adjudication conclusively determining
the rights of the parties. The defendants-State could not file an
appeal against a decree which was of dismissal of a suit simpliciter.
The findings on Issue No.1 against the State could be challenged
by way of cross-objections in terms of amended provisions of
Order XLI, Rule 22 of the Code but such filing of cross-objections
is not necessary to dispute the findings recorded on Issue No. 1
as the defendants have a right to support the ultimate decree
passed by the trial court of dismissal of suit on grounds other
than which weighed with the learned trial court. Even in terms of
Order XLI Rule 33 of the Code, the Appellate Court has the
jurisdiction to pass any order which ought to have been passed
or made in proceedings before it. As per facts on record, Original
Suit Nos. 274 of 1983 and 276 of 1983 have been dismissed. The
plaintiffs are in appeal in both the suits before the First Appellate
Court. Therefore, such decree including the finding on Issue No.
1 has not attained finality as the Appellate Court is seized of the
entire controversy including the findings of fact on Issue No.1.
The defendants have a right to dispute such findings by filing
cross-objections under Order XLI, Rule 22 of the Code as
amended in the year 1976 or even in the exercise of the powers
conferred on the Appellate Court under Order XLI Rule 33 of
the Code. [Paras 32, 36 and 37] [169-G-H; 170-A-B; 173-C-F]
1.4 The decree is of dismissal of the suit, whereas, the
reasons for passing such decree is judgment as defined in Section
2(9) of the Code. In terms of Section 11 read with Explanation I,
the issue in a former suit will operate as res judicata only if such
issue is raised in a subsequent suit. Since, the issue of title has
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY
(D) BY LRs & ORS.
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not attained finality, therefore, it is not a former suit to which
there can be any application of Section 11. The order passed by
the High Court in the first appeal filed by the State is set aside,
as the findings on Issue Nos. 1 and 2 in the first and second suit
do not operate as res judicata. [Paras 38, 39] [173-G-H;
174-A-B]
Ramesh Chandra v. Shiv Charan Dass AIR 1991 SC
264 : [1990] Suppl. SCR 97 ; S. Nazeer Ahmed v. State
Bank of Mysore & Ors. (2007) 11 SCC 75 : [2007]
1 SCR 843 - relied on.
Badri Narayan Singh v. Kamdeo Prasad Singh & Anr.
[1962] 3 SCR 759 ; Ashok Nagar Welfare Association
& Anr. v. R. K. Sharma & Ors. (2002) 1 SCC 749 :
[2001] 5 Suppl. SCR 662 ; Bhanu Kumar Jain
v. Archana Kumar and Another (2005) 1 SCC
787 : [2004] 6 Suppl. SCR 1104 - held inapplicable.
Narhari & Ors. v. Shankar & Ors. AIR 1953 SC
419 : [1950] SCR 754 ; Ganga Bai v. Vijay Kumar &
Ors. (1974) 2 SCC 393 : [1974] 3 SCR 882 ; Banarsi
& Ors. v. Ram Phal (2003) 9 SCC 606 : [2003] 2 SCR
22 ; Hardevinder Singh v. Paramjit Singh & Ors. (2013)
9 SCC 261 : [2013] 1 SCR 903 ; Sri Gangai Vinayagar
Temple & Anr. v. Meenakshi Ammal & Ors. (2015) 3
SCC 624 : [2014] 12 SCR 845 ; Chitivalasa Jute Mills
v. Jaypee Rewa Cement (2004) 3 SCC 85 ; Sheodan
Singh v. Daryao Kunwar (Smt.) [1966] 3 SCR 300 ;
Lonankutty v. Thomman & Anr. (1976) 3 SCC
528 : [976] Suppl. SCR 74; Premier Tyres Limited v.
Kerala State Road Transport Corporation (1993) Supp.
(2) SCC 146 ; Harbans Singh & Ors. v. Sant Hari Singh
& Ors. (2009) 2 SCC 526 : [2009] 1 SCR 250 ; Nirmala
Bala Ghose v. Balai Chand Ghose [1965] 3 SCR 550 ;
Govindammal (D) by LRs & Ors. v. Vaidyanathan &
Ors. (2018) 14 SCALE 198 - referred to.
Case Law Reference
[1950] SCR 754
referred to
Para 5
[1974] 3 SCR 882
referred to
Para 5
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[2003] 2 SCR 22
referred to
Para 5
[2013] 1 SCR 903
referred to
Para 5
[2014] 12 SCR 845
referred to
Para 5
(2004) 3 SCC 85
referred to
Para 5
[1990] Suppl. SCR 97
relied on
Para 5
[2007] 1 SCR 843
relied on
Para 5
[1966] 3 SCR 300
referred to
Para 6
[1976] Suppl. SCR 74
referred to
Para 6
1993 Supp. (2) SCC 146
referred to
Para 6
[2009] 1 SCR 250
referred to
Para 6
[2001] 5 Suppl. SCR 662
held inapplicable
Para 6
[1965] 3 SCR 550
referred to
Para 6
[2004] 6 Suppl. SCR 1104
held inapplicable
Para 6
(2018) 14 SCALE 198
referred to
Para 8
[1962] 3 SCR 759
held inapplicable
Para 25
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 17486
of 2017.
From the Judgment and Order dated 01.10.2012 by the High Court
of Judicature of Andhra Pradesh at Hyderabad in City Civil Court Appeal
No. 194/1998.
With
Civil Appeal No. 17487 of 2017
Contempt Petition (C) No. 204/2014 in SLP (C) No. 8243 of 2013.
Dushyant A. Dave, V. Giri, C. S. Vaidhyanthan, Jay Savla, P.
Venugopal, Gopal Sankarnarayanan, Sr. Advs., Ms. Bina Madhavan,
Ms. Akanksha Mehra, Ms. Elizabeth Anthony, Ms. Sweena Nair, M. P.
Shorawala, P. Venkat Reddy, Prashant Tyagi, Anirudh Gupta, Akshay
Manorajan, Dr. Raja Ram Punna, Ms. Suveni Bhagat, M/s. Venkat Palwai
Law Associates, G. N. Reddy, Ms. Renuka Sahu, Anurag, Venkateswara
Rao Anumolu, Chandra Mohan Anisethy, K. K. Mani, B. V. S. Sita
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY
(D) BY LRs & ORS.
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Ramaraju, Ms. Vasudha Singh, M/s. Lawyer S Knit & Co., Annam D.
N. Rao, Sateesh Galla, N. Rajaraman, B. Shravanth Shanker, Ms.
Monalisa Kosaria, Vishal Sinha, Advs. for the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The challenge in the present appeals is to an order passed by
the High Court of judicature of Andhra Pradesh at Hyderabad on October
01, 2012 whereby an appeal filed by the appellants was found to be hit
by the principle of res judicata and was dismissed.
2. The brief facts leading to the present appeals are that three
separate suits were filed against the defendants including the State: first,
Original Suit No. 274 of 1983 in respect of 6.08 guntas of land comprising
in Survey No. 9 of 2013 of Khairatabad Village; second suit bears Original
Suit No. 276 of 1983 in respect of 3 guntas of land comprising in Survey
No. 9 of 2013 of Khairatabad Village; and third suit bears Original Suit
No. 141 of 1984 which has been filed in respect of land measuring 19.23
guntas in respect of land falling in Survey Nos. 49 and 50 in Rasoolpura
Village. The stand of the State in all the suits is that the land in all the
three suits falls in Survey No. 43 of Village Bholakpur, which is a
Government Shikkam Talab measuring 145 acres 35 guntas, popularly
known as Hussain Sagar Talab. All three suits were tried together. The
evidence was recorded in Original Suit No. 274 of 1983. The issues and
the findings recorded by the learned trial court on issues of title are as
under:
"ORIGINAL SUIT NO. 274 OF 1983 - FIRST SUIT
Issues
1)
Whether the suit property is part of Sy. No. 9/13 of
Khairatabad Village as claimed by the plaintiff or whether it
is a part of Sy. Nos. 49 and 50 of Rasoolpura Village as
claimed by the defendants 1 to 4 or whether it is the part of
Sy. No. 43 of Bholakpur Village as claimed by the
Government?
Finding
Para 40. The plaintiff miserably failed to establish that the
suit property forms part of Sy. No. 9/13 of Khairatabad
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Village. But the defendants 1 to 4 clearly established that it
forms part of Sy. Nos. 49 and 50 of Rasoolpura. However,
the Government also failed to established that the suit land
forms part of Sy. No. 43 of Bholakpur Village.
2)
Whether the plaintiff is entitled for declaration of his title to
the suit property and whether he is entitled for the
consequential relief of permanent injunction or in the
alternative for possession of the suit property?
Finding
Para 41. The plaintiff miserably failed to establish his title
and possession in the suit property and as such, he is not
entitled for the relief of declaration or permanent injunction
or possession.
3)
To what relief?
Finding
Para 44. In the result, the suit is dismissed with costs.
ORIGINAL SUIT NO. 276 OF 1983 - SECOND SUIT
Issues
1)
Whether the suit property is part of Sy. No. 9/13 of
Khairatabad Village as claimed by the plaintiff or whether it
is a part of Sy. No. 49 and 50 of Rasoolpura village as claimed
by the defendants 1 and 2 or whether it is the part of Sy. No.
43 of Bholakpur Village as claimed by the Government?
Finding
Para 45. Issue No. 1 in Original Suit No. 274 of 1983 and
this issue are practically one and the same and as such the
finding on issue No. 1 in Original Suit No. 274 of 1983 holds
good for this issue also.
2)
Whether the plaintiff is entitled for declaration of his title to
the suit property and Whether he is entitled for the
consequential relief of permanent injunction or in the
alternative for possession of the suit property?
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
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Finding
Para 46. The plaintiff in this suit also failed to establish his
title and possession in the suit property and as such, he is not
entitled for the reliefs of declaration or permanent injunction
or alternative relief of possession.
3)
To what relief?
Finding
Para 49. In the result, the suit is dismissed with costs.
ORIGINAL SUIT NO. 141 OF 1984 - THIRD SUIT
Issues
1)
Whether the suit property is part of Sy. Nos. 49 and 50 of
Rasoolpura Village as claimed by the plaintiffs or Whether it
is part of Sy. No. 9/13 of Khairatabad Village as claimed by
the defendants 1 and 2 or Whether it is part of Sy. No. 4J of
Bholakpur Village as claimed by the Government?
Finding
Para 50. The finding on Issue No. 1 in Original Suit No. 274
of 1983 holds good for this issue also.
2)
Whether the plaintiff are entitled for declaration of their title
to the suit property and Whether they are entitled for the
consequential relief of permanent injunction or in the
alternative for possession of the suit property?
Finding
Para 52. The plaintiffs could establish their title in the suit
property and as such they are entitled for the reliefs of
declaration and possession. Though they were in possession
of the property originally, the Special Executive Magistrate
took possession of the property after the initiation of Section
145 Cr.P.C. proceedings. So the Government is bound to
surrender possession to the plaintiffs in this Suit.
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3)
To what relief?
Finding
Para 56. In the result, the suit is decreed with costs, as
prayed for. The Government is erected to deliver possession
of the suit property to the plaintiffs within 2 months. However,
this finding shall not come in the way of the Urban Land
Ceiling authorities to initiate proceedings to take possession
of the excess land, if any, from the plaintiffs (in Original Suit
No. 141 of 1984). Similarly, the Government is also at liberty
to acquire any portion of the suit land for public purposes by
following the necessary procedure and by paying the adequate
compensation to the plaintiffs."
3. The State filed appeal arising out of judgment and decree in
Original Suit No. 141 of 1984 (Third Suit). In the said appeal, an objection
was raised that the findings recorded on Issue No. 1 in Original Suit
Nos. 274 of 1983 and 276 of 1983 have to be treated as decree and
would operate as res judicata. The High Court while hearing such
objections in appeal framed the following two points for consideration:
"1) Whether the findings of the lower Court on issue No. 1 in
O.S. Nos. 274 and 276 of 1983 have to be treated as decree and
whether they operate as res judicata against the Government,
since the Government have not filed any appeals challenging the
said findings?
 2) Whether the Government of Andhra Pradesh was not required
to file appeals on the ground that no enforceable decree was
passed against it?"
4. The High Court held that decision on issues or any matter in
controversy shall be deemed to be decree in view of reading of Order
XIV Rule 1 of the Code of Civil Procedure, 19081. The High Court
noticed the fact that in the third suit, there was a specific direction to
deliver possession of the suit property to the plaintiff within two months
but there is no specific direction against the Government in the first and
the second suit but the fact remains that specific finding is given in those
cases that Government failed to establish that the suit land forms part of
Survey No.43 of Bholakpur Village. Thus, there is clear declaration of
right and title of the parties. The High Court held as under:
1 for short, 'Code'
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
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"In the present case, there is clear finding against the Government.
When there is a clear finding that the suit land does not form part
of Survey No. 43 of Bholakpur Village as claimed by the
Government, it was obligatory on the part of the Government to
file cross-objections. What Government can do is it can support
the findings of the lower court. The findings of the lower court
are that the suit land forms part of Survey No. 49 and 50 of
Rasoolpura Village. Obviously, the Government cannot support
such finding, because its case is that the suit land forms part of
Survey No. 43 of Bholakpur Village.
In the appeals filed by the plaintiffs, the main question that falls
for consideration is whether the suit properties form part of Survey
No. 9/13 of Khairatabad village or it forms part of Survey Nos.
49 and 50 of Rasoolpura village. The question whether the suit
land forms part of Survey No. 43 of Bholakpur village as claimed
by the Government does not fall for consideration in the appeals
in CCCA 1 of 1999 or CCCA No. 9 of 1999 i.e., appeals filed by
the plaintiffs in O.S. Nos.274 and 276 of 1983. Therefore, without
filing cross-objections the Government cannot challenge the
findings of the trial court."
5. Mr. Vaidyanathan, learned senior counsel for the State relied
upon judgments of this Court in Narhari & Ors. v. Shankar & Ors.2,
Ganga Bai v. Vijay Kumar & Ors.3, Banarsi & Ors. v. Ram Phal4,
Hardevinder Singh v. Paramjit Singh & Ors.5, Sri Gangai Vinayagar
Temple & Anr. v. Meenakshi Ammal & Ors.6, Chitivalasa Jute Mills
v. Jaypee Rewa Cement7, Ramesh Chandra v. Shiv Charan Dass8
and S. Nazeer Ahmed v. State Bank of Mysore & Ors.9 to contend
that the defendants in the first and the second suit had no right to file an
appeal against the decree of dismissal of suits passed in such suits. The
appeal would not lie against the findings recorded when the decree is
only of dismissal of the suits. It is argued that the effect of amendment
2 AIR 1953 SC 419
3 (1974) 2 SCC 393
4 (2003) 9 SCC 606
5 (2013) 9 SCC 261
6 (2015) 3 SCC 624
7 (2004) 3 SCC 85
8 AIR 1991 SC 264
9 (2007) 11 SCC 75
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in Order XLI Rule 22 of the Code vide Central Act No. 104 of 1976 is
only to enable an aggrieved person to file cross objections but that does
not take away the right of an aggrieved person to support the decree of
dismissal of the suit in appeal on the grounds other than what weighed
with the learned trial court in dismissing the suit. It is contended that
appeal lies against the decree passed and not the judgment giving the
reasons to pass a decree. It is further contended that the State has a
right to agitate the findings on Issue No. 1 in terms of the provisions of
Order XLI Rule 33 of the Code as well, therefore, the findings recorded
on Issue No. 1 are not final so as to operate res judicata against the
decree in the third suit which is the subject matter of challenge by the
State. It is contended that the State has filed cross objections before
hearing of the appeal though after the order of the High Court, thus, the
findings recorded on Issue No. 1 have not attained finality which can
operate as res judicata. It is contended that the judgments referred to
by the learned counsel for the respondents are in the cases where the
decree had attained finality. But none of the judgments referred to by
the learned counsel for the respondents pertains to a finding recorded in
a civil suit which was dismissed and is subject matter of challenge in
appeal by the plaintiff himself.
6. On the other hand, Mr. Dushyant Dave, learned senior counsel
for the respondents argued that there is a categorical finding recorded
by the trial court that land does not fall in part of Survey No. 43 of
Bholakpur Village, as per the stand of the Appellants in all three suits,
therefore, it was mandatory for the defendants to impugn such findings
by way of an appeal in the first and second suit as well. Since the State
has not filed any appeal against the findings recorded in the first and the
second suit, the findings recorded therein will operate as res judicata
and the appeal arising out of the third suit is barred by res judicata.
Learned counsel for the respondents relied upon the judgments of this
Court in Badri Narayan Singh v. Kamdeo Prasad Singh & Anr.10,
Sheodan Singh v. Daryao Kunwar (Smt.)11, Lonankutty v. Thomman
& Anr.12, Premier Tyres Limited v. Kerala State Road Transport
Corporation13, Harbans Singh & Ors. v. Sant Hari Singh & Ors.14,
10 1962 (3) SCR 759
11 1966 (3) SCR 300
12 (1976) 3 SCC 528
13 1993 Supp. (2) SCC 146
14 (2009) 2 SCC 526
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
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Ashok Nagar Welfare Association & Anr. v. R. K. Sharma & Ors.15,
Nirmala Bala Ghose v. Balai Chand Ghose16, Bhanu Kumar Jain
v. Archana Kumar and Another17.
7. Mr. Dave submits that the judgments referred to by the learned
counsel for the appellants are not applicable to the facts of the present
case. He argued that res judicata applies not only to the decree but it
bars the Court to try any suit or issue in which the matter has been
directly and substantially in issue in former suit. It is, thus, contended
that principle of res judicata are not only against the final judgment and
decree but also in respect of any finding recorded in the suit.
8. Mr. Jai Savla, learned senior counsel, relied upon another
judgment of this Court in Govindammal (D) by LRs & Ors. v.
Vaidyanathan & Ors.18 to contend that plea of res judicata is applicable
even in respect of co-defendants.
9. Respondent No. 8 in the written submissions relies upon Sri
Gangai Vinayagar Temple to contend that the filing of a Single Appeal
would lead to entire dispute becoming sub judice only if suits are
consolidated. Since, three suits in question were not consolidated,
therefore, non-filing of the appeal by the appellants in first and second
suit will operate as res judicata.
10. Learned counsel for the appellants has produced a photocopy
of the decree in the Original Suit No. 274 of 1983 which is to the effect
"that the suit be and the same is hereby dismissed".
11. To appreciate arguments of the learned counsel for the parties,
certain statutory provisions from the Code need to be extracted before
the judgments referred to by the learned counsel for the parties are
considered.
"2(9) "judgment" means the statement given by the Judge on the
grounds of a decree or order;
2(2) "decree" means the formal expression of an adjudication
which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of the
15 (2002) 1 SCC 749
16 1965 (3) SCR 550
17 (2005) 1 SCC 787
18 (2018) 14 SCALE 198
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matters in controversy in the suit and may be either preliminary or
final. It shall be deemed to include the rejection of a plaint and the
determination of any question within section 144, but shall not
include -
(a) any adjudication from which an appeal lies as an appeal from
an order, or
(b) any order of dismissal for default.
96. Appeal from original decree
 (1) Save where otherwise expressly provided in the body of
this Code or by any other law for the time being in force, an
appeal shall lie from every decree passed by any Court exercising
original jurisdiction to the Court authorized to hear appeals from
the decisions of such Court.
***
***
Order XLI Rule 22. Upon hearing, respondent may object to
decree as if he had preferred a separate appeal
 (1) Any respondent, though he may not have appealed from
any part of the decree, may not only support the decree 19[but
may also state that the finding against him in the Court below in
respect of any issue ought to have been in his favour; and may
also take any cross-objection] to the decree which he could have
taken by way of appeal:
Provided he has filed such objection in the Appellate Court within
one month from the date of service on him or his pleader of notice
of the day fixed for hearing the appeal, or within such further time
as the Appellate Court may see fit to allow.
19[Explanation.- A respondent aggrieved by a finding of the Court
in the judgement on which the decree appealed against is based
may, under this rule, file cross-objection in respect of the decree
in so far as it is based on that finding, notwithstanding that by
reason of the decision of the Court on any other finding which is
sufficient for the decision of the suit, the decree, is, wholly or in
part, in favour of that respondent.]
19 Inserted by Central Act No. 104 of 1976
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
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Order XLI Rule 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.
Section 11 - Res judicata
No Court shall try any suit or issue in which the matter directly
and substantially in issue has been directly and substantially in
issue in a former suit between the same parties, or between parties
under whom they or any of them claim, litigating under the same
title, in a Court competent to try such subsequent suit or the suit in
which such issue has been subsequently raised, and has been
heard and finally decided by such Court.
Explanation I - The expression "former suit" shall denote a suit
which has been decided prior to the suit in question whether or
not it was instituted prior thereto."
12. The High Court referred to various judgments in respect of
applicability of the principle of res judicata, therefore, non-filing of the
appeal by the State in the other two suits operates as res judicata. The
High Court referred to a judgment of this Court in Sheodan Singh
wherein, this Court held that once a decree passed in the suit attains
finality, it cannot be disturbed indirectly by adjudicating the very same
questions in another appeal. We find that the findings recorded by the
High Court are patently erroneous for the reasons recorded hereinafter.
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Therefore, non-filing of the appeal by the State in the other two suits
operates as res judicata in the third suit.
13. The learned trial court had clubbed all the three suits and that
common evidence was recorded, when it recorded the following fact:
"All the above three suits have been clubbed and a joint trial has
been held. O.S.No.274/83 has been taken as the leading suit and
the evidence recorded in that suit has been taken as the evidence
for the remaining two suits also. The parties to all the three suits
can be divided into three groups......"
14. Learned counsel for the respondents has tried to draw
distinction between an order of consolidation of suits and the order where
a common judgment is rendered in different suits. In Sri Gangai
Vinayagar Temple, the Court referred to judgment in Chitivalasa Jute
Mills. However, we find that distinction drawn by learned counsel for
the respondents is not tenable in law. Chitivalasa Jute Mills is a case
where one suit was filed at Reva in Madhya Pradesh and another in
Vishakhapatnam. The Court noticed that claim in one suit is a defense
in another suit, therefore, the order was passed for transfer of a
subsequent suit filed at Reva to Vishakhapatnam.
15. In the present case, evidence have been recorded only in one
suit as all the three suits have been clubbed together. In view of the said
fact, we find that merely the word consolidation has not been used by
the learned trial court, therefore, it will not be a case of consolidation of
suits but of separate trials.
16. In Banarsi, the provisions of Order XLI Rule 22 of the Code
as it existed before and after the amendment in 1976 as well as Order
XLI Rule 33 of the Code have been considered. The said judgment
arises out of a fact where a suit for specific performance of an agreement
was filed by the respondent in appeal before this Court. The appellants
also filed a suit seeking cancellation of the agreement, the basis of the
suit for specific performance. The learned trial court ordered the
appellants to deposit a sum of Rs.2,40,000/- but the decree for specific
performance was not granted. Two appeals were taken up for hearing
preferred by the appellants by the learned Additional District Judge.
Both the appeals were dismissed but without any cross objections or an
appeal, the Court decreed the suit for specific performance filed by the
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
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plaintiffs. The second appeal before the High Court was dismissed. It
was held that the First Appellate Court committed no error of law
exercising the powers under Order XLI Rule 33 of the Code to pass a
decree for specific performance.
17. This Court examined the question as to whether decree for
specific performance could be granted once declined by the trial court
without filing any appeal or cross-objections. The Court held as under:
"8. Sections 96 and 100 CPC make provision for an appeal being
preferred from every original decree or from every decree passed
in appeal respectively; none of the provisions enumerates
the person who can file an appeal. However, it is settled by a
long catena of decisions that to be entitled to file an appeal the
person must be one aggrieved by the decree. Unless a person is
prejudicially or adversely affected by the decree he is not entitled
to file an appeal. (See Phoolchand v. Gopal Lal [AIR 1967 SC
1470 : (1967) 3 SCR 153] , Jatan Kumar Golcha v. Golcha
Properties (P) Ltd. [(1970) 3 SCC 573] and Ganga Bai v. Vijay
Kumar[(1974) 2 SCC 393] .) No appeal lies against a mere finding.
It is significant to note that both Sections 96 and 100 CPC provide
for an appeal against decree and not against judgment.
 9. Any respondent though he may not have filed an appeal from
any part of the decree may still support the decree to the extent
to which it is already in his favour by laying challenge to
a finding recorded in the impugned judgment against
him..............................A party who has fully succeeded in
the suit can and needs to neither prefer an appeal nor take any
cross-objection though certain finding may be against him. Appeal
and cross-objection - both are filed against decree and not
against judgment and certainly not against any finding recorded
in a judgment. This was the well-settled position of law under the
unamended CPC."
18. This Court while considering the amendments made in the
Code in the year 1976, held that even under the amended provisions of
Order XLI Rule 22 of the Code, a party in whose favour the decree
stands in its entirety is neither entitled nor obliged to prefer any cross
objections. However, by an amendment in Order XLI Rule 22 of the
Code, it is permissible to file cross objections against the finding. The
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respondent may defend himself without filing any cross objections to the
extent to which decree is in his favour. The Court held as under:
"10. The CPC amendment of 1976 has not materially or
substantially altered the law except for a marginal difference.
Even under the amended Order 41 Rule 22 sub-rule (1) a party in
whose favour the decree stands in its entirety is neither entitled
nor obliged to prefer any cross-objection. However, the insertion
made in the text of sub-rule (1) makes it permissible to file a
cross-objection against a finding. The difference which has
resulted we will shortly state. A respondent may defend himself
without filing any cross-objection to the extent to which decree is
in his favour; however, if he proposes to attack any part of the
decree he must take cross-objection. The amendment inserted by
the 1976 amendment is clarificatory and also enabling and this
may be made precise by analysing the provision. There may be
three situations:
(i) The impugned decree is partly in favour of the appellant
and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though
an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all
the issues have also been answered in favour of the respondent
but there is a finding in the judgment which goes against the
respondent.
11. In the type of case (i) it was necessary for the respondent to
file an appeal or take cross-objection against that part of the decree
which is against him if he seeks to get rid of the same though that
part of the decree which is in his favour he is entitled to support
without taking any cross-objection. The law remains so postamendment too. In the type of cases (ii) and (iii) pre-amendment
CPC did not entitle nor permit the respondent to take any crossobjection as he was not the person aggrieved by the decree. Under
the amended CPC, read in the light of the explanation, though it is
still not necessary for the respondent to take any cross-objection
laying challenge to any finding adverse to him as the decree
is entirely in his favour and he may support the decree without
STATE OF ANDHRA PRADESH & ORS. v. B. RANGA REDDY
(D) BY LRs & ORS. [HEMANT GUPTA, J.]
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cross-objection; the amendment made in the text of sub-rule (1),
read with the explanation newly inserted, gives him a right to take
cross-objections to a finding recorded against him either while
answering an issue or while dealing with an issue. The advantage
of preferring such cross-objection is spelt out by sub-rule (4). In
spite of the original appeal having been withdrawn or dismissed
for default, the cross-objection taken to any finding by the
respondent shall still be available to be adjudicated upon on merits
which remedy was not available to the respondent under the
unamended CPC. In the pre-amendment era, the withdrawal or
dismissal for default of the original appeal disabled the respondent
to question the correctness or otherwise of any finding recorded
against the respondent."
19. The present is a case where the decree is of dismissal of suit
therefore, entirely in favour of the State and not executable. Though an
issue has been decided against the State as falling within second and
third situation delineated by this Court. This Court held that in the absence
of cross appeals or cross objections, the First Appellate Court did not
have the jurisdiction to modify the decree that is to grant decree for
specific performance which was not granted by the trial court.
20. The Court did not find any merit in the argument that the
Appellate Court was not powerless to grant decree as such decree has
been granted in terms of Order XLI Rule 33 of the Code. The Court
held as under:
"15. ... While allowing the appeal or otherwise interfering with
the decree or order appealed against, the appellate court may
pass or make such further or other, decree or order, as the case
would require being done, consistently with the findings arrived at
by the appellate court. The object sought to be achieved by
conferment of such power on the appellate court is to avoid
inconsistency, inequity, inequality in reliefs granted to similarly
placed parties and unworkable decree or order coming into
existence. The overriding consideration is achieving the ends of
justice. Wider the power, higher the need for caution and care
while exercising the power. Usually the power under Rule 33 is
exercised when the portion of the decree appealed against or the
portion of the decree held liable to be set aside or interfered by
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the appellate court is so inseparably connected with the portion
not appealed against or left untouched that for the reason of the
latter portion being left untouched either injustice would result or
inconsistent decrees would follow. The power is subject to at least
three limitations: firstly, the power cannot be exercised to the
prejudice or disadvantage of a person not a party before the court;
secondly, a claim given up or lost cannot be revived; and thirdly,
such part of the decree which essentially ought to have been
appealed against or objected to by a party and which that party
has permitted to achieve a finality cannot be reversed to the
advantage of such party. A case where there are two reliefs
prayed for and one is refused while the other one is granted and
the former is not inseparably connected with or necessarily
depending on the other, in an appeal against the latter, the former
relief cannot be granted in favour of the respondent by the appellate
court exercising power under Rule 33 of Order 41."
 21. Such view of the Court has been followed in a judgment in
Hardevinder Singh. The said judgment arises out of a suit filed for
possession of the suit land, challenging the Will said to be executed in
favour of the defendants. The suit for joint possession was decreed
holding that the Will is surrounded by suspicious circumstances and that
the suit land was joint Hindu family property. In an appeal, the First
Appellate Court recorded a finding that the property of the deceased
Shiv Singh was self-acquired and that the Will in favour of defendant
Nos. 1 to 4 was validly executed.