' The facts are that the respondent filed a suit against the appellant for possession of the land in dispute through exercise of right of pre-emption. He anchored his this right on being owner of the estate and co-sharer in the Khata. The appellant denied the respondent's superior right of preemption and contested the suit on a number of other grounds. The controversy regarding the respondent's superior right of pre-emption, is reflected by issue No, I which was decided by the learned trial Court in favour of the appellant. Accordingly, the suit was dismissed on 16th November, 1972. The respondent went in appeal. As issues Nos. 2, 3, 5, 6 and 7 were answered by the learned trial Court against the appellant, he filed cross-objections. Issue No, 4 was, however, not pressed by him before the trial Court.
2. The learned first Appellate Court reversed the trial Court's findings on issue No, 1, accepted the appeal and decreed the suit in favour of the respondent. As regards the cross-objections, the Court declined to consider the same, on the ground that the memo. Of cross-objections was not properly stamped.. The trial Court's findings on other issues were thus, not touched. The validity of the judgment and decree of the learned first Appellate Court has been called in question by the vendee through this second appeal.
3. I have heard the learned counsel for the parties and examined the record. The learned counsel for the appellant has not assailed the findings of the learned District Judge on issue No,
1. These are accordingly affirmed. Issue No, 4 having not been pressed below, the finding thereon is also not interfered with. The learned counsel's main argument is that as the respondent's suit was dismissed, he could not file the appeal and thus, it was open to him, to have made submission in the first appeal even on those issues which were answered against him by the learned trial Court, without filing the cross-objections. It is thus, submitted that the learned District Judge fell in error, in not allowing the appellant to contest the appeal on issues other than issue No, 1.
4. There is much substance in this contention. Under Order XLI, rule 22, C.P.C., it was open to the vendee against whom the suit has been dismissed, to support the dismissal, even on those points which were decided by the learned trial Court against him. A party may not prefer an appeal and file cross-objections from that part of decree, which goes against him. However, when right of filing appeal does not accrue, the respondent in opposing the appeal, filed by other party, can urge all the contentions warranting its dismissal. The filing of the cross-objections by the appellant, was thus merely an act of super-arrogation.
5. Such being the position in law, the learned counsel for the respondent did not have much in contesting his issue. He, however, came forthwith the submission that the other issues were not agitated by the appellant before the learned first Appellate Court and that, therefore, he cannot make out a grievance in this behalf now.
6. I am unable to agree with the respondent's learned counsel. The tenor of the impugned judgment amply demonstrates that the learned District Judge labored under the impression that as the cross-objections were not properly stamped, the appellant could not argue other points. But his this view is palpably wrong. The record is not suggestive of any indication that the appellant abandoned his objections to the other issues. It is noteworthy, that the learned District Judge has not even formally affirmed the trial Court's findings on the issues in question. The impugned judgment and decree, therefore, do not conforms to the requirements of law and shall have to be set aside.
7. In this view of the matter, this appeal is accepted, judgment and decree of the learned first Appellate Court set aside and the case is remanded to the learned District Judge who will decide the appeal afresh on the basis of his findings on issues other than Nos. 1 and 4. The parties are directed to appear before him on 21st January, 1984. He may hear the appeal himself or assign it to some Additional District Judge. The suit relates to the year 1967. The appeal shall be, therefore, decided expeditiously preferably within a period of three months. The parties are left to bear their own costs.