ORDER 41 RULE 22-Cross objections-non-consideration of by the lower Appellate Court-Duty of Trial Courts in cases where cross-objections or cross-appeals are filed-HELD-Whenever cross objections are filed in any appeal, it is the duty of the appellate Court to consider the cross objections, while considering the appeal on merits. When the cross objections are not considered by the lower appellate Court, this Court has to interfere with the judgments of the lower appellate Court, as the same has been passed without application of mind. Whenever cross objections are filed by the respondent is an appeal, it has to be treated as a separate appeal. When two appeals are filed against the same judgment, it was for the appellate Court to consider both the appeals. In the instant case, instead of filing a separate appeal, the appellant had failed cross objections. When the lower appellate Court has failed to consider the cross objections filed under order 41 Rule 22 of Code of Civil Procedure, only on this short ground the judgment and decree of the lower appellate Court has to be set aside.
Appeal allowed.
JUDGMENT
K.L. Manjunath, J.
1. The appellant was the plaintiff in O.S. No. 47 of 1992 on the file of Civil Judge (Senior Division), Srirangapatna. Respondent was the defendant in the suit. Plaintiff filed the suit to declare him as the owner of the suit property and to grant him permanent injunction restraining the defendant, his agents or anybody claiming under him from interfering with his peaceful possession and enjoyment of the suit property and to grant a mandatory injunction directing the defendant to demolish the construction on an area demarcated as ‘MNOP’ in the suit sketch and to direct the defendant to deliver the same.
2. Since a short question is involved in this appeal, it is not necessary to give the details of pleadings and issues and the evidence let in by the parties.
3. According to the plaintiff, he is the owner of the suit property. The defendant is the neighbour of the plaintiff. Since the defendant has encroached the portion measuring 15′ x 45′ marked as ‘MNOP’ in the suit sketch, he requested the Court to declare him as the owner of the suit property and direct the defendant to remove the encroached portion of the plaintiffs property and put the plaintiff in possession of the encroached area and also to grant relief of injunction.
4. The suit was contested by the defendant on the ground that he has not encroached any portion of the suit property and that the plaintiff has no cause of action in the suit.
5. Based on the above pleadings, the following issues were framed by the Trial Court:
(1) Whether the plaintiff proves that he is the owner of suit property?
(2) Whether the plaintiff proves that he is in possession of suit property?
(3) Whether the plaintiff proves that defendant has unlawfully put up construction on ‘MNOP’ portion?
(4) Whether the plaintiff proves that he is entitled to possession of ‘MNOP’ portion?
(5) Is the plaintiff entitled to declaration and permanent injunction sought for?
(6) Is the plaintiff entitled to the mandatory injunction sought for?
(7) Is the plaintiff entitled to possession of ‘MNOP’ portion
Additional issues:
(1) Whether the defendant proves that he is the owner of suit schedule property as stated in para 12(a) of the written statement?
(2) Whether the defendant proves that he has perfected the title of suit schedule property by way of adverse possession
6. Plaintiff was examined as P.W. 1. He relied upon Exs. P. 1 to P. 28. He also examined 4 more witnesses as P.Ws. 2 to 5. The defendant was examined as D.W. 1 and a witness was examined on his behalf as D.W. 2. They relied upon Exs. D. 1 to D. 4. The Trial Court after appreciating the evidence held issues 1, 2 and 5 in affirmative and issues 3, 4 and 6 and additional issues 1 and 2 in negative. The Trial Court decreed the suit of the plaintiff in part declaring him as the owner in possession and enjoyment of suit schedule property. An order of perpetual injunction was also granted directing the defendant from interfering with the peaceful possession and enjoyment of the suit property. However, the relief of possession and mandatory injunction was refused in respect of the encroached area.
7. Aggrieved by the judgment and decree of the Trial Court, the defendant filed an appeal before the Civil Judge (Senior Division) in R.A. No. 53 of 2000. The appellant-plaintiff also filed cross-objections under Order 41, Rule 22 of the Code of Civil Procedure in regard to non-granting of prayer for possession and for mandatory injunction in respect of the alleged encroached area ‘MNOP’ measuring 15′ x 45′. The lower Appellate Court after hearing the learned Counsels for the parties formulated the following points for its consideration:
8. The lower Appellate Court after reconsidering the entire case and on re-appreciation of the evidence held Point Nos. 1, 2 and 4 in affirmative, Point No. 3 in negative and allowed the appeal of the respondent-defendant setting aside the judgment and decree of the Trial Court dated 29-6-2000.
9. Aggrieved by the judgment and decree of the lower Appellate Court, the present appeal is filed by the plaintiff.
10. Though several grounds are urged by the learned Counsels for the appellant, he mainly contends that the lower Appellate Court has not considered the cross-objections filed by the appellant under Order 41, Rule 22 of the Code of Civil Procedure. Whenever cross-objections are filed in an appeal, it is the duty of the Appellate Court to consider the cross-objections, while considering the appeal on merits. Admittedly in the instant case, the appellant-plaintiff being not satisfied with the judgment and decree of the Trial Court had filed cross-objections for having not granted the decree for mandatory injunction and for possession of the encroached area MNOP measuring 15′ x 45′. From the perusal of the judgment and decree of the lower Appellate Court, it is clear that the cross-objections are not considered by the lower Appellate Court. When the cross-objections are not considered by the lower Appellate Court, this Court has to interfere with the judgment of the lower Appellate Court, as the same has been passed without application of mind. Whenever cross-objections are filed by the respondent in an appeal, it has to be treated as a separate appeal. When two appeals are filed against the same judgment, it was for the Appellate Court to consider both the appeals. In the instant case, instead of filing a separate appeal, the appellant had filed cross-objections. When the lower Appellate Court has failed to consider the cross-objections filed under Order 41, Rule 22 of the Code of Civil Procedure, only on this short ground the judgment and decree of the lower appellate has to be set aside.
11. In the result, the regular second appeal is allowed. The judgment and decree passed in R.A. No. 53 of 2000 by the Principal Civil Judge (Senior Division), Srirangapatna, dated 23-2-2005 are hereby set aside. The matter is remitted back to the lower Appellate Court for consideration of the appeal and the cross-objection in accordance with law.