B. J. HEGDE, J. ( 1 ) COURT receiver appointed in o. s. No. 50/1966 on the file of the civil judge's court, mangalore, filed a suit in o. s. No. 99/1972 before the munsiff, karkala, for permanent injunction restraining the appellant-defendant from trespassing into any portion of plaint 'a' schedule property or to instal the pumpset thereon and to obtain electrical connection and for mandatory injunction directing the defendant to remove the shed and also the channel. During the pendency of the suit, one laxmimathi shedthi, the respondent herein, was impleaded as the second plaintiff as the suit schedule property was allotted to her in o. s. No. 50/1966 which was a partition suit. Thereafter, the present respondent continued the litigation and the receiver disappeared from the scene. The learned munsiff decreed the suit in part. The appellant-defendant was restrained by means of a permanent injunction from interfering with the possession and enjoyment of the respondent-plaintiff of s. No. 29/12 except the shed and the portion occupied by the shed. The appellant-defendant was directed to pay compensation of Rs. 200/- towards the portion of the plot where the shed was constructed by the appellant-defendant. The respondent-plaintiff was also held to be entitled to damages of Rs. 75- and Rs. 25/- respectively towards the cutting of wild jack tree and removal of a wall of the kottige. The relief sought for mandatory injunction and damages in respect of a tree was rejected, laxmimathi, the respondent herein, filed an appeal in r. a. No. 1/1977 before the learned civil judge, udupi. By his judgment dated 16-1-1982, the learned civil judge allowed the appeal and the finding of the trial judge with regard to issue No. 6 awarding compensation of Rs. 200/- in lieu of mandatory injunction and also granting permanent injunction against the appellant and his men were set aside. The appellant was directed to remove the portion of the shed constructed by him on the western side of the suit property on or before 16-3-1982 and he was permanently restrained from interfering with the peaceful possession and enjoyment of the suit property including the portion of the land on which the shed was situated after removal. The appellant, who was the defendant before the trial court, has challenged this judgment of the civil judge in this second appeal. The appellant, who was the defendant before the trial court, has challenged this judgment of the civil judge in this second appeal. ( 2 ) SRI karanth, learned counsel for the appellant, has challenged the judgment of the civil judge on three grounds. In the first place, he contends that the appellant though was entitled to canvass before the civil judge that the entire suit deserved dismissal without filing a cross-appeal or objection he was prevented from doing so. It is also his contention that a suit filed for mere injunction without seeking possession is not maintainable. The third contention is that the relief of damages of Rs. 200/- granted by the trial court was adequate under the circumstances and the civil judge was not justified in reversing this conclusion as the basis for reversal was not borne out by records. ( 3 ) AS pointed out earliaer, the suit of the respondent was partly decreed. The grievance of the appellant is that though he was entitled to canvass before the learned civil judge that the findings recorded by the trial court were erroneous, he was prevented from doing so on the ground that he did not prefer any cross-objection or cross-appeal under order 41, Rule 22. The learned civil judge accepted this contention. Order 41, Rule 22 (1) reads thus :"any respondent, though he may not have appealed from any part of the decree, may not only support the decree 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. "sub-rule (1) of Rule 22, even after the amendment in 1976, has not made any departure from what it stood prior to the amendment. The question is whether the appellant herein could have challenged the findings of the trial judge without filing a cross-appeal or objection and if so to what extent. "sub-rule (1) of Rule 22, even after the amendment in 1976, has not made any departure from what it stood prior to the amendment. The question is whether the appellant herein could have challenged the findings of the trial judge without filing a cross-appeal or objection and if so to what extent. This question came up for consideration before a full bench of the Madras High Court in the case of venkata rao v sathyanarayanamurthy, ILR 1944 mad. 147 (fb) : AIR 1943 Madras 698 (fb), wherein it is clearly stated that it is open to a defendant-respondent who has not taken any cross-objection to the partial decree passed against him, to urge in opposition to the appeal of the plaintiff a contention which if accepted by the trial court would have necessitated the total dismissal of the suit. But, the only limitation is that the partial decree passed against the respondent becomes final and he cannot avoid it. It is always open to him to contend that the plaintiff is not entitled for an increased decree by showing that the suit of the plaintiff should have been dismissed in toto. This view of the full bench of the Madras High Court was approved in the case of Sri chandra prabhuji jain temple and others v harikrishna and another, AIR 1973 SC 2565 . In paragraph 20 of the decision, the Supreme Court has observed thus:"in the management of itaklwolie tea estate v its workmen, AIR 1960 SC 1349 , the question whether in such circumstancesj a respondent who has not appealed from the decree can be allowed to urge such a plea in answer to a claim by an appellant for a further decree although the plea might imperil the decree already obtained was left undecided. But the full bench decision of the Madras h. c. in venkata rao v satya. Arayanamwthy, ILR 1944 mad. 147 : AIR 1943 mad. 698 (fb) has held that it is open to a respondent who had not filed cross-objection with respect to the portion of the decree which had gone against him "to urge in opposition to the appeal of the plaintiff, a contention which if accepted by the trial court would have necessitated the total dismissal of the suit" but that the decree in so far as it was against him would stand. The decree of the high court here in so far as it held that the mortgage money can be recovered only from the half share in the properties was also a decree in favour of the respondents as it did not allow the claim of the appellants to recover it from the entire interest in the properties. To that extent, the respondents had a decree in their favour. That decree they could support on any of the grounds decided against them by the court which passed the decree. And when they do this, they are only supporting and not attacking that decree. "the grievance of the respondent before the civil judge was that the learned munsiff should have granted the relief of mandatory injunction and the award of compensation of Rs. 200/- was not proper. The appellant wanted to contend that the respondent was not entitled even to the relief of damages on the basis of evidence, while opposing the claim of the respondent for an increased decree in the form of mandatory injunction. In doing so he was not challenging the part of the decree in his favour but was only trying t,o avoid his burden determined under the decree appealed against being increased. The first contention of Sri karanth therefore will have to be accepted. ( 4 ) LEARNED counsel appearing on both sides, having regard to the fact that this case has been pending since the year 1972, urged before me that the entire matter could be disposed of by me as provided in Section 103 of the CPC as all the materials required for arriving at a proper decision are borne out by records. Hence, i proceed to consider the other two contentions raised by Sri karanth, learned counsel for the appellant, ( 5 ) THE second contention of Sri karanth relates to the maintainability of the suit. As pointed out by him, the respondent has not sought possession of the suit property. It is his contention that the trial judge having come to the conclusion that the respondent had been dispossessed alleast about a month prior to the suit should not have granted injunction. As pointed out by him, the respondent has not sought possession of the suit property. It is his contention that the trial judge having come to the conclusion that the respondent had been dispossessed alleast about a month prior to the suit should not have granted injunction. Sri achar, learned counsel for the respondent, on the other hand, contends that the appellate court has not given any finding in this regard and a passing remark by the trial judge in this connection will not tantamount to his giving a definite finding that the respondent has been dispossessed or that she has not been in possession of the disputed portion of the suit property on the date of the suit. ( 6 ) SRI karanth relies on the various averments made in the plaint and also the relief sought for in support of his contention that a case of dispossession of a portion of the suit property over which a shed has been constructed could be made out. In the plaint it is averred that the appellant has forcibly commenced to construct a shed in the western side of the suit property. It is further averred that the appellant has put up a shed in the suit property for the purpose of installing a pump-set and that he is bound to remove the said shed and restore schedule 'a' property to her original possession. In paragraph 8 of the written statement, the appellant has contended as follows:"admittedly the plaintiff is not in possession of the suit property and the defendant is in possession of the same. The plaintiff is not entitled for mandatory injunction without claiming possession of the property. The suit is bad under Section 51 of the Specific Relief Act. "the learned munsiff in paragraph 17 of his judgment while discussing issue nos. 2 and 3 says that it has been proved by the respondent that the appellant has encroached upon the respondent's land. In paragraph 20 of his judgment where he has discussed issue No. 10, he has stated that the respondent has proved that the appellant has encroached a portion of s. No. 29/12 a month prior to the filing of the suit. He has again repeated his observation in paragraph 21 that the appellant has encroached upon the suit schedule properly a month earlier to the suit and constructed the shed thereon. He has again repeated his observation in paragraph 21 that the appellant has encroached upon the suit schedule properly a month earlier to the suit and constructed the shed thereon. These materials clearly show that the conclusion of the learned munsiff is that the respondent has been dispossessed of a portion of s. No. 29/12 which is owned by her. ( 7 ) THE next question for consideration is whether in such a situation, an injunction could be issued when the respondent has not sought possession. Section 5 of the Specific Relief Act says that a person entitled to the possession of specific immovable property may recover in the manner provided by the CPC. Sri karanth relies on a decision of this court in the case of narttyan mukund shet v narayan nagesh shetty, ILR 1988 (4) Karnataka 3035, wherein it is laid down that injunction cannot be granted in favour of a person not in actual possession of the property. Injunction is usually granted to protect the possession. In the instant case, the respondent was not in possession of a portion of the property at least from one month prior to the date of the suit. The trial court was not justified in granting the relief of injunction having come to the conclusion that the respondent was not in possession of the same. Sri acharya points out that all that the respondent wanted was a mandatory injunction over a bit of the property over which the shed has been constructed in s. No. 29/12 and that the trial court has held that the respondent has title over that portion. But, the difficulty is to direct the appellant to give up possession of the portion of the shed which is already in his possession by issuance of a mandatory injunction when the respondent has not sought the relief of possession. The relief of injunction over the portion in s. No. 29/12 over which the shed now stands could not have been granted. But, that does not mean that the appellant can avoid the partial decree passed against him by the trial court as he has not challenged that decree so far, in view of what has been stated in the cases of venkata rao v sathyanarayanamurthy, AIR 1943 Madras 698 and Sri chandra prabhuji jain temple and others v harikrishna and another, AIR 1973 SC 2565 . ( 8 ) LET me now consider the last contention of Sri karanth to the effect that the civil judge was not justified in granting mandatory injunction in lieu of compensation of Rs. 200/- awarded by the trial court as damages. The learned munsiff having regard to the facts held that the respondent did not suffer any loss and that she could be compensated by damages. It is on record that the appellant has encroached upon s. No. 29/12 to the exten of 96 sq. Ft. The learned munsiff construed this as a small area. He has also observed that the said space was vacant and that the appellant had completed the construction of the shed. He also took into consideration of the fact that the appellant had entered into an agreement with the Karnataka electricity board for the supply of power connection for the pump-set to be installed in the shed. Having regard to these materials, he came to the conclusion that the respondent should be granted compensation of Rs. 200/- and by that ends of Justice will be met. He also relied on a decision in the case of nidamarti jaladurga prasadarayudu v ladooram sowcar, 162 Indian cases 1936 page 288, wherein it is stated that when the issue of a mandatory injunction would involve the removal of a completed structure which entails no inconvenience and only slight invasion of the plaintiffs right not committed wantonly or after protest, pecuniary compensation is the more appropriate remedy. ( 9 ) THE learned civil judge in appeal has reversed this finding of the learned munsiff on the ground that the appellant had wantonly encroached upon the respondent's land and committed various acts complained of inspite of temporary injunction being in force against him and even after protest by the respondent. Sri karanth, learned counsel for the appellant, contends that the learned civil judge had absolutely no material to come to this conclusion and to reverse the findings of the trial court. The civil judge has relied on an application said to have been made by the receiver before the trial court for contempt and attachment and the report of the commissioner to hold so. The application of the receiver to which reference has been made by the learned civil judge is la. No. Iii filed on 19-1-1973. This was supported by an affidavit of the receiver dated 6-12-1972, exhibit p-12. The application of the receiver to which reference has been made by the learned civil judge is la. No. Iii filed on 19-1-1973. This was supported by an affidavit of the receiver dated 6-12-1972, exhibit p-12. It may be noted that the suit was filed on 16-3-1972 and at that time an application for temporary injunction was filed by the receiver in la. No. Ii. The prayer in la. No. Ii reads thus:"for the reasons stated in the affidavit annexed hereto the court may be ' pleased to issue a temporary injunction against the defendant restraining him from installing a pumpset in the shed situated in schedule a property or any portion of the said property and from getting the electric service connection to the said shed or pump-set or to any portion of the schedule a property and from cutting and removing any trees existing in schedule a property until the disposal of this suit and ad interim injunction order and notice be ordered to be issued to be simultaneously for service on the opponent and grant the applicant the costs of this application in the interest of justice. "an ex-parte order of injunction as prayed for in la. No. Ii appears to have been passed on 20-3-1972. la. No. Iii was filed by the receiver alleging that the appellant had committed the breach of the order passed in la. No. Ii. But, there is nothing on record to show that the allegations made in la. No. Iii or the averments made in the affidavit filed in support of la. No. Iii have been accepted by the court as la. No. Iii has not been disposed of at all. The report of the commissioner also does not show that at the time of his inspection, the commissioner found that the plastering work was going on, door frames were being fixed and the work of electric wiring was also going on in respect of the shed, as observed by the learned civil judge. The civil judge has also observed that the appellant has sufficient open space of his own and he could reconstruct the shed by removing the encroachment. The first two grounds which influenced the civil judge to reverse the finding of the trial court, as already pointed out, are not borne out by records. The civil judge has also observed that the appellant has sufficient open space of his own and he could reconstruct the shed by removing the encroachment. The first two grounds which influenced the civil judge to reverse the finding of the trial court, as already pointed out, are not borne out by records. The civil judge was also not justified in granting mandatory injunction on the ground that the appellant has other sufficient space. Evidently, he ignored that the pumpset shed which is already been completed will have to be reconstructed even if a portion of the shed is removed, granting of mandatory injunction is a discretionary remedy and the learned munsiff, in my view, has excreted his discretion properly and the civil judge was not justified in interfering with his discretion without sufficient materials. ( 10 ) UNDER the circumstances, the appeal is allowed. The judgment and decree of the learned civil judge, udupi, d. k. , dated 16-1-1982 in r. a. No. 1/1977 is set aside. However, for the reasons already stated, the decree of the learned munsiff, karkala in o. s. No. 99/1972 will stand. No costs. --- *** --- .