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2002 DIGILAW 1644 (MAD)

N. Nallasamy v. K. N. Perumal and Others

2002-12-27

M.KARPAGAVINAYAGAM

body2002
Judgment :- N. Nallasamy, the plaintiff is the appellant herein. He filed the suit for declaration of his title in respect of the suit property and permanent injunction restraining the defendants from using the suit property as a cart track. The suit was dismissed by the trial Court. However, in the appeal filed by the appellant/plaintiff and cross objection filed by the defendants, the lower appellate Court granted decree in favour of the plaintiff in respect of declaration of title by declaring that the plaintiff is entitled to the suit property subject to the right of cart track in the suit property to the defendants. Challenging the same, the second appeal has been filed. 2. According to the plaintiff, the suit property in S.No.302/2 was purchased by his grandfather and after his grandfather and his father and after getting the share of his brother, the plaintiff is in possession and enjoyment of the suit property. The adjacent properties in S.Nos.297, 302/1 and 333 were purchased by the defendant. There is a well in S.No.302/2 in which the plaintiff and defendants have got ½ share. The defendants claim the right of cart track in the suit property belonging to the plaintiff to reach their land situate next to the suit property. Since his possession has been disturbed by the defendants, the plaintiff filed the suit for declaration and permanent injunction. 3. According to the defendants, there is no other way to reach the land except the cart track found in the suit property and the same had been used with the knowledge of the plaintiff and his predecessors for more than 40 years. Therefore, they have right over the cart track. 4. On the basis of the pleadings, issues were framed. The trial Court ultimately dismissed the suit holding that the plaintiff would not be entitled to the relief of declaration and even though the defendants claimed right over the cart track by adverse possession, since Court fee was not paid, the said issue cannot be decided. 5. Having aggrieved over this, the plaintiff filed an appeal before the lower appellate Court. Pending appeal, the defendants filed a cross objection claiming right over the cart track in the suit property. Ultimately, the lower appellate Court granted declaration in respect of the suit property and also allowed the cross objection by declaring the right over the cart track in the suit property. Pending appeal, the defendants filed a cross objection claiming right over the cart track in the suit property. Ultimately, the lower appellate Court granted declaration in respect of the suit property and also allowed the cross objection by declaring the right over the cart track in the suit property. Thus, the decree was passed in favour of the plaintiff declaring that the plaintiff is entitled to the suit property subject to the right of the cart track in the suit property to the defendants. Consequently, the relief of permanent injunction was dismissed. Having not satisfied with that, the plaintiff has filed this second appeal. 6. Though at the time of admission, a substantial question of law was formulated by the order dated 7.8.1992 with reference to the failure of the lower appellate Court in not framing any issue with regard to right to use the suit cart track to the defendants, when the matter was taken up for final disposal,the said issue was given up and requested this Court to permit to file a memo for fresh substantial question of law. Accordingly, it was permitted. The following is the fresh substantial question of law: "When a suit filed by a plaintiff has been dismissed by the trial Court wholly without granting any relief whether the defendant can file a cross objection under Order 41 Rule 22 in the appeal filed by the plaintiff merely against a finding given on an issue found against the defendant by the trial Court? 7. On the basis of this substantial question of law, the arguments were advanced by the counsel for the parties. 8. The counsel for the appellant would cite the decisions in SUPERINTENDING ENGINEER v. B. SUBBA REDDY (1999(4) S.C.C.423) and SHRI RAVINDER KUMAR SHARMA v. THE STATE OF ASSAM AND OTHERS (2000(2) L.W.58) and contend that the cross objection is not maintainable by the defendants when the entire suit filed by the plaintiff was dismissed. 9. The learned counsel appearing for the respondents would cite the authorities in MAHANT DHANGIR v. MADAN MOHAN (1987(Supp) S.C.C.528) and DELHI ELECTRIC SUPPLY UNDERTAKING v. BASANTI DEVI (1999(8) S.C.C.229) and contend that Rule 22 and Rule 33 are not mutually exclusive and as such, the appellate Court could exercise the power under Rule 33, even though the cross objection is not maintainable under Rule 22. 10. 10. I have carefully considered the submissions made by the counsel for the parties. 11. The answer for the substantial question of law submitted through the memo is given in 1999(4) S.C.C.423(supra). The following is the observation: "From the examination of these judgments and the provisions of Section 41 of the Act and Order 41 Rule 22 of the Code, in our view, the following principles emerge: (1) to (4) .... (5) The respondent even though he has not appealed may support the decree on any other ground but if he wants to modify it, he has to file cross objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the court like in appeal. (6) Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give a quietus to the whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal the statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order." 12. In view of the above observation, it is permissible for the defendants, even though they have not filed separate appeal, to file cross-objection to the decree, which objection, he could have taken earlier by filing an appeal. 13. As observed by the Supreme Court, the cross- objection is nothing but an appeal, a cross-appeal at that. Some times, defendant would not choose to file an appeal against the decree, even though it was partly against his interest. This may be with a view to give a quietus to the whole dispute between the parties. 14. However, when the plaintiff in this case having not obtained the decree for declaration in respect of the suit property, challenged the same by filing an appeal, certainly, the defendants, even though they did not file an appeal, would get a chance to file an appeal by way of cross-objection. 15. 14. However, when the plaintiff in this case having not obtained the decree for declaration in respect of the suit property, challenged the same by filing an appeal, certainly, the defendants, even though they did not file an appeal, would get a chance to file an appeal by way of cross-objection. 15. In this case, it is true that the defendants had not chosen to file an appeal. But, when the plaintiff challenged the decree, even though it was partly against the defendants, the defendants were constrained to file the cross-objection and the same can be considered by the lower appellate Court by invoking Order 41 Rule 33. 16. Under those circumstances, I do not find any infirmity in the judgment and decree passed by the lower appellate Court. Consequently, the second appeal is dismissed, as there is no substantial question of law.