Vithoba and Another vs Smt. Bhimabai

M.B. Vishwanath, J.—Heard both Counsel.

This is a defendants'' appeal u/s 100 of the C.P.C.

The plaintiff filed O.S.No. 19/1971 before the Additional Munsiff and J.M.F.C. Gulbarga, against the defendants praying for declaration of title to the suit property and for possession.

The Trial Court decreed the suit in part.

The Trial Court held that the plaintiff had succeeded in proving her title and granted the decree accordingly. The Trial Court refused to grant the possession prayed for. It held that the defendants had perfected the title by adverse possession. So the, Trial Court, as I have already stated, did not grant the decree for possession.

Aggrieved by the refusal of the Trial Court to grant decree for possession, the plaintiff preferred appeal before the teamed Additional Civil Judge, Gulbarga. The learned Appellate Judge reversed the finding of the Trial Court that the defendants had perfected their title by adverse possession. Accordingly it allowed the appeal and directed the defendants to handover possession of the suit land to the plaintiff.

As I have already stated, the defendants have preferred the present second appeal u/s 100 of the C.P.C.

At the time of admission, the substantial question of law framed by this Court for consideration is:

"Whether the finding of the first Appellate Court that the defendants-appellants have not proved adverse possession is based on correct appreciation of evidence and correct application of the law?"

I have carefully gone through the judgment of the learned appellate Judge. The appellate Judge, after a detailed consideration, reversed the finding of the Trial Court that the defendants had perfected their title by adverse possession.

The conclusion reached by the learned appellate Judge that the appellants-defendants had not perfected their title by adverse possession is a finding on fact. This finding is neither perverse nor illegal. The finding on fact recorded by the first Appellate Court is binding on this Court.

For the aforesaid reasons, I hold the substantial question of law framed by this Court in the affirmative, against the appellants-defendants and in favour of the respondent-plaintiff.

The Learned Counsel for the appellants - defendants relied on the decision of the Patna High Court reported in Naresh Ahir and Others Vs. Mst. Barhiya and Another, to impress upon me that the appellate Judge has not given findings on other points, though those issues were held in favour of the plaintiff. The defendants had not filed any cross-objections or cross appeal.

In the Patna High Court authority what happened was that the suit instituted by the plaintiff was dismissed. He preferred an appeal. In view of the fact that the plaintiff''s suit was dismissed in toto, the plaintiff preferred an appeal, it was held by the Patna High Court that in the appeal it was open to the defendant to canvas the findings with regard to the status of the plaintiff as recorded by the Trial Court. That is not the position here.

In the instant case, the plaintiff succeeded in part and filed the appeal in respect of the relief not granted by the Trial Court. The defendants did not choose to file cross appeal or cross objections.

The law in this regard has been laid down by this Court in Jayakunvar Manilal Shah Vs. Syndicate Bank, . What happened in this case was that the Trial Court partly decreed the suit filed by the Bank and granted interest at the rate of 15% on the principal sum. In the appeal filed by the defendant, the Bank contended that the rate of interest should be enhanced and the decree passed by the Trial Court modified accordingly. This Court held that under Order 41 Rule 22 of the C.P.C., it is open to the respondent in the appeal to support the decree without filing any appeal or cross objections, challenging the findings recorded against him, but it does not enable the respondent to have the decree modified and the liability enhanced without preferring cross objections or cross appeal. In view of the law laid down by this Court, it is not open to the present appellants-defendants to contend that the first Appellate Court did not consider the issues which went against them.

The learned Counsel for the appellants defendants relied on the decision of the Supreme Court reported in Koksingh Vs. Smt. Deokabai, . In this authority of the Supreme Court, the scope of Order 41 Rule 33 of the C.P.C. has been explained by the Supreme Court. The Supreme Court has been pleased to lay down that the High Court is competent to pass a decree for the enforcement of a charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree. This authority relates to moulding of relief by the appellate Court. This has no application to the facts of the present case.

For the aforesaid reasons, the appeal is dismissed. No costs.

In the interests of justice, the appellants-defendants are granted six months time to vacate and handover possession of the suit property to the respondent-plaintiff.