P.E. Prasan n akumari Karynyam v. T.K. Ambujakshi and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 22[ND] DAY OF DECEMBER 2022 / 1ST POUSHA, 1944 FAO (RO) NO. 191 OF 2014** **AGAINST THE JUDGMENT DATED 31.10.2013 IN AS NO.87/2008 OF DISTRICT COURT, ALAPPUZHA ARISING FROM THE JUDGMENT DATED 11.04.2008 IN OS 622/2004 OF ADDITIONAL MUNSIFF'S COURT, ALAPPUZHA** ## **APPELLANTS/APPELLANTS 1 TO 6/DEFENDANTS 1, 2 AND 4 TO 7:** 1 P.E.PRASANNAKUMARI KARYNYAM, THGIRUVAMPADI P.O., ALAPPUZHA. 2 P.E.SASIKUMARI AGED 54 YEARS MATTATHU HOUSE, VETTUVENI P.O., HARIPAD. 3 AMBILI SOMAN AGED 41 YEARS D/O.P.S.SOMASEKHARAN, ILLATHUVELI, EAST OF KSRTC BUS STAND, NEAR KALIKULAM, CHERTHALA MUNICIPALITY, CHERTHALA. 4 P.K.LEELA BHAI W/O.LATE .P.S.SOMASEKHARAN, ILLATHUVELI, EAST OF KSRTC BUS STAND, NEAR KALIKULAM, CHERTHALA MUNICIPALITY, CHERTHALA. 5 R.SASIDHARAN NAIR MANAVALIL VEEDU, LAKSHMI NIVAS, KALARCODE, ALAPPUZHA. 6 SYAM AGED 38 YEARS S/O.R.SASIDHARAN NAIR,MANAVALIL VEEDU, LAKSHMI NIVAS, KALARCODE, ALAPPUZHA BY ADV SRI.J.OM PRAKASH ## **RESPONDENTS/RESPONDENTS 1 TO 7 AND 7TH APPELLANT/PLAINTIFFS AND THE 8TH DEFENDANT:** 1 T.K.AMBUJAKSHI (DIED) AGED 82 YEARS FAO (RO) No.191/2014 2 W/O.LATE MADHAVAN, VASUDEVAN, THEKKEKANDATHIL HOUSE, THUMPOLY P.O., ALAPPUZHA. 2 V.MOHANAN AGED 63 YEARS S/O..LATE MADHAVAN, VASUDEVAN, THEKKEKANDATHIL HOUSE, THUMPOLY P.O., ALAPPUZHA. 3 JEEJA AGED 55 YEARS D/O.LATE MADHAVAN, VASUDEVAN, THEKKEKANDATHIL HOUSE, THUMPOLY P.O., ALAPPUZHA. 4 JAMEELA (DIED) AGED 49 YEARS D/O.LATE MADHAVAN, VASUDEVAN, THEKKEKANDATHIL HOUSE, THUMPOLY P.O., ALAPPUZHA. 5 JAYASREE AGED 52 YEARS D/O.LATE MADHAVAN, VASUDEVAN, THEKKEKANDATHIL HOUSE, THUMPOLY P.O., ALAPPUZHA. 6 SANTHOSHKUMAR AGED 48 YEARS S/O.LATE MADHAVAN, VASUDEVAN, THEKKEKANDATHIL HOUSE, THUMPOLY P.O., ALAPPUZHA. 7 SINDHU AGED 43 YEARS D/O.LATE MADHAVAN, VASUDEVAN, THEKKEKANDATHIL HOUSE, THUMPOLY P.O., ALAPPUZHA. 8 LAKSHMI (REMOVED) AGED 43 YEARS D/O..R.SASIDHARAN NAIR,MANAVALLIL, LAKSHMI NIVAS, KALARCODE P.O., ALAPPUZHA. R8 IS REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS VIDE ORDER DTD. 11/11/16 IN IA NO. 1149/16 IT IS RECORDED THAT 4TH RESPONDENT DIED AND RESPONDENTS 2,3,5,7 ARE HER LEGAL REPRESENTATIVES AS PER THE ORDER DATED 06/08/2021. IT IS ALSO RECORDED THAT 1ST RESPONDENT IS NO MORE AND HER LEGAL REPRESENTATIVES ARE ALREADY THERE IN THE ARRAY VIDE ORDER DATED 19/03/2021 FAO (RO) No.191/2014 3 BY ADVS. DIPU JAMES GEORGE MATHEW K.S.HARIHARAPUTHRAN M.D.SASIKUMARAN SUNIL KUMAR A.G THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 25.11.2022, THE COURT ON 22.12.2022 DELIVERED THE FOLLOWING: FAO (RO) No.191/2014 4 ## **M.R.ANITHA, J** ****************** ## F.A.O (R.O) No.191 of 2014 --------------------------------------------------------------Dated this the 22[nd] day of December, 2022 ## **JUDGMENT** Appellants are defendants 1, 2 and 4 to 7 in O.S.No.622/04 on the file of Additional Munsiff's Court, Alappuzha. The above F.A.O has been filed against the remand order in A.S.No.87/2008 on the file of District Court, Alappuzha. 2. (Parties would hereafter be referred as per their status in the trial court). The suit is one for fixation of boundaries and prohibitory injunction and mandatory injunction. The plaint schedule property originally belonged to the husband of the first plaintiff and father of the other plaintiffs by name Madhavan Vasudevan by virtue of sale deed No.1815/1954. During the lifetime of Madhavan O.S.No.397/1977 was filed against the predecessors of the defendants and a decree was passed 5 FAO (RO) No.191/2014 declaring the title and possession of the plaint schedule property in that case which was 3 cents of property out of the larger extent of 1 Acre 5 cents and the excess land. On 02.08.2004, defendants put up certain slab walls in the schedule property violating the decree. They removed the survey stones and boundaries separating the plaint schedule property from the defendants' property which necessitated to fix the northern and western boundaries of the plaint schedule properties separating the defendants' property. The boundary wall or fence also to be put up in the boundaries. Hence the suit has been filed seeking for fixation of boundary and also for permanent prohibitory injunction and to remove the slab walls and other structures put up by the defendants. 3. Defendants filed written statement contending that the suit is not maintainable for fixation of boundary without scheduling the property of the defendants and mentioning its extent and other details. The description of the plaint schedule property is not correct. There is no excess land in the possession of the plaintiffs. Plaintiffs and their predecessor lost considerable FAO (RO) No.191/2014 6 extent of land for widening the national highway on the east and the roads on the south as well as on the north. The extent of property lost for kudikidappu is also in excess of 3 cents. In O.S.No.397/1977 the title and possession of the present plaint schedule property was not declared. The plaintiffs' predecessor though filed E.P.No.387/1997 to execute the decree in O.S.No.397/1977, it was dismissed and Civil Revision Petition filed against the dismissal also ended in dismissal. The defendants have not removed any boundary marks. There is still boundary separating the properties of the plaintiffs and defendants. Defendants have put up slab walls within their property after getting the boundary measured through revenue authorities within the existing boundary marks. Plaintiffs though made efforts to measure the property they failed and ultimately the suit was filed. 4. PW1 examined and Exts.A1 to A11 were marked from the side of the plaintiffs. DW1 to DW5 were examined and Exts.B1 to B18 were marked from the side of the defendants. Exts.C1 series and C2 series were also marked. 7 FAO (RO) No.191/2014 5. On evaluating the facts and circumstances and evidence adduced, the learned Munsiff decreed the suit fixing the northern and western boundary of the plaintiffs' property which separates the adjacent property of the defendants as per Ext.C2(a) sketch. Mandatory injunction and permanent prohibitory injunction, as sought for, is also granted. 6. This suit was tried along with O.S.No.900/2003 which was filed by the plaintiffs along with other plaintiffs for the injunction against State and its functionaries. That suit was dismissed against which no appeal has been filed. 7. Aggrieved by the judgment and decree, defendants 1, 2 and 4 to 8 filed A.S.No.87/2008. The first appellate court on re appreciating the facts and circumstances and evidence, set aside the judgment and decree and remanded the case to the court below for locating the property of the plaintiffs inclusive of the way lying on the northern side having width of 1.6 meters and length of 40.2 meters. Aggrieved by the order of remand, the defendants approached this Court in this appeal. FAO (RO) No.191/2014 8 8. Notice was issued to the respondents/plaintiffs. Lower court records were called for and both sides were heard. 9. Learned counsel for the appellants advances argument on the following grounds: i) Since re-survey has been finalised during the pendency of the suit as per Section 13 of the Kerala Survey and Boundaries Act, (in short 'the Act') boundary has to be fixed on the basis of re-survey plan and court cannot ignore the re-survey plan and fix boundary on the basis of old survey plan. ii) The suit filed for fixation of boundary alone without a prayer for recovery possession is not maintainable. 10. Learned counsel for the respondents/plaintiffs on the other hand, would contend that resurvey records will not confer title to the land owners and property cannot be measured on the basis of re-survey plan. It is also his contention that it is based on the re-survey plan and the consequent measurement effected, the defendants trespassed into a portion of plaint schedule property and put up slab walls on 02.08.2004 and immediately on 13.08.2004 the suit has been filed seeking for fixation of FAO (RO) No.191/2014 9 boundary and the consequent reliefs. Since the defendants were not in settled possession of the plaintiffs properties, there is no need to sue for a recovery possession, as contended. 11. Though the appeal arise out of remand order of the first appellate court, the defendants counsel argued only on the basis of the question of law above stated. According to the learned counsel for the defendants, since re-survey has been finalised as per Section 13 of the Act, the boundaries have to be fixed on the basis of re-survey plan. In this context, the learned counsel brings to my attention Essakku **Johnson v. Janaki Pillai: 2003 (1) KLT SN 81 (C.No.111)** . That case arouse out of suit for declaration of title, possession and for putting up of boundaries and for a perpetual injunction. The trial court decreed the suit declaring the plaintiff's title and possession of the plaint schedule property and defendants were also restrained by an order of injunction from trespassing into the plaint schedule property and the plaintiffs were allowed to put up boundary at the cost of the plaintiffs as per Ext.C2 plan. Defendants were also directed to dismantle the building put up by them in the plaint FAO (RO) No.191/2014 10 schedule property. The appeal filed against which also ended in dismissal, against which the defendants approached this Court in second appeal. The defendants have got a contention that their property is lying within the well defined boundaries on four sides and they have been in possession of property for long number of years and the survey number of the property is also specified and they disputed the description of the plaint schedule property and they specifically contended that they are in possession of 1 Acre 42 cents of property on the western and northern side of the plaintiffs property. It is also contended that their property is lying in a higher level and the plaintiffs have only got 86 cents as per re-survey plan and has no title to any land in excess of the same. Ext.A2 was the partition deed by which plaintiffs' predecessor was allotted 1.56 Acres of land in Sy.No.27/1A and Commissioner demarcated that plot in the plan. But, it is further found that even though the plaintiffs described 1.56 Acres of property in the plaint schedule comprised in survey No.27/1A, from the very beginning, the contention of the defendants is that the plaintiffs have got possession with respect to 86 cents and the dispute is FAO (RO) No.191/2014 11 with respect to 76 cents. Defendants have also got a contention that re-survey has started even prior to the suit and the corrected survey plan is in tune with the Commissioner's report in the earlier partition suit between two branches of the plaintiffs' tharavadu and also the admission made in another registered partition deed of 1952 to which the plaintiffs were also parties. In that document it is specifically stated that the property in this survey number though shown to have an extent of 1.56 Acres, the actual extent is only 95 cents. That is found to be more or less in consonance with the report of the Commissioner in the earlier partition suit where the Commissioner reported that the actual extent available in re-survey No.27/1A is only 86 cents. It is in that context that this Court held that the suit has been filed only in the year 1985 and the re-survey was ordered as early as on 1967 and the corrected re-survey records could not have been brushed aside as a document which came into existence after the suit. It is also found that the suit has been filed for declaration of title and possession. But the courts did not find any act of possession from the side of plaintiffs but granted an injunction FAO (RO) No.191/2014 12 presuming possession in view of the extent in the survey number as per the records and the extent shown in the title deed. So, on going through the fact situation of the case, it is very clear that even as per the previous title documents including a partition deed in the family of the plaintiffs, there is specific mention that though the extent is shown as 1.56 Acres in re-survey No.27/1A, the actual extent is only 95 cents and the Commissioner in the earlier partition suit also reported that the actual extent available in re-survey No.27/1A is only 86 cents. Taking all those factors into account, learned Single Judge found that since re-survey has been ordered as early as in 1967, the corrected re-survey records could not have been brushed aside. 12. In this context, learned counsel for the plaintiffs bring to my attention **Ibrahim v. Saythumuhammed : 2013 (4) KLT** 435 wherein the very same learned Single Judge while dealing with Section 10 of the Act in a case for fixation of boundary, it has been categorically held that it is not for the survey authorities to decide the question of title based on survey records and merely because a portion of plaintiffs' property is FAO (RO) No.191/2014 13 shown in re-survey records with defendants survey number, it cannot lead to an inference that possession was with the defendants. So also, in **Venugopalan Nair v. Saraswathy Amma : 2013 (4) KLT 717,** another learned Single Judge while dealing with Section 13 of the Act it has been held that the changes in the extent of property in the re-survey by itself will not confer title and it is also held that even beyond the period of one year after finalisation of re-survey, a suit for title disputing the re-survey is maintainable. In **Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others : (2014) 2 SCC 269** , a two Judge Bench of the Apex Court categorically held that entries in revenue records do not confer title. So, the contention of the learned counsel that since resurvey has been finalised during the pendency of the suit, the boundaries ought to have been fixed on the basis of re-survey as per Section 13 of the Act can not be accepted . The decision in **Johnson** referred above is relating to the peculiar facts and circumstances of the case in which even the previous title deed of the plaint schedule property itself would disclose a lesser extent FAO (RO) No.191/2014 14 of property than that has been shown in the title deed. In that circumstances, it was held that re-survey which has been started decades before the filing of the suit ought not have been brushed aside. 13. The cause of action for filing the present case is also relevant in this context to be taken note of. It is alleged that on 02.08.2004 defendants put up slab walls and encroached into a portion of the property owned by the plaintiffs and removed barbed wire fencing, survey stones and boundary stones from the boundaries. Hence the suit for fixation of boundary and perpetual injunction against trespass has been filed. Plaint schedule property has been described as 82 cents of property. Though there was an allegation about excess land, at the time of argument as well as in the plaint schedule, the extent of property is described as 82 cents. That is, total 1.56 Acres less 3 cents given as kudikidappu and 20 cents subsequently sold. 14. Defendants in the written statement contended that claim of the plaintiffs is regarding title and possession over 82 cents of land. The trial court accepted the measurement of the FAO (RO) No.191/2014 15 property as per the old survey and Ext.C2(a) plan identifying the property of the plaintiffs comprised in Survey Nos.596/4 and 596/5. The learned counsel for the defendants wanted to accept Ext.C2(b) plan which was prepared based on re-survey measurements and not on the basis of the title deed of the defendants. The specific case of the plaintiffs is that based on resurvey measurements, the defendants trespassed into the plaint schedule property and erected slab walls and hence the suit was filed for fixation of boundary. Admittedly, the total extent of defendants property is 44 cents which is included in Survey No.596/5 (b). Plaintiffs' property is shown to have been included in Survey No.596/5 (c). it is true that the plan containing sub division number could not be produced. However, it has come out from the evidence of DW3 that no sub division of 596/5 is available with the survey authorities. Defendants also did not take any steps to produce the sub divided plan to convince the court that sub division Nos.596/5 (b) and 596/5 (c) are wrongly shown in Ext.C2(a). So, on an evaluation of the entire facts and circumstances, the trial court accepted Ext.C2(a) plan which is FAO (RO) No.191/2014 16 based on old survey plan. It has also been found that since the property of the plaintiffs in survey No.596/5(c) as per Ext.A1 is on the eastern and northern extremity of the entire extent of 596/5 and the defendants property is on the western side, even without any sub division plan, the plaintiffs property could have been easily identified as has been found by the trial court and it is also to be noted that the defendants have no case of having any excess land or their property taking any portion of the property covered by Ext.A1. In the said circumstances, the trial court approved Ext.C2(a) plan based on old survey. 15. The first appellate court, on re-appreciating the facts and circumstances also came to a conclusion that the boundary description, property description and survey description shown in the title deed is based on old survey number and old sub division number and hence it is more safe, reliable and acceptable to measure and locate the property based on the respective title deeds and old survey and sub division plan. Ext.A11 survey sub division plan of survey No.596 dividing it to sub division Nos.4 and 5 has also been taken note of by the first appellate court. FAO (RO) No.191/2014 17 But the contention of the learned counsel for the respondents/plaintiffs is that the first appellate court committed a grave mistake in including UTFL plot having a length of 46.3 meters and width of 1.6 meters out of Sy.No.596/5 while locating the 38 cents covered by Ext.A1 document. After that, the appellate court taken into account the fact that the extent of property covered in Sy.No.596/5 comes to 38 cents, in that, the UTFL plot which is the way portion on the northern side of the plaint schedule property is directed to be included for the reason that in the description of Ext.A1 document no such property has been excluded from the northern portion. But, in this context, learned counsel for the plaintiff bring to my attention Ext.A5 document of 1945 by which the defendants predecessor purchased this way. In paragraph 2 of Ext.A5, it is stated that the property having length of 93 links in east west direction and width of 7 links in north-south direction has been sold. So also, in Ext.A9 case (O.S.No.397 of 1977) even though there was an attempt on the part of the defendants to contend that there was a pre-existing way and in order to increase the width of the way, FAO (RO) No.191/2014 18 property having measurement of 93 links in east-west and 7 links in north-south was purchased by the defendants, it has been found that there is nothing to show that there was a pre-existing way on the southern side of subsequently acquired 7 links of way, as contended by the first defendant in that case. Hence, it has been found that no portion of property on the southern side of the existing 7 links wide way had ever been used as way by defendants 1 and 2 in that case. (Predecessors-in-interest of defendants). That decree has become final. It is also to be noted that in Ext.A5, the southern boundary is shown as the property of predecessor-in-interest of the plaintiff. That also indicates that there is no pre-existing pathway through the property of the predecessor of the plaintiff at the time of execution of Ext.A5. In Ext.A9 case also, the length and width of the way has been found as 46 meters and 1.6 meters respectively. 16. In paragraph 11 of Ext.A9 judgment it is discussed that yet another circumstance is the existence of boundary trees on the southern extremity of the existing 7 links wide way and the plaintiffs' case is that there are barbed wire fencing on the FAO (RO) No.191/2014 19 northern boundary of his property separating from the northern 7 links wide way and that the fence stones, pillars and fencing structures were demolished and uprooted by the defendants on 02.08.1977. So, even at the time of filing the earlier suit, there is a specific mention of 7 links wide way on the northern boundary of the plaint schedule property which would prove convincingly that the northern way is not part of the property covered by Ext.A1. The direction of the appellate court to include UTFL which is the way portion shown in Ext.C1(a) as part of plaint schedule property is factually incorrect. Hence, the finding of the first appellate court that the Surveyor ought to have located the property having an extent of 38 cents in Survey No.596/5 (c) including the way on its northern side out of Survey number is liable to be set aside. 17. According to the learned counsel for the defendants, a suit for fixation of boundary alone with out a prayer for recovery possession is not maintainable in law. Learned counsel relies on **Anjil Vellachi and Others v. Mamuni Bhaskaran alias Vattayil Bhaskaran : 2009 (3) KHC 728** to support his FAO (RO) No.191/2014 20 contention, where a learned Single Judge of this Court held that a suit for fixation of boundary cannot be a short cut or substitute for recovery of possession. That was also a case in which on measurement the plaintiff was found to be not in possession of the disputed plot though it was covered by the title deeds of the plaintiffs. So in that context it was held that the suit merely for fixation of boundary without a prayer for recovery of possession is misconceived. 18. Learned counsel for the plaintiffs on the other hand, would bring to my attention **Chandramathy v. Devakey Amma : 2010 (4) KLY 465** wherein while dealing with Order VI Rule 17 and Order XXXIX Rule 1 of the Code of Civil Procedure, 1908, it has been held that merely because defendants in a suit for fixation of boundary had set up a claim of possession over the suit property, plaintiff need not seek for recovery of possession by amending the plaint. In the present case, the cause of action alleged is on 02.08.2004 when the defendants put up slab walls in the schedule properties based on re-survey measurements and the suit has been filed on 13.08.2004 itself. So, only when there FAO (RO) No.191/2014 21 are materials to conclude that the defendants are in settled possession of the property, the question of recovery possession arise and plea of adverse possession also will have any relevance. The defendants in this case also did not have a different case than the plaintiffs that they have put up the slab walls in accordance with the re-survey measurements. Since there is no material to conclude that the defendants are in settled possession of the part of the plaint schedule property, which is encroached upon as is demarcated by the Commissioner in Ext.C1(a) plan, the necessity of filing a suit for recovery possession also does not arise. So, the contention to the contra raised by the defendants is not sustainable in law. 19. Since the remand order was made by the first appellate court only for the purpose of including the way portion which is marked as UTFL in Ext.C1(a) and it has already been found that it is a way which has been purchased by the defendants as per Ext.A5, there is no necessity to include that portion in the plaint schedule property. The first appellate court in all other respects, concurred with the findings made by the trial FAO (RO) No.191/2014 22 court in fixing the boundary based on the old survey plan. When that finding has been set side, the purpose of remand also will not arise. Hence, the order of remand is set aside. Then question may also arise as to whether case has to be sent back to the first appellate court since the appeal has been filed against the remand order. 20. In this context, learned counsel for the plaintiffs brings to my attention **V.M.Mathew v. Eliswa and Others : 1988(1) KLT 310** wherein while dealing with Order XLI Rule 33, the Division Bench of this Court held that the appellate court can grant a decree in favour of the respondent who has not filed any appeal since Order XLI Rule 33 enables the appellate court to pass any decree or make any order which ought to have been passed or made and to pass or make such further decree or order as the case may require notwithstanding that appeal is as to part only of the decree and this power may be exercised in favour of all or any of the respondents or parties though such respondents or parties may not have filed any appeal or objection. So vast powers has been given to the appellate court under the above FAO (RO) No.191/2014 23 rule to do substantial justice to the parties. 21. In the present case, the plaintiffs did not challenge the remand order. So Order XLI Rule 22 has also some relevance in the fact situation. As per which the respondents though have not appealed from any part of the decree may not only support the decree, but also state that the finding against him in the court below in respect of any issue ought to have been in his favour. 22. In this context, it is relevant to quote **Saurav Jain v. M/s A.B.P. Design : 2021 (4) KLT Online 1119** wherein, a two Judge Bench of the Apex Court has extensively considered the ambit and scope of Order XLI Rule 22 of the Code with reference to the changes brought by the Amendment Act of 1976 (Act 104 of 1976). In paragraph 23, the effect of the amendment considered in **Banarsi & Ors. v. Ram Phal (2003 (1) KLT OnLine 1114 (SC) : (2003) 9 SCC 606)** is quoted which is relevant in this context to be extracted and it reads thus: _“23. The effect of the amendment was considered in Banarsi & Ors. v. Ram Phal (2003 (1) KLT OnLine 1114 (SC) = (2003) 9 SCC 606), where this Court held that after the 1976 amendment, the respondent_ FAO (RO) No.191/2014 24 _could file cross-objections against the ‘findings’ of the lower court, while previously cross-objections could only be filed when the decree of the lower court was partly against the respondent. Justice R.C. Lahoti (as the learned Chief Justice then was), speaking for the two judge bench observed: “10-. […] There may be three situations: (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent. (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent. (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. 11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so postamendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to_ FAO (RO) No.191/2014 25 _take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without crossobjection; the amendment made in the text of subrule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by subrule (4). In spite of the original appeal having been withdrawn or dismissed for default the crossobjection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the preamendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.”_ (emphasis supplied) 23. So, in the present case, learned counsel for the plaintiffs vehemently contend about the falsity of the remand order and pointed out that since the way portion which is directed to be included in the plaint schedule property by the first FAO (RO) No.191/2014 26 appellate court is patently wrong. This Court has already found that the order of remand passed by the first appellate court for the purpose of including UTFL plot in the plaint schedule property is incorrect and unwarranted. The first appellate court in all other respects concurred with the trial court with regard to the measurement made by the Commissioner with the help of Survey Superintendent based on the old survey plan. If that be so, while setting aside the order of remand, the judgment and decree passed by the trial court could be restored to avoid a further remand to 1[st] appellate court. In the result, FAO (R.O) is dismissed restoring the judgment and decree passed by the Additional Munsiff's Court, Alappuzha in O.S.No.622/2004. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge