Surendran v. Respondents (RSA No. 680 of 2020)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA,** **1944** ## **RSA NO. 680 OF 2020** **AGAINST THE JUDGMENT AND DECREE DATED 20.05.2020 IN AS 123/2015 OF SUB COURT,NEYYATTINKARA OS 127/2010 OF I ADDITIONAL MUNSIFF COURT, NEYYATTINKARA** ## **APPELLANT/APPELLANT/1ST DEFENDANT:** SURENDRAN AGED 62 YEARS S/O.AMBROS, PLAMTHOTTAM PODUVAL VEEDU, THIRUPURAM DESOM, THIRUPURAM VILLAGE, THIRUPURAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM-695121. BY ADVS. S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH ## **RESPONDENTS/RESPONDENTS/1ST PLAINTIFF, ADDL.PLAINTIFFS 3 TO** ## **7 AND DEFENDANTS 2 AND 3:** 1 JOHNY AGED 72 YEARS S/O.PONNUMANI NADAR, KIZHAKKARUKU PUTHEN VEEDU, MACHAKUNNU, AMCODU DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK, ANAVOOR P.O.(VIA), PERUMPADAVILA, THIRUVANANTHAPURAM, PIN-695124. 2 SALU, AGED 40 YEARS S/O.JOHNY, KIZHAKKARUKU PUTHEN VEEDU, MACHAKUNNU, AMCODU DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK, ANAVOOR P.O.(VIA), PERUMPADAVILA, THIRUVANANTHAPURAM, PIN-695124. R.S.A.No.680/2020 2 3 JOHN, AGED 38 YEARS S/O.JOHNY, KIZHAKKARUKU PUTHEN VEEDU, MACHAKUNNU, AMCODU DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK, ANAVOOR P.O.(VIA), PERUMPADAVILA, THIRUVANANTHAPURAM, PIN-695124. 4 SHAJI, AGED ABOUT 36 YEARS,KIZHAKKARUKU PUTHEN VEEDU, MACHAKUNNU, AMCODU DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK, ANAVOOR P.O.(VIA), PERUMPADAVILA, THIRUVANANTHAPURAM, PIN-695 124. 5 SHEELA AGED ABOUT 36 YEARS,KIZHAKKARUKU PUTHEN VEEDU, MACHAKUNNU, AMCODU DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK, ANAVOOR P.O.(VIA), PERUMPADAVILA, THIRUVANANTHAPURAM, PIN-695 124. 6 SHEEJA ,AGED ABOUT 33 YEARS,D/O.JOYIS, KIZHAKKARUKU PUTHEN VEEDU, MACHAKUNNU, AMCODU DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK, ANAVOOR P.O.(VIA), PERUMPADAVILA, THIRUVANANTHAPURAM, PIN-695 124. 7 GILBERT, AGED ABOUT 44 YEARS, S/O.PHILIP, PALLIVILA VEEDU, KAKKARAVILA,NALLOORVATTAM DESOM,KULATHOOR VILLAGE, PLAMOOTTUKKADA P.O.(VIA), AMARAVILA, PIN-695 122. 8 PREETHA, AGED ABOUT 35 YEARS, D/O.RETNABHAI, PALLIVILA VEEDU, KAKKARAVILA,NALLOORVATTAM DESOM,KULATHOOR VILLAGE, PLAMOOTTUKKADA P.O.(VIA), AMARAVILA, PIN-695 122. BY ADVS. SRI.M.PROMODH KUMAR R1 TO R3 SMT.MAYA CHANDRAN SRI.K.PRAVEEN BABU THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 02.11.2022, THE COURT ON 17.11.2022 DELIVERED THE FOLLOWING: R.S.A.No.680/2020 3 ## **M.R.ANITHA, J** ****************** R.S.A.No.680 of 2020 -----------------------------------------------Dated this the 17[th] day of November, 2022 ## **JUDGMENT** This Regular Second Appeal has been directed against the judgment and decree in A.S.No.123 of 2015 on the file of Subordinate Judge's Court, Neyyattinkara which in turn arise out of the judgment and decree in O.S.No.127/2010 on the file of Additional Munsiff's Court-I, Neyyattinkara. 2. First defendant is the appellant. (Parties would hereafter be referred as per their status before the trial court). Suit is one for permanent injunction. Plaint schedule property originally belonged to Thomson, S/o.Joseph. As per document No.1474/1971, Thomson settled the property in favour of the plaintiffs and accordingly it is in their absolute possession and enjoyment for the last more than 30 years. Plaint schedule R.S.A.No.680/2020 4 property have got well defined boundaries all around and is lying as a single plot. Plaintiffs had been residing in the property and the house has been decayed and lost in the long run. Defendants have no manner of right over the plaint schedule property. When the defendants attempted to trespass into the plaint schedule property and cut the tress on 30.01.2010, plaintiffs prevented them by timely action. 3. The property was given to the plaintiffs by putting boundary stones on east and west. From 1971 onwards, plaintiffs erected boundary by arranging stones in the place where the stone was laid by Thomson. The property inside that boundary is having an extent of 44.5 cents. The defendants have no manner of right to trespass into the plaint schedule property. Hence the suit. 4. Defendants filed written statement disputing the description of the plaint schedule property and its lie as a single plot. Right of Thomson over the schedule property and execution of Ext.A1 and his entitlement to execute Ext.A1 is also denied. The plaint schedule property is a rocky land with no boundaries R.S.A.No.680/2020 5 as described in the plaint. First defendant has every right over 33.33 Ares of property comprised in Re-survey Nos.527/7, 527/7-2, 527/7-3, 527/6-2 and 527/6-1 by virtue of sale deed No.268/04 (Ext.B1). The property comprised in Re-survey No.527/6-2 and 527/6-1 were demarcated as 527/6-19 and 527/6-20. The property comprised in Re-survey No.527/6 has got an extent of 13.98 Ares. Plaint schedule description is made including portion of property comprised in Survey Nos.527/19 and 527/20. Survey No.527/7 is situated east to Survey Nos.527/19 and 527/20. The cause of action alleged is denied. The attempt of the plaintiffs is to grab portion of the property of the 1[st] defendant. As per re-survey, plaint schedule property has got only an extent of 13.98 Ares and hence injunction sought for is not allowable. 5. PW1 and PW2 examined and Exts.A1 to A8 marked from the side of the plaintiffs. DW1 to DW3 examined and Exts.B1 to B3 marked from the side of the defendants. Exts.C1, C1(a), C2, C2(a) were also marked. 6. On evaluating the facts and circumstances and R.S.A.No.680/2020 6 evidence adduced, trial court found that Thomson has got absolute title over the property and is empowered to execute Ext.A1 in favour of the plaintiffs. Plaintiffs proved their absolute possession over the plaint schedule property having well defined boundaries. It is also found that the documents produced from the side of the defendants to establish their title over a portion of plaint schedule property is on the strength of re-survey records which will not confer title and accordingly the suit was decreed as prayed for. Against which 1[st] defendant filed the appeal and the first appellate court, on re-appreciating the facts and circumstances, found that finding of the trial court regarding possession of the plaintiffs over the plaint schedule property is well founded and hence there is nothing to interfere with the decree of injunction granted against the defendants. It is also found that Ext.A1 is not proved and that trial court should not have gone into the question of title since such an issue has not been raised. 7. Having lost before the two forums, first defendant approaches this Court in the second appeal. R.S.A.No.680/2020 7 ## 8. This Court admitted the appeal on the following substantial question of law. _“i) When the oral evidence as regard possession of plaint schedule property by plaintiff stands in contravention with the documentary evidence produced, whether the court below is justified in placing reliance on oral evidence by putting a blind eye on documentary evidence.”_ 9. Notice was issued to the respondents. Respondents appeared through Adv.M.Pramodh Kumar. Lower court records were called for and both sides were heard. 10. Learned counsel for the appellant/first defendant contended that plaintiffs could not establish their right and possession over the plaint schedule property of 44 ½ cents described in the plaint and Ext.A1 by which the plaintiffs obtained title over the schedule property states about 32 ½ cents. Hence, oral evidence adduced by the plaintiffs cannot override the documentary evidence and it is also his contention that courts below decreed the suit based on the Commissioner's report and R.S.A.No.680/2020 8 that is not permissible under law. It is also his contention that plaintiffs could not prove the possession by cogent evidence. It is his further contention that trial court found even the title of the plaintiffs over the plaint schedule property and though the first appellate court found that the plaintiffs could not prove title over the plaint schedule property, first appellate court concurred with the trial court on the aspect of possession of the plaintiffs over the schedule property which, according to him, is illegal and improper. It is also his contention that simple suit for injunction without a prayer for declaration is not maintainable since the defendants raise a genuine dispute with regard to title which created a cloud on the title of the plaintiffs. The title of plaintiffs though found by the trial court in favour of the plaintiffs, first appellate court found against the title of the plaintiffs and no cross objection has been filed against it and hence the question of title has become final. 11. Learned counsel for the plaintiffs, on the other hand, would contend that plaint schedule property originally belonged to Thomson, the father of the second plaintiff and Ext.A1 R.S.A.No.680/2020 9 settlement deed was executed by the father with respect to 32½ cents of property. According to him, the property settled as per Ext.A1 is actually 44½ cents. It is also his contention that Thomson was holding a total extent of 2 Acres 60 cents of property in 'Pattam' and from that the eastern half of 1 Acre 30 cents and further ¼ of it lying as second tak from east of it has been given to the plaintiffs as per Ext.A1. So, the schedule property is part of eastern half of 1 Acre 30 cents of property originally belonged to Thomson. It is also his contention that the defendant purchased the property from Retna Bhai, another daughter of Thomson to whom Thomson settled 30 cents of property as per Ext.A6. He also purchased property comprised in Re-survey No.527/7 from PW2, his brother and Janaki extending to 11 Ares which is lying on the extreme east as borne out from the Commissioner's report. It is also his contention that Retna Bhai has no property in Re-survey No.527/7 and as per Ext.A3, the property of Retna Bhai as well as that of the plaintiffs are comprised in Re-survey No.527/6 and that property has been clearly demarcated in Ext.C2(a) by the Commissioner. Further, he R.S.A.No.680/2020 10 would contend that Retna Bhai sold the property as per Exts.A7, A8 and A9. So, it is on the basis of subsequent sale by virtue of Exts.A7, A8 and A9 the defendants claim Re-survey Sub Division Nos.527/6/19 and 527/6/20. That Sub Division itself, according to him, is based on wrong title deeds executed by Retna Bhai. He would also contend that as per Ext.A7 she had transferred 23 cents in 2003 describing the total extent of her property as 48 cents. As per Ext.A8 she sold 25 cents in favour of daughter and son-in-law in 1999. As per Ext.A9 she sold 5 cents in 2004. Whereas as per Ext.A6 Thomson gifted only 30 cents of property to her. But the plaintiff's right and possession of the plaint schedule property has been established through the evidence of PW1 and PW2 as well as Commissioner's report and plan and hence there is no reason to interfere with the concurrent findings of facts made by the courts below. 12. Learned counsel for the plaintiffs would also contend that the first appellate court went wrong in finding that the plaintiffs have not proved Ext.A1. He would rely on Order XLI Rule 22 of the Code of Civil Procedure, 1908 (in short 'the Code') R.S.A.No.680/2020 11 to contend that the plaintiffs/respondents are entitled to contend that the finding against them is wrong in an appeal filed by the appellant. 13. I would answer that issue first. Rule 22 of Order XLI provides that any respondent who has not filed appeal from any part of 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 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. In this case, admittedly the plaintiffs have not filed any crossobjection as per Order XLI Rule 22. 14. 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 R.S.A.No.680/2020 12 reference to the changes brought by the Amendment Act of 1976 (Act 104 of 1976). In paragraph 23, the effect of the amendment was 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 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_ R.S.A.No.680/2020 13 _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 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_ R.S.A.No.680/2020 14 _default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.”_ (emphasis supplied) ## 15. Paragraphs 24 to 26 are also relevant in this context to be extracted, which read thus: _“24. Order XLI Rule 22(2) of the CPC states that a “cross-objection shall be filed in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.” This Court in S. Nazeer Ahmed v. State Bank of Mysore (2007 (2) KLT 369 (SC) = (2007) 11 SCC 75) elaborated on the form of objections made under Order XLI Rule 22 CPC. In Nazeer Ahmed (supra), the respondent had filed a suit for enforcement of an equitable mortgage. In deciding the suit, the Trial Court rejected the argument of the appellantdefendant and held that the suit was not barred by Order II Rule 2 of the CPC. However, the court dismissed the suit on grounds of limitation. On an appeal filed by the respondent before the High Court, the High Court observed that although the suit was barred by Order II Rule 2 of the CPC, the appellant had not challenged this finding of the Trial_ R.S.A.No.680/2020 15 _Court by filing a memorandum of cross-objection. Thus, the High Court granted the respondent a decree against the appellant. When this finding of the High Court was assailed before this Court, Justice P.K. Balasubramanyam held that a memorandum of cross-objection needs to be filed while taking recourse to Order XLI Rule 22 only when the respondent claims a relief that had been rejected by the trial court or seeks an additional relief apart from that provided by the trial court. The court held that a memorandum of objection need not be filed when the appellant only assailed a ‘finding’ of the lower court: “7. The High Court, in our view, was clearly in error in holding that the appellant not having filed a memorandum of crossobjections in terms of Order 41 Rule 22 of the Code, could not challenge the finding of the trial court that the suit was not barred by Order 2 Rule 2 of the Code. The respondent in an appeal is entitled to support the decree of the trial court even by challenging any of the findings that might have been rendered by the trial court against himself. For supporting the decree passed by the trial court, it is not necessary for a respondent in the appeal, to file a memorandum of cross-objections challenging a particular finding that is rendered by the trial court against him when the ultimate decree itself is in his_ R.S.A.No.680/2020 16 _favour. A memorandum of crossobjections is needed only if the respondent claims any relief which had been negatived to him by the trial court and in addition to what he has already been given by the decree under challenge. We have therefore no hesitation in accepting the submission of the learned counsel for the appellant that the High Court was in error in proceeding on the basis that the appellant not having filed a memorandum of cross-objections, was not entitled to canvas the correctness of the finding on the bar of Order 2 Rule 2 rendered by the trial court._ _(emphasis supplied)_ _25. It is apparent from the amended provisions of Order XLI Rule 22 CPC and the above authorities that there are two changes that were brought by the 1976 amendment. First, the scope of filing of a cross-objection was enhanced substantively to include objections against ‘findings’ of the lower court; second, different forms of Saurav Jain v. M/s A.B.P. Design (Dr. D.Y. Chandrachud, J.) (SC) This product is Licenced to:Justice M.R.Anitha ©2021 Law Times KLT Online Print Pages 16 of 24 04.11.2022 Disclaimer : The text is computer generated. The authenticity must be verified from the certified copy of the judgment/gazette. raising cross-objections were recognised. The amendment_ R.S.A.No.680/2020 17 _sought to introduce different forms of crossobjection for assailing the findings and decrees since the amendment separates the phrase “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” from “may also take any cross-objection to the decree” with a semi colon. Therefore, the two parts of the sentence must be read disjunctively. Only when a part of the decree has been assailed by the respondent, should a memorandum of crossobjection be filed. Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a cross objection._ 26. _The applicability of the principle in Order XLI Rule 22 CPC to proceedings before this Court under Article 136 of the Constitution was considered by a Constitution Bench in the decision in Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji (1964 KLT OnLine 1294 (SC) = AIR 1965 SC 669). Justice J.R. Mudholkar overruled the judgment of the three judge bench in Vashist Narain Sharma v. Dev Chandra (1954 KLT OnLine 1036 (SC) = (1955) 1 SCR 509) which had rejected the argument of the respondent that a party could raise arguments on the ‘findings’ that were against him, while supporting the judgment. It was held that Order XLI_ R.S.A.No.680/2020 18 _Rule 22 of the CPC does not have application to an appeal under Article 136. In Ramanbhai Ashabhai Patel (supra), this Court held that the provisions of Order XLI Rule 22 of the CPC are not applicable to the Supreme Court and the rules of the Supreme Court do not provide for any analogous provisions. However, it was held that this deficiency must be supplemented by drawing from CPC: “18. […] Apart from that we think that while dealing with the appeal before it this Court has the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like Order [4]1 Rule 22 of the Code of Civil Procedure it can devise the appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency than by drawing upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions as are suitable. We cannot lose sight of the fact that normally a party in whose favour the judgment appealed from has been given will not be granted special leave to appeal from it. Considerations of justice, therefore, require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that judgment. […]” (emphasis supplied)_ R.S.A.No.680/2020 19 _Expanding on this further, a two judge Bench (Justice R.C. Lahoti speaking for himself and Justice Brijesh Kumar) of this Court in Jamshed Hormusji Wadia v. Port of Mumbai ((2004) 3 SCC 214), observed: “35. A few decisions were brought to the notice of this Court by the learned Additional Solicitor General wherein this Court has made a reference to Order 41 Rule 22 CPC and permitted the respondent to support the decree or decision under appeal by laying challenge to a finding recorded or issue decided against him though the order, judgment or decree was in the end in his favour. Illustratively, see Ramanbhai Ashabhai Patel [Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji, 1964 KLT OnLine 1294 (SC) = AIR 1965 SC 669], Northern Railway Co-op. Credit Society Ltd. [Northern Railway Co-op. Credit Society Ltd. v. Industrial Tribunal, AIR 1967 SC 1182] and Bharat Kala Bhandar (P) Ltd. [Bharat Kala Bhandar (P) Ltd. v. Municipal Committee, Dhamangaon, 1965 KLT OnLine 1378 (SC) = AIR 1966 SC 249] The learned Additional Solicitor General is right. But we would like to clarify that this is done not because Order 41 Rule 22 CPC is applicable to appeals preferred under Article 136 of the Constitution; it is because of a basic principle of justice applicable to courts of superior jurisdiction. A person who has entirely_ R.S.A.No.680/2020 20 _succeeded before a court or tribunal below cannot file an appeal solely for the sake of clearing himself from the effect of an adverse finding or an adverse decision on one of the issues as he would not be a person falling within the meaning of the words ‘person aggrieved’. In an appeal or revision, as a matter of general principle, the party who has an order in his favour, is entitled to show that even if the order was liable to be set aside on the grounds decided in his favour, yet the order could be sustained by reversing the finding on some other ground which was decided against him in the court below. This position of law is supportable on general principles without having recourse to Order 41 Rule 22 of the Code of Civil Procedure. Reference may be had to a recent decision of this Court in Nalakath Sainuddin v. Koorikadan Sulaiman [2002 (3) KLT 224 (SC) = (2002) 6 SCC 1] and also Banarsi v. Ram Phal [2003 (1) KLT OnLine 1114 (SC) = (2003) 9 SCC 606]. This Court being a court of plenary jurisdiction, once the matter has come to it in appeal, shall have power to pass any decree and make any order which ought to have been passed or made as the facts of the case and law applicable thereto call for. Such a power is exercised by this Court by virtue of its own jurisdiction and not by having recourse to Order 41 Rule 33 CPC though in_ R.S.A.No.680/2020 21 _some of the cases observations are available to the effect that this Court can act on the principles deducible from Order 41 Rule 33 CPC. It may be added that this Court has jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Such jurisdiction is conferred on this Court by Article 142 of the Constitution and this Court is not required to have recourse to any provision of the Code of Civil Procedure or any principle deducible therefrom. However, still, in spite of the wide jurisdiction being available, this Court would not ordinarily make an order, direction or decree placing the party appealing to it in a position more disadvantageous than in what it would have been had it not appealed.”_ (emphasis supplied) 16. From the above principles, it is discernible that respondent can file cross-objection when a decree has been passed partly in favour of the appellant and partly in favour of the respondent and also when the decree is entirely in favour of the respondent though an issue has been decided against the respondent and thirdly when the decree is entirely in favour of R.S.A.No.680/2020 22 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. 17. As held in **Banarsi** quoted above, in cases where a decree is entirely in favour of the respondent though an issue has been decided against him and also in cases where a decree is entirely in favour of the respondent and all the issues have also been answered in favour of him but there is a finding in the judgment which goes against him the Code did not entitle or permit the respondent to file any cross-objection since he was not the person aggrieved by the decree. But, as per the amended C.P.C, though it is not necessary for the respondent to take any cross-objection challenging any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection, the amendment in view of Sub Rule (1) read with Explanation enables him to file a crossobjection to a finding recorded against him either by answering an issue or by dealing with an issue. So, the advantage of preferring such cross-objection is that even if the original appeal R.S.A.No.680/2020 23 has been withdrawn or dismissed for default, the cross-objection can be proceeded with by the respondent for adjudication on merits. 18. In the present case, the suit was one for simple injunction and the trial court decreed the suit even finding the question of title also in favour of the plaintiffs but the first appellate court though dismissed the appeal, in the aspect of title found that Ext.A1 title deed of the plaintiff was marked subject to proof. It is further found that the plaintiff did not recourse to Section 69 of the Indian Evidence Act to prove Ext.A1. It is further observed that, even inspite of that, the trial court came to the conclusion that the plaintiffs could establish their title and possession over the plaint schedule property. Thereafter, it goes on discussing that the question of title is not much relevant in a suit for injunction and the trial court ought not have decided the question of title in the absence of an issue in that regard and trial court went wrong in finding that the plaintiffs have got title over the plaint schedule property. So, in effect, the question of title has been found against the plaintiffs. R.S.A.No.680/2020 24 19. The contention of the learned counsel for the appellant/defendant is that since the appellate court decided question of title against the plaintiffs and no cross-objection has been filed, that question has become final and plaintiffs cannot agitate the same before this Court. The contention so advanced by the learned counsel for the defendant is not sustainable in law. Though the appeal was decided in favour of the plaintiffs, passing a decree dismissing the appeal and upholding the decree of injunction passed, there is a finding made adverse to the plaintiffs with respect to Ext.A1 to the effect that it has not been proved. It is also found that plaintiffs failed to prove title over the property. So that finding can very well be challenged by the plaintiffs in this appeal without filing any cross-objection in view of the settled position of law above discussed. So also, the learned counsel for the plaintiffs would also contend that Ext.A1 is the certified copy of the sale deed and it has come out in evidence that the original has been lost due to the attack by the white ants. So, the certified copy produced ought to have been admitted in evidence and the finding of the first appellate court R.S.A.No.680/2020 25 that Ext.A1 is not proved is not correct. 20. Though it is contended that Ext.A1 is a certified copy of a document of more than 30 years and hence as per Section 90 of the Indian Evidence Act it is admissible in evidence, as has been held in **Harihar Prasad Singh And Another vs Must. Of Munshi Nath Prasadand : AIR 1956 SC 305** presumption regarding execution under Section 90 of the Indian Evidence Act, 1872 is applicable only with respect to original documents. 21. Ext.A1 admittedly is the certified copy of the title deed No.1474/1971 of the plaintiff. It is to be noted that during crossexamination of PW1, it was brought out that the original of Ext.A1 has been lost due to attack by white ants and witnesses are not alive. It is also to be noted that during cross-examination of DW1, he was confronted with the two pages of the original of Ext.A1. It is also to be noted that the first two pages of the original of Ext.A1 is seen enclosed with the file. There is nothing to disbelieve the evidence of PW1 that the original of Ext.A1 has been lost due to attack by white ants. R.S.A.No.680/2020 26 22. Section 65 of the Indian Evidence Act deals with cases in which secondary evidence relating to documents may be given and Section 65(c) expressly provides that when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time the court can accept, party is empowered to give secondary evidence. 23. In the present case, first two pages of the original of Ext.A1 produced from the side of the plaintiffs could not be marked only because it is only a part of the document which substantiate the contention of the plaintiffs that the remaining pages have been lost due to the attack of white ants. So, this is a fit case in which Ext.A1 could have been accepted in evidence by the first appellate court. The finding by the first appellate court that Ext.A1 is not proved is illegal and incorrect. 24. The learned counsel for the defendant would contend that a simple suit for injunction is not maintainable in this case and he would place reliance on **Jharkhand State Housing Board vs Shri Didar Singh : (2019) 17 SCC 692** wherein it R.S.A.No.680/2020 27 has been held that in each and every case where defendant disputes title of the plaintiff, it is not necessary that in all those cases plaintiff has to seek relief of declaration. However, when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, plaintiff cannot maintain a suit for bare injunction. That was a case in which plaintiff filed suit for permanent injunction and the Board (Jharkhand State Housing Board) issued notice asking the plaintiffs to quit and gave vacant possession of the suit schedule land contending that plaintiff has no legal right and title over the plaint schedule property and the sale deed executed by the vendor will not confer any right and title to the plaintiff. It is also contended that the suit schedule property along with other property was acquired by the Board by way of land acquisition proceedings in the year 1965 and possession was handed over to them and hence except the defendant Board, nobody else has title over the property. It has been found by the Apex Court in paragraph 12 which has been highlighted by the learned counsel that in the facts of the case defendant Board was relying upon R.S.A.No.680/2020 28 the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances, it was held that plaintiff ought to have sought for the relief of declaration and courts below went wrong in entertaining a suit for injunction. So, whether the law laid down in that case is, applicable to the case in hand can be determined only on further discussing the facts and circumstances in the present case. 25. Learned counsel for the defendant would contend that in the plaint there is no averment with regard to 2 Acres 60 cents of property and how it was obtained and whether the plaint schedule property is a part of it etc. So, according to him, though the plaintiffs described the plaint schedule property as 44½ cents, they obtained title by virtue of Ext.A4 with respect to 32½ cents of property only. On examining the plaint schedule description of the property it is described as 44½ cents of property as the second tak from the east which is, ¼ of 1 Acre 30 cents which in turn is ½ of 2 Acres 60 cents of Karikkuparayadi purayidam on its eastern side. In that description the original R.S.A.No.680/2020 29 survey number is shown as 450/11A and Re-survey number is 527/6. Plaintiff further produced Ext.A2 series tax receipts pertaining to the property comprised in Survey No.527/6 (old survey No.450/11A) having an extent of 32.40 Ares in the name of plaintiffs as well as Retna Bhai dated 01.06.1998. Ext.A2(b) is the tax receipt issued in the name of same persons dated 21.11.1994 and Ext.A2(c) is dated 22.10.2003. Ext.A3 is the certified extract of basic tax register with respect to survey No.527/6 having an extent of 32.40 Ares in the name of the plaintiffs as well as Retna Bhai. It also shows the assessment of tax with respect to Re-survey No.527/7 (old survey No.450/11A3) in the name of Devadasan Nadar and his wife Ponni Janaki from whom admittedly the defendant had purchased the property comprised in Re-survey No.527/7. That property is not in dispute also. Dispute is with respect to the property comprised in Re-survey No.527/6 and the defendant claims right over a part of that property. According to them, after purchase of property by them it has been sub divided to Re-survey Nos.527/19 and 527/20. Ext.A5 is the re-survey sketch produced R.S.A.No.680/2020 30 from the side of plaintiffs to establish that the plaint schedule property is comprised in re-survey No.527/6 which is having a total extent of 32.40 Ares which alleged to have been assessed in the name of plaintiffs as well as Retna Bhai. 26. Plaintiffs relies on the oral evidence of 1[st] plaintiff as PW1, and PW2 as well as that of Commissioner's report and plan to prove their exclusive possession of plaint schedule property of 44½ cents. 27. The main contention of the learned counsel for the defendants as stated earlier is that since the plaintiffs could not prove the title of the plaint schedule property and the tax receipts produced by them pertains to plaintiffs as well as Retna Bhai from whom defendants also had purchased the property and since the defendants have got a specific contention that after the purchase of property by him from Retna Bhai and others, property in Re-survey No.527/6 has been subdivided to 527/19 and 527/20 and the Commissioner's sketch also shows the property comprised in Re-survey Nos.527/19 and 527/20 within the demarcated property as plaint schedule if the decree granted R.S.A.No.680/2020 31 by the courts below is maintained it will cause great prejudice to him. But, in this context, learned counsel for the plaintiffs would contend that as per Ext.A6, only 30 cents of property has been gifted by Thomson Nadar in favour of Retna Bhai who is one of his daughters. But, as per Ext.A8 Retna Bhai sold 25 cents (10 Ares 12 sq.metres) of property which she obtained as per Ext.A6. Then, as per Ext.A7, she sold 23 cents of property. (In the schedule attached to Ext.A7, she described the total extent of property in her possession and enjoyment as 48 cents). Again as per Ext.A9, she sold 5 cents of property to her daughter Preetha. So, in total, she assigned 53 cents of property to her daughters and son-in-law. Whereas, she obtained only 30 cents of property by virtue of Ext.A6. 28. Ext.B1 is the document by which the defendant obtained title in which item Nos.1 and 2 have been purchased from PW2 and others which is comprised in Re-survey No.527/7 situated on the eastern side of Re-survey No.527/6 and item No.3 is the property covered by Ext.A7. Item No.4 is 25 cents settled by Retna Bhai in favour of her daughter and son-in-law as R.S.A.No.680/2020 32 per Ext.A8. So, it would indicate that the defendant is claiming title over the properties covered by Ext.B1 while the predecessorin-interest of part of property i.e Retna Bai has no right over the entire properties covered by the deeds. In other words, when Retna Bhai had title over 30 cents of land as per Ext.A6, she had executed deeds with respect to 53 cents of land. So, it is by taking those factors into account, only the defence put up by the defendants can be analysed when they claim title and possession over the plaint schedule property. It is true that defendants produced tax receipts Exts.B2 to show payment of tax with respect to the property comprised in Re-survey No.527/20 and 527/19 showing the extent as 10/12 Ares and 09/30 Ares and other properties comprised in Survey No.7-2 and 7-3 etc. He also produced Ext.B3 re-survey plan to show that the properties purchased in Re-survey No.527/6 is sub divided as 527/19 and 527/20. But, as rightly pointed out by the learned counsel for the plaintiffs, those sub division numbers happened to occur on the basis of Exts.A7 to A9. R.S.A.No.680/2020 33 29. On the other hand, 1[st] plaintiff was examined as PW1 and deposed about the right and possession of plaint schedule property having an extent of 44½ cents. There is a specific allegation in the plaint that though the extent shown is 32½ cents in Ext.A1, the property in their possession as per the title deed is 44½ cents. PW2 is the nephew of Thomson who along with others sold property to the first defendant. PW2 filed chief affidavit stating that while selling the property Thomson Nadar, his uncle gave the property by putting boundary stones on the east and west and he also speaks that they have put up boundaries on the east and west and was residing in the property by planting rubber trees. He also speaks that though the extent of property is described as 32½ cents, the actual extent was 44½ cents. During cross-examination, he asserted that while boundary stones were put he was present and stones were laid on eastern and western extremities. 30. First defendant got examined as DW1. During crossexamination, he admitted that the vendors in Ext.B1 had entrusted the prior documents as well as the tax receipts. R.S.A.No.680/2020 34 Further, he added that those were not handed over to him. He also admitted that Retna Bhai obtained 30 cents of property as per the settlement deed of Thomson Nadar (Ext.A6) and that was handed over to him by Retna Bhai. He also stated that it is the right of Retna Bhai that Reena Gilbert, Preetha and Retna Bhai together sold to him. That is 48 cents. But he further admitted that 48 cents was not lying demarcated. It was further admitted that there are no boundaries or re-survey stones in any portion of the said 48 cents. It is to be noted that as per Ext.A6 settlement deed Retna Bai obtained only 30 cents of property. Further, he deposed that in the year of purchase itself he effected mutation and tax was paid with respect to survey Nos.527/7, 527/6-1, 527/6-2. Though he claims that tax receipts have been produced before the court, it is not seen produced. He also admitted that the property is not lying demarcated and he is not doing any cultivation in the property obtained by him though subsequently he added that he has Anjili, Rubber and cashew nut tree in the property. On another occasion, he categorically admitted that there are no boundaries in the property purchased R.S.A.No.680/2020 35 by him on any side. DW3 is another independent witness examined by the defendant. Though he speaks during chief examination that defendant purchased 78 cents in total and he is in enjoyment of the said property and plaintiffs have no property in that area, during cross-examination he admitted that the plaintiffs have property there. 31. DW2 is the Commissioner. Exts.C1 and C1(a) are the ex parte Commissioner's report and plan. In Exts.C1 and C1(a), the Commissioner has given a clear picture of the plaint schedule property and has reported that on the north and west of the plaint schedule property there are rocks partially and in the remaining areas there is boundaries made of mud ridges and the southern boundary is the bank of a channel and on the eastern boundary there is a boundary made of granite stones and according to the Commissioner, the boundaries have more than 10 years old. Commissioner further reported about the cultivation as tapioca and rubber in the property and also existence of cashew nut tree, Anjili trees and mango trees. Exts.C2 and C2(a) are the report and plan based on the measurement of the R.S.A.No.680/2020 36 property with the assistance of Surveyor. The plaint schedule property is demarcated as ABCDKLMNST having an extent of 44.5 cents. Eastern boundary is shown as SN line. Western boundary is DK line. Commissioner also demarcated 32.5 cents of property as ABCLMNST which is on the extreme eastern side. Commissioner reported that in the DK line, from D point upto the rock on the North, there is 3 ft height mud ridge and on the eastern side i.e on SN line there is 3 ft height boundary arraigned with granite stones. According to the Commissioner, eastern and western boundary of the plaint schedule property are having old age of more than 12 years. 32. At the instance of the defendants, property comprised in Re-survey No.576/6 has been demarcated with total extent of 81.863 cents. The property in Re-survey sub Division No.527/19 which is claimed to be sub divided from 527/6 is demarcated showing an extent of 22.313 cents. Property comprised in Resurvey sub Division No.527/20 claimed to be sub divided from resurvey No.527/6 is also measured and demarcated with an extent of 25.006 cents. So, the total extent which the defendant R.S.A.No.680/2020 37 claims as sub divided from Re-survey No.527/6 is 47.319. But the total extent of property of Retna Bhai, the predecessor-ininterest of the defendant is only 30 cents in 527/6 as per Ext.A6. Commissioner also reported that property in Re-survey Nos.527/19 and 527/20 are not lying demarcated on the site as shown in the plan. 33. The plaintiff has got a specific contention that when there was attempt from the side of the defendant to trespass into the property based on re-survey they filed the suit. Ext.A1 document though speaks about 32½ cents of property plaintiffs have got a specific case from the very beginning that as per the lie of the property they are in possession of 44.5 cents of property. That fact is fortified by the oral evidence of PW1 as well as PW2 who is none other than one of the vendors of the defendant and there is well defined boundary marks on the eastern and western boundaries of the plaint schedule property. Northern side is covered with rock and southern side is bank of canal. So, the concurrent findings of the courts below granting injunction in favour of the plaintiffs in view of the possession and R.S.A.No.680/2020 38 enjoyment of the property by the plaintiffs are well founded. So, I do not find any reason while sitting in second appeal to disturb the concurrent finding. In the result, second appeal is found to be devoid of any merit and hence dismissed. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge