KUNHA NAIKA Vs. LAXMLMATHI SHEDTHI

JUDGEMENT

(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.

(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 :