KALIYANNI VELAYDHAN Vs. THANKAMMA

JUDGEMENT

(1.) Defendants 2, 3 and 5 who are also the legal representatives of the 1st defendant, are the appellants. The suit is for declaration of title and possession and for a permanent injunction restraining the defendants from trespassing upon the plaint schedule property, -- 7 cents in extent in Sy. No. 1126/9 of Muttathara Village. There is also an alternative prayer for recovery of possession in case it is found that the plaintiff is not in possession of the property on the date of the suit. The defendants deny the plaintiff's title and contend that the property is in possession of the 1st defendant in his own right.

(2.) Both the courts below have concurrently found the plaintiff's title. The Trial Court also found his possession on the date of the suit and a decree declaring the plaintiff's title and possession and for permanent injunction was granted in favour of the plaintiff. In appeal by the defendants, the lower appellate court confirmed the finding of title but found that the plaintiff has not proved his possession of the property on the date of the suit, and was not therefore entitled to a decree for injunction. On the finding that the plaintiff has title, a decree was granted for recovery of possession of the property in modification of the decree for injunction granted by the Trial Court. It is against this that the defendants 2, 3 and 5, who are also the legal representatives of the 1st defendant have come up in Second Appeal.

(3.) The learned Advocate General appearing on behalf of the appellants has raised a contention that the lower appellate court was wrong in granting a decree for recovery of possession in the absence of a memorandum of cross objections by the respondents before the lower appellate court. The argument is that when the plaintiff was granted a decree for injunction it should be taken that the alternative prayer for recovery of possession of the property had been negatived, and in that view of the matter, there is a decree by the Trial Court against the plaintiff negativing her claim for recovery of possession. The lower appellate court was therefore incompetent to grant a decree for recovery of possession in the absence of an appeal or a memorandum of cross objections by the plaintiff respondent. The learned Advocate General relies on the decision of the Bombay High Court in AIR 1942 Bom. 161 in support of the proposition. In that case the suit was for declaration of title by adverse possession and for injunction. The Trial Court granted a decree for injunction on the finding that the plaintiff was in possession of the property on the date of the suit hut his claim of title by adverse possession was negatived. The decree of the Trial Court was partly in his favour granting him an injunction and partly against him to the extent that his suit for declaration of title by adverse possession was dismissed. The argument that in the appeal by the defendant against the decree granting injunction it is open to the plaintiff to support the decision by urging a claim of title was negatived on the ground that he had not filed an appeal or memorandum of cross objections against the decree dismissing the suit for declaration of title. This case is clearly distinguishable for the reason that the plaintiff respondent in that case was not supporting the decision of the lower court on a ground decided against him. In that case there was a decree declining relief of declaration of title by prescription prayed for by the plaintiff. It was in that context the Bombay High Court held that it is not open to the plaintiff respondent to support the decree for injunction on the basis of a title by prescription decided against him.