The appellants were entitled to assail the adverse findings recorded by the trial court without preferring written cross objection, based on the settled legal position established by the Supreme Court.

1. This is defendant's Second Appeal filed under Section 100 of CPC against the judgment and decree dated 02.05.2007, passed by the District Judge, Rajnandgaon, in Civil Appeal No. 35-A/2006.

2. Facts in brief are that: plaintiffs/respondents filed a suit for declaration and injunction. The suit was contested by the appellants/defendants.

3. The trial court framed following issues:

dz- okn iz’u fu”d”kZ

1- D;k oknhx.k rFkk izfroknhx.k dz- 3 fookfnr Hkwfe gk¡

[k-ua 752@1 ,oa 752@2 jdck 04 fMlfey ds

lg&Lokeh gS A

2- D;k izfroknh dz- 1 o 2 rFkk izfroknh dz- 3 )kjk gk¡

vihy dz- 9&v@95 esa diViw.kZ jkthukek vkosnu

i= is’k dj fnukad 15-03-99 dks vkKfIr izkIr fd;k

gS] og oknhx.k ij ca/kudkjh ugha gS] ;fn gk¡ rks

izHkko A

3- D;k izfr- dzekad 3 oknxzLr Hkwfe dk ,d ek= ugha

Lokeh gS A

4- D;k izfr- dz- 1 o 2 oknxzLr Hkwfe [kljk ua- 752 gk¡

@1 jdck 0-2 fMlfey ds Lokeh gS A

5- D;k oknh dk okn fof/k vuq:i ugha gksus ls gk¡

iks”k.kh; ugha gS A

6- D;k oknhx.k dk okn E;kn ckg~; gS A gk¡

4. The parties led evidence.

5. The findings of the trial court on issue No. 1 & 2 were affirmative in favour of plaintiffs and finding on issue No.3 was also against the defendants. However, the trial court dismissed the suit holding it as time barred and also not maintainable.

6. Plaintiffs preferred first appeal there-against. The first appellate court reversed the finding on issues which have been decided by the trial court against the plaintiffs and decreed the plaintiffs suit.

7. During the course of hearing the first appellate court did not permit the appellants/defendants to assail the adverse findings recorded by the trial court against them on issue No. 1 to 3 without filling any written cross objection. Hence this Second Appeal.

8. This Court, vide its order dated 23.04.2009 admitted the appeal on the following substantial questions of law:

(I) "Whether the first appellate court was justified in denying the hearing to the appellants herein to assail the findings recorded by the trial court against the issue No.1 to 3 without preferring any written objection under Order 41 Rule 22 of CPC while supporting the judgment and decree.

(II) Whether the court below have erred in deciding the applicability of Section 14 (1) of the Hindu Succession Act, 1956 in the facts and circumstances of the case."

9. Shri PKC. Tiwari, learned senior counsel appearing for the appellants would submit: in view of legal position settled by the Supreme Court in case of Ravinder Kumar Sharma Vs. State of Assam and others 1999(7) SCC 435, the appellants were well within their rights to assail the adverse findings without preferring any written cross objection and the first appellate court has grossly erred in holding otherwise and thereby in allowing plaintiff's first appeal.

10. Per contra, Shri RN Jha learned counsel appearing for respondent supported the judgment and decree and submits that the first appellate court was right in not allowing the appellants to assail the adverse findings without preferring written cross objection.

11. I have heard the counsel appearing for the parties, perused the records of both the courts below and the judgment and decree impugned.

12. Indisputably, the trial court recorded findings on issue No.1 to 3 in favour of plaintiffs. However, it dismissed the plaintiff's suit holding it as time barred and not maintainable. There was no occasion with the appellants to assail the above adverse findings as ultimate judgment and decree was in their favour, therefore, they could not assail the adverse findings by filing appeal against the judgment and decree. However, Order 41 Rule 22 permits the appellants to assail the adverse findings, recorded by the trial court against them while supporting the judgment and decree.

13. The question, therefore, arises for determination of this court is whether or not the appellants can assail the adverse findings recorded by the trial court on issue No. 1 to 3 without filing written cross objecti