A party must file a composite appeal against both the suit and counterclaim decrees; failure to do so results in res-judicata barring the appeal.

JUDGMENT :

1. Appellant is the legal heir of the defendant in the suit. The suit was for recovery of possession of Plaint A scheduled property on the strength of the title. As per the plaint allegations, Plaint A schedule property originally belonged to one Sheik Ahmmed as per Ext.A2 Assignment dated 25.11.1978; that the said Sheik Ahmmed executed Ext.A1 Sale Deed dt. 12.02.1981 conveying the plaint schedule property to the plaintiff; that the defendant has 8 cents of land on the western side of the plaint A schedule property; that the defendant constructed a house in a portion of A schedule property; that the defendant shifted her residence to the newly constructed house in Plaint A schedule property; and that though the plaintiff demanded to surrender vacant possession of the Plaint A Schedule property, the defendant refused to surrender the same to the plaintiff. Hence, the suit was filed.

2. The defendant contested the suit by filing a Written Statement and raising a counterclaim. The defendant contended inter alia that the defendant is in exclusive possession of ‘X’ schedule property described in the Written Statement as per document No.4/1982 of SRO Manjeshwar; that there was a vacant land extending 15 cents in front of the residential building of the defendant belonging to the plaintiff; that the defendant encroached into the said 15 cents of land and made construction of residential house and the said portion of Plaint A schedule property is shown as ‘Y’ schedule property; that the defendant has been in possession and enjoyment of ‘Y’ schedule property for last more than 31 years openly and peacefully and uninterruptedly to the knowledge of the plaintiff and she has perfected title by adverse possession. On these contentions, the defendants prayed for a declaration that she had perfected her title to the ‘Y’ schedule property by adverse possession and limitation and for a consequential relief for a permanent prohibitory injunction.

3. Neither the plaintiff nor the defendant adduced any oral evidence. Exts.A1 to A3 and A4 Series were marked from the side of the plaintiff, and Ext.B1 and B2 were marked from the side of the defendant. The Commission Report and Plan are marked as Ext.C1 and C2.

4. The Trial Court found that the plaintiff is entitled to the decree for recovery of possession of the plaint A schedule property on the strength of title. The Trial Court found that the defendant failed to prove any right over the plaint A schedule property, and hence, the Counter Claim is liable to be dismissed. On the said findings, the suit was decreed directing the defendant to surrender vacant possession of plaint A schedule property, which is shown as B1and B2 plots in Ext.C2 Plan, to the plaintiff within two months, failing which the plaintiff is allowed to execute the decree through the process of the court. The Trial Court dismissed the counterclaim raised by the defendant.

5. The defendant filed A.S.No. 38/2016 before the First Appellate Court challenging the judgment and decree in the suit. The defendant did not file any appeal challenging the dismissal of Counter Claim by the Trial Court.

6. The First Appellate Court found that the plaintiff failed to adduce evidence to prove that he had come into actual possession of plaint A schedule property as per Ext.A1 and that the suit claim is unsustainable. But the First Appellate Court refused to allow the appeal, finding that the failure of the appellant to file an appeal against the dismissal of her Counter Claim stands in the way to allow the appeal filed by her. The Appellate Court further found that the defendant was permitted by the Trial Court to appear through a guardian as per order dt 19.02.2013 in I. A No. 1862/2012 and thereafter the defendant was conducting the case through her guardian. There was no application either by the defendant or by her guardian for discharge and there was no order of the Court discharging the guardian. But the appeal was filed by the original