1964 Supreme(HP) 10

HIGH COURT OF HIMACHAL PRADESH
OM PARKASH, J.
Krishan Dev
Versus
Smt. Ram Piari
Civil Revn. No. 10 of 1963
Decided On : 20-06-1964

A respondent cannot challenge the finding of the learned Senior Subordinate Judge about the ownership of the portion, in dispute, in the absence of a cross-appeal or cross-objections.

Headnote:

CIVIL PROCEDURE CODE - ORDER 41 RULE 22 - SUPPORTING DECREE - GROUNDS - RESPONDENT CANNOT CHALLENGE FINDING OF OWNERSHIP WITHOUT FILING CROSS OBJECTIONS.

Fact of the Case:

The respondent filed a suit for possession of a portion of the site, comprised in Khasra No. 19, situated in bazar Badah, after demolition of the structures, put by the petitioner, and for the issue of a permanent injunction. The petitioner denied that he had encroached upon any portion of the site, belonging to the respondent. He pleaded that he had put up structures on his own land which he had purchased from Satya Pal. The learned Senior Subordinate Judge Mahasu held that the petitioner had encroached, by putting up structures, upon a portion, measuring 132 sq. feet, of the site, belonging to the respondent. But he did not order demolition of the structures and did not grant possession of the portion, encroached upon to the respondent, as in his opinion, the balance of convenience lay in favour of the petitioner and ends of justice would be met if the respondent was awarded compensation. Accordingly he granted the respondent a decree for Rs. 300/-, as compensation for the portion, encroached upon ? and also issued a permanent injunction, against the petitioner restraining him from interfering with the possession of the rest of the site. The respondent did not feel satisfied with the award of compensation. She went up in appeal to the District Judge, Mahasu, and claimed possession of the portion measuring 132 sq. feet, illegally encroached upon by the petitioner, after removal of the structures. The petitioner did not file any appeal or cross-objections, against the decree of the Senior Subordinate Judge. But in the appeal, filed by the respondent, it was contended, on his behalf, that the finding of the Senior Subordinate fudge that the portion, measuring 132 sq. feet of the site, belonged to the respondent, was incorrect and that, that portion in fact, formed part of the land belonging to him. The learned District Judge did not permit the petitioner to raise this contention and to question the finding of the learned Senior Subordinate Judge about the ownership of the portion, in dispute. The reason, given was that in the absence of a cross-appeal or cross-objections, the petitioner could not challenge the finding about the ownership of the portion of the site, in dispute. The learned District Judge accepted the appeal of the respondent, and after setting aside the order, about the award of compensation, granted her a decree for possession of portion, measuring 132 sq. feet, of the site, in dispute, after removal of the structures. The petitioner has come up in revision against the decree of the learned District Judge.

Finding of the Court:

The court held that the petitioner could not challenge the finding of the learned Senior Subordinate Judge about the ownership of the portion, in dispute, in the absence of a cross-appeal or cross-objections. The court further held that the respondent was entitled to get possession of the portion, in dispute, after removal of the structures, as there were no special circumstances depriving her of that right.

Issues: 1. Whether the petitioner could challenge the finding of the learned Senior Subordinate Judge about the ownership of the portion, in dispute, in the absence of a cross-appeal or cross-objections? 2. Whether the respondent was entitled to get possession of the portion, in dispute, after removal of the structures?

Ratio Decidendi: 1. Order 41, Rule 22 of the Civil Procedure Code enables the respondent to support the decree on any of the grounds, decided against him, in the Court below. However, the respondent cannot challenge the finding of the learned Senior Subordinate Judge about the ownership of the portion, in dispute, in the absence of a cross-appeal or cross-objections, as he was not supporting the decree of the learned Senior Subordinate Judge, but was challenging the very basis of the decree. 2. The respondent was entitled to get possession of the portion, in dispute, after removal of the structures, as there were no special circumstances depriving her of that right.

Final Decision: The revision petition was dismissed with costs.