1. The Appellant has filed the present Second Appeal thereby praying for quashing and setting aside the judgment and decree dated 18th March 2026 passed by the learned Principal District Judge, Sindhudurg at Oros in Regular Civil Appeal No.85 of 2018 and the Cross-Objections filed by Respondent Nos.4(a) to 4(d), arising out of the judgment and decree dated 27th April 2018 passed by the learned Civil Judge, Junior Division, Malvan in Regular Civil Suit No.88 of 2009.

FACTS

2. The Plaintiff filed the aforesaid suit for declaration and perpetual injunction. The Plaintiff claimed that the suit property was ancestral property and that he was in lawful possession thereof. It was contended that the Defendants had no right, title or interest in the suit property. According to the Plaintiff, the Defendants were interfering with his possession and had encroached upon the suit property by constructing a cattle shed and a toilet. The Plaintiff, therefore, sought permanent and mandatory injunction, removal of encroachment, possession and compensation.

3. The Defendants filed their written statements. Defendant Nos.4(a), 4(c) and 4(d) filed separate written statements. Defendant No.4(b) adopted the defence of Defendant No.4. Defendant No.2 also filed a separate written statement adopting the pleadings of the other Defendants.

4. The common defence raised by Defendant Nos.1 to 4 and Defendant Nos.4(a) to 4(d) was that they denied the Plaintiff's ownership and possession as well as the allegations made in the plaint. Defendant Nos.1, 3 and 4 contended that the suit property was never owned or purchased by the Plaintiff and that the same belonged to Defendant No.4. The allegations regarding encroachment and damages were denied.

5. The learned Trial Court partly decreed the suit by granting permanent injunction against the Defendants. However, the prayers seeking declaration, possession, removal of encroachment and compensation came to be rejected. Thus, except for the decree of permanent injunction, all other reliefs sought by the Plaintiff were rejected by the judgment and decree dated 27th April 2018 passed in Regular Civil Suit No.88 of 2009.

6. Being aggrieved thereby, the Plaintiff preferred Regular Civil Appeal No.85 of 2018. Defendant Nos.4(a) to 4(d) also filed Cross- Objections under Order XLI Rule 22 of the Code of Civil Procedure challenging the adverse findings recorded by the learned Trial Court. The learned First Appellate Court, by judgment and decree dated 18th March 2026, dismissed the appeal preferred by the Plaintiff and allowed the Cross-Objections filed by Defendant Nos.4(a) to 4(d). Consequently, the judgment and decree passed by the learned Trial Court was modified and the relief of permanent injunction granted in favour of the Plaintiff was set aside, resulting in dismissal of the suit in its entirety.

7. The Appellant has challenged the said judgment on various grounds. However, during the course of arguments, learned Counsel for the Appellant restricted her submissions to the following question of law:

                   (A) Whether the Cross-Objections filed by the Defendants in an appeal preferred by the Plaintiff could have been allowed by the First Appellate Court?

8. Learned Counsel for the Appellant has also raised the following question:

                   (B) Whether the Cross-Objectors were duty bound to bring the legal heirs of the sole Appellant/original Plaintiff on record in Regular Civil Appeal No.85 of 2018 and, having failed to do so, whether the impugned judgment and decree dated 18th March 2026 is rendered null and void?

REASONING

9. I have gone through the judgment and decree dated 27th April 2018 passed by the learned Trial Court as well as the judgment dated 18th March 2026 passed by the learned Principal District Judge, Sindhudurg at Oros. The record indicates that the learned Trial Court itself had come to the conclusion that the Plaintiff failed to establish his exclusive ownership over Hissa No.21A. The evidence on record showed that the name of Defendant No.4 continued to appear in the 7/12 extract in respect of Hissa No.21A. The entry was joint and not exclusive. The Plaintiff failed to challenge the mutation entry standing in the name of Defendant No.4. The mutation entry also referred to the certificates issued under Sections 32G and 32M in favour of Ravaji Babaji Murkar and Atmaram Ganu Murkar. The Plaintiff admitted in his evidence that the said 32M certificate was never challenged by him. The material on record, therefore, establishes joint ownership of the Plaintiff and Defendant No.4.

10. It is settled law that in a suit founded upon title, the Plaintiff must establish clear and exclusive possession over the suit property in order to claim permanent injunction against the Defendants. The learned Trial Court itself held that though the Plaintiff was in possession of the suit property, he could not be said to be in possession thereof as an exclusive owner. The learned First Appellate Court, therefore, rightly set aside the decree of permanent injunction erroneously granted by the learned Trial Court. Despite the finding that the names of the Defendants also stood mutated in the 7/12 extract of the suit property.

11. The Plaintiff has also failed to prove the specific encroachment allegedly committed by Defendant No.4 by constructing a toilet and cattle shed. The Plaintiff merely relied upon the report of the Court Commissioner. The Commissioner's report was based largely upon statements recorded from the parties during inspection. There was no independent assessment made by the Commissioner. The Commissioner himself admitted in cross-examination that he had recorded statements of the parties despite there being no authorization from the Court to do so.

12. The Plaintiff further failed to establish the actual extent of the alleged encroachment and also failed to prove that the construction was made in his exclusive portion. Since Hissa No.21A was found to be jointly possessed by the Plaintiff and Defendant No.4, the learned Trial Court itself rejected the relief of removal of encroachment.

13. Hence, I do not find any perversity in the findings recorded by the learned Trial Court as well as the Appelate Court.

14. In so far as Question of Law No.(A) is concerned, it is well settled that under Order XLI Rule 22 of the Code of Civil Procedure, a Respondent is entitled to file Cross-Objections against adverse findings and seek appropriate reliefs available in law. The Hon'ble Supreme Court in the judgment of Dhangir and Ors. V/s. Madan Mohan & Ors reported in AIR 1988 SC 54 has considered the scope and ambit of Order XLI Rule 22 of the Code of Civil Procedure and held that the such an objection is maintainable.

15. It is almost settled law that if the objection filed by the corespondent cannot be entertained under Order XLI Rule 22 of the CPC, even then the Civil Court has ample power under Order XLI Rule 33, which could then be exercised and come to the rescue of the objector. The Appellate Court could very well exercise the power under Rule 33 even if the appeal is only against a part of the decree of the lower Court. The said power under Order XLI Rule 33 can be exercised by the Appellate Court in favour of all or any of the respondents, even though such respondents may not have filed any appeal or objection. The sweep of the power under Rule 33 is very wide and liberal, enabling the Court to determine questions not only between the appellant and the respondents, but also between the respondents and co-respondents. The Appellate Court can also resort to the power under Order XLI Rule 33 to pass any decree or order which ought to have been passed in the circumstances of the case. As the words used in Order XLI Rule 33 are “as the case may require”, the Appellate Court is empowered to pass any order or decree that would meet the ends of justice.

16. Though, in the facts of the present case, Order XLI Rule 22 itself was very much available to the Appellate Court to entertain the objections against some of the findings recorded by the Trial Court at the instance of the respondents in an appeal filed by the Plaintiffs. In my view, therefore, no error has been committed by the learned First Appellate Court in allowing the Cross-Objections preferred by Defendant Nos.4(a) to 4(d) in the appeal filed by the original Plaintiffs.

17. Thus, in view of the provisions of Order XLI Rule 22 of the Code of Civil Procedure as well as the judgment of the Hon'ble Supreme Court cited supra, I do not find any error in the judgment passed by the learned First Appellate Court in allowing the Cross-Objections preferred by Defendant Nos.4(a) to 4(d) in the appeal filed by the original Plaintiff. Question of Law No.(A) is answered accordingly.

18. In so far as Question of Law No.(B) is concerned, it could be seen from the record that the Plaintiff who had preferred Regular Civil Appeal No.85 of 2018 had himself failed to bring on record the legal heirs of the deceased Plaintiff. The impugned judgment dated 18th March 2026 is a common judgment rendered in the appeal preferred by the original Plaintiff as well as the Cross-Objections filed by Defendant Nos.4(a) to 4(d). The Plaintiff himself failed to inform the Appellate Court about the death of the original Plaintiff. The son of the Plaintiff was already representing Plaintiff as his Power of Attorney holder even in the appellate proceedings. The right to sue survived even after the death of Appellant. No material is placed on record to indicate that any pursis or the Death Certificate was filed before the Appellate Court informing it about the death of the original Plaintiff. The Plaintiff, therefore, cannot be permitted to take advantage of his own wrong.

19. Question of Law No.(B) is answered accordingly. No other substantial question of law arises for consideration in the present appeal.

20. I do not find any error in the impugned judgment and decree dated 18th March 2026 passed by the learned Principal District Judge, Sindhudurg at Oros modifying the decree passed by the learned Trial Court, setting aside the relief of permanent injunction and dismissing the suit in its entirety.

21. The Second Appeal is devoid of merits and is accordingly dismissed.

22. In view of the disposal of the Second Appeal, interim application (ST)No.4682 of 2026 does not survive and the same accordingly is disposed of.