HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.901 OF 2006 DATED: 28.06.2011 BETWEEN: Md.Fiazuddin and another .. Appellants And Gram Panchayat Medipalli(East) and others .. Respondents HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.901 OF 2006 JUDGMENT: This second appeal arises out of the decree and judgment dated 18.04.2006 passed by the II Additional District Judge, Karimnagar District at Jagtial in A.S.No.7 of 2005 confirming the decree and judgment dated 25.03.2005 passed by the Senior Civil Judge, Jagtial in O.S.No.110 of 1989. 2. I have heard the learned counsel appearing for the appellants as well as the respondents. 3. For the sake of convenience, I would like to refer the parties as ‘the plaintiffs and the defendants.’ 4. The plaintiffs who lost their case in the trial Court as well as in the first appellate Court have filed the present second appeal. 5. The plaintiffs filed the suit in respect of Ac.0.13 guntas of land in Medipally Village in Karimnagar District. They claimed the land to be the Musilim Grave Yard, which is being used as such since about a period of 150 years. The Grampanchayat, MedIpally (East) is the first defendant in the suit. The defendants opposed the suit filed by the plaintiffs contending that the property belongs to the Grampanchayat, which is comprised in Survey No.1010 of Medipally Village. They said that part of the land in Survey No.1010 was allotted by the Grampanchayat for construction of several offices of the Government including the bus-shelter. According to them, the plaint schedule property is part of the land covered by Survey No.1010 and the same has been wrongly claimed by the plaintiffs with a view to grab the same, though in the earlier round of litigation in respect of the property in Survey No.1010 which includes the plaint schedule property, they lost even in the High Court and the matter became final. 6. Both the Courts below have recorded concurrent findings that the plaintiffs have no locus standi to maintain the suit without making the Wakf Board as one of the plaintiffs and that the suit being filed in the individual capacity of the plaintiffs and not being filed in representative capacity, is not maintainable. Both the Courts below have also held that the plaintiffs failed to establish the identity of the property which they claimed by way of seeking reliefs of declaration as Muslim Grave Yard and also for permanent injunction. The contention raised by the defendants is that the plaintiffs have not disclosed the survey number of the land. Since they lost the suit in respect of the land covered by Survey No.1010 and during the course of evidence they put-forth the theory that the land is covered by Survey No.378 is accepted by both the Courts below. Even though, the trial Court held that the properties are different and the present suit is not barred by res judicata. The learned first appellate Court considering the entire evidence on record gave a specific finding that the subject matter of the present suit is part of the subject matter of O.S.No.70 of 1972 on the file of the Subordinate Judge, Jagtial, which went against the second plaintiff and others, which was confirmed by this Court in A.S.No.988 of 1975 and virtually both the cases are between the same parties for the same relief, held rightly that the present case i.e. O.S.No.110 of 1989 on the file of the Senior Civil Judge, Jagtial is clearly barred by res judicata. 7. One of the contentions urged by the learned counsel appearing for the plaintiffs is that the trial Court held that the present suit is not barred by res judicata and the defendants without filing any cross objections before the learned first appellate Court cannot challenge the said finding. But, as laid down by the Supreme Court in RAVINDER KUMAR SHARMA v STATE OF ASSAM AND OTHERS[1] and S.NAZEER AHMED v STATE BANK OF MYSORE AND OTHERS[2], the necessity for the plaintiffs to file cross objections arises only when they claim any relief and the same had been indicated by the trial Court, otherwise, the respondents in an appeal to support the decree of the trial Court by challenging any of the findings that might have been rendered by the trial Court against them and for supporting the decree passed by the trial Court, it is not necessary for the respondents to file memorandum of cross objections challenging a particular finding that rendered by the trial Court against him when the ultimate decree is in their favour. 8. Therefore, in the instant case, the defendants/respondents in spite of not filing any cross objections against the finding that O.S.No.110 of 1989 is not barred by res judicata, can challenge the said finding since the suit of the plaintiffs is dismissed and the entire decision was rendered in favour of the defendants. 9. The learned counsel appearing for the plaintiffs/appellants also contended that when the plaintiffs have claimed the property within specific boundaries and adduced evidence to the effect that the property within the specific boundaries belongs to them, their claim cannot be rejected for not furnishing survey number. In support of the contention, the learned counsel relied upon a decision reported in SUBHAGA AND OTHERS v SHOBHA AND OTHERS[3] wherein the Supreme Court held that: “Once a property has been identified, even if there is any discrepancy normally, the boundaries should prevail. It is not necessary to survey all adjacent lands to find out whether an encroachment was made in the property concerned.” 10. The judgment above referred cannot be applied to the facts of the present case. In the present case, both the Courts after elaborately going through the evidence adduced by both the parties held that the plaintiffs failed to make out the identity of the subject matter of the suit. Both the Courts below believed that the property mentioned by the plaintiffs in the schedule within certain boundaries is wrongly given and the property is in fact, in survey No.1010. Both the Courts below have also found that the plaintiffs gave conflicting versions with regard to the identity of the subject matter of the property. 11. The first appellate Court in its judgment held categorically that in his evidence PW.1 tried to impress upon the Court that the suit land is in Survey No.378. Whereas PW-4 remained silent as to the survey number in which the suit property is situated. The learned first appellate Court further held that in the Town Map-Ex.A.13 filed by the plaintiffs, Survey No.378 is not shown anywhere near the Survey No.1010. Therefore, the learned first appellate Court rightly concluded that no reliance can be placed on the version of the plaintiffs that Survey No.378 is adjacent to Survey No.1010 and the property claimed in the present suit the same which was claimed in the earlier suit. Thus, both the Courts below have recorded concurrent findings of fact and they are neither perverse nor can be said to be not based on evidence on record. There is no substantial question of law involved for consideration in the second appeal. The second appeal is, therefore, dismissed. There shall be no order as to costs. ________________ Date: 28.06.2011 R. KANTHA RAO, J kvrm HON’BLE MR JUSTICE R. KANTHA RAO S.A.NO.901 OF 2006 DATE: 28.06.2011 [1] AIR 1999 SC 3571 [2] AIR 2007 SC 989 [3] 2006(2)APLJ 57 (SC)