1 sa 297.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 297 OF 2005 1. Municipal Council, Udgir, Through it's Administrator or President, Municipal Council, Udgir, Dist. Latur. 2. Chief Officer, Municipal Council, Udgir, Dist. Latur. .. .. Appellants Versus 1. Chandrapal Parbatrao Patil, Age : 70 Years, Occu. : Agril and Advocate, R/o Udgir, Dist. Latur. 2. Digambar Shamrao Gambhire, (Since deceased through legal representatives) 2A Laxmibai @ Indubai W/o Digambar Gambhire, Age : 41 Years, Occu. : Household, R/o Udgir, Tq. Udgir, Dist. Latur. 2B Sham S/o Digambar Gambhire, Age : 36 Years, Occu. : Service, R/o Mumbai. 2 sa 297.05 2C Ram S/o Digambar Gambhire, Age : 33 Years, Occu. : ____, R/o Nilanga, Tq. Nilanga, District Latur. 2D Lata Rameshwar Zarkar, Age : 38 Years, Occu. : Household, R/o Nilanga, Tq. Nilanga, District Latur. 2E Anita Achyutrao Kadam, Age : 33 Years, Occu. : Household, R/o Holsamudra, Tq. Aurad, Dist. Bidar. 3. Girish Prabhu Pudale, Age : 29 Years, Occu. : Business, R/o Udgir, Tq. Udgir, Dist. Latur. 4. Shrish S/o Prabhu Pudale, Age : 23 Years, Occu. : Business, R/o Udgir, Tq. Udgir, Dist. Latur. .. .. Respondents Shri P. M. Shah, Senior Counsel i/by Shri Parag V. Barde, Advocate for Appellants. Shri A. V. Patil, Advocate for Respondent Nos. 1, 3 & 4. Shri R. F. Totala, Advocate for Respondent Nos. 2A to 2E. CORAM : S. V. GANGAPURWALA, J. DATE : 05TH APRIL, 2011. 3 sa 297.05 ORAL JUDGMENT : . The plaintiffs had initially filed a suit for perpetual injunction. Thereafter by way of amendment claimed relief of possession. The Trial Court dismissed the suit on the ground that the property is not identified, however, held that the plaintiffs have proved their ownership and defendants could not prove adverse possession. The plaintiffs preferred an appeal. In the said appeal the defendants did not prefer any cross objection. The Appellate Court allowed the appeal and granted relief of possession in respect of property shown by letters " M, N, O, P, Q" in the map Exhibit 123. The defendants being aggrieved thereby have filed the present second appeal. 2. Shri P. M. Shah, the learned senior counsel submits that it was an error on the part of the lower Appellate Court in not considering the issues about ownership of the plaintiffs. So also the case of the defendants of acquiring ownership by adverse possession on the ground that the cross objections as required under Order 41 Rule 22 of the Code of Civil Procedure has not been filed. For the said purpose the learned Senior Counsel relies on the judgment of the Apex Court in a case of S. Nazeer Ahmed v. State Bank of Mysore and others reported in AIR 4 sa 297.05 2007 S.C. 989 and another judgment of the Apex Court in a case of Ravinder Kumar Sharma v. State of Assam reported in (1999) 7 S.C.C. 435. According to the learned senior counsel the lower Appellate Court failed in its obligation to reconsider the same in absence of cross objection. 3. Per contra Shri R. F. Totala and Shri A. V. Patil, learned counsel for respondents submitted that the lower Appellate Court was justified in not considering the question of ownership in absence of cross objection, when specifically a finding has been given against the defendants. The said finding against the defendants could not have been considered without defendants assailing the same by way of cross objections as per the Order 41 Rule 22 of the Code of Civil Procedure. For the said purpose, the learned counsel relies on the judgment of the learned Single of this Court in a case of Dadarao Tukaram Kosare and others Vs. Shyam Co-operative Housing Society Ltd. and another reported in 2004 B.C.I. 116. The learned counsel further contended that even though the Appellate Court has observed that the Court need not consider the said issue in absence of cross objection, still the Court has considered the evidence regarding the same. 5 sa 297.05 4. The learned Senior Counsel Shri Shah and Shri Totala also canvased their arguments on other aspects of the matter, which I am not considering at this stage. In the light of arguments the following substantial question of law arises. i) Whether the lower Appellate Court was in error in not re-appreciating the total evidence and considering the questions of title of the plaintiff as well as that of the defendants without the defendants filing a cross objection ? Admit. 5. With the consent of learned counsel taken up for final hearing. 6. Section 107 of the Code of Civil Procedure lays down that the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction. Order 41 Rule 22 read with order 41 Rule 33 of the Code of Civil Procedure lays down the powers of the Appellate Court and the said provisions also gives power to the Appellate Court to the 6 sa 297.05 extent that if the appeal is as to part only of a decree, still the Court can exercise its powers in favour of all or any of the respondent or parties, though such respondents or parties may not have filed any appeal or objection. The Apex Court in the case of S. Nazeer Ahmed v. State Bank of Mysore and others referred supra has considered the distinction between the power of the Appellate Court to consider the particular finding without filing of cross objection and necessity to file a cross objection in respect of relief negatived. In view of the law laid down by the Apex Court in the said judgment referred supra, it is clear that the lower Appellate Court was in error in not considering the issues regarding ownership of the plaintiff and the defendant on its own merits. The lower Appellate Court is last fact finding Court and was duty bound to consider the same on re-appreciation of total evidence on record. 7. In the light of above the judgment passed by the lower Appellate Court is not sustainable and is set aside. The parties are relegated to the lower Appellate Court, who shall decide the appeal and all the issues as framed by the Trial Court on its own merits on re-appreciation of whole evidence on record. 7 sa 297.05 8. I have not considered the other arguments advanced by the learned counsel for respective parties on the identification of the property and all other issues. 9. The parties shall appear before the lower Appellate Court on 29th April, 2011. The second appeal is disposed of with aforesaid observations. Taking into account the fact that parties are ligitating since 1982, the lower Appellate Court shall decide the appeal within a period of six months from the date of their appearance. [ S. V. GANGAPURWALA, J. ] bsb/April 11