D.N. Baruah, J. - (1.) (Oral) - This second appeal is directed against the judgment and decree dated 14.2.1984 passed in Title Appeal No. 18 of 1978 by the Additional District Judge, Cachar and Kariraganj partly allowing the appeal, modifying the judgment and decree dated 29.6.1978 passed by the Assistant District Judge No. 2, Cachar in Title Suit No. 69 of 1972.
(2.) The brief fact of the case is that the appellants-plaintiffs filed the suit for declaration that they were entitled share of the 50% of the first schedule land and the house standing thereon, for partition and also for recovery of possession of the house described in the second schedule of the plaint and confirmation of their possession in respect of third schedule land and also for other relief. The suit was contested by defendant No. 1 and 13. They filed written statements. After examination of the witnesses, the second Assistant District Judge, Cachar decreed the suit. The first respondent (defendant No. 13) preferred an appeal (Title Appeal No. 18 of 1978) in the Court of the Additional District Judge. The Additional District Judge by his judgment and decree dated 14.2.84 partly allowed the appeal modifying the preliminary decree. In passing the judgment, the Additional District Judge observed thus : "the suit be decreed and the plaintiff's title in respect of 8 annas share of the first schedule land and their maliki right in respect of the houses described in the second schedule of the plaint along with the order for partition in respect of their 8 annas share of the first schedule land be declared". The appellant neither preferred any appeal against the said decision nor filed any cross objection as envisaged under Order 41 Rule 22 CPC. At the time of hearing of the appeal, the appellant, however challenged the findings arrived at in respect of the third schedule land. The Additional District Judge without going into merit of the case rejected the plea on the ground that appellant neither filed any appeal against nor he filed any cross-objection. Hence, the appellant has preferred this appeal. The only ground raised before this Court in this second appeal is whether the respondents can challenge the finding of the trial Court in the appeal without filing any cross appeal or filing a separate appeal. I have heard both sides.
(3.) Mr. Dhar, learned counsel appearing on behalf of the appellants submits that the Additional District Judge was not justified in rejecting his prayer merely because no cross appeal was filed. Mr. SK. Senapati, learned counsel for the respondents on the other hand supports the impugned judgment.;