G. Rajasekharan, J.

1. Defendants 5 to 7 in a suit for declaration of title and possession and consequential injunction, are the appellants.

2. The suit property is 10 cents comprised in Survey fields 3897 and 3895 in Vadakkevila village. They are listed as A and B Schedules to the plaint. The plaintiff traces title to A Scheduled property under Exts. A1 to A3. Ext. A3 is the document under which the vendor of the plaintiffs father, got the property in 1112 (M.E.) (corresponding to 1937). On the strength of Ext. A3, the vendee Vavakunju executed Ext. A1 on 23-4-1114 (M.E.) (corresponding to 1939) to the plaintiffs father. After the death of the father, the heirs entered into Ext. A2 partition on 21-12-1967. In that partition, in addition to Ext. A1 property, plaint B Schedule property and another section of property were allotted to the share of the plaintiff.

3. Regarding B Schedule property, no title deed is produced. But the plaintiff relies on Ext. A2. It is said that the acquisition of B Scheduled property by the father of the plaintiff was in the year 1105 (M.E.). That document of acquisition was not forthcoming. Both the properties (A and B Schedules) are lying contiguously and it is common case that they are lying as a single plot within well defined boundaries.

4. Plaintiffs title and possession to the property is disputed by defendants 5 to 7, the legal heirs of one Janardhanan. According to them, the property comprised in Survey No. 3897 (A Schedules survey field) and some excess extent belonged to Janardhanan"s father Neelakantan, and that property along with certain other properties were the subject-matter of Ext. B1 partition in the year 1962, and the entire plaint scheduled properties were allotted to the share of Janardhanan. In other words, the contention is that the property shown in Survey No. 3897 and allotted to Janardhanan as per Ext. Bl partition deed, actually took in an excess extent within boundaries covering the entire suit property. They would further contend that Survey No. 3895, the number assigned to B Schedule, is elsewhere and not anywhere near Survey No. 3897.

5. The trial Court by its judgment dated 26-6-1984 dismissed the suit. Against that, the plaintiff went in appeal as A.S. No. 79/ 84 and the appellate Court set aside the judgment and decree and remanded the case for fresh disposal. It was directed that :

"the trial Court shall allow the plaintiff to take out a commission to identify the disputed land with reference to the Survey numbers, as applied for by him in I.A. 6985/85, filed before this Court. The trial Court should also give an opportunity to the contesting parties, to adduce further evidence in support of their respective contentions."

6. After remand, while the case was pending before the trial Court, defendants 5 to 7 filed an application I.A. 4483/87 to receive additional written statement. That application was objected to by the plaintiff. Considering the application and the objections, the trial Court allowed the application upon terms. The defendants paid the costs ordered by the Court and that was received by the plaintiff. Thereupon, the additional written statement was admitted. In the additional written statement, the contention is that even if the plaintiff had title to the property, that was lost by adverse possession and limitation, and defendants 5 to 7 and their predecessors in title have prescribed title to the property. On the basis of this plea, additional issue No. 10 was raised by the trial Court.

7. In the trial Court, on the side of the plaintiff, seven witnesses were examined and Exts. A1 to A4 series were marked. The defendants examined five witnesses and Exts. B1 to B5 were marked. As Court exhibits, Exts. C1 to C6 were also marked.

8. The trial Court found that the plaintiff has proved title to the property covered by the plaint schedule, even though no title deed with respect to B Schedule was produced on the premise that A and B Schedule properties lie as a contiguous plot within well defined boundaries, indicating possession by one and the same person throughout the extent and also for the reason that there was no specific denial of title to B Schedule property covered by Survey No. 3895. But the trial Court dismissed the suit, for the reason that the plaintiffs title was lost by adverse possession of defendants 5 to 7 and limitation. The plaintiff went in appeal, and the first appellate Court allowed the appeal and decreed the suit. The second appeal is directed against that.

9. The lower appellate Court took the view that the trial Courts finding that the plaintiff has title over the property, has become conclusive for the reason that defendants 5 to 7 did not challenge that by filing an appeal or a cross-objection. According to learned counsel for the appellants/ defendants 5 to 7, that view taken by the first appellate Court is erroneous in law, and defendants 5 to 7 before the first appellate Court were entitled to challenge the finding of title by the trial Court, by virtue of Order 41, Rule 22 read with Order 41, Rule 33 of the Civil P.C. To support this proposition, the decisions reported in Balkrishnu Das Agarwal v. Smt. Radha Devi : AIR 1989 All 133 [LQ/AllHC/1988/654] , Leena Mathew v. Kerala Shipping Corporation, 1988(1) KLT212 and Mahant Dhangir v. Shri MadanMohan : AIR 1988 SC 54 [LQ/SC/1987/719] were relied on.

10. O.XLI, R.22 is in the following terms:

"Any respondent, though he may not have appealed from any part of the decree, may not only support the decree, but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court...."

This rule certainly enables a respondent to urge that any issue found against him is erroneous, in addition to his right to support the decree on any other point. He may also file a cross-objection which he could have taken by way of appeal.

11. The above provisions in Rule 22 of Order XLI certainly enabled defendants 5 to 7 to challenge the finding regarding title in the appeal filed by the plaintiffs, even without filing a cross-objection. It may be noticed that defendants 5 to 7 were not entitled to file an appeal, for the reason that they were not aggrieved by the decree which dismissed the suit.

12. In interpreting Order XLI, Rule 22 of the Civil P.C., a Division Bench of the Allahabad High Court has held :

"Where a suit is decreed in favour of a party, it cannot be said that the party had suffered in any way on account of the judgment notwithstanding adverse findings against it on some aspects in the case. The party would not be aggrieved by the judgment since the suit is decreed in its favour and therefore the party could hardly have a cause to file an appeal and for that matter even to file a cross-objection. That being so, the party is entitled to support the decree even on those points that have been decided by the judgment under appeal against it. Therefore, when an appeal is filed by the opposite party, the party in whose favour the suit is decreed is entitled to challenge the adverse finding against it even though a cross-objection in that regard had not been filed by it."

13. A Division Bench of this court in Leena Mathew v. Kerala Shipping Corporation 1988 (1) KLT 212 has held :

"Even without filing a cross-objection, the defendant is entitled to support the decree in his favour not only on the grounds decided in his favour but also on any of the grounds decided against him. It has been so provided under Order XLI, Rule 22. The defendant therefore can press into service the above grounds to support the decree which is in his favour."

So, by virtue of Order XLI, Rule 22 itself, defendants 5 to 7 were entitled to urge that the finding on title by the trial court was wrong.

14. Order XLI, Rule 33 gives very wide powers to the Appellate Court and by virtue of that also, the challenge by defendants 5 to 7 against the finding on title should have been countenanced by the trial court. On the scope of Order XLI, Rule 33, the Supreme Court has ruled in Mahant Dhangir v. Shri Madan Mohan : AIR 1988 SC 54 [LQ/SC/1987/719] as follows (at p. 58):-

"Rule 22 and Rule 33 are not mutually exclusive. They are closely related with each other. If objection cannot be urged under Rule 22 against co-respondent, Rule 33 could take over and come to the rescue of the objector. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The words "as the case may require" used in Rule 33 of Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of justice. The only constraint on the power are these : That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of the judgment of the lower Court. If these two requirements are there, the appellate Court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal."

The law on the point being so, the first appellate court has seriously erred in thinking that defendants 5 to 7 were not entitled to challenge the finding on the question of title and that finding has become final and conclusive.

15. After holding that the question of title as found by the trial court has become final and conclusive, the first appellate court further proceeded to hold, by virtue of the presumption that possession follows title, that possession is with the plaintiff, upsetting the trial courts finding that defendants 5 to 7 have perfected title by adverse possession and limitation. If actually the presumption that possession follows title could be applied in such cases, there could be never be a contention of adverse possession and limitation. To support the proposition that the maxim "possession follows title" is inapplicable in this case, learned counsel for the appellants has referred to many decisions and it is enough that two of them are referred to. In Janaki Amma Parakutty Amma v. Chacki Kunjipennu AIR 1951 TC 246, the Travancore Cochin High Court has ruled (at page 247) :

"The maxim possession follows title is limited in its application to property which, of its very nature, has not been subjected to or would not admit of actual and exclusive occupation as in the case of unenclosed open spaces accessible to all alike, jungles, forest tracts, or lands under water. In the case of property which admits of, and according to the case of parties has been the subject of, actual exclusive occupation, the principle may also come up for application, but only in cases where it has been proved that the person having the title was once in actual possession and the application of the principle is based on the presumption of the continuance of that possession."

In a Calcutta case. Rakhal Chandra Ghose v. Durgadas Samanta : AIR 1922 Cal 557 [LQ/CalHC/1922/16] , the court held :

"The presumption of possession from title can be raised only where the evidence is equally strong on both sides and cannot be called in aid to give weight to evidence unworthy of credit any more than if no evidence at all had been given. Where definite evidence of acts of possession is forthcoming, there is no difference between the proof bf possession in the case of jungle waste or uncultivated lands and in that-of cultivated lands. But whereas in the case of cultivated lands the plaintiff will fail if he does not prove his possession within 12 years, in the case of jungle or waste lands, if he proves his title, there is a presumption in his favour where having regard to the nature of the land, possession eannot be expected to be proved by acts of actual user and enjoyment. If, however, the plaintiff asserts that he exercised acts of ownership upon the land and adduces evidence in support of such assertion, he cannot, where such evidence is disbelieved by the Court, turn round and rely upon any presumption, because the case set up by him negatives the existence of circumstances which would give rise to the presumption, and is inconsistent with it."

16. So, in the case at hand, the maxim "possession follows title" has no application at all. The plaintiff claims title on the strength of a set of documents. The contesting defendants also claim title on the strength of Ext, Bl. Alternatively, they would contend that if at all the plaintiff had title, that was lost by adverse possession and limitation. In cases like this, where the property is only a small parcel of land cultivated and enjoyed, the presumption that "possession follows title" has no bearing. Both the parties have adduced evidence to prove their respective possession. The lower appellate Court instead of resting its finding on the maxim "possession follows title" should have reappraised the entire evidence on record and reached its conclusion. As many as seven witnesses on the side of the plaintiff, and five witnesses on the side of the defendants have been examined to prove the respective claim of possession. In addition to that, on the side of the defendants, there is evidence of mutation in their favour and payment of land revenue etc. There is no discussion of evidence and the decision is based solely on the presumption without considering the relevant evidence on the point. That finding and the consequential decree based on that finding cannot at all be sustained. Since the first appellate court has failed to exercise its jurisdiction in not reappraising the evidence and reaching its conclusions based on the evidence, the matter has togo back for fresh disposal to that court.

17. No doubt, the finding on the question of possession is a finding of fact. But that does not preclude this court from interfering with that finding under Section 100 of the Civil P.C. Where the findings of the court on facts are vitiated by non-consideration of relevant evidence or by essentially erroneous approach to the matter, the High Court is not precluded from interfering 1992 (1) SCJ 36.

18. Here, it is not a case of one or two items of relevant evidence being not considered. The entire evidence on the question of possession has been ignored by the first appellate court. It upset the finding regarding that aspect of the trial court by relying on the maxim "possession follows title".

19. It was argued by learned counsel for the respondent/plaintiff that the reception of additional written statement of defendants 5 to 7 and consideration of the question of adverse possession and limitation, were not permissible since the remand order did not permit that. It is true that the remand order does not specifically say that the parties are entitled to amend the pleadings or put forward additional pleadings. What has been done by the remand in A. S. 79/84, was remittance of the case to the trial court for fresh disposal. Certain directions regarding the issuance of a commission etc. were also given. That does not mean that the remand was for the limited purpose of identifying the property on the basis of the survey numbers by issuing a commission. When the case was remanded for fresh disposal, it was within the jurisdiction of the trial court to receive additional written statement or allowing the parties to amend their pleadings, according to the ments of the matter. Here, defendants 5 to 7 filed an application seeking the permission of the court to The an additional written statement, taking the contention of adverse possession and limitation. That was opposed by the plaintiff. That opposition was repelled by the trial court and the application allowed, but on terms. The plaintiff chose to receive the costs on that application and allowed the additional written statement to be admitted. When the cost has been received, the plaintiff is precluded now from contending that the trial court should not have accepted the additional written statement. The decisions in Begum Hamid Ali Khan v. Col. B. H. Saidi : AIR 1982 Delhi 352, Gulwant Kaur v. Mohinder Singh and Ram Charan Singh v. L. Chimni Lal AIR 1941 Oudh 454 are all authorities for that proposition.

20. Learned counsel for the appellants has urged that the suit of the plaintiff is hit by Section 34 of the Specific Relief Act inasmuch as no relief for recovery of posssession is sought for. It was submitted that in case the plaintiff is not successful in proving possession, he has to be non-suited. That question need not be considered at this juncture, since the matter has to go back to the lower appellate court for fresh disposal.

21. In the result, the judgment and decree of the first appellate court under challenge, are set aside. The case is remitted to the first appellate court for fresh disposal according to law and in the light of the observations made above. The court fee paid on the Memorandum of Appeal shall be refunded. Parties will appear before the lower appellate court on 18-9-1993. The court below will dispose of the matter expeditiously, at any rate, within two months from the date of receipt of the records.