S.A. No. 75 of 1962

5th April, 1968.

Petitioner Counsel: M.L. Vaidya
Respondent Counsel: B.R. Mandlekar, L.K. Khamborkar

Cases Cited:
AIR 1963 Orissa 136.
AIR 1960 AP 134.
AIR 1962 Pat. 384.
AIR 1962 Assam 85.
AIR 1963 SC 1516.
AIR 1966 SC 1874.
AIR 1963 Orissa 136.
AIR 1960 AP 134.
AIR 1962 Pat 234.
AIR 1962 Assam 85.
AIR 1962 SC 1874.

JUDGMENT

JUDGMENT:- The appellants are original defendants Nos. 2 and 3. The plaintiff-respondent No. 1 had purchased western 3 acres and 8 gunthas out of survey number 89 from the defendant No. 1 Pandurang by a sale deed dated 13th May 1958. On the same date, the defendant No. 1 had also sold 2 acres adjacent to the plaintiff's land on the eastern side to the defendant No 3. It appears that the sale deed in favour of the defendant No. 3 was executed and registered, though on the same date as the sale deed in favour of the plaintiff, before the plaintiff's sale deed. The plaintiff's case was that he was placed in possession by the defendant No. 1 of the area purchased after measurement and he cultivated the land in the year 1958-59. The defendant No. 3 also cultivated his portion of the field, but in May 1959, the defendants Nos. 2 and 3 took forcible possession of the land which is purchased by the plaintiff. According to the plaintiff, the defendant No. 2 owned only 16 acres and 3 gunthas of land and neither he nor the defendant No. 3 had any title to the portion purchased by the plaintiff from the defendant No. 1. As he was dispossessed, he brought a suit in which primary relief claimed was one of possession against the defendants Nos. 2 and 3 and alternatively he claimed refund of consideration of Rs. 1,120 plus expenses Rs. 60 from the defendant No. 1, if it was found that he had no title to the property.

2. The plaintiff's claim for possession was not disputed by the defendant No. 1. According to him, he held 5 acres and S gunthas in survey No. 89 as given below. Formerly, 2 acres and 24 gunthas belonged to one Pandurang and 2 acres and 24 gunthas belonged to Vithu Sonaji. Pandurang sold his land to Pandhari on 12th December 1931 and Pandhari sold it to the defendant No. 1's father Jairam on 18th January 1938. On Vithu's death his land was inherited by his daughter Yashodi and she sold it to the defendant No. 1's father Jairam on 20th February 1940. Thus, Jairam came to own 3 acres and 8 gunthas. That land was allotted to the share of the defendant No. 1 in the partition of 11th June 1954.

3. The defence of the defendants Nos. 2 and 3 was that the defendant No. 1 owned only 2 acres of land in survey No. 89 on the western side and the entire remaining field of 18 acres and 13 gunthas belonged to the defendant No. 2 of which he had been in adverse possession for a long period. According to these defendants, the two acres, which were owned by the defendant No. 1, were transferred by him to the defendant No. 3 and therefore, no land had remained with him which he could have transferred effectively to the plaintiff.

4. Large number of documents in the form of Record-of-rights and crop-statements were filed by the parties before the trial Court and some oral evidence was led. So far as the plaintiff was concerned, the material oral evidence was of the father of the defendant No. 1, who deposed as to how he acquired these 5 acres and 8 gunthas and how by subsequent partition the land went to the share of the defendant No. 1. The defendants Nos. 2 and 3 also examined some witnesses and the plaintiff examined himself.

5. On evidence, the trial Court found in favour of the defendants Nos. 2 and 3 that the defendant No. 1 owned only 2 acres of land which he had already sold to the defendant No. 3, and the defendant No. 1 had, therefore, no title to the land which he purported to transfer in favour of the plaintiff. The plaintiff's claim for possession was, therefore, negatived, but on the finding that the

defendant No. 1 had no title to the property, which he transferred to the plaintiff, it was held that he was liable to refund the consideration to the plaintiff, and therefore, a decree dismissing the claim for possession, but decreeing the claim for refund of consideration against the defendant No. 1 was passed.

6. Against this decision the plaintiff did not appeal, but the defendant No. 1 challenged the decree for refund passed against him. To this appeal not only the defendants Nos. 2 and 3 but the plaintiff also was a party as respondent. It is significant to notice that the prayer made by the defendant No. 1 in this appeal was that the trial Court's decree should be set aside and a proper decree for possession dismissing the plaintiff's claim against the defendant No. 1-appellant should be passed.

7. Obviously the defendant No. 1 was challenging the decree for refund of consideration passed against him. But it is clear that before he could be held entitled to that relief he was bound to show that the decision of the trial Court that he had no title to the property could not be sustained. The decree for refund of consideration passed by the trial Court was clearly a consequence of the finding on the question of title and it cannot be disputed that the scope of appeal before the lower appellate Court, as is apparent from the memo of appeal filed by the defendant No. 1, was that he wanted a finding in his fovour on both these questions. When the appeal was heard, the lower appellate Court reversed the finding of the trial Court that the defendant No. 1 had no title to the property which he had sold to the plaintiff and having arrived at that finding, the lower appellate Court proceeded to consider what would be proper form of the decree which would be passed. The Court took the view that this was a case in which it should exercise its discretion under Order 41, rule 33, Civil Procedure Code, and therefore, while allowing the claim of the appellant-defendant No. 1, a decree for possession should be passed in favour of the plaintiff who was a respondent to the appeal. The Court, therefore, allowed the appeal, set aside the decree passed by the trial Court and directed that the defendants Nos. 2 and 3 should deliver possession of the western-most 3 acres and 8 gunthas of survey No. 89 to the plaintiff. It is this decree which is now being challenged by the defendants Nos. 2 and 3 in this appeal.

8. The first contention raised by Shri Vaidya, the learned counsel for the appellants, is that the lower appellate Court was not justified in reversing the finding of the trial Court that the defendant No. 1 owned and possessed 5 acres and 8 gunthas out of survey No. 89. According to him, the trial Court had given that finding on the basis of the crop-statements and the Record-of-rights and the lower appellate Court should not have, therefore, interfered with that finding. It is true that the trial Court has come to a finding, on the basis of the entries in the crop-statements and the Record-of-rights, that the defendant No. 2 owned 18 acres and 13 gunthas out of survey No. 89. While giving this finding, the learned Judge of the trial Court found that the crop-statements for the period 1929-30 to 1939-40 showed that 18 acres and 13 gunthas were in possession of the defendant No. 2 through lessees. Even according to the trial Court, the defendant No. 2 has no personal knowledge as to how this field, which he claims to have been inherited, was acquired by his predecessors in title. It was in this direction that the lower appellate Court directed its inquiry on the basis of the documents which are already on record and tried to trace the

title of the predecessors-intitle of the defendant No. 2 to the portion which the defendant No. 2 claimed to be in his possession as owner and on a fresh appreciation and correct construction of the entire set of documents, the lower appellate Court observed that the records for the year 1918 showed that the defendant No. 2's father was only in possession of 11 acres and 9 gunthas of land. The lower appellate Court found that survey No. 89 was divided into two parts, 89/l and 89/2. Survey No. 89/1 which was 9 acres and 4 gunthas belonged to three persons Pandurang, Vithu and Balu and survey No. 89/2, 11 acres and 9 gunthas, belonged to the father of the defendant No. 2. On the basis of other documents, the lower appellate Court then found that the share of Pandurang and Vithu came to 2/16th each of the total acreage of the field survey No. 89 and it would be 2 acres and 24 gunthas each. On the basis of the same record, Balu's share was calculated at 3/16th. It was later found that Pandurang had sold his share to Pandhari by a sale deed dated 12th December 1931, which transfer has been recorded in Parcha Exh. 16 and to the admissibility of which no objection was raised by any of the parties. Pandhari transferred this same portion to Jairam the father of the defendant No. 1 by sale deed dated 18th January 1935.

9. Now, so far as Vithu's field of 2 acres and 24 gunthas was concerned, this was transferred to Jairam by his daughter Yashodi, who succeeded him, by a sale deed dated 20th March 1940. It is in this manner that the defendant No. 1's father came to own 5 acres and 8 gunthas of land.

10. The lower appellate Court then considered that the defendant No. 2 had no explanation to offer as to how the survey No. 89/2 which was recorded as 11 acres and 9 gunthas enlarged itself into 18 acres and 13 gunthas. If the transfers referred to above, which are reflected by village records and proved by registered documents, have to be held as a source of the title of the father of the defendant No. 1, then the other document showing that the father of the defendant No. 2 became an owner of 18 acres and 13 gunthas of land is obviously erroneous, more so in the absence of any acceptable explanation by the defendant No. 2. If Pandhari and Vithu had a share equal to 2 acres and 24 gunthas each, then a subsequent entry in Exh. 2, D. 24 that Yashodi and Pandhari had only one acre each would be clearly erroneous until something is shown to prove that Pandhari and Yashodi have transferred the remaining part of their land to the predecessors-in-title of the defendant No. 2. The learned Judge of the lower appellate Court has, therefore, considered the whole evidence in the correct perspective, and there is no doubt he was entitled to do so and reach a conclusion while he has especially in the context of the fact that the defendant No. 2 gives no explanation as to how the entries have changed in the Record-of-rights showing that his father possessed or owned a larger part of survey No. 89 as compared with the original entry of 1918. It appears that the conclusion arrived at by the learned Judge of the lower appellate Court that the father of the defendant No. 1 owned 5 acres and 8 gunthas of land is clearly justified by the material on record. The calculations which are made by the lower appellate Court were not made by the trial Court. This evidence considered and reappreciated by the lower appellate Court, by itself, is sufficient to justify the finding that the father of the defendant No. 1 owned 5 acres and 8 gunthas and if at the subsequent partition this land has gone to the share of defendant No. 1, it

is difficult to challenge the finding that the defendant No. 1 owned 5 acres and 8 gunthas out of survey No. 89.

11. The lower appellate Court has further considered the conduct of the defendant No. 2. The pleading of the plaintiff was that he wanted to purchase a field. He had brought this fact to the notice of the defendant No. 2 and he was assured by the defendant No. 2 that the defendant No. 1 owned the portion which he wanted to purchase. It is true that the trial Court did not accept the statement of the plaintiff on this point, but in the context of the circumstances and the documentary evidence, which the learned Judge of the lower appellate Court reconsidered, the lower appellate Court has accepted the story of the plaintiff that he had approached the defendant No. 2 and the defendant No. 2 had represented to him that the defendant No. 1 had title to the property. The lower appellate Court has also relied on the fact that the defendant No. 2 has attested the sale deed in favour of the plaintiff and in favour of the defendant No. 3 and the lower Court has further observed that the plaintiff and the Sub-Registrar told the defendant No. 2 that the defendant No. 1 had been selling 5 acres and 8 gunthas of land. It appears from the evidence that these observations relate to the time when the sale-deed was already attested and when the Sub-Registrar wanted to register the document. If he had already attested the document, unless it was shown that at the time when he attested the documents he had knowledge of the transaction, merely because there is some evidence that the Sub-Registrar told the defendant No. 2 that the defendant No. 1 was selling 5 acres and 8 gunthas to the plaintiff and the defendant No. 3 would not have the effect of creating a bar of estoppel against the defendant No. 2. But as I have already held there is other evidence which in my view was sufficient to reach the conclusion that the defendant No. 1 owned and held 5 acres and 8 gunthas of land. This part of the field was also measured and accordingly, the plaintiff was placed in possession. The finding of the lower appellate Court, therefore, that the defendant No. 1 did have title to 5 acres and 8 gunthas of land is, therefore, confirmed.

12. Next contention raised by the learned counsel for the appellant was that the lower appellate Court was not justified in invoking the powers under Order 41, rule 33 of the Civil Procedure Code and passing a decree for possession. He relied on four decisions in support of his proposition. These are: (i) P. Rammurty v. Kalpo Patro1, (ii) Ravirudi Abyayya v. State of Andhra Pradesh2, (iii) Union of India v. Hotilal Kamalia3 and (iv) Brajabala v. Gauhati Bank Ltd.4. It is difficult to appreciate this challenge to the decree of the lower appellate Court by the appellants. The ground on which the plaintiff's claim was contested by the defendants Nos. 2 and 3 was that the defendant No. 1 had no title to the property, and therefore, the plaintiff did not get any title to that property. The further case of the defendants, and especially of defendant No. 2, was that he himself was the owner of this property. I have already held above that the defendant No. 2 had no title to the property, and that the defendant No. 1 had good title to 5 acres and 8 gunthas and that he had validly transferred that property to the plaintiff. On the finding that the defendant No. 2 had no title and the property really belonged originally to defendant No. 1, it is obvious that the defendant No. 2 has no right to continue in possession of that property. The defendant No. 3 claims no interest in this property. Entertaining a submission on the part of the defendant No. 2 that the lower appellate Court should not have passed a decree for possession in favour of the plaintiff, who was the respondent to the appeal before the lower appellate Court, can only result in perpetuating the illegal acts of dispossession committed by the defendant No. 2 and it is not possible to hold that Court will be helpless in such a case to see that a party is not deprived of his property by such illegal dispossession.

13. It is necessary to find out the effect of the finding which has now been given in favour of the defendant No. 1 that he had title to the property. The effect of that finding will be that he had transferable title to the property and the fact remains that he has transferred that property to the plaintiff. The basis of the claim for refund of consideration was the finding that the defendant No. 1 had no title to the property. On this finding, the decree against him was bound to be set aside. No other conclusion could have followed but that the defendant No. 1 was not liable to refund the consideration received by him from the plaintiff. But would this finding be allowed to have the effect of putting the plaintiff in such a position that he loses his money and also his property which he has validly acquired under a good sale deed from a person who is found to have had title to the property when it was transferred. It is true that the plaintiff did not appeal against the decree of the trial Court. I fail to see how he could have appealed against that decree. He had made an alternative claim for a refund of consideration and as long as the finding that the defendant No. 1 had no title to the property stood, the decree for refund of consideration could not be challenged.

14. It is then necessary to see whether he could have filed a cross-objection in an appeal filed by the defendants. The main grievance of defendant No. 1 in the appeal was that it was he and not the defendants Nos. 2 and 3, who had title to the property. That such a claim a decision on which was necessary before a decree for refund of consideration could be set aside, I fail to see what cross-objection the plaintiff could make. This is, therefore, not a case where the plaintiff could validly make any claim by way of cross-objection under Order 41, rule 33, Civil Procedure Code. It is in that context that the prayer made by the defendant No. 1-appellant before the lower appellate Court and the extent of the powers of the Court under Order 41, rule 33, Civil Procedure Code, become significant. The provisions of Order 41, rule 33, Civil Procedure Code, have recently been the subject-matter of the two decisions of the Supreme Court. In Panna Lal v. State of Bombay1, the Supreme Court has observed:

"The wide wording of Order 41, rule 33, was intended to empower the appellate Court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate Court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as "the case may require"..... .If a party who could have filed a cross-objection under Order 41, rule 22, has not done so it cannot be said that the Appeal Court can under no circumstances give him relief under the provisions of Order 41, rule 33."

In the same decision while construing the scope of Order 41, rule 33, Civil Procedure Code, the Supreme Court observe:

"Order 41, rule 22 permits, as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as whether the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re-opened between the objecting respondent and other respondents, that an objection under Order 41 rule 22 can be directed against the other respondents. The use of the word "cross-objection" in Order 41, rule 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. That the legislature also wanted to give effect to the view that in exceptional cases an objection can be preferred by a respondent against a co-respondent is indicated by the substitution of the word "appellant" in the third paragraph by the words "the party who may be affected by such objection".

The facts of this case were that the plaintiff had filed a suit asking for a money decree against the State Government and the Deputy Commissioner on the basis of certain construction contracts executed by the Deputy Commissioner in his official capacity. The claim of the plaintiff was decreed, but was challenged in appeal by the State Government and in the High Court, in appeal by the State Government, it was found that on the basis of the contracts no liability could be fastened on the State Government because the contracts were not in compliance with certain constitutional requirements. It was at that stage that the plaintiff-respondent contended that the Deputy Commissioner who had executed the contracts was a party-respondent to the appeal and the plaintiff was at least entitled to a decree against the Deputy Commissioner in view of the provisions of Order 41, rule 33, Civil Procedure Code. This contention was not accepted in the High Court and that is how the plaintiff went in appeal to the Supreme Court and it is in that context that the Supreme Court laid down the scope as reproduced above of the provisions of Order 41, rule 33, Civil Procedure Code.

15. In another recent decision of the Supreme Court in Nirmala Bala Ghosh v. Balai Chand1, there are certain relevant observations with regard to the scope of Order 41, rule 33, Civil Procedure Code. A reference to them will be useful in deciding whether the lower appellate Court was justified in exercising its powers under those provisions in the instant case. The Supreme Court in that case, in paragraph 22 of the judgment has observed:

"The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to oases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41, rule 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from."

I shall presently show that these observations apply with full force to the instant case and they will justify the exercise of the powers by the lower appellate Court under Order 41, rule 33 of the Civil Procedure Code.

16. I shall now refer to the decisions which are cited by the learned counsel for the appellant. In the first decision in P. Rammurty v. Kalpo Patro2, the learned single Judge of that Court while referring to the scope of the provisions of Order 41, rule 33, Civil Procedure Code, has observed as follows:

"No doubt, Order 41, rule 33 confers wide and unlimited jurisdiction on the Court of appeal, and in a proper case the appellate Court can vary and reverse a decree or order of the trial Court even in favour of a party who has not filed any appeal or cross-objection. But that power has to be exercised with due consideration of the other provisions such as Order 41, rule 22 of the Code." That was a case where the plaintiff had filed a suit for possession of certain plots which he claimed to have purchased from the defendant No. 5. The plaintiff was dispossessed of these plots, and therefore, he filed a suit for possession at a later stage. An alternative prayer for refund of consideration was also made against the vendor. The suit was contested mainly by the defendant No. 1, who also claimed title to the property. The defendant No. 1 who contested the claim of the plaintiff claimed that he had already purchased that property by a sale-deed dated 12-1-1949 while the plaintiff's sale-deed was dated 3-9-1952. The trial Court dismissed the suit for possession and passed a decree for refund of consideration against the vendor, who was defendant No. 5 in the suit. This decree was challenged by the defendant No. 5 in an appeal and the appellate Court set aside the judgment of the trial Court and gave a decree for declaration of title and for recovery of possession in favour of the plaintiff against the defendant No. 1 and the other contesting defendants. The defendant No. 1 challenged the decree of the lower appellate Court. On these facts the High Court has held that the passing of the decree in favour of the plaintiff was neither necessary for settlement of any of the mutual rights or obligations of the parties, nor would any inconsistent finding or decree follow by merely allowing the appeal of defendant and without giving in the aforesaid relief to the plaintiff. The view which the learned Judge had taken was that the allowing the appeal of the defendant No. 5 did not result in any inconsistent or contradictory decree and since that was not the result of the decision of lower appellate Court, the lower appellate Court was not justified in exercising the powers under Order 41, rule 33, Civil Procedure Code. This decision can-not help the present appellants because in the instant case the effect of the finding that the defendant No. 1 had title to the property is bound to be that the two inconsistent findings will have to co-exist side by side if powers under Order 41, rule 33, Civil Procedure Code, were not exercised by the lower appellate Court in favour of the plaintiff.

17. The second decision in Ravirudi Abhayya v. State of Andhra Pradesh1. In my view that decision is clearly distinguishable on facts. That was a case where the plaintiff who claimed to be in possession of certain agricultural property was dispossessed by an action of the Tahsildar, who handed over possession to some other persons. The plaintiff filed a suit for possession and injunction against the State Government and also other persons who claimed to be in possession by virtue of an assignment in their favour by the State Government. The State Government took no part in the suit and the trial Court decreed the suit against all the defendants. The State Government did not file any appeal against the decree in favour of the plaintiff, but the other defendants Nos. 2 and 3 filed an appeal to which the State and the plaintiff were party-respondents. In that appeal the appellate Court set aside the decree of the trial Court as a whole and dismissed the plaintiff's suit even against the State Government. This setting aside the decree even against the State Government was sought to be justified by the provisions of Order 41, rule 33, Civil Procedure Code, and on these facts the High Court held that the lower appellate Court was not justified in setting aside the decree under Order 41, rule 33, Civil Procedure Code. The facts of the case clearly indicate that the defendants, who had appealed against the decree of the trial Court, were themselves claiming through the State Government. The plaintiff's claim was that he had been in possession of the property for about 40 years and that claim was decreed against the State Government and the State Government never challenged the decree. If in such a case where a decree was effected by the State Government the High Court held that in an appeal by the person claiming through the State Government, the decree against the State Government could not be affected, and even on facts the High Court has found that the plaintiff's claim was rightly decreed by the trial Court. The facts of the instant case before us are eloquent that the person through whom the plaintiff himself is claiming has appealed and it is in such an appeal that the powers under Order 41, rule 33, Civil Procedure Code, were sought to be exercised. I am clear in my mind that the defendants Nos. 2 and 3-the appellants are not entitled to draw any support from this decision.

18. The third decision relied on is Union of India v. Motilal Kamalia1. That was a suit by a consignor against a railway administration for damages and against the Insurance Companies also for damages. The claim was decreed but the Union of India representing the railway administration appealed and in that appeal by the Union of India, the contention raised on behalf of the Insurance Companies was that if the liability of the railway administration was negatived, then the decree against them also should be set aside. In that context the Court observed that the decree of the trial Court was that in case the damage was not recovered from the railway administration, the plaintiff would recover the same from the Insurance Companies, and the Court further found that the causes of action against the railway administration and the Insurance Companies were entirely different and though there was one decree in form in effect there were two decrees. This decision is also clearly distinguishable on facts.

19. The last decision relied upon by the learned counsel is reported in Brajabala Barua v. Gauhati Bank Ltd.2. It was a suit brought by a Bank against 3 defendants on the allegations that they were jointly and severally liable for the amount claimed. The trial Court decreed the suit ex parte against the defendant No. 1 and made defendants Nos. 2 and 3 jointly liable for the decree against defendant No. 1. Neither the first nor the second defendant appealed against that decree, but the defendant No. 3, who was a Managing Director of the Bank, filed an appeal contending that there was no cause of action against him and the High Court came to the conclusion that the suit against the defendant No. 3 was wholly misconceived. In that appeal, the defendant No. 2 who was arrayed as a proforma respondent contended that though his application to leave to appeal in forma pauperis was rejected he was entitled to relief in his favour under Order 41, rule 33, Civil Procedure Code. The High Court on those facts held that a right had accrued to the plaintiff and the Court will not grant any relief to the defendant No. 2 when it effected a right acquired by the plaintiff as against this defendant. It appears that has the claim against the defendant No. 3 was rejected as misconceived, the High Court found that the defendant No, 2 could not get the benefit of the appeal filed by the defendant No. 3.

20. It will thus be seen that if on the facts of the instant case it is possible to say that an interference with the decree of the trial Court was necessary in favour of the plaintiff, the lower appellate Court could certainly invoke its powers under Order 41, rule 33, Civil Procedure Code.

21. As observed above, the lower appellate Court has found that the defendant No. 1 had title to the property and it was on that ground that dispossession by the defendants Nos. 2 and 3 was held justified. It is difficult to see how the finding that the defendants Nos. 2 and 3 had no title to the property as given by the lower appellate Court could stand and also the finding of the trial Court that the defendants Nos. 2 and 3 were justified in dispossesing the plaintiff could be allowed to stand. This is eminently a case which falls within the rule laid down by the Supreme Court in Nirmala Bala Ghose v. Balai Chand1. As a result of the finding in favour of the defendant No. 1 that he had title to the property which he sold to the plaintiff a re-adjustment of the rights of the parties was necessarily called for and the plaintiff could not lose both his money and the field. The defendant No. 1 has already made a prayer that such an adjustment should be made and that a proper decree for possession should be passed. It appears that even at the appellate stage long before the appeal was heard, the plaintiff had by an application made to the lower appellate Court specifically invoked the powers of the Court under Order 41 rule 33, Civil Procedure Code. This application was made on 18-6-1961 and the appeal was heard sometime in September 1951. If on the basis of the fact that the defendant No. 1's title was proved, the continuance of possession by defendants Nos. 2 and 3 of that land was unjustified and the plaintiff who had paid valuable consideration for that land could be placed in possession which was also the relief asked by him in the original Court, it cannot be said that the lower appellate Court which had discretion to exercise its powers under Order 41, rule 33, Civil Procedure Code and grant that relief to the plaintiff acted in any way contrary to law in passing a decree in favour of the plaintiff It is also impossible to entertain a contention that such powers should not be used coming from the defendants Nos. 2 and 3, who have no manner of right to the disputed property. I am, therefore, unable to accept the contention that the lower appellate Court acted in any way illegally in exercising its discretion under Order 41, rule 33, Civil Procedure Code.

22. The result, therefore, is that the judgment and decree passed by the lower appellate Court is confirmed and the appeal is dismissed with costs.

Appeal dismissed.