JUDGMENT
Dawson Miller, C.J.
1. These two appeals arise out of two suits which were instituted by the plaintiff for rent against the tenants of certain holdings. They were two suits numbered 1102 and 1107. The questions arising for determination in both these cases are similar. Although the rent claimed and the area of the holdings is different the facts in other respects relating to both these suits are quite similar and the appeals have been heard together. It appears from the first suit of which alone it is necessary to give any details of the facts that there was a holding consisting originally of 9.62 acres the rent for which was Rs. 41-5-6 This holding was presumed to lie within the ambit of Mouza Dumri the proprietor of which is the present plaintiff, the Maharaja of Dumraon. During the Survey and Settlement proceedings the proprietor of a neighbouring village, Sheopur Diara, who included the present plaintiff, contended that a portion of the land which compromised those two holdings was within Sheopur Diara and not within Dumri. After a dispute before the Settlement Authorities it was finally determined that of the 9.62 acres of the holding in question in the first of these suits 6.94 acres alone were within village Dumri the balance being within Sheopur Diria. In the Survey khatian the area of this holding was recorded as 6.94 acres but the old rent of Rs. 41-5-6 was also recorded as the rent of that holding Similarly with regard to the other holding in the other suit the original rent was Rs. 31-15-6 and that also was recorded as the rent of the diminished holding in Mouza Dumri. The plaintiff then brought the present suit claiming in the one case Rs. 41-5-6, and in the other Rs. 34-15-6 describing the area of the holdings not as the original area but as 6.94 acres in the first case and similarly a diminished area in the second case.
2. The defendants raised various objections in their written statements and amongst other pleas they contended that the plaintiff had instituted the suit after splitting up the holding and that in such circumstances it could not be entertained. By that I take it they meant that it was not permissible to the plaintiff to sue for rent in respect of a portion of the holding only. If he sued at all he must sue for rent for the whole holding. The defendants in a later part of their written statement give certain measurements and point out that according to the proportionate rate Rs. 31-5-6 should be the rent of the lands whereof rent is demanded and they contend that the plaintiff was not entitled to get any more. They further entered a plea of payment which, however, they failed to sustain. Similar pleas were also raised in the case of the other suit.
3. When the matter came before the Munsif he came to the conclusion that the plaintiff in the circumstances which had arisen was entitled only to the smaller rent, that is to say, the rent proportionate to the smaller area which still remained within Mouza Dumri and he arrived at this conclusion upon the finding that there had in fact been a splitting up of these holdings at or about the time of the settlement. He says after stating certain facts ‘It is, therefore, clear that portions of the holdings as they stood just before Survey were cut away in Mouza Sheopur Diara and were formed into separate holding having no connection with the present holdings. In these circumstances he awarded the plaintiff Rs. 31-5-6 in the one case and Rs. 25-1-6 in the other which in the first case was the sum admitted as the proportionate sum by the defendants and in the other case was a sum which he found to be the proper sum proportionate to the area of the holding.
4. From that decision the plaintiff appealed to the Subordinate Judge. The Subordinate Judge after considering the facts dismissed the appeal, but he went further although the defendants had not appealed from the decision of the Munsif which decreed that they were liable to pay rent at the smaller rate, found that the plaintiff had in fact light to sue for rent in the circumstances which had been disclosed and he dismissed the case. The reason apparently why he arrived at the conclusion that the plaintiff was not entitled to sue in the form in which he did sue was that it had been shown that at the time of the suit the plaintiff was in fact the sole proprietor not only of Mouza Dumri but also of Mouza Sheopur Diara. He also found that the holdings had not in fact been split up into two. Therefore, it followed in his view that the plaintiff being the sole proprietor of the whole of the holdings ought to have brought his suit for rent in respect of the whole of each holding and not merely in respect of a part. He, therefore, considered that the suit was bad and he dismissed it.
5. The only question which we have to determine is whether in the circumstances found he was entitled under Order XLI, Rule 33 of the Civil Procedure Code to pas a decree in favour of the respondents who had not appealed dismissing the whole of the suit. In my opinion Order XLI, Rule 33 has no application to a case like this. The plaintiff succeeded in that suit in part, that is to say, although he claimed a higher rent, he in fact succeeded in obtaining the smaller rent. He obtained a part of that which he claimed and that was the result of certain findings of the Munsif that the holdings had in fact been split up and that the plaintiff was entitled to sue for rent in the one case in respect of a holding of 6.94 acres, and although he had claimed a greater rent than he was entitled to he was certainly entitled to the rent proportionate to that area. The defendants after that decision was given and the decree passed against them were content and remained satisfied with that decree. They made no attempt to appeal and even when the plaintiff appealed they entered no cross-appeal or cross-objection and in my opinion it was not competent to the learned Judge, when the only question before him was whether the plaintiff was entitled to the extra rent which had been refused him, to enter into the question whether or not he was entitled to any rent. This matter was not before the learned Judge and although the wording of Order XLI, Rule 33 may be very wide and give a large discretion to the Court it is in my view clearly not meant to apply to a case like the present. The object of that Order is, speaking generally, to enable the Appellate Court where its decision interferes with or modifies or extends the decision of the lower Court to give effect to that decision by interfering, if necessary, even with the rights and liabilities of those who are not in fact appealing from the decision of the Trial Court. Unless it is necessary in the interests of justice to give effect to the Appellate Court’s decision by interfering in some way or other with the rights of those parties which are not the subject of appeal before us then it seems to me that the Appellate Court has no right whatever to interfere. The illustration given to that rule is a very good instance of the cases in which a Court may well interfere. Again in the case of Ramgam Lal v. Jhandu 11 Ind. Cas. 640 : 34 A. 32 : 8 A.L.J. 1111 the very question which arises in the present case had to be considered and it was decided by the Allahabad High Court that the Court in such circumstances had no right to interfere under Order XLI, Rule 33. The head-note is this: “The plaintiff sued the defendant for rent and obtained a decree for a portion of his claim. The plaintiff then appealed against the disallowance of the balance of the amount claimed (exactly as here) but the defendants submitted to the decree” (again exactly as here) “and neither filed a cross-appeal nor took objections under Order XLI, Rule 22 of the Code of Civil Procedure, 1908: Held, that it was not competent to the Appellate Court acting under Order XLI, Rule 33 to interfere with the decree obtained by the plaintiff in so far as it had not been challenged by the defendants,” and in support of that decision the Court, consisting of the Chief Justice Mr. Justice Bannerji and Mr. Justice Tudball referred to the case of the Attorney-General v. Simpson (1901) 2 Ch. D. 671 : 70 L.J. Ch. 828 : 85 L.T. 325 : 17 T.L.R. 768 which points out certain principles which ought to govern the Court in acting under powers conferred by Rule 33. In my opinion that case was perfectly properly decided and it seems to me to govern the present case. I think, therefore, that this appeal should be decreed with costs, the decision of the learned Subordinate Judge will be set aside and the decree of the Munsif will be restored.
Foster, J.
6. I agree.