JUDGMENT
S. Ali Ahmad, J.
1. This suit giving rise to this second appeal by the defendants, was filed sometime in the month of May, 1959, for declaration of title and recovery of possession with respect to 4 kathas 12 dhurs 34 dhurkis of land appertaining to plots Nos. 19412, 19413. 19489 and 19490. Subsequently by an amendment in the year 1961, the area with respect to which declaration was sought was increased to 5 kathas 16 dhurs 12 dhurkis appertaining to Plots Nos. 19411, 19412, 19413, 19434, 19485, 19487 and 19489. The claim of the plaintiffs was resisted by the defendants-appellants. According to the defendants, plaintiffs had no title to the suit land and, as such, the defendant prayed that the same may be dismissed. The trial Court, however, on appreciation of evidence adduced in the case came to the conclusion that the plaintiffs were entitled to get declaration of their title and recovery of possession with respect to 3 kathas 18 dhurs of land, including 5 dhurs 57 dhurkis of Plot No 19412 and 1 katha 9 dhurkis of Plot No. 19413. The suit, therefore, was decreed in part to the extent indicated. The defendant thereafter, filed an appeal before the District Judge. The appeal was heard on 26-9-1966 and was allowed. Thereafter the matter came up in Second Appeal No. 937 of 1966 to this Court. Mr. Justice B. D. Singh, who heard the appeal was not satisfied with the judgment. He, therefore, allowed the appeal and sent the case back on remand to the lower appellate Court for a fresh decision in accordance with law. When the matter went back to the Court of appeal below, it was again heard on merit. The lower appellate Court again modified the decree passed by the trial Court by its judgment and decree dated 28-9-1970. Second Appeal No. 38 of 1971 was then filed which was heard by Mr. Justice Lalit Mohan Sharma. Mr. Justice Sharma also allowed this second appeal and remanded the case back to the lower appellate Court for a fresh decision in accordance with law. After the case went for the second time to the Court of appeal below, the plaintiffs filed an application for amendment of the plaint seeking that a relief for grant of mesne profits be also passed as against the defendant. The prayer for mesne profits was allowed. The appeal was then heard on merit. The lower appellate Court, this time also modified the decree passed by the trial Court. While so modifying, it decreed the suit with respect to 10 dhurs 57 dhurkis of Plot No. 19412 and 1 katha 9 dhurs in respect of Plot No. 19413. It also passed a decree for mesne profits against the defendants. Thereafter, this second appeal was filed in this Court.
2. The following points were formulated at the time of admission of the appeal by the Court’s order dated 14-11-1980:–
(i) Whether the lower appellate court erred in law in decreeing the suit with respect to 10 dhurs and 57 dhurkis of land, out of Plot No. 19412, instead of 5 dhurs and 57 dhurkis only and similarly in decreeing the suit with respect to 1 katha 9 dhurs of land out of Plot No. 19413 instead of 1 katha and 9 dhurkis?
(ii) Whether the Court of appeal below erred in law in allowing a second application for amendment of plaint with respect to mesne profits and decreeing the same?
(iii) Whether on the terms on which the second amendment of the plaint was allowed the claim of mesne profits must be held to be partly barred by limitation? I now propose to consider these points.
3. Mr. Shreenath Singh, learned counsel for the appellants first contended that the trial Court had given a decree for 5 dhurs 57 dhurkis of Plot No. 19412 and for 1 katha 9 dhurkis of Plot number 19413. He submitted that the plaintiffs did not prefer any appeal against the decree passed by the trial Court. The appeal was preferred only by the defendant. Therefore, according to Mr. Singh, the Court of appeal below had no jurisdiction to increase the area of Plot No. 19412 from 5 dhurs 57 dhurkis to 10 dhurs 57 dhurkis. Likewise Mr. Singh contended that the Court of appeal below had no jurisdiction to increase the area of Plot No. 19413 from 1 katha 9 dhurkis to 1 katha 9 dhurs. This according to Mr. Singh was not only illegal but beyond the competence of the Court of appeal below. Mr. Mishra, on the other hand, contended that the Court below had jurisdiction under Order 41, Rule 33 of the Civil P. C. to pass such decree or orders as the case may require. According to him, although no appeal was preferred by the plaintiffs, but the case required the decree to be modified in the manner it was done. To substantiate his argument that the lower appellate Court has jurisdiction to give a relief although no appeal has been preferred for that purpose, learned counsel has cited the decision in the case of Giani Ram v. Ramji Lal, (AIR 1969 SC 1144) wherein the Supreme Court has observed that if the appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the subordinate Court, it may pass Or make such further or other decree or order as the justice of the case may require. To understand the law laid down by this decision, it will be pertinent to keep the facts of the case in mind. The relevant facts are that the sons, daughters and the widow of the alienor challenged the validity of the transfer made in favour of the alienee. The transfer was upheld by the High Court. The sons then preferred an appeal before the Supreme Court. The Supreme Court was of the view that the transfer was not valid. It, therefore, while decreeing the suit, held that although the daughters and the widow had not filed an appeal yet they could be given relief under Order 41, Rule 33 of the Civil P. C. The important aspect in that case was that the sons had preferred an appeal and in that appeal the entire subject matter of the suit was involved. Therefore, it could not be said in that case that although the properly was not the subject matter of the appeal, relief was given to the respondents in an appeal filed by the appellants.
4. The next case referred to by learned counsel is the decision in the case of Sitesh Kishore Pandey v. Ramesh Kishore Pandey (1981 BLJR 382). In that case, Medini Prasad Singh, J. has held that Order 41, Rule 33 of Civil P. C. in terms are very wide and in a proper case it gives the appellate Court ample discretion to pass any decree or make any order to prevent the ends of justice from being defeated. The proposition of law laid down in this case also, if I may say so with respect, is correct. But in this case also the entire subject matter of the suit was before the appellate Court and, therefore, the learned Judge held that relief could be given to the respondents under Order 41 Rule 33 of the Civil P. C. In this connection, reference may also be made to the case of Attorney-General v. Simpson, ((1901) 2 Ch D 671). In this case the Attorney General brought an action on behalf of the public seeking two reliefs: (a) for a declaration ‘hat the public were entitled to the right of passage along a river including the locks without the payment of tolls; and, (b) that the defendant was under an obligation to maintain the locks in an efficient state by repair. The trial court passed a decree declaring that the public were entitled to use the locks without payment of tolls, but it was also declared that the defendant was under no obligation to repair the locks. The defendant then preferred an appeal against the decree. The plaintiff neither filed an appeal nor cross-objection. The court of appeal found that the public were not entitled to use the locks without payment of tolls to the defendant; at the same time the court expressed the opinion that the defendant was under an obligation to repair the locks. It accordingly passed a decree to that effect. While making this modification, it was observed as follows:–
"In none of the cases brought to our notice has it been laid down that in an appeal preferred by the plaintiff against a portion of the decree the appellate court has no jurisdiction, in the absence of a cross-appeal or cross-objection to dismiss the whole suit and that the utmost that the appellate court is competent to do is to dismiss the appeal......... There may no doubt be cases where n° excuse or jurisdiction (justification?) could be found for a party not having preferred an appeal or a memorandum of objections, in which cases justice may not require the exercise of powers under Order 41, Rule 33, and the appellate Court will be advised in not exercising such powers." The facts, I have quoted above, will amply show that in the case before the Chancery Division also the entire subject matter of the suit was before the appellate court and the relief given to the appellants that the public were not entitled to use the locks without payment of tolls to the defendant had close nexus to the opinion that the defendant was under an obligation to repair the locks. The appellate court, therefore, on these facts, in my opinon, was fully competent to give relief under Order 58, Rule 4, which is equivalent to our Order 41, Rule 33 of the Civil P. C.
5. I may also refer to some decisions cited by Mr. Shreenath Singh. The first is the case of Kesho Prasad Singh v. Narayan Dayal (AIR 1925 Pat 285). A Bench of this Court held that Rule 33, Order 41 does not apply where a plaintiff whose claim is decreed in part, institutes an appeal with regard to the part not decreed and the defendant prefers neither an appeal nor a cross-objection. In such a case the court of appeal has no jurisdiction to enter into the question whether the plaintiff is entitled or not to any decree at all and to dismiss his suit wholesale. This case fully supports the appellants. Then is the decision in the case of Tummalla Atchaiah v. Venka Narasingarao, (AIR 1978 SC 725). The facts of this case were that a suit was filed for cancellation or setting aside the registered deed executed by the plaintiff in favour of the defendant purporting to transfer the decree obtained in an earlier suit for recovery of possession of the scheduled properties. The trial court decreed the suit in part and granted a decree for cancellation of the assignment deed on the plaintiff’s paying Rs. 13,000/- to the defendant. The defendant filed an appeal in the High Court. The plaintiff was a party to the appeal. He had filed a cross-objection but did not attack the decree of the trial court making him liable to return Rs. 13,000/- before he could take back possession from the defendant. The defendant’s appeal was dismissed by the Court but subject to the finding that a sum of Rs. 7.600/- only was to be (had been?) paid by the defendant to the plaintiff. The Supreme Court in that situation held that the High Court was wrong in taking recourse to Order 41, Rule 33 of the Civil P. C. in interfering with the decree of the trial court in relation to payment of Rs. 13,000/-. The learned Judges observed that without a specific ground in the cross-objection and without payment of court-fees on the said amount he was not entitled to get any relief by the court under Order 41, Rule 33 of the Civil P. C. This case also is a pointer to the view that if a part, of the decree has not been appealed from then that cannot be modified or set aside if that part is not dependent upon the decree that the appellate court intends to pass in the appeal. I, therefore, see no merit in the argument of Mr. Mishra that relief could be given to the respondent under Order 41, Rule 33 of the Civil P, C.
6. There is yet another aspect of the matter. True, in appropriate cases, the court may give relief under Order 41, Rule 33 of the Civil P. C. but then the judgment must indicate that the relief is being given under Order 41, Rule 33 of the Civil P. C. for the reasons mentioned in the judgment. I have perused the judgment under appeal. It does not appear from it that while passing the decree the court was of the opinion that it was proper and in the interest of justice that the decree should be modified. In this view of the matter, even if it be assumed in favour of Mr. Mishra, that the court, on the facts of this case, was competent to give relief under Order 41, Rule 33 of the Civil P. C. yet there is nothing to indicate whether the discretion under Order 41, Rule 33 has been consciously exercised or the mention of enhanced area of the two plots, namely, Plot Nos. 19412 and 19413 is a mere accidental error.
7. The next point urged by Mr. Shreenath Singh is with respect to the amendment of the plaint with respect to mesne profits. It appears that an argument was advanced before Mr. Justice Lalit Mohan Sharma in Second Appeal No. 38 of 1971 that the description of the lands in suit was extremely vague and that the decree if passed in favour of the plaintiffs will be unexecutable on account of vagueness. This aspect of the matter was considered by Mr. Justice Sharma and while remitting the case to the lower appellate court, the learned Judge directed that in case the plaintiff decides to file an application for amendment of the plaint by describing the disputed portion of land more clearly, she will be at liberty to do so. The learned Judge also observed that in case the plaintiff wished to file a map along with an amendment petition that will also be entertained by the court and directed the court to allow such a prayer if made. In view of this direction given regarding amendment of the plaint, the plaintiff filed an application on 1st October, 1974 seeking amendment of the plaint on the basis of two maps on trace-paper along with the application for amendment. As directed by this Court the amendment was allowed. Thereafter, the plaintiffs filed another application for amendment on 17-12-1974. By this amendment, they sought to include the prayer for mesne profits. This prayer also was allowed on 5-9-1975 and as I have stated earlier, the suit has been decreed in part with mesne profits after this amendment. It is true that plaint can be amended even at the appellate stage, but in this case I find that the matter had come to this Court earlier and then went back on remand with certain specific directions. One of the directions was to allow the application for amendment of the plaint if filed for more clearly describing the suit properties. It was not said that the party should file petition for amendment for any other purpose also. Therefore, the appellate court, in my view, was not justified in allowing the amendment for mesne profits. I, therefore, set) aside the order dated 5-9-1975 allowing) the prayer for amendment of the plaint. 8. Since I have already held that the court below was not justified in allowing the amendment of the plaint, the third question regarding the passing of the decree for mesne profits becomes redundant. The result, therefore, is that the appeal with respect to the lands appertaining to Plot Nos. 19412 and 19413 is allowed and the decree passed by the trial court with respect to these two plots is restored. The decree for mesne profits also passed by the court below is set aside. The appeal is allowed to the extent indicated above. No costs.