Himachal Pradesh High Court
Reserved On: 23.3.2026 vs Of on 22 May, 2026
2026:HHC:19291
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 419 of 2002
Reserved on: 23.3.2026
.
Date of Decision: 22.5.2026
Phuyian (deceased) through LRs ...Appellants
Versus
of
Krishan Kumar (deceased) through LRs & ors.
...Respondents
Coram rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellants : Mr Bimal Gupta, Senior Advocate,
with Mr Trigun Singh Negi,
Advocate.
Appellant No. 1(b) stated to have expired.
For Respondent No.1(a) : Mr Rahul Gathania, Advocate.
For Respondent No.1(b) : Mr Sudhir Thakur, Senior
Advocate, with Mr Somesh
Sharma, Advocate.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment and decree dated 13.7.2001, passed by learned Additional District Judge, Solan, H.P. (learned Appellate Court), vide which the judgment and decree dated 22.11.2000, passed by learned Sub 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 23/05/2026 12:43:10 :::CIS 22026:HHC:19291 Judge First Class Kandaghat, District Solan, H.P. (learned Trial Court) were partly modified. (The parties shall hereinafter be .
referred to in the same manner as they were arrayed before the learned trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit for seeking a of permanent prohibitory injunction restraining the defendants from interfering in the suit land described in para-1 of the plaint rt in any manner whatsoever. A decree for possession was also sought in the alternative in case the plaintiff was dispossessed forcibly, or he was not found in possession. It was asserted that Puran Chand was the owner in possession of the suit land. He had died on 13.12.1997. Plaintiff is the only son and the legal heir of Puran Chand. The defendants or their predecessor had no concern with the suit land. Mathu, the predecessor-in-interest of the defendants, got the revenue entries incorporated in his favour in connivance with the revenue staff. He started interfering with the plaintiff's possession based on the revenue entry. Hence, the suit was filed to seek the relief mentioned above.
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3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability .
and cause of action, plaintiff being estopped from filing the suit by his act, conduct and acquiescence, and the suit having not been properly valued for Court fees and jurisdiction. The contents of the plaint were denied on the merits. It was of specifically denied that Puran Chand was in possession of the suit land. It was asserted that Puran Chand had inducted Mathu rt Ram as a tenant over the suit land, and Mathu Ram became the owner after the commencement of the H.P. Tenancy and Land Reforms Act. The revenue entries were rightly recorded in favour of Mathu Ram. Therefore, it was prayed that the suit be dismissed.
4. No replication was filed.
5. The following issues were framed by the learned Trial Court on 3.12.1999: -
1. Whether Sh. Puran Chand, Adv., was the owner-in-
possession of the suit land, as alleged? OPP.
2. Whether Puran Chand has expired on 13.12.1997 at Chandigarh? OPP.
3. If Issue No.2 is proved in affirmative, whether the plaintiff is the only son of Shri Puran Chand and is now the owner-in-possession of the suit land? OPP.::: Downloaded on - 23/05/2026 12:43:10 :::CIS 4
2026:HHC:19291
4. Whether the change of the entries by the Settlement Officer is illegal, void, wrong and against the factual position existing on the spot qua the suit land? OPP.
.
5. Whether the suit is not maintainable in the present form?
OPD.
6. Whether the plaintiff is estopped from filing the suit by his own acts, conduct, and acquiescence? OPD.
7. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD.
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8. Whether late Sh. Mathu Ram had been inducted as a tenant by the predecessor-in-interest of the plaintiff? OPD.
9. rt Whether, after the passing of the H.P. Tenancy and Land Reforms Act, the father of the defendants has become owner-in-possession of the suit land? OPD.
10. Relief.
6. The parties were called upon to produce the evidence, and the plaintiff examined Vinay Kumar, his Power of Attorney (PW1). The defendants examined defendant No.1 (DW1), Hari Nand (DW2) and Med Ram (DW3).
7. Learned Trial Court held that Puran Chand was recorded owner-in-possession in the copy of Jamabandi for the year 1989-90. Mathu Ram was recorded in possession in the Misal Hakiyat Bandobast 1992-93 and a copy of Jamabandi for the year 1994-95. The Court had earlier held that Mathu Ram was not inducted as a tenant over the suit land after the suit land was resumed by Puran Chand. The entry in favour of the ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 5 2026:HHC:19291 defendant was wrong, hence the learned Trial Court answered Issues No.1 to 4 in the affirmative, Issue No.8 partly in the .
affirmative, the rest of the issues in the negative and decreed the suit.
8. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendants filed an appeal which of was decided by the learned Additional District Judge, Solan, H.P. (learned Appellate Court). The Appellate Court held that Puran rt Chand had resumed the land, and he had not inducted Mathu Ram as a tenant. The plaintiff had not appeared in the witness box, and his possession was not established. The defendants were found to be in possession. However, they had no right to remain in possession. Hence, the appeal was partly allowed, and the decree of possession was passed in the plaintiff's favour instead of a decree of Permanent Prohibitory Injunction granted by the learned Trial Court.
9. Being aggrieved by the judgment and decree passed by the learned Courts below, the defendant has filed the present appeal, which was admitted on the following substantial question of law on 7.11.2003: -
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1. Whether the learned First Appellate Court was right in granting a decree for possession in favour of the plaintiff in a suit for permanent prohibitory injunction, against .
the defendant in the facts and circumstances of this case?
10. The Court allowed the appeal and dismissed the suit on 20.6.2017, however, this order was recalled in a review petition on 28.2.2025.
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11. I have heard Mr Bimal Gupta, learned Senior Advocate, assisted by Mr Trigun Singh Negi, learned counsel for rt the appellant and Mr Rahul Gathania, learned counsel for respondent No.1(a) and Sudhir Thakur, learned Senior Advocate, assisted by Mr Somesh Sharma, learned counsel for respondent No.1(b).
12. Mr Bimal Gupta, learned Senior Advocate for the appellants, submitted that the learned Appellate Court erred in decreeing the suit in an appeal filed by the defendants. The position of the person filing the appeal could not have been made worse than it would have been had he not filed an appeal.
The defendants had not filed any cross objection or appeal seeking the decree of possession, and the learned appellate Court had no jurisdiction to grant the decree of possession. The plaintiff had not appeared in the witness box, and an adverse ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 7 2026:HHC:19291 inference was rightly drawn by the learned Appellate Court. He relied upon the following judgments in support of his .
submissions: -
(i) Vidhyadhar Vs. Manikrao & anr. (1999) 3 SCC 573;
(ii) Chowdamma Vs. Venkatappa 2025 SCC OnLine SC 1814;
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(iii) Urmil Gupta Vs. Commissioner (2017) SCC OnLine HP 1096;
(iv) Lakhmanan Vs. G. Ayyasamy (2016) 13 SCC 165;
rt
(v) Banarsi Vs. Ram Phal (2003) 9 SCC 606; and
(vi) Choudhary Shu Vs. State of Bihar (1982) 1 SCC 232
13. Mr Sudhir Thakur, learned Senior Advocate for respondent No.1(b), submitted that the learned Trial Court had decreed the suit for Permanent Prohibitory Injunction and the learned Appellate Court had found the plaintiff to be out of possession. Order 41 Rule 33 read with Order 41 Rule 22 conferred the jurisdiction upon the learned Appellate Court to pass an order as may be deemed fit in the circumstances of the case. Once the title of the plaintiff was proved on record and the possession of the defendants was unauthorised, the learned Appellate Court was justified in passing a decree for possession.
There is no infirmity in the judgment and decree passed by the ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 8 2026:HHC:19291 learned Appellate Court. Hence, he prayed that the present appeal be dismissed. He relied upon the following judgements in .
support of his submission: -
(i) Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar & Ors.;
(ii) Nazir Mohamed Vs. J. Kamala & Ors.
of MANU/SC/0619/2020;
(iii) S. Subramanian Vs. S. Ramasamy & Ors.
rt MANU/SC/0650/2019;
(iv) Banarsi & Ors. Vs. Ram Phal MANU/SC/0147/2003;
and
(v) P. Kishore Kumar Vs. Vittal K. Patkar MANU/SC/1241/2023.
14. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
Substantial Question of Law No.1:
15. Order 41 Rule 22 of the CPC enables the respondent to support the decree, but if he wants to challenge any part of the decree, he has to file cross-objections. It was held in Choudhary Sahu v. State of Bihar, (1982) 1 SCC 232: 1981 SCC OnLine SC 445 that the respondent can support a decree, but he cannot challenge the decree. It was observed at page 235: -
::: Downloaded on - 23/05/2026 12:43:10 :::CIS 92026:HHC:19291 "7. The first part of this Rule authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the court below. The first part thus authorises the .
respondent only to support the decree. It does not authorise him to challenge the decree. If he wants to challenge the decree, he has to take recourse to the second part, that is, he has to file a cross-objection if he has not already filed an appeal against the decree. Admittedly, the State of Bihar had neither filed any appeal of nor cross-objection. Obviously, therefore, on the strength of the first part of sub-rule (1) of Rule 22 of Order 41, the State of Bihar could only support the decree not only on the grounds decided in its favour but also on the grounds rt decided against it. The Commissioner, however, has set aside the finding in favour of the appellants on the strength of Order 41 Rule 22(1). In our opinion this he could not do.
8. The only other Order on which the State of Bihar could rely upon is Order 41 Rule 33 CPC. The High Court did not consider the provisions of Order 41 Rule 33, as in its opinion the order of the Commissioner could be supported on the strength of Order 41 Rule 22. In the view that we have taken regarding the applicability of Order 41 Rule 22, it becomes pertinent to consider the applicability of Order 41 Rule 33 of the Code of Civil Procedure. Insofar as material, it reads:
33. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection . . .
Illustration. --A claims a sum of money as due to him from X or Y, and in a suit against both, obtains a decree ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 10 2026:HHC:19291 against X. X appeals, and A and Y are respondents. The Appellate Court decides in favour of X. It has the power to pass a decree against Y. .
This Rule is widely expressed, and it must be applied with great caution. The object of this Rule is to empower the appellate court to do complete justice between the parties. Under this Rule, the court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree, and such power may be exercised in favour of all or any of the parties even though they may not have of filed an appeal or objection.
9. Reliance has been placed on Nirmala Bala Ghose v. Balai Chand Ghose [AIR 1965 SC 1874: (1965) 3 SCR 550]. This rt Court, dealing with the scope of Order 41 Rule 33, observed as follows:
"The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases 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".
10. In the case cited above, there were two sets of defendants in the suit and, in substance, two decrees, though correlated, were passed. One of the decrees could stand apart from the others. One set of defendants was two deities. The suit was decreed against them. They did not go up in appeal, nor did they take part in the ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 11 2026:HHC:19291 proceedings either before the High Court or before the Supreme Court, although they were impleaded as respondents. The other set of defendants, Nirmala, sought to invoke the powers of the appellate court under .
Order 41 Rule 33 to pass a decree in favour of a party not appealing so as to give the latter a benefit which she had not claimed. In such a situation, this Court observed:
"When a party allows a decree of the Court of first instance to become final, by not appealing against the decree, it would not be open to another party to the of litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under Order 41 Rule 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit rt which he has not claimed. Order 41 Rule 33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders".
11. Counsel for the State of Bihar, on the other hand, referred to Giani Ram v. Ramji Lal [(1969) 1 SCC 813: (1969) 3 SCR 944]. While construing the provisions of Order 41 Rule 33, this Court observed:
"The expression 'which ought to have been passed"
means "what ought in law to have been passed". If the Appellate Court is of the view that any decree which ought in law to have been passed 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".
12. The object of this Rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The Rule does ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 12 2026:HHC:19291 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.
.
13. Ordinarily, the power conferred by this Rule will be confined to those cases where, as a result of interference in favour of the appellant, further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under of this Rule, the court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the law of limitation or the law of court fees, etc."
16. rt In Banarsi v. Ram Phal, (2003) 9 SCC 606: 2003 SCC OnLine SC 229, the appellant had filed a civil suit seeking the cancellation of the agreement to sell, and the respondent had filed a civil suit seeking the specific performance of the agreement to sell. These suits were consolidated, and the learned Trial Court passed a decree for the return of the amount with interest and declined specific performance. Learned Appellate Court decreed the suit for specific performance in an appeal filed by the appellant. The Hon'ble Supreme Court held that in the absence of a cross-appeal or the cross objection filed by the respondent, the Appellate Court did not have the jurisdiction to modify the decree. It was observed: -
::: Downloaded on - 23/05/2026 12:43:10 :::CIS 132026:HHC:19291 "13. We are, therefore, of the opinion that in the absence of a cross-appeal preferred or cross-objection taken by the plaintiff-respondent, the first appellate court did not have jurisdiction to modify the decree in the manner in .
which it has done. Within the scope of appeals preferred by the appellants the first appellate court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the of defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the first appellate court has done is not only to set aside the decree to the extent to rt which it was in favour of the appellants, but also granted an absolute and out-and-out decree for specific performance of the agreement to sell, which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection."
17. It was held that a respondent may defend himself without filing any cross objection to a decree, but if he proposes to attack any part of the decree, he must take cross objections. It was observed: -
"10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1), a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross- objection against a finding. The difference that has resulted, we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which the decree is in his favour; however, if he ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 14 2026:HHC:19291 proposes to attack any part of the decree, he must take a cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling, and this may be made precise by analysing the provision. There .
may be three situations:
(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent, though an issue has been decided against the respondent.
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(iii) The decree is entirely in favour of the respondent, and all the issues have also been answered in favour of the respondent, but there is a finding in the judgment rt that goes against the respondent.
11. In the type of case (i), it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same, though that part of the decree which is in his favour, he is entitled to support without taking any cross-objection. The law remains so post-amendment, too. In the type of cases (ii) and (iii), the pre-amendment CPC did not entitle or permit the respondent to take any cross-objection, as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelt out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default, the cross-objection taken to any finding by the respondent shall still be available to be ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 15 2026:HHC:19291 adjudicated upon on merits, which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent .
from questioning the correctness or otherwise of any finding recorded against the respondent.
12. The fact remains that to the extent to which the decree is against the respondent, and he wishes to get rid of it, he should have either filed an appeal of his own or taken cross-objection, failing which the decree to that extent of cannot be insisted on by the respondent for being interfered with, set aside or modified to his advantage. The law continues to remain so post-1976 amendment. In a suit seeking specific performance of an agreement to rt sell governed by the provisions of the Specific Relief Act, 1963, the court has a discretion to decree specific performance of the agreement. The plaintiff may also claim compensation under Section 21 or any other relief to which he may be entitled, including the refund of money or deposit paid or made by him in case his claim for specific performance is refused. No compensation or any other relief, including the relief of refund, shall be granted by the court unless it has been specifically claimed in the plaint by the plaintiff. Certainly, the relief of specific performance is a larger relief for the plaintiff and more onerous to the defendant compared with the relief for compensation or refund of money. The relief of compensation or refund of money is a relief smaller than the relief of specific performance. A plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or any other relief, including the refund of any money, has a right to file an appeal against the original decree if the relief of specific performance is refused and other relief is granted. The plaintiff would be a person aggrieved by the decree in spite of one of the alternative reliefs having been allowed to him, because what has been allowed to him is the smaller relief, and the larger ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 16 2026:HHC:19291 relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific performance being denied to the plaintiff, and instead a decree of smaller .
relief, such as that of compensation or refund of money or any other relief being granted to the plaintiff for the former is larger relief, and the latter is smaller relief. The defendant would be the person aggrieved to that extent. It follows as a necessary corollary from the abovesaid statement of law that in an appeal filed by the defendant of laying challenge to the relief of compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent cannot seek the relief of specific performance rt of contract or modification of the impugned decree except by filing an appeal of his own or by taking cross-
objection."
18. It was further held that it was impermissible to reverse the decree of the learned Trial Court by taking recourse to Order 41 Rule 33 in the absence of an appeal. It was observed:
15 [Ed.: Para 15 corrected as per Official Corrigendum No. F.3/Ed.B.J./65/2003]. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties, and such power is unfettered by consideration of facts like what is the subject-matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 17 2026:HHC:19291 made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While .
allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the of appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of rt justice. The wider the power, the higher the need for caution and care while exercising the power. Usually, the power under Rule 33 is exercised when the portion of the decree appealed against, or the portion of the decree held liable to be set aside or interfered with by the appellate court, is so inseparably connected with the portion not appealed against or left untouched that, for the reason of the latter portion being left untouched, either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted, and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order
41. ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 18 2026:HHC:19291 ***** 21 [Ed. Para 21 corrected as per Official Corrigendum No. F.3/Ed.B.J./65/2003]. In the case before us, the trial court .
found the plaintiff (in his suit) not entitled to a decree for specific performance and found him entitled only to a money decree. In addition, a conditional decree was also passed directing the execution of the sale deed if only the defendant defaulted on any paying or depositing the money within two months. Thus, to the extent of specific performance, it was not a decree outright; it was a of conditional decree. Rather, the latter part of the decree was a direction in terrorem so as to secure compliance by the appellant of the money part of the decree within the scheduled time-frame. In the event of the appellant rt having made the payment within a period of two months, the respondent would not be, and would never have been, entitled to the relief of specific performance. The latter decree is not inseparably connected with the former decree. The two reliefs are surely separable from each other, and one can exist without the other. Nothing prevented the respondent from filing his own appeal or taking cross-objection against that part of the decree which refused, straight away, a decree for specific performance in his favour based on the finding of comparative hardship recorded earlier in the judgment.
The dismissal of appeals filed by the appellant did not result in any inconsistent, iniquitous, contradictory or unworkable decree coming into existence so as to warrant the exercise of power under Rule 33 of Order 41. It was not a case of interference with the decree having been so interfered with as to call for adjustment of equities between the respondents inter se. By his failure to prefer an appeal or to take cross-objection, the respondent has allowed the part of the trial court's decree to achieve a finality which was adverse to him.
19. It was laid down by the Hon'ble Supreme Court in Lakshmanan v. G. Ayyasamy, (2016) 13 SCC 165 : (2017) 2 SCC (Civ) ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 19 2026:HHC:19291 241: 2016 SCC OnLine SC 392 that the jurisdiction under Order 41 Rule 33 CPC cannot be exercised to ignore a legal interdict, and .
in the absence of an independent appeal, the relief which was denied by the Court cannot be granted in the second appeal. It was observed at page 168: -
"7. The learned counsel for the appellants, Mr K.K. of Mani, submits that the grant of such relief by the High Court in exercise of its second appellate jurisdiction is contrary to law laid down by this Court in Banarsi v. rt Ram Phal [Banarsi v. Ram Phal, (2003) 9 SCC 606]. Paras 6 and 7 read thus: (SCC p. 614) "6. The appeals raise a short but interesting question of frequent recurrence as to the power of the appellant court to interfere with and reverse or modify the decree appealed against by the appellants in the absence of any cross-appeal or cross-objection by the respondent under Order 41 Rule 22 CPC and the scope of power conferred on the appellate court under Rule 33 of Order 41 CPC.
7. The first question is whether, without cross- objection by the respondent, could the appellate court have set aside the decree passed by the trial court and instead granted straightaway a decree for specific performance of the contract. This would require reference to the principles underlying the right to file an appeal and right to prefer cross- objection, or when does it becomes necessary to prefer cross-objection without which the decree under appeal cannot be altered or varied to the advantage of the respondent and/or to the disadvantage of the appellant."
It has also been held by this Court in Samundra Devi v. Narendra Kaur [Samundra Devi v. Narendra Kaur, ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 20 2026:HHC:19291 (2008) 9 SCC 100: (2008) 3 SCC (Cri) 690], SCC para 21, that this power under Order 41 Rule 33 CPC cannot be exercised ignoring a legal interdict.
.
"15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The above-said provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties, and such power is unfettered of by consideration of facts like what is the subject- matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed rt against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. The wider the power, the higher the need for caution and care while exercising the power. Usually, the power under Rule 33 is exercised when the portion of the decree appealed against, or the ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 21 2026:HHC:19291 portion of the decree held liable to be set aside or interfered with by the appellate court, is so inseparably connected with the portion not appealed against or left untouched that, for the .
reason of the latter portion being left untouched, either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost of cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to rt the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted, and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41."
(Ram Phal case [Banarsi v. Ram Phal, (2003) 9 SCC 606], SCC p. 619, para 15) (emphasis supplied)
8. In support of the same proposition of law, the learned counsel for the appellants placed reliance upon another judgment of this Court in Pralhad v. State of Maharashtra [Pralhad v. State of Maharashtra, (2010) 10 SCC 458 : (2010) 4 SCC (Civ) 212], wherein this Court after interpretation of Order 41 Rule 33 CPC has clearly held that in the absence of an independent appeal or cross-objection being filed by the aggrieved party, the relief which was denied by the courts below cannot be granted in the second appeal filed by the appellant.
9. In view of the law laid down by this Court on the same question of law as has been raised in this case, we are of the considered view that the principles laid down in the abovesaid cases are squarely applicable to the fact situation, therefore, we have to set aside the ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 22 2026:HHC:19291 judgment and decree passed by the first appellate court, particularly the direction to the appellant- defendants to remove the windows in the western wall of the defendants and for closure of that area occupied .
by those windows. It is also needless to make an observation that the respondent-plaintiff had not even questioned the setting aside of the judgment and decree of permanent injunction granted by the first appellate court against the appellant-defendants regarding ingress and egress to the suit property, etc., of etc.
20. This position was reiterated in Vaibhav Jain v.
Hindustan Motors (P) Ltd., (2025) 2 SCC 208: 2024 SCC OnLine SC rt 2337, wherein it was observed:
32. From the decision above, which has been consistently followed, it is clear that for exercise of the power under Rule 33 of Order 41CPC the overriding consideration is achieving the ends of justice; and one of the limitations on exercise of the power is that that part of the decree which essentially ought to have been appealed against, or objected to, by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party.
21. A similar view was taken in Dharmrao Sharanappa Shabadi v. Syeda Arifa Parveen, (2026) 3 SCC 460: 2025 SCC OnLine SC 2155, wherein it was held at page 477:
"30. By applying the ratio in Banarsi [Banarsi v. Ram Phal, (2003) 9 SCC 606], we notice that the impugned judgment [Dharmrao v. Arifa Parveen, 2022 SCC OnLine Kar 1671] has not considered whether a ground is made out for modifying a decree or not. The High Court has disturbed a finding of fact, leading to modifying the ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 23 2026:HHC:19291 decree of the trial court in OS No. 212 of 2013 without there being an appeal/cross-appeal. To this extent, the findings of the High Court are not tenable in the facts and circumstances of this case. The other reasons assigned by .
the High Court are independently examined while considering the plea of Hiba and the plaintiff as the daughter of Khadijabee. The finding on this point, noted as an illegality, may not conclude the consideration of other issues."
22. Therefore, the learned Appellate Court cannot pass a of decree in favour of a non-appealing person because the position of a person filing an appeal cannot be made worse than it would rt have been had he not filed an appeal.
23. In the present case, the plaintiff had not filed any appeal, and the learned Appellate Court could not have granted the relief of possession in his favour in the absence of any appeal/cross objection filed by the respondent.
24. It was submitted on behalf of the plaintiff that the plaintiff can challenge the finding that he is not in possession recorded by the learned Appellate Court in the present proceedings. This submission is not acceptable. The jurisdiction of this Court, while deciding the Regular Second Appeal, is confined to a substantial question of law, and it cannot act as a third Court on facts. It was laid down by the Hon'ble Supreme ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 24 2026:HHC:19291 Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722: 1999 SCC OnLine SC 466 that the findings of facts .
recorded by the Courts cannot be disturbed in a regular second appeal unless these are connected to the substantial question of law. It was observed at page 725: -
"5. It is not within the domain of the High Court to of investigate the grounds on which the findings were arrived at by the last court of fact, being the first appellate court. It is true that the lower appellate court should not rt ordinarily reject witnesses accepted by the trial court in respect of credibility, but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in a second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where, from a given set of circumstances, two inferences are possible, one drawn by the lower appellate court is binding on the High Court in a second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous, being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence."
25. This position was reiterated in Nazir Mohamed v. J.
Kamala, (2020) 19 SCC 57: 2020 SCC OnLine SC 676, and it was held at page 68: -
32. In a second appeal, the jurisdiction of the High Court being confined to a substantial question of law, a finding ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 25 2026:HHC:19291 of fact is not open to challenge in a second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect, as held in V. Ramachandra Ayyar v. Ramalingam Chettiar [V. Ramachandra Ayyar v.
.
Ramalingam Chettiar, AIR 1963 SC 302]. An entirely new point, raised for the first time before the High Court, is not a question involved in the case, unless it goes to the root of the matter.
33. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
of 33.1. An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question rt of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is a misconstruction of a document or a wrong application of a principle of law in construing a document, it gives rise to a question of law.
33.2. The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, the answer to which affects the rights of parties to the suit) will be a substantial question of law if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and involves a debatable legal issue.
33.3. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 26 2026:HHC:19291 decision rendered on a material question violates the settled position of law.
33.4. The general rule is that the High Court will not .
interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where : (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly of cast the burden of proof. A decision based on no evidence does not refer only to cases where there is a total dearth of evidence, but also refers to cases where the evidence, taken as a whole, is not rt reasonably capable of supporting the finding.
26. A similar view was taken in S. Subramanian v. S. Ramasamy, (2019) 6 SCC 46: (2019) 3 SCC (Civ) 83: 2019 SCC OnLine SC 640, wherein it was observed at page 54: -
7.2. We have gone through and considered the findings recorded by the learned trial court as well as the first appellate court. On appreciation of the entire evidence on record, more particularly, the documentary evidence which came to be considered by the High Court as Ext. A-1 and Exts. A-19, 24, 45 and 46, thereafter, both the courts below came to the conclusion that there was no blending or treating of the suit property as a joint family property.
Despite the above, the High Court while passing the impugned common judgment and order, has reappreciated the entire evidence on record including the documentary evidence which as such were considered by both the courts below and has upset the findings of facts recorded by both the courts below on the blending of suit property as a joint family property and has given its own findings, which in exercise of its powers under Section 100 CPC is wholly impermissible.
::: Downloaded on - 23/05/2026 12:43:10 :::CIS 272026:HHC:19291 7.3. As per a catena of the decisions of this Court, while deciding the second appeal under Section 100 CPC, the High Court is not required to reappreciate the entire evidence on record and to come to its own conclusion and .
the High Court cannot set aside the findings of facts recorded by both the courts below when the findings recorded by both the courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law.
of 7.4. Even otherwise, it is required to be noted that as per a catena of the decisions of this Court and even as provided under Section 100 CPC, the second appeal would be maintainable only on a substantial question of law. The rt second appeal does not lie on a question of fact or of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. As observed and held by this Court in Kondiba Dagadu Kadam [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722], in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous, being:
(i) Contrary to the mandatory provisions of the applicable law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii) Based on inadmissible evidence or no evidence. It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in a second appeal. It is ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 28 2026:HHC:19291 further observed that the trial court could have decided differently, but this is not a question of law justifying interference in a second appeal.
.
7.5. When a substantial question of law can be said to have arisen, it has been dealt with and considered by this Court in Ishwar Dass Jain [Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434]. In the aforesaid decision, this Court has specifically observed and held: (SCC p. 437) "Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a of substantial question of law, and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which rt interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered, which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence, which, if it were omitted, an opposite conclusion would be possible. In either of the above situations, a substantial question of law can arise." 7.6. Applying the law laid down by this Court in the aforesaid decisions and the substantial questions of law formulated/framed and answered by the High Court, reproduced hereinabove, it cannot be said that the said questions of law can be said to be substantial questions of law. All can be said to be questions of law or questions of fact, and cannot be said to be substantial questions of law. 7.7. As observed hereinabove, while passing the impugned judgment and order, the High Court has reappreciated the entire evidence on record as if the High Court were deciding the first appeal. By the impugned judgment and order, while exercising the powers under Section 100 CPC and on reappreciation of the entire evidence on record, the High Court has set aside the ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 29 2026:HHC:19291 findings of facts recorded by both the courts below on the blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the first appellate court is the .
final court and unless and until the findings of facts recorded by the courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the courts below, which were on appreciation of evidence on record. It is not of permissible for the High Court to reappreciate the entire evidence on record and come to its own finding when the findings recorded by the courts below, more particularly, the first appellate court, are based on an appreciation of rt evidence. Therefore, the procedure adopted by the High Court while deciding the second appeals is beyond the scope and ambit of the exercise of its powers under Section 100 CPC.
27. A similar view was taken in P. Kishore Kumar v. Vittal K. Patkar, (2024) 13 SCC 553: 2023 SCC OnLine SC 1483, wherein it was observed at page 567: -
39. The first appellate court, having examined the facts in extenso, the High Court ought not to have interfered with the findings rendered therein by virtue of being, in a second appeal, a court of law. As was astutely said by this Court in Gurdev Kaur v. Kaki [Gurdev Kaur v. Kaki, (2007) 1 SCC 546], a second appellate court is not expected to conduct a "third trial on facts" or be "one more dice in the gamble". The decision rendered by the first appellate court, not being in violation of the settled position of law, ought not to have been interfered with. With utmost respect to the High Court, we are constrained to observe that the question framed by it could be regarded as one of law, if it all, but did not merit the label of a substantial ::: Downloaded on - 23/05/2026 12:43:10 :::CIS 30 2026:HHC:19291 question of law so as to warrant interference with the first appellate decree under Section 100 CPC.
28. Therefore, it is impermissible for this Court to go .
into the finding of fact recorded by the learned Appellate Court.
Even otherwise, the findings were based upon the record. The plaintiff had not appeared in the witness box, his Power of of Attorney, Vinay Kumar (PW1), admitted in his cross-
examination that the plaintiff was permanently settled at rt Chandigarh and he visits the land occasionally. The plaintiff had not employed any Chowkidar or Caretaker on the land. He has not explained how, if he was residing at Chandigarh and had no Chowkidar or Caretaker, he could have claimed to be in possession. Therefore, the finding recorded by the learned Appellate Court that the plaintiff is out of possession cannot be faulted.
29. Therefore, the learned Appellate Court erred in granting the decree for possession in the absence of the cross objection/appeal, and this substantial question of law is answered accordingly.
::: Downloaded on - 23/05/2026 12:43:10 :::CIS 312026:HHC:19291 Final order:
30. In view of the above, the present appeal is allowed, .
and the judgment and decree passed by the learned Appellate Court are ordered to be set aside, and the plaintiff's suit is ordered to be dismissed.
31. Pending application(s), if any, also stand(s) disposed of of.
32. rt Records of the learned Courts below be sent down forthwith.
(Rakesh Kainthla) Judge 22nd May, 2026 (Chander) ::: Downloaded on - 23/05/2026 12:43:10 :::CIS