1. These second appeals arise out of the same suit and the facts out of which the suit arose may be stated as follows:
One Vajrala Chinna Rami Reddi died intestate and issueless about 25 years before suit. His properties devolved upon his widow Subbamma who died eight months before suit, After her death one Venkata Reddi, claiming to be the reversioner filed a suit (O.S. 10 of 1921) to recover the suit properties. There were five items of property. Defendants 1 and 10 to 15 were impleaded as lessees under Subbamma of items 1 to 3. Defendants 2 to 6 are the sons of defendant 1. Defendants 7 to 9 andl6 to 18 were their sub-lessees. Defendants 19 to 21 were alleged to be the alienees of items 4 and 5. Defendant 22 is the deity of a temple represented by a trustee in whose favour item 2 was alienated. On the plea of defendants 1 to 18 that the plaintiff was not the nearest reversioner but that there were four other near reversioners who sold the property to T. Veakatakrishnayya, he was added as defendant 23. The pedigree on which the plaintiff relied is as follows: Veerareddi|--------------------------| |Gangi Reddi Ayyala Reddi| |Veera Reddi Venkata Reddi| |Venkatta Reddi Chinna Rami Reddi(Plaintiff) m. Subbamma(died issueless)
2. According to the pedigree relied on by defendant 23 the plaintiffs ' grandfather Gangi Reddi had a father Rami Reddi who was said to be the brother of Ayyalu Reddi the grandfather of Chinna Rami Reddi, the last male owner. Ayyalu Reddi had another brother Krishna Reddi whose descendants are as follows:
Krishna Reddi |--------------------------| |Koti Reddi Gangi Reddi| |Chenchu Reddi -------------------| | |Venkata Koti Ramaswami Reddi Reddi
3. The last four are the vendors of defendant 23.
4. Some time after the filing of the suit a second suit O.S. No. 352 of 1922 was filed by one Ayyarappa Reddi who denied the relationship alleged by the rival claimants in O.S. No. 10 and relied on a pedigree of his own. By consent the two suits were tried together, the witnesses for each claimant being allowed to be cross-examined by the other two claimants. The alienees defendants 19 and 21 also denied that any of the claimants were reversioners. The District Munsif found that the relationship alleged by the plaintiff in O.S. No. 352 was not true and dismissed his suit. In O.S. No. 10 he found that the father of Gangi Reddi was not Rami Reddi but Veera Reddi so that Gangi Reddi was a brother of Krishna Reddi, the ancestor of the reversioners put forward by defendant 23. On this finding the latter reversioners as well as the plaintiff in O.S. 10 would be reversioners of equal degree. He, therefore, gave a decree to the plaintiff for one-fifth of items 1, 2, 3, 4 and 6, defendant 23 being entitled to the remainder 4/5ths of these items and awarded joint possession. He dismissed the suit as regards item 5 because he found that the alienation of that item was binding on the reversioners. There were three appeals which wore heard by the Sub-Court of Guntur A.S. 35 of 1924 was by the plaintiff in O.S. No. 10 in respect of item 5 and 4/5ths of item 1 to 4 and 6. A.S. 36 of 1924 was by defendants 19 and 21 in respect of item 4. A.S. 61 of 1924 was by the plaintiff in O.S. No. 352 of 1922. The Subordinate Judge found that the claimant in O.S. No. 352 of 1922 was not the reversioner and dismissed the last mentioned appeal. He does not file a second appeal and we are not concerned with that case any further.
5. In A.S. No. 36, that is, the appeal of defendants 19 and 21 the plaintiff and defendant 23 were made respondents but no others. In A.S. Nos. 35 and 36 the Subordinate Judge found that the alienations of both items 4 and 5 were binding on the reversioners. This was enough for allowing A.S. 36 and dismissing A.S. 35. But as defendants 19 and 21 also questioned the relationship of the plaintiff and defendant 23 he considered that question also and he found that neither the plaintiff nor defendant 23 has proved the relationship relied on by each of them. Having recorded the latter finding he dismissed the plaintiff's suit even as to items 1, 2, 3 and 6 though no appeals were filed by defendants 1 to 18 in respect of these items. It may be observed here that defendant 23 did not file an appeal questioning the finding of the District Munsif that there was no such person as Rami Reddi, great-grandfather of the plaintiff in O.S. 10 and that the plaintiff and the vendors of defendant 23 were reversioners of equal degree. The result is that so far as defendant 23 is concerned his pedigree as accepted by him finally stands as follows:
Veera Reddi |--------------------------| | |Krishna Reddi Ayyappa Reddi Gangi Reddi
6. The descendants of these three brothers have been already set forth in the previous pedigrees. The second appeals before us are now filed by the plaintiff and defendant 23. Second appeal 141 is by defendant 23 in respect of items 1, 2, 3 and 6 only and in it we are not concerned with items 4 and 5 or as to defendants 19 and 21, and second appeal 241 is by the plaintiff, in respect of the whole suit. Defendants 1 to 18 who are the respondents in the case do not appear. The reason is obvious. They admitted the pedigree relied on by defendant and were content that a decree should be passed against them in favour of plaintiff and defendant 23. Of these defendants 1 to 18 are either tenants or sub-lessees and claim no title in themselves and having admitted the title of defendant 23 who himself now admits the title of the plaintiff to l/5th share they cannot now deny the title of the plaintiff. They therefore must be taken to have admitted the title of both defendant 23 and plaintiff. The ' same remarks apply to the alienee defendant 22. Under these circumstances the question arises whether this is a case in which the Subordinate Judge could modify the District Munsif's decree in respect of items 1 to 3 and 6 also though no appeals were filed in respect of them by defendants 1 to 18 and 22nd nor a memorandum of objections in A.S. 35 in which they were respondents. Order 41, Rule 4 does not obviously apply as the whole decree was not appealed against. The only question is whether Order 41, Rule 33, applies In the present case defendants 1 to 18 and 22 did not set up a rival title in themselves and were content to recognize the plaintiff and defendant 23 as entitled to 1/5th and 4/5ths respectively in items 1 to 3 and 6 by not appealing against that portion of the decree. If hereafter some other claimant is found to be the true reversioner he can recover the property from plaintiff and defendant 23. It is not open to defendants 1 to 18 and 22 who have admitted the title of defendant 23 and through him the relationship of plaintiff to vary their case at a later stage and to claim the benefit of Order 41, Rule 33. Thus, though the result of not varying the District Munsif's decree in respect of items 1 to 3 and 6 would be two decrees based on somewhat inconsistent grounds, there is neither hardship nor any real anomaly in. this. Having regard to the large number of authorities cited before us, we hold that the Subordinate Judge had no jurisdiction to exercise the power conferred by Order 41, Rule 33. Vide Rangum Lal v. Jhandu  34 All. 32, Gangadhar v. Barabashi  Cri.L.J. 390, Abjal Majhi v. Intu Bepari  Cri.L.J. 394, Ramalingam Chettiar v. Subramanya Chettiar A.I.R. 1927 Mad. 620, M. Surayya v. Venkata Kumara, Mahipathi Surya Rao : AIR1925Mad771 , Chockalingam Chetty v. Seethai Achi and Kesho Prasad Singh v. Narayana Dayal : AIR1925Pat285 .
7. We are inclined to agree with the observation of Dawson-Miller. C.J., at pp. 41 and 42 of the last case as to the object of Order 41, Rule 33. It is not necessary to do complete justice to defendants 19 and 21 in A.S. No. 35 and 36 that the decree as to items 1, 3 and 6 should be interfered with. This in our opinion is the true test for the application of Order 41, Rule 33. As pointed out in Gyan Singh v. Ata Hussain : AIR1921All56 the Munsif's decree is a combination of what are really several decrees. The decree relating to items 1 to 3 and 6 has become final.
8. We therefore dissent from the decision in Mukkuvenkatarainayya v. MukkuChinniah  10 M.L.W. 357 and are inclined to doubt the correctness of the decision in Krishnaswami Naick v. Aiyappa Naick  1 M.L.W. 376. The former decision relies on the latter and the decision in Venkatachala Pillai v. Ranga Pillai  28 M.L.J. 331. But the last case scarcely supports it for it relates only to the power to correct minor errors.
9. We do not think that this is a case in which the Subordinate Judge should have reversed the District Munsif's decree as to items 1 to 3 and 6 in respect of which all the parties interested are content with and do not complain against the District Munsif's decree. We allow-both the Second Appeals Nos. 141 and 241. of 1925 and restore the decree of the District Munsif as to items 1, 2, 3 and 6. We direct that all parties will bear their own costs here and in the lower appellate-Court as to these items.
10. As to the rest of the plaintiff's appeal, the lower appellate Court has found, that he is not a reversioner and as the question is one of fact we cannot help the plaintiffs. Such relief as he gets in respect of one-fifth of items 1 to 3 and 6, is given to him on the ground already dealt with in that the Subordinate Judge ought not to have exercised the powers under Order 41, Rule 33. He will pay to defendant 23 costs in Second Appeal No. 241 of 1925 calculated on four-fifths of the valuation.