G. Maheswaran, J.
1. The plaintiff is the appellant. It would be convenient to narrate the facts with reference to the Commissioner's plan filed in this case. PQRS is the house belonging to the plaintiff. ADJK is the house of the defendant. The plaintiff already owns 3 feet west of the western wall PS. He claimed title to the property ABCD by virtue of a purchase under Ex.A-1 in his favour by one Ammani Atmmal. The east-west extent given in Ex.A-1 and the prior document to Ex.A-1, is nine yards. What is now claimed is 31' 7'. The dispute between the parties arose when the foundation was laid in the portion marked as TV. (This is the mark given by the Appellate Judge and is not given by the Commissioner). The Trial Court found that the plaintiff has got title to the space TBCV and marked to the west of it. The defendant claimed 5 feet east of eastern wall AD. The decree of the trial Court is unintelligible. What the trial Court purported to decree was the declaration of title for the portion TBCD which extends upto the foundation laid by the plaintiff and not beyond it. The defendant, who was aggrieved, filed an appeal against the judgment and decree of the trial Court. But the learned District Judge was of the view that the plaintiff has absolute title to the entire space shown as ABCD in the Commissioner's plan, but as the plaintiff has not chosen to file any cross-appeal in respect of this portion, he dismissed the appeal confirming the judgment and decree of. the trial Court. But strangely, the plaintiff has filed this second appeal and it has been admitted by a learned Judge of this Court who formulated the following points for consideration:
1. Whether the lower Appellate Court is right in holding that in spite of title being found in favour of the plaintiff for the entire area comprised in ABCD as shown in the Commissioner's plan, the plaintiff will not be entitled to a declaration of his right for the whole of the area extending upto the eastern wall of the defendant,
2. Whether the lower Appellate Court is right in taking the view that the decree passed by the trial Court cannot be corrected so as to be in conformity with the judgment, on account of the plaintiff not having filed a cross appeal or memorandum of cross objections,
3. Whether the lower Appellate Court has failed to see that inasmuch as the trial Court had decreed the suit in favour of the plaintiff, there was no opportunity for the plaintiff to file a cross appeal or a memorandum of cross objections,
4. Whether the lower Appellate Court has failed to see that the Commissioner was appointed by the trial Court only to note the physical features of the property and not to take measurements and de-limit the boundaries of the properties of the parties?
2. Admittedly the plaintiff has not filed any cross-appeal or memorandum of cross-objections. It should be noted that against the decree granting a declaration in respect of the portion marked BCVT in the Commissioner's plan and negativing the claim in respect of the portion west of TV, the plaintiff ought to have filed a cross-appeal in respect of that portion of the decree which is against him. He cannot be heard to say that there was no opportunity to the plaintiff to file a cross-appeal or memorandum of cross-objections, as the trial Court has decreed the suit in his favour (see substantial question of law No. 3 formulated by this Court) and it is wrong to say that the suit has been decreed in favour of the plaintiff as prayed for. If the plaintiff fails to challenge the finding of fact by the Court below against him, he cannot, in my view, reopen in second appeal the matter and state that the trial Court having come to the conclusion that the plaintiff is entitled to the portion marked ABCD showed in the Commissioner's plan, ought to have decreed the suit in toto even though no cross-appeal or memo of cross-objections has been filed, for the decree of the trial Court was challenged by the defendant in a regular appeal and the plaintiff, if he wanted that portion of the decree which is against him to be modified, should have filed a cross-appeal. Now, the plaintiff's rights to the space west of the foundation has been negatived. As against that decree which negatived the claim of the defendant to a space of 5 feet east of the defendant's house, but granting only 3' 8' east of his house, the defendant alone filed an appeal and not the plaintiff and therefore that decree of the trial Court has become final as the plaintiff has not filed any cross appeal in respect of that portion of the decree negativing his claim for 3' 8' east of the defendant's house. The plaintiff, therefore, cannot challenge the same in second appeal. It should be noted here that the decree is not wholly in favour of the plaintiff.
3. My attention was invited to Panna Lal v. State of Bombay : 1SCR980 . In that case the plaintiff, a building contractor, who filed three suits, prayed for a decree for the amount due to him in respect of the buildings he constructed for three hospitals, two at Gondia and one at Tumsar within the District of Bhandara in Madhya Pradesh, against the State of Madhya Pradesh. During the pendency of appeals in these matters, the State of Madhya Pradesh was substituted by the State of Bombay. The State was impleaded as the first defendant and the Deputy Commissioner of Bhandara with whom the plaintiff entered into contracts in respect of the construction of buildings for the hospital, was impleaded as the second defendant in all the three suits. The suits were decreed against defendant No. 1 who filed an appeal against the decree before the Bombay High Court joining the plaintiff and the other two defendants as respondents in the appeals. There was no cross-objection filed by the plaintiff. But the plaintiff prayed for a decree against the other two defendants under Order 41, Rule 33, Code of Civil Procedure, which was rejected by the High Court stating that it was open to the plaintiff to prefer a cross-objection under Order 41, Rule 33 and as he has not done so, no relief could be granted to him under Order 41, Rule 33. The High Court dismissed the plaintiff's suit against defendant 1 also. The plaintiff went up in appeal to the Supreme Court. The view of the High Court was not approved by their Lordships of the Supreme Court and they remanded the case to the High Court on the ground that the High Court has refused to exercise the power under Order 41, Rule 33 of the Code on an incorrect view of law. But, here, the plaintiff, as a single respondent before the first Appellate Court, has not appealed or filed cross-objections. The ordinary rule is that the Appellate Court should not reverse or vary the decree in favour of the party who has not preferred an appeal or cross-objection against it and this general rule holds good notwithstanding the enactment of Rule 33 of Order 41 of the Code of Civil Procedure. Learned Counsel for the appellant also referred to Venkatasubba Rao v. Kanakaraju : AIR1950Mad801 . That was a case concerning the validity of a sale without notice under Order 21, Rule 22, Civil Procedure Code. I am unable to see the relevancy of that ruling to the facts of the present case.
4. In Poomalai Ammal v. Subbammol : AIR1953Mad566 , Chandra Reddi, J., as he then was, took the view that the provision of Order 41, Rule 33, Civil Procedure Code, is not meant to be exercised in favour of a party who did not choose to file an appeal against the judgment of the trial Court and allowed it to become final. In Venkata Rao v. Satyanarayana Rao : AIR1943Mad698 , the following question was referred to a Full Bench of this Court:
Whether under Order 41, Rule 22, Civil Procedure Code, it is open to a defendant-respondent who has not taken any cross objections to the partial decree passed against him, to urge in opposition to the appeal of the plaintiff a contention which, if accepted by the trial Court, would have necessitated the total dismissal of the suit?
The Full Bench answered the question thus:
Under Order 41, Rule 22, it is open to a defendant-respondent who has not taken any cross objections to the partial decree passed against him to urge in opposition to the appeal of the plaintiff a contention which if accepted by the trial Court, would hive necessitated the total dismissal of the suit.
The following observations of Krishnaswami Ayyangar, J., who was a party to the Full Bench, in regard to this rule may be extracted:
Where however the suit is decreed in part and dismissed as to the rest, we have in reality what may be described as a double or composite decree. There is a decree for the plaintiff in respect of the part decreed, and a decree for the defendant in respect of the part dismissed.. If the plaintiff appeals, he does so for the purpose of displacing the decree in so far as it is in favour of the defendant. If the defendant appeals, he again does so for the purpose of getting rid of the decree in so far as it has gone in plaintiff's favour. In either case the party who figures as the respondent has a decree in his favour, which he is allowed to support on any of the grounds decided against him by the Court which passed the decree. When he does this and no more, he is only supporting and not attacking the decree.
In Hind Estate Ltd. v. Grant James Ltd. : AIR1953Cal20 a Division Bench of the Calcutta High Court observed that Order 41, Rule 33, Civil Procedure Code, applies only to cases where one or some at least of the plaintiffs or defendants have appealed and in such a case the Appellate Court can interfere in favour of any or all of the non-appealing respondents who have not preferred any cross objection, and where there is a single respondent and he has not appealed, nor has he filed any cross-objection, Order 41, Rule 33, does not empower the Appellate Court to interfere in favour of such a respondent. The learned 3udges further observed that one should have thought that this proposition had now become a common place of judicial procedure, but it appears that it still requires to be repeated.
5. My attention was also invited to the observations of Balasubrahmanyan, J., in Manoharan Chetti v. C. Coomaraswamy Naidu : (1979)2MLJ466 , where the learned 3udge says that under our law of Civil Procedure, the respondent to an appeal has no need to file a regular cross appeal or even a cross-objection, if all that he desires is to support the lower Court's decree in his favour on the ground decided against him by that Court. The learned 3udge also says 'For, it is open to him to urge in the other party's very appeal that the finding of the Court below against him on any given aspect ought to have been in his favour. All that the learned 3udge says is that the respondent has no need to file a regular cross appeal or cross objection if all that he desires is to support the lower Court's decree in his favour. It appears to me that when the respondent desires to support that part of the decree which is really in his favour, he need not file any cross-objection. But when he seeks to displace the decree in so far as it is in favour of the other party, he has to file a cross-objection,
6. In this case, the plaintiff has not filed any cross appeal. When the defendant filed the appeal he was given the liberty not only to support the decree but also to state that the finding of the Court below in respect of any issue ought to have been made in his favour and he may also take any cross-objection. But when he does not file any cross-objection, he is not attacking the decree in so far as it is in favour of the defendant. On that view also, the plaintiff cannot contend that the Appellate 3udge should have decreed the suit in toto. For these reasons, I am unable to agree with the contention of the learned Counsel for the appellant that the suit ought to have been decreed in toto by resorting to the provisions of Order 41, Rule 33, Civil Procedure Code, by the first Appellate Court notwithstanding the fact that he has not preferred any cross-objection. The second appeal fails and is dismissed, but without costs.