S.C. Mallik, J.
1. The suit out of which this appeal arises was one for a declaration that defendant 1 had no right of easement to draw water from the plaintiffs' tank Kalipuskarini by excavating any irrigation pit either on the bank or in the bed of that tank for the purpose of irrigating his land and also for a declaration that the solenama filed in a criminal Court between defendant 1 and the plaintiffs' co-sharer, defendant 2 was not binding on the plaintiffs. The first Court decreed the suit in part. It declared that defendant 1 had no right to irrigate his land with the water of Kalipuskarini by digging any pit in the bed or on the banks of the tank. The first Court declared also that defendant 1 had a right to irrigate his land with the water that accumulates upon the southern bank of the tank and which water is drawn through the pahura lying partly in the defendant's land and partly in the southern bank of the tank. The trial Court also held that the solenama was not binding on the plaintiffs. On appeal by defendant 1 the lower appellate Court affirmed the decision of the trial Judge so far as it related to the solenama and the right of defendant 1 to irrigate his land by digging pits in the bed and on the banks of the tank. But the lower appellate Court expunged the order of the trial Judge so far as it related to the right of defendant 1 to irrigate his land with the water that accumulates on the southern bank of the tank and which is drawn through the pahura mentioned above. Defendant 1 has appealed to this Court.
2. The principal point taken before me on behalf of the appellant is that the lower appellate Court was not justified in expunging the order of the trial Court so far as it related to the right of defendant 1 to irrigate his land with the water drawn through the pahura, because the learned vakil contended that amounted to taking away from the appellant something which the appellant had got in the first Court although there was no cross-objection filed in the lower appellate Court. It was urged that this was not proper and in support of this argument the learned vakil placed reliance on the case of Gangadhar Muradi v. Barabashi Palihari  22 C.L.J. 390. In answer to this contention the learned advocate for the respondent has drawn my attention to the provisions of Order 41, Rule 33, Civil P.C. as also to the observation made by their Lordships in Gangadhar Muradi v. Barabashi (1915) 22 C.L.J. 390 where it has been laid down that although the language of Rule 33, Order 41, Civil P.C. is widely expressed, ordinarily the exercise of the power conferred thereby should be limited to cases where, as the result of the appellate Court's interference in favour of the appellants, further interference is required to adjust the rights of the parties in accordance with justice, equity and good conscience. The contention of the learned advocate for the respondent was that having regard to the circumstances of the case the lower appellate Court was justified in expunging the order of the first Court on principles of justice equity and good conscience. This contention seems to me to be reasonable. The first Court's order ion the point was that defenant 1 would have a right to irrigate his land with the water that accumulates on the southern bank of the tank and which is drawn through the pahura lying partly in the defendant's land and partly on the southern bank of the tank. But this point had never been specifically raised in the plaint in the case. It was not one of the points that were given to the commissioner for a local investigation and it was not one of the points on which any distinct issue was joined. This point which involved investigation of facts appears to have been raised only at the time of the trial, and that being so, I am of opinion that on the principles of justice, equity and good conscience the lower appellate Court was justified in expunging the order of the trial Judge on a point that had never been specifically raised for determination.
3. Another point that was taken before me on behalf of the appellant was that the lower appellate Court was wrong in law in reversing the finding of the first Court without consideration of all the facts and circumstances of the case. The only point on which the lower appellate Court seems to have come to a different conclusion is as to whether the solenama in question had been extorted, by undue influence. The finding of the trial Judge on this point was that no undue influence bad been exercised which the lower appellate Court found that it was a result of undue influence. But whether there was undue influence or not was not very material in the determination of the question which the Courts below had before them in connexion with the solenama. The point that was before them for determination in connexion with the solenama was whether the document was binding on the plaintiffs and both the Courts below concurrently found that it was not binding inasmuch as the plaintiffs were not a party to it. Then even if it be held that the existence or otherwise of undue influence was material in the case it cannot be said that the lower appellate Court came to a different conclusion on the point without consideration of all the facts and circumstances of the case. As the perusal of the judgment of the lower appellate Court will show the learned Subordinate Judge before he came to his conclusion that the solenama had been extorted by undue influence had taken into his consideration not only the facts but also the evidence and. the probabilities of the case.
4. I see no sufficient reason for interfering with the decree made by the lower appellate Court. The appeal is, accordingly, dismissed with costs. I do not consider the case a fit one for a Letters Patent Appeal. The application for a certificate for such an appeal is refused.