1. This appeal arises out of a suit for rent. The plaintiff is the appellant before this Court. The plaintiff's suit was brought against two defendants, claiming a certain sum jointly, from both as rent of the holding described in the plaint. The defence was that the jama covered more land than was included in the plaint and that there was a division of rent with the consent of the plaintiff between the two tenants, whereby the defendant No. 1 paid separately the rent for the land in his possession and defendant No. 2 in the same way paid rent separately for the land in his possession.
2. The first Court came to the conclusion that the division of the holding between the two defendants with the consent of the landlord had not been proved. The Court was also of opinion that the holding covered more lands than were included in the plaint. In the result the first Court passed a decree in favour of the plaintiff against defendants Nos. 1 and 2 for a proportionate amount of the rent payable in respect of the land included in the plaint. There was no appeal by the defendants, but there was an appeal by the plaintiff who asked for a decree for the whole amount of rent, his allegation being that all the lands of the holding were included in the plaint. The court below, however, came to the conclusion in concurrence with the first Court that the lands described in the plaint only formed a part of the entire holding. That Court also held that the story of the division of the tenancy between defendants Nos. 1 and 2 had not been established. Upon this view of the ease the lower Appellate court held that having regard to the manner in which the suit had been framed, the plaintiff was entitled to no relief and accordingly dismissed the entire suit of the plaintiff.
3. In appeal to this Court it is contended by the learned Vakil for the appellant that in the absence of a cross appeal or cross-objection the Court below had no jurisdiction to dismiss the whole of the plaintiff's suit, and that the utmost that the Appellate Court was competent to do was to dismiss the appeal and leave the decree of the first Court as it was. The learned Vakil for the respondents, however, contends that under Order XLI, Rule 33, the Appellate Court under the new Code has very wide powers and is not limited to the passing of a decree within the scope of the appeal or appeals preferred before it. There can be no doubt that the wording of Rule 33 is very general and in this respect gives very wide powers to the Court of Appeal. But the learned Vakil for the appellant, however, urges in reply that Rule 33 is controlled by Rule 22 and that the wide powers given by Rule 33 can only be exercised in case the whole matter is brought into controversy before the Appellate Court by a cross appeal or a cross-objection filed under Rule 22. I am not satisfied that this is a correct view of the scope of Rule 33, and in this view of the case I am supported by a decision of this Court reported as Debendra Narayan Singh v. Narendra Narayan Singh 54 Ind. Cas. 636 : 30 C.L.J. 417 : 24 C.W.N. 110. An attempt has been made by the learned Vakil for the appellant to distinguish' that case from the present case. I am not satisfied that there is any such distinction.
4. Certain other points were urged before me, but in second appeal those questions do not arise and I do not deal with them. I, therefore, hold that the decision of the Court below is right and not without jurisdiction.
5. I also hold that the respondents' contention that in this case no appeal lies, is correct and must prevail. In support of the contention that an appeal lies, a case reported as Aubhoy Churn Maji v. Shoshi Bhusan Bose 16 C. 155 : 8 Ind. Dec. (N.S.) 104 was cited by the learned Vakil for the appellant. It seems to me that that case is distinguishable from the present case. In that case there was a suit for rent and the defence was that the tenancy had been split up and that only a portion of the whole rent of the entire holding was payable by the defendant. The first Court gave effect to the defence and held that the plaintiff was only entitled to recover a part of the rent payable for the whole holding from the defendant and not the whole rent of the holding. On appeal the Appellate Court held that no division of the tenancy had been proved and passed a decree for the entire rent. That was a decision by which the question of the annual rent payable by the defendant to the plaintiff landlord was decided. But in this case there has been no such decision. All that the Appellate Court has decided is that the suit as framed does not lie and that the plaintiff in the suit is not entitled to recover anything from the defendant. It has not decided what the annual rent payable by the defendant is, and it is still open to the plaintiff in a properly framed suit to claim the whole rent in respect of the entire land of the tenancy from these very defend dants. On these grounds I dismiss the appeal with costs.
6 Having found that no appeal lies in this case, that the decree passed by the court below was correct and not without jurisdiction, the Rule is discharged but without costs.