This is an appeal under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (hereinafter referred to as the Act) against the orders of the learned Jagir Commissioner Jaipur, dated 14.2.1961 determining the compensation of respondent in claim No. F. (6) JG/TNJ/53. The brief facts of the case are that the compensation claimed by the jagirdar was determined on 19.8.60 at Rs. 3,22,198,28 nP. The jagirdar submitted a review application on 16.11.60 in respect of certain items and on that application, after hearing the parties namely the jagirdar and the Govt. Advocate, the learned Jagir Commissioner by his order dated 14.2.61 which is under appeal modified the award in respect of some of the items raised in the review application and rejected the rest. The final award dated 19.8.60 was accordingly revised and the claim for compensation redetermined at Rs. 1613195-60 nP. out of which a sum of Rs. 5,41,748-06 was deducted, leaving a net compensation of Rs. 10,72,447-54 nP. payable to the jagirdar. The present appeal has been filed against the reviewed final award. We have heard the counsel for the parties and have also carefully examined the record. In the appeal memo, dated 6.4.61 filed by the Government Advocate a number of objections have been raised which we shall deal ad seriatim. The first objection pertains to an income of Rs. 6,805.80 nP. allowed in the final award as income from Khasra Rental income. It was alleged that the respondent had changed the revenue records which were self prepared by the jagirdar and had shown Banjar land into Barani and Barani land into Chhani and thus the income was manipulated which was also against the Settlement records of Smt. 2008. On a review application being filed by the respondent this income has been further increased by Rs. 50.61 nP. The learned Government Advocate contested the allowing of this income which he argued was not based on the provisions of sec. 6 of the Act. Under sec. 6 the rental income from the jagir lands in a village shall, where the village is a settled village, be the total of the rents assessed on the jagir lands as entered in the revenue records of the village. He contended that the additional amount of Rs. 6851-41 nP. 6 of the Act. Under sec. 6 the rental income from the jagir lands in a village shall, where the village is a settled village, be the total of the rents assessed on the jagir lands as entered in the revenue records of the village. He contended that the additional amount of Rs. 6851-41 nP. allowed by the Jagir Commissioner was not the rent assessed on the jagir land as entered in the revenue records of the village. The learned counsel for the respondent replied that Thikana Uniara was a jurisdictional Thikana which exercised powers of revenue collection and maintained the record of such collection on the lines of full sovereign States such as Jaipur with a complete paraphernalia of revenue staff beginning from Tehsildars etc., that the rental income allowed by the Jagir Commissioner was the income actually received in the basic year and was even received in the present day after the resumption of the Thikana by the Govt. of Rajasthan, that the learned Government Advocate has not challenged the accrual of the income, but his objection was to the excess income realised by the jagirdar. He argued that the settlement of Uniara Thikana had taken place in St. 1998 which was for a period of 10 years and the settlement had expired in St. 2008 when a revised settlement took place, that the cultivators by mutual agreement accepted the increased rates and rents were paid accordingly to the Jagirdar and which were being realised even after resumption and at present by the Government of Rajasthan. He, therefore, contended that the revised rates wherever such revision had taken place were the rates duly entered in the revenue records and that the objection of the Government Advocate was without force. We have carefully considered the arguments of both the counsel. It is admitted that the jurisdictional Thikana of Uniara by virtue of its special position in the former State of Jaipur as in the case of Sikar and Khetri was enjoying special powers running its own administration more or less on the lines of the State Government. The record of the Thikana is even now being followed and acted upon by the Government of Rajasthan. The learned Government Advocate did not deny the claim of the Thikana that the rents realised in St. year 2009 which was the basic year before the Thikana was resumed in St. The record of the Thikana is even now being followed and acted upon by the Government of Rajasthan. The learned Government Advocate did not deny the claim of the Thikana that the rents realised in St. year 2009 which was the basic year before the Thikana was resumed in St. 2010 were even now being realised by the Rajasthan Government. The learned Government Advocate also did not deny that the income allowed had actually been received in the Thikana as has been duly verified by the different Revenue Officers. The jagirdars counsel had stated that there was a change in the classification of soil and rent on the expiry of the settlement of St. 2008 which was reached by mutual agreement and which had been acted upon from that year onwards and which accounted for the increase in the rent. We, therefore, consider that the learned Jagir Commissioner was fully justified in allowing this income which had been duly verified by the Tehsildars concerned and we over-rule the objections of the learned Government Advocate to this item. The second objection was in respect of the income from forest. It was argued by the Government Advocate that the forest department had reported that there was unsystematic cutting of forest and that after resumption the State was getting only Rs. 4,000/- from the forest. It was also alleged that the learned lower court did not take into consideration the provisions of the Rajasthan Removal of Trees Ordinance and the income for sale of green trees had been included under this head. The learned counsel for the jagirdar replied that the reason advanced by the learned Govt. Advocate was not sustainable. The question whether there was systematic cutting of forest and what the income from forest was after resumption could not be a consideration in determining the income from forest and the argument about green trees was for the first time raised but no definite item was pointed out. The learned Government Advocate conceded that this objection was not strong enough to be pressed. We consider that the objections have no force. The actual accrual of income was not contested. The objections about the alleged unsystematic cutting of forest are entirely alien to the consideration of the admissibility of the income claimed by the jagirdar. The learned Government Advocate conceded that this objection was not strong enough to be pressed. We consider that the objections have no force. The actual accrual of income was not contested. The objections about the alleged unsystematic cutting of forest are entirely alien to the consideration of the admissibility of the income claimed by the jagirdar. The arguments regarding the applicability of the provisions of the Rajasthan Removal of Trees Ordinance and the validity of the income from cutting of green trees alleged to have been included were not pressed and no details were cited. We, therefore, do not see any reasons to accept the contentions of the Govt. Advocate in regard to this income as they have neither been substantiated nor are relevant. The next two items objected were (1) Grazing Rs. 6958.33 nP. (2) Income from non-agricultural uses of land Rs. 27,097.98 nP. Since the arguments in respect of these two incomes are the same, we shall deal with them together. In respect of the income under grazing the learned Government Advocate alleged that this income was allowed without ascertaining whether it accrued from unoccupied land or not and that the learned Jagir Commissioner had erred in allowing it and the respondent had failed to discharge the burden of proof in this regard which lay heavily on him. The Government Advocate questioned the remark of the Jagir Commissioner that the Governments Legal Adviser had not shown any instance of the grazing income claimed from occupied land and argued that it was a duty cast upon the Jagir Commissioner himself to have recorded a finding after the enquiry that the income claimed under grazing had accrued from unoccupied land. As regards the income from non-agricultural uses of land it was contended that the original demand under this head was further increased by a supplementary demand after more than 2-1/2 years and the learned Jagir Commissioner erred in law in allowing this income in the absence of sufficient legal and corroborative evidence. The learned Government Advocate elaborated his objections by stating that there was no finding by the learned Jagir Commissioner about the books of accounts of the jagirdar under sec. 34 of the Evidence Act and that even if there was such a finding no corroboration by statements of witnesses as envisaged under sec. 34 was made. He pointedly emphasized that under sec. 34 of the Evidence Act and that even if there was such a finding no corroboration by statements of witnesses as envisaged under sec. 34 was made. He pointedly emphasized that under sec. 34 such statement of account shall not alone be sufficient evidence to charge any person with liability. Although he did not contest that the account books of the jagirdar were regularly kept in the ordinary course of business, the fact in itself was not sufficient to saddle the State with liability to pay compensation without independent corroborative evidence. There was neither any statement of the scribe of the account books nor of any of the persons who had made payments to the Thikana on various accounts under which the compensation was claimed by Thikana. Under sec. 102 of the Evidence Act the burden of proof lay on that person who would fail if no evidence was given on either side and accordingly it was the duty of the respondent to have established the claim in accordance with the law. He also referred to the commentary in Woodroffe and Ameer Alis Law of Evidence in India 10th Edition and quoted the following extract from page 553 of Vol 3 of that edition— "Whether the transactions sued upon are numerous and extend over some length of time, it is hardly reasonable to expect independent evidence to be given to prove each and every particular transaction. In such case the genuineness of the account books, if they are regularly kept in the course of business will be the determining, factor. But mere proof of the correctness of the entries in the account books will not be enough. There must be some evidence to corroborate those entries. Such corroboration will be best afforded by the evidence of the persons in whose presence transactions took place. He cannot possibly have independent recollection of the various transactions, and he may, as provided in sec. 169, Evidence Act, refresh his memory by referring to the account books. But it is not necessary for him to prove that "such and such articles valued at such and such (amount were supplied on such and such dates. He cannot possibly have independent recollection of the various transactions, and he may, as provided in sec. 169, Evidence Act, refresh his memory by referring to the account books. But it is not necessary for him to prove that "such and such articles valued at such and such (amount were supplied on such and such dates. If he proves the entries written by him and states that the transactions referred to in those entries actually took place in his presence or to his knowledge, the effect will substantially be the same." The Government Advocate cited the ruling of this Board also in RRD 1959 page 179 in support of his contentions about corroboration of books of account. The Government Advocate also contended that the provisions of sub-sec. (3) of sec. 31 as well as sec. 22A of the Act had not been complied with which provide for documents relied upon by the jagirdar being submitted along with the statement of claim and the delivery of records after resumption. All these objections were also raised before the Jagir Commissioner. The learned counsel for the jagirdar replied that the account books had been maintained by the Thikana regularly in the ordinary course of business which had not been contested by the learned Government Advocate. As regards corroborative evidence it was argued that the account books of the jagirdar were maintained on the lines of the accounts of the former State of Jaipur and, therefore, there was no reason to question the entries therein and no further corroborative evidence was called for. It was argued that the provisions of sec. 34 of the Evidence Act were not directly relevant as they pertain to account books of non-Government business as is clear from the rulings given under that Section in the edition cited by the Government Advocate. In the present case the Thikana accounts had never been questioned and were now being acted upon by the Rajasthan Government and therefore no corroborative evidence was necessary. It would be impossible to produce all the persons who had made payments to the Thikana but if the Jagir Commissioner had so directed, any number could have been produced. He, however, was fully satisfied as the original court about the accrual of the incomes claimed after thorough investigation and there was no justification for agitating the matter again. It would be impossible to produce all the persons who had made payments to the Thikana but if the Jagir Commissioner had so directed, any number could have been produced. He, however, was fully satisfied as the original court about the accrual of the incomes claimed after thorough investigation and there was no justification for agitating the matter again. As regards the grazing income it was argued that all the income claimed had been duly entered in the account books. Not a single item of such income having accrued from occupied land was shown from the records by the Government Legal Adviser before the Jagir Commissioner. Therefore, the objection was a general one not based on any fact and the provisions of secs. 31(3) and 22-A did not afford any valid ground for contesting the documents produced by the Jagirdar. The Jagirdars counsel added that in regard to grazing dues all receipts and Tehsil and Central Khardas had been produced. Nobody had come forward to deny the receipts. The rates for grazing had been fixed in the Settlement Record and nothing in excess had been charged. The total area of this Thikana according to the Settlement Record Was 36,8793 bighas and 93,865 bighas were given as sub-grants. Out of the balance of about 2,75,000 bighas, the cultivable area came to 98,488 bighas, part and occupied Banjar 8,470 bighas, waste Banjar and Charagan 89,965 bighas and hills 42,135 bighas. Therefore, he argued that keeping in view the vast unoccupied area available, the amount allowed cannot be considered excessive. As regards corroboration he contended that corroboration was possible not only by statements of witnesses but also by circumstances, i.e. the area available and the subsequent recoveries made by the State after resumption. The Government Advocate replied that the income derived subsequent to resumption was no criterion as has been held by the Board in several cases. The entire question thus centers round the question whether the sole testimony of the account books is sufficient evidence to charge the State with liability to pay compensation without further independent corroboration. As we have already observed in respect of other items, the account books kept by Thikana Uniara are more or less on the lines of the account books kept by the former State of Jaipur. As we have already observed in respect of other items, the account books kept by Thikana Uniara are more or less on the lines of the account books kept by the former State of Jaipur. The Government Advocate could not show anything wrong with the account books to doubt their veracity or to hold that they were not kept regularly in the ordinary course of business even though they were submitted later after resumption. He did not deny that the amounts claimed had been entered in the account books. Therefore, we feel that the standard adopted for accepting the evidence of account books of non-Government agency should not in fairness be applied to the account books of this Thikana. The mere fact that the statements of a few persons were not considered necessary to be taken by the Jagir Commissioner in admitting the incomes claimed under these heads should not deprive the Jagirdar of the incomes claimed which are duly entered in the account books. The original court after full investigation, as is clear from the judgment, had satisfied itself that the account books constituted sufficient evidence of the income having, accrued and consequently allowed such income. The legal adviser who represented the Government before the Jagir Commissioner did not produce any evidence which contradicted the entries in the account books. It would, therefore, be a sheer waste of time and hardship to the party (respondent) if, merely because of not recording statements of witnesses, either the entire income is disallowed or the case is remanded for fresh enquiry. Doubtless, it would have been easily possible for the Jagirdar of Thikana of this size to produce witnesses to corroborate some, of the entries. On the other hand, it should have been also possible for the Government to produce witnesses who might have deposed against the entries in the account books. We consider that the ordinary standard should not be applied in dealing with the account books of such Thikanas which were so to speak States with well settled machinery for administration. The learned Government Advocate even argued that he would contest the accounts of the present Government of Rajasthan. Such an argument of course cannot be admitted. We consider that the ordinary standard should not be applied in dealing with the account books of such Thikanas which were so to speak States with well settled machinery for administration. The learned Government Advocate even argued that he would contest the accounts of the present Government of Rajasthan. Such an argument of course cannot be admitted. In the same manner we consider that keeping in view the peculiar circumstances and the special characteristics of administration of such jurisdictional Thikanas, the books of accounts kept by them have to be relied upon unless the contrary can be shown. During the entire proceedings before the Jagir Commissioner as also before us in appeal, beyond objections of a general character, the counsel on behalf of the Government has not been able to specify any particular objection in respect of any of the entries of the account books. As such, we do not accept as valid the objections of the Government counsel in allowing these incomes to the Jagirdar. In regard to the particular objection that the income under grazing was allowed without a definite finding whether such income was derived from unoccupied land or not, as the learned Jagir Commissioner stated, the Govt. counsel had not produced any evidence in support of his contention. He could have asked for time and produced witnesses in support of his contention. However we have satisfied ourselves from the record as to whether the income from grazing has been shown have to been recovered from occupied or unoccupied land. A few test entries were checked and the relevant entries are given in the extracts appended to this judgment. From these extracts it will be seen that the grazing income has been shown in the books to have been realised from "jungle" or hills "dungar". In the face of such clear entry in the account books and in the absence of any specific evidence to the contrary produced by the Government Advocate we do not see any reason to hold that grazing income from occupied area has been allowed. We can only conclude that objection has been made on a general basis without any concrete instance being on record. We can only conclude that objection has been made on a general basis without any concrete instance being on record. In our view, therefore, all the items which have been objected to by the Government Advocate had been properly allowed by the Jagir Commissioner after due enquiry and examination and we do not see any reason to set aside his findings in respect of these items under appeal. After we heard the objections contained in the memorandum of appeal filed by the Government Advocate on 6.4.61 we were requested to give consideration to another application submitted by the Government Advocate on 16.8.1961. This was an application under O. 41, Rule 2 of the Civil Procedure Code containing an "additional plea" regarding a sum of Rs.5,49,234.77 nP. about which a certificate in Form No. 10 had been issued by the Collector, Tonk for effecting deductions from compensation amount payable to the jagirdar. The Government Advocate conceded that this plea was not taken in the original memorandum of appeal and that the plea was purely legal and went to the root of the case and did not require any additional evidence of proof and had been discussed by the learned lower court. It was, therefore, prayed that this additional plea may be allowed to be taken up and argued. This application was contested by the counsel for the Jagirdar. It was argued that it dealt with a matter which was not covered by any of the matters contained in the original memo of appeal dated 6.4.61, and that it introduced a fresh objection. Since such a fresh objection had been filed after the period of limitation it could not be entertained and should be rejected. This application was consequently argued at length by both the counsel. Since such a fresh objection had been filed after the period of limitation it could not be entertained and should be rejected. This application was consequently argued at length by both the counsel. The learned Government counsel referred to O. 41, R. 2, of the Civil Procedure Code which provided that "the appellant shall not except by leave of the court, urge or be heard in support of any ground of objection not set-forth in the memo of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule; Provided that the court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground". The learned Government counsel, therefore, requested that the court may grant leave for raising the objection contained in his application dated 16.8.61, of which the opposite party had sufficient notice as it had been submitted on 16.8.61. Alternatively he also referred to R. 33, of O. 41, which provides— "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 party may not have filed any appeal or objections; Provided that the Appellate Court shall not make any order under sec. 35.A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." The Government counsel submitted that both by virtue of R. 2 and R. 33 of O. 41, the Court was fully competent to accept his application of 16.8.61. The jagirdars counsel objected that the application was not covered by the provisions of the law quoted and relied upon by the Government Advocate. He argued that the matter raised in the application was entirely different from the matters raised in the original memorandum of appeal of 6.4.61. The jagirdars counsel objected that the application was not covered by the provisions of the law quoted and relied upon by the Government Advocate. He argued that the matter raised in the application was entirely different from the matters raised in the original memorandum of appeal of 6.4.61. The Government counsel had only challenged specific items in the appeal and not the whole award. The appeal is in respect of each item and the question of deduction would have been a separate item if it is included in the appeal. Therefore, it was a fresh appeal which is hit by the bar of limitation. The learned Government Advocate has not given any reason why this matter was omitteed in the original memorandum nor did he file any application under sec. 5 of the Limitation Act to save it from the bar of limitation. We have carefully considered the provisions of O. 41, R. 2 and 33. The first appeal memo, dated 6.4.61 dealt with matters under which compensation was determined as payable by the jagirdar under various items. The second application which has been filed, after the period of limitation expired on 16.8.61 deals with the question of the deduction of a sum of Rs. 549,234.77 nP. on the basis of a certificate in form No, 10 issued by the Collector Tonk. As has been observed in Chitleys Civil Procedure Code 1957, Sixth Edition, Commentary under Rule 2 of Order 41, the penalty for not raising an objection in the memorandum of appeal is that the appellant will not be entitled as of right to urge such an objection at the hearing of the appeal though he can do so with the permission of the Court. The Court has under this rule a discretion to permit a new point, not raised in the memorandum of appeal, to be raised and argued at the hearing. The leave may be express or implied but unless such permission is taken, the Court will not allow such a point to be argued at the hearing. The mere fact that the respondent has had notice of the fact that the appellant intends to raise such point at the hearing cannot dispense with the Courts permission under this rule. The leave may be express or implied but unless such permission is taken, the Court will not allow such a point to be argued at the hearing. The mere fact that the respondent has had notice of the fact that the appellant intends to raise such point at the hearing cannot dispense with the Courts permission under this rule. The Court will refuse to permit a new point to be argued where, at the time of taking it, the period of limitation for the appeal has expired and where the allowing of such a point to be argued would practically amount to allowing appellant to set up a new appeal. But where the point sought to be raised is involved in the points already raised in the Memorandum of appeal or is a question of law depending on new facts except those already on the record or is a point to which the other side cannot legitimately raise an objection on the ground of surprise the Court may grant the appellant leave to raise it. The Court should, however grant, the permission only on such terms as would indemnify the opposite party for the loss caused to him by reason of the failure of the appellant to raise the point in time. Having thus stated the position or law covered by O. 41, R. 2 the question which we have to decide is whether the application dated 16.8.61 would amount to a new appeal or whether the point raised in the application is involved in the points already raised in the Memorandum of appeal or is a question of law depending on no new facts except those already on the record. As we have observed the original Memorandum of appeal dated 6.4.61 dealt with the objections to the items under which compensation was allowed in accordance with the provisions of the Second Schedule to the Act. In this Memorandum no point or matter was raised pertaining to the deduction of any amount from the compensation amount payable to the jagirdar. Therefore the application dated 16.8.61 can by no stretch of imagination be held to be part of or involved in the points already raised in the Memorandum of appeal. Thus the only question for consideration is whether this application raises a question of law depending on no new facts except those already on the record. Therefore the application dated 16.8.61 can by no stretch of imagination be held to be part of or involved in the points already raised in the Memorandum of appeal. Thus the only question for consideration is whether this application raises a question of law depending on no new facts except those already on the record. We consider that this is an entirely new matter and even though there may be certain legal aspects pertaining to it, as indeed there must be in regard to every matter this application purely and simply deals with the fact pertaining to the non-deduction by the Jagir Commissioner of the amount mentioned in Form No. 10. This matter was already covered by the Jagir Commissioners order under appeal and no reasons have been given in the application as to why this point was not included by the Government Advocate in the original Memorandum of appeal. The question of law will only arise from this fact of non-deduction of the dues claimed by Government. We, therefore, hold that the application of the Government Advocate dated 16.8.61 is not covered by the provisions of R. 2, O. 41. The next point then arises whether as argued by him the application could be entertained by virtue of R. 33 of O. 41. Again, as observed in Chitleys Civil Procedure Code, the object of R. 33 is to enable the Appellate Court to do complete justice between the parties and to avoid contradictory and inconsistent decisions on the. same questions in the same suit. For this purpose a discretionary power is conferred on the Appellate Court to pass such decree or order as ought to have been passed or as the nature of the case may require, notwithstanding that the appeal is as to part only of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross objection. Here we would observe that the circumstances of the case are entirely different. An appeal has been filed by the Government attacking certain items of income allowed by the Jagir Commissioner and the Government Advocate has argued that the Court should exercise its discretionary power under R. 33 to order deduction of a certain amount from the compensation which had not been included in the Memorandum of appeal filed. An appeal has been filed by the Government attacking certain items of income allowed by the Jagir Commissioner and the Government Advocate has argued that the Court should exercise its discretionary power under R. 33 to order deduction of a certain amount from the compensation which had not been included in the Memorandum of appeal filed. We do not find that the ends of justice would be defeated or any contradictory and inconsistent decision would result on the same question in the same case, if this discretionary power is not exercised. The Government has ample means at its disposal to recover any amount due from the respondent through other legal methods. We, therefore, also do not agree with the learned Government Counsel that he should be allowed to argue the matter contained in his application dated 16.8.61, whether under R. 20 or under R. 33 of O. 41 Civil Procedure Code. As so rightly pointed out by the learned counsel for the jagirdar it would have been a different, matter had the Government counsel submitted an application under sec. 5 of the Limitation Act together with the necessary affidavit etc. requesting for condonation of delay in filing this second appeal. Since the learned Government counsel has not taken that stand and has only argued on the admissibility of the application under O. 41, R. 2 and 33 and has not requested for any condonation of delay, we hold that the application of 16.8.61 is not covered by the provisions of O. 41, R. 2. We, therefore, cannot grant leave to the Government Advocate to argue the plea contained in that application about the non-deduction of the due claimed by Government. We also do not consider that this is a fit case for exercising our powers under R. 33 or the reasons given. Both the counsel cited a few rulings in support of their respective stand. The learned Government Advocate referred to the following rulings— A.I.R. 1936 Bombay page 412 A.I.R. 1942 Allababad page 365 A.I.R. 1926 Calcutta page 1042 The learned counsel for the jagirdar also relied on the following rulings in support of his stand— 1960 Indian Law Report Vol. X Rajasthan page 593 1962 R. L. W. page 286 1958 Madras page 566 1942 Patan page 204 1954 Himachal Pradesh page 52 We shall briefly refer to these rulings. X Rajasthan page 593 1962 R. L. W. page 286 1958 Madras page 566 1942 Patan page 204 1954 Himachal Pradesh page 52 We shall briefly refer to these rulings. In A.I.R. 1936 Bombay page 412 which was an appeal from the decision of First Class Sub-Judge, Karwar, it was held that "where a particular point is not taken in the trial court, nor is it even mentioned in the memorandum of appeal and it appears on the face of the record that there has been a breach of statutory requirement, such point must be allowed to be taken and argued by the court of appeal. "In that case the matter for consideration was the institution of a suit under sec. 92, Sub-sec. (2) of the section of the Civil Procedure Code which "provides that save as provided by the Religious Endowments Act, 1863, (which does not affect the present case), no suit claiming any of the reliefs specified in sub-sec. (1) shall be instituted in respect of any such trust as is therein referred to except, in conformity with the provisions of that sub-section. The institution of that suit therefore required the previous sanction of the Collector under sec. 93 and that sanction had not been obtained. This point was not taken in the trial court. It was not even mentioned in the memorandum of appeal. But as it appeared on the face of the record that there had been a breach of statutory requirement, the Court felt that it could not refuse to allow the point to be taken and argued. That ruling does not apply to the present case at all since there is no such breach of statutory requirement on the face of the record. I | In A. I. R. 1942 Allahabad page 365 "a plea which was not raised in the written statement, and on which no issue was framed, and which was not clearly raised even in the memorandum of appeal was allowed to be argued for the first time in appeal as it involved a question of law and as no objection was raised by respondents counsel." In view of the definite objection of the respondents counsel to the entertainment of application dated 16.8.61 clearly this ruling also relied upon by the Government counsel does not apply. In A. I. R. 1926 Calcutta page 1042 in which their Lordships discussed the scope of O. 41. R. 33 of the Civil Procedure Code it was held "The appellate court may pass any order it thinks fit in appeal though the appeal does not extend to the whole of the decree appealed against and though the power is exercised in favour of any respondent or any party who has not objected before it to the decree. The use of the expression respondents or parties shows that the appellate court may pass an order in favour of the respondents who have not appealed and it may similarly decide any question in favour of a party, by which is meant a party to the suit and who is not a respondent in the appeal. The illustration to the rule does not limit the rule and is not intended to illustrate its full scope. But the power which the Court is vested with under this rule must be exercised in the interest of and for the furtherance of justice." In the lengthy judgment in that case the question was fully discussed by their Lordships and their Lordships continued : "The section should be given a broad and generous interpretation in view of the fact that it is intended to secure consistency in the administration of justice and avoid anomalies which may result if the Court is held to be helpless in giving effect to its own decision to the full extent. Where the rights of parties depend on the same obligation e.g. contract, and where the Court finds that the contract is genuine or not genuine, it may give effect to its finding by holding all the parties liable under the contract or by exonerating all the parties who are sought to be made liable, without consideration as to whether such parties are before it or not. But the power which the Court is vested with under this section must be exercised in the interest of and for the furtherance of justice as has been observed in the case of Gangadhar Muradi Vs. But the power which the Court is vested with under this section must be exercised in the interest of and for the furtherance of justice as has been observed in the case of Gangadhar Muradi Vs. Barabaski Padikari :— As the result of the appellate Courts interference in favour of the appellants further interference is required in order to adjust the rights of the parties in accordance with justice, equity and good conscience." "In the view that I have taken I am sceptic about, the propriety of giving the section such a narrow construction as not to make it applicable to cases where there may be disregard of the provisions of other statutes such as the Court Fees Act.........as the section is expressly made applicable to appeals as to part of the decree." "As to substantive law of limitation other and different considerations will arise." The observations were made in an appeal which arose in connection with execution proceedings and the main question considered in the Court below was whether the execution was time barred. As will be seen from the observations made above, the power under this section is to be exercised purely in the interest and for the furtherance of justice. The circumstances under which the Government Advocate has requested the Court to exercise this power are not covered by the rulings quoted. As against the above ruling relied upon by the Government Advocate, the rulings cited by learned counsel for the respondent fully uphold the stand taken by us. In 1960 Indian Law Report Vol. X, page 593 Rajasthan dealing with the scope of R. 33, O. 41 Justice Modi observed— "Before concluding this judgment, I may briefly refer to the controversy which arose in this Court at the last stage as to the applicability of R.33 of O.XLI in this case. I may mention at once that this ground was not raised by learned counsel in his application for setting aside the statement of even in his opening address. In these circumstances, the point may be disposed of very briefly. O.XLI, R. 33 C.P.C. is a very special provision and can be exercised under exceptional circumstances only and not as a matter of course. In these circumstances, the point may be disposed of very briefly. O.XLI, R. 33 C.P.C. is a very special provision and can be exercised under exceptional circumstances only and not as a matter of course. Again, broadly speaking, it should not be exercised in cases where a party has been guilty of negligence and an important and valuable right thereby has accrued in favour of the other party. I may also add that no special circumstances have been shown to me why the very extra-ordinary power embodied in this rule should be exercised in favour of the appellants." This ruling entirely fits in with the present case where the learned Government Advocate has raised this plea of R. 33 only during arguments and where no special circumstances have been mentioned for the exercise of the power under R. 33. In RLW 1962 page 286 also Justice Bhargava has fully dealt with the provisions of O. 41, O. 33. Relevant tracts are quoted below :— "The language of O. 41, R. 33 is in very wide terms, but it should not be so read as to abrogate the other provisions with regard to the filing of appeals, cross objections etc. The general principle is that a decree is binding on the parties to it unless it is set aside in appropriate proceedings. If a party wishes to have a decree against him modified and reversed, he must comply with certain requirements as to filing of appeals, objections and so forth. Illustration under the rule gives some class of cases in which R. 33 will apply, for example it applies to cases where as a result of interference in with the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience, the powers may be exercised. This rule enables the appellate court where its decision interferes with or modifies or extends the decision of the lower court, to give effect to that decision if necessary in the interest of justice by interfering with rights of those parties which are not the subject of appeal before that court." This ruling further clarifies the manner in which the power under R. 33 should be exercised and none of the circumstances mentioned in that ruling are available as the circumstances are entirely different. In A.I.R. Madras 1953 page 566, if was held that the provision of 0.41, R.33 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 A.I.R. Patna 1942 page 204 it was held that "O. 41, R. 4 and 33 are in wide terms and, do give the appellate court ample powers to pass such orders as it may deem just having regard to all the circumstances of the case but they must not be so applied as to disregard other provisions of the law, such as those contained in the Limitation Act and the Court-fees Act. Therefore a right of appeal after it has lapsed should not be handed out gratuitously to persons who have themselves neglected to avail of it, especially when they have not asked for it, and the interests of the case do not require it for the purpose of doing justice to the person who has appealed." In A. I. R. 1954 Himachal Pradesh page 52 the learned Judge did not allow a point to be urged which was not set forth in the Memorandum of appeal. It was clearly prejudicial to the respondent and the limitation for appeal had expired at the time of raising it. The learned Judge held "to allow the point in question to be raised in the present appeal even though not set forth in the memorandum of appeal would in the circumstances clearly prejudice the plaintiff respondent. Further more, at the time when this new point was urged by the learned counsel for the appellant in the course of his argument the period of limitations for the present appeal had long since expired." "Tn these circumstances, it would be most unfair for this court to exercise the discretion under O.41, R. 2 C.P.C. in favour of allowing the said ground to be urged on behalf of the appellant." Accordingly the learned judge did not grant leave to raise the point. To sum up the trend of the various rulings discussed above is clearly not in favour of granting leave to raise the additional plea mentioned in the application of 16.8.61 which should have rightly been included in the original memorandum of appeal. To sum up the trend of the various rulings discussed above is clearly not in favour of granting leave to raise the additional plea mentioned in the application of 16.8.61 which should have rightly been included in the original memorandum of appeal. By not doing so the opposite party namely the respondent has secured a valuable right through the negligence of the appellant and no special circumstances have been made out by him for granting such leave. We, therefore, do not consider that in the circumstances of this case the Government Counsel should be granted leave to raise the additional plea under O. 41 R. 2. The interests of the case do not require it for the purpose of doing justice to the appellant. Similarly on a careful examination of the relevant law and in the light of the rulings discussed above we feel that this is not a fit case where the power of the court under R.33, 0.41 should be exercised. In view of our decision on the application of 16th August 1961, we do not consider it necessary to go into the merits of the plea contained in that application, i.e. the validity or otherwise of the action of the Jagir Commissioner in refusing to deduce from the compensation the amount of Rs. 549,234,77 nP. given in the certificate in form No. 10 issued by the Collector, Tonk. In the result we hold that the contentions of the Government Counsel in regard to the objections filed by him in appeal against the order of Jagir Commissioner have no force. We accordingly reject the Government appeals as well as the application filed by the Government Advocate under O. 41, R. 2 C.P.C. dated 16.8.61.