JUDGMENT A.K. Sharma, M. - Kali Charan, defendant appellant has come up in appeal against the judgment and decree dated February 21, 1971 passed by the learned Additional Commissioner whereby he dismissed the appeal with modification to the decree to the trial court dated September 24, 1968. The learned trial court had decreed the plaintiff's suit for declaration of Sirdari rights while the learned first appellants court has amending the decree additionally ordered that Kali Charan defendant appellant would be ejected from the land in suit and pay Rs. 50/- as damages. 2. The respondent is not present despite due notice. The appeal has therefore been heard ex parte. 3. Briefly the facts of the case are that Ayub Khan, plaintiff-respondent filed a suit under section 209 for ejectment of Kali Charan defendant-appellant and for payment of Rs. 50/- as damages, alleging that the defendant had taken unlawful possession over the land in suit in 1373 F. and had caused damages. Kali Charan contested on ground that he had been in possession for the last 22 years and he had first come Adhivasi and then Sirdar. 4. Learned counsel for the appellant has argued that the order of the learned trial court does not contain any relief of ejectment or damages and no appeal had been filed against it by the plaintiff respondent, and that when the appeal was filed by the defendant appellant no cross-objection even was filed by the plaintiff. According to him the trial court's decree has become final. His contention is that the learned Additional Commissioner went beyond his jurisdiction in granting the relief for which no appeal had been filed before him. 5. I have gone through the record of the case. The learned Addl. Commissioner after considering the merits of the appellant's case has observed that 'through some slip of pen the learned Judicial Officer decreed the suit for declaration of the Sirdari rights of the plaintiff over the land in suit which was not at all claimed' and that it appears that inadvertently the lower court did not decree the suit for ejectment for the defendant appellant Kali Charan and for damages of Rs. 50/- although in the body of the order the lower court held appellant Kali Charan to be a trespasser in the land in suit and liable to ejectment and pay Rs. 50/- as damages'. 50/- although in the body of the order the lower court held appellant Kali Charan to be a trespasser in the land in suit and liable to ejectment and pay Rs. 50/- as damages'. He thereafter modified the judgment and decree of the lower court accordingly. The essential contention of the learned counsel is that the order is without jurisdiction as no appeal or cross-objection had been filed. I find that under order XLI, Rule 33, Civil Procedure Code the first appellate court had the power to pass or make a decree which ought to have been passed by the sub-ordinate court and make such further or other decree or order as the justice of the case may require even though no appeal had been filed against the decree of the lower court. This power can be exercised in favour of all or any of the respondents or parties, although they may not have filed any appeal or objection. In the present case the error of the trial court is obvious on the face of it. The suit was not for declaration but for ejectment and damages. The order was for declaration. This was no part of the plaint or the suit as it proceeded. The issues framed give the finding of ejectment and of damages. The suit being under section 209, Z.A. and L.R. Act the order and decree ought to have been under the law for ejectment and damages, and not at all for declaration. The first Appellate Court has therefore, correctly exercised its jurisdiction. I am supported in this by the ruling in Giani Ram and others v. Ramji Lal and others A.I.R. 1969 S.C. 1144 in which in respect of the scope and meaning of order XLI, Rule 33 Civil Procedure Code. It was laid down as follows: "The expression which ought to have been passed means which ought in law to have been passed. If the appellate court is of the view that any decree which ought in law to have been passed but was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the notice of the case may require. 6. I therefore do not find any force in this appeal and dismiss it.