M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS is the 3rd defendant's Second appeal against the concurrent findings of fact by the Courts below though there is a degree of divergence between the judgments and decrees of the trial court and that of the first appellate Court. The parties to this appeal will be referred to by the position and ranks assigned to them in the trial Court. During the pendency of the litigation, the plaintiff respondent 1 died and she is represented by her legal representatives who have been brought on record and they are the daughter Lakkamma who was not a party to the proceedings in the Courts below and her son the 1st defendant. ( 2 ) THE plaintiff filed the Original suit No. 207/1969 in the Court of the munsiff at tiptur. She filed the suit as an indigent under Order 33 Rule 1 of the C. P. C. She wanted a declaration of her title to 1/4th share in the suit schedule properties and for partitition of the same by metes and bounds and for possession of the said properties that fall to her share with mesne profits from date of suit till date of possession. ( 3 ) IT was her case that she was the widow of one Pandit Rangegowda who died some 20 years before the filing of the suit. He was living jointly with 1st defendant his son. Defendants 2 and 5 are the wives of the 1st defendant while defendant-3 is the son of the 1st and 2nd defendants. Defendants 3 and 4 are the sons of the 1st and 2nd defendants and defendant-6 is the son of defendants 1 and 5. Defendant 7 is a stranger to the family who has purchased some of the joint family properties on account of the sale effected by the 1st defendant. The plaintiff further alleged that the defendants had a partition about four years prior to the filing of the suit in which no share was assigned to the plaintiff. It is in these circumstances that the suit was presented for declaration of her share and partition by metes and bounds and for possession of her share in the properties. The plaintiff further alleged that the defendants had a partition about four years prior to the filing of the suit in which no share was assigned to the plaintiff. It is in these circumstances that the suit was presented for declaration of her share and partition by metes and bounds and for possession of her share in the properties. ( 4 ) THE suit was resisted by defendants, 2, 3 and 4 who filed a, common" written statement which was adopted by the 1st defendant by a memo filed in that behalf. Defendants 5 and 6 have filed a separate written statement. In substance the case of the defendants was that they admitted the relationship between the parties but contended that 12 years prior to the filing of the written statement certain properties mentioned in the schedule attached to the written statement were given to the plaintiff towards her share in the suit schedule properties. It was further stated that item-2 of the plaint schedule properties and half share of the dry lands in item-7 of the plaint schedule properties and a room in the northern portion of item-6 was given to the plaintiff towards her share; and thereafter some 5 years before the filing of the written statement the properties were divided among the other members of the family. They further alleged that the 1st defendant was cultivating the land which fell to the share of the plaintiff at the first of the partitions and the plaintiff was receiving the produce from the land. In those circumstances, the defendants contended that the plaintiff was not entitled to any further share in the suit schedule properties by metes and bounds as claimed. ( 5 ) ON these pleadings, the trial Court formulated three issues. They are:" (1) Is the plea set up by the defendants 2 to 4 true? (2) Is plaintiff entitled to declaration and partition of her share by metes and bounds? (3) Is plaintiff entitled to future mesne profits? ( 6 ) THE plaintiff and defendants examined several witnesses in support of their rival contentions and closed their case. The trial Court on appreciating the evidence before it came to the con- elusion that the plaintiff was the sole surviving widow of late Pandit Rangegowda. It also came to the conclusion that the defendants had not proved any partition after the death of Pandit rangegowda. The trial Court on appreciating the evidence before it came to the con- elusion that the plaintiff was the sole surviving widow of late Pandit Rangegowda. It also came to the conclusion that the defendants had not proved any partition after the death of Pandit rangegowda. The trial Court also held that Pandit Rangegowda and his son the 1st defendant were joint and that the properties were also joint family properties. The trial Court further came to the conclusion that the plaintiff was entitled to a 1|6 th share in the suit schedule properties on the basis of sub-sec. (2) of S. 3 of the Hindu womens Right to Property Act, 1937. Aggrieved by the same the 3rd defendant filed R. A. No. 114/72 in the Court of the Additional Civil Judge, Tumkur. The appeal came to be dismissed by the lower appellate Court concurring with the finding of facts by the trial Court but subject to the modification that the plaintiff was entitled to 1th share, in accordance with the provisions of hindu Law Womens Rights To Property act, 1933 (Mysore Act No. 10 of 1933) governing the parties in the erstwhile state of Mysore. The appellate Court proceeded to make that modification even in the absence of a cross-objection by the plaintiff having regard to the language of R. 33 of Or. 41 of the C. P. C. Aggrieved by the Judgments and decrees of the Court below as above, the 3rd defendant has preferred this appeal under S. 100 of the C. P. C. ( 7 ) SRI R. Gopal, the learned Counsel appearing for the 3rd defendant-appellant, has urged the following two contentions: (1) That the Courts below ought to have found in favour of the defendants in regard to the partition that took place about 12 years before the filing of the suit. (2) That the lower appellate Court erred in law by enhancing the share of the plaintiff by awarding 1/4th share in the suit schedule properties as against the 1|6th share awarded by the trial Court. ( 8 ) THE first of the contentions is not tenable as this Court under S. 100 of the c. P. C. will not re-appreciate the evidence on record and give a finding on facts as to whether a partition had or had not taken place as alleged by the defendants. ( 8 ) THE first of the contentions is not tenable as this Court under S. 100 of the c. P. C. will not re-appreciate the evidence on record and give a finding on facts as to whether a partition had or had not taken place as alleged by the defendants. There must be exceptional circumstances for the High Court to interfere with the finding of facts in a second Appeal. This is the well settled principles of law (See AIR 1980 Supreme Court 1754 (1 ). I do not see any such compelling circumstances in the case on hand which should permit such investigation and re-appreciation of the evidence on record. Therefore, the first "contention is rejected. ( 9 ) SHRI Gopal has very strenuously contended in furthering, the second contention for the 3rd defendant. He has also placed reliance on the decision of the Supreme Court in the case of Voleti venkata Ramarao v. Kesapa Rangada bhaskararao (2 ). It is unnecessary to make a detailed reference to a number of other cases cited by him. It will suffice to state that in all the cases relied upon by him the concerned High Courts came to the conclusion that the lower appellate court was in error in modifying the decree assuming jurisdiction under r. 33 of Or. 41 of the C. P. C. In one case the principle of res judicata was extended as a question of limitation had become concluded between the parties in that suit and the defendant who had suffered the adverse decision had not himself filed an appeal in that behalf nor a, cross-objection when the plaintiff who was partially aggrieved took the matter up in appeal. Similarly, in the decision of the Andhra Pradesh High court, it was held that jurisdiction under R, 33 of Or. 41 of the C. P. C. could be exercised only if the case fell on all fours within the illustration to that rule. The High Court of Patna took the view in a Land Acquisition case that the benefit of the success of a cross- objection for enhancement of the compensation in an objection to the appeals by the State could not enure to the benefit of those land owners who had not filed such cross-objections and that court would have jurisdiction under rule 33 of Or. 41 of the C. P. C. to extend such benefit. 41 of the C. P. C. to extend such benefit. In none of the cases above, decided after 1963, is the Ruling of the supreme Court in the case of Panna Lal v. State oi Bombay (3) noticed. Suprisingly even in the decision of the supreme Court in the case of Raghunath v. Kedarnath (4), the decision in panna Lai's case (3) was not noticed. Undoubtedly, the decision in Raghunath's case (4) somewhat supports the view advanced by the appellant. But the facts of the case decided by the Supreme court in Raghunath's case (4) are some- what different from the facts in the instant case to which I will presently refer. In Raghunath's case (4) the matter had been remanded more than once by the High Court. It was a suit for redemption of a mortgage. At no point of time was the question of defendants rendering accounts to the plaintiff in respect of the mortgage properties was in issue. In those circumstances, the High Court's second remand in an appeal by the plaintiff asking the defendants to render the accounts for the first time was held to be out-side the jurisdictional power of the appellate court in terms of R. 33 of Or. 41 of the c. P. C. This, in my opinion will not be of much assistance to the appellant. In the case of Panna Lal, (3) a Bench of five Judges of the Supreme Court had occasion to consider the ambit and scope of the power to be exercised by the appellate court in terms of R. 33 of Or. 41 of the C. P. C. directly. In that case, a suit by a contractor against several defendants including the State of madhya Pradesh was dismissed by the high Court in appeal filed by the State (succeeded by State of Bombay after the States Reorganisation ). The reason for dismissal was that on the facts of that case, the State at no time was a contracting party, nor was there any contract as prescribed under the Government of India Act 1935. The reason for dismissal was that on the facts of that case, the State at no time was a contracting party, nor was there any contract as prescribed under the Government of India Act 1935. Before the high Court the plaintiff pleaded that even if the High Court came to the conclusion that the State of Madhya pradesh was not bound by the contract, at least the decree against some or all the appellants should be sustained on account of the powers of the appellate court enjoyed under R. 33 of Or. 41 of CPC. This came to be rejected by the High court. On appeal the Supreme court came to a different conclusion in AIR 1963 SC 1516 . In paras 12, 13, 14 of the judgment of the Supreme Court Das gupta J speaking for the bench, stated as follows: - (12) Even a bare reading of O. 41 r. 33 is sufficient to convince any one that the wide wording was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondents but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal, but also to give such other relief to any of the respondents as "the case may require". In the present case, if there was no impediment in law the High Court could therefore, though allowing the appeal of the state by dismissing the plaintiff's suits against it, give the plaintiff a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the section make this position abundantly clear the illustration puts the position beyond argument. (13) The High Court appears to have been in no doubt about its power to give the plaintiff relief by decreeing the suits against one or more of the, other defendants. But say the learned Judges, "we do not think it proper to do so as the plaintiff could have asked for this relief by filing a cross-objection under O. 41 R. 22 CPC but has not done so. But say the learned Judges, "we do not think it proper to do so as the plaintiff could have asked for this relief by filing a cross-objection under O. 41 R. 22 CPC but has not done so. " The logic behind this seems to be that the Cross- objection under O. 41 R. 22 could be filed only within the time as indicated therein and if a respondent who could have filed a cross-objection did not do so, is given relief under O. 41 R. 33, O. 41 R. 22 is likely to become a dead letter. (14) The whole argument is based on the assumption that the plaintiff could by filing a cross-objection under O. 41 r. 22, C. P. C. , have challenged the trial Court's decree in so far as it dismissed the suit against the defendants other than the State. We are not, as at present advised, prepared to agree that if a party who could have filed a cross-objection under O. 41 R. 22 of the Code of the civil Procedure has not done so, the appeal Court can under no circumstance give him relief under the provisions of O. 41 R. 33 of the code. It is, however not necessary for us to discuss the question further as, in our opinion, the assumption made by the High Court that the plaintiff could have filed a cross- objection is not justified. ( 10 ) IN those circumstances, after discussing the scope of cross-objections and parties entitled to file cross- objections the Supreme Court gave relief to the appellant stating that the view taken by the High Court of bombay was an erroneous view. It is clear from the judgment of the learned civil Judge that he found himself in full agreement with the finding " of facts by the trial Court, but could not agree that the 1937 Act (Hindu womens Right to Property Act) had application in the erstwhile State of mysore which was governed by the 1933 Act of that State in regard to the rights of Hindu Women, according to the provisions which the plaintiff was entitled to half the share of her husband at a notional partition effected immediately before his death. This is clearly within the scope of the language used in Rule 33 of Order 41 of the C. P. C. The court should not tend to read-down the language of Rule 33 of Order 41 of c. P. C. so that the Courts become helpless to pass a just and equitable order in the appeal before it. If it is so read- down, then the very object of giving such wide powers to the appellate Court would be defeated. There may be cases where the discretion ought not to be exercised but that will depend on the facts and circumstances of each case. I am of the view that the second contention therefore must also fail. ( 11 ) BEFORE parting with this case it is necessary to point out at the cost of repetition that the plaintiff has died during the pendency of the litigation and the first defendant and the other legal representative Lakkamma brought on record are the sole surviving heirs of the plaintiff. They are bound to succeed to the plaintiff's intestate estate (in accordance with law. No doubt, the learned Counsel appearing for Lakkamma the daughter of the deceased plaintiff tried to make out a case that the 1st defendant was not the real son of the plaintiff but only step-son. On the material available in the record, he could not sustain that contention as the plaintiff herself had pleaded that 1st defendant was her son and also deposed on oath that it was so. Therefore, I do not want to express any opinion in regard to whether he was a son or a stepson. In the resultant position the trial court will have to draw up the final decree of the partition taking note of the subsequent developments in the the litigation. In part the interest of the plaintiff has got merged with the interest of the defendant. This has to be worked out in accordance with law. Subject to the above observation, this second appeal is dismissed. ( 12 ) IN the circumstances of the case, the appellant snail pay the costs to lakkamma the daughter of the plaintiff now brought on record as one of the legal representatives. Advocate's fee is rs. 50. --- *** --- .