JUDGMENT Somasundaram, J. 1. The first defendant in O.S. No. 476 of 1978 on the file of the District Munsif s Court, Kuzhithurai is the appellant in the second appeal. The respondents 1 and 2 are defendants 3 and 4 in the said suit. The 3rd respondent in the second appeal is the plaintiff and respondents 4 and 5 in the second appeal are defendants 2 and 5 in the suit respectively. In the second appeal, for the sake of convenience the parties are referred to by the nomenclature given in the suit. 2. The plaintiff in O.S. No. 476 of 1978 filed a suit for partition and redemption and his case as stated in the plaint is as follows: An extent of 73 cents in S. Nos. 2228 and 2229-A in Kaliyal village described as A Schedule in the plaint was originally owned by one Thamarakulathu Matom. One Achutharu of the said Matom executed a mortgage and Kuzhikkanam in 1955 in favour of the first defendant over the suit properties and other properties. On the date of the said mortgage the first defendant was already in possession as per a lease deed and Kuzhikkanam of 1114 M.E. The said Achutharu executed a superior mortgage in favour of one Kumara Pillai Parameswaran Pillai directing him to redeem the mortgage in favour of the first defendant. The said Parameswaran Pillai instead of redeeming the mortgage assigned his right to the second defendant, the wife of the first defendant in 1971. In the meantime, in 1961, the first defendant executed a mortgage and Kuzhikkanam in favour of the plaintiff over an extent of 21 cents in S. No. 2228 and 32 cents in S. No. 2229-A. The plaintiff subsequently purchased the equity of redemption in 1969 from the heirs of the mortgagor Achutharu and in the said sale the plaintiff was directed to redeem the prior mortgages. On 3.11.1971 the plaintiff sold 21 cents in the plaint A Schedule to the fifth defendant. The said portion is described as B Schedule in the plaint. The remaining extent is described as C Schedule and the plaintiff is in actual possession of 32 cents and he is entitled to recover possession of the balance of 20 cents from defendants 1 and 2. The defendants 3 and 4 are in possession of a portion of the extent under the mortgagees, defendants 1 and 2. The remaining extent is described as C Schedule and the plaintiff is in actual possession of 32 cents and he is entitled to recover possession of the balance of 20 cents from defendants 1 and 2. The defendants 3 and 4 are in possession of a portion of the extent under the mortgagees, defendants 1 and 2. The plaintiff is entitled to redeem the mortgage over the plaint C Schedule property. He filed O.S. No. 820 of 1972 for redemption of the mortgage and it was decreed in his favour. In appeal the appellate court remanded the suit to the trial court and after remand the suit was dismissed on the ground that the present fifth defendant was a necessary party to the suit. The Court, while dismissing the suit O.S. No. 820 of 1972, recognised the right of the plaintiff to file a fresh suit for redemption after impleading of the necessary parties. In that suit, the present defendants 3 and 4 claimed right as Kudikidappukars. The plaintiff, with a view to avoid a trouble and future litigation, agreed in that suit for allotting 0-04 cents to defendants 3 and 4 as kudiyiruppu and, therefore, now, he is entitled to claim recovery of possession of 16 cents in the C Schedule property after redeeming the mortgage over an extent of 48 cents. The plaintiff also claimed a decree for partition of the C Schedule property. 3. The first defendant filed a written statement expressing his willingness to surrender possession on payment of the mortgage money and value of improvements, which, he claimed as Rs. 1,800. The defendants 3 and 4 in their written statement contended that the suit property lies in three plots-eastern plot of 21 cents in their possession, the middle plot of 21 cents which is in the possession of the vendee, the fifth defendant, and the western plot of 31 cents in the possession of the plaintiff. The defendants 3 and 4 further contended that the title of the plaintiff over the eastern plot of 21 cents is lost by their adverse possession. The fifth defendant filed a written statement admitting his possession of 21 cents purchased from the plaintiff. 4. The defendants 3 and 4 further contended that the title of the plaintiff over the eastern plot of 21 cents is lost by their adverse possession. The fifth defendant filed a written statement admitting his possession of 21 cents purchased from the plaintiff. 4. The trial court, on a consideration of the evidence on record, passed a preliminary decree in favour of the plaintiff for partition of 48 cents in C Schedule after deducting 4 cents for kudiyiruppu for defendants 3 and 4 and for redemption of the mortgage on deposit of Rs. 63.35. The trial court also granted a decree for recovery of possession of 0-16 cents from defendants 1 to 4. As against the judgment of the trial court the defendants 3 and 4 alone filed an appeal in A.S. No. 52 of 1980 before the Sub-Court, Kuzhithurai. In the appeal, at the instance of defendants 3 and 4, a commissioner was appointed in I.A. No. 751 of 1981 to measure the suit property in order to find out the exact extent covered by the two survey numbers 2228 and 2229-A. The Commissioner submitted his report and plan, marked as Ex. C-1 and C-2 before the appellate court. The parties to the suit proceeded on the basis that the area covered by the two survey numbers 2228 and 2229-A measures only 73 cents. But, the commissioner, on actual measurement, found an excess extent of 17 cents. As per the Commissioner's report, the area covered by S. Nos. 2228 and 2229-A measures 90 cents. Thereafter, in the appeal, the plaintiff filed I.A. No. 342 of 1982 for amendment of plaint claiming 65 cents as against 48 cents claimed in the original plaint and his prayer for amendment was allowed. The plaint was accordingly amended on 15.7.1982. The first defendant filed an additional written statement after the plaint was amended, contending that the commissioner has included within the suit survey numbers the portions of the property in the west owned by the first defendant and that the actual area of the suit property is only 73 cents. The defendants 3 and 4 filed an additional written statement claiming title over the excess area over and above the extent claimed in the original plaint. 5. The defendants 3 and 4 filed an additional written statement claiming title over the excess area over and above the extent claimed in the original plaint. 5. The appellate court, on a consideration of all the facts and circumstances and the evidence on record held that the actual extent of the suit property covered by the two survey numbers 2228 and 2229-A is 90 cents and this extent was included in the mortgage executed by the first defendant in favour of the plaintiff in the year 1961, The appellant court confirmed the findings of the trial court that the defendants 3 and 4 have not proved their case that they perfected title by adverse possession to 21 cents in C Schedule as claimed by them and consequently dismissed the appeal filed by defendants 3 and 4. But, at the same time, the appellate court modified the decree of the trial court holding that the plaintiff will be entitled to the excess area found by the commissioner in his report, Ex. C-1 and consequently granted a decree in favour of the plaintiff for partition and redemption in respect of 65 cents in the suit property as against the decree for 48 cents granted by the trial court. 6. As against the judgment of the lower appellate court the defendants 3 and 4 filed a Second Appeal No. 2262 of 1983 before this Court and on 23.9.1983, this Court dismissed the second appeal filed by the defendants 3 and 4. 7. Aggrieved by the judgment in A.S. No. 52 of 1980 the first defendant has filed the present second appeal. 8. Mr. S.S. Mathivanan, learned Counsel for the appellant would contend that the lower appellate court failed to see that the plaintiff is already in possession of 53 cents and his prayer in the original plaint is only 16 cents and there is no justification in granting a decree in favour of the plaintiff for the excess extent of 17 cents also found by the commissioner on actual measurement of the suit property. There is no substance in the contention of the said counsel. No doubt, the trial court has granted a decree for partition and redemption in favour of the plaintiff only in respect of 48 cents. In the appeal a commissioner was appointed to measure the land to find out the actual extent of the suit property. There is no substance in the contention of the said counsel. No doubt, the trial court has granted a decree for partition and redemption in favour of the plaintiff only in respect of 48 cents. In the appeal a commissioner was appointed to measure the land to find out the actual extent of the suit property. The commissioner, after measuring the suit property, submitted a report, Ex. C-1 and he has stated in Ex. C-1 that on ground the two survey numbers 2228 and 2229-A measure 90 cents, though in the original plaint the extent of the suit property was given only as 73 cents. In view of the commissioner's report giving the total extent of the suit property as 90 cents, the plaintiff subsequently filed an application for amendment I.A. No. 342 of 1982 claiming that he is entitled to the relief of partition and redemption in respect of 65 cents on the ground that the total extent covered by the two survey numbers, referred to above, is 90 cents. The application for amendment was allowed by the lower appellate court. The lower appellate court, on a consideration of the materials on record, rightly found that the first defendant though filed objections to the commissioner's report to the effect that the excess area found in plot A forms part of the western property owned by him, he has not substantiated the same. The lower appellate court further found on the question of fact that the actual extent of the suit property is 90 cents and this extent was included in the mortgage executed by the first defendant in favour of the plaintiff in 1961. Inasmuch as the commissioner in his report Ex. C-1 has found that the actual area of the suit property is 90 cents it is this property measuring 90 cents has to be taken as being available for granting reliefs of partition and redemption in favour of the plaintiff. As rightly contended on behalf of the plaintiff, if the mortgagee is in possession, on redemption, he must restore possession to the mortgagor not only the land originally mortgaged but also the land that has come into his possession as a mortgagee. In Damodaran Nair v. Jothimoorthi and Anr. As rightly contended on behalf of the plaintiff, if the mortgagee is in possession, on redemption, he must restore possession to the mortgagor not only the land originally mortgaged but also the land that has come into his possession as a mortgagee. In Damodaran Nair v. Jothimoorthi and Anr. 1981 T.L.N.J. 151, this Court, dealing with a similar question, has held as follows: In view of the fact that the commissioner has now found that the area of the property is 351/2 cents, it is this property which has to be taken as being available for division between the plaintiff and the 2nd defendant. The learned Counsel for the appellants does not dispute the fact that he is found to surrender the mortgaged property. As pointed out by Mulla in the Transfer of Property Act, 1882,6th Edn., p. 429, if the mortgagee is in possession, on redemption, he must restore possession to the mortgagor not only the lands originally mortgaged but also the land that have come into his possession as mortgagee. In support of this proposition reference has been made to two decisions, one of the Allahabad High Court in (1924) 46 All. 152 and the other of the Mysore High Court A.I.R. 1957 Mysore, 100. It is stated therein that the mortgagee cannot take away the actual property that is found in excess, on measurement taken of the property mortgaged. He has to surrender possession of the property as it is found at the time of redemption. 9. Learned Counsel for the appellant would further contend that the lower court exceeded its jurisdiction in granting additional relief to the plaintiff in respect of the excess land of 17 cents when he has not preferred any appeal against the judgment and decree of the trial court granting relief only for 48 cents. There is no force in this contention of the learned Counsel for the appellant also. No doubt, in this case the trial court has granted a decree for partition and redemption in favour of the plaintiff only for 48 cents and the plaintiff has not filed any appeal against the judgment and decree of the trial court claiming the reliefs in respect of the excess extent of 17 cents. However, it should be remembered that Order 41, Rule 33, C.P.C., was enacted to meet a situation of the nature arising in the present case. However, it should be remembered that Order 41, Rule 33, C.P.C., was enacted to meet a situation of the nature arising in the present case. Order 41, Rule 33, C.P.C., provided that 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 trial court, it may pass or make such further or other decree or order as the justice of the case may require even if the respondent in the appeal did not file any separate appeal against the decree of the trial court. Order 41 Rule 33, C.P.C., runs as follows: 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 parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decree. The Supreme Court in Giani Ram and Ors. v. Ramjilal and Ors. , while interpreting Order 41 Rule 33, C.P.C., has held 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 justice of the case may require. 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 justice of the case may require. In Kok Singh v. Smt. Deokabai , while dealing with the very same provision of Order 41, Rule 33 the Supreme Court has held as follows: If an appellate court is of the view that any decree which ought in law to have been passed was in fact not passed by the court below, it may pass or make such further or other decree or order as the justice of the case may require. Therefore we hold that even if the respondent did not file any appeal from the decree of the trial court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge. In view of the principles laid down as above by the Supreme Court, the appellate court is competent in this case to grant a decree in favour of the plaintiff in respect of the excess extent of 17 cents notwithstanding the fact that the plaintiff did not file any appeal against the judgment and decree of the trial court granting relief only in respect of 48 cents. The above discussion obliges me to conclude that there are no merits in the second appeal and the same is liable to be dismissed. Accordingly, the second appeal is dismissed, but, in the circumstances of the case, there is no order as to costs