JUDGMENT D.V. Shylendra Kumar, J.— This Second Appeal under Section 100 of the Code of Civil Procedure is by the Defendant No. 1 in OS No. 5 of 1967 who was defending a partition suit on the file of the court of the Civil Judge, U.K., Karwar, instituted by the plaintiff - brother of the Defendant No. 1 with two other brothers being co-defendants initially and who had failed in such effort with the trial court decreeing the suit for partition allotting 1/4th share in favour of the branches of each of the four brothers in respect of the suit schedule properties and whose appeal in RA No. 22 of 1990 on the file of the court of the District Judge, Karwar, also failed along with certain other cross objections filed by the plaintiffs, but being aggrieved by the lower appellate court, nevertheless, modifying the Judgment and decree as passed by the trial court at the instance of the Defendant No. 5 in the suit which according to the present appellants is to the advantage of Defendant No. 5 and disadvantage of all other parties in the suit 2. It is mainly on the above ground to get over the modifying portion of the Judgment and decree as done by the lower appellate court, the present second appeal and also for seeking certain relief which the appellants failed in their appeal before the lower appellate court for the purpose of contending that excluding one suit item No. 5 -house property in schedule-D to the plaint which was also liable to be partitioned amongst the brothers but had been found by the trial court to be self acquired property of the Defendant No. 5 who was the son of Defendant No. 4 and which finding had come to be affirmed by the lower appellate court. 3. This Court while admitting the second appeal had framed the following substantial questions of law. 1. Whether the court below was justified in modifying the decree passed by the trial court when the cross appeal as well as the appeal was dismissed by the lower court and whether in such circumstances the court below could modify the decree passed by the trial court? 2. Whether the lower appellate court could have passed an order contrary to the observation made by this Court in RFA No. 176/1976 passed on IA. V dated 20.4.1991? 3. 2. Whether the lower appellate court could have passed an order contrary to the observation made by this Court in RFA No. 176/1976 passed on IA. V dated 20.4.1991? 3. Whether the court below could have passed an order modifying the decree which is contrary to the judgment passed by this Court between the parties in WP No. 33108/96 and 34004/96 dated 14.11.2000? 4. Whether the courts below could have held item No. 5 property to be self acquired property of the 5th defendant without there being any evidence to that effect? 5. Whether the court below in the facts and circumstances of the case could apply Order 41 Rule 33 to modify the decree? 4. Sri. Krishnamurthy G Hasyagar, learned Counsel for the appellants has submitted that such substantial questions of law does arise in the wake of the Judgment and decree passed by the lower appellate court as also the Judgment and decree passed by the trial court and affirmed by the lower appellate court in respect of particular suit item referred to above and these two questions of law are required to be answered. 5. Submission is that the lower appellate court could not have modified the Judgment and decree as passed by the trial court in any manner at the instance of Defendant No. 5 while dismissing both the appeal and cross appeal and not finding any justification to modify the judgment and decree as passed by the trial court at the instance of either the appellants or cross objectors, but in doing so at the instance of the Defendant No. 5 to the suit who was neither the appellant nor cross objector in the appeal before the lower appellate court. 6. The other submission of Sri. Hasyagar, learned Counsel for the appellants is that excluding one suit item from being partitioned amongst the brothers to hold it as exclusive property of Defendant No. 5, son of one brother namely Defendant No. 4 was not supported by any evidence on record and the finding is a perverse finding and therefore should have been reversed by the lower appellate court. 7. Appearing on behalf of respondent No. 5 in this appeal - Defendant No. 5 in the suit, Sri. 7. Appearing on behalf of respondent No. 5 in this appeal - Defendant No. 5 in the suit, Sri. G Krishnamurthv, learned Counsel has very vehemently supported the Judgment and Decree as passed by the lower appellate court, submits that the lower appellate court was well within its power to pass such a Judgment and decree including the variation made to the Judgment and decree as originally passed by the trial court; that the exercise of powers is traceable to the provisions of Rule 33 of Order XLI of the Code of Civil Procedure and therefore no interference is called for in this second appeal and has urged for dismissal of the second appeal. 8. The brief facts leading to the above appeal are that one Linga Bhat propositus of the joint family had five sons and while the first son Monna had died issueless, family properties was sought to be shared amongst the other four brothers and with the second son Manjunath also having died, his son Lingappa had sued other members of the family for their respective shares in the joint family properties. The genealogy of the family reads as under: PROPOITUS | Linga Bhat | -------------------------------------------------------------- | | | | | Monna Manjunath Ramachandra Venkatraman Subraya (died issueless [Died on [Deft. l] [died in 1944) [Deft.4] without 9.10.1927] | marriage] | | Lingappa | [Plaintiff] ---------------------- | | Shripad Laxmi [Defendant [Deft.3, the wife) 2 - Son] 9. The relationship being not in dispute, the properties sought to be shared were indicated in schedules A to D to the plaint comprising of immovable properties and several house properties and agricultural properties, particularly, schedule-C comprised of agricultural land held by the joint family on leased and schedule-E comprising of movable properties. The family was traditionally carrying on the activity of priesthood and some members of the family carried on the business in arecanut. The plaintiff had claimed 1/4th share in respect of the entire suit schedule properties. While the Defendant No. 1 was one brother of the plaintiff's father, defendants 2 and 3 were legal heirs of the other brother namely Venkataramana of the plaintiffs father and Defendant No. 4 was one Subraya also brother of the plaintiff's father. The plaintiff had claimed 1/4th share in respect of the entire suit schedule properties. While the Defendant No. 1 was one brother of the plaintiff's father, defendants 2 and 3 were legal heirs of the other brother namely Venkataramana of the plaintiffs father and Defendant No. 4 was one Subraya also brother of the plaintiff's father. The defendants 2 and 3 became the legal heirs of one of the brothers of the plaintiff's father as that brother had died in the year 1944 much prior to the filing of the suit. 10. The suit claim was that the family properties were to be shared amongst four branches i.e., claiming under the four brothers Manjunatha under whom the plaintiff claimed as his son, Ramachandra - Defendant No. l, son and wife of Venkataramana impleaded as Defendant Nos. 2 and 3 respectively and Subraya - Defendant No. 4 also brother of the plaintiff's father. 11. While the written statements were filed on behalf of the defendants and the relationship was not disputed nor was it disputed that the family was a joint family, some of the defendants claimed that some of the properties were exclusive properties as also the business of arecanut which was as indicated by Defendant No. 4 was the business of his son and later who was impleaded as Defendant No. 5 and certain house property also being his exclusive property. But, by and large, there was not much dispute about the remaining properties being the joint family property and being available to be shared amongst the members of the family. The Defendant No. 1 who had claimed good number properties as his self acquired or separate properties failed totally. The Defendant No. 4 who had claimed that a house property and arecanut business which were in the name of his son Defendant No. 5, succeeded to this extent, but failed in his effort to claim some of the properties as his exclusive properties other than those which were in the name of Defendant No. 5. 12. In view of the defence set up by different defendants claiming some of the properties as their self acquired property or separate property, the trial court had framed the following issues: 1. Whether the suit schedule properties are the pint family properties of plaintiff and defendants? 12. In view of the defence set up by different defendants claiming some of the properties as their self acquired property or separate property, the trial court had framed the following issues: 1. Whether the suit schedule properties are the pint family properties of plaintiff and defendants? OR Whether the 1st Defendant proves that the properties mentioned in para 3 of the written statement out of the suit schedule properties arts his self-acquired properties? 2. Whether plaintiff proves that 1st defendant has been managing the pint family properties? 3. Whether the plaintiff proves that items 49A to 63 of the 'A' schedule were acquired out of the joint family funds and income of the family? 4. Whether the court has no jurisdiction to try the suit? 5. Whether the 4th defendant proves that item No. 5 of 'D' schedule and the house in No. 673 and 673A are not the pint family properties? 6. Whether the business carried on by 4th defendant is his separate business? 7. Whether 4th defendant alone has half Mulgeni interest in item No. 37, 40 and 47 of 'A' schedule? 8. Whether the 1st defendant proves that S. No. 465 of Murur village and S. No. 568 and 76 of the same village are also joint family properties and that he has a share in the same? 9. Whether the shares in the E.N.R. Corporation, Bangalore, are purchased out of joint family funds? 10. Whether plaintiff has 1/4th share in the suit schedule property? 11. Whether the mother of the plaintiff is a necessary party to the suit? 12. What are the properties available for partition? 13. Whether item No. 5 in 'D' schedule is the separate property of the 5th defendant? 14. To what reliefs, if any, is plaintiff entitled? 13. The first issue regarding the 1st defendant proving that some of the properties as mentioned in paragraph-3 of the written statement were self acquired properties was answered against Defendant No. 1 and it was held that they are joint family properties. With regard to the second issue, it was held that the Defendant No. 1 was managing the joint family properties in the name of Defendant No. 5. Issue No. 13 was answered in favour of Defendant Nos. With regard to the second issue, it was held that the Defendant No. 1 was managing the joint family properties in the name of Defendant No. 5. Issue No. 13 was answered in favour of Defendant Nos. 4 and 5 respectively and except for this, all other properties were held to be joint family properties and equally 1/4th share was given to the four branches of the brothers by the trial court in terms of the Judgment and decree dated. 30.11.1977. 14. Aggrieved by this Judgment and decree of the trial court, while the Defendant No. 1 filed an appeal for getting over the Judgment and decree in holding such properties which he had claimed as his exclusive properties as joint family properties, plaintiff filed cross appeal for claiming share in those properties which had been held as exclusive property of Defendant No. 5 by the trial court. 15. The lower appellate court while dismissed both the appeal and cross appeal, nevertheless, took note of the submissions made on behalf of Defendant No. 5 -respondent No. 5's counsel before the court below, particularly, for the purpose of holding that while the sharing of the 'C' Schedule properties, agricultural lands was only by way of sharing rental income or compensation payable by the Government if the tenanted land had vested in the State and the owners become entitled for compensation, took note of contention urged on behalf of Defendant No. 5, namely, that Sl. No. 15 of 'C' Schedule suit lands and also Sl. No. 45 of 'C' Schedule are not properties which were available for being partitioned by metes and bounds on the premise that the case of the plaintiff in the suit itself was that it was leased out to tenants and with the amendment to the Karnataka Land Reforms Act to such lands vested in the State as on 1.3.1974, none of the tenanted lands were available to be partitioned by metes and bounds by the members of the family and that the members will be entitled to only share the compensation payable in lieu of such tenanted lands and decree should be only for sharing 1/4th of the compensation amount payable in respect of leased properties mentioned in 'C' Schedule to the plaint 16. The learned Judge of the lower appellate court also observed that the decree drawn with regard to the sharing of the 'C' Schedule property by the trial court was not very accurate or proper and that it is required to be done indicating that the members of the family are not actually entitled for providing any of these lands by metes and bounds, in the sense, that none of them can claim possession of the lands on being partitioned by metes and bounds. 17. This Judgment and decree as modified by the lower appellate court has given rise to the present second appeal which is by the Defendant No. 1 in the suit and is contested only by the Defendant No. 5, son of Defendant No. 4 in the suit and to the extent of sustaining the Judgment and decree as passed and modified by the lower appellate court in the appeal of the Defendant No. 1. 18. Learned judge of the lower appellate court accepted the submission made on behalf of the fifth defendant that 'C' schedule properties being tenanted lands, the learned trial judge was not right in ordering partition of these lands also by metes and bounds, as these lands vest in the state under the provisions of Karnataka Land Reforms Act and were not available for partition by metes and bounds amongst the members of the family; that this being a question of law, can be raised by the fifth defendant-respondent and in so doing, brushed aside the contention on behalf of the appellants therein that in the absence of an appeal or cross-objection, the fifth defendant could not seek any variation or modification of the decree as passed by the trial court, and further justified that the appellate court is so enabled to exercise the power, in view of the provisions of Rule 22 of Order XLI CPC. What was held was that the joint family of the plaintiff and the defendants does not become owner of the land mentioned in 'C' schedule and therefore there cannot be any separate possession of such lands by effecting partition of these lands by metes and bounds. Failure on the part of the learned trial judge on this aspect was required to be corrected and accordingly, the learned judge of the lower appellate court answered the point No 1. Failure on the part of the learned trial judge on this aspect was required to be corrected and accordingly, the learned judge of the lower appellate court answered the point No 1. which it had formulated for determination, as under: The appeal and the cross-objections filed by the respondent No 1 are dismissed with modification of the judgment and decree of the trial court that there shall not be partition by metes and bounds of the 'C' schedule properties and the plaintiff is not entitled to partition and separate possession of his 1/4th share in these properties. 19. Appearing on behalf of the appellants, Sri Hasyagar, learned Counsel, has submitted that the position with regard to the properties available for being shared amongst the parties to the suit apart from being indicated in the judgment and decree of the trial court had been so pointed out and that concurrence as reflected by the order dated 1-2-1985 passed on IA-IV in RFA No 176 of 1979, which was the very appeal in which the judgment and decree passed by the lower appellate court had been challenged by filing said appeal before this Court, during the pendency of which, an order as under, has been passed on 1-2-1985: Counsel on both sides submit that there is no dispute in this appeal regarding the garden and wet kinds to be partitioned and also the shares declared by the Court. The dispute in this appeal appears to be only in regard to the residential house. In these circumstances, it appears to us that it is not necessary to stay the final decree. The final decree may proceed is regard to the wet and garden land. A decree in regard to the wet and dry lands may be drawn up and transmitted to the Revenue Authorities for expeditious partition and delivery of separate possession to the individual sharers. There shall also be an enquiry in regard to mesne profits. and it was this very appeal which came to be transferred to the court of district judge, Uttarakannada, Karwar, as on 8-8-1990 and renumbered as RA No 22 of 1990, on the file of that court. 20. There shall also be an enquiry in regard to mesne profits. and it was this very appeal which came to be transferred to the court of district judge, Uttarakannada, Karwar, as on 8-8-1990 and renumbered as RA No 22 of 1990, on the file of that court. 20. Submission is that in the light of this order passed by this Court in that appeal, it amounts to a consent decree by all the parties to the appeal; that if at all the judgment and decree of the trial court can be said to have been modified in terms of this order, which can be construed as a further preliminary decree and it was not open to the present fifth respondent in the appeal to raise a contention contrary to what had been agreed amongst the parties before this Court as on 1-2-1985 in the very appeal. In this regard, Sri Hasyagar submits that the entire effort on the part of the fifth respondent is for laying claim to suit schedule item Nos. 15 and 45 being in 'C' schedule in the plaint; that there was no doubt that some efforts on the part of the fourth defendant to indicate that the suit item No 45 property in 'C' schedule, are stood in the name of fifth defendant is a self-acquired property of the fifth defendant and therefore was not one liable to be partitioned as a family property, this specific stand had been negatived by trial court and it had been held that this is also part of the joint family properties, particularly with neither the fourth defendant nor the fifth defendant having laid any supporting evidence or plea in respect of the self-acquired property of these defendants and if so, findings of this nature could not have been got over by the fifth defendant by a submission made before the lower appellate court, even without filing an appeal or cross-objection, but by drawing attention to certain developments in law subsequent to the judgment and decree being passed by the trial court, particularly no proper foundation having been laid in the suit. What is urged is that the claim of the fifth defendant that this property [suit property item No 45] is a property purchased by him in terms of sale deed dated 9-11-1964 was never made good by the fourth defendant or the fifth defendant before the trial court nor before the lower appellate court Likewise, the claim that the suit property item No 15 in 'C' schedule - another piece of agricultural property - in respect of which the fifth defendant claims right having purchased tenancy rights from the earlier tenants and having stepped into the shoes of the tenants and having been conferred occupancy rights in terms of the order dated 1-9-1977, was also never made good either before the trial court or before the lower appellate court, but it is only sought to be projected before this Court and therefore the learned judge of the lower appellate court in the absence of an appeal or cross-objection by these defendants, could not have in any manner modified the judgment and decree as passed by the trial court. 21. One another circumstance relied upon by Sri Hasyagar, learned counsel for the appellants is that the executing court in the final decree proceedings had sought to give effect to the order passed by this Court on 1-2-1985, referred to above, and the fifth defendant claiming to be aggrieved by such proceedings in FDP No 1 of 1979, had during the pendency of the appeal before the lower appellate court, filed IA-V to stay those further proceedings in the final decree, but the learned judge of the lower appellate court having rejected such interlocutory application in terms of the order dated 20-4-1991, it was not even open to the fifth defendant to have raised any contention before the lower appellate court for the purpose of seeking modification of the judgment and decree as passed by the trial court. 22. 22. With regard to the legal position, submission of learned Counsel for the appellants is that though it is within the powers of the appellate court to pass such orders as it may deem fit in respect of any judgment and decree appealed against, exercising the power under Rule 33 of Order XLI of CPC, it can be so done in favour of a non-cross-objector party only if the court finds any need or necessity to modify the judgment and decree of the trial court at the instance of the appellant or cross-objector and while so doing, incidentally can also pass any order in favour of a non-appealing respondent who has not filed any cross-objection for ensuring that the shares of the parties are properly adjudicated and for doing justice to the parties on the ground of equities also, submission that as the learned judge of the lower appellate court dismissed both the appeal and the cross-objections, there was no scope for modifying the judgment and decree passed by the trial court at the instance of a non-appealing fifth defendant-respondent in the appeal. 23. In this regard, learned Counsel has placed reliance on the decisions of this Court in the case of. 24. Placing reliance on the said decisions, submission of the learned Counsel for the appellants is that a non-appealing respondent or respondent who has not filed cross-objection while can definitely sustain the judgment and decree of the trial court, even by giving such supporting reasons as not given by the trial court or by requesting the appellate court to pass such a finding varying as recorded by the trial court, but cannot seek to improve upon the judgment and decree in his favour if has not filed an appeal or cross-objection. 25. With regard to the fourth question that had been framed by this Court while admitting the appeal, submission of Sri Hasyagar is that both the trial court and the lower appellate court have committed a serious error in concluding that the suit schedule property item No 5 - house property in 13' schedule - was a separate and self-acquired property of the fifth defendant, even when the fifth defendant, who had taken this stand as supported by this plea by any further supporting material nor had he entered the witness box to substantiate his claim that it was his self-acquired property. What is submitted is that it has remained as a mere plea and did not fructify into a finding based on evidence and as the claim of the fifth defendant had been contested, the trial court nor the lower appellate court could not have passed a decree by excluding this particular piece of land from amongst the joint family property, required to be shared amongst the members of the family. 26. One another circumstance pointed out by Sri Hasyagar, learned Counsel for the appellants is with regard to the untenability of the stand of the fifth defendant that the suit item No 14, 45 of the 'B' schedule was an exclusive or self-acquired property of the fifth defendant, is that while the defendants 4 or defendant 5 did not place the sale deed said to be executed on 9-11-1964. before the court below for examination or in support of the claim, it was possibly done so intentionally, for the reason that sale deed recited that consideration for the purchase of the land had been provided by the fourth defendant, who is admittedly a member of joint family and was carrying on some activity on behalf of the family. 27. Countering such submissions, Sri G Krishnamurthy, 28. learned Counsel for the fifth respondent has vehemently urged that it is not the requirement of law that a contesting respondent in an appeal, which is an appeal against the judgment and decree passed by the trial court, should have necessarily filed an appeal or cross-objection for the purpose of modifying the judgment and decree appealed against in any manner in favour of a respondent who had not filed an appeal or cross-objection. Submission is that even in the absence of any appeal or cross-objection by the contesting respondent in the appeal, the appellate court has ample power to pass judgment varying the judgment and decree of the trial court, even in favour of a non-appealing respondent by virtue of the power under the provisions of Rule 33 of Order XLI CPC. Submission is that even in the absence of any appeal or cross-objection by the contesting respondent in the appeal, the appellate court has ample power to pass judgment varying the judgment and decree of the trial court, even in favour of a non-appealing respondent by virtue of the power under the provisions of Rule 33 of Order XLI CPC. It is submitted that while it is dispute that Rule 22 of Order XLI CPC is an enabling provision for the respondent who has not preferred an appeal by himself to file a cross-objection to achieve the very purpose of filing an appeal and it is a right given to a non-appealing respondent, in so far as the power of the court is concerned, it is to be traced to the provisions of Rule 33 of Order XLI CPC and the power to be exercised under Rule 33 of Order XLI CPC. Submission of Sri Krishnamurthy is that the provisions of Rule 33 of Order XLI CPC empower the appellate court to exercise all such powers as is warranted in the circumstance of a given case to pass an appropriate decree or to adjust the shares amongst parties to the suit and the appeal. Submission is that courts have interpreted the provisions of Rule 33 of Order XLI CPC in this manner and the only limitation read into this section is that the parties to the appeal should have been parties to the suit also. Submission is that courts have interpreted the provisions of Rule 33 of Order XLI CPC in this manner and the only limitation read into this section is that the parties to the appeal should have been parties to the suit also. In support of such proposition, learned Counsel for the fifth respondent has also submitted that it is not as though there was absolutely no foundation laid by the fifth respondent-defendant claiming under the fourth defendant for such proposition that the fifth defendant who had adopted the written statement filed by the fourth defendant, in fact had contended before the trial court particularly in respect of the suit schedule item No 45 in 'C' schedule lands and assuming that such a claim had been rejected by the trial court, when that judgment and decree of the trial court was wrong in any manner, it can certainly be corrected by an appellate court even in the absence of any appeal or cross-appeal by the fifth defendant-respondent, as the power which the appellate court can exercise in favour of the appellant can equally be exercised in favour of a non-appealing respondent also, and therefore it cannot be said that the judgment and decree passed by the lower appellate court to modify the judgment and decree passed by the trial court is in any way illegal or contrary to any statutory provisions. 28. 28. It is also the further submission of Sri Krishnamurthy that none of the parties who had asserted that the property stand in the name of the fifth respondent is also a joint family property having established the same and there being no presumption that all the properties are joint family properties, notwithstanding some properties stand in the name of members of the family, and if at all either the plaintiff or first defendant could have established that the properties which stood in the name of fifth defendant also was a joint family property and not having done so, there was no way for the first appellate court to grant a decree for sharing the properties in the name of fifth respondent also, for being shared amongst the four brothers and their heirs; that the property of the fifth defendant was not open to be shared amongst the coparceners brothers and therefore correction of the judgment and decree, which had been wrongly so decreed and rightly corrected by the first appellate court in exercise of Rule 33 of Order XLI CPC should not be in any way disturbed or interfered with by this Court in the exercise of Section 100 CPC jurisdiction. 29. In support of such submission, Sri Krishnamurthy, learned Counsel for the fifth respondent has placed reliance on the decisions in the case of Mahant Dhamir v. Madan Mohan 1987 (SUPP) SCC 528 and in the case of D.S. Lakshmaiah and Another Vs. L. Balasubramanyam and Another, AIR 2003 SC 3800 to support the case that no presumption that a property being in the name of an individual member is a joint family property and to the same effect is the decision of the Supreme Court in the case of Alchemist Limited and Another Vs. State Bank of Sikkim and Others, AIR 2007 SC 1812 . Reliance is also placed on the decision of the Supreme Court in the case of Pannalal Vs. State Bombay and Others, AIR 1963 SC 1516 . 30. With regard to the item No 5 in schedule 'D' property, submission of Sri Krishnamurthy, learned Counsel for the fifth respondent is that while it is the stand of the fifth respondent, the finding of both the courts is that it is a self-acquired property of the fifth defendant, who had independent business and income and therefore cannot be disturbed in the second appeal. 31. 31. While, the concurrent finding recorded by the courts below with regard to the suit item No 5 in 'D' schedule, which is a house property in the name of the fifth defendant-respondent and that the finding of the courts below that the fifth defendant-respondent had independent business and income, which position is not questioned before both the courts, has become concluded on fact and does not pose any substantial question of law, which requires to be corrected or modified by this Court in exercise of Section 100 CPC jurisdiction and to this extent, the judgments and decrees of the courts below can be left undisturbed, the question still remains as to the manner of exercise of power by the lower appellate court for the purpose of modifying the judgment and decree passed by the trial court, particularly in the context of suit 'C' schedule properties. The modifying act of the lower appellate court assumes importance, as it is an assertion on behalf of the fifth defendant that the suit items 15 and 45 in 'C' schedule - agricultural lands - it appears, have not been lost to the family in totality, in the sense, fifth defendant still appears to have in possession of these properties and therefore the question arises as to whether these properties require to be partitioned for giving 1/4th share in these properties also in favour of the co-sharers of the family i.e. four brothers and their heirs. The effort on the part of the appellant is to get a share in these properties also. While the attempt on the part of the fifth defendant is to save these two pieces of agricultural lands to himself. It is in this context, the legal questions arise for examination. 32. While it is true that the power of appellate court is couched in the widest terms of the language employed in Rule 33 of Order XLI CPC and it can also be said that if there are justification and permitted in law, the power as exercised by the lower appellate court cannot be characterized as one totally without jurisdiction for modifying the judgment and decree of the trial court as has been done by the lower appellate court, in the present case, the real question is as to whether the exercise of power was so warranted and justified. It is in this regard that one has to look into the scope and manner in which the appellate court can exercise the power under Rule 33 of Order XLI CPC. In fact, a comparative study of the provisions of Rule 22 of Order XLI CPC and Rule 33 of Order XLI CPC is beneficial and quote as under: 22. Upon hearing, respondent may object to decree as if he had preferred separate appeal (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour; and may also take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one months from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow: Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent. (2) Form of objection and provisions applicable thereto - Such cross objection shall be in the form of the memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. (3) Omitted. (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the court thinks fit. (5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule. 33. (5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule. 33. Power of court of Appeal 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 decrees: PROVIDED that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order. 33. An examination of these two statutory provisions indicate that where as the provision of Rule 22 give a right in favour of a non-appealing respondent in an appeal to avail of an opportunity to come up with a cross-objection, which will be equivalent to the appeal, though had not been preferred, an appeal by himself or herself within the time prescribed in law, as against that part of the judgment and decree with which he/she may be aggrieved and this right has to be exercised in accordance with the provisions viz., that it should be so exercised within 30 days from the date of receipt of notice of the admission of the appeal, the provisions of Rule 33 are provisions which indicate the extent an scope of the power of the appellate court. It is now well settled that existence of a power is one aspect, but the exercise of that power is always regulated by the circumstance and justification of the given situation. It is now well settled that existence of a power is one aspect, but the exercise of that power is always regulated by the circumstance and justification of the given situation. A mere existence of power will not necessarily enable to exercise the power in a situation, but exercise of power will justify only when it is warranted and if the circumstances justified, as otherwise, the exercise of power just because one has become arbitrary exercise of power. It is in this context courts have interpreted the limit of exercise of power under Rule 33 of Order XLI CPC, and a Division Bench of this Court in the case of Umakant Rao [supra], following an earlier decision of a Single Judge of this Court in Hanumantha Rao [supra], has very squarely indicated that the power in favour of the non-appealing respondent should be exercised only in a situation where the judgment and decree of the court which is under appeal is required to be modified at the instance of the appellant or cross-objector and not an independent modification required to be done to the judgment and decree of the trial court. The power under Rule 33 of Order XLI CPC is understood to be covered which enables to exercise of it in favour of a non-appealing respondent only in a situation where it becomes necessary to so adjust the decree at the instance of the appellant or the cross-objector and as a consequence certain correction will be carried out in favour of non-appealing respondent also, as otherwise, it would lead to injustice to the non-appealing respondent. The understanding is that the power cannot be utilized or exercised as though it is a provision akin to the provisions of Rule 22 of Order XLI CPC. 34. While it can be said that the provisions of Rule 33 of Order XLI CPC are source of the power for the appellate court for modifying the judgment and decree appealed against in any manner it deems fit and in favour of any parry to the proceedings, whether the party has appealed or not or filed cross-objection or otherwise, the exercise of power in favour of a non-appealing respondent is only initially through the doors of Rule 22 of Order XLI CPC. It is only when the appeal under Section 96 CPC or the cross-objection under Rule 22 of Order XLI CPC is before the court, the appellate court exercises the power as empowered under Rule 33 of Order XLI CPC. The power under Rule 33 of Order XLI CPC is understood to be a power, which should be sparingly exercised and only if really justified in favour of a non-appealing respondent and not either as a matter of course or just because the power is available. In fact in some of the situations, the Supreme Court has taken the view that if non-appealing respondent wants to get over an adverse judgment and decree, it can only be by filing an appeal or cross-objection and not by merely supporting the existing judgment and decree, as noticed in the case of Choudhary Sahu (Dead) by Lrs Vs. State of Bihar, AIR 1982 SC 98 . In this case, the Supreme Court held that the order passed by the Collector under the provisions of Bihar Land Reforms [Fixation of Ceiling Area and Acquisition of Surplus Land] Act, allowing certain units to land holders having not been assailed by the State questioning the allocation of such unit in favour of the land holders, the Commissioner exercising the appellate power at the instance of such land holders, who had sought to improve their position could not have altered the order passed by the Collector to the detriment of the appellant in the absence of any appeal by the Sate; that the high court committed an error in allowing the order of the Commissioner to modify the order of the Collector at the instance of the State to remain undisturbed, even when the legality of the order passed by the Commissioner was questioned before the high court. It was specifically observed in para-12 as under: 12. The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit, as the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The rule does not confer an unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from. 35. The rule does not confer an unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from. 35. Similar is the view taken by the Division Bench of this court in the case of Jayakunvar Manual Shah [supra], that an appellant cannot be worse of than what he was at the time of filing of the appeal and cannot allow to use such portion of the decree in favour of a respondent who is not appealing. The ratio is that a non-appealing respondent cannot improve his position vis-a-vis the judgment and decree of the trial court, even without filing an appeal and when the appellant himself is not getting any relief before the appellate court. 36. In the present case also, what is pointed out by the learned Counsel for the appellants is that when the trial court had decreed that the branches of four brothers -children of Linga Bhat - are entitled for 1/4th share in all the suit schedule properties except the properties held to be self-acquired properties of the fifth defendant and that judgment and decree having not been appealed against by the fifth defendant, he cannot seek to exclude any schedule properties which are required to be shared amongst the four brothers or their branches from being so partitioned by merely seeking for such a modification before the lower appellate court in the absence of any appeal or cross-objection and if the ratio in the above case is applied, submission is justified and it is clear that the lower appellate court committed an error in modifying the judgment and decree passed by the trial court at the instance of the fifth defendant-respondent to the detriment of the appellant and other respondents. 37. This view is fortified by the recent decision of the Supreme Court in the case of Banarsi and Others Vs. Ram Phal, AIR 2003 SC 1989 , Justice R C Lahoti, as he then was, speaking for the Bench after having examined the legislative developments of the provisions of Rules 22 and 33 of Order XLI CPC and also the history of the development of law in this regard through judicial pronouncements observed as under, in paras-13 and 22: 13. Ram Phal, AIR 2003 SC 1989 , Justice R C Lahoti, as he then was, speaking for the Bench after having examined the legislative developments of the provisions of Rules 22 and 33 of Order XLI CPC and also the history of the development of law in this regard through judicial pronouncements observed as under, in paras-13 and 22: 13. We are, therefore, of the opinion that in the absence of cross-appeal preferred or cross-objection taken by the plaintiff-respondent the first appellate court did not have jurisdiction to modify the decree in the manner in which it has done, Within the scope of appeals preferred by the appellants the first appellate court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirely or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the first appellate court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out-and-out decree for specific performance of agreement to sett which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection. xxx 22. For the foregoing reasons we are of the opinion that the first appellate court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross-objection. The interference by the first appellate court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first appellate court. 38. It is this decision of the Supreme Court, which is required to be applied to the present appeal. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first appellate court. 38. It is this decision of the Supreme Court, which is required to be applied to the present appeal. This Court is required to correct the judgment and decree as passed by the lower appellate court and to restore it to the judgment and decree as had been passed by the trial court, as the lower appellate court had dismissed both the appeal filed by the first respondent herein and the cross-objection that had been filed by the plaintiff. 39. While this is the legal position, in the present case it is only to be noticed that the fifth defendant had not even made good his case for laying a claim in respect of item Nos. 15 and 45 of the suit schedule properties by any factual foundation or supporting materials that had been placed before the trial court and which had been wrongly decided by the trial court and was required to be corrected by the lower appellate court. Therefore even while exercising the power under Rule 33 of Order XLI CPC, the lower appellate court could not have modified the judgment and decree of the trial court, in any other manner and particularly in the manner in which it has done now, for the reason that the fifth defendant had not made good his case of suit schedule item No 15 and 45 to be his exclusive properties either before the trial court or before the lower appellate court. 40. The judgment and decree as passed by the trial court also suffers from one another infirmity viz., that the lower appellate court has not discussed any reason or justification and the foundation based on which the judgment by the trial court was required to be modified. For this reason also, this appeal is required to be allowed. 41. In the result, this appeal is allowed, the judgment and decree passed by the lower appellate court is set aside and the judgment and decree as had been passed by the trial court is restored and affirmed. Parties are directed to bear their own costs.