Judgment Vinod Kumar Sharma, J. 1. This appeal by the defendant/appellant is directed against the judgment and decree dated 5.12.1983 passed by the learned Additional District, Jalandhar modifying the judgment and decree passed by the learned trial court. 2. Learned Additional District Judge, Jalandhar partly accepted the appeal, to the extent that the plaintiff/respondent was entitled to recover the rent from defendants No. 2 to 6. Appellant/defendant No. 1 was allowed the continue in the occupation of the premises referred to as the Factory in the building in dispute. 3. The plaintiff/respondent filed a suit for permanent injunction, restraining defendant No. 1/appellant from realizing the receiving any rent, from defendants No. 2 to 6 as also defendant No. 2 to 6 from making any payment of rent to defendant No. 1 with respect of portion, in their occupation in the Building No. EF-379 called the Mandir Khanian Building situated at Mandi Road, Jalandhar City. 4. In the alternative prayer was made for mandatory injunction, directing defendants No. 1 to 6 not to enter the property in dispute, and further to remove the goods etc. from the said property, or in the alternative for possession by way of ejectment of defendants No. 2 to 6. 5. Plaintiff pleaded that it was a Society registered under the Societies Registration Act and Shri Dharam Pal Dada, its manger by way of resolution dated 16.9.1974 was authorised to file and prosecute the present suit. Para No. 2 of the plaint which would be relevant for adjudication of the case reads as under :- "2. That the suit property, fully described in the heading of the plaint belonged to Smt. Lakshmi Devi widow of Shri Shadi Ram Khanna. The lower portion, of the property now in dispute was left out for commercial purposes. On the first floor Mandir Shri Radha Krishan stands established." 6. The case set up by the plaintiff was, that Smt. Lakshmi Devi, owner of the property and mother of defendant No. 7, had executed a valid Will on 4.6.1958, appointing defendant No. 7 as its executor and enjoined upon him to create and perpetuate the religious Puja performance and for establishment of pious and educational institution by creating a Trust. 7. As an executor of the Will, defendant No. 7, transferred the property to the plaintiff Trust, vide trust deed dated 9.6.1974. 7. As an executor of the Will, defendant No. 7, transferred the property to the plaintiff Trust, vide trust deed dated 9.6.1974. It was claimed, that the plaintiff/respondent became owner and trustee of the suit property. Appellant/defendant No. 1, daughter-in-law of defendant No. 7 gave herself the authority to let out the ground floor shops of the property and had put defendants No. 2 to 6 in possession, when defendant No. 7 was away and therefore. failed to take notice of this act. Case further set up was that on inquiry it was revealed that possession of defendants No. 2 to 6 was under defendant No. 1 and they refused to account for rent. Defendant No. 7 had filed a suit against defendant No. 1 to 6 seeking injunction. It was during the pendency of the said suit, that the property was transferred to the plaintiff. Plaintiff/respondent filed application, but on 10.9.1974 said suit was dismissed in the absence of all the parties. It was claimed that defendant No. 1 had no right, title or interest in the property, as she was not in possession. However, defendants No. 2 to 6 claimed to be the tenants in the property. It was claimed that plaintiff being owner was entitled to receive and appropriate the rent from defendant No. 2 to 6. It was also the case of the plaintiff, that defendant No. 1 as daughter-in-law of defendant No. 7, was only an agent of defendant No. 7 and could not give better right to the tenant, than she herself possessed. 8. On the pleadings referred to above, reliefs claimed referred to above were prayed for. 9. Suit was contested by the defendants, by raising number of preliminary objections, regarding maintainability of the suit. Ownership of the plaintiff/respondent was denied. A plea was also taken that the suit was not competent as eviction could be sought only under the provisions of East Punjab Urban Rent Restriction Act. Applications moved earlier before the Rent Controller were dismissed. 10. In reply to para No. 2 of the plaint, defendants No. 1 to 6 pleaded as under:- "2. Para No. 2 of the plaint is correct to this extent that Smt. Lachhami Devi widow of Shri Shadi Ram Khanna was the owner of the property No. E.F. 379 situate in Mandi Road Jalahdhar City. The other facts mentioned in this para are wrong as stated. Para No. 2 of the plaint is correct to this extent that Smt. Lachhami Devi widow of Shri Shadi Ram Khanna was the owner of the property No. E.F. 379 situate in Mandi Road Jalahdhar City. The other facts mentioned in this para are wrong as stated. The lower portion of the building was rented out by Smt. Ved Kaur alias Lachhmi Devi to Shri Bikram Chander, defendant No. 1 became the tenant of the lower portion of the said building. It is correct that on the first floor is a Mandir of Shri Radha Krishan." 11. Other averments made in the plaint were denied and it was asserted that husband of defendant No. 1 was the tenant of the premises with right to sublet, and on his death tenancy rights were inherited by defendant No. 1. 12. In the replication averments made in the written statement were denied and that of the plaint were reiterated. 13. On the pleadings of the parties, learned trial court framed the following issues :- 1. Whether Smt. Lachhmi Devi executed any valid Will in favour of defendant No. 7 in respect of the suit property ? OPP 2. If Issue No. 1 is proved, whether defendant No. 7 executed a valid trust in favour of the plaintiff as alleged in the plaint ? OPP 3. Whether the suit is not maintainable as alleged ? OPD 4. Whether the suit is bad for misjoinder of parties and cause of action ? OPD 5. Whether the plaintiff estopped by the acts and conduct and admission of Kishori Lal defendant No. 7 from filing this suit ? OPD 6. Whether the suit is property valued for the purposes of court fee and jurisdiction ? OPP 7. Whether any sanction under Section 92 CPC was required in this case ? OPD 8. Whether the suit is barred by the principles of resjudicata ? OPD 8(a) Whether Smt. Lachhmi Devi the original owner executed any Will on 24.6.58 in favour of Lachhmi Devi @ Amar Kaur as alleged ? OPD 9. To what relief if any the plaintiff is entitled to and against whom ? OPP 14. OPD 8. Whether the suit is barred by the principles of resjudicata ? OPD 8(a) Whether Smt. Lachhmi Devi the original owner executed any Will on 24.6.58 in favour of Lachhmi Devi @ Amar Kaur as alleged ? OPD 9. To what relief if any the plaintiff is entitled to and against whom ? OPP 14. Issues No. 1 and 8-A were taken up together by the learned trail Court, wherein it was held that the plaintiff set up a Will dated 4.6.1958, said to have been executed in favour of defendant No. 7 whereas defendant No. 1 has set up a Will dated 24.6.1958 in favour of Smt. Amar Kaur defendant NO. 7. It was observed that in case Will dated 24.6.1958 was proved, then also Will in favour of defendant No. 7 would stand revoked and cancelled, and in case the Will of the plaintiff was proved and that of defendant was not proved than the plaintiff would have its way. 15. The plaintiff produced on record Ex. P4, certified copy of the Will set up by the plaintiff which was attested by R.S. Kausar, a private Homeopathic Practitioner in Bhairo Bazar, Jullundur City, Prem Nath Seth Pleader, and L.N. Vij. Will was scribed by Chetan Dass Deed Writer. Madan Lal Gupta, P.W. 7 Head Registration Clerk in the office of Registrar-cum-Deputy Commissioner, Jalandhar produced the register and proved the entry of Will dated 4.6.1958, whereas in order to prove Will dated 24.6.1958 defendant examined Balwant Rai son of Gauri Shanker, Petition Writer, who produced register of his father of the year 1958, and proved entry No. 154 dated 24.6.1958, which was said to have been executed by Smt. Lachhmi Devi in favour of Smt. Amar Kaur. Said Will was attested by Ravi Dutt Passi DW 3. Defendant No. 1 denied the execution of the Will by Lachhmi Devi in favour of defendant No. 7. Learned trial court did not accept both the Wills. 16. There is no necessity to go into these details as the learned trial court on appreciation of evidence came to the conclusion that Lachhmi Devi did not possess independent sound disposing mind in 1958, and therefore, learned trail Court did not accept any Will. 17. On issue No. 2, learned trial court held, that it is only in case the plaintiff was able to prove the execution of the Will Ex. 17. On issue No. 2, learned trial court held, that it is only in case the plaintiff was able to prove the execution of the Will Ex. P.4, then only trust deed Ex. P 1 could be relied upon. However, learned trial Court held that execution of trust deed was proved. 18. On issue No. 3 learned trial court held that the plaintiff could not show, as to how the suit was not maintainable in the present form. Issue No. 3 was accordingly decided in favour of the plaintiff. 19. Issue No. 4 was decided in favour of the plaintiff and against the defendants for want of evidence by the defendants. 20. Similarly, on issue No. 5, for want of evidence it was held that defendant failed to prove that the plaintiff was estopped by its conduct to file the present suit. 21. Similarly, issue No. 6 was also decided against the defendants holding that the suit was property valued for the purposes of court fee and jurisdiction. 22. On issue No. 7 it was held that no sanction of Advocate General was necessary as it was held that the provisions of Section 92 of the Code of Civil Procedure (for short the Code) were not applicable. 23. Issue No. 8 was also decided against the defendants. 24. On issue No. 9 learned trial court held, that Bikram Chander was in possession of ground floor of the building in question, during the life time of Lachhmi Devi. The rent note Ex. D. 7 was a unilateral document executed by Bikram Chand which did not bear the thumb impressions of Lachhmi Devi. Document was held to be not genuine, as there was no evidence, that the rent note was acted upon at any stage, nor it was incorporated in the Municipal record. Defendants No. 2 to 6 were not held to be the tenants and therefore, not entitled to protection under the East Punjab Urban Rent Restriction Act. In view of the findings referred to above, suit was dismissed. 25. Plaintiff/respondent preferred an appeal. 26. Learned lower appellate court on appreciation of evidence and in view of the fact that the attesting witnesses of the Will had proved the due execution of the Will, which was registered, the learned lower appellate court, reversed the finding o issue No. 1 and decided it in favour of the plaintiff/respondent. 25. Plaintiff/respondent preferred an appeal. 26. Learned lower appellate court on appreciation of evidence and in view of the fact that the attesting witnesses of the Will had proved the due execution of the Will, which was registered, the learned lower appellate court, reversed the finding o issue No. 1 and decided it in favour of the plaintiff/respondent. However, findings on issue No. 8-A were affirmed as the defendant No. 1/appeals neither filed cross appeal or cross objection nor invoked the provisions of Order 41 Rule 33, of the Code to challenge the findings on issue No. 8-A. 27. Finding on issue No. 9, was also reversed by the learned lower appellate court. This is the only issue involved in this appeal, therefore, findings recorded by the learned lower appellate court are being reproduced as recorded :- "11. It is disputed that defendants No. 2 to 6 are in occupation of different shops on the ground floor of the property left by Lakshmi Devi and they were indicted as tenants by defendant No. 1 after the demise of her husband Bikram Chand. The plaintiff has also sought relief that defendant No. 1 should be barred from realizing rent etc. From them and they be restrained from paying rents to her. The Plaintiff had also sought relief of ejectment of these Kishori Lal defendant No. 7 had filed ejectment application against these defendants which were dismissed shows that Kishori Lal had status of defendant No. 2 to 6 tenants and the plaintiff Board having drawn their title from the trust deed executed any Kishori Lal are bound by his admissions. It is well settled that ejectment of tenants is governed by Rent Restriction Act and their ejectment cannot be sought through civil suits. The prayer of the plaintiff Board for ejectment of these defendants cannot be entertained in this suit stands declined. The presence of defendant No. 1 in part of the property stands admitted and she is the widow of Bikram Chand who was occupying the portion of the building at lower floor where he was running soap factory. The execution of will does not in any manner affect the right of Prem Lata which she inherited from her husband being grand son of the testator. More so, on the basis of the rent note in his favour. Accordingly her possession on the disputed property cannot be disputed. The execution of will does not in any manner affect the right of Prem Lata which she inherited from her husband being grand son of the testator. More so, on the basis of the rent note in his favour. Accordingly her possession on the disputed property cannot be disputed. Rent note Ex. D.7 has also not found favour with the trial court and it is observed by the trial court under issue No. 9 that Bikram Chand had come to know that Lakshmi Devi was playing in the hands of Kishori Lal defendant No. 7 and he taking the benefit of his position executed Ex. D. 7 and there is no evidence that his rent note was acted upon at any stage and it was neither incorporated in the Municipal record. This finding of the trial court is obviously wrong on the face of it. Rent note Ex. D. 7 has fully been proved by the scribe and the attesting witnesses. DW 5 Vishwa Mittar is one of the attesting witnesses of this rent note and there is no challenge to his testimony. Similarly, Badri possession of Bikram Chand over the ground floor where he was running a factory in the will, copy of which is Ex. P. 4. I is specifically mentioned that her grand son was in possession of Multani Soap Factory which he is running. Which shows that even the testator admitted that Bikram Chand was in possession of an area out of that building where he was running a factory since long. As such the finding of the trial court that rent note Ex. D. 7 was a prepared document are not correct. It is also to be noted that vide this rent note. Bikram Chand had authority of inducting other tenants. However, he undertook to pay the expenditure etc of the Mandir Pujari and the Annual fairs out of the rents to be paid by him. Prem Lata had inherited the same right after his demise and she continued to be imposition of Bikram Chand. Accordingly the finding of the trial court under issue No. 9 are modified and it is held that the plaintiff Board was entitled to the realization of rent from defendants No. 2 to 6. However, defendant No. 1 still continues to be in occupation of the premises referred to as the factory out of the building in question. 12. Accordingly the finding of the trial court under issue No. 9 are modified and it is held that the plaintiff Board was entitled to the realization of rent from defendants No. 2 to 6. However, defendant No. 1 still continues to be in occupation of the premises referred to as the factory out of the building in question. 12. Keeping in view the facts detailed above and the findings given by this court, this appeal is accepted partly. Judgment and decree of the trial court is set aside. The suit of the plaintiff is decreed in terms stated in the finding under issue No. 9. Parties in terms stated in the findings under issue No. 9. Parties are left to bear their own costs." Consequently, appeal was partly decreed. 28 This appeal came up for hearin before this court on 28.5.2004. when the appeal was ordered to be dismissed, and cross-objections filed by the plaintiff/respondent were not pressed by the learned counsel for the respondent. Resultantly, cross objections were also dismissed, as not pressed. 29. The judgment and decree passed by this court was challenged by the appellant by way of Civil Appeal. 30. Honble Supreme Court accepted the appeal and set aside the judgment and decree, passed by this court and remanded back the case for its decision afresh. 31. Mr. B.R. Mahajan, learned counsel appearing on behalf of the appellant contended, that this appeal raises the following substantial questions of law of consideration by this court :- 1. Whether in view of the findings recorded by the learned lower appellate court upholding the validity of the rent note Ex. D. 7, the impugned part of the judgment and decree directing the payment of rent by the defendants to the plaintiff is without jurisdiction ? 2. Whether the suit as framed by the plaintiff/respondent restraining the tenants from receiving rent from sub-tenant or restraining sub tenant from paying the rent to the tenants who inducted them, maintainable in law ? 3. Whether the findings of the learned courts below on issue No. 3 is perverse and therefore, not sustainable ? 32. In support of the substantial questions of law referred to above, learned counsel for the appellant, referred to the findings of the learned lower appellate court on issue No. 9, to contend that once the rent note Ex. 3. Whether the findings of the learned courts below on issue No. 3 is perverse and therefore, not sustainable ? 32. In support of the substantial questions of law referred to above, learned counsel for the appellant, referred to the findings of the learned lower appellate court on issue No. 9, to contend that once the rent note Ex. D.7 was proved to be validly executed, the defendant/appellant was tenant over the premises in dispute. The decree directing the sub tenant to pay the rent to the plaintiff/respondent, therefore, on the face of it was perverse and not sustainable in law. It was also the contention of the learned counsel for the appellant that once the tenancy of the defendant/appellant was proved, then the suit for permanent injunction restraining the tenant from receiving the rent, from sub tenant was not competent nor the suit for possession from the tenant was competent as the civil court had no jurisdiction to entertain and try the suit. 33. It was also the contention of the learned counsel for the appellant that it was not be permissible for the plaintiff/respondent, now to challenge the finding on issue No. 9 or challenge the validity of the rent note in view of he fact that cross objections filed against the judgment and decree were got dismissed as not pressed. 34. In support of this contention learned counsel for the appellant placed on the judgment of Honble Supreme Court in the case of Banarsi and Ors. v. Ram Pal 2003(2) R.C.R.(Civil) 248 : AIR 2003 SC 1989, wherein Honble Supreme Court was pleased to lay down as under :- "11 In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same through that part of the decree which is in his favour he is entitled to support without any cross- objection. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not person aggrieved by the decree. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it his still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection. The amendment made in the text of sub-rule (1) read with the explanation newly inserted, gives him a right to take cross objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In pre- amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent. 12. The fact remains that to the extent to which the decree is against the respondent and the wishes to get rid of it he should have either filed an appeal of his own or taken cross-objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set aside or modified to his advantage. The law continues to remain so post- 1976 amendment. In a suit seeking specific performance of an agreement to sell governed by the provisions of the Specific Relief Act, 1963 the Court has a discretion to decree specific performance of the agreement. The plaintiff may also claim compensation under Section 21 or any other relief to which he may be entitled including the refund of money or deposit paid or made by him in case his claim for specific performance is refused. No compensation or any other relief including the relief or refund shall be granted by the Court unless it has been specifically claimed in the plaint by the plaintiff. No compensation or any other relief including the relief or refund shall be granted by the Court unless it has been specifically claimed in the plaint by the plaintiff. Certainly the relief of specific performance is a larger relief for the plaintiff and more onerous to the defendants compared with the relief for compensation or rend of money. The relief of compensation or refund of money is a relief smaller than the relief of specific performance. A plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or any other relief including the refund of any money has a right, to file an appeal against the original decree if the relief of specific performance is refused and other relief is granted. The plaintiff would be a person aggrieved by the decreer in spite of one of the alternative reliefs having been allowed to him is the smaller relief and the larger relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief or specific performance being denied to the plaintiff and instead a decree of smaller relief such as that of compensation or refund of money or any other relief being granted to the [plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent. If follows as a necessary corollary from the abovesaid statement of law that in an appeal filed by the defendant laying challenge to the relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent cannot seek the relief of specific performance of contract or modification of the impugned decree except by filing an appeal of his own or by taking cross objection. 13. We are, thereof, 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. 13. We are, thereof, 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 entirety 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 in not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute an out and out decree for specific performance of agreement to sell 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. 14. The learned counsel for the respondent forcefully argued that even in the absence of appeal preferred by the plaintiff or cross-objection taken by the plaintiff respondent the Appellate Court was not powerless to grant the decree which it has done in exercise of the power conferred by Rule 33 of Order 41 of the CPC. Rule 33 of Order 41 as also Rule 4 thereof, which have to be read necessarily together, are set out here under. ORDER 41 Appeals form Original Decrees "33. Power of Court of Appeal. Rule 33 of Order 41 as also Rule 4 thereof, which have to be read necessarily together, are set out here under. ORDER 41 Appeals form Original Decrees "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 order decree 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-objection and may, 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 fled against such decrees :- Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal in preferred has omitted or refused to make such order. Illustration A claims a sum of money as due to him from X or Y and in a suit against both obtains a decree against X, X, appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y. 4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all. - Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on ay ground common to all the plaintiff or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Courts may reverse or very the decree in favour of all the plaintiffs defendants, as the case may be." Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The above said provisions confer power of widest amplitude on the Appellate Court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject matter of appeals, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the Appellate Court may still direct passing of such decree or making of such order which ought to have been passed or made by the Court below in accordance with the finding of fact and law arrived at by the Court below and which it would have done had it been conscious of the error committed by it and noticed by the Appellate Court. With allowing the appeal or otherwise interfering with the decree or order appealed against the Appellate Court may pass or make such further or other, Decree or order, as the case would require being done, consistently with the findings arrived at by the Appellate Court. The subject sought to be achieved by conferment of such power on the Appellate Court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends or justice. Wider the power, higher the need for caution had care in discretion while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate Court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the Court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be grant in favour of the respondent by the Appellate Court exercising power under Rule 33 of Order 41. 35. Mr. I.K. Mehta, learned senior counsel appearing on behalf of the plaintiff/respondent, in view of the dismissal of the appeal. However, after the remand of the case cross objections also stood revived. The contention of the learned senior counsel was that even if for the sake of arguments it is taken that the cross objections stood dismissed as withdrawn, still this Court can invoke the provisions of Order 41 Rule 33 of the Code to do substantial justice, as technicalities of law cannot come in the way of advancing justice. 36. In support of this contention the learned senior counsel placed reliance on the judgment of Honble Supreme Court in the cases of Rajgopal (Dead) by L.Rs. v. Kishan Gopal and Anr., AIR 2003 SC 4319, and C. Cheriathan v. P. Narayanan Embranthiri 2009(1) R.C.R.(Civil) 708 : 2009(1) R.A.J. 394 : (2009) 2 SCC 673, Panna Lal v. State of Bombay and ors., AIR 1963 SC 1516. 37. Honble Supreme Court in Rajgopal (Dead) by L.Rs. v. Kishan Gopal and Anr., (supra) has laid down in para No. 7 as under :- "7. Mr. S.S. Javali, learned senior Advocate appearing in support of the appeals has raised three points. Firstly, it has been submitted that the High Court was not justified in observing that findings on the question of adoption recorded in favour of the plaintiffs by the first appellate Court before the order of remand by the High Court, was confirmed by that Court by dismissal of the cross-objection filed by the defendants against the same. Firstly, it has been submitted that the High Court was not justified in observing that findings on the question of adoption recorded in favour of the plaintiffs by the first appellate Court before the order of remand by the High Court, was confirmed by that Court by dismissal of the cross-objection filed by the defendants against the same. We have been taken through judgment of the High Court passed in the second appeal on the earlier occasion whereby the matter was remanded to the first appellate Court which clearly shows that as in the opinion of the High Court, the question of limitation was decided by the first appellate Court without taking into consideration certain factual matrix, it was a fit case for remitting the matter to it for deciding the entire matter afresh. As it was not a case of limited remand but an open remand, the High Court did not go into the merit of findings recorded by the first appellate Court on other questions, including adoption, and, after setting aside the judgment and decree of the first appellate Court, remanded the matter to it for deciding the appeal afresh, meaning thereby on all the points. So far as the cross objection is concerned, as the judgment and decree of the first appellate Court were set aside, the same was rendered infructuous and accordingly dismissed. In this view of the matter, we are of the opinion that the High Court committed an error of law in observing that the findings on the question of adoption recorded in favour of the plaintiffs by the first appellate court on the earlier occasions before remand by the High Court had been confirmed by it while passing the remand order for which there is absolutely no foundation and the same is contrary to the materials on the record." 38. Though prima facie in view of the judgment of Honble Supreme Court in the case of Banarsi and Ors. v. Ram Phal (supra), because of non filing of cross objections it is not open to the appellant to challenge the decree. However, in the interest of justice, and by invoking the provisions of Order 41 Rule 33 of the Code, the contentions raised by the learned senior counsel for the plaintiff/respondent are being considered. 39. Mr. v. Ram Phal (supra), because of non filing of cross objections it is not open to the appellant to challenge the decree. However, in the interest of justice, and by invoking the provisions of Order 41 Rule 33 of the Code, the contentions raised by the learned senior counsel for the plaintiff/respondent are being considered. 39. Mr. I.K. Mehtra, learned senior counsel for the plaintiff/respondent vehemently contended, that the substantial questions of law referred to above, deserve to be answered against the appellant, for the reasons, the Ex.D.7 cannot be treated to be a genuine rent note, because it is a unilateral document which was not acted upon, as the tenancy was not reflected in Municipal record. 40. It was also the contention of the learned counsel for the appellant, that learned lower appellate court, did not meet with the reasoning given by the learned trial court to reject the rent note Ex. D-7, while reversing the judgment on issue No. 9. 41. However, on consideration, I find no force in the contentions raised by the learned senior counsel for the plaintiff/respondent. 42. The authenticity of Ex. D-7, cannot be doubted for the simple reason that in the Will Ex. P-4, it was clearly mentioned that the property in dispute was in possession of Bikram Chand, where he was doing commercial activity. 43. Furthermore, it was the case of the plaintiff itself, that the property in dispute was on rent for commercial purposes. Though in the written statement specific plea was taken, that the property was on rent with Bikram Chand. In the replication, plaintiff failed to disclose, as to who were the tenants other than Bikram Chand. 44. It may further be noticed that Ex. D-7, was duly proved by examining the attesting witnesses, and scribe of the rent note. 45. Though an attempt was made to get out of pleadings in para No. 2, by stating that the averments were vague as it was not mentioned who the tenant was but this plea is not available to the plaintiff, as the plaintiff cannot be permitted to say that the pleadings, which are the basis appreciation of evidence. 45. Though an attempt was made to get out of pleadings in para No. 2, by stating that the averments were vague as it was not mentioned who the tenant was but this plea is not available to the plaintiff, as the plaintiff cannot be permitted to say that the pleadings, which are the basis appreciation of evidence. Admission made in para No. 2 of the plaint, coupled with the fact that rent note was duly proved by examining the scribe and the attesting witnesses coupled with the fact, that Bikram Chand was admitted to be in possession of the property, findings of the learned lower appellate court that rent note Ex. D-7 stood duly proved, cannot be faulted with. 46. Once the rent note Ex. D-7 is upheld, then contention raised by the learned counsel for the appellant deserves to be accepted, as rent note Ex. D-7 permitted the subletting of premises by the tenant. 47. In that event defendants No. 2 to 6 could not be said to be trespasser, as they were admittedly inducted by defendant No. 1 i.e. the predecessor in interest of Prem Lata i.e. Bikram Chand, and they were tenants under him. 48. The suit therefore, directing sub tenant not to pay the rent to the tenant, or restraining the tenant to recover the rent in violation of rent note was not competent. 49. It is father held, that as the rent note was duly proved, the status of defendant No. 1 was that of statutory tenant. Therefore, suit as framed for possession, was not competent before the civil court, as the civil court has no jurisdiction to order eviction of tenant from the premises, nor the impugned part of the judgment and decree directing defendants No. 2 to 6 pay rent to the plaintiff /respondent/appellant. 50. For the reasons stated, substantial questions of law raised are answered in favour of the defendant/appellant. 51. Consequently, the appeal is allowed. The judgment and decree, passed by the learned courts below, is set aside and suit filed by the plaintiff/respondent is ordered to be dismissed, but with no order as to costs.