JUDGMENT : Thomas P. Joseph, J. The scope and application of Rules 22 and 33 of Order 41 of the Code of Civil Procedure (for short, "the Code") with other incidental questions arises for a decision in the Second Appeal and First Appeals. 2. Respondents 1 to 3, claiming to be the owners in possession of plaint A and B schedules sued the appellant for a decree for mandatory injunction and recovery of damages. They claimed title and possession of plaint A and B schedules as per Exts.A1 to A3. On the eastern side of plaint A and B schedules there is a road. It is said that without the consent of respondents, appellant trespassed into the eastern portion of plaint A and B schedules and widened the road annexing a portion of plaint A and B schedules. It is further alleged that for the said purpose trees standing in that portion of plaint A and B schedules were cut and removed causing loss of Rs.8,600/- to the respondents. Appellant resisted the suit denying the claim of respondents regarding title and possession and contended that the road was in existence even earlier. It denied the allegation of respondents that it committed mischief in the suit property. 3. The Advocate Commissioner inspected the suit property with the assistance of a Surveyor and submitted Exts.C1 and C1(a), report and plan. The Advocate Commissioner and Surveyor were examined as P.Ws.2 and 3. Evidence of P.Ws.2 and 3 and Exts.C1 and C1(a) revealed that as per measurement with reference to the documents of title, plaint A schedule extended to 60 cents (as against 61 cents referred to in the document of title) and that plaint B schedule extended to 72 cents (as against 67 cents referred to in Ext.A3). Trial court, relying on Exts.A1 to A3, C1 and C1(a) granted a decree for mandatory injunction in favour of respondents directing the appellant to restore the disputed portion of plaint A and B schedules to its original position. For want of evidence relief of damages was disallowed. Appellant challenged the decree for mandatory injunction in A.S. No.120 of 2003 in the Sub Court, Cherthala. Respondents neither filed an appeal nor a cross objection in A.S. No.120 of 2003 challenging that part of decree against them (disallowing damages). First appellate court confirmed finding of the trial court as regards mandatory injunction. Appellant challenged the decree for mandatory injunction in A.S. No.120 of 2003 in the Sub Court, Cherthala. Respondents neither filed an appeal nor a cross objection in A.S. No.120 of 2003 challenging that part of decree against them (disallowing damages). First appellate court confirmed finding of the trial court as regards mandatory injunction. It reversed finding of the trial court that there is no evidence regarding the claim for damages and granted a decree in favour of respondents for recovery of Rs.8,600/-. Judgment and decree of the first appellate court are under challenge in the Second Appeal on the following substantial questions of law. (i) When description of plaint schedule properties were not amended and as per the description the extent of the trespassed area does not form part of the plaint schedule property, whether a decree for mandatory injunction could be granted? (ii) Whether the first appellate court is competent to grant a decree for damages in favour of the respondents in the absence of a cross objection? 4. While the appeal was pending in the first appellate court respondents filed I.A. No.1784 of 2008 to restrain the appellant from tarring the disputed portion of the road. First appellate court passed order on that application on 10.12.2008 restraining the appellant tarring the road in dispute. Alleging that the order dated 10.12.2008 on I.A. No.1784 of 2008 was violated and that further encroaching into the plaint A and B schedules the road was formed, respondents filed I.A. No.30 of 2009 under Rule 2A of Order 39 of the Code to take action against the appellant for wilful disobeyance of the order of injunction and I.A. No.31 of 2009 to direct the appellant restore the property to its original position. First appellate court by order dated 13.12.2010 allowed I.A. Nos.30 and 31 of 2009. F.A.O. No.18 of 2011 arises from the order dated 13.12.2010 on I.A. No.30 of 2009 while F.A.O. No.31 of 2011 arises from the order dated 13.12.2010 on I.A. No.31 of 2009. 5. Learned counsel for appellant contended that based on Exts.C1 and C1(a) trial court was not correct in granting a decree for mandatory injunction and the first appellate court confirming the same. 5. Learned counsel for appellant contended that based on Exts.C1 and C1(a) trial court was not correct in granting a decree for mandatory injunction and the first appellate court confirming the same. It is contended that though in the plaint, A schedule is described as 61 cents and B schedule as 67 cents, no amendment was made to the plaint schedule after Ext.C1(a) which stated extent of plaint A schedule as 60 cents and that of plaint B schedule as 72 cents. It is also contended that in so far as extent of B schedule stated in the plaint is only 67 cents, respondents could not claim title and possession over the excess land which the Advocate Commissioner has noted in Exts.C1 and C1(a). 6. It is further contended that at any rate first appellate court was not right in reversing the judgment and decree of trial court refusing to grant damages to the respondents. It is contended by the learned counsel that since that part of the decree was against the respondents, they ought to have filed either an independent appeal or a cross objection in the appeal preferred by the appellant challenging that part of the decree disallowing damages and without doing that, respondents could not have, in the appeal filed by the appellant challenged correctness of the decree of trial court refusing to grant damages. It is contended that first appellate court lacked authority to reverse the decree of trial court refusing to grant damages for the reasons above stated. 7. So far as F.A.O. Nos.18 and 31 of 2011 are concerned, learned counsel for appellant argued that though the Advocate Commissioner inspected the suit property in the appeal, assistance of a Surveyor was not obtained and even going by the reports submitted by the Advocate Commissioner in the appeal it is clear that he was not able to identify the disputed way so that it could be said that there is violation of the order dated 10.12.2008 on I.A. No.1784 of 2008. It is pointed out by the learned counsel that while for a decision in the suit preponderance of probability is sufficient, when it comes to a prosecution under Rule 2A of Order 39 of the Code, there must be evidence beyond reasonable doubt. Reliance is placed on the decision in Gyan Chand Jain v. XIIIth Addl. Dist. & Sessions Judge (AIR 1998 Allahabad 228). Reliance is placed on the decision in Gyan Chand Jain v. XIIIth Addl. Dist. & Sessions Judge (AIR 1998 Allahabad 228). 8. Learned counsel for respondents contended that no substantial question of law arises for a decision as regards the decree for mandatory injunction is concerned and that notwithstanding that this Court has framed a substantial question of law in that regard, it is open to the respondents to contend that no such substantial question of law is involved, invoking Section 100(5) of the Code. It is contended by learned counsel that courts below on a proper appreciation of evidence came to the conclusion that respondents are entitled to the decree for mandatory injunction and it does not involve any substantial question of law. 9. So far as decree of the first appellate court granting damages to the respondents is concerned, learned counsel contended that though no appeal or cross objection had been preferred by the respondents against that part of the decree disallowing damages, first appellate court has power to grant that relief to the respondents in the ends of justice . According to the learned counsel, Rule 33 of Order 41 of the Code empowered the first appellate court to pass any decree or order which the trial court was expected to do having regard to the facts, circumstances and evidence of the case and that to ensure justice to the respondents it was necessary that first appellate court exercised that power. The grant of decree for damages, therefore is justified. Various decisions on the point are also cited which I will advert to, later. 10. So far as order dated 13.12.2010 on I.A. Nos.30 and 31 of 2009 (in A.S. No.120 of 2003) under challenge in F.A.O. Nos.18 and 31 of 2011 is concerned, it is contended by learned counsel that reports submitted by the Advocate Commissioner in the appeal and the evidence of third respondent (as P.W.1) are sufficient to show that when the appeal was pending appellant, in gross violation of the order dated 10.12.2008 on I.A. No.1784 of 2008 has further trespassed into the suit property and converted a further portion of the suit property into a road and the said portion was tarred. Learned counsel submitted that it is the responsibility, nay, the duty of the court to ensure that its orders are respected by the parties and the appellant being a local authority, should not have taken law into its hand and violated the order. No leniency in the matter is required and called for. 11. On the substantial question of law framed as regards the decree for mandatory injunction granted by the trial court and confirmed by the first appellate court, I referred to the arguments of learned counsel on both sides. True, in the plaint, A and B schedules are described as 61 and 67 cents, respectively while the measurement made by P.W2 with the assistance of P.W3, the Surveyor revealed that extent of plaint A and B schedules as 60 and 72 cents respectively. It is also true that pursuant to the report of the Advocate Commissioner plaint schedule was not amended. But it is not as if the court is powerless to grant relief notwithstanding that the plaint schedule was not amended. For, Exts.C1 and C1(a) form part of record of the case. Going by Exts.C1 and C1(a) and the plaint schedule it is not disputed that there is no discrepancy regarding the boundaries of plaint A and B schedules. The extent found by the Advocate Commissioner in Exts.C1 and C1(a) lies within the boundaries mentioned in the plaint schedule which tallied with the boundaries in Exts.A2 and A3. I am inclined to think that the boundaries noted by the Advocate Commissioner and which tallied with the boundaries in Exts.A2 and A3 must prevail. Respondents are entitled to get relief with respect to the extent of plaint A and B schedules as reported by the Advocate Commissioner and lying within the boundaries stated. 12. So far as allegation and finding regarding trespass is concerned, it is seen from Ext.C1(a) that encroaching into the plaint A and B schedules to a total extent of 3.34 cents, the road was formed. Based on the evidence trial court found that there is trespass into plaint A and B schedules. Admittedly there was no surrender of land by the respondents, nor any acquisition of the trespassed area. If that be so, respondents are entitled to the decree for mandatory injunction as rightly found by the trial court and confirmed by the first appellate court. Admittedly there was no surrender of land by the respondents, nor any acquisition of the trespassed area. If that be so, respondents are entitled to the decree for mandatory injunction as rightly found by the trial court and confirmed by the first appellate court. On that matter, no substantial question of law is involved. 13. What remained in the Second Appeal is whether first appellate court was right in reversing the decree of trial court refusing to grant damages to the respondents? Trial court referred to the report of the Advocate Commissioner that at the time of inspection he was not able to find remnants of any tree allegedly cut and removed from the trespassed portion of plaint A and B schedules. In the absence of evidence trial court refused to grant decree for damages to the respondents. 14. Neither did the respondents challenge that part of the decree against them by way of an independent appeal nor by way of cross objection in the appeal preferred by the appellant as provided under Rule 22 of Order 41 of the Code. Under Rule 22 a respondent though he may not have appealed from any part of the decree may not only support the decree but may also state that a 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 month from the date of service on him or his pleader of notice of the day fixed for hearing of the appeal. Respondents could have challenged that part of the decree against them by way of a cross objection but they did not. 15. Respondents are trying to take shelter under Rule 33 of Order 41 of the Code. The said provision empowers the appellate court to pass any decree and make any order which ought to have been passed or made by the trial court and to pass or to make such further or other decree or order as the case may require. Respondents are trying to take shelter under Rule 33 of Order 41 of the Code. The said provision empowers the appellate court to pass any decree and make any order which ought to have been passed or made by the trial court and to pass or to make such further or other decree or order as the case may require. That power may be exercised by the appellate court notwithstanding that the appeal is as to a 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. 16. Learned counsel for respondents has invited my attention to the decisions in State of Kerala v. Padmavathi ( 1983 KLT 17 ), Spl. Dy. Collector, L.A. Railways v. Peddinti Ramanuja Chary (2003 AIHC 3759), Barasai and Others v. Ram Phal ([2003] 9 SCC 606), C. Cheriathan v. P. Narayanan Embranthiri ([2009] 2 SCC 673) and Pralhad v. State of Maharashtra ([2010] 10 SCC 458). 17. In Spl. Dy. Collector, L.A. Railways v. Peddinti Ramanuja Chary the Division Bench of Andhra Pradesh High Court has dealt with the scope of Rules 22 and 33 of Order 41 of the Code and held that the said provisions are not mutually exclusive. Those provisions are closely related with each other and if objection cannot be urged under Rule 22 against a co- respondent, Rule 33 could take over and come to the rescue of the objector. In that case question considered was whether a respondent could prefer a cross objection against a co- respondent? Having regard to the facts and circumstances the Division Bench held that if Rule 22 cannot be invoked, the court is not powerless having regard to the facts and circumstances to ensure that justice is done to the parties and in that situation the court could invoke Rule 33 of the Code against the co- respondent. 18. Having regard to the facts and circumstances the Division Bench held that if Rule 22 cannot be invoked, the court is not powerless having regard to the facts and circumstances to ensure that justice is done to the parties and in that situation the court could invoke Rule 33 of the Code against the co- respondent. 18. In State of Kerala v. Padmavathi (in paragraph 10) this Court referred to Rule 33 of Order 41 of the Code and held: ".....provisions contained in 41, Rule 33, no doubt is widely worded; but it is meant to meet only exceptional circumstances in furtherance of justice where the court finds that the decree to be granted in an appeal could not be granted without interfering with the decision of the trial court in so far as it relates to the parties who had not appealed against it. Such cases by their very nature would only be a few and far between. The object of 41, Rule 33 is to avoid contrary and inconsistent decisions on the same questions in the same suit. It is wrong to assume that the rule confers on the court an unrestricted right to reopen decrees which had become final merely because the appellate court does not agree with the reasoning given in the judgment appealed against. Ordinarily the power conferred by this rule would be confined to those cases where as a result of the interference in favour of the appellant, further interference by the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience". 19. In Barasai and Others v. Ram Phal it is held that Rule 33 has to be read along with Rule 4 of Order 41 and that Rule 4 seeks to achieve one of the several objectives to be achieved by Rule 33 by avoiding a situation of conflicting decrees coming into existence in the same suit. It is further held that the above said provisions confer power of the 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 the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. It is further held that the object 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 of justice. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion 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 the party. 20. In C. Cheriathan v. P. Narayanan Embranthiri (in paragraph 26) it is held on the facts and circumstances of that case that it was legally permissible for the appellant to support the decree passed in his favour by attacking the finding of the first appellate court which was made against him and that Rule 33 of Order 41 of the Code was available to him. In Pralhad v. State of Maharashtra, (in paragraph 18) it is held that the expression (in Rule 33) that "order ought to have been made" would obviously mean an order which justice of the case requires to be made as is clear from the expression used in the said rule by saying "the court may pass such further or other order as the case may require" and that the expression "case" would mean the justice of the case. In paragraph 20, reference is made to the decision in Benarsi v. Ram Phal - [2003] 9 SCC 606). 21. In paragraph 20, reference is made to the decision in Benarsi v. Ram Phal - [2003] 9 SCC 606). 21. In Nirmala Bala v. Balaji Chand, ( AIR 1965 SC 1874 ) it is held (per majority) that Rule 33 (of Order 41) is expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the court to adjust the rights of parties. 22. The Supreme Court in Choudhary Sabu v. State of Bihar ( AIR 1982 SC 98 ) and this Court in Raman Ittiyathi v. Pappy Bhaskaran (AIR 1990 Kerala 112) have taken the view that Rule 33 of Order 41 is primarily intended to confer power on the appellate court to do justice by granting relief to a party who has not appealed when refusing to do so makes inconsistent, contrary or unworkable decrees. In Giani Ram and Others v. Ramjilal and Others ([1969] 1 SCC 813) power of the appellate court under Rule 33 of Order 41 of the Code is dealt with and it is held that the expression "which ought to have been passed" occurring in Rule 33 means " which ought in law to have been passed" and if the appellate court is of the view that any decree which ought in law to have been passed, but was in the fact not passed by the subordinate court, appellate court may pass or make such further or other decree or order as the justice of the case may require. 23. A survey of the above decisions makes it clear that Rule 33 of Order 41 of the Code is to be read along with Rule 4 of Order 41 and that it is intended to save situations where, in order to grant relief in favour of the appellant, it becomes necessary to interfere with the decision of the trial court which is not appealed against and it is necessary to pass decree or order which the trial court could have passed or made in order to avoid contrary and inconsistent decisions on the same question. Rule 33 empowers the appellate court to pass such decrees or make such orders as the trial court could pass or make to avoid inconsistency or inequality in reliefs granted to similarly placed parties and avoid unworkable decree or order coming into existence. Power under Rule 33 is not to be exercised to unsettle decrees which have been left behind untouched and which, a party by not appealing, has permitted to become final. Rule 33 is not a provision intended to circumvent the failure of a respondent in not filing an appeal or cross objection to challenge that part of the decree which went against him. 24. This is not a case where the first appellate court decided any issue in favour of the appellant and in that situation to avoid conflicting, unworkable or inequitable decisions on the same issue it become necessary for the first appellate court to interfere under Rule 33 of Order 41. Challenge before the first appellate court was only to that part of the decree which went against the appellant, i.e., the decree for mandatory injunction. The decree for mandatory injunction was not dependent on the prayer for recovery of damages sought by the respondents. Respondents if aggrieved by that part of the decree refusing damages ought to have filed an independent appeal or cross objection in the appeal filed by the appellant, but neither was done. Thus respondents allowed the decree disallowing damages to them to become final by their inaction. In that situation first appellate court was patently in error in interfering with the decree of the trial court refusing to grant damages in favour of the respondents. 25. Even on facts first appellate court could not have reversed the decree of trial court refusing to award damages. Trial court observed that there is no acceptable evidence to show that any damage was caused to the respondents. Trial court referred to the report of the Advocate Commissioner that he could not find remnants of any tree allegedly cut and removed from the trespassed area. It was for want of reliable evidence that the trial court refused to grant a decree to the respondents for recovery of damages. Trial court referred to the report of the Advocate Commissioner that he could not find remnants of any tree allegedly cut and removed from the trespassed area. It was for want of reliable evidence that the trial court refused to grant a decree to the respondents for recovery of damages. There was nothing before the first appellate court to reverse that finding even if it is held, by any stretch of imagination that first appellate court could have granted a decree in favour of respondents for damages. In that view of the matter also, I am inclined to think that first appellate court was not correct, legally or factually in reversing decree of the trial court refusing to grant damages to the respondents. That part of the decree of first appellate court has to go. 26. The substantial questions of law framed in the Second Appeal are answered accordingly. 27. Then, to the challenge to the order dated 13.12.2010 on I.A. Nos.30 and 31 of 2009 - those applications were filed by the respondents in the first appeal to prosecute the appellant under Rule 2A of Order 39 of the Code and direct the appellant to restore the further trespassed area to its original position. Exts.C1 and C1(a) are the report and plan obtained in the trial court through the Advocate Commissioner with the assistance of a Surveyor. I have been taken through the reports submitted by the Advocate Commissioner in A.S. No.120 of 2003. True, the Advocate Commissioner referred to some tarring work done by or at the instance of the appellant when he inspected the property on the second occasion. It is revealed from the reports that the Advocate Commissioner (in the first appeal) identified the suit property as pointed out by the third respondent. Commissioner reported that to say whether there was further trespass beyond the red shaded portion marked by the Surveyor in Ext.C1(a), the assistance of a Surveyor is required. Admittedly, the assistance of a Surveyor was not obtained in the appeal. What is available is only the evidence of P.W1 examined in the first appellate court about the alleged trespass on 16.12.2008 (order on I.A. No.1784 of 2008 was passed 10.12.2008). 28. So far as a decision on an application for prosecution under Rule 2A of Order 39 of the Code is concerned, that cannot depend on mere preponderance of probabilities. What is available is only the evidence of P.W1 examined in the first appellate court about the alleged trespass on 16.12.2008 (order on I.A. No.1784 of 2008 was passed 10.12.2008). 28. So far as a decision on an application for prosecution under Rule 2A of Order 39 of the Code is concerned, that cannot depend on mere preponderance of probabilities. For, it involves penal consequences. There must be reliable and acceptable evidence regarding the alleged violation of the order. Having regard to the factual situation emerging in the case I am unable to say that there is reliable and acceptable evidence to show that appellant violated the order dated 10.12.2008. Viewed in that line, the order dated 13.12.2010 on I.A. Nos.30 and 31 of 2009 cannot be sustained. 29. The result of my above discussion is that the order dated 13.12.2010 on I.A. No.30 and 31 of 2009 of the first appellate court are liable to be set aside. 30. I have interfered with the order on I.A. Nos.30 and 31 of 2009 (in A.S. No.120 of 2003) for want of sufficient evidence to prove the alleged trespass and violation of the order of injunction passed on I.A. No.1784 of 2008. But that will not stand in the way of respondents seeking appropriate relief of restoration in execution of the decree for mandatory injunction already granted, in the executing court with respect to the alleged further trespassed area as well since the alleged further trespass if any was committed subsequent to the trial court passing a decree for mandatory injunction. Resultantly Second Appeal and F.A.Os are disposed of as follows: (I) R.S.A. No.674 of 2011 is allowed in part as under: (a) Judgment and decree of learned Sub Judge, Cherthala in A.S. No.120 of 2003 to the extent it reversed judgment and decree of the trial court refusing to grant damages to the respondents, and granted a decree in that regard in favour of respondents are set aside. (b) Costs awarded by the learned Sub Judge in A.S. No.120 of 2003 to the extent it related to the decree for recovery of damages is set aside. (c) R.S.A. No.674 of 2011 to the extent it concerned judgment and decree in A.S. No.120 of 2003 confirming the decree for mandatory injunction in O.S. No.665 of 2000 of the court of court of learned Principal Munsiff, Cherthala will stand dismissed. (c) R.S.A. No.674 of 2011 to the extent it concerned judgment and decree in A.S. No.120 of 2003 confirming the decree for mandatory injunction in O.S. No.665 of 2000 of the court of court of learned Principal Munsiff, Cherthala will stand dismissed. (d) It is directed that if there is any further encroachment into any portion of the suit property (as may be identified in the executing court) after the trial court passed the decree, it will be open to the respondents to seek restoration of that portion of the suit property as well along with that part of the suit property regarding which trial court has granted a decree for mandatory injunction. (II) F.A.O. No.18 of 2011 is allowed. The order dated 13.12.2010 passed by the learned Sub Judge, Cherthala on I.A. No.30 of 2009 in A.S. No.120 of 2003 is set aside. I.A. No.30 of 2009 will stand dismissed. (III) F.A.O. No.31 of 2011 is allowed. Order dated 13.12.2010 passed by the learned Sub Judge, Cherthala on I.A. No.31 of 2009 in A.S. No.120 of 2003 is set aside. I.A No.31 of 2009 will stand dismissed. (IV) Parties are directed to suffer their respective costs in these appeals. All pending Interlocutory Applications will stand dismissed.