The appellate court's power to modify a decree in favor of a non-appealing party under Order 41, Rule 33, Civil Procedure Code, should be exercised sparingly and only in exceptional circumstances.

Das, J.

1. The main question for decision in this second appeal is if the Court of appeal below was justified under the provisions of Order 41, Rule 83, Civil P. C., in modifying a part of the decree passed by the Court of first instance, on an appeal by the defendant-appellant, but without any appeal or cross-objection having been preferred by the plaintiffs-respondents against that part of the decree which was against them.

2. The facts relevant to the aforesaid question are the following. The plaintiffs-respondents brought a suit for a declaration of title and recovery of possession in respect of 14 kathas and 17 dhurs of land comprised in plot No. 390 situated in village Banuchapra. They alleged that the fruit a of some trees on the land were settled with the defendant-appellant for five years. After the expiry of the period of the lease in 1939, the plaintiffs-respondents got back possession. It was further alleged that there were some structures on the land, namely, a pacca house, a hut, a latrine and a nad. According to the plaintiffs-respondents they constructed the aforesaid structures except the nad, which was made by the appellant with the permission of the respondents. In 1943, the appellant again wanted to take settlement of the fruits, but the respondents refused. This led to a proceeding under Sec.144, Criminal P, C., as a result of which the respondents were dispossessed by the appellant on 15th September 1944. The case of the appellant was that he had taken settlement of the land in batai from the father of plaintiff-respondent 1 in the year 1928. The appellant alleged that by reason of the said settlement and his continued possession since then, he had acquired a right of occupancy in the land. It was alleged by the appellant that he constructed the pacca house, the hut, the latrine and the nad. The latrine and the nad were alleged to have been constructed some 8 or 9 years ago but the other structures were alleged to have been constructed more than 12 years ago. It may be stated here that no question of adverse possession arose in the case because the appellant himself admitted that the structures were constructed with the permission of the respondents. The questions which were considered and decided by the Courts below were (i) whether the story of batai settlement in 1928, set up by the present appellant, was true; (2) whether the appellant had acquired any right of occupancy as an under-raiyat under the provisions of Sec. 48A, Bihar Tenancy Act, and (3) whether the structures in question were built and constructed by the appellant or the respondents. The first two questions were answered against the present appellant, and the third in his favour. The Court of first instance held that there was no settlement of the land, and the appellant was a trespasser in respect of the land, but a licensee or tenant at will in respect of the structures, he having made those structures with the permission of the respondents for temporary occupation. On these findings, the first Court that is, the learned Munsif passed a decree in favour of the plaintiff-respondents with regard to the land, but ground (found?) that the respondents were not entitled to recover possession of the land on which the structures stood without asking the appellant to quit the structures or remove them. In other words, the learned Munsif passed a modified decree in favour of the respondents giving them possession of the land other than the land on which the structures stood, as also mesne profits, etc. An appeal was preferred by the present appellant, who was defendant in the action, against that part of the decree of the learned Munsif which allowed possession of the land minus the structures. This appeal was heard by the learned Subordinate Judge of Motihari. He affirmed the three main findings of the learned Munsif but he held that the learned Munsif was wrong in thinking that a notice to quit or a demand was necessary before the respo