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 respo