PHUYIAN(deceased) through her LRs Umed Ram and Ors. vs KRISHAN KUMAR (deceased ) through his LRs Vivek Gupta and Ors.

Headnote:(A) Code of Civil Procedure, 1908 - Order 41 Rule 22 and Rule 33 - Power of Appellate Court to modify decree - Respondent cannot challenge a decree or seek larger relief without filing a cross-appeal or cross-objection - Power under Rule 33 to do complete justice must be exercised with caution and cannot be used to reverse a decree to the advantage of a party who permitted it to achieve finality, particularly if it makes the appellant's position worse than it would have been without the appeal. (Paras 15-22)

(B) Code of Civil Procedure, 1908 - Section 100 - Scope of Second Appeal - Jurisdiction confined to substantial questions of law - High Court cannot act as a third court on facts or re-appreciate evidence unless findings are perverse or contrary to law. (Paras 24-27)

Facts of the case:
The plaintiff filed a suit for permanent prohibitory injunction and alternative possession of land, claiming ownership through inheritance. The trial court decreed the suit for permanent prohibitory injunction. Upon appeal by the defendants, the first appellate court found the plaintiff was not in possession but held the plaintiff's title. Consequently, the appellate court modified the decree to grant possession to the plaintiff, although the plaintiff had not filed any cross-appeal or cross-objection.

Findings of Court:
The first appellate court erred in granting a decree for possession in the absence of a cross-objection or appeal. The position of a person filing an appeal cannot be made worse than it would have been had they not filed the appeal.

Issues: Whether the first appellate court was justified in granting a decree for possession in a suit for permanent prohibitory injunction against the defendant without a cross-appeal or cross-objection.

Ratio Decidendi: A respondent can support a decree but cannot attack it without filing cross-objections under Order 41 Rule 22. While Order 41 Rule 33 allows the court to pass a decree to do complete justice, it cannot be used to grant a relief that the party failed to claim through an appeal or cross-objection, especially when such relief is not inseparably connected to the part of the decree under appeal.

Result: Appeal allowed, judgment and decree of the Appellate Court set aside, and the plaintiff's suit dismissed.

Legal Category Hierarchy

1. Suit for permanent prohibitory injunction and alternative possession — Trial court decreed injunction — First appellate court granted possession. (Para 2 , 3 , 4 , 7 , 8 )

2. Appellant: appellate court cannot worsen appellant's position without cross-objection. Respondent: Order 41 Rule 33 empowers grant of possession. (Para 12 , 13 )

3. Appeal allowed — Appellate decree set aside — Plaintiff's suit dismissed. (Para 30 )

4. In the absence of a cross-appeal or cross-objection, can the first appellate court grant a decree for possession in favor of the respondent?

No. The position of the appellant cannot be made worse by his own appeal. The respondent must file cross-objection to challenge part of the decree adverse to him. (Para 16 , 17 , 22 , 23 , 29 )

5. What are the limitations on the appellate court's power under Order 41 Rule 33 CPC?

Power under Rule 33 is to do complete justice but cannot be exercised to prejudice a non-party, revive a lost claim, or reverse a final decree to advantage of a party who permitted finality. (Para 15 , 18 , 20 )

6. Can the High Court in a second appeal under Section 100 CPC reappreciate evidence and reverse findings of fact?

No, unless the findings are perverse, based on no evidence, or contrary to settled law. The High Court cannot act as a third court of fact. (Para 24 , 25 , 26 , 27 , 28 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

2026:HHC:19291

RSA No. 419 of 2002

Reserved on: 23.3.2026

Date of Decision: 22.5.2026

Phuyian (deceased) through LRs f...Appellants Versus Krishan Kumar (deceased) through LRs & ors.

t ...Respondents

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹Yes.

For the Appellants : Mr Bimal Gupta, Senior Advocate, with Mr Trigun Singh Negi, Advocate.

Appellant No. 1(b) stated to have expired.

For Respondent No.1(a) : Mr Rahul Gathania, Advocate.

For Respondent No.1(b) : Mr Sudhir Thakur, Senior Advocate, with Mr Somesh Sharma, Advocate.

Rakesh Kainthla, Judge

1. The present appeal is directed against the judgment and decree dated 13.7.2001, passed by learned Additional District Judge, Solan, H.P. (learned Appellate Court), vide which the judgment and decree dated 22.11.2000, passed by learned Sub Judge First Class Kandaghat, District Solan, H.P. (learned Trial Court) were partly modified. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit for seeking a permanent prohibitory injunction restraining the defendants from interfering in the suit land described in para-1 of the plaint in any manner whatsoever. A decree for possession was also sought in the alternative in case the plaintiff was dispossessed forcibly, or he was not found in possession. It was asserted that Puran Chand was the owner in possession of the suit land. He had died on 13.12.1997. Plaintiff is the only son and the legal heir of Puran Chand. The defendants or their predecessor had no concern with the suit land. Mathu, the predecessor-in-interest of the defendants, got the revenue entries incorporated in his favour in connivance with the revenue staff. He started interfering with the plaintiff’s possession based on the revenue entry. Hence, the suit was filed to seek the relief mentioned above.

3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability and cause of action, plaintiff being estopped from filing the suit by his act, conduct and acquiescence, and the suit having not been properly valued for Court fees and jurisdiction. The contents of the plaint were denied on the merits. It was specifically denied that Puran Chand was in possession of the suit land. It was asseruted that Puran Chand had inducted Mathu Ram as a tenanto over the suit land, and Mathu Ram became the owner afteCr the commencement of the H.P. Tenancy and Land Reforms Act . The revenue entries were rightly recorded in favour of Mathu Ram. Therefore, it was prayed that the suit be dismissed.

4. No replication was filed.

5. The following issues were framed by the learned Trial Court on 3.12.1999: -

1. Whether Sh. Puran Chand, Adv., was the owner-in-possession of the suit land, as alleged? OPP.

2. Whether Puran Chand has expired on 13.12.1997 at Chandigarh? OPP.

3. If Issue No.2 is proved in afÏrmative, whether the plaintiff is the only son of Shri Puran Chand and is now the owner-in-possession of the suit land? OPP.

4. Whether the change of the entries by the Settlement OfÏcer is illegal, void, wrong and against the factual position existing on the spot qua the suit land? OPP.

5. Whether the suit is not maintainable in the. present form? OPD.

6. Whether the plaintiff is estopped from filing the suit by his own acts, conduct, and acquiescence? OPD.

7. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD.

8. Whether late Sh. Mathu Ram had been inducted as a tenant by the predecessor-in-interest of the plaintiff? OPD.

9. Whether, after the passing of the H.P. Tenancy and Land Reforms Act , the father of the defendants has become owner-in-possession of the suit land? OPD.

10. Relief.

6. The parties were called upon to produce the evidence,

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2026 Supreme(Online)(HP) 2963

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
HON'BLE MR. JUSTICE RAKESH KAINTHLA
PHUYIAN(deceased) through her LRs Umed Ram and Ors. – Appellant
Versus
KRISHAN KUMAR (deceased ) through his LRs Vivek Gupta and Ors. – Respondent
RSA/419/2002

An appellate court cannot grant larger relief (such as possession) to a respondent in a suit for injunction if the respondent failed to file a cross-appeal or cross-objection, as it would prejudice the appellant and violate Order 41 Rule 22 and 33 of the CPC.

Legal Category Hierarchy

Table of Contents

4. In the absence of a cross-appeal or cross-objection, can the first appellate court grant a decree for possession in favor of the respondent?

5. What are the limitations on the appellate court's power under Order 41 Rule 33 CPC?

6. Can the High Court in a second appeal under Section 100 CPC reappreciate evidence and reverse findings of fact?

2026 Supreme(Online)(HP) 2963

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLAHON'BLE MR. JUSTICE RAKESH KAINTHLAPHUYIAN(deceased) through her LRs Umed Ram and Ors. – AppellantVersusKRISHAN KUMAR (deceased ) through his LRs Vivek Gupta and Ors. – RespondentRSA/419/2002

An appellate court cannot grant larger relief (such as possession) to a respondent in a suit for injunction if the respondent failed to file a cross-appeal or cross-objection, as it would prejudice the appellant and violate Order 41 Rule 22 and 33 of the CPC.

Legal Category Hierarchy

Table of Contents

4. In the absence of a cross-appeal or cross-objection, can the first appellate court grant a decree for possession in favor of the respondent?

5. What are the limitations on the appellate court's power under Order 41 Rule 33 CPC?

6. Can the High Court in a second appeal under Section 100 CPC reappreciate evidence and reverse findings of fact?

Cases Referred (7)

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
HON'BLE MR. JUSTICE RAKESH KAINTHLA
PHUYIAN(deceased) through her LRs Umed Ram and Ors. – Appellant
Versus
KRISHAN KUMAR (deceased ) through his LRs Vivek Gupta and Ors. – Respondent
RSA/419/2002