JUDGMENT : RAVINDRA KUMAR AGRAWAL, J. 1. The present second appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the plaintiff against the impugned judgment and decree dated 12.09.2016 passed by learned Additional District Judge Pendra Road, District Bilaspur in Civil Appeal No. 18-A/2015, whereby the first appeal filed by the plaintiff though has been dismissed, however, the judgment and decree passed by learned trial Court has also been set aside. 2. The present second appeal has been admitted on 22.10.2024 on the following substantial question of law: “Whether first appellate Court exceeded its jurisdiction by setting aside the judgment and decree passed in favor of plaintiff whereas that part was not challenged by plaintiff by filing appeal and no cross-appeal was filed by defendants? ” 3. The plaintiff had filed civil suit against the defendants before the learned trial Court for declaration of his title over half share of the suit land total area 2.818 hectare of 20 different khasra numbers situated at village Parasi, Patwari Halka No. 5, Tahsil Marwahi, District Bilaspur, declaring the sale deed dated 20.04.2010, 17.06.2011 and 30.12.2011 are null and void and also for declaring the order passed by Tahsildar Marwahi dated 15.06.2007 and order passed by SDO, Revenue, Pendra Road dated 30.04.2011 are null and void. 4. The plaintiff has pleaded in her plaint that the suit land was originally belongs to late Manmohan, the plaintiff is the daughter of Manmohan and defendant No.1 Radha bai (since deceased). After death of Manmohan, the suit land was inherited by the plaintiff as well as defendant No.1 Radha bai. When the plaintiff came to know that defendant No.1 Radha bai is trying to sale the excess land on 13.04.2010, she filed a civil suit that her mother is trying to alienate property and she is not entitled to alienate the same without there being any proper partition, however, during pendency of the suit her mother Radha bai had sold the suit land Khasra No. 1729/1 area 0.30 acre and Khasra No. 1731/2 area 0.16 to the defendant No. 4 through registered sale deed dated 20.04.2010. Further through registered sale deed dated 17.06.2011 sold the Khasra No. 1021/2 area 0.04 acre, Khasra No. 1021/3 area 0.27 acre and Khasra No. 1266 area 1.59 acre, total 1.90 acre and further sold the land of Khasra No. 1500/1 area 1.10 acre to defendant No.3 through registered sale deed dated 30.12.2011. On 19.05.2007, the Tahsildar Marwahi had passed an order with respect to the partition of the holding and the suit land Khasra No. 1500/1 area 01.10 acre comes in the share the plaintiff and the defendant No.1 Radha bai was not competent to alienate the said land to anyone. Yet she has executed the sale deed the said land. The sale deeds were executed by the defendant No.1 Radha bai was executed with fraudulent intention and to deprive the plaintiff from her property and she is entitled for half share of the property along with the defendant No.1. She also made an objection before the registration office, Marwahi but the sale deed have got registered in the name of prospective purchasers during the pendency of the suit and, therefore, by way of amendment she inserted the relief clause in the plaint for declaring these sale deeds as null and void. 5. The defendant No.1 contested the claim of the plaintiff and denied the plaint averments and pleaded in her written statement that the plaintiff is residing at her matrimonial house and the entire property of late Manmohan is inherited by her and she alienated the part of the property from her own title. She had challenged order dated 15.06.2007 passed by Tahsildar before the Sub Divisional Officer, Pendra Road but her appeal has been dismissed on 30.04.2011. The holding have already been separated, therefore, there is no question of possession over the land of the plaintiff that her land have been possessed by the defendant. There is no cause of action arose in favour of the plaintiff and her suit is liable to be dismissed. 6. The other defendant Nos.3 to 4 have also contested the suit and submit that after verifying the revenue records they have purchased the land from the defendant No.1 Radha bai which was recorded in her name at that time and came under the possession of the same. 6. The other defendant Nos.3 to 4 have also contested the suit and submit that after verifying the revenue records they have purchased the land from the defendant No.1 Radha bai which was recorded in her name at that time and came under the possession of the same. No relief can be granted in favour of the plaintiff with respect to declaring the said sale deeds as null and void and they also claimed for dismissal of the suit of the plaintiff. 7. On the basis of the pleadings made by learned counsel for the parties, the learned trial Court has framed the following issues: 8. The plaintiff has examined herself as PW-1, Chaitman PW-2, Domhu PW-3, and Shiv Prasad PW-4, and relied upon the documents Ex.P/1 to Ex.P/4 which are the document of revenue records and objection raised before the registration office, Marwahi. The defendants have examined Santoshi DW-1, Namekaran DW-2 and relied upon the document Ex.D/1 which is the sale deed dated 20.04.2010. 9. The defendant No.1 Radha bai has not examined herself, however, she examined her witness Lal Singh DW-3, and relied upon the document Ex.D/2 and Ex.D/3 which are the documents of revenue records and Ex.D/4 which is the order passed by SDO, Pendra Road. 10. After appreciation of oral as well as documentary evidence led by the parties, the learned trial Court comes to the conclusion that the suit lands total area 2.818 hectare of 20 different khasra numbers was originally belongs to late Manmohan. The property belongs to late Manmohan was inherited by the plaintiff Parwati and defendant No.1 Radha bai. Both of them have equal share over the property of late Manmohan, therefore, the defendant No.1 Radha bai was not competent to alienate the property more than her share. Since she alienated the properties in three different sale deeds dated 20.04.2010, 17.06.2011 and 30.12.2011 and the earlier two sale deeds dated 20.04.2010 and 17.06.2011 was well within her competence to alienate the property which comes under her share, however, the subsequent sale deed dated 30.12.2011 was with respect to Khasra No. 1500/1, which was not owned by the defendant No.1, therefore, the learned trial Court has declared the sale deed dated 30.12.2011 as null and void. 11. 11. Since the learned trial Court has partly decreed the suit in favour of the plaintiff and the sale deeds dated 20.04.2010 and 17.06.2011 have not declared as null and void and the order dated 15.06.2007 passed by Tahsildar Marwahi and order dated 30.04.2011 passed by SDO, Pendra Road was not declared as null and void, the plaintiff has filed an appeal before the learned first appellate Court, however, against the impugned judgment and decree passed by learned trial Court the defendants have neither filed any appeal nor filed any cross-objection before the learned first appellate Court. The learned first appellate Court on an appeal filed by the plaintiff in whose favour the suit was partly decreed, set aside the judgment and decree passed by learned trial Court and the first appeal filed by the plaintiff has also been dismissed which give rise to the present second appeal which has been admitted on the substantial question of law which have been disclosed opening paragraph of this judgment. 12. learned counsel appearing for the appellant would submit that against the impugned judgment and decree dated 28.11.2014 passed by learned trial Court, the defendants have not challenged the same before any higher forum and have not filed any cross-objection in the appeal filed by the plaintiff before the learned first appellate Court. When the defendants have not challenged the finding as well as judgment and decree of the trial Court before the first appellate Court, in an appeal filed by the plaintiff, the judgment and decree passed by learned trial Court cannot be set aside and at the most learned appellate Court can only dismiss the appeal. Since the defendants have not challenged the finding recorded by the learned trial Court and passed a decree, the ultimate outcome of the decree cannot be set aside without any challenge by any of the parties. He would further submits that it is not in dispute in the present case that the plaintiff Parvati Bai is the daughter late Manmohan and defendant No.1 Radha Bai was her mother. The plaintiff and defendant No.1 are the legal heirs of late Manmohan the plaintiff and defendant No.1 were having equal share over the property left by late Manmohan as both of them are Class-I heir. The plaintiff and defendant No.1 are the legal heirs of late Manmohan the plaintiff and defendant No.1 were having equal share over the property left by late Manmohan as both of them are Class-I heir. The defendant No.1 was not competent to alienate the property excess to her share and the property which was not owned by her and the purchaser of the share of defendant No.1 only claimed partition but cannot claimed particular part of that property which they purchased from defendant No.1. He would further submits that the suit was filed by the plaintiff for declaration of her title over half share of the suit property and for other relief on 13.04.2010, whereas the sale deed was executed by the defendant No.1 in favour of the defendant No. 3 to 5 on 20.04.2010, i.e., during the pendency of the suit filed by the plaintiff, therefore, the defendant Nos. 3 to 5 were not the bonafide purchaser and they are bound by the principles of lis-pendens and to face the consequence of ultimate decree passed in the suit. It is also submitted by him that the declaration of half share of the suit property of total 2.818 hectare of land and declared the sale deed dated 30.12.2011 as null and void holding that for the said sale deed the defendant No.1 has alienated the land beyond her competence and that part of the decree has not been challenged by the defendants and said part of the decree attains its finality in favour of the plaintiffs. However, the said part of the decree has also been set aside by the learned first appellate Court while dismissing the first appeal filed by the plaintiff. It was filed for remaining claim which was not granted by the learned trial, therefore, the impugned judgment and decree is liable to be set aside. He would rely upon the judgment dated 14.10.2024 passed by Hon’ble Supreme Court in Civil Appeal No. 5919 of 2023 Shingara Singh vs. Daljit Singh & Another. 13. On the other hand, learned counsel appearing for the Respondent No.2 would opposes the submissions made by learned counsel for the appellant and submit that the judgment and decree passed by learned first appellate Court is strictly in accordance with law and there is no perversity. 13. On the other hand, learned counsel appearing for the Respondent No.2 would opposes the submissions made by learned counsel for the appellant and submit that the judgment and decree passed by learned first appellate Court is strictly in accordance with law and there is no perversity. He would submit that the plaintiff has admitted in her evidence that the suit property of late Manmohan was partitioned and the defendant No.1 had soled her property to the defendant Nos. 3 to 5. He would further submits that even though the defendants have not challenged the judgment and decree passed by learned trial Court, learned first appellate Court is having ample power under Order 41 Rule 33 of CPC to pass any decree and to make any order as the case may require even if the respondents may not have filed any appeal or objection, therefore, the appeal of the plaintiff does not have any merit and is liable to be dismissed. 14. I have heard learned counsel for the parties and perused the record of the trial Court. 15. So far as the setting aside the decree passed by learned trial Court without there being any cross appeal or cross objection is concerned, the power to pass any decree or order is given to the first appellate Court under Order 41 Rule 33 of CPC. The provisions of Order 41 Rule 33 of CPC is necessary to be noticed here which reads as under: 33. The provisions of Order 41 Rule 33 of CPC is necessary to be noticed here which reads as under: 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 other decree or order 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-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]: [Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.] 16. In the matter of Satya Prakash Dwivedi vs. Munna alias Chandrabhan Yadav and Others 2025 (5) SCC 525 , the Hon’ble Supreme Court has held in Para 12 and 13 that: “12. Upon a plain reading of Order 41 Rule 33 CPC, it reveals that the appellate court has the power to pass any decree or order which ought to have been passed, and to pass such other decree or order as the case may require. Notwithstanding that the appeal is against a part of the decree, this power may be exercised by the court in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. However, the said power must be exercised with caution or circumspection, particularly, in the absence of there being any cross-objection or appeal filed by the respondents. Such a power has to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of rights of the parties. 13. The aforesaid Rule does not confer unrestricted rights to interfere with decrees which are not assailed merely because the appellate court does not agree with the opinion of the court appealed from. Such a power has to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of rights of the parties. 13. The aforesaid Rule does not confer unrestricted rights to interfere with decrees which are not assailed merely because the appellate court does not agree with the opinion of the court appealed from. It is the duty of the appellate court to decide the appeal in accordance with law. The appellate court must apply its judicial mind to the evidence as a whole while deciding a case and a judgment on merits should not be lightly interfered with or reversed purely on technical grounds unless it has resulted in failure of justice.” 17. In the matter of Tummalla Atchaiah vs. Venka Narasingarao 1979 (1) SCC 166, the Hon’ble Supreme Court has held in Para 3 and 4 that: “3. The defendant filed an appeal in the High Court and a cross- objection was filed by the plaintiff. In the cross-objection the grounds taken were in regard to two matters only, namely, costs and mesne profits. No ground was taken in the cross-objection attacking the decree of the trial Court in regard to the payment of Rupees 13,000 and defendant's liability to deliver possession of the suit properties only on such payment being made. The High Court has, however, varied that portion of the decree of the trial Court by exercising its power under Order 41, Rule 33 of the Code of Civil Procedure. The High Court does not seem to be right when it says in its judgment that the cross-objection was confined to costs only. After having said so the High Court has granted decree for mesne profits also in exercise of its power under the same provision of law, that is, Order 41, Rule 33, C.P.C. The defendant's appeal was dismissed by the High Court but subject to this finding that a sum of Rs.7600 only had been paid by the defendant to the plaintiff. The High Court has found that the said amount of Rs.7,600 was not paid as a part of the consideration of the deed of assignment but under a different and collateral agreement executed by the defendant in favour of the plaintiff for a sum of Rs.20,000. There were many other complications of facts involved in this litigation. The High Court has found that the said amount of Rs.7,600 was not paid as a part of the consideration of the deed of assignment but under a different and collateral agreement executed by the defendant in favour of the plaintiff for a sum of Rs.20,000. There were many other complications of facts involved in this litigation. It is not necessary for us to give any details of them. 4. Having heard learned Counsel for the parties and having given our due consideration to the points involved in this appeal, we have thought it proper to dispose of this appeal by a short order. No detailed or rea-soned judgment by us, on the facts of this case, is called for.” 18. In the matter of Choudhary Sahu (Dead) by LRS. vs. State of Bihar 1982 (1) SCC 232, the Hon’ble Supreme Court has held in Para 10 to 14 that: 10. In the case cited above, there were two sets of defendants in the suit and in substance two decrees, though corelated, were passed. One of the decrees could stand apart from the other. One set of defendants were two deities. The suit was decreed against them. They did not go up in appeal nor did they take part in the proceedings either before the High Court or before the Supreme Court, although they were impleaded as respondents. The other set of defendants, Nirmala, sought to invoke the powers of the appellate court under Order 41, Rule 33 to pass a decree in favour of a party not appealing so as to give the latter a benefit which she had not claimed. In such a situation this Court observed: When a party allows a decree of the Court of first instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under Order 41, Rule 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed. Order 41, Rule 33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders. 11. Order 41, Rule 33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders. 11. Counsel for the State of Bihar, on the other hand, referred to Giani Ram v. Ramji Lal. While construing the provisions of Order 41, Rule 33, this Court observed: The expression "which ought to have been passed" means "what ought in law to have been passed". If the Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case may require. 12. The object of this Rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule i in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross- objection, it must be exercised with care and caution. The Rule does not confer an unres-tricted right to re-open decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from. 13. Ordinarily, the power conferred by this Rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this Rule the court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the law of limitation or the law of court fees etc. 14. In these appeals the Collector on the basis of the material placed before him allowed certain units to the various appellants. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under Order 41, Rule 33. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under Order 41, Rule 33. The Commis-sioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation.” 19. In the matter of Shingara Singh (Supra), the Hon’ble Supreme Court has held in Para-9 that: 9. Before proceeding to deal with the applicability of doctrine of lis pendens, it is significant to note that Issue no. 5 framed by the Trial Court was to the effect as to whether the agreement dated 17.08.1990 is a result of fraud and collusion, therefore, not binding on defendant no. 1. This issue was decided against the defendant. When the plaintiff preferred first appeal, the defendant did not move any cross-appeal or cross-objections, yet the first Appellate Court entered into this aspect of the matter to hold that the subject agreement was collusive between the plaintiff and defendant no. 1. This is not permissible in view of the law laid down by this Court in Banarsi vs. Ram Phal, (2003) 9 SCC 606 wherein this Court held thus in paras 10 & 11: 10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross- objection against a finding. The difference which has resulted we will shortly state. respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree, he must take cross- objection. The difference which has resulted we will shortly state. respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree, he must take cross- objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations: (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent. (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent. (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. 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 though that part of the decree which is in his favour he is entitled to support without taking 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 the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take 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. 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 the 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." 20. Considering the aforesaid law laid down by Hon’ble Supreme Court, when this Court examined the facts and circumstances of the case it is found that against the judgment and decree passed by learned trial Court in favour of the plaintiff declaring her entitled for half share of the suit land of 2.818 hectare and declared the sale deed dated 30.12.2011 as null and void, neither any appeal was filed by the defendant nor any cross-objection was filed in the appeal filed by the plaintiffs. The plaintiffs had challenged the judgment and decree passed by learned trial Court against the part of her claim i.e. declaration of sale deeds dated 20.04.2010 and 17.06.2011 as null and void, which was not granted by the learned trial Court in her favour, therefore, in absence of any challenge by the defendants to the judgment and decree passed by learned trial Court, it attains finality against them and the learned first appellate Court cannot set aside the said part of the decree which was not challenged by the defendants. 21. In the first appeal filed by the plaintiff before the learned trial Court, they should only confined their consideration upto the fact that whether the plaintiff is entitled for a decree for declaration of the two sale deeds dated 20.04.2010 and 17.06.2011 as null and void or not. It is the claim of the plaintiff herself that she is having half share over the suit land and the remaining half share belongs to her mother i.e. defendant No.1. The total suit land is of 2.818 hectare consists of various khasra numbers out of which 1.409 hectare land comes in the share of the plaintiff. It is the claim of the plaintiff herself that she is having half share over the suit land and the remaining half share belongs to her mother i.e. defendant No.1. The total suit land is of 2.818 hectare consists of various khasra numbers out of which 1.409 hectare land comes in the share of the plaintiff. The defendant No.1 showed 0.186 hectare to defendant No.4 through registered sale deed dated 06.04.2010, 0.768 hectare of land to defendant No.2 through registered sale deed dated 17.06.2011 and 0.445 hectare of land sold to defendant No.3 through registered sale deed dated 30.12.2011, the plaintiff had challenged that the partition affected between her and her mother in Revenue Case No. 70/A-27/2003-04 is illegal and be declared as void though the plaintiff had challenged proceeding of the said revenue case, however, she has not filed any document of that order and filed the xerox copy of the same. Considering the claim of the plaintiff and evidence produced by her, the learned trial Court has held that the plaintiff could not established any illegality or irregularity in passing of the order dated 15.06.2007 in Revenue Case No. 70/A-27/2003- 04 and could not established her claim. She also challenged the said order before the Sub Divisional Officer and in absence of any sufficient evidence the learned trial Court declared the said order dated 15.06.2007 passed in Revenue Case No. 70/A-27/2003-04 as illegal and since the plaintiff is the daughter of defendant No.1, it has been held that she is entitled for a decree of her half share over the suit property. The learned trial Court has further observed that the plaintiff could not rebut the fact of partition and the fact of partition was also not being denied by the defendant. The learned trial Court has further observed that the plaintiff could not rebut the fact of partition and the fact of partition was also not being denied by the defendant. The learned trial Court has further considered that the land of Khasra No. 1500/1 area 1.10 acre is not recorded in the name of Radha Bai which reflected from copy of revenue documents annexed with the sale deed dated 30.12.2011, therefore, she was not competent to sold that part of the land to the defendant No.3 through the sale deed dated 30.12.2011 and since the land of 1500/1 area 1.10 acre land is recorded in the name of plaintiff, the said land cannot be alienated by the defendant No.1 Radha Bai, therefore, the sale deed dated 30.12.2011 was declared as null and void and the said part of the decree was not challenged by the defendants. 22. The plaintiff has admitted in her evidence that there was a proceeding of partition initiated before the Tahsildar Marwahi, in which she raised her objection. In the partition proceeding the order of the partition was passed by Tahsildar. Her challenge to the partition order was dismissed by the Sub Divisional Officer. She admitted that the land which was obtained by her mother in partition she sold that land. 23. PW-2, Chaitman, PW-3 Domhu and PW-4 Shiv Prasad have also stated that there was a partition proceeding between the plaintiff and defendant No.1 Radha Bai and Radha bai sold her land which was obtained in partition. 24. DW-1, Santoshi has admitted that with respect to the suit properties there was a dispute pending between the plaintiff and defendant No.1. She could not tell the number of the land which she purchased by the transactions have been made by her husband. 25. DW-2 Namekaran has stated that the land purchased by Santoshi Bai was owned by Radha Bai which was of her share. 26. DW-3, Lal Singh has admitted that Manmohan has died on 10 - 15 years back and over the property of late Manmohan, his wife and daughter having right and title. He did not know as to the property of which khasra number come in the share of the plaintiff or defendant No.1. He did not know as to whether the land of Khasra No. 1500/1 is recorded in the name of Radha Bai or not. He did not know as to the property of which khasra number come in the share of the plaintiff or defendant No.1. He did not know as to whether the land of Khasra No. 1500/1 is recorded in the name of Radha Bai or not. He even did not know as to whether the said land of Khasra No. 1500/1 is obtained by Radha Bai in partition or not. The learned trial Court has also considered that Radha Bai was not owner of the property of Khasra No. 1500/1 area 1.10 acre, therefore, she was not having alienable title yet she executed the sale deed in favour of the defendant No.3 and the said sale deed was declared null and void by the learned trial Court. 27. The learned first appellate Court had considered on the merits of the case in favour of the defendants without there being any appeal filed by them. The pleadings of the parties and the evidence led by the parties have been considered by the learned first appellate Court and declined to grant relief to the plaintiff with respect to the land of Khasra No. 1500/1 area 1.10 acre holding that there is no sufficient pleading documentary evidence produced by the plaintiff and from the document Ex.P/6 the name of plaintiff is shown to be recoded as the owner of Khasra No. 1500/1 area 0.445 hectare which in the opinion of this Court cannot gone into the merits without there being any appeal filed by the defendants against the decree passed by learned trial Court. 28. Accordingly, the appeal filed by the appellant is allowed and the substantial question of law is answered affirmative that the first appellate Court has exceeded its jurisdiction in setting aside judgment and decree passed in favour of the plaintiff without there being any challenge by the defendants by way of any appeal or cross objection. 29. Accordingly, the judgment and and decree passed by learned first appellate Court is set aside and the judgment and decree passed by learned trial Court is restored. 30. A decree by drawn accordingly. 31. The parties to bear their own cost.