JUDGMENT : NARENDRA KUMAR VYAS, J. 1. The appellant has filed this Second Appeal under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 22-3-2018 (Annexure A/2) passed by the learned District Judge, Bemetara, District Bemetara in Civil Appeal No. 14-A/2017 by which learned First Appellate Court has partly allowed the appeal and modified the judgment and decree dated 17-5-2017 (Annexure A/1) passed by the learned Civil Judge, Class -1 Bemetara in Civil Suit No. 37-A/2014 (Annexure A/1), declared the plaintiff Hirmat Bai as legal heir of late Kejuram being daughter to the extent of 1/3rd share of the property. Learned First Appellate Court has also directed the Revenue Authority to divide the share of Hirmat Bai as per Order 20 Rule 18 read with Section 54 of the CPC. 2. For the sake of convenience, the parties would be referred to hereinafter as per their status shown in the suit before the trial Court. 3. This appeal has been admitted by this Court on 13-7-2018 on the following substantial questions of law:- “(i). Whether the lower Appellate Court has committed an illegality in assessing the share of the appellant Mahetarin Bai, without deciding her application filed under Order 1 Rule 10(2) of the Civil Procedure Code, 1908, and /or without providing any opportunity of hearing, is perverse?. (ii) Whether plaintiff’s suit as framed without impleading appellant Mahetarin Bai is maintainable by virtue of proviso to Order 1 Rule 9 of the CPC?”. 4. Brief Facts as per plaint averments are that; A. The plaintiff has filed a civil suit before the learned Civil Judge, Class-I, Bemetara for declaration of title and possession mainly contending that the plaintiff is the sole daughter of late Kejuram, therefore, being legal heir she is entitled to get property admeasuring 2.52 hectares of land situated at village Bhopsara, District Bemetara which was owned by her father Kejuram. It is also case of the plaintiff that when the plaintiff had gone to take possession of the suit property, it was revealed to her that the defendant No.1 Jiwanlal has illegally encroached the suit property. It is also pleaded that on the basis of the application submitted by defendant No.1 before the Tahsildar, Nawagarh for mutation, the said mutation has been done without following due procedure and without issuing notice to the plaintiff. It is also pleaded that on the basis of the application submitted by defendant No.1 before the Tahsildar, Nawagarh for mutation, the said mutation has been done without following due procedure and without issuing notice to the plaintiff. B. It has been further contended that respondent No.1 Jiwanlal is not son of Kejuram. It has also been stated that when Kejuram performed marriage with Mahetarin Bai by way of Choodi system/custom, at that time she was pregnant, as such he was not son of Kejuram and he is son of Gotilal, When the defendant has refused to vacate the possession of the suit property, then cause of action arose, therefore, she has filed a suit for possession, declaration of title and also recovery of possession from the defendant No. 1 from the suit property. 5. The defendant No. 1 has filed written statement denying the allegations made in the plaint mainly contending that the plaintiff Hirmat Bai is sole legal heir of late Kejuram who expired 12 years ago and he has handed over the suit property to him and accordingly his name was recorded in the revenue records. It is also denied that he has encroached the suit property illegally. It is also denied that the plaintiff is only daughter of Kejuram, Mahetarin Bai is legally wedded wife of Kejuram and from their wedlock he was born and rest of the averments have been denied and he prayed for dismissal of the suit. 6. Learned trial Court on the pleadings of the parties has framed as many as five issues on 13-8-2013. Issue No.1, 2 and 3 are relevant, therefore, they are extracted below: 1- D;k okfnuh e`r dstwjke dh ,d ek= larku gS\ 2- D;k okfnuh oknxzLr Hkwfe&edku dk ,d ek= Lokeh gS\ 3- D;k okfnuh oknxzLr Hkwfe&edku dk dCtk izkIr djus dh vf/kdkfj.kh gS\ 7. The plaintiff Hirmat Bai to substantiate her case has exhibited the order of revenue proceeding (Ex,.P/1), income certificate (ExP/2) and examined herself by way of an affidavit under Order 18 Rule 4 CPC. In examination-in-chief she has resisted the plaint averments and in the cross examination she has admitted that when her father was alive, she has not filed any case in this regard. She has also admitted that Jiwanlal is not son of Kejuram. In examination-in-chief she has resisted the plaint averments and in the cross examination she has admitted that when her father was alive, she has not filed any case in this regard. She has also admitted that Jiwanlal is not son of Kejuram. She has also stated that Gotilal was the father of Jiwanlal and she has produced the document in this regard but the same is not available on record. She has also admitted in the cross examination that Jiwanlal was born from the wedlock of Kejuram and Mahetarin Bai and the marriage of Mahetarin Bai and Kejuram was solemnized by way of Choodi custom. 8. One Kartikram was also examined before the trial Court as (PW/2) who has supported the case of the plaintiff wherein he has stated in examination-in-chief that there is Choodi system/custom prevailing in their community and when Mahetarin Bai performed marriage with Kejuram, at that time she was pregnant and immediately after her marriage with Kejuram in Choodi custom, within three months she gave birth to a child namely Jiwanlal and in fact Jiwanlal is not son of Kejuram. The said witness was not cross examined as evident from the order sheet dated 7-4-2015 and on that day the plaintiff had closed their evidence. Thereafter, the matter was fixed for defendant’s evidence. As such, this evidence is not required to be considered. 9. The defendant No.1 Jiwanlal examined himself by way of an affidavit as per Order 18 Rule 4 of CPC wherein this witness has reiterated the stand taken by him in the averments. The said witness was cross examined by the plaintiff wherein he has denied that when the marriage of Mahetarin Bai and Kejuram was solemnized in Choodi custom, at that time she was pregnant. 10. Mahetarin Bai was also examined before the trial Court as (DW/2) wherein she has supported the case of the defendant No.1 and she has stated that Kejuram during life time sold his 1 ½ acre of land and has given money to Hirmat Bai, as such plaintiff Hirmat Bai has no right over the suit property. The said witness was cross-examined wherein she has denied that when she performed marriage with Kejuram, at that time she was pregnant and she has also admitted that after marriage with Kejuram in Choodi custom, within three months Jiwanlal was born. The said witness was cross-examined wherein she has denied that when she performed marriage with Kejuram, at that time she was pregnant and she has also admitted that after marriage with Kejuram in Choodi custom, within three months Jiwanlal was born. She has also admitted that during life time Hirmat Bai used to visit Kejuram. 11. Learned trial Court on the basis of evidence and material on record has partly decreed the suit of the plaintiff vide judgment and decree dated 17-5-2017 and decided issue No.1 against the plaintiff and granted half of share to defendant No.1 and plaintiff. Learned trial Court while allowing the suit partly has also taken note of Section 8 of the Act, 1956 that after death of a Hindu male, the property will be given first to legal heirs of category in class 1 of the Schedule and as per Section 9 of the Act, 1956, list of Class 1 heirs among the heirs is specified in Schedule includes son, daughter, widow, mother and son and daughter of earlier died son and daughter. Accordingly, the plaintiff and the defendant are Class-1 legal heirs and Mahetarin Bai was legal wedded wife of Kejuram, but there was no pleading with regard to granting share to her and being widow she has not claimed any suit property and the learned trial Court has also recorded its finding that the marriage of Mahetarin Bai and Kejuram was solemnized as per Choodi system/custom which was valid marriage, therefore, she is a widow, but, no half share of the suit property was granted to Mahetarin Bai, but plaintiff and defendant were granted half of share of suit property. 12. Being aggrieved with the aforesaid order, the defendant No.1 Jiwanlal has preferred an appeal contending that the mother of the appellant Mahetarin Bai is surviving, but she has not been made party to the case whereas Mahetarin Bai has also right over the suit property, therefore, defendant No.1 is not entitled to hold the property, but being a mother Mahetarin Bai is entitled to get the property and Mahetarin Bai has been examined before the trial Court, despite this clinching evidence, the learned trial Court has committed illegality in granting half of share to the plaintiff and prayed for setting aside the judgment and decree. 13. 13. During pendency of the appeal, Mahetarin Bai moved an application under Order 1 Rule 10 (2) read with Section 151 CPC before First Appellate Court for impleading herself as party to the case mainly contending that she is legal wedded wife of Kejuram, therefore, she has also inherited the title over the suit property and in-fact she is utilizing the suit property, therefore, it has been prayed for impleading herself as necessary party. The record of the first appellate Court would show that earlier the appeal was fixed before the learned First Appellate Court for arguments on the said application and thereafter on 21-3-2018 the First Appellate Court heard the final arguments and vide order dated 22-3- 2018 the judgment and decree was passed allowing the application filed under Order 1 Rule 10(2) CPC and has granted 1/3rd share to the plaintiff Hirmat Bai and also held that Mahetarin Bai is also entitled to inherit the suit property to the extent of 1/3. 14. Learned First Appellate Court while allowing the application filed under Order 1 Rule 10(2) CPC has taken into fact that 13 years have already lapsed, if the objector is impleaded as party to the suit and the matter is remitted back to the trial Court, then it will again take more time, therefore, the application was allowed and she was arrayed as defendant No. 3 to the appeal. Thereafter, the first appellate Court has partly modified the judgment and decree granting 1/3rd share to plaintiff Hirmat Bai. Being aggrieved with the aforesaid judgment and decree, Mahetarin Bai has preferred this second appeal. 15. This second appeal was admitted by this Court on the substantial questions of law as mentioned in para 2 of the aforesaid judgment. 16. Learned counsel for the appellant would submit that the learned trial Court should have dismissed the suit itself as legal heir of Kejurm was not arrayed as party to the case whereas Mahetarin Bai was necessary party to the case and without impleading her, the trial Court proceeded with the matter and the judgment and decree which has been passed ought to have been set aside by the trial Court as right of Mahetarin Bai cannot be recorded without recording her evidence. Therefore, he would pray that the substantial questions of law framed by this Court deserve to be answered in favour of the appellant. Therefore, he would pray that the substantial questions of law framed by this Court deserve to be answered in favour of the appellant. It has also been contended that the learned trial Court has not considered the provisions of Order 1 Rule 10(2) read with Section 151 of CPC in its true perspective and prayed for setting aside the judgment and decree. 17. Per contra, learned counsel for the defendant No. 2 supporting the impugned judgment and decree would submit that though the suit was filed without impleading Mahetarin Bai, but the learned First Appellate Court has rightly exercised its power in allowing the application which cannot be found faulty or against the law and would pray that as per Hindu Succession Act, as amended in the year 2005, the daughter being coparcener is entitled to get the suit property and would pray for dismissal of the appeal. 18. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records of both the Courts below with utmost circumspection. Discussion and finding on substantial question of law No.1. 19. To appreciate the substantial question of law, it is expedient for this Court to go through the provisions of Order 41 Rule 33 of CPC which reads as under. “Order 41 Rule 33: 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 made such order. 20. 20. From perusal of the provisions of Order 41 Rule 33 of CPC, it is quite vivid that the learned First Appellate Court shall have all the powers 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: 21. The power and jurisdiction of the appellate Court as per Order 41 Rule 33 of CPC has come up for consideration before the Hon’ble Supreme Court in the case of K. Muthu Swami Gounder Vs. N. Palaniappa , reported in 1998 (7) SCC 327 wherein the Hon’ble Supreme Court has held in para 12 which reads as under: “12. Order XLI Rule 33 enables the appellate court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though (i) the appeal is as to part only of the decree; and (ii) such party or parties may not have filed art appeal. The necessary condition for exercising the power under the Rule is that the parties to the proceeding are before the court and the question raised properly arises one of the judgment of the lower court and in that event the appellate court could consider any objection to any part of the order or decree of the court and set it right. We are fortified in this view by the decision of this Court in AIR 1988 S.C. 54 . No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order XLI Rule 33 C.P.C. and each case must depend upon its own facts. We are fortified in this view by the decision of this Court in AIR 1988 S.C. 54 . No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order XLI Rule 33 C.P.C. and each case must depend upon its own facts. The rule enables the appellate court to pass any order/decree which ought to have been passed. The general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings, ordinarily the appellate court must not vary Or reverse a decree/order in favour of a party who has not preferred any appeal and this rule holds good notwithstanding Order XLI Rule 33 C.P.C.. However, in exceptional cases the rule enables the appellate court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. The power though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeals. We are not impressed with argument that the finding as to the nature of Exhibit A6 the Security Deed has become final as the finding operates as res judicata. When the entire matter was still in appeal and any part of the finding could be varied by the appellate court it is idle to contend that the same had become final. So also when the matter had not attained finality and still in dispute the principle of res judicata could not arise. In some case finding recorded at an earlier stage will operate a res judicata if such finding had become final. In the present case that was not the position. The High Court had to find out the rights of the parties arising out of the deed under Exhibit A6 and necessarily had to give a finding one way or the other to determine the status of the appellant as puisne mortgagee. In the present case that was not the position. The High Court had to find out the rights of the parties arising out of the deed under Exhibit A6 and necessarily had to give a finding one way or the other to determine the status of the appellant as puisne mortgagee. In doing so the High Court decided that the document Exhibit A6 did not amount to a charge and therefore, the appellant did hot derive any rights of puisne mortgagee thereunder, The High Court having so held proceeded further to upset the decree as otherwise if the decree for redemption remained in the face of the finding of non-existence of a charge with the consequent right as puisne mortgagee, the position would be anomalous if not absurd. And so, the High Court in the special circumstances arising in this case exercised the discretion vested in it under Order XLI Rule 33 C.P.C. It cannot be said that such a question was not germane to the determination of the matter in issue. To defend the finding in his favour the respondent could contend that the appellant could not claim to be a puisne mortgagee as no charge arises from Ex. A6, In that event it cannot be said that there is any inconsistency in the stand of respondent. Therefore, we find that there is no merit in the contention of the appellant and the same is rejected”. 22. Hon’ble the Supreme Court in the case of Chandramohan Ramchandra Patil and another vs. Bapu Koyappa Patil (dead) through LRs and others, reported in (2003) 3 SCC 552 has held in para 13 as under: “13. This argument has no merit. In a suit for partition, plaintiff and defendants are parties of equal status. If the right of partition has been recognised and upheld by the court, merely because only some of the plaintiffs had appealed and not all, the court was not powerless. It could invoke provisions of Order 41 of Rule 4 read with Order 41 of Rule 33 of Code of Civil Procedure. The object of Order 41 of Rule 4 is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. It could invoke provisions of Order 41 of Rule 4 read with Order 41 of Rule 33 of Code of Civil Procedure. The object of Order 41 of Rule 4 is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant”. 23. Ho’ble Supreme Court in the case of Ranjana Prakash and others vs. Divisional Manager and another , reported in (2011) 14 SCC 639 has held in para 7 which reads as under. “7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may” 24. Be that as it may” 24. Learned First Appellate Court considering the evidence and material on record has recorded its finding that she being legal wedded wife of Kejuram falls within category of Class-1 legal heir and in her absence her right inherit the suit property to the extent of her share is adversely affected, therefore, the First Appellate Court has rightly allowed the application filed under Order 1 Rule 10 (2) read with Section 151 of the CPC and thereafter exercised its power conferred under Order 41 Rule 33 of CPC which is necessary looking to the facts and circumstances of the case which cannot be found faulty or transgressing its jurisdiction conferred upon it under Order 41 Rule 33 of CPC. The learned first appellate Court has passed the judgment and decree by recording its finding that the marriage between Mahetarin Bai and Kejuram was solemnized by way of Choodi custom prevailing in the State which is well recognized custom of the marriage and also there was no dispute in view of admission made by the plaintiff before the trial Court in her evidence, between the parties with regard to status of Mahetarin Bai as wife of late Kejuram. As such, she ought to have been made party to the case, therefore, she is also entitled to get share in the property inherited by her husband and in her absence the partition of the suit property cannot be done, therefore, it cannot be said that the learned First Appellate Court has committed illegality in assessing the share of appellant Maheterin Bai by exercising its power conferred under Order 41 Rule 33 of CPC to do complete justice between the parties. 25. Considering all the facts of law, material and evidence and also considering the law laid down by the Hon’ble Supreme Court in the aforesaid case laws, I am of the view that the substantial question of law No.1 deserves to be answered against the appellant Mahetarin Bai. Discussion and finding on substantial question of law No.2 26. 25. Considering all the facts of law, material and evidence and also considering the law laid down by the Hon’ble Supreme Court in the aforesaid case laws, I am of the view that the substantial question of law No.1 deserves to be answered against the appellant Mahetarin Bai. Discussion and finding on substantial question of law No.2 26. So far as finding with regard to substantial question of law No. 2 whether plaintiff’s suit as framed without impleading appellant Mahetarin Bai is maintainable by virtue of proviso to Order 1 Rule 9 of the CPC is concerned, to appreciate this substantial question of law, it is expedient for this Court to go through the provisions of Order 1 Rule 9 of CPC which reads as under: “ 9. Mis-joinder and non-joinder. No suit shall be defeated by reason of the mis-joinder or non- joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: Provided that nothing in this rule shall apply to non-joinder of a necessary party.” 27. From perusal of the aforesaid provisions, it is quite vivid that Mahetarin Bai was necessary party being legal wedded wife of late Kejuram, therefore, she is also entitled to inherit the suit property of her husband as per Section 8 of the Hindu Succession Act, 1956 . As per the Schedule-1 of Hindu Succession Act, 9156, the widow being Class-1 legal heir, therefore, she was necessary party to the case, still the trial has been continued but the said irregularity have been rectified by the learned first appellate Court by allowing the application under Order 1 Rule 10 of CPC filed by the present appellant Mahetarin Bai. As such, the defect in the suit has been cured by the first appellate Court and also considering the fact the appeal is continuation of the proceedings of the suit there is no such illegality which is so fatal and on this count the suit can be dismissed. 28. As such, the defect in the suit has been cured by the first appellate Court and also considering the fact the appeal is continuation of the proceedings of the suit there is no such illegality which is so fatal and on this count the suit can be dismissed. 28. The learned first appellate Court while allowing the application to implead Mahetarin Bai as party to the appeal has taken note of the fact that the suit was pending for the last 13–14 years to decide the share of the plaintiff and defendant, has allowed the same by impleading her as necessary party to the appeal and thereafter decided the share of each of them which is in accordance with provisions of Section 8 of Schedule 1 of the Hindu Succession Act, 1956 , as such, the learned first appellate Court has cured the defect, therefore, the substantial question of law No. 2 framed by this Court deserves to be answered against defendant and the appellant as the share of the appellant Mahetarin Bai is already protected. 29. Accordingly, the second appeal being devoid of merit deserves to be dismissed and it is hereby dismissed. 30. The interim order passed by this Court on 13-7-2018 is vacated. No order as to costs. 31. Decree be drawn up accordingly.