Construction of hat land agreement adjusted profit shares after acquisition, while Order 41 Rule 33 could not be used without cross-objection.

Order 41 Rule 33 CPC was explained as wide but not available to a respondent, without appeal or cross-objection, to attack a finding in a way that would undermine the decree under challenge. The agreement governing the hat lands was construed as a whole, and the original half-share arrangement was treated as having rested on substantially equal acreage of the two tarafs. Because part of the land had been acquired and the instrument did not provide for that contingency, the profit shares were adjusted to reflect the land remaining in the hat rather than preserve the original equal division. The stated result was a 2/5ths share for the plaintiffs and 3/5ths for the defendants.

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Issues: (i) Whether a respondent, without filing an appeal or cross-objection, could invoke Order 41 Rule 33 of the Code of Civil Procedure to assail a finding forming the basis of the decree under challenge. (ii) Whether, on a true construction of the agreement governing the hat lands, the plaintiffs were entitled to continue with a half share in the profits after part of their taraf had gone out of the hat by acquisition, or only to a share proportionate to the land remaining in the hat.

Issue (i): Whether a respondent, without filing an appeal or cross-objection, could invoke Order 41 Rule 33 of the Code of Civil Procedure to assail a finding forming the basis of the decree under challenge.

Analysis: Order 41 Rule 33 was held to be wide, but not available to a respondent for attacking a finding in a manner that would destroy, in whole or in part, the decree obtained by the appellant, when no appeal or cross-objection had been filed by the respondent. The rule was treated as operating where appellate interference is required to adjust relief after modification of the decree at the instance of the appellant, not as a device for a respondent to undermine the foundation of the decree while seeking to preserve it.

Conclusion: The respondents were not entitled, without cross-objection or appeal, to challenge the finding that the agreement was binding.

Issue (ii): Whether, on a true construction of the agreement governing the hat lands, the plaintiffs were entitled to continue with a half share in the profits after part of their taraf had gone out of the hat by acquisition, or only to a share proportionate to the land remaining in the hat.

Analysis: The agreement was construed as a whole. Its recitals and operative clauses showed that the half-and-half division of profits had been fixed because the lands of the two tarafs included in the hat were then substantially equal in area. The document made no express provision for the contingency of acquisition or loss of part of the hat lands. In that situation, the intention gathered from the instrument required the original equal division to yield to the altered acreage remaining in the hat, so that the shares would correspond to the respective areas still represented in the hat after acquisition. That construction also avoided an unreasonable result under which the plaintiffs would retain a half share of the profits while also taking the entire benefit of compensation for acquired land.

Conclusion: The plaintiffs were entitled only to a 2/5ths share and the defendants to the remaining 3/5ths share in the profits of the hat.

Final Conclusion: The decree was affirmed in substance with modification as to the proportion of shares, and the appeal failed.

Ratio Decidendi: An appellate court will construe the governing instrument as a whole and, where the original basis of an equal division of profits has been altered by acquisition of part of the subject land, the contractual shares will be adjusted in proportion to the land remaining unless the instrument provides otherwise; a respondent cannot use Order 41 Rule 33 to attack the foundation of the decree without appeal or cross-objection.

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