Facts: The appellant, M/s. Shri Tirthankar Co., filed a suit for possession of land admeasuring 688.50 sq. ft. from CTS No. 185. The Trial Court dismissed the suit and declared the defendants (Adyaprasad Hingoo Mishra and others) owners by adverse possession in respect of 170 sq. yards. During the appeal, the Court Receiver measured the area in the defendants' possession, finding it to be 38 sq. metres (409 sq. ft.).
Procedural Posture: This is a First Appeal (No. 945 of 1994) before the High Court of Judicature at Bombay, challenging the judgment and decree of the Bombay City Civil Court. The appellant, not pressing the appeal on merits, sought modification of the decree to align with the Court Receiver's report and the long-standing status quo order.
Issue: Whether the High Court, in its appellate jurisdiction, can modify the decree of the Trial Court to reflect the area in the defendants' possession as determined by the Court Receiver's report, especially when the appellant does not object to the defendants being declared owners by adverse possession to that limited extent, and a status quo order has been in place for a long time.
Holding: Yes, the High Court can modify the decree. The First Appeal is partly allowed, and the Trial Court's decree is modified to declare the defendants owners by adverse possession only in respect of 38 sq. metres (409 sq. ft.) as per the Court Receiver's report.
Reasoning: The Court relied on Order XLI Rules 32 and 33 of the Code of Civil Procedure and the Supreme Court's decision in Chandi Prasad v. Jagdish Prasad, holding that it has the power to vary or modify the decree in appellate jurisdiction. Given the appellant's statement, the long-standing status quo order, and the Court Receiver's report, the Court found it just to modify the decree to reflect the actual area in the defendants' possession through adverse possession. The Court stated, "this Court is of the view that the ends of justice would be met by accepting the said statement and modifying the impugned decree accordingly".