A. H. JOSHI, J.

( 1 ) THIS second appeal is filed by unsuccessful defendants No. 3 to 8 who had succeeded in the Trial Court, however, failed in the first appellate Court.

( 2 ) THE plaintiff Dattatraya had filed a suit for recovery of possession of the suit house. According to the plaintiff: defendant No. 1 Tukaram was a tenant of monthly rent of Rs. 1. 50 paise leased out by the plaintiffs brother Govindrao who was formerly Karta of the family. The defendant No. 1 Tukaram is the real uncle of the defendants No. 2 to 5, 7 and 8. Defendant No. 6 is the widow of Vithalrao, the deceased brother of the defendant No. 1. The defendant No. 1 was staying in the suit property by raising a grass hut, later on constructed a Tin shed on it, with whom later on vithalrao the brother of the defendant No. 1 also joined him. The defendant No. 1 got alternate premises. However, Vithalrao continued to stay in the premises though the defendant No. 1 continued to pay the rent. Vithalrao died about 10 years prior to the date of suit. Since the suit plot came to be allotted to the plaintiffs share in family partition, the defendant No. 1 became plaintiffs tenant. The plaintiff thereafter, terminated the tenancy of the defendant No. 1 by issuing notice dated 30-7-80 which is received by the defendant No. 1 and the tenancy was terminated with effect from 31-8-80. The defendant No. 1 was called upon to deliver the possession on 1-9-1980 by removing his super-structure and was called to pay the compensation @ Rs. 5/- per day in the event of failure to vacate the premises. The defendants No. 2 to 8 who were occupying were illegally in possession as the tenancy of the defendant No. 1 had come to an end.

( 3 ) THE defendant No. 1 replied the notice and expressed that though he wanted to vacate, however, due to occupation of the other defendants who were unwilling he could not do so. The plaintiff, therefore, filed the suit. In the suit, the defendants No. 1 and 2 did stick up to their stand that they were intending and willing to vacate. However, the defendants 3 to 8 objected the plaintiffs claim pleading their animous with the defendants No. 1 and 2 and also that they were in possession of the suit property openly adverse to the plaintiffs title and claimed that the suit was barred by limitation and their title was perfected by adverse possession.

( 4 ) LEARNED Trial Judge framed as much as 8 issues. Issue No. 3 refers to adverse possession which reads as follows : 3. Do defendants 3 to 8 prove that they acquired the ownership of the suit site by way of adverse possession for more than 12 years?

( 5 ) LEARNED Trial Court held the issue No. 3 in favour of the defendants no. 3 to 8. While holding so, learned Trial Judge disbelieved the plaintiffs evidence of the defendant being the lessee and their having paid the rent which were Exh. 65 and 68. The suit No. 52 of 1981 was dismissed by the Judgment and decree dated 12-11-1982.

( 6 ) THE aggrieved plaintiff filed appeal before the District Court which was registered as Regular Civil Appeal No. 38/1983. The said appeal was heard and decided by District Judge, Yavatmal who allowed the appeal, reversed the decree of the Trial Court and decreed the suit.

( 7 ) PRESENT Second appeal was admitted on ground No. 1 of memo of appeal namely :"1. That the learned District Judge was in error in seeking to make available to the plaintiff a decree for possession particularly when it was evident that he had failed to establish his possession within 12 years from the date on which the suit came to be filed. "

( 8 ) THE appellant had sought permission for amendment of appeal memo and by amendment added two grounds and addressed the Court on those grounds. These grounds are quoted below for ready reference. "6-A. That inasmuch as there has clearly been a breach of the requirement of Order 41, Rule 31 inasmuch as the only points framed are whether the appellant is entitled to the possession of the suit plot from the res