A.B. Chaudhari, J.

1. Being aggrieved by the judgment and decree dated 14-11-1994 passed by 5th Jt. Civil Judge Jr. Dn. Amravati in Reg. Civil Suit No. 641/1992 and confirmed by judgment and decree dated 20-7-1999, passed by Addl. District Judge, Amravati in Reg. C.A. No. 315/1994, the unsuccessful plaintiff-appellant had filed the present second appeal.

Facts :

The appellant-plaintiff had filed a suit for possession of the suit property from the respondent-defendant. It was the case of the appellant-plaintiff that Khushalsingh, his grandfather was original owner who had sons namely; Kanayasingh, Shamsingh, Premsingh and his widow Chhotibai. After death of Khushalsingh, the mother and brothers effected the partition in the year 1958 and the suit property went to the share of Chhotibai while others took their respective shares in their possession. Chhotibai was residing with Premsingh and by a registered Will dated 9-12-1966, she bequeathed her share to the plaintiff-appellant, who was then minor. However, the suit property was forcibly taken into possession and construction was also made on the open plot after demolition of the old house by defendant without getting any plan sanctioned from the Municipal Corporation, Amravati and, therefore, it was illegal. The Amravati Municipal Corporation had also issued notice under section 264 of the Bombay Provincial Municipal Corporation Act on 7-12-1990 but no action was taken. The plaintiff was thus entitled to possession of the suit property since he was the beneficiary under the registered Will executed in his favour by Chhotibai, his grandmother.

2. The defendant appeared and filed his written statement and denied the claim made in the suit. The defendant also denied the description of the suit property and further stated that it was a joint family property left by Khushalsingh and there are several legal heirs of the deceased Khushalsingh who were entitled to succeed to the estate left by him. In the absence of any suit for partition, under the above circumstances, the suit for possession was not maintainable. The suit was not filed within 12 years and, therefore, the title of the plaintiff, if any, extinguished under the provisions of section 27 of the Limitation Act. The mutation carried out in the record of the Amravati Municipal Corporation was not in accordance with law and was not legal, correct and proper. The taxes were paid by defendant from the year 1979 onwards when there was attachment of the property, which shows that the plaintiff never wanted to assert his so called title. It was their defence in the written statement. The trial Judge framed in all 11 issues and one additional issue. Parties to the suit led their respective evidence, oral as well as documentary. The trial Judge dismissed the suit only on the ground that the title of the plaintiff stood extinguished as per section 27 of the Limitation Act, though answered all the material issues on merits in favour of the appellant-plaintiff. The lower appellate reversed the finding of trial Court on the question of limitation with reference to section 27 of the Limitation Act and held in favour of the appellant-plaintiff. However, he reversed the finding on partition and the Will and ultimately confirmed the decree of dismissal of the suit. Hence this second appeal.

Submissions:

3. In support of the appeal, Dr. Anjan De, learned counsel for the appellant, vehemently argued that the lower Appellate Court committed serious error in reversing the finding of the trial Judge on the question of partition and the Will in the absence of any appeal or cross-objection by respondent-defendant before him. Not only that, the finding of the trial Judge were not even challenged or stated/argued to show that they were wrong. The lower Appellate Court has, in a totally illegal manner resorted to the provisions of Order 41 Rule 33 of the Code of Civil Procedure, which could not have been utilised all the more so because respondent