The main legal point established in the judgment is that a suit for partition must be filed within the prescribed period of limitation, and the court cannot record findings on merits if the proceedings are filed beyond the period of limitation.

A.S. Chandurkar, J.

1. Heard finally with the consent of learned counsel for the parties.

2. The following substantial questions of law arise in the present second appeal:

1] Whether the finding recorded by both the Courts that the suit for partition was barred by limitation is correct?

2] Whether the finding recorded by the trial Court that the defendant had acquired title through prescription as maintained by the first appellate Court is in accordance with law?

3. The appellant is the original plaintiff while the respondent is his elder brother. Both the brothers jointly purchased the suit property on 02.01.1978. According to plaintiff, on 21.10.2006 he had sought partition of the suit property but as the same was refused aforesaid suit came to be filed.

4. The respondent defendant in his written statement took the plea that there was an oral partition on 02.10.1982 in which the suit property came to his share. He further stated that the plaintiff had earlier filed a suit for partition in respect of the very same property but it was withdrawn on 21.04.1987 with liberty to file a fresh suit. However, the present suit was filed on 21.10.2006 and hence the same was barred by limitation.

5. During trial, a preliminary issue was framed as to whether the suit was barred by limitation. The trial Court after observing that the issue of limitation was a mixed question of law and facts held the suit to be within limitation. After the evidence was led, the trial Court found the suit to be barred by limitation on the ground that though liberty was granted to the plaintiff after withdrawal of the earlier suit, the present suit was filed after more than 19 years. It, therefore, held the suit to be barred by limitation. It further held that by remaining in exclusive and open possession the defendant acquired title by prescription. It accordingly dismissed the suit.

6. The first appellate Court on reappreciation of the evidence affirmed the findings of the trial Court that the suit was barred by limitation and hence dismissed the appeal as filed.

7. Shri S.C. Bhalerao, learned counsel appearing for the appellant submitted that the trial Court erred in considering the issue of limitation. He submitted that when the preliminary issue was decided on 08.07.2009, the trial Court had held that the suit was within limitation. It was, therefore, not open for the trial Court to reconsider said issue while deciding the suit. In support of aforesaid submission, the learned counsel relied upon the decision of the Supreme Court in Y.B. Patil and others Vs. Y.L. Patil AIR 1977 Supreme Court 392. He further urged that as the suit was for partition, the cause of action would arise once a demand was made for share in the property. As such demand of separate share was made on 21.10.2006, the suit as filed was within limitation. He further submitted that the findings recorded by the trial Court that the defendant had become owner by prescription have been arrived without framing any issue in that regard. He further submitted that if the suit itself was held to be barred by limitation, then there was no occasion for recording such finding. He, therefore, submitted that said finding was without jurisdiction.

8. On the other hand Shri M.P. Kariya, the learned counsel appearing for respondent supported the impugned judgment. He submitted that the plaintiff had suppressed the fact that the earlier suit has been withdrawn. He further urged that though liberty was granted to file a fresh suit by order dated 21.04.1987, the present suit came to be filed on 01.02.2007 and hence the same was rightly held to be barred by limitation. He submitted that there was no explanation for approaching the Court at such a late stage. He supported the findings recorded by the trial Court by stating that the same had been recorded on the basis of evidence on record.

9. I have carefully considered aforesaid submissions. It is not in dispute that plaintiff had earlier filed Regular Civil