1. Admit. Shri V.G. Palshikar, learned counsel, waives notice on behalf of respondents.

2. The following substantial question of law arises for consideration:-

“Whether the appellate Court in exercise of powers under Order-XLI, Rue 33 of the Code of Civil Procedure, 1908, could have granted the relief of partition, though there was no prayer in that regard made in the plaint?

The facts relevant are stated thus:-

3. The respondents are the original plaintiffs. It is their case that one Dilbarsha was the owner of Field Survey No. 139, having purchased the same from his own income. He had two sons and two daughters. According to the plaintiffs, who are the legal heirs of Dilbarsha, the defendant nos. 1 to 3 claimed title to the suit field on the basis of Will dated 10th December, 1998, which, they claimed, was executed by Dilbarsha. The plaintiffs claimed to be in possession of the suit field and as their possession was sought to be disturbed by the defendants, they filed suit for a declaration that the said Will was sham and bogus with further relief of permanent injunction so as to protect their possession.

4. The suit was resisted by the defendants on the plea that Will dated 10