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 10th December, 1998 was executed by Dilbarsha out of love and affection for defendant nos. 2 and 3. As the suit property was the exclusive property of Dilbarsha , he was competent to bequeath the same.

5. The trial Court held that the plaintiffs had proved that the Will dated 10th December, 1998 was sham and bogus and was not binding on the plaintiffs. It, therefore, decreed the suit and also granted the relief of perpetual injunction.

6. Being aggrieved, the defendants filed appeal. The appellate Court confirmed the finding recorded by the trial Court that the Will dated 10th December, 1998 was not binding on the plaintiffs. It further held that after the death of Dilbarsha, all the legal heirs were entitled to inherit the suit property and, therefore, the relief of injunction could not be granted to the plaintiffs. Thereafter, in exercise of powers under provisions of Order-XLI, Rule 33 of the Civil Procedure Code, 1908 [for short, “the Code”] the appellate Court proceeded to grant the relief of partition and separate possession to the co-sharers. Being aggrieved, the defendants have filed this Second Appeal.

7. Shri A. Ansari, learned counsel for the appellants, submitted that in absence of any prayer in the plaint for grant of decree of partition and separate possession, the appellate Court in exercise of powers under Order-XLI, Rule 33 of the Code could not have granted the same. The only relief sought was with regard to invalidity of the Will dated 10th December, 1998 and consequential relief of perpetual injunction. In absence of any prayer being made, the appellate Court exceeded its jurisdiction in granting said relief. If at all the plaintiffs wanted said relief, they could have either prayed for the same in the suit or could have amended the plaint. In absence of any such prayer, the relief not prayed for could not have been granted. In this regard, the learned counsel placed reliance on the judgment in Indrakumar Daulat Khushalani Vs. Atmaram Vitthal Zade & others [2015 (3) Mh.L.J. 613]. It was then submitted that the third daughter of Dilbarsha was not a party to the suit. As all co-sharers were not before the Court, the relief of partition as granted was not in accordance with law.

8. Shri V.G. Palshikar, learned counsel for the respondents, supported the impugned judgment. According to him, the appellate Court acted within its jurisdiction when it granted relief of partition. According to him, the parties were related to each other and the Will dated 10th December, 1998 having been held to be not proved, each legal heir was entitled to a share in the property. Therefore, no prejudice was caused to either party by granting the relief of partition. According to him, the appellate Court has wide powers under provisions of Order-XLI, Rule 33