1. This second appeal under section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 14.7.2005 passed by 1st Additional District Judge, Distt. Guna in Civil Appeal No. 12-A/2005 and 13-A/2005 arising judgment and decree dated 25.11.2003 passed by First Civil Judge, Class I, Guna in Civil Suit No.5-A/2003.

2. There are concurrent finding of facts by the two Courts below, where it has been said that the respondents were the owner of the suit property and the record with respect to entry showing the appellants to be in possession of the suit property was based upon a forgery and in fact an inquiry was held where it was found that mutation of the suit property in favour of the appellant was incorrect and therefore the suit filed by the respondents for declaration was decreed and injunction was also granted. The aforesaid order was upheld by the first appellate Court.

3. The only thing additionally joint by the Courts below was, also passing a subsequent order in consequent to the aforesaid declaration by exercising the power under Order 7 Rule 7 CPC whereby the Courts below not only directed partition of the property amongst the respondents/plaintiffs, but also further directed the revenue authorities to get partition effected and then pass necessary entries and orders.

4. According to the counsel for appellant, this order could not be passed. However, learned counsel for the respondents has brought to my notice, the judgment delivered by Division Bench of Karnataka High Court in case of Smt Neelawwa v. Smt Shivawwa reported in AIR 1989 Karnataka 45.

Para 8.1 of the aforesaid Division Bench judgment is relevant, which is reproduced herein :

“8.1 The provisions of Order VII. Rule 7 of the CPC, are so widely worded that they do enable the Court to pass a decree for partition in a suit for declaration of title to immovable property and possession thereof where it turns out that the plaintiff is not entitled to all the interest claimed by him in the suit property. In such a situation, there is nothing unusual in giving relief to the parties by directing partition of the suit property according to the share of the parties established the suit. The normal rule that relief not founded on the pleadings should not be granted is not without an exception. Where substantial matters constituting the title of all the parties are touched in the issued and have been fully put in evidence, the case does not fall within the aforesaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted. Of course, the Court while moulding the relief must take care to see that relief it grants is not inconsistent with the plaintiff’s claim, and is based on the sa me cause of action on which the relief claimed in the suit, that I occasions no prejudice or causes embarrassment to the other side; that it is not larger than the one claimed in the suit, even if the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of the plaint.”

5. The counsel for appellants on the other hand submits that suit filed by the respondents which was not coupled with the relief of possession was not maintainable under section 37 of the Specific Relief Act. However, so far as the appellants are concerned, they are found to be forgers and any plea taken by them is of no consequence and therefore they cannot be even heard on this point.

6. In view of the aforesaid, I do not find any infirmity in the orders passed by both the Courts below and therefore this second appeal filed under section 100 of CPC is hereby dismissed.