ABHAY S. OKA,J Heard the learned senior counsel appearing for the appellant and the learned counsel for the first respondent. The appellant is the original second defendant. The first respondent in the Appeal is the original plaintiff and the second respondent is the original first defendant. The first respondent filed a suit against the appellant and the second respondent claiming declaration of ownership and possession in respect of the suit land bearing Survey No.115/4 measuring 2 acres 30 guntas situated at Village Bhopal Tegnoor, District Gulbarga. The case made out by the first respondent was that the second respondent relinquished his share in the suit land. Under a memorandum of partition, the relinquishment was recorded, and therefore, the appellant became the exclusive owner of the suit land. The Trial Court dismissed the suit. The Trial Court held that the first respondent failed to establish the plea of partition, and as a result, the first respondent has not proved his exclusive ownership and possession over the suit land. Digitally signed by Anita Malhotra Date: 2023.10.12 09:45:26 IST Reason:

Signature Not Verified CIVIL APPEAL NO(S). 5398/2017 The first respondent preferred an appeal before the District Court. Curiously, the District Court, while partly allowing the appeal proceeded to pass a preliminary decree for partition holding that the parties to the suit were entitled to one-third share each. In the second appeal preferred by the present appellant, a question of law was framed by the High Court which reads thus: “7. This Court has raised the following substantial question of law for consideration on 1.3.2008:- "Whether in the facts and circumstances of the case, the appellate Court was justified in reversing the Judgment and Decree passed by the trial Court and granting 1/3rd share in the suit schedule property when the suit itself was for declaration and permanent injunction?" By the impugned judgment, the High Court proceeded to dismiss the second appeal. The submission of the learned senior counsel appearing for the appellant is firstly that the partition was never prayed for in the suit filed by the first respondent. On the contrary, the suit proceeded on the footing that there was an earlier partition under which the first respondent had become the owner of the suit land. Secondly, she submitted that there was no occasion for the First Appellate Court to pass a decree for partition in a suit simpliciter for declaration of ownership and exclusive possession. She further submitted that recourse taken to Rule 7 of Order VII of the Code of Civil Procedure, 1908 (for short, “CPC”) is completely misconceived. She also submitted that the High Court has not at all considered the aspect of illegality committed by the First Appellate Court. CIVIL APPEAL NO(S). 5398/2017 We have perused the judgments of the three Courts. We have also perused the plaint. In the plaint, specific reliance was placed by the first respondent on the memorandum dated 8^th June, 1984 by claiming that the said memorandum recorded the partition. Based on this document that the first respondent claims exclusive ownership. Thus, the claim of the first respondent in the plaint is founded on the fact that in the partition effected, the suit land has been allotted to him and, therefore, he has exclusive ownership over the suit land, which is in his possession. The Trial Court held that the first respondent failed to prove the existence of partition as pleaded by him and that is how the Trial Court came to the conclusion that the first respondent cannot claim exclusive ownership and possession over the suit land. A perusal of the judgment of the First Appellate Court shows that it proceeded on the footing that the finding of the Trial Court regarding the failure of the first respondent to prove partition was correct. However, the Fir