JUDGMENT : S. Acharya, J. - The Plaintiff has preferred this second appeal against the reversing decision of the Subordinate Judge, Sundargarh passed in Title Appeal No. 8/67. 2. Undisputedly, the Plaintiff is the father?s brother?s son of Dhoba Bhoi and Defendant No. 1 is the son of Dhoba?s maternal uncle. Dhoba admittedly is the owner of the suit lands described in Schedule A of the plaint. The Plaintiff?s case is that Dhoba died unmarried in March, 1963 leaving behind him the Plaintiff as the only heir. Dhoba was in possession of the suit lands till his death and he was paying the rents thereof. The Plaintiff performed the funeral ceremony of the said Dhoba and inherited his properties as his legal heir. The Defendants having no manner of right, title and interest in the suit lands created disturbance in the peaceful possession of the Plaintiff over the suit lands due to which the Plaintiff had to institute a criminal case under Sections 447 and 427, Indian Penal Code against Defendant No. 1 in which he was acquitted. After the said order of acquittal Defendant No. 1 tried to oust the Plaintiff from the suit lands, and so this mite It is further alleged by the Plaintiff that the Defendants claim to the suit lands on the basis of gift deed is false and the said document is fabricated, inoperative and inadmissible in law. 3. Defendant No. 1 inter alia states that the suit property was the self-acquired property of the above-named Dhoba. As the Plaintiff and the other relations of Dhoba did not take care of him, he asked Defendant No. 1 in the years 1951 to stay with him. Accordingly, Defendant No. 1 was staying with Dhoba and was looking after him and was in possession of his lands till his death. It is also averred in the written statement that Dhoba in the year 1951 made an oral gift of the suit lands in favour of Defendant No. 1, which was followed up by a plain paper agreement Ext. A executed by Dhoba, wherein he acknowledged the oral gift made earlier in favour of Defendant No. 1 in 1951 and Defendant No. 1 continued in possession of the suit lands as before. This Defendant denied that the Plaintiff performed the funeral ceremony of Dhoba. A executed by Dhoba, wherein he acknowledged the oral gift made earlier in favour of Defendant No. 1 in 1951 and Defendant No. 1 continued in possession of the suit lands as before. This Defendant denied that the Plaintiff performed the funeral ceremony of Dhoba. It has also been asserted that the Plaintiff never inherited the suit property after the death of Dhoba. In the written statement a case of adverse possession is also made out. 4. After the filing of the written statement by Defendant No. 1, the Plaintiff amended the plaint and added Defendant Nos. 2 to 7 as proforma Defendants. Defendant. Nos. 2 to 7 are the sons of the other brothers of Dhoba. Those Defendants did not file any written statement and never contested the suit in any manner. They did not even appear inspite of receipt of notices from the Court below. 5. The trial Court decreed the Plaintiff?s suit mainly on the following findings: Defendant No. 1 has failed to prove that Dhoba voluntarily executed Ext. A after understanding the contents thereof; Defendant No. 1 has failed to prove that he perfected his right to the suit lands by adverse possession; as Defendant No. 1 remained with Dhoba he (Defendant No. 1) was in possession of his lands. Accordingly it held that the Plaintiff was entitled to a declaration of his right over the suit lands and to recover possession thereof from Defendant No. 1. In course of the trial Court?s discussion of the oral and documentary evidence on record, at one place it finds that Ext. A filed by Defendant No. 1, is neither a gift deed nor an agreement acknowledging the oral gift, but it is in the nature of a Will, as it contains a declaration that Defendant No. 1 would mutate his name in respect of the lands stated therein after the death of Dhoba. Having stated a it proceeded to discuss and consider the oral and documentary evidence on record in its own way and arrived at the finding that Defendant No. 1 failed to prove that Dhoba voluntarily executed Ext. A after understanding the contents thereof. 6. Defendant No. 1 appealed against the aforesaid judgment and decree of the trial Court. Having stated a it proceeded to discuss and consider the oral and documentary evidence on record in its own way and arrived at the finding that Defendant No. 1 failed to prove that Dhoba voluntarily executed Ext. A after understanding the contents thereof. 6. Defendant No. 1 appealed against the aforesaid judgment and decree of the trial Court. In the Appellate Court the learned Counsel for the Appellant contended at the outset that the Defendant?s case of gift of the suit lands and in the alternative adverse possession thereon were not established. But he specifically urged that the aforesaid document Ext. A was, duly executed by Dhoba and it constituted a valid Will and, as per the law applicable to that part of the country, deft. No. 1 acquired a valid right to the suit lands on the basis of the said Will. To counteract the said argument it was urged on behalf of the Plaintiff, Respondent in that Court, that the said document was a false and fabricated one and if the same was to be construed as a Will it did not clothe Defendant No. 1 with any right to the suit lands as probate of the same had not been taken and so it was legally ineffective. On the aforesaid specific contentions raised on behalf of both the parities, the Court below proceeded to consider the evidence on record, and on a lengthy and convincing consideration of the same it arrived at the finding that Ext. A was the outcome of free and voluntary Will of Dhoba and as such it was a genuine document. It has construed the document Ext. A in the perspective of the different characteristics of a will, and on a consideration of the relevant oral and documentary evidence and other circumstances arising there from it has arrived at the finding that Ext. A is a duly and validly executed Will of deceased Dhoba and is neither forged nor fabricated. On a discussion of the legal question as to whether Defendant No. 1, is entitled to claim title to the suit lands without taking out the probate of the Will, Ext. A, the Court, on a consideration of the place of execution of the Wilt, and the relevant law on the subject, has given a finding in the affirmative. On a discussion of the legal question as to whether Defendant No. 1, is entitled to claim title to the suit lands without taking out the probate of the Will, Ext. A, the Court, on a consideration of the place of execution of the Wilt, and the relevant law on the subject, has given a finding in the affirmative. On the above findings the Court below has allowed the appeal and has dismissed the Plaintiff?s suit. 7. Mr. Mitra, the learned Counsel for the Appellant, does not challenge the legality of the last mentioned finding of the Court below about the taking out of probate of a Will executed in that part of the country. He only contends that in view of the specific plea taken by Defendant No. 1 in this suit that he got the suit property by virtue of an oral gift made by Dhoba in his favour which was subsequently ratified by the written agreement, Ext. A, the Court below should not have proceeded to consider the right of Defendant No. 1 to the suit property on the basis of the new plea that Ext. A was a Will executed by Dhoba in his favour. On a perusal of the trial Court and Appellate Court judgments I am satisfied that the basis on which the Appellate Court?s decision has been arrived at was certainly not mooted for the first time in the Appellate Court. The trial Court?s judgment shows that the question whether Ext. A is a Will or not was a subject matter for consideration in the trial Court, and it has arrived at the finding that Ext. A is in the nature of a Will, as it contains a declaration that Defendant No I would mutate his name in respect of the lands after the death of Dhoba and would possess the same from generation to generation. In the Appellate Court also it was specifically urged on behalf of the Defendants, Appellants therein, that Ext. A was a Will, and by virtual of the said Will Defendant No. 1 acquired good title over the suit lands. The above contention was contested by the Plaintiff?s counsel in the Appellate Court merely on the ground that the said document was a false and fabricated one, and in case it was construed as a will, it was inoperative as probate of the same had not been taken. The above contention was contested by the Plaintiff?s counsel in the Appellate Court merely on the ground that the said document was a false and fabricated one, and in case it was construed as a will, it was inoperative as probate of the same had not been taken. In that Court it was never urged that Defendant No. 1?s right to the suit lands could not be decided on the basis of a new plea that Ext. A was a Will executed in his favour. The Plaintiff knew about this document as there is reference to the same in the plaint. The said document was considered as a Will in the trial Court. Defendant No. 1 mainly took his stand in the Appellate Court on the basis that Ext. A was a Will and the Plaintiff mainly contested that position by urging that it was inoperative and probate of the same had not been taken. 8. It is well settled that even if a plea is not specifically made out and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party to rely on it, if it is satisfactorily proved by evidence-Bhagwati Prasad v. Chandra mauli 1966 S.C.D. 888. In the case reported in Proprietors of Mauza Silauthi and Ors. v. Raj Rup and Anr. AIR 1949 East Punjab 325, it has been held that when a plea was not taken by the Defendant to his pleadings, but was raised in course of the argument and the Plaintiff, without any protest, allowed the plea to be examined by the Courts below and by the Single Judge of the High Court, it is not within the competency of the Division Bench in appeal to entertain an objection about a new case having been set up. In a Division Bench decision of the Calcutta High Court reported in Banga Chandra Pal v. Kailash Chandra Pal and Ors. In a Division Bench decision of the Calcutta High Court reported in Banga Chandra Pal v. Kailash Chandra Pal and Ors. AIR 1920 Cal 325, it has been held that where in the Court of first appeal a Plaintiff knows exactly the case he has to meet and considers that sufficient opportunity has not been given to him to meet that case, he should in that Court apply for a definite issue to be framed and for a remand to the trial Court for the purpose of determining that issue, and if he omits to do so he is not entitled in second appeal to have this done. 9. It is quite evident from the impugned judgment of the Appellate Court that on behalf of the Plaintiff, no objection was raised in any manner in that Court to the raising of the plea in question by the counsel for the deft. No. 1. On the contrary, the counsel appearing for the Plaintiff contested this particular plea merely on the grounds stated above. The question, as stated above, was also considered in the trial Court. On the above facts and considerations it can safely be said that the Plaintiff know the exact case which he was to meet and so he did not raise the objection of a new plea, as now raised in this Court. That being the position, and there being nothing to show that any such objection was raised in any of the Courts below, the plea now raised for the first time before me is not available to the Plaintiff Appellant in this second appeal. Accordingly I do not find any merit in this appeal which is hereby dismissed. But in the facts and circumstances of the case there will be no order as to costs of this Court.