JUDGMENT K.P. Singh, J. - This writ petition arises out of a suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act. The Trial court decreed the plaintiffs suit on 31-12-71. The lower appellate court modified the decree passed by the Trial court as is evident from its judgment dated 16-10-74. Thereafter in second appeal the judgment of the Trial court has been restored by the learned Member through his judgment dated 8-10-76. Aggrieved by the judgment of the second appellate court the defendant-petitioner has approached this Court under Article 226 of the Constitution. 2. The learned counsel for the petitioner has contended before me that the second appeal was beyond time yet the second appellate court has interfered without addressing, itself to the question of limitation. Secondly it was also contended that the second appellate court had patently erred in interfering with the judgment of the first appellate court on the ground that the defendant should have filed a declaratory suit for expunging the name of the plaintiff-opposite party before getting any relief in the partition suit. 3. The learned counsel for the contesting opposite party has tried to support the impugned judgment of the second appellate court. He has submitted in reply that the question of limitation was not specifically urged before the second appellate court hence such a plea should not be entertained at this stage. He has also submitted that the view taken by the second appellate court on merits is a correct view. 4. In rejoinder the learned counsel for the petitioner has invited my attention to the application moved by the defendants to the effect that the second appeal was barred by limitation. This plea was raised on behalf of the defendant-petitioner while opposing the prayer for stay. 5. I have considered the contentions raised on behalf of the parties. In my opinion the question of limitation goes to the root of the matter and the second appellate court has not addressed itself to the question of limitation. I think its judgment suffers from patent error of law and deserves to be quashed. 6. 5. I have considered the contentions raised on behalf of the parties. In my opinion the question of limitation goes to the root of the matter and the second appellate court has not addressed itself to the question of limitation. I think its judgment suffers from patent error of law and deserves to be quashed. 6. However, on merits also I do not see eye to eye with the reasoning's of the learned Member in dealing with the second appeal, but I do not express any concluded opinion at this stage and permit the parties to canvass their stand before the second appellate court when the matter is taken up hereafter. 7. In the result the writ petition succeeds and the impugned judgment of the second appellate court is hereby quashed and the second appellate court is directed to decide the question of limitation specifically and thereafter deal with the other points raised by the parties before if. There would be no order as to Costs.