JUDGMENT N. KUMAR, J.-This is defendants' appeal challenging the judgment and decree of the lower appellate Court which has decreed the suit of the plaintiff for partition and separate possession. 2. For the purpose of convenience, the parties are referred to as they are referred to in the suit. 3. The subject matter of the suit is CTS No. 2385 and CTS No. 2385/1 situate at Azad Galli Belgaum. 4. According to the plaintiff, suit properties are independent and are easily identifiable. Hence, no boundaries are given. The plaintiff's name is shown in CTS No. 2385/1 as owner and he is in possession of the same. Defendant No. 1 is the brother of the plaintiff and defendant No. 2 is his brother's son and their names have been shown in CTS No. 2385 as holders Nos. 1 and 2. 5. Suit properties originally owned by Sardarbeg-father of the plaintiff and defendant No. 1. He died in the year 1948. After his death, names of his 4 sons had been recorded in the CTS records as heirs in the year 1953. After the death of their father, 4 sons held the properties together in common and as tenants in common under the Mohamadan law. Thereafter the other brothers have given wardi-statement and got deleted their names and gave up their share in favour of the plaintiff and lastly only two names were shown in the suit property. But however name of defendant No. 2 is shown in records in CTS No. 2385 in the year 1966 without having any title or transfer deed in favour of defendant No. 2. Hence, defendant No. 2 is in no way concerned to the suit property and the entry is illegal and void and the same is not binding on the plaintiff. The suit properties have been measured and boundaries have been fixed in the year 1986 at the time of fixing the boundaries and deleting the names of the plaintiff in the year 1977 it has not been taken the equal portion of the plaintiff and the defendant No. 1 but it has been divided unequally. Deletion of the name from the entire CTS No. 2385 is illegal and not binding on the plaintiff. He is having equal area in CTS Nos. 2385 and 2385/1 but while it is not considered at the time of making equal portion and making entries in the records. Deletion of the name from the entire CTS No. 2385 is illegal and not binding on the plaintiff. He is having equal area in CTS Nos. 2385 and 2385/1 but while it is not considered at the time of making equal portion and making entries in the records. Therefore, the revenue proceedings are not proper and correct and not binding. CTS No. 2385 is more in area when compared to CTS 2385/1 but while making division, it is not done equally. Therefore, the entire proceedings taken by the revenue officer from 1966 to 1991 and change of the entries in revenue records is not proper and correct one. Though the plaintiff has brought to the notice of the officer, the revenue records are not corrected. There was no actual partition and separate possession of the suit property. Therefore, the plaintiff is constrained to file a suit for a decree of partition effecting equal portion in the suit properties and the plaintiff's name be entered in the revenue records accordingly. 6. After service of summons, defendants entered appearance. The relationship between the parties was admitted. The entries in the revenue records showing plaintiff is the owner of CTS No. 2385/1 and defendant No. 1 is the owner of CTS No. 2385 is admitted. Originally these two properties were part of CTS No. 2384 and after gift in favour of the plaintiff's father, these two houses are given different CTS Nos. as CTS No. 2385 and 2385/1. Even after the gift in respect of the suit properties, there remained many of the houses and open space in CTS No. 2384. Plaintiff and defendant No. 1's father died on 21/09/1950. After his death, names of four sons of the deceased Sardarbeg were recorded. Jamalsaheb the eldest brother of the plaintiff had given up his share to defendant No. 2 and he intimated well in advance and accordingly submitted a wardi in the year 1966 personally and got entered the name of defendant No. 2 to his respective share. Therefore, the name of defendant No. 2 is validly entered. It is the specific case of the defendant that the family partition has taken place earlier to 1966 and in the said family partition, CTS No. 2385 has fallen to the share of Jamalsaheb and Sri. Mahaboobbeg-defendant No. 1 and CTS No. 2385/1 has fallen to the share of plaintiff and Sri. Basheeramahed. It is the specific case of the defendant that the family partition has taken place earlier to 1966 and in the said family partition, CTS No. 2385 has fallen to the share of Jamalsaheb and Sri. Mahaboobbeg-defendant No. 1 and CTS No. 2385/1 has fallen to the share of plaintiff and Sri. Basheeramahed. Jamalsaheb had no issues and intended to give up his share to defendant No. 2 and accordingly, he had intimated well in advance and submitted a wardi to get entered the name of the defendant No. 2 in the records in respect of his share and accordingly defendant No. 2 has come on record in respect of the share of deceased Jamalsaheb in the year 1966 itself. Since then, defendant No. 2 is the absolute owner of CTS No. 2385 in respect of share of Jamalsaheb and he is in possession, wahiwat and enjoyment of said portion of the suit property which is best known to the plaintiff and till today the plaintiff has never disturbed the peaceful possession of the portion of defendant Nos. 1 and 2. Therefore, he does not have any locus standi to challenge the said portion of the suit property of defendant No. 2 at this stage. 7. Defendant No. 1 is the father of defendant No. 2. According to the partition, defendant No. 2 and deceased Jamalsaheb came in possession of the said suit property. Subsequently, Jamalsaheb has given up his share to defendant No. 2 and hence defendant Nos. 1 and 2 are living together in the said premises bearing CTS No. 2385 for which the plaintiff is jealous. Defendant Nos. 1 and 2 are in actual and exclusive possession of suit property bearing CTS No. 2385 as owners since the day of the partition, and continue to stay in the said suit house, openly, continuously and to the knowledge of the plaintiff for more than 30 years and hence suit is barred by limitation and they sought for dismissal of the suit. 8. On the aforesaid pleading, the trial Court framed the following issues: "1. Whether the plaintiff proves that he is entitled to get half partition the suit property? 2. Whether the description of the suit property is correct? 3. 8. On the aforesaid pleading, the trial Court framed the following issues: "1. Whether the plaintiff proves that he is entitled to get half partition the suit property? 2. Whether the description of the suit property is correct? 3. Whether defendants prove that in the family partition CTS No. 2385 was fallen to the share of defendant No. 1 and the Jamalsaheb and CTS No. 2385/1 had fallen to share of plaintiff and his another brother Basheer Ahamed? 4. Whether the defendants prove that Jamalsaheb had transferred his share in CTS No. 2385 in favour of defendant No. 2? 5. Whether the suit is barred by limitation? 6. Whether the Court fee paid is proper? 7. Whether the defendant No. 1 and 2 are entitled to receive compensatory of Rs. 40,000/-? 8. What order or decree? 9. The plaintiff in order to substantiate his claim, examined himself as PW-1 and produced 5 documents which are marked as Exs.P-1 to P-5. On behalf of the defendants, first defendant was examined as DW-1 and he has produced 15 documents which are marked as Exs.D-1 to D-15. 10. The trial Court on consideration of the aforesaid oral and documentary evidence on record, held that the plaintiff has miserably failed to prove that he is entitled to half share in the suit property. The description of the property is correct. The defendant has proved his case of partition and CTS No. 2385 fell to the share ofdefendant No. 1 and Jamalsaheb and CTS No. 2385/1 fell to the share of the plaintiff and his younger brother Basheerahamed. It held that the defendants have proved that Jamalsaheb had transferred his share in CTS No. 2385 in favour of defendant No. 2. The suit is barred by limitation. Defendant Nos. 1 and 2 are not entitled to receive compensation of Rs. 40,000/- and therefore dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree of the trial Court, the plaintiff preferred an appeal before the lower appellate Court. The lower appellate Court on appreciation of the entire evidence on record, formulated the following points for consideration: "1. Whether the plaintiff-appellant has proved that he is entitle for equal portion in the suit property? 2. Aggrieved by the said judgment and decree of the trial Court, the plaintiff preferred an appeal before the lower appellate Court. The lower appellate Court on appreciation of the entire evidence on record, formulated the following points for consideration: "1. Whether the plaintiff-appellant has proved that he is entitle for equal portion in the suit property? 2. Whether the defendants-respondents have proved that in the family partition CTS No. 2385 has fallen to the share of first defendant and Jamalsaheb and CTS No. 2385/1 has fallen to the share of plaintiff and his another brother Bashirahamed? 3. Whether the defendants prove that Jamalsaheb had transferred his share in the CTS No. 2385 in favour of the second defendant? 4. Whether the suit is barred by limitation? 5. Whether impugned judgment and decree needs to be interfered? 6. For what order or decree parties are entitle to?" 11. It held the plaintiff has proved his case that he is entitled to equal portion in the suit property. The defendant has proved his case of partition and the property bearing CTS No. 2385 and 2385/1 being the subject matter of partition fell to their respective share. The defendant proved that Jamalsaheb has transferred his share in CTS No. 2385 in favour of the second defendant. The suit is not barred by law of limitation. Therefore, it proceeded to allow the appeal partly and granted the decree to the effect that the plaintiff is entitled to equal portion in the vacant land available in CTS No. 2385 and 2385/1 alongwith the defendants. It directed partition of the vacant land and for putting the plaintiff in possession. During the pendency of the Regular Appeal, first defendant died. As the second defendant was also one of the sons of the first defendant, the appeal was heard and judgment was delivered on merits. Therefore, aggrieved by the said judgment and decree, legal representatives of the first defendant and defendant No. 2 have preferred this appeal. 12. During the pendency of this appeal, plaintiff is also dead and his legal representatives are on record. This appeal came to be admitted on 09/01/2003 to consider the following 3 substantial questions of law? 1. Therefore, aggrieved by the said judgment and decree, legal representatives of the first defendant and defendant No. 2 have preferred this appeal. 12. During the pendency of this appeal, plaintiff is also dead and his legal representatives are on record. This appeal came to be admitted on 09/01/2003 to consider the following 3 substantial questions of law? 1. Whether the plaintiff is estopped from filing a separate suit for partition and separate possession having regard to the partition effected in the year 1963 and having not raised any objection regarding the same for over the part 30 years whether the delay is fatal on the case? 2. Whether the earlier suit in OS No. 246/1986 operates as estoppel for the present case? 3. Whether the suit in maintainable in the light of the plaintiff's failure to implead Basheer Ahemd s/o Sardar Beig? 13. Before I answer the substantial questions of law, it is necessary to state neither the parties nor the two Courts below have applied their mind properly and have not tried to find out what exactly the dispute is. Now that we have the pleading, evidence of the parties on record, their arguments before the Courts and the judgment of the Courts, it is from that we have to find out what exactly is the grievance of the parties. Otherwise, this Court also will be committing the very same mistake which the Courts below have done and in order to put an end to the litigation and see that the next generation of the original parties shall not waste their entire life, it is necessary to place on record the facts that emerge from the material on record, address the real grievance. 14. The material on record discloses, the schedule property originally belong to one Sardarbeg who died on 21/05/1950. He left behind 4 sons namely Jamalsaheb, Mehaboobsab, Basheerahamed and Sahabajan. Sahabajan is the plaintiff. Mehaboobsab is the first defendant. Hisson Mushtaqahamed is defendant No. 2. Though the plaintiff alleges that there was no partition, in the cross-examination, he in unequivocal terms admits the partition which is pleaded by the first defendant. At page 69 of the paper book where we have the evidence of PW.1-plaintiff, he has admitted that during the life time of his father, there was no partition. After his death there was a partition between four brothers. At page 69 of the paper book where we have the evidence of PW.1-plaintiff, he has admitted that during the life time of his father, there was no partition. After his death there was a partition between four brothers. In that partition, CTS No. 2385 fell to the share of first defendant and Jamalsaheb. Property bearing No. 2385/1 fell to plaintiff's share and his brother Basheeramahed. This is precisely the case of the first defendant. It is also evidenced by the fact that in the Municipal records, the entries are made in the name of the brothers in terms of this partition. Therefore, these properties were subject matter of the partition and partition has taken place. 15. The evidence on record also discloses that CTS No. 2385 and 2385/1 is derived from CTS No. 2384. These two properties were gifted to the plaintiff's father. After gifting these two properties, there remained a house property and vacant land in the CTS No. 2384. A dispute arouse between the persons who were the owners of the land i.e. CTS No. 2384 and the plaintiff and the first defendant. Plaintiff and the first defendant filed a suit in O.S. No. 66/1966 for recovery of possession against one Umersab accusing him of encroachment. In the suit, compromise came to be filed on 26/07/1967. The subject matter of the said suit was 23 feet 4 inch north-south and 12 feet east to west and the said open space was part and parcel of CTS No. 2385 and 2385/1. Under the compromise, the plaintiff and the first defendant gave up their right in the suit property. After the rights were given up in favour of Umaransab Inamdar, the first defendant herein subsequently purchased the said property under a registered sale deed dated 25/07/1967 for a valuable consideration. 16. Thereafter, the plaintiff herein filed a suit in O.S. No. 246/1986 against the first defendant and Basheerahamed and other brothers for partition and separate possession of his 1/3rd share in the suit property which is the subject matter of sale in favour of the first defendant. The suit was contested. In fact in the plaint, the subject matter of the suit was shown as 35 feet east-west and 11 feet north-south in CTS No. 2385. The suit was contested. In fact in the plaint, the subject matter of the suit was shown as 35 feet east-west and 11 feet north-south in CTS No. 2385. The argument was, the first defendant was prosecuting suit O.S. No. 66/1966 not only on his behalf but also on behalf of the plaintiff as power of attorney holder. Subsequently, when he purchased the property, he has purchased as power of attorney holder of first defendant. The power of attorney was not produced. First defendant set up exclusive title to the suit property. After trial, the said suit came to be dismissed holding that the plaintiff has no right over the suit property. It exclusively belongs to the first defendant. Unfortunately in the course of evidence, it is admitted that the subject matter of the suit and the present suit is one and the same. As a matter of fact, the subject matter of the suit and the subject matter of the present suit is not one and the same. It is relevant to only to the extent that the subject matter of the suit that was a vacant site and was also part of CTS No. 2385 and 2385/1 because adjoining owner encroached that portion, these brothers have to file the suit for possession. For the reasons best known to them, they have given up their right and thereafter first defendant has purchased the said property and he is the exclusive owner. The said judgment has attained finality. Therefore, that vacant land, which is the subject matter of that proceedings which was part of CTS Nos. 2385 and 2385/1 which was shown as part of 2384 exclusively belongs to the first defendant and plaintiff has no right in the same and that property has to be excluded from the purview of the present suit. Even the parties have understood that property is also subject matter of the suit, they are not entitled to any decree because it does not form part of the suit. It is in this context, second substantial question of law whether the earlier suit in O.S. No. 246/1986 operates as estoppel for the present case, is to be answered in the negative. It is in this context, second substantial question of law whether the earlier suit in O.S. No. 246/1986 operates as estoppel for the present case, is to be answered in the negative. The subject matter of O.S. No. 246/1986 and the subject matter of the earlier suit is not one and the same because of the vague description given in the property-subject matter of O.S. No. 246. Even if the parties understood as being part of this proceedings that property has to be excluded and therefore, plaintiff will get no right in the property which is the subject matter of O.S. No. 246/1986 and the sale deed executed in favour of the first defendant through its owner. 17. Now again the admitted position is in the partition of 1966, CTS No. 2385 fell to the share of first defendant and his brother Jamalsaheb and CTS No. 2385/1 fell to the share of the plaintiff and his other brother Basheerahamed. Between them there is no partition. Therefore, Basheerahamed has got half share in CTS No. 2385/1 and the plaintiff has got half share. In CTS No. 2385 first defendant has got half share and remaining half share belongs to Jamalsaheb. Now the case of the defendants is, Jamalsaheb had no issues. He had love and affection towards second defendant, who is none other than the son of first defendant. Therefore, during his life time he gave a wardi and got his share transferred to the share of second defendant and the second defendant from that day onwards is in actual possession of the property and his name has been shown in the revenue records. He has been paying taxes and openly enjoying the properties. It is not in dispute that half share of Jamlasaheb in CTS No. 2385 is worth more than Rs. 100/-. Gift not evidenced by any instrument. By giving a wardi, no person can relinquish his right over the property. If that is the understanding between the parties, it is not correct. Therefore, notwithstanding the fact that the mutation entries were made in the name of the second defendant on a wardi given and Jamalsaheb, the second defendant would not become the owner of the said half share. Now Jamalsaheb is dead. In the Mohammedan law, he has left behind the plaintiff, first defendant and Basheeramahed. Therefore, they would be entitled to 1/3rd share of that half share. Now Jamalsaheb is dead. In the Mohammedan law, he has left behind the plaintiff, first defendant and Basheeramahed. Therefore, they would be entitled to 1/3rd share of that half share. Therefore, the only right to which the plaintiff is entitled is 1/3rd share in the share of Jamalsaheb and nothing more. Similarly, the case of the plaintiff is he has half share in CTS No. 2385/1 and Basheerahamed has remaining half share and Basheerahamed has given up his half share by giving such a wardi. It is also not evidenced by any registered document. But the fact remains that Basheerahamed is very much alive and continues to be the owner. Unfortunately he has not been made as a party. Defendants have not raised any objection regarding nonjoinder of parties at the earliest point of time in the written statement or before the settlement of issues. If objection is not raised to that effect, suit for partition cannot be dismissed for non-joinder of necessary parties. It was not agitated before the trial Court or before the lower appellate Court but for the first time before this Court, the said contention is taken and no substantial question of law is framed in that regard. i.e., how the substantial question of law No. 3 came to be framed. Law on that point is very clear that objection cannot be raised in a second appeal. Therefore that issues has to be answered against the first defendant. Notwithstanding the fact that Basheerahamedis not made a party. If the partition has to be effected between the parties, all the persons who have interest in the properties are necessary parties. In deed if such an objection was not taken and sharer is not made a party, the share of that person would not go to the plaintiff and the first defendant. This Court could take note of the existence of Basherahamed and while passing the decree allot to him 1/3rd share which he can claim in the final decree proceedings. Therefore, even in the absence of Basheerahamed being made as a party, the share to which Jamalsaheb was entitled is to be divided between the plaintiff, the first defendant and Basheerahamed. 18. Therefore, even in the absence of Basheerahamed being made as a party, the share to which Jamalsaheb was entitled is to be divided between the plaintiff, the first defendant and Basheerahamed. 18. The other contention is, even though no title has passed to the second defendant by giving wardi by Jamalsaheb, entry has been made, the second defendant is in continuous possession for more than 30 years openly and uninterruptedly and therefore it is contended that he has perfected his title by adverse possession. No such issue was framed in the trial Court. However, the evidence on record shows that the second defendant got into possession of the property by virtue of a wardi given by Jamalsaheb. Therefore, his possession was not adverse to that of Jamalsaheb. There was no necessity for him to assert a title contrary to one belonging to Jamalsaheb. When second defendant was inducted to in possession lawfully and when he has continued in possession, he has not asserted any hostile title. Therefore, ingredients of adverse possession are not made out. Therefore first substantial question of law whether defendant No. 2 has perfected his title by adverse possession is to be answered against them. 19. In the light of the aforesaid discussion, what could be deduced is this, property bearing CTS No. 2385 and 2385/1 are part of 2384. These two properties were bequeathed in favour of the plaintiff and first defendant's father who became the owner. Even after such a bequest of CTS No. 2384, there exists some building and open site. After the death of propitious, his 4 sons effected division among them in the year 1966. In that division CTS No. 2385/1 fell to the share of the plaintiff and Basheerahamed and CTS No. 2385 fell to the share of first defendant and Jamalsaheb. After the death of Jamalsaheb his half share in CTS No. 2385 devolves on his surviving 3 bothers to an extent of 1/3 share each and therefore, the plaintiff is entitled to 1/3rd share in the share of Jamalsaheb. After the death of Jamalsaheb his half share in CTS No. 2385 devolves on his surviving 3 bothers to an extent of 1/3 share each and therefore, the plaintiff is entitled to 1/3rd share in the share of Jamalsaheb. In the light of the decree passed on compromise in O.S. No. 66/1966 which is followed by a registered sale deed in favour of the first defendant what ever is the subject matter of the suit whether it falls with CTS No. 2384 or 2385/1 that has to be excluded while determining 1/3rd share of the plaintiff as that property exclusively belongs to the first defendant. Hence, I pass the following order: (a) Appeal is partly allowed. (b) The judgment and decree of both the Courts are set aside. (c) It is declared that the plaintiff is entitled to 1/3rd share in CTS No. 2385 excluding the subject matter of the suit in O.S. No. 246/1986 which is also the subject mater of the sale deed. (d) Parties to bear their own costs.