Judgment A.B. Chaudhari, J. 1. Being aggrieved by the judgment and decree dated 14-11-1994 passed by 5th Jt. Civil Judge Jr. Dn. Amravati in Reg. Civil Suit No. 641/1992 and confirmed by judgment and decree dated 20-7-1999, passed by Addl. District Judge, Amravati in Reg. C.A. No. 315/1994, the unsuccessful plaintiff-appellant had filed the present second appeal. Facts : The appellant-plaintiff had filed a suit for possession of the suit property from the respondent-defendant. It was the case of the appellant-plaintiff that Khushalsingh, his grandfather was original owner who had sons namely; Kanayasingh, Shamsingh, Premsingh and his widow Chhotibai. After death of Khushalsingh, the mother and brothers effected the partition in the year 1958 and the suit property went to the share of Chhotibai while others took their respective shares in their possession. Chhotibai was residing with Premsingh and by a registered Will dated 9-12-1966, she bequeathed her share to the plaintiff-appellant, who was then minor. However, the suit property was forcibly taken into possession and construction was also made on the open plot after demolition of the old house by defendant without getting any plan sanctioned from the Municipal Corporation, Amravati and, therefore, it was illegal. The Amravati Municipal Corporation had also issued notice under section 264 of the Bombay Provincial Municipal Corporation Act on 7-12-1990 but no action was taken. The plaintiff was thus entitled to possession of the suit property since he was the beneficiary under the registered Will executed in his favour by Chhotibai, his grandmother. 2. The defendant appeared and filed his written statement and denied the claim made in the suit. The defendant also denied the description of the suit property and further stated that it was a joint family property left by Khushalsingh and there are several legal heirs of the deceased Khushalsingh who were entitled to succeed to the estate left by him. In the absence of any suit for partition, under the above circumstances, the suit for possession was not maintainable. The suit was not filed within 12 years and, therefore, the title of the plaintiff, if any, extinguished under the provisions of section 27 of the Limitation Act. The mutation carried out in the record of the Amravati Municipal Corporation was not in accordance with law and was not legal, correct and proper. The suit was not filed within 12 years and, therefore, the title of the plaintiff, if any, extinguished under the provisions of section 27 of the Limitation Act. The mutation carried out in the record of the Amravati Municipal Corporation was not in accordance with law and was not legal, correct and proper. The taxes were paid by defendant from the year 1979 onwards when there was attachment of the property, which shows that the plaintiff never wanted to assert his so called title. It was their defence in the written statement. The trial Judge framed in all 11 issues and one additional issue. Parties to the suit led their respective evidence, oral as well as documentary. The trial Judge dismissed the suit only on the ground that the title of the plaintiff stood extinguished as per section 27 of the Limitation Act, though answered all the material issues on merits in favour of the appellant-plaintiff. The lower appellate reversed the finding of trial Court on the question of limitation with reference to section 27 of the Limitation Act and held in favour of the appellant-plaintiff. However, he reversed the finding on partition and the Will and ultimately confirmed the decree of dismissal of the suit. Hence this second appeal. Submissions: 3. In support of the appeal, Dr. Anjan De, learned counsel for the appellant, vehemently argued that the lower Appellate Court committed serious error in reversing the finding of the trial Judge on the question of partition and the Will in the absence of any appeal or cross-objection by respondent-defendant before him. Not only that, the finding of the trial Judge were not even challenged or stated/argued to show that they were wrong. The lower Appellate Court has, in a totally illegal manner resorted to the provisions of Order 41 Rule 33 of the Code of Civil Procedure, which could not have been utilised all the more so because respondent had failed to file cross-objection or raise any challenge to any of the findings as required by order 41 Rule 22 of the Civil Procedure Code. According to Dr. De, there is misapplication of the provision by lower Appellate Court in the absence of any appeal or cross-objection by respondent-defendant. According to Dr. De, there is misapplication of the provision by lower Appellate Court in the absence of any appeal or cross-objection by respondent-defendant. He further argued that at any rate, even on merits, the oral partition that was made between brothers and mother, after death of Khushalsingh was fully corroborated by entry to that effect made in the year 1958 itself and the evidence on record about separate residence of the parties after partition. Reliance placed by lower Appellate Court on the alleged admission in the cross-examination about written document of partition is wholly misconceived and misplaced. He, then, argued that oral partition, that was recorded in the mutation entries, obviously did not require any registration and, therefore, was required to be accepted. As to the Will, learned counsel for the appellant, argued that finding by lower Appellate Court is wholly perverse. According to him, the Will is a registered Will and has been duly proved by the witness who knew the handwriting and signature of the attesting witness who had died. None of the attesting witnesses was available for being examined and, therefore, close acquaintance, who identified the signature was examined but for no reason, the lower Appellate Court has discarded the Will and the reasons given by the lower Appellate Court are absurd. Dr. De, therefore, submitted that the appeal deserves to be allowed by passing the decree. Dr. De, in support of his submissions, relied on the decision in Nani Bai v. Gita Bai Kom Rama Gunge, AIR 1958 SC 706 . 4. Per contra, Mr. Kasat, learned counsel for the respondent, opposed the appeal and supported the impugned judgment and decree. He argued that the finding recorded by the trial Judge on the material aspect regarding partition was perverse and contrary to the law and the lower Appellate Court was justified in taking recourse to Order 41 Rule 33 of the Civil Procedure Code for setting aside the findings which were wrong and not based on any evidence. He further argued that even if the appeal or cross-objection was not filed by respondent-defendant, the power of the Appellate Court to correct errors made by the trial Court remains intact and that is what the lower Appellate Court did. Inviting my attention to the cross-examination of Premsingh, Mr. Kasat submitted that Premsingh admitted that there was a written document prepared after oral partition was effected. Inviting my attention to the cross-examination of Premsingh, Mr. Kasat submitted that Premsingh admitted that there was a written document prepared after oral partition was effected. In the wake of the said admission and suppression of alleged document of partition, the lower Appellate Court was justified in rejecting the theory of partition propounded by the plaintiff. At any rate, according to him, all these are the findings of facts recorded by the lower Appellate Court and cannot be disturbed in the second appellate jurisdiction of this Court. As to the document of mutation with Amravati Municipal Corporation, he submitted that the said document cannot be held to be a title document and as held by the lower Appellate Court, it is useful only for fiscal purpose and no title could be derived therefrom. He, therefore, submitted that contradictory case about partition was pleaded by plaintiff and, therefore, the lower Appellate Court rightly rejected the same. He then submitted that the findings of facts recorded by the lower Appellate Court that the Will was not proved according to law is legal, correct and proper since the best witness to prove handwriting and signature of the attesting witness Ismail Ali was his daughter and she was not examined but a third person was examined to do so and that is the matter of appreciation of evidence and hence the same cannot be interfered with. In support of his submission, Mr. Kasat, learned counsel for the respondent, relied on the judgments in Karewwa and ors. v. Hussensab Khansaheb Wajantri and ors., 2002(10) SCC 315 and K. Laxmanan v. Thekkayyil Padmini and ors., 2009(3) Mh.L.J. (S.C.) 510 : 2009(1) SCC 354 . Finally, he prayed for dismissal of this appeal. Consideration: 5. In support of his submission, Mr. Kasat, learned counsel for the respondent, relied on the judgments in Karewwa and ors. v. Hussensab Khansaheb Wajantri and ors., 2002(10) SCC 315 and K. Laxmanan v. Thekkayyil Padmini and ors., 2009(3) Mh.L.J. (S.C.) 510 : 2009(1) SCC 354 . Finally, he prayed for dismissal of this appeal. Consideration: 5. Upon hearing learned counsel for the rival parties and upon perusal of the question that was framed at the time of admission of this second appeal, I reframe the substantial questions of law as under : (i) Whether in the absence of any appeal or cross-objection contemplated by Order 41 Rule 22 of the Civil Procedure Code or any statement by respondent before the lower Appellate Court that the finding against him by the trial Court in respect of any issue ought to have been in his favour, the lower Appellate Court was justified on its own by utilising the power of the Court of appeal contemplated by Order 41 Rule 33 of Civil Procedure Code? Answer: No. (ii) What is the distinction between the provisions of Order 41 Rule 22 and Order 41 Rule 33 of the Civil Procedure Code? Answer: As stated. (iii) Whether the lower Appellate Court committed error by perversely reversing the finding of fact recorded by the trial Court about the existence of partition? Answer: Yes (iv) Whether the lower Appellate Court committed error in holding that the registered Will dated 9-10-1966 Exh.48 was not proved and whether the Will was proved in the light of section 69 of the Evidence Act? Answer: Yes, the Will was proved. (v) Whether the findings recorded by the trial Court that the claim of the plaintiff stood extinguished as per section 27 of the Limitation Act was rightly reversed by the lower Appellate Court? Answer: Yes. (vi) What order? Answer: As per final order." 6. As to question Nos. (i) and (ii): The trial Judge held the existence of partition in the family in the year 1958 and allotment of suit house to Chhotibai. The trial Judge also held that the registered Will dated 9-12-1966 Exh.48 in favour of the appellant-plaintiff by Chhotibai was duly proved. However, the trial Judge held that as per section 27 of the Limitation Act, the claim of appellant-plaintiff stood extinguished and it is only on the basis of the said finding, he dismissed the suit. The trial Judge also held that the registered Will dated 9-12-1966 Exh.48 in favour of the appellant-plaintiff by Chhotibai was duly proved. However, the trial Judge held that as per section 27 of the Limitation Act, the claim of appellant-plaintiff stood extinguished and it is only on the basis of the said finding, he dismissed the suit. The appellant preferred Regular Civil Appeal before the District Judge, under section 96 of the Civil Procedure Code. The respondent did not lodge any cross-objection before the lower Appellate Court nor stated that the finding about partition or Will recorded by the trial Court ought to have been in his favour. Thus, the respondent did not take recourse to the provision of Order 41 Rule 22 of the Civil Procedure Code in order to assail the finding of fact recorded by the trial Judge on the issue of partition and Will. It is, in this context, the lower Appellate Court made endeavour to exercise power under Order 41 Rule 11 of the Civil Procedure Code and reversed the finding of the trial Court on the partition and the Will which is evident from paragraph 13 of his judgment, which I quote hereunder : "13.......The defendant has not filed cross appeal or cross objection in regard to the affirmative finding of the trial judge in relation to the partition and allotment of suit house to the share of Chhotibai and the Will executed by deceased Chhotibai. However, the absence of filing of a cross appeal or cross objection against the affirmative finding of the trial Judge makes no difference and the Appellate Court has wide power under Rule 33 of Order 41 of Civil Procedure Code to set aside the finding of the trial judge on any issue if it appears to the Appellate Court that a particular issue ought not to have been or answered or decided in favour of either of the parties to the suit." 7. Order 41 Rule 22 of the Civil Procedure Code reads thus : "22. Order 41 Rule 22 of the Civil Procedure Code reads thus : "22. Upon hearing respondent may object to decree as if he had preferred a separate appeal--(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. Explanation--A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree insofar as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent. (2) Form of objection and provisions applicable thereto--Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. (3) Unless the respondent files with the objection a written acknowledgment from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent. (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions-relating to appeal by indigent persons shall, so far as they can be made applicable apply to an objection under this rule." Perusal of the Rule 22 supra clearly shows the following salient features : "(i) Without filing the appeal, respondent can support the decree. (ii) Respondent may also state that a particular finding or findings against him by the Court below in respect of any issue ought to have been in his favour. (iii) If respondent is aggrieved by any decree or part of decree against him, he will have to file cross-objection within one month. Explanation to Rule 22 is in the nature of clarification. The respondent, aggrieved by decree based on finding which, according to him is illegal, will have to file cross-objection." To sum up, Rule 22 is an enabling provision for the respondent to take steps, one or all the above three; if he has not preferred any appeal but still wants to contest the decree or part of the decree adverse to him, he will have to file cross-objection within one month which then is treated as appeal. If the respondent is aggrieved by adverse finding on any issue then he will have to state that the finding on such an issue ought to have been in his favour during the course of hearing of the appeal and this is what Order 41 Rule 22, Civil Procedure Code is. As observed by the lower Appellate Court in para 13 cited supra, the respondent did not either file cross-objection or stated before the lower Appellate Court on hearing of the appeal that the finding on the issue of partition and Will ought to have been in his favour. In other words, the respondent did not prefer to take benefit of the provision of Rule 22 before the lower Appellate Court and that is why the lower Appellate Court went on to exercise power under Order 41 Rule 33 of Civil Procedure Code. 8. Order 41 Rule 33 of the Civil Procedure Code reads thus : "33. In other words, the respondent did not prefer to take benefit of the provision of Rule 22 before the lower Appellate Court and that is why the lower Appellate Court went on to exercise power under Order 41 Rule 33 of Civil Procedure Code. 8. Order 41 Rule 33 of the Civil Procedure Code reads thus : "33. Power of Court of Appeal.--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees." Perusal of Rule 33 supra shows that the Appellate Court is invested with the power to pass order to make such further order or decree as the case may be required, even if no appeal or objection has been filed. 9. It is interesting to note that on evidence, the learned trial Judge held that there was a partition effected in the year 1958 amongst three brothers and Chhotibai, the mother and the suit property was allotted to Chhotibai as her share. As against this, the lower Appellate Court held that the factum of partition pleaded by the plaintiff was not proved because Premsingh had given admission in the cross-examination about the fact of partition being reduced to writing and that the document was not produced though the plaintiff had relied on the document. The learned trial Judge held that the registered Will dated 9-12-1966 was duly proved under which the plaintiff become the owner of the suit property while the lower Appellate Court held that the Will was not proved because Usmankhan, being a person aged about 85 years, could not be believed. Secondly, the death of the two attesting witnesses Shankar Mata and Ismail Ali was not proved because their death certificates were not produced. Secondly, the death of the two attesting witnesses Shankar Mata and Ismail Ali was not proved because their death certificates were not produced. To prove the handwriting and signature of Ismail Ali, his daughter was not brought, but Usmankhan (PW3) who was the Headmaster in the school where Ismail worked was examined. The name of Usmankhan was not in the list of witnesses. The trial Judge negatived the plea of defendant that the property was not correctly described and the Appellate Court has not dealt with the subject. The trial Court, thus on material points of partition and Will, held in favour of the appellant-plaintiff but answered the issue of limitation against the appellant-plaintiff and dismissed the suit. As against this, the lower Appellate Court reversed the finding of trial Court on the question of limitation namely; section 27 of the Limitation Act and held the said issue in favour of the appellant-plaintiff in his appeal. But the lower Appellate Court, in the absence of any appeal or cross-objection or challenge to any of the findings by the respondent-defendant, reversed the findings recorded by the trial Judge in favour of the appellant-plaintiff about partition and the Will both and stated that though there was no appeal or cross-objection by the respondent-defendant, as a Court of appeal, he was entitled to take recourse to Order 41 Rule 33 of the Civil Procedure Code. 10. In my opinion, the exercise of power under Rule 33 of Order 41, Civil Procedure Code must be held to be limited and is not all pervasive lest it should diminish the requirement contemplated by Rule 22 as ordained by law in the eventualities mentioned in Rule 22. In my opinion, the legal position stated in or quoted in paragraph 10 in judgment in Venukuri Krishna Reddi and anr. v. Kota Ramireddi and ors., AIR 1954 Madras 848 appears to be the correct reading of the said provision. I quote extracted portion from para 10 of the said judgment: "10. Though Order 41, Rule 33 confers wide and unlimited jurisdiction on Courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well defined principles in accordance with which that jurisdiction should be exercised. I quote extracted portion from para 10 of the said judgment: "10. Though Order 41, Rule 33 confers wide and unlimited jurisdiction on Courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well defined principles in accordance with which that jurisdiction should be exercised. Normally a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under Order 41, Rule 33. As observed in Jawahar Bono v. Shujaat Hussain Beg, AIR 1921 All 367 (H) explaining the decision of the Full Bench in Rangamlal v. Chandu, 34 All 32 (I): "where there is no sufficient reason for a respondent neglecting either to appeal or to file objections the Courts will hesitate before allowing him to object at the hearing or the appeal." In Abjal Majhi v. Intu Bepari, AIR 1916 Cal 250 (J). Mukherjee J. observed : "This rule is no doubt very widely expressed; but clearly, it should not be applied so as to enable a party litigant to ignore the other provisions of the Code or provisions of statutes like those which relate to the limitation or payment of Court fees." Vide also Akimannessa v. Bepin Behari, AIR 1916 Cal 261 (K). But there are well recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties..... These are well recognised classes of case in which it would be legitimate to exercise the powers under that rule even though there was no appeal relating to the subject-matter. This, however, is not intended to be an exhaustive enumeration of the classes of cases in which Courts could interfere under Order 41, Rule 33. Such an enumeration would neither be possible nor even desirable for situations might arise which cannot be foreseen or predicted in which the Court must have the power to exercise its jurisdiction under that rule. As observed by Jenkins C. J. in Gangadhar v. Banabhashi, AIR 1914 Cal 722 (P), "no hard and fast rule can be laid down". Such an enumeration would neither be possible nor even desirable for situations might arise which cannot be foreseen or predicted in which the Court must have the power to exercise its jurisdiction under that rule. As observed by Jenkins C. J. in Gangadhar v. Banabhashi, AIR 1914 Cal 722 (P), "no hard and fast rule can be laid down". But however extensive this power may be, one principle can be taken to be well established: it is that when a party having right to appeal fails to do so, relief should ordinarily be refused to him under Order 41, Rule 33. If the matter falls under one or the other of the classes of cases mentioned above if there are special circumstances, the Court might exercise its power under that rule in the interests of justice but subject to such exceptions the Court will exercise a sound discretion in refusing to grant relief under that rule to one who has submitted to the decree. As held by the Privy Council in Chokalingam Chetty v. Seethai Ache, AIR 1927 P.C. 252 (Q), the right which a decree-holder has under a decree when the time for appealing against it has expired is a valuable one and Courts must act with considerable caution and reserve before depriving him of that right by invoking the powers under Order 41, Rule 33. Having regard to these principles the question has to be determined whether the exercise by the subordinate Judge of the power under Order 41, Rule 33 is in the instant case proper." In the case of Chaya and ors. v. Bapusaheb and ors., (1994) 2 SCC 41 , the Apex Court, inter alia, held that the power under Rule 33 is based on the salutary principle that the Appellate Court should have power to do justice between the parties. Paragraphs 14, 15 and 16, which are relevant, read thus : "14. This provision is based on a salutary principle that the Appellate Court should have the power to do complete justice between the parties. The object of the rule is also to avoid contradictory and inconsistent decisions on the same questions in the same suits. Paragraphs 14, 15 and 16, which are relevant, read thus : "14. This provision is based on a salutary principle that the Appellate Court should have the power to do complete justice between the parties. The object of the rule is also to avoid contradictory and inconsistent decisions on the same questions in the same suits. For this purpose, the rule confers a wide discretionary power on the Appellate Court to pass such decree or order as ought to have been passed or as the nature of the case may require, notwithstanding the fact that the appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross objection. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the Appellate Court should not hesitate to exercise the discretion conferred by the said rule. 15. The present is one such case where according to us, the High Court ought to have used the discretionary power conferred by the rule. The facts which have been sufficiently detailed above, show that a customary right by a section of the public was sought to be asserted against the entire suit property in which rights and interests of all the defendants were involved. The said right could not be exercised partially in respect of only a particular piece of land. The plaintiffs had gone to the Court asking customary right in respect of the entire suit property and had not specified any particular portion of the property as the object of the exercise of the said right. Apart from the fact that R.S. Nos. 975/1 and 975/2 were originally the joint family property of all the defendant-brothers, whatever the inter se relation between them with respect to the said property, various portions of both the survey numbers were sold to the vendee-defendants. The plaintiffs had not made clear as to which of the remaining portions of the suit land were the subject-matter of their customary right. Admittedly, on the sold lands, vendee-defendants had constructed houses. The plaintiffs had not made clear as to which of the remaining portions of the suit land were the subject-matter of their customary right. Admittedly, on the sold lands, vendee-defendants had constructed houses. The trial Court while granting the decree, had excluded portions of the land which were occupied by the residential houses. The trial Court, had further, not granted decree in respect of specific portions of the suit property against specific defendants. It had granted the decree generally against the entire land minus that occupied by the houses, and against all the defendants together. Defendant 1 had preferred an appeal before the District Court challenging the decree granted by the trial Court against the entire land viz., that belonging to himself and to all the other defendants. It is that appeal which was decided on merits by the Appellate Court notwithstanding the death of defendant 2 during the pendency of the appeal. Thus, granting decree in favour of defendant I alone when it was not claimed by the plaintiff in the original suit, and based upon a common right asserted against the entire land which was the relief claimed by the plaintiffs, would in the present case result in contradictory findings viz., that whereas the customary right could not be claimed against any portion of the suit property (that is the finding of the High Court), the trial Court's decree for exercise of such rights would continue to operate against a part of the land merely because the other defendants had not preferred any appeal. 16. We find that in the circumstances, this was a fit case where the High Court ought to have exercised its power under Order 41, Rule 34. In fact, the non-exercise of the power has resulted not only in the miscarriage of justice but in contradictory results in respect of the same subject-matter and based on the same alleged right. In this connection, we may refer to decisions of this Court in Mahabir Prasad v. Jage Ram and others, (1971) 1 SCC 265 ; Harihar Prasad Singh v. Balmiki Prasad Singh, (1975) 1 SCC 212 ; Giani Ram v. Ramji Lal, (1969) 3 SCR 944 and Koksingh v. Smt. Deokabai, (1976) 1 SCC 383 to support our conclusion." 11. In this connection, we may refer to decisions of this Court in Mahabir Prasad v. Jage Ram and others, (1971) 1 SCC 265 ; Harihar Prasad Singh v. Balmiki Prasad Singh, (1975) 1 SCC 212 ; Giani Ram v. Ramji Lal, (1969) 3 SCR 944 and Koksingh v. Smt. Deokabai, (1976) 1 SCC 383 to support our conclusion." 11. In the light of legal position stated above, I think that the lower Appellate Court has not kept in mind the fine distinction between the provisions of Rule 22 and Rule 33 of Order 41 of the Civil Procedure Code. Power conferred under Rule 33 being limited, has to be exercised sparingly and where the Appellate Court finds that it is necessary to do the complete justice between the parties, recourse to this rule can be taken and even in the absence of respondents or in the absence of cross-objection the decree could be modified that is the distinction between Rule 22 and Rule 33. I, therefore answer question No. 1 in the negative and question No. 2 accordingly. 12. As to question No. (iii): As to the question of partition, the learned trial Judge recorded the finding as under: "16. AS TO ISSUE NO. 5 :-- It is the contention of the plaintiff that partition was taken place between Chhotibai and her 3 sons in the year 1958 and suit property came to the share of Chhotibai, the defendant has denied this fact and inter alia contended that there was no partition between legal heirs of Khushalsingh and Chhotibai. According to the defendant no specific portion is shown to be owned by each person in any of the record, therefore suit as framed is not maintainable unless and until such for partition and separate possession is filed. 17. During the course of argument the learned counsel for the plaintiff has diverted my attention towards the document Ex. No. 36/1, it is the public document. It is the extract of assessment. According to him, it has been clearly mentioned in the said document that partition between Chhotibai and her 3 sons took place in the year 1958. I have seen the said document. On perusal, it appears that, in the column No. 10 it has been clearly mentioned that oral partition was taken place between Chhotibai and her 3 sons in the year 1958. I have seen the said document. On perusal, it appears that, in the column No. 10 it has been clearly mentioned that oral partition was taken place between Chhotibai and her 3 sons in the year 1958. It is necessary to mention here the relevant content of Ex. No. 36/1, which are as under: ^^HkwfeLokeh HkkÅ fg’;kus NksrhckbZ o frps eqya dUgS;kflax] ‘kkeflax] izseflax ákaP;k vkilkr rksaMh okV.;k >kY;k izek.ks lu 1148 iklwu** Further, in the column No. 13, the area of suit property has been mentioned. Thus Ex. No. 36/1 itself reflects limelight that partition was taken place as contended by the plaintiff. Further it is admitted position that defendant or Narmadabai had or has not challenged the said partition till today. Further, in the para No. 17 of the written statement it is stated by the defendant that the legal heirs of deceased Khushalsingh and Chhotibai were occupying separate premises as suit property according to their convenience. This is also one of the ground to conclude that there was partition. For a moment, if we considered that partition was not taken place as contended by them, thus as stated by defendant in written statement; it was not necessary for Chhotibai and her sons to reside in the separate premises. Thus, plaintiff has proved that there was partition, and Ex. No. 36/1 also supports to the case of plaintiff. Hence, I answer this issue in the negative." As against the above finding, the lower Appellate Court recorded the finding thus : "14. In the background of this position of law, I proceed to decide the fact whether the suit house was allotted to deceased Chhotibai in a partition. Mr. Dotivalla, Advocate has invited my attention to a certified copy of the register of a record of right maintained by the office of Nazul Amravati and contented that in the said extract (filed along with the list of document at Exh.36), it has been mentioned that in oral partition which took place in 1958 amongst three sons and the widow of deceased Khushalsingh, the suit plot has come to the share of the widow of Khushalsingh i.e. Chhotibai. He has argued that the said certified copy has not been exhibited but since it is public document it can be read in evidence. He has rightly argued so. He has argued that the said certified copy has not been exhibited but since it is public document it can be read in evidence. He has rightly argued so. A public document can be read in evidence and therefore I will make a reference to the said document while deciding the fact of partition and the allotment of the suit plot to the share of Chhotibai. The plaintiff and his father Premsingh have deposed that the suit plot came to the share of Chhotibai in a partition. At the time of partition, the plaintiff was not born. So, obviously his knowledge about the partition is hearsay one. The father of the plaintiff has deposed that after the death of his father, the partition of the estate left by his father Khushalsingh had taken place amongst him, his two brothers and mother Chhotibai. In the partition, a plot admeasuring 10 X 50 ft. (probably out of plot No. 3/3) was allotted to his mother Chhotibai. In the cross-examination this witness has admitted that the partition had taken place in 1958. The terms of partition were reduced to writing. In the partition, he had received a field towards his share. He has admitted that he has not filed the said partition deed as he did not feel it necessary to produce the partition deed. This is what the evidence which the plaintiff has adduced in report to the partition. 15. Obviously the plaintiff was not born when the partition alleged to have been taken place. So, his evidence is not helpful to establish the fact of partition. However, the evidence of his father is material. According to his evidence when the partition had taken place, a deed was reduced to writing. From his cross-examination it is more than evident that the deed of partition is in existence. He has not produced the said deed during trial. In fact, the partition deed would be the best material to prove the fact of partition. Thus, the best evidence to prove the partition has been withheld. His evidence, as regards the mode of partition is contrary to the document which has been relied upon by the plaintiff. I have already mentioned earlier that Mr. In fact, the partition deed would be the best material to prove the fact of partition. Thus, the best evidence to prove the partition has been withheld. His evidence, as regards the mode of partition is contrary to the document which has been relied upon by the plaintiff. I have already mentioned earlier that Mr. Dotivalla Advocate relied upon the extract of property register in which there is a mention that the suit plot has come to the share of Chhotibai in an oral partition which took place in 1958. Thus, the document relied upon by the plaintiff as regards the mode of partition is totally in conflict with the evidence of the father of the plaintiff, who claims that the partition deed was reduced to writing. The evidence of father of plaintiff carries much weight as regards the fact of partition since he was one of the parties to the partition. According to his evidence, partition deed was prepared. If that is so, then the entry made in extract of property register that an oral partition had taken place is unreliable. Above all, the entries made in the property register are made for fiscal purposes. Such entries do not confer the title on the person concerned. The said entries at the most go to establish the possession of the person concerned over the immovable property. Therefore, the said extract is of no use to establish the fact of partition and the allotment of the plot to the share of Chhotibai. 16. When the father of the plaintiff claims that the partition was reduced to writing, then the said partition deed ought to have been produced by the plaintiff which has not been produced and therefore the only irresistible conclusion which could be drawn is that the plaintiff has failed to prove the fact that there was a partition of the estate of Khushalsingh and in the partition, the suit plot was allotted to deceased Chhotibai. Hence, I answer this point in negative." 13. I have carefully perused the pleadings of the parties in entirety and also evidence of witnesses and the most importantly, the document filed with list Exh.36 i.e. the entry of record of right maintained by office of Nazul, Amravati. Hence, I answer this point in negative." 13. I have carefully perused the pleadings of the parties in entirety and also evidence of witnesses and the most importantly, the document filed with list Exh.36 i.e. the entry of record of right maintained by office of Nazul, Amravati. The lower Appellate Court has accepted that the said document could be read in evidence being a public document but there appears to be omission in accepting the same. Be that as it may, the same has been admitted in evidence by the lower Appellate Court and he also relied on the same. Upon analysis of the reasons given by the two Courts as above which are contrary, I am in full agreement with the reasons given by the learned trial Judge on the issue of partition and find that the reasons given by the lower Appellate Court are perverse and cannot be countenanced. The lower Appellate Court has chosen to rely on the stray admission given by Premsingh that the partition was reduced to writing and it has made a capital out of it. In the first place, reading of the plaint and written statement shows that it was nobody's case that there was a partition reduced to writing. On the contrary, the case of the plaintiff was that the three brothers and Chhotibai had made oral partition in 1958 and para 17 of the written statement supported the said version as relied upon by the trial Judge. The most important evidence about the entry of oral partition in the record of the year 1958, maintained by the Nazul office clearly shows that there was oral partition in the year 1958 and Chhotibai got her share in the suit property. In the absence of any pleadings about document of partition in existence and the case of the plaintiff being the one of oral partition, the respondent-defendant was not entitled to bring such type of stray admission about partition by exception of document. In fact, case of the defendant was that there was no partition at all. Thus, on the strength of document, old Nazul entry of 1958, which should have been exhibited, vide list Exh.36, on preponderance of probabilities coupled with para 17 of the written statement and oral evidence of plaintiff's father Premsingh, the trial Court was justified in returning the affirmative finding in respect of oral partition. Thus, on the strength of document, old Nazul entry of 1958, which should have been exhibited, vide list Exh.36, on preponderance of probabilities coupled with para 17 of the written statement and oral evidence of plaintiff's father Premsingh, the trial Court was justified in returning the affirmative finding in respect of oral partition. The reason given by the lower Appellate Court by acting on the stray admission is perverse. 14. The second reason given by the lower Appellate Court is that the plaintiff relied on the document of partition. That is not correct. On the contrary, his case was of oral partition having taken place and duly recorded with the Amravati Municipal Corporation. 15. The next reason given by the lower Appellate Court that the entry in the Nazul record or Corporation is for fiscal purpose and did not confer the title. The reason is clearly faulty. The question is whether the oral partition pleaded by the plaintiff with the supportive old mutation entry by the Nazul department in the year 1958 was proved and not whether Nazul entry would confer the title. If proved, such a partition as is the settled legal position, does not require registration. The lower Appellate Court failed to make out a distinction about the importance of Nazul entry in respect of oral partition duly recorded subsequent to the partition. The said nazul document has very high probative value and in the absence of any challenge to the same from the year 1958 and even in the present suit, the lower Appellate Court was not justified in rejecting the said document for the said reason. I, therefore, hold that the finding about oral partition, reversed by the lower Appellate Court is perverse. Hence, I answer question No. (iii) in the affirmative. 16. As to question No. (iv): Insofar as the proof of Will is concerned, the trial Judge gave following reasons for accepting the Will, which I quote as under : "15......According to the learned counsel for the plaintiff, it has come on record that witness Shankar has son and witness Ismailali has one daughter who is residing at Akola. The plaintiff has neither examined son of Shankar nor daughter of Ismailali, therefore, signature of witnesses not proved as per section 69of the Indian Evidence Act. The plaintiff has neither examined son of Shankar nor daughter of Ismailali, therefore, signature of witnesses not proved as per section 69of the Indian Evidence Act. I do not agree with this submission made by the learned counsel for the defendant because to prove the signature of witness Ismailali the plaintiff has examined one witness, who is acquainted with Ismailali. Because it has come in his evidence that Ismailalsi was serving as Assistant teacher when he was serving as Head Master. From the version of this witness, it can be concluded that he has many occasions to see the signature of Ismailali being Head Master of the School. Therefore he is reliable witness to prove the signature of Ismailali as such, though plaintiff has not examined the son of Shankar and daughter of Ismailali, it does not make any difference. Further PW 2 has clearly stated in his deposition that Vendor Shri Bore wrote the contents of Will and contents were read over. It has also come in his evidence that witnesses put their signatures. The evidence of the PW No. 2 is not shaken in the cross-examination in this regard. Thus in view of above discussion, I hold that plaintiff has rightly proved Will Ex. No. 48 and on the basis of Will, plaintiff become owner of suit property. Hence, I answer this issue in the affirmative." As against above, the lower Appellate Court recorded the following finding of fact in relation to the Will: "19. The plaintiff has deposed that his grandmother Chhotibai has bequeathed the suit house to him by executing a Will. PW No. 2 Premsingh, who is the father of the plaintiff has deposed that in the year 1966, when the plaintiff was aged about four years, his mother has bequeathed the suit house to the plaintiff by executing a Will. He was present at the time of execution of Will. The Will was read over to deceased Chhotibai, who put her thumb mark on the Will. One Shankar Mama and Ismail Ali signed the Will as attesting witnesses and then the Will was presented for registration. It was registered. This witness has deposed that the attesting witnesses to the Will are dead and the scribe of the Will is also dead. One Shankar Mama and Ismail Ali signed the Will as attesting witnesses and then the Will was presented for registration. It was registered. This witness has deposed that the attesting witnesses to the Will are dead and the scribe of the Will is also dead. PW No. 3 Usman Khan has deposed that he and attesting witnesses Ismail Ali worked together as a teacher in the school and therefore he is acquainted with the handwriting and the signature of attesting witness Ismail Ali. This witness has identified the signature of attesting witness Ismail Ali on the Will at Exh.48. Commenting upon the evidence of witness Usman Khan, Shri Babrekar, Advocate has argued that there is nothing on record to show that Usman Khan worked with attesting witness Ismail Ali and therefore the so called claim of Usman Khan that he is acquainted with the signature of Ismail Ali is not genuine. Further, the daughter of Ismail Ali is alive, who is the best witness to identify the signature of Ismail Ali. The trial Judge has accepted the evidence of Usman Khan and held that from the evidence of Usman Khan, it can be said that Ismail Ali singed the Will as an attesting witness. The point in question is whether there is material on record to show that both the attesting witnesses on Will are dead. The death certificates of the attesting witnesses by name Shankar Mama and Ismail Ali are not forthcoming. So, in the absence of these facts, it is very difficult to accept the evidence of Usman Khan and the father of the plaintiff that the attesting witnesses on the Will are dead. Assuming for a moment that the attesting witnesses are dead, the next question arises whether the signature of attesting witness on the Will has been duly proved through the evidence of Usman Khan. When the attesting witnesses are dead or cannot be found, then it has to be proved that the attestation of one of the attesting witness is in his handwriting. Whenever a Court has to form an opinion, as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed is a relevant fact. Whenever a Court has to form an opinion, as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed is a relevant fact. Therefore, it has to be seen whether Usman Khan is acquainted with the signature of Ismail Ali. It may be noted here that the evidence as regards the acquaintance with the handwriting of the person by whom the document is supposed to be written or signed carries little value. Although Usman Khan has claimed that he and Ismail Ali worked as a teacher in one and the same school, there is nothing on record to show that they worked together. Even the father of plaintiff who claims to be present at the time of execution of Will does not state that Ismail Ali was a teacher. Usman Khan, who has identified the signature of Ismail Ali was aged about 85 when his evidence was recorded. He has admitted in his cross-examination that since last five years his eye sight has become weak. In view of the advanced age of Usman Khan and his impaired eye sight, his evidence that the signature on the Will is of Ismail Ali is of a weak character and as such it Will not be safe to rely upon the evidence of Usman Khan as regards the identification of signature of Ismail Ali as an attesting witness on the Will at Exh.48. Therefore, I find that the plaintiff has failed to establish the attestation of the Will. Above all, the daughter of Ismail Ali, who is the best person to identify the signature of Ismail Ali, has not been examined by the plaintiff. So, the best witness to prove the signature of attesting witness has been withheld. Above all, the name of Usman Khan was not figured in the witness list filed on behalf of the plaintiff. At the eleventh hour Usman Khan has been examined by the plaintiff. It has been held by the Apex Court in 1993 B.C.J. at page 782, Thakur Sen Negi v. Dev Raj Negi that the examination of a witness other than the witnesses cited in the witness list is at the risk of party concerned which affects the quality of evidence. It has been held by the Apex Court in 1993 B.C.J. at page 782, Thakur Sen Negi v. Dev Raj Negi that the examination of a witness other than the witnesses cited in the witness list is at the risk of party concerned which affects the quality of evidence. As far as this case is concerned, Usman Khan was not cited as a witness, but still he was examined and therefore the evidence of Usman Khan as regards the identification of the signature of Ismail Ali on the Will at Exh.48 has shaken. 20. Thus, for all these reasons I find that the evidence of Usman Khan is not worthy of reliance. Consequently, the plaintiff has failed to prove the attestation of the Will at Exh.48. Apart from this, one of the disturbing feature of the Will is that the said Will has disinherited the sons of deceased Chhotibai. It is an admitted fact that deceased Chhotibai had three sons and three daughters. All of them have been disinherited in the Will without any reason. It has been held by the Apex Court in AIR 1958 SCC at page 2861, Gurudian Kaur and ors. v. Kartar Kaur and ors., (relied upon by Mr. Babrekar advocate) that when some of the natural heirs are disinherited in the Will without any reason, then it is a suspicious circumstance. The sons and the daughters of deceased Chhotibai have been disinherited in the Will without any reason and therefore genuineness of Will has come under the clouds of doubt. 21. Apart from this, it appears that the father of the plaintiff has taken interest in the matter of execution of Will. He says that at the relevant time deceased Chhotibai was staying with him. It appears that the remaining sons of Chhotibai were residing separately from Chhotibai. As per the version of the father of plaintiff, Chhotibai was staying with him. So, in the above circumstances, it can be stated that the father of the plaintiff has taken lot of interest in the matter of getting the Will executed in favour of his son and therefore the Will is lacking voluntary character." 17. Having given conscious attention to the above reasons, I am of the opinion, that the finding recorded by the trial Judge is legal, correct and proper while finding recorded by the lower Appellate Court is perverse. Having given conscious attention to the above reasons, I am of the opinion, that the finding recorded by the trial Judge is legal, correct and proper while finding recorded by the lower Appellate Court is perverse. The Will in question is a registered document. Chhotibai was residing with Presmsingh and, obviously, after partition throughout her life while other brothers resided separately. Merely because Chhotibai did not give any share in the suit property to the other sons, the Will could not be rejected on the said alleged suspicious circumstance. The reason is that all the brothers and Chhotibai had separated way back in the year 1958 and were enjoying their respective shares. Admittedly, Chhotibai was being taken care of by Premsingh and was residing with him throughout her life. She was knowing that her sons were given their respective shares. Premsingh served her till her death and she resided with Premsingh. There was nothing wrong on her part or it cannot be said to be a suspicious circumstance that she bequeathed her share only to the son of Premsingh. On the contrary, it appears to be natural for her in the above circumstances that she gave her share by Will to the plaintiff-Premsingh's son. 18. The second reason given by the lower Appellate Court is that the attesting witness Ismail Ali's signature and handwriting should have been got identified from daughter of Ismail Ali. In my opinion, the reason is absurd. In this context, it will be helpful to look into section 69 of the Evidence Act, which reads thus: "69. Proof where no attesting witness found.--If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person." Perusal of the above provision clearly shows that it is not necessary to examine the attesting witness, if no such attesting witness could be found. Obviously, if attesting witness is dead, the question of producing such a witness before the Court would not arise. The further requirement, therefore, is that attestation of one attesting witness, muchless, his handwriting, should be proved. 19. Obviously, if attesting witness is dead, the question of producing such a witness before the Court would not arise. The further requirement, therefore, is that attestation of one attesting witness, muchless, his handwriting, should be proved. 19. I have read the evidence of Usmankhan (PW3), who was Head Master in the school where Ismail Ali was Assistant Teacher for number of years. Though, Usmankhan was aged about 85 years at the time of recording evidence, his testimony has not at all been shaken nor he has anywhere stated that he did not know signature and handwriting of Ismail Ali. On the contrary, he has boldly stated that the signature and handwriting on the Will-Exh.48 was of Ismail Ali. In fact, Usmankhan was the only proper witness for identifying the handwriting and signature of Ismail Ali and not his daughter since Ismail Ali served in the same school under him for number of years. Usmankhan stated that he was acquainted with the signature and handwriting of Ismail Ali. One fails to understand as to why the lower Appellate Court disbelieved it only because he was an aged old person. The next reason about name of Usmankhan not to be found in the list of witnesses is equally wrong and illegal because when he was brought as witness, none objected. At any rate, it is not case of respondent-defendant that Usmankhan was not the Head Master of the school in which Ismail Ali was working under him as his Assistant Teacher. The last reason given by the lower Appellate Court about Chhotibai residing with Premsingh and the plaintiff and, therefore, father of the plaintiff had taken interest in getting the Will executed, is another weak reason and I do not agree with it. Hence, I hold that the finding of the lower Appellate Court about the Will is perverse, while the one recorded by the trial Judge is legal and correct. Hence, I answer question No. (iv) in affirmative and in the light of provision of section 69 of the Evidence Act, hold that the Will was proved. 20. As to question No. (v):-- As stated by me earlier, in the trial Court, the plaintiff succeeded on all the issues on merits but for the issue of limitation and fortunately, the lower Appellate Court reversed the said finding in favour of the appellant. 20. As to question No. (v):-- As stated by me earlier, in the trial Court, the plaintiff succeeded on all the issues on merits but for the issue of limitation and fortunately, the lower Appellate Court reversed the said finding in favour of the appellant. I have checked up the finding recorded by both the Courts below and I find that the finding recorded by the lower Appellate Court in paragraph 23 of the judgment on the point of limitation is legal, correct and proper. There is no cross-objection or challenge to the said finding from the respondent. I quote paragraph 23 of the judgment of the lower Appellate Court, which reads thus : "23. The point in question is whether the finding of the trial Judge that the suit is barred by limitation in view of section 27 of the Limitation Act is sustainable. Section 27 of the Limitation Act says about the extinguishment of right to property. Section 27 of the Limitation Act bars the remedy and not the right. Section 27 of the Act does not confer the title on the defendant, but merely extinguishes the title of the plaintiff. The point in question is whether the title of the plaintiff to the suit house which he has set up on the basis of the Will has been extinguished? The answer is No. Once the plaintiff has come up with a case that he has become owner of the suit house on the basis of Will immediately on the death of Chhotibai, then merely because he has filed a suit in 1992, does not by itself extinguish the title so set up by him. Nowhere the defendant has claimed that she has become owner of the suit house by virtue of adverse possession. But even otherwise the plea of adverse possession cannot be validly maintained by her since she claimed that she is staying in the suit house as coheir. The trial Judge has totally forgotten the position of law that the period of limitation for filing the suit is always governed by the articles of the Limitation Act and not section. But even otherwise the plea of adverse possession cannot be validly maintained by her since she claimed that she is staying in the suit house as coheir. The trial Judge has totally forgotten the position of law that the period of limitation for filing the suit is always governed by the articles of the Limitation Act and not section. Thus, in the above circumstances, I find that the trial Judge that the suit commenced by the plaintiff is barred by limitation absolutely perverse and therefore it needs to be set aside." In addition, it would be appropriate to see section 27 of the Limitation Act. Section 27 of the Limitation reads thus : "27. Extinguishment of right to property.--At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." Thus, section 27 of the Limitation Act obviously will have no application in the instant case which is clear from the mere reading thereof. The said section has absolutely no application in the present case. Hence, I answer the question No. (v) in the affirmative. To sum up, the instant appeal must succeed. I, therefore, pass the following order: ORDER "(i) Second Appeal No. 391/1999 is allowed with costs. (ii) Judgment and decree dated 14-11-1994 passed by 5th Jt. Civil Judge Jr. Dn. Amravati in Reg. Civil Suit No. 641/92 and judgment and decree dated 20-7-1999, passed by Addl. District Judge, Amravati in Reg. C.A. No. 315/1994 are set aside. (iii) Reg. C.S. No. 641/1992 filed by the appellant is decreed. (iv) The defendant shall deliver possession of suit property viz.; plot No. 3/3 during 17C, area 10 X 50 on which there was dilapidated house which was numbered as 421 of Ward 23, having boundaries: to the North of the plot, Chawl of Dayaram Teli, to the South there is a plot of Premsingh, to the East Bypass highway and to the West, the plot No. 3/2 of Premsingh, after removing the illegal structure erected by the defendant, within three months. (v) Decree be drawn up accordingly."

Sangramsingh Premsingh Thakur v. Sarlabai