Henry Richards, C.J.
1. This appeal arises out of a suit in which the plaintiff' claims a declaration of his title to and possession of a certain plot of land. The case will be found reported in 13 A.L.J. 779. It is only necessary to shortly sum-up the facts which have been found by both the courts below. In a particular mahal there were nine pattis formed in the year 1875. Patti No. 9 was a shamilat patti common to all the co-sharers. In course of time patti No. 2 became the property of plaintiff. The defendant was a co-sharer in pattis Nos. 4 and 5 and also in the shamilat patti No. 9. The plaintiff, or his predecessor in title, had no share in pattis Nos. 4 and 5. Iu 1904, the defendant made an application for perfect partition in the Revenue Court. He asked that a separate mahal might be made of his share in pattis Nos. 4 and 5 and also in No. 9. For some reason or another this application was dropped and a fresh application was made for imperfect partition in the year 1905. There is nothing to show whether or not the predecessor in title of the plaintiff, Dular Singh, ever got notice of this second application. It resulted in a separate patti being formed of the defendant's share in pattis Nos. 4 and 5, the shamilat patti remaining unpartitioned. The plaintiff instituted the present suit, alleging that in the partition made on the second application of the defendant, a portion of his patti No. 2 was erroneously brought into the defendant's new patti. He accordingly claimed a declaration of his title to the plot and possession if he should be found out of possession. Both the courts agreed that there was a mistake and that portion of the plaintiff's land was by mistake given to the defendant. The first two courts decided in his favour. A learned Judge of this Court held that the suit was barred by the provisions of Section 233, Clause (k), of the Land Revenue Act of 1901. That section provides that no person shall institute any suit or other proceeding in the Civil Court with respect to partition or union of mahals except as provided in Sections 111 and 112. Sections 111 and 112 provide that if in partition proceedings in the Revenue Court questions of title arise, the Collector may, if he thinks fit, try the question himself in which case his to adopt the procedure therein mentioned and his decree is deemed the decree of the Civil Court. It seems to me extremely difficult to hold that the present suit is a suit 'with respect to partition or union of mahals.' It is admitted that, if the very same suit was brought by a person who had not received notice or by reason of his not being a recorded co-sharer was not a party to the partition proceedings, his suit would not have been barred by Section 293(k). But it is said that the section is a bar to the suit if the plaintiff was a party to the partition proceedings in the Revenue Court. I have great difficulty in seeing how a suit is a suit 'in respect of partition' if brought by one person while it is not a suit 'in respect of partition' if brought by another. The suit, if brought by a person who was not a party to the Revenue Court proceedings, affects the partition neither more nor less than it would if he was a person who was a party to the Revenue Court proceedings. It would disturb or upset the recent partition as much and as little in the one case as in the other. The section deals with suits of a particular nature, not with the parties to it. One has to carefully bear in mind the distinction between holding that the suit is a suit which the plaintiff cannot institute in the Civil Court and holding that the proceedings in the Revenue Court are a defence to the suit. If the suit is one which cannot be instituted, it is at once thrown out on the ground that the Civil Court has no jurisdiction to hear it. It is quite a different matter if, after the case had been heard, the court finds that the proceedings in the Revenue Court disclose a defence to the suit, for example, on the ground of res judicata. The facts of the present case seem to me to illustrate how dangerous it would be to hold that a suit like the present could not be instituted in the Civil Court, and in this connection I may remark that a party has a right to institute in the Civil Court any suit which he is not by the Legislature in clear terms prevented from instituting. In my opinion, under the circumstances of the present case, we are entitled and bound to treat the second application which was made by the defendant in the year 1905, as an application for the partition of pattis 4 and 5 alone. These were the only two pattis which were, as a matter of fact, dealt with in the partition. This being so, the present plaintiff or his predecessor in title was in no way interested in the manner in which pattis 4 and 5 were partitioned. The plaintiff's predecessor in title had no share in pattis 4 and 5 and the applicant for partition had no share in patti No. 2, which belonged to the plaintiff's predecessor in title. It seems to me that the plaintiff was not even a necessary party to this second application in so far as it was for the partition of pattis 4 and 5. He would only be a necessary party to a partition which was for the division of the property in which he was concerned. In my opinion the present suit was not barred by the provisions of Section 233, Clause (k), of the Land Revenue Act, and, as the findings are in favour of the plaintiff, I think the decree of the lower appellate court ought to be restored. I would allow the appeal.
2. I may add one word about the case of Muhammad Sadiq v. Laute Ram (1901) I.L.R. 23 All. 291. It seems to me that the plaintiff was there asking the Civil Court to partition what was part and parcel of the property which could only be partitioned by the Revenue Court.
3. I fully agree. Partition means, as pointed out in Section 106 of the Revenue Act, division not only of a mahal but also a part of a mahal. In the present case what was actually partitioned on the basis of the application of the 25th of March, 1905, was a part of the mahal in which the present plaintiff, or his predecessor in title, had no concern. It was immaterial to him how the land of those two pattis was divided amongst the co-sharers therein. What seems to have happened is that in dividing the land of those two pattis the partition court erroneously thought that a certain plot was within the boundaries of those two pattis and took it into consideration in the partition. Of that fact the plaintiff, or his predecessor is title probably had not the slightest information at all. It was only when the plaintiff's possession began to be disturbed that he had any knowledge of what had occurred. He has come into court with the present suit, which in substance and in form is a simple suit for possession of land on the basis of title on the allegation that certain persons who had no title thereto had trespassed on it and some had taken it into their possession. I believe that, as a matter of fact, he made no objection to the partition proceedings nor was it necessary for him to do so. In my opinion in the circumstances of this case it is utterly impossible to say that the suit is a suit in respect of the partition of pattis Nos. 4 and 5. It is really a suit in respect of the trespass committed by certain persons on property to which they had no title whatsoever. In the course of the arguments attention has been called to the decision of this Court in Muhammad Sadiq v. Laute Ram (1901) I.L.R. 23 All. 291 and great stress has been laid upon certain remarks to be found in the Judgment therein. The facts of that case were simple. There was a partition. All the co-sharers were parties to that partition. The lands constituting the mahal were actually divided among the co-sharers. On some of the lands stood some trees. The plaintiff in that case came forward with a civil suit for the partition of the trees on the allegation that the Revenue Court had not, as a matter of fact, partitioned the trees and moreover had no jurisdiction whatsoever to partition the trees. Therefore he asked for division of the trees among the persons concerned. This Court held and I think rightly that the Revenue Court had jurisdiction to divide up not only the land but also the trees upon it, and that it had actually divided both the land and the trees. The suit was one which was barred by Section 241(f) of the old Land Revenue Act, which deprived the Civil Court of any jurisdiction in a matter relating to the distribution of the land among the co-sharers. In my opinion the case was rightly decided on the facts thereof, and any remarks which are to be found are to be read in conjunction with the facts and circumstances of that case and they are not to be taken out of their setting and placed apart as being general, principles which will govern the facts and circumstances of every other case.
4. In my opinion the decision of the courts below was correct and I would allow the appeal.
Muhammad Rafiq, J.
5. I am also of opinion that this appeal should prevail. The appeal is on behalf of the plaintiff and the question for decision is whether his claim is barred by the provisions of Section 233, Clause (k), of the United Provinces Land Revenue Act (Local Act No. III of 1901). In order to determine the question it is necessary to recite some of the facts which are either admitted or proved. It appears that as long ago as 1875, a partition took place through the Revenue Court between the co-sharers of the mahal under which it was divided into several pattis, one of which, patti No. 9, was known as potti shamilat. Patti No. 2 was awarded to one Dular Singh, the predecessor in title of the plaintiff, and pattis Nos. 4 and 5 were allotted to Dal jit Singh defendant and some others. In 1905, Daljit Singh applied for separation of his share out of pattis Nos. 4 and 5 as also out of the shamilat patti No. 9 by perfect partition. On the application of Daljit Singh notices were issued to all the co-sharers of the pattis in the mahal. The Assistant Collector, however, declined to make a perfect partition, expressing an opinion that he would, if so desired, allow an imperfect partition, Thereupon Daljit Singh presented a fresh application asking for the separation of his share by an imperfect partition. The Assistant Collector, in the course of separation of the share of Daljit Singh out of pattis Nos. 4 and 5, somehow included a portion of the land belonging to patti No. 2, that is, of Dular Singh. The plaintiff, who is the purchaser of Dular Singh's rights in patti No. 2, instituted the suit out of which this appeal has arisen for a declaration that the said portion of land, taken out of patti No, 2 and included in the patti of Daljit Singh by mistake during the proceedings of imperfect partition in 1905, belonged to him and that, in case he was found out of possession, a decree for possession should be granted to him.
6. The first two courts found that the land in suit formed part of patti No. 2 and decreed the claim. On appeal a learned Judge of this Court held that, though the land in suit was a part of patti No. 2, the plaintiff could not maintain the present suit in view of the provisions of Section 233, Clause (k), of the United Provinces Land Revenue Act, and accordingly reversed the decrees of the lower courts. The plaintiff has preferred this Letters Patent appeal and contends that Section 233, Clause (k), does not govern his case. On the other hand, the respondents rely on the said section and the Full Bench case of Muhammad Sadiq v. Laute Ram (1901) I.L.R. 23 All. 291. They contend that under the Revenue Act 'no person shall institute any suit or other proceeding in the Civil Court with respect to partition or union of mahals except as provided in Sections 111 and 112' of the Act. Dular Singh, the predecessor in title of the plaintiff, should have raised the question now raised during the proceedings of imperfect partition in 1905, or in any case he could have done so. He having failed to do so, no civil suit lies. I do not think that the contention for the respondents is correct. The partition or union of mahals referred to in Clause (k) of Section 283 means the partition or union of those mahals in respect of which partition or union is sought and not any other. The prohibition therefore governs the case of those mahals only in respect of which partition or union is asked for and made. It could not apply to other mahals which were not the subject of partition or union. If the construction of the section in question contended for on behalf of the respondents were correct, the proprietors of a village some portion of whoso land had been included by mistake or error during the partition of an adjacent mahal, would have no remedy at all. It may be said for the respondents that the proprietors of the village could bring a civil suit on the ground that they had no notice of the partition of the adjacent mahal. But the obvious reply would be that under the law no notice was required to be given to them, and, partition, once made and no objection taken during the partition proceedings, no civil suit could be entertained. However, in the present case it has been found by the lower courts that no notice was given to Dular Singh of the second application of Daljit Singh asking for imperfect partition* In my opinion, even if a notice had been issued to Dular Singh he might very well have kept away thinking that he was not concerned with the partition of pattis Nos. 4 and 5, in which he had no share. Besides it is doubtful whether the provisions of Section 233, Clause (1c), of Act III of 1901, would apply to proceedings in an imperfect partition. In the case of Aisha Begam v. Abdulla Khan Weekly Notes 1899 p. 190 it was held that the omission to raise the question of title by a party to an imperfect partition did not preclude him from suing afterwards in the Civil Court to establish his title. In another case, namely, that of Kishen Prasad v. Kadher Mal Weekly Notes 1900 p. 11, it was held that if at a perfect partition of a mahal the land of another mahal was taken by mistake and divided and no objection was taken by the co-sharers of the latter mahal they were not debarred from suing in the Civil Court to establish their title.
7. It is true that both these cases were decided under the former Act (Act XIX of 1873) but the provisions of that Act as to the exclusion of the jurisdiction of the Civil Court were similar to those in the present Act (III of 1901). It may, however, be argued that the said cases were decided before the Full Bench case of Muhammad Sadiq v. Laute Ram (1901) I.L.R. 23 All. 291 and hence may be taken to have been overruled. The reply is that the points raised in the former cases were not raised and decided in the Full Bench case. Besides the facts of the latter case were quite different from those reported in the Weekly Notes for 1899 and 1900, and from the present case. The facts of the Full Bench case were that Muhammad Sadiq, Dewau Mai and some others were co-sharers in a certain village. An application was made by some of the co-sharers, in which Dewan Mai did not join, for perfect partition, and notices were issued to all the co-sharers, including Dewan Mai. He made no objection in time. The Assistant Collector made the partition, in the course of which he divided the groves also. The share of Dewan Mai was sold in execution of a decree and purchased by Laute Ram. The latter brought a suit in the Civil Court for a declaration of his title to the groves on the allegation that they belonged exclusively to Dewan Mal and that the Revenue Court could partition the land but not the trees. It was held that the suit of Laute Ram could not be entertained by a Civil Court in view of the provisions of Section 241, Clause (f), Act XIX of 1873. The casa of Laute Ram is clearly distinguishable from the present case on three grounds, namely, first, there was in that case a perfect partition, secondly, property included in the village sought to be partitioned was divided and no property outside the village was taken and divided, and, thirdly, the Revenue Court could divide also the groves situate in the village. Laute Ram's case is therefore not in point and does not help the respondents. The case of Dharam Singh v. Ram Dial Singh (1914) 12 A.L.J. 1126 is in point and supports the view of the law I have taken. In my Judgment the provisions of Section 233, Clause (k), of Act No. III of 1901 do not govern the present case.
8. The order of the Court is that the decree of the learned Judge of this Court is set aside and the decree of the lower appellate court is restored with costs in all courts.