Lindsay and Stuart, JJ.
1. This case has been referred to a Bench of two Judges for the purpose of having it decided whether or not the suit brought by the plaintiffs was maintainable in the Civil Court. The suit was a suit for possession of 4 bighas odd of land and there was coupled with the claim for possession a claim for damages by way of mesne profits.
2. This suit was instituted in the year 1916.
3. It is admitted that at the time the suit was put into the Civil Court there was pending a partition between the parties which was being carried out under the provisions of chapter VII of the Land Revenue Act. It is also an admitted fact that the question of proprietary title which was set up in the suit, out of which this appeal has arisen, was not set up in the partition court. The question, therefore, is whether in these circumstances the Civil Court was competent to entertain the suit for possession which was based upon the claim of proprietary title.
4. In the referring order attention is drawn to the decision of Piggott, J., in Ganesh Tewari v. Salik Pande (1914) 12 A.L.J. 949. If the view of the law taken by the learned Judge in that case is accepted, then there can be no question that this suit was not maintainable in a Civil Court. In our opinion the view of the law laid down in the judgment in question is correct and is supported by authorities of this Court, of which we need only refer to the case of Nathi Mal v. Tej Singh (1907) I.L.R. 29 All. 4 and the Full Bench ruling in Muhammad Sadiq v. Laute Ram (1901) I.L.R. 23 All. 291.
5. The case of Nathi Mal v. Tej Singh (1907) I.L.R. 29 All. 4 was one in which the plaintiffs instituted the suit while the partition proceedings were pending in the Revenue Court. By the time the case came to be decided in appeal the partition had been concluded. The learned Judges, however, decided the question as to whether the suit was maintainable at the time it was instituted and they were of opinion that inasmuch as partition proceedings had begun in a competent Revenue Court regarding the property in suit, it was not open to the plaintiffs to come to the Civil Court and raise there a question of proprietary title which it was open to them to raise before the court dealing with the partition. The fact that the partition proceedings are carried to a completion before the appellate court is able to deliver its judgment does not seem to us to affect the case. The question whether a suit is maintainable or not is a matter to be considered in connection with the circumstances which exist at the time when the suit is brought into the court. For these reasons, therefore, we hold that the view of the law taken in Ganesh Tewari v. Salik Panda (1914) 12 A.L.J. 949 is correct and that the present suit was not maintainable and was liable to dismissal. The appeal, therefore, fails and is dismissed with costs to the respondents.