Muhammad Rafiq and Piggott, JJ.
1. This is an appeal by certain plaintiffs whose suit for a declaration has been dismissed by the trial court, virtually upon a finding that the cognizance of the Civil Court is barred by Section 233(k) of the Land Revenue Act (Local Act No. III of 1901). In a fourth paragraph of the memorandum of appeal which has been added by permission of this Court after the appeal had been filed it is suggested that in any case, not the entire suit, but only a part of it is affected by the provisions of Section 233(k) aforesaid. On examining the record we do not think that this plea is well founded in fact: the wording of paragraph 9 of the plaint is certainly involved and not as clear as it ought to be as to whether there were one or two claims for partition pending in the Revenue Court. The allegations in that paragraph, however, make it clear that the entire suit was one relating to the partition of a mahal or mahals, in respect of which partition proceedings were actually pending in the Revenue Court when the suit was filed. The suit was therefore barred by Section 233(k) aforesaid, unless the Civil Court had received jurisdiction to entertain it by reason of a proper order under Section 111, Clause (b), passed by the Assistant Collector before whom the partition was pending, requiring these plaintiffs to institute a suit in the Civil Court within the statutory period of three months. Now it is common ground that such an order had been passed by the Assistant Collector, namely, on the 11th of May, 1915. The present suit was filed in the Civil Court on the 31st of August, 1915, beyond the prescribed period of three months. So far we are on sure ground. There are two decisions of this Court, one directly in point and the other covering it by implication. In Banwari Lal v. Gopi (1907) 4 A.L.J., 713, a single Judge of this Court definitely held that a suit filed under circumstances like those of the present case, namely, after an order under Section 111(1)(b) of the Land Revenue Act had been passed, but beyond the period of three months prescribed by the said order, was not entertainable by the Civil Court. The matter came again before a Bench of this Court in Randhir Singh v. Bhagwan Das (1913) I.L.R., 35 All., 541. In that case the learned Judges pointed out that a suit had been filed within the period of three months prescribed by the order of the partition court. It had been withdrawn with permission to bring a fresh suit and the fresh suit had been instituted after the said period of three months. The court held that there had been a compliance with the order of the court and with the terms of Section 111 of the Land Revenue Act, by reason of the presentation of the original plaint within the prescribed period. By implication the learned Judges held that, if this had not been so, that suit would not have been entertainable.
2. It is contended, however, that the present case is distinguishable by reason of certain proceedings, which took place in the court of the Assistant Collector after the prescribed period of three months had expired. We have had some difficulty in ascertaining precisely what those proceedings were. We find, however, that on the 26th of August, 1915, there was presented to the Assistant Collector, on behalf of the present plaintiffs, an application supported by an affidavit. The affidavit stated certain reasons why the order of the 11th of May, 1915, had not been complied with and asked for a fresh period of time within which to file a suit in the Civil Court. This application raised a question which the Assistant Collector might have taken upon himself to consider and to determine, namely, whether he had jurisdiction to pass a fresh order under Section 111(1)(b) after failure on the part of the persons concerned to comply with his previous order of the 11th of May, 1915. The Assistant Collector, however, did not determine this point and did not take it upon himself to pass any formal order granting the present plaintiffs a fresh period of three months. What he directed the plaintiffs to do was to file their suit in the Civil Court and to produce before him documentary evidence of the fact that they had done so. Apparently, when these plaintiffs did so, the Assistant Collector adjourned the partition proceedings, saying that he would await the decision of the Civil Court. He seems to have thrown it entirely upon the Civil Court to determine whether the, plaint presented on the 31st of August, 1915, was or was not entertainable in view of the plaintiffs' failure to comply with the order of the 11th of May, 1915. In our opinion, therefore, the question of law which is sought to be raised by this appeal, namely, whether the Assistant Collector would have had jurisdiction to pass a fresh order under Section 111(b) requiring the institution of the civil suit within a further period of three months, does not arise. Had such an order been passed by the Assistant Collector, the position would have been different. The opposite party, the defendants to the present suit, would have had something against which they could have appealed to the higher Revenue Courts, and the matter might eventually have been disposed of by the Board of Revenue, which, in the exercise of its very wide revisional jurisdiction, would beyond all question have been entitled to take into consideration the reasons given on behalf of the present plaintiffs for non-compliance with the order of the 11th of May, 1915, and, if it thought proper, to substitute for that order a fresh order fixing a period of three months from date within which a civil suit might be filed. As the case now stands, the plaintiffs are unable to refer us to any order of the Assistant Collector, or of any Revenue Court of superior jurisdiction, which we can treat as an order under Section 111(1)(b), except the order of the 11th of May, 1915, which was not complied with. On this state of facts we are satisfied that this appeal fails, and we dismiss it accordingly with costs.