1. The plaintiffs sued the defendant for profits in the revenue Court under Section 227, Act 3 of 1926, the suit being against a cosharer and in respect of the years 1331, 1332 and 1333. The defendant denied the plaintiffs' proprietary title and set up a title in himself by adverse possession. I may incidentally note that para. 3 of the written statement describes the plaintiffs as 'very cunning and litigious'. Mere abuse of this description should not be allowed to find a place in any pleadings. The Assistant Collector framed two issues 'What profits are due to the plaintiffs?', and after hearing the case gave the plaintiffs a decree. The defendant appealed to the lower appellate Court and Jin ground 1 of his appeal said:
The plaintiffs-respondents are not the owners of that property for the profit of which the suit had been filed. The lower Court has erred in not framing an issue in respect of ownership in spite of the objections taken by the appellant.
2. Even here the appellant did not specifically claim that such an issue should have been sent for trial to a civil Court. Taking the judgment of the lower appellate Court at the value given to it by counsel for the appellant here, the point was argued before the lower appellate Court and the defendant-appellant's objection was rejected because there was no substance in his plea.
3. In second appeal here I am asked to hold that it was the imperative duty of the trial Court, immediately the question of proprietary title appeared to be raised, to frame an issue itself and immediately to send that issue for decision by a civil Court. This argument denies all force to Expl. 1, Section 271 and if it was to be accepted, a pen might as well be drawn through that explanation. The trial Court is not obliged to act under the first part of Section 271, if it is of opinion that the plea of proprietary right is clearly untenable and intended solely to oust the jurisdiction of the revenue Courts. The trial Court was clearly not bound to send this case to the civil Court under any circumstances whatever until it had framed an issue. It must, therefore, first arrive at the stage of framing issues. Those are framed invariably with the assistance of the counsel on either side. When the Assistant Collector proceeded to frame issues he was not invited by counsel on either side so far as the record shows and so far as the counsel for the appellant is able to suggest, to frame an issue on this point. If the very party who now says that this issue ought to have been framed, did not ask for the issue to be framed, the trial Court would be fully justified in believing that issue could not and would not be pressed, or in other words, that it was untenable. At a later stage of the case, when it had been pressed in the lower appellate Court, it has been found in fact to be untenable, but that of course will not throw any light on the course the Assistant Collector ought to have pursued. In my view, if the defendant did not choose at the time issues were framed to ask for an issue on this point, he has only himself to blame if the Assistant Collector regarded it as an issue that did not seriously arise.
4. Counsel for the appellant suggests that the defendant may have deliberately kept this point in reserve in order to raise it in the appellate Court. If he did so, his blood must rightly be on his own head. It is expressly to stop manoeuveres of that sort that this Court is becoming more and more strict in refusing to allow points to be taken in an appellate Court which have not been taken in the lower Courts. However, for the reasons given, I am of opinion that to accept the appellant's argument would be to delete Expl. 1 to Section 271 from the Act. I dismiss the appeal with costs.