Henry Richards, Kt. C.J. and Pramada Charan Banerji, J.
1. This and the connected appeal No. 765 of 1912 arise out of the same suit. The suit was brought by the plaintiff for a declaration of his title in respect of a three anna two pie odd share in mauza Manjaba Hardaspur. It appears that on the 10th of June, 1901, Bhagwan Das, the respondent in this appeal and the appellant in the connected appeal, and five other persons, who wore defendants to the suit, sold a six anna eight pie share in the village in question to the predecessor in title of the plaintiff. At that time, however, mutation could only be obtained in respect of a three anna five pie odd share. In the year 1908, Bhagwan Das applied for partition, alleging himself to be entitled to certain shares in the village. The plaintiff contested the share claimed by Bhagwan Das. Thereupon the Revenue Court directed the plaintiff in the present suit to institute proceedings in the Civil Court, within three months, to establish his title. A suit was instituted within the prescribed period, but for some technical reason the suit had to be withdrawn with leave to bring a fresh suit. The court of first instance decreed the plaintiff's claim to the extent of a two anna six pie odd share against Bhagwan Das and his co-defendant of the first party. The defendant, Bhagwan Das, appealed to the lower appellate court. The lower appellate court has given a judgment which we feel great difficulty in understanding. In the first place, the learned Judge seems to think that he was entitled to apportion the liability of Bhagwan Das and his co-vendors. We think that this was quite incorrect. All the vendors were jointly liable to make good the property which they purported to sell out of any property which they had at the time of the sale or which they subsequently acquired. If we were to accept the finding of the learned Additional Judge that Bhagwan Das acquired an eight pie share after the date of the purchase, it might possibly be a reason for giving the plaintiff a decree to the full extent claimed. However, the plaintiff did not appeal to the court below and does not appeal to this Court on this point.
2. A technical objection has been raised by Bhagwan Das in this appeal. He contends that, although a suit was instituted within the three months prescribed by the order of the Revenue Court under Section 111 of the Land Revenue Act, that suit was withdrawn and the present suit was not instituted within the three months prescribed. We think that there is no force in this objection. In the first place, according to the record as it stood while the case was in the court below, it did not appear that the proceedings in the Revenue Court were in existence. As a matter of fact, at one time at least they had been struck off. It is alleged that these proceedings have been restored. Assuming this to be so, the present suit was practically a continuance of the suit which was instituted within time. In any event, the plaintiff did comply with the order of the court and the terms of the section, because he did institute a suit within the three months. We think this technical ground fails. We allow this appeal, set aside the decree of the court below and restore the decree of the court of first instance with costs.