1. These two cross, appeals are directed against an order of remand passed by the learned Civil Judge of Azamgarh in an appeal from the decree of a Munsif of that district dismissing the plaintiffs' suit for declaration. The order of remand confirms the decree of the first Court as regards three-fourths of the property in dispute and reverses it as regards the remaining one-fourth, in respect of which the suit was remanded with a direction that the same be tried on the merits. It appears that partition proceedings were instituted in the Revenue Court in respect of village Benipur by one of a large number of co-sharers, namely Dwarka On the date fixed by the proclamation, the plaintiff in the suit, which has given rise to these appeals, together with some other co-sharers, made an application alleging that they had obtained a decree in respect of one-fourth share of Mt. Badshali Kuar in khata khewat No. 5, that an application for mutation of names was pending and that the aforesaid one-fourth share should be included in the patti to be made for them. The partition officer recorded an order which is singularly obscure and runs as follows:
The applicant to get the khewat corrected and his name mutated and to start proceedings to this effect within three months. The suit be stayed till that time.
2. Within the time allowed by the Revenue Court, the plaintiff who was one of those who had made the application already referred to, instituted a suit for declaration not only in respect of the one-fourth share of Mt. Badshali Kuar, which was the subject matter of their application under Section 110, Land Revenue Act, but also in respect of the remaining three-fourths of her share. He set up the case that he and defendants second set were mortgagees from Mt. Badshali Kuar's husband, and that the mortgage, which was a possessory one, had become irredeemable by lapse of time. They also claimed to be the only heirs of her husband. Accordingly they alleged that they were the proprietors of the entire share which once belonged to Mt. Badshali Kuar's husband and subsequently to her. As regards the one-fourth share, they repeated the ground on which their application before the partition officer was based, namely that they had obtained a decree against the defendants first set. A number of pleas were taken by the defendants first set who contested the suit. It was pleaded inter alia that the suit was barred by Sections 111, 112 and 233(k), Land Revenue Act. The Court of first instance upheld this plea and dismissed the plaintiffs' suit in its entirety. The latter preferred an appeal to the Court of the Additional Civil Judge of Azamgarh, who held that as regards one-fourth share to which their application made before the partition officer related, the suit was not barred by anything contained in the sections relied on by the trial Court, but as regards the remaining three-fourths share which was not the subject of that application, the lower Appellate Court upheld the order and decree of the trial Court dismissing the plaintiffs' suit. The lower Appellate Court remanded the case to the trial Court for trial on the merits as regards the one-fourth share in respect of which the suit was not barred. Two appeals have been preferred in this Court. Appeal No. 188 of 1936 is by the defendants who contend that the suit is barred even as regards the one-fourth share, while the plaintiffs have preferred Appeal No. 198 of 1936 and challenged the correctness of that part of the lower Court's order of remand in which their suit in respect of three-fourths of the property has been held to be barred.
3. The ground on which the defendants contend that the suit is barred even as regards tine one-fourth share of Mt. Badshali Kuar is, that as the Revenue Court did not take one of the three courses prescribed by Section 111, Land Revenue Act, the Civil Co art acquired no jurisdiction to entertain D, declaratory suit in respect of the mahal which was the subject of partition proceedings in the Revenue Court. This argument proceeds on the assumption that the order of the Revenue Court, which we have quoted in the earlier part of this judgment, does not amount to an order directing the plaintiff of the present suit to institute a declaratory suit in the Civil Court. The lower Appellate Court has held that though the order is very obsourely worded, there is no doubt that the Revenue Court meant to direct the plaintiff to institute a suit in the Civil Court for a, declaration of their right. It is contended by the defendants' learned advocate that the Revenue Court merely directed the plaintiff and some others to obtain mutation of names and did not require them to institute a civil suit. A literal interpretation of the first part of the order may lead to this result, but taking the order an a whole with the surrounding circumstances, we do not think this could have been the intention of the Revenue Court. The plaintiff was directed to 'start proceedings'. If this had reference to proceedings for obtaining mutation of names, the Assistant Collector would have said to continue the proceedings which were already pending. It may be that it was in the mind of the Assistant Collector that to obtain mutation of names the plaintiff should first obtain a decree from the civil Court and then apply for correction of the Khewat. In all the circumstances of the case we are not prepared to say that the lower Appellate Court has misconstrued the order of the Revenue Court. Accordingly we hold that the plaintiff was required by the Revenue Court to institute a civil suit and that the Assistant Collector acted under Section 111(b), Land Revenue Act.
4. The next question is whether it was open to the plaintiff to institute a civil suit not only in respect of the one-fourth share which was in question before the Revenue Court but also in respect of the other three, fourths share which once belonged to Mt. Badshali Kuar. Learned Counsel for the plaintiff argues that they are mortgagees and, as no question of proprietary right was involved in the Revenue Court, there is nothing to prevent his client seeking an additional relief in the declaratory suit which he had to institute in pursuance of the order of the Revenue Court. We do not think that the matter is so simple as that. It is alleged in the plaint that the plaintiff and defendants second set are exclusively entitled to khata khewat No. 5 which originally belonged to Mahabal Singh, the husband of Badshali Kuar, on whose death it passed to them as the nearest reversioners. It is also alleged that the entire khata khewat had been mortgaged with possession to them by Mahabal Singh more than 60 years before the suit, and that they have become full proprietors by lapse of limitation. In our opinion the plaintiffs and the defendants second set might and ought to have raised these pleas in the Revenue Court and, since they did not do so, they were not entitled, during the pendency of the partition proceedings, to institute a civil suit for a declaration of right to the three-fourths share of khata khewat No. 5. The case in Faqira v. Hardewa : AIR1928All172 applies to the case. The result is that the order of the lower Appellate Court, which is challenged in these appeals, is upheld and the appeals are dismissed with costs.