1. This is a plaintiff's appeal in a suit for the following relief:
It may be held by the Court that the land mentioned in Sch A is owned and possessed by the plaintiff and that the defendants have no concern therewith, a perpetual injunction may be issued to the defendants restraining them from interfering with the plaintiff's proprietary possession of the land aforesaid, and if by reason of the said interference it be proved that the plaintiff is cut of possession, then, in that case, instead of the said relief, a decree for possession of the said land may be passed in favour of the plaintiff as against the defendants; or any other relief, subject to such conditions and limitations as may be deemed just by the Court, may be granted
2. The plaintiff and the defendants being co-sharers, during the pendency of a partition proceedings in the revenue Court, several objections were taken by the plaintiff. The objection taken was that the partition Amin had by a mistake included the land mentioned in Sch. A in the defendants' share. The plaintiff and the defendants by a compromise of the 20th March 1918, agreed that the plaintiff should have the land in Sch. A and the defendants the land in Sch. B; but by some mistake, when the entries in the partition papers were made, this compromise was lost sight of and an application for correction of the numbers was summarily rejected by the revenue Court. The plaintiff alleged that thereafter the defendants have been trying to interfere with the proprietary possession of the land by the plaintiff. Upon these allegations the plaintiff claimed the relief I have already set out. The defence of the defendants was that the land in Sch. A, viz., Plot No. 1752/13, was all along owned and possessed by them and that the plaintiff was wrong in alleging otherwise; that no compromise was made and the Defendant No. 1 was not authorized to act on behalf of the other defendants and the Court diet not accept any such compromise; that the claim was barred by time besides for want of title; and that Section 233(k) of Act 3 of 1901 barred the claim. The Court of first instance, among other issues, framed the following two:
Whether there was any valid compromise between the parties whereby the plaintiff got the plots mentioned in list A of the plaint, and
whether the claim is barred by Section 233(k) of the Land Revenue Act.
3. The learned Munsif came to the conclusion with reference to the two issues set out above that there was a valid: compromise between the parties and that the plaintiff was given in possession of Plot No. 1752/13 and the defendants were given possession of Plots Nos. 1704 and 1706. He further found that compromise had been acted on between the parties. He also held that Defendant No. 1 was the head of the family consisting of all the four defendants. He refuted the contention of the defendants that the suit was barred by Section 233(k) of the Land Revenue Act, and decreed the plaintiff's claim for a perpetual injunction in respect of Plot No. 1752/13 with costs.
4. The defendants went up in appeal before the additional Subordinate Judge of Azamgarh, who held that Section 233(k) of the Land Revenue Act barred the suit and dismissed the plaintiff's suit without going into the merits. The learned Subordinate Judge in his judgment referred to cases reported as Daljit Singh v. Shambhu Singh AIR 1915 All 452 and Tirbeni Sahai v. Gokal Prosad (1911) 33 All 40.
5. The plaintiff has come up in appeal and it is argued on his behalf that Section 233(k) of the Land Revenue Act cannot bar this suit because the suit is not in respect of partition or union of the mahals, and the relief sought by the plaintiff could not be given by the revenue Court at all. I am of opinion that Section 233(k) of the Land Revenue Act did not bar the suit. The case on which the lower appellate Court relied, viz., Daljit Singh v. Shambhu Singh AIR 1915 All 452 is no longer good law, as on Letters Patent Appeal in that very case a Fall Bench of this Court took a different view: see the case of Shambhu Singh v. Daljit Singh AIR 1916 All 12. A Bench of this Court again in the case of Lal Behari v. Parkalli Koer AIR 1920 All 21 has also considered Section 233(k) of the Land Revenue Act. I am of opinion that only oases, which relate to partition or union of mahahls in which relief can be given under Sections 111 or 112, are barred by the provisions of Section 233(k); but in a case like the present where the parties have entered into a compromise which has been acted on for years, that compromise will be binding on them. The lower appellate Court, I must note, has not found any facts. It is, therefore, necessary to arrive at findings of fact to enable the lower appellate Court to dispose of the appeal. If the compromise has been acted on. I am of opinion that the parties to it are bound by it.
6. The result is that I allow this appeal, set aside the decree of the Court below, and as the appeal was disposed of on a preliminary point, I remand it under Order 41, Rule 23, for disposal according to law. The costs will abide the result of the appeal and will include fees in this Court on the higher scale.