1. These are two second appeals of certain objectors in a partition suit before the revenue Court. The suit was for partition of khewats Nos. 1 and 2, Mahal Hoti Lal, Mauza Band Abdulhaipur. The objections both took the form that about 50 years ago a private partition of khewat No. 1 was made between the applicants for partition, the ancestors of the different objectors and other persons, and that from that date these sets of persons had been in separate possession and occupation of their respective shares, paying land revenue separately and had separate proprietary and adverse possession of the land of their shares. We may note that khewat No. 2 is merely a small area of presumed muafi land which goes with khewat No. 1.
2. The objections taken were fundamental and if allowed would have rendered it necessary to dismiss the application for partition under Section 109, Land Revenue Act. As the objections related to questions of proprietary title, they also came under Section 111. The course adopted by the Assistant Collector was that laid down in Section 111 (1) (c) to inquire into the merits of the objections himself. That being so under Section 112 an appeal lay from his decree to the civil Court. The actual order passed by the Assistant Collector on 12th March 1924 was that the objections were frivolous on the face of it and they were rejected. That order shows that he had not appreciated the nature of the objection. On that date, on 12th March, no evidence was produced by the applicants, but they had summoned their witnesses on a previous date, 19th February 1924, and there was no clear direction on the order sheet that evidence should be produced on 12th March. Moreover, there were certain minor co-sharers who had not been properly represented by guardians on 12th March. It was obviously necessary that all the cosharers concerned should be properly represented before the questions raised in the objections could be determined by the Assistant Collector.
3. An appeal was taken by the objectors to the District Judge, and after various references to this Court, he was directed to dispose of that appeal on the merits. In his order of 13th January 1928, which is before us now in appeal, the learned District Judge considered that he should not allow any evidence to be produced by the objectors. The only question before us in these two appeals is whether that was a correct order or not of the learned District Judge. Having given our consideration to all the facts of the case, we consider that it would be highly inequitable to prevent the objectors from 'producing evidence on the merits of their objections.
4. Accordingly we allow these appeals, and we remand the case to the Assistant Collector through the District Judge in order that the parties may have an opportunity to produce their evidence on these objections and for the Assistant Collector to decide these objections on the merits. Any party who is dissatisfied with the decision of the Assistant Collector may of course appeal to the District Judge. The costs so far incurred will be costs in the cause.