1. This is a defendants' appeal arising out of a suit for a declaration that the properties in dispute were the joint and family properties of the parties to the suit and that they were in joint possession of them. There was an alternative relief in the plaint that if the Court found that the plaintiff was not in possession a decree awarding him joint possession should be passed.
2. The Court of first instance gave the plaintiff a decree for joint possession and also specified his share as being half. The claim with regard to certain lands in certain tenancy in Jalalpur was, however, dismissed. On appeal the learned District Judge has decreed the claim in respect of the entire properties in suit and has declared that the respondent's share is half in those properties.
3. Two points have been urged by the learned vakil for the appellants. The first is that the finding of the Court below, with regard to the tenancy in Jalalpur is based on mere assumption and should not be upheld; and the second is that the claim is barred, by Section 233(k) of the Land Revenue Act.
4. The findings of the learned District Judge are that the two branches of Hanuman Tewari and Ram Harakh (the ancestors of the parties) never separated, that Ram Harakh was the head of the family, and that the properties in suit were acquired by and in the name of Ram Harakh for the benefit of himself, his sons and his nephew Nandgopal. With regard to the tenancy in Jalalpur he has specifically said that the family being joint and the residential house not being divided, the acquisition of the tenancy lands must be taken to have been for the family and the whole family consisting of Ram Harakh's sons and his nephew. On these findings he held that the entire property was joint family property and liable to be partitioned if necessary. I am of opinion that this conclusion cannot now be challenged in second appeal. It was open to the learned Judge to base his finding on the general presumption of jointness of all properties when ml the other property was joint and the family was also joint.
5. With regard to the plea of Section 233(k) I must say that if one cares to look to the, language of Section 233(k) literally it may seem difficult to say that the present suit j is in any way an attempt to affect the partition by the revenue Court. Even if a declaration or joint possession is to be granted to the plaintiff the imperfect partition would remain as before and there would be no alteration in it. I am, however, aware of the rulings of this Court in which a stricter view of the section has been taken, and the questions of title, if either raised and decided, or even if not raised in the partition Court, have not been allowed to be raised again in the civil Court. I am bound by the ruling in the case of Ram Subkag Singh v. Dip Narain Singh A.I.R. 1922 All. 158 and the cases referred to therein.
6. In this view the reasoning of the Courts below by which they have held that the provisions of Section 233(k) were inapplicable, would not be sound. But, in my opinion, the case is distinguishable from the previous cases on the following two grounds. In the first place the evidence with regard to the circumstances under which the partition took place is very meagre and it is difficult to say how the partition was brought about and in what way the position of the parties has been altered. In the second place the finding of the lower appellate Court is that the family is still joint and undivided and, therefore, was so at the time when the partition took place. All that happened at the partition was that certain khatas which had been entered in the names of the defendants were converted into a separate patti standing in their names, whereas certain other khatas, in which the names of the parties were jointly recorded, were converted into other pattis in their joint names. But the mere fact that the names of some of the members of the family were recorded would not show that those members owned those khatas exclusively. The family being joint it was immaterial whose name was actually recorded. Both these pattis must be deemed to have been allotted to the family and not the individual members of it in whose names the pattis were recorded. When the family was joint and, according to the first Court the partition proceedings (were looked after by the head of the family, there was really no conflict of interest between the individual members of the family; their rights, therefore, cannot be said to be in any way prejudiced by the result of the partition. Both these pattia, no matter in whose names they stand, must be deemed to be joint family property which is still undivided. The claim, therefore, is not barred by Section 233(k). I accordingly dismiss this appeal with costs including in this Court fees on the higher scale.