Iqbal Ahmad, J.
1. This is a plaintiffs' appeal and arises out of a suit filed in the revenue Court under Section 102, Agra Tenancy Act, for recovery of Rs. 294-4-0 with interest thereon from defendants 1 to 8. The plaintiffs' case was that the said defendants purchased from the plaintiffs and their co-owners the produce of grove No. 259 for three years, viz., 1331 to 1333 faslis, for a sura of Rs. 1,100 and that the plaintiffs' share was to the extent of six-annas in the grove. The claim was with respect to 1331 and 1332 faslis.
2. The defence to the suit was that there was no contract between the plaintiffs and the contesting defendants for payment of rent or for payment of the price of the produce of the grove, and that the contesting defendants had purchased the produce of the grove from one Chaudhari Gumani Singh, who was the sarbarakar of one Mt. Ram Dei and had paid the price of the produce to him, and as such the plaintiffs were not entitled to the relief sought by them.
3. The trial Court overruled all the pleas taken in defence, and holding that the plaintiff's share in the grove in dispute was to the extent of six annas out of sixteen-annas, and that the defendants had failed to prove that they had made any payment to Gumani Singh, passed a decree in the plaintiffs' favour for recovery of Rs. 275 with interest.
4. On appeal by the defendants the lower appellate Court has affirmed most of the findings of fact arrived at by the trial Court but has dismissed the plaintiffs' suit on the ground that the suit was barred by Section 34 (5), Land Revenue Act (3 of 1901).
5. A perusal of the written statement and of the judgment of the first Court leaves no room for doubt that the plea that the suit was barred by Sub-section (5), Section 34, Land Revenue Act was never taken in the trial Court, and this plea appears to have been, for the first time, taken in appeal before the lower appellate Court Sub-section (5), Section 34, Land Revenue Act, can only apply to such cases of succession or transfer which necessitate the alteration of entries in the registers prescribed by Clauses (a) to (d), Section 32, Land Revenue Act, and has no application to cases with respect to which entries are made in the registers prescribed by Clause (e) Section 32, Land Revenue Act.
6. It is argued by the learned counsel for the appellants that in the village in which the grove in dispute is situate there are two kinds of groves, one known as bagh riayan and the other as bagh zamiudaran. If the grove in dispute is of the former description, that is, if it belonged to ryots in the village who had the rights of a grove-holder in the same, their names could not be entered in the register prescribed by Clauses (a) to (d), Section 32, Land Revenue Act, and the suit would not be barred by Sub-section (5), Section 34 of the Act. It is pointed out by the learned counsel that there is evidence upon the record showing that the grove in dispute is of the former, class, and that he plaintiffs-appellants, had a right to a share in the same not as a zamindar but as a grove-holder. This argument does not appear to have been advanced before the lower appellate Court and as such, I have refrained from deciding the point myself without go ring the parties an opportunity of adducing fresh evidence on the point. The lower appellate Court has also not recorded any finding on the point as to whether or not any payment was made to Gumani Singh as alleged by the defendants.
7. Before I can satisfactorily dispose of this appeal it is necessary to have a finding from the lower appellate Court on the following points:
(1) Whether grove No. 959 is a grove held by the plaintiffs and their co-sharers as a zamindar, or is a grove held by them as ryots in the village?
(2) Whether any payment was made by defendants 1 to 8 to Chaudhari Gumani Singh ; if made, are the defendants absolved from liability to pay to the plaintiffs their shire of the price of the produce for the years in dispute?
8. The parties will be at liberty to adduce fresh evidence. On receipt of the findings ten days will be allowed for filing objections.