1. This appeal could not be argued except for the fact that it was contended that the case of Bijai Misir v. Kali Prasad 41 Ind. Cas. 912 : 39 A. 469 : 15 A.L.J. 496 (F.B.), lent support to the appellant's contention.
2. Very briefly the facts are these. The respondents sought a declaration, by the suit out of which this appeal has arisen that they were the owners of a certain enclosure described as No. 49/1. Their grievance was that the present appellant, the 3rd defendant in the suit, had hypothecated it as his own property and the creditor had brought it to sale with the result that the defendant No. 2 purchased it. The sale has been set aside and now the contest is between the appellant and the plaintiffs alone. The learned Judge in the Court below has found that the property does belong to the plaintiffs and that is a question of fact which has been arrived at in a clear judgment.
3. It has, however, been contended by the learned Counsel for the appellant that the suit is barred by the provisions of Section 233 (k) of the Land Revenue Act.
4. It appears that in 1896 there was a partition in the village. The parties to this appeal were arrayed on the same side, namely, they were non-claimants for partition. In the course of the partition proceedings the enclosure in question had been allotted to the people who had claimed partition. The appellant Nihal went up to the Revenue Court and asserted that the enclosure belonged to him and should not be allotted to the claimants for partition. The partition Court held that the gher belonged to the appellant Nihal and directed that it should be given to him and a corresponding area should be allotted to the claimants for partition. On these facts reliance is placed on the case already cited above and it is contended that the suit is barred by the provisions of Section 233 (k) of the Land Revenue Act.
5. The facts of the case in Bijai Misir v. Kali Prasad 41 Ind. Cas. 912 : 39 A. 469 : 15 A.L.J. 496 (F.B.) are not quite clear. It appears however from the judgment of Banerji, J., that the shares of the parties to the suit, out of which the appeal had arisen before his Lordship, belonged to one and the same set, viz., the non-claimants for partition. But the shares of the parties had been defined in a partition of their own and the Revenue Court had drawn up proceedings under Section 114 of the Act ' declaring the basis upon which the partition was to be effected ' Evidently, his Lordship took it on the facts of the case, that the partition could not be effected in the case, except on the basis that the parties held the respective shares noted against their names in the proceedings. There could possibly be no other ground for the decision of the case. I sent for the paper-book of the second appeal and I find that the learned District Judge found that in the partition proceedings Kali Prasad, the defendant, did obtain the property in suit in the course of the partition. That explains why the majority of the Judges in Bijai Misir v. Kali Prasad 41 Ind. Cas. 912 : 39 A. 469 : 15 A.L.J. 496 (F.B.), found that Section 233 (k) barred the suit. I find that in a much subsequent case, viz., Lal Behari v. Parkali Koer 55 Ind. Cas. 22 : 42 A. 309 : 18 A.L.J. 110 : 2 U.P.L.R. (A.) 50 his Lordship Mr. Justice Banerji, sitting with Knox, J., decided that where the parties to a civil suit were arrayed on the same side in a partition proceeding, that fact alone would not prevent the parties from litigating a question of title among themselves.
6. In my opinion the case in Lal Behari v. Parkali Koer 55 Ind. Cas. 22 : 42 A. 309 : 18 A.L.J. 110 : 2 U.P.L.R. (A.) 50 is on all fours with the case before me and the decision of the Court below was right. The appeal fails and is hereby dismissed with costs.