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Faqira and anr. Vs. Hardewa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1928All172; 114Ind.Cas.177
AppellantFaqira and anr.
RespondentHardewa and ors.
Cases ReferredWahid Ali Khan v. Puran Singh
Excerpt:
- - if pat ram is not before the court the worst that can happen to the plaintiffs is that the court is to take pat ram's share, as recorded in the khewat as correct. 7. it is true that under order 1, rule 9, no suit should be defeated by reason of nonjoinder of parties and this rule may be applied to appeals, but the rule has necessarily to be construed subject to the consideration that no suit can proceed if the necessary and essential parties are absent. the law cannot be deemed to require a court to do what is impossible and if a court holds that, without a decision as to the rights of a person who ought to have been joined as a defendant and who not so joined, it is impossible to adjudicate the plaintiff's right, the suit will fail notwithstanding order 1, rule 9. the same.....mukerji, j.1. a question has arisen in the course of the hearing of this appeal as to whether the whole appeal abates or only a part.2. the facts, which it would be necessary to consider in connexion with this point, are briefly as follows: the appellants, with two others instituted a suit for declaration of title. their case was that in the khewat their proper share was 60 out of an entire quantity of 146 shares, the shares of defendants 1 to 3 was 79 out of the same quantity; and of defendants 4 to 8 seven out of the same quantity. according to the khewat the entire share was divided into 89 portions and the plaintiffs were recorded in respect of 3, defendants 1 to 3 in respect of 79 and the remaining defendants 4 to 8 with respect to 7 shares. the plaintiffs sought, as already stated,.....
Judgment:

Mukerji, J.

1. A question has arisen in the course of the hearing of this appeal as to whether the whole appeal abates or only a part.

2. The facts, which it would be necessary to consider in connexion with this point, are briefly as follows: The appellants, with two others instituted a suit for declaration of title. Their case was that in the khewat their proper share was 60 out of an entire quantity of 146 shares, the shares of defendants 1 to 3 was 79 out of the same quantity; and of defendants 4 to 8 seven out of the same quantity. According to the khewat the entire share was divided into 89 portions and the plaintiffs were recorded in respect of 3, defendants 1 to 3 in respect of 79 and the remaining defendants 4 to 8 with respect to 7 shares. The plaintiffs sought, as already stated, a declaration of title with the ultimate object of applying to the revenue Court for correction of the khewat.

3. The suit was resisted by defendants 1 to 3 alone and they maintained, inter alia, that the khewat was correct. Defendants 4 to 8 did not contest the suit.

4. The suit was dismissed on the ground of want of jurisdiction in the civil Court because certain partition proceedings were pending in the revenue Court. After the institution of the second appeal defendant 4 Pat Ram died and his heirs were not brought on the record, It has been contended on behalf of the respondents that Pat Ram's legal representatives not having been brought on the record, the whole of the appeal abates. I cannot agree with this contention. According to the language of law, viz., Civil P, C, Order 22, Rule 4, Sub-rule 3, where within the time limit allowed by law no application is made under Sub-rule 1, the suit shall abate as against the deceased defendant.' This rule which is meant for original proceedings is applicable to appeals by Rule 11 of the same Order 22. Thus the statutory rule is clear and it is that the appeal should abate only so far as Pat Ram is concerned.

5. It has, however, been contended that from the nature of the suit it is impossible for this Court to adjudicate on the rights of the contending parties without the presence of the legal representatives of Pat Ram before it. It is my definite opinion that when, under the law, the suit or appeal abates against only one party, the rest of the appeal or suit must continue and cannot be dismissed for want of parties. I am, however, prepared to look into the merits of this contention. If we look into the contention of the parties we shall see that Pat Ram and defendants 5 to 8 were recorded in the khewat as holding 7 out of 89 shares. The result of Pat Ram and his co-defendants (5 to 8) not being before the Court can be only this: that they should have the entire 7 shares out of 89 kept intact for them. The suit is only for a declaration of title and if the plaintiffs cannot get a declaration as to title against some of the defendants, it does not follow that they should not get it as regards the other defendants who are questioning it. The partition was proceeding according to the entries in the khewat. The question raised was whether those entries were correct. If Pat Ram is not before the Court the worst that can happen to the plaintiffs is that the Court is to take Pat Ram's share, as recorded in the khewat as correct. In my view, therefore, the nature of the suit is not such as to make the applicability of Sub-rule 3, Rule 4, Order 22, Civil P.C., impossible or improper: See Shankerbhai Manorbhai v. Moti Lal Ram Das (1). I hold, therefore, that the appeal abates only so far as the deceased defendant is concerned.

Ashworth, J.

6. I agree that the suit must be deemed to have abated only as against Pat Ram respondent. But I hold that it is not possible to proceed with the appeal in the absence of the representatives of Pat Ram. The plaintiffs-appellants are suing for a declaration as to their title against all the defendants-respondents. The share to which the plaintiffs are entitled cannot be decided without deciding the shares to which all the defendants are entitled. It cannot be held that Pat Ram is at any rate entitled to the share recorded in his name in the khewat as it at present stands. The case of the plaintiffs-appellants is that the entry in the khewat is wrong from beginning to end. Assuming for the moment that the heirs of Pat Ram were brought on the record as respondents, there would be nothing in the way of their resisting this appeal on the ground that the khewat was wrong (as contended by the appellants), but that it should be corrected to give them, as heirs of Pat Ram, a larger share than they were given in the khewat. Once the khewat is wrong and held to be wrong (which is an essential preliminary condition for the plaintiffs winning their suit and the appeal) it is open for any defendant-respondent to set up any share that he chooses. The plaintiffs-appellants cannot in the same breath say that the khewat is wrong and yet should be regarded as correct as against one defendant-respondent. They have not brought Pat Ram's representatives on the record and they are, therefore, not in a position to win their suit by decision in appeal.

7. It is true that under Order 1, Rule 9, no suit should be defeated by reason of nonjoinder of parties and this rule may be applied to appeals, but the rule has necessarily to be construed subject to the consideration that no suit can proceed if the necessary and essential parties are absent. It has frequently been held that the rule should be so construed. The law cannot be deemed to require a Court to do what is impossible and if a Court holds that, without a decision as to the rights of a person who ought to have been joined as a defendant and who not so joined, it is impossible to adjudicate the plaintiff's right, the suit will fail notwithstanding Order 1, Rule 9. The same consideration must apply to an appeal. Where an appeal cannot be decided without the presence of a person who should have been made respondent then the whole appeal must fail notwithstanding that the suit under Order 22, Rule 4, read with Rule 11, only abates against the absent respondent. Invoking, therefore, Order 22, Rules 4 and 11, in conjunction with Order 1, Rule 9 (as the latter rule has to be construed and has been construed), I hold that this appeal should be dismissed on the ground that a necessary party has not been given notice and that the appeal in the absence of that party, cannot be decided.

8. The case of Shankerbhai Manoharbhai Patel v. Moti Lal Ram Das Shah A.I.R. 1925 Bom. 122, relied on by my learned brother, is in my opinion to be distinguished from the present case. In that case a co-tenant was asking for joint possession and there was no decision required as to his particular share. In the present case the appellants are asking for a declaration as to their particular share. That share cannot be decided without knowing the share of the absent respondent. I would, therefore, dismiss the appeal.

9. The order of the Court is that the case be placed before the Hon'ble Chief Justice for the purpose of obtaining the opinion of one or more Judges in respect of the following matter:

10. In the circumstances of the present case, can the appellants be permitted to be heard in the absence of the legal representatives of the deceased Pat Ram?

Sulaiman, J.

11. This case has been referred to a larger Bench on account of a difference of opinion between the learned Judges before whom the case first came up as to whether

under the circumstances of the present case, the appellants can be permitted to be heard in the absence of the legal representatives of the deceased Pat Ram.

12. The facts are fully set forth in the judgment of Mukerji, J. and it is not necessary to repeat them. I may only mention that during the pendency of a second appeal arising out of a suit for the declaration of title against two sets of defendants, one defendant Pat Ram, belonging to the second set, died and no steps were taken within the time allowed by law to bring his heirs on the record. It has not been suggested in this case that the other defendants in any way represent him. The point which arose for consideration was whether the fact of the abatement of the appeal against Pat Ram necessarily involved the dismissal of the whole appeal against all the defendants.

13. The difference in the opinions of my learned brethren is not so much as regards the general principles which are well settled, but rather as to the applicability of those principles to the facts of this particular case. Under Section 368 of the old Coda of Civil Procedure the death of a party resulted in the abatement of the suit. There was no specific mention that abatement was only as against the deceased defendant. Nevertheless, even under the old Code, if the interests of the defendants could be separated, it used to be held that the whole suit had not abated.

14. In Order 22, Rules 3 and 4, we have the express language that the death of a particular party, when his representatives are not brought on the record within time, results in the abatement of the suit or appeal against the deceased party. On the strict language of the rules, therefore, we have to assume that the abatement, in the first instance, is as against the deceased party only, that is to say, the death of the party does not necessarily involve the abatement of the whole suit or appeal. On the other hand, it is quite clear on the authorities that, if as a result of the nonjoinder of the heirs of the deceased party the suit or appeal becomes imperfectly constituted, and it is impossible for the Court to go on with it and pass a decree, then the party who failed be bring the heirs of the deceased on the record must suffer the consequences. It is not necessary for me to refer to the rulings of other High Courts among whom there is undoubtedly some conflict of opinion. It is sufficient for me to state that the law as to whether the suit or appeal can go on as against the remaining defendants was correctly stated by Daniels and Neave, JJ., in the case of Wahid Ali Khan v. Puran Singh : AIR1925All108 , in the following words:

Whether this is so depends on whether the interest of the deceased respondent can be separated from that of the remaining respondents so that it is possible to give a separate decree against the latter without affecting the interests of the legal representatives whom the appellant has failed to implead. When several persons have a joint interest in property, it is in general impossible to give a joint decree for possession against some of them when the decree declaring the right of the other joint holders to retain possession has become final, otherwise the result would be two contradictory decrees, both of equal authority.

15. This principle was followed by a Bench of this Court in the case of Darshan Das V. Bikramjit Rai : AIR1926All128 .

16. We have, therefore, to see whether it is possible in this case to separate the interest of the second set of defendants to whom Pat Ram belonged from that of the defendants first party. If it is impossible to separate their interest, and if, without adjudicating upon the rights of the two sets inter se, the appeal cannot be allowed, it seems clear that the whole appeal must fail. On the other hand, if it is possible to pass a decree in favour of the plaintiffs against defendants 1 to 3 only without deciding finally the rights of the defendants second party, then, in view of the express provisions of Order 1, Rule 9 of the new Code of Civil Procedure, it is our clear duty not to dismiss the whole appeal but to adjudicate upon the rights of the parties before us.

17. With these remarks I proceed to consider the allegations in the plaint and relief claimed. The plaintiff's case was that in a joint khewat which was represented originally by 556 shares, the plaintiffs owned 60 shares, defendants 1 to 3 owned 79 shares and defendants 4 to 8 owned 7 shares; that subsequently this was partitioned into three pattis of which No. 3 was the patti of the non-applicants; that by a mistake of the amin this patti, which should have represented 146 shares, was made to represent only 89 shares although the number of shares given to the two sets of defendants remained the same, namely, 79 and 7. with the consequence that the plaintiff's share was recorded as being three whereas it ought to have been 60. The body of the plaint mentions the specification of the share which belonged to the three parties; but in spite of an amendment of the relief, it still asks for a joint relief as to the declaration of their title to 60 shares against all the defendants without specifying that any of them had any particular share in excess. We are not concerned with the merits of this claim which have not been considered by the lower appellate Court.

18. It seems to me that if we were looking at the relief only without the express allegations in the body of the plaint, it would appear that the plaintiffs were claiming one joint relief against all the defendants without specifying their shares. Under those circumstances, it might have been difficult to hold that in the absence of some of the co-sharers the plaintiffs' title could be declared to any specific share. But a Court is not bound to confine its attention strictly to the language of the relief actually claimed is the plaint, if the allegations do entitle the plaintiffs to a wider relief.

19. Reading the plaint as a whole, and considering all the allegations which were added on amendment, it is quite clear that the plaintiffs ware alleging that the two sets of defendants were respectively recorded as being in possession of shares in excess of their real shares. If the suit were to be decreed, the plaintiffs would have to get some shares out of the shares in the name of the defendants first party and some shares out of the shares standing in the name of the defendants second party. Owing to their negligence the plaintiffs have not brought on the record the heirs of Pat Ram. Pat Ram was jointly recorded in the khewat along with defendants 5 to 8. There is no specification of the shares of defendants 4 to 8 in the plaint or in the khewat. They, on the plaintiffs own showing, are joint owners jointly interested in the shares specified against their joint names. It is, therefore, impossible to decree the plaintiffs' appeal against defendants 5 to 8 when the decree in favour of defendant 4 will have to remain intact. As a result of the nonjoinder of the heirs of Pat Ram it must, therefore, be held that the appeal fails not only as against Pat Ram, but as against the whole set to which Pat Ram belonged, namely defendants 4 to 8.

20. In my opinion the case as against defendants 1-3 stands on a slightly different footing. No doubt the relief claimed was badly worded, but the nature of the claim is not altered if, as between the plaintiffs and defendants 1-3 it is decided that the plaintiffs ought to get some shares out of the shares standing in the name of the latter. A decree of that kind would of course be behind the back of Pat Ram's heirs and, therefore, would not in any way bind them; but it would be decisive and final as between the plaintiffs and defendants 1 to 3.

21. No doubt such a decree will leave a loophole for future litigation, that is to say, may lead to a multiplicity of suits; but in my opinion a mere danger of multiplicity of suits is not sufficient for the dismissal of the whole appeal when it is not impossible to pass a decree in favour of the plaintiff against one set of defendants. It cannot be suggested that any trouble will arise in the execution department, or that by passing a decree in favour of the plaintiffs against defendants 1 to 3 we would be passing a decree contradictory to the one passed by the lower appellate Court in favour of Pat Ram which remains untouched. Accordingly, there seems to be no fatal objection to our splitting up the claim against the two sets of defendants and holding that, although the appeal fails as against defendants first party, it can go on as against the defendants second party. My answer to the reference would, therefore, be that the whole appeal has not abated, but has abated as against defendants 4 to 8.

Mukerji, J.

22. I entirely agree with my learned brother that on the authorities of this Court and having regard to, the peculiar facts of this case the appeal should be treated as capable of being heard as against defendants 1 to 3 at least.

23. In the judgment delivered by me on 26th July 1927, which was followed by the referring order, I pointed out that I held the opinion that according to the strict letter of the law the appeal could abate as against Pat Ram alone and that the rest of the appeal should be heard. The trend of authorities in this Court, however, establishes this: that although a suit or appeal may abate against only one of the parties (defendants or respondents) there may be circumstances which make the hearing of the rest or a larger portion of the appeal improper or impracticable. This opinion I must bow to, so long as it holds good, being unreversed by a larger Bench. Having regard to this rule of law and having regard to the peculiar facts of the case, it must be held, and I do hold, that the appeal should not be heard so far as defendants 4 to 8 are concerned. The rest of the appeal is good and should be heard.

Ashworth, J.

24. My view was that where, under the provisions of Order 22, Rule 4, an appeal abated against one party, it would also abate or cease to continue as against the other respondents if it was impossible for the Court to give a satisfactory decision as against those other respondents only. This view is concurred in by the above judgments. A further question was whether in this particular case it was impossible to decide the appeal as against the remaining respondents. The answer to this question depends upon the interpretation of the plaint. It appears that if we confine our attention to the words of the relief claimed it would be impossible, but that in the rest of the plaint there are certain statements which indicate that the real relief required by the plaintiffs is a declaration that they were entitled to certain shares held by one party and to certain other shares held by the other party. If this is treated as the real claim, it would not be impossible to decide the plaintiffs' case as against the first party respondents only. I also concur with the view that taken as a whole the plaint may be construed in the light of a claim for definite shares against each of the two parties and not as a claim jointly against both parties. I, therefore, concur in the decision given by my learned brothers.

25. In our opinion the appeal fails against defendants 4 to 8 but not as against defendants 1 to 3. This is our answer to the reference.

Mukerji, J.

26. The plaintiffs in the Court of first instance are the appellants before us. They instituted the suit out of which this appeal has arisen to obtain a declaration that the number of shares recorded in their favour in the khewat is too little, and that instead of there being 60 shares out of 146 shares they have been recorded as owning three shares out of 89 shares.

27. The suit was contested by defendants 1 to 3 and was dismissed by the Courts below on the ground of limitation and on the ground that maintenance of the suit was barred under the provisions of Section 233 (k), Land Revenue Act. The first Court went into the merits of the matter and was of opinion that if there were no bar the plaintiffs were entitled to succeed. The lower appellate Court has not gone into the merits of the case.

28. The two points that we have to consider are: (1) whether the suit was barred by time, and (2) whether it was barred by Section 233 (k), Land Revenue Act.

29. Point No. 1.-It appears there was a partition in the village at the instance of certain parties who are not before us. The shares of these people who had applied for partition were separated in 1324 F. (1st July 1916 to 30th of June 1917). It was then that the entry in the khewat, now complained of, was made. The plaintiffs stated in para. 9 of the plaint that they asked the defendants to get the khewat corrected, but they declined to do so. The plaintiffs, however, did not adduce any evidence to prove that they had actually made any request to the defendants to have the khewat corrected. We must, therefore, take it that there was no request made and no such request was refused. The question then is what would be the date for starting limitation under Article 120, Lim. Act.

30. It appears that the reason for the institution of the present suit was that, on the basis of the alleged wrong entry in the khewat, defendants 1 to 3 filed an application in the revenue Court for partition. This application was made on 3rd November 1923 and 21st December 1923 was fixed for the cosharers, including the plaintiffs, to appear and file objections, if any, to the application for partition. On 19th December 1923, the present suit out of which the appeal has arisen was filed. We have to take it, therefore, that the present suit was filed in order to prevent the defendants 1 to 3. from obtaining the benefit of the entry in their favour in the khewat by means of partition. No fact has been alleged as proved which establishes that, previous to the filing of the application for partition, the fact had been brought to the notice of the plaintiffs that there was a wrong entry in the khewat, and that advantage of that wrong entry was likely to be taken by defendants 1 to 3. In the circumstances my opinion is that 'the right to sue,' within the meaning of Article 120, Lim. Act, accrued to the plaintiffs on the filing of the application for partition and not earlier. In this view the suit would not be time barred.

31. On the question as to whether the suit is barred by the provisions of Section 233 (k), Land Revenue Act, the position is this.; The application for partition, as already stated, was made on 3rd November 1923. On that application being made the revenue Court became seised of the whole case as between the plaintiffs on the one hand and defendants 1 to 3 on the other. If any question of title arose between the parties, the revenue Court became competent to deal with it in certain ways, mentioned in Section 111, Land Revenue Act. If no question of title arose the only thing that the revenue Court had to do was to distribute the property in any manner it deemed fit, and the civil Court would have no voice in the matter. Ordinarily, of course, a question of title has to be decided by the civil Court, and the civil Court alone. In order to avoid a conflict of jurisdiction, Section 111, Land Revenue Act, was framed It gives the revenue Court certain directions as to how to proceed in the case of a question of title being raised before it. Section 110, Land Revenue Act, directs that the Collector, on receiving an application for partition, shall see if, on the face of it, it is in order and shall issue a proclamation, if he finds that the application has nothing objectionable on the fact of it. A date has to be fixed by the Collector, and on the date fixed the cosharers, if they are recorded in the khewat as such, have to appear before the Collector and to raise such objections as they may be advised. If the objection should relate to title the Collector has one of three things to do: (a) decline to grant the application until the question in dispute has been determined by a Court of competent jurisdiction; (b) ask any of the parties to institute, within three months, a suit in the civil Court for the determination of such question; or (c) proceed to enquire into the merits of the objection. It will be noticed that the Collector, if he so wishes, can try the question of title himself. If he does not want to try the question himself, he can confer jurisdiction on the civil Court by asking either of the parties to institute a suit within three months. This should exhaust the ways in which the question of title raised has to be decided, that is to 'say, either the Collector has to decide it or he should call upon any of the parties to institute a suit, but in that case the suit should be instituted in the civil Court. Thus having exhausted the ways and means of having a question of title decided, the third course open to the Collector is to decline to grant the application as mentioned in Clause (a), Section 111, Land Revenue Act.

32. The question is what this Clause (a) means. Does it mean that the Collector has to refuse the application for partition altogether or can he hold it in suspense till the question of title raised has been determined by a competent Court? As I read the whole of Section 111, the direction is that the Collector may dismiss the application in to saying, as a part of his order, that an application like that shall not be maintained till it is armed with a decree of a competent Court which would ordinarily mean a civil Court. This would prevent the presentation of another similar application for partition the next day. The idea is that a second or third application for partition shall not be maintained till the question of title raised has been finally determined by a competent Court. Clause (a) may again mean that the Collector may keep the application in suspense where, for example, a civil suit may already be pending between the parties at the date of the application. In my opinion, even in the latter case, the result would be the same, namely, the Collector would deny juris diction in himself to decide the question of title. It cannot be the case that simultaneously the question of title should be pending both before the revenue Court and the civil Court.

33. I am fortified in my reading of Clause (a), Section 111, by this fact that we do not find any directions like those to be found in Sub-Sections (2) and (3), Section 111 with regard to Clauses (b) and (c), Sub-Section 1. In the case of Clause (b), Sub-section 1, we find the provision in Sub-section 2 that the Collector is told how he is to proceed if he has once taken action under Clause (b). In the case of the Collector proceeding under Clause (c), Sub-section 1, he is told, by Sub-section 3, how he is to proceed. But in the case of the Collector proceeding under Clause (a), Sub-section 1, he is not told what he has to do. The only inference can be that, the Collector having declined to entertain the application, for partition no occasion for giving him any further direction arises. In other words, my reading of Section 111 is this: First the Collector declines jurisdiction where the ground for his declining jurisdiction for partition would be that the applicant has not got a decree of a competent Court in support of his title. For example, a man whose name is not recorded in the khewat or a man whose name is recorded in the khewat for a share but he asks for a larger share, comes with an application for partition. The Collector may say:

I refuse to entertain your application. If you want to apply for partition, you must come armed with a decree of the civil Court declaring that you are entitled to the share claimed or to the larger share.

34. Secondly, the Collector may assume jurisdiction, and in that case the question will be whether he will try the question of title himself, or whether he will have it decided by the civil Court in the regular way. In the latter case he has to limit the time with in which he would direct one of the parties to have the matter decided by the civil Court. The reason is this that the partition application cannot be left pending indefinitely at the sweet will of a party. No party can say that he would institute the suit within, say, a year of the order. Thirdly, the Collector may assume jurisdiction himself and try the question of title himself. In that case he would decide it as if he were a civil Court with the further result that an appeal would lie be the District Judge or to the High Court as if from the judgment of a Court of civil jurisdiction.

35. If this reading of mine of Section 111, Land Revenue Act, be correct, the Collector, on being told by the present plaintiffs that they had instituted a suit is the civil Court, could not confer a jurisdiction on the civil Court by simply saying, as he did in this case, 'Wait till such and such a date' (see the order quoted in the judgment of the first Court). He could certainly proceed with the application, in spite of the fact that a suit had been instituted in the civil Court. As I have already said, the Collector was authorized by the provision of Section 111, Land Revenue Act, to decide the question of title himself. To decide that question, therefore, the was a Court of competent jurisdiction, as the application for partition had been made in his Court, before the suit for declaration was filed in the revenue Court. Section 10, Civil P.C., came into play and the issue which arose for decision in either case could be tried by the revenue Court alone. If, therefore, the Collector proposed (I do not think that he did propose to do so) to deny himself jurisdiction, he had to proceed in the regular way by bringing into operation Clause (b), Section 111 and not otherwise. He was bound to record a formal order directing the present plaintiffs to institute a suit within three months of the order. The suit that had already been instituted was not within the jurisdiction of the civil Court to entertain, and, therefore, was of no value. For the above reasons I agree with the Courts below that the cognizance of the suit was barred and it was rightly dismissed

36. I would dismiss the appeal with costs.

Ashworth, J.

37. I concur in the view of my learned brother that the suit was rightly dismissed under Section 233 (k), U.P. Land Revenue Act. I would, however, also hold, in agreement with the lower Courts' decision, that it was barred by limitation under Section 120 of the Lim. Act. As regards the question of jurisdiction the intention of the partition Court underlying its order of 4th July 1924 has to be observed from the surrounding circumstances. One of these circumstances is the law which should have been in the mind of the Collector. On that date the Collector was informed by the present applicant, that the applicant had filed a suit in the civil Court for a declaration as to the shares to which he was entitled. On receiving this information the Collector passed an order in the following terms:

Application filed and affidavit that a civil suit has been filed. Wait until the 21st September 1924.

38. Now that was a correct and sufficient order if the appellant's suit for a declaration of title had been filed before the partition suit. It was not a correct order if the civil suit for such a declaration had been filed subsequent to the partition suit. In the latter case the Collector should have said that he was not concerned with such a suit inasmuch as the civil Court was debarred from entertaining such a suit under Section 233 (k), U.P. Land Revenue Act. The Court should have then gone on to consider which of the three courses prescribed in Section 111, Land Revenue Act, it decided to employ. If it decided to employ the course allowed by Clause (a), then it would have passed an order in the terms of Clause (a) even if it did not specifically refer to that clause. The effect of such an order would have been to require the appellants to get the title to the shares determined by a civil Court having jurisdiction. That would be in this case by a civil Court not barred by Section 253 (k). Section 233 (k), Land Revenue Act, is a bar to the institution of a suit. It is not a bar merely to the continuance of a suit. When in that suit the defendants raised the plea of want of jurisdiction of the civil Court under Section 233 (k), they must have referred to the fact that the plaintiff had no right to institute the suit. If the plaintiff had no right to institute the suit, the defect could not be cured by an order pendente lite of the revenue Court under Section 111 (a). I hold that no order can be passed under Section 111 (a) when a suit in the civil Court for declaration of title has been instituted before the partition suit, because the entertainment of the partition suit in that case would be barred by;S. 2, Civil P.C. If the application for partition has preceded the institution of the civil suit, that institution is bad and cannot be corrected by an order under Section 111 (a).

39. If an order is passed under Clause (a), then the only proper course for the plaintiff in the civil suit is to withdraw the suit already instituted by him and to file another suit. The former suit was barred by Section 233 (k), but the latter suit would not be so barred owing to the obtaining of an order under Clause (1), Section 111. I may remark that it is settled law that Section 233 (k) read with Section 111, Land Revenue Act, means that a civil Court cannot entertain a suit as to a declaration of title, when that title is a matter that can be determined and must be determined in a pending partition suit.

40. As to the question of limitation, I cannot agree that the institution of the partition suit by the respondent operated so as to give the appellant a right to sue. The appellant in his plaint set forth that the right to sue arose from a denial of his title by the respondent. He failed to bring any evidence to prove such denial. Consequently we must hold that there was no such denial. Again in the plaint the appellant never set forth that the bringing of the partition suit made it to the interest of the respondent to deny his title. The only ground on which he suggested in his plaint that the respondent was interested to deny his title, as distinct from the fact of his actually having denied it, was that the mistake in the khewat had been made and maintained. This mistake was made and obviously known to the appellant more than six years before the bringing of the declaration suit. Nothing has occurred since then in my opinion to give the respondent a greater interest in denying the appellant's alleged title than has existed all along. At any rate limitation must be decided on the plaint. It is nowhere alleged in the plaint that the fact of the respondents bringing the partition suit gave him an interest in denying the plaintiff's title which he did not possess before. On this ground I would concur with the lower Courts that the suit is barred by limitation.

41. On this ground, as well as on the other ground of jurisdiction, I concur that the suit should be dismissed.

42. For the reasons given above the order of the Court is that the appeal shall stand dismissed with costs.


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