1. It is necessary to give details of the devolution of the property in suit during different years in order to understand the matters in issue in this appeal. Mauza Chintapur Badah was prior to 1911 divided into certain thoks, one of which was thok Tursi Ram, in which Khayali Ram, ancestor of the plaintiffs, had a share. In 1901 Khayali Ram purchased at auction in execution of a decree a share in thok Chheda Lal belonging to one Shyam Lal. In 1911 there was a fresh partition of mauza Chintapur Badan, and a separate mahal formed of the property owned by Khayali Ram partly in thok Khayali Ram and partly in thok Chheda Lal. A separate mahal Khayali Ram was formed at that partition. Subsequently a subsequent mortgagee of the property of Shyam Lal in thok Chheda Lal brought a suit for sale making the purchaser Khayali Ram a party defendant to the suit. A decree was obtained and the decree-money was not paid. The property was put up to auction and was purchased by the subsequent mortgagee, Desraj himself. What he purchased is described in the sale certificate printed at page 25, the last three lines of which are not certainly translated. The property was described as three shares out of the eight divided shares in a 6 biswa and odd share entered in khewat No. 2. (Note-This is a reference to the division as existed prior to 1911). At the end it is stated that this property was at that time included in khata khewat No. 1 under the name of the khewat of Narayan Singh.
2. It is clear, therefore, that what Desraj purchased was not a share in khewat Narayan Singh but one of particular property formerly included in khewat No. 2, and at the time of the sale included in khewat Narayan Singh. At the time of mutation, however, Desraj's share was entered as one-third in the khewat of Narayan Singh. In 1924 Desraj brought the present suit for partition against the successors-in-interest of Khayali Ram deceased. This suit was brought in the revenue Court, which referred the parties to the civil Court under Section 111, Land Revenue Act, U.P., for decision of the question of title.
3. The learned Subordinate Judge held that no question of title was raised, but that the dispute related only to the apportionment of property at a revenue partition, and that even if he had jurisdiction, he would refuse to grant the relief: (1) because Khayali Ram and Narayan Singh as lambardars had permitted occupancy rights to accrue to tenants in the area alleged by them to belong to Desraj, and (2) because when mutation was effected after notice to the plaintiffs, the entry made was of a one-third share in the mahal held by the plaintiffs. The 4th issue as to what property the plaintiffs were entitled to was not decided.
4. In this appeal it is argued that the question of proprietary title arises, and that the reasons given by the lower Court for not granting a relief by way of declaration were not valid.
5. We are in agreement with the contention raised on behalf of the plaintiffs-appellants. The question is certainly one of title because the plaintiffs lay claim to ownership of specific plots of land in a certain mahal. The entry in the revenue papers does not debar the plaintiffs from raising the question as to the ownership and title to specific plots of land within that mahal.
6. If Khayali Ram and Narayan Singh have acted as lambardars contrary to the interest of the defendant, such conduct may give rise to a suit for damages or some other relief, but we do not see how the plaintiff's suit for title can thereby be barred. The mutation proceedings in the revenue Court were not judicial proceedings as pointed out by their Lordships of the Privy Council in the case of Nirman Singh v. Rudra Partab Narain Singh A.I.R. 1926 P.C. 100 where they observed:
They are not proceedings in which the title to and the proprietary rights in immovable property are determined, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with the greater confidence that the revenue for it will be paid.
7. In the result we set aside the decree of the lower Court and remand the suit to it for decision on issue 4. The first three issues have been decided by us in favour of the plaintiffs. Costs here and heretofore shall abide the result.