George Knox, J.
1. The suit oat of which this appeal arises was a suit brought by Adya Saran Thakurai and Gursaran ThakuKu against Lakhpat, Mahadeo and Suraj Bali Thakurai first party, Jai Mungal and three others second party and Rozan Cbaudhri third party. The allegations contained in the plaint are that the ancestors of the plaintiffs hypothecated a 2-anna 2-pie share in Mouza Mohnapur to Bacha Thakurai and three others, ancestors of defendants. One-fourth of the consideration, it is said, belonged to the ancestors of defendants first party, one-half to the ancestors of the defendants second party and the remaining one-fourth to the ancestors of defendants third party. Defendants second and third parties obtained sale-deeds of the entire mortgage share amounting to a 2-anna 2-pia share of the consideration of the document already mentioned. Subsequently defendants first party brought a suit for the recovery of their 1/4th amount of the consideration under the same document. Defendants first party got a decree on the 28th of May 1907 for sale of a 6|-pie share out of the property in possession of defendants second and third party, but by some mistake a 2-anna 2-pie share was entered in the decree instead of the 6 pie share. On the basis of this wrong decree defendants first party got this entire 2-anna 2-pie share sold by auction, but defendants second and third party got the decree subsequently modified and the 6| pies, substituted.
2. Mutation proceedings followed and on the 6th of April 1910 the Collector of Basti decided that the names of defendants first party be removed against the 62-pie share and that defendants second and third party must have their names recorded against the remaining 1-anna and 7-pie share.
3. The plaint goes on to say that when the defendants second party, which I shall call for the sake of brevity Jai Mangal and others, saw that a 6-pie share out of the property mentioned in the sale-deed would pass out of their possession and be recorded in the name of Lakh pat Thakurai, they won over defendants first and third parties and by fraud got the name of Lakhpat Thakurai recorded against the 6-pie share standing in the name of Jai Mangal and others and got his name entered against another 6-pie share, which was neither charged under the decree nor sold at auction, and further got the names of the plaintiffs removed therefrom. They then in order to strengthen their fraudulent and collusive steps made Lakhpat Thakurai file an application for partition of the said 6-pie share as against Jai Mangal and others and Rozan third party and also as against the plaintiffs and others share-holders of a 5-anna 4-pie share. Jai Mangal and others did not apply for partition.
4. The plaintiffs got no information of the application for partition made by Jai Mangal and others and they were no parties to the partition. The plaintiffs are entitled to recover 6-pie share together with mesne profits from the defendants, who are in collusion with each other and in wrongful possession of plaintiffs' share. They accordingly sued for a decree for possession of a 6-pie share and for recovery of Rs. 250 mesne profits and also for an order for costs and future mesne profits together with interest.
5. All three sets of defendants filed written statements. In none of these written statements was any mention made of a plea to the effect that the suit was barred by Section 233K of the Land Revenue Act. Some five months after filing the written statements it came somehow to the knowledge of the defendants that Section 233K could be pleaded, They filed supplementary statements stating that the share sued for was comprised in a 5-anna 4-pie patti baqi manda which was publicly partitioned and the partition duly confirmed on 24th April 1913. The learned Subordinate Judge held that plaintiff No. 1, viz., Adya Saran had no opportunity to assert his title or make any objection, he was, therefore, not barred and could maintain his civil suit as he was no party to the partition proceedings, and plaintiff No. 1 was also held to be entitled to future mesne profits and the plaintiff Adya Saran was given a decree to recover possession from Lakhpat and others of 3-anna 4-pie share together with mesne profits to be determined in the execution department. The suit of Gur Saran Thakurai was dismissed. An appeal was presetted by Gur Saran Thakuiai from this decree and all the defendants first, second and third parties were arrayed as respondents. The provisions of Section 233K of the Land Revenue Act were raised in the pleas by the defendants first party, but the Judge found that they were not applicable to the case and held that the result of the mutation proceedings instituted by the defendants first party was to dispossess the plaintiffs and the plaintiffs were entitled to recover possession of the 6-pie share from the defendants first party. It is unfortunate that the learned Judge did not stop here; he went on in his judgment to say: 'in view of the powers conferred on Appellate Courts by the provisions of Order XLI, Rule 33, and in order to avoid future litigation, I think, I should make provision for the recovery by defendants first party of the share to which, according to the decree in the former suit they are entitled.' This is 6-pies out of the 26 pies purchased by the defendants second and third party in satisfaction of the mortgage-debt. Acting on this view of the case he dismissed the appeal of the defendants first party and confirmed the decree of the Subordinate Judge. He accepted the appeal of Gur Saran and decreed his claim for recovery of possession and mesne profits as against the defendants first party, Lakhpat Thakurai and others. Farther he granted the defendants first party a decree for recovery of possession of a 6-pie share together with mesne-profits from the defendants second and third party. This decree was ex parte.
6. So far from avoiding litigation the order of the learned Additional Judge has led to three appeals of which this is one. The defendants first party have brought this appeal, pleading that the suit is barred by Section 233K. This was the only plea pressed at the hearing of the appeal. The plaintiffs alone were made respondents, so that the appeal lies between defendants first party and plaintiffs and no one else. It appears that Gur Saran Thakurai was a party to the partition proceedings, that he took no objection in these proceedings about the property in suit and so far as he is concerned and the property which is his, viz., 3-pie share the defendants' appeal prevails. Adya Saran was never a party to the partition proceedings and it has not been shown that he had cognizance of them under Section 111 of the Land Revenue Act of 1901. The plea taken against him does not apply and the decree of the learned Judge must be so modified that Adya Saran must not be made to suffer. It is unfortunate that no one appeared either for Gur Saran Thakurai or Adya Saran Thakurai.
7. The decree of the lower Appellate Court is, set aside and that of the Court of first instance restored with proportionate costs.