1. This appeal by the defendant, Ram Kishen Rai, arises out of a suit for possession of a 1-4th share in plot No. 590-1 in the village of Kosara in the Ballia District in which the parties are permanent tenure-holders. The plaintiffs' title to a 1/8th share in this plot based by purchase is (sic). The dispute is as to the remaining 1/8th. In the plaint the plaintiffs simply set up their ownership of the plot and their unlawful dispossession by the defendant in June 1918. The case which they set up at the trial and which has been accepted by both the Courts below is that they came into possession of the remaining 1/8th share, under a private partition which took place 8 or 10, according to one witness, and 15 or 16, years ago, according to another. A private partition can be efiected without any written document. In this Court the defendant's appeal is urged on two grounds neither of which was put forward in either of the Courts below and which this Court might, therefore, well refuse to entertain on this ground alone.
2. In support of the plaintiffs' case reliance was placed by the Courts below on an application for correction of papers filed in the Revenue Courts in 1916 in which the defendant admitted that the plaintiffs were in possession of the area in suit by mutual arrangement and asked that the papers should be corrected accordingly to prevent future disputes. The proceedings for correction of papers were ultimately struck off for default but this fact is immaterial. It is the admission that is relied on. The plea put forward here is that this application is being relied on as a document of title and that as such it was inadmissible in evidence without registration. In fact, the document is not and does not purport to be a document of title, it is merely an admission of possession based on a previous arrangement between the parties and a request to the Court to give effect to that possession. In my opinion the ruling in Jagrani Misrain v. Bisheshar Dube 35 Ind. Cas. 701 : 38 A. 336 : 14 A.L.J. 449 (F.B.) on which the appellant relies does not apply. It is said that, apart from tb s document, there was no evidence of title but the judgment of the Trial Ccurt which the learned District Judge has confirmed shows that this was not the case. The document was not relied on as a foundation of title but as an admission of it. The second plea is that the suit was barred by Section 32 of the Tenancy Act. Section 32 contains two sub-sections. The first declares that no division of a holding should be binding on the land-holaer unless he consents. In this case the landholder is not a party to the proceedings and no question of his consent was ever raised. The second sub-section forbids the. Courts to entertain a suit for the division of a holding. It has, however, been held in Kedar v. Deo Narain 30 Ind. Cas. 89 : 37 A. 656 : 13 A.L.J. 910 that this section does not apply to a suit to recover a fractional share in a holding against a person -in lawful possession. For these reasons the appeal, in my opinion, fails and I accordingly dismiss it with costs.