1. This is a second appeal by two defendants against a decree of a lower Appellate Court, the Additional Subordinate Judge of Azamgarh, granting the respondent plaintiffs a declaration that they are entitled to possession of one-third of the occupancy numbers in suit. The plaintiff-respondents sued in the Court of the learned Munsif on the ground that the property in suit was the ancestral property of the parties, and that after the death of Kewal, father of the plaintiffs, the defendants managed the property and their names were alone recorded in the revenue khataunis, and that in 1927, the defendants began to interfere in the possession of the plaintiffs and the plaintiffs brought this suit. The main ground of defence was that the plaintiffs were not the sons of Kewal but were the sons of another person whose widow came to live with Kewal. On this issue the trial Court found that the plaintiffs were not the sons of Kewal, but this finding has been reversed by the lower Appellate Court. Issues Nos. 3 and 4 were as follows:
3. What was Kewal's interest in the holding?
4. Have the defendants acquired any portion of the holding in suit from the zemindar.?
2. It is contended in the grounds of Appeal No. 2 before this Court that the lower Appellate Court has not recorded any finding on these Issues Nos. 3 and 4 The numbers in the plaint consisted of plots in Mauza Mangrawan and plots in Mauza Bahorpura. In regard to plots in Mauza Mangrawan the defence was that they were given to the plaintiffs for their maintenance, and in regard to the plots in Mauza Bahorpura the defence was that the plaintiffs had no connection with those plots. The claim of defence was that these plots had descended somehow from one Ishri, who was a collateral ancestor of Kewal. Kewal was the grand-father of the defendants. I may note that no document exists on the record showing an entry of Ishri for any of these plots, and the only document to which the learned Counsel for the appellants can refer is Ex. A, a copy of the khatauni extract of Fasli 1306 for Bahorpura, which shows the names of defendants Mangru, Harpal and Jhuri for the numbers in Bahorpura. As no evidence was put before the Courts in regard to the plots having ever been held by Ishri, it was not necessary for the lower Appellate Court to mention Ishri in its appellate order. There was no issue on the subject of Ishri, but only Issues Nos. 3 and 4 which I have quoted. The lower Appellate Court came to a very definite finding on these issues, as it states 'he (plaintiff) has been in joint possession of the plots of Bahorpura also to the extent of his one third share along with the defendants, and it is only recently that the defendants have interfered with his possession.' I consider, therefore, there is nothing in the first or second ground of appeal. The third ground was that the suit was time-barred, because there was no finding that the parties were members of a joint Hindu family. The finding of the lower Appellate Court is that the plaintiffs have been in joint possession of the plots until recently with the defendants and therefore the suit of the plaintiffs is not time barred. The fourth ground of appeal was that the plaintiffs' suit in respect of Ishri's holding was barred by Section 79 of the old Tenancy Act. In the first place the old Tenancy Act was not in force in 1927, when the suit was brought, and there is nothing apparently which operates as a bar in regard to it. It was argued by the learned Counsel for the appellants that what he intended to plead was that the suit did not lie in the Civil Court but in the Revenue Court. He argued that Section 99 of Act III of 1926 (the present Tenancy Act) allowed a suit to be brought by a person, who is ejected from a holding by parsons claiming through a land-owner whether as tenants or otherwise. But Section 268 of that Act states 'when, in a suit instituted in a Civil or Revenue Court, an appeal lies to the District Judge or High Court, an objection that the suit was instituted in the wrong Court shall not be entertained by the Appellate Court unless such objection was taken in the Court of first instance; but the Appellate Court shall dispose of the appeal as if the suit had been instituted in the right Court,' In the present case no plea as regards jurisdiction was taken in the Court of first instance or in the lower Appellate Court. The case, therefore, differs from the ruling on which the learned Counsel relies Ram Partab Singh v. Chotey Singh : AIR1928All269 , as in that case a plea was taken in the Court of the first instance which made a reference to the High Court.
3. For these reasons, I dismiss this appeal under Order XLI, Rule 11.