1. In both the lower Courts this suit has been dismissed, on the ground that it was barred by limitation, being a suit to set aside a sale for arrears of Government revenue, and not being brought within one year from the date on which the sale became final.
2. We are of opinion that, having regard to the terms of the plaint and the case that was made before the lower Courts, the suit has been rightly dismissed. The learned pleader who appears for the appellants, has attempted to show that the plaintiffs were entitled to relief on the ground of fraud, and next he has attempted to maintain, on the authority of the judgment of the Pull Bench case of Baijnath Sahu v. Lala Sital Prasad 2 B.L.R. F.B. 1 that the suit does not come within Clause 12 of the 2nd schedule of the Limitation Act of 1877, because it being alleged that no arrear of revenue was due, the proceeding of the Collector was ultra vires, inasmuch as the sale was not properly held under Act XI of 1859, and that the suit was governed by another provision of the Law of Limitation.
3. It appears to us, that both, these points are untenable. They are entirely new points set up here for the first time, and no part of the case made in the lower Courts. The circumstances of the case as disclosed by the proceedings seem to show that the plaintiffs have suffered considerable hardship, and we should have been glad to have been able to direct a trial of the suit on the merits, but unfortunately the plaintiffs, by their own laches, have placed it out of our power to do so.
4. The appeal is dismissed with costs.