Prinsep and Banerjee, JJ.
1. The plaintiff sues to recover possession of 1 1/2 bighas of land as lakhiraj situate within the patni property bought by the defendant at a patni sale. She claims title as being a valid lakhirajdar and also by reason of her having, together with her predecessor, held the land for upwards of 12 years adversely to the landlord.
2. The Munsif gave the plaintiff a decree, on the ground that she had acquired a lakhiraj title by more than 12 years' adverse possession.
3. The District Judge, on appeal, has set aside this decree, and dismissed the suit on the ground that no adverse title could be pleaded against defendant No. 1, who had purchased the property at a patni sale held within 12 years from the date of the institution of the suit and who is entitled to it free of all incumbrances created subsequent to the original grant of the patni estate.
4. The decision of the Full Bench in the case of Womesh Chunder Goopto v. Raj Narain Roy 10 W.R. 15 is to that effect and there is no doubt that the plaintiff's case must fail on this ground. It is not denied that she has altogether failed to establish any direct lakhiraj title. It is, however, pleaded on her behalf in this appeal that inasmuch as it was found by the Court of First Instance, and that finding has not been displaced in the Lower Appellate Court, that she has held this land without payment of rent for more than 30 years, a lakhiraj title should be presumed. That, however, was not the case set up by her in her plaint, nor was it made the subject of any finding in the Lower Courts. Such a plea, moreover, is one which would affect the title of the zemindar, and in order to establish any title against him, it would be necessary for her to show that she has held under a lakhiraj title adversely to the zemindar before the creation of this patni. This, too, is not a plea which she has raised in her plaint or in the course of the trial. We are consequently of opinion that her suit should be dismissed, and chat there should be no further trial on any issue which has been raised for the first time in second appeal.
5. The appeal must be dismissed with costs.