JUDGMENT Tudball and Kanhaiya Lal, JJ.
1. The facts of this case, so far as we have been able to discover them from the record, are as follows:
In the year 1897 or thereabouts one Kanak Singh sold certain property to a certain vendee. The present plaintiff appellant brought a suit for pre-emption and obtained a decree and apparently paid up the amount of money and was put in possession. In the year 1913 a co-sharer in the village applied for an imperfect partition of his share. Up to that date the pre-emptor had not obtained mutation of names in respect to the pre-empted property. Kanak Singh had then died and is represented now by the present defendants respondents. These defendants respondents also applied for an imperfect partition of their shar'e as recorded in the khewat, which included the pre-empted share. The pre-emptor also applied for an imperfect partition of his recorded share which did not include the pre-empted share. Certain other persons also applied for partition of their shares. A partition proceeding was drawn up under which to the present defendants respondents was allotted>he whole share which stood -recorded in their names and which included the pre-empted share. To the present plaintiff appellant was allotted the share which stood in his name in the khewat and that did not include the preempted share. The partition proceedings continued. We note that in the partition proceedings that we have mentioned above, the tarz-i-taqsim, was drawn up in January, 1915. In October, 1915, the present plaintiff appellant awoke to the wrong entry of the defendants' names in the records. He applied to the Pargana Officer to have his name entered against it. That officer directed mutation in his favour. The opposite party, the defendants respondents, appealed, and the Collector on appeal upset the order of the Pargana Officer. The plaintiff took it up on further appeal, but lost the case. On the 19th of June, 1916, the partition proceedings were concluded and finally sanctioned and came into effect on the 1st of July, 1916. On the 28th of November, 1916, the plaintiff brought the present suit for a declaration that the preempted share which stood in the name of the defendants and which had been allotted to them by the partition belonged to him and did not belong to them. The courts below have held that the plaintiff is in actual possession of the property and the lower appellate court has held that the suit, being one with reference to the partition of a mahal, is barred by Section 233 (k). This decision has been upheld by a single Judge of this Court: hence the present Letters Patent Appeal.
2. An examination of the plaint shows clearly that the object of the present suit is to upset the partition proceedings. The plaintiff in his plaint sets forth the facts of the partition case in the Revenue Court and the fact that he applied for the correction of the khewat and failed; and hence he asks the court for a declaration that he is entitled to the property. The case is, in our opinion, fully covered by the old Full Bench case of Muhamamd Sadiq v. Laute Ram (1901) I.L.R. 23 All. 294. That case was followed subsequently in the case of Bijai Misir v. Kali Prasad Misir (1917) I.L.R. 39 All. 469. The question is really a difficult question for decision. It is open to more than one opinion. The view taken in the case of Muhammad Sadiq v. Laute Ram (1901) I.L.R. 23 All. 291 had been consistently followed until the decision in Bijai Misir v. Kali Prasad Misir (1917) I.L.R. 39 All. 469, when for the first time the then learned Chief Justice proposed to depart from it, The other Judges who constituted the Full Bench, however, differed. There was a former decision to be found in I.L.R. 33 All. 243, which, however, in our opinion, djes not affect the decision in the case of Muhammad Sadiq v. Laute Ram (1901) I.L.R. 23 All. 291. The learned Chief Justice no doubt was of the opposite opinion to that expressed in the former Full Bench decision but the two learned Judges who sat with him decided the case on a totally different point, as a close perusal of the judgment will disclose.
3. In view of the former decisions of this Court on the point we must hold that the decision of the learned Judge of this Court is correct and this appeal therefore fails and is dismissed with costs.