JUDGMENT King, J.
1. This appeal arises out of a suit for possession of a certain plot No. 40, in the abadi of a village, by the demolition of a wall said to have been newly constructed thereon by the defendants.
2. The parties to the suit are co-sharers in the village and the village was partitioned in the year 1893. In the partition the plot No. 40 fell to the plaintiffs' share. The plot is adjacent to the outer wall of the defendants' house and the defendants claimed that the land belonged to them, and, in any case, it has always been in their exclusive possession, firstly, because water from the eaves of their house had always been discharged over it, and secondly, because the women of defendants' household always used the plot as a privy.
3. The Court of first instance decreed the plaintiff" suit finding that the parties were parties to the partition proceedings and are bound by the allotment arrived at by the Revenue Court. It is clear from the khasra and from the coloured partition map that the plot No. 40 was allotted to the plaintiffs. Therefore in the opinion of the learned Munsif the defendants were bound by the partition and could not resist the suit.
4. The defendants appealed to the learned; Subordinate Judge who came to the conclusion that there had been a mistake in the partition map and khasra. He held that plot No. 40 had certainly been allotted to the plaintiffs at the partition, but that this had been done by a mistake, and that in such a case both parties should be deemed to be the owners of the plot. He also found the defendants have been in exclusive possession of the gali for more than 12 years, although their possession had not been adverse. On these grounds the Court below allowed the appeal and dismissed the plaintiffs' suit. It must be further mentioned that in the appeal by the defendants to the Court below they only impleaded Hardwar Singh plaintiff 1 as respondent and omitted to implead plaintiff 2, Dipan Rai as respondent. This omission was noticed in the Court below and an order was passed on 22nd March 1928 ordering the appellants' vakil to file an application for amendment of the memorandum of appeal by adding, the name of Dipan Rai as respondent. An application for amendment was made to this Court on 2nd April 1928, stating that the name of plaintiff 2, Dipan Rai, had been omitted by an error committed by the pleader's clerk in copying out the grounds of appeal. The Court below then passed an order that the grounds of appeal be amended by adding the name of Dipan Rai and to serve notice upon Dipan Rai. The latter appeared and raised objection to having been impleaded after the expiry of the period of limitation and after the decree in his favour has become final. The Court however decided that Dipan Rai should be impleaded and allowed the appeal against both the plaintiffs as respondents.
5. Plaintiff 2, Dipan Rai, now comes to this Court in second appeal and raises two points. The first point is that the Court below was wrong in depriving him of the right which had accrued to him under his decree which had become final before his name was added as a respondent in the Court below. His learned counsel, has cited the case of V.P.B.V. Chokalingam Chetty v. Seethai Acha A.I.R. 1927 P.C. 252. This was also a case in which a party had not been joined as respondent before the time for appeal had elapsed. After such time had elapsed the plaintiff appellant applied to - add defendant 1 to the array of respondents, as the appeal could not succeed in his absence, but the application was refused. It was held by their Lordships of the Privy Council that as defendant 1 held a decree against which an appeal was barred, so far as he was concerned, he was not interested in the result of the appeal" within the meaning of Order 41, Rule 20. It was also held that even assuming that under Order 41, Rule 33 the appellate Court could add a defendant as respondent for the purpose of making a decree against him, no sufficient ground had been shown for interfering with the refusal to do so. This ruling appears to us to be directly in point. Dipan Rai had secured a valuable right in that the period of limitation for appealing against the decree in his favour had elapsed. According to the view of their Lordships of the Privy Council therefore he was not interested in the result of the appeal" which had been filed against Hardwar Singh plaintiff 1 only, and the Court should not have ladded the name of Dipan Rai as respondent under the provisions of Order 41, Rule 20. Even assuming that the Court might by exercising a proper discretion have added the name of Dipan Rai as respondent under the provisions of Order 41, Rule 33, the Court below in this case did not in our opinion exercise a proper discretion.
6. The second point raised is that even upon the merits of the case the Court below was wrong.
7. There can be no doubt that the plot in suit was clearly allotted to the plaintiff at the Revenue Court partition. This is the finding of both the Courts below. Whether it is truo that such allotment was due to a mistake, as suggested by the Court below, or whether it was intentional, in our opinion, the defendant is bound by the allotment at the partition since he was a party to the partition proceedings. In our opinion Section 233(k), Land Revenue Act, bars the defence that the plot was wrongly allotted to the plaintiff and should have been allotted to the defendant. The learned Counsel for the respondent has cited a number of rulings showing that in certain circumstances civil Courts can decide questions of title-connected with partitions effected by Revenue Courts, but we consider that none of such rulings are directly in point. The parties to the suit were parties to the partition proceedings. If the defendant was intended by the Revenue Court to be-the owner of plot No. 40 and if it had been allotted by mistake to the plaintiff's kura then the defendant should have raised the question before the partition proceeding was confirmed. If he failed to raise the question of title, namely, the ownership of the plot, during the partition proceedings, he cannot be permitted to raise the point "subsequently in the civil suit under the provisions of Section 233-K.
8. The Full Bench decision in Muhammad Sadiq v. Lauti Ram [1901] 23 All. 291 is clearly in the appellant's favour. In that case it was held that if a party to a partition desires to raise any question of title affecting the partition he must do so according to the procedure laid down in Sections 112 and 115 of the Act (North-Western Provinces Land Revenue Act, 1873). If a question of title affecting the partition which might have been raised under Sections 112 to 115 of the Act during the partition proceedings is not so raised and the partition is completed, Section 241(f) of the Act debars the, party to the partition from raising subsequently in a civil Court any such question of title. The provisions of the U.P. Land Revenue Act (1901) on this point are similar to those of the N.W.P. Land Revenue Act, 1873.
9. The case of Tirbeni Sahai v. Gokul Prasad [1911] 33 All. 440 may also be referred to as the facts are very similar. In that case by a mistake of a partition amin a spot belonging to defendants was allotted to the plaintiff and two plots belonging to the plaintiff were allotted to the defendant. It was held that no suit would lie in a civil Court to rectify this error. Even if the plot in the present suit was allotted to the plaintiff by a mistake, even so on the strength of this ruling a civil Court could not interfere and declare that the plot belongs to the defendant. The Full Bench ruling in the case of Bijai Misir v. Kali Prasad Misir [1917] 39 All. 469 takes a similar view. In that case the plaintiff had been a party to the partition proceedings. Subsequently he instituted a suit to recover possession of certain shares which he alleged had been wrongly awarded to the defendants at the partition. It was held by a majority of the Full Bench that the suit was barred by the provisions of Section 233-K, Land Revenue Act. We consider that this ruling is clearly applicable to the facts of the present case and the Court below was wrong in finding that the defendant was not bound by the partition proceeding in which the plot in suit had been allotted 'to the plaintiff.
10. There is one small point remaining for consideration. The plaintiff had obtained a decree in the trial Court restraining the defendants from discharging water into the lane. The lower appellate Court has found as a matter of fact that the defendants' drain used to flow towards the lane and not towards the north as alleged by the plaintiff. The plaintiff therefore is not entitled to the relief claimed in respect of the drain.
11. We accordingly allow the appeal and restore the decree of the trial Court except that para. 2 which states that the defendants are restrained from discharging water into the lane shown in blue colour in the amin's map dated 27th June 1927, shall be struck out from the decree. The appellant will get his costs throughout.