JUDGMENT
1. This is a plaintiffs' appeal arising out of a suit for declaration of title, and in the alternative for possession. The plaintiffs first filed an application in the Revenue Court in 1929 for a perfect partition of the mahal in which the property in dispute was situated. Some objection was raised on behalf of the defendants as to the plaintiffs' title. On 30th March 1931, the plaintiffs applied to the Revenue Court for permission presumably under Section 111, Land Revenue Act to institute a suit in the Civil Court for the adjudication of their title and prayed that the proceedings in the Revenue Court be stayed until the matter was determined by the Civil Court. On 1st April 1931, the present suit was instituted. The application of the plaintiffs remained pending in the Revenue Court for a long time and ultimately on 2nd March 1932, the Court ordered that the plaintiffs should be allowed to file a suit in the Civil Court within three months of the order. Obviously, the order purported to be under Section 111(b) of the Land Revenue Act particularly as the application was headed as one under that section. The defendants raised an objection in the trial Court that the claim was barred under Section 233(k) read with Section 111, Land Revenue Act. The first Court held that there was no bar to the suit and after deciding the various issues that arose in the case decreed the plaintiffs' claim for possession. On appeal the learned Judge has come to the conclusion that the suit was not maintainable. In support of this view he has relied on a ruling of this Court in Faqira v. Hardeva 1928 26 ALJ 217.
2. It seems to us that that ruling is certainly distinguishable. Section 233(k) prevents the institution of a suit in a. Civil Court with respect to partition or union of mahals except as provided in Sections 111 and 112. Where that partition has been perfected after a question of title in the Revenue Court has been decided adversely to a party or where it has been perfected when no such question had been raised by such party, the partition is complete and the matter cannot be re-agitated in a Civil Court. This is particularly so because a Revenue Court is entitled to allot property belonging to one co-sharer to another co-sharer for the purpose of adjusting their rival claims. But Section 233(k) cannot in itself apply to a case where there has yet been no partition or union of a mahal. The aid of Section 10. Civil P.C., would have to be invoked where a partition proceeding is still pending in the Revenue Court. It has been held in two cases, Nazir Ahmad v. Mahammad Sharif 1924 46 All 453 and Faqira v. Hardeva 1928 26 ALJ 217, that the bar applies to a case where the partition proceeding is still pending in a Revenue Court. But Section 10, Civil P.C., does not altogether oust the jurisdiction of the Civil Court to receive a plaint in a suit for declaration of title or possession of immoveable property, but only refers to the stay of the suit and prevents the Court from proceeding with the trial of such a suit while the same matter is pending in another Court of competent; jurisdiction. It would, therefore, seem to follow that while a question of title has been raised and is under consideration by the Revenue Court a suit to get relief in respect of the same matter would not be tried by a Civil Court but would be stayed until the matter has been disposed of by the Revenue Court.
3. The two learned Judges who decided the case of Faqira v. Hardeva 1928 26 ALJ 217 do not appear to have expressed exactly the same views on this point. Mukherji, J., laid emphasis on the view that where the Collector is authorised by the provision of Section 111, Land Revenue Act to decide the question of title himself, then to decide that question he would be the Court of competent jurisdiction before the suit for declaration was filed in the Revenue Court, and that, therefore, Section 10, Civil P.C., would come into play and the issue which arose for decision in either case should be tried by the revenue Court alone. No doubt at some places in the judgment the learned Judge has remarked that an order passed by the Revenue Court under Section 111 might confer jurisdiction on the civil Court. and that otherwise the matter would not be within the jurisdiction of the civil Court to entertain. But obviously the learned Judge applied the principle underlying Section 10, Civil P.C., which refers to stay of suits and not to want of jurisdiction. On the other hand Ashworth, J., while agreeing with the view that Section 233(k) was a bar to the suit, also expressed the opinion that if an application made to the Revenue Court for an order to refer the matter to the civil Court is made after the institution of the civil suit then that institution is bad and cannot be corrected by an order under Section 111(a) passed subsequently and that if such an order is passed subsequently, then the only proper course for the plaintiff in the civil suit is to withdraw the suit already instituted by him and to file another suit. With great respect we are unable to concur in this view, which was really in the nature of an obiter dictum. In that case the Collector had never passed any order under Section 111 at all. A suit was instituted in the civil Court and then his attention was drawn to the fact by means of an application accompanied by an affidavit on which he passed the following order: Await until 21st September 1924." Now Section 111(a) implies that an order should be passed declining to grant the application for partition until the question in dispute has been determined by a competent Court, and not to postpone the case for a fixed period of time only. Accordingly both the learned Judges held that there was no proper order passed under Section 111(a). Admittedly there was no order passed under Section 112(a). The case therefore is distinguishable from the present case in which an order was passed by the Collector on 2nd March 1932, under Section 111(b).
4. Therefore the only point which we have to consider is whether this order passed subsequent to the plaintiffs' institution of the civil suit cured the defect. There is no question of limitation involved in this case, apart from the expiry of three months fixed by the Revenue Court in its order. There is therefore no objection to treating this suit as having been instituted on date on or after 2nd March 1932, when the Revenue Court actually required the plaintiffs to institute the suit within three months in the Civil Court. To insist on the suit being withdrawn and then to allow the plaintiffs to bring a fresh suit would be both inconvenient and unfair. In the first place it will necessitate an unnecessary duplication of civil proceedings, and in the second place the plaintiffs would have to approach the Revenue Court afresh for the extension of the period or for the grant of a fresh order. We think that there was no initial defect in the institution of the suit but that the trial of the suit was barred by the principle underlying Section 10, Civil P.C., so long as the Revenue Court had not passed the order under Section 111(b). As soon as the order under Section 111(b) was passed the objection under Section 10, Civil P.C., fell to the ground and there was no bar in the way of the civil Court trying the suit at all. The Revenue Court has stayed its hand and is awaiting the decision of the civil Court.
5. The lower appellate Court has noted in its judgment that the learned Counsel for the defendants had definitely waived all the other points in the appeal and had confined his arguments to only one question which has been discussed above. It is therefore clear that on behalf of the defendants all the other pleas were abandoned. We accordingly allow this appeal and setting aside the decree of the lower appellate Court, restore that of the Court of first instance with costs in all Courts.