JUDGMENT P.C. Banerji, J.
1. The suit out of which this appeal has arisen was brought by one Sitlu Rai for establishment of his right to and possession of certain immoveable property consisting of shares in 16 villages, on the allegation that he was the reversioner of the last male owner of that property and that Musammat Parkali Kuar, the principal defendant, had no interest in that, property. The lower Appellate Court found the facts in favour of the plaintiff and decreed his claim in respect of three villages. As regards the remaining villages that Court dismissed the claim on the ground that in its opinion Section 11 of the Code of Civil Procedure barred it.
2. The way in which the section was applied to the case was this: The name of the defendant Musammat Parkali had been entered in the revenue papers along with the name of the plaintiff. The plaintiff and the Musammat jointly applied for partition of the villages in respect of which the claim has been dismissed and the shares recorded in their names were formed into a separate Mahal, The Court below has held that, as both of them had applied for partition and obtained partition, the matter became res judicata in consequence of the order for partition passed by the Revenue Court. This decision of the lower Appellate Court was affirmed by a learned Judge of this Court in second appeal.
3. During the pendency of the appeal Sitlu Rai died. A question was raised before us as to whether the present appellants were the legal representatives of Sitlu Rai and were entitled to maintain the appeal. An issue was referred to the Court below on the point and it has been found that they are the legal representatives of Saitlu Rai. This finding has not been questioned.
4. It is urged on behalf of the appellants that the Court below has erred in holding that Section 11 of the Cede of Civil Procedure is a bar to the claim as regards the villages in respect of which the claim has been dismissed. This contention seems to be valid. In the Revenue Court when an application for partition was made no question of title was raised and no question of title was determined, therefore, the mere fact of a partition having been effected by the Revenue Court does not amount to a decision of the question of title by that Court, which might have the effect of res judicata upon the question of title to the property as between Sitlu Rai and the defendant Musammat who were arrayed on the same side as applicants for partition.
5. The only other question to be considered is whether the present suit offends against the provisions of Section 233K of the Land Revenue Act. No papers relating to partition were produced in this case, but the plaintiff in his deposition admitted that an application for partition had been made by him and Musammat Parkali Kuar jointly on the one side as against other co sharers and a separate Mahal was formed. The object of the present suit is not to take out of the other Mahal any land which has been allotted to that Mahal or to interfere with the share of Government revenue, which, has been declared to be payable by each. Mahal, but what the plaintiff seeks is that he should be declared to be the owner, of the Mahal which has been jointly recorded as a separate Mahal.
6. The case, therefore, does not seem to be a case to which Section 233K applies, the matter not being a matter relating to the. union or separation of Mahals. The Mahals as formed by the Revenue authorities would remain as they are. The only claim of the plaintiff is that he should be declared to be the owner of one of the Mahals formed by the Revenue authorities as a separate Mahal. As has been already stated, the finding of the lower Appellate Court is that title to the property is in the plaintiff. As Section 233K of the Land Revenue Act or Section 11 of the Code of Civil Procedure is no bar to the present suit, the plaintiff's claim ought to prevail and the decree of the lower Appellate Court ought to be reversed to this extent that the claim of the plaintiff should be decreed in. respect of all the property claimed by him.
Knox, J.
7. I agree.
8. By the Court.--The order of the Court is that the appeal be allowed, and the decree of this Court and of the two lower Courts be reversed and in lieu thereof a decree be made in favour of the plaintiff decreeing the whole of his claim with costs in all Courts, including in this Court fees on the higher scale.