JUDGMENT Banerji and Aikman, JJ.
1. The main question which arises in this appeal is whether the suit brought by the plaintiffs appellants is maintainable having regard to the provisions of Section 233, Clause (k), of the Land Revenue Act No. III of 1901. The facts are as follows: In the village of Khera Buzurg there were two mahals, one known as mahal Naubat Singh and the other as mahal Ganga Bakhsh. In the record of rights of both the mahals the names of the plaintiffs appear as owning 5 biswas in each mahal, the other 5 biswas being entered in the names of the defendants. The plaintiffs alleged that under a partition which took place before the Mutiny their predecessors in title became owners of the whole of the mahal Naubat Singh, although they are recorded as owning only a half; that they have been in exclusive possession of the mahal, and that the defendants have no interest in it. They brought the present suit on the 20th of April 1904 for a declaration that they are the absolute owners of mahal Naubat Singh, They also prayed in the alternative for possession. It appears that on the 6th of February 1904 the defendants applied to the Revenue Court for partition of their share in the two mahals. On the 12th of March 1904 a proclamation was issued as required by Section 110 of Act No. III of 1901 calling upon the recorded co-sharers to appear on the 18th of April 1904 and state their objections, if any, to the partition. The plaintiffs did not choose to appear before the Revenue Court to prefer objections, but on the 20th April 1904 instituted the present suit. We may note that in their plaint they suppressed all mention of the fact that an application for partition was pending in the Revenue Court. The partition, we may mention, has been carried out by the revenue authorities, and was confirmed on the 29th of September 1906. Under these circumstances the first question we have to decide is whether the suit is maintainable in the Civil Court. In the Full Bench case of Muhammad Sadiq v. Laute Ram (1901) I.L.R., 23 All., 291 it was held unanimously that if a party to a partition conducted by the revenue authorities desires to raise any question of title affecting the partition, he must do so according to the procedure laid down in the Land Revenue Act. The suit in that case had been instituted after the completion of the partition, and it was held that the suit was not maintainable. Two of the Judges left it an open question whether had the suit been instituted before the completion of the partition proceedings it would have been maintainable. We have therefore to decide the question which it was not necessary to decide in that case and was left undecided. In our judgment, having regard to the provisions of the Land Revenue Act, a party who might have raised a question of title in partition proceedings and had an opportunity of doing go, but omitted to do so in the Revenue Court is not entitled to bring a suit in the Civil Court to have that question determined. The law has by Section 111, Sub-section (1), conferred on the Revenue Court the power to determine whether it shall try the question of title itself or require any party to the case to institute a suit in a Civil Court for determination of such question. This power can only be exercised by the revenue authorities, and it is not competent to a party to partition proceedings himself to make an election as to the Court which should try the question of title raised. In our opinion the Legislature clearly contemplated that before the arduous and often protracted work of partition has begun all questions of title should have been determined. If we were to hold that the present suit is maintainable it would be open to a party to wait till the work of partition was on the point of completion, and then by a suit in a Civil Court to undo what might be the work of years done by the revenue authorities. In Khasay v. Jugla (1906) I.L.R., 28 All., 432 it was held that the prohibition contained in Section 233, Clause (k) of Act No. III of 1901, applies to suits with respect to partition in which the plaintiff has had an opportunity of having his objections considered under Section 111 and has not availed himself of it. The learned Judges go on to say: "Where a party has had the opportunity of representing his case in the Revenue Court and has not availed himself of it, we should have no hesitation in holding that the jurisdiction of a Civil Court is barred by Section 233," This remark, which in that case was obiter, was adhered to by the same Bench in the unreported case of Lala Makhan Lal v. Musammat Wahidi Begam (Second Appeal No. 512 of 1906, decided on the 3rd of January 1907). The learned Judges held that as the plaintiff had an opportunity of representing his objections in the Revenue Court and did not avail himself of it within the time allowed by law, the jurisdiction of the Civil Court was barred. The result is that in our judgment this suit was not maintainable and this appeal must fail. We accordingly dismiss it with costs.