SADA SHEO Vs. MTRAM PEARY

JUDGEMENT

(1.) This is a Letters Patent appeal by the plaintiffs against the judgment of a learned single Judge of this Court dismissing the suit of the plaintiffs on the ground that that suit is barred by the provisions of Section 233, (k), Land Revenue Act. The facts are that the plaintiffs sued for possession of seven-eighths of certain zamindari property in the possession of Mt. Gurdei, defendant 2 claiming that plaintiffs and defendant 3, Ram Naik, are entitled to the whole of this property. The property in suit belonged to one Harnath, who was of the family of the plaintiffs, and it has been found as a fact by the lower appellate Court that on the death of Harnath his son Maharaj Kishor was a leper to such an extent that he was disqualified from inheriting the property of his father. Maharaj Kishor nevertheless was entered for the property after the death of his father and died very shortly afterwards, and left a widow, Mt. Ram Peary, defendant 1. The death of Harnath took place within six or seven years of the suit, and therefore there is no question of adverse possession. The suit has been brought on account of a deed of gift executed by Mt. Ram Peary in favour of her daughter Mt. Gurder of the property in question.

(2.) The allegation that the suit was barred by Section 233 (k) does not find a place in the written statement or in the grounds of appeal by the defendants to the lower appellate Court, but the lower appellate Court mentions that the point was raised in argument. The point was taken in the grounds of second appeal. When the matter came before the learned single Judge of this Court, the facts which would give rise to this plea were not contested, and in fact it is shown to us that in the statement of the plaintiff it is admitted that the plaintiffs were parties as cosharers to a partition in which partition a separate patti was formed for Mt. Ram Peary of the property in question. Argument was advanced in the Letters Patent appeal to the effect that the materials before the learned single Judge of this Court were not sufficient to establish the facts under which a bar under Section 233 (k), Land Revenue Act could be established; but there is no allegation in the grounds of appeal of this Letters Patent appeal to that effect, nor was there any argument on that point taken before the learned single Judge. Accordingly we consider that this point cannot be raised now and that the sole point which is open to argument in this Letters Patent appeal is purely a point of law whether the suit is barred by the provisions of Section 233 (k), Land Revenue Act.

(3.) Now various rulings of this Court have been referred to the learned single Judge and in argument. The first of these rulings is a Full Bench ruling reported in Mohammad Saddiq V/s. Lauti Ram [1901] 23 All. 291. In that ruling a Bench of five Judges held that where a question of title could have been raised in a partition proceeding in the revenue Court, and was not raised, then Section 241 (f), N. W. P. Revenue Act of 1873, bars a suit raising the question later in the civil Court.