BABU LAL SAO Vs. SHEORATAN MAHTON

JUDGEMENT

(1.) This is an appeal against an order of a Subordinate Judge of Patna, remanding for trial on merits a suit which had been dismissed on a preliminary point by the trail Court. The facts are these. The plaintiffs had six annas odd share in village Fatehpur Keora, tauzi No. 1006, which they held jointly with other co-sharers of the estate. The estate had about 70 bighas of land which was in khas possession of the proprietors and out of this about 33 bighas is said to have been in separate possession of the plaintiffs. The plaintiffs transferred some of their shares to the defendants 1 to 22.

(2.) These defendants however got their names recorded in respect of the entire share of the plaintiffs, namely, 6 annas 18 gandas and odd. The plaintiffs case was that in spite of the transfer they still had left to them 2 annas 10 bouris and 2 phauries share in the estate. As the defendant transferees got their names recorded in respect of the entire share which the plaintiffs held, the plaintiffs had to institute a suit for declaration of their title to and confirmation or recovery of possession of the 2 annas odd share (suit No. 680 of 1922). In the meantime the estate (tauzi No. 1006) was declared under partition by the Collectorate and by the time the decree was passed in the suit on 17 April 1925, and confirmed on appeal on 3 August 1925, the estate had already been partitioned and six estates were formed out of the parent estate.

(3.) The plaintiffs, however, took out execution of the decree and got possession of the share decreed to them. When the plaintiffs went to the Collectorate to have their names recorded in respect of 2 annas odd share, for which they had obtained the decree, the revenue authorities refused to do so as the share decreed was a share extending over the entire estate but had then become a share of different denominations in the six estates which had been formed by the Collectorate partition. The plaintiffs then instituted the present suit for a distribution of the decreed share to the various newly formed estates. They were met by the defence that the suit did not lie, because it was for the same relief as they had sought in the earlier suit. The trial Court dismissed the suit, holding that the decree, which the plaintiffs obtained was in contravention of Section 27 of the Estates Partition Act inasmuch as it was not so framed as to apply to the state of affairs as they came to exist after the partition; and that whatever remedy plaintiffs had, it was not by a fresh suit.