SADAK ALI Vs. KERAMAT ALI

JUDGEMENT

(1.) THIS is an appeal preferred by the defendants Nos. 2 and 3 against a judgment of the learned Subordinate Judge of Chittagong, dated the 14th January 1915, affirming the decision of the Munsif of the same place. The point that has been argued in this appeal is with reference to an additional ground of appeal (No. 6), which was added after the admission of the appeal under Order XLI, Rule 12, Civil Procedure Code, and that ground of appeal is with reference to this, whether the annulment of an encumbrance under Act XI of 1359 must be made by a judicial process. That is the ground set up in the appeal and the matter has come up for consideration. There are many decisions of this Court that are binding on us to the contrary. Perhaps it will be sufficient if we refer to the decisions in Darsan Singh v. Bhawani Koer 19 Ind. Cas. 971 ; 17 C.W.N. 984, where it was definitely laid down that the purchaser at a revenue sale many elect to annul an under-tenure not only by the institution of a suit or by giving notice to vacate but also by any other means showing a clear intention to avoid. The point that is now raised must be treated as a pure question of law, because the point was not tried in the lower Appellate Court and it may be that, if the point had been taken in the lower Courts, evidence would have been produced to show that the purchaser at the revenue sale elected to annul either by notice or by one of the other means referred to in the judgment of Darsan Singh v. Bhawani Koer 19 Ind. Cas. 971 ; 17 C.W.N. 984. THIS is not the only judgment of this Court in this matter; but there are other judgments which also establish that the annulment of an under-tenure, when it has been sold for arrears for revenue under Act XI of 1859, need not take place by a suit. Except in so far as it is taken in the grounds of appeal which is a question of law, it is not open to the appellants to raise this matter, which was not raised in either of the Courts below. The appeal, therefore, fails and must be dismissed with costs.