considering. The learned counsel for the applicants admits that they
have open to them a remedy by way of suit in which they can question the
decision of the Subordinate Judge so far as it is injurious to them.
Admittedly they have not availed themselves of that remedy, and there-
fore, adopting and acting on the precedents above cited, I think that this
Court should not grant to them the extraordinary remedy by way of
revision for which they have applied. For this reason I think this appli-
cation should be rejected. It is therefore unnecessary for me to enter into
its merits or to .come to any finding as to whether the reasons set forth
in the application are or are not good grounds for the exercise of the
revisional jurisdiction of this Court. I dismiss this application with costs.
(I) 8 M 484.
(2) 10 A. 119 at p. 122.
(3) 11 A. 383.
YII] ALI GAUHAR KHAN V. BANSIDHAR id All. 40
15 A. 407 = 13 A. W.N. (1893) 173.
EEVISIONAL CIVIL. JUNE 28.
Before Mr. Justice Burkitt. REVI-
ALI GAUHAR KHAN (Applicant) v. BANSIDHAR (Opposite Party).* CIVIL.
[28th June, 1893.]
Civil Procedure Cede, s. 311 Execution of decree Application to set aside sale in exe- 407 =
cution Decree-holder a necessary party to such application. 13 A. W.N.
The decree-holder is a necessary party to an application under 3. 311 of the
Code of Civil Procedure.
 Hence where a judgment-debtor applied under the abovementioned
section to have a sale in execution of a decree against him set aside and mide no
attempt to implead the decree-holder until long after limitation had expired.
Held that the application must be dismissed. Karamas Khan v. Mir AH
Ahmed (1) referred to.
Rel. on, 19 Ind. Gas. 475 (476) ; D., 390. 687 (693) = 16 C.W.N. 570 (572) = 14 Ind.
Gas. 67 (68).]
THE facts of this case sufficiently appear from the judgment of the
Maulvi Ghulam Mujtaba and Babu Becha Bam Bhattacharji, for the
BURKITT, J. This is an application for revision of an order passed by
the District Judge of Aligarh on the 13feh of January 1893, affirming on
appeal an order of the Munsif of Aligarh passed under s. 311 of the Code
of Civil Procedure cancelling the sale of certain property. It appears that
the property was sold on the 20bh of February 1892, and was bought by
one Ali Gauhar Khan. On the 25th of February, the judgment-debtor
made an application to the Court under s. 311 asking to have the sale set
aside. The appicant impleaded as respondent to this application only the
auction-purchaser, and did not impload the decree-holder. In subsequent
proceedings, but long after the limitation period had expired, the decree-
holder was made a party to the case and served with notice of the proceed-
ings. At the first hearing in the course of these proceedings the auction-
purchaser objected that the application was bad for want of parties,
alleging, as I understand, that the decree-holder was a necessary party
and that he was brought on the record of the case too late. The conten-
tion was that the absence of the decree-holder was fatal to the proceedings
and that he was brought on the record too late to cure the original defect.
The first matter which requires to be decided in this case is :
Was the decree-holder or was he not a necessary party to this
application ? It has been decided by this Court in a recent case,
Karmat Khan v. Mir Ali Ahmed (1), that to an application under
s. 311 of the Code of Civil Procedure the auction-purchaser is a necessary
party and that his non-joinder within the fixed period of limitation is fatal
to the application. It seems to me that the reasons given by
the learned Judge who decided that case apply even more forcibly to the
 case of decree-holder. I cannot conceive how it could be consi-
dered that he is not a necessary party to an application the practical effect
* Miscellaneous Application, No. 5 of 1893, for revision under e. 622 of the Code of
(1) 11 A.W.N. (1891) 121.
15 All. $10
INDIAN DECISIONS, NEW SERIES
15 A 407 =
of which, if granted, would be to deprive him, for a time at least, of the
fruits of his decree. In such a matter he has a great, and indeed I may
say, an overwhelming interest, and is entitled to be heard fully in support
of the sale. It is quite possible to imagine a case in which, if the decree-
holder were not a party to such an application, the judgment-debtor and
the auction-purchaser might collude together to defraud the decree- holder.
I am therefore of opinion that the decree-bolder was an absolutely
necessary party to this application. Admittedly he was not made a party
to it till long after the limitation period of 30 days had expired. . The Mun-
sif, consequently, when he brought the judgment-debtor (a) on the record
as a party, exercised a power with which he was not vested by law, and,
as that order has been confirmed on appeal by the Judge, it is one to which
the provisions of s. 622 are applicable.
I notice that in his judgment, applying s. 34 of the Code of Civil
Procedure, the District Judge has held that the applicant, by not taking
at the earliest opportunity his objection as to misjoinder, must be con-
sidered to have waived that objection. In this matter, too, I think the
learned .fudge was wrong. It appears that the objection was taken at the
first hearing, and an objection so taken must be held to have been taken
at the earliest opportunity. The case of Imam- ud- din v. Liladhar (1) is
an authority for this proposition.
The results of the foregoing conclusions is briefly that as the judg-
ment-debtor (a) was a necessary party to the application, and as he was
not made a party to it till after the expiry of the limitation period, the
Court below in making him a party acted without jurisdiction. The case
accordingly comes within the purview of s. 622 of the Code of Civil Pro-
cedure. Therefore, setting aside the concurrent orders of the two lower
Courts, I direct that the application under s. 311 for cancelmenfc of the sale
be rejected. The applicant is entitled to costs in all three Courts.
15 A. 410 = 13 A.W.N. (1893) 173.
 Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Burkitt.
KEDAB NATH AND ANOTHER (Plaintiffs) v. KAM DIAL AND OTHERS
(Defendants).* [3rd July, 1893.]
Act XTX of 1873, ss- 3 sub,-s. (1), 107 Partition Wajib ul-arz Fewer of Colltctor in
constituting a new mahal by partition to frame a neia wajib-ul-arz for such mahal.
It is within the implied, though not within the specified, powers of a Collec-
tor while constituting new malials by partition of a previously existing single
mahal to frame a new wajib-ul-arz for eaoh of the new mahals so constituted,
[R , 22A. 1 (8; = 19 A.W.N. 111.]
THE facts of this case sufficiently appear from the judgment of the
Second Appeal, No. 762 of 1890, from a decree of G.A. Tweedy, Esq., Officiating
District Judge of Cawnpore. dated the 10th April 1890, confirming a decree of Syed
Akbar Husain, Subordinate Judge of Cawnpore, dated the 17th September 1889.
[(a) "Judgment-debtor" seems to be a misprint for " decree- holder. "ED ]
(1) 14 A. 524.
KEDAR NATH V. RAM DIAL
Mr. Amir-ud-din, for the appellants.
Munshi Ram Prasad, for the respondents.
13 A. 410 =
EDGE, C.J., and BURKITT, -T. The question 'upon which this appeal LATE
turns is by no means an easy one. It is this : Whether on the parti-
tion of a mahal for which at the settlement a record-of-rigbls was prepar-
ed and sanctioned, the partitioning officer can prepare for each of the
separate mahals into which the original mahal is partitioned a newrecord-
of-rights. In 1876, in the settlement of mahal Purwa Mir, v>wa.jib-ul-arz
was prepared and recorded. If that is the record-of-rights governing this
case, the plaintiffs, appellants here, are entitled to succeed. In 1886
perfect 'partition of Purwa Mir into seven mahals was made by the Collec-
tor, and on that partition, separate records-of-rights ware prepared for
the new mahals and, amongst others, for mahal Sham Sundar and mahal
Munna Singh. If these records-of-rights were legally prepared,
the defendants, respondents here, are entitled to have this ap-
peal dismissed. Mr. Amir-ud-din for the plaintiffs has contended,
and we think correctly, that there is no express provision enabling a
partitioning officer to prepare and record on partition new records-
of-rights. There does not appear to be any power in that .respect
 specifically given to the partitioning officer. Mr. Amir-ud-din
has gone further and has contended that no officer other than a Settlement
Officer during the course of settlement operations has power to frame
and record any record-of-rights. We bave come to the conclusion, although
with some hesitation, that the latter contention of Mr. Amir-ul-din is not
sound. In Jai Bamv. Makabir Bai (1) a new wajib-ul-arz prepared on
perfect parbition by the partitioning officer was recognised by this Court
as a lawfully prepared iuajib-ul-a>z and as governing the mahal to which
ifc applied. Turning to Act No. XIX of 1873, we find in s. 107 that
*' perfect partition " means the division of a mahal into two or more
mahals. Under that Act a recorded co-sharer in a mahal is under
certain circumstances, entitled to have perfecc partition of his share, and
under that Act the old mahal Purwa Mir divided by perfect partition
into seven mahals. Section 3, sub-s. (1) of the Act difines a mahal as
" (a) any local area held under a separate engagement for the payment of the
land revenue, and for which a separate record-of-rights has been framed ;
or (b) any local area of which the revenue has been assigned or
redeemed, and for which a separate record-of-rights has been framed."
If it was the intention of the Legislature that ' mahal ' when it
occurred in the Act should have the meaning assigned to it in the
definition clauses of s. 3 it would apparently necessarily follow
there could be no perfect partition of a mahal into two or more mahals
unless a separate record-of-rights was framed for each new mahal. It
is impossible to say what may have been the intention of the Legislature.
Strictly speaking a kheiuat is as much a part of a record-of-rights in a
village as is a tuajib-ul-arz. Section 94 of the Act directs the Collector
to keep and maintain the record-of-rights and from time to time to cause
to be registered all changes which may take place and anything which
may affect any of the rights and interests recorded. On a partition it
is quite manifest that the original kheioat of the village would no longer
apply, as the mahal to which it related no longer existed, and ifc
(1) 7 A. 720,
15 All. 412
INDIAN DECISIONS, NEW SERIES
1893 would be necessary to prepare a fresh khewat for each separate new
JULYS, mahal. Although, apparently, no express power is given to the
 partitioning officer by Act No. XIX of 1873 to frame separate
APPEL- records-of-rights for the separate mahals, still, as the object of a perfect
LATE partition is to create absolutely separate mahals with separate interests,
GlVIL. ne m ust of necessity, it appears to us, have power to do all things which
are necessary to the creation of separate mahals on partition. It is
13 A. 410= conceivable that one object may occasionally be to exculde from a right of
13 A.W.N. pre-emption in one new mahal the shareholders in other new mahals
(1893) 173. into which the original mahal might ba partitioned. In the result we
come to the conclusion, no doubt with some hesitation, that the parti-
tioning officer lawfully framed a new and separate record-of-rights for
each mahal into which on partition the original mahal was divided.
Under these circumstances we hold that the wajib-ul-arz of 1886 applies
and we dismiss this appeal with costs.
15 A. 412 = 3 A.W.N. (1893) 177.
Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Burkitt.
ANTU SINGH AND OTHERS (Plaintiffs) v. MANDIL SINGH AND OTHERS
(Defendants).* [4th July, 1893.J
Practice Suit lor exclusive possession Decree for joint p assess ion circumstances under
which such decree may be granted.
Although under certain circumstances in a suit for exclusive possession of
immoveable property a decree for joint possession may be Riven, nevertheless
such a decree should not be given unices the plaintiff aeka for it and the evi-
dence shows that he is entitled to it.
[D., 20 A.W.N. 195.]
THE facts of this case sufficiently appear from the judgment of the
Babu Bojendro Nath Mukerji, for the appellant.
The respondents were not represented.
EDGE, C. J., and BURKITT, J. The plaintiffs brought their suit
for exclusive possession of a tank. The first Court gave them a decree
for exclusive possession. The defendants appealed. The [$13] District
Judge found that the plaintiffs were not entitled to exclusive possession
and dismissed their suit. The plaintiffs now appeal on the ground
that the District Judge should have given them a decree for joint
possession. The District Judge was not asked to find whether or
not the plaintiffs were entitled to joint possession, nor did the plaintiffs
ask him to give them a decree for joint possession. The cases in which,
in a suit for exclusive possession, it has been held that a decree for joint
possession might have been or ought to have been given do not apply to
Second Appeal, No. 310 of 1891, from a decree of J. J. McLean, Esq., District
Judge of Azimgarh, dated the 21st January 1891, reversing a decree of Babu Nihala
Chandar, Muusif of Azimgarh, dated the 18th June 1890.
GAURI SHANKAR V. KARIMA BIBI
15 All. 414
the present case, in which the Judge was not asked to find whether the
plaintiffs were entitled to joint possession, and in which the plaintiffs
did not ask him for a decree for joint possession. Further, it was not
shown here, as we infer from the District Judge's judgment, that the
plaintiffs were entitled to a decree for joint possession even if they had
asked for it.
We dismiss this appeal, but without costs, as no one appears for the
13 A. 413 = 13 A.W.N. (1893) 178.
Before Sir John Edge, Et., Chief Justice, and Mr. Justice Burkitt.
OAURI SHANKAR (Defendant) v. KARIMA BIBI AND OTHERS (Plaintiffs).*
[6th July, 1893.)
Civil Procedure Code, s, 562 Appeal from order of remand Effect of findings of fact
and findings of law,
On an appeal from an order of remand under s. 562 of the Code of Civil Pro-
cedure the High Court is bound to accept the findings of faot of the Court which
made the remand, that Court being a Court; of first appeal, provided that there is
evidence to support them ; but where the High Court has decided a question of
law in an appeal from an order under s. 562 of the Code, that decision of the
question of law will be final for all purposes in the suit and in any appeal
which may subsequently be made to the High Court. Deo Kishen v. Bansi (1)
[P., 3Ind. Gas. 283 (284)=fi M.L.T. 198; Appr.. 20 A. 42 (45) = 17 A.W.N. 195 ; R.,
25 P.L.R. 1903 = 1 P.L.R. 1903=1 P.R. 1903.]
THE facts of the case sufficiently appear from the judgment of the
Mr. Amir-ud-din, for the appellant.
 Mr. A. H. S. Reid for the respondents.
EDGE, C.J., and BURKITT, J. This is a second appeal. The Sub-
ordinate Judge of Ghazipur dismissed the suit holding that ss. 13 and 43
of the Code of Civil Procedure applied. On appeal tbe District Judge, also
applying ss. 13 and 43 of tbe Code, dismissed the appeal. There was an
appeal to this Cour'c, and this Court rightly or wrongly, beld that ss. 13
and 43 did not apply to the case and made an order of remand under
s. 562 of the Code of Civil Procedure. Under that order of remand the
appeal below was re-heard and a decree passed. This second appeal
is from that decree. For the defendant, appellant, it is contended
that ss. 13 and 43 of the Code of Civil Procedure apply, and it is
further contended that the order of bhis Court remanding the case
under s. 562 does not conclude the defendant from showing that. ss. 13
and 43 do apply. In support of that contention the case of Deo Kishen v.
Bansi (1) has been relied upon. As we understand that case, ib was there
held that some observations in an appeal from an order under s. 562 of the
' Second Appeal, No. 407 of 1891, from a decree of H. F. D. Pennington, Esq.,
District Judge of Ghazipur, dated the 4th March 1891, reversing a decree of Pandit
Bansidhar, Subordinate Judge of Ghazipur, dated the 30th July 1890.
(1) 8 A. 172,
15 A. 412=-
A VII 124
15 All. 415 INDIAN DECISIONS, NEW SERIES [Yol.
1893 Code of Civil Procedure were merely obiter. The observations related not
JULY 6. to conclusions of law but to findings of fact. We think that looked at
from that point of view that case was rightly decided. On an appeal
APPEL- from an order under s. 562 of the Code of Civil Procedure this Court must
LATE accept the findings of fact of the Courb which made the order, that
CIVIL. Court being a Court of first appeal ; and as it is bound to accept those
findings of fact as correct, if there is evidence to support them, it follows
15 A. 411= that any affirmance by this Court of such findings of fact would be merely
13 A.W.N. obiter. It is otherwise with regard to conclusions of law. Where this Court
(1893) 118, h as decided a question of law on an appeal from an order under s. 562
that decision of the question of law would be final for all purposes in the
suit and in any appeal which might come up to this Court subsequently
in the suit. Those grounds of appeal which depend on the application
of ss. 13 and 43 of Code of Civil Procedure fail. The only other point
is as to whether it was incumbent on the pre-emptor to observe the rules of
 the Muhammadan law of pre-emption. Pre-emption in this case
arose not by reason of the Muhammadan law, but by reason of the custom
or contract, embodied in the wajib-ul-arz, and consequently the wajib-
ul-arz is to be looked at and not the Muhammadau law on the point.
We dismiss the appeal with costs.
See SET-OFF, 13 A. 296.
Account stated Acknowledgment of debt -Limitation Act XV of 1877, sch. ii,
A'i. 64. The s&rikiog of a balance in an acoount, the items of -which ate
all on erne side, does not amount to an " account stated " in the proper
sanse of the term.
Hence tha signature of the debtor to such balance amounts to no more than
an acknowledgment of a debt ; and if the debt 13 barred at the time of
signature will not give rise to any fresh period of limitation in favour of
the orelitor. JAMUN v. NAND LAL, 15 A. l = 12A.W.N. (1892) 215 ... 715
(1) See ACCOUNT STATED, 15 A. i.
(2) See EVIDENCE, 15 A. 56.
See MORTGAGE (CONDITIONAL SALE), 13 A. 102.
1. Imperial Acts.
Act IX of 1859 (Forfeiture).
See FORFEITURE ACT, 1859.
Act XXXV of 1858 (Lunacy).
See LUNACy ACT,
Act I of 1868 (General Clauses).
See GENERAL GLAUSES ACT, 1863.
Act X of 1873 (Oaths).
See OATHS ACT.
Act XIX of 1873 (Agra Land Revenue).
(1) Sa. 3 (li. 107 See WAJIB-UL-ARZ, 15 A. 410.
(2) S. 113 See RES JUDICATA, 13 A. 309.
(3) 8s. 113, 1U See APPEAL, 14 A. 500.
(4) Ss. 146, 148, 150, 166, 173 3ee CO-SHARERS, 14 A. 273.
(5) 8s. 166, 168 and 188 See PRE-EMPTION, 13 A. 224.
(6) S. 241896 JURISDICTION OF CIVIL COURTS, 13 A. 17.
Act V of 1876 (Reformatory Schools).
See REFORMATORY SCHOOLS ACT, 1876.
Act I of 1877 (Specific Relief.)
See SPECIFIC RELIEF ACT, 1877.
Act I of 1878 (Opium).
See OPIUM ACT.
Act XI of 1878.
(1) S. 19 (c) " Going armed " Presumption as to parsons found carrying
arms. Where a person is found carrying arms apparently m contravention
of the provisions of the Arms Act, it must be presumed, in the absence of
proof to the contrary, that he is carrying such arms with the intention of
using them should an opportunity of using tham arise. QUEEN-EMPRESS
V. BHURE, 15 A. 27 = 12 A.W.N. (1892) 221 ... 732
(2) Ss, 19 (/) 25 Unlawful possession of arm* Search-warrant, contents of
'' Possession " what evidence necessary where arms found in common room
of joint family house. Where a Magistrate issues a search-warrant under
Act XI of 1878 (concluded). PAGE
8. 25 of the Indian Arms Act, 1878, it is necessary that he should record
the grounds of his belief that the person against whom the warrant is
issued has in his possession arms, ammunition or military stores for an
Where proceedings under the Indian Arms Act, 1878, in respect of the un-
lawful possession of arms are taken against a* member of a joint Hindu
family not being the head of such joint family and arms are found in a
common room of the joint family house, it is incumbent upon the prosecu-
tion to give good evidence that such arms are in the exclusive possession
and control of the particular member of the joint family who is sought to
be charged with their possession. QUEEN-EMPRESS v. SANGAM LAL, 15
A. 129 = 13 A.W.N. (1893) 48 ... 800
Act lof 1879 (Stamp).
See STAMP ACT, 1879.
Act XII of 1881 (Agra Rent).
(1) See LANDLORD AND TENANT, u A. 223.
(2) Ss. 7, 8, 9 See LANDLORD AND TENANT, 15 A. 219, 231.
(3) 8. 9 See LANDLORD AND TENANT, 15 A. 399.
(4) 8s. 9, 31 See RELINQUISHMENT, 13 A. 396.
(5) Ss. 10, 95 (a) See JURISDICTION OF CIVIL COURTS, 13 A. 17.
(6) S, 36 See LANDLORD AND TENANT, 15 A. 189.
(7) S. 56 See LANDLORD AND TENANT, 15 A. 375.
(8) 8. 93 (8) See CO-SHARERS, 15 A. 137.
(9) 8s. 93, 95, ols. (TO) and (ri> See LANDLORD AND TENANT, 15 A. 387 (F.B.)
(10) Ss. 93, 171 See CO-SHARERS, 14 A. 273.
(11) S. 95 See JURISDICTION OP CIVIL COURTS, 15 A. 115.
(12) S. 148 See LANDLORD AND TENANT, 13 A. 361.
(13) S. 177 Sae PRE-EMPTION, 13 A. 224.
(14) S. 189 See LANDLORD AND TENANT, 13 A. 193.
(15) S. 221 Civil Procedure Code, s. 521 ArbitrationAward delivered alter
expitation of time allowed by Court. The principle of the ruling of the
Privy Council in Raja Bar Narain Singh v. Chaudhrain BhagwaiKuir is
applicable also to arbitrations under s. 221 of Act No. XIX at 1873.
GAURI SHANKAR v. BABBAN LAL, 14 A. 347^12 A.W.N. (1892) 20 ... 590
Act IV of 1882 (Transfer of Property).
Sea TRANSFER OF PROPERTY ACT.
Act V of 1882 (Easement).
See EASEMENTS ACT.
Act XIV of 1886 (Agra Rent).
8. 5 See LANDLORD AND TENANT, 13 A. 193.
Act VII of 1887 (Suits Valuation).
See SUITS VALUATION ACT, 1887.
Act IX of 1887 (Provincial Small Cause Courts).
See STANDING CROPS, 14 A. 30.
Act XII of 1887 (Bengal Agra and Assam Civil Courts)
(1) See APPELLATE COURT, 13.A. 320,
(2) Ss. 23, 24 See APPEAL, 13 A. 78.
Act VI lof 1889 (Succession Certificate).
See SUCCESSION CERTIFICATE ACT, ss. 9 and 19, 13 A. 214.
Act VIII of 1890 (Guardian and Wards).
See GUARDIAN AND WARDS ACT, 1890.
Act VIII of 1891 (Easement extending).
See EASEMENT, 14 A. 185.
Act VI of 1892 (Limitation Act and C.P.C. Amendment). PAGE.
(1) 8. 3 See STAMP DUTY, 15 A. 117.
(2) B. 4 See LIMITATION ACT, ART. 179 (5), 15 A. 84.
Addition of parties.
See PARTIES TO SUITS, 14 A. 524.
Adjustment of suit.
(1) See Civ. PRO. CODE, S. 11, 14 A. 141.
(2) See CLAIM TO ATTACHED PROPERTY, 13 A. 339.
See LANDLORD AND TENANT, 15 A. 189.
See POSSESSOR? SUIT, 14 A. 193.
See MAHOMEDAN LAW MOSQUE, 13 A. 419,
(1) Appeal Pleadings Case set up in appeal ivhich was not that set up in the
Court of first'instance. The plaintiff came into Court on the allegation
that she was the owner of a certain house and that the defendants were
her tenants at a certain rent, and she sought to eject the defendants for
non-payment of rent. The Court of first instance having found her
allegations of tenancy to be untrue, she then in appeal endeavoured to
support a plea that ths defendants were trespassers, such plea having
formed no part of the original case. Held that the plaintiff could not
under the circumstances be heard in support of a new plea of which the