Additional Judge of Ghazipur, dated the 3rd January 1890, confirming a decree of
Munshi Lalta Prasad, Subordinate Judge of Ghazipur, dated the 3rd May 1889.
13 A. 303 =
13 All. 307
INDIAN DECISIONS, NEW SERIES
1891  1890, by which he dismissed the plaintiff's appeal to his Court on
JAN. 30. the ground that it was not presented within the limitation period. The
following are the dates material for consideration. The plaintiff- appellant
APPEL- brought a suit in the Court of the Subordinate Judge of Ghazipur which
LATE was dismissed on the 3rd May 1889. The plaintiff-appellant then pre-
OlVIL. sented a petition under s. 592 of the Code of Civil Procedure for leave to
appeal as a pauper, and that petition was accompanied by a memorandum
13 A. 303= of appeal as required by law. The Judge, acting in the matter as required by
11 A.W.N. the second paragraph of s. 592, perused the judgment and decree of the first
(189!) 99, Court, and, being of opinion that they were not open to objection as being
" contrary to law or some usage having the force of law" or as being " other-
wise erroneous or unjust," on the 27th May 1889, rejected the petition.
The plaintiff-appellant still had time up to the 13th June, within which
to file an appeal on a properly stamped memorandum, but he did not do so ;
on the contrary he applied to the Judge for review of his order of refusal
on the 31st May, and on the 13fch June that application was also refused.
On the 22nd June 1889, the plaintiff-appellant then came to this Court
with an application for revision of the Judge's order under s. 622 of the
Code of Civil Procedure, and that application was refused by this Court on
the 16th August 1889. The plaintiff-appellant then went back to the
Court of the Judge of Ghazipur, and, on the 25th August, asked permis-
sion, while abandoning a portion of his claim, to be allowed to confine his
appeal to so much of the property as would be represented by payment of
the court-fee of 10 rupees. On the 17th September, this prayer of the
plaintiff was granted and on the 19oh September, the memorandum of
appeal was filed and registered. It was in reference to these facts that
when the appeal came to hearing on the 3rd January 1890, the Judge
who had to deal with it came to the conclusion that it was not presented
within the period of time allowed by law, and it could not be regarded as
an appeal until the 19th September 1889, when it was filed and registered.
The contention which has been raised before us by Mr. Gobind Prasad on be-
half of the plaintiff-appellant is that although the petition of appeal in
forma pauperis,  dated the 22nd May 1889, was rejected on the 27th
May, nevertheless there was already on the file of the Judge's Court a me-
morandum of appeal in respect of which that Court was competent to make
orders granting time for supplying the deficiency in stamp, and that when
the deficiency in stamp pro tanto was made good on the 28th August 1889, by
the payment of 10 rupees, that payment acted retrospectively so as to make
the memorandum of appeal a good memorandum of appeal from the very
date on which it was presented along with the application in forma pauperis.
The learned pleader has laid much stress on the case of Stuart Skinner v.
William Orde (l). That case has reference to Act VIII of 1859, as ss. 308
and 310, though I am not aware that in the present Code of Civil Procedure
the provisions relating to pauper suits are materially different to those of
the former Act, and, if we were dealing en the present Code with the same
facts as appear in that case, we should probably have to hold ourselves
governed by the ruling of their Lordships of the Privy Council. The case
before us, however, is distinguishable. In the first place, we have to deal
with a memorandum of appeal, and in the next place, we have to deal with
a memorandum of appeal which accompanied an application to appeal in
forma pauperis which was refused. I am of opinion that when the peti-
tion to appeal in forma pauperis was disallowed on the 27th May, the whole
(i) a A. 241,
YII] NASBAT-ULLAH V. MUJIB-ULLAH 13 All. 310
of that proceeding cama to an end and that along with it fell the so-callad 1891
memorandum of appeal which accompanied it. I do not think that a JAN. 30.
piece of unstamped paper which only accompanied a petition to appeal
in forma pauperis could ba called a memorandum of appeal. It was never APPEL-
a memorandum of appeal in the proper sense of the term which the Judge LATE
of the appellate Court could take cognizance of or make any order QlVIL.
upon. Consequently, whatever directions were given by the Judge,
either in his order of rejection of the 27ch May, or of his refusal to 13 A. 303 =
review his judgment on the 13th June, were ultra vires. Mr. J1 A.W.N.
Gobmd Prasad has urged that the provisions of s. 54 of the Code (1891) 99.
are applicable in the Courts of first appeal below. Conceding that
it is so for sake of argument, he has not satisfied me that the
 words " insufficient stamp " in paragraph 2 of s. 54 refer to or
include a wholly unstamped paper. If this view were correct a litigant
on the last day of limitation with what purported to be a plaint; or
memorandum of appeal written on a plain paper might come to a Court
and insist on the Court receiving it for the purpose of making an order
under s. 54, and thereby obtained an extension of the period of limitation.
I think whenever insufficient stamps are used the Court may consider
the memorandum of appeal under s. 54 ; but in this case the paper had no
stamp, therefore it was not a memorandum of appeal and never became
a memorandum of appeal until, at the earliest, the 26th August 1889,
when Es. 10 was paid into Court, though probably, strictly speaking, not
till the 19th September, when it was filed and registered. Consequently
as there was no memorandum of appeal, we hold that the orders of the
Judge of the 27th May and 13th June, were of no effect and that the filing
and registration of the 19th September, was long beyond the period
of limitation. The appeal is dismissed with costs.
13 A. 309 = 11 A.W.N. (1891) 117
Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Knox.
NASBAT-ULLAH (Plaintiff) v. MUJIB-ULLAH AND OTHEBS (Defendants.)*
[3rd February, 1891.]
Act XIX of 1873 (N.W.P. Land Revenue Act}, s. 113 Civil Procedure Code, s. 13
Question of title arising on an application far partition before. a Revenue Court, how
to be determined Suit for declaration of right tj partition Res judioata.
Where a decree declaring a right to partition has not been given effect to by
the parties proceeding to partition in accordance with it, and the decree has
became, by lapse of time or otherwise, unenforoible, it is competent to the parties,
or any of them, if they still continue to be interested in the joint property, to
bring a fresh suit for a declaration of their right to partition. Such a suit will
not be hatred by reason of the former decree for partition, though that decree
may operate as res judi:ata in respect of any claim or defence which was, or might
have been, raised in the suit in which it was passed.
If a Revenue Court in disposing of an application for partition determines a
question of title, it must, in so doing, act in conformity with the provisions of
 s.. 113 of Act XIX of 1873. If it disposes of the application otherwise than
in the manner contemplated by s. 113, gits proceedings are ultra vires and will
First Appeal No. 27 of 1889 from a decree cf Babu Brijpal Dae, Subordinate
-Judge of Gorakbpur. dated the 28th February, 1888.
13 All. 311
INDIAN DECISIONS, NEW SERIES
181. 309 =
not debar the parties from suing in a Civil Court; for a declaration oE their right
[Overruled, 20 A. 75 (76) = 17 A.W.N 197; 23 A. 291 ; F., 28 A. 627 = A,W.N. (1906)
142 = 3 A.L.J. 379, 10 C.W.N. 839 , Rel., 17 fad. Caa. 955 (956) = U Bom, L.R.
1198; R., 17 C.W.N. 521 (523) = 16Ind. Gas. 383; D., 3 Bom. L.R. 94.]
THE facts of this oasa are briefly as follows : One Kadir Biksh, the
common ancestor of the parties," was the owner of the property in dispute
cosisting of twenty-seven villages. He died leaving a will by which he
divided his whole estate into five equal shares. Acoording to the plaintiff
the villages were divided by private arrangement with the exception of
four, namely, Qaneshpur, Rekaa, Mahaieva and Aspur, which remained
joint. In 1860 Miran Baksh, the father of the plaintiff, obtained a decree
for partition to the effect that any inequality in the shares held by the
various members of the family should be made up from the four villages
above-mentioned, and the residue should be divided into five equal shares.
It appears that that decree was never acted upon. In 187J another order
for partition was obtained by one of the share-holders, bub that too seems
to have remained inoperative. In 1883, the present plaintiff and others
applied for the partitioning of Ganeahpur, and another share-holder,
Musammat Hamira Bibi, for the partitioning of Rakua. Both these
villages were divided, the partitioning of Gineshpur being effected
subsequently to the institution of the present suit. In 1887 the plaintiff
brought the present suit alleging that his share was deficient by 300 bighaa
and praying that the deficiency mighc be made up out of the villages
Ganeshpur, Aspur and Mahadeva, and that after the cancellation of
the order for the partition of Rekua all four villages might be divided into
five equal shares, or that the whole estate might be divided into five equal
shares and one-fifth of it allotted to him. The Court of first instance dis-
missed the plaintiff's claim on three grounds: (1) that as to the partition
of Ganeshpur and Rekua the Court was not competent to interfere with
the proceedings of the Revenue Court ; (2) that the claim of the plaintiff
was res judicata : and (3) that the suit was barred by limitation. The
plaintiff then appealed to the High Court.
Mr. G. H. Hill and Pandit Sundar Lai, for the appellant.
Mr. D. Banerji and Maulvi Mehdi Hasan, for the respondents.
 EDGE, C. J., and KNOX, J. The appellant here was the
plaintiff below. All the defendants below were respondents here. The
group of the defendants below No. 2 are represented here by Mr. Banerji
and Mr. Mehdi Hasan. The other defendants-respondents have not
appeared here and have not been represented. The suit was brought to
obtain a declaration of the plaintiff's right to partition. His father had,
in 1860, obtained a decree for partition against the persons whose repre-
sentatives the defendants to this suit are. According to the plaint, that
decree for partition of 1860 was never carried into effect, and no partition
took place. Whether than is true or not we need not now decide. The
plaint further alleges that the defendant grouped as No. 2 conspired to
prevent the plaintiff getting his full share, and, having colluded together
obtained an order for the partition of mauza Rekua in a manner contrary
to his rights. The plaint also alleges, amongst other things, that the
defendants caused the patwaris in the villages to record separate possession
in respect of the joint villages. Some of the defendants admitted in their
written statements the plaintiff's right to the partition, others disputed it.
VII] NASRAT-ULLAH V. MUJIB-ULLAH 13 All. 313
The defendants grouped as No. 2 alleged that the claim was bad under 1891
s. 42 of the Specific Relief Act, and waa barred by s. 13 of the Code of FEB. 3.
Civil Procedure. They alleged that in 1841, that is, long prior to the decree
of 1860, the whole ilaka was privately partitioned. They further alleged, APPEL-
in paragraph 4, that their ancestor in his lifetime and they were in pro- LATE
prietary and exclusive possession. There are other allegations which it CIVIL.
is not necessary to allude' to now. The Subordinate Judge tried this case. '
He dismissed the plaintiff's claim on two main grounds. The first main 13 A. 309
ground being that s. 13 of the Code of Civil Procedure applied, the other 11 A.W.N,
main ground being limitation. He also apparently held that a partition (1891) 117.
which was made by the Revenue Court could not be interfered with by
a Civil Court. To deal with the last point first. A question of title
was raised by the plaintiff in a partition proceeding before a Revenue
Officer. That Revenue Officer had two courses open to him. Under
s. 113 of Act XIX of 1873, he could have refused to proceed with the
partition until the question of title and properietary right which was
 in dispute between the parties had been decided by a competent;
Court, or he could have proceeded to enquire into the merits of the objec-
tion as to title. In the latter case he was bound himself to make the
necessary inquiry, to take such evidence as might be produced, and to
record a proceeding declaring the nature and extent of the interest of the
parties applying for the partition and of any other party or parties that
might be affected thereby. The procedure he was bound to follow in the
latter case was the procedure laid down in the Code of Civil Procedure
for the trial of original suits. He might, with the consent of the parties,
refer any question arising in such a case to arbitration. If he had proceed-
ed to inquire into the merits of the objection in accordance with s. 113, his
decision, when given, would, under s. 114, have been a decision of a Court
of civil jurisdiction and [would be open to appeal to the District Court -
or the High Court, as the case might be. Now the Collector adopted
neither of those courses. Ha made some inquiry from the Settlement
Department, and on the result of that inquiry, whether conducted
by him or not we do not know, he came to the conclusion that the
village he was dealing with, namely, Ganeshpur, was one of imperfect
pattidari-tenure and he proceeded to partition the village on that basis.
We need not inquire at present whether the village was in fact one of im-
perfect pattidari-tenure or not. That is a question yet to be decided in
this suit. The plaintiff alleged that the village was one of pure zamindari-
tenure. Coming to the conclusion at which he arrived, the Collector
really was deciding a question of title. Mr. Boner ji has contended that
the Civil Court has no power to interfere in a case of a partition. The
Civil Court is a Court of competent jurisdiction to decide questions of
title. The Collector or Assistant Collector is not a Court of competent
jurisdiction to decide questions of title unless he proceeds in the manner
specified in s. 113 of the Land Revenue Act. In the case of Muhammad
Abdul Karim v. Muhammad Shadi Khan (1) the question of the jurisdiction
of the Collector in such matters was considered. The decision of the Collec-
tor under the  above circumstances cannot disentitle the plaintiff to
have his legal right declared in the Civil Court. The course adopted by the
Collector precluded the plaintiff from questioning his decision by appeal to
the District Judge or to this Court. That remedy not having been open
to the plaintiff, he is entitled, under the circumstances, to maintain this
(1) 9 A. 429.
13 All. 314
INDIAN DECISIONS, NEW SERIES
13 A. 809 =
suit and have his legal right declared. The next question is aa to whether
s. 13 of the Code of Civil Procedure applies in this case. Undoubtedly,
the decree of 1860 operates as res judicata to any claim or defence that
was set up, or should have been set up, at that date, as for instance, the
allegation in the third paragraph of the written statement of the group of
defendants No. 2, namely, " In 1248 Fasli the whole of the ilaka was
divided privately by the ancestors of the parties and from the date of the
partition each party has held proprietary possession of the entire divided vil-
lages Ganeshpur, Rekua and Aspur without the inteference of any other."
That defence is not now open to the defendants. If that were a true state-
ment of fact, it would, in the suit of 1860, have afforded grounds of defence.
Whether it were then made or not is immaterial. To put ib more plainly,
the decree of 1860 settled the rights of the parties as they were at that
date and cannot now be questioned. But that decree cannot operate as
res judicata on any question arising as to rights of the parties acquired
since that date. As for instance, the defendants would be entitled to
show that since that date they had obtained adverse possession, or that
there vfas a partition in which no question of title was raised or other
similar defences. It appears to us that when a decree declaring a right
to partition has not been given effect to by the parties proceeding
to partition in accordance with it, it is competent for the parties or
any of them, if they still continue to be interested in the joint property,
to bring another suit for a declaration of a right to a partition in case their
right to partition is called in question at a time when, by reason of limi-
tation or otherwise, they cannot put into effect the decree first obtained.
In this respect, suits for declaration of right to partition differ from
most other suits. So long as the property is jointly held so long
does a right to partition continue. When a person having a right
 to partition and desiring to partition has his right challenged, it
appears to us- be can maintain a suit for a declaration, provided his prior
decree is not still enforceable. In the partition suit questions have arisen
which could not have been determined in the suit which ended in the
decree of 1860. The Subordinate Judge relied on certain decisions to which
he refers in his judgment. On the question of res judiaata it appears to
us those authorities either do not apply or do not support the view which
he adopted. The first of those in order of date is Kishen Singh v. Dzbeer
Singh (I). All that case decided was that a partition in the Revenue
Court could not be enforced on a decree which by reason of lapse of time
bad become inoperative. The next case is Doobee Singh v. Jowkee Bam (2).
That case to some extent supports the contention of the plaintiff here.
There the Court decided that, notwithstanding that the plaintiffs
had obtained a prior decree for possession, they would be entitled to
maintain a suit for parbition and separate possession, if since the
date of the first decree they had been in possession of the undivided
half share by that decree decreed to them. The next case was Yaqoob
Ali v. Khajeh Ubdoolrahman (3). That case the Subordinate Judge
has misunderstood. It has no application. The same observation may be
made as to the fourth case relied on by him, namely, the case of
Sheikh Golam Hoosein v. Musumat Alia Rukhee Beebee (4). In the Course of
argument we have been referred to the case of Jagat Singh v. Dnrjan Lai (5)
which has some bearing on the questions dealt with by the Subordinate
(1) N.W.P H.O R. 1867, p, 272.
(3) N.W.P.H O.K. 1868, p. 393.
(5) 4 A.W.N. 1894, 2.
(2) N W.P.H.C.R. 1868, p.
(4) N.W.P.H. C.R. 1871, p.
YII] NAMDAB CHAUDHRl V. KARAM BAJI 13 All, 3l6
Judge. We have no doubt thab if the plaintiff had drawn big plaint alleging 1891
the decree of 1860, and showing how he andsthe defendants were bound FEB. 3
by it, that is, that they were representatives of the parties to it, and alleg-
ing that the state of things of 1860 continued up to the present, and alleging APPEL-
that the defendants or some of them resisted his right of partition, and asked LATE
for a declaration of his right to partition, that would be a claim to which QlVIL
even this Subordinate Judge would not have applied s. 13 of the Code
 of Civil Procedure. The present claim is in effect such a claim as 13 A. 309 =
I have referred to, although not so in form. The last point we need refer 11 A.W.N.
to is that of limitation. The Subordinate Judge held that this suit was (1891) 117
barred by limitation, because the defendants in the suit of 1860 had denied
the plaintiff's right of partition and set up an adverse possession. He
overlooked the fact that those issues were decided by the decree in that
suit adversely to the defendants there. The question of limitation does
not arise on the point suggested by the Subordinate Judge. It may be that
some question of limitation arises from circumstances subsequent to 1860
and may have to be decided in this suit. We have not got the materials
before us to express any opinion aa to whether a question of limitation
does arise. The Subordinate Judge iu truth did cot try the rest of the
case, but he disposed of it on those preliminary points to which we have
referred. That being so, we set aside his decree, and, under s. 562 of the
Code of Civil Procedure, remand -the case for trial on the merits and on
such points of law as really arise. The costs here and hitherto will abide
13 A. 313 = 11 A.W.N. (1891) 90.
Before Mr. Justice Straight and Mr. Justice Tyrrell.
NAMDAR CHAUDHRI (Plaintiff) v. KARAM EAJI AND OTHERS.
(Defendants)* [5th February, 1891.]
Mortgage Prior and puisne incumbrancersPuit-ne incumbrancer not made a party to
suit upon prior incumbrance His right to redeem not thenby affected.
If a prior imoumbrancer, having notice of a puisne incumbrance, does not
when he puts his mortgage into suit, join the puisne inoumbranrer as a party,
that puisne incumbranoer'a right to redeem will not thereby be affaoted.
Mohan Manor v. Togu Uka (1) ; Muhammad Sami~ud-din v. Man Singh (2) ;
and Qajadhir v. Mul Chand (3) referred to.
[R., 17 A. 537; 20 B 390; 14 C.L.J. 530 (534); (1911)1 M.W.N. 165 (173) = 21
M.L.J. 213 = 9 M.L.T. 431 = 9 Ind. Gas. 513 <519) ; 12 Ind. Cas. 155 (157);
1 0. G. 53; P., 132 P.W.R. 1908 = 64 P.R. 1908.]
THE facts of this case are fully stated in the judgment of Straight, J.
 Pandit Sundar Lai and Maulvi Ghulam Mujtaba, for the
Munshi Jivala Prasad and Munshi Kashi Prasad, for the respond-
* First Appeal No. 200 of 1889 from a decree of Maulvi Ahmed Hasan, Subordi-
nate Judge of Gorakhpur, dated the 8th July 1S89.
(1) 10 B. 224. (2) 9 A. 125. (3) 10 A. 520.
13 All, 317
INDIAN DECISIONS, NEW SERIES
13 A, 315 =
STRAIGHT. J. This is a suit for possession brought under the follow-
ing circumstances : On the 9th July 1873, one Bhaiya Agar Singh exe-
cuted a simple mortgage in favour of two persons named Beni Madho and
Achambit Singh, for a sum of Eg. 22,000. Interests in 19 villages belong-
ing to the mortgagor were charged, and among them were 6 as. 4 p. of a
village called Sirsia. This mortgage may conveniently be termed mortgage
No. I. On the 5th August 1874, the same mortgagor and others made
a usufructuary mortgage of their property, including the whole of Sirsia,
for a sum of Es. 4,500 in favour of Pir Ghulam and Jurai ; and there
seems to be no doubt or question that those mortgagees obtained posses-
sion under their mortgage. To this latter mortgage, by a further advance
about October 1874, a charge was tacked on, on the 9th October 1874.
This may be conveniently called mortgage No. II.
With regard to mortgage No. 1, of which, as I have stated, Beni
Madho and Achambit Singh were the mortgagees, it appears that the
proportions of the mortgage-money advanced were divided between them
to the extent of two-thirds to Beni Madho and one-third to Achambit
Singh. Some time prior to March 1880, the mortgagee, Achambit Singh,
and his mortgagors came to a settlement to the extent of one-third of the
mortgaged property, and to that extent the mortgage was apparently
discharged and satisfied. Subsequently, on the 15th March 1880, Beni
Madho put the remaining interest under the mortgage in suit, and obtained
a decree against the mortgagor for Es. 14,875. On the 24th December
1883, Beni Madho transferred his interests as decree-holder to two persons
of the name of Sharif and Dular, who as assignees thereof took steps in
execution, and in those execution-proceedings they came to an arrangement
with their judgment debtor, mortgagor, to purchase the 6 annas 4 pies of the