JUDGMENT

1. This appeal is directed against a decree of dismissal in a suit for declaration of title to Immovable property and for confirmation of possession. The plaintiff and the 2nd party defendants are the joint owners of an estate which is now in course of partition under the provisions of the Estates Partition Act of 1897. In the partition proceedings the first defendant put forward a claim that he was the tenant in respect of a particular parcel of land. The plaintiffs repudiated that position but their objection was overruled by the Revenue authorities. They thereupon commenced this action for declaration that the first defendant was not a tenant in respect of those lands and that he had, as a matter of fact, been set up fraudulently by the second party defendants. The Court of first instance went into the merits and made a decree in favour of the plaintiffs. Upon appeal two objections appear to have been urged on behalf of the defendants; namely, first, that the suit had not been properly constituted, because the son of one of the plaintiffs had not been joined as a party and, secondly, that the suit was barred under the provisions of Section 25 of the Bengal Estates Partition Act.

2. In respect of the first objection, the learned Judge held that it was well founded but that the suit ought not to be dismissed on that ground; he stated in fact that if the suit had not been open to any other objection, he would have remanded the case for re-trial. But in so far as the second objection was concerned, the learned Judge allowed it to prevail and dismissed the suit as not maintainable.

3. The plaintiffs have now appealed to this Court, and on their behalf the view taken by the learned Judge upon both these matters has been called in question. We are of opinion that his conclusion cannot be supported.

4. In so far as the question of defect of parties is concerned it is clear that this specific objection was not taken in the Court of first instance, One of the plaintiffs went into the witness-box and from his examination it transpired that he had a son who was jointly interested in the subject-matter of the litigation but had not been brought before the Court. It was thereupon open to the defendants to take exception to the frame of the suit. They did not do so, but allowed the suit to proceed as properly constituted. It was, therefore, not open to them at the appellate stage to take a technical objection of this character. It is further clear that it is needless to send back the case to the original Court for re-trial, as the father may well be deemed to represent all the members of the family. In any event, it is open to the Court to decide the questions in controversy under Rule 9 of Order I of the CPC of 1908, in so far as the parties before the Court are concerned.

5. With regard to the second point, it has been contended on behalf of the appellants, that the suit is not barred under the provisions of Section 25 of the Estates Partition Act of 1897. This argument has not been seriously controverted on behalf of the respondent and, in our opinion, there is no answer to the contention of the appellant. Section 25 provides that no suit, instituted in a Civil Court after the lapse of four months after the Collector has made a direction under Clause (a) or Clause (b) of Section 23, or recorded a proceeding u/s 29 by any person claiming right or title in or to a parent estate shall avail to affect or stay the progress of any proceedings which may have been taken under the Act for the partition of the estate. This Section obviously has no application to the case before us. In the first place, the defendant does not claim any right or title in or to the parent estate. He claims the status of a tenant under the proprietors in respect of a specific parcel of land. In the second place, the Section does not say that a suit of this description does not lie; it merely provides that a suit instituted after four months does not affect or sta