JUDGMENT

1. This is a plaintiffs' appeal arising out of a suit for declaration of title, and in the alternative for possession. The plaintiffs first filed an application in the Revenue Court in 1929 for a perfect partition of the mahal in which the property in dispute was situated. Some objection was raised on behalf of the defendants as to the plaintiffs' title. On 30th March 1931, the plaintiffs applied to the Revenue Court for permission presumably u/s 111, Land Revenue Act to institute a suit in the Civil Court for the adjudication of their title and prayed that the proceedings in the Revenue Court be stayed until the matter was determined by the Civil Court. On 1st April 1931, the present suit was instituted. The application of the plaintiffs remained pending in the Revenue Court for a long time and ultimately on 2nd March 1932, the Court ordered that the plaintiffs should be allowed to file a suit in the Civil Court within three months of the order. Obviously, the order purported to be u/s 111(b) of the Land Revenue Act particularly as the application was headed as one under that section. The defendants raised an objection in the trial Court that the claim was barred u/s 233(k) read with Section 111, Land Revenue Act. The first Court held that there was no bar to the suit and after deciding the various issues that arose in the case decreed the plaintiffs' claim for possession. On appeal the learned Judge has come to the conclusion that the suit was not maintainable. In support of this view he has relied on a ruling of this Court in Faqira v. Hardeva 1928 26 ALJ 217.

2. It seems to us that that ruling is certainly distinguishable. Section 233(k) prevents the institution of a suit in a. Civil Court with respect to partition or union of mahals except as provided in Sections 111 and 112. Where that partition has been perfected after a question of title in the Revenue Court has been decided adversely to a party or where it has been perfected when no such question had been raised by such party, the partition is complete and the matter cannot be re-agitated in a Civil Court. This is particularly so because a Revenue Court is entitled to allot property belonging to one co-sharer to another co-sharer for the purpose of adjusting their rival claims. But Section 233(k) cannot in itself apply to a case where there has yet been no partition or union of a mahal. The aid of Section 10. Civil P.C., would have to be invoked where a partition proceeding is still pending in the Revenue Court. It has been held in two cases, Nazir Ahmad v. Mahammad Sharif 1924 46 All 453 and Faqira v. Hardeva 1928 26 ALJ 217, that the bar applies to a case where the partition proceeding is still pending in a Revenue Court. But Section 10, Civil P.C., does not altogether oust the jurisdiction of the Civil Court to receive a plaint in a suit for declaration of title or possession of Immovable property, but only refers to the stay of the suit and prevents the Court from proceeding with the trial of such a suit while the same matter is pending in another Court of competent; jurisdiction. It would, therefore, seem to follow that while a question of title has been raised and is under consideration by the Revenue Court a suit to get relief in respect of the same matter would not be tried by a Civil Court but would be stayed until the matter has been disposed of by the Revenue Court.

3. The two learned Judges who decided the case of Faqira v. Hardeva 1928 26 ALJ 217 do not appear to have expressed exactly the same views on this point. Mukherji, J., laid emphasis on the view that where the Collector is authorised by the provision of Section 111, Land Revenue Act to decide the question of title himself, then to decide that question he would be the Court of competent jurisdiction before the suit for declaration was filed in the Revenue Court, and that, therefore, Section 10, Civil P.C., would come into play and the issue which arose for decision in either case should be t