JUDGMENT

Niamatullah and Rachhpal Singh, JJ. - The order in this case (First Appeal from Order No. 137 of 1932) will also govern and dispose of Civil Revisions Nos. 499, 500, 501, and 504 of 1932 of this Court.

2. In order to understand these cases it is necessary to state a few facts. One Shaukat Ali left four sons, Abdul Hafiz, Abdul Jalil, Abdul Shakur, Abdul Jamil and one daughter Mst. Homera Bibi. He owned shares in several villages in Shahjahanpur and Pilibhit districts. Abdul Jamil, one of the sons of Shaukat Ali, died on 17th March, 1927, leaving his widow Mst. Hisina Begam, one son and five daughters After the death of Abdul Jamil, his three brothers and sister instituted four suits for profits in Rent Court against his heirs (Mst. Hasina Begam and Ors.). Two of these suits related to villages in which Abdul Jamil was a lambardar and they were institutes u/s 226 of the Agra Tenancy Act, while the other two related to villages in which he was only a co-sharer and they were instituted u/s 227 of the aforesaid Act. One of the pleas taken in defence by the heirs of Abdul Jamil was that there was a settlement between the sons and daughter of Shaukat Ali to the effect that the income of the entire property in both the districts should be handed over to Abdul Hafiz irrespective of the fact whether one or the other of the brothers should be the lambardar in respect of any particular property and that Abdul Hafiz should pay Rs. 45 and grain monthly to each of his brothers and Rs 20 monthly and grain to his sister out of the income. In view of this settlement it was contended by the heirs of Abdul Jamil that the suits were not cognizable by the Rent Court. The trial Court did not accept this plea and all the four suits were decreed in part for the amounts found due. Against these decrees the heirs of Abdul Jamil preferred appeals to the District Judge Before the learned District Judge both parties admitted the existence of the above-mentioned settlement with the result that he held that the suits were not within the jurisdiction of the Rent Court and he therefore directed that the plaints be returned to the Plaintiffs for presentation to the Court having jurisdiction. The Plaintiffs have preferred these four revision applications against the order passed by the learned District Judge in the four appeals.

3. Theheirrof Abdul Jamil (Hasina Begam and Ors.) had also instituted a suit for profits against his brothers and sister in respect of certain other villages. It was one u/s 226 of the Agra Tenancy Act and for profits for the period subsequent to the date of the death of Abdul Jamil. The defence of Abdul Hafiz, who was sued in his capacity of a lambardar, was that the profits should be calculated with reference to realizations and that on taking account it would be found that nothing was due. For reasons best known to them, Abdul Hafiz and others did not take in this case the plea that on account of the above-mentioned agreement the suit did not lie in the Kent Court. The suit was decreed in part. The heirs of Abdul Jamil preferred an appeal against this decision claiming that the suit should have been decreed in full. This appeal was heard by the learned District Judge along with the above-mentioned four appeals by Abdul Hafiz and Ors. and he held that because of the above-mentioned agreement this suit was also not cognizable by the Rent Court. Accordingly he returned the plaint for presentation to the proper Court. The heirs of Hasina Begam have preferred this appeal as an appeal from order but it has been treated by us as a second appeal.

4. We propose to deal with the second appeal of Mst. Hasina Begam first. The contention raised by the Learned Counsel for the Appellants is that the lower appellate Court was wrong in treating the Appellant's suit as connected with the other suits filed by the opposite-party and in returning the plaint since no plea about the want of jurisdiction had been taken by the Defendants in the case. It