The revenue Courts do not have jurisdiction to recover arrears of land revenue from the heirs of a defaulter.

1. This is a Plaintiffs' appeal from the dismissal of their suit for possession of mouza Piparia.

2. It is an admitted fact that the aforesaid village belonged to one Abdul Jabbar, the father of the Appellant No. 2 and Defendant No. 4 and the grandfather of Appellant No. 1. It is no longer disputed before us that during the lifetime of Abdul Jabbar he became liable under a surety bond to pay certain bazar dues to the Respondents 1 and 2. The primary liability for these dues was on Abdul Baki Khan arid one Abdul Razak Khan who had taken contracts from the Respondents 1 and 2 In addition to the surety bond, Abdul Jabbar had mortgaged the village in suit under deeds dated 5-4-1935 an 16-10-1937.

3. Abdul Jabbar died on or about the 10th November 1937. After his death the village was sold to recover these dues on 20-12-1941 for Rs. 2000/- and purchased by the Respondent No. 3. Objections to the sale were made under Section 146 of the C.P. Land Revenue Act by the Appellants and the Respondent No. 4 but they were dismissed and the sale was Confirmed on 24-6-1942. Thereafter possession was delivered to the Respondent No. 3 on 19-10-1942.

4. According to the Appellants, Abdul Jabbar had executed a will whereunder the entire village was bequeathed in their favour and that their names were mutated in the year 1937. They contended that the will was expressly assented to by the Respondent No. 4. They admitted that Abdul Jabbar had left three daughters but, according to them, women were excluded by family custom from inheriting to a male owner and consequently their consent to the will was not necessary. Alternatively, they said that their consent should be implied from their conduct in not opposing the mutation of the village in the Appellants favour in the year 1937.

5. The Appellants contended that Section 53-A of the C.P. Local Self-Government Act, 1920 did not enable the revenue Courts to realise money from a surety though it enabled these Courts to realise money from a contractor himself. Therefore, according to them, the revenue Courts acted beyond their powers in proceeding against the village in question under Section 128(g) of the Land Revenue Act, and that consequently the, sale conferred no title on the purchaser, Respondent No. 3. Additionally they contended that even if the sale was invalid (valid?) the revenue proceedings did not bind them because they were taken only against the Respondent No. 4, who had no interest in the property, and had not been taken against them.

6. The Respondents denied the will as well as the custom alleged by the Appellants with regard to the exclusion of females from succession. They also denied that the will was assented to even by implication by the daughters. According to them the revenue officers were acting under the previsions of Section 225A of the Land Revenue Act and were therefore competent to recover the amounts in question from the surety, Abdul Jabbar.

They further alleged that the Appellants and the Respondent No. 4 having taken part in the revenue proceedings and preferred an appeal against the order confirming the sale must be deemed to have submitted to the jurisdiction of the revenue Court and could not any longer challenge that sale, and that they were therefore not entitled to ask for possession without having the sale set aside. They contend that by virtue of Section 149 of the Land Revenue Act the sale cannot be set aside by or called in question on any ground in the civil Court. Thus according to them the suit must be dismissed.

7. In so far as the question of custom is concerned, the pleading of the Appellants is to the effect that there was a family custom only whereas the evidence which has been led is to the effect that the aforesaid custom prevails amongst the. Muslim families who have resided in Seoni tahsil for centuries. The decision on which they have placed reliance Birdichand v. Noor Mohammad, 1933 AIR(Nag) 16 also relates to the custom prevailing in that tract.