JUDGMENT

1. Two persons Dirgaj Singh and Hanuman Singh in 1868 made a claim for sub-settlement of village Barwa. The talukdar denied the claimant's right to sub-settlement, but expressed his readiness to give a perpetual, i. e., hereditary, lease on double " parta."

2. The Assistant Settlement Officer decreed a hereditary lease on payment of a rent of Rs. 200 till the next settlement. A moiety of the rights obtained under this decree passed to Sheoratan. Singh, father of the plaintiff. Sheoratan Singh on 5th January 1914 executed a deed of gift in respect of the rights possessed by him in favour of the plaintiff. The talukdar some years later issued a notice of ejectment against the plaintiff which was eventually upheld by the Board of Revenue by their order dated 23rd April 1924. Soon after, on 22nd September 1924, the plaintiff executed a deed of relinquishment of her rights under the gift, in favour of her father. This was followed by the litigations, one a proceeding taken by the talukdar for correction of the village records and another a suit by Seoratan Singh and the plaintiff against the talukdar, under Section 108, Clause (10), Oudh Rent Act. Both these matters went up in appeal to the Board of Revenue. On 11th February 1930 the Board of Revenue dismissed the suit under Section 108, Clause (10), Oudh Rent Act, and allowed the application of the talukdar for correction of papers. Sheoratan appears to have died sometime during the pendency of these litigations. On 25th September 1930, Jugraj Kuar, daughter of Sheoratan instituted the suit which has given rise to the present appeal for possession of certain plots of land entered in list A of the plaint which were in the exclusive possession of Sheoratan Singh and for a declaration that she was an under-proprietor of the other plots appertaining to Sheoratan Singh's share which are detailed in lists B and C of the plaint. This suit was based both on her rights as a donee under the deed of gift dated 5th January 1914 and her rights as an heir of Sheoratan Singh. The plaintiff's counsel in the course of the trial, on 21nd March 1931, made a statement that the plaintiff did not sue as an heir of Sheoratan Singh and that she claimed only as the donee under the deed of gift. The trial Court held that the plaintiff had failed to substantiate her claim as an under-proprietor. In view of the statement made by the plaintiff's counsel just referred to he did not decide the question whether or not the plaintiff was excluded from succession by virtue of a family or tribal custom. As a result of his finding about the plaintiff not being an under-proprietor, he dismissed the suit. The plaintiff appealed tothe Court of the District Judge of Rae Bareli. The learned District Judge was of opinion that the statement made by the plaintiff's counsel on 2nd March 1931 was not binding on the plaintiff. He therefore passed an order remanding the case under Order 41, Rule 23, Civil P.C., for decision of the question whether the plaintiff was excluded from succession by virtue of a family or tribal custom. In the course of his judgment he remarked as follows:

It is true in the settlement proceedings it was expressly noted that the plaintiffs could not hope for qabiz darrniyani rights and that in the settlement khewat also it was entered that the decree-holders rights were na qabil intiqal, i.e., non-transferable, I am therefore prepared to concede that the learned Subordinate Judge was right in holding that the plaintiff could not acquire any valid title to the property under the gift deed executed in her favour by her father; but if the gift was invalid the property would continue to be the donor's title, till his death.

3. The present appeal by the defendant is directed against this order of remand passed by the learned District Judge. The only contention urged by Mr. Wasim the learned Counsel for the defendant-appellant is that the learned District Judge having in effect held that Sheoratan Sing