JUDGMENT

1. This is an appeal on behalf of defendants 1 and 2 against the judgment and decree of the learned Subordinate Judge, (now Civil Judge) of Gonda dated 16th October 1935, upholding the decree of the learned Munsif of the same place dated 27th July 1935. The plaintiffs brought the suit for a declaration that defendants 1 and 2 have no share in the under-propertary khata in suit and that they are not bound by the decree for profits in the 2 annas 8 pies share passed in favour of defendants 1 and 2. In order to appreciate the facts of the case it is necessary to give the following pedigree which has not been disputed before us:

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2. Ramnidh who belonged to the line of Nihal and representing the branches of Sewak Ram, Nihal and Bechu, obtained an under-proprietary decree in the first regular settlement of 1874 in respect of an area of 129 Bighas 9 Biswas in village Birpur Bhoj, (vide Ex. 27). In the year 1875 he applied for a division of the area into thoks, (vide Ex. 5), and five different thoks were formed as representing different branches of the common ancestor. The fard hissa kashi (Ex. 3) shows that the area was divided as follows:

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3. The khetauni was prepared on the above basis. It is thus clear that Ramnidh, Ganga and Salik, the predecessors of defendants 1 and 2, got a 2 annas 8 pies share, that is one-sixth of 129 bighas, 9 biswas. It appears that between the first and second settlement the family somehow lost 27 bighas and 2 biswas leaving an area of 102 bighas and 7 biswas only.

4. In 1890 the superior proprietor of the village, namely the Ajudhia estate, brought a suit for ejectment against Ramnidh, Ganga and Salik for arrears of rent in respect of an area of 24 bighas and 17 biswas and obtained a decree, (vide Ex. 7), but; it appears that the names of these persons continued to remain in the khewat as holders of 2 annas and 8 pies share. Defendants 1 and 2 filed a suit for profits of the above share in the Revenue Court against the plaintiffs and defendants 3 to 10. The suit was dismissed, but it was decreed by the Appellate Court, and that decree was upheld by the Chief Court on 6th February 1935. The plaintiffs, who represent the branches of Sewak and Bechu, brothers of Nihal, who was the father of Gurdin, brought the present suit for a declaration that defendants 1 and 2 had no share in the khata in suit and that they were not entitled to claim profits from the plaintiffs. The plaintiffs' contention was that as the predecessors of defendants 1 and 2 had been ejected by the superior proprietor from their 2 annas 8 pies share, they lost all the right they had in the under-proprietary khata. The defendants 1 and 2 represent the line of Gurdin and his brother Sahai who died issueless. Sahai's name is not given in the pedigree filed with the plaint, but it is to be found in the pedigree filed at the settlement, (vide Ex. 6). They denied the plaintiffs' claim and alleged that the superior proprietor had sued their predecessors Ramnidh and others for ejectment in the representative capacity of all the under-proprietors and thus the area of land in possession of all the co-sharers was reduced, that defendants 1 and 2 and their predecessors had all along been in possession of the 2 annas 8 pies share and that they had been receiving profits from other co-sharers, that the suit for declaration without possession was not maintainable and that the claim was barred by limitation. The remaining defendants supported the plaintiffs' claim. The learned Munsif framed the following issues:

1. Have defendants 1 and 2 got no share in the plots in suit, as alleged by the plaintiffs ?

2. Is the present suit for declaration not maintainable ?

3. Is the present suit barred by time as alleged in para. 17 of the written statement ?

5. The learned Munsif after discussing the oral and the voluminous documentary evidence came to the finding that defendants 1 and 2 held no share in the khatain suit. He further on issue 2 held th