JUDGMENT
Ross, J.
1. This is an appeal by the defendants against the decree of the Additional District Judge of Shahabad, upholding a decision of the Additional Subordinate Judge in a suit brought by the plaintiff for partition of 46 bighas of land situated in Mauza Jaisri, known as Erazi Line. It is unnesessary to go into the earlier history of this land and it is sufficient to say that in the year 1860, the village was permanently settled by the Government, the area being 88 bighas 15 kathas and 9 dhurs. In 1874 the predecessors of the plaintiff brought a suit for possession of 9 bighas of this land and in 1875 a suit relating to 12 bighas, both of which were dismissed. In 1911 there was a partition by the Collector in which it was held that 46 bighas of land were rent free property, and partition was given of 42 bighas only, the remainder being declared not liable to partition under Section 82 of the Estates Partition Act. In 1913 the Record of Rights was finally published and showed the land in suit as the muafi land of the defendants. The findings of the Courts below are that the land is not Muafi but is liable to partition, and a preliminary decree for partition has been made.
2. Four grounds are taken in second appeal. It is contended that the suit is barred in the first place by Section 119 of the Estates Partition Act, in the second place by Article 14 of the Limitation Act, in the third place by the principle of res judicata and in the fourth place by general limitation.
3. Section 119 provides that no order made under Chapter IX shall be liable to be set aside by a suit. It is convended that the order passed by the Commissioner of Revenue in the partition case being an order under Section 82, it cannot be made the subject of a Civil suit and the essence of the present suit being to vacate that order, the suit is not maintainable. In my opinion there is no substance in this contention. The Commissioner found that the land in suit was rent-free. He had, therefore, no alternative but to pass an order under Section 82, leaving the land joint among the proprietors; but that is no bar to the partition of the land by the Civil Court, The lands are held in joint ownership by the parties and are, therefore, liable to partition at the suit of one of the joint owners; the revenue is in no way affected by this partition nor does the decision in any way touch the decision of the Revenue Courts. The only effect of the decision of the Commissioner is that the lands cannot be partitioned under the Estates Partition Act. The plaintiff did not seek for’ a partition under the Act but for a partition by the Civil Court under the general law, I can see nothing in the Collectorate partition to bar this suit. It follows that Article 14 of the Limitation Act has no application. The plea based on the principle of res judicata must also fail, because, apart from the fact that parties were not suing in 1874 and 1875 in the capacity of proprietors but in the capacity of mustajirs, the defendants, who rely upon this plea, do not produce the judgments and the decree upon which the plea must rest. It is, therefore, impossible to hold that the doctrine of res judicata has any application. An to general limitation the finding that the land is the joint property of the parties is a sufficient answer to this contention. In such a state of facts there can be no limitation.
4. I would therefore, dismiss the appeal with costs.
Jwala Prasad, ACG. C.J.
5. I agree.