JUDGMENT
Ross, J.
1. This is an appeal by defendant No. 1. The suit was brought by tie plaintiffs for a declaration that three plots of land situated in Mauza Panapur Langa were their rent-free holding and for confirmation of their possession. The defence was that the plaintiffs were not in possession, that the land was not rent free and that it had fallen by partition to the share of the defendants. It appears from the findings of fact by both the Courts below that this land was, before the partition by the Collector, herd under a private arrangement by Musammat Pranpati Kuer, one of the co-sharer land-lords, and that she settled the land with the father of the plaintiffs free of rent. The holding nap, therefore, recorded in the Record of Rights as muafi.
2. The Munsif found that the plaintiffs were not in possession and were therefore, not entitled to any relief, He alto held that the holding was not rent-free. The Additional District Judge took the same view about the creation of this muafi holding and also finding that the plaintiffs were out of possession, gave them a decree in this form he declared that the disputed land is a muafi holding of the plaintiffs and ordered that they recover possession thereof from the defendants. This decree is attacked on three grounds ail of which, in my opinion, are sound.
3. The first is that Musammat Pranpati Koer, being only a co-sharer holding this land by a private arrangement, could not encumber it so as to bind the other co-sharers on partition. This principle is involved in Section 99 of the instates Partition Act and it has been laid down in Joy Sankari Gupta v. Bharat Chandra Bardhan 26 C. 434 : 3 C.W.N. 209 : 13 Dec. (N.S.) 880, that on partition an encumbrance (treated by one of the sharers will attach to the share that falls to the portion of that co-sharer. The other co-sharers will take the land free of encumbrance.
4. The second ground is that the plaintiffs having raised this objection as to the nature of the and in the butwara proceedings and having been overruled, the cannot now claim that the land is rent-free. In my opinion this contention is sound in view of the terms of Sections 119 and 32 of the Estates Partition Act.
5. The third ground is that the plaintiff having claimed confirmation of possession, were not entitled to a decree for recovery of possession. It is true that there is an implied prayer for general relief in the plaint, but that relief must be consistent with what is specifically claimed and with the case raised in the pleadings. Now here there is no allegation of dispossession, no dote of dispossession is given and that is material, because the limitation was the special limitation of two years, If a case of dispossession bad been Jet up, this Question of limitation could have been properly gone into; but the mind of the Court was not directed to this question specifically at the trial. On the pleadings the plaintiffs, in my opinion, were not entitled to a decree for recovery of possession.
6. The result is that this appeal must be decreed with costs and the decree of the Additional District Judge set aside and the decree of the Munsif restored.