- (1.) I think this special appeal must be dismissed with costs. The plaintiffs sued for the rectification of certain survey papers, for the reversal of two Act X decisions, and for the recovery of possession of some lands. The case, in fact, is one of simple boundary dispute, although a question as to the possession of land is involved in it. The plaintiffs claimed the lands in suit as part of the shikmi talook purchased by them, at the same time that they said that they were in talook No. 18 of the Collector-ate rent-roll, of which they were the zamindars. The defendants' case was that the lands belonged to the kharija talook, which had its separate number on the Collectorate rent-roll, No. 1036. Both the shikmi and kharija talooks formerly belonged to one Iswar Chandra Mazoomdar, and the plaintiffs purchased the rights and interests of the said Iswar Chandra in both the shikmi and the kharija talooks, at a sale in execution of decree. But, subsequently, the Das defendants obtained a decree for the kharija talook, in a suit upon a mortgage, and sold that talook to the defendant, Sudukhina Chowdrain, special appellant before us, who the plaintiffs alleged dispossessed them from the lands in suit. Both the lower Courts decreed the plaintiffs' suit.
(2.) The first ground of special appeal is that the plaintiffs alleging themselves to be in possession of certain lands, have no cause of action as regards those lands. But it seems to me that no such ground was taken before either of the lower Courts, and I think that it is too late to allow the defendants to raise the contention now. It is urged that this is a question of law which we should allow to be raised, though not taken in the lower Courts, but the discretion is entirely left to us; and when I find that in both the lower Courts the contest was hotly maintained by the parties on the supposition that the plaintiffs had a cause of action, I do not think we ought now to permit the special appellant the technical plea that the plaintiffs have no cause of action.
(3.) It is then alleged, that the question is one of jurisdiction, but it is no question of jurisdiction in the proper sense of the term, because it cannot be said that the lower Courts either assumed a jurisdiction which they had not, or refused to exercise the jurisdiction which they had.;