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According to the plaintiffs, the circumstances of that partition were as follows. The plaintiffs' father Ghughuli Rai and the first plaintiff instituted partition suit No. 51 of 1924 against Firangi Rai and his brothers and their descendants, that is to say, against all the members of Bhanjan Rai's branch who were then in existence. The second plaintiff was not then born and the first plaintiff was a minor. There were also minors among the defendants. Firangi Rai, who was the, karta of the family, through the exercise of undue influence, and by coercion, forced the plaintiffs' father to compromise. The compromise was grossly unfair and unequal but nevertheless a decree for partition followed. This is the decree which the plaintiffs seek to challenge here.

It is admitted on both sides that decree left certain properties undivided. The extent of those properties is in dispute but the fact that some properties were left undivid- ed is admitted.

In the year 1936 the first defendant instituted parti- tion suit No. 29 of 1936 for partition by metes and bounds of that portion of the estate which was not divided in 1924. The plaintiffs' case is that the previous partition does not bind them and so the whole of the family estate must be brought into hotch-pot and divided and not merely the properties which were left undivided in 1924; also that their share in these properties is greater than the share allotted to their father under the compromise decree. The plaintiffs state that so long as the compromise decree in partition suit No. 51 of 1924 stands, such a defence is not open to them in suit No. 29 of 1936. Accordingly, they have brought the present suit.

The defendant states that there were further partitions among the defendant's branch and that from time to time members of the defendant's branch, as also those on the plaintiffs' side, have been acquiring property for themselves with which the others have no con- cern. Thus, at the date of the plaintiffs' suit (No. 51 of 1924) a number of properties stood in the separate names of various members of the family and were the separate proper-

ties. The plaintiffs thus had no right of suit at all. But in order to avoid a long litigation and to settle this family dispute amicably, the defendant's father Firangi Rai agreed to give the plaintiffs a four annas share in many of the properties acquired by the defendant's branch after the first partition in Moti Rai's lifetime to which the plain- tiffs' branch had no claim at all. The defendant claims that this is a family arrangement which binds all sides. The first Court decided in the plaintiffs' favour and de- creed their claim not only for a declaration but also for partition. It is a matter of doubt whether the plaintiffs ever claimed partition, but there is no doubt that the properties which the learned trial judge has directed to be partitioned were not admitted by the defendant to be subject to partition even on the assumption that the plaintiffs are right in all their other allegations. Thus, the defendant stated that some of the properties were non-existent, others sell-acquired and so forth. But the learned Judge, without trying any of these issues (the dispute is covered by Issue No. 9) and without any evidence being led on the point, directed that they be partitioned. That, of course, cannot be upheld on any view of the case.

The case of undue influence suffers the same fate. It was not separately pleaded and the evidence is the same. The last contention is that even if the plaintiffs fail in all else, their case cannot be wholly dismissed because, admittedly, certain properties are still undivided and the plaintiffs are entitled to have them partitioned and to be given separate possession of their share. As we remarked at the outset, it is a matter of some doubt whether the plaintiffs sought partition in this suit or whether they merely wanted a declaration here that the compromise decree in the suit of 1924 does not bind them and consequently is no bar to their demanding partition of the whole estate in the first defendant's suit No. 29 of 1936. We need not consider whether the present suit is for partition and separate possession or not, because there is pending a previously instituted suit between the same parties for the same relief. It will be more convenient and proper to have these matters decided there. Accordingly, we dismiss the plaintiffs' suit with costs throughout, but make it plain that in doing so we do not adjudicate upon their right to seek partition of such properties as they contend are omitted to be partitioned under the compromise decree in the pending suit. Appeal dismissed.