JUDGMENT Sinha, J. - This is an application in revision u/s 115 of the Code of CPC and arises out of an application u/s 19 of the Agriculturists' Relief Act. The facts, very briefly, are these: There was one Himmat Khan who died many years ago leaving a widow, Musammat Munni, and two sons, Minda Khan and Kammu Khan On July 13, 1843, Musammat Munni and Kammu Khan made a usufructuary mortage of a half share in favour of one Laljimal for a sum of Rs. 175. On June 12, 1844, Mind a Khan, through his mother, granted a usufructuary mortgage of the other half to the same mortgagee for the same amount of Rs. 175. 2. It appears that Musammat Munni associated herself with the mortgage, although she had no interest in the property, perhaps by way of prosecution. Nothing, however turns on it. 3. On March 13, 1848 Mst. Munni and Minda Khan sold the equity of redemption with respect to the half covered by the later mortgage of 1844 to the mortgagee, Laljimal. On February 6, 1883, Laljimal having died, his heir Shibcharan sold his rights in respect of both the items of property to the heirs of the present opposite party with the result that the latter acquired full proprietary rights with respect to a half covered by the mortgage of 1844 and mortgagee rights with respect to the property embraced by the earlier mortgage of 1843. 4. In 1905 an application for mutation of names was made by a number of people including the applicants, viz., Badam Khan, Mst. Abadi Begam, Afshar Khan and Majid Khan. Their attempt at substitution was resisted and once failed, but they ultimately suceeded and their names were substituted by an order of the Revenue Court in place of the mortgagors. 5. On February 5, 1943, the present application for redemption was made u/s 12 of the Agriculturists Relief Act. 6. Various defences were raised, the principal of them being that tbe Plaintiffs were not the heirs of the mortgagors, the mortgage was not a subsisting mortgage and the claim was barred by limitation. 7. The learned Revenue Officer in a careful judgment, came to the conclusion that the pedigree set up by the Plaintiff, was proved. He also found that the mortgage was a subsisting mortgage and the claim was not barred by limitation. 7. The learned Revenue Officer in a careful judgment, came to the conclusion that the pedigree set up by the Plaintiff, was proved. He also found that the mortgage was a subsisting mortgage and the claim was not barred by limitation. He decreed the suit unconditionally on the finding that the entire debt had been wiped off. 8. It might be mentioned that on the question of the right of the Plaintiffs to bring the action as heirs of the original mortgagors, the revenue officer based himself largely upon the order of the Revenue Court passed in the year 1905 under which the mutation of names was effected in favour of the applicants. This order was challenged on appeal. The learned District Judge found that the pedigree set up by the Plaintiffs was proved. He also agreed with the Court of first instance that the mortgage was a subsisting mortgage and that the action was not barred by limitation. He, however, found against the applicants on the ground that their ancestors as also the ancestors of the mortgagors were Hindus and no relationship subsist as between them and they could not, therefore, be the mortgagor's heirs. The Plaintiffs have come to this Court in revision. 9. The learned Counsel contends that the precise point on which the Court below has decided the case against them, was never raised even in the memorandum of appeal and it was, therefore, not open to the learned Judge to allow it to be raised, more particularly when the question involved was a mixed question of law and fact. Reliance has been placed on Balkaran Singh v. Dulari Bai 1926 A L J 920 and Ram Kinkar Rat v. Tufani Ahir 1939 A I, J 1601. The case of Balkaran Singh 1926 A L J 920 is authority for the proposition that the lower appellate Courts and the High Court sitting either in Letters Patent or in second appeal ought not to entertain points which should have been alleged in the pleadings and made the subject of an issue and argument and of decision by the trial Court and also stated in the grounds of appeal clearly and directly. 10. This case was noticed in the later case. 10. This case was noticed in the later case. The Fall Bench case of Ram Kinkar Rai 1939 A I, J 1601does not go the whole length with the case of Balkaran Singh 1926 A L J 920 but has summed up the true position in these words at page 1606- From all the very numerous cases to which we have referred, and many others, we deduce the following principles, which we approve: A point not taken in the Court below whether the omission was by the Appellant in that Court or whether the respondeat failed to support his decree by taking the point, will not be permitted to be raised, except possibly, I. Where the point may be described as involving a question of public policy e. g. (1) involving jurisdiction, (2) involving the principal of res judicata. (3)) where the decision of the point would prevent future litigation. 11. It is true that the leaned Judges in the case of Ram Kinkar Rai 1939 A I, J 1601 made a departure from the extreme view taken in the case of Balkaran Singh 1926 A L J 920 but it is impossible to say that the present case answered the test laid down by them. The question involved was not one of jurisdiction nor was it one of principle. It was, on the other hand, essentially, if nor entirely, a question of fact It is not difficult to conceive of a case where the parties are Hindus and are not strictly governed by the Hindu Law; they are governed by some custom It is also possible to conceive of a case where the parties have ceased to be Hindus; they have either embraced Islam or Christianity but sti11 retain the Hindu Law or are governed by some special custom. It is obvious that the learned Judge should not have allowed such a point to be raised before him for the first time in appeal. 12. It is obvious that the learned Judge should not have allowed such a point to be raised before him for the first time in appeal. 12. In cases of this class where toe transaction in dispute is an ancient transaction more than a hundred years old and lapse of time must obliterate at least some, if not the greater part of the evidence and where the success of the Plaintiff depends not only upon the proof of a pedigree but upon the establishment of a particular reltionship, the best course is to light upon some land-mark, if one such is available. Fortunately such an one is available in this case. It is the order of the mutation Court passed in the year 1905 when the latter was fresher and more details were available. 13. The learned Counsel for the opposite-party contends that that order canaot have the force of res judicata. It is, true, but it is an order passed by a competent Court and must have been passed after due and proper enquiry. 14. There is another circumstances which lends added weight to that order. Ordinarily, mutation is based upon possession, but the present is not a case of that character. It was a usufructuary mortgage and it was the mortgagee who must have been in possession of the property. What had remained with the mortgagors or their heirs was the equity of redemption. The order must have been based on the result of an enquiry into the question of title. a finding in favour of the plainiffs on the question of title must, in the peculiar circumstances needs involve a finding as regards the legal relationship. 15. On a consideratic of all the facts, we have come to the conclusion that the learned Judge acted illegally and with material irregularity in allowing a new point to be raised before him. 16. We, therefore, allow this application set aside the order of the lower appellate Court and restore that of the Court of first instance with costs in all Courts.