JUDGMENT : Mohapatra, J. - This second appeal has been brought by the Plaintiffs against the judgment dated 9-10-1950 of Sri G.R. Rao, Subordinate Judge of Bolangir, affirming the judgment of the Munsif arising out of a suit brought by the Plaintiffs for declaration of their ryoit rights and for possession. The dispute is in respect of an area 7.38 which includes the homestead of the Plaintiffs. Pitai and Ratan were two brothers. Plaintiff No. 5 is the son of Pitai who died long as Ratan had two sons Panchu and Kala. Both Panchu and lala are dead. The present Plaintiffs 1 to 3 are the sons of Panchu and Plaintiff No. 4 is the son of Kata. Defendant No. 1 is the Lambardar Gountia and Defendant No. 2 is the subsequent lessee in respect of the disputed holding. The Plaintiffs' version is that it is the ancestral property of the parties and Plaintiff No. 5 also has a joint interest along with the other Plaintiffs. Panchu executed a deed of surrender in respect of this ryoti right on 22-6-1936 which is impeached by the Plaintiffs on the ground that it is fraudulent and mutt and void against the interest of the Plaintiffs. The defence is that in fact the surrender was bona fide and thereafter Defendant No. 1, the Gountia, leased out the ryoti holding afresh in the year 1941 in favour of Defendant No. 2. 2. Two points arise for determination in the present case (1) whether the surrender is valid in respect of the holding in question, and (2) whether the present suit of the Plaintiffs is barred by the special limitation as provided for u/s 23 of the Bhumibidhi of Sonepur State where the disputed lands are situate. The learned lower appellate court has decided both the points against the Plaintiffs and as such has dismissed the Plaintiffs suit. There was a controversy In the courts below as to whether Pitai was separate from Ratan, or, I; a matter that, Plaintiff No. 5 has any Interest in the disputed holding. To me it appears the point is not pertinent for the determination of the real issue in suit. There was a controversy In the courts below as to whether Pitai was separate from Ratan, or, I; a matter that, Plaintiff No. 5 has any Interest in the disputed holding. To me it appears the point is not pertinent for the determination of the real issue in suit. Even if we find in favour of the defence that in fact Plaintiff No. 5 has no interest in the property it is the case of both parties that in fact Plaintiffs 1 to 4 arc joint and that the property belonged to Ratan and as such it was the ancestral property In the hands of Panchu who had executed the deed of surrender. Now therefore the question emerges whether Panchu could validly surrender the disputed holding including the homestead of the parties and thereby extinguish the rights of Plaintiffs 1 to 4. This necessarily depends upon the question whether Panchu in surrendering acted as the harta of the family and that there was justifying cause for making a surrender of the disputed holding. It is unfortunate that the point has been completely overlooked by the court below that there is not even an allegation in the written statement filed by Defendants 1 and 2 that Panchu acted as the Karla while making the surrender on 22-6-1936. There is no allegation far less any evidence that the continuance of the tenancy was detrimental in any way to the interest of the joint family in respect of the holding. On the contrary, the admitted position is that the holding includes homestead of Plaintiffs 1 to 4. This being the position, there is absolutely no doubt in my mind that the surrender cannot have any binding effect against the present Plaintiffs 1 to 4. If the surrender is invalid the interest created in favour of Defendant No. 2 by Defendant No. 1, the Gountia, must fail immediately as a matter of course. It is to be observed and made clear that whether Plaintiff No. 5 has any interest in the property or not is left open for the purpose of the case as it Is not necessary to determine it. 3. The second attack against the Plaintiffs' suit is the point of special limitation. The lower appellate court placed reliance upon the provisions of Section 23 of the Bhumibhashi. 3. The second attack against the Plaintiffs' suit is the point of special limitation. The lower appellate court placed reliance upon the provisions of Section 23 of the Bhumibhashi. It is to be noted at the outset that the plea of special limitation was never taken in the written statement. But that apart it appears clear to me that this plea of limitation will arise only if a suit is brought by the heir or successors of the man who surrenders the holding. In the present case, the Plaintiffs impeach the transaction on their own independent rights which they had from their birth-the property being ancestral property in the hands of Panchu who executed the deed of surrender. The Plaintiffs are neither the heirs nor the successors of Panchu. As they had their interest since their birth, the point of limitation will fail and the Plaintiffs are bound to succeed. 4. In conclusion, therefore, the appeal is allowed, the judgments and decrees of the courts below are set aside and the Plaintiffs' suit is decreed with costs throughout. 5. Appeal allowed. Final Result : Allowed