BADRI PRASAD Vs. SHEO BALAK

JUDGEMENT

(1.) Sheo Balak instituted a suit out of which this appeal arises for partition of a riyaya grove situated on plot No. 1235 in Mahal Chandika Prasad, Pargana Pachchrawan, District Rae Bareli. He claimed that he was entitled to a half share in the grove and that the defendant had cut away two babul trees valued at Rs. 30 in November 1943 which had infringed his rights. He further alleged that he was compelled to institute the suit for partition because Badri Prasad appellant had refused to agree to a private partition.

(2.) Badri Prasad pleaded that he was the sole owner of the grove in suit and that the civil Court had no jurisdiction. The trial Court, viz., Munsif Dalmau, framed eight issues of which the first was framed to determine whether the plaintiff was a grove holder of half the plot in suit and the sixth was framed to determine the question whether the civil Court had jurisdiction. The Munsif referred the first issue for a finding to the revenue Court. The revenue Court found that the plaintiff was a sharer to the extent of a half share in the grove in suit. On receipt of this finding the learned Munsif proceeded to decide the remaining issue and on the issue of jurisdiction he found that the civil Court had jurisdiction to entertain the suit. The learned Munsif accordingly declared that the plaintiff had a half share in the grove in salt subject to certain limitations which he specified in his order. He further directed that the plaintiff would be entitled to actual partition on an application being made after three months for the preparation of a final decree.

(3.) The defendant appealed and the plaintiff filed cross objections. The learned Civil Judge of Rae Bareli dismissed the appeal and allowed the cross-objections. The defendant has now come up in second appeal and his learned Advocate has raised two contentions, first that the civil Court had no jurisdiction and secondly, that even if a suit did lie in the civil Court, the issue relating to the determination of the question whether the plaintiff was a grove-holder or not should not have been referred to the revenue Court.