DEVI DATTA SHARMA Vs. TEG SINGH AND OTHERS

JUDGEMENT

(1.) This is a plaintiffs second appeal. The suit was for injunction with regard to agricultural plot No. 730. The trial court framed a number of issues including one about jurisdiction. On this issue it held that the relief claimed in essence was one of declaration of Bhumidhari rights and, therefore, the civil court had no jurisdiction. It also recorded findings on other issues regarding merits of the case against the plaintiff and proceeded to dismiss the suit with costs. The lower appellate court confirmed this decree. As regards jurisdiction issue it specifically confirmed the finding of the trial court and observed that the suit was liable to be dismissed on this ground alone.

(2.) The only point urged in second appeal is that after the finding that the civil court had no jurisdiction the suit should not have been dismissed but the plaint should have been returned for presentation to the proper court. On the other hand the respondents have strongly contended that the appellant having himself filed the suit in civil court is not entitled to raise this objection that on the findings of the court, the proper order is one of dismissal and that in any event after the amendment of Sec. 331 U. P. Act I of 1951 and introduction of Sub-section (1-A) by U. P. Act IV of 1969. the lower appellate court erred in finding that the civil court had no jurisdiction because an objection about jurisdiction can after the introduction of Sec. 331 (1-A) be permitted only if there has been a failure of justice which is not at all the position in the case at hand.

(3.) There is no doubt that ordinarily where the finding is that the court has no jurisdiction to entertain the plaint, the plaint is returned for presentation to the proper court under the provisions of Order VII Rule 10, C. P. C. Even where the court as a matter of caution, records findings on issues touching merits of the controversy in addition to the issue of jurisdiction, the order has to be of return of plaint because the other findings in such a case have no legal effect. These arc recorded only for facilitating the higher courts and avoidance of a remand in case they come to a different conclusion on the question of jurisdiction. This is the principle set out in a host of decisions including Athamanatha Swami Vs. Gopala Swami (AIR 1965 SC 338) .