MOHD ISHAQ Vs. MOHD QASIM

JUDGEMENT

(1.) This is a plaintiff's Second Appeal in a suit for permanent injunction restraining the defendants from interfering with the plaintiff's possession over plot No. 40/41 along with the Bamboo Clumps standing thereon. The suit was filed in the year 1962 and I am told -that the land in dispute is situate in the town of Jaunpur. Zamindari had not been abolished in that area when the suit was filed. I do not know whether it has been abolished now. Learned counsel for the parties could not enlighten me on this point. The Trial Court decreed the suit but the lower appellate Court dis missed it on the merits as well as on the ground that the civil Court had no jurisdiction to try the suit. The main dispute between the parties was whe ther the land in suit was grove-land or was non-occupancy tenancy of the plaintiffs. If the plaintiffs were in possession as alleged by them, they could have got adequate relief by filing a suit for declaration of the tenancy right which they claimed by a suit under Section 59 of the U. P. Tenancy Act against the landholder, impleading the defendants also as parties, or in case the plaintiffs had been dispossessed from the land, they could have filed a suit under Section 180 of the U. P. Tenancy Act. In either case, it appears to me, that the civil Court had no jurisdiction to entertain the suit in view of the provisions of Section 242 of the U. P. Tenancy Act 1939 and the lower appellate Court was right in holding that the suit was liable to be dismissed on that ground. If the civil Court had no jurisdiction to entertain the suit, the findings on merits, of the dispute between the parties must also be set aside as the findings are those recorded by a Court which had no jurisdiction over the matter. Learned counsel for the appellants, however, strenuously contended that instead of dismissing the suit, the proper order would be to direct the return of the plaint. That, it seems, is not possible in the present case for a variety of reasons. In a suit under Section 59 of the U. P. Tenancy Act the landholder is the principal defendant. He is not a party to the present suit. The relief claimed is also different. Moreover, even if the plaint was directed to be returned at this stage, the question of limitation would still have to be got over by the plaintiffs by showing their bona fides in pursuing the litigation in the civil Court. The same result would follow even if the suit is dismissed on the ground of want of jurisdiction. In the result, while upholding the decision of the lower appellate Court that the civil Court had no jurisdiction to entertain the suit, I set aside the findings recorded by the two Courts below on the merits of the dispute between the contending parties and dismiss the suit on ground that the civil Court had no jurisdiction to entertain it. The appeal fails and is dismissed but in the circumstances of the case there will be no order as to costs. .