BAHADUR Vs. NARAIN SINGH

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for declaration that the defendant has no power to make construction, recovery of possession and perpetual injunction. In the plaint it was admitted that the land in dispute was entered in the revenue papers as a grove and it was further alleged that for some time the trees standing upon it dried up and the land became vacant and no fresh trees were planted; that the defendants without the permission of the plaintiff began to construct a pucca and kuchcha house on a portion of the plot, which action was wrongful. The cause of action was alleged to have accrued in December 1916 when the constructions were commenced. Many pleas were taken in the written statement. It was alleged that the land was an ancestral muafi grove of the defendants, that all the trees had not dried up and that the land had never changed its character as a grove, as trees were still standing on a large portion of the land. It was further pleaded that the constructions complained of were made 12 years ago, and the claim was barred by the six years rule of limitation. But no plea as to want of jurisdiction was raised.

(2.) The first Court found that over half of the land occupied formerly by the grove odd trees still stood and that building had been made on the eastern portion of the land over which there were only a few trees left. It came to the conclusion that the plot had not lost its character as a grove and accordingly dismissed the suit. On appeal the learned District Judge has affirmed the findings of fact that for about half the area to the west of the plot there are 15 trees while on the eastern side there are only three trees and on this portion there are no less than four buildings two of which appear to be quite recent. He came to the conclusion that as matters stood now the defendants would be prevented from using nearly half the land to the east for purely building purposes, and that accordingly in view of the definition of "grove land" given in the new Tenancy Act, the land no longer retained the character of a grove. He set aside the decree of the first Court and decreed the claim.

(3.) On appeal it is urged for the first time that the civil Court had no jurisdiction to entertain the suit. It has been settled by the pronouncement of the Full Bench case of Ram Iqbal Rai V/s. Tilesari Kuari that Section 268 of the new Tenancy Act, would have no application to a case where the civil Court had disposed of a matter which even if brought in the revenue Court no appeal would have lain to the civil Court. The objection as to the want of jurisdiction if well founded, must therefore be entertained, although in view of the fact that it was not raised earlier the defendants may be deprived of their costs.