KALKA PERSHAD Vs. JANGI SINGH

JUDGEMENT

(1.) This is a second appeal by the plaintiffs against a decree of the lower appellate Court dismissing the plaintiffs appeal and upholding a decree of the Court of first instance which dismissed the suit of the plaintiffs. The lower appellate Court found that the suit should have been instituted in the revenue Court, and that the civil Court in which the suit was instituted had not jurisdiction to try it. This question depends on the allegations in the plaint.

(2.) The plaint claimed that the plaintiffs were zamindars of a certain grove in. which the defendants were grove-holders and in para. 4 it was alleged that the trees in the grove had been lost and the plot had become clear of trees and the plot had lost its character of a grove.. Hence the plaintiffs ask for possession and removal of trees. Now under Section 197, Sub-section (a), Act 3 of 1926 (Agra Tenancy Act) it is provided: It shall be presumed that a groveholder holds the land in respect of which he is grove-holder as a nonoccupancy tenant under a lease the term of which will expire when the land ceases to be grove land.

(3.) On the allegations in the plaint the defendants were holding as non-occupancy tenants under the lease the term of which had expired. Under Section 197 (e) it is provided that a grove-holder shall be liable to ejectment on the ground that he holds under a lease the term of which has expired. Such a suit for ejectment would lie under Section 86, Sub-section (1) in the revenue Court, and the lower appellate Court was not correct in referring to Secs.84 and 85. It is clear therefore that on the allegations in the plaint the suit would lie in the revenue Court, and I find accordingly. Two points remain in second appeal firstly that the lower Court was not correct in coming to a finding the as a matter of fact the land had ceased to be grove. It is unnecessary for the purposes of jurisdiction to come to such a finding as the jurisdiction appears on the allegations in the plaint, and accordingly I set aside this finding of the lower appellate Court and I leave the matter open for the decision of the revenue Court. The remaining point is that under Order 7, Rule 10 a Court which finds that it has not jurisdiction to entertain the suit should return the plaint for presentation to the proper Court. Accordingly I direct in the present ease that the plaint be returned for presentation to the proper Court. The second appeal is otherwise dismissed with costs.