KALLU Vs. PHUNDAN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit, brought by the respondent in the Court of the Munsif of Pilibhit, for the partition of a grove situated in a Plot No. 710/2. The Munsif dismissed the suit, but the lower appellate Court has set aside the decree and has remanded the suit. Among the pleas raised by the defendant in his, written statement was one to the effect that the suit was not cognisable by the civil Court. He further alleged that, in any event, the plaintiff had no right or title to the grove in suit. The Munsif held that the civil Court had no jurisdiction to entertain the suit. In spite of this, he went on to record a finding on the merits and held that the defendant's allegation, that the plaintiff had no right or title to the grove in suit, was correct. The learned Judge of the Court below has rightly pointed out that the Munsif, being of the opinion that the civil Court had no jurisdiction to entertain the suit, ought not to have tried any other issue and should have returned the plaint to the plaintiff for presentation to the proper Court. He differed from the finding of the Munsif that the suit was not cognisable by the civil Court. Having held that the civil Court could entertain the suit, he passed an order of remand with the direction that the question of title be tried afresh as, in the learned Judge's opinion, the finding of the learned Munsif was vitiated by certain errors of law.

(2.) The basis of the learned Judge's finding that the suit was cognisable by the civil Court is - as it had to be - that the parties are "grove-holders" in respect of the grove in question. It has been contended before us by the appellant's learned Counsel that, on the admitted facts, the parties to this suit could not possibly be grove-holders. A grove-holder is defined in Section 205, U.P. Tenancy Act (17 [XVII] of 1939) as a person who has planted a grove (a) on land which was let or granted to him by a landlord for the purpose of planting a grove; or (b) on land which he held as a tenant other than as a sub-tenant, a permanent tenure-holder or a fixed-rate tenant,...provided the planting of the grove on such land was done with the permission written or oral according to circumstances which need not be specified of the landlord or in accordance with local custom entitling the person to plant a grove on the land held by him as a tenant. The first requisite, thus, is that the person claiming to be a grove, holder must have planted a grove on land of one of the two kinds mentioned in the section. By virtue of Clauses (e) and (d) of Section 206, the transferees and heirs of such planters of groves will also become grove-holders.

(3.) Learned Counsel for the appellant has contended that, in view of the facts admitted by the plaintiff himself, and having regard to the definition quoted above, the finding that the parties to this suit are grove-holders must be held to be wrong. It appears that no oral evidence was produced in this case. The parties were, however, examined under Order 10, Rule 2, Civil P.C. The statement made by the plaintiff has been laid before us. The relevant portions are as follows: The plot in dispute has been in our possession for 80 or 32 years. Kalian and I took this bagh on rent (lagan par liya tha). The rent was Rs. 7. Each of the parties has been paying Rs. 3-8. We took it on rent from Hadi Yar Khan Zamindar.... We used to pay rent and used to obtain receipts. There was grove already in existence when we took the number in dispute on rent.... This is a mango grove...There ate 39 trees now in existence in the number in dispute. The rest of the land is not cultivated. The number in dispute was fall of trees when it was taken on rent. There were 40 trees even when we took it.