K. P. Singh, J. - (1.) THIS is a plaintiff's First appeal from order against the judgment of the trial court dated 21-4-90 whereby the plaintiffs suit has been returned for presentation before a competent court.
(2.) ONE of the ticklish questions relating to jurisdiction of Civil Court or Revenue Court is under our consideration in the present case. There are three plots numbered as 147 measuring 16 decimals 292 measuring 5 decimals and 293 measuring 6 decimals, situate in village Bhawanpur alias Khudahna, Pargana Kol Asla, district Varanasi According to the plaint allegations there are constructions over the aforesaid plots and the plaintiffs wants partition of the constructions as well as the disputed land. In short, the allegations of the plaintiffs in the plaint are that the constructions were made with joint family fund. Therefore, the plaintiffs have half share in them and they have prayed for partition keeping in view the convenience and easmentary rights (See Annexure RA 1 copy of the plaint attached with the rejoinder affidavit). The claim of the plaintiffs has been contested by the defendants as, is evident from Annexure RA. 2 The main claim of the defendants appears that according to them there has been partition in the family and that the disputed land fell in the share of the defendants' ancestors and that the constructions existing over the disputed land were built with their own income and that the plaintiffs had no interest in the building or the disputed land or the trees existing thereon and that the defendants had been owner in possession over the disputed property since more than 20 years. Vide paragraphs 33 and 34 of the written statement pleas have been raised to the effect that the suit for plot no. 147, measuring 16 decimals is barred by the provisions of section 49 of the U. P. Consolidation of Holdings Act and the civil court has no jurisdiction to try the suit. (See written statement annexure RA 2).
(3.) ON the pleadings of the parties, issues were framed by the trial court and through the impugned judgment the trial court has arrived at the conclusion that the suit is not cognizable by the Civil Court. Aggrieved by the judgment of the trial court the plaintiff-appellant has approached this court through the above noted First Appeal From Order. The learned counsel for the plaintiff-appellant has contended before us that the trial court has patently erred in returning the plaint in the facts and circumstances of the present case. According to him the division of the constructions existing over the disputed land was involved which could be granted by the civil court alone. But, the trial court has a.-ted illegally in holding that the civil court had no jurisdiction to try the suit. It has also been emphasized before us that the disputed land is really in the nature of Abadi land and even according to the defendants they have claimed the disputed land being their own as by way of alleged partition the disputed land had fallen to their share and the constructions over the disputed land are existing for more than 20 years. Therefore, according to the plaintiffs the land had lost the use for agricultural purposes and had acquired the nature of Abadi land. Therefore, the suit was cognizable by the Civil Court. It has also been emphasized that according to the rulings of this court, division of Abadi land can take place only in civil court and in consolidation papers two of the disputed plots have been shown as Abadi and Achak land. Therefore, the trial court had pattently erred in returing the plaint for presentation before a competent court.;