B.D.Agarwal, J. - (1.) THIS is a Defendants' appeal.
(2.) THE dispute relates to plot No. 4029/1 covering an area of 2.21 acres situate in Kaptan Ganj, district Deoria within the town area limits. According to the case of the Plaintiff, he is a co -zamindar in relation to the area where the disputed plot is situate. The demarcation of the agricultural area has not been made thus far under the U.P. Urban Areas Z.A. and L.R. Act. About 6 years preceding the suit instituted on May 29, 1968, the Plaintiff and his father allegedly brought this land under cultivation and thus it is held by the Plaintiff as his Khudkasht. The father of the Plaintiff died two years prior to the suit. Proceeding was initiated under Section 145(1) Code of Criminal Procedure at the instance of the Defendant No. 1. On April 26, 1968 it was held by the criminal Court that possession was that of the Defendant No. 1 and others. Hence the suit instituted under Order I Rule 8, Code of Civil Procedure claiming the relief for perpetual injunction and possession in the alternative coupled with the declaration to the effect that the order made in proceeding under Section 145 Code of Criminal Procedure is invalid. In defence it has been asserted by Defendant No. 1 that he is the sole proprietor of the disputed land. According to him, the land has not been cultivated by the Plaintiff or his father at any stage and it is wrong to say that it is held by the Plaintiff as his Khudkasht. It is further pointed that the land is in the form of Pukhri or a pond and the Defendant 1 and others have been sowing Singhara therein. They also rear fish in the pond and certain washermen wash clothes therein. The water from the pond is also made use of for purposes of irrigation in the neighboring area. The plea of jurisdiction relating to the civil Court was also raised. The trial Court held on March 22, 1971 in relation to the preliminary issue concerning the jurisdiction that the main relief claimed is that of perpetual injunction and hence the suit lies in the civil Court. In relation to other issues it was found by the trial Court in its judgment dated October 29, 1972, that the land had not been tilled by the Plaintiff or his father and that instead the Defendant No. 1 and others had been making use of the land as Pukhri for purposes of growing Singhara and pisciculture etc. Local inspection was also made by the trial Court wherein it was observed that this was a Pukhri and not a cultivated area. Reliance on this local inspection was also placed in addition to the other evidence. In appeal the lower appellate Court affirmed the finding of the trial Court with respect to the character and use of the disputed land. Despite this, the lower appellate Court granted the decree in favour of the Plaintiff for perpetual injunction restraining the Defendants from interfering in the exercise of the rights of the Plaintiff Appellant over the land in dispute as a co -sharer. It has been observed in this connection that the interest of the Plaintiff had not extinguished by adverse possession. Aggrieved against the decree, the Defendants preferred this appeal.
(3.) THE learned Counsel for the Defendants -Appellants submitted in the first place that the suit giving rise to this appeal did not lie in the civil Court. Reference was made by him for this purpose to Section 63 of the U.P. Tenancy Act, 1939. The argument raised is that the jurisdiction of the civil Court is excluded by Section 63 read with Section 242 and the IV Schedule to the U.P. Tenancy Act 1939. According to Section 63 when the land claimed by a tenant as his holding or as being under his cultivation is also claimed by the landholder as being held by him as his sir or Khudkasht either the landholder or the tenant may sue for a declaration of his status. It will be observed, therefore, that this provision relates to dispute as between a landholder on the one hand and a person claiming to be the tenant on the other in respect of the question whether the land is not sir or Khudkasht the jurisdiction of the civil Court would not be excluded unless the case is shown to fall within the purview of Section 63 relied for the Appellants. In the instant case the Plaintiff claims to be a co -proprietor and the exclusive Khudkasht -holder of plot No. 4029/1. This is apparent from the averment contained in paragraph 6 of the plaint. The Defendant No. 1 contesting the suit maintained on the contrary that he is the exclusive proprietor vide paragraph 4 of the written statement. He also asserted that the land is not under cultivation but that it is a pukhri and used for purposes of pisciculture, irrigation, growing Singhara and washing clothes etc. There is no claim by the Defendant No. 1 as to his being a tenant in respect of this land. Nor is any such claim raised by any of the Appellants and the Plaintiff still does not allege in the plaint that the Defendants have laid claim as to their being tenants of this land. It follows clearly, in my view, that this is not a case relating to a dispute between a 'landholder and a tenant within the meaning of ` 63 and in consequence the jurisdiction of the civil Court cannot be claimed to be excluded under that provision read with Section 242 and the IV Schedule.;