- (1.) THIS appeal originally came up for hearing before a learned single Judge of this Court who thought that the points involved in this case reserved consideration by a Division Bench. The case was therefore listed before this Bench. It arises out of a suit instituted by the plaintiffs respondents for possession of some plots of land which were a part of the tenancy holding of the plaintiffs but which had been taken possession of unlawfully by the defendant appellant. The defendant contested the suit on the ground that the plots were given to him under a private partition and as such he was a tenant of the plots. Pleas of limitation and jurisdiction were also raised and it was contended that the suit should have been instituted in the revenue court and that it was barred by limitation.
(2.) AS the defendant raised a plea of tenancy, an issue about tenancy was referred to the revenue court. The revenue Court before deciding the issue remitted to it by the Civil Court, impleaded the landlord. The revenue Court ultimately came to the conclusion that the defendant was not a tenant and this finding was sent back to the Civil Court. On receipt of this finding the Civil Court decreed the suit. It also found that the suit was within the cognizance of the Civil Court and was not barred by limitation. The defendant went in appeal to the District Judge. The Civil Judge who heard the appeal concurred with the findings of the trial Court and dismissed the appeal. The defendant has now come up in second appeal.
(3.) TWO points have been urged on behalf of the appellant. Firstly it was urged that the suit was covered by Section 183, U. P. Tenancy Act and as such the suit should have been instituted in the revenue Court and not in the civil Court. Section 183 was amended in 1947, and after the amendment there is no doubt that a suit such as the one which has been instituted by the plaintiffs, ought now to be instituted in the revenue Court. The suit which has given rise to the present appeal, however, was instituted in 1945 and we have to see whether such a suit could be instituted in the civil Court under the provisions of the Act as it stood in 1945. There has been a conflict of opinion between the Allahabad High Court and the erstwhile Oudh chief Court on a matter of jurisdiction in such suits. The Allahabad view was that a suit by a tenant could not be instituted in the Civil Court and that the only forum for such a suit was the revenue Court, vide -- 'd. N. Rege v. Muhammad Haider', AIR 1946 All 379 (FB) (A ). The matter came up before a Full Bench of the Oudh Chief Court in 1947 and it was held that it was open to a tenant to institute a suit against a trespasser in the Civil Court, vide -- 'ori Lal v. Ganeshi', AIR 1947 Oudh 104 (FB) (B ). The plaintiffs belonged to Oudh and were governed by the laws prevailing in Oudh. We are, therefore, not concerned with the disagreement on this point between the two Courts and on the view of the Oudh Chief Court the plaintiffs were entitled to maintain the suit in the Civil Court. Originally it was argued on behalf of the appellant that even before the amendment of Section 180, the suit should have been instituted in the revenue Court inasmuch as the defendant in his defence pleaded that he was a tenant and the landlord also, when he was impleaded in the revenue Court, supported him. Primarily the forum is to be decided on the allegations made in the plaint. It may also perhaps be conceded that a finding on the plea raised in defence may also affect the jurisdiction, but mere allegations made by a defendant should not be enough to decide the forum of a suit. Learned counsel for the appellant did not, therefore, towards the close of his arguments, press this point.;