- (1.) This application is against a decree passed by the courts below for damages for the cutting of trees standing on the boundary of a plot of which the applicants are tenants. The opposite party is the land-holder. The suit was filed in the court of a Munsif and was contested by the applicants on the ground that they were the owners of the trees and not the opposite party. The learned Munsif held that the opposite party was the owner and decreed the suit, the appellate court has maintained the decree.
(2.) It was contended before me that the civil court had no jurisdiction to entertain the suit because of the provisions of S. 81 (2) U. P. Tenancy Act. What is laid down in S. 81 (2) of the U.P. Tenancy Act is simply this:- If any question arises between a land holder and a tenant regarding the ownership of trees it shall, on the application of either party, be decided by the Assistant Collector in charge of the sub-division." According to it, it is open to the applicants' when used by the opposite party, to apply to the Assistant Collector in charge of the sub-division for deciding the question of ownership of the trees; but it does not follow that the jurisdiction of the civil court is barred. Which court has jurisdiction depends upon the provisions of S. 242 of the U. P. Tenancy Act, according to which a revenue court has exclusive jurisdiction only in respect of suits mentioned in the fourth Schedule. An application Under Section 81 (2) is mentioned in the fourth Schedule, and, therefore, a civil court has no jurisdiction to entertain a suit for a declaration about ownership of trees. The suit in question was for damages for the cutting of trees and not for a declaration of ownership of them. Had the apposite party sued only for a declaration of his ownership of the trees, Section 242 would have applied to bar the jurisdiction of a civil court. A suit for damages for the wrongful act of cutting the trees is not a suit of that nature An Assistant Collector in charge of the subdivision can only give the relief of declaration; he cannot give a decree for damages. The cause of action in the present case was not only the opposite party's ownership of the trees being questioned but also the wrongful act of the applicants in cutting them; the wrongful act of the applicants in cutting them is not a part of the cause of action on which an application could be filed Under Section 8l (2) in the court of the Assistant Collector in charge of the sub-division. Therefore, he could not grant any relief on the cause of action in respect of which the opposite party has Sled the suit and the jurisdiction of a civil court over it has not been removed by anything contained in Sections 242 and 81 (2).
(3.) The matter may be tested in another way. The question of jurisdiction has to be determined on the basis of the pleadings in the plaint; it cannot remain in suspense to depend upon pleas taken in the written statement. If according to the pleadings in the plaint a civil court has jurisdiction, it does not lose it on account of any place taken in the written statement. A question of ownership of trees may not arise unless the Plaintiff's ownership is asserted in the plaint and denied in the written statement. It cannot be assumed that the ownership asserted in the plaint will be disputed by the Defendant and that consequently a question of ownership will arise in the suit. When a Plaintiff sues for damages for the wrongful act of cutting his trees, he is entitled to assume that his ownership of the trees will not be disputed and that there will arise no occasion for applying the provisions of S. 81 (2) and to sue in a civil court. Once he rightly sues in a civil court, he is entitled to obtain a decree from it regardless of any questions raised by the Defendant S. 288 under which a certain issue is to be referred by a civil court to a revenue court, has no application because a question of ownership of a tree is quite different from a question of tenant right. No question of tenant right is raised in the suit, it being admitted that the applicants are tenants of the plot on the boundary of which the trees stood.;