Sanjay Misra, J. - (1.) HEARD Sri R.N. Singh learned Senior Counsel assisted by Sri A.K. Rai, learned Counsel for the plaintiff appellants and Sri S.K. Verma, learned Senior Counsel assisted by Sri Siddharth Verma for the defen dant respondent. This second appeal of the year 1996 has been listed for final hearing and is being decided finally today itself.
(2.) THIS second appeal has been filed by the plaintiff against the judgment and decree dated 14.12.1995 passed in Civil Appeal No. 11 of 1993 by the 1st Additional District Judge, Sonebhadra whereby the first Appellate Court has allowed the appeal filed by the defendant and dismissed the suit of the plain tiff. The plaintiff Phekani filed a suit for cancellation of will deed dated 29.11.1984. The plaint allegations were that the plaintiff Phekani was the child of Sri Gajadhar and Aliyari. After the mother Aliyari died Gajadhar married a second time to Sugani alias Ramdei who already had a minor daughter by the name of Rajwanti. These proceedings started between Phekani and Rajwanti and the appellants are the heirs of Phekani. It is stated that Gajadhar had no issue from the second wife Sugani alias Ramdei and his son Ram Dularey had died during his life time. He is alleged to have executed the Will deed in favour of defendant Rajwanti and hence the suit. The Trial Court upon evidence led by the parties cancelled the Will deed dated 29.11.1984 whereupon the defendant Rajwanti filed the first appeal. The first Appellate Court while considering the appeal recorded a finding on the marriage of Sri Gajadhar and Sugani and held that with the enforcement of the Act of 1955 their marriage was a valid marriage. Having recorded the said finding the first Appellate Court found that the plaintiff Phekani was not recorded in the revenue records and was seeking cancellation of the Will deed. It was of the opinion that the plaintiff ought to first get a declaration of her title and inter est from the Revenue Court and thereafter she could be competent to challenge the Will deed relating to the land in question because prior to such declaration the plaintiffs interest and rights were under a cloud and hence held that the suit at the instance of the plaintiff Phekani for cancellation of the Will deed was not maintainable before the Civil Court. Sri R.N. Singh learned Counsel for the plaintiff appellant has relied upon a decision in the case of Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar, AIR 1965 SC 338 and places reliance on paragraph 13 therein. Paragraph 13 is quoted here under : - The last point urged is that when the Civil Court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the appellant with respect to the adjustment of certain amount paid by the respondent. This contention is correct. When the Court had no jurisdiction over the subject matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint.
(3.) FROM the said decision it appears that when the Civil Court has no ju risdiction over the suit it cannot decide any question on merits but it can decide only the question of jurisdiction and if it comes to a conclusion that it had no jurisdiction over the matter it had to return the plaint. According to Sri Singh when the First Appellate Court found that the Civil Court had no jurisdiction for want of any interest of the plaintiff in the land in question due to absence of any revenue entry in her favour the First Appellate Court rightly held that it had no jurisdiction to entertain the suit and hence in view of the provisions of Order VII Rule 10, CPC it ought to have returned the plaint for presentation before the Competent Court. He, therefore, submits that the dismissal of the suit of the plaintiff by deciding the dispute between the parties on merits and then holding that the Civil Court had no jurisdiction is an error apparent committed by the First Appellate Court. At the time when this appeal was admitted substantial questions of law had been framed. 1. Whether the suit was barred under section 49 of the U.P. Consolidation of Holdings Act? 2. Whether the suit for cancellation of registered Will could be enter tained by the Civil Court or its jurisdiction was barred. 3. Whether the Lower Appellate Court was justified in not returning the plaint for presentation before the proper Court after finding that the Civil Court has no jurisdiction to entertain the same? 4. Whether the finding of the Lower Appellate Court reversing the finding of the Trial Court regarding the marriage between Smt. Saguni and Gajadhar is erroneous and whether the Lower Appellate Court has ignored the material pleadings and evidence on record?;