R. Dayal, J. - (1.) This is a reference under Sub-Sec. (2) of Sec. 289 of the U.P. Tenancy Act 1939 (hereinafter called the Act).
(2.) A suit for a declaration that the plain-tiffs were grove holders was filed on the 5th of March 1952 in the court of the Judicial Officer, Akbarpur. It was a suit under Sec. 206 read with Sec. 59 of the Act. The zamindars were impleaded as defendants. The cause of action was alleged to have arisen on the 20th of January 1952. The Judicial Officer held that the suit was cognizable by a civil court and therefore ordered the return of the plaint for presentation to the proper court. It is not clear whether the defendants or any of them had raised the question of jurisdiction in his court.
(3.) The plaint was then filed in the court of Munsif, Faizabad. The defendants contended there that the suit was cognizable by the revenue court. The learned Munsif held against this contention and decided the suit on merits. He decreed the suit. Daya Ram and others filed an appeal against the decree which was heard by the Civil Judge Faizabad. The appellants contended that the suit was not triable by the civil court. The learned Civil Judge agreed with this contention. It was further contended before him that in view of this finding the suit should be dismissed and that it was not necessary to refer the case to this Court. He disagreed with this contention. He also disagreed with the contention that the expression "latter court" in sub-Sec. (2) of Sec. 289 of the Act applied only to the court of first instance and not to the appellate court. In the result therefore he made this reference.;