Deoki Nandan, J. - (1.) This is a defendants appeal in a suit for the following declaration:- 1. It may be declared by a decree of court that the stone pillars A and B fixed by the Qanungo of the Halqa in the demarcation case, as shown in the site plan, in village Shafipur alias Navagaon, Tappa Chhapi, Pargana Rasulpur, district Basti, have been wrongly fixed and that 2 Gatthas of land oh eastern end and 2 Gatthas of western end and the land to the south of the two stone pillars was the land of the plaintiffs Baghichi in plot No. 170. 2. The defendants may be ordered' not to interfere with plaintiffs possession with a mango tree on the land ABCD in the site plan.
(2.) One of the points raised in paragraph 10 Of the additional pleas of. the written statement was that the suit was beyond the jurisdiction of the court and was rather cognizable by the revenue courts. Another plea raised was that the suit was barred by the consolidation proceedings and the fact, that the plaintiff did not raise any Objection in the consolidation proceedings. No issue was raised by the trial court on either of these points raised in the written statement and the suit was decreed in respect of the land lying to the north of line AB shown in the map 86 C as forming part of plaintiffs plot No. 170 but dismissed in. respect of the tree. On appeal before the lower appellate Court the question; of jurisdiction was specifically raised but having been decided against the plaintiff, this appeal has been preferred.
(3.) Having heard learned counsel for the parties I am satisfied that the view-on the question of jurisdiction of the-Civil Court to decide the present case taken by the lower appellate court, is-erroneous. The lower appellate court' held that Section 242 Of U. P. Tenancy Act had been repealed and, therefore, the decision given in the context of Section 242 of U. P. Tenancy Act and Section 41 of the U. P. Zamindari. Abolition and Land Reforms Act, in the case of Panna Lal v. Gobardhan, AIR 1949 All 757 , did not apply to-the facts of the present case. The place of Section 242 of U. P. Tenancy Act had been taken by Section 331 of U. P. Zamindari Abolition and Land' Reforms Act and the principle laid, down by this Court in Panna Lals, case is in my opinion fully applicable-to the present case. Learned counsel for the plaintiff, however, urged that in view of sub-section (1-A) of Section. 331 of U. P. Zamindari Abolition and Land Reforms Act, the point of jurisdiction net having been pressed before the trial court by getting an issue-framed on the plea taken in the written statement and there having been, no failure of justice, this Court should.' not act on this plea. On the language of sub-section (1-A) of Section 331, it cannot be said that the plea was not taken by the defendant at the earlier stage before the framing of issues. The question, however, is whether the decision of the lower appellate court holding that the Civil Courts had jurisdiction to try the suit will occasion a failure of justice.;