Dave, J. - (1.) THIS is the defendants' second appeal against the judgment and decree of the District Judge, Sawai Jaipur and Gangapur, dated the 30th September 1948 affirming the judgment of the Munsif, Dausa, passing a decree for Rs. 70/- for cutting down the plaintiff's Babul tree standing on his Muafi land at the village Malwas.
(2.) THE main contention raised by the appellants' advocate is, that before the trial court gave its judgment on the 5th February, 1947 the Jaipur State-Grants Land Tenures Act, 1947, had come into force, that according to sec. 190 read with sec. 25 of the said Act this case was exclusively triable by the Revenue Court and that the Munsif had no jurisdiction left to try and decide this case. He has proceeded to argue that according to sec. 3 thereof it was obligatory for the Munsif to transfer the case to the competent revenue court and that his decree being passed without jurisdiction, should be set aside. This argument was not taken in the courts below and I am not convinced that the jurisdiction of the Munsif to decide this case was taken away by the Jaipur State-Grants Land Tenures Act of 1947. Section 190 of the Jaipur State-Grants Land Tenures Act provides that "no suit or other proceedings shall lie or be instituted in any civil court with respect to any of the matters arising under this Act, for which a remedy by way of suit or application or otherwise has been provided by the provisions of this Act. " Sec. 3 (2) of the same Act provides that "any proceeding pending before a civil court, when this Act comes into force, which would, under this Act, be exclusively triable by a revenue court shall be transferred, for disposal, by such civil court to the revenue court, competent under this Act to deal with it. " It is clear from the provisions of this section that in case it is found that this case Was exclusively triable by a revenue court then after the enforcement of the Act the Munsif had no jurisdiction left to try and decide it and he ought to have transferred it to the revenue court. The learned advocate for the appellants says that by sec. 25 of the Jaipur State-Grants Land Tenures Act the provisions of chapter VII of the Jaipur Tenancy Act of 1945 were applied mutatis mutandis to the planting of trees and other allied matters under this Act. Then referring to sections 45, 47, 48 and 49 of the Jaipur Tenancy Act he has argued that the Tehsildar had the exclusive jurisdiction to decide the present case. These sections run as follows: - "45. (1) A pattedar tenant shall, subject to the provisions of sections 43 and 47 have full rights of disposal in trees standing on his holding. (2) A Khatedar tenant shall, have the right to cut trees on his holding for domestic or agricultural purposes but not for sale". "47. All trees standing on agricultural holdings shall be deemed to be attached to the land and no interest therein shall be transferable independently of the land". "48. If any question arises regarding the ownership of a tree it shall be decided by the Tehsildar. " "49. Whoever cuts trees in contravention of the provisions of this Act shall under the orders of the Tehsildar be liable to a fine up to Rs. 50/ -. " The appellants' advocate says that the appellants Nos. 1, 2, and 3 are Khatedar tenants of the respondent, that they had a right to cut trees for domestic or agricultural purposes, that the question between the parties was that of the ownership of a tree and, therefore, under sec. 48 the Tehsildar was the proper authority to decide it and he could impose a fine under sec. 49. This argument does not appear to be tenable. Sec. 45 (2) only provides that a Khatedar tenant has a right to cut trees on his holding for domestic or agricultural purposes and not for sale. This section does not lay down that a Khatedar tenant is the owner of all the trees growing on his holding. The dispute between the parties in the trial court was never about the ownership of the tree. The defendants never denied that the plaintiff was the owner of that tree. Their only defence was that they had cut it for domestic or agricultural purposes but they have not been believed by both the courts below about this purpose. Section 48 of the Jaipur Tenancy Act makes it obligatory for the Tehsildar to decide the question about the ownership of a tree but there is no clear provision in this Act that if there is a dispute between the estate holder and a Khatedar tenant on the right to cut a tree on his holding, the Tehsildar will have the exclusive jurisdiction to decide it. A civil court has ordinarily jurisdiction to decide a case of civil nature like the present one and unless it is definitely shown that its jurisdiction is barred by the clear provisions of certain law it cannot be said that it had no jurisdiction over it. Section 49 also cannot apply to this case, because it provides penalty for cutting trees in contravention of the provisions of this Act. Now, the provisions of this Act were made applicable to the present case after the institution of the suit, that is, long after the date of the cutting of the tree and therefore it could not be said against the defendants Nos. 1, 2 and 3 that they had contravened the provisions of this Act, and that they could be liable to pay any fine for the same. The learned advocate for the appellants has not been able to point out any provisions by which this Act might have been made applicable, retrospectively. The appellants' learned advocate has next referred to sec. 25 (3) of the Jaipur State-Grants Land Tenures Act, 1947, which runs as follows: - "25 (3 ). The permission required for cutting trees under sec. 46 of the Jaipur Tenancy Act shall be obtained from the estate-holder, and any contravention of the provisions of that section shall render the defaulter liable, in addition to the fine that may be imposed under sec. 49 of the said Act, also to pay to the estate-holder the value of the trees cut. Such value shall be determined by the Tehsildars. According to the argument of the appellants' advocate, the Tehsildar was the sole authority to determine the value of the tree. To my mind, this section is also inapplicable, because sec. 46 of the Jaipur Tenancy Act does not apply to the present case. It applies only to those trees which might be standing on unoccupied land or on land held by a ghair Khatedar tenant, which is not the case in this matter. Moreover, in the present case, defendant No. 4 was also a party and the decree of both the courts is also against him. He is not a tenant of the plaintiff and, therefore, none of the provisions would apply to him. The argument about the jurisdiction, therefore, does not stand. The appellants' next argument is that the defendant No. 1 had really cut the tree for making out wheels for his cart and that the courts below were not correct in holding that it was not cut for domestic or agricultural purposes, but for sale. To my mind, the findings on this point are those of fact and they can not be interfered within second appeal. The appeal is, therefore, dismissed with cost. . ;