Mohammad Rafiq, J. - (1.) THIS is plaintiff's second appeal against the judgment dated 8.12.1983 passed by the Additional District Judge, Deeg, District Bharatpur who thereby reversed the judgment and decree dated 26.6.1978 passed by the Munsiff Magistrate, Deeg with direction to the learned Munsiff Magistrate to return the plaint to the plaintiff for presenting the same before the competent court of jurisdiction. The Munsiff Magistrate had decreed the suit filed by the plaintiff against the defendant -respondents restraining them by perpetual injunction from interfering with the possession of the plaintiff and directed by mandatory injunction to demolish the wall constructed over the disputed land. According to the plaintiff -Lochi Ram, he was recorded as gair -khatedar of the land of khasra No. 484 measuring 18 biswas. The disputed land was part of that land, whereas the name of the defendants was recorded as gair -khatedar in the land of khasra No. 483. The defendants by making encroachment into the land of the plaintiff in khasra No. 484 have constructed a 50' long and 5' high wall indicated as 'X' to 'Y' in the map enclosed with the plaint between 26.1.1970 to 29.1.1970. The trial court upholding the contention of the plaintiff decreed the suit whereas the appellate court reversed that judgment holding that the defendants have not made encroachment over the land of the plaintiff and also that the civil court would have no jurisdiction to entertain the suit pertaining to a revenue dispute and that only revenue court would be competent to decide such matter. The appeal was admitted for hearing on 1.10.1985 on the basis of separately proposed questions of law on 30.11.1984: 1. Whether the land in dispute is agricultural land when it is not being used for agricultural purposes for a long time and whether suit is triable by revenue court?
(2.) WHETHER the lower court was right in rejecting the site inspection note of Munsif which was used only for appreciating the evidence of parties? Whether the lower court was right in giving finding on merits while deciding that civil court has no jurisdiction?
(3.) WHETHER adverse inference against the appellant could be raised for non -production of partition deed when it was not relevant for decision of case? 2. Shri Parag Rastogi, learned counsel for the appellants has argued that the learned lower appellate court was wholly unjustified in reversing the finding on Issue No. 1 recorded by the trial court, which was based on correct appreciation of evidence. The learned first appellate court erred in discarding the inspection note prepared by the Presiding Officer of the Munsiff Court. The learned Munsiff carried out the inspection in the presence of both the parties only with a view to better understanding the evidence on record. Inspection of the site was carried on 24.4.1978. Such inspection could not have been ignored merely because the note of inspection mentions the word "khet". The learned trial court has given sound reasoning in support of the judgment. The first appellate court could not have lightly interfered with the finding recorded by the trial court. The learned first appellate court erred in drawing an adverse inference against the plaintiff for non -production of the partition deed between appellant and Rajmal. The defendants, who were trespassers, had no locus to challenge the question of the partition deed. Lochi Ram appeared as PW -1 and supported the case on that aspect. Even if it is accepted that appellant is one of the co -owners, a single co -owner can also maintain a suit against the trespasser. The learned first appellate court further erred in law in not believing the version of the appellant when he appeared as PW -1 by observing that he has not stated as to how much land was utilised for construction of the road. It was not necessary for the appellant to state everything. Even otherwise, other witnesses deposed that how much land was utilised for construction of the road. Evidence of those witnesses could not be ignored. Even if the site plan was prepared with the help of already existing map, but if the measurements were verified at the spot and also the encroachments were marked by the learned Munsiff Magistrate, who personally inspected the site, such site plan could not have been ignored. 3. Shri Paras Rastogi, learned counsel for the appellant has stated that the first appellate court has committed a grave illegality in holding that the civil court had no jurisdiction to entertain a dispute of the present nature. In the first place, the land even though was recorded in the revenue records as agriculture land, but was actually used for residential purposes. There were pucca constructed houses in both khasra No. 484 and 483 for last many years. Part of the land was being used for commercial purpose, which fact was admitted by the witnesses of the defendants and finding to which effect was recorded by the learned trial court. The trial court was wholly justified in entertaining the suit. Besides, main relief of the suit was demolition of encroachment made by the respondents by constructing wall and only a civil court would have jurisdiction to decree such a suit. If at all the first appellate court held that the civil court would not have jurisdiction, it should have returned the plaint rather than requiring the learned Magistrate to do so. 4. Shri Parag Rastogi, learned counsel for the appellants has argued that even otherwise, the plaintiff was recorded as gair -khatedar of the disputed land, therefore, he could not file any injunction suit of revenue nature as per Section 188 of the Rajasthan Tenancy Act, 1955, which could be filed only by a khatedar. Besides, Section 92A of the Rajasthan Tenancy Act provides for filing of the suit in respect of all or any of his rights conferred by the said Act and not otherwise. Section 251 of the Tenancy Act provides for filing of suit for claiming right of way and other private easement. Sub -section (2) of section 251 inter alia provides that no order passed under Section 251 shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent court of civil jurisdiction. Thus, it is evident that civil courts wields wider powers than the revenue courts. It was argued that Harchand, defendant -respondent was not made a party to the first appeal, whereas he was a party to the suit and, therefore, the appeal filed before the first appellate court was not competent. Learned counsel further argued that the appellant has filed an application under Order 41 Rule 27 CPC on 10.10.2000 in this appeal placing on record the certified copy of duly attested compromise deed showing that respondent -Deep Chand entered into a compromise with Kishore Kumar, grandson of original appellant Lochi Ram, who claimed title in part of disputed land through him only and in that compromise deed it has been accepted by defendant -Deep Chand that the land in dispute in fact belongs to the plaintiffs. The application was allowed on 29.3.2001.;