Verma, J.:— This is a defendant's appeal arising out of a suit, brought by the respondent in the court of the Munsif of Pilibhit, for the partition of a grove situated in a plot No. 710/2. The Munsif dismissed the suit, but the lower appellate court has set aside the decree and has remanded the suit.
Among the pleas raised by the defendant in his written statement was one to the effect that the suit was not cognizable by the civil court. He further alleged that, in any event, the plaintiff had no right or title to the grove in suit. The Munsif held that the civil court had no jurisdiction to entertain the suit. In spite this, he went on to record a finding on the merits and held that the defendant's allegation, that the plaintiff had no right title to the grove in suit, was correct. The learned Judge of he court below has rightly pointed out that the Munsif, being of the opinion that the civil court had no jurisdiction to entertain the suit, ought not to have tried any other issue and should have returned the plaint to the plaintiff for presentation to the proper Court. He differed from the finding of the Munsif that the suit as not cognizable by the civil court. Having held that the Civil court could entertain the suit, he passed an order of remand with the direction that the question of title be tried afresh as, an the learned Judge's opinion, the finding of the learned Munsif as vitiated by certain errors of law.
The basis of the learned Judge's finding that the suit was ognizable by the civil court is—as it had to be—that the parties ??? “grove-holders” in respect of the grove in question. It has been contended before us by the appellant's learned counsel that, on the admitted facts, the parties to this suit could not possibly be grove-holders.
A grove-holder is defined in section 205 of the U.P Tenancy Act (XVII of 1939) as a person who has planted a grove (a) on land which was let or granted to him by a landlord, for the purpose of planting a grove; or (b) on land which he held as a tenant other than as a sub-tenant, a permanent tenure-holder or a fixed-rate tenant,…. provided the planting of grove on such land was done with the permission—written oral according to circumstances which need not be specified— the landlord or in accordance with local custom entitling the person to plant a grove on the land held by him as a tenant, he first requisite, thus, is that the person claiming to be a grove-holder must have planted a grove on land of one of the two funds mentioned in the section. By virtue of clauses (c) and) of section 206, the transferees and heirs of such planters of ??? will also become grove-holders.
Learned counsel for the appellant has contended that, in view the facts admitted by the plaintiff himself, and having regard the definition quoted above, the finding that the parties to suit are grove-holders must be held to be wrong. It appears no oral evidence was produced in this case. The parties were, however, examined under order X, rule 2 of the Code of Civil Procedure. The statement made by the plaintiff has been laid before us. The relevant portions are as follows:
“The plot in dispute has been in our possession for 30 or 32 years. Kalian and I took this bagh on rent (lagan par liya tha). The rent was Rs. 7. Each of the parties has been paying Rs. 3-8-0. We took it on rem from Hadi Yar Khan zamindar… we used to pay rent and used to obtain receipts. There was a grove already in existence when we took the number in dispute on rent…. This is a mango grove…. There are 39 trees now in existence in the number in dispute. The rest of the land is not cultivated. The number in dispute was full of trees when it was taken on rent. There were 40 trees even when we took it.”
The argument put forward on behalf of the appellant is that it is abundantly clear from these statements of the plain till himself that no land was ever let or granted to him or to the defendant for the purpose of planting a grove. Neither of them could plant or has planted any grove on such land. It is further clear that neither the plaintiff nor the defendant ever planted a grove on land held by either of them as a tenant. It is obvious that, on the plaintiff's own case, what was taken by him and the defendant from the landlord—we, of course, express no opinion as to the truth or falsity of this allegation—was an existing grove and that it was Agreed that rent at the rate of Rs. 7 per annum would be paid. It is that very grove which according to the plaintiff, is still in the possession of the parties. The only change that has taken place, according to the plaintiff's statement is that one tree has disappeared. It appears to us that, in these circumstances, the parties cannot be held to be grove-holders as defined in the Tenancy Act. Their status can be only that of a tenant. It has been suggested by the appellant's learned counter that, if the plaintiff's allegations of fact are true, the parties are non-occupancy tenants and reference has been made to section 31 of the Act. It is however, not necessary for us to determined the class of tenants to which the parties belong, if the facts state by the plaintiff are accepted. It is sufficient for the purposes the question that arises before us that, on the allegations of to plaintiff himself, they can only be tenants and not grove-holder it is not denied that a suit for the division of a tenant holding is a suit of the nature specified in the fourth schedule the Tenancy Act. That being so, the civil court cannot take cognizance of such a suit. Thus, the present suit, if it is maintain able (a question on which we express no opinion), can lie only in the revenue court. We are, therefore, unable to uphold the finding of the lower appellate court that the suit was cognizable by the civil court. We agree with the learned Judge, however—as we have already stated—that the Munsif should not have recorded any finding on issue No. 2 which related to the tide of the plaintiff. We also agree with him that, instead of dismissing the suit, the Munsif should have returned the plaint to the plaintiff for presentation to the proper court.
For the reasons given above, we allow this appeal and set aside the order of the lower appellate court. We direct the plaint to be returned to the plaintiff for presentation to the revenue court. This will be done by the court of first instance as soon as the record is received in that court.
As we have pointed out above, the court in which the plaint will now be filed—if and when it is filed—should disregard the finding of the Munsif on issue No. 2.
The appellant is entitled to his costs throughout.