Strachry, C.J:— The plaintiff in this case claims a declaration of his right to certain trees, which, he alleges, belonged exclusively to one Diwan Mal, through whom he claims; that no other co-sharer has any right to the trees; that the defendants have acquired no right to them by virtue of a partition made by the Revenue Court; that the order for partition by the Revenue Court does not affect the plaintiff's right to the trees, and that the Revenue Court had no power to pass such an order. The Court of first instance dismissed the suit on the preliminary ground that it was not cognizable by a Civil Court. On appeal the lower appellate Court held that the suit was cognizable by a Civil Court, and remanded the case under eetion 562 of the Code of Civil Procedure for trial on the merits. From that order of remand the defendants now appeal. The question is whether the Court of first instance, or the lower appellate Court, was right on the question of jurisdiction. The suit relates to one of three groves forming part of khewat No. 1 in a village Datauli Rangarh. Diwan Mal, through whom the plaintiff claims, was one of the co-sharers in the village, and his share, including the groves, was sold in execution of a decree upon a mortgage, and was re-sold by the purchaser to the plaintiff in June 1898. The three groves in khewat No. 1 are alleged by the plaintiff to have been planted by Diwan Mal's father. The defendants are co-sharers in the same village. Prior to the plaintiff's purchase the defendants applied under section 108 of the North-Western Provinces Land Revenue Act (No. XIX of 1873) for perfect partition of their fractional share in khewat No. 1 into a separate mahal. In their application they prayed for partition of their share, of 2 biswas out of 6 biswas odd constituting khewat No. 1, specifying the area and the Government revenue payable “together with all rights appertaining thereto “of abadi and ghair abadi,”—that is to say, everything appertaining to the above land. Diwn Mal did not join in the application for partition. He was made a party to the partition proceedings with, other co-shares. No objection to the partition was made by Diwan Mal under sections 112 and 113 of the Act on or before the day specified in the notice served on the co-sharers under section 111. But on the 14th of April, 1898, the Assistant Collector passed an order, which referred expressly to the “groves belonging to the proprietors,” details of which were given. The material portion of the order is as follows:—“With respect to the grove situated in khewat No. 1, Tula Mal and Diwan Mal at this stage raise objection to the following effect:—‘The grove has been planted by as and it does not belong to all the proprietors of khewat No. 1.’ Muhammad Sadiq for himself and other co-sharers does not admit this. As Tula Mal and Diwan Mal raise no objection under section 113, therefore this grove of the proprietors of khewat No. 1 will be partitioned according to the shares.” Accordingly khewat No. 1 was divided among the co-sharers, and among other plots, Nos. and forming part of one of the groves, No. 143, were allotted to the defendants, with the trees standing upon them. This led to the institution of the present suit. The plaintiff does not claim any of the land, as distinguished from the trees, which has been allotted on the partition to the defendants. He does not dispute their right to the land forming Nos. and but he contends that the Revenue Court had no power to allot to the defendants the trees standing on those plots which, he says, belonged exclusively to Diwan Mal.

Now as this is a suit for a declaration of the plaintiff's title to property—a suit of a Civil nature—the Civil Courts have, under section 11 of the Code of Civil Procedure, jurisdiction to try it, unless it can be shown to be a suit of which their cognizance is barred by any enactment. The enactment which the defendants contend bars the cognizance of the suit by the Civil Court is section 241 of the North-Western Provinoes Land Revenue Act (No. XIX of 1873), which provides that “no Civil Court shall exercise jurisdiction over any of the following matters.” Among the following matters, clause (f) specifies “the distribution of the land or allotment of the revenue of a mahal by partition;” and the last paragraph of the section provides that “in all the above cases jurisdiction shall rest with the revenue authorities alone.” The enactment in clause (f) is not merely that a Civil Court is not to alter the distribution of the land made on partition, but that it is not to “exercise any jurisdiction over the matter” such distribution of the land. That would, I think, exclude a suit in a Civil Court which sought a declaration impugning the distribution which by partition the Revenue authorities had effected. The object of such a declaration could only be to obtain in some manner an alteration in the distribution that had been made. If such a declaration were binding upon the Revenue Court so as to compel the Revenue Court to alter the distribution, it would clearly be an exercise of jurisdiction in the matter of the distribution. If the declaration were not binding on the Revenue Court, it would be a mere brutum fulmen. Now the object of this suit is undoubtedly to establish the plaintiff's ownership and possession in respect of property which the Revenue authorities in dividing khewat No. 1 by partition have allotted to the defendants. The plaintiff meets this plea, first, by the argument that section 241(f) refers only to the distribution of the “land” of a mahal by partition, and says nothing about trees; that the sections of Chapter IV relating to partition also say nothing about trees; that consequently the Revenue Court had no jurisdiction to partition trees growing on the land which it divided, and that as regards trees therefore section 241(f) does not exclude the jurisdiction of the Civil Courts. In my opinion there is no force in this argument. As a matter of general principle, I think, that, primâ facie, provisions in an enactment, such as the Land Revenue Act, relating to land, would, in the absence of anything in the context to the contrary, apply to the trees growing upon the land; and when the sections of the Act relating to partition are examined, I think that they clearly include a power in the Revenue Courts to partition trees as well as the land on which they grow. Sections 108 and 122 show that what is partitioned off is a share or shares, and that may clearly include trees as well as land which, prior to the partition, formed the joint property of the co-sharers. Section 124 makes special provision with regard to buildings. Section 126 provides that tanks, wells, water-courses and embankments shall be considered as attached to the land, for the benefit of which they were originally made. There was no necessity for any provision that trees should be considered as attached to the land on which they grow. Section 127 provides that certain things, namely, places of worship and burial-grounds, which, previous to the partition, were held in common, are, in the absence of express agreement among the parties, not to be divided but still held in common. There is no similar provision with regard to trees, and the inference is that the trees like the land would be divided, and would not continue to be joint property of the co-sharers after the partition of the land. It has been suggested that where, prior to the partition, both lands and trees have been the joint property of the co-sharers, the business of the Revenue authorities making the partition is to divide the land into separate paits, but to leave the trees standing upon those separate parts the joint property of the co-parcenary body just as they were before; the result of the partition ultimately being a number of separate plots with joint trees upon them. Such a result would, to a conniderable extent, defeat the object of the co-sharers in seeking partition; and I can see nothing in the Act to justify the view that it is what the Legislature intended. This conclusion is supported by the judgment of my brothers Knox and Aikman in Second Appeal No. 518 of 1891, decided on the 19th of July, 1893. In the present case the application for partition distinctly shows that what was asked for was a partition both of the land and of “everything appertaining to the above land,” which would include trees. I think that when the Revenue authorities allotted to the defendants the land forming Nos. and they must be understood to have also awarded to them the trees standing on those lands as part thereof, and that they had jurisdiction to do so.

The second contention by which the plaintiff seeks to avoid the effect of section 241(f) requires careful consideration, for it has the authority of a previous decision of this Court in its favour. The argument is that section 241(f) does not prohibit a Civil Court from trying any suit, the object of which is to determine a question of title or proprietary right to land, and that a Civil Court may exercise jurisdiction in such a suit, even if this involves the exercise of jurisdiction in the matter of the distribution of the land of a mahal made on partition by the Revenue authorities and the allotment of its revenue. At first sight, that certainly is a startling contention, because it seems directly opposed to the terms of section 241(f). According to that section, the test is whether the Civil Court is exercising jurisdiction over the matter of the distribution of the land by partition. Here the partition of the land was made by the Revenue authorities, and by it certain lands and trees were awarded to the defendants. A suit in the Civil Court, the object of which is expressly stated to be a declaration that the defendant, have no right to what has been allotted to them by the partitions and that the Revenue Court had no power to make its order seems obviously within the prohibition stated in the section. So far as section 241 is concerned, it does not seem to be material whether the object of the suit is to determine a question of title or not. The test is not the nature of the questions which may be raised in the suit, but the nature of the matter over which the Court is asked to exercise jurisdiction, that is, in the present case, the distribution of the land by partition. Section 113 of the Act has been referred to as qualifying section 241(f), and as showing that where a question of title or proprietary right is raised, a Civil Court has jurisdiction. I do not think that section 113 qualifies section 241(f) in the slightest degree. The effect of section 113 is that where an objection to the partition raising a question of title or proprietary right is made by a co-sharer on or before the day specified in the notice served under section 111, the Collector or the Assistant: Collector may either decline to grant the application for partition until the question in dispute has been determined by a competent Court, or may, himself proceed to inquire into the merits of the objection as a Civil Court according to the procedure prescribed by the Code of Civil Procedure for civil suits; and in the latter case his decision declaring the rights of the parties is under section 114 open to appeal to the District Judge or the High Court. But a question of title raised under section 113 is raised before any order for partition is made and the land distributed, and if the Collector or Assistant Collector leaves the question to be determined by a competent Civil Court, he must in the meantime, “decline to grant the application” for partition. If he adopts the alternative course of proceeding to inquire into the merits of the objection, then upon an appeal being made, the District Court or High Court may under section 114 direct a stay of the partition pending the decision of the appeal. In other words, until the Civil Court decides the matter, either as a Court, of first instance or as a Court of appeal, the partition is not further proceeded with, and is only resumed after the Civil Court's decision. In such a case there is nothing in the Civil Court's determination of the question of title in the least inconsistent with section 241(f), which only prohibits the exercise of jurisdiction by a Civil Court in so far as it is an exercise of jurisdiction over the matter of the distribution of the land. In the present case the suit is brought after the partition has been completed, and its object is clearly to interfere with the distribution by asserting a right in the plaintiff to property which has been allotted to the defendants. So far, therefore, section 241(f) appears to be an answer to the suit. But the plaintiff relies on the judgment in Muhammad Abdul Karim v. Muhammad Shadi Khan , on the authority of which the lower appellate Court has made its order of remand under section 562 of the Code. That case is undoubtedly in point. So far as I understand the decision, it is based on the view that, inasmuch as in regard to questions of title arising in partition proceedings under section 113 of the Act on or before the day specified in the notice, the Civil Court is expressly given either original or appellate jurisdiction, and inasmuch as there is nothing in the remaining sections about partition expressly barring the determination by the Civil Court of such question arising after the day specified, or to confine the final determination of such questions to the Commissioner under section 132; therefore under section 11 of the Code the Civil Courts have jurisdiction to decide such questions, notwithstanding section 241(f), even in a suit brought after the distribution of the land by partition, and the Commissioner in appeal under section 132 has no jurisdiction to adjudicate upon such questions. With regard to section 241(f) there is the following passage at page 433 of the report:—“It is true that in one sense the determination of title by Civil Court may effect the distribution of land of a mahal by partition, but it would affect such distribution so far only as the distribution of the land depended on title, but it would not affect the distribution on all or any of the various questions or considerations which the Assistant Collector or Collector would have to deal with in making the partition. In our opinion section 241 of the Act does not bar the jurisdiction of the Civil Court to adjudicate upon questions of title or proprietary right in cases such as that under consideration.” I am unable to agree with that view for two reasons. The first is, that it appears to ignore the extremely general terms in which the prohibition of section 241(f) is expressed. The second is, that it overlooks the reason why questions of title, which are raised under sections 112 and 113 on or before the day specified in the notice, fall within the original or appellate jurisdiction of the Civil Courts. The reason is, that in such cases the adjudication by the Civil Court takes place before the completion of the partition, and in fact before anything is done in the partition, since, as I have already pointed out, the Collector is bound, where he leaves the matter to a Civil Court to decide, to decline to grant the application for partition, and where he elects to decide it himself, the District Judge or the High Court may direct a stay of the partition pending an appeal from his decision. The jurisdiction of the Civil Court under such circumstances, in dealing with questions of title, does not produce the practical administrative inconvenience involved by interference with the distribution of land and allotment of the Government revenue of the mahal which the completed partition has effected. The Legislature intended to give to co-sharers raising questions of title a limited opportunity and a limited time for having such question determined by a Civil Court, and in effect provided that such questions might only be so determined if raised at such a time as to avoid the inconvenience to which I have referred arising where interference with an actually completed distribution is sought. The opposite view appears to me to involve all sorts of difficulties and anomalies. It involves this, that a co-sharer may entirely ignore sections 112 and 113 of the Act; may raise no objection involving a question of title on or before the day specified in the notice; may wait even until after an order for partition has been made and the land divided in accordance with the order, and may then upset the whole arrangements of the partition which the Revenue Court has effected, and may seek to recover from the other co-sharers what the Revenue Court has so allotted to them upon some question of title as to which up to that moment he has been absolutely silent. In that way he may disturb, not merely the possession which the Revenue Court has awarded to the other co-sharers, but the arrangements in respect of the Government revenue which a completed partition, also involves. Whether after the time specified in the notice, and after the time within which section 113 would be applicable, a Civil Court has jurisdiction to entertain a suit arising out of an application for partition, and raising a question of title prior to any actual distribution of the land by partition; whether such a suit would fall within the prohibition of section 241(f), or whether questions of such a kind raised at such a time can only be dealt with by the Revenue Courts, are matters which it is not necessary to decide in this case and upon which I express no opinion. What we have here to deal with is a suit raising such questions, which were never raised under section 113 of the Act, and which is instituted after the distribution of the land by partition has been completed and with a view to disturbing that distribution. For these reasons I cannot agree with the judgment in Muhammad Abdul Karim v. Muhammad Sadi Khan, and I hold that if the exercise of jurisdiction by a Civil Court would disturb or in any way affect the distribution of land made by partition, it is barred by section 241(f), no matter whether questions of title or any other kind of questions are raised in the suit. The decision in that case is irreconcilable with that in Hardeo Singh v. Narpat Singh . It was there held that if no objection has been made under section 113 by a co-sharer in possession before the day specified in the notice, and where section 113 therefore does not come into operation, section 241(f) prohibits the Civil Courts from exercising any jurisdiction in the matter of the distribution of land or the allotment of revenue of the mahal by partition. So far as this goes I agree with it, though I should put it unconditionally, and should say that the effect of section 241(f) is, absolutely to prohibit the Civil Courts from exercising any jurisdiction in the matter specified. But I infer from the last paragraph of page 77 of the report read with the reference to the case of Nasrat-ullah v. Majib-ullah and with other expressions, that the learned Judges held that if, in fact, an objection raising a question of title was made on or before the day specified in the notice, and if the Assistant Collector, in disregard of the provisions of section 113, did not deal with the question in either of the two ways indicated in that section, in that case the question of title might be entertained by the Civil Court after the completion of the partition, and even if the decision had the effect of interfering with the distribution, notwithstanding section 241(f). When the case of Nasrat-ullah v. Majib-ullah is examined, that impression is confirmed. The second paragraph of the head-note in the report of that case is as follows:—“If a Revenue Court in disposing of an application for partition determines a question of title? it must in so doing act in conformity with the provisions of section 113 of Act No. XIX of 1873. If it disposes of the application otherwise than in the manner comtemplated by section 113, its proceeding are ultra vires, and will not debar the parties from suing in a Civil Court for a declaration of their right to partition.” Now there a partition had actually been made by the Revenue Court as regards part of the property in suit, so that as regards that part, the Civil Court's decision would have the effect of disturbing the distribution made by partition. On the question of title being raised under section 113, the Collector did not, as he should have done, adopt either of the two courses open to him under that section. I cannot agree that the fact of the Assistant Collector or the Collector disregarding the provisions of section 113 would give to a Civil Court jurisdiction over the matter of the distribution of the land by partition notwithstanding section 241(f). The only reason suggested for such a view is stated at pages 312 and 313 of the report. It is that “the Collector or Assistant Collector is not a Court of competent jurisdiction to decide questions of title unless he proceeds in the manner specified in section 113,” and that the course adopted by the Collector precluded the plaintiff from questioning his decision by appeal to the District-judge or to the High Court in other words, that the exercise of jurisdiction in the suit by the Civil Court, notwithatstanding section 241(f), was necessary in order to prevent the plaintiff from, being deprived of the recourse to the Civil Court which, under section 113, he is entitled to have. I do not think that this view is correct. It appears to me that it was open to the plaintiff in that case to appeal either from any order formally refusing to take action under section 113, or, in the absence of any such order, from the final order for partition under section 132 to the Commissioner of the Division. In such an appeal the disregard by the first Court of the provisions of section 113 would be a good ground of objection to the order passed, and under section 250 it would be open to the appellate Court to reverso or modify the order; upon which the first Court would be relegated to the position in which it stood at the time when it should have taken action under section 113, and would then have to take such action, with the result that the plaintiff would obtain the decision on the question of title of a Civil Court either as a Court of first instance or as a Court of appeal. Further, there are wide powers of revision given to the Board of Revenue by section 253, and consequently the Act itself provides machinery by which the error of the Assistant Collector or the Collector might have been set right and the plaintiff's remedy in the Civil Court secured to him without involving any contravention of section 241. But, however this may be, the neglect or irregularity of the Assistant Collector or the Collector in regard to section 113, or any other section, could not give the Civil Court a jurisdiction expressly excluded by section 241(f) unless, indeed, the whole law relating to partition were so entirely ignored or violated by the Revenue authorities that it could reasonably be said that there had been no partition and no distribution of land within the meaning of the Act and of section 241 at all. I cannot agree with the judgments in Hardeo Singh v. Narpat Singh and Nasrat-ullah v. Majibullah, so far as this point is concerned. For these reasons I think that on the question of jurisdiction the Court of first instance was light; and the lower appellate Court wrong. I would allow this appeal, set aside the order of remand, and restore the decree of the first Court dismissing the suit, with costs throughout.

Knox, J.:— I have no doubt whatever that clause (f) of section 241 of the North-Western Provinces Land Revenue Act, 1873 does bar the suit as brought by the plaintiff-respondent before us. The result of his claim, if successful, would, if it could have any operative effect, affect, and seriously affect, both the distribution of the land and the allotment of the revenue of the mahal as sanctioned and confirmed by the Collector of Saharanpur in 1898. I am unable to accede to the contention of the learned vakil for the respondent when he seeks to separate the jurisdiction of the Revenue Court as to the trees standing on the land from its jurisdiction as to the land on which they, stand. He admits that this contention is not supported by any authority. It is in direct Conflict with all I know of the practice and procedure in partition cases. The Revenue Courts, when they proceed to partition a mahal, take knowledge of all the properties, and the rights to the properties comprised in a mahal, of whatever nature those may be, and deal with them free of all interference from any outside authority, and the North-Western Provinces Land Revenue Act seems to me to give them full warrant for such action on their part. The difficulties and anomalies which would follow if we accepted the view laid down is Muhammad Abdul Karim v. Muhammad Shadi Khan have been very carefully and fully pointed out by the learned Chief Justice, and I do not purpose to go over that ground. Section 113 of the North-Western Provinces. Land Revenue Act gives ample opportunity to co-sharers recorded and in possession to have their claims judicially decided before partition begins. We have not to deal with the case, and I do not say anything about it, if such a co-sharer is from any cause left out of the partition proceedings, whether from want of notice or otherwise. But a co-sharer who has received notice and does not avail himself of the opportunity given by section 113, has only his laches to thank when be finds himself debarred, as I hold he is, from afterwards raising any objections which he could have raised, and should have raised, before. To the case of Nasrat-ullah v. Majib-ullah I was myself a party, and I am bound to say that upon giving it fuller consideration I am not prepared to adhere, and do not adhere, to the view laid down in pages and 313. As regards this, I fully agree with, what has been said by the learned Chief Justice. For these reasons and the reasons given by him I agree in the order proposed.

Blair, J.:— I agree in the order proposed for the reasons given by the Chief Justice and my brother Knox.

Banerji, J.:— I also am of opinion that the cognizance by the Civil Court of a suit like the present is forbidden by section 241(f) of Act No. XIX of 1873. That a Revenue Court effecting a partition of a mahal under Chapter IV of that Act can partition trees standing on the land under partition, appears from the scope of the Chapter as pointed out in detail by the learned Chief Justice. That being so, “the distribution of the land of a mahal” referred to in clause (f) includes in my opinion, an allotment of the trees standing on that, land. The trees which are in question in this suit having been partitioned and allotted to the share of the defendents, the Court of first instance rightly held that section 241(f) bars the present suit. The suit is, it is true, one for a declaration of right, but it relates to the distribution made by partition, and thus falls within the purview of clause (f) of section 241. The opinion of the lower appellate Court to the contrary has, no doubt, the support of the ruling of this Court in Muhammad Abdul Karim v. Muhammad Shadi Khan ; but, with all deference, I am unable to agree with the view adopted in that case. In that case it was substantially held that section 241(f) does not bar a suit in the Civil Court to establish title to the land allotted by partition, if the question of title was not raised within the time specified in the notice issued under section 111, and was not determined under section 113 and the following sections. That, in my opinion, would he reading into clause (f) of section 241 a limitation which is not to be found in it. It seems to me that what the Legislature declares is that after a partition has been made in accordance with the provisions of the Land Revenue Act, and has been confirmed, it is not open to the parties to the partition proceedings to re-open the partition by a suit in the Civil Court. If a party wishes to raise a question of title, he may do so under section 112, and have it determined in the manner provided for in section 113. Whether, before the completion of partition, he can have it determined by the institution of a suit in the Civil Court, is a question which it is not necessary to decide in this case. But it, is clear that the proper time for raising a question of title is before the completion of the partition proceedings. If a party does not avail himself of the opportunity which he has before the completion of partition to have his title determined, it seems that the Legislature by enacting section 241(f) intended that he should be debarred from raising afterwards any question which would have the effect of disturbing the partition to which he was a party, and I cannot concur with the rulings in which a contrary view was held. For the above reasons I agree in the order proposed by the learned Chief Justice.

Aikman, J.:— I also agree with the order proposed by the learned Chief Justice, and I entirely concur in all that he has said. It appears to me that the intention of the legislature was that all questions of title should be decided before the work of partition was actually entered upon. I have long doubted the propriety of the decision in the case Muhammad Abdul Karim v. Muhammad Shadi Khan and I am glad it is now authoritatively overruled.

Appeal decreed.