1. This is a second appeal by the plaintiff's in a suit for ejectment under Section 180, New Tenancy Act (17 of 1939). The dispute in this case relates to a small plot numbered 3647/1 having an area of 1 bigha 3 biswas. This plot is contiguous to another plot numbered 3647/2 which has an area of 2 bighas and 9 biswas. These two plots are sub-divisions of a large plot which at the old settlement was numbered 4019. The two plots are situated in the same mohal but it appears that the mohal was partitioned 15 years or so before the institution of the suit and at that partition the plot in dispute, i. e., 3647/1, was allotted to the plaintiffs, whereas the other plot 3647/2 fell within the share of the defendant. The plaintiffs and the defendant, who is the respondent in this Court, are admittedly cosharers in the mohal. The plaintiffs' case was that they had planted a grove in the plot in dispute some ten years before the institution of the suit but after some years the defendant had taken wrongful possession of the plot and on this simple allegation they sued to eject him under Section 180, New Tenancy Act, 17 of 1939.
2. The defendant-respondent raised two main pleas in his written statement, firstly, that he was in adverse proprietary possession of the plot in dispute for more than twelve years and secondly, that he was a grove holder of the plot in dispute with the permission of the plaintiffs. It will be noticed at once that these two pleas are mutually destructive of each other. It may be mentioned here that the defendant-respondent also pleaded in his written statement that the suit was not cognizable by the revenue Court because it related to grove land. Even this plea does not appear to have any real foundation, but the fact remains that it was raised in the written statement and an issue was framed by the Court upon it. With regard to the first plea that the defendant-respondent was in adverse proprietary possession of the plot in dispute for more than-12 years the learned Assistant Collector who tried the suit framed an issue and under the provisions of Section 286, New Tenancy Act, submitted the record to the civil Court for the decision of that issue. The plea of proprietary right raised by the defendant respondent was obviously quite inconsistent with his other plea that he was a grove holder with the permission of the plaintiffs and was consequently clearly untenable and it may be safely presumed that it was intended solely to oust the jurisdiction of the revenue Court. If these points had been taken into consideration by the learned Assistant Collector, he might well have refused to frame an issue on the plea of proprietary right and to submit it for the decision of the civil Court because Expln. I to Sub-section (1) of Section 286 clearly provides:
A plea of proprietary right which is clearly untenable and intended solely to oust the jurisdiction of the revenue Courts shall not be deemed to raise a question of proprietary right within the meaning of this section.
3. When the matter came up for hearing before the civil Court the defendant-respondent's counsel made a statement to the effect that it was not the defendant-respondent's case that he was in adverse proprietary possession of the land in dispute and that all that he claimed was that he was a grove-holder with the permission of the plaintiffs. Thereupon the civil Court had no option but to decide the issue framed on the question of proprietary right against the defendant-respondent and to return the record to the revenue Court. The learned Assistant Collector decreed the plaintiffs' suit holding that the grove standing on the land in suit had been planted by the plaintiffs and that the defendant-respondent had taken wrongful possession of the grove only seven years before the institution of the suit. On the question of jurisdiction also the learned Assistant Collector held that the suit was clearly cognizable by the revenue Court. From that decree the defendant-respondent went up in appeal to the District Judge. It is important to note that in his memorandum of appeal he again raised the question of jurisdiction in the third ground of appeal which runs as follows: 'That the lower Court had no jurisdiction to hear the suit'. It may also be noted that at the end of the memorandum of appeal the defendant-respondent clearly stated that he was filing an appeal in the Court of the District Judge for two reasons: firstly because an issue had. been framed in the case on the question of proprietary right and had been submitted for decision to the civil Court and secondly, because a question of jurisdiction was involved. The appeal was heard by the learned Additional Civil Judge to whom it was transferred by the District Judge. The learned Additional Civil Judge allowed the appeal and dismissed the plaintiffs' suit holding that the grove existing on the plot in dispute had been planted by the defendant-respondent more than-12 years before the institution of the suit with the permission of the plaintiffs-appellants. As that finding was enough for the disposal of the appeal and the dismissal of the plaintiffs' suit, the learned Additional Civil Judge did not consider the question of jurisdiction raised in the memorandum of appeal. From this decree of the learned Additional Civil Judge the plaintiffs have come up in second appeal to this Court.
4. The first question for consideration is whether the finding of fact arrived at by the lower appellate Court is sufficient for the dismissal of the plaintiffs' suit. The answer is obviously in the affirmative. If the grove existing on the plot in dispute was planted by the defendant with the permission of the plaintiffs more than 12 years before the institution of the suit, it is obvious that the plaintiffs had no right to eject the defendant, respondent under Section 180 of the New Tenancy Act, 17 of 1939. Learned Counsel for the appellants tried to argue that this finding was vitiated by the fact that the learned Additional Civil Judge had not considered the evidence produced on behalf of the plaintiffs-appellants at all and that the case had not been approached by the lower appellate Court from the proper point of view. The judgment of the lower appellate Court has been read at length by the learned Counsel for the appellants and he has made full comments upon it, but I do not think that it supports his contention. I think the lower appellate Court has clearly found upon a consideration of the evidence on the record that the grove existing on the land in dispute was planted by the defendant-respondent with the permission of the plaintiffs more than 12 years before the suit. The finding of fact arrived at by the lower appellate Court is binding upon this Court and the appeal cannot, therefore, succeed. Learned Counsel for the appellants has, however, strongly contended that in this case the lower appellate Court had no jurisdiction to hear the appeal. The argument is that there was no genuine question of proprietary right involved at all in the suit, and further that the issue framed upon the plea raised by the defendant-respondent was not really decided by the civil Court in view of the fact that the defendant-respondent's counsel made a statement that it was not the defendant-respondent's case that he was in adverse proprietary possession of the plot in dispute. Sub-section (4) of Section 286 runs as follows:
An appeal from a decree of a Revenue Court passed in a suit in which, an issue involving a question of proprietary right has been decided by a civil Court under Sub-section (2) shall lie to the civil Court which having regard to the valuation of the suit, has jurisdiction to hear appeals from the Court to which the issue of proprietary title has been referred.
5. I am inclined to hold that the contention of the learned Counsel for the appellants has great force in it and if it stood alone I would have allowed it to prevail and would not have hesitated in holding in the present case that the plea of proprietary right raised by the defendant-respondent in this case was clearly untenable within the meaning of Expln. I to Sub-section (1) of Section 286 and that the issue framed by the revenue Court on that plea and submitted to the civil Court was never really decided by the civil Court so that there was no right of appeal to the civil Court as provided by Sub-section (4) of Section 286. It has, however, been pointed out by learned Counsel for the defendant-respondent that in the present case a question of jurisdiction was raised and that question was also in issue in appeal and hence the appeal from the decree of the learned Assistant Collector in this case rightly lay to the civil Court under Section 265, Sub-section (3) of the Act which runs as follows:
An appeal shall lie to the District Judge from the decree of an assistant collector of the first class or of a collector in all suits, in which a question of jurisdiction has been decided and is in issue in the appeal.
6. This contention of learned Counsel for the defendant respondent is obviously sound and must prevail. It is noticeable that the Legislature has made a clear distinction between a question of jurisdiction and a question of proprietary right. With regard to the latter the Legislature has enacted Expln. I to Section 286 of the Act in which it is laid down that the question of proprietary right raised by a party should not be clearly untenable. No such restriction has been placed upon a party raising the question of jurisdiction. I am inclined to hold that the question of jurisdiction raised in this case had very little or no foundation in law, but the fact remains that a question of jurisdiction was raised and it was decided by the trial Court and was in issue in the appeal also. All the requirements of Sub-section (3) of Section 265 were, therefore, satisfied and it cannot but be held that an appeal lay to the civil Court. The result, therefore, is that I dismiss this appeal with costs. Leave to appeal by way of letters patent is refused.