1. This is a plaintiff's second appeal. The plaintiff and the defendants admittedly belong to the same family and they are recorded as co-tenants in certain plots of land constituting an occupancy holding. The plaintiff alleged that for the convenience of cultivation individual plots were separately held, but that there had been no severance of interest and the plots were still joint, and he went on to allege that the defendants had enclosed plots Nos. 1253 and 1254 with a wall and had built certain constructions apparently in the form of a kothri, as appears from the amin's report and from the plaintiff's evidence on these plots. He accordingly Instituted this suit for a mandatory injunction enjoining the defendants to remove the constructions and for a prohibitory injunction restraining them from doing any act in the future which might alter the character of these plots. The suit was contested by defendants 1, 2, 10, 11 and 12. They pleaded that plot No. 1253/1 was in their exclusive tenancy and the plots Nos. 1253/2 and 1254 had been allotted to them at a partition. They also pleaded among other legal pleas that the suit was not cognizable by the Civil Court. The learned Munsif was of opinion that the suit was cognizable by a Civil Court and he decreed the suit; but on appeal the learned Judge of the lower Appellate Court has accepted the plea of want of jurisdiction and has returned the plaint for presentation to the Revenue Court.
2. The only point which arises in this second appeal is whether the Civil Court had or had not jurisdiction to entertain and try the suit. As I have already said, the two reliefs which were prayed for by the plaintiff were a mandatory injunction and for prohibitory injunction, and learned Counsel for the plaintiff, appellant pleads that, having regard to the character of the suit and the nature of the claim, the Revenue Court was not in a position to afford adequate relief to the plaintiff. My attention has been drawn by learned Counsel for the plaintiff to the unreported case in S.A. No. 940 of Meharban Singh v. Bhola Singh Second Appeal No. 940 of 1936, recently decided by Bajpai J. on 15th December 1938. In that case the plaintiff alleged that he was the tenant in possession of a certain plot and that the defendants had no concern with the aforesaid plot, but at the instigation of the zamindar they had begun to construct a building on it and had cut down some trees. He accordingly sued for demolition of the constructions and for damages on account of the cutting down of the trees and for a perpetual injunction. On behalf of some of the defendants a plea was taken that they had obtained a lease in respect to the plot in suit from the zamindar. Bajpai J. was of opinion that the suit was cognizable by the Civil Court. He observed:.I have come to the conclusion that it was not possible for the plaintiff to have obtained the reliefs claimed by him under Section 99 (i.e. Tenancy Act), nor can it be said that adequate relief could?1 have been granted by the Revenue Court, which, as I said before, could only have given possession and compensation to the plaintiff. The plaintiff in the above state of affairs would have to remain content with simply obtaining possession over the plot with a building standing thereon.
3. The authority which was relied upon by the lower Appellate Court and which is relied upon here by learned Counsel for the defendants is the case in Bhajjan Kewat v. Raghu : AIR1935All544 . There the plaintiffs sued for an injunction to restrain the defendant from interfering with their possession over certain groves. The defence was that the defendant was himself the grove-holder. It was held that the defendant was claiming through a land-holder within the meaning of Section 121, Tenancy Act, that the plaintiffs could have obtained adequate relief in the Revenue Court and that the suit was not cognizable by the Civil Court. Sulaiman C.J. who delivered the judgment, observed:
A suit for a declaration of right as a tenant' during the continuance of a tenancy lies in the Revenue Court under Section 121 of the Act. Under Sub-section (2) of that Section not only the land-holder but any other person claiming to hold through the land-holder can be joined as a party. It is therefore obvious that the present plaintiffs could have brought a suit for a declaration of title in the Revenue Court against the land-holder, impleading the present defendants. No doubt the relief which they could have got would not have been identical' with the relief for injunction which they are claiming in the Civil Court, but in our opinion adequate relief could have been obtained when a declaration of right was secured from the Revenue Court.
4. In that case no mandatory injunction was being sought. In the present case, according to the allegations in the plaint, the parties are co-tenants in the plots in dispute, whereas the defendants plead that plot No. 1253/1 is their exclusive holding and that plots Nos. 1253/2 and 1254 have been allotted to them at a partition between the parties. It is obvious that both the plaintiff and the defendants are claiming through the land-holder, and the question for decision is whether or not it was possible for the plaintiff to obtain adequate relief by a suit in the Revenue Court either under Section 99 or under Section 121, Tenancy Act. It is argued on behalf of the plaintiff-appellant that a suit under Section 99 or a suit under Section 121, Tenancy Act, would not afford him adequate relief inasmuch as the first and main relief for which he is asking is the removal of the constructions which the defendants have set up without any right and without his permission in these joint plots. This relief cannot be granted by the Revenue Court and therefore, says counsel, if it is hold that the Civil Court has no jurisdiction, the plaintiff will be left with, out any remedy as regards these constructions. Learned Counsel for the defendants points out that, if the suit is decreed, the Court will in effect be determining the plaintiff's title to the holding and will substantially be giving him a declaration such as it is the function of the Revenue Court to give. This argument is correct so far as it goes, but the fact remains that the cause of action was the raising of the constructions, and their removal by means of a mandatory injunction, which is the relief sought for, can only be effected through the Civil Court. In my opinion this suit is cognizable by the Civil Court. I accordingly allow the appeal with costs and set aside the decree of the lower Appellate Court which will now proceed to dispose of the appeal according to law. Permission to file an appeal under the Letters Patent is granted.