1. This is a plaintiff's application in revision from an order of the District Judge of Kumaun. A suit was filed by the plaintiff in the Court of the Small Cause Court Judge, who had the jurisdiction of an Additional Assistant Collector in revenue cases also. The suit was for possession of a house and a court yard attached thereto standing on a plot of land which was alleged to be the plaintiff's holding. The plaintiff suggested that five years before the suit 'he was in joint possession with the defendant, but when a separation took place the defendant did not give him possession of the same. The defendant's case was that the house had been built by his ancestors and had been in the possession of his family for generations.
2. On the pleadings the first Court framed an issue whether the suit was cognizable by the civil Court or not. It came to the conclusion that it was cognizable by the civil Court, and recorded a finding to that effect. The Court imagined that the finding would be appealable, and accordingly stayed proceedings pending the filing of the appeal. The defendant appealed to the District Judge, who entertained the appeal and came to the conclusion that the suit was not triable by the civil Court, and sent the record back to the first Court with directions to proceed according to law, which implied that the plaint should be returned for presentation to the proper Court.
3. There is no doubt that the first Court treated the suit as having been filed on the civil side, and the District Judge treated the appeal before him as an appeal from an order recording a finding on the question of jurisdiction.
4. It cannot be doubted that in an ordinary civil suit no appeal, not even a revision, lies from a mere finding on the question of jurisdiction. The special rules and orders made by Government which relate to the Kumaun Division however provide an appeal from a finding on the question or issue to the effect whether the case is cognizable by a civil or by a Revenue Court: Rule 4(a) under the Tenancy Rules of 1918. But the provisions in Rule 4 (b) make it clear that the rule applies to Revenue Courts and not to civil Courts.
5. Under Rules 3 and 9, read with Schedule (1), serial No. 15, suits in respect of any matter relating to a holding are cognizable by a Revenue Court only. It is therefore quite clear that unless the present claim can be regarded as one in respect of any matter relating to a holding, it would not be cognizable by the Revenue Court.
6. Admittedly the house in question, along with its court-yard, was more than five years old and appears to have been built long ago, The suit was confined to the house and the court-yard attached to it, and not to any other part of the plot used for agricultural purposes. The plaint does not suggest that the property claimed is being used for any such agricultural purposes. No doubt the plaintiff's allegation was that this was a part of his khaikari, that is, occupancy holding. But when the landholder allowed a building to be put upon the land, the nature and character of the holding was changed and it ceased to be land used or held for agricultural purposes. In these circumstances, it is very difficult to hold that the site is still a holding within the meaning of the Kumaun Rules.
7. We may in this connexion point out that in Jalesar Sahu v. Baj Mangal A.I.R. 1921 All. 168 it was laid down with regard to a grove which had been planted over an occupancy holding that the character of the land was changed and the site ceased to be a holding after the grove had come into existence. We think that the analogy of that case applies. It is now impossible to regard the site as a holding. The suit for possession of the house and the court-yard appertaining to it is therefore not in respect of any matter relating to a holding, but is a suit of a civil nature. We may also point out that a contrary interpretation put on the rule would compel a tenant who has been in occupation of a house for generations to sue within six months of his losing possession, whereas if the site has ceased to be a holding, he can sue the trespasser within 12 years in the civil Court.
8. In our opinion, the view taken by the trial Court was correct and the suit was cognizable by the civil Court. The District Judge has erred in holding that this suit was not cognizable by the civil Court. We accordingly allow this revision and set aside the order passed in appeal. The finding of the trial Court is in reality, not an appealable order at all, but an expression of opinion on an issue in the case. Costs of this revision will abide the result.