Grimwood Mears, C.J. and Stuart, J.
1. The facts of the suit, out of which this appeal arises, are these. The plaintiff, Ganpat Pnnde, instituted a suit, in the court of the Munsif of Muhammadabd, on the allegation that he was the owner and possessor of a certain grove in the village Ohak Raham Ali. He stated that during the year 1916 the defendants had erected a shed in the grove for the purpose of their residence while plague was raging in the village and that, owing to the kindling of tires by the defendants dangerously near the trees, some five trees in his grove had been partly burnt down, and that, subsequently, the good wood of these trees, which had been left intact by the fire, had been appropriated by the defendants. Ho sued accordingly for the following relief; (we take this from the. translation of his plaint):
That his right may be established, and it may be declared that the five burnt trees in grove No. 57/3, comprising 8 biswas 4 dhurs, together with other in Chak Raham Ali, pargana Muhammadabad, have been possessed by the plaintiff from of old, and that the defendants may be prohibited from offering any obstruction in future; (2), that Rs. 30, price of the wood appropriated by the defendants, and (3), Rs. 120 on account of damages for the trees burnt, may be awarded against the defendants.
3. The defendants replied, in effect, that they were the zamindars of the village, the village, that the plaintiff had never been in possession of the grove in question, and that he was entitled to nothing. They took other pleas.
4. The learned Munsif came to the conclusion that the defendants were the zamindars of the village, that the plaintiff had rights as a grove-holder in the grove in question, that the defendants had taken away wood valued at Rs. 30 after the fire, but that they were not responsible for the conflagration. He further found that the area of the grove was less than the area stated in the plaint. He then ordered that 'the plaintiff's claim for a declaration concerning 5 biswas and 12 dhurs of grove-la fid be decreed and it is hereby declared that 5 biswas 12 dhurs of the grove-land, No. 57/3, belongs to the plaintiff as tenant.' He awarded him Rs. 30 damages only. It will be noted that the learned Munsif gave the plaintiff, by way of declaration, not what he asked but something different, and, owing to this fact, the plaintiff has been put to considerable subsequent inconvenience for, when the defendants appealed to the Additional Subordinate Judge, the first plea that was taken was that the suit was a suit for a declaration as to the nature of a tenancy, which could only be decided by a rent court under Section 95 of Local Act II of 1901. The learned Subordinate Judge accepted the plea and dismissed the suit. His view was upheld by a learned Judge of this Court.
5. It was not, however, brought to the notice of the lower appellate court, or the learned Judge of this Court, that the plaintiff had never asked for a declaration as to the nature of a tenancy. 'He asked for something very different--for a declaration as to his possession of certain trees. We do not accept the view that the civil court had no jurisdiction to try this matter. We take the view that only a. civil court could have decide this matter, which in no way turned upon the title of the plaintiff to the land upon which the trees stood. True, he had stated that he was a grove-holder, and in the course of the, proceedings it had been laid down almost in so many words that he was an occupancy tenant, but he never asked, in his plaint for any declaration as to a tenancy and it was not, in any way, necessary to grant him one.
6. As the lower appellate court dismissed the suit on a preliminary point and did not decide the questions of fact, it is necessary either to remit the case to the courts below for the determination of findings of fact, or to determine them ourselves under the provisions of Section 103 of the Code of Civil Procedure. There has been unfortunate delay, and this comparatively petty matter has already been before the courts for six years, it is unnecessary to give any additional reason why we prefer to determine the questions of fact ourselves. It is within our power to do so, as the evidence on the record is sufficient for the purpose. We find that the plaintiff was in undisputed possession and enjoyment, immediately prior to the occurrence, of ail the trees standing on an area of 5 biswas and 12 dhurs in plot No. 57/3, in the village of Chak Raham Ali, and that those trees include the five trees which were partly burnt and the unburnt wood of which was appropriated by the defendants. We find that no one has got any right to interfere with his possession without showing a superior title, which has; so far not been established. We accordingly grant him a declaration that the five burnt trees in the 5 biswas 12 dhurs of No. 57/3 in Chak Raham Ali, together with other trees standing thereon, have been possessed by him from of old and that the defendants are not at liberty to interfere with his possession of the same in future, and we further award him Rs. 30 damages as against the defendants. We direct that the costs of the parties be entered in the decree, in HO far as the trial court is concerned, as ordered by the trial court, and that the defendants pay their own costs and the costs of the plaintiff in all other courts. This is the whole of the relief which we grant. This order governs appeals Nos. 68 and 69 of 1921.