Gangeshwar prasad, J.
1. This second appeal arises out of a suit for a permanent injunction restraining the defendants from interfering with the possession of the plaintiff over certain plots of agricultural land. The suit was filed on 16th October 1951 in the civil court Prior to the institution of the suit the plaintiff had filed a suit for declaration under Section 59/61 of the U. P. Tenancy Act of 1939 in the revenue court in respect of the plots but that suit was stayed as a result of some general executive order of the Government and the present suit was then filed in the civil court.
2. The case of the plaintiff was that he was A hereditary tenant of all the seven plots in dispute. The claim was made on two grounds: firstly, that the plots had been settled with the plaintiff by Smt. Khurshed Laqa, the khudkasht holder of the plots; and secondly, that the plaintiff acquired hereditary rights in the plots under Section 180 (2) of the U. P. Tenancy Act of 1939. Admittedly, the plots appertained to Khewat No. 13 which was owned by Irfan Ahmad and by Smt. Khurshed Laqa in her personal capacity and also as mutawalli of a waqf, but it was stated by the plaintiff that the plots were the khudkasht of Smt. Khurshed Laqa and she was, therefore, competent to settle them with the plaintiff. The suit was contested by all the defendants. It was denied by the defendants that the plaintiff was either hereditary tenant or in possession of the plots in suit. It was further denied that the land had been settled with the plaintiff as claimed by him. The plea of jurisdiction was also taken.
3. An issue regarding tenancy rights was referred to the revenue court for a finding and the revenue court recorded a finding against the plaintiff. While the suit was pending in the trial court the U. P. Zamindari Abolition and Land Reforms Act came into force and the plaintiff thereupon made an application for amendment of the plaint by which he claimed to have become a Bhumidar of the plots in suit in consequence of his making the requisite deposit. This application was allowed on 24th July 1952.
4. The issue of jurisdiction was decided by the trial court in favour of the plaintiff and it held that the civil court had jurisdiction to entertain the suit. On merits, however, the trial court dismissed the suit with the finding that the plaintiff had no interest in the plots in suit and was not in possession thereof.
5. On appeal by the plaintiff the decree of the trial court was reversed and the suit was decreed. The lower appellate court found that the plots in suit were the Khudkasht of Smt. Khurshed Laqa and they had been settled by her with the plaintiff. It also found that the plaintiff had, at any rate, acquired the rights of a hereditary tenant under Section 180 (2) of the U. P. Tenancy Act of 1989.
6. The first contention raised before me by Mr. Pandey, learned counsel for the appellant, is that the suit was beyond the cognizance of: the civil court because even though the relief sought was one of injunction the real object of the suit was to obtain a declaration that the plaintiff was a hereditary tenant of the plots in suit, as is obvious from the fact that he had in the first instance brought a suit for such a declaration in the revenue court. In support of this contention reliance has been placed on Baiju v. Shambhu Saran, 1968 All LJ 1064 Mr. Verma, learned counsel for the respondents, has frankly conceded that on the date on which the present suit was instituted the civil court had no jurisdiction to entertain it but he has urged that during the pendency of the suit the civil court came to acquire jurisdiction over a suit of this nature.
He has pointed out that after the enforcement of the U. P. Zamiudari Abolition and Land Reforms Act a suit for declaration of Sir-dari rights was maintainable only in the civil court till the passing of U. P. Act XXVIII of 1961 and his contention is that even (hough the suit was initially not within the cogniance of the civil court, the subsequent change in the law made it cognizable by it, and the suit could not there-alter have been dismissed for want of jurisdiction. Mr. Pandey has admitted the correctness of the position that after the enforcement of the U. P. Zamindari Abolition and Land Reforms Act a suit of the present nature was within the cogni/ance of the civil court till the passing of U. P. Act XXVIII of 1961. He has/however, contended that the subsequent acquisition of jurisdiction by the civil court could not cure the original want of jurisdiction.
7. The question to be determined, therefore, is whether in the circumstances of the present case the civil court was competent to proceed with the suit or whether the only course open to it was either to dismiss the suit for want of jurisdiction or to return the plaint for properpresentation. In my opinion, the subsequent acquisition of jurisdiction by the civil court had the effect of making the suit a proper suit before the civil court and the civil court became competent to proceed with it. Even if the suit had been dismissed by the civil court for want of jurisdiction or returned by it for presentation to the proper court the plaintiff could again have filed a similar suit or, in the latter event the same plaint before the civil court. It does not, therefore, appear to me to be correct to contend that the civil court had no other alternative but to dismiss the suit or to return the Plaint for being presented to the proper court. may in this connection refer to the case of Deokinandan Pandey v. Ram Chandra Tewari : AIR1938All17 .
The suit which had given rise to the appeal in that case was certainly held to be a suit which was cognizable by the civil court but in rejecting the plea of want of jurisdiction the Division Bench of this Court which heard the appeal also observed that 'assuming that the plaint, as originally filed, disclosed a suit not cognizable by the civil court, and assuming also that the amendment would have made it cognizable by such a court, it was open to the plaintiff to amend it as soon as it was returned to him for presentation to the proper court and to represent it in the same court which was bound to entertain it, as ex hypothesi the suit would have become one which the civil court was competent to decide.' The consideration pointed out above is fully applicable to the instant case. Since a suit of the present nature could have been filed only in the civil court after the enforcement of the U. P. Zamindari Abolition and Land Reforms Act the civil court acquired jurisdiction over the suit and the power to proceed with it despite its original want of jurisdiction.
8. Mr. Pandey has next contended that this power of the civil court to entertain a suit of this description was subsequently taken away from the civil court by Act No. XXVIII of 1961 and the observations made in the ease of : AIR1938All17 cannot apply to the present case. It has, however, to be borne in mind that under Section 33J of the U. P. Zamindari Abolition and Land Reforms Act the power to hear and determine a suit properly taken cognizance of could not have been lost by a subsequent amendment, In this respect Section 331 of the U. P. Zamindari Abolition and Land Reforms Act differed materially from Section 222 of the U. P. Tenancy Act of 1939. I may here refer to the case of Rajmangal Singh v. Bindhyachal Singh, 1964 All LJ 1026 where a learned single Judge of this Court held that a suit pending before the civil court on the date the U. P. Act XXVIII of 1961 came into force which, since after the commencement of the Amendment Act, would be cognizable by the revenue court only can be heard and determined by the civil court and it is not necessary for the civil court to return the plaint for presentation to the revenue court. The result, therefore, is that the civil court became properly seized of the suit after the enforcement of the U. P. Zamindari Abolition and Land Reforms Act and it did not lose its jurisdiction to proceed with the suit on account of the enforcement of Act XXVIII of 1961. The plea of want of jurisdiction in the civil court must, therefore, be rejected.
9. On the merits, the contention of Mr. Pandey is that on the plaintiff's own showing all the three defendants were co-sharers in Khewat No. 13 to which the plots in suit appertained and even if the plots constituted the Khudkasht of Smt. Khurshed Laqa she alone was not competent to settle the land with the plaintiff. In reply to this argument Mr. Verma has urged that Khudkasht land is usually settled by the Khudkasht holder without any reference to the other co-sharers in the Khewat and Smt. Khurshed Laqa was as such competent to create a tenancy in favour of the plaintiff, and in support of this argument he has relied on certain cases decided by the Board of Revenue. It does not appear to me to be necessary to go into this question in the present case in view of the clear finding recorded by the lower appellate court that the plaintiff was in possession for more than the period allowed by the U. P. Tenancy Act of 1939 for bringing a suit for ejectment under Section 180 (1) of the Act and he, therefore, acquired the rights of a hereditary tenant under Section 180 (2) of the Act. This finding of the lower appellate court has been sought to be challenged by Mr. Pandey on the ground that the enthies in the village papers are inconsistent with the case of the plaintiff and the lower appellate court was in error in regarding them as compatible with it. The argument of Mr. Pandey really amounts to questioning a finding and that cannot be done in second appeal. The lower appellate court has considered the entire material on record and has relied not only on the entries in the village papers but also on the oral evidence in coming to the conclusion that the plaintiff had acquired hereditary rights under Section 180 (2) of the U. P. Tenancy Act of 1939.
10. The result is that the appeal fails andit is accordingly dismissed. The parties will,however, bear their own costs throughout.