1. A plea of jurisdiction has been raised during arguments though it was not taken in the grounds of appeal. Such a plea is admissible, and I have allowed such a plea to be raised, though counsel for the opposite party objected to the plea being raised in the second Court of appeal. The observations of their Lordships of the Privy Council in Ram Lal v. Kisan Chandra A.I.R. 1924 P.C. 95 are very clear: see p. 393 of 22 A.L.J. para. 3. It is important to notice what the claim was. The plaintiffs desired joint possession along with the defendants over two plots of land. The whole plot 221 is divided into three portions entirely independent of one another: one of 2 biswas 15 dhurs, another of 2 biswas 9 dhurs, and a third of 12 dhurs. Over the first two plots the plaintiffs desired joint possession along with the defendants. Subsequent to the passing of the present Tenancy Act such a suit would lie in the revenue Court. Prior to the passing of that Act the suit would lie in the civil Court as ejectment was pleaded by co-tenants. The suit was mainly for declaration; and, in the alternative, possession was claimed. It was argued on behalf of the defendants-appellants that though there may be a vested right of relief which could not be taken away except by a definite rule in the new statute, no one is entitled to apply to a particular Court or lodge a suit there. In the present case the question is not only one of filing a suit in a particular Court, but the question is a legal one of limitation. If the plaintiffs went to the revenue Court they would fail through lapse of time while they would not fail in the civil Court. They had acquired a right to litigate within twelve years, and such a right can be enforced only in the civil Court. Under the circumstances the new statute did not deprive them of their right to litigate in the civil Court. The findings of the two subordinate Courts are those of facts. For this reason I dismiss the appeal as regards plots in patti Lachhi Rai and patti Nakchhedi Singh.
2. As regards the 12 dhurs land in patti Sant Bilas Singh, the case is different. There the plea is that the plaintiffs have been ejected by the defendants through the instrumentality of the zamindar. The plea amounts to this:that the zamindar dispossessed the plaintiffs from this area of land entirely. As regards this 12 dhurs of land the claim was not of joint possession, though ultimately joint possession has been granted to the plaintiffs. The plea was one of possession of the entire land from which the defendants through the instrumentality of the zamindar had ejected the plaintiffs. Such a suit would lie in the revenue Court even prior to the passing of the Tenancy Act of 1926. The learned counsel for the respondents argued that when in a joint suit part of the matter was open for decision by the civil Court and the other part by the revenue Court the entire matter should be decided by the civil Court. There is, however, no connexion between the three plots. They are all separately marked out. In fact as regards two, joint possession was claimed, and as regards the third, separate possession was claimed. There would have been no difficulty in bringing separate suits with regard to these plots, one suit in the civil Court with regard to two of the plots and the other in the revenue Court with regard to the third.
3. The next point argued by the respondents' learned counsel was that under the provisions of Section 268, Ten. Act, the plea of jurisdiction could not be raised now when it was not raised in the subordinate Courts. The provisions of that section did not apply because in the case of a suit brought in the revenue Court as regards the 12 dhurs land an appeal would not have lain to the same Court of the District Judge.
4. For these reasons I dismiss the suit as regards the 12 dhurs land.
5. In the result the appeal is dismissed as regards two plots of pattis Lachhi Rai and Nakchhedi Singh, and is allowed with respect to one plot in patti Sant Bilas Singh. The plea of jurisdiction was raised very late here. I, therefore, allow the plaintiffs half costs throughout, and the defendants shall bear their own costs.