1. This is a defendants' appeal arising out of a suit for declaration that the defendant has no power to make construction, recovery of possession and perpetual injunction. In the plaint it was admitted that the land in dispute was entered in the revenue papers as a grove and it was further alleged that for some time the trees standing upon it dried up and the land became vacant and no fresh trees were planted; that the defendants without the permission of the plaintiff began to construct a pucca and kuchcha house on a portion of the plot, which action was wrongful. The cause of action was alleged to have accrued in December 1916 when the constructions were commenced. Many pleas were taken in the written statement. It was alleged that the land was an ancestral muafi grove of the defendants, that all the trees had not dried up and that the land had never changed its character as a grove, as trees were still standing on a large portion of the land. It was further pleaded that the constructions complained of were made 12 years ago, and the claim was barred by the six years rule of limitation. But no plea as to want of jurisdiction was raised.
2. The first Court found that over half of the land occupied formerly by the grove odd trees still stood and that building had been made on the eastern portion of the land over which there were only a few trees left. It came to the conclusion that the plot had not lost its character as a grove and accordingly dismissed the suit. On appeal the learned District Judge has affirmed the findings of fact that for about half the area to the west of the plot there are 15 trees while on the eastern side there are only three trees and on this portion there are no less than four buildings two of which appear to be quite recent. He came to the conclusion that as matters stood now the defendants would be prevented from using nearly half the land to the east for purely building purposes, and that accordingly in view of the definition of 'grove land' given in the new Tenancy Act, the land no longer retained the character of a grove. He set aside the decree of the first Court and decreed the claim.
3. On appeal it is urged for the first time that the civil Court had no jurisdiction to entertain the suit. It has been settled by the pronouncement of the Full Bench case of Ram Iqbal Rai v. Tilesari Kuari : AIR1930All713 that Section 268 of the new Tenancy Act, would have no application to a case where the civil Court had disposed of a matter which even if brought in the revenue Court no appeal would have lain to the civil Court. The objection as to the want of jurisdiction if well founded, must therefore be entertained, although in view of the fact that it was not raised earlier the defendants may be deprived of their costs.
4. According to the allegations contained in the plaint the defendants had the status of grove holders who have converted the land into a building site by making constructions thereupon and have broken a condition. Ch. 12 of the new Tenancy Act deals with the rights and liablities of grove holders. A grove holder is a non-occupancy tenant, presumed to be holding under a lease, the term of which expires when the land ceases to be a grove land, He is liable to be ejected under Section 84 or on the ground that he held under a lease the term of which has expired. It is noteworthy that the provisions relating to the rent free grantees contained in Ch. 11 are not applicable to grove lands.
5. Assuming the finding of the District Judge to be correct that the land has lost its character as a grove inasmuch as it has been built upon, the plaintiff would have been entitled to institute a suit under Section 84, Ten. Act, for the ejectment of the defendants on the ground that the condition that the character of the grove would be retained had been broken and the land was being used in a way inconsistent with the previous grant. No doubt the valuation of the suit being much more than Rs. 200 the appeal from the decree passed in such a suit, even if filed in the revenue Court, would have lain to the civil Court, and under Section 269, Ten. Act, all the materials being on the record, the High Court can dispose of the appeal as if the suit had been instituted in the right Court, But this section would not override the bar of limitation which is placed on suits for ejectment under Section 84, Ten. Act. The suit is to be instituted within one year from the date when the forfeiture is incurred or the condition is broken. In the present case there is no allegation in the plaint that any construction was made within one year of the suit. As already pointed out the cause of action was alleged to have accrued in 1916. The learned Munsif who inspected the locality thought that some buildings were very old and that some were about three or four years standing. The claim under Section 84 would therefore be barred by the law of limitation. It is therefore not possible for us to give relief to the plaintiff on the ground that although the suit should have been instituted in the revenue Court, all the materials being on the record the matter should now be disposed of in appeal by us.
6. It is next urged on behalf of the plaintiff that as the grove has lost its character as a grove the defendants have become mere non-occupancy tenants holding from year to year and are liable to ejectment and the right to eject them is a recurring right without any question of limitation.
7. But even if this position be assumed to be correct, the plaintiff's remedy would be to eject the defendants not under Section 84 but under Section 86, Ten. Act, which is the same as the ground mentioned in Section 197, Sub-clause (e) of the Act treating the defendants as tenants from year to year originally holding grove land the term of which has expired. Such a suit however is cognizable exclusively by the revenue Court and an appeal lies in that case to the revenue Court and not to the civil Court. In this view of the matter it is not possible for us to entertain this claim treating it as one for the ejectment of a non-occupancy tenant from year to year. The relief as regards the declaration is substantially one as to the rights of a tenant against the landholder and was entertainable by the revenue Court; similarly under Section 85, Ten. Act, even a relief for an injunction could have been asked for in the revenue Court. We may also point out that the relief as regards the injunction is very vaguely worded and merely asks for restraining the defendants from doing any act prejudicial to the rights of the plaintiff and does not in so many words ask for restraining them from going on with any construction. There is no suggestion that there is any reasonable apprehension of further construction being made on the plot. Having regard to all these circumstances it must be held that the civil Court had no jurisdiction to entertain this plaint. The plaintiff's remedy, if any, may be to eject the defendants through the revenue Court treating them as persons in occupation of the land which has lost its character of a grove or where a condition has been broken. The plaintiff will recover his costs from the defendants in both the Courts below, who will bear their own costs in those Courts, and the plaintiff will bear his own costs of this appeal and will pay the costs of the defendants in this Court including fees on the higher scale. We accordingly allow this appeal and setting aside the decrees of the Courts below direct that the plaint be returned to the plaintiff for presentation to the proper Court, if so advised. The costs will be taxed as indicated above.