1. This is a first appeal from order brought by the plaintiffs against an order of the lower appellate Court returning their plaint for presentation to the proper Court. The plaintiffs brought a suit for partition of a grove holding between them and the defendant alleging that each party was in possession of a share. Further, the plaintiffs alleged that in 'April 1926 the defendants did not allow the plaintiffs to remove the fruits and wood of the grove and put the plaintiffs to a loss of Es. 80 and the plaintiffs claimed Es. 80' damages which was allowed by the Court of first instance. No objection as to jurisdiction was taken in the trial Court, but the question was raised in the Court of first appeal that the suit! should have been brought in a revenue Court Section 37, Agra Tenancy Act (3 of 1926), provides for a suit for division of tenancies. Accordingly we agrea with the lower appellate Court that the relief of partition of this grove is a matter for the revenue Court.
2. But in regard to the relief for damages, the cause of action is alleged 'to have arisen in April 1926, i.e. before Act 3 of 1926 came into force, which was on 7th September 1926. It has been held in Abdul Hakim v. Mukarram All A.I.R. 1980 All. 158 that a suit lies in the civil Courts for damages for dispossession if the cause of action arose before Act 3 of 1926 came into force. Sufficient provision is now made under Section 99 of that Act for damages for dispossession and accordingly a suit would not lie in a civil Court in that case. But in the present case the suit does lie in the civil Court.
3. Accordingly, we allow, this appeal to this extent that we return the record to the lower appellate Court with directions to admit it and to dispose of the appeal in regard to the decree granted by the Munsiff for damages to the extent of Es. 80. We also direct the lower appellate Court to allow the appeal of the defendant in regard to the relief of partition granted by the Court of first instance, as that relief cannot be granted by a civil Court for want of jurisdiction. Costs in this Court will be proportionate to the success and failure of the parties. The costs of the Court below will be in its discretion.