1. This is a defendants' appeal arising out of a suit for possession of a strip of land. The plaintiff-respondents claimed it to be within boundary of their plot No. 772/1 with 15 'mahuwa' trees standing thereon. They claimed to be occupancy tenants in respect of the aforesaid plot. The defendants, on the other hand, pleaded that the land in dispute was part of their No. 772/2. It appears that there was a boundary dispute before the Revenue Court, and aggrieved by the decision of that Court the plaintiff's instituted the suit which has given rise to this appeal.
2. No less than four commissioners were successively appointed by the trial Court as the report of every one of them was contested by the party which considered it to be unfavourable. The parties led other evidence also. The suit was dismissed by the trial Court. The defendants' appeal to the lower appellate Court was also dismissed. In the present second appeal the only question of law that has been raised in the memo of appeal is that the trial Court was not justified in appointing one commissioner after another. I do not think there was any error of law in appointing more than one commissioner. If the report of one commissioner was unsatisfactory in certain respects it was permissible for the Court to remit the case to the same commissioner or to appoint another commissioner. The lower appellate Court has taken into consideration the reports of all the commissioners together with other evidence in the case and arrived at a definite finding that the land in dispute was part of the plaintiff's plot No. 772/1. As already stated, this is a finding of fact and is supported by evidence. It cannot therefore be questioned in second appeal. The learned advocate for the defendant-appellants raised a question of jurisdiction which had not been taken in either of the Courts below or in the memorandum of appeal filed in this Court. I allowed the point to be argued, as it related to the jurisdiction of the Civil Court to take cognizance of a dispute like the one disclosed by ,the plaint in this case.
3. The learned advocate's contention is that the plaintiffs could have instituted a suit under Section 45, Agra Tenancy Act, and therefore the jurisdiction of the Civil Court to entertain a suit for possession is barred by Section 230 read with Schedule 4, Agra Tenancy Act. I do not think this contention has force. The plaintiff-respondents are occupancy tenants. They claim a portion of their No. 772/1 on the allegation that the Revenue Court erroneously made it part of No. 772/2 and that relying upon the demarcation of the Revenue Court the defendants took possession of the land. In my opinion such a suit could not have been instituted by the plaintiff-respondents' under Section 44, Agra Tenancy Act, Section 121 of the same Act, is also referred to in this connexion and it is argued that the parties held under the same land holder and consequently a suit for de-j coloration should have been brought in the Revenue Court. There is nothing in the plaint to suggest that both parties are the tenants of the same landholder. The question of jurisdiction is to be primarily determined on the allegations to be found in the plaint. I do not think Section 121 can in any way operate as a bar to the plaintiffs' suit in a Civil Court. Reliance has been placed on Dan Sahai v. Jai Ram Singh 1932 All. 465 to which I was a party. The facts of that case were quite different. A landholder had instituted a suit for ejectment and obtained a decree in spite of which the tenant stuck to the land and the landholder subsequently instituted a suit in the Civil Court treating the defendant as trespasser. It was held that if there was no break in the tenancy, the defendant continued to be a tenant. If there was a break in the tenancy but the defendant retained possession of the land in contravention of the Tenancy Act, and in disregard of the wishes of his landholder, the suit was one contemplated by Section 44, Agra Tenancy Act, in either of which case the jurisdiction of the Civil Court was barred. It depends entirely upon the frame of the suit and the allegations contained, therein. If the allegations are such as to make it a suit to which Section 44, Agra Tenancy Act, is applicable the jurisdiction of the Civil Court may be barred. If however the plaintiff treats the defendants as a trespasser and having regard to the nature of the dispute the conditions required by Section 44 are not present, the jurisdiction of the Civil Court is not ousted. To uphold the contention put forward before me would be tantamount to holding that in no case a Civil Court has jurisdiction to take cognizance of a suit for possession of land, as defined in the Agra Tenancy Act. I am unable to subscribe to such a broad proposition.
4. The result is that this appeal fails and is dismissed under Order 41, Rule 11, Civil P.C. Leave to appeal under the Letters Patent is refused.