1. This second appeal arises out of a suit brought by the plaintiff-respondents against the defendant-appellant. The plaintiffs are admittedly tenants of a holding and the defendant, the zamindar. The defendant wanted to get the boundary of the holding defined, and applied apparently under Section 41, Land Revenue Act. The Collector (or officer acting as Collector) heard the parties and fixed the boundary, and had stones put up to mark it. The present case is brought by the plaintiffs on the ground that measurements were wrongly made by the revenue officials, and consequently the Collector fixed the wrong boundary and caused the loss of three biswas to the plaintiffs. This suit was brought in the Munsif's Court. Strange to say the defendant zamindar did not raise plea of want of jurisdiction of the Munsif's Court in either the trial Court or the lower appellate Court. Both those Courts had some new measurements taken and decreed the suit. In this second appeal the only point with which I need deal is that this case was not cognizable by a civil Court. To my mind it is quite clear that it was not. The revenue Courts are given by Section 41, Land Revenue Act, power to settle boundary disputes. That section is not confined to boundary disputes between proprietors or between tenants, and so must be deemed to include also boundary disputes between a zamindar and his ten ant. An appeal is allowed from a decision under Section 41, and that appeal is to be to the Commissioner: see Section 210, Land Revenue Act. At the same time I do not find anything in Section 44 or Section 210, Land Revenue Act, which would bar this suit, although it is obviously undesirable that where the Land Revenue Act provides for an appeal against the order of the Collector, the Collector's decision should be challenged by a suit in the civil Court. But I do find in Section 95 read with Section 167, Tenancy Act a clear bar to the entertainment of such a suit as this by the civil Court. Section 95(c) provides for a suit by a landlord against a tenant asking for a declaration as to situation, area and boundaries. The contention of the respondent in this case that his suit was one for possession and not one involving a declaration as to area and boundaries is clearly untenable. He bases his claim to possession on the ground that the boundary set up by the Collector was wrong. It may be that if the plaintiff had sued in the revenue Court for a declaration as to his boundary, the revenue Court would have been bound, by reason of Section 44, Revenue Act, by the decision already given by the Collector in the settlement of boundary dispute under Section 41, Land Revenue Act, but the fact that the plaintiff might not have been able to obtain relief by a suit in the rent Court will not operate to give him a right to sue in the civil Court, where such right is clearly barred.
2. It is, however, urged that in this second appeal I should not allow the appellant to plead want of jurisdiction of the trial Court, because the plea of want of jurisdiction has not been raised in the lower Courts. It is urged that in second appeal a Court should never take up a plea of law when the legal question has not been agitated in either of the lower Courts. This, in my opinion, is not a correct statement of the matter. What has been held by the Privy Council is that in second appeal a Court should not take up a question of law (which will include questions of jurisdiction or limitation) where by reason of the failure of the party raising the plea to raise it at an earlier stage of the suit the record fails to contain facts or evidence which it would have contained if the plea had been raised earlier and which the Court hearing the appeal requires for the purpose of coming to a decision on the plea. It is even suggested by certain decisions of their Lordships of the Privy Council that the plea will not be entertained where it requires a prolonged scrutiny of facts or evidence which should have taken place in the lower Courts. None of these objections can be urged in the present case. The simple question whether a tenant can sue his landlord in a civil Court for a declaration of the area and boundary of his holding requires no facts or evidence. It is plain that he cannot do so, from the language of Sections 167 and 95, Tenancy Act. It is obviously undesirable that the civil Courts should assume a jurisdiction which they do not possess and determine a boundary question arising between a landlord and his tenant. It is difficult to under-stand how this escaped the notice of the lower Courts. For the above reasons I allow this appeal, and set aside the judgments and decrees of the lower Courts. But in view of the plea of jurisdiction not having been taken, I direct that the parties bear their own costs.