( 1 ) THIS is the defendants appeal arising out of a suit for ejectment and damages. The suit was instituted by the plaintiff Raja Ram, predecessor-in-interest of the present respondents 1 to 3, under Section 180, U. P. Tenancy Act.

( 2 ) THE plots in suit, 23 in number were alleged to belong to the plaintiff as an under-proprietor and the defendants were alleged to have taken possession of the same without the plaintiffs consent and without any right. The plaintiff claimed Rs. 200 as damages. Defendant 1 contested the suit upon the ground that he was a tenant of the plots having obtained a lease from the superior proprietor Raj Kurnari Kaniz Baqar and that the plaintiff was not an under-proprietor at all. The issue about the proprietary right raised by the defendant was referred to the Civil Court. The Civil Court decided that the plaintiff was an under-proprietor. On receipt of this finding the trial Court decreed the suit but awarded no damages. The defendants appealed to the lower appellate Court. The appeal was dismissed. In the lower appellate Court, for the first time, the defendants raised a plea of jurisdiction. The Court below rejected that plea. The defendants also applied in that Court for permission to file a sale certificate and a copy of a khewat to show that the plaintiff had, after the suit was instituted, ceased to have the proprietary interest claimed by him, as the same had been sold at an auction sale. The lower appellate Court rejected this application on the ground that fresh evidence could only be allowed in appeal if the Court required it in order to enable it to pronounce judgment or for any other substantial cause, and that because the Court did not require the documents to enable it to pronounce judgment and there was no other substantial cause, the document could not be accepted. In this two points have been urged before us.

( 3 ) IT has been contended that the revenue Court had no jurisdiction to entertain the suit. The argument is that in the plaint the plaintiff merely alleged that the defendants were trespassers. He did not allege that the defendants claimed tenancy rights. It was urged that the civil Court has jurisdiction to entertain a suit for ejectment against a trespasser where it is not alleged that the defendant is claiming tenancy rights. In our opinion this contention is not sound.

( 4 ) NO doubt the plaintiff merely alleged that the defendants were trespassers. That fact, however, does not oust the jurisdiction of the revenue Court. The reason is that Section 180, U. P. Tenancy act, contemplates a suit against a person "taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law for the time being in force," or in other words against a trespasser. The mere fact that the plaint is against trespassers, therefore, does not advance the appellants case. It has been held in a Full Bench decision in D. N. Rege v. Muhammad Haider, A. I. R. (33) 1946 ALL. 379 : (I. L. R. 1946 ALL. 692 F. B.) that the civil Court had jurisdiction to try a suit against a trespasser where the defendant claimed to hold the land as a proprietor and the revenue Court had jurisdiction to entertain the suit if the defendant claimed to hold the land as a tenant. It would be better if the plaintiff specifies in the plaint the capacity in which the defendant alleges to hold the land. Where this is not specified and the defendant alleges that he is a tenant, the suit filed in the revenue Court is clearly filed in the right Court. If, however, the defendant alleges that he is holding the land as a proprietor and if the Court comes to the conclusion that the plaintiff knew before he instituted the suit that the defendant was claiming to hold in that capacity, and inspite of this knowledge he filed the suit in the revenue Court, the plaint is liable to be returned for presentation to