JUDGMENT: - The present second appeal has been filed against the judgment and decree passed by the Courts below dismissing the suit of the plaintiff. The suit was for permanent injunction in respect of plot No.279 area 3.11 acres, which was a Pokhri, against the defendants. The suit has been dismissed by the trial Court as well as by the lower appellate Court holding that the Civil Courts had no jurisdiction to entertain the suit.

2. The other question related to the rights of the parties over the Pokhri under the provisions of U.P. Zamindari Abolition and Land Reforms Act. However, as the finding of the Courts below was that the Civil Court had no jurisdiction to decide the case, they should not have dismissed it. The suit should have been returned for presentation to proper Court.

3. The learned counsel for the appellant relied upon a Division Bench case reported in AIR 1946 All 488, Kallu v. Phundan. It was held that

where the Civil Court held that the suit was triable by a revenue Court the proper course was not to dismiss the suit but to return the plaint for presentation to proper Court. In AIR 1965 SC 338, Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar it was held as under (at p. 342) : -

"The last point urged is that when the Civil Court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the appellant with respect to the adjustment of certain amount paid by the respondent. This contention is correct. When the Court had no jurisdiction over the subject-matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint."

The learned counsel for the respondents cited the case of Devi Dutt Sharma v. Teg Singh reported in 1979 All LJ 1086, decided by a learned single Judge of this Court. It was held that where the matter has been discussed by the Courts on merits the suit should be dismissed and the plaint should not be returned for presentation to proper Court. The learned single Judge has relied upon a Full Bench case reported in AIR 1930 All 193, Mst. Ananti v. Channu. It was held that:

"Where the plaint was entertained the plaintiff had to be pinned down to the allegations in the plaint and if those allegations were not proved the suit should be dismissed."

I am of the opinion that in view of Athmanathaswami Devasthanams case (supra) decided by the Supreme Court, the Full Bench case of Mst. Ananti was no more good law. It has been held in AIR 1954 SC 340 Kiran Singh v. Chaman Paswan where an order was passed without jurisdiction it could be challenged anywhere at any stage. As the Courts below have given a finding that they have no jurisdiction to entertain the suit any further finding or decision given by them would be without jurisdiction. They could neither decree the suit nor dismiss it.

4. Under the circumstances I am bound to follow the law laid down by AIR 1965 SC 338 in case of Athmanathaswami (supra).

5. The learned counsel for the respondent argued that the case of that Athmanathaswami (supra) was considered by the learned single Judge in the case of Devi Dutt Sharma (1979 All LJ 1086) (supra). From the judgment it appears that the learned single Judge referred to that case in para 3 of the judgment but how that case was not applicable is not indicated in the judgment. Consequently I hold that the Courts below were not justified in dismissing the suit.

6. In the result, the present appeal is allowed. The judgment and decree passed by the trial Court as well as by the lower appellate court is set aside and the trial Court is directed to return the plaint to the plaintiff for presentation to proper Court in accordance with rules. The plaintiff-appellant shall pay costs of this appeal to the respondents.

Appeal allowed.

Click Here to Read the rest of this document