JUDGMENT : This is a defendant's appeal in a suit for perpetual injunction restraining the defendant from interfering with the peaceful possession of the plaintiff over the plots in suit, in the alternative prayer for delivery of pos session was also made.

2. The plaintiff's case in brief was that prior to the abolition of zamindari the second defendant Mst. Phulesara was the occupancy tenant of the plots in suit. She deposited ten times of the rent and became Bhumidhar of the plots in suit. She executed a sale deed in favour of the plaintiff on March 10, 1954 and put the plaintiff in possession over the plots in suit. The plaintiff alleged that on the basis of wrong entries made in favour of defendant No. 1 he was interfering with the peaceful possession of the plaintiff, hence the suit.

3. The defendants Bankey Singh and Mst. Phulesara contested the suit, inter alia on the grounds that Mst. Phulesara did not execute any sale deed in favour of the plaintiff; that the sale deed was without consideration and that Mst. Phulesara was not legally competent to sell the tenancy laud it was also alleged that she had surrendered the holding iii favour of the zamindar defendant No. 1 (Bankey Singh) who had entered into possession prior to the abolition of zamindari and the land had become his khudkasht. The bar of limitation was also pleaded.

4. The trial Court accepted the title of the plaintiff but held that the plaintiff was not in possession over the land in suit. It gave a categorical finding that on the evidence on record defendants' possession was established, as such he decreed the suit of the plaintiff for possession as against the defendants.

5. The defendants preferred an appeal against the above decision and the learned Additional Civil Judge, Azamgarh, affirmed both the findings of the trial Court and maintained the decree of that Court.

6. In this appeal before me the learned counsel for the appellant has made the following submissions :

(1) that Smt. Phulesara had obtained a bhumidhari Sanad on April 6, 1954 and the sale m favour of the plaint. It had been executed on March 10, 1954, as such the sale was void because till then she had not acquired transferable interest in the property in suit; and

(2) that on the facts found by the two below the civil court erroneously granted the relief of possession which was not within the jurisdiction of the civil court.

7. So far us the first submission is concerned I have already held in Second Appeal No. 3535 of 1959 (All) -Abdul Latif v. Abdul Hakim - that on a grant of declaration of Bhumidhari under S. 137 of the U.P. Zamindari Abolition and Land Reforms Act the person getting such declaration is .deemed to be a Bhumidhari from the date of the deposit of ten times the revenue by virtue of S. 134 of the Act. It is not disputed before me that such a deposit had been made before the evecution of the sale deed. In this view of the matter the first submission of the learned counsel has no force. The sale deed having been executed after the deposit of ten times the revenue could not be challenged on the ground of non-transferability.

8. So far as the second submission is concerned although it had not been raised before the two courts below in the form it has been submitted before me I have permitted the learned counsel to raise this point since it involved a question of jurisdiction and on the findings of fact recorded by the courts below it could be disposed of. In my opinion this second submission of the learned counsel for the appellant has force and this appeal should be allowed.

9. The statement of facts given above would show that the plaintiff sought two reliefs in the instant case (1) that on the declaration of his possession he may be granted the relief of injunction and (2) a relief of recovery of possession. It is not disputed that if the suit was merely a suit for recover of possession such a suit was not cognizable by the civil court, because this suit was instituted after May 19

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