Hon’ble B. Amit Sthalekar, J.—Heard Sri Triveni Shanker, learned counsel for the appellant and Sri Abhishek Kumar, learned counsel for the respondents.

2. This is the defendant’s second appeal arising out of the judgment passed in Civil Appeal No. 122 of 1988 (Saral Chauhan and others v. Sureshwar Singh and others).

3. Briefly stated the facts of the case are that Saral Chauhan, the plaintiff-respondent first set filed Suit No. 414 of 1984 seeking relief of declaration in favour of the plaintiffs in respect of the land demarcated by the numbers 12, 13, 14, 15, 16, 17, 20 and 21 and for a further direction that the defendants may be evicted from the said land. The suit was contested by the petitioner-defendant who filed a written statement denying the plaint allegations. The trial Court dismissed the plaintiff’s suit vide its judgment dated 12.1.1988. The issue No. 1 framed by the trial Court was whether the plaintiff is in possession of the land in dispute? Issue No. 2 was whether the disputed land was part of plot No. 1540/1, 1540/3 and 1540/4. Issue No. 3 was whether there was any agreement between the plaintiffs and the defendants in respect of the plot No. 1540 as alleged in the written statement. The case of the plaintiffs was that their possession over the land in dispute was ancestral which is a sehan and that they were in possession of the same prior to coming into force of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as the Act, 1950). The trial Court, however, held that the plaintiffs have not filed any document in proof to show that they were in possession of the plot in dispute or that their names have been recorded in the revenue record over the plot in dispute since prior to the coming into force of the Act, 1950.

4. One of the pleas taken by the defendant in the written statement in para 13 specifically was that the Civil Court had no jurisdiction to adjudicate the dispute with regard to title and possession of the plaintiff since the matter related to revenue plot No. 1540 and only the revenue Court had jurisdiction to hear the matter. On this question no issue has been framed. Aggrieved the plaintiff filed appeal No. 122 of 1988 which has been allowed by the appellate Court.

5. I have heard the learned counsel for the parties and perused the documents on record.

6. The principal objection raised by Sri Triveni Shankar, learned counsel for the appellant in his submission is that the land in question is plot No. 1540 which is a revenue land and therefore, in respect of this plot for purposes of declaration of title and possession, the Civil Court had no jurisdiction and only the revenue Court had jurisdiction.

7. In the present case, in my opinion the question of jurisdiction was a fundamental question of law and the plea was raised by the appellant in both the Courts below but never addressed by the trial Court or the appellate Court. As already noted above, the plea of jurisdiction was raised before the trial Court in para 13 of the written statement by the appellant herein but no finding thereon was recorded by the Court neither any issue was framed. The plea was again raised in the first appeal No. 122 of 1988 and also finds mention in the judgment of the appellate Court but thereafter there is absolutely no consideration of this question nor has any point of determination been framed by the appellate Court as to whether the matter was cognizable before the trial Court or before the revenue Court. Moreover, since the relief claimed by the plaintiff-respondent herein was one of declaration of title and possession, the challenge to the jurisdiction of the Civil Court would be vital to the further progression of the suit between the plaintiff and the defendants.

8. In my opinion, the question of jurisdiction is a substantial question of law which goes to the root of the matter and if it has been raised by the party at the very first instance in the suit and not