JUDGMENT

S.K. Kaul, J. - The facts constituting this second appeal for the purposes of its decision may be briefly stated thus. The plaintiff-appellants filed a suit for possession in respect of Plot No. 307 situate in village Jagdishpur, Tahsil and District Faizabad. The allegations were that Gajadhar Hajjam was Sirdar of this plot and after his death the plaintiffs became Sirdar of the aforesaid plot by succession. Defendants took forcible possession over this plot in Khasra 1354 Fasli without permission of Gajadhar. Therefore Gajadhar filed a suit for possession under Section 180 of the U.P. Tenancy Act. The suit was decreed on July 2, 1952. In execution proceedings, however, possession was not given in view of the fact that U.P. Zamindari Abolition and Land Reforms Act had come into force. The directions of the executing court were that a fresh suit should be filed. Therefore, a fresh suit was filed and in that case the defendants took up a plea that they had become Adhivasis and as such this suit should abate inasmuch as they could not be ejected. Consequently, on December 28, 1954 the Assistant Collector, Faizabad ordered the suit to abate. Actually, the defendants were trespassers and had no right to retain possession. On these pleas suit for possession was filed. One of the pleas taken by the defendants, who contested this case, was that the matter was now res judicata. The trial court upheld this contention and dismissed the suit. Plaintiffs went up in appeal. Learned Civil Judge dismissed the appeal maintaining the decision of the Munsif.

2. Feeling aggrieved the present appeal has been filed in this court.

3. I have heard learned counsel for the parties Sarvsri Hargur Charan Srivastava and H.N. Tilhari.

4. During the course of the arguments it was argued at the bar that the suit was not cognisable by the Civil Courts inasmuch as on the plaint allegations the suit was for possession against a trespasser and was in respect of an agricultural land and the plaintiffs claimed themselves to be the Sirdar of the same. Such a suit, therefore could be filed in the revenue court under the provisions prescribed under U.P. Zamindari Abolition and Land Reforms Act. This argument is to be accepted. It may be that this point was not raised in the two courts below, but since it is a question of jurisdiction it can be raised even at the stage of an appeal. Indeed, there is a ruling of the Supreme Court on this very point that such a point can be taken for the first time even in the Supreme Court and this ruling was in respect of an agricultural land, Chandrika v. Bhyya Lal, 1973 S.C. 2391 in the instant case, there can be no doubt that the present suit was not cognisable by the Civil Courts.

5. I would, therefore, allow the appeal, set aside the decision of the two courts below and order that the plaint be returned to the plaintiffs for presentation to the proper court.

6. Costs, however, in the circumstances, are made easy throughout.