JUDGMENT

Sulaiman and Kanhaiya Lal, JJ. - This is a plaintiff's appeal under the Letters Patent from a decree of a learned Judge of this Court setting aside the decree of the lower appellate court and dismissing the suit in toto.

2. The plaintiff's allegations were that the plots in suit were the tenancies of one Ghisa deceased. The plaintiff alleged himself to be an heir of Ghisa and as having been in joint cultivation with him over these plots. It was stated that on the 4th of February, 1919, the lambardar had recognized the plaintiff as the tenant of these plots and had indeed attested this fact before the kanungo; that the plaintiff was in possession of these fields by cultivation in the year 1326 Fash, that in kharif 1327 Fasli he actually sowed some crops, but that in March, 1920, the defendants wrongfully dispossessed the plaintiff by cutting the standing crops. It is necessary to enumerate the reliefs which were claimed by the plaintiff in his plaint. They are as follows:

(1) Rs. 100 as the value of the crops illegally cut by the defendants.

(2) Ejectment of the defendants and a decree for possession in favour of the plaintiff.

(3) A perpetual injunction restraining the defendants from ever interfering in future with the plaintiff's possession of the plots in dispute.

3. The defendant, Sita Ram, pleaded that he was holding the plots under a registered kabuliat, dated the 13th of February, 1919, and that the plaintiff had no right to maintain the suit against him. It was also pleaded that the civil court had no jurisdiction to entertain this claim, which was exclusively cognizable by the revenue court.

4. The court of first instance came to the conclusion that the suit should have been filed in the revenue court and ordered that the plaint be returned for presentation to the proper court. An appeal was preferred to the District Judge, who came to the conclusion that the suit had been rightly instituted in the civil court. Instead of, however, remanding the case for disposal on the merits, he proceeded under Sections 196 and 197 of the Tenancy Act and ultimately passed a decree for Rs. 80 as damages, for possession of the plots and for an. injunction , against the defendants from interference in future with the plaintiff's possession.

5. The defendants preferred an. appeal to this Court which has been allowed. We may note that before the learned Judge it was never urged that no appeal lay to him. The learned Judge's attention was not drawn to this question and naturally there is no adjudication on this point. The point also is not quite a clear one. This being a Letters Patent Appeal, we have refused the point to be raised for the first time under the Letters Patent.

6. We must, therefore, assume that the learned District Judge had passed a decree which was duly appealed against to this Court.

7. The learned Judge of this Court, after doubting whether the District Judge was right in holding that the suit was cognizable by the civil court, has gone on to remark that he does "not however intend to decide this case on the point of jurisdiction", i.e., he has assumed that the suit had been rightly instituted in the civil court and the learned District Judge was properly seised of the appeal and was fully justified in disposing of it on the merits.

8. We may note here that, in our opinion, there can be no doubt that the plaint as drafted and the claim as brought could only have been brought in the civil court. It is apparent that no perpetual injunction could ever have been granted by the revenue court. It is clear also that the claim was one for damages against a trespasser and for the recovery of possession against him and that the landlord was not made a party to these proceedings. The suit really was, at the very best, one between the rival claimants and should have been disposed of by the civil court. The learned Judge, however, has dismissed the suit on the following ground. The plaintiff claims to hold this land under an oral agr