Shiv Dayal, J.

The only question involved in this revision is whether the civil suit is competent. Respondent Bansilal instituted a suit under Section 326, Qanoon Mal on June 9, 1951 in the Court of the Tehsildar, Susneer, on the allegation that he was in possession of 36 survey numbers in village Paili as his khud-kasht land; that on June 1, 1951 the Defendants Bapulal, Kanhaiyalal and Ram Prasad unlawfully took possession of the lands and that he was, therefore, entitled to restoration of possession. The defence was that the Plaintiff's father had led them into possession and that their possession was not unlawful. That suit was dismissed by the Tehsildar on June 9, 1952. Stage by stage the Plaintiff went up to the Board of Revenue but remained unsuccessful everywhere.

Thereafter, the Plaintiff instituted the present suit against the very same Defendants. Bapulal Defendant No. 1 is his step-brother and Kanhaiyalal and Ram Prasad Defendants are sons of Bapulal. The Defendants raised a preliminary objection as to the maintainability of the present suit. The trial Judge has held that the suit is competent. It is against this preliminary finding that the present revision has been filed.

Shri Khandekar relies on two decisions of this Court: One of them is reported in 1953 M.L.R. 138. That was in a case for partition. The other decision relied on is in C.S.A. No. 168 of 1956 where I have held that the civil suit was barred under Section 377 of the Qanoon Mal.

Shri Patankar, Learned Counsel for the Respondent, urges that his present suit cannot be dismissed on the ground that previously a suit was instituted under Section 326 of the Qanoon Mal. The argument of the Learned Counsel is that there is no provision in the Qanoon Mal for entertaining a suit for declaration of title. Section 326 of the Qanoon Mal contemplated a suit for restoration of possession on the basis of wrongful dispossession only and in other words, it corresponds to a suit under Section 9 of the Specific Relief Act. My attention is invited to the observation of the Board of Revenue in this very case namely "Madakhlat he mamle men istahqaq ke adhar par decree nahin dija sakti hai."

I find considerable force in the argument of Shri Patankar that if a person seeks redress in the revenue Court on the basis of his title, he is not heard because Section 326 does not envisage a title suit; and if he comes to the civil Court, he is again denied a hearing saying that such a suit is barred by Section 377 of the Qanoon Mal and the only remedy is before the revenue Court. This amounts to a refusal to give redress to that person if he claims possession on the basis of his title. Where is he to go ? Can it be said that a person who has title to the land, but no possession, cannot get possession under the law ?

But I find that it is unnecessary to decide that point in this revision. When I advert to the plaint I find that the Plaintiff's present suit is not based on title. Shri Patankar developed his argument on the assumption that the Plaintiff was a minor on June 9, 1951 when the cause of action arose and his father, the natural guardian, was not competent to hand over the possession to the Defendants. But this is not the Plaintiff's suit. If the grievance in the plaint was that he had an exclusive title to the land and that his father allowed the Defendants to enter into possession thereof without any authority or without any legal justification, the matter would have been different. The allegations in the plaint are these:

(1) That the Plaintiff was a Zamindar of 2 annas and the Defendants lived separately from him.

(2) That the disputed field numbers listed in paragraph 2 of the plaint (in all 36) were in the personal cultivation (khudkashi) of the Plaintiff.

(3) That the Defendants had no concern with the disputed field numbers of which on 1-6-1951, they took wrongful possession without any authority.

In the paragraphs which follow a history of the revenue litigation is given