JUDGMENT

Scott-Smith, J. - This is an application for revision of the order of the lower Court decreeing the plaintiffs' claim for Rs. 30 on account of price of trees cut by the defendants-petitioners from land of which they are themselves the proprietors. In the lower Courts the question was raised whether the suit was triable by a Civil or a Revenue Court. The Munsif held that the suit was triable by a Civil Court and on the merits he gave the plaintiffs a decree. The point was again raised before the Senior Subordinate Judge who heard the appeal. He agreed with the Munsif that the suit was triable by a Civil Court. He also held in accordance with a decision of the Financial Commissioner in 1894 that the plaintiffs were adna maliks of the land, and, therefore, were prima facie owners of the trees, and without going into the oral evidence on the record he upheld the decree of the Munsif.

2. In revision the point is again raised as to whether the lower Courts had jurisdiction. Now, in Arur Singh v. Bua Ditta (1) it was held that an appellate judgment deciding, though erroneously, that the Court of first instance had jurisdiction to hear a suit, is not open to revision by the Chief Court under Section 70(1)(a) of the Punjab Courts' Act, the lower appellate Court having had jurisdiction to entertain and decide the appeal. The learned Judge followed a previous Division Bench ruling reported as Dowlat Ram v. Asa Ram (2), and therefore, I am not prepared to interfere in revision on a question of jurisdiction. The question is, moreover, a difficult one in the present case. It appears that the plaintiffs were originally muafidars of the land and that at the present time they receive a share of the produce from the proprietors (defendants-petitioners) in lieu of the land revenue which was previously paid to them. Whether this fact establishes the relationship of landlord and tenant between the parties is arguable. Having regard to the fact that the appellants are the proprietors of the land the presumption certainly appears to be that they are owners of the trees growing thereon. I have read the judgment of the Financial Commissioner of 1894 and I find that the question there was whether the new settlement should be 'made with the muafidars or with the owners of the land. It was decided that the settlement should be made with the muafidars and incidentally the Financial Commissioner remarked that they were adna maliks of the land, though this point was not clearly in issue at that time. Now, Article 139 of Rattigan's Digest shows that the ala maliks usually levy a sort of customary rent from the adna maliks. If this is correct the plaintiffs, who receive half the produce from the defendants, would be the ala maliks and the defendants would be the adna maliks, and not vice versa. However this may be, I consider that the onus was heavily upon the plaintiffs to prove that they were entitled to the trees growing on the land. I do not think that it can be said that the plaintiffs have established that they are adna maliks of the land, and, therefore, the reasons given by the learned Subordinate Judge for decreeing their claim are not sound. I have had the oral evidence read to me and, in my opinion, it is quite insufficient to rebut the initial presumption.

3. I, therefore, allow the revision and setting aside the decree of the Courts below, dismiss the plaintiff's suit. Under all the circumstances of the case I direct the parties to bear their costs in all the Courts.