JUDGMENT

Ghulam Hasan, J - This is a revision under Section 115, Civil P.C., against the judgment and decree, dated 23rd February 1939, passed by the first Munsif in addition to strength at Sultanpur, decreeing the plaintiff's suit. The plaintiff-opposite party came to Court on the allegations that one Ram Bharosey who was in possession of the land in dispute, transferred the same by means of a deed of gift on 8th July 1938, in favour of the plaintiff, and subsequently died in August 1938, and that the plaintiff was in possession of the said land but was forcibly dispossessed by the defendants in Kuar 1938. He, therefore, claimed possession of the land in suit. The suit was filed under Section 9, Specific Belief Act. The allegations in the plaint mentioned above clearly contemplated a summary relief under the provisions of that section. The defendants denied the plaintiff's claim but admitted that they had taken possession of all the properties of Ram Bharosey and cultivated his fields. The learned Munsif framed one issue, namely, whether the plaintiff had been dispossessed from the properties in suit as alleged. He believed the evidence produced by the plaintiff and disbelieved that of defendant 1, and recorded the finding that the plaintiff had been in possession of the properties in suit since July 1938, and that defendants 1 to 8 had taken forcible possession of the same.

2. In this revision application the learned Counsel on behalf of the defendants has argued that the suit was not cognizable by the civil Court and should have been filed in the revenue Court as contemplated by Clause 10 of Section 108, Oudh Bent Act. Relianee is plaiped in support of this contention upon a decision of the late Court of the Judicial Commissioner of Oudh reported in Fateh Mohammad v. Bhawani Sheikh ('11) 14 O.C. 60. It appears that in para. 7 of the written statements of defendant 1 and defendants 3 to 6 it was alleged that the suit related to tenancy land, that the defendants were the proprietors and, therefore, the suit was not cognizable. On the strength of these allegations it is urged, that the point was taken up in the trial Court. No issue was framed by the trial Court on the alleged plea of jurisdiction, and there is no reason to think that if the defendants desired to raise the plea of the maintainability of the suit they would have no doubt asked for an issue on that point. The point, however, has been taken in the memorandum of revision presented to this Court, and although it was the plain duty of the defendants to have expressly raised the plea of jurisdiction in the trial Court and pressed for an issue I am not prepared to reject the plea upon this technical ground. Having regard to the allegations in the plaint to which reference has already been made, I am satisfied that the plaintiff neither asserted nor admitted that he was either a tenant in his own right or an heir of the deceased tenant. He did not put forward a case of tenancy and did not allege that he was the tenant of the land and had been illegally dispossessed therefrom by the landlord. On the other hand, ho clearly asserted that he was in possession of the land in dispute on the basis of the gift.

3. The land is described in the plaint as muafl. It is not possible to say in the absence of any evidence on the record whether this muafi land was transferable or not. In any case, even if the land being tenancy was not transferable, clearly the deed of gift conferred no rights upon the plaintiff, whose possession was no better than that of a trespasser, who had taken possession of the land, and was in peaceful possession thereof until he was dispossessed by the defendants. There is nothing in Section 9, Specific Belief Act, to prevent such a person from bringing a suit in civil Courts and ask for a summary remedy as provided under that section. The case cited by the learned Counsel on behalf of the applicants is clearly distinguishable. There the Munsif had made a ref