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PETITIONER: SONAWATI & ORS.

       Vs.

RESPONDENT: SRI RAM & ANR.

DATE OF JUDGMENT: 21/09/1967

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SIKRI, S.M. SHELAT, J.M.

CITATION:  1968 AIR  466            1968 SCR  (1) 617  CITATOR INFO :  F          1971 SC 673  (2)  R          1972 SC2157  (15,16)  R          1976 SC1485  (15)  D          1979 SC1769  (30)  RF         1983 SC1139  (11)

ACT: U.P. Zamindari Abolition and Land Reforms Act 1 of 1951.  s. 20(b)-Person  recorded  as  occupant’ in 1356  Fasli  to  be adhivasi Requirements of section. U.P.  Land  Reforms  (Supplementary)  Act  31  of  1952,  s. 3--Adhivasi rights under-Trespasser whether can claim to  be in ’cultivatory possession’ within meaning of Section. Practice-Dispute   as  to  rights  in   land-Magistrate   in proceedings under s. 145 Cr.  P.C. attaching land and asking parties  to  go  to Civil  court-Defendants  in  civil  suit acquiring possession from criminal court pursuant to  decree of first appellate court-High Court in second appeal whether can grant decree for Possession after allowing amendment  of plaint for that purpose.

HEADNOTE: The  respondents  purchased  the land in  dispute  from  the bhumidhars thereof, but ’P’ (predecessor-in-interest of  the appellants)  claimed to be in possession of the land  and  a dispute  was  raised under s. 145 of the  Code  of  Criminal Procedure.   The Magistrate attached the land and  relegated the  parties  to  a suit.  The respondents  filed  a  plaint seeking  a declaration of their rights and removal  of  ’P’s name  from  the  record of rights.  The  trial  court  after getting a finding from the Revenue Court granted a decree to the respondents.  The first Appellate Court however  decided in  favour of ’P’ and on the basis of that finding  ’P’  got possession from the criminal court.  The respondents went in second  appeal  to  the High Court which  decided  in  their favour  and  gave them a decree for possession of  the  land after allowing them to amend their plaint by adding a prayer for  possession.   The  appellants came to  this  Court  and urged: (i) ’P’ was recorded as an occupant’ in the khasra of 1356  Fasli  and  therefore  under  s.  20(b)  of  the  U.P. Zamindari Abolition and Land Reforms Act 1 of 1951 he was an

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adhivasi,  (ii)  ’P’ was recorded as  in  ’cultivatory  pos- session’  of the land in 1359 Fasli and on that ground  also he  was an adhivasi; (iii) the High Court was bound  by  the findings of the first Appellate Court that the appellant was an ’occupant’ in 1356 Fasli and in cultivatory possession in 1359  Fasli:  (iv)  A suit for  possession  even  against  a trespasser  could lie only in the ’Revenue Court and not  in the Civil Court, and the High Court by allowing amendment of the  plaint in the second appeal could net assume to  itself jurisdiction which civil courts do not possess. HELD:     (i) The entry in the Khasra of 1356 Fasli on which the  appellants relied did not fulfil the requirements of  s 20(b)  of Act 1 of 1951.  ’P’ was not shown in the entry  as ’Kahiz’  or  ’Snihi’ etc.  There was  also  strong  evidence which was relied on by the Revenue Court but not  considered by  the  first  Appellate Court that the  name  of  ’P’  was surreptitiously  entered  in  the  Khasra  of  1356  P.  The appellant’s  case  under  s.  20(b)  of  the  Abolition  Act therefore failed. [621A-F] Amba Prasad v. Abdul Noor Khan & Ors., [1964] 7 S.C.R.  800, referred to. 618 (ii) The appellants’ case under s. 3 of U.P. Act 31 of  1952 also  could  not be sustained.  To get the  benefit  of  the section  it  had  to be. established that P  was  in  actual cultivatory  possession of the land in 1359 F and that  fact had  not been established by direct evidence of  possession, nor  was  it established by the entry relied on by  him.   A person  who  has no right to occupy land may rely  upon  his occupation  against a third person who has no better  title, but  he  cannot set up that right against the owner  of  the land.  Section 3 conferred rights upon persons in possession of  land against the tenure holders, it was not intended  to put  a premium upon forcible occupation of land by  landless citizens.   Possession  of a person in  wrongful  occupation could  not be deemed to be ’cultivatory  possession’  within the meaning of the section. [622F-623F] Ram  Krishna v. Bhagwan Baksh Singh, [1961] A.L.J. 301,  ap- proved. Nanhoo  Mal  V.  Muloo and Ors.,  I.L.R.  [1963]  All.  751, disapproved. (iii)     The  High Court was not bound in the present  case by the, findings of the first Appellate Court as the  latter had  ignored important evidence on record which proved  that the entries relied on by ’P’ were not genuine. [623G] (iv) The  High  Court rightly granted to the  respondents  a decree for possession after allowing the respondents to  add a  prayer  for possession to their plaint.   When  the  High Court  held  in  favour of  the  plaintiffs-respondents  and rejected  the claim made by ’P’ it was justified and  indeed bound,  to  avoid  giving  a fresh  lease  of  life  to  the litigation and to make an order consistently with the rights declared  by  it, since ’P’ had during the pendency  of  the suit managed to obtain possession of the land from the Court Officer  who was in possession of the land.  A party who  is defeated  on the merits of the dispute! may not by  securing an order from another court during the pendency of the  suit be permitted to displace the jurisdiction of the civil court to  try  the suit which was within its competence  when  the suit was filed. [625D-E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 34 of 1965.

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Appeal  by special leave from the judgment and decree  dated November  6,  1962  of the Allahabad High  Court  in  Second Appeal No. 3745 of 1958. B.   C. Misra and S. S. Shukla, for the appellants. S.   P.  Sinha, E. C. Agarwala and P. C. Agarwala,  for  the respondents. The Judgment of the Court was delivered by Shah,  J. A piece of agricultural land bearing  Survey  Nos. 723/2,  724,  725  and 726 of  Naugawan,  tahsil  Fatehabad, District Agra, originally belonged, to two brothers Tota Ram and  Lajja Ram.  Tota Ram and Lajja Ram were declared to  be bhumidhars in respect of that land and a Sanad was issued in their  favour  under s. 7 of the U.P. Act 10  of  1949.   On October 20, 1951, Tota Ram and Lajja Ram sold their interest in the land 619 to two brothers Sri Ram and Ram Prasad who will  hereinafter be called ’the plaintiffs’.  Disputes arose thereafter about the possession of the land between one Pritam Singh and  the plaintiffs,  and  proceedings under s. 145 of  the  Code  of Criminal  Procedure were started before the Sub-Divisional Magistrate  at  the  instance of  Pritam  Singh.   The  Sub- Divisional Magistrate attached the land and called upon  the parties to agitate the dispute as to their respective rights therein in a civil suit. The plaintiffs then commenced an action in the Court of  the Munsif,  Fatehabad, against Pritam Singh and Tota Ram for  a declaration  of their rights as bhumidhars in possession  of the  land in suit and for an order "expunging" the  name  of Pritam  Singh  from  the  revenue  records.   Pritam   Singh resisted the suit contending, inter alia, that the land  was abandoned  by Tota Ram and Lajja Ram and that since  it  was under  his  cultivation continuously since Fasli  year  1356 (the  year commencing from July 1, 1948 and ending  on  June 30,  1949) he had acquired the rights of an adhivasi in  the land and he was not liable to be evicted from the same.  The Munsif  referred  the  following issue arising  out  of  the pleadings to the Assistant Collector, Agra, for decision: "Whether  the  defendant No. 1 (Pritam Singh)  has  acquired adhivasi rights, if so, its effect?" The  Assistant Collector held that the revenue  records  did not "how that Pritam Singh was in possession at any time  in or before ’the end of 1359 Fasli and that the entries in the khasra  relied upon by Pritam Singh had been  fabricated  to support  his  case.  Consistently with the  finding  of  the Assistant Collector, the Munsif passed judgment in favour of the plaintiffs.  But in appeal to the District Court,  Agra, that  judgment was reversed.  The Appellate Judge held  that the  revenue  entries  were genuine entries  posted  by  the Patwari  in discharge of his duty and that Pritam Singh  was in possession in the year 1356 Fosli and also in 1359  Fasli and  he  had  acquired  the  rights  of  an  adhivasi.   The plaintiffs  then  carried the dispute to the High  Court  of Allahabad.  The High Court reversed the decree passed by the First Appellate Court and restored the decree of the Munsif. With  special leave, the heirs and legal representatives  of Pritam Singh have appealed to this Court. It  was  not the case of Pritam Singh that he  has  acquired title  to  the land by transfer or  by  adverse  possession. Pritam  Singh relied merely. upon the entries in khasra  for 1356 Fasli and his claim of possession of the land in  Fasli 1359,  and  upon  statutory consequences  arising  from  the entries  under s. 20(b) of the U.P. Zamindari Abolition  and Land  Reforms  Act  1 of 1951, and s. 3  of  the  U.P.  Land Reforms (Supplementary) Act 31 of 1952.  The U.P.  Zamindari

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Abolition  and Land Reforms Act 1 of 1951 was  brought  into force  from  July  1, 1952.  By s. 20  certain  rights  were conferred upon persons whose names were recorded 620 in the revenue records in respect of agricultural land.  The material  clause  (b) of s. 20 on which reliance  is  placed reads as follows: "20.  Every person who- (a)               (b) was    recorded as occupant--               (i)   of  any land (other than grove  land  or               lands  to  which section 16  applies)  in  the               khasra or khatauni prepared under sections  28               and  33 respectively of the U.P. Land               Revenue  Act,  1901, or who was  on  the  date               immediately  preceding  the  date  of  vesting               entitled  to regain possession  thereof  under               clause (c) of sub-section (1) of section 27 of               the United Provinces Tenancy (Amendment)  Act,               1947, or The  land  in dispute is not grove land, nor it is  land  to which  s. 16 of the Act applies.  Pritam Singh claimed  that his  name was entered as an occupant in the khasra  of  1356 Fasli prepared under the U.P. Land Revenue Act, 1901, and he was on that account entitled to the rights of an adhivasi in respect  of  the land.  It was held by this  Court  in  Amba Prasad  v. Abdul Noor Khan and Others(1) that s. 20 of  U.P. Act  1 of 1951 does not require proof of actual  possession: it   eliminates  inquiries  into  disputed   possession   by accepting the record in the khasra or khatauni of 1356 Fasli or  its  correction before July 1, 1952.  In  view  of  that decision it must be held that the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession  of  the land or held the right as  an  occupant: cases  of  fraud  apart, the entry in the  record  alone  is relevant. But the entries on which reliance was placed by Pritam Singh do not support his case that he was recorded as an  occupant in  the khasra or khatauni of 1356 Fasli.  In the  certified extract  of the khasra for 1356 Fasli (Ext.  A/ 1)  tendered in evidence by Pritam Singh in the column ’Name and caste of cultivator’  the entry is "Tota Ram and others" and  in  the column for ’remarks’ the entry is "Pritam Singh s/o Pyarelal of  Sankuri".   Our attention has not been  invited  to  any provision of the U.P. Tenancy Act or instructions issued  by the  Revenue  authorities which tend to establish  that  the name  of an occupant of land is liable to be entered in  the column  reserved for ’remarks’.  In order that a person  may be  regarded as an adhivasi of a piece of land, s. 20(b)  of Act 1 of 1951 requires that his name must be recorded in the khasra  or  khatauni  for 1356 Fasli as  an  occupant.   The Assistant  Collector  has  pointed  out  that  according  to paragraph 87 of the Land Records Manual it is necessary  for a Patwari to make an (1) [1964] 7 S.C.R. 800. 621 enquiry  about the status of the occupant, and if he  thinks that a claimant is an occupant, he should enter the name  in red  ink in khsra as-"Kabiz, sajhi etc.". Admittedly  Pritam Singh  was  not shown as Kabiz or sajhi nor  was  the  entry posted in red ink. There is also strong evidence on the record which shows that the name of Pritam Singh was surreptitiously entered in  the khasra  for  1356  Fasli.   In  the  khasra  Barahsala  i.e.

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consolidated  khasra  for 1347 to 1358 Fasli  Tota  Ram  and Lajja  Ram  are shown its persons cultivating the  land  and there  is  no record of the name of any  sub-tenant  on  the land.  Before the Assistant Collector two certified extracts of  the  khasra  for 1356 Fasli in respect of  the  land  in dispute were produced.  In the certified extract Ext.  A/  1 tendered by Pritam Singh his name was shown in the ’remarks’ column. in the certified extract tendered by the  plaintiffs there  was no such entry.  The Assistant Collector  did  not call  for the original record, nor did he attempt  to  probe into  the circumstances in which the entry of  Pritam  Singh dame  to be made.  He, however, observed that in Ext.  A/  1 the name of Pritam Singh was entered in the ’remarks’ column against  Survey  No. 723/1 which had fallen  in  an  earlier partition  to  the share of one Kunjilal and in  respect  of which  Pritam Singh had never claimed any right.  The  First Appellate  Court did not refer to these important pieces  of evidence.  His conclusion cannot be regarded as binding upon the High Court in Second Appeal. It must therefore be held that relying upon the entry of his name  in the ’remarks’ column in the khasra for  1356  Fasli Pritam  Singh  could not claim that he had  established  his rights as an adhivasi of the land under s. 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of 1951. The  alternative  case under s. 3 of the U.P.  Land  Reforms (Supplementary)  Act  31  of 1952  may  now  be  considered. Section  3  of  Act 31 of 1952 provides, insofar  as  it  is material:               "(1)  Every  person  who  was  in  cultivatory               possession  of any land during the  year  1359               fasli   but  is  not  a,  person  who   as   a               consequence of vesting under Section 4 ’of the               U.P. Zamindari Abolition and Land Reforms Act,               1950   (U.P.  Act  1  of  1951)   (hereinafter               referred  to  as the said Act), has  become  a               bhumidhar  sirdar,  adhivasi  or  asami  under               Sections 18 to 21 of the said Act shall be and               is hereby declared to be, with effect from the               appointed date-               (a)   if the bhumidhar or sirdar- of the  land               was, or where the land belongs jointly to  two               or  more  bhumidars or sirdars,  all  of               them  were,  on the appointed date  person  or               persons  referred  to in item (i) to  (vi)  of               sub-section (2) of Section 10 of the said Act,               an asami from year to year, or               622               (b)   if the bhumidhar or sirdar was not  such               a person, an adhivasi,               and shall be entitled to all the rights and be               subject  to all the liabilities  conferred  or               imposed  upon an asami or an adhivasi, as  the               case may be, by or under the said Act.               Explanation-A person shall not be deemed to be               in  cultivatory possession of the land, if  he               was   cultivating  it  as  a  mortgagee   with               possession  or  a thekedar, or he  was  merely               assisting  or participating with  a  bhumidhar               sirdar,  adhivasi  or asami concerned  in  the               actual     performance     of     agricultural               operations." The   section  appears  to  be  somewhat  involved  in   its phraseology.  But its purport is fairly clear.  A person who is  not in consequence of the provisions of ss. 18 to 21  of the  U.P.  Act 1 of 1951 a bhumidhar,  sirdar,  adhivasi  or

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asami but who is in "cultivatory possession" of land  during 1359  Fasli  shall be entitled to the rights in  respect  of that land of an asami from year to year if the bhumidhar  or sirdar of the land was on the appointed date a person who is referred to in item (i) to (vi) of s. 10(2) of the U.P.  Act 1  of  1951, and he shall be entitled to the  rights  of  an adhivasi  if the bhumidhar or sirdar of the land was  not  a person  referred to in items (i) to (vi) of s.  10(2).   The U.P.  Act  31  of 1952 was enacted to  grant  protection  to certain persons who had been in "cultivatory possession"  of land in the holdings of bhumidhars or sirdars, and had  been or  were being forcibly evicted from the land by the  tenure holders.  The language of the section clearly shows that  it was  intended  to grant the rights of an asami  or  adhivasi according  as the case fell within cl. (a) or cl. (b)  to  a person  who had been admitted to cultivatory possession  and who was in such possession in 1359 Fasli. Pritam Singh had no right to the land at all and the revenue record shows that till the end of 1358 Fasli i.e. till  June 30, 1951, the land was not in his possession.  Pritam  Singh is  recorded in the khasra of 1359 Fasli in the  column  for shikmi (sub-tenant) as without settlement of rent", and Tota Ram  and  Lajja  Ram are entered  as  cultivators.   In  the khatauni for 1359 Fasli Pritam Singh is shown as "cultivator for’  one  year,  without settlement of  rent".   There  are similar  entries in the khasra and khatauni for 1361  Fasli, and in 1362 Fasli the names of the plaintiffs are entered in the  column of cultivator, and the name of Pritam  Singh  is shown in the column for shikmi. The  scheme  of  s. 3 of the U-J.P.  Land  Reforms  (Supple- mentary) Act, 1952 is different from the scheme of s.  20(b) of  the U.P. Zamindari Abolition and Land Reforms Act  1  of 1951.   Whereas  under  Act  1 of 1951  the  entry  is  made evidence  without  further enquiry as to his  right  of  the status  of the person who is recorded as an occupant,  under s.  3 of the U.P. Land Reforms (Supplementary) Act, 1952,  a person who claims the status of an asami or an adhivasi must establish that he was in "cultivatory 623 possession"  of  the land during the year 1359  Fasli.   The expression  " cultivatory possession" is not defined in  the Act,  but the Explanation clearly implies that the  claimant must  have a lawful right to be in possession of  the  land, and  must  not  belong  to  the  classes  specified  in  the explanation.  "Cultivatory possession" to be recognized  for the  purpose  of the Act must be lawful, and for  the  whole year  1359  Fasli.  A trespasser who has no right to  be  in possession  by  merely entering upon the  land  forcibly  or surreptitiously   cannot   be  said  to  be  a   person   in "cultivatory possession" within the meaning of s. 3 of  U.P. Act 31 of 1952.  We are of the view that the Allahabad  High Court  was right in holding in Ram Krishna v. Bhagwan  Baksh Singh(1)  that  a person who through force  inducts  himself over  and  into  some land and succeeds  in  continuing  his occupation  over  it  cannot be said to  be  in  cultivatory possession of that land so as to invest him with the  rights of an asami or an adhivasi, and we are unable to agree  with the  subsequent  judgment of a Full Bench of  the  Allahabad High  Court  in  Nanhoo  Mal v.  Muloo  and  others(2)  that occupation  by a wrongdoer without any right to the land  is "cultivatory  possession" within the meaning of s. 3 of  the U.P. Act 31 of 1952. A  person who has no right to occupy land may rely upon  his occupation  against a third person who has no better  title, but  he  cannot set up that right against the owner  of  the

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land.  It must be remembered that by s. 3 of U.P. Act 31  of 1952  the  Legislature  conferred  rights  upon  persons  in possession  of land against the tenure holders, and  in  the absence of any express provision, we are unable to hold that it  was intended by the Act to put a premium  upon  forcible occupation  of land by lawless citizens.  We have  no  doubt therefore  that  by forcibly occupying the land  after  1358 Fasli,  Pritam  Singh  could  not  acquire  as  against  the bhumidhar of the land the rights of an adhivasi by virtue of s. 3 of U.P. Act 31 of 1952. Counsel  for  the  appellants  contended  that  the  finding recorded by the First Appellate Court that Pritam Singh  was in  "cultivatory possession" in 1359 Fasli was binding  upon the  High Court in Second Appeal.  For reasons  already  set out, possession of a person in wrongful occupation cannot be deemed cultivatory possession.  Again the Appellate Judge in arriving  at his conclusion ignored very important  evidence on  the record, and on that account also the conclusion  was not  binding  on the High Court.  Pritam  Singh’s  name  was recorded in the khasra for the year 1359 Fasli as sub-tenant "without settlement of rent".  Pritam Singh did not offer to give evidence at any stage of the trial before the Assistant Collector, and it was not his case that he had  entered into any  contract  of sub-tenancy with Tota Ram and  Lajja  Ram. The entry which records him as a sub-tenant of Tota Ram  and Lajja Ram for the year 1359 Fasli is on his own case (1) [1961] A.L.J. 301.      (2) I.L.R. [1963] All. 751. 624 untrue.  There is further no oral evidence in support of the case  of  Pritam Singh that he was  in  actual  "cultivatory possession"  of land and the entry relied upon by  him  does not  support his case.  To get the benefit of s. 3  of  U.P. Act  31 of 1952, it had to be established that Pritam  Singh was  in actual cultivatory possession of the land  and  that fact  is not established by direct evidence  of  possession, nor is it established by the entry relied upon by him.   The conclusion of the learned Appellate Judge that Pritam  Singh was in "cultivatory possession" was partially founded on the conclusion  recorded by him that in 1356 Fasli Pritam  Singh was in possession of the land.  We have already pointed  out that  in so concluding he misread the khasra entry for  1356 Fasli  and  gave no effect to the  khasra  Baralisala  which showed  that Pritam Singh was not in possession of the  land till the end of 1358 Fasli.  The learned Judge also inferred that  because it was stated by Sri Ram the  first  plaintiff and his witness Maharaj Singh that no crops were  cultivated during  the Kharif season and as the khasra for  1359  Fasli showed that Bajra was sown in one of the plots in 1359 Fasli and gram was raised in all the plots, Pritam Singh must have been in possession as a sub-tenant and must have  cultivated the land in the Kharif season of 1.359 Fasli.  This was,  in our judgment, a far-fetched inference.  The Appellate  Judge also  did  not  refer to other  evidence  to  which  pointed attention was directed in support of his conclusion, by  the Assistant  Collector Agra: for instance, Banwari  Lal,  Naib Registrar examined on behalf  of the plaintiffs had  clearly stated that Pritam Singh was not in     possession  of   the land prior to 1359 Fasli and that Tota Ram who was  examined as a witness stated that Pritam Singh was not in  possession of the land and he had not given the land to Pritam Singh on lease,  and that he did not receive rent from Pritam  Singh. We are unable, therefore, to hold that a conclusion  arrived at only from an entry in the revenue records which does  not prima facie support the case of Pritam Singh, that he wrong- fully  trespassed  upon the land and cultivated  it  may  be

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regarded  as  conclusive in Second Appeal.  The  High  Court was, in our judgment, right in reaching the conclusion  that Pritam Singh was not in "cultivatory possession" of the land in 1359 Fasli within the meaning of s. 3 of Act 31 of 1952. Counsel  for the appellants finally contended that the  High Court  was  incompetent in this suit to grant a  decree  for possession of the land to the plaintiffs.  Counsel submitted that a suit for possession, even against a trespasser, could lie  only in the Revenue Court and not in the  Civil  Court, and  the High Court by allowing amendment of the  plaint  in the  Second Appeal before it could not assume to itself  the jurisdiction  which  the Civil Courts do not  possess.   Our attention was not invited to any provision which enacts that even against a rank trespasser the Civil Court may not  pass a decree, in favour of an owner of the land, in ejectment in respect  of agricultural land.  But even assuming  that  the statute 625 law in the State of U.P. warrants that submission, we  think that the High Court had jurisdiction in the circumstances of the  Present  case to allow amendment of the plaint  and  to grant  a decree for possession. it may be recalled that  the plaintiffs had originally tiled a suit for a declaration  of title  and  for  injunction restraining  Pritam  Singh  from interfering with their possession.  The land was at the date of the suit under attachment by the order of the Magistrate, Ist Class, Agra, in proceedings under s. 145 of the Code  of Criminal  Procedure,  started  by  Pritam  Singh,  and   the Magistrate  had  directed  the parties  to  establish  their possession  or  right  to possession in  a  competent  Civil Court.  A suit for declaration and injunction in that  state of   affairs   was  Properly  filed.   If   the   plaintiffs established  their  title to the land, they could  claim  an order  from the Criminal Court for delivery  of  Possession, and an injunction restraining Pritam Singh from  interfering with their possession was an appropriate relief.  But it ap- pears  that  pursuant to the order of  the  First  Appellate court  Pritam  Singh obtained possession from  the  Criminal Court  and hereafter the plaintiffs amended the plaint  with the leave of the High Court and a decree for possession  was claimed.   When  the  High  Court  held  in  favour  of  the plaintiffs  and rejected the claim made by Pritam Singh,  in our  judgment,  the  High Court was  justified,  and  indeed bound,  to  avoid  giving  a fresh  lease  of  life  to  his litigation,  to make an order consistently with  the  rights declared  by it, since Pritam Singh had during the  pendency of  the suit managed to obtain possession of the  land  from the  Court  Officer who was in possession of  the  land.   A party  who is defeated on the merits of the dispute may  not by securing an order from another Court during the  pendency of a ,suit be permitted to displace the jurisdiction of  the Civil Court to, try the suit which was within its competence when the suit was filed. The appeal therefore fails and is  dismissed with costs. Appeal dismissed. 626