JUDGMENT 1. The Plaintiff, as a gaontia of the village, sued to eject the Defendant from certain waste lands described as gochar lands on the ground that the Defendant was a trespasser. The Defendant pleaded adverse possession for upwards of 12 years, and set up a tenancy of the land in question under the Plaintiff. Both the Courts below have found in favour of the Plaintiff, and they have directed him to be put in khas possession of the plots in suit. In second appeal, four contentions have been addressed to us on behalf of the Defendant-Appellant: first, that the Civil Court had no jurisdiction to entertain the suit; secondly, that a gaontia in the district of Sambalpur cannot eject an occupier of land through the Civil Court, but that he can do so through the agency of the Settlement department at the periodical quadrennial revisions of Settlement thirdly, that whether the Defendant paid rent or not to the Plaintiff, he is a tenant of the land and cannot be ejected as being a trespasser; and, fourthly, that Inasmuch as the Defendant was recorded and recognized by the Settlement Officer as raiyat at the recent settlement, he cannot be ejected in the suit of a gaontia. 2. The question of jurisdiction was not taken at any previous stage In this litigation. It is not referred to in any of the grounds of appeal, nor did It form the subject of any of the Issues raised. But in accordance with settled law on the subject, we allow it to be taken in second appeal; though if that question depends for Its determination upon facts, and those facts have not been found by the lower Appellate Court or the Court of first Instance, an Appellant cannot ask this Court to find them; the Appellant must substantiate his contention, if he can, on the facts already found. If he is unable to point to any facts in support of his plea, that plea must necesarily fail. The learned vakil for the Defendant-Appellant relies on the provisions of sec. 152 of the Central provinces Land Revenue Act XVIII of 1881. If he is unable to point to any facts in support of his plea, that plea must necesarily fail. The learned vakil for the Defendant-Appellant relies on the provisions of sec. 152 of the Central provinces Land Revenue Act XVIII of 1881. That section provides "(a) no Civil Court shall entertain any suit instituted, or application made to obtain a decision or order on any matter which the Governor-General in Council, the Chief Commissioner or a Revenue or Settlement officer is by this Act empowered to determine or dispose of; and in particular (b) no Civil Court shall exercise jurisdiction over any of the matters provided for in sec. 40, 41, 42 and 89 as to waste lands." He has also called our attention to sec. 77 (b) of the said Act which says "the Settlement officer may determine disputes regarding the rights of persons resident in the village or holding lands comprised in the mehal, in or to the common land of the mehal, and its produce and the village site." We are not aware whether the Settlement officer was empowered in the manner prescribed by the Act to determine or dispose of the precise question arising between the parties to the present litigation, nor are we aware of the precise meaning to be attached to the expression "common land." These are matters which ought to have been brought forward In the lower Courts in order that the necessary facts bearing upon the question of jurisdiction might have been decided so that the question of law might have been subsequently raised and determined in special appeal if not earlier. 3. On the facts as we find them in the judgment of lower Appellate Court, we do not see that there was any defect of jurisdiction. It admits of no doubt that the ordinary Civil Courts cannot be ousted of their jurisdiction in the absence of an express provision of law to that effect. 4. As a matter of construction we think that gochar lands cannot be classed in the same category as common lands. Gochar lands appear to be lands reserved for the proprietor of a Government village In the district of Sambalpur, while on the other hand 'common, lands' appear to be the property of the general body of villagers. 5. 4. As a matter of construction we think that gochar lands cannot be classed in the same category as common lands. Gochar lands appear to be lands reserved for the proprietor of a Government village In the district of Sambalpur, while on the other hand 'common, lands' appear to be the property of the general body of villagers. 5. The case of Manbodh v. Asai 10 C.P.L.R.17, although not precisely in point, shows that the Civil Courts cannot be ousted of their jurisdiction in the absence of specific notifications issued by the Chief Commissioner under the Land Revenue Act. We accordingly overrule the first contention in Bar. 6. Then with regard to the contention that a gaontia cannot eject an occupier of land through the Civil Court, it is urged that the gaontia is not in the position of a proprietor but that he is a mere farmer under the Government. This view does not derive support from sec. 4 (8A) of Act XVIII of 1881 where the word 'proprietor' is defined as including a gaontia of a Government village in the Sambalpur district except in sec. 4 cl. (b), and in sees. 61, 62, 63 and 69. 7. The excepted sections refer to allowances made to excluded proprietors and to the determination on record of sir land. For the purposes of the present suit, the Plaintiff as gaontia of the village must be taken to be a proprietor of the same and entitled to bring an action in ejectment. 8. On the third contention that whether the Defendant paid rent or not, he is a tenant on the land and cannot be ejected as a tresspasser, we cannot disturb the finding of the lower Appellate Court that the Defendant is a trespasser and that he has not succeeded in making out his tenancy. We have, however, thought it proper to consider the provisions of the Acts brought to our notice, although on the findings arrived at by the two lower Courts, it was not necessary to do so. 9. We have, however, thought it proper to consider the provisions of the Acts brought to our notice, although on the findings arrived at by the two lower Courts, it was not necessary to do so. 9. Lastly, the recognition of the Defendant's tenancy by the Settlement department took place after the institution of the suit giving rise to the present appeal, and the Civil Court must adjudicate on the rights of the parties as they existed when the plaint was filed and not on any title subsequently derived, see Ramanadan Chetti v. Pulikutti Servai ILR 21 Mad. 288 (290) (1898). Moreover, the entry in the Settlement record is not conclusive : it is only a matter of presumption. Nor can the Defendant be regarded as a tenant within the meaning of sec. 2 (10), Explanation II of the Central Provinces Tenanoy Act XI of 1898, which says--" the holder of a Survey number in a village let in farm by Government, or held by a gaontia in the Sambalpur District is a tenant of the farmer or gaontia for the time being." The holding of a Survey number must, of course, have reference to the holding when the proceedings in a Civil Court are initiated, and it cannot avail the Defendant that in a subsequent Settlement he was recorded as a tenant He may be a tenant in the eye of the Settlement department, but for the purposes of the present litigation we cannot regard him as such. In the result, the decision of the lower Appellate Court appears to be quite correct and we accordingly dismiss the appeal with costs.