ORDER Shiv Dayal, J. This is an appeal under Order 43, rule 1 of the Civil Procedure Code against an order of remand passed under Order 41, rule 23 of the Code. The plaintiff's suit was dismissed by the trial Judge on the ground that a civil suit was not competent. The first appellate Court has reversed that finding and, holding that the suit lay in the civil Court, remanded the case. The plaintiffs' suit is for recovery of possession of fields numbers 119/2 and 124/2 in village Urnot Tahsil Basoda. Jurisdiction of the civil Court was challenged by Narain Rao defendant on the ground that previously the plaintiff had instituted a suit in the Court of the Tahsildar under the provisions of the Quanoon Mal Gwalior State and the suit having failed in all the Courts upto the Board of Revenue, the present suit was barred by section 377 of the Quanoon Mal. It is the plaint which must determine whether the suit is competent or not. It was alleged in the plaint that a partition took place of village Arnot in which 12 annas share of Ganga Prasad (defendant No. 2) was separated by metes and bounds from the 4 annas share of Narain Rao. Out of the land which fell to his share, Ganga Prasad let out to the plaintiff fields Nos. 119/2 and 124/2 under a patta dated July 17, 1944; Ganga Prasad gave possession to the plaintiff of the demised land; Ganga Prasad was paid lagan by the plaintiffs upto Samvat 2007 and thereafter he paid lagan to the patel up to Samvat 2011; however on June 15, 1945 Narain Rao defendant had unlawfully dispossessed him and thereafter refused to restore possession. From these allegations it is clear that the plaintiff's suit is based on his right to possession by virtue of the patta granted to him by Gangaprasad. On a perusal of the judgment of the revenue Courts it seems quite clear to me that the plaintiffs' suit was dismissed on the finding that the plaintiffs had not been put in actual possession of the land by Ganga Prasad. On a perusal of the judgment of the revenue Courts it seems quite clear to me that the plaintiffs' suit was dismissed on the finding that the plaintiffs had not been put in actual possession of the land by Ganga Prasad. It is settled law that a summary suit for restoration of possession under section 326 of the Quanoon Mal lay only on the ground that the plaintiff was in actual possession and was unlawfully dispossessed by the defendants and that a decree could not be passed under that section on the basis of a right to possession. A suit founded on actual possession which is disturbed is different in its nature from one which is based on the right of possession. Suits belonging to the second category do not fall within the purview of section 326 of the Quanoon Mal. The present suit is essentially based on the plaintiffs' right to possess founded on the patta granted to him by Ganga Prasad on July 17, 1944, which patta it is alleged he was entitled to grant as a separated owner of the suit land. Shri Shejwalkar lays stress on the allegations contained in the plaint that they were in actual possession but were subsequently dispossessed by the first defendant. Whether the finding of the revenue Court that the plaintiffs were not given possession by Ganga Prasad will or will not be res judicata in the suit is a question different from the question of jurisdiction of the civil Court with which I am dealing. Since I find that the suit is based on the plaintiffs' right to possession, it is (sic) and I see no error in the ultimate conclusion reached by the learned District Judge. This appeal is dismissed with costs. Appeal dismissed