JUDGMENT 1. - This is Civil Misc. Appeal under Order 43, Rule 1 CPC against the judgment of learned Civil Judge, Jaipur District, Jaipur dated 24-3-1975 in Civil Misc. Appeal No. 45/71 reversing the judgment of learned Munsif, Jaipur District dated 20th May, 1971 in civil suit No. 141/66 in a suit for possession and injunction. The plaintiff-respondents filed a suit against, the defendant alleging that there was a garden consisting of 2 bighas and 15 biswas of land, situated in Ajmer, popularly known as 'Duniwalon-ke-bag.' It was alleged that the land belonged to the ancestors of the plaintiffs and after resumption of their Jagir, it remained as their personal property. It was further mentioned that the Theka of said garden was given to the defendant since 1954 and was extended from time to time. Last Theka was given on 1-4- 957. The defendant did not pay the amount of Theka as such a suit was filed in the court of Munsif Jaipur, District Jaipur in which the defendant filed written statement that khatedari of the said land had been entered in his name and that Parcha lagan by the Settlement Department had also been issued in the name of defendant. It was contended by the plaintiffs that the defendant was not entitled to get any khatedari rights in the property and he had wrongly managed the entries of khatedari in his favour. It was further alleged that defendant was trespasser and, therefore, this suit was filed with the prayer that declaration be given that the defendant was not entitled to get any khatedari rights or rights as agriculturist in the disputed property of which the plaintiff were owners. It was also prayed that the defendant had mis-repressented and obtained Parcha-lagan from the Settlement Department, which also void and ineffective as against the plaintiffs and that the defendant was a trespasser. It was further prayed that a decree for possession and mesne profits be also given against the defendant. 2. In the written statement filed by the defendant-appellant it was, inter-alia, contended that the suit was not triable by the civil court and could be tried only by a revenue court The trial court framed 6 issues on 9-8 1968 and issue No. 2 was framed as under: "Whether this court had jurisdiction to try the suit? 2. In the written statement filed by the defendant-appellant it was, inter-alia, contended that the suit was not triable by the civil court and could be tried only by a revenue court The trial court framed 6 issues on 9-8 1968 and issue No. 2 was framed as under: "Whether this court had jurisdiction to try the suit? Since this was legal issue and required no evidence, the trial court heard the arguments and by its judgment dated 20th May, 1971 held that the land was agricultural land as recorded in the revenue record and Parcha-lagan having been obtained by the defendant, the suit was triable by the revenue court. It was, therefore, ordered that the plaint be returned to the plaintiffs for presentation to the proper court. The plaintiffs aggrieved by this order filed an appeal which was heard and decided by the learned Civil Judge, Jaipur District Judge, who held that the aforesaid issue could only be decided after taking evidence of the parties as to whether the land was Abadi land and, therefore, set-aside the judgment of the learned Munsif and remanded the case to the trial court with a direction that issue NO. 2 regarding jurisdiction be decided after giving opportunity of leading evidence to the parties and recording a finding whether the suit land was Abadi land. 3. Learned Counsel for the defendant appellants has urged that mere reading of the plaint itself clearly shows that the whole dispute related to agricultural land. The very prayer of the plaint shows that the plaintiffs prayed for a declaration that the defendant cannot acquire khatedari rights in the suit property and also prayed that Parcha-lagan has been obtained by the defendant by misrepresentation from the Settlement Department, which was illegal and ineffective against the plaintiffs and that the defendant was a trespasser and therefore, the plaintiffs were entitled for possession of the suit property and mense profit. Learned counsel for the appellants has drawn my attention to the provisions of Section 207 of the Rajasthan Tenancy Act, which read as under: "207. Learned counsel for the appellants has drawn my attention to the provisions of Section 207 of the Rajasthan Tenancy Act, which read as under: "207. Suits and applications cognizable by revenue court only-- (1) All suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court; (2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of such suit or application." A persual of Schedule-Ill of the Rajasthan Tenancy Act shows that in serial No. 5 it is mentioned "suit for declaration of the plaintiff's right: (i) as a tenant, or (ii) as a tenant of khudkast, or (iii) as a sub-tenant, or (iv) for a share in a joint tenancy."At serial No. 8, it is mentioned "suit for declaration of any other right" At serial No. 23 there is mention of "suit for ejectment of trespasser". Serial No. 26 mentions suit by or against grove holders in relation to determination, modification, recovery and payment of rent. At serial No. 27 there is mention of suit by or against grove holders for ejectment. It has also been pointed out that when in the plaint it has nowhere been mentioned by the plaintiffs that the land under suit was Abadi land, it: was not open to the appellate court to take up this plea on its own and set-aside the judgment of the trial court and remand the case for taking evidence on this plea and thereafter decide issue No. 2 regarding jurisdiction of the court. 4. Learned Counsel for the plaintiffs respondents has raised a preliminary objection that no appeal lies against the order of remand passed by the first appellate court as under Order 43 Rule 1(u) an appeal shall lie from an order under Rule 23 (or Rule 23A) of Order 43, CPC remanding the case from where the appeal would lie from the decree of the appellate court. It has been urged that since no decree has been passed by the trial court, therefore, this order cannot be deemed to have been passed under Order 41, Rule 23 or 23A CPC and, therefore, the appeal is liable to be dismissed on this ground. 5. It has been urged that since no decree has been passed by the trial court, therefore, this order cannot be deemed to have been passed under Order 41, Rule 23 or 23A CPC and, therefore, the appeal is liable to be dismissed on this ground. 5. Learned Counsel for the appellants has pointed out that under the provisions of Order 14, Rule 2 CPC, the court has been empowered to dispose of a suit on preliminary issue only where issues both of facts and law arise in the suit. If the Court is of the opinion that the case or any part is disposed of on any issue of law only, it can try that issue first if that issue relates to the jurisdiction of the court or a bar to the suit created by law for the time being in force. It has therefore been urged that the trial court was well within its rights to have disposed of the suit on preliminary issue which related to the jurisdiction of the court. 6. It is clear that Order 43 Rule 1(u) CPC is not applicable to the order passed by the trial court as no decree has been passed by its judgment, wherein it has been held that since the court had no jurisdiction to try the suit, the plaint should be returned for presentation to the proper court. How ever, when no appeal is provided against any order, a revision petition can be filed against such orders under Section 115 CPC. If the court has exercised its jurisdiction illegally or with material irregularity or has exercised the jurisdiction not vested in it by law. Therefore, this appeal can be treated as a revision petition in the interest of justice and is disposed of accordingly. 7. Learned Counsel for the respondents has urged that merely because the land has been termed to be agricultural land, that was not enough to oust the jurisdiction of the civil court. It is necessary to see the actual user of the same to determine its nature. Therefore, the first appellate court was right in remanding the case for taking evidence to determine the actual user of the land before reaching to any conclusion regarding the same. 8. I have heard the rival contentions of both the parties and have gone through the record. Therefore, the first appellate court was right in remanding the case for taking evidence to determine the actual user of the land before reaching to any conclusion regarding the same. 8. I have heard the rival contentions of both the parties and have gone through the record. In the plaint itself, it has been mentioned that the land is grove on which fruits trees are growing and it has been prescribed as 'Bag'. Further it has been prayed that it may be declared that the defendant had no khatedari rights in the said land and the parcha lagan allegedly obtained by the defendants by mis-representation should be held to be illegal and ineffective against the plaintiffs. Thus it is clear that the nature of the land has been fully described by the plaintiffs themselves and it has not been mentioned that the land is abadi land. My attention has been drawn to the case of Pundarik Pushkar Dutt v. State of Raj. ILR 1970 Raj 187 in which it has been held that if a plea is not taken, no amount of evidence can be looked into regarding the same. Reliance has been placed on AIR 1930 PC 57 . 9. In the case of Nathu Ram v. Firm Bhanware Lal Hiralal AIR 1971 Raj 473 , it has been held that if a plea of fact has not been taken in the trial court, the same cannot be allowed to be taken in appeal. In the case of Sheikh Abdul Sattar v. B.B. Rahazani and Ors. AIR 1977 SC 890 , it has been held that a party cannot be allowed to travel beyond pleadings. Reliance has been placed on AIR 1977 SC 890 . It is, therefore, clear from these authorities cited above that the learned first appellate Court has erred in law in directing that the parties be allowed opportunity to record the evidence regarding land being Abadi and thereafter decide the issue of jurisdiction. Since no such plea was raised by the plaintiffs in their plaint, the learned first appellate Court could not legally direct the lower Court to record the evidence on this plea. Moreover the application was filed by the appellants in the first appellate Court on 25-1-1972 in which it was prayed, inter-alia, that they may be permitted to mention in the plaint that the land was situated in Abadi area. Moreover the application was filed by the appellants in the first appellate Court on 25-1-1972 in which it was prayed, inter-alia, that they may be permitted to mention in the plaint that the land was situated in Abadi area. This application of the plaintiffs was rejected by the Court vide its order dated 18-10-1972. 10. I am, therefore, of the considered opinion that the learned first appellate Court exercised its jurisdiction illegally and with material irregularity in setting aside the judgment of the trial Court and remanding the case for recording evidence on the nature of land under suit being Abadi, As already discussed above, the prayer of the plaintiffs in the suit falls under Sections 183, 187, 202, 203 and 198A of III Schedule of the Rajasthan Tenancy Act. As per the provisions of Section 207 of the Act the suit mentioned in Schedule 3 of the said Act can be tried only by the Revenue Court, and none else. 11. In the result this appeal is allowed and the judgment of the learned first appellate Court dated 24-3-1975 is set aside and that of trial Court is upheld.Appeal (Revision) allowed. *******