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PETITIONER: RAJA BAJARANG BAHADUR SINGH

       Vs.

RESPONDENT: JAI NARAIN

DATE OF JUDGMENT: 08/04/1969

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SIKRI, S.M. HEGDE, K.S.

CITATION:  1970 AIR   30            1970 SCR  (1) 231  1969 SCC  (2) 114

ACT: U.P.  Tenancy Act (U.P. 17 of 1939), s. 289-Suits under  ss. 60,  61  and 180  decreed-Possession  handed  over-Zamindari Abolition & Land Reforms Rules enacted-Suits abate-Defendant applies  for  restitution  of lands  before  revenue  court- Revenue  Court allows restitution-Appeals to both Civil  and Revenue  Courts-Civil  Court  allows  Appeal-Revenue   Court dismisses   for  default-Plea  that  Civil  Court   had   no jurisdiction if can be permitted.

HEADNOTE: The appellant instituted two suits in the Court of Assistant Collector  (a Revenue, Court) against the  respondent  under ss. 60, 61 and 180 of the U.P. Tenancy Act, 1939.  The suits were  decreed, and the appellant took symbolical  possession of  the  lands.  The Assistant  Commissioner.  affirmed  the decrees, and during the pendency of the respondent’s  second appeals  in  the  High Court, the  Uttar  Pradesh  Zamindari Abolition  & Land Reforms Rules, 1952 came into force.   The Board of Revenue held that in view of the Rules. the pending appeals  as also the suits had a ate. The  respondent  filed applications  for  ’restitution of the lands  under  s.  114 C.P.C.  in the Court of Assistant Collector.  The  Assistant Collector  referred  the  issue whether  the  appellant  had acquired Bhumidari rights to the civil court.  He refused to recall the ’reference in spite of the respondent’s Plea that he  had  no power to pass the order as no question  of  pro- prietary  title  bad arisen.  The civil court  answered  the issue in the negative, and the Asstt.  Collector allowed the applications  for  restitution.  As the  appellant  was  not certain  about  the proper forum of  appeals  against  these orders  of the Assistant Collector, he filed anneals in  the revenue  court  as also in the civil court.   The  Assistant Commissioner held that the revenue court had no Jurisdiction to entertain appeals and the appeals lay to the civil  court under  ss. 286(4) and 265(3) off the U.P. Tenancy Act.   The appellant filed revision petitions against the orders before the  Board  of Revenue.  In the meantime the  appeals  filed before the civil court came up for hearing:.  The respondent submitted  to the jurisdiction of the civil court,  and  did

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not  contend  that the civil court had  no  Jurisdiction  to entertain the appeals.  The Civil Judge allowed the  anneals and  dismissed the application for restitution.  Because  of this  decision.  the  appellant did  not  proceed  with  the pending revision petitions ’before the Board of Revenue  and there  the petitions were dismissed.  The  respondent  filed second  appeals  in  the High Court  against  the  appellate orders of the civil court, without taking the plea that  the civil  court ’had no Jurisdiction to entertain the  anneals. but  later on he took the plea by adding a new ground.   The High  Court held that the appeals lay to the  revenue  court and  the  respondent  was  not  estopped  from  raising  the contention.    In  appeals  to  this  Court  the   appellant contended  that the anneals lay to the civil court  and  not for the revenue court and in the circumstances of this case, and  in  view  of s. 289(2) of the  U.P.  Tenancy  Act.  the respondent was precluded from raising the objection that the appeals  did  not  lie to the  civil  court.   Allowing  the appeals  this Court. HELD : In this case the doctrine of approbate and  reprobate could not be pressed into service to preclude the respondent from  raising the objection that the appeals did not lie  to the  civil court as the court in which the  proceeding  were originally filed suo motu raised the objection. 232 But the effect of upholding his objection would be that the, appellant   would  be  deprived  of  his  right  of   appeal altogether,  and  s.  289(2)  of the  U.P,  Tenancy  Act  is intended to prevent such grave miscarriage of justice.  [237 F] Section  289(2)  applies whenever any suit,  application  or appeal  having  been rejected either by the civil  court  or revenue  court  on  account  of  want  of  jurisdiction   is subsequently filed in the court of the other description and the  latter court disagrees with the finding of the  former. In such a case,, a reference to the High Court is compulsory and the conflict of opinion is resolved by a decision of the High  Court  which  is  binding  on  all  courts.   A  court subordinate  to  the  Collector cannot  make  the  reference without  the  previous sanction of the  Collector  under  s. 289(3).   It is implicit in s. 289(3) that if the  Collector refuses  to give the sanction, the case will proceed  as  if there  is  no disagreement with the finding  of  the  former court. [237 H] In a case falling within s. 289(2), only the court in  which the proceeding is subsequently instituted can disagree  with the  finding  of  the  former  court  on  the  question   of jurisdiction.  If it so disagrees, it must refer the  matter to  the  High  Court;  and only the High  Court  on  such  a reference  can  override the finding.  No  other  court  can disagree  with  the finding and make the reference.   If  no such  reference is made, the finding of the former court  on the  question of jurisdiction becomes final and  conclusive; and the objection that it is erroneous cannot be entertained by  the  appellate or revisional court or any  other  court. [238 D] Having regard to the circumstances of this case, it was  not open  to the respondent to raise the objection in  the  High Court  that  the civil court was not competent to  hear  the appeals.   In  view of the fact that no reference  under  s. 289(2)  was made, the finding of the revenue court that  the civil court was competent to entertain the appeals could not be  challenged in the High Court.  The case must be  decided on  the  footing  that  the Civil  Judge  was  competent  to entertain the appeals. [238 F]

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On  the merits the respondent had no case.  The Civil  Judge found  that the appellant was in possession of the lands  on the  dates of the institution of the suits.  The High  Court agreed  with  this  finding.  No ground has  been  made  for setting  aside this concurrent finding of fact.  The  appel- lant did not obtain possession of the lands by executing the decrees  passed  in the two suits.  Even assuming  that  the suits had abated and the decrees passed therein had been set aside  or  reversed, no case for restitution  of  the  lands under s. 144 of the Code of Civil Procedure was made out. The applications under s. 144 C.P.C., were rightly rejected. Nathan  v.  Harbans Singh, A.I.R. 1930 All.  264,   Mohammad Mehdi Khan v. Mussammat Sharatunnissa, 3 Oudh Cases 32,  35- 37,  Mahadeo Singh v. Pudal Singh, A.I.R. 1931 Oudh 123  and Saira  Bibi  v. Chandrapal Singh, I.L.R. 4 Luck.  150,  166, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 735 and  736 of 1966. Appeals by special leave from the judgment and decree  dated March 26, 1965 of the Allahabad High Court, Lucknow Bench in Second Execution Decree Appeals Nos. 3 and 4 of 1961. J.   P.  Goyal and S. P, Singh, for the appellant  (in  both the, appeals). 233 C.   B.  Agarwala  and K. B. Gupta, for the  respondent  (in both the appeals). The Judgment of the Court was delivered by Bachawat,  J. The appellant filed suit nos. 87 of  1948  and 2/12  of 1948 in the court of the -Assistant Collector,  1st Class, Pratapgarh, (a revenue court) against the  respondent and  8 others persons under ss. 60, 61 and 180 of  the  U.P. Tenancy  Act (U.P. Act XVII of 1939) claiming a  declaration that  the  defendants had no right to the suit lands  and  a decree  for possession in case the defendants were found  to be  in possession thereof.  The suits were decreed in  1948. The  appellant  took symbolical possession of the  lands  in execution of the decrees.  Appeals against the decrees filed by the respondent and other defendants were dismissed by the Additional  Commissioner,  Faizabad.  The  defendants  filed second appeals against the decrees.  During the pendency  of the  appeals  rules 4 and 5 of the Uttar  Pradesh  Zamindari Abolition and Land Reforms Rules 1952 came into force.   The Board  of  Revenue held that in view of rules 4  and  5  the pending appeals as also the suits had abated. In 1955 the respondent filed applications for restitution of the  lands  under s. 144 of the Code of Civil  Procedure  in court  of  the Assistant Collector, 1st  Class,  Pratapgarh. The  appellant  con.  tested the application.   One  of  the issues arising on the application was whether the  appellant had  acquired  Bhumidari rights.   The  Assistant  Collector referred  this  issue to the Civil Court for  decision.   He refused  to  recall the order of reference in spite  of  the respondent’s plea that he had no power to pass the order  as no question of proprietary title had arisen.  On May 7, 1958 the  civil  court answered the issue in  the  negative.   On February  18,  1958  the  Assistant  Collector  allowed  the application for restitution and directed that the respondent be put in possession of the lands. The  appellant  filed  appeals  against  the  orders   dated February  18,  1958 As he was not certain about  the  proper forum  of the appeals he took the precaution of  filing  the

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appeals in the revenue court as also in the civil court.  On October  23,  1959  the  Additional  Commissioner,  Faizabad Division, held that the Revenue Court had no jurisdiction to entertain the appeals and that the appeals lay to the  civil court  under  ss.  286(4) and 265(3) of  U.P.  Tenancy  Act. Accordingly  he  returned  the  memoranda  of  appeals   for presentation  to  the  proper court.   The  appellant  filed revision  petitions against the orders before the  Board  of Revenue, In the meantime the appeals filed before the  civil court came up for hearing.  The respondent submitted to  the jurisdiction  of  the  civil court.  He did  not  raise  the contention  that  the, civil court had  no  jurisdiction  to entertain the, appeals.  On 234 November  12, 1960 the Additional Civil Judge,,  Pratapgarh, allowed  the  appeals  and dismissed  the  applications  for restitution.   He  held  that  (1)  the  appellant  was   in possession  of the lands on the dates of the institution  of the  suits; (2) the board of revenue had no power  to  abate the suits or to set aside the decree passed therein, and (3) the application for restitution was not maintainable as  the appellant  had  not  obtained possession  of  the  lands  in execution  of  any  decree which had been  reversed  or  set aside.   In  view of this decision, the  appellant  did  not proceed with the pending revision petitions before the board of  revenue and on November 18, 1960 the revision  petitions were  dismissed.  On February 1, 1961 the  respondent  filed second  appeals  in  the High Court  against  the  appellate orders  of the civil court dated November 12, 1960.  In  the original memorandum of appeal, he did not take the plea that the  civil  court  had  no  jurisdiction  to  entertain  the appeals.   For the first time on January 24, 1964,  he  took this  plea  by  adding a new ground  in  his  memorandum  of appeal.   The High Court held that (1) the appellant was  in possession  of the lands before the passing of  the  decree; (2) the suits had not abated and the Board of Revenue had no jurisdiction to set aside the proceedings, in the suits’ and (3) the applications for restitution were not  maintainable. The  High Court, however, held that (1) appeals against  the orders  for  restitution lay to the revenue court,  (2)  the civil court had no jurisdiction to entertain the appeals and (3)  the  respondent  was  not  estopped  from  raising  the contention.   Accordingly on March 26, 1965 the  High  Court allowed  the  second  appeals, set aside the  order  of  the Additional Civil Judge and returned the memoranda of appeals for  presentation  to the proper court.  The  appellant  has filed the present appeals after obtaining special leave. On behalf of the appellant it is argued that (1) the  appeal from  the order of the Assistant -Collector  dated  February 18, 1959 lay to the civil court and not to the revenue court (2)  in  the circumstances of the case, and in  view  of  s. 289(2) of the U.P. Tenancy Act, the respondent was precluded from  raising the objection that the appeals did not lie  to the civil court. It  is  common case that suits nos. 87 of 1948 and  2/12  of 1948  Were of the nature specified in Group B of the  fourth schedule to the U.P. Tenency Act.  In view of s. 265(2) read with  s. 271(2) appeals from orders in proceedings under  s. 14-4 of the Code of Civil Procedure arising out of, the  two suits lay to the revenue court.  The appeals did not lie  to the  civil  court under ss. 265(3) and 286(4) read  with  s. 271(2)  as  no question of jurisdiction was decided  by  the Assistant  Collector  nor was any  question  of  proprietary title  referred to or decided by the civil court.   But  the more important question is whether having regard to the

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235 scheme of the U.P. Tenancy Act and the circumstances of  the case,  the  objection as to the lack of  competence  of  the civil court to entertain the appeals could be raised in  the High Court.- The  U.P. Tenancy Act 1939 consolidates and amends  the  law relating   to  agricultural  tenancies  and  other   matters connected therewith in Agra and Oudh.  It repealed the  Agra Tenancy Act, 1926 and the Oudh Rent Act- 1886.  Chapter  XIV of  the  Act deals with the procedure  and  jurisdiction  of courts.   Section  242  provides  that  certain  suits   and applications are cognizable by the revenue courts only.  The chapter provides for appeals and revisions.  No appeal  lies from  any decree or order passed by any court under the  Act except  as provided in the Act (s. 263).  In some  cases  an appeal  lies to a revenue court; in other cases  the  appeal lies  to the civil court.  The High Court has no  revisional power under s. 276 in a case in which no appeal lies to  the civil  court.   It  is often a question  of  extreme  nicety whether  a suit, application or appeal is cognizable by  the revenue court or by the civil court.  Sections 289, 290  and 291 deal with objections regarding the proper forum. Section  290 provides that where in a suit instituted  in  a civil or revenue court, an appeal lies to the district judge or  to  the  High  Court, an objection  that  the  suit  was instituted  in the wrong court shall not be  entertained  by the  appellate court unless such objection was taken in  the court  of the first instance; and the appellate court  shall dispose of the appeal as if the suit has been instituted  in the right court.  The section closely resembles s. 21 of the Code of Civil Procedure and is a recognition of the  princi- ple  that an objection as to the proper forum for the  trial of  a suit may be waived.  Section 291 treats the  objection as technical and provides that even where the objection  was taken  in  the court of the first  instance,  the  appellate court  may  dispose of the appeal as if the  suit  had  been instituted in the right court.  It may-declare any court  to be  competent  to try the suit and may remand the  suit  for fresh trial, and the competence of the trial cannot be ques- tioned   later.    With  a  view  to  avoid   conflicts   of jurisdiction  s.  289  provides for reference  to  the  High Court.  Section 289 is as follows :-               "289(1) Where either a civil or revenue  court               is  in  doubt  whether  it  is  competent   to               entertain any suit, application or appeal,  or               whether   it  should  direct  the   plaintiff,               applicant  or appellant to file the same in  a               court of the other description, the court  may               submit  the  record with a  statement  of  the               reasons for its doubt to the High Court;               (2)   Where  any suit, application or  appeal,               having  been rejected either by a civil  court               or by a revenue 236               court  on the ground of want of  jurisdiction,               is subsequently filed in a court of the  other               description, the latter court, if it disagrees               with  the finding of the former, shall  submit               the  record, with a statement of  the  reasons               for its disagreement to the High Court;               (3)   In cases falling under subsection (1) or               subsection (2) if the court is a revenue court               subordinate  to  the collector,  no  reference               shall  be made under the foregoing  provisions               of  this  section  except  with  the  previous

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             sanction of the collector;               (4)   On  any such reference being made-,  the               High  Court  may  order the  court  either  to               proceed  with  the  case,  or  to  return  the               plaint,’    application    or    appeal    for               presentation  of  such other court as  it  may               declare to be competent to try the same;               (5)   The  order  of the High Court  shall  be               final  and binding on all courts,  subordinate               to it or the Board." Section 289 vests in the High Court a special  jurisdiction. The  decision of the High Court given’ on a reference to  it under  s. 289 is binding on all courts.  A reference can  be -made under s. 289(1)if any court doubts its own  competence to entertain any proceeding.  The reference under s.  289(1) is  optional.   Without making any reference the  court  may refuse to entertain the proceeding on the ground of want  of jurisdiction.   But  the court of the other  description  in which the proceeding is subsequently instituted is not bound by this finding, see Nathan v. Harbans Singh(1).  Before the enactment of S. 289(2) if it disagreed with the finding,  it could  reject the proceeding on the ground that  the  matter was  cognizable  by the other court, As  neither  court  was bound  by the finding of the other, the litigant  could  not get relief in any forum.  Section 289(2) has been  specially enacted  to avoid such a deadlock.  In such a situation,  s. 289(2)  compels  the court to refer the matter to  the  High Court and to obtain a Provisions  corresponding  to ss. 290, 291 and  289(1)  were contained in ss. 124 A, 124B, 124C and 124D of the Oudh Rent Act  1886  and ss. 268, 269 and 267(1) of the  Agra  Tenancy Act,  1926.   It  seems that Oudh Rent  Act,  1886  did  not contain  any  provision  corresponding to  s.  289(2).   The absence   of  such  a  provision  seriously   hampered   the administration of justice.  In numerous cases under the Oudh Rent  Act, after a suit, application or appeal was  rejected by  a civil court or revenue court on the ground of want  of jurisdiction, the court of the other descrip- (1)  A.I.R. 1930 All. 264, decision which will bind all the courts. 237 tion where the proceeding was subsequently filed came to the opposite conclusion and held that the matter was within  the cognizance  of the former court.  The decision of the  court of one description including the decision of the High  Court exercising appellate or revisional power over that Court was not binding upon the court of the other description.  Such a situation led to great injustice.  The litigant was  bandied about  from court to court and he could not get  any  relief anywhere.   The  Oudh  Chief Court  mitigated  the  evil  by applying  the  doctrine  that a  party  litigant  could  not approbate  and reprobate in respect of tile same matter.   A party  litigant  may  not be allowed  to  take  inconsistent positions  in  court  to the detriment of  his  opponent  at successive stages of the same proceeding or in a  subsequent litigation  growing  out  of  the  judgment  in  the  former proceeding,  see Bigelow on Estoppel, 6th Ed. pp. 783,  789, Mohammad  Mehdi Khan V Mussammat Sharatunnissa(1).  On  this principle  it  was held in Mahadeo Singh v.  Pudai  Singh(2) that  where a revenue court upheld the plea that it  had  no jurisdiction to entertain a suit, the party putting  forward the  plea would be precluded from contending that the  civil court could not entertain the suit.  Likewise in Saira  Bibi v. Chandrapal Singh (8) it was held that when an appeal  was originally  instituted properly in the revenue court but  on

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objection  being  raised  by a party was  dismissed  on  the ground that the appeal did not lie to that court, it was not open  to  the party to raise the objection that  the  appeal could  not be entertained by the civil court.  This form  of estoppel arises when the litigant takes in consistent  pleas as  to  jurisdiction  in different  courts.   It  cannot  be pressed  into  service, where, as in the present  case,  the court in which the proceeding was originally filed suo  motu raised  the  objection as to jurisdiction.  In  the  present case  it does not appear that the respondent  raised  before the revenue court the objection that it was not competent to entertain  the  appeals.   The  doctrine  of  approbate  and reprobate  cannot  be invoked to, preclude  the  respondent, from  raising the objection that the appeals did not lie  to the civil court.  But the effect of upholding his  objection is  that  the appellant is deprived of his right  of  appeal altogether.  His appeals cannot be entertained either by the civil  court  or by the revenue court.   Section  289(2)  is intended to prevent such grave miscarriage of justice. Section  289(2) reenacts the provision of s. 267(2)  of  the Agra Tenancy Act 1926.  The object of s. 289(2) is to  avoid a  deadlock between the civil and the revenue courts on  the question of jurisdiction, and its provisions should  receive a liberal construction.  Section 289(2) applies whenever any suit,  application or appeal having been rejected either  by the civil court or revenue (1)  3 Oudh Cases, 32, 35-37.         (2) I. L. R.  4  Luck, 159,166. (3)  A.I.R. 1931 Oudh 123. 238 court  on  account of want of jurisdiction  is  subsequently filed  in the court of the other description and the  latter court  disagrees with the finding of the former.  In such  a case,  a reference to the High Court is compulsory  and  the conflict  of opinion is resolved by a decision of  the  High Court  which is binding on all courts.  A court  subordinate to  the  collector  cannot make the  reference  without  the previous  sanction of the collector under S. 289(3).  It  is implicit in s. 289(3) that if the collector refuses to  give the  sanction, the case will proceed as if there is no  dis- agreement with the finding of the former court. In a case falling within S. 289(2), only the court in  which the proceeding is subsequently instituted can disagree  with the  finding  of  the  former  court  on  the  question   of jurisdiction.  If it so disagrees, it must refer the  matter to  the  High  Court;  and only the High  Court  on  such  a reference  can  override the finding.  No  other  court  can disagree  with the finding and make the reference.   In  our opinion,  if no such reference is made, the finding  of  the former  court on the question of jurisdiction becomes  final and  conclusive;  and  the objection that  it  is  erroneous cannot  be entertained by the appellate or revisional  court or any other court. In  the  present  case  the respondent  did  not  raise  any objection  before the Additional Civil Judge that the  civil court  was  not  competent to entertain  the  appeals.   The Additional  Civil  Judge did not make any reference  to  the High  Court under s. 289(2).  He decided the appeal  on  the merits and did not disagree with the finding of the  revenue court  on  the question of jurisdiction.  Having  regard  to this  decision  the  appellant  did  not  proceed  with  the revision  petitions filed by him against the orders  of  the revenue  court  on  the question of  jurisdiction  In  these circumstances,  it was not open to the respondent  to  raise the objection in the High Court that the civil court was not

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competent to hear the appeals.  In view of the fact that  no reference.  under  S. 289(2) was made, the  finding  of  the revenue  court  that  the - civil court  was  competent,  to entertain  the appeals could not be challenged in  the  High Court.   The  case must be decided on the footing  that  the Additional Civil Judge, Pratapgarh, was competent to  enter- tain the appeals. On  the merits the respondent has no case.   The  Additional Civil  Judge found that the appellant was in  possession  of the lands on the dates of the institution of the suits.  The High  Court agreed with this finding.  We see no reason  for setting   aside  this  concurrent  finding  of  fact.    The appellant  did  not  obtain  possession  of  the  lands   by executing  the  decrees  passed  in  the  two  suits.   Even assuming that the suits had abated and the decrees                             239 ed  therein  had  been set aside or reversed,  no  case  for restitution. of the lands under s. 144 of the Code of  Civil Procedure  is made out.  The Additional Civil Judge  rightly dismissed the applications under, s. 144. In  the  result,  the appeals are allowed  with  costs,  the orders of the High Court are set aside and the orders passed by the: Additional Civil Judge, Pratapgarh, are restored. Y.P.                                                 Appeals allowed.- 240