Raja Bajrang Bahadur Singh v. Jai Narain

Bacbawat, 1. The appellant filed suit nos. 117 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 defendant.I 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 pol• session of the lands in execution of the decrees. Appeals against the decrees filed by the respondent and other defendants wm dismi8$Cd by the Additional Commissioner, Faizabad. The de-fendants filed second appeals against the decrees. During the pen-dency 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 pendin& 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 coiil:t of th• Assistant Collector, 1st Class, Pratapgarh. The appellant con-tested the application. One of the issues arising on the appli-cation was whether the appellant had acquired Bhumidari rights. The Assistant Collector referred this issue to the Civil Court fot 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 p0sse1Sion of the lands.

The appellant flied appeals against the orders dated February 18, 1958. As he was not certain about the· pi<iper forum ~. the appeals he took the precaution of filing the 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 ))ad no jurisdiction to entertain the appeals and that the aopeals lay to the civtl court under ss. 286(4) and 265(3) of U.P. Tenancy Act. AccQ(dingly he returned the memoranda of appeals for presentation to the proper court. The apjlellant 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 juris-diction of the civil court. He did not raise the contention that the civil court had no jurisdiction to entertain the appeall. Oii ~34 Sl.IPRl'MJ COURT REPORTS [l'fllll 1 ~c!I. November l ~. 1960 the Additional Civil Judg~. Pratapgarh allowed the appeals and cfomissed the applications for restitution He hel<l that (I) the appellant was in possession of th" lands 011 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 p~ therein, and (3) the application for restitution was not maintain-able 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 petitiom before lhe 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 Nov-ember 12, 1960. Tn the orieinal memorandum of appeal, he did not take the plea that the civil court had no jurisdiction to entertain the aopeals. For the first time on January 24, 1964, he took this plea by addin11; a new ground in his memorandum of appeal. The High Court held that (I) the appellant was in pos-session 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 maintainaMe. The High Court, however, held that (!) apneals against the orders for restitution lay to the revenue court, (2) the civil court had no jurisdiction to entertain the apoeals and (3) the rc<pondent was not estoooed from raising the contention. Accordingly on March 26. 1965 the Hieb Court allowed the second aopeals: set aside the order of the Additional Civil Jud11e and returned the memoranda of apoeals for presenta-tion to the prooer court. The apoellant has filed the p1esent appeals after obtaining special leave.

On behalf of the aooellant it is arlllled that (!) the api>eal from the order of the Assistant Col'lector dated February 18. 1959 Jay to the civil conrt and not to the revenue court (2) in the cir-cumstances of the case, and in view of s. 28912) of the U.P. Tenancy Act. the resoondent was precluded from raising the objection that the appeals did not lie to the civil court.

It fa common case th~t suits nos. 87 of 1948 and 2/12 of 1948 were of the nature specified in Group B of the fourth sche-dule to the U.P. Tenencv Act. In view of s. 265(2) read with s. 271(2) anoeals from orders in proceedines under s. 1.f<l of the Code of Civ;J Procedure nri•ine out of the two suits lav to the rew.nne court. The anneals did not lie to the civil court under ss. 265(3) and 28(,(4) read with s. 27H?) as no ouestion of lurilldic-tion was decided bv the Assistant Collector nor was any question of proorietary title referred to or decided bv the ciVl1 court. 'But the more important question is whether having regard to the

BAJRANG v •. TAI NARAIN (Bachawat,, !.) 235 scheme of the U.P. Tenancy Act and the circumstances of the Calle, the objection all 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 providi:s that certain suits and applications are cognizable by the rev~m:/e courts only. The chapter provides for appeals and revisions. No appeal lies from any decree or order passed . by arty 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 Hi~h Court has no revi-sional 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, applic1'tion or anneal is cogni7.able bv the revenue court or by the civil court. Sections 289, 290 and 291 deal with objec-tions 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 apoecl 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 sujt 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 apoellate court mav dispose of the apoeal as if the suit had been instituted in the right court. It may declare any court to be comoetent 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 jurisdictio,n s. 289 provides for reference to the High Court. Section 289 is as fol-lows:-

"289(1} Wher~ either a civil or revenue court is in doubt whether it is competent to entertain any suit, ap-pl'cation or aopeal, or whether it should direct the plain-tiff, apolicant or aooellant to file the same in a court of the other descriotion, 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 SUPREMP. COURT REPORTS [1970] I

S.C.R. court on the 11,round of want of jurisdiction, is subse-quently filed in a court of the other description, the latter court. if it disagrees with the finding of the former shaTI sul:mit the record, with a statement of the reaso~s for its disagreement to the High Court;

(3) In cases falling under sub-section (1) or sub-R section (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 pre-vious sanction of the collector;

(4) On any such reference being made, the Hid! Court may order the court either to proceed with the case, or to return the plaint, application Of" 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. subOf"dinate to it or the Board." Section 289 vests in the High Court a special jurfadiction. The decisior. of the High Court given on a ref .!fence_ to it under s. 289 is binding on all courts. A reference can be made under s. 289(1) if anv court doubts its own competence to entertain any proceeding. The reference under s. 289(1) is optional. _With-out making any reference the court may refuse to entertain the proceeding on the ground of want of jurisdiction. Buf the court of the other description in which the proceedinl! is subsequently instituted is not bound by this finding. see Nathan v. Harbans Slnph('). Before the enactment of s. 289(2) if it disa~recd with the finding, it could reiect the proceeding on the ground that the matter was cognizable by the other court. As neither court was bound by the findinl! of the other, the litigant could not get relief in any forum. Section 289(2) bas been speciaTiv 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 decision which will bind all the courts.

Provisions corresponding to ss. 290, 291 and 289(1) were contained in ss. 124A, 124B, 124C and 124D of the Oudh Rent Act 1 RR6 and ss. 268. 269 and 267(1) of the Al!fa Tenancy Act. 1926. It seems that Oudh Rent Act, 1886 did not contain anv provision corresvonding to s. 289(2). The absence of such a provision seriouslv hamoered the administration of justice. In O)Jmerous cases under the Oudh Rent Act, after a suit, applica-tion or anueal was reiected bv a civil court or revenue coiirt on the ground of want of jurisdiction, the court of the other descrip-

(ll A.!.R. 1930 All. 264, tion where the proceeding was subsequently filed came to the opposite conclusion and held that the matter was within the cog-ruzance of the former court. The decision of the court of one description including the decision of the High Court exercising appellate or rcvisional power over that Court was not b~ 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 liti-gant could not ·approbate and reprobate in respect o~ the same matter. A party litii:ant 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 grow-mg out of the judgment in the former proceeding, see Bigelow on Estoppel, 6th Ed. pp. 783, 789, Mohammad Mehdi Khan 'I'; M u:;swnm11t Sharatunnissa ( '). On this principle it was held ill Mahudeo Singh v. Pudai Singh(') that v:here a revenue court up-held the plea that it had no jurisdiction to entertain a suit, th• party pvtting forward the plea would he precluded from contend-ing that the civil court could not entertain the suit. Likewiso in Sair• Bibi v. Chandrapa/ Singh(") it was held that when an ap-peal was originally instituted properly in the revenue court but on 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 th• 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 cQll8istent pleas as to jurisdiction in different courts. =· It cannot be pressed into service, . where, as in the present the court in which the proccedj.ng was originally filed suo motu raised the objection as to jlirisd1ction. In the present case it doe& not appear that the respondent raised \lefore the revenue court the objection that it was not competent to entertain the appeals. The doctrine of approbate and reprobate cannot be invoked t<> 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 pre-vent such grave miscarriage of justice.

Section 289(2) re-enacts the provision of s. 267(2) of tile Agra, Tenancy Act 1926. The object of s. 289(2) is to avoid a dead-lock between the civil and the revenue courts on the question of jurisdiction, and its provisions should receive a liberal construc-tion. Section 289(2) applies whenever any suit, application or appeal having been rejected either by the civil court or re?enue

(!) 30udhCases,32,3S-37. (2) I .L. R. 4Luck, 159,166. (3) A.I.R. 1931 Oudh 123.

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 re-solved 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 proceedmg 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 refer-ence. In our opinion, if no such reference is made, the fmding 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 appe:ils. The Additional Civil Judge did net 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 tl;lis decision the appellant did not prcc~eJ with the revision petitions filed by him against the orders of the revenue court on the question of jurisdiction In these circum-stances, 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 J\dditional Civil Jud~e. Pratapgarh, was competent to enter-t~1in the appeals.

On the merits the respondent has no case. The Additional Civil Judge found that the appellant was in r-ossession of the lands on the dates of the institution of the suits. The Hioh Court agn·ed with this finding. We see no reason for setting ;side this concurrent find111g of fact .The appellant did not obtain posses- <ion nf the land, hy c.\ecutrng the decrees pa,sed in the two suils. Even assuming that the suits had abated and the decree'

BAJRANG v. JAi NARAIN (Bachawm, /.) 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 CiYil Judge rightly dismissed !he application 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.