Case: Raja Bajarang Bahadur Singh Vs. Jai Narain

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 the same matter. A party litigant may not be allowed to take inconsistent positions in Court to the detriment of its 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 Edn. pp. 783, 789, Mohammad Mehdi Ali Khan v. Mt. Sharafunnissa, (1900) 3 Oudh Cas 32 at pp. 35-37. On this principle it was held in Mahadeo Singh v. Pudai Singh, AIR 1931 Oudh 123 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, ILR 4 Luck 159 at p. 166 = (AIR 1928 Oudh 503 at p. 506) it was held that when an appeal 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 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 inconsistent 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.10. Section 289 (2) re-enacts the provision of Section 267 (2) of the Agra Tenancy Act, 1926.The object of Section 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 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 Section 289 (3). It is implicit in Section 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.11.In a case falling within Section 289 (2), only the Court in which the proceeding in 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.12. 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 Section 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 competent to hear the appeals. In view of the fact that no reference under Section 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 entertain the appeals.13. 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 decree 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 restritution of the lands under Section 144 of the Code of Civil Procedure is made out. The Additional Civil Judge rightly dismissed the application under Section 144.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. 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. Tenancy Act. In view of Section 265 (2) read with Section 271 (2) appeals from orders in proceedings under Section 144 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 Sections 265 (3) and 286 (4) read with Section 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 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 Highthe 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 ofa case falling within Section 289 (2), only the Court in which the proceeding in 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.12. 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 Section 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 competent to hear the appeals. In view of the fact that no reference under Section 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 entertain the appeals.13. 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 decree 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 restritution of the lands under Section 144 of the Code of Civil Procedure is made out. The Additional Civil Judge rightly dismissed the application under Section289 vests in the High Court a special jurisdiction. The decision of the High Court given on a reference to it under Sec. 289 is binding on all Courts. A reference can be made under Section 289 (1) if any Court doubts its own competence to entertain any proceeding The reference under Section 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, AIR 1930 All 254. Before the enactment of Section 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, Section 289 (2) compels the Court to refer the matter to the High Court and to obtain a decision which will bind all the Courts.