Case: Raja Bajarang Bahadur Singh Vs. Jai Narain

1. 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 other persons under Sections 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 Rr. 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.2. In 1955 the respondents filed applications for restitution of the lands under Section 144 of the Code of Civil Procedure in Court of the Assistant Collector, 1st Class, Pratapgarh. The appellant contested 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 respondents 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.3. 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 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 not jurisdiction to entertain the appeals and that the appeals lay to the Civil Court under Sections 286 (4) and 265 (3) of the U.P. Tenancy Act. Accordingly he returned the memoranda of appeals for presentation to the proper Court. The appellant filed revision petitions against the order 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 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 orders 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.

Reasoning:
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.