# 1.\ . RAJA BAJRANG BAHADUR SINGH v. JAI NARAIN

- **Citation:** [1970] 1 S.C.R. 231
- **Court:** Supreme Court of India
- **Decided:** 1969-04-08
- **Bench:** S. M. Sikri, R S. Bachawat, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-raja-bajrang-bahadur-singh-v-jai-narain-4740
- **Pages:** 9

## Headnote

U.P.·Tenancy Act (U.P. 17 of 1939), s. 289-Suits under ss. 60, 61
and 180 decreed-Possession handed over-Zamindari Abolition & La.nd
Reforms Rules enacted-Suits abate-Defendant applies. for re:;titution 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 n11 jurisdiction if
C'an be permltted.
-
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 C'..omroissioner.
affinned the decrees, and durin~ the vendencv of the-resvondent'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 abated.
The respondent filed applications for restitution of the lanM under s. 114
C.P.C. in the Court df A.sistant Collector.
The Assistant Collector referred ihe issue whether the appellant had acquired Bhumidari rights to
the civil court. He refused to recall the reference in spite of the respon ..
denfs plea that he had no power to pass the order ·as no Question of proprietary title had arisen. The civil court answered the issue in the negative,
and the Asstt. Collector allowed the applications for restitution.
As the
apoellant was not certain about the proper forum of appeals against these
orders of the Assistant Collector. he filed aooeals in the revenue court as
also in the civil court. The Assistant Commissioner held that the revenue
court had no iurisdiction to entertain aopeats and the appeals lay to the
civil court under ss. 286(4) and 265(3) df the U.P. Tenancy Act. The
aopellant filed revision petitions again-st the Orders before the ·Board of
Revenue.
In the meantime the apoeals filed before the civil court,.came ·
up for hearing. The resoondent submitted to the jurisdiction of the civt1
~ourt. and did not contend that the civil· court had 'flO iurisdiction to enter~
lain the appeals. The Civil Judge allowed the appeals 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 resoondent filed
second anneals in the High Court aj!ainst the appellate orders o'f the civil -
court~ without takin~ the olea that the civil court had no iurisdiction to
_entertain the anneals;. but later on he took the plea by
addin~ - a new
grounct.
The High Court held t\lat the ~ppea1s lay to the revenue court ·
and the resnonde11t was not estovyed from
raisin~ the co-p.tention.
In
mmeals. to thi• Court tlie appellant contendec! that the aPPeals Jay to the
civil cou,.t and not to the revenue court. and ip the circumstances of this
ca~ey and in view Of s. 289(2) of the U.P. Tenancy Act. the respondent
wa. {'reclllded from rahing the objection the! the. apyeals did nol lie to
th' civil court.
Allowin~ the appeals. this Court.
HELD : Tn thi• case the doctrine of aoorohate and reorobate ·could
not be ores~ into service to preclude the resoondent from raisin!! the
obiection that the appeals did not lie to the civil court. as ·the court in
which the procee<ling. were orlgin:illy filed !lu1 mcru rai•ed the objection,
282
SUPIU!MI! COURT lll!PORTS
(1970] 1 S.C.R.
ilut the effect of upholding his objection would be that tho appellant would
be ~rived of his right of appeal altogether, and 1. 289(2) of the U.P.
Tenancy Act is intended to prevent such srave miscarriage of justice,
!237 F]
Section 289(2) appli09 whenever any suit, application or appeal bavin1
lljlOD rejected either by the civil court or revenue court on account of
W11Dt of juri•diction is subsequently filed in the court of the other dtscriptlon an

## Text

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RAJA BAJRANG BAHADUR SINGH
v.
JAI NARAIN
April 8, 1969
[S. M. SIKRI, R S. BACHAWAT AND K. S. HEGDE, JJ.]
U.P.·Tenancy Act (U.P. 17 of 1939), s. 289-Suits under ss. 60, 61
and 180 decreed-Possession handed over-Zamindari Abolition & La.nd
Reforms Rules enacted-Suits abate-Defendant applies. for re:;titution 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 n11 jurisdiction if
C'an be permltted.
-
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 C'..omroissioner.
affinned the decrees, and durin~ the vendencv of the-resvondent'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 abated.
The respondent filed applications for restitution of the lanM under s. 114
C.P.C. in the Court df A.sistant Collector.
The Assistant Collector referred ihe issue whether the appellant had acquired Bhumidari rights to
the civil court. He refused to recall the reference in spite of the respon ..
denfs plea that he had no power to pass the order ·as no Question of proprietary title had arisen. The civil court answered the issue in the negative,
and the Asstt. Collector allowed the applications for restitution.
As the
apoellant was not certain about the proper forum of appeals against these
orders of the Assistant Collector. he filed aooeals in the revenue court as
also in the civil court. The Assistant Commissioner held that the revenue
court had no iurisdiction to entertain aopeats and the appeals lay to the
civil court under ss. 286(4) and 265(3) df the U.P. Tenancy Act. The
aopellant filed revision petitions again-st the Orders before the ·Board of
Revenue.
In the meantime the apoeals filed before the civil court,.came ·
up for hearing. The resoondent submitted to the jurisdiction of the civt1
~ourt. and did not contend that the civil· court had 'flO iurisdiction to enter~
lain the appeals. The Civil Judge allowed the appeals 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 resoondent filed
second anneals in the High Court aj!ainst the appellate orders o'f the civil -
court~ without takin~ the olea that the civil court had no iurisdiction to
_entertain the anneals;. but later on he took the plea by
addin~ - a new
grounct.
The High Court held t\lat the ~ppea1s lay to the revenue court ·
and the resnonde11t was not estovyed from
raisin~ the co-p.tention.
In
mmeals. to thi• Court tlie appellant contendec! that the aPPeals Jay to the
civil cou,.t and not to the revenue court. and ip the circumstances of this
ca~ey and in view Of s. 289(2) of the U.P. Tenancy Act. the respondent
wa. {'reclllded from rahing the objection the! the. apyeals did nol lie to
th' civil court.
Allowin~ the appeals. this Court.
HELD : Tn thi• case the doctrine of aoorohate and reorobate ·could
not be ores~ into service to preclude the resoondent from raisin!! the
obiection that the appeals did not lie to the civil court. as ·the court in
which the procee<ling. were orlgin:illy filed !lu1 mcru rai•ed the objection,
282
SUPIU!MI! COURT lll!PORTS
(1970] 1 S.C.R.
ilut the effect of upholding his objection would be that tho appellant would
be ~rived of his right of appeal altogether, and 1. 289(2) of the U.P.
Tenancy Act is intended to prevent such srave miscarriage of justice,
!237 F]
Section 289(2) appli09 whenever any suit, application or appeal bavin1
lljlOD rejected either by the civil court or revenue court on account of
W11Dt of juri•diction is subsequently filed in the court of the other dtscriptlon and the Janer court disagr- with the finding of the former.
In
such a cue, a reference to the Hlth Court i• compulsory and the conllict
Of opinion is resolved by a decision of tho Hil!h Court which is binding
on all court>.
A court subordinate to the Collector
cannot make the
reference without the previous ,.nction of the Collector under s. 289(3).
It Is implicit in s. 289(3) that if the Collector refuse. to give the sanction,
the cue will proceed as if there is no disagreemelll with the findin& of the
former court. [237 HJ
Jn a case falling withln s. 289(2), only the court in which the proceeding is subsequently instituted can disaaree with the
findinR of the
former court on the question of iurisdiction. U it so disaarees. it must
refer the matter to the High Court; and only the Hiab Court on ruch a
refe~ can override the finding. No other court can disagree with the
llndina and make the reference. If DO such reference is made, the flndin&
of the former court on the question of jurisdiction become. final and conclm!ve; and the objection that it is erroneous caMot be entertained by the
appellate or revisional court er any other court. (23 8 DJ
Havinlit regard to the circumstances of this cage, it was not open to
the respondent to raise the objection in the High Court that the civil
court was DOI coinpetent to bear the appeal•. Jn view of the fact that no
reference under 1. 289(21 was made, tho flnding 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 tho appeals. [238 P')
On the merits the respondent had no case.
1be Civil Jud~ found
that the aopellant was in 00<. .. ssion of the lands on the dates (ff tho ;,IStih•·
tion of the suits.
The Hillh Court agreed with this finding.
No ground
hu been rr:ade for ,.ning aside this concurrent ftndin~ of fact. 1be appellant did not obtain poueuion of the lands by executine the decrees palled
in the two suits. Even 8"Uming that the suits bad abated and the decleet
i-ecl therein had been lief aside or revened, no cae for restitution of
Ille Janda under a. 144 of tho Code of avu Procedure waa made out.
The applicatlona under 1. 144 C.P.C., were rightly rejected.
Natltan '" HtIT/xmJ Sln11h, A.Ul 1930 All. 264, Mohammad Mthdl
IC"- v. MU#tlmmat Sharotunnlna, 3 Oudh Cues 32, 35-37,
Mahadto
Si1111t v. Pudal Singh, A.l.R. 1931 OUdh 123 and Saira Bibi v. Chandrapal
~h. l.L.R. 4 Luct. ISO, 166, referred to.
Civn. APPELLATE JURISDICTION; Civil Appeal Nos. 735 and
736 ol 1966.
Appeals bv special leave from the judl!Dlent 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 aind S. P. Singh, for the appellant (in both the
appeals).
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BAJRANG. v. JAI NARAIN (Bachawat, /.)
233
C. B. Agarwala and K. B. Gupta, tor the respondent (in both
the appeals) .
The Judgment of the Court was delivered by
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 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 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 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 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 jurisdiction 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 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 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 November 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 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 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 presentation 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 circumstances 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 schedule 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 lurilldiction 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
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BAJRANG v •. TAI NARAIN (Bachawat,, !.)
235
A . 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.
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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 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, applic1'tion or anneal is cogni7.able bv 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 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 principle 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 questioned later. With a view to avoid conflicts of jurisdictio,n s. 289
provides for reference to the High Court. Section 289 is as follows:-
"289(1} Wher~ either a civil or revenue court is in
doubt whether it is competent to entertain any suit, appl'cation or aopeal, or whether it should direct the plaintiff, 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 subsequently 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 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 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. _Without 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, application 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,
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WRANG v • .JAI NARAIN (IJachawat, J.)
:.ia~
tion where the proceeding was subsequently filed came to the
opposite conclusion and held that the matter was within the cogruzance 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 litigant 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 growmg 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 upheld the plea that it had no jurisdiction to entertain a suit, th•
party pvtting forward the plea would he precluded from contending that the civil court could not entertain the suit. Likewiso in
Sair• Bibi v. Chandrapa/ Singh(") 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 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 prevent 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 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 re?enue
(!) 30udhCases,32,3S-37.
(2) I .L. R. 4Luck, 159,166.
(3) A.I.R. 1931 Oudh 123.
238
SUPRF.ME COUl.T lll!PORTS
[1970] 1 S.C.R.
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.
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 reference. 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 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 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 entert~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'
A
B
c
D
E
F
G
H
A
B
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.
Y.P.
Appeals allowed.