Case Note & Summary
The dispute arose from two suits filed under the U.P. Tenancy Act, 1939, by the appellant for declaration and possession of agricultural lands. The suits were decreed in 1948, and the appellant obtained symbolical possession. While the respondent's second appeals were pending before the High Court, the U.P. Zamindari Abolition and Land Reforms Rules, 1952 came into force, and the Board of Revenue held that the suits and appeals had abated. In 1955, the respondent sought restitution of the lands under Section 144 of the Code of Civil Procedure before the Assistant Collector. The Assistant Collector referred a question of bhumidari rights to the civil court and, after the civil court answered the reference in the negative, allowed the restitution applications on 18 February 1958. Uncertain about the proper appellate forum, the appellant filed appeals in both the revenue court and the civil court. The Additional Commissioner, Faizabad, on 23 October 1959 held that the revenue court had no jurisdiction and that the appeals lay to the civil court; the appellant then filed revisions before the Board of Revenue but did not press them after the civil court, on 12 November 1960, allowed the appeals and dismissed the restitution applications. The respondent filed second appeals in the High Court, initially without challenging the civil court's jurisdiction, but later amended the memorandum to add the ground that the civil court lacked jurisdiction. The High Court, on 26 March 1965, held that though the appellant was in possession before the decree and restitution was not maintainable on merits, the appeals did lie to the revenue court and the civil court had no jurisdiction; it set aside the civil court's order and returned the memoranda for presentation to the proper court. The Supreme Court granted special leave. The central legal issue was whether the respondent could raise the jurisdictional objection in the High Court after the revenue court had already held that the civil court was competent and no reference under Section 289(2) of the U.P. Tenancy Act had been made. The Court analysed Section 289(2), which provides that when a proceeding is rejected by one court for want of jurisdiction and subsequently filed in the other court, any disagreement on jurisdiction by the latter court must be referred to the High Court; if no such reference is made, the former court's finding on jurisdiction becomes final and conclusive. The Additional Commissioner's order that the civil court had jurisdiction was such a finding, and since the civil court did not refer the matter to the High Court, that finding was binding. The High Court could not later override it. Although the doctrine of approbate and reprobate could not be invoked because the court itself raised the issue, the objection itself failed due to the statutory finality. On merits, the Court agreed that the appellant had been in possession before the decree and did not obtain possession through execution, so no restitution under Section 144 CPC was warranted. The Supreme Court accordingly allowed the appeals, set aside the High Court's judgment, and restored the civil court's order dismissing the restitution applications.
Headnote
A) Civil Procedure - Jurisdiction of Civil and Revenue Courts - Finality of Jurisdictional Finding under Section 289(2) U.P. Tenancy Act, 1939 - When a revenue court dismisses an appeal for want of jurisdiction and the appeal is filed in the civil court, the civil court's finding that it has jurisdiction becomes conclusive if no reference is made under Section 289(2); the finding cannot be challenged later in any court. Held: The respondent could not challenge the civil court's competence in the High Court. (Paras not numbered) B) Tenancy Law - Restitution under Section 144 CPC - Requirement that possession be obtained under decree later reversed - An application for restitution under Section 144 CPC requires that the possession sought to be restored was obtained in execution of a decree which is subsequently reversed or varied; where the party was in prior possession and did not obtain possession through the decree, restitution cannot be granted. Held: The applications for restitution were rightly rejected. (Paras not numbered) C) Procedural Law - Estoppel by Election - Doctrine of Approbate and Reprobate - Not applicable when court suo motu raises jurisdictional issue - The respondent submitted to the jurisdiction of the civil court and did not object initially, but the court sua sponte raised the objection; therefore, the doctrine of approbate and reprobate could not be invoked to prevent the respondent from raising the objection later. Held: The doctrine did not bar the respondent's objection, but the conclusive finding under Section 289(2) barred the challenge. (Paras not numbered)
Issue of Consideration
Whether the respondent could raise the objection in the High Court that the civil court had no jurisdiction to entertain the appeals, given that the revenue court had previously held that the civil court was competent and no reference under Section 289(2) of the U.P. Tenancy Act, 1939 was made
Final Decision
The Supreme Court allowed the appeals, set aside the High Court's judgment, and restored the order of the Additional Civil Judge dismissing the restitution applications. The Court held that the finding of the revenue court that the civil court had jurisdiction had become final and conclusive in the absence of a reference under Section 289(2) of the U.P. Tenancy Act, and the High Court could not entertain the objection. On merits, the Court concurred that the appellant had not obtained possession under the decree, so restitution was not warranted.
Law Points
- Legal points not extracted
- Section 289(2) applies when a suit
- application or appeal rejected by one court for want of jurisdiction is filed in another court and the latter disagrees with the former's finding
- reference to High Court compulsory
- if no reference former finding becomes final and conclusive
- only court where proceeding subsequently instituted can disagree and make reference
- doctrine of approbate and reprobate not applicable when court suo motu raises objection
