S.S. Dhavan, J.
1. This is a defendant's second appeal against the concurrent decisions of the courts below decreeing the plaintiff-respondents' suit for possession of a plot of land. The plaintiff complained that the defendant had encroached on his plot after demolishing a daul (slightly raised water channel) which formed the boundary between the plaintiffs' and defendant's land. The defendant contested the suit and denied that the land belonged to the plaintiffs. Both the courts below have believed the plaintiffs' story and found that the land in suit belongs to the plaintiffs and the defendant illegally occupied it. The defendant has now come to this Court in second appeal.
2 Mr. N. Kumar, learned counsel for the appellant urged the following point in support of this appeal. First, he tried to argue that the Civil court had no jurisdiction to try this suit. He conceded that the defendant had not raised any objection against the jurisdiction of the courts and on the contrary he had admitted in. his written statement that the Court had jurisdiction. But he argued that the defendant has a right to raise this, question at any stage of the dispute, including second appeal, and that the Court must entertain it. I am not prepared to agree that a defendant who concedes in his written statement that the Court has jurisdiction and fights the case on merits but loses it has the right to raise it in second appeal. I agree that consent does not confer jurisdiction, but the question here is not whether the decree passed by the courts below is without jurisdiction but whether the defendant has any right to argue a point which he conceded before the trial court. His right to argue any point is a part of his right to appeal which is conferred by Section 100 C.P.C. It does not exist apart from the statute. But even the right to appeal is subject to Section 151 which saves the inherent jurisdiction of this Court to safeguard the ends or Justice or in prevent the abuse of the process of Court. A party which admits in its written statement that the court has jurisdiction and fights the case on merits but afterwards wishes to go back on his admission must explain to the Court the reasons for this somersault if the Court is bound under the law to hear a point which was never raised in the courts below, it will be rendered powerless against an unscrupulous litigant who deliberatelykeeps back the question of jurisdiction as a trump card up his sleeve to be used only in case of the decision being against him on merits. In my opinion, a party which never raises the question of jurisdiction and in fact conceded it and had a fair trial, cannot challenge the jurisdiction of the courts below without the leave of the Court. In Mula v. Babu Ram, AIR 1980 All 5/3, I pointed out that this Court has the discretion to refuse relief under Article 226 of the Constitution and not to hear a party which has disentitled himself to any help by his conduct even though he succeeds in establishing that the order of the lower tribunal was without jurisdiction, and that there was no adequate reason to curtail this discretion when the Court is hearing an appeal under Section 100 C.P.C. I think the Court may in its discretion refuse to entertain a plea of want of jurisdiction raised for the first time by an appellant who had not raised it in the courts below and was not prejudiced in the trial in any way.
3 Mr. Kumar relied upon some observation of the Supreme Court in Kiran Singh v. Chaman Paswm, AIR 1954 SC 340, to the effect that a decree passed by a court without jurisdiction is a nullity and its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution or in collateral proceedings. But the Supreme Court did not hold that the court is powerless to prevent an abuse of the process of the Court or that it has no power to refuse to hear a party which cannot satisfactorily explain its omission to object to the jurisdiction of the court during the trial. It is significant that in the case before them the Supreme Court declined to interfere on the ground that the appellant had suffered no prejudice.
4. In the present case, learned counsel was unable to show how the defendant had suffered any prejudice. On the contrary, I feel that it would be grossly unfair to the plaintiffs to allow the defendant to raise a point 11 years after the filing of the suit. If the challenge to the jurisdiction of the trial court succeeds, the plaintiffs will have to start all over again and it will probably take them as many more years to reach the present stage once again. I do not think that it would be just to put the plaintiffs to the hazards of litigation at the instance of a defendant who has lost the case after a fair trial.
4a. Mr. Kumar then contended that the finding of the appellate court that the defendant had admitted in his written statement that he encroached on the plaintiffs' land is patently wrong as the defendant made no such admission. I do not think that the courts below have found it in so many words that the defendants admitted encroachment. The lower court has observed that according to the defendant's own case he had removed the plaintiffs' material from the land in dispute and it followed that if the land did not belong to the defendant he was guilty of encroachment. The Court relied upon the defendant's admission that he had occupied the land but did not impute to him any admission that he had encroached. It was open to the Court to hold that the defendant's occupation was an encroachment because the land did not belong to him.
5. Lastly, Mr. Kumar urged that the courts below had relied upon the report of the Commissioner even after having condemned it as unsatisfactory. I have perused the observations of the appellate court about the Commissioner's report. It was of the view that the Commissioner had not taken the measurements accurately butthat the inaccuracies were too small to affect the conclusions of the Commissioner. I see nothing legal or improper in this.
6. No other point was urged. The appeal is dismissed with costs.