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Mula and anr. Vs. Babu Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Criminal
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 840 of 1956
Judge
Reported inAIR1960All573
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100, 115 and 151; Constitution of India - Article 226; Tenancy Law; Uttar Pradesh Tenancy Act, 1939 - Sections 60, 64, 180 and 242; Specific Relief Act, 1877 - Sections 54 and 56; ;Code of Criminal Procedure (CrPC) , 1898 - Sections 145
AppellantMula and anr.
RespondentBabu Ram and anr.
Appellant AdvocateN.S. Singhal, Adv.
Respondent AdvocateAmbika Pd. and ;H.C. Sharma, Advs.
DispositionAppeal dismissed
Excerpt:
(i) tenancy - suit for permanent injunction restraining interfering with possession - sections 60, 64 and 180 of u.p. tenancy act, 1939 - no specific relief under tenancy act. (ii) tenancy - suit for permanent injunction restraining interfering with possession - section 56 of specific relief act, 1877 - civil court has jurisdiction to grant relief for permanent injunction. (iii criminal - interim possession - section 145 of criminal procedure code, 1898 - civil court granted relief for permanent injunction - subsequent order of criminal court giving possession to defendant not maintainable. - - were initiated, and the trying magistrate attached the land in dispute as well as the standing crop. now, nearly seven years after the original decision, the appellants seek permission to.....s.s. dhavan, j.1. this is a defendants' second appeal against the decree of the second civil judge, meerut, confirming a decision of the trial court b'y which the plaintiff-respondents' suit for an, injunction restraining the defendant-appellants from interfering with their possession over the plot of the land in dispute and for a declaration, that he was entitled to receive the sale price of the crop deposited in court was decreed. the facts which have led to this appeal, yery briefly, are these. in the year 1951 there was a dispute between the plaintiff-respondents and the defendant-appellants over a plot of land which led to an apprehension of breach of the peace.proceedings under section 145 cr. p. c. were initiated, and the trying magistrate attached the land in dispute as well as.....
Judgment:

S.S. Dhavan, J.

1. This is a defendants' second appeal against the decree of the Second Civil Judge, Meerut, confirming a decision of the trial court b'y which the plaintiff-respondents' suit for an, injunction restraining the defendant-appellants from interfering with their possession over the plot of the land in dispute and for a declaration, that he was entitled to receive the sale price of the crop deposited in court was decreed. The facts which have led to this appeal, yery briefly, are these. In the year 1951 there was a dispute between the plaintiff-respondents and the defendant-appellants over a plot of land which led to an apprehension of breach of the peace.

Proceedings under Section 145 Cr. P. C. were initiated, and the trying Magistrate attached the land in dispute as well as the standing crop. A supurdar was however appointed by the court and the crop was sold by him for Rs. 700/- and the amount deposited in. court. The plaintiff-respondents were also permitted to cultivate the land in dispute for the Kharif season of 1951 in consideration of payment of a sum of Rs. 100/- to the court. on 11th December, 1951, the Magistrate passed an order under Section 145 (4) Cr. P. C. holding that the defendant-appellants were in possession. The operative part of his order runs thus:

'The attached crops shall be released in favour of the opposite party (the present defendant-appellants). The first party (the present plaintiff-respondents) is prevented from interfering in the possession of the opposite party until otherwise ordered by a competent court. They will be put in possession.'

The plaintiff-respondents filed a revision against this order, which was dismissed on 6th February, 1952. However he had remained in possession of the land in dispute which had been given to him for cultivation by an order of the court. It appears that the direction of the Magistrate that the defendant-appellants should be put in possession was not carried put immediately. On 8th February, 1952, the plaintiff-respondents filed the suit which led to the present second appeal. They prayed for a permanent injunction restraining the defendant-appellants from interfering with their possession of the plot in dispute and for a declaration that they were entitled to the amount of Rs. 800/-which had been deposited before the Magistrate in proceedings under Section 145 Cr. P. C.

It must be carefully noted that the plaintiff-respondents did not pray for possession of theland but asked for an injunction restraining thedefendants from interfering with their possession.On 12th February, 1952, the defendant-appellantsfiled their written, statement in which they admitted the allegation that the plaintiffs were in possession, but resisted the suit on the ground that thedefendants were tenants on batai for the last eightyears and had been cultivating on the plot _ asbatai-tenants. The plaintiff-respondents obtained a temporary injunction from the trial court restraining the defendants from interfering with theirpossession. It appears, however, that the temporary order must have been vacated, for the defendants took the possession of the plots in disputeby virtue of the order of the Magistrate under Section145(4) Cr. P. C., and filed a dakhalnama in thecivil suit.

The plaintiff-respondents thereupon, on 23-4-1952, filed a suit under Section 180 of the U. P. Tenancy Act in the revenue court for the ejectment of the defendants and for damages. On 19th March, 1953, this suit was decreed by the revenue court, and two days later, on 21-3-1953, the plaintiff-respondents re-acquired possession _ of the plots in dispute by another dakhalnama obtained under the decree of the revenue court. On 9th April, 1953, the plaintiff-respondents filed this dakhalnama and a copy of the judgment of the revenue court in the civil suit. On 24th April,1953, the civil suit itself was decreed by the learned Munsif, who held that the defendants, were not the batai-tenants of the land in dispute, that the plaintiffs were in possession of the disputed plots as bhumidars and that the attachment of the plots under Section 1.45 Cr. P. C. was made when the plots were in the plaintiffs' possession. Accordingly, the learned Munsif passed a decree declaring that the plaintiffs were entitled to the sum of Rs. 800/-deposited in the court of the Magistrate during the proceedings under Section 145 Cr. P. C. He also issued an injunction restraining the defendants from interfering with the plaintiffs' possession. The defendants' appeal was dismissed by the learned Second Civil Judge Meerut who confirmed the finding of the lower court that the plaintiffs were in actual possession of the land. Against this decision the defendants have come to this Court in second appeal.

2. It is necessary to note the ultimate result of the suit filed by the plaintiff-respondents in the revenue court. It has been stated above that the suit was decreed by that court. The defendants however filed an appeal, and the Additional Commissioner held that the procedure adopted by the trial court was irregular and set aside the decree. He remanded the case to the trial court for decision according to merits. The plaintiff-respondents filed a second appeal before the Board of Revenue which is still pending. The Board passed an order staying the hearing of the remanded suit and there the matter stands today.

3. Another fact must be noted before passing on to the merits of this appeal. In the civil suit filed by the plaintiff-respondents, the defendants had set up a plea that they were batai-tenants. The plaintiffs had alleged that they were the bhumidars of the land in dispute. The trial court framed two issues (1) whether the plaintiffs were the bhumidars; and (2) whether the defendants were batai-tenants? Both these issues were referred to the revenue court for decision. That court held that the plaintiffs were bhumidars and that the defendants were not batai-tenants. No objection was taken by the defendants to the action of the trial Court in sending these issues to the revenue court for decision. They appeared before the revenue court without protest and led evidence in support of their case. Subsequently, in the other suit filed by the plaintiff-respondents under Section 180 of the U. P. Tenancy Act, the question arose whether the defendants were batai-tenants of the land in dispute: and the revenue court framed an issue. It did not hear any evidence afresh but, relying on the evidence already heard by it when, deciding the issues remitted by the civil court in the other suit and relying on its decision on those issues, it held that the defendants were not batai-tenants.

4. Mr. Singhal, learned counsel for the, defendant-appellants, who argued this case with ability and considerable tenacity, urged the following points against the legality of the decision of the courts below. First, he contended that the matter in dispute between the parties was exclusively triable by the revenue court and the civil court had no jurisdiction to try this suit. Secondly, he urged that, in view of the order of the Magistrate under Section 145 Cr. P. C. directing the delivery of possession to the defendants, no order of permanent injunction could have been passed against the defendants by the civil court. He explained that on the date of the filing of the civil suit by the plaintiffs they could not be deemed to be in possession and therefore were not entitled to ask the Court to pass an order restraining any one from interfering with their possession which was nonexistent in law.

Thirdly, Mr. Singhal contended that the finding of the trial court on possession was based' onthe judgment of the revenue court in the plaintiffs'suit under Section 180 of the U. P. Tenancy Act andtherefore illegal. Fourthly, learned, counsel arguedthat the issue relating to the plaintiffs' status asbhumidars could not be referred to the revenuecourt and should have been decided by the civilcourt itself. I shall now proceed to consider thesecontentions.

5. The first contention concerns the jurisdiction of the civil court. It was conceded by learned counsel that no objection to the jurisdiction of the court was pressed either before the trial court or the lower appellate court. It appears that, inall probability, this objection was not taken even in the written statement. Learned counsel pointed to a sentence in the written statement which says. Dawe men estoppel ariz hai aur adalat ko akhtyar samaat hasil nahin hai'. (The suit is barred by estoppel and the court has no power). He argued that the second part of this short sentence must be deemed to be an objection to the jurisdiction of the civil court. I do not agree.

Reading the sentence us a whole, it means that the suit was barred by estoppel and the court had no power to grant the relief claimed by the plaintiffs. If the objection to the power of the court related to its jurisdiction as a civil court, it would have been expressed in a separate sentence and not made the terminal part of a plea based_ on, estoppel. In any case, it is conceded that the plea of jurisdiction was not argued either before the learned Munsif or the Civil Judge.

If the words in the written statement quoted above were meant to attack the jurisdiction of the court, there is no reason why no argument was addressed to either court on this question. One would have expected that, at least before the appellate court, the defendants, who had brought the suit and must have been on the look out for every conceivable objection against the legality of the decree passed against them, should have included the question or jurisdiction in their grounds of appeal. It is, therefore, obvious that this question has been raised for the first time in second appeal.

6. The question before me is whether should allow the defendant-appellants to raise this question. Learned counsel strongly contended that a plea of jurisdiction goes to the root of the power of the court to entertain the dispute and can be taken at any stage. He pointed out that no court can usurp a power not conferred on it by law, and that the High Court will not allow a decree which is without jurisdiction to stand. Learned counsel relied on an observation of Sulaiman C. J. in Shri Kishan Lal v. Bijai Singh : AIR1932All701 that the court was bound to entertain an objection against the jurisdiction of the civil court even if it was taken in second appeal. But no argument was addressed to the Court regarding the conduct of an appellant who takes an objection of this sort for the first time in second, appeal.

In the present case, as pointed out above, the appellants raised no plea relating to jurisdiction before the courts below. They took part in the proceedings without protest. When the Civil court remitted an issue for the decision of the revenue court, they appeared before the latter and produced all their evidence before it. After the decision went against- them, they did not take up the point of jurisdiction in appeal. Now, nearly seven years after the original decision, the appellants seek permission to challenge the jurisdiction of a court which decided the suit in 1953. It is perfectly true that jurisdiction is conferred on a court by law, and acquiescence on the part of parties will not confer jurisdiction where none exists but the question before this Court is whether it has the power to refuse to hear this argument from a litigant whose conduct shows that he is raising the question of jurisdiction as an afterthought.

I would hesitate long before accepting a proposition which would render the Court powerless against conduct of this sort and leave no effective check against an abuse of the process of the Court by an unscrupulous litigant, except, depriving him of costs in the event of victory, not a very effective check. It would be open to a litigant to keep back the plea of jurisdiction in the belonging (Sic)and, in the event of losing his case on merits in all courts, to raise it for the first time in second appeal with the object of causing another long delay in the final decision of the suit. I therefore think that the Court is not powerless in this matter and has the inherent power to refuse to entertain a plea relating to the jurisdiction of the Court if it feels that the appellant has disentitled himself byhis conduct to raise it.

AS to learned counsel's contention that the appellants' conduct will not convert lack of jurisdiction into its opposite, it must be noted that, in revisional proceedings, the Court is not bound to interfere even on proof of total lack of jurisdiction if it is of the opinion that it would not be in the interests of justice to interfere. Furthermore, in proceedings under Article 226 of the Constitution, this Court has often refused to interfere in several cases in, which the petitioner proved that the tribunal concerned had no jurisdiction because it felt that the petitioner had disentitled himself by his conduct to any relief.

In Azizun Nisa v. Asst. Custodian : AIR1957All561 a petitioner proved that the proceedings before the competent officer were ultra vires because the Ordinances made by the Governor General-in-Council enabling the Custodian to take over properties as evacuee properties wereultra vires and illegal. But, in spite o this, the Court refused to interfere on the ground that thepetitioner by his conduct had disentitled herself to any relief. I do not see any reason why this principle should not be applied in appropriate cases against an appellant who wants to raise the question of jurisdiction for the first time in second appeal.

It was argued that Section 100 C. P. C. confers a right of appeal whereas the power of interference under Section 115 C. P. C. and Article 226 of the Constitution are discretionary. That may be so,but the question whether this Court should permit a decree without jurisdiction to stand is equallyimportant in all proceedings and acquires no special virtue or force when raised in second appeal under Section 100 C. P. C. Both Section 115 C. P C. and Article 226 of the Constitution also confer on the litigant the right to move the Court and the right to move the Supreme Court under Article 32 is guaranteed by the Constitution itself. This has not prevented either the High Court or the Supreme Court to refuse to hear a litigant even 011 the question of jurisdiction if by his conduct he has otherwise disentitled himself to any relief.

It would be a strange anomaly that this Court can permit a decree or order without jurisdiction to stand if the aggrieved person comes here under Section 115 C. P. C. or Article 226, but is bound to quash it if he comes under Section 100 C. P. C. I do nod think that the law relating to jurisdiction permits such discrimination between cases under Section 100 C. P. C. on the one hand and under Section 115 C. P. C. and Article 226 on the other. In my view, the inherent power of the Court to refuse to interfere in the interests of justice is applicable to every case regardless of whether it was brought to its notice under Section 100 or under Section 115 C. P. C. or Article 226 of the Constitution. The right of second appeal is conferred by Section 100 C. P. C. But Section 151 of the same Code expressly provides that nothing in the Code shall affect the inherent Dower of the Court to pass any order in the interests of Justice or to prevent the abuse of process of the Court.

Thus the right of appeal under Section 100 is subject to the limitation that it shall not be abused: and the Court has an inherent power to prevent such abuse. The real question is not whetherthe impugned decision is without jurisdiction -- it may be -- but whether the Court should give the appellant any relief on that ground. The decision would have stood if he had not raised the plea of lack of jurisdiction and the Court can insist on placing an appellant in the same position in which he would have been if he had never raised it. The court will regard as not done what is done too late.

In that view of the matter, I have to see whether the present appellants should be heard onthe question of jurisdiction. Learned counselcould give no explanation why the objection tothe jurisdiction of the Court was not taken duringthe trial or, even before the lower appellate court.The learned counsel admitted that the appellantstook part in the proceedings without any protestand had every opportunity to lead evidence beforethe civil court, and before the revenue court inthe hearing of issues remitted to that court Inthe circumstances, I do not think it will be fairto the plaintiff-respondents to permit the appellants to raise this plea at this stage.

If it had been raised in the written statement or in arguments before the trial court and the learned Munsif had accepted it, the plaint would have been returned to the plaintiffs for presentation to the proper court and a suit would have been fought out without further delay in the revenue Court. But the appellants allowed four years to elapse before they thought of raising this plea. I do not think that they should be allowed to take advantage of their own delay and thus prolong this dispute by the simple device of raising a question of jurisdiction in second appeal. I, therefore, hold that the appellants are not entitled to be heard on the question of jurisdiction.

7. Even on merits, had I been inclined to hear the appellants (which I am not), I would hold that the plea of jurisdiction has no force. The appellants contend that the plaintiff-respondents could have obtained an adequate relief under Section 180 of the U. P. Tenancy Act from the revenue court. Learned counsel pointed out that the plaintiff respondents did in fact file such a suit before the Revenue Court. He relied on a decision of this Court in Mohammad Zahir Hasan v. Dularey : AIR1953All729 in which a relief for injunction was refused on the ground that the suit arose out of a cause of action in respect of which a relief for a declaration could be obtained from the revenue court and the suit was barred from the cognizance of the Civil court by Section 242 of the U. P. Tenancy Act. In that case the Division Bench, which heard the Civil Revision, posed before itself the question whether 'if a relief for a declaration had been asked for in the plaint the suit would have been of the nature specified in the 4th schedule (to the U. P. Tenancy Act), that is, whether it would be covered by any of the Sections 60, 61 or 63'. It held that Section 60 would have covered the case if a relief for a declaration had been asked for,

8. But in the subsequent case of Yar Mohammad v. Lakshmi Das : AIR1959All1 a Full Bench of this Court held that the jurisdiction of the Civil Court is not barred by Section 242 of the U. P. Tenancy Act in respect of a! suit filed under Section 9 of the Specific Relief Act praying for possession over agricultural land from which the plaintiff was alleged to have been illegally dispossessed within six months of the date of the suit. In that case, the Full Bench held in fact that it was for the plaintiff to rely upon such facts as were necessary for the foundation of his case. If I may paraphrase, with deep respect,some of the observations made by the Full Bench in that case, they mean that it is for a plaintiff ina suit to determine his own cause of action.

If he wishes not to allege certain facts, it is not for the Court to say to him, 'You could have obtained this or that relief if you had alleged certain additional facts which do exist.' If the petitioner does not wish to rely on certain facts he is entitled to do so, though at his own peril. The court cannot arrogate to itself the power of deciding for the plaintiff what relief he should or should not claim and what facts he should or should not allege in support of his relief. In that case, the plaintiff had based his suit for recovery of possession under Section 9 of the Specific Belief Act on the simple fact that he was in possession and that he had been dispossessed by the defendants without the authority of the law. He chose not to base his suit on his rights or title under the Tenancy Act.

The Full Bench held that he was entitled to do so and that the suit under Section 9 was not barred simply because the plaintiff could have by alleging the additional facts, obtained relief under Section 180 of the U. P. Tenancy Act. In my view, the decision in the later Full Bench case weakens the force of the decision in the earlier Division Bench case to this extent that I am not bound to follow the earlier case. I prefer to base my decision on the principles laid down by the Full Bench which apply to the facts of the present case. The plaintiff respondents, in this case, alleged in their plaint that they were in possession, and that the defendant appellants were trying to interfere with their possession and attempting to cut their crops and so on. They prayed for a permanent injunction restraining the defendants from interfering with their rights. This is a suit which would lie under Section 54 of the Specific Relief Act, Accordingly, the Civil Court had jurisdiction to grant this relief.

9. Learned counsel contended that the suit is barred by Section 56 (i) which enjoins that an injunction cannot be granted 'when equally efficacious relief can certainly be obtained by any other usual mode of proceedings, except in case of breach of trust.'' When asked to explain what other relief or reliefs the plaintiffs could have claimed on the same set of facts as alleged by them in their plaint, learned counsel stated that the plaintiff respondents could have obtained a declaration under Section 60 of the U. P. Tenancy Act and also a temporary injunction under Section 64. But a declaration under Section 60 will be granted only if the plaintiff alleges that he is the land holder asserting his rights against any person claiming to be a tenant. But in the present case the plaintiff respondents based their suit on the simple fact that they were in possession and the defendant appellants had no right to disturb it.

On these limited facts the revenue court could not have granted a declaration under Section 60. As regards the relief of permanent injunction, learned counsel for the respondents conceded that there is no section of the U. P. Tenancy Act providing for it. Section 64 merely enables the revenuecourt to grant a temporary injunction during the pendency of a suit under any of the Sections 59 to 63. It is therefore obvious that the plaintiff respondents could not have obtained an equally efficacious relief from the revenue court in this case.

10. Learned counsel contended that the plaintiff respondents could have obtained a relief under Section 180 of the U. P. Tenancy Act. That section provides for the ejectment of persons occupying land without title. It says that a person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law for the time being in force shall be liable- to ejectment under the section on the suit of the person so entitled, and also to pay damages..... Before a suit canbe filed under this section, the plaintiff must allege that (1) he is the person entitled to admit the trespasser to occupy the land in dispute, (2) the trespasser has taken possession of the land in dispute without the consent of the plaintiff and (3) the plaintiff wants the ejectment of the trespasser. None of these facts or conditions apply to the suit filed by the plaintiff respondents who alleged that they were in possession and that the defendants were attempting to interfere with it. They did not ask for the ejectment of the defendants but for an order prohibiting them to interfere with the plaintiffs' possession. It is therefore clear that Section 180 would not apply to the facts of the present case.

11. Learned counsel then contended that the Civil Court was bound by both the findings and the final orders of the Magistrate who heard the proceedings under Section 145 Cr. P. C. he had held that the defendant appellants were in fact in possession of the land just prior to the dispute. This finding was binding on the civil court. He had further held that the defendants were entitled to possession and this decision too was binding on the civil court.

This argument, with respect to learned counsel, is based on a misapprehension of the nature of the proceedings under Section 145 Cr. P. C. This section is primarily intended to enable the executive authorities to prevent a breach of the peace in the territory under their control. It prescribes a summary procedure which will, without prejudice to the ultimate rights and title of the disputants, enable the executive authorities to impose a provisional decision on the parties, pending a final decision by the civil court. Thus, by its very nature the finding of a Magistrate under Section 145 Cr. P. C. is not meant to be binding on the civil courts. Sub-section (4) of Section 145 Cr. P. C. says so in words which leave no room for doubt:

'The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of appearance of the parties before him and, if possible decide the question whether any and which of the parties wasat the date of the order before mentioned in such possession of the said subject.'

12. It is therefore clear that the object of the proceedings under Section 145 Cr. P. C. is to enable the executive authorities to maintain the status quo before the flaring up of the dispute and to leave it to the parties to obtain a final decision from a court of competent jurisdiction. The very nature of the procedure prescribed under Section 145 shows that a decision made in an enquiry of this sort cannot be final. The Magistrate is empowered to peruse the statements, documents and affidavits. He can hear the parties. He is required to conclude the enquiry within a period of two months from the date of appearance of the parties. He is to decide the question who was in actual possession, 'if possible'. It is obvious that such an enquiry, conducted, if I may use a popular expression 'by the stop-watch method' cannot but be provisional and its conclusions are not binding on the civil Court.

13. In this case the learned Munsif, after hearing the evidence of both the parties held that the story of the- appellants that they were Batai tenants was incorrect. This finding negatived the earlier but provisional conclusion of the Magistrate under Section 145 Cr. P. C. As stated above, there is nothing in Section 145, which makes either the cbncilusions or the orders of the Magistrate binding on the civil court. This contention must therefore fail.

14. Learned counsed then contended that the plaintiffs could not ask for an injunction restraining the defendants from interfering with their possession when in fact they were not in possession of the land in dispute at the time of the filing of the suit. In support of this contention Mr. Singhal put forward an ingenuous argument which he developed with some skill. He pointed out that, in the proceedings under Section 145, Cr. P. C. the Magistrate had passed an order attaching the land in dispute. He appointed a Supurdar who was directed to sell the crops standing on the land and to deposit the sale price in Court. He also passed an interim order permitting the plaintiff-respondents to cultivate the land during the Karif season which was then running.

Learned counsel conceded that that amounted to putting the plaintiff-respondents in possession of the land and that they were in fact put in possession under the orders of the Court. It is also conceded that the Kharif season would formally end on 31-12-1951 but learned counsel emphasised that all these orders of the court were of an interim and provisional nature and were intended to provide for the management of the land pending its final orders. He also emphasised that, after an order of attachment in proceedings under Section 145 Cr. P. C., the court acquires possession of the land which is in custodia legis. If the plaintiff respondents were given possession by any interim order of the court, they acquired it on behalf of the court. It was not possession which would entitle the plaintiffs to found an action for injunction under the Specific Relief Act. Thereforeeven if the plaintiffs were in possession of the land at the time of the filing of the suit, they would not be deemed so in law.

15. Mr. Singhal pressed an additional argument in support of this contention. He pointed out that the Magistrate had passed a final order under Section 145 Cr. P. C. holding that the defendants were in possession before the dispute between the parties started and directing that the defendants be given possession of the land. This order should have been carried out immediately, but was not. In these circumstances, though the plaintiffs, on 8-2-52 (when they filed their suit in Civil Court) were in possession of the land in the sense that they had been cultivating it during' the proceedings under Section 145 Cr. P. C. yet as they had not returned it to the defendants in violation of the order of the Magistrate, such possession would not be recognised by law to this extent that the plaintiffs would be entitled to base a suit for injunction on it.

16. I am afraid I am unable to agree with this contention. The simple question is whether the plaintiffs were in possession of the plot in dispute on the date of the suit and whether they were entitled to the protection of the court in defending their possession against unlawful interference. It is true that they were put in possession by the Court but the court had the power to do so, and they acquired lawful possession. It is not necessary for me to consider the question whether the plaintiffs' possession was on behalf of the court even after the termination of the proceedings under Section 145 Cr. P. C. It is enough for the decision of this case that the plaintiffs were put in possession by an order of the court.

It is true that the final order of the court was that the defendants were entitled to possession but this order was provisional and subject to a final adjudication of the rights of the parties by the civil court. The plaintiff respondents, while in actual possession of the plots, filed a suit in which they claimed that the defendants were trying to oust them wrongfully. The simple question is: what relief should the plaintiffs have claimed from the civil court on 8-2-1952 when they filed the suit. In my view, they were entitled to base their cause of action on the facts as they stood on that date. In fact, they could not have asked for a relief for possession even if they had wanted it.

17. A perusal of the written statement of the defendants shows that they admitted the fact that the plaintiffs were in possession. In paragraph 4 of the plaint the plaintiffs have alleged that they had been in possession and cultivating the plots after being given permission by the court. In their written statement the defendants stated that paragraph 4 was admitted. In their additional pleas they further stated that 'the plaintiffs had, by unscrupulous and litigious methods, managed to retain possession of the land in dispute and never given it up with the result that the defendants had suffered loss.' It is thus obvious that the defendants not only admitted the fact that the plaintiffs were in possession on the date of the filing of the suit but raised an objection to theframing of the relief or the prayer for the injunction on the grounds which are now sought to be pressed before me.

If they had raised their objections at the earliest opportunity, the plaintiffs would have, on a suitable direction from the court, amended their plaint accordingly. I do not think it would serve the interests of justice that the defendants should be allowed to raise the objection regarding possession alter having admitted the fact of the plaintiffs' possession in their written statement and not agitated it at any earlier stage of the dispute. I, therefore, hold that the defendants arc not entitled to raise this objection arid further that the objection itself has no force on merits.

18. Lastly, learned counsel contended that the procedure adopted by the trial court in remitting the issue of the plaintiffs' title as Bhumidhar to the revenue court was illegal. Learned counsel for the respondents contended in reply that this was a redundant issue and its decision does not in any way affect the merits of the plaintiffs' case, but the objection can be disposed of on mother ground. Here again, the defendants never took any objection to the procedure followed by the trial court. In fact, they went to the revenue court without protest and led evidence in support of their case.

The objection was raised for the first time before the appellate court and rejected by it. It is repeated again in this Court. In my view, this is not an objection going to the root of the jurisdiction of the trial court but relates to the procedure adopted by it. It is settled law that a party which acquiesces in the procedure of trial court and takes part in the proceedings without any protest cannot afterwards be permitted to turn round and attack it in the event of the decision having gone against him. This contention must therefore fail.

19. No other point was raised before me. The appeal fails and is dismissed with costs.

20. I do not think this is a fit case for special appeal and leave for appeal is refused.


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