H.N Seth, J.:— Defendants Nasir Uddin, Abdul Razzaq and Mohd. Siddiq, being dissatisfied with the judgment and decree by the Additional Civil Judge, Bijnor dismissing their appeal have filed this second appeal.

2. Chaudhri Ram Swarup filed a suit in the court of Munsif Bijnor alleging that plot No. 1045/1, village Noorpur which had an area of 1 Bigha 14 Biswas, was his Bhumidhari. He, by a sale deed dated 31-10-1958, sold an area of 1 Bigha and 10 Biswas of the plot to defendants Nos. 4-7. From out of the remaining 4 Biswas of the plot (705 sq. yards) abutting on Cohana Road towards south he, by a sale deed dated 19th Dec. 1958 transferred an area of 345 Sq. Yds. to defendants Nos. 1 to 3 and an area of 260 Sq. Yds. of land remained with him. In the year 1960 defendants Nos. 1 to 7 illegally encroached upon that land and ousted him from its possession. Accordingly he had to approach the court asking for a decree for defendants' ejectment from and possession over, the land. Defendants Nos. 1 and 2 contested the suit and denied that they had made any encroachment on the land that, after execution of the two sale deeds, was left with the plaintiff. They alleged that in between Dec. 15, 1958 and March 1959 they had set up constructions valued at Rs. 30,000/- on the land which had been sold to them and claimed that in any case the suit for their ejectment was barred by principles of estoppel and acquiescence. They also questioned the jurisdiction of the Civil Court to try the suit. Remaining defendants did not file any written statement and the suit proceeded ex parte against them.

3. The trial court framed an issue on the question of civil court's jurisdiction to try the suit and tried it as a preliminary issue. It held that civil courts had jurisdiction to try the suit and proceeded to decide it on merits. It found that the defendants had encroached upon the Land belonging to the plaintiff and that the suit was not barred by principles of estoppel and acquiescence. In the result the court, vide its judgment dated 8th Feb. 1964, decreed the plaintiff's suit for possession over the land marked AKJL with costs and permitted the defendants to remove their constructions within a period of one month of the date of the decree.

4. Being aggrieved, defendants Nos. 1 to 3 filed an appeal which was disposed of by the Additional Civil Judge, Bijnor by his order dated 5-5-1965. Although in their memorandum of appeal the defendants had raised a ground with regard to the jurisdiction of the civil court to entertain the suit, but it appears they did not press it before the appellate court. On merits the appellate court affirmed the findings recorded by the trial court and dismissed the appeal. It however extended the time allowed to the defendants for removing their constructions up to 5th July 1965.

5. Being dissatisfied by the judgment and decree of the lower appellate court, the defendants filed this appeal in the year 1965. Apart from challenging the decree on merits, the appellant again raised the plea that the jurisdiction of the civil court to try the suit was, in view of the provisions contained in S. 331 of the U.P Zamindari Abolition and Land Reforms Act, barred.

6. By the time the present appeal came up for final hearing S. 331 of the U.P Zamindari Abolition and Land Reforms Act U.P Act (XI of 1901 (sic) 1 of 1951) was amended by U.P Act No. 4 of 1969 and a new sub-sec. (1-A) which ran thus:—

“Notwithstanding anything in sub-section (1) an objection that a court mentioned in Column 4 of Schedule n, or as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.” was added thereto.

7. When, at the hearing of the appeal, learned counsel for the appellant wanted to urge that the civil courts had no jurisdiction to entertain the suit, learned counsel for the plaintiff respondent submitted that in view of the aforementioned amendment made in S. 331 of the U.P Zamindari Abolition and Land Reforms Act, the objection with regard to civil court's jurisdiction sought to be raised by the appellant could not be entertained. Learned counsel for the appellant countered the aforesaid argument by submitting that the judgment under appeal had been delivered prior to the amendment made and insertion of sub-sec. (1-A) in S. 331 of the U.P Zamindari Abolition and Land Reforms Act. According to him the amendment being prospective, the provisions of S. 331(1-A) were not attracted and this Court is not precluded from entertaining the objection raised by him. In support of this submission learned counsel placed strong reliance on a single Judge decision of this Court in the case of Sugrim v. Saraswati, 1971 All LJ 309.

8. As the learned Judge hearing this appeal felt that the point raised before him with regard to applicability of S. 331(1-A), in proceedings like the present one, is of importance and as he had some doubt about the correctness of the decision in Sugrim's case (supra), he referred the appeal for decision to a Division Bench and this is how the case has come up before us. We accordingly proceed to consider the question as to whether in a second appeal arising out of a suit instituted and decided before coming into force of U.P Act IV of 1969 (introducing sub-sec. (1-A) to S. 331 of the U.P Zamindari Abolition and Land Reforms Act) and coming up for hearing after the aforesaid Act came into force, it is open to the respondent to raise a plea based on sub-sec. (1-A) of S. 331 of the Act.

9. A perusal of sub-sec. (1-A) quoted above clearly shows that the subject matter dealt with by it relates to an objection with regard to the jurisdiction of a civil or revenue court to try a suit instituted before either of them. It undoubtedly concerns itself with dealing with an objection with regard to the forum where the cause should have been tried. It is now well settled that no person has a vested right to have his case heard and decided by a particular Tribunal and that no party has a vested right to a particular procedure and that all procedural laws are retrospective unless the Legislature expressly states to the contrary and that the procedural laws in force must be applied at the date when a suit or proceeding comes on for trial or disposal. See Messrs Alson Steel Rolling Mills… v. The State Of Punjab…., AIR 1960 Punjab 55, Shiv Bhagwan v. Onkar Mal, AIR 1952 Bom 365. Viewed in this light a statutory provision with regard to the forum where a particular cause has to be tried cannot be considered to be an objection relating to a substantive right of a person and a statutory provision laying down the condition and the circumstances in which such an objection can or cannot be permitted to be raised must be considered to be a matter of procedure and as such a procedural provision. Sub-sec. (1-A) of S. 331 does nothing more than to lay down the circumstances in which an objection to the jurisdiction of the initial court which tried the particular cause could or could not be permitted to be raised by any appellate or revisional court, and must be considered to be a procedural provision.

10. It cannot be doubted that as no one has a vested right in any procedural rule any change made in a procedural law has a retrospective effect in the sense that such a change governs pending judicial proceedings as well. It is also settled that any change made in a procedural provision should not, unless the statute either specifically or by necessary implication lays it down, be so interpreted as to affect, either the substantive rights already acquired by a party to a proceeding or the validity or operation of any order validly passed or an act validly done by a judicial Tribunal under the procedural law for the time being in force. In such cases one has to look to the stage to which a particular case has reached. If a suit is in its initial stage and is pending before a trial court and at that time there is a change in the procedure the changed procedure should be followed, for it would not affect the right of any person at this stage. But if a party has already obtained a certain right under a decree it would be very unfair to disturb that right and direct the suitor to start afresh from the trial court for no fault of his. See AIR 1950 East Punj 25 (FB), Ram Singh v. Crown and Ram Baksh v. Board of Revenue, 1967 RD 413 (All) (FB).

11. The limit beyond which retrospective operation of a procedural law cannot be stretched has been aptly summed up by P.B Mukerji J. in the case of Ajit Kumar v. State, AIR 1961 Cal 560 (FB) thus (at p. 566):—

“The law therefore is not in doubt, that amended law relating to procedure operates retrospectively but it is a very misunderstood branch of the law. It is necessary, therefore, to emphasize that it only means that pending cases although instituted under the old Act but still pending are governed by the new procedure under the amended law, but it does not mean that the part of the old procedure already applied and concluded before the amendment came into force e.g in this case cognizance taken in the manner permissible under the old Act, becomes bad or can be reopened under the new procedure after the amendment. The amendment of the procedural law will apply from and after the 1st Feb. 1961 when the amendment came into force and is retrospective only in the sense that even pending cases will be governed for future stages of the procedure by the amended procedure under the amended law. But this doctrine of retrospective operation does not mean that whatever procedure was correctly adopted and concluded under the old law will be reopened again for the purposes of applying the new law of procedure. That will be not merely making it retrospective, but going a step further to make ex post facto the procedure, legal when applied and concluded, illegal by a subsequent law. No court will permit such a consequence unless of course the statute expressly or by compelling implications, says so. The present amendment has neither that express nor necessary implication. It is crucial to bear this distinction in mind. A substantive law when amended is ordinarily said to be prospective unless otherwise expressly or impliedly retrospective, and therefore even pending cases, even after amendment of substantive law are governed by the old substantive law under which they were instituted, but here where the amendment is only of procedure even pending cases are governed by the amended law of procedure but only in respect of those stages of procedure that remained to be applied after the amendment comes into force.”

12. We fully agree with the law as enunciated by Mukerji J. in Ajit Kumar's case.

13. Sub-sec. (1-A) of S. 331 does not lay down as to which of the two courts viz. Civil or the Revenue Court will have jurisdiction to try a particular case. It merely provides that no appeal or revisional court shall entertain an objection with regard to the jurisdiction of civil or the revenue court to try a particular cause, except in circumstances mentioned therein.

14. A provision for such an inhibition on the exercise of its powers by the appellate or the revisional court, cannot, in our opinion, be construed as an interference with any accrued right or concluded proceedings. It, on the other hand, enjoins upon the appellate or the revisional court not to interfere either with the rights accrued under the lower court's decree or the proceedings concluded there in the circumstances mentioned therein. There is nothing in the sub-section which enables the appellate or the revisional court to set aside or interfere with lower court's decree on the basis of anything contained in the amended law. Accordingly, there is nothing to prevent the applicability of the procedural provision enacted in this sub-section at the stage of a second appeal arising out of a suit instituted and decided before the U.P Act No. 4 of 1969 came into force.

15. In Sugrim's case (1971 All LJ 309) (supra) a suit had been filed in Munsif's court for possession over certain plots. While contesting the suit on merits the defendants did not raise any question with regard to the jurisdiction of that Court to try the suit. Ultimately the Munsif decreed the suit and the defendants went up in appeal. The defendant sought permission and was permitted by the lower court to raise the plea with regard to the jurisdiction of the Munsif to try the suit. The lower appellate court, however, came to the conclusion that the suit had been rightly instituted before the Munsif who had ample jurisdiction to try the same. As the defendant did not argue the appeal on merits and had confined his submission to the plea of jurisdiction only, the lower appellate court, after rejecting that plea dismissed the appeal. The defendant then preferred a second appeal before the High Court. During the pendency of the appeal, S. 331 of the U.P Zamindari Abolition and Land Reforms Act was amended in the year 1969 and sub-sec. (1-A) quoted above was inserted therein. While dealing with the question whether any reliance could not be placed on the newly added sub-section, the learned Judge came to the conclusion that there was no doubt that a provision which relates to the forum where a suit or proceeding has to be instituted is one which is procedural and that the law enacted by sub-sec. (1-A) had to be given retrospective operation. This would be evident from the following observations made by him at page 315 of the report:—

“It is true that if the objection with regard to jurisdiction was raised for the first time in second appeal the prohibition contained in S. 19 will apply with full force.”

16. The learned Judge, however, went on to interpret sub-sec. (1-A) of S. 331 of the Act in the light of the principle that a procedural law should not be retrospectively applied in such a manner so as to affect the rights accrued under a decree obtained before coming into force of the law and he went on to observe thus:—

“It is this aspect of the case which makes the expression ‘entertain’ occurring in the amending S. 19 pregnant with special significance. I find force in the contention of the appellant that the bar created by the aforesaid amendment converges precisely to the point when the objection is for the first time raised whether it is the trial court or the appellate or the revisional court, naturally at a time when the amendment has been already introduced in S. 331 of U.P Act 1 of 1951. Applying the aforesaid principle, if the trial of a suit was pending and the amendment came into force it will have to be given effect to but where the suit has already been finally decided and the appellant has obtained a decree in his favour, it would be most unfair to enforce the amendment with retrospective effect so as to destroy that right.

It is true that if the objection with regard to jurisdiction was raised for the first time in second appeal the prohibition contained in S. 19 would apply with full force. But as the plea had already been ‘entertained’ at that time when amending Act was not in existence at all, retrospectivity should not be carried to such limit as to reopen the proceedings which have already concluded. There is no denying the fact that the view expressed by the court below on the plea of jurisdiction on merits is open to scrutiny by the court but that only means that I may agree or disagree with the opinion of the lower appellate court on the merits of the objection relating to jurisdiction, but so far as the initial entertaining of the objection is concerned, that is a “fait accompli” and in view of the language of the amending section the matter is no longer at large in second appeal.”

17. In substance what he has held is that in a case where an objection as to the jurisdiction has once been entertained by a lower court the raising of the controversy in the High Court in respect of the same objection does not amount to entertaining an objection within the meaning of sub-sec. (1-A) of S. 331 of the U.P Zamindari Abolition and Land Reforms Act. Accordingly, the case before him was not covered by the inhibition contained in S. 331(1-A), and on general principle the objection with regard to trial court's jurisdiction to try the suit could be raised for the first time even before the second appellate court.

18. We find ourselves unable to agree with this line of reasoning.

19. Sub-sec. (1-A) of S. 331 has been worded in a negative manner and provides that no objection, that a revenue, or, as the case may be, a civil court has no jurisdiction to try a suit, application or proceeding shall be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled on or before such settlement and unless there had been a consequent failure of justice. The section clearly contemplates that an objection with regard to the jurisdiction of the trial court can be entertained by the appellate or the revisional court in cases where it has been taken (entertained in that sense) before the court of first instance at the earliest opportunity and if a wrong decision on the question of jurisdiction has occasioned a failure of justice. Accordingly, entertainment of objection, contemplated by sub-sec. (1-A), cannot mean raising the objection with regard to jurisdiction of the court of first instance for the first time before the appellate or the revisional court. The section undoubtedly contemplates entertainment of an objection with regard to jurisdiction of the trial court to try a suit in the circumstances mentioned therein. The expression ‘entertain’ in sub-section therefore cannot be limited to raising of an objection with regard to jurisdiction of the trial court for the first time before the appellate or the revisional court in the context what the sub-section intends to convey is that no appellate or revisional court shall hear and decide the objection with regard to the jurisdiction of the trial court to decide the cause except in circumstances mentioned in the sub-section.

20. Applying the principle that an amendment made in the procedural provision has to be applied even to proceedings instituted before the amendment from the stage the proceedings have reached. We find no escape from the position that the provision contained in sub-sec. (1-A) of S. 331 becomes available to the concerned party even at the stage when the second appeal comes up for heading, and it is open to it to contend that the court cannot hear and decide the objection with regard to any error made by the initial court in entertaining and trying the suit unless he is able to show that the objection with regard to initial court's jurisdiction was raised at the earliest and that the wrong decision on the point has occasioned a failure of justice.

21. We are accordingly of opinion that notwithstanding the fact that the suit giving rise to the appeal was filed and decided before coming into force of U.P Act No. 19 of 1969 it is open to a respondent to in a second appeal coming up for hearing after the coming into force of the aforesaid amendment Act, raise a plea on the basis of sub-sec. (1-A) as introduced in S. 331 of the U.P Zamindari Abolition and Land Reforms Act.

22. As stated earlier, sub-sec. (1-A) of S. 331 merely inhibits the appellant from contending before the appellate or the revisional court that the trial court had no jurisdiction to try the suit unless he can show that such a plea was raised before the court of first instance at the earliest stage and in any case prior to the framing of the issues and that the wrong decision on the question of jurisdiction had occasioned a failure of justice. Before the inhibition contained in the section with regard to entertainment of an objection on the question of trial court's jurisdiction to try the suit is removed, the objector has to show that both the conditions mentioned above i.e the objection was raised at the earliest and that the trial by the court of first instance has resulted in failure of justice, co-exist. In the instant case in view of the fact that an issue had been framed by the trial court on the question of its jurisdiction to try the suit, it may be taken that the appellant has succeeded in establishing that he had raised the objection with regard to trial court's jurisdiction to try the suit before, framing of issues and that the first condition enabling him to raise such an objection before the appellate and revisional court has been made out. However, before the appellant can be heard on the point he has still to show that the other condition viz.— that a wrong decision by the trial court on the question of jurisdiction has occasioned a failure of justice.

23. Apart from contending that a failure of justice has been occasioned because the suit was in fact not triable by the civil court, learned counsel for the appellant was not able to bring anything to our notice to show that trial of the suit by the civil court has resulted in injustice. It is significant that the appellant who was also an appellant in the lower appellate court did not press his objection with regard to trial court's jurisdiction to try the suit. When the appellant himself did not press this plea before the lower appellate court, it meant that he was not aggrieved by the decision of the trial court on that point and that the trial of the suit by the civil court has not occasioned any injustice to him. As the appellant has failed to show that one of the necessary conditions for removing the inhibition contained in sub-sec. (1-A) of S. 331 of the U.P Zamindari Abolition and Land Reforms Act exists, he cannot be permitted to press the second appeal on the ground that the suit giving rise to this appeal was wrongly instituted before the trial court.

24. Learned counsel for the appellant next contended that the decree passed by the lower appellate court is also otherwise contrary to law and is liable to be get aside on that ground. He urged that the plaintiff was not entitled to a decree for possession over the plot in dispute as he had practiced fraud upon the contesting defendants. According to him the plaintiff acted fraudulently inasmuch as he himself had put them in possession of the land built upon by them but he had fraudulently shown in the sale-deed that an area of 345 Sq. Yds. only had been transferred to them. The lower appellate court, in our opinion, has rightly pointed out that as the defendants did not give particulars of the fraud in their written statement, they could not be permitted to make any submission on its basis. Moreover, after going through the evidence produced in the case, the lower appellate court recorded a finding of fact that the defendants had failed to prove any fraud on the part of the plaintiff. This finding of fact, based on appraisement of evidence, cannot be questioned in a second appeal.

25. Learned counsel for the appellant then contended that in this case the defendants had openly and in the knowledge of the plaintiff set up valuable constructions. Accordingly, the plaintiff's claim for removal of the construction and delivery of possession of the plot was barred by the principles of estoppel and acquiescence. The lower appellate court after going through the evidence on the record, recorded a finding that the defendants fully knew the land which had been transferred to them by the plaintiff and that they had knowingly encroached upon and set up constructions over land which had not been sold to them. As held in the case of Mahmudul-Haq v. Waqf-ul-Aulad, AIR 1934 Oudh 178. It is necessary for the person raising the plea of estoppel and acquiescence to show that he had acted in good faith. In the Instant case we find that the defendants had full knowledge of the land actually sold to them. There is nothing on the record to indicate that they bona fide believed that they were entitled to encroach upon the land belonging to the plaintiff or that any action of the plaintiff was responsible for creating such a belief in the mind of the defendants.

26. In the circumstances no question of the claim of the plaintiff being barred by estoppel or acquiescence arises. We therefore do not find that the decree passed by the lower appellate court suffers from any error of law.

27. In the circumstances the appeal fails and is dismissed with costs.

28. Appeal dismissed.