N.N Mithal, J.:— This appeal is directed against the order of the II Addl. District Judge, Muzaffarnagar, dated 5.9.74 setting aside the judgment and decree of the trial Court and remanding the suit to the trial Court with a direction to return the plaint to the plaintiff-respondent.
2. Narain Singh plaintiff-respondent filed a suit for partition of his 1/6 share in plot No. 96 having an area of 1 Bigha 11 Biswas situate in village Kabirpur.
3. Pargana Baghra, District Muzaffarnagar on the ground that he was Bhumidhar and in possession of the said plot in suit alongwith defendants no. 1 to 6 and one Hoshiar Singh. The suit was contested by defendants Nos. 1, 2, 3, and 8 who denied the plaintiff's claim and asserted that he had no share in the disputed land. The defendants further pleaded that the suit was barred by Section 49 of the Consolidation of Holdings Act. A number of other pleas were also raised but no plea questioning the jurisdiction of the Civil Court was raised. The trial Court framed 13 issues, none of them related to the jurisdiction of the Court to entertain or try the suit. The trial Court held that the land in dispute was not joint and the plaintiff had no share in the same, and the suit was not barred by Section 49 of the Consolidation of Holdings Act as the land had been earmarked as abadi land. On these findings the trial Court dismissed the suit. Plaintiff thereupon filed appeal against the judgment and decree of the trial Court. The appellate Court did not consider the trial Court's findings on merits instead it set aside the trial Court's findings on the sole ground that the Civil Court had no jurisdiction to entertain the suit as the land in dispute was agricultural land. The appellate Court remanded the suit to the trial Court with a direction that the plaint be returned to the plaintiff for presentation to the competent Court. Aggrieved, the defendants have preferred this appeal against the order of the appellate Court.
4. Learned counsel for the defendant-appellants urged that since the plaintiff himself had invoked the jurisdiction of the Civil Court, it was not open to him to raise the question of jurisdiction for the first time in appeal before the appellate Court. He further urged that the view taken by the lower appellate Court that the Civil Court had no jurisdiction is erroneous. The Civil Court, according to him, had full jurisdiction to entertain and try the suit. We find considerable force in the contention, Admittedly the plaintiff himself chose the forum by filing his suit in the Civil Court with the assertion that the land in dispute was abadi land. He contested the defendant's plea that the suit was barred by Section 49 of the Consolidation of Holdings Act on the ground that the question of title in abadi land is not determined by the consolidation authorities hence Section 49 could not Page: 300operate as bar to his suit. The plaintiff produced evidence and invited the Court to record findings on the questions raised in the suit. When the trial Court dismissed the suit on merits, it was not open to the plaintiff to turn round to challenge the decree of the trial Court on the ground that the Civil Court had no jurisdiction to entertain or try his suit. No party can take advantage of its own mistake, if any, therefore, the plaintiff was not entitled to challenge the findings of the trial Court on the ground of lack of jurisdiction.
5. Section 331 of the U.P Zamindari Abolition and Land Reforms Act 1951 lays down that no Court other than a Court mentioned in Column 4 of Schedule II shall take cognizance of any suit for partition of Bhumidhari land. Entries contained in Schedule II provide that suit for partition of Bhumidhari land is cognizable by Assistant Collector 1st Class. Since Section 331 provides special forum for filing suit for partition of agricultural land, Civil Court has no jurisdiction to entertain such a suit. The question whether the suit is cognizable by a Civil Court or by a revenue Court has often given rise to multiplicity of proceedings and unnecessary litigation which has often resulted into great hardship to the litigant public. Many a times the question of jurisdiction was raised even at the second appellate stage or even under Art. 136 of the Constitution and in some cases it was found that the Court had no jurisdiction to entertain suit as it happened in Chandrika Misir v. Bhaiyalal (1973) 2 SCC 474 , A.I.R 1973 S.C 2391. In order to meet the situation the Legislature intervened and enacted Section 331(1-A) (added by U.P Act No. 4 of 1969), which lays down that it is not open to a party to raise the question of absence of jurisdiction unless the objection was taken by it in the Court of first instance at the earliest possible opportunity or before the settlement of issues. Even if such an objection is raised, the party has further to prove that there has been failure of justice and he suffered on account of the Civil Court taking cognizance of the suit. The conditions must be satisfied before the question of jurisdiction can be raised before an appellate or revisional Court. Firstly, the objection must be taken before the trial Court at the earilest stage and secondly, the party must show that there has been failure of justice on account of the suit being tried by the Civil Court. If either of the two conditions are not fulfilled, it is not open to party to raise the question of jurisdiction before the appellate Court or the revisional Court and a decree or order passed by the Civil Court shall be valid notwithstanding the provisions contained in Section 331 of the Act. Legislature has further provided that an appeal against a decree or order of Civil Court shall be maintainable before the appellate Court in accordance with the provisions of the Civil Procedure Code.
6. In view of the statutory provisions the plaintiff was not entitled to raise the question of jurisdiction before the lower appellate Court. The Addl. District Judge committed error in setting aside the trial Court's decree on the question of jurisdiction only. The Addl. District Judge exhibited ignorance of basic principles of law. He completely overlooked the statutory provision as contained in Section 331(1-A) of the Act in entertaining the plaintiff's objection to Civil judge, jurisdiction and in issuing direction to the trial Court to return the plaint to the plaintiff. The order of the appellate Court is wholly erroneous and it must be set aside.
7. In the result, we allow the appeal, set aside the order of the appellate Court dated 5.6.79 and direct it to hear and decide the appeal on merits. Parties shall bear their own costs.