B.L. Yadav, J. - (1.) THE present petition under Article 226 of the Constitution of India is directed against the order dated 7.3.80 passed by the Deputy Director of Consolidation in a revision filed Under Section 48 of the U.P. Consolidation of Holdings Act (for short the Act).
(2.) THE facts of the case are that in respect of bhumidhari and sir Dari land, residential houses and bamboo clump etc. a civil suit by Respondent Nos. 2 to 8 for declaration, that the Plaintiffs are the exclusive owners of the properties of list ' A ' bhumidhari plots, list ' B ' sir Dari plots and list ' C ' other plots, was filed against the present Petitioners and the same was dismissed by the Additional Massif, Jumper by his judgment dated 16.12.67. Against that judgment and decree an appeal was preferred which was partly allowed by the Civil Judge, Jumper by his judgment dated 25.05.1970 and shares were also specified in respect of the land in dispute. These judgments were left to operate as final as no Second Appeal was filed. On commencement of the consolidation operations, however, the dispute was again raised by the contesting Respondents 2 to 8, who filed objections in proceedings Under Section 9A(2) of the Act and claimed more shares than what was given by the Civil Judge and that the Civil Court has no jurisdiction to decide the earlier suit and appeal between tube parties and the judgment of the Civil Court would not operate as res -judicata. 4 The present Petitioners contested the claim of Respondents alleging that the earlier judgments of the Civil Court between the parties would operate as res -judicata and that the shares have been correctly specified by the Civil judge and that became final and the present objection by the contesting Respondents was not maintainable. The Civil Court has jurisdiction to decide the civil suit. The present Petitioners who were Defendants in the earlier civil suit had raised the plea that the Civil Courts has no jurisdiction to decide the suit. An issue was framed on the point and it was held that the Civil Court has jurisdiction to decide the suit, that finding became final. 5. The Consolidation Officer by his order dated 14.8.73 rejected the claim of the contesting Respondents. The appeal by the contesting Respondents was also dismissed. The revision by the contesting Respondents has been allowed by the Deputy Director of Consolidation by the impugned order dated 7.3.80 holding that the earlier judgment of the Civil Court would not operate as rest judicator and the Civil Court has no jurisdiction to decide the suit and remand the case to the Consolidation Officer for deciding the same on merits on the basis of evidence on record. 6. Sri C.P. Srivastava, appearing for the Petitioners, urged that the earlier judgments of the Civil Judge dated 25.5.70 in Civil Appeal No. 38 of 1969 Ganga Prasad Singh v. Smt. Maharaja and the judgment dated 16.12.67 in Civil Suit No. 11 of 1967 would operate as res -judicata between the parties and these judgments became final much before the commencement of the consolidation operations and no second appeal was filed. The plea whether the Civil Court has jurisdiction or not, was also raised and issue No. 4 was framed on the point. It was held by the Civil Court that it has jurisdiction to decide the suit in respect of the plots in dispute and that finding was upheld in appeal by the learned Civil Judge also. The Deputy Director of Consolidation, accordingly, committed an tenor apparent on the face of record in holding that the judgments of the Civil Court would not operate as res -judicata. Reliance was placed on Vidya Dhar v. Deputy Director of Consolidation, 1985 RD 9 Sabha Chand v. Narain Singh : 1981 AWC 161 Gokul v. Deputy Director of Consolidation, 1968 RD 160 :, 1968 AWR 305 and Rameshwar v. Ram Asrey, 1965 AWR 367. 7. Sri S.N. Singh appearing for the Respondents on the other hand urged that the judgment of the Civil Court would not opiate as res -judicata inasmuch as those judgments were in respect to bhumidhari and sir Dari land and in 1967 a suit for declaration could have been filed only in the revenue court and not in the Civil Court. Hence these judgments would not operate as res -judicata. Reliance was placed on Chandrika Misir v. Bhaiya Lai : 1973 RD 365 and Surendra Narain Dubey v. Deputy Director of Consolidation, 1973 RD 328. 8. Having heard the learned Counsel for the parties I am of the opinion that the submissions made by the learned Counsel for the Petitioners are not without substance. In the civil suit a plea whether the Civil Court has jurisdiction to decide the suit or not, was also taken and issue No. 4 was framed on that point and the same was decided by the learned Massif and also by the learned Civil Judge in appeal that the Civil Court has jurisdiction. Thereafter the contesting Respondents did not prefer any second appeal. I am, accordingly of the view that the plea about the lack of jurisdiction of Civil Court cannot be raised again before the consolidation authorities. The plea of jurisdiction is not to be deemed as a shuttle cock which can be raised at any convenient time by the defeated party. Once it was decided on contest between the parties that the Civil Court has jurisdiction, that decision became final and later on it cannot again be raised that the Civil Court has no jurisdiction. 9. The view that I am taking finds support from a decision reported in Hari Narain v. Ram Rai, 1968 AWR 500. Hon'ble G.C. Maihur, J. after considering the relevant case law, held as under: It is now well settled that a party litigant cannot be permitted to assume inconsistent positions in court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent. This doctrine applies not only to successive stages of the same suit but also to another suit than the one in which the position was taken up provided that the second suit grows out of the judgment in the first. In that case a suit was filed in the revenue court and the Defendant raised a preliminary objection that the suit was not maintainable in the revenue comet and the revenue court upheld that objection and dismissed the suit. The Plaintiff thereupon filed a suit in the Civil Court and an objection was again raised by the Defendant that the suit was not cognizable by the Civil Court. It was held that the Defendants are stopped from raising such an objection before the Civil Court See also Abdul Qayum v. Fida Hussein : AIR 1915 All. 463, Kartar Singh v. Nunda : AIR 1926 All. 664 and Ram Charlatan Singh v. Maharaja Banaras : AIR 1930 All. 15. 10. As regards the case relied upon by the learned Counsel for the Petitioner in Vidyadhar v. D.D.C. (supra), it was held that if once the jurisdiction of Civil Court has been decided in earlier suit, the same controversy cannot be raised again in the subsequent suit between the parties. Almost a similar view was taken in Sabha Chand v. Narain Singh (supra) as also in Gokul v. D.D.C. (supra). Further Rameshwar v. Ram Asrey (supra) was a case on different point and facts and need not be considered. 11. There is another aspect of the matter In such circumstances I am of the view that the Respondents are stopped to raise the question of jurisdiction of Civil Court again by what is popularly known in English Law as '"Issue as opal". In short the principles of "issue estoppels" is a sort of estoppels applicable between the parties when a particular issue i. e. the issue about lack of jurisdiction of the Civil Court in earlier Civil suit, is raised and decided in the earlier proceedings between the parties or their privies, the same issue cannot be permitted to be raised and considered again. This plea of "issue elope' is applicable even though the plea of rest judicator cannot be established. 12. It is better to quote the relevant discussion as follows (from para 1530 page 1030) of Hapsburg 's Laws of England, 4th End. Volume 161: Issue Estoppels: An estoppels which has come to be known as "issue estoppels" may arise where a plea of rest judicator could not be established because the causes of actions are not the same. A party is precluded from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him even if the object of the first and second actions are different, the finding on a matter which came directly (not collaterally or incidentally) in issue in me first action, provided it is embodied in a judicial decision that is final, is conclusive in a second action between the same parties and their privies. The principle applies whether the point involved in the earlier decision and as to which the parties are stopped is one of fact or one of law, or one of mixed fact and law (See also Hayseed v. Taxation Commissioner (1926) AC Thodey v. Thodey, (1964) 1 All ER 341, Re Kongsberg, Public Trustee v. Kongsberg, (194 ) Ch 348, Re Grayson Expert Official Receiver, (189o) 1 Q.B. 417, Jones v. Lewis, (1919) 1 K.B. 328. 13. As regards the submissions made by the learned Counsel for the Respondents, suffice it to say that as the plea of lack of jurisdiction was taken in the civil suit and was decided against the contesting Respondents and they conceded to the decision of the trial court and appellate court and did not file any second appeal, hence it would be assumed that they have conceded to the plea of jurisdiction. Further once it was decided that the Civil Court has jurisdiction, the same plea cannot be raised before the consolidation authorities again. The case of Surendra Narain Dubey v. Dr. Director of Consolidation (supra), relied upon by the learned Counsel for the Respondents was base on different lasts. There a suit Under Section 229C was filed where the Gaon Sabha and the State Government were not necessary parties. Lateran a suit Under Section 229B was filed and a decree was obtained, hence it was held that the suit Under Section 229C is no substitute for a suit Under Section 229B and it was held that there was no estoppels against the statute, if the statute provides some remedy to the aggrieved person, he can avail it of and the same cannot be denied to him. In the absence of the State Government and the Gaon Sabha a declaration about the sir Dari rights could not have been given and as the State Government and Gaon Sabha were impleaded as parties to the suit Under Section 229B, hence it was held that the plea of rest judicator was not available and ultimately it was held that the compromise arrived at in the earlier suit was a nullity and was unenforceable. 14. As regards the case of Chandrika Misir v. Bhaiya Lai (supra) in that case a plea of lack of jurisdiction was raised for the first time in appeal itself and the same plea was not raised earlier, as in the instant case, where the plea about the lack of jurisdiction was already raised in the Civil Court and was decided against the contesting Respondents. Hence the aforesaid case is on different facts and as such would not help the contesting Respondents. 15. In view of the discussions made above, the Deputy Director of Consolidation has committed manifest error apparent on the face of record and, therefore, bis order cannot be sustained. 16. In the result, the petition succeeds and is allowed. The order dated 7.3.80 passed by the Deputy Director of Consolidation is hereby quashed. However, there shall be no order as to costs. ;