M.P. Mehrotra, J. - (1.) THIS second appeal by the Defendants raises a question about the jurisdiction of the civil court to try the suit from which this appeal has arisen.
(2.) THE Plaintiff -Respondent sued for permanent injunction restraining the Defendants -Appellants from interfering with the former's possession over certain plots situated in village Sharma, Pargana Barasathi, district Jaunpur. The Plaintiff claimed to be the Bhumidhar or, in the alternative, Sirdar in possession over the plots in question and yet the Defendants were seeking to disturb her possession. Hence the suit. The contesting Defendants, namely, Defendants Nos. 1, 2 and 4, claimed to be the Bhumidhars in possession over the said plots. The trial court held that the Plaintiff was the Bhumidhar in possession. The suit was held to be within time, but, on the question of the court's jurisdiction, it was held that a declaration of tenancy rights was involved in the suit and, therefore, the Plaintiff ought to have sued for the relief of declaration under Section 229 -B of the U.P. Act I of 1951 in the revenue court. On this finding, the suit was dismissed. On appeal, the lower appellate court reversed the finding of the trial court and held that the suit was cognizable by the civil court. The lower appellate court, therefore, set aside the decree of the trial court and decreed the Plaintiff's suit for a permanent injunction, restraining, the Defendants from interfering with the Plaintiff's possession over the plots in suit. In this second appeal, the only question involved is whether the lower appellate court was tight in holding that the civil court had jurisdiction to try the suit. It should be noticed that, in the instant case, the Plaintiff was recorded in the revenue papers as the Bhumidhar of the plots in dispute. The defence was that the name of the Plaintiff had been recorded in the village papers for the sake of consolation as she happened to be a widow. The Plaintiff's possession also has been affirmed by both the courts below. In a situation whether the recorded tenure holder is in possession and such a recorded tenure holder is disturbed in possession, in my opinion, it is not obligatory that he should file a suit under Section 229 -B of the U.P. Act I of 1951 in the revenue court. Merely because in the written statement, a Defendant chooses to question the Plaintiff's recorded tenure holdership, I do not think it can be said that a genuine controversy about tenancy rights is involved. If that were so then it will always be open to a Defendant to oust the civil court's jurisdiction by merely raising such a dispute in his written statement. In the instant case, as I observed above, the Plaintiff was recorded as a tenure holder in the revenue papers and she claimed to be in possession which has been found to be a fact by the courts below. In this situation, I do not see any reason why the recorded tenure holder should be compelled to file a suit for declaration in the revenue court. It should be observed that declaratory suits, even under the Specific Relief Act, are in the nature of a permissive remedy. A party is not bound to file such a suit and the court is not bound to grant the declaration. In my opinion, therefore, on the facts of the instant case, the Plaintiff -Respondent was not obliged to file a declaratory suit under Section 229 -B of the U.P. Zamindari Abolition and Land Reforms Act, 1951.
(3.) IN addition to the aforesaid aspect of the matter, looking to amended Section 331 of the U.P. Act I of 1951 whereby Sub -section (1 -A) was added, it seems to me that the objection to court's jurisdiction should not be allowed to prevail at this stage. Section 331(1 -A) lays down as under: 331(1 -A). Notwithstanding anything in Sub -section (1) an objection that a court mentioned in column (4) of Schedule II, 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. In my view, even though the question of jurisdiction was raised at the earliest stage by the Defendants -Appellants still, the second condition laid down in the said provision has not been satisfied in the instant case. The second condition is that there should be a consequent failure of justice by the trial in the wrong forum. It has not been shown to me that by the trial of the suit in the civil court there was any consequent failure of justice. This provision is in line with Section 11 of the Suits Valuation Act and Section 21 of the Code of Civil Procedure. The purpose of these analogous provisions is not to allow a decree, delivered after contest in the wrong court, to be questioned in the appellate or revisional court merely on the ground of want of jurisdiction unless it is shown that prejudice has been caused or there has been failure of justice in consequence of the trial in the wrong forum. It has been judicially held that prejudice is not to be equated with the error in a finding recorded by the wrong forum. In the same manner, prejudice is not shown to be caused merely because the wrong forum has tried the suit. A reference may be made to Kiran Singh v. Chaman Paswan : AIR 1954 SC 340 in this connection. The controversy was considered with reference to Section 11 of the Suits valuation Act and Section 21 of the Code of Civil Procedure, and, as I observed above, in my view the newly added provision in Sub -section (1 -A) of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1951, is substantially analogous to the aforesaid provisions in the Suits Valuation Act and the Code of Civil Procedure. In this view of the matter also, I hold that the question of jurisdiction cannot be allowed to be raised in the instant second appeal at this stage.;