G.C. Mathur, J. - (1.) ONE Sheo Shankar Pandey executed a mortgage deed for Rs. 2,500/ - in the year 1928 in respect of some agricultural holdings, a grove and a well in favour of one Ram Lal and Balbhaddar Misra, father of the Appellants. Subsequently, in 1947, an agreement was executed between the parties whereunder another sum of Rs. 1,500/ - was advanced to the mortgagor. The mortgagor later sold his interest in favour of Respondents Nos. 1 to 5. Respondents Nos. 1 to 5 brought a suit in the revenue court Under Section 202 of the UP ZA and LR Act for possession over the mortgaged property. The successors of the mortgagees raised a preliminary objection that the suit was not maintainable in the revenue court. The revenue court upheld the objection and dismissed the suit. Thereupon Respondents Nos. 1 to 5 filed the suit out of which this appeal arises in the court of the Munsif (South), Sultanpur. Before the Munsif the successors of the mortgagees this time raised an objection that the suit was not cognizable by the civil court. The Munsif held that the civil court had no jurisdiction and dismissed the suit with costs. Against the decree of the Munsif, Respondents Nos. 1 to 5 went up in appeal. The Additional Civil Judge, Sultanpur, has held that the mortgagees or their successors were estopped from raising the question that the civil court had no jurisdiction. He further held on the merits that the civil court had jurisdiction to entertain the suit. He accordingly remanded the case to the trial court for disposal on merits. Against the order of the Additional Civil Judge, the Defendant -Appellants have come to this Court in appeal.
(2.) I have heard Shri J.N. Chatterji, Learned Counsel for the Appellants, at length and I am fully satisfied that the Appellants were estopped from raising the question of jurisdiction before the civil court. Their objection in the earlier suit that the revenue court had no jurisdiction had been accepted by the revenue court and the suit of Respondents Nos. 1 to 5 had been dismissed on that ground by the revenue court. 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 an identical case reported in Abdul Qayum v. Fida Hussain : AIR 1915 All. 463 Chamier, J. held: Where in a suit brought ina Revenue Court the Defendant pleads that the suit is not cognizable by the Revenue Court, he is precluded from raising a similar plea in the civil court when the suit is brought in that Court. Again, in Kartar Singh v. Nanda : AIR 1926 All. 664 Daniels, J. observed: The case is really one of estoppel. The Defendant having successfully pleaded in the Small Cause court that the suit was one triable on the regular side ought not to have been allowed when the suit was filed on the regular side to turn round and plead that it ought to have been filed in the Small Cause Court. A similar view was taken by a Division Bench of this Court consisting of Sulaiman and Pullan, JJ. in Ram Khelawan Singh v. Maharajah of Benares : AIR 1930 All. 15. In that case, an appeal had been filed before a Commissioner but, on an objection being raised by the Respondent that it should have been filed in the High Court, the memorandum of appeal was returned. Thereafter the appeal was filed in the High Court and before the High Court the Respondent changed his position and contended that the appeal did not lie in the High Court. It was held by the Division Bench that the Respondent was estopped from raising any question of jurisdiction inasmuch as it was on his own insistence that the appeal was returned by the Commissioner. It was observed: By his objection he had accepted the jurisdiction of the High Court as the proper forum of appeal. In view of these decisions, I have no doubt whatever that the Appellants should not have been permitted to raise the question before the Munsif that the Civil Court had no jurisdiction to entertain the suit. The appeal is accordingly dismissed. The Appellants will pay costs of Respondents Nos. 1 to 5 in this Court and in the lower appellate court.;