Judgment

BACHAWAT, J. : The appellant filed suit Nos. 87 of 1948 and 2/12 of 1948 in the Court of the Assistant Collector, 1st Class Pratapgarh, (a revenue Court), against the respondent and 8 other persons under Sections 60, 61 and 180 of the U.P. Tenancy Act (U.P. Act XVII of 1939) claiming a declaration that the defendants had no right to the suit lands and a decree for possession in case the defendants were found to be in possession thereof. The suits were decreed in 1948. The appellant took symbolical possession of the lands in execution of the decrees. Appeals against the decrees filed by the respondent and other defendants were dismissed by the Additional Commissioner, Faizabad. The defendants filed second appeals against the decrees. During the pendency of the appeals Rr. 4 and 5 of the Uttar Pradesh Zamindari Abolition and Land Reforms Rules 1952 came into force. The Board of Revenue held that in view of Rules 4 and 5 the pending appeals as also the suits had abated.

2. In 1955 the respondents filed applications for restitution of the lands under Section 144 of the Code of Civil Procedure in Court of the Assistant Collector, 1st Class, Pratapgarh. The appellant contested the application. One of the issues arising on the application was whether the appellant had acquired Bhumidari rights. The Assistant Collector referred this issue to the Civil Court for decision. He refused to recall the order of reference in spite of the respondent s plea that he had no power to pass the order as no question of proprietary title had arisen. On May 7, 1958 the Civil Court answered the issue in the negative. On February 18, 1958 the Assistant Collector allowed the application for restitution and directed that the respondent be put in possession of the lands.

3. The appellant filed appeals against the orders dated February 18, 1958. As he was not certain about the proper forum of the appeals he took the precaution of filing the appeals in the Revenue Court as also in the Civil Court. On October 23, 1959 the Additional Commissioner, Faizabad Division, held that the Revenue Court had not jurisdiction to entertain the appeals and that the appeals lay to the Civil Court under Sections 286 (4) and 265 (3) of the U.P. Tenancy Act. Accordingly he returned the memoranda of appeals for presentation to the proper Court. The appellant filed revision petitions against the order before the Board of Revenue. In the meantime the appeals filed before the Civil Court came up for hearing. The respondent submitted to the jurisdiction of the Civil Court. He did not raise the contention that the Civil Court had no jurisdiction to entertain the appeals. On November 12, 1960 the Additional Civil Judge, Pratapgarh, allowed the appeals and dismissed the applications for restitution. He held that (1) the appellant was in possession of the lands on the dates of the institution of the suits; (2) the board of revenue had no power to abate the suits or to set aside the decree passed therein, and (3) the application for restitution was not maintainable as the appellant had not obtained possession of the lands in execution of any decree which had been reversed or set aside. In view of this decision, the appellant did not proceed with the pending revision petitions before the board of revenue and on November 18, 1960 the revision petitions were dismissed. On February 1, 1961 the respondent filed second appeals in the High Court against the appellate orders of the Civil Court dated November 12, 1960. In the original memorandum of appeal, he did not take the plea that the Civil Court had no jurisdiction to entertain the appeals. For the first time on January 24, 1964, he took this plea by adding a new ground in his memorandum of appeal. The High Court held that (1) the appellant was in possession of the lands before the passing of the decree; (2) the suits had not abated and the Board of Revenue had no jurisdiction to set aside the proceedings in the suits and (3) the appli