This is a defendants revision filed against an order dated 19th March, 1980, of the Civil Judge, Muzaffarnagar, deciding the preliminary issue of jurisdiction against the defendants.

The necessary facts are these. Suit No. 122 of 75 was originally filed by Ram Sharan for cancellation of the two gift deeds dated 11th November, 1974 which had been executed in favour of the defendants. The plaintiff Ram Sharan alleged that he was an old man and was blind. The defendants took him outside the village and got his thumb impressions on various papers. Subsequently, he came to know that the defendants had got the sale deed executed from him in their favour in respect of agricultural land, hence, he filed the suit for the cancellation of the gift deed and also for injunction restraining the defendants from interfering with his possession.

During the pendency of the suit, plaintiff Ram Sharan died. Upon his death, Smt. Ilam Kaur who was the daughter of the deceased got herself sub stituted on the basis of the Will executed by Ram Sharan of the disputed land and other properties on 3-2-1975.

The defendants contested the suit on various grounds. One of the grounds taken was that the civil Court has no jurisdiction to entertain the suit and, as such, the same was liable to be dismissed.

The trial Court answered the aforesaid issue in favour of the plaintiff holding that the suit was cognizable by the civil Court.

Being aggrieved, the defendants filed the present revision.

Sri G. P. Bhargava, counsel for the defendants urged that the real nature of the suit was that of declaration and, as such, it was barred by Section 331 of the U. P. Zamindari Abolition and Land Reforms Act. Counsel contended that a void document was not required to be avoided and that the plaintiff could get declaration of his right over the land in dispute without getting the same cancelled. He urged that there was a clear distinction between the fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. According to him, the present was a case falling under the first category and, as such, the document was to be regarded as void.

Before proceeding to consider the submission of the learned counsel for the defendants reference to be made to sub-section (1-A) of Section 331 of U. P. Zamindari Abolition and Land Reforms Act (U. P. Act No. 1 of 51) which was inserted by U. P. Act 4 of 69. The new sub-section (1-A) runs as under :

"notwithstanding in sub-section (1) an objection that a Court mention ed 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 proceed ings, 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, on or before such settlement, and unless there has been a consequent failure of justice".

The argument raised on behalf of the respondent was that the decision of the Court below could not be reversed even if the point of jurisdiction had been wrongly decided by the Court below. He urged that the defendants having neither alleged nor proved that there has been a failure of justice in consequence of the order of the Civil Judge, they were precluded by sub-section (I-A) of U. P. Act 1 of 51 from raising this objection in this Court. I do not find any merit in this submission. The suit has not yet been tried on merits. So far, only the preliminary issue as to jurisdiction has been tried. That issue was decided in favour of the plaintiff by the trial Court. There could not be a consequent failure of justice at this stage. The condition "unless there has been a consequent failure of justice" implies that at the time when the objection is taken in the appellate or revisional Court, the suit must have been decided o