P L D 1954 Lahore 444 (PLP)

AKHLAQUE HUSAIN, J.‑This is a reference under section 99 of the Punjab Tenancy Act made by the Tehsildar of Chiniot, District Jhang, through the Commissioner, Multan Division. The plaintiffs Muhammad Latif and others brought a suit against the defendants Qaim Din and others for recovery of Rs. 64 as rent with respect to certain land in the Court of the Sub‑Judge, Chiniot, on the 12th of March 1948. In the plaint the land was described as comprised of "8 kanals of land entered in Khata No. 1416, Khasra Nos. 12788/11908/7826 situate in village Chiniot". The defendants by their written statement, inter alia, raised the plea that the land being 'land' within the meaning of section 4 (1) of the Tenancy Act, the suit was not cognizable by Civil Court. This question was decided by the learned Sub‑Judge in favour of the defendants on the 17th November 1948 and the plaint was returned for being filed in the appropriate revenue Court, which was done. The defendants filed their written statement in the Court of the Tehsildar Chiniot on the 28th of March 1949 before whom the suit has been pending for full four years. The defendants, however, filed an application before the Tehsildar on the 27th of March 1953 in which they questioned the jurisdiction of the revenue Court and alleged that the suit was cognizable by Civil Court. The learned Tehsildar thereupon raised the following two questions and decided them in favour of the defendants :‑ "

1. Whether the land in dispute is agricultural land having been rented out for storing bones only?

2. Whether the defendants having consented in the Civil Court that the suit was maintainable in a revenue Court can again challenge the jurisdiction of this Court for the purpose ?" Having reached the conclusion that the revenue Court has no jurisdiction to try the suit, he made the preset reference, The learned Tehsildar was clearly in error in deciding the second question as he did. While it is true that there cannot be an estoppel against a statute and that jurisdiction cannot be conferred upon a Court by consent of parties, there can be no manner of doubt that a party may under appro priate circumstances be estopped from raising a plea which is founded upon certain allegations of fact. The question whether the land in suit was or was not `land' within the meaning of section 4 (1) of the Tenancy Act is a question dependent upon certain facts relating to the land. The defendants having successfully contended before the Civil Court that in view of the existence of certain facts regarding the land in dispute the suit was cognizable only by a revenue Court cannot be allowed before the revenue Court to assert b a state of facts contrary to their assertions in the Civil Court. They are clearly estopped from doing this; and if they are not permitted to re‑open the inquiry regarding the nature of the land, there can he no basis for the plea relating to the jurisdiction of the Court. This proposition has always been accepted by the Court, vide Mahadoo Singh v. Pudai Singh (I L R 5 Luck. 645.) and Abdul Qayum v. Fida Husain (30 I C 551.). Learned counsel for the defendants has relied upon a Full Bench ruling of the Allahabad High Court in Mahabir Singh v. Narain Tewari and others (A I R 1931 All, 490,). That ruling is clearly distinguishable and is inapplicable to the present case as would be apparent from the following sentence in the leading judgment delivered by the, late Sir Shah Muhammad Sulaiman C. J.:- "If a question of estoppel were dependent on the determination of some facts, a party may certainly be estopped from pleading it." In Ram Khelawan Singh and others v. Maharajah of Benares, a case decided by a Bench of the Allahabad High Court, of which Sulaiman J. was a member, a question very similar to the one involved in this case arose and the principle of estoppel was applied in order to put a stop to inconsistent pleas of jurisdiction being raised by the same party in different Courts with regard to the same matter. The facts and the decision thereon are fairly brought out in the following head‑note to that case ;‑ "A preferred an appeal to the Commissioner from an order rejecting certain objections to the confirmation of a sale. The appeal was opposed by B on the ground that the case was governed by the new Tenancy Act and that the appeal should have been filed in the High Court. The appeal was returned and presented to the High Court. B then changed his position and contended that the case was not governed by nevi law but by old law and no appeal lay to the High Court. Held that B was estopped from raising any question of jurisdiction inasmuch as it was on his own insistence that the appeal was returned by the Commissioner. By his objection he had accepted the jurisdiction of the High Court as the proper forum of appeal." (A I R 1930 All. 15). I have, therefore, no doubt that the defendants in this case are estopped from challenging the jurisdiction of the revenue Court‑‑a challenge which they raised after the case had been pending in that Court for full four years. It is a matter of great regret that a petty case like the present should have been kept pending for, such an inordinately long time. Let this order along with the records be sent to the Commissioner, Multan Division for transmission to the Tehsildar of Chiniot. The defendants will pay the plaintiffs their costs of this reference. K.M.A. Reference answered.