(1.) This reference has apparently been made under Section 99I1) of the Punjab Tenancy Act (Act No. XVI of 1887). The facts as they appear from the referring order of the learned District Judge are that Smt. Dhan Devi had originally instituted proceedings for rendition of accounts in the Court of the Assistant Collector 1st Grade on the allegation that Salwant Singh defendant had agreed to cultivate her land jointly with her under an agreement of 17th April, 1962 and to pay her certain specified amount in lieu of her ownership right and also a share in the produce but had failed to render accounts of the produce. Salwant Singh raised an objection that the suit was not triable by a Revenue Court but by the Civil Court. On this plea succeeding, the suit was returned to Smt. Dhan Devi for presentation to the Civil Court under the orders of the Assistant Collector dated 6th March, 1964. It was accordingly presented by Smt. Dhan Devi in the Court of the Subordinate Judge, Zira. Surprisingly enough in this Court, Salwant Singh objected that it was not cognizable by the Civil Court. The learned Subordinate Judge, on the pleadings framed the following three preliminary issues :-
(2.) Section 99 of the Punjab Tenancy Act lays down that if the Presiding Officer of a Civil or Revenue Court in which a suit has been instituted, doubts whether he is precluded from taking cognizance of the suit, he may refer the matter through the District Judge to the High Court and on such reference being made, the High Court may order the Presiding Officer either to proceed with the suit or to return the plaint for presentation in such other Court as it may in its order declare to be competent to take cognizance of the suit. The order of the High Court on such reference is conclusive. Although the learned Subordinate Judge has not in terms said that he doubts whether he is precluded from taking cognizance of the suit, nevertheless the very fact that he has made the reference is clearly suggestive in the circumstances narrated above of his doubt as contemplated by Section 99.
(3.) In my opinion, when the defence had successfully pleaded that the Revenue Court had no jurisdiction and in pursuance of the order of the Revenue Court, the plaintiff had in compliance with that order presented the plaint in the Civil Court, it was not open to the defendant to approbate and reprobate, and going back on his prior plea before the Revenue Court urge a contradictory plea in the Civil Court that the Civil Court had no jurisdiction to entertain the suit. In Smt. Malan v. Karta Mal Mangta Mal,1940 PunLR 140, it has been observed that it is a cardinal principle of law that a person cannot be allowed to take inconsistent position with regard to the same transaction. Thus where a defendant gets a suit by A dismissed on the ground that it is B who is entitled to the decree against him, it is not open to him to contend in a suit by B that it is A and not B who is entitled to the decree. In a earlier Bench decision of the Lahore High Court also, it was laid down that litigants cannot be permitted to take up inconsistent pleas to suit their own purpose : Narayan Singh v. Waryam Singh, 1936 AIR(Lah) 18 A person who has benefited under the order of a judicial Tribunal on successfully taking a certain plea cannot be permitted later to repudiate his own earlier plea and take up an inconsistent plea wholly destructive of the earlier one to the disadvantage of his opponent. This general rule is basic to our concept of Justice.