Sheo Pujan v. Gram Sabha — 1963 DIGILAW 335 (ALL)

JUDGMENT S.N. Katju, J. - These are two connected appeals preferred by the plaintiffs arising out of suits for declaration that they are Sirdars in possessions of the plots in suits and for injunction restraining the defendants from interfering with the plaintiffs possession over the plots in dispute. Defendants No. 1 was Mr. W.O. Holdsworth who was the former zamindar and the second defendant is the Gram Sabha Panchrukhi. It was alleged by the plaintiffs that the land had been settled with them since over thirty years by defendant No. 1 and they had been in possession of the plots in suit and had becomes its sirdars and bhumidhars. It was alleged that the defendants had no concern with the plots in suit but the Patwari had not entered the plaintiff's name in the revenue papers and they had applied for the correction of names in the revenue court but it had directed the plaintiff to seek redress in the civil Court and hence the suits in appeal. 2. The suits were contested, inter alia, on the ground that they were barred by Section 80 of the code of Civil Procedure and that the land was Banjar and it had not been settled with the plaintiff and on the coming into force of the Zamindari Abolition and Land Reforms Act it had vested in the second defendant, viz., the Gram Sabha. 3. The trial court found in favour of the plaintiffs and decreed the suits. It held that the suits were not barred by Section 80 of the Code of Civil Procedure. It appears that it was not argued before the trial court that instead of Section 80 of the Code of Civil Procedure the provisions of Section 106 of the U.P. Panchayat Raj Act, 1947 were attracted and since no notice under Section 106 had been served on defendant No. 2 the suits were not maintainable. The court below on appeal while affirming the finding of the trial Court that the suit were not covered by Section 80 of the Code of Civil Procedure held that the provisions of Section 106 of the Panchayat Raj Act, 1947 were attracted and since no notice had been served under that section the suits were liable to be dismissed on that ground alone. The court below expressed the view that under Section 15(s) the Gaon Panchayat had to fulfil any other obligation imposed by or under the Act or any other law on a Gaon Sabha and under Section 118 of the U.P. Zamindari Abolition and Land Reforms Act a Gaon Sabha had been entrusted with the superintendence, management and control of land and therefore, notice under Section 106 was imperative. The court below, however, did not specifically mention as to what was that particular act which was done by the Gaon Sabha which attracted the provisions of Section 106 of the Act. It may be pointed out that before the revenue authorities the Gaon Sabha did not say that the plaintiffs had no right to the land in suits and it had vested in the Gaon Sabha. On the other hand, the Gaon Sabha did not at all dispute the claim of the plaintiffs in the mutation it could not be said that the provisions of Section 106 would be attracted. Section 106 says that "no suit or other legal proceedings shall be instituted against a Gaon Sabha ...........or against a member or officer or servant thereof............or against any person acting under the direction of any of these bodies or persons for anything done or purporting to have been done in official capacity under this Act." The plea of the bar of the suit in the absence of a proper notice under Section 106 could be raised where it is instituted against "a member or officer or servant or against any person acting under the direction of such persons for anything done or purporting to have been done in official capacity under this Act." The plaintiff grievance was not against the Gaon Sabha or against any of its officers for anything done or purporting to have been done in their official capacity under the U.P. Panchayat Raj Act. Whatever grievance the plaintiff had was against the revenue authorities for not making proper entries in the revenue papers. There was no complaint against any act of the Gaon Sabha or any of its officers nor was there anything done by the Gaon Sabha or its officers under the U.P. Panchayat Raj Act which had given rise any grievance to the plaintiff for which they were seeking redress in the Civil Court. There was no complaint against any act of the Gaon Sabha or any of its officers nor was there anything done by the Gaon Sabha or its officers under the U.P. Panchayat Raj Act which had given rise any grievance to the plaintiff for which they were seeking redress in the Civil Court. Section 106 of the Act is thus confined to suit instituted against the Gaon Sabha or its members of officers for acts done in their official capacity under the Act itself. It would follow that if any act was done which was neither done under the Act nor was done by the Gaon Sabha or any of its officers it would not attract the provisions of Section 106 of the Act. In the present case, the act complained of was not the act of Gaon Sabha but the refusal of the revenue authorities to make correct entries in the revenue papers. The Gaon Sabha was merely impleaded incidentally as a defendant because of the provisions of the Zamindari Abolition and land Reforms act. If it was found that the land was Banjar and that it had not been properly settled with the plaintiffs then it could vest in the Gaon Sabha. The plaintiffs contended that they were in possession and they were the Sirdars of the land and they were entitled to get a declaration to that effect. If the plaintiff had been dispossessed and the possession of the land continued with the Gaon Sabha and the plaintiff sought the ejectment of the Gaon Sabha from the land in suit then if could be said that the plaintiffs were complaining against an act of the Gaon Sabha i.e. the act of their dispossession by the Gaon Sabha, and the provisions of Section 106 of the Panchayat Raj Act would have been attracted. 4. Learned counsel for the parties conceded that there is no decision of this Court on the point. There is, however, a decision of the Board of Revenue in Makhdoom v. Bindesari etc., 1960 ALJ (Revenue) 140. In the aforesaid case a suit had been instituted under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act in which the plaintiff claimed a half share on the allegation that he along with defendant Nos. 1 and 2 were hereditary tenants and in possession and they were co-sirdars of the land in suit. In the aforesaid case a suit had been instituted under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act in which the plaintiff claimed a half share on the allegation that he along with defendant Nos. 1 and 2 were hereditary tenants and in possession and they were co-sirdars of the land in suit. The suit was contested by defendants nos. 1 and 2 on the ground that the plaintiff was entitled to a one-third share and the defendants were entitled to two-third share. The trial court held that the plaintiff was co-sirdar along with the first two defendants and was entitled to a half share and decreed the suit. The appeal was allowed by the Additional Commissioner on the preliminary ground that notice under Section 106 of the U.P. Panchayat Raj Act was mandatory and setting aside the decree of the trial court dismissed the suit. On appeal to the Board of Revenue, it was held that the provisions of Section 106 of the Act are not required to be complied in a case where the Gaon Sabha is incidentally involved. The provisions of Section 106 would apply to suits directly against Gaon Sabha, Gaon Panchayat or officers and servants of Nyaya Panchayat and they did not apply to a case under Section 176 sub-clause (2) of the U.P. Zamindari Abolition and Land Reforms Act. I agree with the aforesaid view of the Board of Revenue. In the present suits also the Gaon Sabha was incidentally involved and had been impleaded as a defendant because of the provisions of the U.P. Zamindari Abolition and Land Reforms Act. 5. For the reasons stated above I am of the opinion that notice under Section 106 of the U.P. Panchayat Raj Act was not required in the present cases and the court below erred in holding that the suits were not maintainable because no such notice had been served on the Gaon Sabha. It may, however, be pointed out that the defendants in their written-statements did not expressly raise the bar of Section 106 of the U.P. Panchayat Raj Act. The bar raised was that of Section 80 of the Code of Civil Procedure. The trial court rightly held that Section 80 did not apply. It may, however, be pointed out that the defendants in their written-statements did not expressly raise the bar of Section 106 of the U.P. Panchayat Raj Act. The bar raised was that of Section 80 of the Code of Civil Procedure. The trial court rightly held that Section 80 did not apply. I do not think it was necessary for the court below to consider that in case Section 80 did not apply the provisions of Section 106 of the U.P. Panchayat Raj Act were attracted. Since the court below did not decide the other issues in the suits they have to go back to it for its decision on those issues. 6. I set aside the decrees of the court below, allow the appeals and direct that the cases be sent back to the court below for being restored to their original number and decided according to law. The cost shall abide the ultimate result of the cases.