Zila Parishad, Kanpur v. Ram Bharosey Awasthi — 1977 DIGILAW 279 (ALL)

JUDGMENT M.P. Mehrotra, J. - This second appeal arises out of a suit for possession over the disputed house and for recovery of damages from the defendants. The brief facts are these: The plaintiff-respondent purchased a dilapidated house from one Ramadhin by a registered sale deed dated 25th June, 1946. Thereafter the plaintiff built a new house in the year 1951 and afterwards. On 30th June, 1959, the plaintiff granted a licence to the Gaon Panchayat, Pura through the then President, Shri Krishna Prasad Agni to house the Pura Primary School on the undertaking that the building of the school which was then under construction as and when completed would house the school and the plaintiff's house would then be vacated. The licence was granted free of charge. Subsequently, the school building was constructed but the primary school never shifted in it and the plaintiff's house continued to be in occupation. Subsequently, the primary school began to be run by the Zila Parishad, Kanpur. The licence was terminated through the notice dated 12th August, 1969 which was served on the defendants on 14th August and 18th Aug., 1969 respectively. The defendants did not vacate the house. Hence the plaintiff sought the possession of the house and claimed damages for use and occupation at the rate of Rs. 50/- per month with effect from 15th October 1969 onwards. Originally, the two defendants in the suit were the Zila Parishad which was impleaded as the defendant No. 1. Gaon Samaj, village Pura through Shri Sheokumar Dixit was impleaded as the defendant No. 2. Subsequently, by amendment instead of Gaon Samaj, Gaon Sabha was substituted as the defendant No. 2. The defendants filed separate written statements. Various pleas were taken but the main dispute was about the plaintiff's ownership of the house in question. It was contended that no house was purchased by the plaintiff from Ramadhin but it was merely open land which was purchased. It was denied that the plaintiff had constructed the house in question. On the other hand, it was asserted that the house had been constructed by the village people by raising donations. It was denied that any licence was granted by the plaintiff to the Gaon Panchayat through Krishna Prasad for running a primary school. It was, however, admitted that the school was being run by the Zila Parishad. On the other hand, it was asserted that the house had been constructed by the village people by raising donations. It was denied that any licence was granted by the plaintiff to the Gaon Panchayat through Krishna Prasad for running a primary school. It was, however, admitted that the school was being run by the Zila Parishad. The suit was said to be bad on account of the defect in the notice and it was said to be barred under Section 257 of the Kshetra Samitis and Zila Pari shad Adhiniyam and S. 106 of the U.P. Panchayat Raj Act. Both the courts below have decreed the plaintiff's suit. Now, the defendants have come up in the instant appeal and in support and in opposition thereof I have heard learned counsel for both the sides. In support of the appeal it has been contended that the suit was had for want of proper notice under S. 106 of the U.P. Panchayat Raj Act. It was contended that as the suit was initially against Gaon Samaj, which was a non-existent body, therefore, amendment could not be allowed to bring on record Gaon Sabha in the place of Gaon Samaj and the suit should be treated as a nullity being in the nature of one against a dead defendant. It was next contended that the sale deed dated 25th June, 1946, executed by Ramadhin in favour of the plaintiff, Ram Bharosey, was not a legal or enforceable document as Ramadhin had no saleable interest in the property being a mere licencee, and under S. 56 of the Transfer of Property Act the licensee had no power to transfer his interest. Learned counsel next contended that wajib-ul-arz was misinterpreted by the courts below. Counsel placed reliance on the following cases : Sri Girdhari Ji Maharaj v. Chote Lal ( (1898) ILR 20 All 248); Mt. Aisha Begum v. Daulat Singh (AIR 1927 All 471); Ram Bharosey v. Qamar Zamani Begam (AIR 1927 Oudh 314); Mt. Learned counsel next contended that wajib-ul-arz was misinterpreted by the courts below. Counsel placed reliance on the following cases : Sri Girdhari Ji Maharaj v. Chote Lal ( (1898) ILR 20 All 248); Mt. Aisha Begum v. Daulat Singh (AIR 1927 All 471); Ram Bharosey v. Qamar Zamani Begam (AIR 1927 Oudh 314); Mt. Azmat-Un-Nissa v. Ganesh Parshad (AIR 1925 Oudh 262); Ram Charan v. Ramadhar ( AIR 1948 All 327 ); Hirday Narain v. Babu Ram (AIR 1948 Oudh 172); M. M. B. Catholicos v. M. P. Athanasius, ( AIR 1954 SC 526 ); Budhan Singh v. Nabi Bux, 1961 All LJ 536 : ( AIR 1962 All 43 ) (FB); Ram Kumar v. Dominion of India ( AIR 1952 All 695 ); . Purushottam & Co. v. Manilal & Sons ( AIR 1961 SC 325 ). 2. On behalf of the plaintiff-respondent it was contended that the suit was not bad for want of a proper notice under S. 106 of the U.P. Panchayat Raj Act. It was contended that the notice dated 12th August, 1969 which was addressed to Gaon Samaj through its President, Shri Sheo kumar Dixit, was a good notice in law and it should be deemed to have been given to the Gaon Sabha. In any case, it was properly served on the President. Therefore, the notice should he held to be good in law. Reliance has been placed on S. 273 of the U.P. Kshettra Samities and Zila Parishad Adhiniyam, 1963 whereby Sections 113 to 116 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 were deleted and S. 117 was amended. 3. Learned counsel placed reliance on certain cases which will be noticed in detail hereafter. 4. Learned counsel next pointed out that issue No. 7 regarding non-joinder of parties was given up by the defendants in the trial court, and, therefore, it was not open to the learned counsel for the appellants to contend that the suit was a nullity on the ground that it was not initially filed against Gaon Sabha. 5. I shall take up the question of the validity of the notice in the instant case. Section 106 of the U.P. Panchayat Raj Act lays down as under : "Suits against Gaon Sabhas, Gaon Panchayats, their officers, or the officers and servants of Nyaya Panchayats. 5. I shall take up the question of the validity of the notice in the instant case. Section 106 of the U.P. Panchayat Raj Act lays down as under : "Suits against Gaon Sabhas, Gaon Panchayats, their officers, or the officers and servants of Nyaya Panchayats. (1) No suit or other legal proceeding shall be instituted against a Gaon Sabha or Gaon Panchayat or Bhumi Prabandhak Samiti or against a member or officer or servant thereof or of a Nyaya Panchayat or against any person acting under the direction of any of these bodies or persons for any thing done or purporting to have been done in official capacity under this Act, until the expiration of two months next after notice in writing has been, in the case of a Gaon Sabha or Gaon Panchayat delivered in or left at the office of the Gaon Panchayat concerned and in the case of a member, officer or servant or any person acting under his direction or the direction of the Gaon Sabha, Gaon Panchayat or Nyaya Panchayat delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the reliefs sought, the amount of compensation, if any, claimed, and the name and place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been so delivered or left." It seems to me that the way this section is worded it can be deemed to be almost in line with S. 80, C.P.C. and the cases which throw light on the interpretation of the true nature of S. 80 C.P.C. can be considered to be helpful in interpreting S. 106 of the said Act also. Learned counsel for the appellants placed reliance on Ram Kumar v. Dominion of India ( AIR 1952 All 695 ). In this case a Division Bench of this Court laid down that in a suit under O, 30, R. 1 instituted by a partnership firm the words through Ram Kumar etc. were unnecessary and should be ignored as redundant. On the parity of reasoning it was contended that in the notice under dispute the words "through Shri Sheokumar Dixit" should be treated as redundant and no significance should be attached to the said words in considering the validity of the notice. were unnecessary and should be ignored as redundant. On the parity of reasoning it was contended that in the notice under dispute the words "through Shri Sheokumar Dixit" should be treated as redundant and no significance should be attached to the said words in considering the validity of the notice. It was emphasised that it was a notice to the Gaon Samaj and the fact that Sheo Kumar Dixit happened to be the President of the Gaon Sabha could not convert it into a notice addressed to the Gaon Sabha, merely on the ground that it was served on Sheo Kumar Dixit who happened to be the President of the Gaon Sabha. The learned counsel distinguished the two cases relied on in the judgment of the lower appellate court. The cases are Rambrahma Chabri v. Dominion of India ( AIR 1958 Cal 183 ) and Mura Mohideen v. V.O.A. Mohomed ( AIR 1955 Mad 294 ). His basic contention is that in the present case the notice has been given to a body which is dead. In other words, the notice was given to a dead person and. therefore, it cannot be deemed to be a situation of misdescription. On the other hand, Shri S. N. Gupta, learned counsel for the plaintiff-respondent, has placed reliance on the two aforesaid cases noticed in the judgment of the lower appellate court and in addition on the following authorities : The Bande Matram Publishers v. Mohan Singh (AIR 1963 Punj 196): Matadin v. The State (AIR 1956 Vindhya Pradesh 16); G. G. in Council v. G. Sankarappa ( AIR 1953 Mad 838 ): B. R. Sinha v. State of M. P. ( AIR 1969 SC 1256 ); Manohar Lal v. N. B. M. Supply, Gurgaon ( AIR 1969 SC 1267 ). He has further sought to get support from S. 273 of the U.P. Kshettra Samitis & Zila Parishad Adhiniyam, 1963 whereby certain amendments were effected in certain enactments mentioned in Sch. VIII. The U.P. Zamindari Abolition & Land Reforms Act, 1950 (U. P. Act 1 of 1951) was, inter alia, amended in the manner that Sections 113 to 116 were deleted and S. 117 was renumbered as S. 117 (1) and sub-sections (2), (3), (4) and (5) were added. VIII. The U.P. Zamindari Abolition & Land Reforms Act, 1950 (U. P. Act 1 of 1951) was, inter alia, amended in the manner that Sections 113 to 116 were deleted and S. 117 was renumbered as S. 117 (1) and sub-sections (2), (3), (4) and (5) were added. Reliance has been placed on the newly added sub-sections (3) and (5) which read as follows :- (3) "All Gaon Samajs constituted under this Act before its amendment by the Uttar Pradesh Kshettra Samities and Zila Parishads Adhiniyam, 1961, shall cease to exist and any reference in any other law for the time being in force or in any contract or other document to any Gaon Samaj shall, in so far as may be, be deemed to be a reference to the Gaon Sabha established for the area of such Gaon Samaj. (5) In all suits and proceedings in which a Gaon Samaj is a party the Gaon Sabha constituted for the area of the said Gaon Samaj shall be and be deemed to be substituted for the Gaon Samaj's party and shall be entitled to take all such action as it would have been entitled to take if it had been a party to the suit or proceeding from the very beginning." In AIR 1969 SC 1267 it was emphasised (at p. 1269) "Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side." In AIR 1969 SC 1256 it has been laid down as under (at p. 1259): "Section 80 is no doubt imperative; failure to serve notice complying with the requirements of the statute will entail dismissal of the suit. But the notice must be reasonably construed. But the notice must be reasonably construed. Any unimportant error or defect cannot be permitted to be treated as an excuse for defeating a just claim. In considering whether the provisions of the statute are complied with, the Court must take into account the following matters in each case (1) whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice; (2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity; (3) whether a notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section; and (4) whether the suit is instituted after the expiration of two months next after notice has been served, and the plaint contains a statement that such a notice has been so delivered or left. In construing the notice the Court cannot ignore the object of the legislature, viz. to give to the Government or the public servant concerned. an opportunity to reconsider its or his legal position. If on a reasonable reading of the notice the plaintiff is shown to have given the information which the statute requires him to give, any incidental defects or irregularities should be ignored." 6. There is another case reported in Raghunath Das v. Union of India ( AIR 1969 SC 674 ) where the Supreme Court again emphasised the main purpose of a notice under S. 80 C.P.C. and cautioned that its provision should not be used to defeat the claims of justice. It was laid down as under (at pp. 676-677) : "The object of the notice contemplated by S. 80 Civil P. C. is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in S. 80 are not intended to be used as booby traps against ignorant and illiterate persons." 7. The purpose of law is advancement of justice. The provisions in S. 80 are not intended to be used as booby traps against ignorant and illiterate persons." 7. It may be mentioned that the four requirements which have been laid down in AIR 1969 SC 1256 are the same which were laid down in State of Andhra Pradesh v. G. V. Suryanarayana ( AIR 1965 SC 11 ) as will be clear from the following re-produced para of the head note of the said case (at p. 15) : "The object of the notice under S. 80, Civil P. C. is to give the Government or the public servant concerned an opportunity to reconsider its or his legal position and if that course is justified to make amends or settle the claim out of court. The section is imperative and must be strictly construed. Failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit. But the notice must be reasonably construed. Every venial error or defect cannot be permitted to be sufficient to defeat a just claim. If on a reasonable reading but not so as to make undue assumptions, the plaintiff is shown to have given the information which the statute required him to give, any incidental defects or errors may be ignored. In each case in considering whether the imperative provisions of the statute are complied with, the court must see whether the following requirements are present : (1) Whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice: (2) Whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity; (3) Whether the notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section; and (4) Whether the suit is instituted after the expiration of two months next after notice has been served, and the plaint contains a statement that such a notice has been so delivered or left." 8. In Jamuna Dhar v. State of Uttar Pradesh (1969 All WR (HC) 247) it has been laid down as follows : "In the instant case the plaintiff served a notice under S. 80 C.P.C. on the State Government the defendant, for a suit for an injunction. In Jamuna Dhar v. State of Uttar Pradesh (1969 All WR (HC) 247) it has been laid down as follows : "In the instant case the plaintiff served a notice under S. 80 C.P.C. on the State Government the defendant, for a suit for an injunction. After the institution of the suit the defendant dispossessed the plaintiff, whereupon the plaint was sought to be amended and a relief for possession was added. The bundle of facts which constituted the cause of action for the suit were not at all touched or modified. It cannot, therefore, be said that the nature of the suit changed by reason of the introduction of an alternative relief for possession. Held that it cannot be said that after the introduction of the relief for possession, the suit became incompetent or violated S. 80, C.P.C." 9. There is another Supreme Court pronouncement on the nature of a notice under S. 80 C.P.C. and that is reported in Amar Nath v. Union of India ( AIR 1963 SC 424 ). It was laid down as follows (at p. 428): "Where there are several heads of claim of damages for the breach of contract against the Govt. though they all arise out of a single contracts then on a reasonable and proper construction of S. 80 Civil Procedure Code, the authority on whom the notice of the claim is served has a right to be informed what the claim of the party is in respect of each of the several heads. It is, no doubt, true that a notice under S. 80 is not a pleading and need not be a copy of the plaint and that no particular or technical form is prescribed for such a notice, still having regard to the object for which S. 80 has been enacted, the details which it contains should be sufficient to inform the party on whom it is served of the nature and basis of the claim and the relief sought. Admitting that a notice has to be interpreted not pedantically but in the light of commonsense without one being hypercritical about the language still the question to be considered is whether in the notice there is substantial information conveyed on the basis of which the recipient of the notice could consider the claim of the would be plaintiff and avert the suit." 10. In AIR 1960 All 420 a Division Bench of this Court laid down as under (at pp. 425-426) : "The object underlying S. 80 is to give a clear and certain notice of the claim to the Government so that, if it is so advised, it may settle the claim and avoid the impending threat of a suit and consequential costs of the suit in the event of the claim being decreed, and therefore it is not permissible for a suitor to institute a suit upon the basis of a cause of action which has not been stated in the notice, or which is substantially different from the cause of action stated in the notice." 11. AIR 1963 Punj 196 relied on by the learned counsel for the respondent does not seem to be relevant as it dealt with the description of a company in liquidation and the matter was discussed with reference to Section 543 of the Companies Act, 1956. 12. In AIR 1956 Vindh Pra 16 the Judicial Commissioner laid down as under (at p. 17): "In relation to a suit brought in the name of the Union of India, in respect of a cause of action accruing against the Government of a Part C State, a notice served on the Deputy Commissioner of Part C State would be sufficient notice against the Union of India also under S. 80 (c), Civil P. C. read with S. 3 (60), General Clauses Act." 13. In AIR 1953 Mad 838 Mr. Justice Ramaswami laid down as under (at p. 839): "The terms of S. 80 are explicit; these terms should be fulfilled in order to come within the proper notice contemplated thereunder. The three essential requirements are namely, that the addressees should be identified and must have received the communication; secondly there should be no vagueness or indefiniteness about the person giving the notice and who must also be the person filing the suit and the notice must also give the details which are specified in the section and thirdly two months' time allowed must expire before the suit is laid. Once these requirements are fulfilled the minor details like the misdescription of the person to whom the communication is addressed will not make it an improper notice which does not comply with the requirements of S. 80. Once these requirements are fulfilled the minor details like the misdescription of the person to whom the communication is addressed will not make it an improper notice which does not comply with the requirements of S. 80. A notice claiming damages for loss of goods in railway transit was sent to the Member-in-charge of the Railway Board as the competent authority to deal with the matter. This notice was forwarded by the Railway Board to the General Manager, M & S. M. Railway as the competent authority to deal with the matter. Held that the notice was a proper notice under S. 80." In AIR 1958 Cal 183 , placing reliance on Bhagchand Dagadusa v. Secy. of State for India in Council ( AIR 1927 PC 176 ), it was observed : "Section 80 of the Code is express and explicit and it admits of no implications or exceptions and it imposes a statutory and unqualified obligation upon the court." Thereafter it was laid down : "Section 80 does not require that the name or any other particular of the defendant should be furnished. It only requires that the notice must be delivered to the proper authority or person mentioned in the section. The misdescription of the addressee of the notice under S. 80 should be condoned provided the misdescription did not mislead the Government; if so, then it can be said with greater reason that a misdescription of the proposed defendant should not invalidate the notice provided it is made clear that it is the Government against whom the plaintiff is seeking relief. The notice under S. 80 was delivered in this case properly to the General Manager of the B. N. Railway. However, the name of the proposed defendant was mentioned as the "Governor-General of the Indian Dominion as representing the B. N. Railway" in-stead of the then Dominion of India. Held that the misdescription of the defendant in the copy of the plaint could never have misled the Government and that the notice was not bad or insufficient." Besides the aforesaid cases certain other cases may also be noticed. 14. In Subrahmanyam v. Union of India ( AIR 1951 Mad 416 ) it was laid down as under (at pp. Held that the misdescription of the defendant in the copy of the plaint could never have misled the Government and that the notice was not bad or insufficient." Besides the aforesaid cases certain other cases may also be noticed. 14. In Subrahmanyam v. Union of India ( AIR 1951 Mad 416 ) it was laid down as under (at pp. 416-417) : "Notice under S. 80 was issued to "the Secretary, Governor-General of India in Council, Department of Railways, New Delhi", and it stated that it was under S. 80, Civil P. C. In the body of the notice the facts and the claim and cause of action were set out. The last para of the notice read as follows: "Please therefore take notice that if the said amount of Rupees 419-2-0 with interest at 6 per cent be not paid to my client within 2 months of the receipt of this notice a suit will be filed in due course for the recovery thereof" : Held, that the notice left no doubt that it was a suit proposed to be filed against the Crown or the Government. There was no reason to think that the suit was to be against the Secretary as a public officer concerned, and the only reasonable way of understanding the notice was that it was given, as indicated in S. 80, to the Secretary of the Railway Department, because it was a suit which was intended to be filed against the Government. Section 80 therefore was complied with." 15. In Nannah v. Union of India ( AIR 1964 Raj 41 ) a Division Bench laid down as under (at pp. 46-47) : "Even if a notice under S. 80 fails to mention the defendant whom the plaintiff wishes to sue correctly or does not mention him at all except in a general manner, then his suit cannot be rejected on the ground that he has not complied with the requirements of S. 80 so long as he states the cause of action which is the foundation of his suit and gives his own name, description and address and states the relief which he claims, and so long as the party whom he subsequently sues is the party from whom he is entitled to that relief. If he sues a wrong party, his suit may fail on that ground but not on the ground that he has failed to comply with the requirements of S. 80. The notice which the plaintiff gave and which was good enough otherwise is not bad merely because it stated that the plaintiff in the event of the failure of payment of compensation to him would take legal steps against the railway administration and did not in so many words name the defendant against whom the suit was to be brought. Anybody receiving such notice could not but have understood that this was a notice with respect to a suit which was contemplated to be brought against the owner of the railway, namely, the Dominion of India as it then existed." 16. In Sankunni Menon v. S. I. Rly. ( AIR 1952 Mad 502 ) it was laid clown as under (at p. 503) : "S. 80 is mandatory. At the same time the Court should not be hypercritical in examining the language used but should interpret the same in a free and liberal spirit. Where a notice merely stated that a suit against "Your railway" for loss would be instituted and was address.... ed to Secretary for Rlys. Central Govt., New Delhi, Held that the notice might be taken as satisfying the requirements of Sections 79 and 80, though it did not expressly state that the proposed suit would be against the Governor General in Council." and in Madar Sahib v. G. G. of India in Council ( AIR 1952 Mad 679 ) it was laid down as under (at p. 680) : "Notice under S. 80 C.P.C. is mandatory and its terms cannot be ignored Notice to Government. Notice addressed to Secretary, Central Government, Railway Board, New Delhi held proper." 17. In Union of India v. Muralidhar (AIR 1952 Assam 141) it was observed as follows (at p. 143) : "We propose to decide the issue as to notice on the short ground that as a notice under S. 80, Civil P. C., in the case before us was served on the President of the Railway Board, a receipt of which has been acknowledged, the notice was valid in law as the President of the Railway Board is also the Secretary to the Government of India in the Railway Department." 18. It seems to me that it is settled law that in the notice under S. 80, it is not necessary to name the defendant and, therefore, even if there is a wrong description of the defendant that will be immaterial provided the notice is delivered at the right place. In my opinion, the same is the position under S. 106 of the U.P. Panchayat Raj Act also. If the notice has been delivered to the proper authority then the fact that the addressee was incorrectly described or that the would be defendant was not shown in the notice will be of no consequence. Now, in the instant case, it is not disputed that the notice was delivered at the right place and the acknowledgment of Sheo Kumar Dixit is there which is Ex. 12 on the record. The written statement, which was subsequently filed by Gaon Sabha, has been signed by the said Sheo Kumar as the President of the Sabha. It seems to me, therefore, that the notice was undoubtedly delivered at the correct place. The other requirements of S. 106 also have not been shown to be wanting in the notice in so far as the description of the plaintiff is concerned and the cause of action which was going to be the basis of the suit and the relief which was to be claimed. But the gravamen of the attack is that it was explicitly addressed to the Gaon Samaj, therefore, there was no inkling that the suit would be filed against the Gaon Sabha and, therefore, in that sense there was no notice to the person who was impleaded as the defendant later on. The argument merely leads to this that even though the delivery of the notice was at the right place, still, the addressee was incorrectly described. It is obvious that even if the notice was addressed to the Gaon Sabha, it would have been delivered to the same Sheo Kumar. It is also obvious that in 1969 when the notice was sent no suit could in law be instituted against Gaon Samaj and it was bound to be a suit against the Gaon Sabha. It is obvious that even if the notice was addressed to the Gaon Sabha, it would have been delivered to the same Sheo Kumar. It is also obvious that in 1969 when the notice was sent no suit could in law be instituted against Gaon Samaj and it was bound to be a suit against the Gaon Sabha. It cannot also be denied that by the amendment effected by S. 273 of the U.P. Kshettra Samitis & Zila Parishads Adhiniyam, 1963 the only result was that the same corporate body came to be described as Gaon Sabha instead of being described as Gaon Samaj. In other words, except for a verbal change, namely, the substitution of the word `Sabha' instead of the word `Samar no other change was effected in the eyes of law. It is important that the corporate body continued to be the same. Its composition did not undergo any change and sub-sec. (3) which was added by S. 117 emphasised the continuity of the corporate body and the same emphasis is underlined in sub-sec. (5) also which lays down that all proceedings in which a Gaon Samaj is a party the Gaon Sabha constituted for the area of the said Gaon Samaj shall be and be deemed to be substituted for the Gaon Samaj's party. I am emphasising these aspects of the matter be cause it has been repeatedly laid down that we must import a certain commonsense in interpreting the question whether there has been substantial compliance with the requirement of giving a statutory notice bearing in mind that the central object of giving the notice is to enable the party against whom the suit is to be filed to compromise the dispute within the notice period of two months. It may also be seen that in sub-sec. (3) of S. 117 it has been laid down that "any reference in contract or other document to any Gaon Samaj shall, in so far as may be deemed to be a reference to the Gaon Sabha established in the area of such Gaon Samaj. It may be suggested with reference to this provision that even though the notice was addressed to Gaon Samaj, still, it should be deemed to be a notice to Gaon Sabha. It may be suggested with reference to this provision that even though the notice was addressed to Gaon Samaj, still, it should be deemed to be a notice to Gaon Sabha. Even if it be not necessary to go to that extent, still, it can reasonably be suggested that when Sheo Kumar received this notice he should have been clear in his mind as the President of the Gaon Sabha that the suit was really going to be instituted against the Gaon Sabha and not against Gaon Samaj which was no more in existence. In this view of the matter, it seems to me that looking to the entirety of the circumstances of the case, the notice in question cannot be said to be defective on the ground that it was addressed to Gaon Samaj and not to Gaon Sabha. Therefore. I do not accept the contention that the instant suit is bad under S. 106 of the U.P. Panchayat Raj Act for want of a proper notice under the said provision. 19. I do not think that learned counsel is right in his contention that the suit against the Gaon Sabha was a nullity inasmuch as initially Gaon Sabha was not impleaded. As will be borne in mind that initially Gaon Samaj was named as the defendant but subsequently by amendment the word `Samaj' was replaced by the word `Sabha'. Learned counsel for the appellants has relied on (1908) ILR 31 Mad 86 and 42 Ind Cas 539: (AIR 1918 Mad 794 (1)). (1908) ILR 31 Mad 86 as an authority for the proposition that if a suit is instituted against a dead man then the plaint cannot be amended by substituting the names of the representatives of the deceased even though the institution of the suit was deemed to be due to bona fide error and in ignorance of the death of the defendant. The said cases seem to be not applicable to the instant case inasmuch as we are really not concerned with a defendant who was dead on the date of the institution of the suit. It is really a situation where the corporate body is the same but it has undergone a mere change in nomenclature. The said cases seem to be not applicable to the instant case inasmuch as we are really not concerned with a defendant who was dead on the date of the institution of the suit. It is really a situation where the corporate body is the same but it has undergone a mere change in nomenclature. As I emphasised above, the change which was brought about was merely confined to replacing the word `Sabha' in the place of `Samaj', otherwise there was no change whatsoever and there is the legislative injunction contained in sub-sec. (3) of S. 117 that every reference to Gaon Samaj shall be deemed to be a reference to Goan Sabha of the village concerned. It seems to me, therefore, that it is wholly inappropriate to import the analogy of a suit against a dead man. In the facts of the instant case, I prefer to follow the line of cases which have laid down that a situation like the instant one should be treated as one where the defendant has been misdescribed and a correction of such misdescription does not result in bringing on record any new party apd S. 22 of the Limitation Act is not attracted. It is not necessary to refer to many authorities in this respect. However, a reference may be made to AIR 1969 SC 1267 (supra). It is again worthwhile repeating that the central point to be borne in this case is that the corporate body was the same. It was brought into existence by S. 4 of the U.P. Panchayat Raj Act, 1947 which lays down as under : "Incorporation of Gaon Sabha - Every Gaon Sabha shall, by the name notified in the official Gazette under S. 3, be a body corporate having perpetual succession and a common seal and shall, subject to any restriction or condition imposed by or under this or any other Act, have power to acquire, by purchase, gift, or otherwise, to hold, administer, and transfer property both movable and immovable, and to enter into any contract, and shall, by the said names, sue or be sued. 20. Coming now to the next point, learned counsel for the defendants-appellants' contention that the sale deed dated 25th June, 1946 was a bad document in law may be examined. 20. Coming now to the next point, learned counsel for the defendants-appellants' contention that the sale deed dated 25th June, 1946 was a bad document in law may be examined. It was contended that irrespective of the defendants' strength or weakness in an ejectment suit, the plaintiff can succeed only on his own strength and he cannot take advantage of any lack of title in the defendant. That is a well-known proposition and the principle has been laid down in various cases. One such case reported in AIR 1961 SC 325 (supra) was relied on by the learned counsel. The plaintiff was alleged to be a trespasser having no title to the property in dispute inasmuch as the aforesaid sale deed dated 25th June, 1946 executed by Ramadhin in his favour was said to be an ineffective document in law inasmuch as the transferor had no right to transfer the property. He was said to be a mere licensee from the Zamindar of the site of the building in question and as such a licensee, he had no right to transfer, the same being prohibited under S. 56 of the Easements Act. The cases on which reliance had been placed by the learned counsel have been mentioned above and now a detailed reference to the same may be made. In the headnote of (1898) ILR 20 All 248, it is laid down as under : "According to the general custom prevalent in the North-Western Provinces, a person, agriculturist or agricultural tenant, who is allowed by a zamindar to build a house for his occupation in the abadi, obtains, if there is no special contract to the contrary, a mere right to use that house for himself and his family so long as he maintains the house, that is, prevents its falling down, and so long as he does not abandon the house by leaving the village. As such occupier of a house in the abadi occupying under the zamindar, he has, unless he has obtained by special grant from the zamindar an interest which he can sell, no interest which he can sell by private sale or which can be sold in execution of decree against him, except his interest in the timber, roofing and woodwork of the house." 21. In AIR 1925 Oudh 262 (supra), placing reliance on the aforesaid decision reported in (1898) ILR 20 All 248 it was laid down as under : "According to the general custom prevalent in the North-Western Provinces, a person, agriculturist or agricultural tenant, who is allowed by a zamindar to build a house for his occupation in the abadi, obtains, if there is no special contract to the contrary, a mere right to use that house for himself and his family, so long as he maintains the house, that is, prevents its falling down, and so long as he does not abandon the house by leaving the village. As such occupier of a house in the abadi under the zamindar, he has, unless he has obtained by special grant from the zamindar an interest which he can sell, no interest which he can sell by private sale or which can be sold in execution of a decree against him, except his interest in the timber, roofing and woodwork of the house. If such a tenant sells the alienation is invalid and the landlord is entitled to recover the house and site from the purchaser." 22. In AIR 1927 All 471 (supra), a learned Judge of this court followed the law laid down in (1898) ILR 20 All 248. In AIR 1927 Oudh 314, it has been laid down as follows : "When, in a non-agricultural village, the zamindar grants leave to a person to build a kachcha house on parti land, the grantee becomes a mere licensee and a transfer by him of his right to build is not enforceable." 23. In AIR 1941 Oudh 172 (supra), a Division Bench laid down as under : "In the case of a transfer by a licensee in favour of a third person which contravenes the provisions of S. 56, the transferees as of the licensee, who are evidently not in possession as trespassers against their own transferor are rank trespassers as against the original grantor who can at once eject them." 24. In AIR 1948 All 327 : (1948 All LJ 157) (supra), a learned single Judge laid down as under : "An agricultural village is a village in which the majority of the residents carry on agricultural occupation and in which the bulk of the land is used for agricultural purposes. In AIR 1948 All 327 : (1948 All LJ 157) (supra), a learned single Judge laid down as under : "An agricultural village is a village in which the majority of the residents carry on agricultural occupation and in which the bulk of the land is used for agricultural purposes. Village Alauddinpur near the town of Kannauj in the district of Farrukhabad in U.P. is an agricultural village as the occupation of this village has been agriculture and the land is being used for agriculture. The proximity of this village to Kannauj and Makrundnagar and the fact that part of the village is in the municipal limits of Kannauj do not convert the village into an urban area; In an agricultural village ordinarily the ryots have no right to transfer the sites of their houses. The onus lies heavily on the ryots to prove a custom allowing such transfer by clear and cogent evidence. In village Alauddinpur no custom allowing the ryots to transfer their houses by sale held had been established." 25. In 1961 All LJ 536: ( AIR 1962 All 43 ) (supra), a Full Bench of this Court interpreting S. 9 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 laid down as under : "The word `held' in Section 9 of the Act does not connote a title of a trespasser, but it refers to a title that had a legal origin. A person who trespassed on the land of another and constructed a building on that land of the other, did not by that trespass, unless the right of the owner was barred by the law of limitation, acquire under the provision of Section 9 of the U.P. Zamindari Abolition and Land Reforms Act any title, right or interest to continue the building on that land, or to have acquired any interest in that land." 26. In 1967 RD 297 (supra) a learned single Judge of this Court laid down as follows : "In villages where Kachcha houses are constructed, they very often fall down in rains and it cannot be said that as long as the owner of a house has an intention to rebuild the house that house does not exist and the land is merely an abadi site or vacant land. The site of an old chhaoni which was in a dilapidated condition on the date of vesting and had fallen down must be deemed to be settled with the owner of the house. In the instant case the defendant's father having made constructions without any right and without the permission of the owner of the site, was merely a trespasser and the defendants cannot take advantage of S. 9 of the U.P. Zamindari Abolition and Land Reforms Act. Further held that in the circumstances of the case no presumption in favour of the defendant can be raised for applicability of the Village Abadi Act. This Act applies only in the absence of proof otherwise." 27. The U.P. Village Abadi Act, 1948, may also be noticed in this connection. Section 3 lays down as follows : "3. Presumption regarding existing houses. - All houses built in a village abadi and existing on the 15th day of August, 1947, shall, unless the contrary is proved, be presumed to have been built with the consent of the landlord." Section 4 is as follows: "House-owner's right of user Notwithstanding any custom or usage to the contrary in any agricultural village, a house-owner may (a) convert his kucha house into pucca, and (b) Make such construction in the sahan darwaza or land appurtenant to such house as may be necessary for agricultural or domestic purposes." 28. Both the courts below have recorded a clear, concurrent finding that the site of the building in dispute was not an open land on the date of vesting. There was construction standing on the said site and, therefore, Section 9 of U.P. Act I of 1951 was held to be applicable. The said section lays down as under : "S. 9. Private wells, trees in abadi and building to be settled with the existing owners or occupationers thereof. All wells, trees in abadi and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village, or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the site of the wells or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed." 29. It is true that the Full Bench decision of this court reported in 1961 All LJ 536: ( AIR 1962 All 43 ) has made it clear that trespassers cannot take advantage of the said provision. It is only persons whose rights have a legal origin who can take advantage of the said provision. I find it difficult to accept the contention of the learned counsel for the appellants that the plaintiff, in the instant case, was a trespasser who could not avail of the benefit of S. 9. So far as the transferor was concerned, the transferee could always rely on the sale deed executed in the latter's favour. Ramadhin was the owner of the Kachcha house and, therefore, he was entitled to transfer the same in favour of the plaintiff, subject of course, to the right of the zamindar to avoid such a document on the plea that the transferor had no right to transfer the site against the former's wishes. But in fact the zamindar did not avoid the sale deed and on the date of vesting the position was that the sale deed remained intact without having been avoided by the only person who could avoid it in law, namely, the Zamindar of the village. In such circumstances, in my opinion, it should be held that the licensee transferred the site with the implied permission of the licensor. For nearly six years, before the date of vesting, the sale deed remained effective and was not questioned by the Zamindar. Then, on 1st July, 1952, the Zamindars lost all their rights. There is nothing to show that the Zamindar, in the instant case, entertained any idea to question the document at any stage after its execution. On the other hand, from the fact that it was not questioned for a long duration of six years upto the date of vesting, the inference would be more natural and plausible that the Zamindar did not want to question the document and treated the same to be a good and effective one. Under these circumstances, I do not think that on 1st July 1952, his successors-in-interest, namely, the State Government and Gram Samaj or Gaon Sabha as its agents, could claim a right to question the document on the ground that the transfer of the site was bad in law. Under these circumstances, I do not think that on 1st July 1952, his successors-in-interest, namely, the State Government and Gram Samaj or Gaon Sabha as its agents, could claim a right to question the document on the ground that the transfer of the site was bad in law. Section 56 of the Easements Act merely lays down as under : "Unless a different intention is expressed or necessarily implied, a licence to attend a place of public entertainment may be transferred by the licensee; but, save as aforesaid, a licence cannot be transferred by the licensee or exercised by his servants or agents." 30. The prohibition laid down in the section is clearly subject to a different intention express or necessarily implied. As I stated above, in the instant case, the fact that upto the date of vesting for a period of nearly six years, the Zamindar did not question the document entitles one to come to the conclusion that his implied consent was there to the sale deed. It may also be emphasised that the State or Gram Samaj or Gaon Sabha never questioned the validity of the document till the institution of the instant suit. The suit was instituted in 1969. It is obvious that from 1946 upto 1969, the plaintiff had been in possession of the site in question. The plaintiff's possession of the site would either be permissive or it could be adverse to the real owner. If it be deemed to be permissive for such a long period, then, I would hold that it is a clear case where the sale deed should he deemed to be a good and valid document being with the consent and the permission of the original licensor, namely, the Zamindar, who did not question the document for a period of six years and the subsequent successor-in-interest of the Zamindar, namely, the State and its statutory agents the Gram Samaj or the Gaon Sabha, did not question the document between 1962 to 1969. If over such a long period, a licence is not questioned, I think that it can reasonably be held that the situation establishes a different intention under S. 56 which otherwise prohibit transfer. If over such a long period, a licence is not questioned, I think that it can reasonably be held that the situation establishes a different intention under S. 56 which otherwise prohibit transfer. If it be held that the plaintiff was in adverse possession at least with effect from 1st July, 1952 then, it has to be held that by such hostile assertion of possession, the plaintiff perfected his ownership in the site of the building by prescription. Under these circumstances. I do not find any merit in the contention raised on behalf of the defendants appellants that the plaintiff was a mere trespasser not, entitled to have the benefit of Section 9 of the U.P. Zamindari Abolition and Land Reforms Act. In my view, the plaintiff was not a trespasser and his claim had a legal origin in the sale deed which was executed in his favour in 1946 and he was entitled to the benefit of S. 9 of the said Act. As such he had a right to eject the defendants. 31. Moreover, in view of S. 116 of the Evidence Act, it was not open to the Gaon Panchayat or the Gaon Sabha or the Zila Parishad to question the title of the plaintiff. The latter claimed that the defendants were inducted as licensees by the licence which was granted by the plaintiff. The courts below have accepted this conclusion. It is obvious that as licensees, the defendants could not question the title of the plaintiff as the licensor. In this view of the matter also, the defendants were estopped from raising any dispute about the plaintiff's title. 32. It is not necessary to advert to the Wajib-ul-arz. In my view, in view of the relevant provisions of the U.P. Village Abadi Act, 1948, the Wajib-ul-arz lost its significance so far as the erection of the building was concerned. So far as the right of transfer was concerned, I have discussed the matter even on the hypothesis that the licensee had no independent right to transfer against the wishes of the licensor. The plaintiff's claim to the property including the site in question stands vindicated apart from a question whether any custom of transfer may be based on the basis of the recording in the Wajib-ul-arz. The plaintiff's claim to the property including the site in question stands vindicated apart from a question whether any custom of transfer may be based on the basis of the recording in the Wajib-ul-arz. It has not been shown to me how there has been any non-compliance with the provisions of Section 257 of the U.P. Kshettra Samities and Zila Parishads Adhiniyam. No argument has been addressed from the bar to show that the suit was not maintainable on account of any non-compliance with the said provision. 33. In the circumstances, the appeal fails and is dismissed with costs.