JUDGMENT I.B. Singh, M. - This is a reference dated 19-8-1974 made by ld Additional Commissioner, Meeru Division Meerut recommending to reject the revision application against order dated 17-12-1973 passed by S.D.O. Sikanderabad, declaring the dispute land to have vested in the Gaon Sabha after the death of Tika original tenant who died on 6-1-1971 and ordering ejectment of the opposite party from it in proceeding under Section 194 of Act I of 1951 started on the application dated 6-5-1971 of the Gaon Sabha, and L.M.C. of village Nagla Kalan through its Chairman. 2. I have heard the learned counsel for the parties and have perused the record and the objection filed by the applicant. 3. It was argued on behalf of the applicant that compliance of provisions of para 128 of the Gaon Samaj Manual was not made and the resolution of the Gaon Sabha was not proved neither the permission of the Collector was proved, therefore, the whole proceeding was without jurisdiction for want of the compliance of said provisions of law. Reliance has been placed on A.I.R. 1962 page 248 and 1973 (S.C.) page 2391, 1967. R.D. page 356, 1975 R.D. page 287 and reference has been made to Section 63 of the Indian Evidence Act. It was also argued that in a proceeding under Section 194 of Act I of 1951 the Gaon Sabha is entitled only to take possession if the land is vacant. Ejectment cannot be ordered in this proceeding of a person being in possession since a long time such person can be ejected only in a regular suit filed under Section 209 of Act I of 1951: that in the present case the mutation application of the Gaon Sabha was rejected as it was not found in possession and the possession of the applicant was upheld in a proceeding under Section 145 of the Criminal Procedure Code. 4. It was argued in reply by the learned D.G.C. (R) that sufficient compliance has been made of para 128 of the Gaon Samaj Manual as copies of the resolution dated 12-1-1971 and copy of the sanction by the collector dated 3-5-1971 has been filed: that the Gaon Sabha can take possession if the Sub-Division Officer declares in the proceedings under Section 194 of Act I of 1951 that the land had vested in it and had ordered ejectment of a trespasser. No separate suit for taking possession under Section 209 of Act I of 1951 was required. 5. Section 3 of the U.P. Panchayat Raj Act of 1947 is regarding establishment and constitution of Gaon Sabha and their jurisdiction and by its Section 4 Gaon Sabha is incorporated as a body corporate under Section 12 of that Act Gaon Panchayat is constituted as an Executive Committee of the Gaon Panchayat and by Section 28-A the Gaon Panchayat of every Gaon Sabha is required to establish a committee to be known as Bhumi Prabandhak Samiti (Land Management Committee) for assisting and discharging its duties of up-keep, protection and supervision of all properties vested of the Gaon Sabha under Section 117 of the U.P. Zamindari Abolition and Land Reforms Act and all other property vested in or coming into its possession under any other provisions of that Act. Thus it is clear that the Gaon Sabha, Gaon Panchayat and Land Management Committee are different Bodies and perform different functions. 6. Section 128 of Gaon Sabha and B.P.S. Manual which runs as follows: "Lays down that Bhumi Prabandhak Samiti (L.M.C.) to conduct any litigation for Gaon Sabha. "The conduct of Gaon Sabha litigation shall not depend upon the individual discretion of the Chairman of the Bhumi Prabandhak Samiti (Land Management Committee), but shall be a matter of a resolution of the Bhumi Prabandhak Samiti (Land Management Committee) as a whole. In urgent cases, however, the Chairman can take action on his own and seek urgent cases, however, the Chairman can take action on his own and seek ratification of the Bhumi Prabandhak Samiti (Land Management Committee) afterwards, by including in the agenda of the next ensuing meeting." 7. The resolution dated 12-1-1971, the copy of which has been filed in the plaint is of the Gaon Samaj (Gaon Sabha) Nagla Kala for getting name of the Gaon Sabha entered on the land of Teeka son of Dalpat who died heirless on 6-1-1971 which is paper No. A-5. This resolution cannot be considered to be of the Bhumi Prabandhak Samiti (L.M.C.) as required by Section 128 of Gaon Sabha and B.P.S. Manual. Therefore, the proceeding under Section 194 started and entertained had been without the required resolution of the Land Management Committee as is mandatory by Section 128 of the Gaon Sabha and B.P.S. Manual. This resolution cannot be considered to be of the Bhumi Prabandhak Samiti (L.M.C.) as required by Section 128 of Gaon Sabha and B.P.S. Manual. Therefore, the proceeding under Section 194 started and entertained had been without the required resolution of the Land Management Committee as is mandatory by Section 128 of the Gaon Sabha and B.P.S. Manual. This point was instantly raised in the trial Court and before the learned Additional Commissioner but was bot properly considered and has been raised in this Court also. The observation of the learned. Additional Commissioner that it is a mixed question of law and fact, therefore is not entertainable is contrary to all principles of law. Because want of jurisdiction which goes to the very root of the case can be raised in appeal, revision or even in execution proceedings as has been held in 1973 (S.C.) 2391. In my considered opinion for want of resolution of the L.M.C. for starting this litigation as required by Section 128 of the U.P. Gaon Sabha and B.P.S. Manual the application of the Pradhan under Section 194 of Act I of 1951 was not maintainable and ought to have been rejected. I am supported by 1975 R.D. page 287 Sardar Khan v. Gaon Sabha. 8. The S.D.O. ordered for ejectment of the applicants. Section 194 of Act I of 1951 lays down that the Land Management Committee shall be entitled to take possession of land comprised in a holding or part thereof. If the land was held by a Sirdar and the interest of the sirdar in such land is extinguished under Cl. (a), Cl. (b), Cl. (c), Cl. (cc) or Cl. (e) of Section 190. 9. The expression "entitled to take possession" means a legal right to take possession. There may be a case in which the land is found vacant and the Land Management Committee can easily take possession of it. There may also be a case in which notwithstanding the surrender, the tenant disputes the surrender and perhaps an asmai who is in possession, or a person who had been in possession from the life-time of the tenant, the tenant having died heirless, opposes the L.M.C. In such a case if the L.M.C. takes forcible possession it will be doing so on own risk. The remedy lies in seeking ejectment under Section 209. Therefore, the expression means taking possession in a legal manner. The remedy lies in seeking ejectment under Section 209. Therefore, the expression means taking possession in a legal manner. If the land remains vacant and a declaration under Section 194 of Act I of 1951 is made in favour of Gaon Sabha that the land has vested in it, certainly the L.M.C. can take possession of it according to the prescribed rules. But in a case where the opposite party has been in possession over the disputed land in the life time of the tenant and even after his death dying heirless the L.M.C. cannot take possession by an order under Section 194 of Act I of 1951, It shall be entitled to take possession only after resorting to ejectment proceeding under the provisions of the Act and not otherwise. 10. In the present case the mutation proceeding of the L.M.C. was rejected as the applicants were found to be in possession since a long time. Since the life-time of the deceased and the proceeding started under Section 145 of the Cr.P.C. was also decided in favour of the applicants as is clear from the perusal of the copy of the order dated 19-7-1971 under Section 145 of the Cr.P.C. the proceeding under Section 340 of the Land Revenue Act was decided against Gaon Sabha on 29-4-1971. The Tahsildar has reported by this report dated 23-5-1971 that the possession of the applicants was of a long time since the life-time of the deceased. Therefore, in the present case the land was not vacant and the possession of the applicants was found by the Tahsildar to be of a long period during the life-time of the deceased and the S.D.O. by his order dated 21-7-1971 confirmed the possession of the applicants to be of a long time, therefore, the order of ejectment of the applicants in a proceedings under Section 194 of Act I of 1951 passed by the S.D.O. is an illegal order and cannot be sustained and is liable to be set aside. 11. In view of the above, this revision application is allowed. The orders passed by both the Courts below are hereby set aside. The application under Section 194 of Act I of 1951 is rejected having been started without a resolution of the L.M.C. as provided under Section 128 of the U.P. Gaon Sabha and B.P.S. Manual.