Radha Krishna Chaube v. Ram Janam — 1981 DIGILAW 402 (ALL)

JUDGMENT S.J. Hyder, J. - Two questions of law arise for consideration in this second appeal. Learned counsel for the defendants, who are aggrieved by the decrees of the primary court as well as by the decree of the court of first appeal, hereinafter referred to as the appellate court, has in the first place urged that the suit of the plaintiff respondents under Section 59/61 of the U. P. Tenancy Act was not entertainable and the decree passed therein was without jurisdiction. In the alternative it is submitted that the two courts below have erred in coming to the conclusion that the plaintiff respondents have acquired tenancy rights in the land in dispute by prescription. 2. Plantiffs instituted the suit against the appellants and the Raja of Dumraon for a declaration under Sections 59/61 of the U.P. Tenancy Act 1939 claiming that they were in possession of the land in dispute for over 50 years and had acquired hereditary rights therein. The appellants and the Raja of Dumraon were interfering with the rights of the plaintiff as such plaintiffs were entitled to claim a decree for a declaration that they were hereditary tenants of the land in dispute. 3. The Raja of Dumraon entered into a compromise with the defendant appellants and acknowledged their rights to the land in dispute This court is the re fore not concerned with the claim of Raja of Dumraon. 4. The defendant appellants travers ed the allegation of the plaintiffs. They claimed that the land in dispute was their Sir and Khudkast land and they were in possession of the same. They denied that the plaintiffs were entitled to the relief sought by them. 5. It is common case between the parties that the confluence of the mighty Ganga and the turbulent Ghagra is in close proximity of the land in dispute. During rainy season both the rivers are in spate and the fury of the discharge of waters is so tremendous that the land in dispute and the adjoining land is subjected to fluvial action. Immediately to the east of the confluence of these two great rivers are the districts of Shahabad and Saran which lie in the State of Bihar. The land in dispute formerly lay in the District of Ballia. Immediately to the east of the confluence of these two great rivers are the districts of Shahabad and Saran which lie in the State of Bihar. The land in dispute formerly lay in the District of Ballia. In the year 1901 there were unprecedented floods in the two rivers as a result of which the land was submerged in water and when the flood receded the land reappeared on the eastern bank of river Ganga in the district of Shahabad. The land in dispute was a part of the said district until the year 1959. In that Year heavy floods once again occurred in the two rivers. When the floods receded it was found that the river had changed its course once again and moved towards Shahabad. In consequence the land in dispute was re-formed and appeared on the western bank in the district of Ballia. 6. It was in these circumstances that the plaintiff respondents instituted the suit giving rise to this appeal in the Court of the Judicial Officer Ballia. Then defendant appellants in their written statement submitted to the jurisdiction of the primary court and contested the suit on the grounds stated above. The primary court decreed the suit and the appellate court affirmed the said decree. The defendant appellants have now come in second appeal to this court. 7. On the question of jurisdiction learned counsel for the defendant appellants has launched a multi-pronged attack on the decree passed by the primary court and affirmed by the appellate court. In the first place he has urged that after coming into force of the Indian Constitution on January 26, 1950 the boundaries of the States were frozen. In spite of the fact that by fluvial action the land in dispute reappeared in the year on the western side of the bank towards the district of Ballia it continued to remain a part of the State of Bihar until the appointed date fixed under Section 3 of the Bihar and Uttar Pradesh (Alteration of Boundaries) Act, (Act No. XXIV of 1968) and the suit could not have been instituted in the court of the Judicial Magistrate, Ballia on 16-11-1962. He next submitted that the U.P. Tenancy Act of 1939 never applied to the land in dispute and the suit instituted by the plaintiff respondents under Sections 59/61 of the said Act was not legally maintainable. He next submitted that the U.P. Tenancy Act of 1939 never applied to the land in dispute and the suit instituted by the plaintiff respondents under Sections 59/61 of the said Act was not legally maintainable. He also urged that the suit could not be deemed to be declaratory suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act as the State Government and the Gaon Sabha had not been impleaded as parties thereto. I shall deal with each of the submissions made by the learned counsel seriatim. But before doing so it is necessary to consider the preliminary objection raised on behalf of the plaintiff respondents. 8. Learned counsel for the plaintiff respondents contended that the defendant appellants who have submitted to the jurisdiction of the Ballia Court are precluded from agitating the question of jurisdiction for the first time in second appeal. According to him the defendant appellants took a calculated risk in the hope that the decision of the Ballia courts may be given in their favour. Once they had exercised their option they are estopped from calling in question the jurisdiction of the said Courts if the decision has gone against them. This argument was countered on behalf of the defendant appellants and it was urged that the courts lacked inherent jurisdiction and the decree passed by them are nubilities. Learned counsel submitted that the rule which the plaintiff respondents have contended is of limited application and the instant case does not fall within the purview of the said rule. He urged that a decree passed by the court without jurisdiction is nonest and its invalidity can be set up even at the stage of second appeal. 9. Determination of jural relations in a dispute between the parties and the authority to pronounce on them which culminates in a binding decree can only be done by a tribunal empowered to do so under the law. Jurisdiction means the legal authority to administer justice according to the means which law has provided and subject to the limitation imposed by that law upon the judicial authority. It, therefore, follows that if a Tribunal or Court has not been conferred with any power to pronounce upon disputed claims, the pronouncement by such Tribunal or Court has no binding effect. It, therefore, follows that if a Tribunal or Court has not been conferred with any power to pronounce upon disputed claims, the pronouncement by such Tribunal or Court has no binding effect. Lord Watson in delivering opinion of the Board of Ledgard v. Bull, (1886) 13 Ind App 134 (PC) observed as follows:- "When the Judge has no inherent jurisdiction over the subject matter of the suit the parties cannot by their mutual consent convert it into a proper judicial process although they may constitute the Judge their arbiter and be bound by his decision on the merits when these are submitted to him." 10. When therefore the court had no inherent jurisdiction no amount of consent, acquiescence of waiver can create it. Estoppel against a party cannot confer jurisdiction on a court where it had none. The general rule stated above is subject to some well defined exceptions. Some of these exceptions are to be found engrafted in Section 21 the Code of Civil Procedure. Section 11 of the Suits Valuation Act and Section 313 of the U.P.Z.A and L.R. Act. The instant case does not fall under any one of these categories. In Kiran Singh v. Chaman Paswan, ( AIR 1954 SC 340 ) the Supreme Court declared the law in the following terms (at p. 553 of All LJ): "It is fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action strikes at the very authority of the Court to pass any decree, and as such, the defect cannot be cured even by consent of parties." 11. In the case of U.C. Bank v. Their Workmen, AIR 1951 SC 230 , Kania C.J.' held (at p. 237) "Consent cannot give a Court jurisdiction if the condition which goes to Obed root of the jurisdiction has not been performed or fulfilled. No appearance, on consent can give jurisdiction to a court, of limited jurisdiction which it does not possess." 12. No appearance, on consent can give jurisdiction to a court, of limited jurisdiction which it does not possess." 12. In view of the above discussion find no force in the preliminary objection raised on behalf of the plaintiff respondents. I shall now proceed to examine whether the Ballia Courts lac inherent jurisdiction to decide the giving rise to this second appeal. 13. Without going into details it ma be stated that before coming into forced the Government of India Act, 1919 the administration of what was then known as British India was highly centralised. Lord North's Regulating Act of 1877 which in substance continued in fore with minor modifications provided for the assumption of complete control of the colony of India by the Secretary of State. The method of the Government approximated more and more closely to the method which had long been employed in other dependent territories of the then British Empire which were called as Crown colonies. The basic principle of governance was Parliamentary control, operating through Secretary of State who in his turn operated through the Governors. In the first instance there were three separate Governors exercising coordinate authority over the respective areas known as Bengal Presidency, the Bombay Presidency and the Madras Presidency. In due course of time the British dominion in India extended and the territories now forming part of Uttar Pradesh were originally part of the Bengal Presidency. They were subsequently separated and were put in charge of Lt. Governor. The Regulating Act gave precedence to the Gorvernor of the Presidency of Bengal who was designated as Governor General. The different units of administration including the presidencies of Bombay and Madras were in the charge of Governors who were placed in a subordinate position to the Governor General. The Secretary of State henceforth regulated the governance of the Colony of India through the agency of the Governor General. The different units of administration which were in the charge either of Governor or Lt. Governor were controlled and administered by the Governor General-In-Council. The legislative functions of the Governor General were limited and he could frame regulations for the governance of the country in matters of detail. It would thus follow that the Government of India before 1919 was a unitary government. As already stated provinces were administrative units which had been created by executive fiat and not by legislation. The legislative functions of the Governor General were limited and he could frame regulations for the governance of the country in matters of detail. It would thus follow that the Government of India before 1919 was a unitary government. As already stated provinces were administrative units which had been created by executive fiat and not by legislation. Reginald Coupland in his book 'Constitutional Problems of India' has observed at page 10: "There were thus no division of authority. No trace of the federal idea in the Constitution of British India before 1919. The Provinces had no rights of their own. They were legally no more than administrative sections of the British India and their Governors no more than agents of the Central Government which in its turn was subordinate to the Secretary of State." 14. The idea of self-governing Provinces was mooted in its nascent form in the Montague-Chelmsford Reforms which culminated in the Government of India Act 1919. For the purpose of this second appeal it is unnecessary to go it to details of the system of Government introduced by the 1919 Act. Suffice it to say the Act fell short of the expectations of the Indian people and the agitation for Home Rule or Swarai continued unabated. The British Parliament with a view to mollify the Indian sentiments passed the Government of India Act. 1935 which carried the principle of federalism a step further. The stride taken by the 1935 Act was also not wholly acceptable to the Indian Opinion. In consequence a brief trial was given to that part of the Act which related to provincial autonomy. After the out break of the Second World War this trial was also abandoned and a stalemate followed which culminated in the independence of India and the Constitution of 1950 framed by the Constituent Assembly. 15. I have given a brief survey of the constitutional history in order to appreciate the legal position which arises in this second appeal. In the year 1825 the Governor-General-In-Council promulgated the Bengal Alluvion and Diluvion Regulation of 1825 (Regulation No. XI of 1825). 15. I have given a brief survey of the constitutional history in order to appreciate the legal position which arises in this second appeal. In the year 1825 the Governor-General-In-Council promulgated the Bengal Alluvion and Diluvion Regulation of 1825 (Regulation No. XI of 1825). The preamble of the Regulation states: "In consequence of the frequent changes which take place in the channel of the principal rivers that intersect the territories immediately subject to the presidency of Fort William and the shifting of the sands which lie in the beds of those rivers, chars or small islands are often thrown up by the alluvion in the midst of the stream, or near one of the banks and large portions of land are carried away by an encroachment of the river on one side, whilst accession of land are at the same time, or in subsequent years gained by dereliction of the water on the opposite side similar instances of alluvion, encroachment and dereliction also sometimes occur on the sea coast which borders the Southern and the Southeastern limits of Bengal. The lands gained from the rivers or sea by the means above mentioned are a frequent source of contention and affray, and although the law and custom in the country have established rules applicable to such cases these rules not being generally known, the Courts of Justice have sometimes found it difficult to determine the rights of litigant parties claiming chars or other land gained in the manner above described." 16. In the enacting part of the Regulations certain guidelines are laid down for determining the ownership of the land gained by alluvial action. As a general Rule if the accretion was eradual, land so added would go to the owner of the plot to which it accreted. But if the land in dispute is identifiable with reference to its physical feature, the landmarks or measurements it should be deemed to continue to belong to the former owner when the land is transferred from one side of the river to the other side by certain change in the course of the river or was the result of the river gradually receding on one side and throwing up land on the other unless a custom to the contrary was established. It is necessary to proceed with detailed examination of the provisions of the Regulations. It is necessary to proceed with detailed examination of the provisions of the Regulations. Suffice it to say that the Regulations cover cause of dispute between individuals arising out of the process of alluvium and diluvium. 17. The Regulation referred to above did not concern itself with the adjustment of the boundaries of the administrative units known as provinces. This was inevitable because as already pointed out the provinces were creations of an executive fiat and were not legal entities. If a particular piece of land accreted towards the side of one province naturally was governed for administrative purposes by the said province. In spite of that the Governor General issued two notifications in the years 1867 and 1871 which provided that the deep stream of the rivers Ganga and Ghagra shall be considered to be the boundary between the districts of Shahabad and Saran of Bihar and the district of Ballia in U. P. 18. I have already stated above that before coming into force of the Government of India Act, 1919 the Government of India functioned on a unitary pattern. The provinces were merely administrative units. The 1919 Act gave elementary recognition to the units known as provinces. Legislative Councils were formed for the provinces which had some legislative functions. The system introduced by this Act did not make any attempt to define the boundaries of the provinces. The Act failed to satisfy the aspirations of the people for self-government and the Parliament ultimately passed the Government of India Act. 1935. The Act of 1935 continued in operation until India attained freedom and the Constituent Assembly adopted Constitution Act which came into effect from 26th January 1950. In this second appeal I am only concerned with the provisions of the Constitution Act. I shall, however, refer to the Government of India Act 1935 whenever found necessary. 19. Article 1 of the Constitution Act hereinafter referred to as Constitution. declares that India. i. e. Bharat shall be a union of States. It further lays down that the States and the territories thereof shall be as specified in the Ist Schedule. The territory of India has also been defined by the Article to mean the territory of States, union territories specified in the Ist Schedule and such other territories as may be acquired by it. It further lays down that the States and the territories thereof shall be as specified in the Ist Schedule. The territory of India has also been defined by the Article to mean the territory of States, union territories specified in the Ist Schedule and such other territories as may be acquired by it. The Constitution makers in order to describe India have deliberately chosen the word "Union" in preference to the words "Federation of States." The reason behind the choice of words by the Constitution makers has no bearing on this second appeal and I do not propose to dwell on this aspect of the Article. Suffice it so say that the Constitution makers have deliberately discarded the terminology "Provinces" and in its place have substituted the words `States'. Moreover an endeavour has been made to specify the territories not only of the States but also of the union territories. This has been done in the Ist Schedule. Incidentally, it may be stated that the Government of India Act, 1935 in Section 46 was content only with enumerating the provinces. The 1935 Act made no attempt to define the boundaries of the Provinces. 20. The territories of the State of Bihar are mentioned at item No. 3 of the said schedule while those of Uttar Pradesh are mentioned at item No. 13. Item No. 3 as originally enacted read as follows :- "3. Territories which immediately before the commencement of this Constitution were either comprised in the province of Bihar or were being administered as if they formed part of that province." There were some boundary disputes between the State of Bihar on the one hand and the State of West Bengal on the other. As a result of this dispute the entry 3 of the Ist Schedule was amended and after the words "that province" occurring at the end the following words were added "but excluding the territories specified in sub-sec. (1) of Section 3 of the Bihar and West Bengal (Transfer of Territories) Act, 1956." At item No. 13 of the Schedule the territories of Uttar Pradesh were originally indicated in the following words. "Territories which immediately before commencement of this Constitution were either comprised in the province or were being administered as if they formed part of that province." 21. On a reading of items Nos. "Territories which immediately before commencement of this Constitution were either comprised in the province or were being administered as if they formed part of that province." 21. On a reading of items Nos. 3 and 13 of Schedule I the conclusion is inescapable that the land in dispute was being governed at the time of the commencement of the Constitution by State of Bihar and formed part of that State. The process of alluvium and diluvium would not affect that position since it took place in the year 1959. The matter, however, does not end here. The Article which is relevant is Article 3 of the Constitution. The Article as amended by the Constitution 5th Amendment Act 1955 is important and is quoted in extenso: "3. Parliament may by law (a) Form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State : (b) increase the area of any State. (c) diminish the area of any State. (d) alter the boundaries of any State. Provided that no bill for the purposes shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the bill affects the area, boundaries or name of any of the States, the bill has been referred by the President to the legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired." 22. Article 4 of the Constitution empowers the Parliament to amend the first Schedule in suitable manner in pursuance of the law referred to in Articles 2 and 3 of the Constitution, It is significant that for the purposes of amending the first schedule of the Constitution it is unnecessary to have re course to the special provisions contained in Article 368 for the amendment of the Constitution. In relation to the matters enumerated in Articles 2 and 3 of the Constitution the Union Parliament is empowered to amend Schedule of the Constitution by passing an Act by a simple majority. 23. In relation to the matters enumerated in Articles 2 and 3 of the Constitution the Union Parliament is empowered to amend Schedule of the Constitution by passing an Act by a simple majority. 23. The legislature of Uttar Pradesh amended the U. P. Zamindari Abolition and Land Reforms Act first Act XXI of 1962 and then by. enacting Act XII of 1965, Section 2-A as it now stands reads as follows :- " 2-A. The extension of the Act to new territories:- (1) Where any area is added to the territory of Uttar Pradesh by the action of the river or otherwise, the State Government may, by notification in the Gazette extend this Act to that area. (2) The State Government may, by the same or any subsequent notification make such modification in this Act in its application to that area as it may consider necessary in the circumstances existing in the area: Provided that no such modification shall be made after the expiry of one year from the date of extension of this Act to the area, or remain in force for a period exceeding two years." 24. The amendment to the U.P. Zamindari and Land Reforms Act quoted above was a clear indication on the part of the State legislature that it intended to treat the land in dispute and other lands which had accreted to the State of Uttar Pradesh as land belonging to that State. The State of Bihar contested the position and a boundary dispute arose between the two States. 25. To resolve this dispute the Central Government appointed a one man commission headed by an experienced officer of the Civil Service. Sir Chandulal Trivedi. The Commission submitted its report in the year 1964. Learned counsel for the plaintiff respondent has placed reliance on some portions of the report to which I shall refer at the appropriate place. At this stage it may be stated that on the basis of the said report the Parliament passed an Act known as Bihar and Uttar Pradesh (Alteration of Boundaries) Act, 1968 which received the assent of the President on May 22, 1968 and came into force on the same day. Section 3 of the Act laid down principles on which boundaries between the two States were to be demarcated. Section 3 of the Act laid down principles on which boundaries between the two States were to be demarcated. The work of demarcation was to be carried out by an authority appointed in this behalf by the Central Government. It was enjoined by the Section that the authority appointed by the Central Government shall carry out its work in conformity with the boundary line described in the schedule to the Act. It is not in dispute between the parties that the boundaries have been demarcated by the prescribed authority and in accordance with such demarcation the land in dispute now falls within the territorial limits of the State of Uttar Pradesh. The Act of 1968 also substituted the entries against items Nos. 3 and 13 of the first Schedule of the Constitution by a new description of the two States. The entries as substituted in relation to the State of Bihar and Uttar Pradesh are given below :- BIHAR The territories which immediately before the commencement of this Constitution were either comprised in the Province of Bihar or were being administered as if they formed part of that Province and the territories specified in Cl. (a) of sub-section (1) of Section 3 of the Bihar and Uttar Pradesh (Alteration of Boundaries) Act, 1968 but excluding the territories specified in subsection (1) of the Bihar and West Bengal (Transfer of Territories) Act. 1956, and the territories specified in clause (b) of sub-section (1) of Section 3 of the first mentioned Act." UTTAR PRADESH The territories which immediately before the commencement of this Constitution were either comprised in the Province known as the United Province or were being administered as if they formed part of the Province and the territories specified in clause (b) of subsection (1) of Section 3 of the Bihar and Uttar Pradesh (Alteration of Boundaries) Act, 1968, but excluding the territories specified in clause (a) of subsec. (1) of Section 3 of that Act. 26. The result of the foregoing discussion is that although the State of Uttar Pradesh may have gained de facto control of the land in dispute after the unprecedented flood which occurred in 1959 the de jure transfer of the territors took place only after the Bihar and Uttar Pradesh (Alteration of Boundaries) Act 1968 was passed. 26. The result of the foregoing discussion is that although the State of Uttar Pradesh may have gained de facto control of the land in dispute after the unprecedented flood which occurred in 1959 the de jure transfer of the territors took place only after the Bihar and Uttar Pradesh (Alteration of Boundaries) Act 1968 was passed. The suit giving rise to this appeal was instituted under the provisions of the U. P. Tenancy Act much before 1968 and apart from the question as to whether the Act of 1939 ever applied to the land in dispute no law of Uttar Pradash could be made applicable to the territories which had accreted to Uttar Pradesh after 1959, until the date appointed under the Act of 1968. 27. In this connection reference may also be made to Section 26 of the Act of 1968 which is in terms identical with the provisions of Section 119 the States Reorganisation Act, 1956. Section 26 reads as under:- "The provisions of Section 3 shall not be deemed to have effected .any change in territories to which any law in force immediately before the appointed day extends or applies. and territorial reference in any such law of the State of Bihar or Uttar Pradesh, shall until otherwise provided by competent legislature or other competent authority, be construed as meaning territories within that State immediately before the appointed day." The expression "appointed day" has been defined in the said Act to mean the day which the Central Government may by notification in the official gazette appoint. Learned counsel for the parties have not been able to place any material before me from which the appointed day may be determined. The appointed date, however, must be subsequent to the coming into force of the Bihar and Uttar Pradesh (Alteration of Boundaries) Act, 1968. 28. Now- Section 26 of the Act gives effect to the well established principle of international law. If the territories are transferred from one State to an other State by peaceful means the law applicable to such territories would be the law which applied to such territories before the transfer took place. This rule is subject to the exception that the law originally applicable ta, such territory may be modified, altered or abrogated by competent legislature. If the territories are transferred from one State to an other State by peaceful means the law applicable to such territories would be the law which applied to such territories before the transfer took place. This rule is subject to the exception that the law originally applicable ta, such territory may be modified, altered or abrogated by competent legislature. However, only the acquiring State can make a law altering, repealing or modifying the law applicable to the territories and till such time original law of the territory which has changed hands, will prevail. On this principle also it is difficult to accept that the law of Uttar Pradesh applied to the land in dispute on the date when the suit was instituted. 29. From the foregoing discussion it is abundantly clear that the law of Uttar Pradesh. let alone the U. P. Tenancy Act, 1939, did not apply to the land in dispute on the date on which the plaintiffs respondents filed the suit giving rise to this second appeal. 30. It is still more difficult to appreciate how the plaintiffs-respondents could institute the suit from which this second appeal arises under Sections 59/61 of the U. P. Tenancy Act. It has already been stated above that the land in dispute became a part of the district of Shahabad in the State of Bihar in the year 1901 as a result of fluvial action. The U. P. Tenancy Act received the assent of the Governor on December 6. 1939. It was published in the Government Gazette on December 16. 1939 and it was from that date that it came into force. The U. P. Tenancy Act of 1939 could not have and did not possess any extra territorial operation. The land in dispute again reverted towards the district of Ballia in the year 1959. I have already held that it did not become part of Uttar Pradesh until the appointed date under the Bihar and U.P. (Alteration of Boundaries) Act, 1968. The U.P.Z.A. and L.R. Act came into force with effect from July 1, 1952. Section 339 (a) of that Act repealed the enactments mentioned in List I of Schedule III in their application to all such areas in which the estates had vested in the State of Uttar Pradesh by virtue of the notification issued under Section 4 of the Act. Section 339 (a) of that Act repealed the enactments mentioned in List I of Schedule III in their application to all such areas in which the estates had vested in the State of Uttar Pradesh by virtue of the notification issued under Section 4 of the Act. Learned counsel for the plaintiffs respondents contended that the U.P.Z. A. and L. R. Act did not apply to the land in dispute at the time of institution of the suit and as such the only law which could Government relations between the parties was the U.P. Tenancy Act of 1939. The only reason on the basis of which it can be said that the U. P. Z. A. and L. R. Act did not apply to the land in dispute is the fact that on the date of the issue of notification under Section 4 of the said Act the land in dispute was part of the State of Bihar. Learned counsel for the plaintiffs-respondents has however, not been able to assign any reason why the provisions of the U. P. Tenancy Act of 1939 would become applicable when the land in dispute emerged on the other side of the river adjoining the district of Ballia. I have already exhaustively dealt with the question and have come to the conclusion that the U.P. Laws did not apply to the land is dispute until the notification fixing the appointed date was issued under the Act of the Parliament in the year 1968. On this ground also. the suit of the plaintiffs-respondents under Section 59/61 of the U. P. Tenancy Act was not legally maintainable and should have been dismissed. 31. The only question which now remains to be considered is whether the plaintiff-respondents acquired hereditary rights in the land in dispute on account of their continuous adverse possession extending to a period of over 50 years a held by the two courts below under Section 180 (2) of the U. P. Tenancy, Act, 1939 assuming that the provisions of the U. P. Tenancy Act, 1939 applied to the land in dispute the findings of the courts below on this aspect of the case are based on a patent misreading of evidence and cannot be sustained. The law on the subject is not in doubt. The law on the subject is not in doubt. Gangeshwar Prasad J. in the case of Kapil Deo Rai v. Harnarian Ahir, AIR 1965 All 313 after careful consideration of a number of authorities on the subject laid down the law as follows (at p. 317):- "The next point to be considered in relation to the question of limitation is the fact of the submersion of the land under water of the river every year during the rainy season, if the allegation in that respect is found correct. It is well established that submersion of a land under water puts an end to the possession of the person who was in wrongful possession of it before submersion and restores the land to the possession of the rightful person who is deemed to be in constructive possession of it during the period of submersion......It has then to be considered whether the principle that a land seasonally submerged under water every year reverts to the possession of the owner was applicable to suits under Section 44 of Agra Tenancy Act, 1926 and Section 180 of the U. P. Tenancy Act of 1939. The principle, it must be conceded, is not based on any statutory provision but it is founded on the true concept of possession and dispossession and as such in my opinion there is no reason why its applicability should be limited to suits which fall under Articles 142 and 144 of the Limitation Act and it should have no application to the suits under the Tenancy Laws. For time to run against the rightful person it was necessary that the wrong doer must have been in possession. The benefit of doctrine of constructive possession not being available to a person wrongfully obtaining possession, he could not be recorded as having continued in possession even while the land was under water. Since the submersion of land under water had the effect of restoring possession to the rightful owner the possession of the person who had wrongfully kept it must be regarded as having come to an end." The argument was addressed to the first court of appeal on behalf of the defendants-appellants on the lines stated above. Since the submersion of land under water had the effect of restoring possession to the rightful owner the possession of the person who had wrongfully kept it must be regarded as having come to an end." The argument was addressed to the first court of appeal on behalf of the defendants-appellants on the lines stated above. It however, rejected the submissions with this observation:- "In this particular case there is nothing on record to show that the land used to lie under water for four months every year for these more than 50 years. The appellants simply rely on a piece of statement given by Chhatu Misra in which he stated that the land was under water for 10 or 12 years since 1931. 32. With the help of the counsel for the parties I have gone through the record of the case. Kedar P.W. 2 stated that the disputed land had become a part of the bed of river Ganga, before he attained the age of discretion and that it has emerged from the river bed for the last 8 or 10 years. Jagpal Chaudhary P. W. stated that the land in dispute remained submerged in water every year. Chhatu Misra P. W. 2 admitted that Kharif crop is not grown in the land in dispute. Radha Krishna Chaubey stated that the land in dispute remained submerged in water during the rainy season every year. This was the position of the land when it was in Shahabad and even thereafter. He further stated that no kharif crop is grown in the land in dispute. In his cross-examination he disclosed that after the onset of floods the land in dispute remained submerged in water for about 4 or 5 months. Ram Jalak D. W. 2 has made a statement to the same effect. The extract of the revenue records filed in the case mentioned land as `Bal Panchat' which obviously means that it is covered either with sand or water. The report of the Boundary Dispute between U. P. and Bihar prepar ed by Shri Chandulal Trivedi shows that he flew over the area which was the subject matter of the dispute. The extract of the revenue records filed in the case mentioned land as `Bal Panchat' which obviously means that it is covered either with sand or water. The report of the Boundary Dispute between U. P. and Bihar prepar ed by Shri Chandulal Trivedi shows that he flew over the area which was the subject matter of the dispute. He stated in his report that the lands which were subject to fluvial action on account of the floods in the rivers of Ganga and Ghagra are locally known as `Diara.' The evidence of the parties clearly shows that the land in dispute was submerged in flood waters and was not cultivable for a period of about four months, every year. The finding of the first court of appeal referred to above is in the teeth of the evidence on record and cannot be sustained. Even if it be assumed that the U. P. Tenancy Act applied to the land in dispute plaintiffs cannot be said to have acquired hereditary rights under Section 180 (2) of the U. P. Tenancy Act, 1939. The finding of. the first court of appeal on this point is also set aside. 33. Learned counsel for the appellant is right in contending that the suit giving rise to this second appeal could not be sustained under Section 229-B of the U.P.Z.A. and L.R. Act. True it is that a person can institute a suit for declaration of his status as bhumidhar or sirdar as the case may be under sub-section (3) of Section 229-B of the U. J'. Z. A. and L. R. Act. According to the scheme of the Act ownership of all land situated in a village vests in the State Government. The State Government in its turn has vested the management and superintendence of the land in the Gaon Sabha. For this reason sub-section (3) of Section 229-B of the U.P.Z.A. and L.R. Act itself states that a declaratory suit by a person claiming to be bhumidhar or sirdar can be instituted by him against the State Government and the Gaon Sabha. The direction to implead the State Government and the Gaon Sabha as a party to such suit is mandatory. Failure to comply with this direction would be a fatal defect in the suit. The direction to implead the State Government and the Gaon Sabha as a party to such suit is mandatory. Failure to comply with this direction would be a fatal defect in the suit. Moreover, no such suit can be instituted by a plaintiff without first serving the State Government a notice under Section 80 of the Civil Procedure Code and a further notice to the Gaon Sabha under Section 106 of the Pauchayat Raj Act. The plaintiff respondents therefore cannot invoke the provisions of Section 229-B of the U.P.Z.A. and L. R. Act to save this suit. 34. Learned counsel for the plaintiff respondents has finally referred me to pages 4, 8, 13, 17 and 49 of the Report on the Boundary Dispute between Uttar Pradesh and Bihar Volume I in support of the plaintiff's case. I have carefully gone through not merely through the said pages but have perused the report in its entirety. I do not find anything in the said Report which may be called in aid by the plaintiffs-respondents in support of their claim. I, therefore. see no merit in the suit filed by the plaintiffs respondents. 35. The result is that this second anneal succeeds and its hereby allowed. The decrees of the two courts below are set aside. The suit of the plaintiff-respondents is dismissed with costs throughout.