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1992 DIGILAW 1357 (ALL)

State v. Ahmad Husain

1992-10-07

BHAIRO PRASAD

body1992
JUDGMENT Bhairo Prasad, M. - These two references have been referred by the Addl. Commissioner, Bareilly Division Bareilly by a common recommendation dated 26.10.1991 under Section 333-A of U.P. Act No. 1 of 1931. 2. In brief the facts of the case are that Ahmad Husain filed two suits in the trial court under Section 229-B of U.P. Act No. 1 of 1951 against the State and Gaon Sabha. Suit No. 11 was filed regarding plot No. 1 area 9-4-3, Plot No. 19 area 1-10-15 and plot No. 28 area 4-0-0 of village Raiya, Nagla, Pergana Sirauli Tahsil Mirganj, District Bareilly for declaration of bhumidhari right. Suit No. 12 of 1990-91 was filed by Ahmad Husain against the State and Gaon Sabha regarding plot No. 28 area 9-16-13 of village Raiya Nagla, Pergana Sirauli. Tahsil Mirganj, district Bareilly for the declaration of bhumidhari right. These two suits were filed on the ground that he was ordered to be recorded over the corresponding whole these plots by the Tahsildar in 1953-54. During the consolidation disputed plot has been recorded in the name of Gaon Sabha, hence these suits. The State and Gaon Sabha were finally served by publication in news paper daily 'Vishwa Manav' Bareilly dated 17.2.1991. The suit proceeded ex-party against the State and Gaon Sabha and it was decreed on 12.3.1991. Then Gaon Sabha filed a revision No. 110/181 and 111/180 in the court of Addl. Commissioner, Bareilly on the ground that the ex-party decree against the Gaon Sabha and State should be set aside because no notice under Section 80 of Civil Procedure Code was given to the State. Notice was also not given to the Gaon Sabha under Section 106 of Uttar Pradesh Panchayat Raj Act. The land in dispute are recorded in the name of State and the Gaon Sabha as Navin Parti. There has been consolidation in the village. The suit is acred by Section 49 of the Uttar Pradesh Consolidation of Holdings Act. The judgment and decree of the trial court is perverse and arbitrary. The trial court has exercised the jurisdiction vested in him illegally and with material irregularity. Plaintiff Ahmad Husain is not a bhumidhar of the suit plot. Both the revisions were consolidated by the Addl. The judgment and decree of the trial court is perverse and arbitrary. The trial court has exercised the jurisdiction vested in him illegally and with material irregularity. Plaintiff Ahmad Husain is not a bhumidhar of the suit plot. Both the revisions were consolidated by the Addl. Commissioner and have recommended that no notice under Section 80 C.P.C. was given to the State, The case of the plaintiff Ahmad Husain is also not proved. The order passed by the learned Trial court is illegal. Objection has been made against these findings by Ahmad Husain, that the order of the Addl. Commissioner is against law and the judgment and decree of the trial court is valid that in accordance with law and the revision is not maintainable. Plaintiff has fully proved his case. The learned lower appellate court has gone beyond his power is recommending the revision, hence it should be rejected. 3. I have heard the learned counsel for both the parties. Perused the record. 4. The learned counsel for the State argued that the plaintiff-Opp. Party filed two suits regarding the same plot in order to mislead the court. No notice was given to the State Government under Section 80 C.P.C. even the Gaon Sabha was not served notice under Section 106 of Uttar Pradesh Panchayat Raj Act, although the disputed plots are recorded in the name of Gaon Sabha as Navin Parti. He also argued that the summon on the Gaon Sabha as well as State has been served through publication in the daily newspaper. The State Government and Gaon Sabha are represented through a public office held by Collector and Pradhan of Gaon Sabha. Summons to them can be served and there can be no avoidance of the summon or it cannot be said that they were not available when the summon was sent to them for service. Service of summon through publication is a substituted service and whenever any person against whom decree is passed on such substituted service that decree at once should be set aside. Ho also argued that no suit against Gaon Sabha and State can be filed regarding the property of Gaon Sabha and the State unless a notice under Section 30 C.P.C, and 106 Uttar Pradesh Panchayat Raj Act was given. 5. Against this contention of the learned counsel for the Opp. Ho also argued that no suit against Gaon Sabha and State can be filed regarding the property of Gaon Sabha and the State unless a notice under Section 30 C.P.C, and 106 Uttar Pradesh Panchayat Raj Act was given. 5. Against this contention of the learned counsel for the Opp. Party argued that no revision is maintainable against decree and judgment. Only appeal could have been filed. He also argued that there has been no finding of any fraud committed by the Trial court. The revisional court cannot give finding of fact. Since the restoration has not been filed by the State Government and Gaon Sabha in the Trial Court they cannot challenge the service of summon to them. 6. The learned counsel for the Opp. Party Hon'ble Supreme Court of India has held in 1973 (S.C.) page 76 that the High Court has no power to interfere even if the order is illegal or against fact. The revisional court has power to interfere only when there is a mistake of the jurisdiction or jurisdiction is exercised in such way that it resulted in illegality and material irregularity in the order. He also argued that the same view has also been laid down in 1971 (S.C.) page 2324. He also argued that the court has power to wave the notice under Section 80 of Civil Procedure Code as has been laid down and decided in 1980 R.D. page 164. The trial court has waved the notice under Section 80 of Civil Procedure Code. 7. The plot in dispute are plots No. 1, 19 and 28 of Village Raiya Nagla, Pergana Sirauli, Tahsil Mirganj, district Bareilly. Two suits have been filed. The area of plot number had been shown in two suits. I do not understand why two suits have been filed by the same plaintiff against the same defendant. Only one suit was justified. 8. It is admitted case of the parties that there has been two times consolidation operation, one in 1955 and other is in 1985. The learned counsel emphasised that during these period the disputed plot was recorded as property of Gaon Sabha, The plea of plaintiff-Opp. Party is that the plots in dispute belongs to them and there has been mistake in consolidation operation but a perusal of the order of the trial court shows that there is no such evidence to prove this. The learned counsel emphasised that during these period the disputed plot was recorded as property of Gaon Sabha, The plea of plaintiff-Opp. Party is that the plots in dispute belongs to them and there has been mistake in consolidation operation but a perusal of the order of the trial court shows that there is no such evidence to prove this. There has been also no pleadings of the plaintiff to prove that mistake was committed during first consolidation or during the second consolidation. Duty was on the plaintiff-Opp. Party to explain and plead. Not only to explain and plead but it was duty to prove it. 9. The power has been conferred under Section 333-A of U.P. Act No. 1 of 1951 to the Addl. Commissioner to call for the records any case decided in which no appeal lies or if appeal lies no appeal was filed to examine the legality and propriety of the order passed by the court, therefore, the power which has been conferred under Section 333-A is a different than the power conferred to the courts under Section 333 of U.P. Z.A. and L.R. Act . The power given under Section 333-A is wider power under which legality as well as propriety of the order can be examined by the courts below. There is illegality in filing the two suits of the same plots. It is improper. Since the property belongs to the Gaon Sabha, therefore, the court have no power to waive the issue of notice under Section 80 C.P.C. and 106 of Uttar Pradesh Panchayat Raj Act. The suits could not have been decided against State and Gaon Sabha on the basis of substituted service. The plaintiff-Opp. Party has also failed to proved his pleading that the consolidation authorities has committed mistake in recording the name of the Gaon Sabha over the disputed plot. In these circumstances of the fact the law referred by the Opp. Party will not apply in the present situation of the case, therefore, the decree and judgment passed by the trial court is illegal. 10. Therefore, these two references are accepted and the decree and judgment of the trial court is set aside. However there will be no bar to the plaintiff-Opp. Party to file the suit after giving proper notice to the State and Gaon Sabha. This order shall govern Reference Nos. 3 and 4 of 1991-92/Bareilly.