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1992 DIGILAW 346 (ALL)

Abdul Basir v. Natho

1992-03-22

BRIJESH KUMAR

body1992
JUDGMENT Brijesh Kumar, J. - This is plaintiff's second appeal against the judgment and decree dated 20-8-1986 passed by the Addl. Commissioner, Bareilly Division, Bareilly, in appeal No. 65/18 of 1985, allowing the appeal and setting aside the judgment and degree dated 24-11-1983 passed by the Asstt. Collector 1st Class, Pilibhit in a case No. 52 of 1981-82 under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act. 2. The facts of the case are that Abdul Bashir brought a suit under 229-B of the Act in respect of plot No. 1433/69 acre situate in village Newria Hussainpur with the contention that he had purchased the land through a registered sale-deed on 9-5-1960. On the basis of this sale-deed his name was also mutated on 21.2.1961 in the khatauni of 1371-73-F. He was recorded against the plot but due to some inadvertence smt. Bhuri widow of Niaz Husain was recorded. Upon the death of Bhuri, Natthey was recorded by way or succession. The plaintiff moved for the expunction of the name of Natthey but his application was rejected and hence the suit for declaration of his title and the expunction of the name of the defendant. The defendant contested the suit denying the allegations. The defendant contested the suit denying the allegations. The defendants case is that Smt. Bhuri was the widow of Niaz Hussian. She was the sole tenant of the land in dispute situate in village Newria Hussainpur Somali which is within the precincts of the Town Area. She was recorded tenant before the abolition of Zamindari and after the abolition of the Zamindari she was recorded as sirdar. Upon the death of Smt. Bhuri, Smt. Natti who is the daughter of Niaz Hussain was recorded under the order, of the S.K. as successor of Smt. Bhuri. The execution of any sale-deed by Smt. Bhumi in favour of the plaintiff was also denied. On the pleadings of the parties, the learned trial court framed 6 issues and decreed the suit on 24.1.1983. Aggrieved by the judgment and decree Smt. Natthi preferred and appeal before the Divisional Commissioner. The learned Addl. Commissioner allowed the appeal on 20.8.1986. 3. I have heard the learned counsel for the parties. On the pleadings of the parties, the learned trial court framed 6 issues and decreed the suit on 24.1.1983. Aggrieved by the judgment and decree Smt. Natthi preferred and appeal before the Divisional Commissioner. The learned Addl. Commissioner allowed the appeal on 20.8.1986. 3. I have heard the learned counsel for the parties. Sri H.G. Rastogi, learned counsel for the appellant had argued that the court below has illegally allowed the appeal on the ground that the Collector was not made party to the suit. His contention is that besides local authority, the Collector was not made a party to the suit. Sri S.D. Pathak, learned counsel for the respondent has contended that the appeal in not maintainable because the copy of the decree passed by the Addl. Commissioner has not been filed along with the memo of the appeal and the mandatory provisions contained under Order XLI, Rule 1, C.P.C. and para 161 of the Revenue Court Manual were not followed. His second contention is that the Collector was not impleaded. It was the State which was impleaded through Collector. But the Collector as incharge of the Town Area was not impleaded. Referring to Section 64 of the U.P. Urban Area Zamindari Abolition and Land Reforms Act, the learned counsel has contended that the State Government has power to make adoption of Section 229-B of Act, the Collector will be incharge with general superintendence and management, preservation and control of all land which has vested in the State under Section 10. His last submission is that the Order 1, Rule 9, C.P.C. will not apply to this case, In support of his contention, he has placed reliance on 1981 R.D. 231 and 1979 AWC 69 (Rev.) 4. I have carefully considered the arguments advanced before and have also perused the record. The learned Addl. Commissioner has allowed the appeal on the ground that the Collector who was a necessary party was not impleaded in the suit. He has placed reliance on 1979 AWC 69. The learned trial court has held that the disputed plot number 1433 is situated in the village Newria Hussaippur Somali which is within the limits of Town Area. The U.P. Urban Areas Zamindari Abolition and Land REforms ACt, 1956 is, therefore, applicable to this case. He has placed reliance on 1979 AWC 69. The learned trial court has held that the disputed plot number 1433 is situated in the village Newria Hussaippur Somali which is within the limits of Town Area. The U.P. Urban Areas Zamindari Abolition and Land REforms ACt, 1956 is, therefore, applicable to this case. Section 60 (1) of this Act provides that subject to the provisions of this Act, the Collector shall specified the date of vesting, be charged for and on behalf of the State Government with general superintendence, management, preservation and control of all land and things which has vested in the State under Section 10. Section 229-B and 229-C of the Act were adopted by the Government under U.O. No. 1524-A-2/1-2357-59 dated 20-6-1961 and the words 'Gaon Samaj' were substituted by the words 'Collector or the local authority', the cause may be to be charge with management under Section 60 of the Urban Areas Z.A. and L.R. Act. 5. It is apparent from the above provisions that under Section 61, the Collector is charged for and on behalf of the State Government with general superintendence management, preservation and control of all lands and things vested in the State under Section 10 of the Act. The situation however, changed under Section 60 (2) of this Act when the local authority is charged with the general management of all or any of the land vested in the State Government under Section 10. Such local authority is vested with power under notification issued by the State Government. Under Section 62 of this Act, the local authority is required to carry out orders and directions of the State Government. The State Government is empowered under Section 63 to divest power of the local authority and vest the power in some other person. 6. It is clear from the above provisions that the Collector is not doubt a necessary party in the event of the town area having been placed under suspension. But where the town are function under the general supervisions and superintendence of the Chairman, the Chairman shall be the necessary party and the Collector a proforma party. It appears from the plaint in the instant case that the Chairman Town Area Newria Hussainpur has been impleaded as necessary party and the Collector was impleaded to represent the State. But where the town are function under the general supervisions and superintendence of the Chairman, the Chairman shall be the necessary party and the Collector a proforma party. It appears from the plaint in the instant case that the Chairman Town Area Newria Hussainpur has been impleaded as necessary party and the Collector was impleaded to represent the State. It the Charmain has been impleaded as necessary party, the requirements of law are met. It is nothing but a mere technicality if the Collector has not been impleaded as in-charge of the Town Area is placed under suspension. I am, therefore, of the view that the learned Addl. Commissioner has wrongly which is not justified. Order 1, Rule 9, C.P.C. contemplates that no suit shall be dismissed for non-joinder or misjoinder of the parties. In the instant case, since the Collector was not the necessary party, this rule is applicable with full force. 7. As regard the preliminary objection that the copy of the decree was not filed along with the memo of the appeal, I find sufficient force in the contention of the learned counsel for the respondent that the appeal is incompetent. Order XLI, Rule 1, C.P.C. provided that : "Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such Officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the appellate court dispenses there with) of the judgment on which it is founded." 8. It appears from the office report given on the back of the memorandum of the appeal that the copy of the decree was not filed. Three weeks time was given to the appellant for filing the copy. The learned counsel for the appellant had adopted this direction on 22.9-1986. Despite sufficient opportunity having been given to him, the copy of the decree was not filed nor was any explanation offered. The requirements of Order XLI, Rule 1, C.P.C. is mandatory and in the absence of a copy of the decree, filing of the appeal would be incompetent, defective an incomplete This view has been taken in Jagdish Bhargava v. Jawahar Lal Bhargava AIR 1961 SC 832 . The requirements of Order XLI, Rule 1, C.P.C. is mandatory and in the absence of a copy of the decree, filing of the appeal would be incompetent, defective an incomplete This view has been taken in Jagdish Bhargava v. Jawahar Lal Bhargava AIR 1961 SC 832 . Rule 1 of Order XII C.P.C. empowers the appellate court to dispense with filing of the copy of the judgment. But there is no jurisdiction of the appellate court to dispense with filling of the copy of the decree. As required under Para 163 (s) of the Revenue Court Manual the appeal should have been deposited. Rule 163 (c) of the Revenue Court Manual provides that - "Every appeal or application to the Board of Revenue presented to the Registrar of the record's office at Allahabad or received by him under sub-rule (2) shall immediately be examined and a note recorded on the memorandum or application, as to whether the appeal or application is in due from and stamped to the full extent of the court fee required and is accompanied by certified copies of the decree or order appealed against and by the judgment in the case passed by all the courts subordinate to the Board and whether it is prima facie within time or not. All defects as ascertained shall forthwith be pointed out in writing by the Registrar of the Boards' office to the person filing the appeal for application. If the defect be that the appeal or application is insufficient the stamped or that necessary copies are wanting the person filing the appeal or application shall be called upon to remedy it within a reasonable time to be specified in the necessary copies shall not, however, exceed the period of limitation and the person filing such appeal or application shall also be informed that failure to remedy the defect within the specified time, will make the appeal or application liable to be deposited, If the person filling the appeal or application be not present, the necessary intimation shall be sent to him by post, service bearing." "On receipt of the Board's office, the appeal or application which is not in from or which prima facie has not been filled within the period of limitation shall be laid as soon as liable before the Court for orders." 9. Rule 163 (g) provides that - "Until the copies referred to in the above sub-rules have filed the appeal shall not be considered to have been properly presented." in the instant case, though three weeks time was allowed to the appellant for filing the copy of the decree, the office failed to put up the file before the court for orders. However, latches are certainly on the part that of the appellant who despite sufficient opportunity having been given to him. Failed to file the copy of the decree. What is surprising in this case is that even and explanation for not doing so has been offered I. therefore, find this appeal incompetent. 10. In view of the above discussions, this appeal ailed and is consequently dismissed.