Ram Lal Gulati, J. - (1.) This is a writ petition u/Art. 226 of the Constitution. This case appears to have had a chequered history and demonstrates how emphasis on technicalities can lead to a prolonged and useless litigation.
(2.) Akbar Khan, the petitioner on October 10, 1960 filed a suit for ejectment and damages u/S. 209 of the UP ZA & LR Act in respect of certain plots against Sarfuddin Ali, respondent No. 3 impleading the State of UP and Gaon Sabha of the village Laloli as proforma defendants. The suit was based on the allegation that the petitioner was the sirdar of the disputed plots and had been illegally dispossessed by respondent No. 3 in 1366 F. The suit was filed in the court of Asstt. Collector, First Class, Fatehpur. The respondent No. 3 contested the suit upon various grounds, one of the grounds being that the land in suit was not identifiable. The suit was decreed by the trial court. The respondent No. 3 filed an appeal before the Addl. Commissioner, Allahabad who set aside the judgment and order of the trial court holding that as the land was not identifiable on the spot the suit for ejectment could not be decreed. He did not deal with any other issue. The petitioner thereupon filed a second appeal before the Board of Revenue but the same was summarily dismissed on June 29, 1962 with the following observations: The lower appellate court clearly observed that plaintiff was unable to show which was the particular area over which the plaintiff wanted the defendant to be ejected. It also appeared that neither was a Commissioner appointed nor was there any thing to show that there was some demarcation. On September 22, 1962, the petitioner filed a fresh suit u/S. 209 of the UP ZA and LR Act and simultaneously he filed an application for demarcation of the land by the Court. This application was allowed and the trial court appointed a Commissioner to demarcate the land. The respondent No. 3 filed an objection against the order of the trial court appointing the Commissioner but the objection was rejected by the trial court. The respondent No. 3 then filed a revision before the Addl. Commissioner who sent the case to the Board of Revenue with the recommendation that the revision be allowed and the suit be dismissed as the land could not be demarcated during the pendency of the suit. The Board by two separate orders dated March 5, 1964 and March 10, 1964 turned down the recommendation of Addl. Commissioner and upheld the order of the trial court appointing a Commissioner to demarcate the land. Thereafter the respondent No. 3 appears to have filed a writ petition under Article 226 of the Constitution which was also dismissed by this Court. The Commissioner then demarcated the land on the spot and submitted a report to the trial court on the basis of which the trial court decreed the suit. The respondent No. 3 filed an appeal against the ejectment decree in the court of the Addl. Commissioner, who allowed the same on September 21, 1965 and remanded the case to the trial court for de novo trial on the ground that the statement of the Commissioner who had demarcated the land had not been recorded to prove the report. The trial court tried the suit afresh and examined the Commissioner and by its order and judgment dated March 13, 1968 decreed the suit. The respondent No. 3 again went up in appeal before the Addl. Commissioner. One of the pleas raised in the appeal was that the question of the identification of the land was barred by res -judicata. This point had been urged before the trial court also but had been rejected. The Addl. Commissioner dismissed the appeal holding that the identifiability of the land was not barred by either res judicata or by limitation. The respondent No. 3 then filed a second appeal before the Board of Revenue. This time the Board by its order dated July 10, 1969 allowed the appeal holding that the question of identifiability of the land was barred by res judicata. This petition is directed against that order of the Board.
(3.) After hearing the learned counsel for the parties I on 2 -11 -70 by a short order allowed the petition with costs and quashed the impugned order of the Board stating that detailed reasons shall be given later. This judgment in being now made to set out those reasons.;