V. Bhargava, J. - (1.) By this petition under Article 226 of the Constitution the petitioner has challenged the correctness of the orders of the Additional Commissioner and the Board of Revenue as a result of which a suit under Section 59 of the U.P. Tenancy Act has been decreed in favour of opposite party No. 3 against the petitioner. When this petition came up for hearing a preliminary objection was taken by Mr. Wali learned counsel for opposite party No. 3 that the petitioner had been guilty of laches and delay in presenting the petition and consequently the petition should be dismissed on that ground alone. The last order of the Board of Revenue challenged by this petition is dated 30th of July, 1957. This petition was presented on 18th December, 1957. In view of this delay the Bench before which the petition came up for admission gave an opportunity to the petitioner to file a supplementary affidavit explaining the delay. That supplementary affidavit was filed. The explanation given in that supplementary affidavit was that the petition with the affidavit was actually ready on 30th Oct., 1957 but could not be presented upto 18th December, 1957 due to the serious illness of the petitioner's senior counsel Sri Ambika Prasad. The Bench considered this explanation to be sufficient and directed issue of notice. We have to consider whether on the objection taken on behalf of opposite party No. 3 that opinion tentatively formed by Court at the stage of admission should be reviewed by us and it should be held that this petition is liable to be dismissed on the ground of laches and delay. It is true that the petitioner had engaged two counsels and it is not stated that the junior counsel Sri Ganesh Prasad was at any stage ill. Sri Ganesh Prasad, in the course of arguments, however, explained to us that due to the serious illness of his senior he was also very much upset and that resulted in failure in presenting the petition. We think that the explanation is sufficient. Learned counsel for the opposite party also drew our attention to the fact that notice of this petition was given to the Standing Counsel on 30th October, 1957 which date itself fell more than ninety days after the date of the order of the Board of Revenue which was passed on 30th July, 1957. It is true that 30th October was the ninety second day and not the ninetieth day from the date of the order of the Board of Revenue, but that delay of two days again, in the circumstances of the case, would not in our opinion justify our accepting this preliminary objection at this late stage. The Bench which admitted the petition considered that, even for this period, the explanation was sufficient and we do not think that the view of the Bench was such that we should now differ from it and proceed to decide the petition on an entirely contrary opinion. We, therefore, reject the preliminary objection.
(2.) On merits, we have found that the case of the petitioner is very clear and the prayer for the quashing of the proceedings in the revenue courts must he granted. It is the admitted case of the parties that the suit in connection with which the judgments in question were passed by the revenue courts was instituted on 3rd of February, 1953 after the U.P. Zamindari Abolition and Land Reforms Act had come into force. The suit was by opposite party No. 3 for a declaration that he was a tenant of a particular class of this land upto the year 1359F. under Section 59 of the U.P. Tenancy Act. The U.P. Tenancy Act had been repealed by the U.P. Zamindari Abolition and Land Reforms Act by the time the suit was instituted as the ownership rights in the estate had vested in the State Government with effect from 1st July, 1952. As a result of this vesting and the enforcement of the U.P. Zamindari Abolition and Land Reforms Act the rights which opposite party purported to claim under Section 59 of the U.P. Tenancy Act as a tenant if they actually vested in him had been converted into rights as a sirdar under the U.P. Zamindari Abolition and Land Reforms Act. After 1st of July, 1952, therefore, the right in respect of which declaration was claimed in the suit by the opposite party had ceased to exist and for that right had been substituted a new right as sirdar. The U.P. Zamindari Abolition and Land Reforms Act also had a provision for a suit for declaration of such a right. The suit could be instituted under Sec. 229-B for a declaration that the opposite party was a sirdar of this land. In such circumstances this suit under Section 59 of the U.P. Tenancy Act in respect of a right which had already ceased to exist on the date of the suit and for which a new right had been substituted was clearly not maintainable and was not a suit covered by Cl. 2 of the U.P. Land Tenures (Legal Proceedings) (Removal of Difficulties) Order, 1952. Under sub-Cl. (b) of Cl. 2 of that Order a suit could no doubt be instituted in respect of certain rights under the U.P. Tenancy Act after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, but we consider that such a suit could only be in respect of a right which continued after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, in respect of which no remedy was provided in any express provision contained in the U.P. Zamindari Abolition and Land Reforms Act. The present suit by the opposite party was in respect of a right which, as we have indicated earlier, had been converted into a right as sirdar, and a suit of this very nature for claiming that right lay under the provisions of the U.P. Zamindari Abolition and Land Reforms Act under Sec. 229-B of that Act. Consequently, this suit under the provisions of the U.P. Tenancy Act was not maintainable. We may add that the fact that there was an attachment of the land in proceedings under Section 145, Cr. P. C. in no way affects this opinion of ours as even that attachment was made after the U.P. Zamindari Abolition and Land Reforms Act had come into force.
(3.) This suit was dismissed by the trial court but it was decreed by the first appellate court and that decree was upheld by the Board of Revenue. On the view that we have taken, the decrees passed by all the three courts either dismissing or decreeing or upholding the decree in the suit will have to be vacated as being decrees passed in a suit that was not maintainable. The question is what should be the further order passed by us in view of this legal position. One order that could be passed was that the entire proceedings initiated on the presentation of the plaint might be quashed. It has appeared to us that in this case it may not be very appropriate to do. If that course were to be adopted by us, the opposite party no. 3, who was wrongly advised by his legal advisers and who is a minor under the guardianship of a woman, might suffer very seriously as no remedy may be left to him in view of the lapse of time. The second course which we intend to adopt and which appears to us to be more appropriate is to quash the judgments and the decrees passed by the various revenue courts and send back the case to the trial court for necessary final orders on the plaint. So far as the trial court is concerned, there will be two courses open to it. The first is that the opposite party, who was the plaintiff in the suit, may apply for amendment of the plaint so as to convert it into a suit under the proper provision of the U.P. Zamindari Abolition and Land Reforms Act applicable to it in which case it will be for the trial court to decide whether such an application for amendment should or should not be allowed. If no such amendment application is moved or if such an amendment application is dismissed by the trial court, it may still be open to opposite party no. 3 to institute a fresh suit under the appropriate section of the U.P. Zamindari Abolition and Land Reforms Act and claim that the period spent in this present litigation may be excluded when computing the period of limitation, under Section 14 of the Indian Limitation Act. These are all possibilities on which we think we need not express any opinion at this stage, and which should be left open for consideration by the trial court which will be the court competent to deal with the suit brought under the provisions of the U.P. Zamindari Abolition and Land Reforms Act.;