R.L. Gulati, J. - (1.) This is a petition Under Article 226 of the -Constitution.
(2.) The Petitioner instituted four suits against the Respondents 4 to 8 Under Sec. 209 of the UP ZA and LR Act on the allegation that she was the sirdar tenant of the land in suit and that the Respondents had trespassed in the year 1367 F. The Respondents contested the suits on the plea that the land in suit was part of their holding and they themselves were sirdar -tenants. The trial court dismissed the suit on two grounds: (1) that the lease in favour of the Plaintiff had not been proved and (2) that the land in suit was not identifiable. On appeal the Addl. Commr., Allahabad held that the lease had properly been proved but he dismissed the appeals on the ground that the land was not identifiable. The Petitioner then appealed to the Board of Revenue. The Board of Revenue endorsed the finding of the lower appellate court that the lease had properly been proved but it has also dismissed the appeals on the ground that the land in suit was not identifiable. It has directed the Petitioner to take proceedings of demarcation and thereafter to file a suit Under Sec. 209 of the UP ZA and LR Act (hereinafter referred to as the Act,) in case a trespass is found after demarcation.
(3.) The Petitioner had already taken proceedings for the demarcation of the land Under Sec. 41 of the Land Revenue Act. These proceedings were dismissed on the ground that as the Applicant was not in possession of the entire area in dispute she wanted to be demarcated, as such, no demarcation could be carried out. This order was passed by the S.D.O., Kanpur and is dt. 31 -6 -1961. She then filed an appeal against that order in the court of the Addl. Commr., Allahabad. The Addl. Commr. held that the Petitioner had not disclosed any dispute regarding demarcation of land and unless there was a dispute about the demarcation, no application Under Sec. 41 of the Land Revenue Act was maintainable. He dismissed the appeal on 31 -5 -1962. It is thereafter that the Petitioner filed the suit Under Sec. 209 of the Act. In these circumstances, it was futile for the Board to have directed the Petitioner to institute proceedings for demarcation and thereafter to file a fresh suit. Such proceedings were bound to fail and the Petitioner's second suit for ejectment was likely to become time -barred. Moreover, proceedings Under Sec. 41 of the Land Revenue Act are only summary proceedings and they are meant only to facilitate the work of the Revenue Courts. They are not condition precedent for the maintainability of a suit Under Sec. 209. The Petitioner had done all that lay in her power before coming to the Court but the proceedings Under Sec. 41 of the Land Revenue Act proved abortive. In these circumstances it was the duty of the courts to proceed with the case.;