T.S.Misra, J. - (1.) Jai Shanker and Raj Bahadur filed a suit No. 195 of 1963 against Gram Samaj of village Akrabad and others for an injunction to restrain the defendants from realising a sum of Rs. 1,275/- or any other sum in pursuance of the order dated 25th May 1963 passed by the Sub-Divisional Officer. This suit was dismissed by the trial court. The plaintiffs filed an appeal against the said decision. That appeal was also dismissed. The plaintiffs have now come to this court in second appeal No. 2047 of 1965. Against Jai Shanker and Raj Bahadur Gram Sabha, Akrabad also filed a suit No. 398 of 1965 for the recovery of Rs. 2,500/- on account of damages and for injunction to restrain them from interfering with the plaintiff's right to give the weighment theka. This suit was decreed as prayed, whereupon the defendants filed an appeal which was allowed and the suit was dismissed. Against the said decision Gram Sabha, Akrabad has now come to this Court in Second Appeal No. 181 of 1968. In both these appeals common questions of law and fact are involved. Hence the same are being disposed of by a common judgment.
(2.) In order to appreciate the contentions raised by the parties it would be necessary to narrate the relevant facts. Gram Akrabad gave a Theka for the years 1962-63 to Mangal Sen, who was impleaded as defendant No. 4 in suit No. 195 of 1963, for a sum of Rs. 1,225/- to weigh the produce of the farmers who brought their produce to the bazar which has vested in the Gram Sabha. Jai Shanker and Raj Bahadur are the residents of that village and carry on business of a that in the said bazar. In connection with their business they weighed the goods of their dealers who brought grain and other articles from outside for sale in the bazar. Mangal Sen in pursuance of that Theka asked Jai Shanker and Raj Bahadur to desist from weighing the goods in the bazar. But the later failed to do so whereupon a complaint was lodged with the Sub Divisional Magistrate, who took action against them under Section 122 (b) of the U. P. Zamindari Abolition and Land Reforms Act and passed an order on 25th May, 1963 directing Jai Shanker and Raj Bahadur to pay a sum of Rs. 1,225/- towards damages and Rs. 50/- towards cost of the case, Gaon Sabha wanted to realise the said amount from Jai Shanker and Raj Bahadur whereupon they filed the suit No. 195 of 1963 alleging, inter alia, that they had a right to carry on the business of weighing the goods of the dealers who brought them for sale in the bazar and neither the Gaon Sabha nor the S. D. M. had any right to restrain them from doing so. That suit was dismissed and the appeal therefrom was also dismissed whereafter Gaon Sabha wanted to give weighment theka for the years 1963-64 and 1964-65 but Jai Shanker and Raj Bahadur threatened not to recognise the rights of the Gaon Sabha and continued to weigh the goods as a result of which no person came forward to take the theka. The Gaon Sabha contended that it was thereby put to a loss of Rs. 3,000/- but it filed a suit against Jai Shanker and Raj Bahadur for the recovery of Rs, 25,000/- only. It also felt that other shop-keepers of Akrabad were colluding with Jai Shanker and Raj Bahadur and, therefore, the suit was filed by the Gaon Sabha under Order 1, Rule 8, C. P. C. claiming injunction. That suit, as pointed out above, was decreed but the appeal therefrom was allowed and the suit was dismissed.
(3.) The first contention which was pressed before me on behalf of the Gaon Sabha was that the weighment dues are 'Sayar' as held in the case of Suraj Pal v. Jawahar Singh, AIR 1933 Alld. 310 . It was submitted that the right to collect 'Sayar' vested in the State under Section 6 of the U. P. Zamindari Abolition and Land Reforms Act and subsequently it vested in the Gaon Sabha under Section 117 of the said Act. It was also submitted that under sub-clause (e) of Sub-sec. (1) of Section 37 of the U. P. Panchayat Raj Act the Gaon Sabha is empowered to levy fees on persons exposing goods for sale in market, hat or melas belonging to or under the control of the Gaon Sabha. It is not disputed that the bazar of Akrabad belongs to and is under the control of the Gaon Sabha. In view of these provisions it was urged that the Gaon Sabha has had a right to recover weighment dues which are 'Sayar' in nature and at any rate the Gaon Sabha has a right to levy fees on the persons exposing goods for sale in the market. It was also urged that the Gaon Sabha has a right to control trading on its own land and in its market and for the purpose it may or may not permit a person to carry on a particular business on its land or market.**;