Decided on September 30,1965

Ram Jiawan Koeri Appellant
The Board Of Revenue, U.P. Allahabad And Others Respondents

Referred Judgements :-



K.B. Asthana, J. - (1.)This is a petition under Article 226 of the Constitution questioning the validity of an order dated 1.6.1960 passed by a learned Single Member of the Board of Revenue dismissing a second appeal, filed by the Petitioner Ram Jiawan Koeri before it, at the preliminary hearing. It is prayed that the impugned order of the Board of Revenue be quashed by a writ of certiorari.
(2.)Opposite parties numbers 3, 4 and 5 to this petition brought a suit under Sec. 229B of the U.P. Zamindari Abolition and Land Reforms Act for a declaration that they were the sole Sirdars of the agricultural holdings in dispute. They alleged that under a private partition amongst the members of the family the disputed agricultural Holdings had fallen to the exclusive share of the Plaintiffs. Ram Jiawan Koeri, the Petitioner in this petition, who was the Defendant in the suit set up a counter plea that in the private partition amongst the members of the family the disputed holdings had exclusively fallen to his share and he has always been in possession of the same and the Plaintiffs had no right or title in the same. There was no allegation in the plaint and no plea was raided in the plaint that if the Plaintiffs, that is, the opposite parties Nos. 3, 4 and 5 were not found to be the exclusive tenure holders they be declared as the co tenure holders. An Assistant Col lector First Glass who tried the suit dismissed it on the finding that the Plaintiffs had not been able to establish that they were the exclusive tenure holders of the disputed agricultural holdings. On appeal by the Plaintiffs the learned Additional Commissioner on an appreciation of the evidence on record held that the private partition set up either by the Plaintiff or by the Defendant was not established and the disputed agricultural holdings remained the joint property of the members of the family. Accordingly the learned Additional Commissioner allowed the appeal and declared that the Plaintiffs were the co tenure holders along with the Defendant in the disputed holding. The Defendant then filed a second appeal from the decree of the learned Additional Commissioner. One of the main grounds taken in the appeal was that the Plaintiffs not having claimed co tenancy in the disputed holding the learned Additional Commissioner was in error in decreeing the Plaintiffs' suit for a declaration of co tenancy. The learned Single Judicial Member of the Board who heard the appeal at the preliminary hearing, as the impugned order shows, under some misapprehension observed that the Plaintiffs had filed the suit for a declaration of co tenancy rights and then embarked on a discussion of the merits of the case and having held that the finding re corded by the learned Addl. Commr. being a good finding dismissed the appeal. As already said above it is against this order of the Board that this petition is directed.
(3.)I have heard Sri. K.P. Singh, learned Counsel for the Petitioner and Sri. R.B. Misra, learned Counsel for the opposite parties numbers 3, 4 an; 5. At the earlier hearing of the petition on behalf of the opposite party numbers 3, 4 and 5 an objection was raised that Gram Sabha who under the law is a necessary party in a suit for declaration not having been served with the notices of this petition an. the Petitioner having not taken an further step to serve the notices on the Gram Sabha this petition was rendered incompetent. Sri. S.R. Misra, an Advocate of this Court appeared before me at that stage and stated that he has filed the Vakalatnama on behalf of the Gram Sabha. A question then arose that the Vakalatnama which Sri. S.R. Misra had filed was not properly signed by the Sabhapati The hearing of the petition was thereupon adjourned to enable the learned Counsel for the opposite parties number? 3, 4 and 5 to file an affidavit or place any other material before the Court to show that the Vakalatnama filed by Sri. S.R. Misra representing the Gram Sabha, opposite party No. 6, was not a proper Vakalatnama. When the petition was listed again for further hearing after the expiry of the time granted to the learned Counsel of the opposite parties, a statement was made that he had no farther instructions in the matter on behalf of the opposite parties Nos. 3, 4 and 5 and he is not in a position to contest the validity of the vakalatnama filed by Sri. S.R. Misra. The controversy, therefore, in regard to the representation of the Gram Sabha before this Court comes to an end. The objection raised by the learned Counsel for the opposite parties numbers 3, 4 and 5 in this regard is found to be without foundation.

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