Chaturvedi, J. - (1.) THIS is a petition under Article 226 of the Constitution challenging the legality of an order passed by the Board of Revenue.
(2.) THE Petitioners were zamindars of the plots in suit and one Ram Datt was the tenant. Ram Datt died in 1944 and the case of the Petitioners is that he died heir -less and the plots reverted to the Petitioners. The Respondents, however, filed a suit under Section 59 of the UP Tenancy Act for a declaration that they were the tenants of the plots in question as they were the heirs of Ram Datt deceased. The suit was dismissed by the trial court and also by the Addl. Commr. in appeal. The date of decision of the Commr. is 13 -9 -1946. After the dismissal of the suit, the Petitioners, as zamindars, filed a suit against Respondents Nos. 3 -25 for their ejectment under Section 180 of the UP Tenancy Act. This suit was decreed by the trial court on 26 -1 -1949 and an appeal filed by the Respondents was dismissed on 7 -3 -1949. There was a Second Appeal before the Board of Revenue and the Board of Revenue dismissed the Second Appeal on 13 -1 -1951. A review application filed by the Respondents was also dismissed on 22 -10 -1951. On 17 -7 -1951 the Respondents filed an application before the Board for leave to appeal to the Supreme Court. Notices were ordered to be issued and the application was decided nearly four years after it had been filed the date of decision being 31 -3 -1955. In the meantime the UPZA and LR Act had come into force on 1 -7 -1952. The Board held that there was no valid ground for granting leave to appeal to the Supreme Court but it was of the view that because of the pendency of the application for leave to appeal to the Supreme Court Rules 4 and 5 of the UPZA and LR Rules applied to the case and they ordered "all proceedings shall be abated". After this, the Respondents made an application under Section 144 of the Code of Civil Procedure for regaining the possession of the plots on the ground that the suit itself had been declared to have abated and the Petitioners having obtained possession of the plots in execution of the decree, the Respondents were entitled to regain possession. Objections were taken on behalf of the Petitioners to the application under Section 144 of the Code of Civil Procedure and the case appears to have been argued before the executing court by learned Counsel of this Court. The executing court, it appears, was inclined to take the view adverse to the Petitioners. It was after this that the present petition was moved on 11 -11 -1955. The main prayer contained in the petition is that the order of the Board of Revenue abating the proceedings be quashed and that a writ of mandamus be issued to the Respondents not to enforce the order of the Board of Revenue. Learned Counsel for the Petitioners urged two points in support of the petition. The first submission is that the application for leave to appeal to the Supreme Court filed by the Respondents before the Board of Revenue does not fall under Rule 5 of the UPZA and LR Rules, because it was an application which was filed after the expiry of the period of limitation and should, therefore, be considered as not pending. The other point is that it was not open to the Board of Revenue, while hearing an application for leave to appeal to the Supreme Court, to declare the suit itself and all subsequent proceedings to have abated. Learned Counsel for the Respondents has urged that this petition should be dismissed as it was filed after an undue delay and also because another remedy of filing a fresh suit is open to the Petitioners. He has also controverted the submissions of the learned Counsel for the Petitioners.
(3.) WE shall deal first with the two preliminary objections just mentioned. The relevant facts as regards the first objection are that the impugned order of the Board of Revenue was passed on 31 -3 -1955 and the date of concurrence is 9 -4 -1955. An application under Section 144 of the Code of Civil Procedure was filed before the Judicial Officer on 26 -4 -1955 and notice of this application was ordered to be issued on 29 -4 -1955. The Petitioners filed an objection to the application and arguments in the case were heard by the Judicial Officer on 18 -10 -1955. It is after the arguments had been heard that the present petition was filed. The contention of the learned Counsel for the Petitioners is that the order of the Board of Revenue was an ambiguous order and it was interpreted by their counsel to mean that the order was really in favour of the Petitioners. The Board of Revenue nowhere said that the suit and the decrees passed in the suit had abated. What the Board of Revenue said was "all these proceedings shall be abated." These proceedings could be understood to mean the proceedings instituted by the Respondents by filing an application for leave to appeal to the Supreme Court. The order was such that it could have misled the Petitioners and their counsel and it is possible that the misunderstanding was removed when the case was argued by the learned Counsel before the Judicial Officer in October, 1955. The present petition was moved within a reasonable time of that date. We are consequently of the view that the petition should not be dismissed on the ground that it was filed after an undue delay. The other preliminary objection that the abatement of the suit does not debar the Petitioners from filing a fresh suit, and another remedy being open, this petition should not be entertained, does not appeal to us. The Petitioners filed the suit as far back as the year 1946. After a prolonged litigation the decrees passed in their favour were confirmed by the Board of Revenue on 13 -1 -1951. To throw them back to another suit now would cause a great hardship to them. On the facts of the case, it cannot be sad that the remedy of filing a fresh suit is either adequate or equally efficacious.;