M.P. Mehrotra, J. - (1.) This second appeal arises out of a suit for possession over the disputed house and for recovery of damages from the defendants. The brief facts are these: The plaintiff-respondent purchased a dilapidated house from one Ramadhin by a registered sale deed dated 25th June, 1946. Thereafter the plaintiff built a new house in the year 1951 and afterwards. On 30th June, 1959, the plaintiff granted a licence to the Gaon Panchayat, Pura through the then President, Shri Krishna Prasad Agni to house the Pura Primary School on the undertaking that the building of the school which was then under construction as and when completed would house the school and the plaintiff's house would then be vacated. The licence was granted free of charge. Subsequently, the school building was constructed but the primary school never shifted in it and the plaintiff's house continued to be in occupation. Subsequently, the primary school began to be run by the Zila Parishad, Kanpur. The licence was terminated through the notice dated 12th August, 1969 which was served on the defendants on 14th August and 18th Aug., 1969 respectively. The defendants did not vacate the house. Hence the plaintiff sought the possession of the house and claimed damages for use and occupation at the rate of Rs. 50/- per month with effect from 15th October 1969 onwards. Originally, the two defendants in the suit were the Zila Parishad which was impleaded as the defendant No. 1. Gaon Samaj, village Pura through Shri Sheokumar Dixit was impleaded as the defendant No. 2. Subsequently, by amendment instead of Gaon Samaj, Gaon Sabha was substituted as the defendant No. 2. The defendants filed separate written statements. Various pleas were taken but the main dispute was about the plaintiff's ownership of the house in question. It was contended that no house was purchased by the plaintiff from Ramadhin but it was merely open land which was purchased. It was denied that the plaintiff had constructed the house in question. On the other hand, it was asserted that the house had been constructed by the village people by raising donations. It was denied that any licence was granted by the plaintiff to the Gaon Panchayat through Krishna Prasad for running a primary school. It was, however, admitted that the school was being run by the Zila Parishad. The suit was said to be bad on account of the defect in the notice and it was said to be barred under Section 257 of the Kshetra Samitis and Zila Pari shad Adhiniyam and S. 106 of the U.P. Panchayat Raj Act. Both the courts below have decreed the plaintiff's suit. Now, the defendants have come up in the instant appeal and in support and in opposition thereof I have heard learned counsel for both the sides. In support of the appeal it has been contended that the suit was had for want of proper notice under S. 106 of the U.P. Panchayat Raj Act. It was contended that as the suit was initially against Gaon Samaj, which was a non-existent body, therefore, amendment could not be allowed to bring on record Gaon Sabha in the place of Gaon Samaj and the suit should be treated as a nullity being in the nature of one against a dead defendant. It was next contended that the sale deed dated 25th June, 1946, executed by Ramadhin in favour of the plaintiff, Ram Bharosey, was not a legal or enforceable document as Ramadhin had no saleable interest in the property being a mere licencee, and under S. 56 of the Transfer of Property Act the licensee had no power to transfer his interest. Learned counsel next contended that wajib-ul-arz was misinterpreted by the courts below. Counsel placed reliance on the following cases : Sri Girdhari Ji Maharaj v. Chote Lal ( (1898) ILR 20 All 248) ; Mt. Aisha Begum v. Daulat Singh (AIR 1927 All 471) ; Ram Bharosey v. Qamar Zamani Begam (AIR 1927 Oudh 314) ; Mt. Azmat-Un-Nissa v. Ganesh Parshad (AIR 1925 Oudh 262) ; Ram Charan v. Ramadhar (AIR 1948 All 327) ; Hirday Narain v. Babu Ram (AIR 1948 Oudh 172) ; M. M. B. Catholicos v. M. P. Athanasius, (AIR 1954 SC 526) ; Budhan Singh v. Nabi Bux, 1961 All LJ 536 : (AIR 1962 All 43) (FB) ; Ram Kumar v. Dominion of India (AIR 1952 All 695) ; . Purushottam & Co. v. Manilal & Sons (AIR 1961 SC 325) .
(2.) On behalf of the plaintiff-respondent it was contended that the suit was not bad for want of a proper notice under S. 106 of the U.P. Panchayat Raj Act. It was contended that the notice dated 12th August, 1969 which was addressed to Gaon Samaj through its President, Shri Sheo kumar Dixit, was a good notice in law and it should be deemed to have been given to the Gaon Sabha. In any case, it was properly served on the President. Therefore, the notice should he held to be good in law. Reliance has been placed on S. 273 of the U.P. Kshettra Samities and Zila Parishad Adhiniyam, 1963 whereby Sections 113 to 116 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 were deleted and S. 117 was amended.
(3.) Learned counsel placed reliance on certain cases which will be noticed in detail hereafter.;