KESHOTE, J. - (1.) THE matter is placed on the application filed by the respondent No. 1 praying therein for early listing of the appeal. THE appeal is not admitted. THE appeal is taken up for admission.
(2.) THE suit has been filed by the plaintiff appellant for declaration and permanent injunction against the defendant respondents in the trial court. The facts of the case are that the plaintiff appellant purchased a `kachcha' house on land measuring 40' x 40' on 23. 12. 1987 from Sultan and Madan Harijan of Village Atru, through a registered sale deed and thereafter he got constructed `pucca' house thereon. The Sarpanch, Gram Panchayat Atru, allotted land of public way measuring 13' x 27' to the defendant respondents No. 1 and 2 and they started construction work on the land 40' x 10' in North of plaintiff's house encroaching upon the land of public way. The result thereof would be the closure of the gates of the rooms of the house of the plaintiff appellant towards the northern side. The learned trial court issued summons of the suit which were served on the defendant respondents. It is not in dispute that the defendant respondent No. 3 has not contested the suit meaning thereby nobody put appearance on its behalf in the suit. The learned trial court passed the order to proceed ex parte against it. The suit has only been contested by the defendant respondent No. 1 and 2. On the basis of the pleadings of the parties, the learned trial court framed thereon as many as five issues. The issue No. 4 is relevant for the decision of this appeal, which reads as under, "aaya GRAM PANCHAYAT KO VIDHIWAT NOTICE DIYE JAANE SE VAAD NIRASTNIYA HAI. "
(3.) ON behalf of the plaintiff appellant two witnesses were examined. The defendant respondents No. 1 has produced evidence in the suit. The learned trial court decided the suit on 28th of August, 1990. All the issues including the Issue No. 4 have been decided in favour of the plaintiff appellant. The defendant respondent No. 3, the Gram Panchayat, Atru, has not challenged the judgment of the learned trial court. The defendant respondents No. 1 and 2 filed appeal. Before the appellate court they made challenge only to the finding of the learned trial court on Issue No. 4 meaning thereby they accepted the findings recorded by the learned trial court on other issues. Thus, it is no more in dispute that the land in dispute was allotted by the Gram Panchayat to the defendant respondents No. 1 and 2 which is part of the public way. The learned counsel for the plaintiff appellant contended that the provision for giving the notice to the Gram Panchayat is a provision of no value, force, effect and concerned. The legislature incorporated this provision in the Act, the purpose behind it is to let know the Gram Panchayat what is the grievance of the litigant/citizen against it and may have time to consider and decide the same. The learned counsel for the appellant submits that seldom any notice is responded by the Gram Panchayat and thus it is a provision in futility. ;