HARI SHANKER Vs. BOARD OF REVENUE U P

JUDGEMENT

(1.) These appeals are directed against the judgment of a Special Bench comprising two learned Judges of the High Court of Judicature at Allahabad in Special Appeal No. 394 of 1970 along with Special Appeal No. 418 of 1970, Writ Petition No. 613 of 1971 and Writ Petition No. 910 of 1971.

(2.) The facts giving rise to these appeals are as follows: Hari Shanker, the appellant before us, is a "land holder" within the meaning of said expression in the United Provinces Tenancy Act, 1939 (referred to hereinafter as "the said Act"). On 1st February, 1961, Hari Shanker filed a suit as contemplated under Sec. 171 of the said Act against one Habib Ahmad, who was his tenant in respect of the land in suit on the ground that in 1943 Habib had sub-let the suit land to his "sub-tenant", Ida, and the said sub-lease was for more than five years and hence illegal and in contravention of Sec. 40 of the said Act. The said suit was contested by Habib but a decree was passed in favour of Hari Shanker in that suit on 18th November, 1961. Under the decree Habib was given an option to apply for the ejectment of Ida within one month and resume occupation of land in dispute in terms of the proviso to Sec. 171. On an appeal filed by Ida, the "sub-tenant", the aforesaid decree was set aside by the Additional Commissioner on 18th April, 1962 and the suit of Hari Shanker was dismissed. Hari Shanker filed a second appeal which was allowed by the Board of Revenue by its judgment dated 13th March, 1963/ 17th April, 1964 and the decree of the Additional Commissioner was set aside and that of the Trial Court was restored. Ida challenged the aforesaid decision of the Board of Revenue by way of Civil Miscellaneous Writ No. 2386 of 1964. That writ petition was dismissed on 26th March, 1970 by a learned single judge of the Allahabad High Court and Special Appeals Nos. 394 and 418 of 1970 were filed in the said High Court against the said judgment of the learned single Judge. After his suit was decreed by the Board of Revenue, Hari Shanker filed an application for execution of the decree in which an objection was filed by the "sub-tenant", Ida, which was dismissed by the Revenue authorities but, we are informed, the said application itself has not been finally disposed of. Habib also filed an application dated 16th August, 1964 against Ida as contemplated under Sec. 171 to the proviso of the said Act. According to Habib, the said application has not so far been decided on merits. Writ Petitions Nos. 613 of 1970 and 9 10 of 1971 were filed by Habib and Ida respectively against the orders passed by the Revenue authorities in execution. The said Special Appeals and Writ Petitions were heard together and decided by a Division Bench of the Allahabad High Court in the impugned judgment.

(3.) It may be mentioned here that it is common ground that Habib is an "exproprietary tenant" for the purposes of Sec. 40 of the said Act and Ida is his "sub-tenant" in respect of the said land within the meaning of the said term in the said Act. The Division Bench of the Allahabad High Court set aside the judgment. of the learned single Judge and allowed the Special Appeals as well as the Writ Petitions. They set aside the order of the Board of Revenue decreeing the suit of Hari Shanker for ejectment of Habib and Ida under Sec. 171 of the said Act and dismissed the said suit. It is against this judgment that the present appeals are directed. As the facts are common and the appeals are against a common judgment, we propose to dispose them of by a common judgment.