AMAR SINGH Vs. GAON SABHA AND OTHERS

JUDGEMENT

(1.) This defendant's appeal arises out of suit for possession over some trees situate on the plots in suit. The plaintiff -respondent No. 1 alleged that Ranjit Singh, the brother of appellant Amar Singh was the Sabhapati of village Baripur at the time of the abolition of zamindari. The appellant taking advantage of his brother's position filed a declaratory suit after the abolition of zamindari in respect of the plots mentioned in the plaint which were recorded as 'banjar, usar and talab' and which had vested in the Gaon Sabha. In the aforesaid suit Ranjit Singh had admitted the claim of the appellant and the latter obtained a collusive decree in the year 1953. Thereafter the villagers complained to the SDO who passed an order of attachment of the trees in dispute and also passed an order u/S. 212 of the UP ZA and LR Act on 24 -1 -1955 delivering the possession of the trees to the Gaon Sabba. The appellant thereafter filed suit No. 184 of 1956 in the court of Munsif West Allahabad for possession of the plots in suit which was dismissed in the year 1960 and the decision of the trial court was confirmed in appeal. Meanwhile proceedings u/S. 145 CrPC were going on and an order was passed by the SDM on 7 -1 -1959 for the release of the disputed trees in favour of the present appellant. Thereafter an application was moved u/S. 435 CrPC for revising the order of the SDM dated 7 -1 -1959. The Addl. District Magistrate made a reference to the High Court on 14 -5 -1959 recommending the setting aside of the order of the SDM dated 7 -1 -1959. The aforesaid reference was rejected by the High Court on 24 -11 -1959. Thereafter the Gaon Sabha filed the present suit in appeal. It was opposed by the appellant on the grounds inter alia that the trees in dispute had been planted by him along with his brothers and their predecessor in interest and that neither the former zamindar nor the Gaon Sabba had any interest in the said trees; that the final order u/S. 145 CrPC was passed on 5 -11 -1958 and not on 7 -1 -1959 as was alleged by the appellant and, therefore, the suit having been filed beyond 3 years of the passing of the final order was barred by Art. 47 of the Limitation Act. The trial court held that the order of the High Court rejecting the reference dated 24 -11 -1959 was a final order within the meaning of Art. 47 of the Limitation Act and the suit in appeal which was filed on 19 -1 -1962 was within time.

(2.) It may be mentioned that the SDM at first passed an order on 5 -11 -1958. Again on 7 -1 -1959 the Magistrate directed the appellant to be put in possession of the trees in dispute. At first the appellant contended that the final order in the case was the order passed on 5 -11 -1958, but in the course of argument before the trial court it was conceded by the appellant that the final order was the order dated 7 -1 -1959. It appears that village Baripur came under consolidation operations while the present litigation was going on between the parties. It was held in the consolidation proceedings that the land mentioned in the plaint was 'banjar, usar and talab' and it had vested in the Gaon Sabha. The court below expressed the view that the aforesaid decision of the consolidation court had set at rest the question of title about the land in the plaint. With regard to the trees in dispute it affirmed the finding of the trial court that the Gaon Sabba was their owner. It observed:

(3.) It may be that where an order of a Magistrate passed u/S. 145 CrPC is subject to a revision either before a Magistrate or before a Sessions Judge none of them are competent to disturb the initial order of the Magistrate passed u/S. 145 CrPC. All they can do is to make a reference to the High Court. In an application in revision made by a person aggrieved from an order passed by a Magistrate u/S. 145 CrPC, the High Court is not bound to hear the applicant and it may be said that the final order is not the order of this Court rejecting the revision in limine. Where, however, the matter comes before this Court on a reference made to it by a Magistrate or a Sessions Judge, then the powers of this Court could be said to be similar to that of an appellate court and the final order in the matter would be the order passed by this Court and not the initial order of the Sub -Divisional Magistrate. A question similar to the one before me arose in the case of Rampal Singh v/s. Mansukh Rai Khemka ( : 193 Indian Cases 501). In the aforesaid case the plaintiff filed an application in revision before a Sessions Judge who made a reference to the High Court. The High Court rejected the reference. It was contended that the suit was barred be limitation because the final order was the order of the Magistrate and not that of the High Court and since the suit was instituted more than 3 years after the date of the Magistrate's order, it was barred by time. It was observed in that case: - -