MOHAMMAD SHAFI Vs. GRAM SABHA BISAULI

JUDGEMENT

(1.) This is a Defendant's revision.

(2.) Gram Sabha, Bisauli, District Etawah, instituted a suit against the Applicant, Mohammad Shafi, for demolition of certain constructions made by him over plot No. 861 situate in village Bisauli and for possession of the plot. The Gram Sabha claimed to be the owner of this plot. The suit was dismissed on 9 -12 -1965. The Gram Sabha filed an appeal. During the pendency of the appeal, the State Government issued a notification on 13 -7 -1966 Under Sec. 3(1), UP Town Areas Act, 1914. The notification stated that for the application of the provisions of the UP Town Areas Act, 1914, the Governor was pleased to declare the villages Achhalda, Bisauli and Bodepur, to be the town Area Achhalda with effect from 15 -7 -1966. The Notification gave a list of the plots of these villages which were included within the territorial limits of the Town Area. Plot No. 861 of village Bisauli was included in it. So, with effect from 15 -7 -1966, plot No. 861 of village Bisauli became included in the territorial limits of the Town Area, Achhalda. Thereafter, the Defendant Mohammad Shafi filed an application, praying that the suit be dismissed, because plot No. 861 was no longer the property of the Gram Sabha. The Gram Sabha filed an objection, stating that the rights in this plot continued to remain vested in it. They have not become vested in the Town Area, Achhalda. The suit as well as the appeal have not become infructuous. The learned Civil Judge, Etawah, held that the plot in dispute had been vested by the State Government in the Gaon Sabha, Bisauli. No notification divesting the Gaon Sabha of this plot has been issued by the State Government Under Sec. 117(6), UP ZA and LR Act. So long as such a notification is not issued, the proprietary right of the Gram Sabha in this plot shall continue. The suit and the appeal have, therefore, not become infructuous. The application of Mohammad Shafi was dismissed. Aggrieved at this order, Mohammad Shafi has filed the present revision.

(3.) The Revision came up for hearing before a learned Single Judge. Before him, it was contended that even if the proprietary rights in the plot in dispute have become vested in the Town Area, Achhalda, Order 22 Rule 10, Code of Civil Procedure would apply and the Plaintiff has a right to continue the suit. On this point, the learned Single Judge found a conflict of opinion. In Salik Shukla v/s. Braj Nandan, 1962 AWR 859, Dhavan, J., held that the principle of Order 22, Rule 10 Code of Civil Procedure, can be extended to a case in which the interest of the Plaintiff have vested in the State under the UP ZA and LR Act, during the pendency of the suit. A.P. Srivastava, J., has, on the other hand, taken a contrary view in Karan Singh v/s. Har Lal S.A. No. 2008 of 1952, decided on 17 -10 -1962. He held that Order 22, Rule 10 only allows an assignee of the Plaintiff to continue the suit. It does not lay down that if the Plaintiff has lost rights, it is still open to him to continue the suit and to get a decree, even if he has no right left, on the basis of which he can get it. In cases where the Plaintiff has to establish his title in order to save himself from damages or refund of consideration, it may be permissible for him to continue the suit after impleading the assignee. But, when the rights of the Plaintiff have com? to an end altogether and have vested in the State, a decree in favour of the Plaintiff cannot be maintained. A decree cannot be passed is favour of a person, who has no right to get it. In order to settle this conflict, the learned Judge referred the following question to a Division Bench: