HANSRAJ Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS petition is directed against the order of Board of Revenue arising out of suit filed under Section 229 -B/209 of U.P. Zamindari Abolition and Land Reforms Act I of 1951. It is not necessary to mention the facts as the appeal was allowed by Board of Revenue on the question that it was not maintainable because notice issued under Section 80 Civil Procedure Code did not contain the necessary details and the suit was hit by Section 168 -A of U.P. Zamindari Abolition and Land Reforms Act I of 1951.

(2.) NONE of the grounds on which the suit was dismissed appear to be well founded. As regards dismissal of suit for non -compliance of Section 80 Code of Civil Procedure the opposite party does not appear to have raised this controversy before trial court and no issue was framed by it. The question whether notice was served or not was a question of fact and the Board of Revenue committed an error in permitting the opposite parties to raise this question for the first time in second appeal without it having been raised before the trial court and without there being any finding on question of fact. Moreover the Board of Revenue found that in the notice sent on behalf of Petitioner it was mentioned that Petitioner had purchased the land from Hazari who admittedly was the tenure holder. It further found that the notice did mention the cause of action and the relief which the Petitioner wanted to claim. According to it they were not clearly set out. The notice therefore was not only issued but it was served also. The only defect was of absence of details. But this could have been raised by parties to whom the notice was sent and not by a third party. If no notice is sent or served the suit is not maintainable. The objection to maintainability of suit goes to jurisdiction and can be raised by the State or any other Defendant. But where notice has been sent and served the defect in the form or details could be raised by the State only. It could take up the plea that the Plaintiff could not be identified or the subject matter of suit being not clear or cause of action being not clearly stated it could not make out its defence. But this could be done at earliest opportunity to enable the Plaintiff to remove the defect. It could not be taken in second appeal to the prejudice of Plaintiff. What could not be done by party itself could not be done by third party. The defect of details does not go to jurisdiction. In this connection it may not be out of place to mention that Section 80 was amended in 1976 and it was provided that the suit instituted against Government shall not be dismissed by reason, of error or defect in the notice. The name, description and the residence of Plaintiff may be sufficiently indicated to enable the appropriate authority or public officers to identify the person. The amendment may not apply to the case as it was instituted prior to 1976 but it does indicate that defect in notice sent under Section 80 should be construed in a technical manner resulting in dismissal of suit. The other ground on which the appeal has been allowed is that as the transfer was of one of the plots of khata No. 193 which consisted of three plots it was hit by Section 168 -A. Section 168 -A reads as under:(Section 168 -A quoted - -Editor)

(3.) IT shall be seen that this section prevents transfer of a fragment situated in a consolidated area. It does not prohibit transfer of a plot. On the other hand the words in the bracket indicate that the entire plots could be transferred. It appears the Board of Revenue was under the impression that the bar created by this section is in respect of holding as is mentioned in Section 5(1)(c) of U.P. Consolidation of Holdings Act. It has been found by Additional Commissioner that out of three plots Hazari transferred entire plot No. 138. This could not be treated as transfer of part or fragment.