THAKUR PD. Vs. BOARD OF REVENUE AND ORS.

JUDGEMENT

(1.) THE Petitioner filed a suit Under Section 209 of the UP ZA and LR Act against Respondent No. 2, for his eviction from plot No. 723/1. This suit was resisted by the Respondent No. 2, inter alia, on the ground that it was barred by limitation. The trial court held that the suit was not barred by limitation and decreed it. The decree of the trial court was upheld by the Additional Commissioner in appeal. Thereupon the Respondent No. 2 filed a second appeal before the Board of Revenue. The Board of Revenue has held that the suit was time barred and has dismissed the same. The judgment of the Board of Revenue is challenged in this writ petition.

(2.) THERE is no dispute regarding the facts relating to the plea of limitation. The limitation for a suit Under Section 209 is six years. In the present case it will be computed from the 1st July, following the date of occupation by the trespasser. Admittedly, these six years were completed on June 30, 1966 and the suit should have been filed on July 1, 1966. The suit, in fact, was filed on August 6, 1966, about a month and six days after the expiry of the period of six years. The Petitioner claimed the exclusion of the period of two months required for giving a notice Under Section 80, Code of Criminal Procedure to the State Government. This claim was made Under Section 15(2) of the Limitation Act, 1963. The trial court held that the Petitioner was entitled to exclude the period of the notice Under Section 80, Code of Civil Procedure and held the suit to be within time. The Additional Commissioner also held the suit to be within time. The Board of Revenue, following its earlier decision in Rajjab v. Shamsher Khan, 1969 RD 368, held that the period of notice Under Section 80, Code of Criminal Procedure could not be excluded from the period of limitation and accordingly, held that the suit was barred by time. Learned Counsel for the Petitioner has contended that the view taken by the Board of Revenue is manifestly erroneous in law. Sub -section (2) of Section 209 provides that every Suit Under Section 209(1) relating to land referred to in Clause (a) of Sub -section (1), the State Government shall be impleaded as a necessary party. In view of this provision it cannot be disputed that the State Government was a necessary party to the suit. The Petitioner did, in fact, implead the State Government as a Defendant to the suit. Before instituting the suit the Petitioner gave a notice Under Section 80, Code of Criminal Procedure to the State Government. The contention of the learned Counsel for the Petitioner is that since the State Government was a necessary party to the suit, it was incumbent upon the Petitioner to implead the State Government and to give a notice Under Section 80 Code of Civil Procedure, to the State Government. That being so, he has contended, that the period of notice must be excluded in computing the period of limitation for filing the suit. There is considerable force in this contention. The plane language of Section 80, Code of Criminal Procedure supports this contention. Leaving out the words not necessary for the purposes of this case Section 80, Code of Criminal Procedure reads thus:

(3.) THE earlier decision of the Board of Revenue in Rajjab v. Shamsher Khan is manifestly erroneous in law. It was held in that case that Section 15(2) of the Indian Limitation Act was not applicable to suits under the ZA and LR Act. It was, further, held that Section 80, Code of Civil Procedure, applies to cases other than those under the UP ZA and LR Act. The view taken by the Board of Revenue in this case is directly contrary to the decision of this Court in Bans Bahore v. State of U.P., 1969 AWR 219. The decision of this Court was cited before the Board of Revenue in that case and it has by some curious process of reasoning given a decision directly contrary to the decision of this Court. The Board of Revenue in the present case has committed a manifest error of law in following its earlier decision.