RAGHUNATH DAS Vs. BABU DAYA SARUP

JUDGEMENT

(1.) The fasts of the case have been set out in the referring order. The landlord-applicant Daya Swamp filed an application Under Section 4, U. P. Encumbered Estates Act, in the year 1985, which was, in due course, sent by the Collector to the Special Judge, 2nd Grade, Bijnor. Tue learned Special Judge decided an objection which had been filed Under Section 11 on 12th August 1938. Thereafter, on 26th April 1940, he decided the claims and passed decrees Under Section 14 of the Act. It was not till the year 1944, that a fresh objection was preferred by Mt. Tarawati, daughter of the landlord-applicant Under Section 11, claiming that certain items of property mentioned in the notice belonged to her which had been gifted to her by her father before he had filed the application Under Section 4. This objection was dismissed by the learned Special Judge on 11th November 1944. Within one month of this dismissal the landlord applicant filed an application Under Section 20, U. P. Encumbered Estates Act, for quashing the proceedings. This application was rejected by the learned Special Judge on 28th April 1945. The learned Judge relied on a decision of the Avadh Chief Court in Tn.Sheo Mangal Singh v. James Own, A. I. R. (31) 1944 Avadh 277 : (1944 O. W. N. 297). There was an appeal against that order before the learned District Judge of Moradabad, who, on 24th January 1946, allowed the appeal, granted the application and directed that all proceedings be quashed. It is against this order passed by the District Judge that this second appeal from order was filed in this Court.

(2.) At the time when the cage came up before the Division Bench, reference was made to the two decisions of this Court, one of them being a reported case in Ganga Sahai v. Mt. Nafis Bano, I. L. R. (1946) ALL. 588 : (A. I. R. (33) 1946 ALL. 508). In that case the Court had held that Section 20 gave an option to the landlord applicant to have the proceedings quashed even after decrees had been passed by the Special Judge Under Section 14 of the Act, so long as he filed his application within 30 days of an order Under Section 11 determining an objection either in favour or against the landlord applicant. This view was followed by another Division Bench. That decision has not yet been reported. It is, how ever, Dr. Brij Bhukhan Saran v. B. Ram Krishna, (S. A. F. O. No. 33 of 1945, dated 13th December 1948). Learned counsel had cited certain cases of the Avadh Chief Court and had specially relied upon the Full Bench decision of that Court in Gur Charan Lal v. Shiva Narain, 23 Luck. 40 : (A. I. R. (35) 1948 Oudh 162 ). The Bench referring this case thought that it was desirable in view of the difference of opinion between the Avadh Chief Court and the Allahabad High Court that the question was decided by a larger Bench.

(3.) The case has thus come up before us, and we have very carefully considered the decision of the Full Bench of the Avadh Chief Court just quoted. The decision of the Avadh Chief Court is by a Bench of three Judges, and though it would have been better if the present case had been heard by a larger Bench, yet in view of the fact that this Bench is not bound by the aforesaid decision and ours would be a decision of a Full Bench of three Judges after having taken into consideration the decision of the Avadh Chief Court mentioned above and it would bind the other Division Benches of this Court, we have decided not to refer this case to a larger Bench but to proceed with the consideration of the point raised.