GURUPRASAD MATADIN SHUKLA Vs. PRITRAM MADHOSINGH

JUDGEMENT

(1.) THIS appeal by the plaintiff is directed against the reversing decree of the lower appeal Court by which his claim for possession of certain malik -makbuza plots specified in the plaint was dismissed.

(2.) DIFFERING from the Court of first instance, it was held by the lower appeal Court that, before passing the impugned order dated 3rd September 1951, the Deputy Commissioner, Land Reforms, did not issue any notice to the defendant as required by rule 4 of the Rules framed under section 91(2)(i), read with section 38 of the Act, that the order did not, therefore, bind the defendant and that he was entitled to resist the plaintiff's claim for possession founded upon it. In my opinion, this contention, which the lower appeal Court was persuaded to accept, proceeds upon a misconception. Sub -section (2) of section 38 of the Act was not a provision which, by itself, gave any right in sir and khudkasht land to any one. It must be read in the light of the sections 4(2) and 38(1) of the Act which were as follows:

(3.) THE result is that this appeal succeeds and is allowed. The decision of the lower appeal Court is set aside and that of the Court of first instance is restored. The defendant shall bear his own costs and pay those of the plaintiff throughout. Counsel's fee here is Rs. 50.