MUNNALAL MATHUR Vs. BHAGWAN PRASAD

JUDGEMENT

(1.) THIS is second appeal of 1977. It arises out of a suit instituted in the year 1972. In this appeal plaintiff -respondents have preferred an application LA.IV for amending the plaint. The entitlement in that regard is based on the provisions of Madhya Pradesh Samaj Ke Kamjor Vargqn Ke Krishi Bhumi Dharakon Ko Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976. At the Bar there is a congruance of submissions and that is validly and rightly made because of decision taken by me in two similar cases - - one is of Garjibai v. Kashinath & another in F.A.No.28 of 1990 decided on 1.8.1991 and other is Babulal F.A.No.49 of 1990 decided on 15.3.1991. In such cases, I have taken the view, the statuttJry right envisaged under the Adhiniyam having become enforceable after institution of the suit on the enactment of the Adhiniyam, the Plaintiff has a valuable right secured to him for amending the plaint to enforce the right under the Adhiniyam . The prayer in that regard would be bona fide and was to be allowed. I also held that before ' anything else is or can be done the lower Appellate Court would be required to first record the finding of fact on the ingredients of the entitlement of the plaintiff contemplated under the Act in terms of Clause (c) and (1) of section 2 of the Act.

(2.) A remand for retrial of the suit was, therefore, to be made I do not think if today I have to deal with this in a different manner. I am bound by my decision and nothing has been pointed out to me to take a different view in this matter. LA.IV of 1990 filed in this appeal along -with the records shall go to the lower Appellate Court where necessary amendments shall be carried out in the plaint and when that is done opportunity shall be allowed to the defendant -respondent to amend their written statement suitably if so advised thereafter an issue shall be struck on the maintainability of the suit and for the plaintiff to pursue appropriate remedy in terms of section 5 of the Act. I direct further that if it is held by the Court below that the plaintiff is entitled to the benefit of the Adhiniyam the plaint shall be returned to him for approaching the Sub -Divisional Officer for determining his claim under section 6 and 7 of the Adhiniyam aforesaid treating the plaint as an application made under section 5 of the Adhiniyam. However, if a contrary view is taken the decree passed shall stand affirmed and in that case it shall be open to the defendant -appellants to agitate his grievance afresh in this Court. In terms of the above direction the appeal stands allowed and no order is made as to costs. Records shall go down at once to the lower Appellate Court for disposal afresh of the appeal in accordance with the directions herein above made. Acopy duly authenticated df the LA.IV shall also go to the lower Appellate Court.