RADHARANI ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE only point I have been called upon to decide in this appeal by the defendants from an appellate judgment and decree of affirmance dated September 22, 1955 is if the suit by the State of West Bengal (out of which the instant appeal arises) concerning 25'xl2' "side-land" of Grand Trunk Road is bound to fail in view of the National high Ways Act, 48 of 1956, come into force on April 15, 1957 and providing by its fourth section and schedule that grand Trunk Road, now a national high way, and land appurtenant thereto vest in the Union.

(2.) I was seized of just this point in another litigation: appeal from appellate decree No. 956 of 1956. Delivering judgment on January 30, 1962 refused to depart from the general rule: a court of appeal in considering the correctness of the judgment under appeal will confine itself to the state of the case at the time such judgment was rendered and will not take notice of anything which has arisen subsequently. I refused, because that would have prolonged the stay of a right-less one and prolonged injustice too instead of having sub-served the ends of justice. But I did not stop there. I held further that Order 22, rules 10 and 11 of "vide notification S. R. O. 1180, New delhi-2, the 4th April, 1957. the Procedure Code would be attracted, the case being one of statutory devolution of interest, and that no question could therefore arise of the lis being defeated.

(3.) ON the authority of a special bench decision of the Nagpore High Court: chhote Khan v. Mohammad Obedulla khan, (I) A. I. R. 1953 Nagpore 361, mr. Roy appearing for the appellants, contends that the court is bound to take notice of the changed legal position as a result of the National Highways Act, 48 of 1956 (hereinafter referred to, for brevity's sake, as the Act ). He contends too that the Act creates "an altogether new right", "an independent right", in favour of the Union, wipes out the rights of the State of West bengal (the plaintiff respondent hereinafter referred to as the State) and makes the pending litigation (as here)by such a right less suitor liable to be dismissed. Mr. Majumdar, appearing for the State, argues on the line of what i held in the other appeal and refers in particular to the absence of any provision in the Act about pending litigation.