JALESHAR PANDEY Vs. LAGAN PANDEY

JUDGEMENT

(1.) In this case the petitioner, Jaleshar Pandey, seeks a writ under Article 226 of the Constitution for quashing the proceedings and the decree made by the Gram Cutcherry in Title Suit No. 1 of 1955 and also for quashing the order of the Full Bench of the Gram Cutcherry made on appeal.

(2.) The ground for the application is that the suit was with respect to the construction of a house in survey plot No. 534/1209 and the plaintiffs-opposite party had asked for a declaration of their title and recovery of possession of the land. The submission of learned Counsel for the petitioner is that the Gram Cutcherry had no jurisdiction under the Bihar Panchayat Raj Act to hear a suit of this description and, therefore, the proceedings before the Gram Cutcherry are ultra vires and without jurisdiction. The argument is based upon Section 65 of the Bihar Panchayat Raj Act, which states as follows:

(3.) On behalf of the opposite party, the Advocate General referred to the case of A.J. King v. Secretary of State for India, ILR 35 Cal, 394 (B) where it was held by a single Judge of the Calcutta High Court that failure to obtain leave under the Letters Patent was a matter which could be waived and did not take away the jurisdiction of the High Court to hear the appeal. But the authority of this case is doubtful in view of the decision of the Bombay High Court in Devidatt Ramniranjandas v. Shriram Narayandas -ILR 56 Born. 324 : (AIR 1932 Bom 291) (C), where it was held that the words of Clause 12 of the Letters Patent were quito clear and imperative and made the obtaining of leave a condition precedent to the entertainment by the Court of a suit to which that clause applied, and the condition was not one which it was competent for a Court to ignore . or for the parties to waive. It was pointed out by Beaumont, C. J. in that case that the decision of the Calcutta High Court in ILR 35 Cal 394 (B), was not consistent with the view taken by Sir Richard Couch in Hadjee Ismail Hadjee Hub-beeb v. Hadjee Mahomed Hadjee Joosub, 13 Beng LR 91 (D), by Sir Basil Scott in Abdul Kadir v. Doolanbibi, ILR 37 Bom. 563 (E), and by Telang J. in Rampurtab Samruthroy v. Prem-sukh Chandamal, ILR 15 Bom 93 (F).