Judgment

GUPTA, J.:- In this appeal by certificate granted under Article 133 (1) (a) of the Constitution, the appellants question the correctness of an order of the High Court of Madhya Pradesh at Jabalpur made on a petition under Articles 226 and 227 of the Constitution directing the Board of Revenue, Gwalior, to dismiss a suit under Section 326 of the Gwalior State Quanoon Mal filed by the appellants. The proceedings leading to this appeal started sometime in 1944 and it is unfortunate that it has not been possible as yet to bring down the curtain on the dispute.

2. Briefly the material facts are as follows. The dispute between the parties relates to 220 bighas 16 biswas of agricultural land in village Dhuder, Tahsil Mungaoli, District Guna in Madhya Pradesh. In 1944 and 1945 appellant Hariram and the predecessors in interest of the other appellants as zamindars instituted suits against the respondents under Section 283 of Quanoon Mal for Samvat 2001 and 2002 respectively alleging that the respondents were gair mourusi, meaning non-mourusi, tenants of the aforesaid land and that they had failed to execute a Kabuliyat as required by the section. Section 283, translated into English reads :

"Section 283. Duty to give patta Kabuliyat and suit in the case of refusal.- Every gair dakhilkar tenant should obtain a lease from the malguzar before cultivating the land, and the malguzar should obtain a kabuliyat after granting a lease. If any malguzar or tenant refuses to grant lease or to give kabuliyat the tenant or malguzar can file a suit before the Tahsildar on plain paper in summary jurisdiction and he (Tahsildar) shall after summary enquiry order grant of lease or giving of kabuliyat."

The suit in respect of Samvat 2001 was decreed by the Tahsildar on December 21, 1944 holding that the respondents were gair mourusi tenants. The suit in respect of Samvat 2002 was disposed of similarly on July 1, 1946.

3. The appellants then served notice of ejectment on the respondents on April 15, 1946 in the manner laid down in Section 317 of Quanoon Mal terminating the tenancy from Samvat 2003. Section 317 provides inter alia that on due service of the notice of ejectment the cultivator shall be deemed to have been dispossessed from the 15th day of May or after harvesting of the crops standing on the field when the notice was served. On January 2, 1947 the appellants filed a suit for restoration of possession against the respondents under Section 326 of Quanoon Mal alleging that on July 14, 1946 the respondents had forcibly obstructed them from cultivating the land from which the respondents stood dispossessed from 15-5-1946. Section 326 provides inter alia that cases of unlawful disturbance of possession in respect of agricultural land would be decided summarily. On October 24, 1949 the Tahsildar made an order in the suit directing the plaintiffs to have the status of the tenants adjudged by a separate suit and stayed the suit for possession meanwhile. Against this order, the appellants went up in revision before the Revenue Commissioner, Gwalior Division who by his order dated August 28, 1950 remanded the matter to the Tahsildar holding that it was for the Tahsildar himself to determine the status of the tenants in the suit for possession The suit was decreed ex parte on November 28, 1950 inter alia on the findings that the respondents were gair mourusi tenants and they had trespassed on the land as alleged in the plaint.

4. A few months thereafter the respondents applied for setting aside the ex parte ejectment decree. Then followed a series of proceedings before the Tahsildar and all the hierarchy of authorities, the Sub-Divisional Officer, the Commissioner, Gwalior Division, and the Board of Revenue, Madhya Pradesh, in the course of which the ex parte decree came to be set aside and affirmed in turn several times. Ultimately the Board of Revenue by its order dated September 21, 1966 held that the decree was passed without notice to the responde