JUDGMENT

KAILASAM, J.:— This appeal is preferred by the State of Uttar Pradesh by Certificate granted by the High Court of judicature at Allahabad on 18-5-1980 (?) in SC Appeal No. 105 of 1966 against its judgment and decree dated 25th August, 1965 passed by it in first appeal No. 27 1951, dismissing the suit filed by the State of Uttar Pradesh.

2. The State of Uttar Pradesh filed suit No. 109 of 1949 in the Court of Civil Judge, Gorakhpur against the respondent Ata Mohd. for a mandatory injunction directing the respondent to remove his material and construction and to clear the land and the plot No. 227 in Mohalla Purdilpur in the City of Gorakhpur and for a decree for possession over the land measuring 45 x 20. The Civil Judge, Gorakhpur dismissed the suit by judgment and decree dated 3-10-1950. The plaintiff preferred first appeal No. 27 of 1951 to the High Court of Allahabad. The appeal was heard by a Bench of two Judges but on a difference of opinion, the matter was referred to the third Judge. In accordance with the view of the majority, the appeal preferred by the plaintiff, was dismissed by its judgment dated 25th August, 1965. On a certificate granted by the High Court under Art. 135 of the Constitution and also Article 133 (1) (c) of the Constitution, the present appeal in this Court was filed by the plaintiff/appellant.

3. The facts of the case are briefly as follows : The plot in dispute is plot No. 227 measuring 45 x 20 adjoining Patri along with the road running from Golgarh to Alinagar in Gorakhpur. The respondent Ata Mohd. applied to the Municipal Board, Gorakhpur, for grant to him of a lease in the year 1939. The Board declined to grant him lease.. The respondent again applied on 10-10-1945. The Municipal Board passed a resolution on 24-11-1945, granting to the respondent the lease and forwarded the resolution to the District Magistrate to accord his approval who on 8-3-1946 approved the resolution of the Municipality. On 12-4-1946, the respondent executed a Kabuliyat in favour of the Municipal Board, Gorakhpur. On 23rd April, 1946, the respondent applied for permission to construct a house and submitted a plan for sanction. The plan was sanctioned by the Municipality on 8th May, 1946.

4. On receipt of certain representations on 10-6-1947, the District Magistrate directed the Chairman of the Municipal Board not to allow the construction till a decision was taken on the construction till a decision was taken on the question. On 13-6-1947, the Chairman Municipal Board directed the respondent not to proceed with the construction of the house. The State Government on being satisfied that the resolution regarding the grant of the lease was not within the competence of the Municipality, directed the Commissioner to cancel the lease granted in favour of the Respondent. The Executive Officer, Municipal Board, issued a notice on 13-7-1948 to the respondent cancelling the lease and called upon him to remove the construction and deliver vacant possession within 15 days of the receipt of the notice. The respondent filed a suit No. 86 of 1948 for an injunction restraining the Municipal Board from demolishing or otherwise interfering with the construction made by him on the disputed land. The Civil Judge, Gorakhpur, decreed the suit as prayed for. The present suit out of which this appeal arises was filed by the State of Uttar Pradesh subsequently in 1949.

5. In the plaint the State of U. P. submitted that plot No. 227 is Nazul land and is the property of the Government. It described the disputed land as adjoining the Patri of the Municipal Board running from Golgarh crossing to Alinagar and situated beyond the limits of the road and Patri. According to the Government, the Municipal Board without knowing the true position of the land passed the resolution on 24 -11-1945 to lease the portion of the land in favour of the defendant. In paragraph 10 of the plaint the State of U. P. alleged that the Government or the District Magis