The National Highways Act, 1956, provided for a statutory devolution of Grand Trunk Road and its appurtenant land from the State of West Bengal to the Union, and Order 22, rules 10 and 11 of the Code of Civil Procedure applied to the pending litigation between the State and the appellants, allowing the State to continue the suit and binding the Union to the result of the appeal.

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.

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.

3. I have considered the matter afresh irrespective of my previous decision, as I assured Mr. Roy, I would. But before I proceed further, the central fact of this litigation be emphasized. The appellants are trespassers as respects the land in controversy here appurtenant to Grand Trunk Road. Their trespass dates from June, 1945 or thereabout. That is the finding come to by both the courts a finding which has not been challenged and is incapable of being challenged either.

4. VMR. Roy states his proposition too broadly when he submits that the court is bound to take cognizance of every changed legal position. That will necessarily depend on what the changed position at law is. In the Nagpore case Mr. Roy relies on a law of expropriation, the Madhya Pradesh Abolition of proprietary Rights (Estates, mahals Alienated lands) Act, 1 of 1951, fell to be construed in the context of certain pending second appeals. By section 3 (1) thereof all proprietary rights (subject to certain exceptions which do not bulk large here) in an estate, mahal etc. pass on from such proprietor and vest in the State of Madhya Pradesh free of all in cumbrances. (The date when this vesting takes place is not relevant for the present purpose. Suffice it to note that such vesting receives effect during the pendency of the second appeals). By section 7 ibid the Deputy Commissioner takes charge of all lands so vested in the State of Madhya Pradesh. By section 50 ibid the Central Provinces land Revenue Act, 1917 is overridden.

More, by virtue thereof every proprietor acting as lambardar etc. ceases to act as such and a patel appointed by the Deputy Commissioner for each village performs duties a lambarda