JUDGMENT

Gyanendra Kumar, J. - This is an appeal by the defendant Municipal Board of Balandshahr against concurrent decrees of the courts below, decreeing the suit of the plaintiff respondents. The case of the plaintiffs was that the disputed plot no. 788/1 measuring 15 biswas belonged to Smt. Bhagwati Kuer (Proforma defendant No. 2) as zamindars. The lady granted a permanent lease of 13 biswas out of this plot to one Shyam Mahohar Bhatia by means of a registered deed dated 24-4-1936. The said Shyam Manohar Bhatia made some constructions on the land and then sold the plot along with the constructions to the plaintiffs by means of a registered sale deed dated 31-7-1940. Thereafter, the plaintiffs also raised certain constructions thereon. Sometime later the plaintiffs wanted to make certain additional constructions over the land and for that purpose they submitted a plan to the Municipal Board for sanction. The appellant Board refused to sanction the plan on the ground that a portion of the land which was sought to be constructed upon consisted of a public way which had vested in the Municipal Board. The plaintiffs' case was that the aforesaid assertion of the Board was absolutely wrong. It was stated in paragraph 7 of the plaint that the plaintiffs wanted to make certain constructions on the plot in question and with that object in view they had submitted a plan for sanction to the Municipal Board but it refused to sanction the constructions on the plea that there was a public way on the disputed plot. In paragraph 8 of the plaint it was asserted that the Municipal Board had nothing to do with the land in suit nor was it in possession thereof. The aforesaid act of the Board being illegal and detrimental to the rights and interest of the plaintiffs, they were obliged to file the suit.

2. Smt. Bhagwati Kuer (proforma defendant no. 2) filed a written statement supporting the case of the plaintiffs and alleged that she had granted a permanent lease as alleged by the plaintiffs and had delivered possession thereof to the lessee Shyam Manohar Bhatia who in his turn, had sold away the plot to the plaintiffs.

3. The Municipal Board alone contested the suit on various grounds. Inter alia it denied the permanent lease and sale set up by the plaintiffs and further alleged that the land was a public way and had vested that the land was a public way and had vested in the defendant Board as such. It was also pleaded that the suit was barred by Section 326 of the Municipalities Act, 1916 inasmuch as no notice had been given to the Board and the suit was filed without the expiry and the statutory period of six months.

4. It is note-worthy that the plaintiff had abstained from filing the original lease deed and sale deed or even certified copies thereof in proof of their title of the land. They simply relied upon the admission made by Smt. Bhagwati Kuer (proforma defendant No. 2) to the effect that she had granted a permanent lease to Shyam Manohar Bhatia, who in his turn had sold the plot to the plaintiffs. The plaintiffs further relied upon the certified copy of a judgment dated 30th November, 1944 (Ex.10) in Suit No. 96 of 1943 Om Prakash and Lakshmi Devi v. Mohan Lal, in which the right and title of the plaintiffs to the land in suit was recognised.

5. The courts below did not satisfactorily deal with the case and failed to appreciate the real controversy between the parties as well as the question of law involved therein. In the result, they decreed the suit of the plaintiffs for the declaration sought by them.

6. Mr. Shri Gopal Singh, appearing for the appellant Board, has argued this case with ability and has pointed out the various illegalities committed by the courts below. In the first place, it was alleged that the permanent lease deed as well as the sale deed relied upon by the plaintiffs were required by law to be reduced to writing and were compulsorily registrable, and that in the absence of production of the aforesaid documents