JUDGMENT

Bhairo Prasad, M. - These two references have been referred by the Addl. Commissioner, Bareilly Division Bareilly by a common recommendation dated 26.10.1991 under Section 333-A of U.P. Act No. 1 of 1931.

2. In brief the facts of the case are that Ahmad Husain filed two suits in the trial court under Section 229-B of U.P. Act No. 1 of 1951 against the State and Gaon Sabha. Suit No. 11 was filed regarding plot No. 1 area 9-4-3, Plot No. 19 area 1-10-15 and plot No. 28 area 4-0-0 of village Raiya, Nagla, Pergana Sirauli Tahsil Mirganj, District Bareilly for declaration of bhumidhari right. Suit No. 12 of 1990-91 was filed by Ahmad Husain against the State and Gaon Sabha regarding plot No. 28 area 9-16-13 of village Raiya Nagla, Pergana Sirauli. Tahsil Mirganj, district Bareilly for the declaration of bhumidhari right. These two suits were filed on the ground that he was ordered to be recorded over the corresponding whole these plots by the Tahsildar in 1953-54. During the consolidation disputed plot has been recorded in the name of Gaon Sabha, hence these suits. The State and Gaon Sabha were finally served by publication in news paper daily 'Vishwa Manav' Bareilly dated 17.2.1991. The suit proceeded ex-party against the State and Gaon Sabha and it was decreed on 12.3.1991. Then Gaon Sabha filed a revision No. 110/181 and 111/180 in the court of Addl. Commissioner, Bareilly on the ground that the ex-party decree against the Gaon Sabha and State should be set aside because no notice under Section 80 of Civil Procedure Code was given to the State. Notice was also not given to the Gaon Sabha under Section 106 of Uttar Pradesh Panchayat Raj Act. The land in dispute are recorded in the name of State and the Gaon Sabha as Navin Parti. There has been consolidation in the village. The suit is acred by Section 49 of the Uttar Pradesh Consolidation of Holdings Act. The judgment and decree of the trial court is perverse and arbitrary. The trial court has exercised the jurisdiction vested in him illegally and with material irregularity. Plaintiff Ahmad Husain is not a bhumidhar of the suit plot. Both the revisions were consolidated by the Addl. Commissioner and have recommended that no notice under Section 80 C.P.C. was given to the State, The case of the plaintiff Ahmad Husain is also not proved. The order passed by the learned Trial court is illegal. Objection has been made against these findings by Ahmad Husain, that the order of the Addl. Commissioner is against law and the judgment and decree of the trial court is valid that in accordance with law and the revision is not maintainable. Plaintiff has fully proved his case. The learned lower appellate court has gone beyond his power is recommending the revision, hence it should be rejected.

3. I have heard the learned counsel for both the parties. Perused the record.

4. The learned counsel for the State argued that the plaintiff-Opp. Party filed two suits regarding the same plot in order to mislead the court. No notice was given to the State Government under Section 80 C.P.C. even the Gaon Sabha was not served notice under Section 106 of Uttar Pradesh Panchayat Raj Act, although the disputed plots are recorded in the name of Gaon Sabha as Navin Parti. He also argued that the summon on the Gaon Sabha as well as State has been served through publication in the daily newspaper. The State Government and Gaon Sabha are represented through a public office held by Collector and Pradhan of Gaon Sabha. Summons to them can be served and there can be no avoidance of the summon or it cannot be said that they were not available when the summon was sent to them for service. Service of summon through publication is a substituted service and whenever any person against whom decree is passed on such substituted service that decree at once should be set aside. Ho also argued that no suit against Gaon Sabha and State can be filed regarding the property of Gaon Sabha and the State unless a notice unde