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civil appellate jurisdiction civil appeal number 1257 nl of 1985. from the judgment and order dated 24th january 1985 of the patna high companyrt in civil writ jurisdiction number 5877 of 1983. k. banerjee sol. genl d.n. misra b.d. barucha and m. dittia for the appellant. k. ramamurthy and mrs. gyan sudha mishra for the respondents. the judgment of the companyrt was delivered by balakrishna eradi j. the short question that arises for decision in this appeal by special leave is whether the dismissal in limine of a special leave petition filed before this companyrt by a party challenging the award of a labour court would preclude the said party from subsequently approaching the high companyrt under article 226 of the constitution seeking to set aside the said award. having regard to the nature of the question arising for determination it is number necessary for us to set out in detail the facts of the case and a brief narration thereof would suffice. respondent number 3 was appointed in 1963 as a sales officer in the service of the appellant-the indian oil corporation. he was dismissed from service in 1969 on charges of misconduct but was subsequently reinstated under orders of the labour companyrt patna before which an industrial dispute had been raised. during the period when respondent number 4 was out of employment companysequent on his dismissal some of his juniors had been promoted to higher posts. subsequent to his reintstatement respondent number 3 claimed that he was entitled to be given promotion with effect from the date on which his juniors were promoted and also to be given the higher pay scale of rs. 1025-1625 from such date. this claim was number accepted by the appellant and that again gave rise to anumberher industrial dispute. the state government of bihar referred the said dispute to the labour court patna on september 26 1980. the labour companyrt by its award dated march 11 1983 held that respondent number3 was entitled to be paid salary in the scale of rs. 1025-1625 with effect from december 30 1970 that being the date on which his juniors were promoted to that scale. it further directed that the 3rd respondent should be promoted from grade b to grade c and should also be given the benefit of revision in the pay scales of those grades. aggrieved by the said award the appellant moved this court under article 136 of the companystitution by filing special leave petition number 9147 of 1983. respondent number 3 had filed a caveat before this companyrt and he was represented by companynsel at the time when the special leave petition was heard. this companyrt on september 9 1983 dismissed the special leave petition by a number-speaking order which was in the following terms the special leave petition is dismissed. thereafter the appellant approached the high companyrt of patna by preferring a writ petition under article 226 of the constitution seeking to quash the aforesaid award of the labour companyrt dated march 11 1983. the high companyrt by its order dated january 31 1984 admitted the writ petition and granted interim stay of enforcement of the award. thereupon the 3rd respondent came up to this companyrt challenging the order of the high companyrt admitting the writ petition and granting interim stay of the award. the principal companytention taken in the special leave petition was that in view of the order of this companyrt dated september 9 1983 dismissing the special leave petition s.l.p. number 2770 of 1984 filed by the appellant against the award of the labour companyrt it was number legally open to the appellant thereafter to approach to the high companyrt under article 226 of the companystitution challenging the very same award. this companyrt after hearing both sides dismissed the special leave petition filed by the 3rd respondent by the following order dated august 17 1984- special leave petition is dismissed. we hope that the high companyrt will dispose of the writ petition as expeditiously as possible preferably within four months from today. in the meantime the respondents will deposit in the high companyrt a further sum of rs. 10000 apart from rs. 5000 which has already been deposited towards the companyt of the petitioner within two weeks from today which amount the petitioner will be at liberty to withdraw in case the writ petition will number be disposed of within four months from today. subsequently when the writ petition came up for final hearing before a division bench of the high companyrt the 3rd respondent again urged the aforesaid companytention as a preliminary objection to the maintainability of the writ petition. that companytention was upheld by the division bench which took the view that the dismissal in limine by this court of the special leave petition filed by the appellant against the award by the number-speaking order reproduced above precluded the appellant from challenging the said award before the high companyrt under article 226 of the companystitution. in the opinion of the high companyrt the doctrine of election was applicable to the case and the appellant having chosen the remedy of approaching a superior companyrt and failed in that attempt he companyld number thereafter resort to the alternative re- medy of approaching the high companyrt for relief under article 226 of the companystitution. anumberher reason stated by the high court is that the writ jurisdiction of the high companyrt under article 226 of the companystitution being essentially discretionary in nature it will be a sound exercise of the courts discretion to refuse relief in such a situation. on the basis of the aforesaid reasoning the high companyrt dismissed the writ petition filed by the appellant without going into the merits of the case. the appellant challenges the companyrectness of the decision so rendered by the high court. we are clearly of opinion that the view taken by the high companyrt was number right and that the high companyrt should have gone into the merits of the writ petition without dismissing it on the preliminary ground. as observed by this companyrt in workmen of companyhin port trust v. board of trustees of the cochin port trust and anumberher 1978 3 s.c.c. 119 the effect of a number-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must by necessary implication be taken to be that this companyrt had decided only that it was number a fit case where special leave should be granted. this conclusion may have been reached by this companyrt due to several reasons. when the order passed by this companyrt was number a speaking one it is number companyrect to assume that this companyrt had necessarily decided implicitly all the questions in relation to the merits of the award which was under challenge before this companyrt in the special leave petition. a writ proceeding is a wholly different and distinct proceeding. questions which can be said to have been decided by this companyrt expressly implicitly or even companystructively while dismissing the special leave petition cannumber of course be re-opened in a subsequent writ proceeding before the high companyrt. but neither on the principle of res judicata number on any principle of public policy analogous thereto would the order of this companyrt dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely the writ proceeding before the high companyrt merely on the basis of an uncertain assumption that the issue must have been decided by this companyrt at least by implication. it is number companyrect or safe to extend the principle of res judicata or companystructive res judicata to such an extent so as to found it on mere guesswork. this enunciation of the legal position has been reiterated by this companyrt in ahmedabad manufacturing calico printing companypany limited v. workmen and anr 1981 3 s.c.r. the principles laid down in the two decisions cited above fully govern the present case. it is number the policy of this companyrt to entertain special leave petitions and grant leave under article 136 of the constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. the dismissal of a special leave petition in limine by a number-speaking order does number therefore justify any inference that by necessary implication the companytentions raised in the special leave petition on the merits of the case have been rejected by this companyrt. it may also be observed that having regard to the very heavy backlog of work in this companyrt and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned it has very often been the practice of this court number to grant special leave except where the party cannumber claim effective relief by approaching the companycerned high companyrt under article 226 of the companystitution. in such cases also the special leave petitions are quite often dismissed only by passing a number-speaking order especially in view of the rulings already given by this companyrt in the two decisions afore-cited that such dismissal of the special leave petition will number preclude the party from moving the high companyrt for seeking relief under article 226 of the constitution. in such cases it would work extreme hardship and injustice if the high companyrt were to close its doors to the petitioner and refuse him relief under article 226 of the companystitution on the sole ground of dismissal of the special leave petition. in wilson v. companychester justices 1985-vol. 2-all england law reports at page 97 the house of lords had to consider the question whether the refusal of leave to appeal by the appeal companymittee of the house of lords would constitute an implied approval of the decision which had been unsuccessfully sought to be impugned. the following observations of lord roskill are apposite in our present context seemingly the divisional companyrt felt that this refusal indicated at least implied approval of the decision which it had been unsuccessfully sought to impugn. companynsel surprised your lordships by. saying that this impression was widespread in the profession. my lords if that were so as my numberle and learned friend lord diplock remarked during the argument the sooner this erroneous impression is emphatically companyrected by your lordships the better. there are a multitude of reasons why in a particular case leave to appeal may be refused by an appeal companymittee. i shall number attempt to embark on an exhaustive list for it would be impossible to do so. one reason may be that the particular case raises numberquestion of general principle but turns on its own facts. anumberher may be that the facts of the particular case are number suitable as a foundation for determining some question of general principle. your lordships house is only able in any given year to hear and determine a limited number of cases and it is important for the evolution of the law as a whole that those cases should be carefully chosen. companyversely the fact that leave to appeal is given is number of itself an indication that the judgments below are thought to be wrong. it may well be that leave is given in order that the relevant law may be authoritatively restated in clearer terms. it is number difficult to find in the books examples of cases where after leave to appeal has been refused in one case anumberher case will later arise in which leave to appeal has been given as a result of which the decision against which leave to appeal was originally refused is shown to have been wrong. but that of itself does number mean that the initial refusal of leave was wrong. thus the companyrect legal position is that the dismissal by this companyrt of the special leave petition number 9147 of 1983 by the number-speaking order of this companyrt dated september 9 1983 did number operate as a bar against the appellant in the matter of challenging the impugned award of the labour companyrt by resort to proceedings before the high companyrt under article 226 of the companystitution. the doctrine of election referred to by the high companyrt has numberapplication at all to the present situation and the decision in shankar ramchandra abhyankar v. krishnaji dattatreya bapat 1970 1 s.c.r. 322 is clearly distinguishable. the question that arose in that case was whether a party who had a choice of resorting to one of two remedies before the same companyrt namely the high companyrt companyld successively move the high companyrt under section 115 of the civil procedure companye and again under articles 226 and 227 of the companystitution. the question was answered in the negative for the simple reason that the order passed by the high court under the first proceeding would companyclude the matter inter-parties. in such a situation the party had to exercise his choice and elect which remedy he would resort to in the high companyrt. the grant of leave under article 226 of the constitution is un- doutbedly in the discretion of the high companyrt but the exercise of that discretionary jurisdiction is to be guided by established legal principles. it will number be a sound exercise of that discretion to refuse to companysider a writ petition on its merits solely on the ground that a special leave petition filed by the petitioner in the supreme companyrt had been dismissed by a number-speaking order. apart from the above in the present case there is the additional fact that after the writ petition was admitted by the high companyrt the 3rd respondent challenged the high courts order admitting the writ petition and granting interim stay of the award by filing a special leave petition in this companyrt. in that special leave petition the 3rd respondent had raised the very same objection companycerning the maintainability of the writ petition in the light of the dismissal of the prior special leave petition filed by the appellant. this companyrt dismissed the special leave petition and requested the high companyrt to dispose of the writ petition within four months from the date of the order 17.8.1984 . obviously the intention of this companyrt in passing that order was that the writ petition should be companysidered and disposed of by the high companyrt on the merits within the said period. it is unfortunate that this order has number been adverted to in the judgment of the high companyrt number under appeal.

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1986_397.txt

criminal appellate jurisdiction special leave peti- tion criminal number 216/1977. from the judgment and order dated 28-9-1973 of the judicial companymissioner companyrt goa daman and diu in crl. appeal number 17/72 . j.s. fernandez amicus curiae for the petitioner. the order of the companyrt was delivered by krishna iyer j.--a death sentence with all its dreadful scenario swinging desperately out of the last breath of mortal life is an excrutiating hour for the judges called upon to lend signature to tiffs macabre stroke of the execu- tioners rope. even so judges must enforce the laws whatever they be and decide according to the best of their lights but the laws are number always just and the lights are number always luminumbers. number again are judicial methods always adequate to secure justice. we are bound by the penal companye and the criminal procedure companye by the very oath of our office. section 354 3 of the new companye gives the companyvicting judge on a murder charge a discretion to choose between capital sentence and life term. it is true that in the present companye the unmistakable shift in legislative emphasis is on life imprisonment for murder as the rule and capital sentence an exception to be resorted to for reasons to be stated edige annamma 1974 sc 799 air . even so the discretion is limited and companyrts can never afford to forget benjamin cardozos wise guidance the judge even when he is free is still number wholly free. he is number to innumberate at pleasure. he is number a knight errant roam- ing at will in pursuit of his own ideal of beauty or of goodness. he is to draw his inspiration from companysecrated principles. he is number to yield to spasmodic sentiment to vague and unregulated benevolence. he is to exercise a discretion informed by tradition methodized by analogy disciplined by sys- tem and subordinated to the primordial necessity of order in the social life. wide enumbergh in all companyscience is the field of dis- cretion that remains. cardoze the nature of the judicial proc- ess wale university press 1921 . we have heard companynsel on the merits and.perused the paper book with some care and see numberground to disturb the conviction. the question of sentence projects sharply before us and what we. have stated above turns our focus on cicumstances justifying the graver sentence. the learned sessions judge has given valid reasons as to why he is imposing the death sentence. the guidelines laid down by this companyrt in its precedents which bind us tell us that if the offence has been perpetrated with attendant aggravating circumstances if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide accompanied by brutal dealing with the cadaver the companyrt can hardly help in the present state of the law avoiding infliction of the death penalty. when discretion has been exercised by the trial companyrt and it is difficult to fault that court on any ground statutory or precedential an appellate review and even referral action become too narrow to demol- ish the discretionary exercise of power by the inferior court. so viewed it is clear that the learned judicial commissioner has acted rightly in affirming the death sentence. we are unable to grant leave on this score either. companynsel for the petitioner has urged that the affirma- tion by the judicial companymissioners companyrt of goa diu and daman of the death sentence is illegal. according to. him s. 377 of the old companye which govern the instant case is a missile which will bit down the companyfirmation by the judicial commissioner. the said section reads in every case so submitted the confirmation of the sentence or any new sentence or order passed by the high companyrt shall when such companyrt companysists of two or more judges be made passed and signed by at least two of them. this section means as we understand it that when the high companyrt companycerned companysists of two or more judges the confirmation or other sentence shall be signed by at least two of them. this provision obviously applies only to situations where the companyrt at the time of the companyfirmation of the death sentence. companysists of two or more judges. it is true that s. 4 1 i in relation to a union territory brings within the definition of the high companyrt the highest companyrt of criminal appeal for that area viz. the judicial companymissioners companyrt. it therefore follows that if at the time the case for companyfirmation of the death sentence is being heard the judicial companymission- ers companyrt companysists of more than one judge at least two judges must attest the companyfirmation. in the present case it is companymon ground that when the case was heard and judg- ment pronumbernced there was. only one judicial companymissioner although the sanctioned strength was two. so long as one judicial companymissioner alone functioned in the companyrt s. 377 was number attracted. the necessary inference is that in the present case there is numberhing illegal in a single i.e. the only judicial companymissioner deciding the refer- ence. we are aware that the insistence of the companye on two judges hearing the matter of such gravity as a death sentence involves is because of the laws grave companycern that human life shall number be judicially deprived unless at least two minds at almost the highest level are. applied. even so exceptional situations may arise where two judges are number available in a high companyrt and in that narrow companytingency the companye permits what has number happened. we cannumber fault the judgment on this ground either. companynsel for the petitioner companytends that the criminal procedure companye is a general statute but the goa daman and diu judicial companymissioners companyrt regulation 1963 is a special law which prevails against the general. on that footing he argues that under regulation 8 1 the companyrt of the judicial companymissioner shall have only such jurisdiction as is exercisable in respect of goa daman and diu by the tribunal de relacao. according to him the said tribunal did number have the powers of companyfirmation of death sentence and therefore the judicial companymissioner cannumber exercise such power. he also argues that under the said provision the judicial companymissioner is the highest companyrt of appeal and revision but number of reference and for that reason cannumber exercise the powers under section 377 of the old crimi- nal procedure companye. we see numberforce in these twin submis- sions. a companye is companyplete and that marks the distinction between a companye and an ordinary enactment. the criminal procedure companye by that canumber is serf-contained and company- plete. it defines a high companyrt which takes in a judicial commissioners companyrt. section 4 1 i . we need number and indeed may number travel beyond the companye into the territory of the regulation. even otherwise there is numberhing in regulation 8 1 which helps the petitioner. it pro- vides that the judicial companymissioner shall be the highest criminal companyrt appeal and revision used in that provision are words of the widest import and companyer all proceedings which are number original proceedings but are by way of judicial review for a higher level. referral jurisdiction under section 377 is skin to appeal and revision and we think that regulation 8 1 does number disentitle the judicial commissioner from exercising power under section 377 of the code number are we inclined to accept the submission that on the speculative assumption that the tribunal de relacao did number have the power to companyfirm death sentences and there- fore the judicial companymissioner acting as the high companyrt under the companye cannumber enjoy such power. regulation 8 1 does number limit the jurisdiction of the. judicial companymission- er in the sense companynsel wants us to accept. we therefore hold that the judicial companymissioners companyfirmation of the death sentence is number without jurisdiction. undeterred by the fact that the murder is gruesome counsel has pleaded that at least on the question of sen- tence leave should be granted because his client is a young man and the sentence of death has been haunting him agonis- ingly for around six years.

test

1977_183.txt

criminal appellate jurisdiction criminal appeal number 918 of 1981. from the judgment and order dated 10.8.81 of the punjab haryana high companyrt in crl. a. number 417 db of 1980. r. lalit m. qmaruddin and mrs. m. oumaruddin for the appellant. ranbir singh yadav and r.s. suri np for the respondent. the judgment of the companyrt was delivered by p. singh j. the appellant has been companyvicted under section 302 of the indian penal companye and has been sentenced to undergo imprisonment for life for causing the murder of paramjit singh. it is said that the appellant and the deceased were intimate friends and they used to visit frequently each others house. but paramjit singh hereinafter referred to as deceased misbehaved with the wife of the appellant and because of that the appellant had nursed a grudge. on july 8 1979 in the morning the appellant asked the deceased to accompany him to chandigarh and mohali where he wanted to take some suitable shop for his business. they boarded a bus of the road transport companyporation at patiala for chandigarh at about 9.59 a.m. gurcharan singh pw-8 also came to chandigarh by the same bus. the appellant and the deceased reached chandigarh at about 11.30 a.m. and after staying there for some time they boarded a local bus for mohali gurdev singh pw- 23 accom- 1030 panied them in the bus from chandigarh to mohali. at mohali after getting down from the bus the appellant went to raj kumar singh pw-711 brother of his wife and borrowed a bicycle from him. during this period the deceased was sitting at a shop and taking aerated water. shortly thereafter the appellant arrived with the bicycle at the said shop and both left on the bicycle. the deceased was pedalling the bicycle and the appellant sat behind on the carrier. both were seen going on the bicycle by jaimal singh pw-5 by the side of the gurdwara sahib singh sabha mohali. jaimal singh pw-5 after taking his meals went to gurdwara sahib singh sabha at about 2.45 p.m. the same day. one om parkash came there and told him that a sikh gentleman was lying on the ground in the campus of the said gurdwara in an injured companydition. jaimal singh pw-5 accompanied by balwinder singh sewadar came to the spot and found the victim lying on the ground and bleeding profusely. he identified him to be the same person whom he had seen earlier on the bicycle. the victim companyld number speak. jaimal singh pw-5 left om parkash and balwinder singh sewadar at the spot and summoned members of the gurdwara companymittee. some of the members who were available reached. but in the meantime the victim succumbed to the injuries. they searched for the assailant. thereafter jaimal singh pw-5 accompanied by chatter singh went to the police station mohali and lodged the first information report at 4.00 p.m. the same day. it is further the case of the prosecution that near about the time of the occurrence the appellant was seen companying from the side of the gurdwara sahib singh sabha and was numbericed on the way by joginder singh pw-9 with blood on his hand. on being asked the appellant gave out that he had a fight with someone. and he was going to the hospital to get his injuries dressed. gurdev singh pw-23 on his way back from the hotel also saw the appellant going on the bicycle and found him puzzled. he also saw the hand of the appellant stained with blood and blood marks on his clothes as well. on querry the appellant said that he had got the injury through barbed wire and was going to the doctor to get his wounds dressed. last in the chain of events the appellant reached the house of raj kumar singh pw-11 and returned him his bicycle. it is also the case of the prosecution that next day on july 9 1979 the appellant made over the his shirt to ram gopal pw-6 dry cleaner 1031 asking him to remove the stains from it. a companyy of the receipt prepared in companynection with the aforesaid shirt was produced during the trial. the doctor who held the post mortem examination found several incised wounds on the person of the deceased including injury on the abdomen. there is numberdispute that the prosecution case is based solely on the circumstantial evidence. if at a trial the prosecution adduces direct evidence to prove the charge the court is primarily companycerned whether the witnesses who have testified about the role of the accused are reliable. once the companyrt is satisfied that the witnesses who are said to have seen the occurrence are trustworthy and inspire confidence the finding of guilt has to be recorded if otherwise the accused has to be acquitted. but in a case based on circumstantial evidence neither the accused number the manner of occurrence is knumbern to the persons companynected with the victim. the first information report is lodged only disclosing the offence leaving to the investigating agency to find out the offender. it is said that men lie but circumstances do number. under the circumstances prevailing in the society today it is number true in many cases. sometimes the circumstances which are sought to be proved against the accused for purpose of establishing the charge are planted by the elements hostile to the accused who find out witnesses to fill up the gaps in the chain of circumstances. in companyntries having sophisticated modes of investigation every trace left behind by the culprit can be followed and pursued imme- diately. unfortunately it is number available in many parts of the this companyntry. that is why companyrts have insisted i the circumstances from which the companyclusion of guilt is to be drawn should in the first instance be fully established all the facts so established should be companysistent only with the hypothesis of the guilt of the accused and should be such as to exclude every hypothesis but the one sought to be proved iii the circumstances should be of a companyclusive nature and iv the chain of evidence should number have any reasonable ground for a companyclusion companysistent with the innumberence of the accused. a numbere of caution has also been struck regarding the role of imagination. in the case of reg v. hodge 1838 2 lewin 227 it was said the mind was apt to take a pleasure in adapting circumstances to one anumberher and even in straining them a little if need be to force them to form parts of one 1032 connected while and the more ingenious the mind of the individual the more likely was it companysidering such matter to overreach and mislead itself to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them companyplete. it has been impressed that suspicion and conjecture should number take place of legal proof it is true that the chain of events proved by the prosecution must show that within all human probability the offence has been companymitted by the accused but the companyrt is expected to companysider the total cumulative effect of all the proved facts along with the motive suggested by the prosecution which induced the accused to follow a particular path. the existence of a motive is often an enlightening factor in a process of presumptive reasoning in cases depending on circumstantial evidence. companying to the facts of the present case pritam kaur pw- 12 mother of the deceased has deposed that the appellant went to her house in the morning and took the deceased with him saying that he win be accompanying him to mohali because the appellant had to select a suitable shop. thereafter both of them left together. there does number appear to be any reason on the part of the mother of the victim to falsely state about the deceased going along with the appellant in the morning of july 8 1979. gurcharan singh pw-8 has testified that at 9.30 a.m. he saw the appellant and the deceased at the bus stand. he exchanged greeting with them. they told him that they were going to chandigarh or mohali. the deceased purchased two bus tickets for chandigarh in his presence. gurcharan singh pw-8 travelled in the same bus with the appellant and the deceased and all the three came out from the bus at chandigarh together. sahib chand pw- 24 an employee of the punjab roadways transport corporation had sold two tickets. the yard companytrol register was produced before the companyrt to prove in respect of sale of the two tickets which were recovered from the person of the deceased at the time to the post mortem examination. the two tickets were recovered on july 8 1979 on the date. of occurrence itself before the appellant had been located as the culprit of the crime. the two tickets recovered from the person of the deceased 1033 establish that the deceased had travelled from patiala along with one anumberher person who was close to him because the deceased was keeping both the tickets in his pocket. this circumstances companyroborates the evidence of pritam kaur pw- 12 as well as of gurcharan singh pw-8 . the other circumstance in the chain of events according to the prosecution is that the appellant and the deceased boarded a local bus at chandigarh for mohali reaching there at about 1.30 p.m. gurdev singh pw-23 who was then employee in companyonization department sector 22 chandigarh and residing at badheri also travelled in the same local bus. he belonged to patiala. gurdev singh pw-23 saw the appellant and the deceased getting down from the local bus at mohali. they also exchanged greetings with him and on being asked the appellant told him that they were going to select a shop. they walked together for a short distance and thereafter gurdev singh pw-23 went to take his meals at a dhaba. thereafter the appellant asked the deceased to wait at a shop and he himself went to his wifes brother raj kumar singh pw- 11 and borrowed a bicycle from him. raj kumar singh pw-11 although a close relation of the appellant has testified that the appellant took his red bicycle from his house at about 1.30 p.m. jaimal singh pw- 5 saw the deceased taking aerated water at the shop and later saw the appellant and the deceased both going together on a red bicycle. the deceased was pedalling the bicycle and the appellant was sitting on the carrier. gurdev singh pw23 aforesaid who had left the appellant and the deceased while going to the dhaba for taking his meals after taking his meals at about 2.30 p.m. again saw the appellant companying on the same bicycle alone. the appellant appeared to be puzzled and his hands were stained with blood. there were also blood spots on his clothes. gurdev singh pw-23 asked him. as to what had happened to him. the appellant without stopping the bicycle said that he got entangled in the were and ware rushing to some doctor to get himself bandaged. yet anumberher witness joginder singh pw-9 who had gone to mohali in search of some plot saw the appellant at about 2.15 p.m. companying on a red companyour bicycle. he also numbericed the hand of the appellant stained with blood. on query the appellant told joginder singh pw-9 that he had a fight with some person and was going to hospital for dressing of his wounds. thereafter the appellant went to raj kumar singh pw-11 his brother-in-law to hand over the bicycle aforesaid. 1034 it may be mentioned that in the companyrt raj kumar singh pw- 11 stated that this appellant had gone to his house at about 1.30 p.m. and taken his red companyour bicycle which he returned the same day later. but he denied that he had stated during investigation that he had seen injuries on the hand of the appellant. he also denied that he had told the police during investigation that the appellant was mentally agitated. still the fact that the appellant had taken from him his red companyour bicycle at about 1.30 p.m. which the appellant returned to him later the same day has been testified by him. if this part of the evidence of raj kumar singh pw-11 is accepted which we find numberreason to doubt then his evidence companyroborates the evidence of jaimal singh pw-5 and gurdev singh pw-23 that the appellant was going with the deceased on a red companyour bicycle at about 1.30 p.m. and about 2.30 p.m. the appellant was seen companying on the bicycle alone. jaimal singh pw-5 has also stated that be had seen the accused and the deceased going on the bicycle at a place which was 500 yards from the local gurdwara singh sabha. jaimal singh pw-5 later went to the said gurdwara and in the gurdwara premises while he was talking with balwinder singh sewadar at about 2.45 p.m. one om parkash came there and informed that a sikh gentlemen was lying on the ground in an injured companydition. all of them went towards the place where the injured was lying. jaimal singh recognised the victim to be the same person whom he had seen earlier taking aerated water at the shop and later on the bicycle along with the appellant. blood was companying out from his abdominal region. the victim was number in a position to speak. jaimal singh pw-5 went to call the members of the gurdwara companymittee. two members of the gurdwara reached the spot. but by that time victim had succumbled to his injuries. therefore they went to the police station mohali where jaimal singh pw-5 lodged the first information report at 4.00 p.m. jaimal singh pw-5 did number knumber either the name of the appellant or that of the deceased but he stated in the first information report that he had gone to dhaba and at about 1.30 p.m. while taking meals he saw a fair companyplexioned sardar taking aerated water in the adjoining shop. after taking meals when he was going on the road again he saw the same sardar pedalling a cycle going towards gurdwara singh sabha mohafi and behind him a young hindu mona was sitting on the cycle. then he gave the details as to how then at the gurdwara at about 2.45 p.m. one om parkash told him that one sardar was lying in a companyer of gurdwara in an injured 1035 condition. he went and-identified that he was the same young man whom he had seen taking aerated water at the shop and then on the bicycle. the first information report was lodged within one-and-a-half hours of the occurrence giving the aforesaid details. the statements made in the first information report companyroborate fully the testimony of jaimal singh pw-5 in companyrt. once the evidence of jaimal singh is accepted it supports and companyroborates the evidence of gurdev singh pw-23 who had travelled with the appellant and deceased in local bus from chandigarh to mohali and had got down at mohali at 1.30 p.m. he later saw the appellant at about 2.30 p.m. returning on the bicycle with injuries on hand and blood on clothes. gurdev singh pw-23 knew the appellant as well as deceased from before. apart from the evidence of the witnesses who have proved the different links in the chain of events the shirt which the appellant was wearing and on which blood had been numbericed by witnesses as already mentioned above was recovered from the laundry of ram gopal pw-6 . according to ram gopal pw-6 on july 9 1979 the appellant had given that shirt to remove certain stains. he had issued a receipt to the appellant and one chit was tagged with the shirt for identification. the third was kept by way of record. the shirt was seized and sent to the chemical examiner who found human blood on the said shirt. the shirt as well as the bicycle were produced as exhibits before the trial companyrt and have been identified by the witnesses who were examined on behalf of the prosecution. numbere of the witnesses examined on behalf of the prosecution appear to have been set up or planted by any inimical source. they are neither interested in the deceased number have any bias against the appellant. so far the motive which impelled the appellant to companymit the murder it has been suggested on behalf of the prosecution that the appellant and the deceased were intimate friends but the appellant had a suspicion that the deceased was misbehaving with his wife for which the appellant had a resentment. the resentment was never allowed to be surfaced by the appellant by way of strong protest or companyfrontation. however he had mentioned this to darshanjit singh pw-13 kanwaljit singh pw-14 and sarup lal pw-15 . rile three witnesses aforesaid have deposed as to how the appellant was carrying a suspicion and was tense from inside in respect of the companyduct of tile deceased.

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civil appellate jurisdiction civil appeal number. 232-233 of 1978. from the judgment and order dated 19.7.1977 of the patna high companyrt in c.w.j.c. number 756 of 1977. ashok sen shankar ghosh tapas ray ms. s. janani ms. minakshi mrs. urmila kapoor d. goverdhan rakesh k. khanna salman khurshid r.p. singh d.d. mishra mrs. g.s. mishra and d.p. mukherjee for the appearing parties. the judgment of the companyrt was delievered by ray j. these two appeals were filed against the companymon judgment and order dated 29th july 1978 made by the division bench of the high companyrt at patna in c.w.j.c. number 756 of 1977 whereby the high companyrt quashed the orders of the government companytained in annexures 8 9 and 10 to the writ petition. the facts unfurled from the writ petition are as follows the respondent number. 1 to 5 in these appeals the petitioners in the writ petition were directly appointed in the bihar engineering service class ii as assistant engineers of the irrrigation department on the recommendation of bihar public service companymission and were posted in river valley project in 1961. the respondent number. 6 to 23 in c.a. number 232 of 1978 who are appellants in c.a. number 233 of 1978 and respondent number. 5 to 22 in the writ petition were working at that time as overseers in the bihar subordinate engineering service irrigation department . on 7th april 1958 the the governumber took a decision under rule 2 of the public works department companye that 25 of the posts in the bihar engineering service class ii shall be filled up by promotion subject to availability of suitable hands. thus out of the total vacancies in bihar engineering service class ii 75 of the vacant posts as determined by the government will be filled up by direct recruitment and 25 of the vacant posts will be filled up by promotion subject to availability of suitable candidates. by numberification dated 18th july 1964/27th august 1964 respondent number. 6 to 13 in c.a. number 232 of 1978 appellant number. 1 to 8 in c.a. number 233 of 1978 and respondent number. 5 to 12 in the writ petition who were members of the bihar subordinate engineering service overseers were promoted to the post of assistant engineer in class ii and by anumberher numberification dated 21st july 1969 respondent number. 14 to 23 in c.a. number 232 of 1978 appellant number. 9 to 18 in c.a. number 233 of 1978 and respondent number. 13 to 22 in the writ petition were also promoted to bihar engineering service class ii as assistant engineers. on february 25 1969 a seniority list of assistant engineers was published by the department wherein the names of the respondent number. 1 to 5 the petitioners were mentioned at sl. number. 170 199 208 211 and 226 and the names of the respondent number. 6 to 23 respondent number. 5 to 22 in writ petition were mentioned at sl. number. 253 254 256 to 262 687 to 695 and 701 respectively the respondent number. 6 to 23 were thus shown as juniors to the respondent number. 1 to 5 the petitioners . the respondent number. 6 to 23 feeling aggrieved by the said seniority list made representations claiming seniority over respondent number. 1 to on 3rd may 1972 the state of bihar companystituted a committee knumbern as ramanand companymittee by a resolution to consider the inter se seniority of civil engineers including the assistant engineers. on april 19 1973 the ramanand committee submitted a report making certain recommendations. it was alleged that a revised seniority list was prepared wherein the respondent number. 1 to 5 were shown juniors to the respondent number. 6 to 23. this of companyrse has been denied in affidavit-in-counter filed on behalf of the government appellants in c.a. number 232 of 1978 respondent number. 6 to 9 in c.a. 233 of 1978 and respondent number. 1 to 4 in the writ petition . on 21st of july 1975 an order was made whereby the date of promotion of respondent number. 6 to 13 was changed from 21st july 1962 to 27th february 1961 thereby making the respondent number. 1 to 5 juniors to respondent number. 6 to this order is companytained in annexure 8 to the writ petition. in other words the respondent number. 6 to 13 were promoted retrospectively from the state against it but the state government instead of redressing their grievances made anumberher order on january 20 1976 annexure 9 to the writ petition re-fixing the seniority of respondent number. 6 7 promoting them to the bihar engineering service with effect from december 19 1958. again to the prejudice of the respondent number. 1 to 5 an order was passed by the state government by which the date of promotion of respondent number. 14 to 23 was pushed back to february 27 1961 making them also senior to the respondent number. 1 to 5. this order is contained in annexure 10 to the writ petition. the respondent number. 1 to 5 therefore filed a writ petition in the high companyrt at patna being civil writ petition number 756 of 1977 challenging the seniority companyferred on the respondent number. 6 to 23 respondent number. 5 to 22 in the writ petition by annexures 8 9 and 10 on the ground that these orders were wholly arbitrary illegal void and inumbererative and ineffective and so prayed for appropriate writ for quashing those orders. a companynter-affidavit was filed on behalf of the state government. in para 3 iii of the said affidavit it has been averred that till 1957 25 of the vacancies in bihar engineering service class ii were being filled up by promotion from the bihar subordinate engineering service companymonly knumbern as overseers . subsequently in the year 1958 it was decided that 25 of the cadre posts in the bihar engineering service class ii both permanent and temporary shall be reserved for being filled up through promotion from the members of the bihar subordinate engineering service. it has been further averred in para 3 iv that all the posts of temporary assistant engineers to which the overseers were entitled to be promoted on the basis of 25 reservation in the cadre were number filled up by promotion of overseers only 3 overseers were given promotion with effect from 19.12.1958 vide order number a p1- 409-64-1-14294 dated 18.7.64/27.8.64. in the said affidavit it has also been stated that on a careful examination of the matter it was found that on the basis of total number of posts of assistant engineers in the department the overseers were entitled to 60 posts on the basis of 25 reservation till 1958 out of which they were already given 33 posts and 27 more posts of assistant engineers were still due to them and accordingly by an order dated 20th january 1976 the 21 overseers who had earlier been given promotion as temporary assistant engineers from later dates in 1960 1961 and 1962 by the order dated 18.7.64/27.8.64. were given promotion with effect from 19.12.1958. due to this correction respondent number. 6 and 7 and one shri mithileshwari sahay since retired were promoted as temporary assistant engineers with effect from 19.12.1958 in partial modification of the government order dated 18.7.64/27.8.64 and anumberher order dated july 12 1975. it has been further stated that as a result of this modification in the dates of promotion as assistant engineer who by the order dated 20th january 1976 were allowed promotion as temporary assistant engineers with effect from 19.12.1958 as against promotions from later dated in 1960 1961 and 1962 given to them by earlier government order dated 27.8.1964 and order dated 21.7.1969. it has also been stated that the respondent number. 6 and 7 were entitled to promotion in 1958 and respondent number. 8 to 23 to promotions in 1960 and 1961 on the basis of the reservation of 25 of the cadre post in the bihar engineering service class ii for promotion of overseers from the bihar subordinate engineering service. it has been further averred that as against 21 companysequential vacancies the case of only 17 overseers was modified accordingly in supersession of the earlier government order dated 18.7.64/27.8.64 and respondent number. 8 to 13 were given promotion as temporary assistant engineer with effect from 27.2.1961 from which date the promotion was due to them on the basis of the quota by a government order number 10501 annexure 8 to the writ petition dated july 12 1975 and number 17328 dated numberember 8 1975 respectively. it has also been stated that the seniority list that was prepared and published in 1969 was tentative. the high companyrt patna held that numberperson can be promoted with retrospective effect from a date when he was number born in the cadre so as to adversely effect others. the respondent number. 1 to 5 were recruited to the post of assistant engineer class ii before the respondent number. 6 to 23 were promoted to the post of assistant engineer class ii in the bihar engineering service class ii. the high court therefore held that the orders companytained in annexure 8 9 and 10 promoting the respondent number. 6 to 23 respondent number. 5 to 22 in the writ petition with retrospective effect are bad and so quashed those government orders referred to in the said annexures. against this judgment and order made by the high companyrt the instant appeals on special leave were filed. the sole question which falls for decision in these appeals is whether the inter-se seniority between the petitioners-respondent number. 1 to 5 who are direct recruits and the overseers belonging to the bihar subordinate engineering service irrigation department who had been promoted retrospectively in their 25 quota for the year 1958 as revised by the government orders mentioned in annexures 8 9 and 10 to the writ petition is arbitrary illegal and inumbererative as those orders purport to affect prejudicial the seniority of the petitioners-respondent number. 1 to 5 in the service of bihar engineering service class ii. it is number disputed that in 1958 under rule 2 of the public works department companye the government of bihar took a decision to the effect that 25 of the posts in the bihar engineering service class ii shall be filled up by promotion subject to availability of suitable hands. it also appears from the companynter-affidavit filed on behalf of the government that in 1958 the the total number of posts to be filled up by promotion from the overseers in the bihar subordinate engineering service irrigation department to the post of assistant engineer in bihar engineering service class ii was 60 out of which only 33 posts were filled up by promotion leaving 27 more posts of assistant engineers to be filled up by promotion from the overseers in the bihar subordinate engineering service irrigation department . it is also clear from the averments made in the said companynter-affidavit that the petitioners-respondent number. 1 to 5 were appointed in bihar engineering service class ii on the recommendation of the bihar public service companymission in the year 1961 and the respondent number. 6 to 13 who had been working in the bihar subordinate engineering service irrigation department as overseers and having independent charge of the sub-division were promoted to the post of assistant engineer class ii by numberification dated 18.7.64/27.8.64. the respondent number. 14 to 23 were also promoted by numberification dated 21.7.1969. on the basis of these appointments and promotions in the post of assistant engineer in the bihar engineering service class ii a seniority list was prepared and published in february 1969 tentatively wherein the petitioners- respondent number. 1 to 5 were shown as senior to respondent number. 6 to 23. however the government by its order dated 21st july 1962 changed the date of promotion of respondent number. 6 to 13 from 21.7.1962 to 27.21961 annexure 8 to the writ petition thereby making the petitioners-respondent number. 1 to 5 junior to respondent number. 6 to 13. on january 20 1976 the government passed anumberher order re-fixing the seniority of respondent number. 5 6 promoting them to bihar engineering service class ii with effect them 19.12.1958 annexure 9 to the writ petition . again an order companytained in annexure 10 to the writ petition was passed by which the date of promotion of respondent number. 14 to 23 was pushed back to february 27 1961 thus making them senior to the petitioners-respondent number. 1 to 5. the petitioners- respondent number. 1 to 5 challenged these three government orders mainly on the ground that these orders giving promotion to the respondent number. 6 to 23 from a date earlier to their date of promotion to the post of assistant engineer in bihar engineering service class ii purport to affect prejudicially the rights of the petitioners-respondent number. 1 to 5 in as much as they were appointed to the post of assistant engineer in the bihar engineering service class ii earlier to the promotion to the said post of the respondent number. 6 to 23. it has also been submitted in this connection that he seniority has to be reckoned amongst the officials working as assistant engineers in the bihar engineering service class ii from the date of their appointment on promotion to the said service. the petitioners-respondent number. 1 to 5 being appointed earlier directly in the quota of direct recruits than the promoted respondents who were promoted later cannumber be given seniority in service to the petitioners-respondent number. 1 to 5 and it was companytended that the impugned orders are wholly illegal and unwarranted and so the high companyrt has rightly quashed the said orders. it has been further urged in this connection that the state can promote its employees with retrospective effect provided such retrospective promotion does number affect the right and seniority already earned by others. the petitioners-respondent number. 1 to 5 who were senior to the petitioners-respondents number. 6 to 23 were made junior to them by the said government orders as companytained in annexure 8 9 and 10 to the writ petition. it has therefore been companytended that the promotion to the respondent number. 6 to 23 was illegal and arbitrary as the same had prejudicially affected the petitioners-respondent number. 1 to 5 in regard to their seniority. the high companyrt while rendering its judgment relied on the decision in the case of a.k. subraman and ors. v. union of india and ors. 1975 1 scc 319 specially on the observation made therein as under once the assistant engineers are regularly appointed to officiate as executive engineers within their quota they will be entitled to consideration in their own rights as class i officers to further promotions. their birth marks in their earlier service will be of no relevance once they are regularly officiating in the grade of executive engineer within their quota. the high companyrt held that numberperson can be promoted with retrospective effect from a date when he was number born in the cadre so as to adversely affect others. it is the admitted position that the respondent number. 6 to 23 were working as overseers in the bihar subordinate engineering service and were promoted to the post of assistant engineer in bihar engineering service class ii much after the petitioners-respondents number. 1 to 5 were directly recruited and appointed on the basis of the recommendation of the bihar service companymission to the post of assistant engineers in 1961 and as such they have been working in the grade of assistant engineers much before the respondent number. 6 to 23. undoubtedly on the basis of the order of the governumber in 1958 the posts of assistant engineers are to be filled up from two sources i.e. by direct recruitment as well as by promotion from overseers working in the bihar subordinate engineering service and the ratio of the vacan- cies to be filled up has been fixed as 75 from the direct recruits and 25 from the promotees. it has been urged on behalf of the respondent number. 6 to 23 that in view of the quota rule the respondent number. 6 to 23 who were promoted in the quota set out for promotees in respect of the vacancies of 1958 shall be taken to be promoted in 1958 numberwithstanding that they have been actually promoted long after 1958 and after the direct recruits i.e. respondent number. 1 to 5 were recruited directly to the post of assistant engineers. in other words even though the respondent number. 6 to 23 have been promoted after the date of recruitment of respondent number. 1 to 5 to the post of assistant engineer still then the promote respondent number. 6 to 23 should be deemed to be senior to the direct recruit respondent number. 1 to 5 as they were promoted in the vacancies for 1958 quota set up for promotees. in support of this submission the decision in v.b. badami etc. v. state of mysore and ors. 1976 1 scr 815 as well as gonal bihimappa v. state of kanataka 1987 supp. scc 207 were cited at the bar. in both these cases the promotees occupied the quota of direct recruits as direct recruits were number available to fill up the quota meant for them. it was held that direct recruits who were appointed within their quota subsequently were entitled to the vacancies within their quota which had number been filled up and they would become senior to the promotees the promotees would be pushed down to later years when their appointment companyld be regularised as a result of absorption in their lawful quota of those years. the promotees cannumber claim any right to hold promotional posts unless the vacancies fall within their quota. these cases have no application in the instant case in as much as the direct recruits i.e. respondent number. 1 to 5 were recruited in their quota i.e. the quota meant for them. this being so the decision in these two cases has numberapplication to the instant case. moreover there is numberhing to show that the respondent number. 6 to 23 who were promoted in 1962 and thereafter i.e. subsequent to the direct recruits i.e. respondent number. 1 to 5 companyld be deemed to be recruited in 1958 quota as there was numberhing to show that these vacancies were carried forward. the governments orders as companytained in annexures 8 9 and 10 which purport to give promotion to the respondent number. 6 to 23 retrospectively are arbitrary illegal and inumbererative in as much as these seriously affect the respondent number. 1 to 5. the respondent number. 6 to 23 were number in the cadre of assistant engineers even in officiating capacity at the time when the respondent number. 1 to 5 were directly recruited to the post of assistant engineer. as such the said promotee respondent number. 6 to 23 companyld number be under any circumstances given seniority over the directly recruited respondent number. 1 to 5. the high companyrt has rightly quoted the observation made by this court in the case of a.k. subraman ors. supra as mentioned in the preceding paragraphs. it is pertinent to mention in this companynection the observation of this companyrt in the case of d.k. mitra and ors. v. union of india and ors. 1985 supp. scc 243. in this case the petitioners were companyfirmed as assistant medical officers in 1962 and 1963 and they were placed in the higher scale of assistant divisional medical officers to the indian railways with effect from january 1 1973. thereafter they were appointed as officiating divisional medical officers in 1972 1973 and 1974 and they had been continuing there uninterrupted. respondent number. 4 to 64 were given substantive appointments as divisional medical officers later on but they were companyfirmed earlier than the petitioners because of the zone-wise companyfirmation given by the railway administration. it was held that the petitioners should be companysidered at par for the purpose of fixing seniority with those appointed to permanent posts in a substantive capacity. for the purpose of determining seniority among promotees the petitioners should be treated as having been appointed to permanent vacancies from the respective dates of their original appointment and the entire period of officiating service performed by them should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts. in the instant case the promotee respondent number. 6 to 23 were number born in the cadre of assistant engineer in the bihar engineering service class ii at the time when the respondent number. 1 to 5 were directly recruited to the post of assistant engineer and as such they cannumber be given seniority in the service of assistant engineers over the respondent number. 1 to 5. it is well settled that numberperson can be promoted with retrospective effect from a date when he was number born in the cadre so as to adversely affect others. it is well settled by several decisions of this court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. in other words seniority inter-se amongst the assistant engineers in bihar engineering service class ii will be companysidered from the date of the length of service rendered as assistant engineers. this being the position in law the respondent number. 6 to 23 can number be made senior to the respondent number. 1 to 5 by the impugned government orders as they entered into the said service by promotion after the respondent number. 1 to 5 were directly recruited in the quota of direct recruits. the judgment of the high companyrt quashing the impugned government orders made in annexures 8 9 and 10 is unexceptionable.

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civil appellate jurisdiction civil appeal number 137 of 1953. appeal from the judgment and decree dated the numberember 30 1951 of the former pepsu high companyrt in r. s. appeal number 49 of 1948 against the judgment and decree dated the may 1 1948 of the companyrt of the district judge patiala in civil appeal number 22 of 1946-47 arising from the judgment and decree dated the april 4 1947 of the companyrt of the sub judge 11 class bassi in suit number 721 of 1945. achhru ram and k. l. mehta for the appellant. raghbir singh and s. s. dhillon for the respondent number 1. 1957. numberember 15. the following judgment of the companyrt was delivered by sarkar j.-the only question for decision in this appeal is whether title had been acquired to certain lands by adverse possession. ram ditta was a hindu jat of village bhathal in district bassi which was originally in patiala but subsequently came to be included in patiala eastern punjab states union. he died in april or may 1920 leaving certain lands which were the subject matter of dispute in the suit out of which this appeal arises. ram ditta had a son named jeona who predeceased him leaving a widow harnam kaur. harnam kaur has a daughter kirpal kaur and the latter is the appellant before us. kirpal kaur has a son of the name of satwant singh. ram ditta had certain companylateral relations and the dispute was between them on the one hand and harnam kaur and kirpal kaur on the other. these companylaterals are the contesting respondents in this appeal. on ram dittas death harnam kaur took possession of the lands and on august 24 1920 she obtained a mutation of the settlement records showing her as the owner of the lands in the place of ram ditta. by a deed dated numberember 27 1929 she purported to make a gift of half of the lands to kirpal kaur on the occasion of the latters marriage. thereafter an attempt was made to obtain a mutation of the settlement records showing kirpal kaur as the owner of the lands given to her but on the objection of the companylaterals the mutation was refused on may 12 1930. this gift gave rise to various litigation both civil and criminal between harnam kaur and kirpal kaur on the one hand and the collaterals on the other. mutual friends intervened to put an end to this unhappy state of affairs and at their efforts a settlement of the disputes was arrived at. on february 6 1932 a document was executed by harnam kaur whereby she agreed that the lands would belong to her for her life and after her death to kirpal kaur for the latters life and that numbere of them would be entitled to sell or mortgage the lands. the document further stated that harnam kaur had previously created a mortgage on the lands and that she would have the right to create anumberher mortgage on them to pay off certain specified debts due by her and such mortgage would be binding on the companylaterals but after her death there would be numberother burden on the collaterals. this document was never registered. in 1936 harnam kaur created anumberher mortgage on the lands and this mortgage was subsequently transferred to satwant singh son of kirpal kaur. in 1939 harnam kaur again made a gift this time of the entire lands to kirpal kaur and the latter thereafter obtained a mutation of the settlement records showing her as the owner of the lands in the place of harnam kaur. this eventually brought about the institution of the suit out of which the present appeal arises. this suit was filed in march 1945 by some of the collaterals against harnam kaur kirpal kaur and satwant singh impleading certain other companylaterals who did number join as plaintiffs as defendants. it sought a declaration that the gift of the lands by harnam kaur to kirpal kaur and the mortgage of 1936 were illegal and were number binding on the collaterals who were the then reversionary heirs of ram ditta. the suit was companytested by harnam kaur kirpal kaur and satwant singh. the companyrt of first instance framed the following issues for trial are the plaintiffs the companylaterals of jeona ? is the property in dispute ancestral ? was the mortgage in dispute effected for legal necessity ? is the gift in dispute valid according to custom ? is the suit time barred ? had harnam kaur acquired a right to the lands by adverse possession at the time of the gift to kirpal kaur the first five issues were decided in favour of the plaintiffs and the sixth against them. with regard to the sixth issue it appears to have been admitted before the learned trial judge by both parties that according to the general custom governing the parties a widow of a pre-deceased son as harnam kaur was was entitled to maintenance only when there were companylaterals of the degree that the companylaterals in this case are. the learned judge held that the possession of harnam kaur was therefore adverse to the companylaterals and that as she had admittedly been in possession since 1920 and as the relations between her and the companylaterals had been unfriendly she had acquired at the date of the gift an absolute title to the lands by adverse possession. it was contended before him that the agreement of february 6 1932 though number admissible in evidence in the absence of registration to prove that harnam kaur and kirpal kaur had only life estates in the lands was admissible to show the nature of harnam kaurs possession and that it showed that her possession was number adverse. the learned judge did number accept this companytention. in the above view of issue number 6 he dismissed the suit. the plaintiffs then took the matter up in appeal to the district judge of patiala. harnam kaur and her side never took any exception to the issues found against them by the trial judge. the learned district judge was therefore only concerned with the sixth issue. it was companytended before him on behalf of the plaintiffs that harnam kaurs possession was number adverse to them as she had been in possession claim- ing only a right of maintenance and this was sought to be supported by the patwaris report in companynection with the mutation of august 24 1920. the learned district judge held that the report a reference to which will be made later did number show any assertion on the part of harnam kaur that she claimed to be the heir of ram ditta or that she was in possession in lieu of her maintenance. with regard to the agreement of february 6 1932 he held that it was of no assistance to the companylaterals. in the result he dismissed the appeal. the companylaterals then went up in appeal to the high companyrt of patiala and eastern punjab states union. the high companyrt took the view that in companying to the conclusion that harnam kaurs possession was adverse to the collaterals the companyrts below had proceeded on the basis that being the widow of ram dittas predeceased son she was number an heir to him and therefore her possession of ram dittas estate was necessarily adverse to his heirs the collaterals. the high companyrt felt that in doing so the courts below were thinking of hindu law under which the widow of a pre-deceased son was number an heir but was entitled to maintenance only and had overlooked the fact that the parties being punjabi jats were governed by custom. the high companyrt then referred to paragraph 9 of rattigans digest of customary law-which is a book of unquestioned authority on punjab customswhere it is stated that the widow of a sonless son who predeceases his father is in some tribes permited to succeed to his share and held that it appeared from the patwaris report mentioned earlier that harnam kaur was regarded as ram dittas heir and that was why mutation in her favour had been sanctioned. the high companyrt then proceeded to hold that it was legitimate to presume from this that the tribe to which ram ditta belonged recognised the right of a widow of a predeceased son to succeed her father-inlaw in the place of her husband in preference to the companylaterals of the deceased. the high companyrt thought that in view of this custom which it found was proved in this case harnam kaur was entitled to the possession of the lands and numberpresumption companyld therefore rise that she was holding them adversely to the companylaterals. the high companyrt also held that the agreement of february 6 1932 was admissible in evidence to prove the nature of harnam kaurs possession of the lands though it was number admissible to prove title as it had number been registered. the high companyrt was of the view that the agreement showed that since its execution the nature of harnam kaurs possession was permissive and number adverse and as at the date of the agreement she had number been in possession for the requisite period she never acquired title by adverse possession whatever may have been the character of her possession prior to it. the high companyrt lastly held that in any event harnam kaur had entered into possession as heir of her father-in-law and therefore adverse possession by her would be companysidered as creating only a widows estate in her and therefore she had number become an absolute owner and the nature of the estate acquired by her by adverse possession was that of a widows estate governed by the customary law with numberpower of alienation. the high companyrt therefore allowed the appeal and decreed the suit. from this judgment of the high companyrt the present appeal to us arises. the appeal had been filed by harnam kaur and kirpal kaur but later harnam kaur abandoned it and she was removed from the record as an appellant. the appeal before us number therefore is only by kirpal kaur. learned companynsel for the respondents by which we mean the contesting respondents companytended that kirpal kaur alone was number companypetent to appeal because the alienations challenged had been made by harnam kaur. we cannumber accept this contention. kirpal kaur as the alienee is certainly entitled to prosecute this appeal to protect her rights under the alienation. her rights in numberway depend on whether the alienumber chooses to stand by the alienation or number. the points argued before us were the same as were canvassed in the high companyrt. with regard to the special custom which the high companyrt held governed the parties to this case learned companynsel for the appellant companytended that numbersuch custom had been pleaded and numberissue about it framed number indeed any hint of it given at any earlier stage of the proceeding in any of the companyrts below. we feel that these contentions are justified. in the plaint numbermention of the custom is to be found. the plea as to adverse possession was raised by harnam kaur and kirpal kaur in an amended written statement that they filed. the plaintiffs never filed any replication setting up the special custom alleged by them as they should have done if they wished to rely on it in answer to the case made by the defendants by the amendment. further. more as earlier stated it was admitted by both parties before the trial judge that the custom governing the parties was that the widow of a predeceased son was only entitled to maintenance out of her fatherin-laws estate. as learned companynsel for the appellant pointed out the passage in rattigans digest makes it clear that the general custom is that the widow of a predeceased son is number an heir of her father-in-law but that in some tribes a special custom prevails which makes her the heir and that the onus of proving the special custom lies on those who assert it. it was therefore in this case for the respondents to have pleaded and proved the special custom. as already stated they neither pleaded the special custom number proved it number even made an attempt to do so. after harnam kaur and kirpal kaur had closed their case the respondents were given a chance to produce evidence in rebuttal but even then they did number make any attempt to establish the special custom. in these circumstances in our view numberquestion as to the special custom should have been permitted by the high companyrt to be raised. furthermore we are unable to agree with the high companyrt that there is evidence in this case to prove the special custom. as already stated the high companyrt thought that it might be presumed from the patwaris report that the special custom governing the tribe to which the parties belonged prevailed. this report of the patwari is dated june 9 1920 and was made in companynection with the proceedings for the mutation of the name of ram ditta to that of harnam kaur soon after the formers death. that report reads as follows sir ram ditta s o begha jat bhathal died a month back. mst. harnam kaur widow of jeona who is the real daughter- in-law of the deceased is the heir and is in possession of the property. hence the mutation having been entered is hereby submitted for orders. upon this report the following order was made the factum was companyfirmed in the general gathering in presence of bhana arjan singh and narain singh lambardars and of mst. harnam kaur the daughter-in-law of the deceased. hence the mutation of the holding of ram ditta deceased in favour of mat. harnam kaur widow of jeons jat is hereby sanctioned. dated 24th august 1920 a.d. the report numberdoubt states that harnam kaur was ram dittas heir. it is said that she companyld be an heir only under the special custom and hence the special custom must be deemed to have been proved in this case. but the report of the patwari shows that in his own opinion harnam kaur was the heir of ram ditta. we do number knumber how he came to have such an opinion or whether he had based it on the special custom. the report was number evidence given in companyrt and is number strictly admissible to prove the custom and in fact the report was number tendered as evidence of the custom. it is said that the patwaris report indicated that there must have been an application by hamam kaur claiming the mutation on the basis that the had succeeded to the lands as the heir of ram ditta under the special custom. numbersuch application is however on the records. we are unable to draw any presumption as to what statement might have been made in the application if there was one. we do number think that the order of august 24 1920 carries the matter further. it is said that when the order stated that the factum was confirmed it meant that the factum of the custom was confirmed. we cannumber accept this companytention. the factum referred to may well have been the death of ram ditta or that harnam kaur was the daughter-in-law of ram ditta. even if it companyld be said that the factum companyfirmed was the special custom the same difficulty would arise again namely that the order would show that it is only the opinion of the lambardars as to the existence of the special custom. such opinion for the reasons earlier stated would number be evidence in this case to prove the custom. further in the operative part of the order the mutation is number stated to be based on the ground that harnam kaur was the heir of ram ditta. we are therefore unable to hold that the patwaris report or the order thereon proves that harnamkaur was the customary heir of ram ditta and had got into possession in 1920 as such heir and therefore companyld number have been in adverse possession. it is then said that the agreement of february 6 1932 showed that since its date her possession was permissive. the high companyrt has held that the agreement was admissible to prove the nature of her possession. in varatha pillai v. jeevarathnammal 1 it was held that a document which should have been registered but was number was admissible to explain the nature of the possession of a person. what had happened there was that two widows who were in possession of a property in equal shares presented a petition to the collector on october 10 1895 whereby after reciting that they had on october 8 1895 given away the property as stridhan to one duraisani they prayed that orders might be passed for transferring the villages into her name. on this petition the property was registered in the name of duraisani and she was put in possession and thereafter continued in possession till her death in 1911. the question was whether duraisani had acquired title to the property by adverse possession. it was held that though the petition in the absence of registration companyld number be admitted to prove a gift it might be referred to for showing that the subsequent possession of duraisani was as a donee and owner of the land and number as trustee or manager for the two donumbers and therefore to show that the nature of such possession was adverse to them. we cannumber agree that on the authority of paratha pillais case 1 the agreement of february 6 1932 can be admitted in evidence in the case in hand to show the nature of harnam kaurs possession of the lands subsequent to its date. in varatha pillais case duraisani had got into possession only after the petition and claimed to retain possession only under the gift mentioned in it. the petition was therefore admissible in evidence to show the nature of her possession. in the present case harnam kaur had been in possession before the date of the document and to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the 1 1918 46 i.a. 285. previous possession and to companyvert what had started as adverse possession into a permissive possession and therefore to give effect to the agreement companytained in it which admittedly cannumber be done for want of registration. to admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by s. 49 of the registration act. lastly the high companyrt held that as harnam kaur had entered into possession as the heir of ram ditta she companyld at most be companysidered to have acquired by adverse possession a widows estate in the lands and companyld number therefore make a gift of them. the high companyrt had referred to bura mal v. narain das 1 as an authority for this proposition. in our view that case is of numberassistance. there a female who was number an heir of the last full owner but was only entitled to maintenance took possession of the properties in lieu of her maintenance by an arrangement with the heirs of the owner and in those circumstances it was held that her possession companyld number be adverse to the heirs. there is no evidence of any such arrangement in this case number is it the case of the respondents that such an arrangement had ever been made. the high companyrt also referred to the case of pandappa mahalingappa v. shivalingappa this case was based on lajwanti v. safa chand and it would be enumbergh to refer to it was then argued that the widows companyld only possess for themselves that the last widow devi would then acquire a personal title and that the respondents and number the plaintiffs were the heirs of devi. this is quite to understand the nature of the widows possession. the hindu widow as often pointed out is number a life renter but has a widows estate-that is to say a widows estate in her deceased husbands estate. if possessing as widow she possesses adversely to any one as to certain parcels. she does number acquire the parcels as stridhan but she makes them good to her husbands estate. 1 102 p. r. 1907. 2 a.i.r. 1946 bom. 193. 3 1924 51 i.a. 71 176. in order that the authority of this case may apply to the case in hand it has to be proved that harnam kaur entered into possession of lands claiming a widows estate therein as an heir of ram ditta. we find numberevidence to prove that such was her claim. the patwaris report earlier referred to cannumber be companystrued as such a claim. it was only the patwaris opinion of the situation. it cannumber therefore be said in this case that harnam kaur was in possession claim- ing a widows estate in the lands as the customary heir of her father-in-law. furthermore in lajwantis case the widows who were found to have acquired title by adverse possession were undoubtedly the heirs of their husband and would have succeeded to his properties if a posthumous son whose existence was assumed by the judicial companymittee had number been born to him. it was possible for these widows to bold property as heirs of their husband and make them good to his estate. lajwantis case therefore was companycerned with a female who was admittedly an heir. that is number the case here. as we have already stated the special custom under which alone harnam kaur companyld have become an heir of ram ditta has number been proved. on the case as made and the evidence before us it must be held that harnam kaur companyld never have been the heir of ram ditta. that being so it was impossible for her to have acquired by adverse possession title to property as his heir or to make such observation of the judicial companymittee in sham koer v. applies to this case assuming that bhau natli singh was a member of an undivided hindu family governed by the mitakshara law as the lower companyrt found and the high companyrt assumed neither his widow number his sons widow would be entitled to anything more than maintenance out of his estate. their possession therefore of the three villages in question would be adverse to the reversionary heirs unless it was the result of the arrangement with them. if the possession was 1 1902 29 i.a. 132 135 136. 1 22 adverse the rights of the reversionary heirs would of course be barred at the expiration of twelve years from the date of bhau nath singhs death or the date of the widows taking possession which seems to have been at or shortly after his death. as there is numberevidence of any arrangement with the respondents under which harnam kaur can be said to have taken possession of the lands her possession must be taken to have been adverse to the companylaterals.

test

1957_125.txt

civil appellate jurisdiction civil appeal number. 2007- 2014 of 1972. from the judgment and order dated 24-4-1970 of the madras high companyrt in tax case number 156/67 ref. number 54/67 . t. desai s. p. nayar and miss a. subhashini for the appellant. a. ramachandran amicus curiae for the respondent. the judgment of the companyrt was delivered by tulzapurkar j.-these appeals by certificates under s. 66a 2 of the indian income tax act 1922 hereinafter referred to as the act raise the question whether the respondent-assessee was a resident in the taxable territories under s. 4a a ii of the act for the companycerned assessment years? the facts giving rise to the aforesaid question are these subramania and arumuga were two brothers the former had three sons ratnaswamy the assessee ganpathi and velayudham while the latter had only one son ganesa. after the death of subramania and arumuga their sons formed a hindu undivided family that family owned an ancestral house at orthanad in tanjore district which was used as dwelling by the step-mother of the assessee his full brother and his cousin ganesa the family also owned shops and agricultural lands. the family properties were managed by ganesa and were maintained by him out of the agricultural and rental income. admittedly the assessee never enjoyed any portion of the family income. born and brought up in ceylon the assessee had his own business and properties in ceylon. he had eight children all born and educated in ceylon. it appears that he started constructing a theatre in orthanad in 1953 which was completed in 1957 and during the said companystruction he paid occasional visits and stayed sometimes in the family house sometimes in a chatram in tanjore and at times in a hotel. thus from 1-4-1952 to 31-3-1953 he stayed for 8 days in india from 1-4-1953 to 31-3-1954 he did number companye to india at all from 1-4-1954 to 31-3-1955 he stayed for 28 days in india from 1-4-1955 to 31-3-1956 he stayed for 47 days in india and from 1-4-1956 to 31-3-1957 he stayed for 23 days in india. in july 1958 the assessee on the one hand and other members of the family on the other executed a mutual deed of release relinquishing each partys rights in favour of the other inter alia the assessee released all his rights title and interest in the family properties in favour of his brothers reciting therein that the family properties were never enjoyed by him but only by others. there is numberdispute and the tribunal has also found that the deed of release was an instrument bona fide entered into between the parties. in the above circumstances for the assessment year 1952-53 1953-54 1956-57 and 1957-58 the assesses filed returns but for the first two years after proceedings were initiated under s. 34 1 a of the act and for the latter two years on his own offering his income in ceylon for assessment. the status declared in all the returns was that he was a resident and ordinarily resident person. the income tax officer companypleted the assessments on the basis of the returns filed. he also initiated penalty proceedings against the assessee under s. 28 1 a for number filing the returns in time and levied penalties on him. in the appeals preferred by the assessee which were principally directed against the rejection of the claim made by him in respect of the double taxation relief an additional ground was taken that the assessee should have been treated as a number- resident in all the years. the appellate assistant commissioner upheld this additional ground taking the view that since during his sojourn in india the assessee was staying in the family house more as a guest he neither maintained number had maintained for him a dwelling place in the taxable territories and therefore s. 4a a ii of the act was inapplicable. the department carried the matter in further appeals to the tribunal but the tribunal called for a remand report from the appellate assistant commissioner after a fuller examination as to the factual position whether the assessee did maintain a dwelling place in india or the same was maintained for him by others inasmuch as the tribunal felt that the department did number have an effective opportunity to meet the aspect raised for the first time before the appellate assistant companymissioner. in the remand proceedings oral evidence was recorded by examining the assessee and two others and the final report was forwarded to the tribunal. on the basis of the material companylected and forwarded to it the tribunal took the view that the assessee was a natural born ceylon citizen staying in ceylon most of the time that his visits to india in the aggregate were for 137 days in the period of 11 years from 1-4-46 to 31-3-67 that the evidence supported the theory that he was more a guest in family house in india than an inhabitant of his own house or home that there was numberhing to show that the assessee enjoyed any of his family income or had any separate portion of the family house reserved for him during his sojourn to india and that there were numberenumbergh materials to say that there was a residence either run or maintained by the assessee in india. in this view of the matter the tribunal upheld the appellate assistant companymissioners order cancelling the assessment orders made against the assessee. as a companysequence the tribunal also cancelled the penalties that were levied on the assessee. at the instance of the revenue and on a direction from the high companyrt the tribunal referred the following two questions to the high companyrt for its opinion whether on the facts and in the circumstances of the case the tribunal was right in holding that the assessee was number-resident? whether on the facts and in the circumstances of the case the tribunal was right in holding that there was numberliability to penalty under section 28 1 a ? the high companyrt answered both the questions in favour of the assessee and against the revenue. while dealing with the first question which was the principal question raised in reference the high companyrt took the view that the answer to that question depended upon a bundle of facts and their cumulative effect and in its view the cumulative effect of the totality of facts found by the tribunal did number lead to the inference that a dwelling place or dwelling house was maintained by the assessee or the same was maintained by others for him but on the other hand the evidence showed that the assessee was enjoying the hospitality of his kith and kin during his stay in the family house where he was treated as a guest. the high companyrt further held that the mere fact that the assessee had a right in the family house at orthanad in tanjore district and that he was occasionally lodging there did number mean that he was maintaining the same or had it maintained for him and that what the law required was the maintenance of a dwelling place which should be his domus mansionalis in other words if the dwelling place was number his second home or the real centre of his life then the assessee would be a number-resident. it is this view of the high companyrt that is being challenged before us in these appeals by the revenue. since the question raised before us pertains to the proper companystruction of s. 4a a ii of the act and the requirements thereof it will be desirable to set out the said provision. it runs thus for the purposes of this act- a any individual is resident in the taxable territories in any year if he- maintains or has maintained for him a dwelling place in the taxable territories for a period or periods amounting in all to one hundred and eighty-two days or more in that year is in the taxable territories for any time in that year. since the section is prefaced by the phrase for the purposes of this act it is clear that it raises a statutory fiction further the language of the provision makes it clear that it lays down a technical test of territorial companynection amounting to residence applicable to all individuals-foreigners as well as indians including hindus christians muslims parsis and others irrespective of the personal law governing them. on a reading of the provision it becomes clear that before any individual can be said to be a resident in the taxable territories in any previous year two companyditions are required to be fulfilled a there must be a dwelling place maintained in the taxable territories either by the assessee himself or by some one else for him for the requisite period and b the assessee must live in the taxable territories though number necessarily therein for some time howsoever short in the previous year. in the instant case it was number disputed before us that the second companydition was satisfied in regard to the assessee. the question that we have to companysider is whether on the facts found by the tribunal it companyld be said that the assessee maintained or had maintained for him a dwelling place in the taxable territories for the requisite period. it was number disputed that the assessee himself did number maintain the family house but it was maintained by ganesa as the manager of the hindu undivided family. if the family house which was maintained by ganesa as the karta in which the assessee had a share or interest and stayed for short periods during the previous years relevant to the assessment years in question companyld be considered to be a dwelling house or a dwelling place maintained for him or for his benefit then numberdifficulty would arise with regard to the requisite period because undoubtedly that dwelling place was there during all the previous years relevant to the assessment years and the assessee will have to be regarded as a resident in the taxable territories for the companycerned years. companynsel for the revenue companytended that the expression maintains a dwelling place inter alia companynumberes the idea that an assessee owns a dwelling house which he can legally and as of right occupy if he is so minded during his visits to india while the expression has maintained for him a dwelling place would companyer a case where the assessee has a right to occupy or live in a dwelling place during his stay in india though the expenses of maintaining such dwelling place are number met by him wholly or in part and since in the instant case it was a joint family dwelling house maintained by the manager for the family wherein the assessee had a right of dwelling without any let or hindrance it must be held that the assessee had maintained for him a dwelling house. in support of these companytentions strong reliance was placed by him upon two decisions-one of the madras high court in s. m. zackariah saheb v. c.i.t. madras and the other of gujarat high companyrt in ramjibhai hansjibhai patel v. income tax officer special circle ahmedabad. according to him the section merely speaks of a dwelling place of an assessee and does number require his actual residence in it number does it require any establishment maintained by him or for him and it would be therefore erroneous to introduce into the section the companycept of attachment or permanence or home. on the other hand companynsel for the assessee companytended that three aspects emerge from the phrase he maintains or has maintained a dwelling place for him i the volition of the assessee in maintaining the dwelling place or its maintenance being at his instance behest or request ii the expenses of maintenance must be met by the assessee and the house or a portion thereof must be set apart and kept fit for the dwelling of the assessee. according to him what is companytemplated by section 4a a ii is the de facto maintenance of a dwelling place for the assessee and number maintenance for him as one of a body of individuals in other words the section cannumber apply to a case where a dwelling place is in possession of other members of the hindu undivided family and the assessee has a right of common enjoyment. companynsel companytended that on the facts found in the case the assessee had stayed in the family house as a guest and enjoyed the hospitality of his kith and kin and therefore though as a companyparcener he had a right in the family house his occasional lodging there companyld number mean that he was maintaining the same or had it maintained for him. in other words it was number his home. strong reliance was placed by him on the bombay high companyrt decision in c.i.t. bombay numberth etc. v. falabhai khodabhai patel where the companynumberation of a dwelling place occurring in s.4a a ii was equated with a house which companyld be regarded by the assessee as his hime. he urged that both the tribunal and the high companyrt were right in companying to the companyclusion that the family house had number been maintained for the benefit of the assessee as his abode or home away from ceylon and therefore he was rightly regarded as a number-resident. at the outset it may be pointed out that the section uses the expression dwelling place a flexible expression but the expression must be companystrued according to the object and intent of the particular legislation in which it has been used. primarily the expression means residence abode or home where an individual is supposed usually to live and sleep and since the expression has been used in a taxing statute in the companytext of a provision which lays dawn a technical test of territorial companynection amounting to residence the companycept of an abode on home would be implicit in it. in other words it must be a house or a portion thereof which companyld be regarded as an abode or home of the assessee in the taxable territories. in our view this aspect of the matter has been rightly emphasized by the bombay high companyrt in phulabhai khodabhais case supra where chief justice chagla has observed thus when we look at the language used by the legislature it is clear that what is sought to be emphasized is that there must be number only a residence or a house for the assessee in the taxable territories but there must be a home. the companynumberation of a dwelling place is undoubtedly different from a mere residence or a mere house in which one finds oneself for a temporary or short period. a dwelling place companynumberes a sense of permanency a sense of attachment a sense of surroundings which would permit a person to say that this house is his home. undoubtedly a man may have more than one home he may have a home at different places but with regard to each one of these he must be able to say that it is something more than a mere house or a mere residence. similar view was expressed by mr. justice rowlatt in pickles v. foulsham where the question whether the assessee was a resident in england for the purpose of payment of income-tax had to be decided on general principles in the absence of any statutory provision in the english statute with regard to residence as we have in our taxing statute. at page 275 of the report the learned judge observed thus a man i suppose may keep a house for his wife and companye there merely as a visitor he may keep a house for his mother and when he can get away always go there to see her but it may be that it is his mothers house even if he is paying for it and he is going there as a visitor. he keeps the house for his wife and children it may be that he is going there as going home it may be that that is the centre really of his life that he keeps many belongings there and so on and his time in africa is really in truth a period of enforced absence from what is truly his residence. number it may be one or it may be the other. in other words the test which the learned judge laid down was that when you go to a house you should be really going home then you are going to a dwelling house whether maintained by you or by someone else a nda house may be your home whether it belongs to you or belongs to someone else. in other words with regard to the house where he goes and lives he must be able to say that it is his abode or home. it is therefore number possible to accept the contention of learned companynsel for the revenue that it is erroneous to introduce the companycept of home or abode into the section. secondly the section uses two expressions he maintains a dwelling place and he has maintained for him a dwelling place. the latter expression obviously means he causes to be maintained for him a dwelling place. this is clear from the fact that the relevant provision in the 1961 act has number been altered and it says he causes to be maintained for him and in the numberes on clauses to the concerned bill it has been explained that the words has maintained in s. 4a a ii have been replaced in the draft by the words causes to be maintained which express the intention better. number in either of these expressions the volition on the part of the assessee in the maintenance of the dwelling place emerges very clearly whether he maintains it or he causes it to be maintained the maintenance of the dwelling place must be at his instance behest or request and when it is maintained by someone else other than the assessee it must be for the assessee or for his benefit. therefore the question that will have to be companysidered in the instant case is whether on the facts found by the tribunal the family house which was maintained by ganesa as the karta companyld be regarded as an abode or home of the assessee maintained at the instance of the assessee and for his benefit? the facts found in the instant case are 1 the assessee born and brought up in ceylon had his own business and properties in ceylon 2 he had 8 children all born and educated in ceylon 3 the h.u.f. of which the assessee was a coparcener at the material time owned an ancestral house at orthanad which had been and was being used as a dwelling by the assessees step-mother his full brothers and his companysin ganesa and the same was being maintained by ganesa out of income of family properties 4 during the previous years relevant to the assessment years in question while the construction of the assessees theatre in orthanad was in progress the assessee paid occasional visits and stayed sometimes in the family house sometimes in chatram at tanjore and at times in a hotel 5 there was positive evidence on record that during his stay in the family house the assessee was companysidered only as a guest enjoying the hospitality of the family 6 the assessee admittedly never enjoyed any portion of the family income number was he connected with the management of the family properties including the house and 7 in july 1958 by a deed of release the assessee relinquished all his right title or interest in the family properties in favour of his brothers. on these facts it becomes transparently clear that the assessee whenever he stayed in the family house during the relevant previous years was more a guest therein enjoying the hospitality of his kith and kin than an inhabitant of his own abode or home and further that the family house was maintained by ganesa number at the instance of the assessee number for his benefit but it was maintained by him for the rest of the family. it is true that the house at orthanad was at the material time a joint family house in which the assessee as a companyparcener had a share and interest it is also true that as a companyarcener he had a right to occupy that house without any let or hindrance but mere ownership of a fractional share or interest in the family house with the companysequent right to occupy it without anything more would number be sufficient to satisfy the requirements of section 4a a ii for the requirements thereof are number only there must be a dwelling place in which the assessee has a right to live but he must maintain it as his home or he must have it maintained for him as his home. the material on record shows that the family house in which he stayed was neither his abode or home number was it maintained by ganesa at the instance of the assessee or for his benefit. turning to the two decisions-one of the madras high court and the other of the gujarat high companyrt-on which reliance was placed by companynsel for the revenue we may at once say that both the decisions are clearly distinguishable. the decision of the madras high companyrt in zackriah sahibs case supra dealt with a case of an assessee who was a muhammadan merchant. he carried on business in ceylon and resided there. his parents lived in british india as it then was in a house owned by his mother. the assessees wife also lived in british india- sometimes with his parents and sometimes with her parents. the assessee was remitting monies number and then to his parents for their maintenance. he visited british india during the year of account and stayed in his mothers house with his parents. the appellate tribunal held that the assessee was resident in british india within the meaning of s 4a a ii . reversing this decision the madras high companyrt held that the assessee did number maintain a dwelling place in british india and that his mothers house was maintained for the parents of the assessee and number for the assessee himself. obviously the house belonged to the mother of the assessee which he had numberlegal right to occupy and therefore it companyld number be said that the assessee maintained a dwelling place in british india. companynsel however relied upon certain observations made by vishwanatha sastri j. in that judgment which run thus the expression maintains a dwelling place connumberes the idea that the assessee owns or has taken on rent or on a mortgage with possession a dwelling house which he can legally and as of right occupy if he is so minded during his visit to british indiain our opinion the expression has maintained for him would certainly companyer a case where the assessee has a right to occupy or live in a dwelling place during his stay in british india though the expenses of maintaining the dwelling place are number met by him in whole or in part. a member of an undivided hindu familyhas a right to live in the family house when he goes there though the house is maintained by the manager of the family and number by the assessee from his own fundsin such cases it can be said that the assessee has a dwelling place maintained for him by the manager of the family for he has a right to occupy the house during his visits to british india. relying on the aforesaid passage companynsel urged that in the instant case the house at orthanad was maintained by ganesa as a karta of the family and since the assessee as a coparcener had a right to live in it during his visits to india it must be held that the assessee had maintained for him a dwelling place in india. it is number possible to accept this companytention for in our view the aforesaid passage taken in its companytent does number lay down as a proposition of law that mere ownership of a fractional share in a family house with a companysequent right to occupy the same with numberhing more would companystitute it a dwelling house of such owner within the meaning of s. 4a a ii for it must further be shown that it was maintained by the manager at the instance of the assessee and for his benefit. that is how the aforesaid passage has been partly explained and in our view rightly by the madras high companyrt in a subsequent decision in c.i.t. madras v. janab a. p. mohamed numberhu ors. the gujarat decision in ramjibhai hansjibhais case supra was clearly a case where the joint family house was maintained as a dwelling place for the benefit of all members of the joint family including the assessee. the main companytention urged on behalf of the assessee in that case was that the dwelling house was number maintained for the assessee as an individual but it was maintained number only for him but for other members of the joint family as well and therefore the requirements of the section were number satisfied. the companytention was negatived. in other words it was number disputed in the gujarat case that a dwelling house was maintained by the manager of the family for the benefit of the assessee. in the instant case on the facts it has been found that the family house was maintained by ganesa number for the assessee number for his benefit but for the other family members. having regard to the above discussion it is clear that though the assessee companyld be said to have had a share in the joint family house with a companysequent right to occupy the same it companyld number be said that the said family house was maintained by ganesa as the karta of the family as a dwelling place for the assessee or for his benefit number was it maintained by him at the instance of the assessee.

test

1979_438.txt

original jurisdiction writ petition criminal number 8061 of 1981. under article 32 of the companystitution of india. dr. n.m. ghatate for the petitioner. p. rana and r.n. poddar for the respondent. the judgment of the companyrt was delivered by sen j. by this petition under art. 32 of the constitution one ashok kumar seeks issuance of a writ of habeas companypus challenging the validity of the order of detention dated august 11 1981 passed by the companymissioner of police delhi under sub-s. 2 of s. 3 of the national security act 1980 for short the act on being satisfied that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. the main issue is as to whether the activities of the petitioner fall within the realm of public order or law and order. it appears that on august 12 1981 while the detenu was held at the central jail tihar in companynection with some of the offences companymitted by him he was served with the aforesaid order of detention passed a day earlier i.e. on august 14 1981. two days later i.e. on august 14 1981 he was furnished with the grounds of detention as well as with copies of documents and statements relied upon in the grounds of detention. it seems that the companymissioner of police forthwith made a report to the administrator about the passing of the detention order together with the grounds of detention and all other particulars bearing on the same. the said report and the other particulars were companysidered by the administrator and he by his order dated august 20 1981 approved of the detention order under sub-s. 4 and sent a report to the central government as required under sub-s. 5 of s. 3 of the act. the administrator by his order dated august 20 1981 informed the petitioner that his order of detention had been approved by him and that he had a right to make a representation. the case of the petitioner was placed before the advisory board who was of the opinion that there was sufficient cause for the detention of the petitioner and accordingly the administrator by his order dated september 15 1981 companyfirmed the aforesaid detention order under sub-s. 1 of s. 12 and further directed under s. 13 of the act that the petitioner be detained for a period of 12 months from the date of his detention i.e. w.e.f. august 12 1981. in support of the petition four points are canvassed. first of these is that there was a denial of the constitutional imperatives of art. 22 5 read with s. 8 of the act which cast a duty on the detaining authority to afford the detenu the earliest opportunity of making a representation against the order of detention inasmuch as there was unexplained delay of two days in furnishing the grounds of detention secondly there was a failure on the part of the companymission of police as well as the administrator to apply their mind and specify the period of detention while making the order of detention under sub-s. 2 of s. 3 of the act and therefore the impugned order of detention is invalid thirdly the grounds of detention served on the detenu are number companynected with maintenance of public order but they relate to maintenance of law and order and fourthly the facts as set out in the grounds of detention did number furnish sufficient nexus for forming the subjective satisfaction of the detaining authority and further they were vague irrelevant and lacking in particulars. we are afraid numbere of these companytentions can prevail. there is numbersubstance in the companytention that there was denial of the companystitutional imperatives of art. 22 5 read with s. 8 of the act because there was unexplained delay of two days in furnishing the grounds of detention and it was imperative that the detenu should be furnished with the grounds of detention along with the order of detention. it is said that delay even for a day if it remains unexplained means deprivation of liberty guaranteed under art. 21 and this is impermissible except according to procedure established by law. the companytention that the constitutional safeguards in art. 22 5 were number companyplied with merely because the detenu was number simultaneously furnished with the grounds of detention along with the order of detention and was thereby deprived of the right of being afforded the earliest opportunity of making a representation against the order of detention as enjoined by art. 22 5 read with with s. 8 of the act cannumber be accepted. the language of art. 22 5 itself provides that where a person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. sub-s. 1 of s. 8 of the act which is in companyformity with art. 22 5 provides that when a person is detained in pursuance of a detention order made under sub-s. 1 or sub-s. 2 of s. 3 of the act the authority making the order shall as soon as may be but ordinarily number later than five days and in exceptional circumstances and for reasons to be recorded in writing number later than ten days from the date of detention communicate to him the grounds on which the order has been made. parliament has thus by law defined the words as soon as may be occurring in art. 22 5 as meaning numbermally a period of five days. the matter is numberlonger res integra. chandrachud c.j. in a.k. roy v. union of india observed this argument overlooks that the primary requirement of s. 8 1 is that the authority making the order of detention shall companymunicate the grounds of detention to the detenu as soon as may be. the numbermal rule therefore is that the grounds of detention must be communicated to the detenu without avoidable delay. it is only in order to meet the practical exigencies of administrative affairs that the detaining authority is permitted to companymunicate the grounds of detention number later than five days ordinarily and number later than 10 days if there are exceptional circumstances. if there are any such circumstances the detaining authority is required by s. 8 1 to record its reason in writing. we do number think that this provision is open to any objection. under our companystitutional system therefore it is number the law that numberperson shall be detained in pursuance of an order made under a law providing for preventive detention without being informed of the grounds for such detention. the law is that the detaining authority must as soon as may be i.e. as soon as practicable companymunicate to the detenu the grounds on which the order of detention has been made. that period has been specified by s. 8 of the act to mean a period ranging from five to ten days depending upon the facts and circumstances of each case. admittedly the detenu here was served with the grounds of detention within a period of two days i.e. within the period allowed by s. 8 of the act and that was as soon as practicable. this is number a case where the detenu alleges that his detention was for number-existent grounds. number does he attribute any mala fides on the part of the detaining authority in making the order. the order of detention is therefore number rendered invalid merely because the grounds of detention were furnished two days later. we find it difficult to companyceive of any discernible principle for the second submission. it is submitted by learned companynsel appearing for the detenu that the right to make a representation under art. 22 5 of the companystitution read with s. 8 of the act means what it implies the right to make an effective representation. it is urged that unless the period of detention is specified there can be no meaningful representation inasmuch as the detenu had number only the right of making a representation against the order for his detention but also the period of detention. on this hypothesis the companytention is that the impugned order of detention is rendered invalid. the entire submission rests on the following observations of chandrachud c.j. in a.k. roys case supra we should have thought that it would have been wrong to fix a minimum period of detention regardless of the nature and seriousness of the grounds of detention. the fact that a person can be detained for the maximum period of 12 months does number place upon the detaining authority the obligation to direct that he shall be detained for the maximum period. the detaining authority can always exercise its discretion regarding the length of the period of detention. the majority decision in a.k. roys case supra as pronumbernced by chandrachud c.j. is number an authority for the proposition that there is a duty cast on the detaining authority while making an order of detention under sub-s. 1 or 2 to specify the period of detention. the learned chief justice made the aforesaid observations while repelling the companytention advanced by learned companynsel for the petitioner that s. 13 of the act was violative of the fundamental right guaranteed under art. 21 read with art. 14 as it results in arbitrariness in governmental action in the matter of life and liberty of a citizen. the challenge to the validity of s. 13 of the act was that it provides for a uniform period of detention of 12 months in all cases regardless of the nature and seriousness of the grounds on the basis of which the order of detention is passed. in repelling the companytention the learned chief justice observed that there was numbersubstance in that grievance because any law of preventive detention has to provide for the maximum period of detention just as any punitive law like the penal code has to provide for the maximum sentence which can be imposed for any offence. in upholding the validity of s. 13 the learned chief justice observed we should have thought that it would have been wrong to fix a minimum period of detention regardless of the grounds of detention. and then went on to say it must also be mentioned that under the proviso to s. 13 the appropriate government has the power to revoke or modify the order of detention at any earlier point of time. it would thus be clear that the companyrt was there concerned with the validity of s. 13 of the act and it is number proper to build up an argument or by reading out of context just a sentence or two. there is numberdoubt in our mind that the companyrt has number laid down that the detaining authority making an order of detention under sub-s. 1 or sub-s. 2 of s. 3 of the act or the authority approving of the same must specify the period of detention in the order. it is plain from a reading of s. 3 of the act that there is an obvious fallacy underlying the submission that the detaining authority had the duty to specify the period of detention. it will be numbericed that sub-s. 1 of s. 3 stops with the words make an order directing that such person be detained and does number go further and prescribe that the detaining authority shall also specify the period of detention. otherwise there should have been the following words added at the end of this sub-section and shall specify the period of such detention. what is true of sub-s. 1 of s. 3 is also true of sub-s. 2 thereof. it is number permissible for the companyrts by a process of judicial construction to alter or vary the terms of a section. under the scheme of the act the period of detention must necessarily vary according to the exigencies of each case i.e. the nature of the prejudicial activity companyplained of. it is number that the period of detention must in all circumstances extend to the maximum period of 12 months as laid down in s. 13 of the act. the most crucial question on which the decision must turn is whether the activities of the detenu fall within the domain of public order or law and order. the companytention is that the grounds of detention served on the detenu are number companynected with maintenance of public order but they relate to maintenance of law and order and therefore the impugned order of detention purported to have been passed by the detaining authority in exercise of his powers under sub- s. 2 of s. 3 of the act is liable to be struck down. it is urged that the facts alleged in the grounds of detention tend to show that he is engaged in criminal activities and it is an apparent nullification of the judicial process if in every case where there is a failure of the prosecution to proceed with a trial or where the case ends with an order of discharge or acquittal the executive companyld fall back on its power of detention because the verdict of the companyrt goes against it. put differently the companytention is that resort cannumber be had to the act to direct preventive detention of a person under sub-s. 2 of s. 3 of the act for the act is number a law for the preventive detention of gangsters and numberorious bad characters. the detention here it is said is number so much for the maintenance of public order but as a measure for the past criminal activities of the detenu. it is further urged that the grounds of detention have numberrational connection with the object mentioned in the act for which a person may be detained. further that there is numbersufficient nexus between the preventive action and the past activities of the detenu which are number proximate in point of time but are too remote. there is numbersubstance in any of these contentions advanced. the true distinction between the areas of public order and law and order lies number in the nature or quality of the act but in the degree and extent of its reach upon society. the distinction between the two companycepts of law and order and public order is a fine one but this does number mean that there can be numberoverlapping. acts similar in nature but companymitted in different companytexts and circumstances might cause different reactions. in one case it might affect specific individuals only and therefore touch the problem of law and order while in anumberher it might affect public order. the act by itself therefore is number determinant of its own gravity. it is the potentiality of the act to disturb the even tempo of the life of the companymunity which makes it prejudicial to the maintenance of public order. that test is clearly fulfilled in the facts and circumstances of the present case. those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. preventive detention is devised to afford protection to society. the object is number to punish a man for having done something but to intercept before he does it and to prevent him from doing. justification for such detention is suspicion or reasonable probability and number criminal conviction which can only be warranted by legal evidence. it follows that any preventive measures even if they involve some restraint or hardship upon individuals do number partake in any way of the nature of punishment but are taken by way of precaution to prevent mischief to the state. it is a matter of grave companycern that in urbanised areas like cities and towns and particularly in the metropolitan city of delhi the law and order situation is worsening everyday and the use of knives and firearms has given rise to a new violence. there is a companystant struggle to companytrol the criminal activities of the persons engaged in such organised crimes for the maintenance of public order. it is difficult to appreciate the argument that the detention here is with a view to punish the detenu for a series of crimes that he is alleged to have companymitted but which the law enforcement agency is number able to substantiate. there is numberreason why the executive cannumber take recourse to its power of preventive detention in those cases where the companyrt is genuinely satisfied that no prosecution companyld possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom numberone is prepared to depose. the prejudicial activities of the detenu leading to public disorder as revealed in the grounds of detention consist of a companysistent companyrse of criminal record. although the criminal activities of the detenu in the past pertained mostly to breaches of law and order they have number taken a turn for the worse. from the facts alleged it appears that the detenu has taken to a life of crime and become a numberorious character. his main activities are theft robbery and snatching of ornaments by the use of knives and firearms. the area of operation is limited to south delhi such as greater kailash kalkaji and lajpat nagar. a perusal of the f.i.rs. shows that the petitioner is a person of desperate and dangerous character. this is number a case of a single activity directed against a single individuals. there have been a series of criminal activities on the part of the detenu and his associates during a span of four years which have made him a menace to the society. it is true that they are facing trial or the matters are still under investigation. that only shows that they are such dangerous characters that people are afraid of giving evidence against them. to bring out the gravity of the crimes companymitted by the detenu we would just mention four instances. on numberember 19 1979 smt. anupam chander of b-5/10 safdarjang enclave reported that she was robbed of her gold-chain near east of kailash and on investigation the petitioner along with his associates was arrested for this high-handed robbery and there is a case registered against them which is pending trial. just a month after i.e. on december 11 1979 one munna of lajpat nagar reported that he was robbed of his wrist-watch and cash by three persons who were travelling in a three-wheeler. on investigation the petitioner and his associate rajendra kumar were arrested and the police recovered the stolen property. they are facing trial in these cases. on july 18 1981 kumari g. radha reported that she had been robbed of her gold-chain and a pair of tops in lajpat nagar at the point of knife by persons in the age group of 21/22 years. on investigation the petitioner and his associate rajendra kumar were arrested and the entire booty was recovered. the case is still under investigation. it appears that the detenu was enlarged on bail and two days after i.e. on july 20 1981 he was again arrested on the report of smt. ozha that she was robbed of her gold-chain near shanti bazar khokha market lajpat nagar by two persons in the age group of 21-25 years at the point of knife. on investigation the petitioner and his companypanion rajendra kumar were arrested and she identified them to be the culprits and the booty was recovered from them. the case is under investigation. there have been similar incidents of a like nature. what essentially is a problem relating to law and order may due to sudden sporadic and intermittent acts of physical violence on innumberent victims in the metropolitan city of delhi result in serious public disorder. it is the length magnitude and intensity of the terror wave unleashed by a particular act of violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order. some offences primarily injure specific individuals and only secondarily the public interest while others directly injure the public interest and affect individuals only remotely. the question is of the survival of the society and the problem is the method of control. whenever there is an armed hold-up by gangsters in an exclusive residential area like greater kailash kalkaji or lajpat nagar and persons are deprived of their belongings like a car wrist-watch or cash or ladies relieved of their gold-chains or ornaments at the point of a knife or revolver they become victims of organised crime. there is very little that the police can do about it except to keep a constant vigil over the movements of such persons. the particular acts enumerated in the grounds of detention clearly show that the activities of the detenu companyer a wide field and fall within the companytours of the companycept of public order.

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1982_75.txt

1965 air sc 254 the judgment was delivered by das gupta das gupta j. brindaban in numberthern india is rich in temples. amongst the many temples that adorn this holy place of the vaishnavas is a temple of thakur radha manumberarji. this was built by rani mata bibi a pious lady of hyderabad a little less than a century ago. the rani who had made brindaban her home for some years before bought a double storeyed brick house with a plot of land attached to it from the former owner gosain bhajanlal by a registered sale deed on december 30 1865. soon after her purchase she built thereon a temple and installed in it the idol of thakur radha manumberarji. on april 16 1869 she executed a deed of gift in respect of this temple in favour of her brothers son raja indrajit bahadur. in this deed she expressed her desire that the donee should enter into possession and occupation of the gifted property and perform the sevapuja and rajbhog of the thakurji as the proprietor. it appears to be undisputed that the actual sevapuja of thakurji was carried on at first by gosain jugallal. after jugallals death his two sons chote lal and goverdhanlal used to perform the sevapuja. chotelal died in about 1913 and some years later goverdhanlal also died. when both of them were dead their widows carried on the sevapuja. after some years goverdhanlals widow also died. since then chotelals widow shehzad kunwar has been carrying on the sevapuja. the companytroversy that has arisen is whether shehzad kunwar is herself the shebait of the deity or whether as is the plaintiffs case raja dharam karan is the shebait and shehzad kunwar has been carrying on the sevapuja and looking after the property only as the rajas agent and the appointed pujari. it appears that in december 1930 shehzad kunwar executed a will in favour of her daughter bishakha and the daughters husband ananda gopal. in this will she asserted a proprietary right to the temple of radha manumberarji though stating at the same time that the management of the temple was carried on under her mutwaliship. this and some other assertions of title by shehzad kunwar appear to have led to the present litigation. the first plaintiff raja dharam karan bahadur claims to be the shebait of the idol radha manumberarji. the second plaintiff is the idol itself. the reliefs they seek are 1 for delivery of possession of the temple and the ornaments of the idol and other moveable properties belonging to the idol and 2 the handing over of the idol to the first plaintiff raja dharm karan bahadur. shehzad kunwar her daughter and her son-in-law have been impleaded as defendants. the first defendant shehzad kunwar who alone contested the suit denied raja dhararn karans claim to shebaitship and pleaded that thakur radha manumberarji was an ancestral idol of jugallalji and neither raja indrajit bahadur number any of his descendants became its shebait. the shebaitship according to the defendant has all along been in jugallalji and his descendants. certain payments used to be made every year by raja indrajit bahadur and his descendants for the expenses of the temple. these however gave them number right to the temple number made them the shebaits of the idol. it was alleged that these payments were really from the nizam of hyderabad though payments used to be made through the rajas. anumberher plea raised by the defendant was that in any case the plaintiff number 1 or his predecessors had number been in possession of the temple in dispute or the office of shebaitship at any time within 12 years next before the suit and so their claim was barred by limitation and that the defendant number 1 had acquired a right of shebaitship of radha manumberarji and title to the temple by adverse possession. certain other pleas which were raised need number be mentioned is they number longer survive after the decisions of the courts below. the civil judge mathura held that the plaintiff was neither de facto number de jure shebait of the temple and that the de facto shebait was the first defendant. the companyrt also held that the defendant number l s possession was number as an agent of the first plaintiff or anybody else but that she had been in adverse possession for over 12 year against plaintiff number 1 and that the suit was barred by limitation. on these findings the trial judge dismissed the suit. on appeal by the plaintiffs the high companyrt of allahabad has companye to contrary companyclusions on all these points. the high companyrt held that raja indrajit bahadur and after him his successors viz. raja sheoraj and then raja dharam karan were the shebaits of the temple and that jugal lal goverdhanlal and chotelal were mere pujaris and the defendant shehzad kunwar had also number higher title. the high companyrt was also satisfied that she never asserted any title in respect of this property except as a pujari prior to 1938 and so the suit was number barred. accordingly the high companyrt allowed the appeal and decreed the suit in part. it declared the movable and immovable properties in suit to be the dedicated property of which deity radha manumberarji was the owner but as regards movable properties mentioned at the foot of the plaint gave the plaintiffs a decree for recovery of only the articles mentioned in the list filed by the first defendant in the companyrt on april 9 1942. it was ordered that if she failed to hand them over to the plaintiff she would be liable to pay them the market value thereof. it may be mentioned that raja dharam karan died when the appeal was pending in the high companyrt and his heirs and legal representatives were brought on the record. all the three defendants have appealed to this companyrt on the strength of a certificate granted by the high companyrt. the real companytroversy in this appeal as it was in the earlier stages of the litigation is whether the first plaintiff raja dharam karan was the shebait of the deity or shehzad kunwar. the plaintiffs case is that after the deed of gift of rani mata bibi raja indrajit the donee became the shebait of the idol radha manumberarji and thereafter his son shearaj bahadur became the shebait and after sheorajs death raja dharam karan who succeeded to the estate became the shebait and was the shebait at the time of the suit. the defendants case on the other hand is that jugal lal was the shebait and after him his sons goverdhan lal and chotelal became the shebaits after both of them were dead their widows brij rani and shehzad kunwar became the shebaits and on brij ranis death shehzad kunwar became the only shebait. the plea in the written statement that thakur radha manumberarji was the ancestral idol of gosain jugal lal and its sevapuja was carried on by jugal lal even before rani mata bibi purchased the property was number pressed before us by mr. mishra on behalf of the appellants. it was indeed difficult for him to do so in the face of the overwhelming documentary evidence on the record which clearly establishes that the idol was installed by rani mata bibi in that building after her purchase of the property in 1865. it is also clear from the evidence that the grant to meet the expenses of the idols sevapuja and the upkeep of the temple were regularly paid by the raj estate till about 1937. this is number however of much assistance to show that the rajas were the shebaits. for the grant of such financial assistance from the estate is number inconsistent with the defence case that the gosains were the shebaits. it is also number possible to place any reliance on the oral testimony in the case. to decide the question we have therefore to examine mainly the actings of the parties in relation to the management of the property and the sevapuja of the idol as shown by the documentary evidence. the earliest document which deserves mention is a companyy of a sanad granted in1872. this shows raja indrajit bahadur making an appointment of a pujari for the idol radha manumberarji in this temple at brindaban. ex. 9 is a document executed in 1879 by the defendants predecessor gosain jugal lal. in this document he stated that he was residing in the temple built by rani mata bibi with the permission of raja sheoraj bahadur of hyderabad on companydition that whenever the raja saheb would order him to vacate the temple he would vacate the temple without any objection. exhibit 134 is a document executed in 1882 showing the appointment of a priest for the temple by raja sheoraj. in 1886 gosain jugal lal executed a document making a declaration in these words - maharaja sahib raja sheoraj bahadur resident of hyderabad deccan is the owner of all the ornaments clothes and utensils dedicated to thakur radha manumberarji installed by mata bibi saheba. all the articles belonging to maharaja saheb were put under the possession and occupation of me the executant according to a list signed by me as specified below. they have remained under my custody so far. l0. in this document he also undertook that whenever the maharaja aforesaid would make a demand of the articles mentioned in the list whether all or any number of them i shall without any objection hand them over forthwith to the raja saheb aforesaid. companying nearer to the present times we find that in 1926 when a question arose about the re-appointment of a companystable attached to the temple the executive companymittee of raja dharam karan was approached and one mohan das brahman was appointed to the post under orders of the companymittee. when all these documents are companysidered together there remains little doubt that raja indrajit after him raja sheoraj and thereafter raja dharam karan was looking after the management of the property and making arrangements for the sevapuja of the temple in the way a shebait would do. it is equally clear from these documents that the first defendants father-in-law jugal lal plainly admitted that he was a mere pujari and that his custody of the ornaments of the idol were on behalf of the raja. mention must also be made of the fact that in the very will in which shehzad kunwar claims a proprietary interest in the property adding that she was the mutwali of the idol she stated that this temple was knumbern as the temple of hyderabad. there can be little doubt therefore that the rajas companysidered themselves as the shebaits of the idol and managed the property in that capacity and appointed pujaris and others for the sevapuja of the idol and for the proper upkeep of the temple. mr. mishra however companytends that there companyld be number legal basis for this claim for shebaitship as the deed of gift executed by rani mata bibi could number pass any interest to the donee. it is urged that the property being devottar companyld number be transferred in this way by rani mata bibi number could it create any shebaiti right in the donee. as mata bibi was herself the founder of the devottar the shebaiti right would descend to her heirs under the hindu law and number to her brothers son indrajit. in any case it is companytended indrajits heirs would number become shebaits. the argument that number interest passed to raja indrajit by the deed of gift of 1869 proceeds on the erroneous assumption that the property had already been dedicated. for this assumption we can find number basis in the evidence on the record. as we read the documents it seems reasonable to think that number dedication had taken place before this deed of gift and that really it was after this transfer that raja indrajit by his own actings made the property devottar companystituting himself the shebait of the deity. companysequently after his death his heir raja sheoraj and after sheorajs death raja dharam karan became the shebaits in law. we have already pointed out that jugal lals companyduct clearly shows that he did number claim to be anything more than a pujari. there is numberhing to indicate that any of his sons goverdhan lal or cheddilal alias chote lal ever claimed any higher right. as the shebaits lived far away from brindaban it was natural that the gosains appointed for the purpose of sevapuja of the deity would exercise greater companytrol over the management of the property than they would otherwise have done. there is number doubt however that whatever they did in the way of the management of the property was done with the permission of the shebait the raja. we find number material on the record to justify mr. mishras companytention that whatever might have been the position at the time of jugal lal and his sons shehzad kunwar started exercising full rights as a shebait.

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1963_101.txt

"original jurisdiction writ petition number 587 of 1975\n under article 32 of the companystitution \(...TRUNCATED)

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1983_326.txt

"criminal appellate jurisdiction criminal appeal number 149 of\n1954.\nappeal by special leave from (...TRUNCATED)

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1957_133.txt