• F

BATA SHOE CO.

CITY OF JABALPUR CORPORATION

March 11, 1977

[Y'. V. CHANDRACHUD AND P. N. SHINGHAL, JJ.J

Central Pl'ovinces & Berar Municipalities Act, 1922 s. 84(3 )-Scope of- Act sefj.contained Code-"".Obiections regarding assessment, levy etc. of octroi duty shall not be taken in any manner or by any other authority than is provided in the Act"-Suit in a Civil Court-If lies.

The (entrai Provinces and Berar Municipalities Act, 1922, empowers a municipality to assess and recover octroi duty on goods brought within the municipal I imits for sale. consumption and use therein.

Under the Act an appeal against assessment or levy or refusal to refund any tax lies to a desig nated official.

A person aggrieved by the decisic1n. of the appellate authority has a right to apply to the State Government for revision.

The. Act also provides for reference to the High Court on questions like liability to assessment or principles of assessment and so on.

Section 84(3) lays down that "no objection shall be taken to any valuation. assessment or levy nor shall the liability of any person to be taxed or assessed be questioned in any other n1anner or by any other authority than is provided in the. Act." Rule 14(b) of the Rules framed under the Act provides that any person importing or bringing any dutiable articles within the octroi limits of a municipality without paying ti.e duty or without giving a declaration to the octroi Moharrir, shall be liable to pay double the duty and shall in: addition be liable to be prosecuted for evasion uf duty.

The plaintiffs imported within the municipal limits for sale in their retail shops articles manufactured by' them in their faCtories situated at different places in the country.

They paid the octroi levied by the municipality at a certain tate.

But sometime later the municipality reopened and revised the assessment and charged octroi at a different rate. It also levied double the duty by way of penalty on the ground that the plaintiffs had intentionally evaded pay1nnt of duty on the goods.

The appellate authority modified the decision of the municipality but upheld the assessment of double duty. The plaintiffs' revj5ion application was rejected by the Board of Revenue.

The plaintiffs pai({ the duty and penalty under protest and filed a suit for rtecovery of the amount on the ground that the municipality was not entitled to recover the amount of octroi duty and penalty.

Overruling the defendant municipality's objection as regards the civil court's jurisdiction to entertain the suit the trial court decreed the suit.

On appeal. the High Court held that the dcfend<ints were entitled to revise and reopen the assessment and that the reassessment of duty fixed in appeal by the appellate authority could not be questioned by the plaintiffs in a civil court.

In appeal it was contended in this Court by the plaintiffs that s. 84(3) mav bar a suit to challenge an act which was within the purview of the Act, but it could not bar a suit to challenge an act which was outside the Act or the Rules and since in this case the defendant had no power to revise or reopen the assessment, its action was wholly lacking in jurisdiction and so the suit was competent.

Dismissing the, appeal,

HELD: Since s. 84(3) expressly p<ohibits a challenge to valuation,

asessn1ent or le\'Y "in any other mb.nner~ ....... .... than is provided 1n this Act" and since the Act has devised its own special machinery for inquiring

- into and adjudicating upon such challenges, the common remedy of a suit stands necessarily excluded and cannot be availed of by a person aggrieved by an order

BATA SHOE co. v. JABALPUR CORP. (Clwndrachud, !.) 18 3

of assessment to octroi duty.

Similarly the sub-section excludes expressly the A poo.1cr of "any other authority than is provided in this Act" to entertain an objection to any valuation, assessment or levy of octroi.

This part of the provision is in the nature of ouster of jurisdiction of civil courts. at least by necessary impi1cation, to entertain an objection to any valuation, assessment or levy. [187 A]

1. Two of the propositions bearing on the construction of statutes which expressly or by necessary implication bar the jurisdiction of civil courts stated iro Dlwlabhai & Ors. v. The State of Madhya Pradesh [1968] 3 SCR 662 and B which are reh::Yant for the purposes of this case are : (i) where the .statute gives finality to the orders of special tribunals the civil court's jurisdiction must be held to be excluded if there is an adequate remedy to do what the .civil courts \vould normally do in a suit.

Such provision, however, does not exclude cases when~ the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity \Vith the fundamental principles of judicial procedure, (ii) questions of the correctness of

the assessment, apart from its constitutionality, 'are for the decision of the C authorities and a civil suit! does not lie if' the orders of the authorities are declared to be final or there is an express prohibition in the particular Act.

In either case the scheme of the particular Act must be examined because it is a relevant enquiry. [189 D-F]

(a) Jn the instant case, the various provisions of the Act show in the first place thut the 1nunicipality possesses the right and the power to assess and recover octroi duty and double duty on goods brought \Vithin the 1nunicipal limits for sale, consumption or use therein. The circumstance that the rnunici- D lity nlight have acted in excess ofi or irregularly in the exercise of that power could not support the conclusion that the assessment or recovery of the tax \Vas without jurisdiction. If the appropriate authority, while exercising its jurisdk:tion and powers under the relevant-provisions o~ the Act, holds erroneously that an assessment a]ready 1nade can be corrected or that an assessee is liable toi pay double duty, it cannot be said that the decision of the authority is without jurisdiction. [192 E-F]

(b) Both the Act and the Rules contain provisions enabling the aggrieved E party to challenge an illegal assessment or levy of double duty.

By reasOn of the existence and availability of those special remedies, the ordinary remedy by way of a suit would be excluded on a true interpretation of s. 84 (3) of the Act. [193 Hl

(c) Levy of double duty, though not justified by the terms of r. 14(b) goes to the correctness of the levy and not to the jurisdiction of the assessing authority.

Assuming that neither of the two eventualities mentioned in r. 14 (b) occurred and, thcn::fure, lherc was no justification for imposing double duty. the error F could be corrected only in the manner !1rovided in the Act and by the authority prescribed therein. The ren1edy by \Vay of a suit is barred. [193 A-Bl

(d) The suit for refund of double duty or revised duty is not maintainable because in tiie first 9lace the assessment was made by the authority duly empo\vered to 110 so and secondly the authority was acting under the Act while revising the r,:)sessment and imposing double duty.

It had the power to assi::ss and levy double duty.

If it exceeded that power it acted \\TOngly, but not without jurisdic1ion. [193 C-D] G

(e) It 1s not correct to say that the Act protects correct assessments only vnd that every incorrect or wrong order of assessment can be challenged by & suit th0ugh the statute gives it finality and provides full and effective remedies to challenge it.

Except in matters of constitutionality and the like, a self- -contained Code must have priority over the common means of vindicating rights.

If the appropriate authority, while exercising its jurisdiction and power under the releyant rirovisions of the Act. comes to an erroneous conclusion it cannot be said that the decision is without jurisdiction. [193 F--G] H

Dlmlabhai and Others v. The State of Madhya Pradesh [1968] 3 SCR 662 "'1fid Kam/a !vflils Ltd. v. State of Bombay [1966] 1 SCR 64 applied.

13-240SCI/77

18.4

V• . '

Bharat K(lla Bhandar Ltd. v. Municipal Con1111ittee, Dharnangavn, [1965] 3 SCR 499, B. M. Lalwni v. Malkapur Municipality, AIR 1970 S.C. 1002 and

Finn Seth Radka -Kishan v. Administrator, Municipal Co111nzittee, Ludhia.na [1954] 2 SCR 273, 284 distinguished.

Wolverlzanipton New Waterworks Company v. Hawkerford [1859] 6 C. B. (N.S.) 336. Slcretary of State v. Mask & Company, 67 I.R. 222, Naville v.

London "L'xptess" Newspaper, Limited, [1919] A.C. 368, Bengal ltnmunity Co. Ltd. v. :$tale of Bihar •. [19551 2 SCR 603 and Firm and Illuri Subbaya chetty & Sons. v. Ille State of Andhra Pradesh, [19641 I SCR 752 referred to.

(f) The instant case does not fall within the propositions in Dhulabhai's case because s. 84(3) not merely gives finality to the orders passed by the special tribunal but expressly provides that such orders shall not be questioned in any other manner or by any other authority than is provided in the Act. [194 Ill

(g) In tile instant case, the plaintiffs availed themselves of the remedies provided under the Act and succeeded to an extent.

Having exhausted their re~ medies under the Act and having been benefited by the appellate decision, they turned to 1he civil court to claim refund.

This is impermissible under s. 84(3). [194 F-Gl

C!vrL APPELLATE JURISDICTION : Civil Appeal Nos. 1923-1924 of 1972.'

(From the Judgment and Decree dated 25-10-1957 of the Madhya Pradesh High Court in First Appeal No. 138/52)

A. K. Sen, B. P. M_aheshwari and Suresh Sethi, for the appellant in C.A. No. 1923/72 and respondent in CA No. 1924/72.

D. N. Mukherjee, for the respondent in CA No. 1923/72 and for atJpellant in CA 1924/72.

CHANDRACHUD, J.-These are cross appeals arisin& out of a judgment rendered by the Madhya Prac\P:sh High Court in First Appeal No. 138 of 1952 modifying the dec:e passed by the First Additional District Judge. Jabalpur in Civil Suit No. 6-B of 1949. It would be convenient to refer to the 'parties as plaintiffs and defendants, plain~ tiffs being the Bata Shoe Co. Ltd. and the defendants being the Corporation for the City of Jabalpur.

Plaintiffs are a limited company having their registered office at Calcutta.

At the relevant time they had their factories at Batanagar in West Bengal, Batapur in West Punjab, Pplsia-Digh.~ in Bihar and Faridabad near Delhi.

The sale's organisation of the plaintiffs is situated at Cl!lcutta, and that organisation sells manufactured articles through the Company's retml shops situated in different parts of India and Pakistan.

Three such retail shops were situated at Jabalpur.

In respect of the articles which were imported by the retail shops at Jabalpur within the limits of the then Jabalpur Municipal Committee betwen April 1. 1943 and March 31. 1945 the plaintiffs had paid to the Municipal Committee a sum of Rs. 16,528 odd as cotroi duty.

This duty was assessed by the Municipal Committee on an amount which was 40% less than the retail price of the g0ods which were brought within the municipal limits.

In the year 1946-4 7 the Municipal Committee decided to reopen and revise the assessment by

•. ' -- •

¥ •

I .llA'fA SHOE co. v. JABALPUR CORP. (Chandrachud, /.) ! 85

, charging the octroi duty on an amount which was only. 6!% less than t.he retail price of the goods.

The Municipal Convnittee further

dcjded to levy double the duty by way of penalty for the aforesaid pertod on tlie ground that the plaintiffs had intentionally evaded the payment of the duty payable on the goods.

Plaintiffs preferred an appeal against the decision of the Municipal Committee to the Sub- 0\visional ()fficer, Jabalpur who. by an order dated July 14, 1948 modified tbe ccision of the Municipal Committee by permitting them to charge the octroi duty on an amount which was less by 12t% tha.il the retail price of the goods.

The Sub~Divisional Officer however upheld the assessment of double duty. . The revision application

preferred by the plaintiffs to the Board of Revenue was rejected on 09tober 4, 1948 on the ground that it was not maintainable.

In conformity with the appellate order, but under protest, plaintiffs paid to the Municipal Committee a sum of Rs. 21,071-1-3 on August 6, 1948. Defendants demanded a further sum of Rs. 10,604-2-6

alleging that they had overlooked asking for it through mistake.

Plaintiffs paid that amount too on September 22, 1948 under protest.

On June 20, 1949 they filed a suit against the Municipal Committee for recovery of the total amount of Rs. 31,675-3-9 with interest at 6% per annum on the ground that the defendants were not entitled to recover the amount by way of octroi duty and penalty.

During the pendency of the suit the Municipal Committee was succeeded by rhe Corporation for the City of Jabalpur who were substituted as defendant• to the suit.

The Trial Court decreed the suit to the extent of Rs. 32.629-7-0 calculating the interest at 4 % , holding that the defendants could not charge octroi duty on an amount arrived at by anything less than 40%

from the retail sale price, that the recovery of octroi duty by deducting a sum of 12t% only from the retail price was illegal and that the defendants were not justified in recovering double duty by way of penalty since the plaintiffs had not intentionally evaded the payment of proper duty.

Defendants had raised contentions both as regards the jurisdiction of the Civil Court to entertain the suit and as regards limitation but the Trial Court rejected those contentiahs and held that it had jurisdi, tion to entertain the su:it and that it was not barred by !imitation.

In appeal the High Court held that the defendants were entitled to revise and reopen the assessment and that the recassessment of octroi duty which was ultimately fixed in appeal by the Sub-Divisional Officer could not be questioned by the plaintiffs in the Civil Court.

On the que.stion of. limittion the. High Court held that applying the special penod of hm1tat10n provided in s. 48 of the Central Provinces and Berar Municipalities Act, 1922 the suit was within limitation as regards the payment made by the plaintiffs on September 22, 1948 but that it was barred by limitation as regards the payment made on August 6,

1948.

The suit in regard to the amount paid to the Municipal Committee in September 1948 was held to be within limitation on account

of the intervening summer vacation during which the Courts were closed.

According to the High Court the exaction of the double duty being beyond the powers of the defendants, the special period of limitation was not attracted and the plaintiffs were therefore entitled to recover the sum paid by way of double duty. In the result the High Court passed a decree in the sum of Rs. 24,103-13-3 which, according to it, represented the double duty wrongly recovered by the defendants from the plaintiffs.

The High Court has granted to both the parties a certificate to file an appeal to this Court under art. 133 ( l) of the Constitution and both parties being partly aggrieved by the decree of the High Court have filed cross appeals.

The first question for consideration is whether the civil court has jurisdiction to entertain the suit brought by the plaintiffs.

It is undisputed that the Municipal Committee had the power under s. 65(1) (e) of the Act of 1922 to impose octroi tax on the goods brought within the Municipal limits for sale, consumption or use therein.

Under rule 6(b) framed by the Provincial Government in exercise of the powers conferred by ss. 71, 76 aud 85 of that Act, octroi duty was payable on the "current price of articles" which is equivalent to the cost price of the articles to the importer plus the cost of carriage and not the price prevailing in the local market.

Prior to 1940, plaintiffs used to submit to the defendants an invoice relating to the imported goods wherein the cost price used to be shown by deducting from the retail price the aggregate amount of expenses amounting to 40%. Defen~

dants later disputed the deduction claimed by the plaintiffs and informed the latter by a letter of May 7, 1940 that octroi duty was leviable on the cost price of the goods as shown in the invoice plus the freight charges.

Plaintiffs accepted that view and started showing in the invoices the cost price of the articles and the freight charges. Defendants used to assess octroi duty on those invoices until the dipute giving rise to the present suit arose during the year 1946-47, when the basis for charging the duty was fixed at 6t% less than the retail price of the goods and the assessments already made were reopened with a view to r.evis!ng them.

Section 83 (I) of the Act of 1922 provides for appeal against the assessment or levy of any tax under the Act to the Deputy Commissioner or to such o'her officer as may be empowered by the Provincial Government in tha: behalf.

Section 84(3) of the Act which bears directly on the question of jurisdiction reads thus :

"84(3) No objection shall be taken to any valuation, assessment or levy nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other au'.hority than is provided in this •\ct."

Jt is plain from this sub-section that any valuation, assessment o~ levy and the liab:Jity of any person to be assessed or taxed can be C\ucst1oned only in the manner prescribed by the Act and by the authonty mn tioned in the Act and in no other manner or by any other authonty.

Since the snb-scction expressly prohibits a challeng~ to a. valuatiO!l,

assessment or levy "in any other manner .... than 1s provided m this

~· • -- •

Act" and since the Act has devised its own special machinery for inquiring into and adjudicating upon such challenges, the cmmon remedy of a suit stands necessarily excluded and cannot be availed of by a person aggrieved by an order of assessment to octroi duty.

Similarly, the sub-section excludes expressly the power of ·:any other authority than is provided in this Act". to en'.ertain an objection. to an_y valuation, assessment or levy of octr01.

This part of the prov1s1on IS in the nature of ouster of the jurisdiction of Civil Courts, at least by necessary implication, to entertain an objection to any valuation!. assessment or levy.

This is the evident intendment, meamng and 1mpl1cation of the provision.

In Wolverhampton New Waterworks Company v. Hawkesford(') Willes J. referred to various classes of cases in which the jurisdiction of ordinary courts is excluded, the third class of such cases being "where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it." The view of Willes J., that with respect to that class o'. cases the party must adopt the form of remedy given by the statute and no other, was accepted by the Privy Council in Secretary of State

v. Mask & Company(') and by the House of Lords in Neville v.

London "Express" Newspaper, Limited(').

In Ma!k & Company's(') case the Privy Council was dealing with the provlS!ons of the Sea Customs Act, 1876 section 186 whereof uave a right of appeal to the person aggrieved by any decision or order pased by the Customs Officers under that Act.

Section 191 further gave the aggrieved person a right to make an application to the Local Government for revision of the appellate decision or order.

The last paragraph of section 188 provided : "Every order passed in appeal under this section shall, subject to the power of revision conferred by section 191, be final".

There was no express exclusion of the civil courts' jurisdiction to entertain a suit challenging an order passed by a Customs Officer but the Judicial Committee, while recognising that the exclusion of the jurisdiction of civil courts was not to be readily inferred and that such exclusion must either be explicitly expressed or clearly implied, observed that looking at the last paragraph of section 188 of the Sea Customs Act it was difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the Civil Courts. If a provision merely giving finality to an order could be construed as ousting the civil Court's jurisdiction, s. 84(3) of the Act, which is far more expressive, can legitimately be construed to have the same effect.

It excludes in terms a challenge to the various things therein mentioned, in any other manner or by any other authority than is provided in the Act.

But counsel foi; the plaintiffs contends that s. 84(3) cannot oust the civil Court's jurisdiction to entertain the present suit because the defendants have no power at all either under the Act or under the

(I) [18591 6 C.B. (N.S.) 336.

(2) 67 I.A. 222.

(3) [19191 A.C. 368.

Rules framed thereunder to reopen or revise an as>essment to octroi duty. An assessment once made is final subject to the remedies which the Act provides to. the aggrieved party and since, according to the

consel, the reopm?g of assessment is wholly without jurisdiction the smt to challenge 1t 1s competent.

The argument, in other words, is that s. 84 ( 3) may bar a suit to challenge an act which is within the purview of th~ Act or the Rules but it cannot bar a suit to challenge an act which 1s outside the Act or the Rules and is therefore wholly Jacking in jurisdiction.

In support of the contention that the civil Court has jurisdiction to entertain the suit plaintiffs rely principally on the decisions of this Court in Bharat Kala Bhandar Ltd. v. Municipal Committee, Dhamangaon('), B. M. Lakhani. v. Malkapur Municipality(') and Dlmlabhai and others v. The State of Madhya Pradesh(").

The appellants in Bharat Kala Bhandar's(') case filed a suit for recovery of excise tax paid by them under s. 66(1) (b) of the Central Provinces Municipalities Act, 1922 on the ground that after the coming into force of s. 142A of the Government of India Act, 1935 till January 25, 1950 a tax in excess of Rs. 50/- per annum could not be imposed by the Municipal Committee and that after the coming into force of the Constitution, imposition of tax in excess of Rs. 250/- per annum was unconstitutional.

The Trial Court decreed the suit but on appeal the High Court held that the suit was bad for non-compliance with s. 48 of the C.P. Act according to which a suit for anything done or purported to be done under the Act had to be instituted within six months from the date of the accrual of the cause of action.

In answer the Municipal Committee contended that apart from the provisions of s. 48. the suit was barred by s. 84(3) under which no objection could be taken to any assessment in any other manner than is provided in the Act. That section is the very same provision under which the present suit, according to the defendants, is said to be barred from the cognisance of the civil Courts. It was held by this Court by majority that since the Municipal Committee had no authority to levy a tax beyond what was permitted by s. 142A of the Government of India Act or art. 276 of the Constitution, the assessment proceedings were totally void insofar as they purported to levy a tax in excess of the constitutionally permissible limits and therefore the suit was maintainable.

The question involved in B. M. Lakhani v. Malkapur M_unicipaity

(supra) was similar, the contention being that the reeovenes wh1h were made in contravention of s. 142-A of the Government of Jndrn Act. 1935 and art. 276(2) of the Constitution were wholly without jurisdiction and therefore a suit for refm.1d of tax . ecovered by he Municipality in violation of the constitutional prov1s1ons was mamtamable.

That contention was accepted by this Court which treated the matter as concluded by the decision in Bharat Kala Bhandar's (supra) case.

(I) [1965] 3 S.C.R. 499.

(2) A.LR. 1970 S.C. 1002.

(3) [I 96i] J S.C.R. 662.

• , J

- ---

In Dhulabhai and others v. The State of Madhya Pradesh (supra) foe position was similar to that in the two cases noticed above.

Section 1 7 of the Madhya Bharat Sales Tax Act provided that no assessment made and no order passed under the Act or the Rules made thereunder shall be called in question in any Court. It was conceded by the State Government that the sales tax levied on the appellants was un- (:Onstitutional in view of art. 301 of the Constitution but it was contended that the civil Court had no jurisdiction to entertain the appellants' suit for refund of the tax in view of s. 17 of the Act. After an examination of vari, ous decisions including those to which we have referred in this judgment Hidayatullah, J., who spoke for the Constitution Bench formulated seven propositions bearing on the construction of statutes which, expressly or by necessary implication, bar the jurisdiction of civil Courts. It is unnecessary to examine each one of those propositions for the short reason that as in the case of Bharat Kala Bhandar and B. M. Lakhani, (supra) so in the case of Dhulabhai {supra) the recovery of sales tax was unconstitutional and the suit, for that reason, was held maintainable.

Attention must, however, be drawn to propositions (1), (4) and (6). The 1st proposition states that where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit.

Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

The 4th proposition is that when a provision is already declared unconstitutional or the constitutionality of any provis'on is to be challenged, a suit is open.

The 6th proposition which bears more appropriately on the instant case says that questions of the correctness of the assessment, apart from its constitutionality, arc for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an "xpress prohibition in the particular Act.

In eith•:r case the schme of the particular Ac:t must be cxammed because 1t 1s a relevant enqrnry.

Te plaintiffs' contention that the suit is not barred from the cognizance of the civil Court is effectively answered by these propositions but even so, a discussion of the jurisdictional issue will not be complete withou.t reference to a decision rendered by a seven-Judge Bench of this Court in Kam/a Mills Ltd. v. State of Bombay('). The appellants therein were assessed to sales tax on sales which were treated by the Sales Tax authorities as 'inside sales' but which according to the decision in Bengal Immunity Co. Ltd. v. State of Bihar(2) were 'out- ,; de sales' and therefore non-taxable under the Bombay Sales Tax Act, 1046, After the decision in Bengal Immunity(') case which came on

September 6, 1955 the appellants discovered that they were illegally 'ubjected to sales tax and since the period prescribed by the Act for adopting the remedies thereunder had expired, the appellants filed a -suit for recovery of the sales tax illegally .collected from them in respect

0) [1966] t S.C.R. 64.

(2) J, t955] 2 S.C.R. 603.

of the outside sales.

The State of Bombay contended that the suit was. barred by s. 20 of the Act which provided, to the extent material, that no assessment made and no order passed under the Act or the Rules. shall be called into question in any civil Court.

It was held by this Court that s. 20 protected all assessments made under the Act or the Rules made thereunder and that the protection was wide enough to cover assessments made by the appropriate authorities under the Act whether the assessments were made correctly or not.

Observing that if he appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the Act comes erroneously to the conclusion that a transaction which is an outside sale is not an outside sale and proceeds to levy sales tax on it its decision ca@ot be said to be without jurisdiction, the Court held that the suit was barred from the cognizance of the civil Court. In coming to this conclusion the Court relied upon the decision in Firm and Illuri Subhaya Chetty & Sons v.

The State of Andhra Pradesh(') which had taken the view, while interpreting a similar provision in s. 1 SA of the Madras General Sales Tax Act, that the expression "any assessment made under this Act" was wide enough to cover all assessments made by the appropriate authorities under the Act, whether the said assessments were made correctly r, r not.

The decision in Bharat Kala Bhandar (supra) was brought to the notice of tile Court in Kam/a Mills (supra) case but that decision was distinguished on the ground that the provision which fell for conslruction therein was worded differently and as observed in Mask & Co.

(supra) "decisions on other statutory provisions are not of material assistance, except in so far as general principles of construction are laid

down".

With great respect, the decision in Bharat Kala Bhandar

(supra) is distinguishable for the weightier reason that the tax recovered in that case was unconstitutional and no provision of a statute could be construed as laying down that no Court shall have jurisdiction to order a refund of a tax collected in violation of a constitutional provision. If there were a provision which so provided or which could be so construed, that provision would itself be unconstitutional.

In Kam/a Mflls (supra) case it was observed that if a statute c1cates a special right or liability, provides for the determination of that right or liability by tribunals specially constituted in that behalf and lays down that all questions in regard to that right or liability shall

r.e exclusively determined by the tribunals so comtituted, it becomes pertinent to enquire whether rmedies normally associated with_actions in a civil Court are prescribed by the said statute or not.

If ihe Court is satisfied that the Act provides no remedy for maki~ a claim for the

reovery of an illegally collected tax the Court might hesitate to construe a provision giving finality to the orders passed by the tribunals specially created by the Act as creating an abolute bar to the suit and if such a construction was not reasonably possible, the Court would be called upon to examine the constitutionality of the provision excluding the civil Court's jurisdiction in the light of arts. 19 and 31 of the Constitution.

According to the 1st proposition in Dhulabhai's (supra) case, if the statut<l. gives finality to the orders passed by the special

(1) [1964] I S.C.R. 752.

--~

tribunals created by it, the civil Court's jurisdiction would be excluded iC the statute provides adequate remedies to do what the civil Courts are normally empowered to do in a suit.

The 6th proposition in that case states that questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act.

Further, that in either case the scheme of the particular Ac~ must be examined because it is a relevant enquiry. These considerations make it necessary to examine the relevant provisions of the Act of 1922 and the Rules framed thereunder with a view to seeing whether they provide adequate remedies to the aggrieved party to challene a wrong or

ii!egal exaction of octroi du\y and whether correspondmgly, the autho_rities specially created by the Act have the 12ower t.o do what cIVJI Courts are generally empowered to do.

This mquiry 1s relevant even though s. 84(3) of the Act does not merell:' say that ordcr.s pssed by the special tribunals shall be final but provides that no ob1ect1on shall be taken to any asses5ment, levy etc., in any other manner or by any other authority than is provided in the Act.

Section 66 (1 )(b) of the C.P. and Berar Municipalities Act, 1922 I) empowers the Municipal Committee to impose an octroi on animals or goods brought within the limits of the municipality for sale, consumption or use within those limits.

Section 83(1) provides that an appeal against the assessment or levy of, or refusal to refund, any tax under the Act shall lie to the Deputy Commissioner or to such other officer as may be empowered by the Provincial Government in that behalf.

Sub-section 1-A of s. 83 gives to the person aggrieved by the decision E , , of the appellate authority the right to apply to the State Government .,,. for revision of the decision on the ground (a) that the decision is contrary to law or is repugnant to any principle of assessment of a tax, or (b) that the appellate authority has exercised a jurisdiction not vested in it by law or has failed to exercise the jurisdiction vested in it by law.

Section 83 (2) empowers the appellate or revision authority to draw up a statement of the case and make a reference to the High F Court for its decision if any question as to the liability to assessment or as to the principle of assessment arises in the matter on which the authority entertains a reasonable doubt.

Then comes s. 84 which by sub-s. (1) provides for a limitation of 30 days for appeal and by sub-s.

(3) lays down the injunction which is the bone of contentions in the instant case that no objection shall be taken to any valuation, assessment or levy nor shall the liability of any person to be taxed or assessed G be questioned in any other manner or by any other authority than is provided in the Act.

Section 71 of _the Act empowers the Provincial Government to mae rules regulatm& the_ assessment of taxes and for preventing evasion

f "ssessmen;; Sect10n l6 which appers under the heading "Collection o'. taxes empowers. the government to make rules regulating the H

collct10n of taxes mclud1g the pre~ntion of evasion of payment and

pa) ment of lump sums m composition.

Section 85 confers similar empowerment to make mies regulating the refund of taxes.

In exrcise of the powers conferred by s. 71, 76 and 85 and in supersess1on of the earlier rules, the Provincial Government made rules

"for the assessment, collection and refund of the octroi tax" which were gazetted on April 9, 1929 and were amended from time to time. Rule 1 provides tbat articles subject to octroi duty are liable to duty as soon as they enter the octroi limits.

Rule 6 (b) which prescribes the mode of calculating octroi duty provides that the current prices of articles liable to ad valorem duty shall be the cost price to the importer plus the cost of carriage and not the price prevailing in the local market.

Rule 8 prescribes the details of the procedure for assessing the octroi duty.

The note to that rule says that the duty shall be ssessed on invoice and not on V. P. covers, Bank receipts, letters and hundies.

Rules 9(a) (b) (c), lO(b), 12, 13(a) and 13(b) provide for various matters relating to assessment and levy of octroi duty.

Rule J4(b) provides that any person importing or bringing any dutiable articles

within the octroi limits of the municipality '"withou: paying the duty" or without giving declaration to the Octroi Moharrir shall be liable to pay double the duty and shall in addition be liable to be prosecuted for evasion of duty.

Rules 29 onwards deal with "Refund of Octroi".

Rule 31 out of that collocation of rules prescribes how and when applications for refunds may be made.

These provisions show in the first place that the defendants indubitably possess the right and the power to assess and recover octroi duty and double duty on goods which are brought within the municipal Emits for sale, consumption or use therein. The circumstance that the defendants might have acted in excess of or irregularly in the exercise

of that power cannot support the conclusion that the assessment or recovery of the tax is without jurisdiction.

Applying the test in Kam/a Mills (supra), if the appropriate authority while exerci, iog its jurisdiction and powers under the relevant provisions of the Act, holds erroneously that an assessment already made can be corrected or that an assessee is liable to pay double duty when rule 14(b), iu fact, does not justify such an imposition, it cannot be said that the decision of the authority is without jurisdiction.

Questions of th~ correctness of the assessment apart from its constitutionality are, as held in Dhula- Bhai (supra), for the dedsion of the authorities set up by the Act and a civil suit cannot lie if the orders of those authorities are given finality. There is uo constitutional prohibition to the assessment which is impeached in the instant case as there was in Bharat Kala Bha11dar (supra), B. M. Lakhani (supra), and Dhulabhai (supra). The tax

imposed in those cases being uncoustitutional, its levy, as said by Mudholkar J. who spoke for the majority in Bharat Kala Bhandar (supra), was "without a vestige or semblnce of authority or even a shadow of right."

That is in regard to the power of the authority concerned to reassess and to levy double duty.

Secondly, both the Act and the Rules contain provisions which we have noticed above, enabling the H aggrieved party effectively to challenge an illegal assessment or levy of double duty.

By reason of the existence and availability of those special remedies, the ordinary remedy by way of a suit would be excluded on a true interpretation of s. 84(3) of the Act.

:"'

The argument that double duty was levied on the plaintiffs though A not justified by the terms of rule 14 (b) goes to the correctness (1[ the Je\y, not to the jurisdiction of the assessing authority.

That rule authorizes the imposition of double duty if dutiable articles arc imported

(a) without paying the duty or (b) without giving declaration to the Octroi Moharrir. It may be that neither of these two eventualities occurred and therefore there was no justification for imposing double duty.

But the error could be corrected only in the manner provided B in the Act and by the authority prescribed therein.

The remedy by way of a suit is barred.

Plamtiffs sought support to their contention as regards the maintainability of the suit for refund of double duty and revised duly, from certain observations contained in Firm Seth Radha Kisha11 v. AdminLitrator, Municipal Committee, Ludhiana(') to the effect that "a :, uit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abnses its power or does not act under

the Act but in violation of its provisions." In the first place, the assessment in the instant case was made by the authority duly empowered to do so and secondly the authority was acting under tlie Act while revising the assessment and imposing double duty.

It had the power to assess and levy double duty. If it exceeded that power it acted wrongly, not without jurisdiction. ln Firm Seti! Rmlha Kishan (supra), the Municipal Committee being entitled to impose a certain rate of tax on common salt and higher rate in respect of salt of other kinds, imposed tax at the higher rate on "sambhar salt'" which was a variety of common salt.

Section 86 of the Puniab Municipal Act, 1911, provided that the liability of any person to be taxed cannot be questioned in any manner or by any authority other than that provided in the Act.

That provision is identical with s. 84(3) of the C. P. Municipalities Act, 1922, with which we are concerned in the instant case.

Section 86(2) of the Punjab Act provided that no refund of any tax shall be claimed by any person otherwise than in accordance with the provisions of the Act and the Rules thereunder.

It was held by this Court that the liability to pay terminal tax was created by the Act and since a remedy was given to the party aggrieved in the enforcement of that liability, the suit for refund was not maintainable by reason of s. 86.

The observations on which plaintiffs rely cannot, in the context, be taken to mean that the Act protects correct assessments only and that every incorrect or wrong order of assessment can be challenged by a suit though the statute gives it finality and provides full and effective remedies to challenge it.

Except in matters of constitutionality and the like, a self-contained Code must have priority over the common means of vindicating rights.

We would like to add that if the observations on which plaintiffs rely are to be understood literally, they are contrary to the decision in Kanda Mills (suprn) case where, speaking for a seven-Judge Bench, Gajendragadkar C.J. observed that if the appropriate authority while exercising its jurisdiction. and powers under the relevant provisions of the Act comes to an erroneous conclusion, it cannot be said that the decision is without jurisdiction (p. 78).

Plaintiff's reliance on the I st proposition in Dhuabhui' s (supra) case is equally misconceived. The first two propositions formulated in. that case contain a dichotomy.

The 1st proposition refers to cases where the statute merely gives finality to orders of special tribunals. Jn such cases, according to that proposition, the civil Court's ju11sdiction would not be excluded if "the provisions of the particular Act are not complied with".

The instant case does not fall under the 1st proposition because s. 84(3) of the Act does not merely give finality to the orders passed by the special tribunals. It provides, expressly, that such orders shall not be questioned in any other manner or by any other authority than is provided in the Act.

The 2nd proposition deals in its first paragraph with cases where there is an express bar to the civil Courts' jurisdiction.

The second paragraph of that proposition deals with cases where there is no express exclusion.

The instant case falls under either one or the other paragraph of this proposition, which rendered it necessary to examine whether the Act creates special rights and liabilities, provides for their determination by laying down tha_t such rights and Jiabilit'cs shall be determined by the special tribunals constituted under it and whether remedies normally associated with actions in civil Courts are prescribed by the Act.

Upon that examination we concluded that the suit is barred from the cognizance of the Civil Court.

Not only that the Act of 1922 provides an effective remedy to an aggrieved party to challenge the assessment of octroi duty and to claim refund of duty illegally paid or recovered, but the plaintiffs in fact availed themselves of these remedies.

In 1946-4 7 when the Municipal Committee reopened and revised the past assessments by charging octroi duty on an amount which was only 6!% less than the retail price of the goods and when it levied double duty by way of penalty, plaintiffs preferred an appeal against the decision of the Municipal Committee to the Sub-Divisional Officer, Jabalpur, who by an order dated July 14, 1946 modified the decision of the Committee by asking them to charge octroi duty on an amount which was less by 12t%instead of 6t%than the retail price of the goods. .Plaintiffs succeeded to an extent though the Sub-Divisional Officer upheld the assessment of double duty.

Having exhausted their remedies under the Act and having been benefited by the appellate decision, though partly, plaintiffs turned to the civil Court to claim the refund.

That is impermissible in view of the provision contained ins. 84(3) of the Act.

In the result, Civil Appeal No. 1923 of 1972 filed by the plaintiffs fails and is dismissed.

Civil Appeal No. 1924 of 1972 filed by the defendants succeeds and is allowed with the result that the plaintiffs' suit will stand dismissed.

Considering that the defendants revised the assessment after a lapse of time, parties will bear their costs throughout.

P.B.R.

C.A. 1923/72 dismissed.

C.A .. 1924/72 allowed.

F

BATA SHOE CO

CITY OF JABALPUR CORPORATION

March 11, 1977

Y'. V. CHANDRACHUD

Berar Municipalities Act, 1922

s. 84(3 )

Section 84(3)

s. 84(3)

s. 84(3)

[1968] 3 SCR 662

s. 84

[1968] 3 SCR 662

[1966] 1 SCR 64

[1965] 3 SCR 499

[1954] 2 SCR 273

Dhulabhai

s. 84(3)

s. 84(3)

Madhya Pradesh High Court

A. K. Sen

B. P. M_aheshwari

Suresh Sethi

D. N. Mukherjee

CHANDRACHUD

Madhya Prac\P:sh High Court

Bata Shoe Co. Ltd.

Jabalpur

Calcutta

Batanagar

West Bengal

Batapur

West Punjab

Bihar

Faridabad

Delhi

India

Pakistan

Jabalpur Municipal Committee

March 31. 1945

July 14, 1948

09tober 4, 1948

August 6, 1948

September 22, 1948

June 20, 1949

s. 48

August 6,

1948

art. 133

s. 65(1)

ss. 71, 76

May 7, 1940

Section 83

Section 84(3)

Willes

Ma!k & Company

Sea Customs Act, 1876

section 186

Section 191

section 188

section 191

section 188

Customs Act

s. 84(3)

s. 84(3)

s. 84

Bharat Kala Bhandar

s. 66(1)

s. 142A

Government of India Act, 1935

January 25, 1950

s. 48

s. 48

s. 84(3)

s. 142A

art. 276

s. 142

art. 276(2)

Bharat Kala Bhandar

[1965] 3 S.C.R. 499

Section 1

art. 301

s. 17

Hidayatullah

Constitution Bench

B. M. Lakhani

Bombay Sales Tax Act, 1046

September 6, 1955

State of Bombay

s. 20

s. 20

s. 1

SA of the Madras General Sales Tax Act

Kam/a Mills

Mask & Co.

arts. 19 and 31

s. 84(3)

Section 66

Berar Municipalities Act, 1922

Section 83(1)

section 1

s. 83

Section 83

s. 84

Section 71

Section 85

s. 71, 76 and 85

April 9, 1929

Dhula- Bhai

Bharat Kala Bha11dar

Mudholkar

s. 84(3)

Seti! Rmlha Kishan

Section 86

Puniab Municipal Act, 1911

s. 84(3)

Municipalities Act, 1922

Section 86(2)

s. 86

Kanda Mills

Gajendragadkar

Dhuabhui

s. 84(3)

July 14, 1946


RAJ RANI & ANR.

KAILASH CHAND & ANR.

February 17, 1977 (M. H. BEG, C. J. AND P. S. KA:lASAM, J.J

Burden of Proof under Art. 142 of the Lin1itatio11 .. 1ct, 1908-A pluintif] adniilting dispossession in suits based on title, had to prove that Ile was in actual or constructive possession lVithin twelve )'enrs.

The suit property of one Kalyan Chand in the joint possession of Shital Prasad (son 1/3), Bansidar (great grandson 1/3) and Shco Shankar Sangam- Jal and Kripa Shankar (1!9+1!9+119 grandson')) \Vas mortgaged bv Shco Shanker, Sangamlal and Bansidhar acting on theit own behalf and allegedly on behalf of Krioa Shankar (who was a minor then).

Shital Prasad was not a party to the mortgage.

When the whole house was sold in Court auction on 3-10-1937, in realisation of the mortgage money decreed, one Bhagwandas father of Kail ash Chand (Respondent No. 1) purchr:sed the said house and took symbolical possession on 12.9.1938.

The residential portioQ of the house was in occupation of Knipa Shankar (Appellant's husband) and Devita Rani w/o Shital Prasad Who established her right to 1/3 share by a decree obtained on 22-1-1941.

Another suit filed by Bhagwandas for a declaration and possession over 2/3 share for ejecting Krip:i. Shankar w-as decreed on 27-8-1945, and, again symbolical possession \Vas obt::iined on 21-11-46 'lJndcr 0.21 r.96 C.P.C. Kripa Shankar died in 1953 leaving behind the appellants Raj Rani (wife) and Kali Charan (son). Respcndent No. 1 son of the auction purchaser Bhagwan Das filed a suit No. 475/1959 on or about 10-8-1959 for partition and possession over 2/3 shareof the portion in addition to certain claims of rents illegally collected and the amount of tax unpaid by the appellants.

The plaint allegations were : (i) The auction-purchaser has been in possession over 2/3 part of the house \Vith Devika Rani who had. 1/3 share in the house; (ii) The defendantshad no concern \Vith 2/3 sha:re in the said house themselves or through any other person V.'erc not in possession or in occupation of any part of the above said hOuse at any time as ov..-ners:

(iii) The plaintiff was being obstructed in looking after the house and ralis ing rents and that the defendant had misled so1ne tenants and rea1iseci the rents due to him.

The appellant defendants took the plea (i) the morrtgage was not valid as the amount was not borrowed for Jegal necessity; (ii) :Even if the house "had been sold in execution of the mortgage, they have been openly denying the ri, ghts of the plaintiff and had been in adverse possession and occupation of the property for more than 12 years so that, even if the plaintiff or his predecessors had any right, it had been extinguished by the operation of law limitation.

The Trial Court decreed the suit and the first appellate court confirn1ed it.

The second appeal filed in the High Court '-V~3 also dismissed.

Allowing the appeal by special leave, the Court,

HELD: -G ( 1) The High Court in _a second appeal and the Subordinc1te courts failed to determine the crucial question of actual or eYen constructive possession of the plaintiff within twelve years and give a find1:ng to that effect. [24EJ

(2) The plaintiff had to prove that he was in actual or constructive possession within twelve years. It would be enough if he establishes that he \\'as in constructive possession within twelve years by receipts of rent or otherwise.

[25F)

(3) A decision on the question whether Art. 142 Lin1itation Act applies to a case, really deoends upon an interpretation of the pleadings. In cases governed by the former Limitation Act, at any rate, a plaintiff admitting dispossession in suits based on title, had to prove that he \Vas in actual or constructive possession within twelve years. [25C-E]

( 4) The allegations in the plaint amount to an allegation that by ss~1t ing their ownership and inducing the tena?ts. not to pay rents to the pla1!1tdfs, the defendants had dispossessed the plaintiff.

In such a case. even if a defendant in actual possession could be deemed to be initiallY. a co-sharer, the plaintiff wou)d be really assef!ing that the .co-shrcr had tspossessed or ousted him.

Hence an ouster having been admitted in the plaint the burden would lie upon the plaintiff of proving his case. tat .the ouster hd taken place \Vithin twelve years as Art. 142 <; if the old Lnlltat10!1 Act applied t? such a case. In the instant case, even if the symboltc dehvery of posses.ston to a co-sharer could be said to have interrupted any adverse possession, that interruption toOk place beyond twelve years [23B-C1

Bindilyachal Chand & Ors. v. Ram Gharib Chand & Ors. AIR 1934 All. 993, referred to.

Manikyala Rao v. f\Tarasimhaswanii AIR 1966 SC 470, distinguished.

Appeal allo\ved ad case rmandd. to first ppellat~ out to determine \vhether plaintiff was in possession w1th1n the penod of hm1tat1on.

OVIL APPELLATE JURISDICTION : Civil Appeal No. 1984 of 1968.

(Appeal by Special Leave from Judgment and Decree dated 4.12.1967 of the Allahabad High Court in Second Appeal No. 3224 of 1963) s. C. Manchanda, M. L. Chitravanshi and M. V. Goswami, for the appellants.

J. P. Goyal, V. C. Prashar and Shreepal Singh, for respondents.

The Judgmep.t of \he Court was delivered by

BEG, C. J. This is the defendant's appeal by special leave against E the judgment and decree of the Allahabad High Court decreeing the suit of the plaintiff respondent for partition and separate possession of 2/3 share of House No. 397 in Katra, Allahabad.

The plaintiff claimed to be the sole heir of the auction purchaser of the house in October, 1937, at a Court sale in execution of a mortgage decree.

The house had been mortgaged by Sharda Prasad representing the line of one son of Kalyan Chand, the common ancestor and original F owner, and Sheo Shankar and Sangam Lal representing the line of another son of Kalyan Chand.

Kripa Shanker, now represented by the two appellants, his widow and son, was said to be a minor, and although, his brothers acted on his behalf, the defendants alleged that the loan and the mortgage were not binding upon him for want of legal necessity.

Shital Prasad, a son of Kalyan Chand, was not a party to the mortgage deed.

Hence, Sita] Prasad's share could not G be said to have been sold.

On 12th September, 1938, symbolical possess10nwas taken by_ the auction purchaser, and, again in 1946, m proceeding for execut10n of a decree.

But, the house continued to J; ie in he occupation of Kripa Shanker, the husband of the appellant

Ra1 Ram and the father of the appellant Kali Charan. Devika Rani, widow of Sh1tal 'Prasad, who had filed a sui•t in 1937 for the declarat10n o~ her nghts to l/ 3 of the house, after her objections under H O; der XXT, Rufo 100 of the Code of Civil Procedure had been dismISsed, and obtamed a decree from the appellate Court on 22nd ,

'.SUJ'REME COURT REPORTS [1977] 3 s.c.R.

January, 1941, ; with the result that Shital Prasad'". 1/3 share went out, had not been impleaded in the suit now before us.

In 1945, the respondentcauction purchasr (now represented by son, Respondent No. 'l) had filed a suit against Kripa Shanker and another for a declaration of his Tights in respect of 2/3 share in a11other house and the ejectment of Kripa Shanker and Prayag Das from that house.

Although that suit was in respect of another house, the defendants alleged that, in that suit, the auction purchaser had said that the house in dispute in the case now before us was also in possession of Kripa Shanker as a trespasser.

Kripa Shanker died in 1953 leaving the appellants in possession as his heirs.

The suit now before us was filed on 10th August, 1959. It was alleged there that, although the auction purchaser had obtained possession of the whole house, yet, Smt. Devika Rani, the widow of Shital Prasad having continued in possession over 113 share, her claim to that portion had been accepted so that it was no longer in dispute.

But, i<t was alleged that the auction purchaser has been in possession over 2/3 part of the house together with Devika Rani who had 1/3 share in the house.

It was also alleged that, after the death of Devika Rani, one Sankata Prasad, defendant No. 3, had started giving himself out as the owner of 1/3 share on the basis of a giftdeed of 1953 in his favour, and that defendant No. 1, Raj Rani, had been giving out that Sankata Prasad had executed a sak-deed io,1 favour of Kripa Shanker, defendant No. 2.

In para 8 of the pla:.,1t, however, it is alleged: "The defendants had no concern with the 2/3 share in the said: house themselves or through any other person nor were they ever in possession or in occupation of any part of above

owners''. It is also alleged in the plaint that the plaintiff--auction purchaser's son had been, and, before him the auction-purchaser had been in possession of the house.

Furthermore it is alleged that "Raj Rani had, in collusion with Sankata Prasad, defendant No. 3, obtained a false sale-deed in favour of defendant No. 2 in respect of the I /3 share of the said house and misled some tenants in the said house and illegally prevented them from paying to the plaintiff his share in the rent".

The plaintiff, therefore, claimed to be entitled to recover the rents also of amounts wrongly realised by the defendants

I and 2, the appellants before us. In paragraph l 0 of the plaint, it was stated that the defendants did not pay any taxes to the Municipal Board which had to file suit for their recovery which were decreed.

The plaintiff, however, alleged that he had pai"l up the decretal amounts in excess of the 2/3 share which belonged to the plaintiff.

The plaintiff also alleged that he was being obstructed in looking after the house and realising rents.

Hence, according to the plaintiff, he had to seve a notice dated 23rd April, 1959, asking the defendants to partition the property.

The plaintiff alleged that the cause of action "accrued to the plaintiff firstly in 1956 and aiter tbat on the end of each month when the defendants illegally received i>laintiff'> share in the rent from the tenants and did not pay to the plaintiff and then on 15-11-58 when the plaintiff has to oav excess amount to the Municipal Board on account of the defendants and the on 23-~-59. and, lastly, in May, 1959, when the defendants refused to parlltton

the plaintiff's share in the said house, within the jurisdiction of this Court and this Court has the jurisdiction to try this suit",

The defendants-appellants had denied any concern with the mortgage.

Apparantly, their case was that as _the husband_ of Raj Rani, appellant No. 1 and the father of Kali Charan, appellant No. 2, was a minor at the time of the alleged mortgage and his brother, not having borrowed the money for any legal necessity, could not bind Kripa Shanker or his heirs.

Furthermore, the defendants pleaded that, even if the house bad been sold in execution of the mortgage decree, the defendants-appellants "have been openly denying the rights of the plaintiff and bad been in adverse possession and occupation of the property for more than 12 years so that even if the plaintiff or his predecessors had any right, it bad been extinguished by the operation of law of limitation".

The first question, on pleadings set out above, for the trial Court to determine was : has the plaintiff come with a plea of dispossession by the defendants so that Article 142 of the old Limitafron Act was applicable to the case, or, had the defendants, having set up the plea of adverse possession, to establish an ouster in order to discharge their burden of proof under Article 144 of the Limitation Act ? In view of section 3 of the old Limitation Act, i't was incui:nbent on the Court to determine whether the suit was filed within time, even if the plea of limitation bad lfOt been taken, when the question had been raised.

Section 3 ( 1) provided :

"3 (I), Subject to the prov1s1on contained in >ections 4 to 24 (mclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence''.

The correct procedure for the Court to adopt was not only to frame an issue on the question of limitation but to determine whether it was governed by Article 142 or by Article 144 of the Limitation

Act The trial Court did frame an issue indicating that Article 142 F was applicable.

This was issue No. 2 framed as follows :

"Whether the suit is within limitation"?

The trial Court observed : "lt ls also true that if the suit of the plaintiff is not established to be within limitation, that is to say that, if the possession of the plaintiff is not even with_in 12 years, the suit must fail as the rights of the plaintiffs would be deemed to have been extinguished by the adverse possession of defendants 1 and 2. or. their predecessor-in-interest, namely, Kripa Shankar".

All this shows that the trial Court was applying Article 142 of the old Limitation

Act We do not, however, find any finding given by the trial Court on the question whether, and, i•I so when and how, the plaintiff was 'in actual or constructive possession of any part of the house. If Article 142 applied, it meant that the plaintiff had admitted dispo- ssession. If this was the case, the following finding by the trial Court on the trial of the plaintiff seems to us to be premature :

"Now it will be noted that there has not been any partition between the plaintiff on the one hand and the other one third share holder Smt. Deoka or her snccessor-in-interest on the other hand.

Smt. Deoka was admittedly a relation of Kripa Shnker and there is nothing unusual if Smt.

Deoka had allowed Kripa Shanker to continue to live in the suit premises under the protection of her 1 /3 share. The

consi•stent Municipal receipts, the litigation with tenants, and over all the title deeds of the plaintiff; they all go to lend support to the plaintiff's case".

In the first appeal against that judgment, it was again not decided anywhere what Article of the Umitation Act applied to the case. It appears to us that the appellate Court had also not come to the grips with the real question to be determined. It said :

"It was alleged that Kripa Shanker had taken possession over the house. The learned counsel for the appe!lant argued that these documents showed that Kripa Shanker was in possession over the entire house and that Bhagwan Das never obtained actual possession over it and only symobolical possession was delivered to him in this suit, It must be borne in mind that Bhagwan Das was owner to only 2/3rd share and I/3rd belonged to Mst. Deoki, who was real aunt of Kripa Shanker, and unless Bhagwan Das had got his share partitioned, he could not obtain actual possession over any portion of the house and as such only symbolical possession was delivered to him.

The question only is whether he remained in joint possession or not ? It is contended from the side of the appellants that he was not in possession and Kripa Shanker was in adverse possei; sion

at least from 1945, and that this suit was filed in 1'>59, that is after more than 12 years when the defendant appellants had already perfected their title by adverse possession.

This symbolical possession was delivered on 21st of November, 1946.

This suit was filed in 1959 that is more than 12 years after and, therefore, there is force in the contention that it must be proved that Bhagwan Das was i'n joint possession. Bhagwan Das was a co-sharer alon~ with Mst.

Deoki. Mst. Deoki's share ultimately came to the defendant appellant in 1957 and as such in 1957 the defendant appellant became co-sharer with the plaintiff resnonr1ent.

In 1957, 12 years had not passed and even if it is assumed that Bhagwan Das or the plaintiff r!'sPondent w<ts n()t in joint possession, the;•r right had not ceased in 1957. It was observed by the Supreme Court of India in the case

P. Laxmi Reddv v. L. Laxmi Reddv (in 1957 A.LR. Snoreme Court 314), 'the burden of making out ouster is on the person claiming to displace the lawful title of co-heir by his adverse possession'.''

If the plaintiff's assertion was that the defendants had di'ipossessed him it did not matter whether the defendants, represented a

co-sharer or not.

In that event, the plaintiff's case would certainly be deemed to be one in which the assertion of dispossession was there. In the case before us, it appears that the rights of Kripa Shanker, on the plaintiff's asserti<on that he had been a party to the mortgage, had come to an end by the sale of his rights in the property and delivery of possession to the auction purchaser.

His heirs could only be in adverse possession and not holding through Kripa Shanker on the plaintiff's own assertions.

In fact, they have not claimed to be holding through Kdpa Shanker.

In any event, the allegations in the plaint appear to us to amount to an allegation that, by asserting their own ownership and inducing the tenants not to pay rents to the plaintiff, the defendants had dispossessed' the plaintiff. 'In such a case, even if rn defendant in actual possession could be deemed to be i•nitially a co, sharer, the plaintiff would be really asserting that the co-share!:_ had dispossessed or ousted him.

Hence. an ouster having been admitted iu the plaint, the burden would lie upon the plaintiff of proving his case that the ouster had taken place within twelve years.

On any other view, the distinction between articles 142 and 144 of the former Umitation Act, which is important in this case, would vanish.

In a case between co-sharers, Bindhyachal Chand & Ors. v. Ram <Gharib Chand & Ors.,(') a "Full Bench of the Allahabad High Court

had examined the difficulties which -arise when a co-sharer sues another on the allegation that he had been dispossessed.

Sulaiman, C.J., pointed out that article 144 was a residuary article which applied to suits for possession of immovable properly which could not fall elsewhere.

As regards the distinction betwl'en articles 142 and 144, he observed (at p. 997) :

"No doubt in many cases the distinction is very fine, and the line of demarcation between. dispossession and adverse possession is thin.

But) the question in each case is one of burden of proof, and it is incumbent on the plaintiff, when he admits his dispossession, to establish his possession within twelve years".

He went on to point out (at p. 998) :

"Ordinarily, the possession of one co-owner, who 1s entitled to joint possession of the whole property, is referable to his title, and he cannot ask the Court to presume that his possession was illegal or adverse to the other coowner.

It follows that if one co-owner is in actual possession of the joint properly, and the other co-owner is either absent or is not in actual possession, the latter would still be in constructive possession of his property through his co-owner.

There would be prima facie no case where the possession of one co-owner was illegal and was' necessarily adverse to that of the other co-owner.

The presumption would be that they are both in joint possession.

But, it cannot_ be denied that one co-owner can dispossess another

(!)A.LR. 1934 All. 993.

3-240SCI/77

co-owner and can exercise adverse possession over a joint property.

If, therefore, the plaintiff, a co-owner, admits that he has been dispossessed and that, at any rate, for a short period prior to the suit, the possession of his co-owner was adverse to him, then he cannot fall back on a mere presumption of joint possession in his favour and succeed without showing any other circumstances whatsoever".

The following observations of the learned Chief Justice are also useful (at p. 998) :

"Personally speaking. I do not think that the plaintiff can by cleverly drafli'ng his plaint evade the burden of proof which Art. 142 casts upon one who is suing for possession on the ground of dispossession.

When a plaintiff falsely alleges that he is in possession and wants a relief, to which the owner in possession is entitled, e.g., for partition, i•njunction, joint possession, etc., and it i~ found that he was in fact not in possession but had been dispossessed, technically speaking, the suit would fall under s. 42, Specific Reli'ef Act and would be dismissed on the ground that he had omitted to ask for a consequential relief and had failed to prove his case.

But, a Court may allow him to change his ground and give him a decree for possession, treating his claim as one for recovery of possession on the basi~ of dispossession, provided he succeeds in showing that his dispossession took place within 12 years".

It seems to us that, in the case now before us, Lhe High Court, on a second appeal to it, also failed to determine the crucial question of actual or e\ en constructive possession of the plaintiff within twelve years.

It said :

"The argument advanced before me is that after the decree in suit No. 57 of 1945 the possession of Kripa Shanker became adverse and, as the suit for partition was not filed with 12 years of the date of the decree, the suit was barred by limitation.

A large number of authoritie., were cited before me on the point. It was urged that it a member of an undivided Hindu family sells his undivided share and the alience does not bring a suit for partition and possession over his share within 12 years of the date of the alienation the possession of the alienor and all the other coparceners woukl be adverse and the suit for partition after the expiry of 12 years from the date of the alienation would be barred by time.

Some of the authorities cited by the karned counsel for the appellant, to which I do not consider it necessary to refer, would seem to support his contention.

Learned counsel for the respondent, however, has cited before me the latest case of the Supreme! Court in Manikayala Rao v.

Narasimhaswami (AIR 1966 SC 470)".

The case relied upon by the High Court is distinguishable on two grounds : firstly, it was not a case where the plaintiff, on the pleadings in tl1e plaint could be fairly said to have admitted dispossession

ji; i

RAJ RANI V. KAILASII CHAND (Beg, C.J.) 25

or ouster by setting up that the alleged co-sharer in possession was denying the rights of the plaintiff; and, secondly, delivery of symbolical possession there was said to have interrupted adverse possession which could, therefore, not be continuously for twelve years.

In the case before us, even if a symbolic delivery of possession to a co-sharer could be said to have interrupted any adverse possession, that interruption took place beyond 12 years.

Hence, it was the duty of the plaintiff to have shown by cogent evidence how, by receipt of rent or an admission by the defendan:s or o'herwise, he or his predecessorin-interest could be deemed to be in actual or constructive possession as an owner or as a co-sharer with the defendants over the house in dispute.

We may observe that the difficulty in deciding the question whether article 142 or article 144, Limitation Act applies to a case, which really depends upon an interpretation of the pleadings, was sought to be removed in the Limitation Act of 1963 by a more clarified position in article 64 and 65 of Limitation Act of 1963.

The reasons given for this change were :

"Article 142 and 144 of the cxis•ing Act have given rise '.o a good deal of confusion with respect to suits for possession by owners of property.

Article 64 as proposed replaces Art. 142, but is restricted to suit based on possessory ti.le so that an owner of property docs not lose his right to the property unless the defendant in possession is able to prove adverse possession".

In other words, in cases governed by the former Limitation Act, at any rate, a plaintiff admitting dispossession, in suits based on title, had to prove that he was in actual or constructive possession within twelve years.

Hence, the change in law.

We do not, however, propose to examine or lay down here the exact position under the amended law of limitation under the act of 1963.

Th~ result is that, in the case before us, the palintiff had to prove

that he was in actual or constructive possession within twelve years.

F It would be enough if he establishes that he was in constructive poosession within twelve years by receipt of rent or otherwise. There is no finding to tha'. effect given by the High Court or by the Subordinate Courts.

We, therefore, allow this appeal, set aside the judgments and orders of the High Court and of the first appellate Court.

We smd the case back to the first appellate Court, which is the final Court of facts, to determine, on the evidence already on record, whether the plaintiff was in actual or constructive possession within twelve years of the filing of the suit. If the plaintiff can establish that, the suit will have to be decreed.

Otherwise, the suit must fail.

The costs will abide the results.

s.:a.

Appeal allowed and case remanded.

RAJ RANI & ANR

KAILASH CHAND & ANR

1977 (M. H. BEG

Art. 142

Kalyan Chand

Kripa Shankar

Sangamlal

Bansidhar

Krioa Shankar

Shital Prasad

Bhagwandas

Kail ash Chand

Knipa Shankar

C.P.C

Bhagwan Das

\Vith Devika Rani

Art. 142

Limitation Act

Art. 142

AIR 1966 SC 470

OVIL APPELLATE JURISDICTION

C. Manchanda

M. L. Chitravanshi

M. V. Goswami

J. P. Goyal

V. C. Prashar

Shreepal Singh

BEG

Allahabad High Court

Sharda Prasad

Sheo Shankar

Sangam Lal

Kripa Shanker

Sita] Prasad

12th September, 1938

Kripa Shanker

Ram

Charan

Devika Rani

the Code of Civil Procedure

Kripa Shanker

Prayag Das

10th August, 1959

Devika Rani

Sankata Prasad

Raj Rani

Sankata Prasad

Raj Rani

Kali Charan

Article 142

Article 144

Limitation Act

section 3

Limitation Act

Section 3

Article 142

Article 144

Article 142

Article 142

Article 142

Deoka

Kripa Shnker

Article of the Umitation Act

Deoki

21st of November, 1946

Bhagwan Das

Supreme Court of India

Kdpa Shanker

articles 142 and 144

Bindhyachal Chand

Sulaiman

article 144

articles 142 and 144

Art. 142

s. 42

Supreme! Court

AIR 1966 SC 470

RAJ RANI V. KAILASII CHAND

article 142

article 144

Limitation Act

Limitation Act

article 64 and 65

Limitation Act

Article 142 and 144

Article 64

Art. 142

Limitation Act