• B

' c

ORIENT PAPER MILLS LTD. v.

UNION OF INDIA February 25, 1966

[P. B. GAJENDRAGADKAR C.J., K.N. WANCHOO,

M. HIDAYATULLAH, J. c. SHAH AND

S. M •. SJKRI, JJ.]

Supreme Court Rules, 1950, Schedule III, Part II, Entry 2-Claim for refund of a definite amount of excise duty-Disallowed by Excise authorities-Appeal to Supreme Court under Art. 136-Court fee payable.

The appellant claimed refund of a specific amount as excess amount of excise duty recovered from it by assessing it under a wrong item, but the' excise authorities rejected the claim and the appellant's revision applicatron to the respondent was also dismissed.

In its application for leave to appeal to this Court under Art. 13 6, the appellant challenged the order of the respondent on the assumption that the order under appeal had been passed by the respondent acting as a Tribunal, and reiterated its claim for the specified amount. The appellant contended that only fixed court fee of Rs. 250 was payable because it was not poosible to estimate at a money

value the subject matter in dispute and not fee on an ad valorem basis at the rate prescribet! in Entry 2 in Schedule III, Part II of the Supreme Court Rules.

HELD : The claim made by the appellant was for a definite, ascertained amount and thereiore it is not a case where it is not possible to estimate at a money value the subject matter in dispute.

Nor can it be said that if the appeal before this Court succeeds, it would still be necessary for the appellant to take any further steps to recover the amount of refund, because. this Court can direct the appropriate authorities to grant the refund. Therefore, the appellant should pay court fee as prescribed by Entry 2 in Part II of Schedule III of the Supreme Court Rules, on an ad valorem basis. [661 G-H; 662 E, Fl Order in Civil Appeal No. 212 of 1956, explained.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 659-664 of 1965.

Appeals by special leave from the judgment and order dated October 5, 1963 of the Government of India, Ministry of Finance, Department of Revenue, New Delhi in Central Excise Revision Applications Nos. 720-725 of 1963.

A. K. Sen, B. P. Maheshwari and M. S. Narasimhan, for the Appellant.

N. S. Blndra and B. R. G. K. Achar, for the respondent.

The Judgment of the Court was delivered by Gajendragadkar, C. J, What is the appropriate amount of court-fees payable on the petition of appeal filed by the appellant, Orient Paper Mills Ltd., under Schedule III, Part II of the Supreme Court Rules, 1950, that is the short question of law which arises for our decision in this matter.

The appellant carries on the business of manu!acturing and Selling paper and paper board, and is registered as such under the 657

SUPUKB OOUJ.T llEPOl.1'8

(1966] 3 S.C.R.

Central Excise and Salt Act, 1944 (No. I of 1944) (hercinaft~'I' called 'the Act'). The respondent, the Union of India, charges excise duty under Rule 9 of the Rules framed under the Act on the paper manufactured by the appellant before the manufactured goods are cleared out of the appellant's ware-house. Among various kinds of paper which the appellant manufactures and sells, are included 'Packing and Wrapping' and 'Printing and Writing Paper'. The aforesaid 'Printing and Writing Paper' is of varioui; varieties and it includes Machine Glazed Poster popularly known as M.G. Posters.

Prior to the Finance Act of 1961, the printing and writing paper was classified and charged under item 17(3) of the Schedule to the Act and the wrapping paper was charged under item 17{ 4) of the Schedule; even so, the duty on both the items was the same, viz., 0 22 P. per kilogram. Th.z duty under item 17(4) was, however, enhanced by the Finance Act of 1961 and increased to 0·35 P. per kilogram from the !st March, 1961. About six months after the enhanced duty came into force, the Excise authorities decided that the M.G. Poster manufactured by the appellant should be charged under item 17{4) and demand notices were issued accordingly for the different months during which the said paper was manufactured.

In consequence of this demand, a total sum of Rs. 2,79,175-27 P. was collected from the appellant as difference in the duty leviable for the assessment periods covered by the several appeals which are pending in this Court and with which we are concerned in the present proceedings.

As a result of these demands, the appellant had to pay the duty which it did under protest. Thereafter, it claimed a refund under Rule 11 of the Rules framed under the Act. This Rule prescribes a period of three months within which a claim for refund can be made "in consequence of the sum having been paid through inadvertance, error or misconstruction''. The appellant urged that the duty on the goods in question was chargeable under item 17(3) and not under item 17(4) of the Tariff Rules. One of the reliefs claimed by the appellant in its petitions of appeal was that the Excise authorities be directed to assess the poster paper under item 17(3) and not under item 17(4) and to make a direction as to the refund of the excess amount recovered from the appellant.

The excess amount of which refund was thus claimed came to Rs. 84,928-84 P. This application was rejected by the Assistant Collector of Central Excise, Cuttack Division, Cuttack.

Against the said decision, the appellant preferred an appeal to the Collector of Central Excise under s. 35 of the Act. In its appeal memo to the Collector, the appellant had claimed that the order under appeal should be rexoked and Rs. 84,928-84 P. should be refunded to it. A further claim was made by the appellant that the excise authorities should be directed to assess the poster paper

j , l c '

I ,

• B

under item 17(3) and not under item 17( 4). The said appeal was rejected by the Collector of Customs on 28-7-1962.

The appellant then moved the respondent by way of revision under s. 36 of the Act. In its revision application, the appellant made prayers similar to those which it had made before the Appellate Authority. This revision application was also dismissed. It is against this revisional order that the appellant has come to this Court by special leave under Art. 136 of the Constitution. It appears that in the various paragraphs of its application for leave, the appellant has reiterated its claim for refund of money recovered from it in excess of the amount legitimately due from it and has challenged the order of the Excise authorities rejecting its claim in that behalf. On these facts, the question which arises is: can the appellant be permitted to pay a court-fee of Rs. 250 on its petitions for appeal, or is it necessary that it ought to pay court-fees at the rate prescribed by sub-clause (2) of entry 2 in Schedule III, Part II of the Supreme Court Rules ?

This question was referred by the Deputy Registrar of this Court to the Hon'ble Judge in Chambers. The learned Judge referred t? the respective c_ontmtions raised before him by the parties and considered the practice m regard to the levy of court-fees in allied matters. He tok the view that the practice with regard to levy ?f court-fee~ was m a s.tate of flux and it required full consideratwn. That rs why he duected that the matter be adjourned to

ourt. It is as a res.ult of this direction made by the Hon'ble Judge' in Chambers that this matter has come before us for disposal on the question of court-fees. ..

Le~ us cite the relevai; it prvisions of the Supreme Court Rules m relatwn to court-fees m this matter. Enrty 2 in Part II of Schedule III reads thus:-

"Lodging and registering Petition of Appeal: Where the amount or value of the subject-matter in dispute is Rs. 20,000 or below that sum .. Rs. 250 00 For every Rs. 1,000 in excess of Rs. 20,000 .

In cases where it is not possible to estimate at a money value the subject-matter in dispute

.. Rs. 5 00 for every thousand rupees or part thereof.

.. Rs. 250 . 00"

There is a proviso to this entry which reads thus:-

"Provided:

(!) that the maximum fee payable in any case shall not exceed Rs. 2,000 and

SUPREME

COURT

REPORTS [1966] 3 s.c.a.

(2) that where an appeal is brought by special leave granted by this Court credit shall be given to the appellant for the amount of court-fee paid by him on the petition for special leave to appeal".

Mr. Sen for the appellant contends that it is not possible to estimate at a money Yalue the subject-matter in dispute in the

present appeals; and so, court-fee of Rs. 250 would be adequate and appropriate for each one of them. According to him, the controversy between the parties has relation to the proper classification of the goods and this being the subject-matter of the appeals, it is incapable of valuation. Mr. Sen presented his argument in an alternative form.

He urged that even if the appeals are allowed, this Court will merely determine the proper classification of the goods and make a declaration that on the basis of the said proper classification, the appellant should be entitled to the rfund.

Even after such a declaration is made, the appellant would be required to adopt some other procedure to make a claim for actual recovery of the said refund. It is on these two grounds that Mr. Sen rests his case that Rs. 250 would be the appropriate and adequate court-fees for each one of these appeals.

In support of this contention, Mr. Sen has also referred to the practice prevailing in this Court in respect of certain categories of appeals where court-fee of Rs. 250 has been consistently accepted as adequate and appropriate. In Civil Appeal No. 212 of 1956 (The State of Madras v. Messrs. Tata Iron and Steel Co. Ltd.) an appeal was filed by the State of Madras on a certificate granted by the High Court from an order passed hy it under s. 12-B of the Madras General Sales Tax Act, 1939 allowing the assessee's claim for refund of the amount of sales tax computed on the tum-over of a stated sum of money. Overruling the stand taken by the office that court-fees should be paid on an ad valorem basis, Bhagwati, J. who was then the Hon'ble Judge in Chambers directed that "it is not possible to estimate the value of the claim in this case and the record does not show it. Therefore, the court-fee should be paid on that basis". Accordingly Rs. 250/- was accepted as proper court-fee.

Similarly, in Civil Appeal No. 54 of 1958 (Indian Hume Pipes

v. Its Workmen) though the appeal related to a definite and ascertainable sum of money in respect of payment of bonus, dearness allowance, etc. Bhagwati, J. directed that "I am inclined to think that Rs. 250/- fixed court-fee should be charged. The award merely determines the liability; recovery of the dues requires other procedure to be adopted for the purpose; vide section 33(c)".

In accordance with the directions thus given by the Hon'ble Judge in Chambers in these two matters, the practice in this Court

r \'

I •

•.-

• •

---..._

' r-1 •

A..

consistently has been that in matters comingtotbis Courtin reference proceedings under the relevant provisions of the Sales Tax Acts and the Indian Income-tax Act, 1922 as well as against awards made under the Industrial Disputes Act, 1947, Rs. 250 has been accepted as proper court-fee.

In Civil Appeal No. 148of1954 (M/s. Bhatnagar & Co. Ltd.v.

Union of India), similar court-fee of Rs. 250/- was accepted where the appellant challenged the order of the High Court passed under Art. 226 refusing the appellant's prayer for a direction for amendment of the period of the validity of import licences. This plea was accepted even though the appellant had estimated his loss at Rs. 6,00,000/- if the relief claimed in that behalf by him was not granted.

It is on these precedents and the practice which they show that Mr.

Sen has relied in support of his argument that the category of cases in which the present appeals fall should be similarly treated and Rs. 250/- should be taken as adequate and proper court-fee.

Reverting then to the first contention raised by Mr. Sen, can it be said that the present appeals fall in the class of cases where it is not possible to estimate at a money value the subject-matter in dispute. In our opinion, the answer to this question must clearly be in the negative. We have already set out the nature of the relief claimed by the appellant in its application before the Assistant Collector of Central Excise, as well as in subsequent appeals and revision application. The claim clearly and unambiguously is for a refund of Rs. 84,928 84 P. It is true that a claim for this refund is sought to be justified on the basis that the assessment should be levied under item 17(3) and not under item 17( 4); but the decision of the point as to which item applies to the paper in question, serves to support the appellant's claim for a refund; and so, the fact that the issue as to which item applies cannot be said to determine the character of the present proceedings before the Appellate Authority or that of the appeals before this Court. , The proceedings, in terms, are to recover the stated amount of refund and since the said claim has been rejected by the Excise authorities, in the present appeals the same claim-is made by the appellant before this Court. Therefore, we think it is impossible to hold that these appeals are cases where it is not possible to estimate at a money value the subject-matter in dispute.

Besides, Mr. Sen is not right in contending that if the appeals filed by the appellant before this Court succeed, it would be necessary for the appellant to take some further steps to recover the amount of refund claimed by it. In case this Court holds that the basis on which the assessment has been made in respect of the paper manufactured by the appellant is erroneous in law, the necessary consequer, ce of the said decision would be to issue a direction that a refund of the appropriate amount should be allowed. These

•f62 SUl'llEMI! COUJ.T llBPOl.TS

[1966) 3 S.C.R.

a.ppc:aJs have been brought to this Court under Art. 136 of the Coru- Ututton on the assumption that the orders under appeal hae been

passed .~Y the rpopdent hich acted as a Tribunal in entertaining the reVJSon applications withm the meaning of the said Article; and so, 11 would be open to this Court to direct, if the appeals succeed, that the appropriate authorities should grant the appellant's claim for refund.

Then as to the precedents on which Mr. Sen relies, the position with regard to appeals brought to this Court in Sales-tax. or Income-tax. matters, such as the case in the State of Madras v.

Messrs. Tata lro11 and Steel Co. Ltd.(I), is entirely different.

In such proceedings, the High Court which entertains the reference acts purely in an advisory capacity and when the appeal is brought to this Court against the decision of the High Court on such reference, the capacity of this Court is exactly the same as that of the High Court. The proceedings continue to be proceedings in which either the High Court or this Court expresses an advisory opinion, and so, it can well be said that the subject-matter in such cases cannot be estimated at a money value. Whether or not similar considerations will apply to the appeals brought to this Court by special leave against awards made under the Industrial Disputes Act or against orders passed by the High Court in writ jurisdiction, it is unnecessary for us to decide in the present proceedings.

So far as the present appeals are concerned, we feel no difficulty in holding that the claim made by the appellant is for a definite, ascertained amount and it is the rejection of the said claim by the respondent in exercise of its revisional jurisdiction when it rejected the appellant's revision applications, that has given rise to the present appeals. This is a claim which in terms has already been

timated at a money value, and therefore, there is no basis for the appellant's plea that court-fee of Rs. 250/- should be held to be adequate and proper in each of these appeals. We accordingly direct that the appellant should pay proper court-fees as prescribed by Entry 2 in Part II of the Third Schedule of the Supreme Court Rules, subject, of course, to the maximum prescribed by clause (i) of the proviso thereto.

(t} C.A. No. 212of t956.

c

ORIENT PAPER MILLS LTD

UNION OF INDIA

February 25, 1966

P. B. GAJENDRAGADKAR C.J.

K.N. WANCHOO

M. HIDAYATULLAH, J.

c. SHAH

Supreme Court Rules, 1950

Schedule III

Art. 136

Art. 13

Schedule III

Part II of the Supreme Court Rules

CIVIL APPELLATE JURISDICTION

A. K. Sen

B. P. Maheshwari

M. S. Narasimhan

N. S. Blndra

B. R. G. K. Achar

Gajendragadkar

Orient Paper Mills Ltd.

Schedule III

Central Excise and Salt Act, 1944

Union of India

Prior to the Finance Act

st March, 1961

s. 35

s. 36

Art. 136

Schedule III

Part II of the Supreme Court Rules

Schedule III

Sen

State of Madras

s. 12

Madras General Sales Tax Act, 1939

Bhagwati

section 33(c)

Income-tax Act

Industrial Disputes Act, 1947

Bhatnagar & Co. Ltd.v

Art. 226

Sen

Art. 136

Industrial Disputes Act


• B

... /

MAHARAJA PRATAP SINGH BAHADUR v.

THAKUR MANMOHAN DEO AND ORS.

F'ebruary 28, 1966 (K. SUBBA RAo, AND V. RAMASAWAMI, JJ.J Bengal Ghatwali Lands Act, 1859 (Act V of 1859), ss. 1 and 'lr-The Court of Wards Att, 1870 (Act IV of 1870), ss. 8, 9, 13-Provisions of former Act in respect of long leases of ghatwa(i lands in conflict wifh provisions of latter Act-Whether conditions in both Acts to be satrsfied- Lease of ghatwali estate land in perpetuity-Lease executed by Deputy Commissioner-Presumption of valid execution under s. 114 Indian Evidence Act, 1872.

A lease in perpetuity in respect of certain lands belonging to a ghatwali estate situated in the area of present West Bengal was granted in 1873 of the predecessors-in-interest Of the appellant for the purpot3e or erecting dwelling houses. The lease was executed on behalf of the Estate, which was under the management of the Court of Wards, by the Deputy Commissioner of Santa! Pargana. In 1952 the lease was challenged by the Ghatwal as being void. According to the Bengal Ghatwali Lands Act 1859 (Act V of 1859) such alease could be executed by the Court or Wards for certain specified purposes which included the erection of dwelling houses.

Under the Court of Wards Act 1870 (Act IV of 1870) 1tte Court of Wards could grant such a lease with the &auction of the Board of Revenue. The trial court held that the lease was void as it was not sanctioned by the Board of Revenue. 1he High Court held that the case must be decided on the provisions of Act V of 1859 which was a special Act overriding the general Act i.e., Act IV of 1870. According to the High Court the lease was void under Act V of 1859 because it was not executed by the Court of Wards.

Even under Act IV of 1870 it was void for want of sanction of the Board of Revenue. In appeal to this Court, HELD : The lease was valid.

(i) The Bengal Ghatwali Lands Act, 1859 was a special Act dealing with gbatwali lands. The Court of Wards Act, 1870 was a general enactment. On the principle generalia specialibus non derogant the provisions of . the former Act in respect of leases of ghatwali lands would prevail over the provisions of the latter Act regarding lease of land under the management of the Court of Wards.

[669 B-C]

(ii) The lease in question was for the purpose of raising dwelling houses and thus one of the conditions in s. 2 of the Act of 1859 was satisfi:ed.

The other condition that the lease must be executed by the Court of Wards was also satisfied in the case inasmuch as under s. 114 of the Indian Evidence Act the official act of execution of the lease by the Deputy Commissioner must be presumed to have been regularly performed i.e .. with due authority from the Court of Wards.

[669 G, HJ

(iii) Even on the footing that the Court of Wards Act, 1870 was applicable to the case, the lease could not be said to be void.

A combined reading of ss. 8, 9 and 13 of the said Act showed that the Collector (or Deputy Commissioner, s:nce the terms are synonymous) could grant a lease of land in the management of the Court of Wards in bis district; he could grant a lease in perpetuity with the sanction of the Board of Revenue. In the present case it could be presumed under s. 114 of the Evidence Act that the sanction of the Board of Revenue was duly obtained.

[670 DJ 663

SUPREME

COURT RBPOl.TS

[1966] 3 S.C.R

Civrr. APPELLATE!JtJRISDICTJO~ : Civil Appeal No. 35 of)963.

Appeal from t.he judgment and decree dated August 9, 1960 of the Patna High Court in Aprea! from Original Decree No. 438 of 1954.

Ugra Singh and D. Goh11rdhu11, for the appellant.

Sarjoo Prasad and R. C. Prasad for respondent no. I.

U. P. Singh. for respondents nos. 2 and 3.

The Judgment of the Court was delivered by

Subba Rao, J. The fac1s that gave rise to this appeal may be briefly stated. In the rlaint there are three schedules, A, B and C.

We are concerned in this appeal only with schedules A and C and nothing, therefore. need be said in regard to schedule TI. The lands described in schedules A and C were situate in Rohini Ghatwali

Estate. When !hat btatc was in the management of the Court of Wards, on March 25, 1873, the then Deputy Commissioner, Santai Paragana, on behalf of the Court of Wards representing the said Estate executed a lease in perpetuity in respect of the A schedule property in favour of Maharaja Sir Jai Mangal Singh Bahadur, the predecessor-in-interest of the 2nd defendant, for the purpose of erecting dwelling houses thereon. The 2nd defendant and his ancestors had been in possession of the said property since the date of the said lease. The lands described in Schedule C annexed to the plaint were not covered by the said lease, but it is alleged that the 2nd defendant and his ancestors had been in possession of the same.

The plaintiff, who is the present Ghatwal of the Rohini Ghatwali Estate, after attaining majority on October 17, 1949, filed Title Suit No. 37 of 1952 on the file of the Court of the Subordinate Judge, Deoghar, for recovery of possession of the said lands on the ground, inter alia, that they formed paf\ of his Estate and that the lease executed by the Deputy Commissioner in respect of the A Schedule lands was void, as it was not countersigned by the Commissioner, Bhagalporc, and that the 2nd defendant had no title to the C Schedule lands. To that suitthe Member, Board of Revenue, Bihar, was made the 1st defendant and Maharaja Pratap Singh, the successor-in-interest of the lessee, being a minor represented by the Collector of Monghyr, as representing the Court of Wards, as the 2nd defendant. The 2nd defendant contended that the suit was barred by limitation.

The learned Subordinate Judge held that the lease executed on behalf of the Court of Wards, not having been sanctioned by the Board of Revenue, became void as soon as the superintendence of the Court of Wards was removed from the Ghatwali Estate.

So far as the lands mentioned in Schedule C were concerned, be came to the conclusion that they were outside the scope of the lease

' A

, t ,

of tll73 and, therefore, the plaintiff was entitled to get possession thereof. He held that the suit was not barred by limitation. In the result he decreed the suit of the plaintiff for possession of A and C Schedule lands. Against the said decree the 2nd defendant filed an appeal to the High Court at Patna.

The said appeal was heatd by a division Bench of the High Court. It held that the validity of the lease of 1873 should be judged on the provisions of the Bengal Ghatwali Lands Act, 1859 (Act Vof 1859) and not on those of Court of Wards Act, 1870, (Act IV of 1870) and so judged the lease was void, as it was not executed by the Court of Wards as provided thereunder. It also held that even if Act IV of 1870 applied, the lease would be void inasmuch as no sanction of the Board of Revenue was obtained under s. 9 of the said Act.' In regard to the C Schedule properties• it accepted the finding of the _learned Subordinate Judge that it was not the subject-matter of the said lease. But it further held that the suit was not barred by limitation. In the result, the decree of the first court was confirmed; but in the circumstances of the case, no order for costs was made. Hence the present appeal.

At the outset learned counsel for the appellant raised a point for the first time before this Court that as the Rohini Ghatwali Estate vested in the Government under the Bihar Land Reforms Act, 1960. (Bihar Act XXX of 1950). The plaintiff had no locu&

standi to maintain the suit. When this appeal came up for hearing before this Court on August 18, 1965 it called for a finding from the High Court on the point whether the subject-matter of the appeal had vested in the State Government under the said Act. Pursuant to that order, the High Courtsubmitted a finding to the effect that the subject-matter of the appeal vested in. the State under Notification No. 74 L.R./Zan. dated May 22, 1952, published in Bihar Gazette issued on May 29, 1952. At the time this Court called for a finding, no decision was given by it on the question raised by the appellant as regards the locus standi of the plaintiff to file the suit.

After hearing arguments we now find that this is not a case where we

can dismiss the suit on the ground that the subject-matter of the suit vested in the State Government. The suit was filed on October 21, 1952, i.e., after the Estate had vested in the Government. But the defendants did not contest the suit on the ground that after such vesting the plaintiff had no locus standi to maintain the suit.

Pending the appeal in the Patna High Court, the State of Bihar was made a party to it on February 19, 1957; but the said State did not put forward its claim to the suit property. That apart, the question whether Basauri Ghatwali Tenure vested in the State was the subject-matter of T.S. No. 115 of 1950 between the parties. It is represented to us that the learned Subordinate Judge held in that suit that the said tenure also vested in the State, that an appeal filed in the High Court also went against the respondents and that the respon-

666 SUPlll!MI!

COURT IU!POllTS

[1966] 3 S.C.R.

dents would file an appeal to this Court. In the circumstances we do A not think we are justified in permitting the appellant to raise for the first time before us the contention based upon the provisions of the Bihar Land Reforms Act. But we must make it clear that we leave open the said question in view of the fact that proceeding! are pending in regard thereto.

The next question turns upon the validity of the lease deed of the year 1873. The lease executed by the Court of Wards is not filed, but the Kabuliat executed by the 2nd defendant's ancestor to the Court of Wards is filed and it is Ex. I in the case.

Both the parties proceeded on the basis that the terms of both the document! are the same.

Under Ex. I, Maharaja Sir Jaymangal Singh Bahadur, the ancestor of the 2nd defendant, had taken on lease the A scheduled property for the purpose of erecting dwelling houses from Brown Wood, the then Deputy Commissioner, Santhal Pargana, on behalf of the Court of Wards representing the Rohini Ghatwali Estate. That document was executed under ss. I and 2 of Act V of 1859. Learned counsel for the appellant contended that the validity of the lease was questioned by the respondents in the plaint only on the ground that it was not countersigned by the Commissioner of Bhagalpore, that the High Court went wrong in invalidating it on a different ground and that, in any view, having regard to the fact that a period of about 80 years had elapsed from the date of the lease, the High Court should have presumed that the document was executed in strict conformity with the provision& of both Act JV of 1870 and Act V of 1859.

Mr. Sarjoo Prasad, learned counsel for the respondents, on tile other hand, argued that both Act IV of 1870 and Act V of 1859 are complementary to each other, that a lease to be valid should comply with the provisions of both the Acts, that a lease in order to bind a Court of Wards should be executed in the manner prescribed by Act IV of 1870 and that, as the lea'e was not executed by the Court

of Wards as defined by the said Act with the sanction of the Board of Revenue, it was null and void on the removal of the Estate from the superintendence of the Court of Wards.

To appreciate the rival contentions it is necessary to consider the scope of the said two Acts. The relevant provisions of the said Acts may be extracted.

The Bengal Ghatwali Lands Act, 1859 (Act V. of 1859).

Section I. Ghatwals holding lands in the district of Birbhoom under the provisions of the aforesaid Regulation (The Bengal Ghatwali Lands Regulation, 1814) shall have the same power of granting leases for any period which they deem most conducive to the improvement

r •

.. •

A of their tenures as is allowed by law to the proprietors of other lands:

Provided that no lease of ghatwali lands for any period extending beyond the lifetime or incumbency of the grantor of the lease shall be valid and binding on the successors of the grantor, unless the same shall be granted for the working of mines or for the clearing of gunle, or for the erection of dwelling-houses or manu factories, or for tanks, canals and similar works, andshall be approved by the Commissioner of the Division, such approval being certified by an endorsement on the lease under the signature of the Conimissi~:mer.

Section 2. If any of the said ghatwali lands be at any time under the superintendence of the Court of Wards, or otherwise subject to the direct control of the officers of the Government, it shall be lawful for the Court of Wards or the Commissioner to grant leases for any such purpose as aforesaid; and every lease so granted shall bevalid and binding on all future possessors of the said lands, anything in the existing law to the contrary notwithstanding.

The Court of Wards Act, 1870 (Act of 1870)

Section 8. In every division of the provinces subject tothe control of the Lieutenant Governor of Bengal, there shall from and after the passing of this Act, be a Court of" Wards. The Commissioner of revenue of each such division shall be such court, and shall have_ and exercise all the powers and authorities conferred by this Act upon the court over the persons and property of all wards of such court.

Section 9. It shall be competent to the court to manage estates and other lands falling under their charge, either by appointment of a manager, or by giving some or all the estates and lands in farm, or by adopting such other form of management as may to the said court seem most expedient. Provided that no lease or farm shall accept under the sanction of the Board of Revenue, be given for a term exceeding ten years, not beyond the period of expiration of the ward's minority, and provided that all leases given by the court, or by the Collector acting for the court, or by the manager, shall become null and void on the removal of the estate from the superintendence of the court for whatever cause, save leases made with such sanction as. aforesaid.

SUPIU!ME COUllT

REPOJ.TS [l 966J 3 S.C.R.

A comparative study of these two Acts discloses that Act V of 1859 is a special Act dealing with a specific subject-matter, namely, Ghatwali lands in the district of Birbhoom: it also provides for a particular incident of the tenure, namely, the power to lease the said lands. It says that a ghatwal holding lands shall have the same

power of granting leases as is allowed by law to the proprietors of other lands. The proviso thereto enacts that a lease of a ghatwali land for a period extending beyond the lifetime of the grantor ii not binding on the successors unless the same was granted for the purposes specified therein with the approval of the Commissioner lignified in the manner prescribed thereunder. But s. 2 thereof provides that in the case of a ghatwali land under the superintendence of the Court of Wards, it shall be lawful to the Court of Wards or the Commissioner to grant leases of the same for any of the purposes mentioned in the proviso thereto.

Jn that event, such leases shall be binding on the future possessors of the said land. It ia, therefore, manifest from the said sections that a Court of Wards could grant a lease of a ghatwali land for erecting dwelling houses so as to be binding on the future possessors of the said land. The Court of Wards Act deals generally with the management of all the estates that come under the superintendence of the Court of Wards and in respect of lands in such estates, the Court of WardJ can grant a lease of the same for a term exceeding 10 years or beyond the period of expiration of the ward's minority only with the sanction of the Board of Revenue.

It is, therefore, clear that Act V of 1859 is a special statute and Act IV of 1870 is a general statute. The special statute does not make the sanction of the Board of Revenue a pre-<:ondition for the validity of the lease executed by a Court of Wards so as to bind all future possessors of the said land, whereas s. 9 of Act V of 1859 imposes such a condition. The argument is that both the Acts should be read together and, if so read, the sanction of the Board of Revenue would also be a pre-<:ondition in addition to the conditions imposed under the proviso to s. I of Act V of 1859. In our view, such a contention is untenable. The principle of law in this regard is well settled. In Maxwell on the Interpretation of Statutes, the relevant principle is stated, at p. 168, thus:

"A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, 'where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.

Jn such cases it is presumed to have only general cases

I /

in view, and not particular cases which have been already otherwise provided for by the special Act'." If this principle is applicable to the instant case-we do not see any reason why it is not-the special provisions made under Act V of 1859 in regard to the conditions imposed for the validity of such a lease should prevail over those imposed under the general Act, Act IV of 1870. The general Act in regard to leases of ghatwali lands should yield to the special Act. On this construction, the condition for the validity of the lease in question is that it should have been executed by the Court of Wards forthe purpose of erection of dwelling houses. The lease of 1873 expressly states that the lease was granted for erecting dwelling houses.

The only outstanding question that remains in this context is whether it was executed by the Court of Wards.

Exhibit I purports to have been given in favour of Brown Wood, the then Deputy Commissioner of Santhal Pargana, on behalf of the Court of Wards representing the Rohini Ghatwali Estate for the purpose of erecting dwelling houses under ss. 1 and 2 of Act V of

1859. The only flaw pointed out by the learned counsel is that there is nothing in the Act to indicate that a Deputy Commissioner can grant a lease of a ghatwali land on behalf of the Court of Wards.

But the document was ex facie executed by the Deputy Commissione on behalf of the Court of Wards and the validity of it was not questioned till the suit was filed, that is for about 80 years. The lessee and his successors-in-interest have been in possession of the lands all these years. In such circumstances the presumption under s. 114 of the Indian Evidence Act can readily be drawn. Under that section:

"The Court may presume the existence of any fact F which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."

Under illustration (e) the court may presume that judicial and official acts have been regularly performed. If an official act is proved to have been done, it will be presumed to have been regularly done. In this case it has been proved that the lease was executed on behalf of the Court of Wards and that the lessee and his successors have been in unquestioned enjoyment of the said lands for many years. Indeed, the plaintiff in the plaint does not allege that the Deputy Commissioner was not legally authorized to Act on behalf of the Court of Wards; his only objection is that the document was not countersigned by the Commissioner of Bhagalpur Division.

But that condition was only applicable to a lease executed by a Ghatwal and not by the Court of Wards. In the circumstances, wet

M II Sup.C.I./66-11

SUPREME

COURT

REPORTS

!1966) 3 5.C.R..

think it is a fit case where the court can reasonably presume that the Deputy Commissioner, under appropriate rules, was duly authorised to act on behalf of the court of Wards.

Assuming that the conditions laid down in Act IV of 1870 should also be complied with, we think the respondents are not in a better position. Under s. 9 oftl:e Court of Wards Act, the Court of Wards can grant a lease for a term extending to 10 years or for a period beyond the expiration of the ward's minority with the sanction of the Board of Revenue.

Under s. 8 thereof, the Commissioner of Revenue of each division shall be the Court of Wards.

Under s. 9, the Court of Wards is competent to manage estates and lands falling under its charge and one of the acts of management is to grant leases of lands.

Under s. 13, when estates or lands of wards are situated within more than one district but within the same division, the Collector of each district shall exercise the duties of the Court of Wards with respect to the ward's property situate within his district. A combined reading of these provisions indicates that the Collector can grant a lease of a property situate within Im district, for, the grant of a lease of lands in his management is certainly an act of management. That he can do so is also implicit under the provisions of s. 9, for, under that section a lease granted by the Collector acting for the Court of Wards is valid beyond the prohibited period if it was made with the sanction of the Board or Revenue. On a fair reading of the provisions of the Act we have come to the conclusion that the Collector could grant a lease in perpetuity with the sanction of the Board of Revenue.

The only question now is whether such a sanction was given by the Board of Revenue. The Kabuliat indicates ex facie that the lease was granted in perpetuity by the Deputy Commissioner on behalf of the Court of Wards. It is not disputed that the expressions' "Deputy Commissioner" and "Collector" are synonymous.

The same officer is called by both the names and he discharges the same functions. The land covered by the lease has been in possession and enjoyment of the lessee for about 80 years. The validity of the said grant was not questioned all these long years. Even in the plaint its validity was not challenged on the ground that the sanction of the Board of Revenue was not given.

For the reasons mentioned by us in the context of Act V of 1859, in our view, this is a fit case where we can reasonably presume that when the lease was granted all the statutory requirements were complied with, that is to. say the Board of Revenue gave its sanction. For the aforesaid reasons we hold that the lease of 1873 was valid and binding on the plaintiff.

Now coming to C Schedule lands, the position is simple. lt was concurrently held by the courts below that the C Schedule property was not the subject-matter of the lease. The title to the

• . •

, •

r •

A property, therefore, clearly vested in the plaintiff. It is also found by the lower courts that the said property is a waste land in regard to which there can be no effective enjoyment. The High Court, therefore, rightly . drew the presumption that possession followed title .

In this view the question of limitation raised by the appellant does not call for a decision, for in the case of the A schedule property the 2nd respondent loses on the question of title and in regard to the C Schedule property he will be presumed to be in posession.

In either view, the question oflimitation does not arise.

~ I In the result, the appeal is partly allowed and the decree of the High Court is modified.

The parties will pay and receive proportionate costs throughout.

Appeal allowed in part.

MAHARAJA PRATAP SINGH BAHADUR

THAKUR MANMOHAN DEO AND ORS

1966 (K. SUBBA RAo

Bengal Ghatwali Lands Act, 1859

ss. 1

ss. 8, 9, 13

s. 114

Indian Evidence Act, 1872

West Bengal

Santa! Pargana

Court of Wards Act 1870

Bengal Ghatwali Lands Act, 1859

Court of Wards Act, 1870

s. 2

s. 114

Indian Evidence Act

ss. 8, 9 and 13

s. 114

Ugra Singh

D. Goh11rdhu11

Sarjoo Prasad

R. C. Prasad

U. P. Singh

Subba Rao

March 25, 1873

Santai Paragana

Maharaja Sir Jai Mangal Singh Bahadur

Schedule C

October 17, 1949

Bhagalporc

Maharaja Pratap Singh

Monghyr

Schedule C

High Court at Patna

Bengal Ghatwali Lands Act, 1859

Court of Wards Act, 1870

s. 9

Bihar Act XXX of 1950

August 18, 1965

May 22, 1952

May 29, 1952

October 21, 1952

Patna High Court

State of Bihar

February 19, 1957

Basauri Ghatwali Tenure

Maharaja Sir Jaymangal Singh Bahadur

Santhal Pargana

Rohini Ghatwali Estate

Bhagalpore

Sarjoo Prasad

Bengal Ghatwali Lands Act, 1859

Bengal Ghatwali Lands Regulation, 1814

Section 2

Court of Wards Act, 1870

Section 8

Bengal

Section 9

s. 2

s. 9

Maxwell

Brown Wood

ss. 1 and 2

s. 114

Indian Evidence Act

Bhagalpur Division

s. 9

Court of Wards Act

s. 8

s. 9

s. 13

s. 9


K. S. ABDt:L AZEEZ

l'.

RAMANATHAN CHETTIAR & ORS.

February 28, 1966

(P. B.

GAJENDRAGADKAR, C.J., K. N. WANCIIOO,

M. HIDAYATULLAH, J.C. SHAH, A1''D

S. M. S!KRI, JJ.]

The Representation of the People Act (43 of 1951), s. 36(4) and Conduct of Election Rules, 1961, r. ~Filling up nomination paper with one reserved symbol and leaving tire rest blank-If a defect of "substantial

character."

1bc nomination Form prescribed for election to the State Assembly had a blank space, where a candidate could show three symbols in order of preference as his symbol.

One of the candidates for election showed only ooe symbol which was reserved for a political party, and left blank the rest of the space. The Returning Officer rejected the nomination paper holding that the defect was of a substantial character. Alleging that the rejection was improper, two voters filed an election petition challenging the election of the appellant who was successful at the ensuing election. The Tribunal dismissed the petition but, on appeal, the High Court set aside the election on the ground that the rejection was improper.

In appeal to this Court,

HELD: Under s. 36(4) of the Act, the returning officer shall not reject the nomination paper when the defect is not of a substantial character. The mention of the reserved symbol, in the first space and E leaving blank the rest of the space is covered by the phrase, "failure to complete, or defect in completing, the declaratioo as to symbols," in the proviso to r. 4 of the Conduct of Election Rules, and was therefore not defect of a substantial character. [674 E]

I ~

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 435of1965 ...

Appeal from the judgment and order dated March 4, 1963 F of the Madras High Court in Appeal against Order No. 300 of 1962.

R. Ganapathy Iyer, for the appellant.

R. Mahalingier, for respondents Nos. 1 and 2.

The Judgment of the Court was delivered by G

Hidayatullab, J. At the last General Election to the Assembly in the Madras State five candidates filed their nomination papers for the Nilakottai constituency. The appellant K. S. Abdul Az.ccz was one of them and at tqe ensuing election he was successful having polled 4,000 and odd votes in excess of those of his nearest H rival. Four other candidates had filed nomination papers and they included respondents 3 to 5 in this appeal. One of the candidates withdrew and the nomination paper of the 5th respondent

... •

\ .. ~

I ..

AllDUL AZEEZ V. RAMNATHAN (Hidayatullah, /.) 673

(Peyathevar) was rejected at the scrutiny. He had shown in his nomination paper only one symbol in the spaces provided for three symbols and that was the star which is reserved for the Swatantra Party. He was not the accredited candidate of the Swantantra Party and as he had not shown any other symbol, the nomination paper was held to contain a defect of substance.

After the election was over two voters (who are respondents 1 and 2 in this appeal) filed an election petition against the appellant and one of the grounds urged against him was that as the rejection of the nomination paper of Peyathevar was improper, under s. 100 (l)(c) of the Representation of the People Act the election was void.

Other grounds on which the election was challenged need not concern us because nothing turns upon them in this appeal. The Election Tribunal held that the nomination paper was rightly rejected and dismissed the election in petition negativing the other allegations to the election at the same time. On appeal by the two voters the decision of the Tribunal was reversed and it was held that the nomination paper was improperly rejected and the election of the appellant was, therefore, void. On hearing Mr. Ganapathy Iyer and looking into the relevant provision on the subject of symbols we are satisfied that the decision of the High Court was right.

The matter has to be considered in relation to the Conduct of Election Rules, 1961. Sub-rule(!) of Rule 5 enables the Election Commission to specify the symbols that may be chosen by candidates at elections and the restrictions to which their choice shall be subject. By virtue of this power the Election Commission issued a notification No. So 2316 dated 19th September, 1961 which showed in a table the symbols for the Madras Legislative Assembly elections. Some of these symbols were reserved for recognised political parties and the name of the party was mentioned in brackets against the reserved symbol. Symbols which were not reserved were "free symbols" and an independent candidate, such as the appellant, could choose one of them. If two or more independent candidates chose the same free symbols lots were to be drawn. These rules were in the notification and detailed reference to them is hardly necessary because the matter is perfectly plain.

The question is whether by choosing a symbol reserved for a political party and by leaving blank the space where he could have shown two other symbols as his alternative choice, Peyathevar's

nomination paper became so defective that it was rightly rejected.

In this connection we have to see the provision of s. 36( 4) of the Representation of the People Act, 1951. Sub-section(4) provides:

"The returning officer shall not reject any nomination paper on the ground of any defect which is nrt of a substantial character."

874 SUPREME COUllT

REPORTS

[1966) 3 S.C.R.

This sub-section must be read with Rule 4 of the Conduct of Election Rules. It provides as follows:-

"Every nomination paper presented under subsection (I) of section 33 shall be completed in such one of the Forms 2A to 2E as may be appropriate."

The form appropriate to this election had a blank space where a candidate could show three symbols in order of preference as symbols of his choice. Peyathevar showed only the star in the first space and left blank the other two places. The nomination paper, therefore, did not comply with s. 33 read with Rule 4. The nomination paper was, however, saved by the proviso to Rule 4 which reads:

"Provided that a failure to complete, or defect in completing, the declaration as to symbols in a nomination paper in Form 2A or Fonn 2B shall not be deemed to be defect of a substantial character within the meaning of sub-section( 4) of section 36."

The Tribunal held that mentioning a reserved symbol and leaving blank the space for alternative symbols, did not come within this proviso and was a defect of substance. The High Court held otherwise and, in our opinion, rightly.

In so far as the blank space is concerned it showed a failure to complete the declaration as to symbols and where the star was shown as the symbol it amounted to a defect in completing the declaration as to symbol in the nomination paper. In other words, taking the proviso as a whole the mention of the star and leaving blank rest of the space was covered by the composite phrase "failure to complete or defect in completing the declaration as to symbols."

Mr. Ganapathy Iyer contends that a defect in completing the symbol is something like putting down "'two bullocks" but omitting the words "with yoke on" or mentioning the "ears of corn" without mentioning "the sickle" in describing the reserved symbols for the Congress and the Communist Parties respectively.

We do not agree. If an independent candidate named "star," "bicycle" and "flower" as his preferences there would be no defect in the nomination paper except one, namely, that he i!Jcluded the "star-" a reserved symbol--to which he was not entitled. The phrase '.'defect in completing the declaration as to symbols" would obviously cover such a case and there is no difference between that case and this where the star is shown in the first space and the rest of the space

i~ left blank. The intention seems to be that the question of symbols should not play an important part because symbols can be assigned by political parties till the date for withdrawal and nomination paper should not be cancelled during the interval.

D ' • ~

H •

( f

' ·~

' •

-...

ABDUL AZEEZ V. RAMNATHAN (Hidayatullah, J.) 675

A On the whole the decision of the High Court was right in the

circumstances of this case and we see no reason to reverse it. The appeal, therefore, fails and is dismissed but as none appeared to contest it there shall be no order as to costs.

Appeal dismissed.

S. ABDt:L AZEEZ

RAMANATHAN CHETTIAR & ORS

February 28, 1966

GAJENDRAGADKAR, C.J.

M. HIDAYATULLAH, J

C. SHAH

Representation of the People Act

s. 36(4)

Conduct of Election Rules, 1961

s. 36(4)

CIVIL APPELLATE JURISDICTION

R. Ganapathy Iyer

R. Mahalingier

G

Hidayatullab

K. S. Abdul Az.ccz

Peyathevar

Swatantra Party

Swantantra Party

Peyathevar

s. 100

Representation of the People Act

Ganapathy Iyer

Election Commission

19th September, 1961

Madras

s. 36( 4)

Representation of the People Act, 1951

section 33

s. 33

section 36

ABDUL AZEEZ V. RAMNATHAN

D ' • ~

H •

( f

' ·~

' •
...

ABDUL AZEEZ V. RAMNATHAN (Hidayatullah, J.) 675

A On the whole the decision of the High Court was right in the

circumstances of this case and we see no reason to reverse it.

Hidayatullah


PRABHU

RAMDEV & ORS.

February 28, 1966

[P. B. GAJE:-; DRAGADKAR, c. J., K. N. WA~CHOO, M. J-IIDAYATULLAll, B

1. C. SHAH ASD S. M. SIKRI, JJ.]

Transfer of Property Act (4 of 1882), s. 16(e)-Tenants inducted by mortgagee-When ca11 continue in possession after tenninttion of nrortgage.

The appellant's father created a usufructuary mortgage of the land m dispute and the mortgagee admitted the respondents as tenants. During the continuance of the mortgage and while the respondents were in po!· session as tenants, the Rajasthan Tenancy Act, 1955, came into orce. lbe mortgage was eventually redeemed but the respondents con!lnued in possession.

The appellant therefore sued for possession of the land before the revenue authorities and the Board of Revenue in appeal, held that by virtue of the provisions of s. 15 of the Act, the possessioo of the respondents was unassailable, that they could be ejected, in view of s. 161, only in accordance with the provisions of the Act, but that, none of the iirounds available to the appellant had been proved.

The High C.ourt d1Smissed the writ petition of the appellant challenging the Board's decision.

In appeal to this Court, on the questi\'.ln whether the respondents could be ejected on the ground that the mortgage had been redeemed,

HFLD: A; a general rule under s. 76(e) of the Transfer of Property E Act, a mortgagee cannot create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee.

But the rights of the tenants inducted by the mortgagee may be improved by virtue of statutory provisions which may meanwhile come into operation, and that was pr, cisely what had happened in the present case.

During the continuance of the mortgage, s. 15 of Rajasthan Tenancy Act came into operation and 1bat made the respondents Khatedars who are entitled to claim the benefit of s. 161 of that Act.

[680 A-DJ F

Mahabir Gope v. llarbans Narain Singh, [1952) S.C.R. 775, explained.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 323 of 1963.

Appeal by special leave from the judgment and order daled October 20. 1961 of the Rajasthan High Court in D. B. Civil Writ G No.41 ofl959.

B. C. Misra and M. V. Goswami, for the appellant.

S. C. Agarwal, for respondent No. I.

R. N. Sachthcy. for respondents Nos. 4 and 5.

The judgment of the Court was delivered by H Gajendragadkar, C. J. The appellant Prabhu is the owner of agricultural land hcarin!! Khasra Nos. 224, 215, 244, 299, 320, 506,

' •

·-

r •

A 617 and 687 situated in village Nilakpur, Tehsil Behror, District Alwar, in the State of Rajasthan. The appellant's father Jora had executed a usufructuary mortgage of the said land in about 1936 for a period of twenty years in favour of one Ganga Din. After the expiry of the period prescribed by the said mortgage, the appellant obtained a decree for redemption on July 16, 1956. This decree B declared that the mortgage and all encumbrances created by the mortgagee or any person claiming under him were extinguished and directed the mortgagee to deliver possession of the mortgaged property to the appellant.

It appears that during the continuance of the mortgage, the mortgagee Ganga Din had let out the aforesaid land to respondents I to 3 Ramdev, Yadram and Nathu respectively.

Meanwhile, on October 15, 1955 the Rajasthan Tenancy Act, 1955 (No. 3 of 1955) (hereinafter called 'the Act') had come into force.

On July 28, 1956, the appellant instituted the present suit for possession of the land in question against the three respondents. This suit was tried by the Sub-Divisional Officer, Behror. In this suit the appellant had alleged that after the redemption decree had been passed in favour of the appellant, the respondents had in fact delivered possession of the property to the appellant, but a few days thereafter they had trespassed into the property and obtained its possession wrongfully. This plea was resisted by the respondents on the ground that they had not surrendered possession of the property to the appellant as alleged by him and that under the relevant provisions of the Act they were entitled to remain in possession of this property. On these pleadings the learned Sub-Divisional Officer framed two issues. They were: No. I. Whether the respondents are trespassers in respect. of foe fields and are liable for ejectment; and No. 2. to what relief, if any, the appellant is entitled to ?

He found that the respondent> were not trespassers as alleged by the appellant and as such the appellant was not entitled to any relief.

Jn the result, the appellant's suit was dismissed.

Against this decision the appellant preferred an appeal before the Additional Commissioner, Ajmer. The appellate authority reversed the finding of the trial court and held that the appellant was entitled to eject the respondents. The respondents challenged the correctness of this order by preferring a second appeal before the Board of Revenue for Rajasthan, Ajmer. Their appeal succeeded and in consequence, the order passed by the appellate authority was set aside and that passed by the trial judge was restored. The Board has held that by virtue of the provisions of s. 15 of the Act, the possession of the respondents 1as unassailable and they could

SUPREME

COURT

REPORTS

[1966] 3 S.C.R.

be ejected only in accordance with the relevant section of the said Act. Since none of the grounds av;1ilable to the appellant under the Act had been proved, he was not entitled to a claim for cjectment.

The validity of the Board's decision was challenged hy the appellant by moving the Rajasthan High Court in its writ jurisdiction under A rt. 226 of the Constitution.

It was urged hy the appellant before the High Court that the order passed hy the Board was plainly erroneous in Jaw and as such should be set aside. This petition, however, failed and was dismissed by the High Court. It is against this decision that the appellant has come to this Court by special leave. ·

The relevant facts, in the light of which the question of law raised before us by Mr. Misra on behalf of the appellant has to be considered, arc no longer in dispute. The appellant's father created a usufructuary mortgage of the land and during the continuance of the said mortgage the respondents were admitted as tenants.

The mortgage was eventually redeemed and in spite of the redemption decree the respondents continued in possession of the land.

On these facts the question which arises for our decision is: whether the respondents, who have been inducted into the land as tenants by the usufructuary mortgagee, can be ejected by the appellant on the ground that the mortgage in question has been redeemed. The answer to this question depends upon the effect of s. 15 of the Act.

Before dealing with the specific provisions of the said section we may refer to two definitions which are relevant. "Tenant" has been defined bys. 5(4:1) of the Act as meaning a person hy whom rent is or but for a contract, express or implied, would he payable and except when the contrary intention appears, shall include a cotenant or a grove-holder or a village scrrnnt or a tenant of khudkasht or a mortgagee of tenancy rights but shall not include a grantee at a favourable rate of rent or an ijaredar or a thekadar or a trespasser. That is how the definition stood at the relevant time. The test prescribed by this definition is that the person can claim to be a tenant if it is shown that rent is payable hy him in respect of the land.

That test is clearly satisfied by the three respondents in the present case.

The nc.\t definition to which it is neccssarv to refer is that of a trespasser. The appellant, in his present suit: has contended that the respondents are trespassers. A •'trespasser" has heen defined hy s. 5(44) of the Act as meaning a person who takes or retains possession of unoccupied land without authority or who prevents another person from occupying land duly let out to him. That is how the definition read at the material time. It is plain that the respondents do not fall within the definition of "trespasser" as prescribed by this clause.

\'. .

\ •

' '1 •'

Let us now refer to s. 15 as it stood at the relevant time. Section 15 provides, inter alia, that subject to the provisions of s.16 every person who, at the commencement of this Act, is a tenant of land, shall, subject to the provisions of this Act and subject further to any contract not contrary to s. 4 be entitled to all the right conferred and be subject to all the liabilities imposed on Khatedar tenants under the Act. In other words, as soon ass. 15 came into operation on October 15, 1955, the .Possession of the respondents, who had been inducted into the Jana by the mortgagee was substantially altered and they became Khatedars by virtue of the statutory provisions prescribed by s.15. Section 161 of the Act provides that no tenant shall be ejected from his holding otherwise than in accordance with the provisions of this Act. The position thus is clear that as soon as the Act came into force the respondents were entitled to the benefits of s.15 and cannot be ejected except under the provisions ox the Act in view of s. 161.

It is because of these provisions that the appellant was driven to make the plea that the respondents were trespassers inasmuch as they had voluntarily surrendered possession of the land to him after the redemption decree 'was passed and had wrongfully entered into possessjon thereafter. That pica has not been proved and the matter falls to be considered squarely within the provisions of ss.15 and 161 of the Act.

It is true thats. 183of the Act provides for the ejectment of a trespasser but that section has no application to this case inasmuch as the respondents cannot be held to be trespassers at all.

Mr. Misra, however, contends that there are two decisions of this.

Court which support his case that tenants introduced by the mortgagee during the continuanOe of the mortgage can have no claim to remain in possession of the land after the mortgage itself has been redeemed and he argues that the said principle would justify the appellant's claim for ejecting the respondents in the present case.

In_ Mahabir Gape and Others v. Harbans Narain Singh and Others(!), this Court has held that as a general rule a person cannot, by transfer or otherwise, confer a better title on another than he himself had.

A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee. In consequence any lease granted by a morgagee in possession must come to an end at redemption.

A mortgagee, cannot, during the subsistence of the mortgage, act in a manner detrimental to the mortgagor's interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the fields thereby defeating the mortgagor's right to khas possession; such an act would fall within the provisions of s. 76, subclause (e) of the Transfer of Property Act. It is on these observations that Mr. Misra founds his argument.

(1) (1952] s.c.R. 775: A.LR. 1952 s.c. 205.

I '

• j

A In the result, the view taken by the Board about the status of the respondents is right and the High Court was, therefore, justified in dismissing the appellant's writ petition filed before it. The appeal therefore fails and is dismissed with costs. Costs in favour of B respondent No. 1.

Appeal dismissed.

PRABHU

RAMDEV & ORS

February 28, 1966

1. C. SHAH ASD S. M. SIKRI, JJ.

Transfer of Property Act

s. 16(e)

Rajasthan Tenancy Act, 1955

s. 15

s. 161

s. 76(e)

s. 15

Rajasthan Tenancy Act

s. 161

B. C. Misra

M. V. Goswami

S. C. Agarwal

R. N. Sachthcy

H Gajendragadkar

Prabhu

Jora

Ganga Din

Ramdev

Yadram

Nathu

October 15, 1955

Rajasthan Tenancy Act, 1955

July 28, 1956

Behror

Additional Commissioner, Ajmer

Board of Revenue for Rajasthan, Ajmer

s. 15

Misra

s. 15

s. 5(44)

s. 15

Section 15

s. 4

Section 161

s. 161

ss.15 and 161

s. 76

Transfer of Property Act