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H ..

HAZARI & ORS.

NEKI & ORS.

January 25, 1968

[J. C. SHAH, V. RAMASWAMI AND V. BHARGAVA, JJ.)

Punjab Pre-emption Act (Punj. 1 of 1913), ss. 14 tl1ld 15(1)(a)- Statutory right of Pre-emption-Whether heritable.

Puni<'b Pre-emption Act as amended by Punjab Act 10 of 1960, s. 31-Whether bar to decree-Code of Civil Procedure (Act 5 of 1905),

0. 22, rr. 1 and 11-Legal representatives of statutory preemptor-If right to sue survives.

By s. 4 of the Amending Act (Punj. Act 10 of 1960) s. 15 of the Punjffb Pre-emption Act, 1913 was repealed and in its place was substituted a new provision which omitted to confer a right of pre-emption in the case of persons 'owning land in the estate' as the originals. IS(c) 'thirdly' had done.

Retrospective effect was given to the provisions by the insertion of new s. 31 in the parent Act. Jn respect of sales effected after the promulgation of the Amending Act, one N filed suits and obtained decrees for pre-emption in all suits against the appellants under s. 15(1){a) of the Punjab Pre-emption Act.

These decrees were confirmed by the first appellate court. While the second appeals were pending in the High Court, N died, and his legal representatives were brouilbt on record. The High Court dismissed the appeals. In appeals to t.his Court, it was contended that (i) tho statutory right df pre-emption under the Punjab Preemption Act, was not a 'heritable right' and no decree for pre-emption should have been passed by the lower court in favour of the legal representatives; and (ii) s. 31 of the Act as amended retrospectively by Punjab Act 10 of 1960, stood as a bar to the granting of a decree in favour of substituted legal representatives.

HELD : The appeals must be dismissed.

(i) The statutory right of pre-emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the persons entitled to•pre-empt. The right of pre-emption under s. 15(1) (a) of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre-emptor depends upon the nature of his relationship with the vendor.

But under s. !4 of the Act, the pre-emptor must be a member o.f an agricultural tribe in the same group of agricultural tribes, as the vendor and the land of which preemption is sought must be in respect of agricultural land sold to member of the agricultural tribe.

If an involuntary transfer takes plaoe by inheritance the successor to the land takes the whole bundle JJf the rights which go with the land including the right of pre-emption.

This view is supported by the language of s. 306 of the Indian Succession Act and therefore, the clalm of N for pre-emption did not ab!ll!e upon his death and his legal representatives were properly brought on -record of the second appeals under the provisions of 0. 22, r. 1 read with 0. 22, r. JO di the Code of Civil Procedure. [836 G; 837 B-D]

Faqir Ali Shah v. Ram Kishan d: Ors. 133 P.R. 1907 and Wa; id All d: Ors. v. Shaban d: Ors. I.LR. 31 All 623. approved .

Muhammud Husain v. Niamat-un•nissa d: Ors. l.L.R. 20 All. 88, referred to.

834 SUPREME COURT Rl!PORTS

[1968] 2 S.C.R.

(ii) The Amending Act came inlo foree long before N in•tituted the A present suib. Even the sales of land were -cffcc1ed after the promulgation

of the Amcndlag A.ct.

In RanJ Sarup's case, the right of the plaintiff to pre.empt 1,1, as extinguished retrospec1ivcly; in the present case N's right to sue has not been extinguished.

N had lhc righl of pre-emption under the Amended Act at the time he ins1i1u1ed the suit and N's right was not extinguished on his dealh but paS>ed to his legal representatives. 1839 G]

CIVIL APPELLATE JURiso1cnoN: Civil Appeals Nos. 1148, 1656 and 2341 of 1966.

Appeals by special leave from the judgment and decree dated July' 27, 1965 of the Punjab High Court in Letters Patent Ap peals Nos. 13 to 15 of 1965.

Prem Chand Jain and Janardan Sharma, for the appellants (in all the appeals).

D. D. Sharma, for respondents Nos. 1 (iv to xiii) in all the appeals).

The Judgment of the Court was delivered by Ramaswami, J. These appeals arc brooght by special leave on behalf of the defendants against the judgment of the Punjab High Court dated 27th July, 1965 in Letters Patent Appeals Nos. 13 and 14 of 1965.

Dbara Sinh. respondent No. 2, executed three sale deeds with regard to lands at village Bhadani, Tchsil Jhaijar, Rohtak in favour of the appeilants in all the three appeals.

The first sale was of land measu; ing 27 kanals and 4 marlas dated Septber 20, 1960, the second was of land measuring 36 kanals and 19 mar!as dated November 23, 1960 and the third was of land measuring 33 kanals and 18 marlas dated March 6, 1961. Neki deceased, who was the father's brother of Dhara Singh, vendor, instituted three suits in the court of Subordinate Judge at Jhajjar for possession of the aforesaid lands covered by the three sales on the ground that he had a superior right of preeruption on the basis of his relationship with the vendor as against the appellants under section 15(1 )(a) of the Punjab Pre-emption Act, 1913 (Punjab Act 1 of 1913). These suits were contested by the appellants.

After hearing the contentions of the rival parties, the Subordinate Judge granted decrees in ail the three suits in favour of the plaintiffs. In suit No. 311 of 1961 the decree stipulated that the plaintiff should deposit the amount of Rs.

3.500/- in court on or before 15-1-1963.

In suit Nos. 368 and 369 of 196 I 1he condition was that the plaintiffs should make the deposit of Rs. 5,000/- and Rs. 7,000/- respectively in court on or before 15-1-1963. The appellants took the malter in appeal before the Senior Subordinate Judge who by his .iudgment dated 30th January, 1963 dismissed the appeals against the decrees in

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suits Nos. 313 and 369 of 1961 and modified tbe decree in suit No. 368 of 1961 to the extent that the plaintiff was called upon to deposit a further sum of Rs. 2,000/- on or before 1-3-1963.

The appellants preferred regular Second Appeals Nos. 280, 281 and 282 of 1963 in the High Court against the decres and judgment of the Senior Subordinate Judge, Rohtak. The plaintiffs also preferred in the High Court appeal No. 830 of 1963 against the increase mde in the price of the land by the Senior Subordinate Jud.;:· '.'.0;, c;:k in the appeal arising out of decree in suit No. 368 of 1961. While tbe appeals were pending in the High Court, Neid plaintiff died on April 7, 1963. After his death, the appellants vendors in the three regular appeals moved applications under 0.22, r. 1 of the Civil Procedure Code to bring on record of the appeals the legal representatives of Neki, deceased plaintiff, namely, Dhara Singh, Ramkishan and Balbir Singh.

All the four appeals were heard and dismissed by Mr. Justice Khanna by his judgment dated 17th September,

1964. The appellants preferred appeals under the Letters Patent which were dismissed by a Division Bench of the Punjab High Court by a common judgment dated 27th July, 1965i

The claim of Neki for pre-emption .was based on &s. 14 and lS(l)(a) of the Punjab Pre-emption Act 1913 (Punjab Act 1 of 1913). Section 14 states :-

"No person other than a person who was at the date of sale a member of an agricultural tribe in the the same group of agricultural tribes as the vendor shall have a right of pre-emption in respect of agricultural land sold by a member of an agricultural tribe".

Section lS(l)(a) reads as follows:-

"The right of pre-emption in respect of agricultural land and village immovable property shall vest- ( a) where the sale is by a sole owner: FIRST, in the son or daughter or son's son or daughter's son of the vendor;

SECONDLY, in the brother or brother's son of the vendor; THIRDLY, in the father's brother or father's brother's sen of the vendor; FOURTHLY, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof.'' The Punjab Pre-emption Act, 1913 was amended by Punjab Act

10 of 1960 and s. 6 of the amending Act inserted a new s. 31 in the Principal which states as follows : -

"No court hall pass a decree in a suit for pre-emption whether instituted before or after the commencement of the Punjab Pre-emption (Amendment) Act,

1960, which is inconsistent with the provisions of the said Act".

It is necessary also to refer at this stage to the provisions of 0.22. r. I and 0.22, r. 11 which are to the following effect :-

"0.22, r. I : The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue sur- ·ives". "0.22, r. 11 : In the application of this Order to appeals, so far as may be, the word 'plaintiff' shall be held to include an appellant the word 'defendant' a respondent, and the word 'suit an appeal".

In support of these appeals, learned counsel put forward the argument that the right of pre-emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for pre-emption.

The argument was that the statutory right of pre-emption under the Punjab Act was not a heritable right and no decree for pre-emption should have been passed by the lower court in favour of :he legal representatives as representing the estate of Neki.

We are unable to accept the argument put forward hy the appellants. It iS' not correct to say that the right of pre-emption is a personal right on the part of the pre-emptor to get the re-transfer of the property from the vendee who has already become the owner of the same. It is true that the right of pre-emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. The correct legal position is that the statutory law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that rt restricts the owner's right of sale and compels him to sell the property to the person entitled to pre-emption under the statute.

Jn other words, the statutory right of pre-emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre-empt.

Jn the present case, Neki obtained decrees for pre-emption in all the three suits against the appellants and these decrees were confirmed by the first appellate Court. While the second appeals were pending in the High Court.

Neki died and the question is whether under the provisions of 0.22. r. 1 and 0.22. r. 11 of the Code of Civil Procedure. the right to sue survived after the death of Neki. Jn this context, it is necessary to consider the provisions of s. 306 of the Indian

A ·•

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HAZARJ v. NEKI (Ramaswami, J.) 837

Succession Act XXIX of 1925. This section expresses a qualification of the maxim actio persona/is mortiur cum persona to the extent that the section indicates that, amongst causes of action which survive, are included some actions of a personal nature. that is to say personal actions other than those expressly excluded by the section itself. It is true that the right of pre-emption under s. 15 (1 )(a) of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre-emptor depends upon the nature of his relationship with tl)e vendor. But under s. 14 of the Act, the pre-emptor must be a member of an agricultural tribe in the same group of agricultural tribes as the vendor and the land of which pre-emption is sought must be in respect of agricultural land sold to a member of the agricultural tribe.

We are of opinion that if an involuntary transfer takes place by inheritance the successor to the land takes the whole bundle of the rights which go with the land including the right of pre-emption.

The view which we have taken is supp9rted by the language of s. 306 of the Indian Succession Act and it follows therefore that the claim of Neki for pre-emption did not abate upon hi, s death and that the legal representatives of Neki were properly brought on record of the second appeals under the provisions of 0.22, r. 1 read with 0.22, r. 1 O of the Code of Civil Procedure.

The view that we have expressed is borne out by a decision of the Punjab High Court in Faqir Ali Shah v. Ram Kishan & Ors.('). The question that arose for determination in that case was whether the right to sue for pre-emption under s.12 of the Punjab Laws Act upon a cause of action which accrued to a person in his life-time passed at his death to his successor who inherited the 1 property through which the right had accrued.

The view of the Full Bench as regards the transfer by inheritance was that the general principle applied and that the right of pre-emption passed with the land and the learned Judges distinguished the transfer by inheritance from the transfer of property by some voluntary act of the parties.

At p. 641 of the Report, Clark, C.J. observed :

"While, therefore, there is good reason why voluntary transfers should not pass a right of pre-emption as regards properties previously sold, those reasons do not apply to transfers by inheritance.

As regards transfers by inheritance, the general principle should apply that the right of pre-emption passes with the land.

Mr. Grey laid great stress on sections 13 and 16 of the Punjab Laws Act urging that the father was the person on whom the notice had to be served, and that it was he who had the right to sue and that the right was thus a personal one that could not

(I) 133 P. R. 1907.

be inherited by the son. The right was no doubt a personal one in the father based on his land, but I can see no reason why such right cannot be inherited by the son. If the father had waived or otherwise disposed of his right this would no doulit be binding on the son, as the father was representing the whole estate.

Where, however, the father has done nothing of the kind, but has simply taken no steps in the matters, there seems to me no reason why the son should not step into th' shoes of his father and take the same action as the father could have done. The son inherits the other causes of action belonging to his father and why not this one ? Nor do I sec why the son cannot come in under Section 16, simply alleging that no notice as required by section 13 was served on his father".

A similar view was expressed by the Full Bench of the Allahabad High Court in Wajid Ali & Ors. v. Shaban & Ors.('). It was held that where a right of pre-emption exists by custom as recor<led in the village wajib-ul-arl, the right fiaving once accrued did not of necessity lapse by the death of the pre-emptor before making a claim, but descended alon3 \\ ith the property in virtue of which it subsisted to the heir of the pre-emptor.

It is necessary to emphasize that we arc dealing in this case with the statutory right of pre-emption under Punjab Act I of 1913 and its subsequent amendment and not with the right of preemption under the Mohammedan Law.

In reard to the latter right it has been held that accordin~ to the Mohammadan law applicable to the Sunni sect if a plaintiff in a suit for pre-emption has not obtained his decree for pre-emption in his life-time the right to sue does not survive to his heirs.-(See Muhammad Husain v. Niamet-un-nissa and Ors.)('). It is not necessary for us to express any opinion on this point in the present case.

On behalf of the respondent it was also pointed out that after the passing of the decree by the trial court, Ncki complied with the terms of the decree and made payments within the time given.

It was said that under the terms of s. 14 and s. 15 (I )(a) the title to the land in the pre-emption suits must be deemed to have accrued to Neki from the dale of such payment.

It was argued that before his. death, Ncki became the owner of the lands which were the subject matter of pre-emption and the legal representatives of Neki were substituted in his place as representing the estate of Ncki.

In support of this proposition counsel relied upon the language of 0.20 r. 14( I) which states :

"Where the court decrees a claim to pre-emption in respect of a particular sale of property and the pur-

(t)

L. R. 31 AIL 6~3.

(2) I. L. R. WAIL ~8.

A chase-money has not been paid into Court, the decree shall-

( a) specify a day on or before which the purchasemoney shall be so paid, and

( b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a) the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs."

In this connection counsel referred to the decision of the Punjab High Court in Ganga Ram & Ors. v. Shiv Lal ( 1 ) where it was held that the title to the pre-empted property passes to the pre-emptor under a pre-emption decree on deposit of the purchase-money in terms of the decree and was deemed to pass to him from the date of the deposit. So far suit No. 368 is concerned, there is a dispute as to whether or not Neki deposited the amount under the decree within the time prescnbed but as regards suits Nos. 311 and 369 of 1961, it is admitted that the dectased Neki made the payment of the amount un"ler the two decrees within the time prescribed.

So far as these two decrees are concerned, the deposit of the purchase money is an additional reason for holdinJ! that the legal representatives of Neki were properly substituteG in his place in the proceedings of the second appeals.

It was finally urged on behalf of the appellants that, in any event, s. 31 of the Punjab Act 1 of 1913 as amended by Punjab Act 10 of 1960 stood as a bar to the granting of a decree in favour of the substituted respondents. The argument was stressed that s. 31 of the Punjab Act 1 of 1913 was in plain words retrospective in character and Dhara Singr and his two sons as legal representatives of Neki could not be granted a decree for pre-emption. In our opinion, this argument is wholly irrelevant. The reason is that the Amending Act came into force on February 4, 1960 anu Neki instituted the present suits for pre-emption long after th .• s date.

Even the three sales or land were effected after the promulgation of the Amending Act. Reliance was placed on behalf of !he appellants on the decision of this Court in Ram Sarup v. Munshi & Ors. (1 )· but the material facts of that case are quite different. It appears that the claim of pre-emption in that case was based upon s. 15(c) 'thirdly' of the Punjab Pre-emption Act 1913 which states:

(1) 66 P. L. R. (1964), 251.

(2) [1963

S.C. R. 858.

840 SUPREJll! c:ouKT REPORTS [1968) 2 s.c.R.

"Subject to the provisions of s. 14 the right of preemption in respect of llficultural land and village immoveable property shall val-

(a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers joint! y, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold;

(b) where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly,-firstly, in the lineal descendants of the vendor in order of succession; secondly, in the co-sharers, if any, who are agnates, in order of succession;

( c) If no person having a right of pre-emption under

clause (a) of clause (b) seeks to exercise it:- D

thirdly, in the owners of he estate; ........ "

By s. 4 of the amending Act (Act I 0 of I 960) s. I 5 of the parent Act was repealed and in its place was subs:itutcd a new provision which omitted to confer a right of pre-emption in the case of pusons 'C'wning land in the estate' as the original s. 15 ( ~) 'thirdly' had done.

Retrospective effect was given to the provision by the inserticn of a new s. 3 I in the parent Act.

The question for consideration was that whether by reason of this amendment in the Jaw the respondent was entitled to the benefit of the decree which he obtained under the previously existing enactment. It was the case of the plaintiff that he owned land in the 'estate' whereas the vendee did not own land there. The defendant while not disputing that the plaintiff owned land in the village or the correctness of the allegation that the land was in an 'estate', sought to prove that he too owned land in the same village and 'estate' but in this he failed.

As the case of the plaintiff was directly covered by the terms of the statute his suit was decreed by the trial court en Novber 8, 1951, and an appeal and second appeal therefrom were also dismissed.

The question was whether the respondent was entitled to a decree in view of s. 31 of the Punjab Pre-emption Act I 913 as amended by Punjab Act I 0 of 1960 which came into force on February 4, 1960. It wa, l; cld '"' :his Coun that in view of the plain language of s. 31, the substantive law enacted by the legislature in the amended s. 15 of the Pre-emption

HAZARI v. NEKl (Ramaswami, J.) 841

Act should be applied and the d:cree for pre-emption in favour of the first respondent should bi; set aside. ft is manifest that the material facts of the present c, ase are different and the ratio of the decision of this Court in Ram Sarup ~·. Munshi & Ors. ( 1) has no application to the present case.

In RGm Sari:p's case(') the right of the plaintiff to pre-empt was extinguished retiospectively; in the present case !lleki'3 right tci sue has not been extinguishec.

Nki had the right of pre-emption under the Amended Act at the tin1e he instituted the suit and Neki's right was not

ext'.nguished on his death but passed to his legal represer.tatives.

For the reasons expressed above, we hold that these appeals have no merit and must be dismissed with costs. There will be one set of hearing fee.

Y.P.

Appeals dismissed.

HAZARI & ORS

NEKI & ORS

C. SHAH

V. RAMASWAMI

V. BHARGAVA, JJ.

Punjab Pre-emption Act

ss. 14

s. 31

Code of Civil Procedure

s. 4

s. 15

Punjffb Pre-emption Act, 1913

s. 31

s. 15(1)

s. 31

s. 15(1)

s. 306

Indian Succession Act

the Code of Civil Procedure

RanJ Sarup

CIVIL APPELLATE JURiso1cnoN

Prem Chand Jain

Janardan Sharma

D. D. Sharma

Ramaswami

Punjab High Court

Dbara Sinh

Bhadani

Rohtak

Neki

Dhara Singh

section 15(1 )(a)

Punjab Pre-emption Act, 1913

30th January, 1963

The appellants took the malter in appeal before the Senior Subordinate Judge who by his .iudgment dated 30th January, 1963 dismissed the appeals against the decrees in
A

suits Nos.

Senior Subordinate Judge, Rohtak

Neid

Ramkishan

Balbir Singh

Khanna

Neki

s. 14

Punjab Pre-emption Act 1913

Section 14

Punjab Pre-emption Act, 1913

s. 6

s. 31

the Code of Civil Procedure

s. 306

Succession Act XXIX of 1925

s. 15

s. 14

s. 306

Indian Succession Act

the Code of Civil Procedure

Clark

Grey

sections 13 and 16

Section 16

section 13

Allahabad High Court

Punjab Act I of 1913

Ncki

s. 14

s. 15

s. 31

s. 31

Dhara Singr

February 4, 1960

anu Neki

s. 15(c)

Punjab Pre-emption Act 1913

s. 14

s. 4

s. 15

s. 3

Novber 8, 1951

s. 31

s. 31

s. 15

Ram Sarup

Munshi

RGm Sari


STATE OJ< UTT AR PRADESH

MAHARAJ NARAIN AND OTHERS

January 30, .1968

[M. HIDAYATULLAH Al'D K. S. HEGDE, JJ.j

Limitation ACI, 1908, .1. 12(2)-"time rtquirite" for obtaining copy of order appealed fro1n-n1eaning of.

The appellanl Slate filed an appeal in the High Court on March 29, 1963 against the order made by the trial court on November 10, 1962 acquitting the rcpondents. According to the information contained in the copy of the order produced along w1lh the Memorandum of Appeal.

1he appeal was filed wilhin time.

It showed Iha! the copy was applied for on Novombcr 15. 1962 and it was ready on January 3. 1963. It was contended on behalf of the respondents 1ha1 the appeal was out of time in view of the fact that 1he appellant had applied for and obtained two

other copies of the orJcr appealed from and i'f time was calculated on the basis o[ thoc; c copies the appeal

v. a" beyond time.

In addition 10 the copy referred 10 earlier. the app<:llant had applied for another copy of the order appealed fron1 on December 3, 196:!. and that copy was ready for delivery on December 20, 1962.

The appellant also applied for yel another copy of rhc same order on Dcrcmbcr 21, 1962 and that copy was made ready on the same day.

II was not disputed lba1 if the period of limitation was con1puted on the basis of the t\l.'O later copies, the appeal

was barred hy limitation.

The High Court accepted the respondent's contention and dismissed the appeal.

On appeal to this Courl.

HELD : That lbc decision of 1he High Court under apoeal did not Jay down the law correctly.

The expression 'time requisite' in s. 12(2) of the Limitation Act can nol be understood as the time absolutely necessary for obtaining the copy

of the order.

Whal is deduc1ible under s. 12(2) is not the minimum F time within which a copy of lbc order appealed against could have been obtained.

It must be remembered that s. 12(2) e!llarges tho period of limitation proscribed under entry 157 of Schedule I. That stion permits the appellant 10 deducl from the time ta.ken for filing lbe appeal. the time required for obtaining lhe copy of the order appealed from and not any lesser period "'hich might hav~ been occupied if th~ application for copy had been filed al some 01hcr date.

That section lays no obligation on the appellant 10 be prompt in his application for a copy of the order.

G A plain reading of s. 12(2) shows 1ha1 in computing the peiiod of Iimi1a-

1ion prescribed for an appeal. the day on which the judgment or order complained of \Vas pronounced and the time taken by the court to make available the copy applied for. have lo be excluded. There is no justification for restricting the scope of 1ha1 provision. [844 E-HJ

Matltek and others v. Siter Moltai11111ad, A.l.R. 1935, Lah. 682; disapproved.

Pra111atlta Nat/1 Rov v. Lee, 49 I.A. 307 and /, N. Surry v.

T. S.

Clietlyar, 55 I.A. 161; distinguished.

...

A Panjam Y. Trimala Reddy, I.LR. 57 Mad. 560; Kunju Kesavan v.

M. M. Philip, A.LR. 1953 T.C. 552; B. Govind Raj Sewak Singh and Anr.

v. Behuti Narain Singh. A.LR. 1950, All. 486 and K. U. Singh v. M. R.

Kachhi, A.LR. 1960 M.P. 140; referred to.

CB'IMINAL APPELLATE JURISDICTION: C: !minal Appeal No. 122 of 1965.

B Appeal from the judgment and order dated December l,

1964 of the Allahabad High Court in Government Appeal No. 785 of 1963.

0. P. Rana, for the appellant.

!. P. Goyal and Sobhag Mal Jain, for the respondents.

The Judgment of the Court was delivered by

Hegde, J. In this appeal by certificate, the only question that arises for decision is as to the true scope of the expression "time requisite for obtaining a copy of the decree, sentence or order appealed from" found in sub-s. 2 cf s. 12 of the Indian Limitation Act 1908 which will be hereinafter referred to as the Act. The said question arose for decision under the following circumstances: The respondents were tried for various offences before the learned assistant sessions judge, Farrukhabad. The said learned judge acquitted them.

Against the order of acquittal the State went up in appeal to the High Court of Allahabad. The said appeal was dismissed as being barred by limitation. The correctness of that decision is in issue in this appeal.

Item 157 of the first schedule to the Act prescribes that the period of limitation for an appeal under the Code of Criminal Procedure 1898, from an order of acuittal is three months from the date of the order appealed from.

But sub-s. 2 of s. 12 provides that iu computing the period of limitation prescribed for ari appeal th" day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the order appealed from shall be excluded.

The memorandum of appeal was filed into court on March 29,

1963. The order appealed from had been delivered on November 10, 1962. According to the information contained in the copy of the order produced along with the said memorandum the appeal was within time. It showt:d that that copy was applied for on November 15, 1962 and the same was ready on January 3, 1963.

It was contended on behalf of the respondents that the appeal was out of time in view of the fact that the appellant had applied for and obtained two other copies of the order appealed from and if time is calculated on the basis of those copies the appeal was beyond time. In addition to the copy referred to earlier, the

SUPREME COURT REPORTS

(1968] 2 SC.R.

appellant had applied for another copy of the order appt'aled A from on Drcember 3, 1962 and that copy was ready for delivery on Dc-:c::.· <:r 20, 1962. The appellant also applied for yet another copy of the same order on December 21, 1962 and that copy was made ready on the same day. There is no dispute that if the period of limitation is computed on the basis of those copies 1:1c appeal was barred by limitation. But the point for considera- B lion is whether the obtaining of those copies has any relevance in the matter of computing the period of limitation for the <:ppeal.

The High Court of Allahab1d accepted the contentio..i of the respondents that in determining the time requisite for obtai,1ing a copy of the order appealed fro1.1, it had to take into consideration the copies made available to the appellant on the 20th c and 2 lst December, 1962. 1t opined that the expression 'requisite' found in s. 12(2) means "properly required", and hence the limitation has 10 be computed on the basis of the copy made available to the appellant in Decembtr, 1962.

It was not disputed on behalf o( the respondents that it was not necessary for the appellant to apply for a copy of the order appealed from immediately after the order was pronounced. The a1 :>ellant could have, if !I chose to take the risk, waited till the ninety days period allowed to it by the 'tatutc was almost exhausted.

Even then the time required for obaining a copy of the order would have been deducted in calculating the period of liinitation for filing the appeal.

Hence Ire expression 'timt requisite' cannot be understood as the time absolutely neccsary for obtaining the copy of the order. What is , teductible under s. 12(2) is not the minimum time within which a copy of the order appealed against could have been obtained.

It must be remembered that sub-s. 2 of s. 12 enlarges the period of limitation prescribed under entry 157 of Schedule I. That section permits the appellant to deduct from the time taken for filing the appeal, the time required for obtaining the copy of the order appealed from and not any lesser period which might have been occupied if the application for copy had been filed at some other date.

That section lays no obligation on the appellant to be prompt in his application for a copy of the order.

A plain reading of s. 12 (2) shows that in computing the period of limitation prescribed for an appeal. the day on which the judgment or order complained of was pronounced and the time taken by the court to make available the copy applied for, have to be excluded. There is no justification for restricting the scope of that provision.

If the appellate courts are required to find out in every appeal filed before them the minimum ti.ne requ; red for obtaining a copy of the order appealer! from, it would be unworkable. In that event every time an appeal is filed, the court not only will hav~ to see

H ...

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V.P. STATE v. MAHARA. NARAIN (Hegde, J.) 845

whether thP, appeal is in time on the basis of the information availble from the copy of the order filed along with the memorandum of appeal but it must go further and jiold an enquiry whether any other copy had been made available to the appellant and if so what was the time taken by the court to make available that copy.

This wo•.1ld lead to a great deal of confusion and enquiries into the alleged !aches or diktoriness in respect not of copies produced with the memoranC:11m of appeal but about other copies which he might have got and u5ed for other purposes with which the court has nothing to do.

The High Court in arriving at the decision that the appeal is barred by time relied on the decision of the Lahore High Court in Mathe/a and Others v. Sher Mohammad('). It also sought support from the decisions of the Judicial Committee in Pramatha Nath Roy v. Lee(') and J. N. Surty v. T. S. Chettyar('). The Lahore decision undoubtedly supports the view taken by the High Court. It lays down that the words "time requisite" mean simply time required by the appellant to obtain a copy of the decree assuming that he acted with the reasonable promptitude and dili gence. It further lays dpwn that the time requisite for obtaining it copy is the shortest time during which the copy would have been obtained by the appe!lant, and it has nothing to do with the amount of time spent by him in obtaining the copy which he chooses to file with the memorandum of appeal.

With respect to the learned judges who decided that case we are unable to spell out from the language of s. 12(2) the requirement that the appellant should act with reasonable promptitude and diligence and the further condition that the time requisite for obtaining a copy should be the shortest time during which a copy could have been obtained by the appe!lant. We are of the opinion that the said decision does not lay down the law correctly.

Now we shall proceed to consider the decisions of the Judicial Committee relied on by the High Court. IP ?ramatha Nath Roy

v. Lee(') the appellant was found to be guilty of !aches.

The Judicial Commitee held that he was not entitled to deduct the time lost due to his !aches. It is in that context the Board observed that the time which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order could not be regarded as 'requisite' within sub-s. 2 of s. 12. That decision does not bear on the question under consideration.

In J. N. Surty v. T. S. Chettyar('), the question that fell for decision by the Judicial Committee was whether in reckoning the time for presenting an appeal, the time required for obtaining

(!)A.LR. !935 Lah. 682.

(3) 55 I.A. 161.

(2) 49 I.A. 3 7.

LJSup.Cl/68-10

8~6

SUPREMI! COURT REPORTS

[1968] 2 S.C.R.

a copy of the decree or judgment must be excluded even though by the rules of the court it was not necessary to produce with the memorar.dum of appeal the copy of the decree or judgment.

Their Lordships answered that question in the affirmative. While deciding that question, their Lordships considered some of the observations made by the High Court relating to the dilatoriness of some Indian practitioners.

In that context they observed :

"There is force no doubt in the observation made in the High Court that the elimination of the requirement to obtain copies of the documents was part of an effort to combat the dilatoriness of some Indian practitioner; and their Lordships would he unwilling to discourage any such effort.

All, however, that can be done, as the law stands, is for the High Courts to be strict m applying the provision of exclusion.

The word 'requisite' is a strong word; it may be

:"garded as meaning something nfore than the word 'required'.

It means 'properly required' and it throws upon the pleader or counsel for the appellant the ,.. ::ssity of showing that no part of the delay beyond the prescribed period is due to his fault."

In other words, what their Lordships said was that any delay due to the default of the pleader of the appellant cannot be deducted.

There can be no question of any default if the steps taken by the appellant are in accordance with law.

Hence, the above quoted observations of the Judicial Committee can have no application to the po:nt under consideraion.

Preponderance of judicial opinion is in favour of the conclusion reached by us earlier. The leading case on the subject is the decision of the fu]] bench of the Madras High Court in Panjamv. Tri ma/a Reddy('), wherein the court laid down that in s. 12 the words 'tim.~ requisite for obtaining a copy of the decree' mean the time beyond the party's control occupied in obtaining <he copy which is filed with the memorandum of appeal and not an ideal lesser period which might have been occupied if the application for the copy had been filed on some other date. Th's decision wa! followed by the Travancore-Cochin High Court in Kunju Kesavan

v. M. M. Philip('), by the Allahabad High Court in B. Gorind Raj Sewak Singh and Another v. Behuti Narain Singh(') and by the Madhya Pradesh High Court in K. V. Singh v. M.

Kachhi(').

From the above discussion it follows that the decis-'on under appeal does not lay down the la"' correctly.

But yet we arc of

Ctl 1.L.R. l7 Ma<l. 561. (Jl A .IR J9; J All. 486.

(2) A.J.R. 195) T.C. 552.

(4) A.l.R. t960 M.P. 14J.

ll ..

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A the opinion that this is not a fit case to interfere with the order of the High Court dismissing the appeal. The respondents were acquitted by the assistant sessions judge, Farrukhabad on November 10, 1962. We were informed by learned counsel for the State that this appeal was brouht to this court mainly with a view to settle an important question of law, and under instructions B from the State government he told us that he does not press the appeal on merits. Accordingly this appeal is dismissed.

R.K.P.S.

Appeal dismissed.

STATE OJ< UTT AR PRADESH

MAHARAJ NARAIN AND OTHERS

January 30, .1968

M. HIDAYATULLAH Al'D K. S. HEGDE, JJ

January 3. 1963

December 3, 196

December 20, 1962

s. 12(2)

Limitation Act

s. 12(2)

s. 12(2)

Schedule I

s. 12(2)

Panjam Y. Trimala Reddy

P. Rana

P. Goyal

Sobhag Mal Jain

Hegde

s. 2

s. 12

Indian Limitation Act 1908

Farrukhabad

High Court of Allahabad

Code of Criminal Procedure 1898

s. 2

s. 12

March 29,

1963

November 10, 1962

November 15, 1962

January 3, 1963

December 21, 1962

High Court of Allahab1d

s. 12(2)

s. 12(2)

s. 2

s. 12

Schedule I

s. 12

Lahore High Court

Lahore

s. 12(2)

s. 2

s. 12

Madras High Court

s. 12

Travancore-Cochin High Court

Allahabad High Court

Madhya Pradesh High Court

R.K.P.S.


THAKORE SOBHAG SINGH

THAKUR JAi SINGH & ORS.

January 31, 1968

[J. C. SHAH, V. RAMASWAM! AND V. BHARGAVA, JJ.]

Jaipur Matmi Rules, 1945-W/Je//Jer lune force of /c; n-Adoption prior to pron1ulga1ion of Rule~ l\itliour sanction of Ru/er-Validity.

Board of Revenue, Rajas1han-Jurisdic1io11 10 decide q11es1io11.r of adop. tion and succession to jagirs in Jaipur State.

The Board of Revenue, Rajasthan. 1,1, i1hout recording a finding on the C factum of respondent's adoption to the last holder of the jagir, rejected his claim to be rcogniscd as the adopted son, on rhc ground that, under the MaJ111i Rules, the adoprion, without lhc pr-evious sanct; on of the Ruler. could not be recognised for the purpose of determining succession to the jagir.

Jn the writ petition filed by him, the High Court dealt with lhe dispute on merits and, holding (a) that the Jaipur Mar111i Rules had no statutory force bccau'!le rhc Ruler had not given his assent to them; (b) thar on lhe death of the last holder without any issue lhe jagir would v-.'5t 1) in the respondent if it "'as proved that he v1as adopted in accordance wilh the personal law of the las! 1agirdar; and (c) that rule 14(2) requiring the previous sanclion of the Government of the State to adopt is prospective and could have no applicatiori to n adoption made before th: Rules "'-ere promulgated, dircc:ed the Qoard to drcide the case in accord ance with the law declared hv the High Courl.

The Board hold that the respondent was proved to have been adopted by the las1 jagirdar and directed that he should be recognised as the jagii'dar.

In appeal 10 this Court. against the order of the Board er Revenue it was contended by the appellant. \\'J10 claimed to have a preferential riaht to !he jagir, that : ( 1) rhe Board ol Revenue had no jurisdiction 10 decide the dtsput-~ relaring to ado; Jtion as it Yi:as triable by a civil court, and (2) since the Jaipur MO/mi Rules (Validalion) Act, of 19&1, was passed after the judgment of the High Court, the Board was bound lo dispose of the matter in the light of the Rules. }'

HELD : ( l) Under the Rajasthan Jagir Decisions and Proceedins (Validation) Act, 1955. the power to doal y, i1h and decide Jispules relaling to succession lo jagircstatcs '"a~ vested. in respect of procccdins pending at the date of the Act and instituted thercaf:-:!r, in the Revenue Courts.

Therefore. the Board of Revenue as competent to decide the question rrlating to the respondent's ad0ption. and its decision· on--~ .the factum of adoption recorded on appreciation of evidenc! ml.Jst be accepted.

1852 D-E, H!

(2) It was not open 10 !he appellant lo con'end !hat the righl of the respondenl. a> lhe adopted son, to th~ iagir had to he decided by 1he Roard on the basis of tl:c Mar111i Rules and not in accordance with the personal law of the last jagirdar.

(a) Though the State legislature ., naclcd the Validation Acl, declaring that the Ma1mi Rules 'shall have and shall be deemed always 10 have had, ll .. the for~ of law and '>halt be treated as heing and as having been an existing jagir law within the meaning of s. 2(d) of the Rajasthan Laod Reforms and Resumplion of Jagirs Act. 1Q5T, norwilhslanding anyrhing

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contained in any Judgment of any court, the Act did not supersede the judgment of tho High Court and therefore, the Board was incompetent to consider and decide the question .whether the Government mav. in the absence of its previous sanC'tion, refuse to recognise the adoption of the respondent on the basis of the Matmi Rules. [854 A-CJ

(b) Acco<ding to the personal Jaw applicable to the last jagirdar, the respondent could have bee" adopted by him and the finding of the High Court that the jagir would vet in the respondent as the adopted son in accordance with such persl)!}al Jaw operated as res judicata and could not be reopened before the Board of Revenue; and, it was not open to the appeJlant to contend in the appeal to this Court that the deCision of the High Court on questions decided in the writ petition was erroneous. The order of the High Court on the writ petition was not an interlocutory order. [854 E-G]

(c) Rule 14(2) is on its terms prospective and the Validation Act Joes not give retropective operation to the Matmi Rules. [853 FJ

(d) It could not be contended that the judgment of the H; igli Court should not be treated as res judicata, on the ground that .if it was regarded as binding between the parties, the equal protection clause of the Consti 4 tution would be violated if another person similarly situated were to be differently treated by the Board of Revenue. [855 E-FJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 568 of 1965.

Appeal by special leave from the judgment and order dated October 23, 1962 of the Board of Revenue, Rajasthan at Ajmer in Matmi Case No. 40 (Jhunjhunu) of 1961.

M. M. Tiwari, D. D. Varma and Ganpat Rai, for the app.ellants.

A. K. Sen, D. P. Gupta, Sobhag Mal Jain and B. P. Maheshwari, for respondent No. 1.

K. B. Mehta and Miss Indu Soni, for respondent Nos. 2 to 4.

T.he Judgment of the Court was delivered by

Shah, J. This is an appeal brought with special leave against the judgment dated October 23 1962 in Matmi Case No. 40 of 1961, of the file of the Board of Revenue, Rajasthan.

Thakur Sabha! Singh-. hereinafter called 'Sabhal Singh'-a jagirdar of Thikana Jhakora in Shekhawati area in the former Indian State of Jaipur applied on November 3, 1933 to recognize Jai Singh-the first respondent in this appeal-as his adopted son for succession to the Thikana.

On May 23, 1936, the Ruler of Jaipur in Council ordered that he "saw no reason at the present moment to recognize the adoption advocated by" Sabha! Singh,

and that the "alleged adoption of Jai Singh shall in no way be deemed to be an adoption that will in any. sense bind the Darbar as regards the question of succession". On June 16, 1947, Sabha!

Singh preferred another application to the Prime Minister of Jaipur for recognizing the adoption of Jai Singh.

The application was

850 SUPRF.MP. COl!RT REPORTS

[1968] 2 S.CR.

sent to the Board of Revenue for enquiry and report under the Jaipur Matmi Rules, 1945. The Board of Revenue rep8rted that in view of the Council Resolution dated May 23, 1936, the application was not maintainable since Sabha! Singh was living at the date of the application.

But before this application could be finally disposed of by the Government of the State of Jaipur Sabha! Singh died and the Prime Minister of Jaipur directed that nccessai:""el)quiries be held under the Matmi Rules. and for that purpose the record be sent to the Deputy Commissioner for taking action according to the Rules.

The Nazim, Jhunihunu reld an enquiry and reported that adoption of Jai Singh by Sabha! Singh

could not be recognized, for, under the Council Resolution dated May 23, 1936, the Government had refused to rant any recognition to the adoption. In the view of the Nazim, the adoption of Jai Singh by Sabha! Singh without the previous sanction of the Governinent was ihvalid, and evidence of the "factum of adoption" was inadmissible, but that did not debar Jai Singh from setting up a claim to succeed to the Thikana as a descendant in the senior line of the original grantee. An appeal against that order to the Deputy Commissioner was dismissed.

A second appeal was then carried to the Board of Revenue. Jn the view of the Board. on the terms of the Council Resolution dated May 23, 1936. an enquiry into the factum of adoption could not be shut out. The Board accordingly called for a finding on the question, amongst others. whether Jai Singh was formally adopted by Sabha! Singh of Jhakora, and if so wherv?

The Nazim reported that the adoption of Jai Singh stood proved atisfactorily, but the adoption could not be recognized because no previous sanction of the Ruler had been obtained.

Since. however, Jai Singh was the senior-most member of the senior line of descent from the original grantee. he was entitled to succeed to the J!rant under r. 14(1) of the Jaipur Matmi Rules. 1945. in preference to any other claimant.

The papers were then submitted to the Collector, Jhunjhunu.

The Collector confirmed the finding of the Nazim that Jai Singh wa~ adopted by Sabha! Singh. but in the absence of previous sanction of the Ruler the adoption co"Jd not be recognized.

The Collector did not, however. agree with the Nazim that Jai Singh was the senior member of the senior line of the original grantee : he held that Sobhag Singh-appellant in this appeal-was the senior member of the senior line of the original grantee and recommended that "the Matmi be granted in favour of Sobhag Singh." Th~ Roard of Revenue agreed with the Collector that Jai SinJ?h wa' not the senior member of the senior line of the oriinal grantee of the j!rant in question. and that the appellant Sobhag Sin.gh had a preferential claim to the grant of Matmi. The Board without recording a finding on the issue of adoption accepted the recommendation of the Collector.

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SOllHAG SINGH v. JAi SINGH (Shah, J.) 851

Jai Singh then moved a petition under Art. 226 of the Constitution before the High Court of Rajasthan. The High Court quashed the decision of the Boatd of Revenue and directed the Board "to decide the case ih accordance with law in the light of observations made" in the judgment. In the opinion of the High Court, the Jagir devolved according to the personal law applicable to the last holder, and the personal law included the custom or usage relating to the particular Jagir; that the custom or usage applicable to the Jagir in question was that the adopted son must be a direct male lineal descendant of the original granite, and that Nahar Singh was the original grantee of the Jagir in question and Jai Singh as a descendant of Nahar Singh was entitled to take the Jagir if it was proved that the adoption had been made in accordance with the personal Jaw, that the Matmi Rules had no statutory force because it was not proved that assent of the Ruler of Jaipur had been given thereto, and that even assuming that rhe Rules were "existing Jagir Jaw" they did not govern adoptions made before they were brought into force.

An application for certificate to appeal to this Court against the judgment of the High Court under Art. 133 of the Constitution was rejected on the ground that the dispute had not been finally decided, and a number of issues remained to be decided.

The Board of Revenue held, on a re-hearing of the appeal, that Jai Singh was proved to have been adopted by Sabha) Singh.

The Board accordingly directed that by virtue of the adoption of Jai Singh by Sabha! Singh, Jai Singh be shown in the revenue records as the Jagirdar of Jhakora on the demise of Sabha! Singh.

Against that order, Sobhag Singh who claimed to have a preferential right to the Jagir of Jhakora has appealed to this Court.

A large number of grounds were canvassed at the Bar in support of this appeal : they fall into three broad divisions :

( 1) That the Board of Revenue had no jurisdiction to decide a dispute relating to adoption which dispute was triable by the Civil Court alone;

(2) Since the Jaipur Matmi Rules had been validated

bv the Jaipur Matmi Rules (Validation) Act. 1961 (Act 21of1961), the Board was bound to decide the appeal in the light of the Rules; and ( 3) That on the evidence it is not proved that Jai Singh was in fact adopted by Sabha! Singh as his son on Karlik Sudi 13 Samvat Year 1987.

 " The first and the third grounds Present no difficulty. The Raiasthan Legislature enacted the Rajasthan Jagir Decisions and Pro- Cl'edings (Validation) Act 18 of 1955 to validate certain decisions

SUPREME COURT REPORTS [l 968] 2 S.C.R.

given, and proceedings taken, in respect of matters relating to the resumption of Jagirs in the covenanting States of Rajasthan, and the recognition according to the law of succession to the rights and titles of Jagirda"' therein, and to provide the forum for the disposal of such cases and proceedings.

The State of Jaipur was one 'of the covenanting States. Bys. 3 of it.at Act it was provided that all decisions of the various grades of Revenue Courts or officer,, in cases or proceedings arising out of, or under, the laws of the covenanting States providing for the resumption of jagirs in 'those States and the recognition of succession to the rights and titles of jagirdars therein shall be valid and shall be deemed always to have been valid and shall not be liable to b~ called in question in any Civil Court.

Section 4 provided or continuance of pending cases and proeedings before the Revenue Courts as .f they were properly instituted. Section 5 provided that all casesor proceedings of the nature referred to in s. 3 may after the Act be instituted in the Court of the Collector exercising jurisdiction in the area within which the subject-matter of the case or proceeding is situate. Provision was made for appeals from the orders of the Revenue Courts by s. 8, and by s. 12 the order of the Board of Revenue was declared final.

The jurisdiction of the civil court to entertain suits or proceedings referred to In s. 5 was expressly excluded by s. 13.

The power to deal with and decide disputes relating to succession to jagir estates was therefore vested in respect of proceedings pending at the date of the Act and instituted thereafter, in the Revenue Courts. The Board of Revenue was, therefore, competent to decide the question relating to the adoption of J ai Singh by Sabha! Singh.

There is overwhelming evidence on the record in support of the case that Jai Singh was adopted on Karlik Sudi 13 Samvat Year 1987 by Sabha! Singh with the requisite ceremonies according to the personal law.

Every authority or Tribunal which had occasion to deal with this quc;5tion was of the opinion that Sabha!

Singh and adopted Jai Singh on Karlik Sudi 13 Samvat Year 1987 according to the custom of the Jagir.

Apart from the oral evidence, there is the deed of adoption, a copy of an invitation sent to an invitee to attend the adoption ceremony and the recitals in the application submitted by Sabha! Singh requesting recognition of the adoption of Jai Singh. The Board of Revenue in the judgment under appeal has carefully analysed the evidence, and we see no reason to enter upon a reappraisal of the evidence in this appeal with special leave.

The view recorded by the oard of Revenue on appreciation of evidence that Jai Singh was adopted as a son by Sabhal Singh must be accepted.

The second contention may now be considered.

In 1945 the Jaipur Matmi Rules were published in the State Government Gazette.

By r. 3 all existing orders, rules and hidayats which

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A .were inconsistent with the Matmi Rules were repealed.

Rule 4

sub-r. (3) defined "Matmi" as meaning mutation of the name of the successor to a State grant on the death of the last holder. By r. 5 it was provided that all State grants shall be subject to matmi with certain exceptions not relevant in this case.

Rule 14 provided:

" ( 1) Subject to the provisions of rule 13, succession in the absence of a direct male lineal descendant of the last holder shall be restricted to the lineal male-descendants of the original grantee, preference being given to the senior member of the senior line :

Provided, firstly, that in tht; case of a grant for the maintenance of a temple, mosque or other religious place, other than a Jain temple, it shall be within the discretion of Government to select as successor any one of the male lineal descendants of the original grantee, with due regard to his suitability for the perfomiance of worship; and

Provided, secondly,

(2) No adoption shall be recognised for the purpose of succession to a State grant unless a holder has obtained the previous sanction of the Government to adopt, such sanction being given only in favour of a direct male !in.ea! descendant of the original grantee : Provided, firstly,

Provided, secondly, "

That rule is plainly prospective, and can have no application to an adoption !nade. before the Rules were promulgated. Previous sanction to adopt is not a condition of the grant of recognition for the purpose of succession to a State grant in respect of a person who is adopted by the holder of a I agir before the date of the promulgation of the Rules.

That was the view taken by the High Court in the writ petition filed by Jai Singh against the order of the Board of Revenue. The High Court also held that the Matmi Rules were not sanctioned by the Government, and had not the force of >aw.

It is true that the State Legislature has enacted Act 21 of 1961-called 'The Jaipur Matmi Rules (Validation) Act 1961 '.

By s. 2 of that Act it is provided that "notwithstanding anything contained in the Jaipur General Clauses Act, 1944, or any other Jaw or in any rule of interpretation or in any judgment decision, decree or order of any court, notwithstanding any omission or defect of form or procedure or .want of any competent sanction or approval, it. is hereby declared that the Jaipur Matmi Rules, 1945, published in the Jaipur Gazette, Extraordinary, dated

SUPREME COURT RF.PORTS

[I 968) 2 S.C.R.

the 8th December. 1945. under Revenue Branch Notification No. 15941 /Rev., dated 24th November, 1945, shall have, and shall be deemed always to have had, the force of law and shall be treated as being and as having been an 'existing Jagir law' within the meaning of clause ( d) of section 2 of the Rajasthan Land Refonns and Resumption of Jagirs Act, 1952 (Rajasthan Act 6 of

1952) for the purpose of that Act as we)) as of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955 (Raiasthan Act 18 of I 955). and any other law relatnip; to "Jagirs or Jagirdars." But the Act did not supersede the judgement of the High Court. The Board of Revenue was therefore incompetent to consider and decide the question whether the GovernmCilt may in the absence of the previous sanction of the Government refuse to recognize the adoption of Jai Singh.

The Act again merely declares that the Matmi Rules shall be deemed always to have the force of law and shall be treated as being "cxistin)l Jagir law" within the meaning of cl. (d) of s. 2 of the Rajasthan Land Reforms and Resumption of Jaj!irs Act 6 of 1952 and Rajas1han Act 18 of 1955. But the Act docs not purport to give retrospective operation to the Jaipur Matmi Rules. It is futile then t.1 contend that the Board of Revenue before determining the quc ;. tion as to the factum of adoplion of Jai Sinh was required t l consider wnether the adoption was invalid. because sanction of th~ Ruler of Jaipur was not previously obtained by Sahhal Singh bcrorc taking Jai Singh in adoption.

The High Court had also held in the writ petition that on the death of the holder of the Jair without having any issue the Jagir will vest in his adopted son in accordance wi1h the personal law.

That findinj! is now res j11dicafa and is bindin~ upon the parties.

Counsel for the appellant contended that the order passed by the Hi!!h Court was an interlocutory order remanding the proceeding to the Board of Revenue, and on that account the decision of the High Court will not operate as res j11dicata either before the Board of Revenue or in this Court.

We are unable to accept that contention.

Against the order or"the Board of Revenue rejectin~ the claim of Jai Singh to be recOgQized as the adootcd son of Sabha!

Singh a writ petition was moved in the Hioh Court and a prayer for ouashing that order was made.

The Hi2h Court dealt with the dispute on merits and held that the order of the Board of Revenue holdine that because of the Matmi Rules the adoption of Jai Sineh by Sabhal Singh without the previous sanction of the Ruler could not be recognized for the purome of detenninine the succession to the Jagir was erroneous.

The Hi2h Court did in making the final order direct the Tribunal to decide the case 'in accordance with the law and in the light of the observations made in the judement. but the direction was. in our judgment. a surplusa, ee.

The Hi.eh Court is<:i?ed a writ in the nature of certiorari

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quashing the order of the Tribunal.

It was unnecessary thereafter to direct or advise the Board of Revenue lo perform its statutory duty to decide the dispute according to law. The Board of Revenue had to decide the dispute in accordance with the law declared by the High Court.

All questions which had been expressly decided by the High Court on contest between the parties and other questions which must be deemed by necessary implication to have been decided were res judicata and could not be re-opened before the Board of Revenue.

In this appeal it is therefore, not open to the appellant to contend that the decision of the High Court on the questions decided in the writ pctttion was erroneous.

It is unfortunate that the application for certificate to appeal to this Court filed by Sobhag Singh was erroneously rejected by the High Court.

But that does not affect the binding character of the judgment of the High Court between the parties. Unless the decision of the High Court on those questions was set aside by appropriate proceeding in this Court, the judgment must be held binding between the parties.

It is, therefore. not open to the appellant to contend. that the right of Jai Singh as the adopted son to the I agir had to be .decided otherwise than in accordance with the personal law of Sabha! Singh. It is undisputed that accordin.g to the personal law applicable to Sabha! Singh, Jai Singh could have been adopted by him.

It was somewhat faintly contended by counsel for the appellant that if the judgment of the High Court is regarded as bindin~ between the parties, the equal protection claus~ of the Constitution would be violated, and on that account also the judgment must be held invalid.

The argument needs no serious consideration. It is difficult to appreciate the contention that two persons similarly situate were or cod be differently treated by the judgment of the Board of Revenue. because the decision of the High Court operate> as res judicata between the parties in one case. By the application of the rule of res judicata the appellant was not singled out for special or prejudicial treatment.

It may suffice to observe that all adoptions according to the personal law in the State of Jaipur made by Jagirdars before the p•omulgation of the Matmi Rule~ are valid, even if no sanction of the Ruler was. obtained to the adoptions.

That rule applies to all adoptions by /agi•dars in the State of Jaipur.

The appeal fails and is dismissed with costs in favour of the first respondent.

V.P.S.

A ppea/ dismissed.

THAKORE SOBHAG SINGH

THAKUR JAi SINGH & ORS

January 31, 1968

C. SHAH

V. BHARGAVA, JJ.

Jaipur Matmi Rules, 1945

s. 2(d)

M. M. Tiwari

D. D. Varma

Ganpat Rai

A. K. Sen

D. P. Gupta

Sobhag Mal Jain

B. P. Maheshwari

K. B. Mehta

Indu Soni

Shah

Jai Singh

May 23, 1936

Jaipur

Sabha! Singh

Jai Singh

June 16, 1947

Government of the State of Jaipur

Jhunihunu

Nazim

Sabha! Singh of Jhakora

Jhunjhunu

Sobhag Singh

Sobhag Singh

Jai SinJ?h

Sobhag Sin.gh

Art. 226

High Court of Rajasthan

Nahar Singh

Art. 133

Sabha) Singh

Jhakora

Karlik Sudi

State of Jaipur

Section 4

Section 5

s. 3

s. 8

s. 12

s. 5

s. 13

J ai Singh

Sabhal Singh

s. 2

Jaipur General Clauses Act, 1944

Jaipur Matmi Rules, 1945

section 2

s. 2

Jai Sinh

Sahhal Singh

Jai Sineh

Jagirdars


GRAM SABHA, BESAHANI

RAM RAJ SINGH & ORS

January 31, 1968

[J. C. SHAH, V. RAMASWAMI AND V. BHARGAVA, JJ.)

U.P. Zamindari Aholi1ion and Lc; ncl Reform< Act. 1950 (1 of 1951). s. 212A (6) and (7)--Suh-Di\i{ionnl Officer ordering tjtctment under s. 212A (6) without a1vardi111: co111pensation-Such order ; S invt:.lid and does not a/tract provi<ions of s. 212A (7) arrd Entry at SI. No. 328 of Appendix Ill read with Rule 338 of U.P. Zc.1nindari Aholition and Land Refornis Rules. 1952-Suit challen11in11 .111ch order can be filed under s. 209 of

the Act within si:c years of the date of dispO.\StS!iiOfl,

The respondents filed a suit under s. 209 of the U.P. Zamindari Abolition and Land Reforms Act 1950, in respect of five plots of land claiming to have Sirdari rights in one of them and Bhumidari rights in the other four.

By this suit they challenged the order of th-' Sub-Divisional Oll!cer

purting to be under s. 2 I 2A ( 6) of the Act dispossessing the plaintiffs from he aforesaid plots and ran1ing pession thereof to the appellant Gram Sabha.

The Revenue c:ourt framed several issues, the second of \•.:hich was whether the respondent!\ had ever acquid Bhurnidha'ri rights in Jhe four plots in which they claimed tbern. 'fhis issue was referred to lhe Civil Court which held thal. as no suit was filed under s. 212A (7) of the Act, within six month) ol the dispossession as required by the Entry at SI. No. 328 of Appendix III read with Rule 338 of the U.P.

Zamindari and Land Reforms Rules 1952. !he respondents' rights as Rhumidars, if any, stood extinguished.

On receipt of this decision oe issue No. 2 the Revenue Court proceeded to determine the claim of the respondents in respect of Sirdari right"i in one plot and it found lhat these

rits were never acquired.

It therefore dismissed the respondents' suit w1tho\lt recording any finding on the remaining issues. The first "ppeal having failed, the respondents liled a second appe•I: Therein the High Court held that the order of the Suh-Divisional Mastrate purporting to be made under s. 212A (6) of the Act was not valid because it did not direct payment of compen'Sation as laid down in that section, so that the rights a6 Sirdars and Bhuntidars were not lost hy lhe respondents.

The appellant came to this Court by special leave.

HELD: fi) The language of s. 212A (6) makes it clear that the order under that provision must he an order for ejectment of the person in possession of the land on payment of such compensation as mc1.y be prescribed.

In the present case no compensation having been Ordered to be paid there was no valid order under s. 212A (6). AC'Cordingly the provisions of s. 212A (7) which come into play only when a valid order has been passed under s. 212A (6). were not auracte<l to the ca; e at all. In such a case a suit clearly lay against the appellants under s. 209 of the Act and such a suit could be instituted within six years from the date that unla1,1w- ful possession wa5 taken hy the appellant. The present suit was admittedly brought within that period and was therefore not time-barred.

[859 F,

860 E]

(ii) The suit in respect Of the plot in which Sirdari rights were claimed by the respondents was dismiiscd hy the trial court on the ground that such rights had neVcr been acquired.

This was a finding of fact and the invalidity of the order under s. 212A did not affect it. [d60 FJ

II ....

(iii) In respect of the four plots in which Bhumidhari rights were claimed by the respondents, the case must be remanded to the tnal court for determination of the undecided issues relating to them. [859 B.C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 719 of 1966.

Appeal by special leave from the judgment and order dated February 18, 1965 of the Allahabad High Court in Second Appeal No. 4482 of 1961.

S. P. Sinha, E. C. Agrawala and P. C. Agrawala, for the appellant.

B .. C. Misra and H. K. Puri, for respondents Nos. 1 and 2.

The Judgment of the Court was delivered by

Bbari:ava, J.

The plaintiffs/respondents filed a suit No. 25 of 1957 under section 209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (No. I of 1951) (hereinafter referred to as 'the act"), claiming possession of five plots Nos. 729/2, 725/2, 723/2 881/2 and 330/3 on the ground that t)iey were Sirdars of plot No. 330/3 and Bhmnidars of the remaining plots.

The main ailegation was that the Chairman of the Gram Samaj of the village, in which the plots were situated, had, for certain reasons, filed an application before the Sµb-Divisional Officer under section 2 l 2A of the Act for dispossession of the plaintiffs/respondents on the ground that these lands were of pu'Q, lie utility and they vested in the Gram Samaj. , The Sub-Divisional Officer, purporting to act under s. 212A of the Act, passed ; m order for dispossession of the plaintiffs/respondents and granted possession of t.he ll)nds to the appellant, Gram Sabha, Besahani.

That order purporting to be under s. 212A of the Act was challenged as invalid. a:nd, on that basis, possession was claimed from the ; ippellant under s. 209 of the Act, alleging that the possession of the appellant was without any legal right.

The suit was defended on behalf of the appeilant on various groun<ls as a result of which the foJlowing ten issues were framed by the trial Court :-

"Issue No. I : Whether the plaintiffs have right to file the presen, suit ? 2 : Whether plaintiffs are Bhumidars of the plots in suit except plot No. 330/3 ? If so, its effect?

3 : Whether plaintiffs are Sirdars of plot No. 330/3 in suit ? '

4 : Whether plaintiffs are entitled to recovery of H possession over the plots in suit ?

5 : Whether the, disputed plots are land of public utiljty and they vest in Gaon Samaj ? If so, its effect'?

6 :Whether the suit is barred by s. 23, C.P.C.? 7 : Whether the suit is barred by .cction 11, C.P.C. '? 8 : Whether the disputed plots are culturable land ?

If so, its effect'? 9 : Whether the Court has jurisdiction to the case ?

I 0 : Whether the suit is within time ?"

Of these issues, issue No. 2 was triable exclusively by the Civil Court and, consequently, the Revenue Court, which was seized of the suit, referred this issue to the Civil Court for a finding.

This issue No. 2 arose because of two plca<lmgs put forward on behalf of the appellant.

One was that the plaintiffs/respondents had neve1 acquired Bhumidari rights, and the other was that even if it be held that they did possess any Bhumidari rights, those rights were extinguished when the respondents were dispossessed in pursuance of the order of the Sub-Divisional Officer under s. 2 l 2A of the Ac: and no suit within six months was instituted by the respondents in accordance withs. 212A(7) of the Act. The Civil Court, without going into the question whether the respondents had ever acquired Bhumidari rights, decided this issue onlv on the limited ground that the Bhumidari rights of the respondents had been extinguished as a result of the order under s. 212A of the Act. On receipt of this finding from the Civil Court, the Revenue Court proceeded to record its own finding on issue No. 3 in respect of plot No. 330/3 which was the only plot i!l which the respondents had claimed rights as Sirdars. On this lssue, th~ Revenue Court went into the first question only raised on behalf of the appellant and held that it was not proved that the respondents had ever been admitted to tenancy of this plot of land, so that they never became Sirdars of this land.

On this view, the Revenue Court considered it unnecessary to entr into the question whether the Sirdari rights acquired, if any, had been extinguished as a result of the order under s. 2 l 2A of the Act.

In view of these findings no decision was recorded on issues Nos. 5-10, and the suit was dismissed.

That order was upheld by the first appellate Court.

The respondents then filed a second appeal in the Allahabad Hih Court.

The High Court held that the order purporting to be under s. 2 l 2A of the Act was not valid, because it did not direct payment of compensation as required bys. 212A(6) of the Act, so that the rights as Sirdars and Bhumidars were not lost by the respondents.

On this view. the High Court set aside the dismissal of the suit by the lower Courts and decreed the suit of the respondents. The appellant has now come up to this Court against this judgment by special leave.

Two points have been raised in this appeal on behalf of the appellant before. us.

The first point is that the High Court was

wrong in holding that the order passed under s. 2.12A of the Act by the Sub-Divisional Officer was not valid, and on that basis decreeing the suit which was clearly" time-barred, as it was not instituted within six months of the order of ejectment passed by the Sub-Divisional Officer under s. 212A(6) of the Act.

This ground raised in the appeal has (o be rejected, as we are of the opinion that the High Court was perfectly correct in holding that the order of the Sub-Divisional Officer under s. 212A of the Act was not valid and, consequently, the provisions of s. 212A(7) of the Act were never attracted to the present dispute.

Sectio.1 212A(6) & (7) are as follows:-

"212A. ( 6) Where upon the said hearing the Collctor is satisfied that the person was admitted as a tenure-holder or grove-holder of land referred to in Section 212 or being an intermediary brought such land under his own cultivation or planted a grove thereon on or after the eighth day of Augut, 1946, he shall pass an order for ejectment of the person from the land on payment of such compensation as may be prescribed.

( 7) Where an order for ejectment has been passed under this section, the party against whom the order has been passed may institute a suit to establish the right claimed by it but sub.iect to the results of such suit the order passed under sub-section ( 4) or ( 6) shall be conclusive."

The language of s. 2 l 2A ( 6) makes it clear that the order under that provision must be an order for ejectment of the person in possession of the land on payment of such compensation as may be prescribed. This means that an order under that provision must tirst direct payment of compensation to the person in possession and the direction for ejectment of the person in possession must be. made effective only thereafter, i.e., after the compensation has been paid.

The order to be made under this provision of Jaw must, therefore, contain as a GOndition precedent to eiectment the payment of compensation. If no payment of compensation is ordered, the order made would not be an order under this provision of law.

In the present case, admittedly no compensation was ordered to be paid in the order purporting to have been passed under s. 212A(6) of the Act, so that that order cannot be treated as an order under this provision of Jaw.

The order n'ot being under this provision, the dispossession of the plaintiffs/ respondents in pursuance of that order was clearly illegal and the plaintiffs/ respondents had the right to institute the suit for obtaining possession under s. 209 of the Act.

It is true ; hat, in accordance with Entry at SJ. No. 32B of Appendix 11! read with Rule 338 of the U.I'. Zamindari Abolition

and Land Reforms Rules, 1952 (hereinafter referred to as "the Rules"), a suit to establish a right claimed in accordance wit'1 s. 2!2A(7) of the Act has to be instituted within six months.

Jn pursuance of that right claimed, possession can also be claimed; and, if the suit for establishing the right fails, the right to obtain possession would also become time-barred.

Consequently, under s. 189(c) of the Act. the person concerned, who fails to institute the suit within this period of limitation in accordance with s. 2 I 2A ( 7) of the Act, would have hi>

intrest in the land extinguished. This provision, however, will only apply to cases where a valid order has been made under s. 2 J 2A of the Act and the person concerned has been dispossessed in pursuance of su'ch an order.

In the present case, we have held that the order. in ptmuance of 1vhich the respondents were dispossessed, was not a val id order under s. 2 I 2A ( 6) of the Act and cannot be held to be an order under that provision of law, so that the respondents in this case must be deemed to have been deprived of possession otherwise than in accordance with law. In such a case, a suit clearly lay against the app'Cllant under s. 209 of the Act and such a suit could be instituted within six years from the date that unlawful possession was taken by the appellant in accordance with Entry at SI. '.'lo. 30 of Appendix Ill read with R. 33~ of the Rules. The present suit was admittedly brought within this period of limitation and was, therefore, not time-barred. The High Court was, therefore. right in holding that the. claim of the plaintiffs/respondents could not be defeated on this ground.

The second point urged on behalf of the appellant, however, appears to us to have great force and must be accepted.

It was urged that, so far as plot No. 330/3 is concerned, there was a finding of fact recorded by the trial Court. which was upheld by the first appellate Court, that the plaintiffs/respondents never acquired any tenancy or Sirdari rights in this land, so that, irrespective of the validity of the order under s. 212A(6) Qf...lhe Act. the plaintiffs/respondents' suit for possession of t11is plot had to be dismissed.

The High Court, in decreeing the suit, clearly ignored this aspect. The dismissal of the suit by the trial Court which was upheld by the first appellate Court in respect of this plot No. 33013 was. therefore, not liable to he set aside even on the view taken by the High Court and to that extent it has to be upheld.

With regard to the remainin~ four plots in which the respondents wereclaiming Bhumidari rights, the error committed by the High Court is that on the finding recorded by that Court there should have been an order of remand to determine other questions

raised in the suit in respect of those plots.

One of the questions raised, which formed part of issue No. 2 and was never decided by the Civil Court to "hich tliat issue was referred, was that the

' c

A respondents had never acquired Bhumidari rights at all in these plots. That question should have been remitted for a fresh decision when the High Court held that the Civil Court was wrong in holding that the Bhumidari rights, if possessed by the respondents in these plots, had been extinguished under s. 189 of the Act in view of the failure of the respondents to institute the suit B within the period of limitation applicable to a suit under s. 212A(7) of.the Act. Further, in respect of these plots, other issues which were not decided by the Revenue Court also required decisio'1 before the suit in respect of them could be completely disposed of. Consequently, it is now necessary to remand the suit to the trial Court for a fresh trial for the purposes indicated above.

C As a result, the appeal is allowed and the decree passed by the High Court is set aside. The suit of the plaintiffs/respondents will stand dismissed in respect of plot No. 330/3, while it will go back to the trial Court for a fresh decision in respect of the remaining four plots in the light of our decision that, in case the respondents had acquired Bhumidari rights, they were not D extinguished by any order under section 2J 2A of the Act.

Parties will be given an opportunity to give evidence on the question of acquisition of Bhumidari rights by the plaintiffs/ respondents ancl on other issues which have not been decided so far. Costs of this appeal shall abide the result of the suit.

G.C.

Appeal allowed .

L3 Sup Cl168--Jt

GRAM SABHA, BESAHANI

RAM RAJ SINGH & ORS

January 31, 1968

C. SHAH

V. RAMASWAMI

V. BHARGAVA, JJ.

s. 212A

s. 212A

s. 212A

Appendix Ill read with Rule

Aholition and Land Refornis Rules

s. 209

s. 209

s. 2

s. 212A

Appendix III read with Rule

Zamindari and Land Reforms Rules 1952

s. 212A

s. 212A

s. 212A

s. 212A

s. 212A

s. 209

s. 212A

S. P. Sinha

E. C. Agrawala

P. C. Agrawala

B .. C. Misra

H. K. Puri

Bbari

ava

section 209

section 2

s. 212A

s. 212A

s. 209

s. 23

C.P.C

C.P.C

s. 2

s. 212A

s. 2

Allahabad Hih Court

s. 2

s. 2

s. 212A(6)

s. 212A

s. 212A(7)

Section 212

eighth day of Augut, 1946

s. 2

s. 212A(6)

s. 209

and Land Reforms Rules, 1952

s. 2

s. 189(c)

s. 2

s. 2

s. 2

s. 209

s. 212A(6)

s. 189

s. 212A(7)

section 2J