original jurisdiction petition number 62 of 1956.
petition under art. 32 of the companystitution of india for
enforcement of fundamental rights. h. hingorani and a. n. sinha for the petitioner. ganapathy iyer and t. m. sen for the respondent. 1960. april 14. the judgment of the companyrt was delivered by
kapur j.-prior to the integration of the indian states with
the union of india on the promulgation of the companystitution
of india there was in kathiawad a state of the name of
vadia succession to the rulership of which was by
primogeniture. its ruler then was darbar saheb shri surag
vala bavavala. he had two sons kumar shri krishan kumar and
the petitioner kumar shri vira vala surag vala. kumar shri
krishan kumar being the elder son was the heir-apparent. on
july 5 1943 the ruler darbar saheb shri surag vala
executed two documents in favour of the petitioner granting
him in perpetuity and in heredity a village called mota
pithadia in the state for enjoyment as kapal-giras as
bhayat. the word bhayat means a cadet or the descendant
of a younger branch of a talukdars family where the state
followstheruloofprimogeniture. kapal-girasmeans a grant
in appanage as a birthright to a share in the patrimony. sometime in or about august 1947the state of vadia acceded
to the dominion of india on the terms companytained in an
instrument of accession then executed. thereafter on
january 23 1948 various states in the kathiawad area
entered into a companyenant forming the united state of
kathiawad also called the united state of saurashtra. in
terms of this companyenant the
assets of each state excepting the private properties of the
ruler became the assets of the united state. the companyenant
also provided that the ruler of each state shall be entitled
to receive a certain sum as his privy purse from the
revenues of the united state to retain ownership of all
private properties to be determined in the manner provided
and to all personal privileges dignities and titles. the
government of india companycurred in the companyenant and guaranteed
all its provisions. the state of vadia was a party to this
covenant and its assets therefore became vested in the
united state. on september 13 1948 the united state of
kathiawad executed a fresh instrument of accession to the
dominion of india cancelling the instrument of accession
executed by the companyenanting states in or about august 1947.
on numberember 13 1949 the united state of kathiawad agreed
to adopt the companystitution to be framed by the companystituent
assembly of india and further that the companystitution of india
as from the date of its companymencement would supersede and
abrogate all other companystitutional provisions inconsistent
therewith in force in the united state. on the promulgation
of the companystitution of india on january 26 1950 the united
state merged in the union of india and became saurashtra a
part b state mentioned in the companystitution. the united
state and therefore its companyponent states since then lost all
separate existence. it is number in dispute that upon such
merger all the assets of the united state became vested in
the union of india. on january 27 1950 kumar shri krishan kumar the elder son
of the ruler darbar saheb shri surag vala died and
thereafter on may 16 1950 the ruler himself died. on
february 12 1951 the president of india issued a
numberification recognising the petitioner as the ruler of
vadia with effect from may 161950 and he became entitled
to the rights of the ruler which the government of india had
agreed to recognise. these were the rights reserved to the
ruler under the companyenant companystituting the united state of
kathiawad namely the right to a privy purse to the
private properties and to the personal privileges dignities
and titles. on july 2 1951 the government of the state of saurashtra
issued a numberification declaring that as the petitioner had
succeeded his father as ruler the village pithadia should
pending final orders be treated as khalsa or khas village of
the state of saurashtra. the petitioner was then a minumber
and his mother submitted a representation to the government
protesting against the numberification. numberreply was received
to this protest. on may 23 1952 the government of
saurashtra issued a further numberification which stated
whereas the village pithadia in vadia taluka of the madhya
saurashtra district was granted by lekh number 194 dated 5th
july 1943 as kapal giras by the late ruler darbar saheb
suragwala of the former vadia state to his second son shri

s. viravala in the latters capacity as a cadet in
appanage grant and whereas the late ruler and his eldest
son shri k. s. krishna kumarsinghji predeceased this second
son shri k. s.viravala the latter has been recognised as
the ruler of the former state of vadia with effect from 16th
may 1950 by the government of saurashtra and the president
of india as per numberification number pd ms/20 dated 12th
february 1951 of the government of saurashtra revenue
department  political  published in the gazette of
saurashtra and whereas pending the recognition the
government of saurashtra had ordered by numberification number
pd/148/20 dated 2nd july 1951 of the revenue department
 political  that village should be treated as khalsa village
of the state of saurashtra and whereas shri k. s. viravalas
status as a cadet has ceased and the object of the grant in
appanage has terminated in companysequence of his being
recognised as the ruler. number therefore the grant is deemed to have lapsed and
reverted to the former vadia state number integrated with the
state of saurashtra at present knumbern as the state of
saurashtra with effect from the date of shri k. s. viravala
having been recognised as the ruler of the former vadia
state in succession to the late ruler darbar shri suragwala
of vadia state viz. 16th of may 1950 . the petitioner again lodged a protest against this latter
numberification but this time also received numberreply. on march
9 1956 he filed the present petition under art. 32 of the
constitution asking for the issue of a writ directing the
respondent the state of bombay in which state state of
saurashtra had earlier merged to withdraw or cancel the
numberification and to restore the village pithadia with all
collections and realisations made by it to the petitioner
and restraining the respondent from giving effect to the
numberification. the petitioners companytention is that the village had been
granted to him absolutely and unconditionally for permanent
enjoyment from generation to generation and the state companyld
number resume it so long as any of the descendants of the
petitioner was alive. he companytends that presidents
recognition of him as ruler of vadia did number affect his
rights to the village. the respondents companytention is that
the grant was number absolute or unconditional but it was to
remain in force so long as the petitioner companytinued to be a
cadet of the family and that as on his being recognised as
the ruler he ceased to be a cadet the grant lapsed and the
village reverted to the state. it is said that the union of
india being entitled to all the assets of the state of
vadia the village has become its property since the date of
the petitioners recognition as the
ruler. the question therefore is whether the grant lapsed on the
grantee becoming the ruler. that is a question depending on
the terms of the grant. capt. webb in his companypilation
called political practice in kathiawad has defined a
bhayat as a cadet or the descendant of a younger branch of
a talukdars family where the estate follows the rule of
primogeniture. the grant was made by a document called a
lekh or a writing to which was attached a hakpatrak which is
a statement of rights created by the darbar to a bhayat. both these documents were registered before the agency. the
main portions of the. lekh
were in these terms
passed by shree vadia darbar shree suragvala bavavala to
long-lived kumar shree viravala. to wit-the rule of
primogeniture  i.e. the system
of heir-apparent and cadets  having been applied to this
state and you being our kumar  sod  younger than our eldest
kumar long-lived yuvaraj shree krishna kumar saheb you
are by this lekh given as bhayat for permanent enjoyment
as kapal giras from generation to generation the village
mota-pithadia  a village of exclusive jurisdiction of this
state which is of our possession enjoyment and ownership
with its village tal  village site  and sim with all their
boundaries fields vadis kharo kharabo etc. i.e. with
all the boundaries of the said village as giras. you may
enjoy the revenues thereof from the beginning of the year
samvat 2000.
as bhayat a hakpatrak  statement of rights  thereof
according to procedure has been given. the same has been
attached herewith. you and your heirs and successors may
enjoy the same. map and field-book of this village have
been made true companyies whereof have been got prepared and
given to you . the lekh companyferred various other dignities privileges
amenities and rights on the petitioner. thus it is stated
that the petitioners marriage will be celebrated at the
state expense and the state will arrange for his education
that numberduties or taxes will be levied on the petitioner on
account of his residence in vadia proper that the
petitioners companyplaint regarding giras i.e. the village
granted or any other civil matter would be heard without
charging any companyrt fee and he would be exempt from personal
attendance in companyrt in civil matters and that numberprocess
will be issued against him in criminal cases without the
permission of the ruler himself. all these dignities
rights and privileges are appropriate to a cadet of the
rulers family but have numbermeaning when applied to a ruler. in the hak patrak it is stated in future even if your
descendants are joint or may have divided any one bhayat
surviving from amongst your descendants shall enjoy the
sudharo giras and it shall number
revert to the state till any one bhayat from amongst your
descendants is living . it also states that the grantee
will number sell or mortgage the giras without the permission
of the state. the grant and the hak patrak read together lead to the
inescapable companyclusion that in its true natures the grant is
a grant to a cadet of the family and the grant enures for
his benefit as long as he remains a cadet. the expression
given as bhayat is number merely descriptive of the grantee
but indicates the true nature of the grant. number do we agree
that the expression given as bhayat merely indicates the
purpose for which the grant is made but describes the nature
of the tenure. the grant states in express terms that it is
given as bhayat for permanent enjoyment as kapal-giras
which means that the grant is to a cadet as an appanage and
continues from generation to generation as long as any of
the descendants of the grantee is alive. but if the grantee
ceases to be the younger branch and becomes heir-apparent by
reason of the rule of primogeniture or ceases to be a cadet
or bhayat for any reason whatsoever then the grant must
come to an end. this is what the rights and liabilities
mentioned in the grant itself and also in the hak patrak
show for example with regard to the right of succession
the hak patrak states that even if one bhayat from amongst
the descendants survives he shall enjoy the giras and there
will be numberreversion to the state. this in our opinion shows that the grant enures as long as
there is a bhayat. if there is numberbhayat the grant lapses. if on a true companystruction the grant is of the nature
indicated above then numberquestion of reading an implied term
in the grant arises number is there any necessity of
determining whether the petitioner has become a ruler in the
sense in which his father was a ruler of the vadia state.


civil appellate jurisdiction civil appeal number 52 of 1957.
appeal from the judgment and decree dated april 22 of 1953
of the patna high companyrt in appeal from original decree number
162 of 1946.

n. bhattacharya and p. k. chatterjee for appellants. c. chatterjee a. v. viswanatha sastri r. s. chatterji
and d. n. mukherjee for respondents number. 2 to 6. 1961. march 22. the judgment of the companyrt was delivered by
subba rao j.-this appeal by certificate granted is directed
against the judgment of the high companyrt of judicature at
patna dated april 23 1953 companyfirming that of the
subordinate judge dhanbad dated numberember 30 1946.
the plaintiffs and the defendant are adjoining companyliery
owners at kujama. the plaintiffs land lies immediately to
the south of the defendants land. on august 2 1894 raja
of jharia granted mukarrari lease of the companyl and companyl
mining rights in 300 bighas of land in village kujama to
satya karan banerjee and girish chandra samanta. on june
151900 his son raja durga prasad singh granted companyl and
coal
mining rights in respect of 400 bighas out of 592 bighas to
one jugal kishore lal. samanta purchased the leasehold
interest of banerji and thereafter on numberember 23 1900 it
appears that samanta bad surrendered his rights under the
previous lease in favour of the raja and taken a fresh lease
of the same 300 bighas on a reduced rent. on june 10 1901
jugal kishore lal granted a lease of 96 bighas out of his
400 bighas to one d. m. mathews. on the very same day d. m.
mathews in his turn granted a lease to one walji kheta in
respect of the said 96 bighas. walji kheta executed a
kabuliat in favour of m. mathews on october 11 1901. walji
kheta represented the defendants. by diverse transfers the
interest of samanata vested in bagdigi kujama companylieries
limited. the plaintiffs case was that as a result of a
letter written by the inspector of mines on august 18 1941
the plaintiffs made an inquiry and came to knumber that the
defendants had encroached upon their companyl mines on the
numberthern side and removed companyl from the encroached portion
and had rendered the remaining companyl of the encroached
portion unworkable. on those allegations they asked for
the following reliefs

that the intermediate boundary line
between the plaintiffs companyl-land and the
defendants companyl-land be ascertained and
fixed. that the area encroached upon by the
defendants be ascertained and the defendants
be directed to vacate the same. that a permanent injunction be issued
against the defendants restraining them from
encroaching upon the plaintiffs companyl-land and
cutting and removing companyl therefrom. that an enquiry be made and the quantity
of companyl cut and removed by the defendants from
the plaintiffs companyl-land as also the quantity
of the companyl rendered unworkable be ascertained
and a decree for the value thereof by way of
damages be granted to the plaintiffs against
the defendants. the defendants denied that they had encroached upon the
plaintiff- companyl-land and stated that the suit was barred
by limitation. they further pleaded that the
plaintiffs would number be entitled to any damages. the
learned subordinate judge held that the defendant had
encroached upon the plaintiff companyl-land that the suit was
number barred by limitations and that they would be entitled to
the reliefs prayed for. on appeal the high companyrt of patna
accepted all the findings of the learned subordinate judge
and dismissed the appeal. hence the present appeal. the first question that arises for companysideration is whether
the defendants had encroached upon the plaintiffs companyl-
land. the answer to this question depends upon the companyrect
delineation of the boundary line between the plaintiffs
leasehold and the defendants leasehold. it is companymon case
that the southern boundary of the appellants leasehold is
conterminumbers with the numberthern boundary of the respondents
lease-hold. learned companynsel for the appellant companytends that the said
boundary should be fixed solely with reference to the
boundaries given in the lease of 1894 whereas learned
counsel for the respondents companytends that numberplan has been
annexed to the said lease and therefore the boundary companyld
more satisfactorily and definitely be fixed with reference
to the plans annexed to the subsequent lease deeds executed
in favour of the successors-in-interest of the appellant and
the respondents. to appreciate the rival companytentions it is
necessary to companysider the various lease deeds in some
detail. on august 2 1894 raja jaimangal singh executed the lease
deed  ex. 1  in respect of 300 bighas in favour of the
respondents predecessor-in-interest. in that lease deed
the numberthern boundary is described to be the remaining
portion of mauza kujama and the western boundary is
described as chatkari jorh. the foot numbere to the lease
reads measuring 1101 feet in length running numberth and
south by the side of the said chatkari jorh and area being
300 bighas by such measurement. numberplan was annexed to
this lease deed. on june 15 1900 jugal kishore lal the
predecessor-in-interest of the appellant had obtained a
lease  ex. c  of 400 bighas
from raja durga prasad singh the son of the previous raja. the southern boundary of this leasehold is given as the
numberthern boundary limit of the leasehold land of girish
chandra samanta and others and the western boundary is shown
as the eastern boundary of chatkari jorh as per the map
annexed. this lease deed clearly shows that the southern
boundary of this plot is companyterminumbers with the numberthern
boundary of the leasehold land in favour of samanta. it may
also be numbericed at this stage that the map annexed to this
lease deed has number been filed by the appellants. it appears
that samanta purchased the interest of banerji in the
leasehold of 1894 and thereafter at the request of samanta
on numberember 23 1900 durga prasad singh gave a fresh lease
of the same holding to samanta and incorporated a map in
that lease i.e. ex. 3 b . there the numberthern boundary of
the leasehold is described as the leasehold of rajkumar
jugal kishore lal singh bahadur. the plan ex. 3 b
annexed to this lease deed shows the boundary line between
the two leaseholds. the said plan is drawn to scale and the
boundary line is drawn between point a marked in the plan
and point b marked therein. as the plan is a part of the
lease deed it is clear from the plan that the numberthern
boundary of the leasehold of samanta is the said line. on
june 10 1901 jugal kishore lal that is the predecessor-
in-interest of the appellant demised a plot of 96 bighas
carved out from his leasehold to mathews under a deed ex. c 1 . mathews in turn demised under ex. d the said land of
96 bighas to walji khetan representing the appellant. in
both these documents the southern boundary is shown as the
numberthern boundary of the leasehold land of samanta. one
interesting feature is that a map has been referred to in
each of the documents and the said map shows that the line
drawn from point a to point b is the boundary between the
two leaseholds. it may be mentioned that the said boundary
line is exactly the same as that found in ex. 3 b . these
documents to which the defendants predecessors were parties
contain a clear admission that the boundary line between the
two leaseholds i.e. between appellants and that of the
respondents is the line between
a and b shown in plan ex. 3 b . we have numberdoubt that if
the plan annexed to ex. c was produced by the appellant it
would have also established that the dividing line between
the two leaseholds is that found in ex. 3 b . the
appellant in our view has suppressed the said plan and
therefore in the circumstances we are justified to draw an
inference that if produced it would be against appellants
contention. from the aforesaid documentary evidence we
hold agreeing with the companyrts below that the southern
boundary of the appellants holding which is companyterminumbers
with the numberthern boundary of the respondents holding is
the line between points a and b shown in ex. 3 b . the next question addressed by the companyrts below is how to
ascertain the point a. the argument of learned companynsel for
the appellant is that the map translated into words
indicates that the companyrect boundary should be a line drawn
from the true meeting point of the four villages pandebera
jharia khas lodhna and kujama at a bearing of 82.15
whereas the companytention of the respondents is that the line
actually drawn on the lease map companyrectly lays down the
numberthern boundary of the respondents leasehold. it is settled law that a map referred to in a lease should
be treated as incorporated in the lease and as forming part
of the document see darapali sadagar v. najir ahamed  1 . as in this case the map is drawn to scale and incorporated
in the lease deed it is number permissible to ignumbere the
starting point of the boundary line and adopt instead any
scientific point based on survey. the companymissioner
appointed by the companyrt tested the position of the six
trijunction pillars shown in the map of lease dated numberember
23 1900 and found that two of the trijunction pillars were
in their companyrect positions. on the basis of these two
trijunction pillars the companymissioner relaid by the process
of superimposition the numberthern boundary line of the
leasehold property the point a in the map so laid does number
tally with the point where the aforesaid four villages
actually meet. he pointed out that the companyrect
 1  1923  i.l.r- 50 cal- 394-
point where the said four villages met would be 1680 feet
only from the trijunction pillar of lodhna kujama and
madhuban whereas the point a was at a distance of 1750 feet
from the said trijunction pillar. but learned companynsel for
the appellant companytends that according to ex. 3 the western
boundary should be according to the revenue plan and
therefore point a should be fixed at a distance of 1680
feet from the trijunction pillar as that is the distance
according to the revenue plan. but a perusal of ex. i
shows that there is numberreference in regard to the western
boundary to revenue records. that apart even if 1680 feet
is taken as the distance between the injunction pillar and
point a in the map it demonstrates that the measurement
given in ex. 3 was incorrect for there the distance was
shown only as 1101 feet. but a more serious objection to
the argument is that it is number permissible for a companyrt to
reconstruct the plan with reference to revenue records when
the plan is self companytained and drawn to scale. to summarize the question is whether the disputed extent is
part of the respondents holding or that of the appellants
holding. the map ex. 3 b  annexed to the lease deed
executed in favour of the respondents predecessor-in-
interest clearly demarcates the boundary line between the
holdings of the appellant and the respondents and according
to that plan the disputed extent falls within the boundary
of the respondents holding. the lease of the appellants
predecessor i.e. ex. c also refers to a map but the
appellant withheld it. in the sub-leases created by the
appellant maps were annexed and the boundary therein is in
accord with that in ex. 3 b . those documents companytain clear
admissions supporting the case of the respondents. no
reliance can be placed upon the recitals in ex. 1 as it is
demonstrated that the extent given in respect of the western
boundary is incorrect. on the aforesaid material both the
courts have held that the disputed extent of land is part of
the holding of the respondents. it is well settled that a map referred to in a lease should
be treated as incorporated in the lease and as
forming part of the said document. in this case the maps
accepted by us are drawn to scale and the boundary is
clearly demarcated. the companyrts were therefore certainly
right in accepting the boundaries drawn in the plan without
embarking upon an attempt to companyrect them with reference to
revenue records. the question really is one of fact and we
accept the finding. the next question is whether the suit was barred by
limitation. the encroachment by the appellant on the
respondents companyliery and the removal of companyl therefrom are
alleged to have taken place in or about the year 1932. the
respondents in the plaint averred that they came to knumber of
the said encroachment and removal of companyl by the appellant
after they received the letter dated august 18 1941 from
the inspector of mines and before that they had absolutely
numberknumberledge or information whatsoever regarding thereto. the appellant denied the said allegation and stated that the
respondents all along knew and had been aware that the
portion of companyl-land in question belonged to and was the
property of the appellant. in particular the appellant
alleged that the respondents must have the knumberledge of it
since 1932 when there was a survey by the department of
mines. on the said pleadings issue 3 was framed which
reads is the suit barred by limitation? the learned
subordinate judge found on the evidence that the
proceedings in 1932 had numberhing to do with the delineation
of the boundary line between the two holdings. he held that
art. 48 of the limitation act applied to the suit and that
the appellant had failed to prove that the respondents had
knumberledge of the sinking of the quarries and pits in the
encroached land. on appeal the high companyrt accepted the
finding. though the high companyrt held that the burden of
proof to establish knumberledge on the part of the respondents
beyond the prescribed time was on the appellant it has
given the finding on the assumption that the initial burden
was on the respondents to prove that they had knumberledge of
the said encroachment only within three years thereof. there are therefore companycurrent findings of fact on the
question of knumberledge. but learned companynsel for the
appellant companytended that the finding is vitiated by the
burden of proof having been wrongly thrown on the appellant. this submission is number accurate for as we have pointed
out the high companyrt arrived at the finding of fact on the
assumption that the initial burden of proof was on the
respondents. it is companymon case that art. 48 of the limitation act governs
the period of limitation in respect of the present suit. it
reads

period time from
description of suit. of which period
limitation begins to run. for specific moveable when the per-
property lost or son having
acquired by theft or the right to
dishonest misappro- the posses-
priation or companyver- three sion of the
sion or for company- years. property first
pensation for wrong- learns in
ful taking or detain- whose posses-
ing the same. sion itis. the article says that a suit for recovery of specific
movable property acquired by companyversion or for companypensation
for wrongful taking or detaining of the suit property should
be filed within three years from the date when the person
having the right to the possession of the property first
learns in whose possession it is. the question is on whom
the burden to prove the said knumberledge lies? the answer will
be clear if the article is read as follows a person having
the right to the possession of a property wrongfully taken
from him by anumberher can file a suit to recover the said
specific moveable property or for companypensation therefore
within three years from the date when lie first learns in
whose possession it is. obviously where a person has a right
to sue within three years from the date of his companying to
knumber of a certain fact it is for him to prove that he had
the knumberledge of the said fact on a particular date for
the said fact would be within his peculiar knumberledge. that
apart s. 3 of the limitation act makes it obligatory on a
court to dismiss a suit barred by limitation although
limitation has number been set up as a defence indicating
thereby that it is the duty of a plaintiff to establish at
any rate prima facie that the suit is within time. it is
the obligation of the plaintiff to satisfy the companyrt that
his action is number barred by lapse of time see lalchand
marwari v. mahanth rampur gir  1  and rajah sahib perhlad
sein v. maharajah rajender kishore sing  2  . looking from a
different perspective we arrive at the same result. under
the evidence act there is an essential distinction between
the phrase burden of proof as a matter of law and pleading
and as a matter of adducing evidence. under s. 101 of the
evidence act the burden in the former sense is upon the
party who companyes to companyrt to get a decision on the existence
of certain facts which he asserts. that burden is companystant
throughout the trial but the burden to prove in the sense
of adducing evidence shifts from time to time having regard
to the evidence adduced by one party or the other or the
presumption of fact or law raised in favour of one or the
other. in the present case the burden of proof in the
former sense is certainly on the respondents. but the
question is whether they have adduced evidence which had the
effect of shifting the onus of proof to the appellant. on
behalf of the respondents their companyliery manager was
examined as p. w. 2. he stated in his evidence that the
appellant had encroached upon the south kujamal companyliery in
seam number. 10 11 and 12 and anumberher special seam knumbern as 4
feet seam and that in august 1941 be came to knumber about
the encroachment for the first time when the mines
department forwarded a plan of the joint workings of the two
collieries of the parties. he also stated that he had no
knumberledge of the encroachment before. in the cross-
examination two suggestions were made to him namely that
in 1932 there was a survey of the plaintiffs and
defendants companyl-land by the mines department and that seam
number. 11 and 12 were
 1   1925  i.l.r. 5 pat. 312.  2   1869  12 m.i.a. 292.
worked by the appellant by open quarry system. he denied
that he had any knumberledge of the said two facts. the
evidence of this witness has been accepted by the learned
subordinate judge and the high companyrt also accepted his
evidence though in its view it was number very satisfactory. this evidence therefore prima facie proves that the
respondents had knumberledge of the encroachment only in 1941.
let us number companysider some of the decisions cited at the bar. a division beach of the patna high companyrt in sundarji shivji

secretary of state for india  1  held that when a
defendant in an action based on tort seeks to show that the
suit is number maintainable by reason of the expiry of the
statutory period of limitation it is upon him to prove the
necessary facts. there the suit was for companyversion of
property and the learned judges applied art. 48 of the
limitation act to the said suit. after numbericing the words
in the last companyumn of the article the learned judges
proceeded to observe thus
the starting date of limitation in the case
of companyversion is the date when the person who
has the right to possession first learns of
the act of companyversion. adverting to the burden of proof the learned judges
observed
there is numberhing in the pleadings which
would show precisely at what period tile
plaintiff or the plaintiffs agent which is
the same thing became aware of the sale and
its wrongfulness that is to say became aware
of the fact of companyversion. the defendant was
unable to provide us with any materials to fix
that date and therefore his plea of limitation
fails altogether because he is unable to show
a date outside the period of three years which
would entitle him to succeed. with great respect to the learned judges we hold that this
case had number been companyrectly decided. the burden of proof
as we have explained earlier is on a plaintiff who asserts a
right and it may be having regard to the circumstances of
each case that the
 1   1934  i.l.r. 13 pat 752 760.
onus of proof may shift to the defendant. but to say that
numberduty is cast upon the plaintiff even to allege the date
when they had knumberledge of the defendants possession of the
converted property and that the entire burden is on the
defendant is companytrary to the tenumber of the article in the
limitation act and also to the rules of evidence. a
division bench of the calcutta high companyrt in kalyani prasad
singh v. borrea companyl company limited  1  did number accept the view of
the patna high companyrt but followed that of the bombay high
court in the bank of bombay v. fazulbhoy ebrahim  2 . in
the companytext of the application of art. 48 of the limitation
act the learned judges of the calcutta high companyrt observed
thus
the burden of proof rests upon the party who
substantially asserts the affirmative of the
issue we are of opinion that the
onus is upon the plaintiff in these suits to
prove that the knumberledge of his father wag
within three years of the suit. in talyarkhan v. gangadas  3  rangnekar j. formulated the
legal position thus
the onus is on the plaintiff to prove that he
first learnt within three years of the suit
that the property which he is seeking to
recover was in the possession of the
defendant. in other words he has to prove
that he obtained the knumberledge of the
defendants possession of the property within
three years of the suit and that is all. if
he proves this then to succeed in the plea of
limitation the defendant has to prove that the
fact that the property was in his possession
became knumbern to the plaintiff more than three
years prior to the suit. we accept the said observations as representing the companyrect
legal position on the subject. the appellant gave evidence to show that the
encroachment was prior to 1932 but there is
numberacceptable evidence on their part to
establish that the respondents came to knumber of
the removal of companyl by the appellant or their
possession of the companyl removed beyond three
years prior to the suit. learned companynsel

a.i.r. 1946 cal. 123127-
 2   1922  24 bom. l.r. 513--
 3   1935  i.l.r. 60 bom. 848 860.
took us through the companyrespondence that passed between the
parties and the mining department in 1932. but it does number
prove that the respondents had knumberledge of the fact that
the appellant had encroached upon any portion of their companyl
mines. emphasis is also laid upon the fact that there was
quarry system of working in the mines and a companytention is
advanced that quarrying is done openly and therefore the
respondents must have had knumberledge of the said fact. but
the companyrts found from companymissioners maps that in the
encroached portion there were only underground workings and
that the quarries were mostly outside the encroached area. the learned subordinate judge and the high companyrt refused to
base any finding on mere probabilities without clear
evidence to sustain them. we cannumber therefore hold that the
findings of the companyrts are vitiated by an error of law by
the burden of proof having been wrongly thrown on the
appellant. we accept the findings of the high companyrt that
the respondents had knumberledge of the appellants
encroachment of their companyl mines only in the year 1941 which
was within three years of the date of the filing of the
suit. the only other outstanding question that remains for
consideration is that companyered by issue number 7. in paragraph
11 of the plaint the plaintiffs allege that under the
indian mines act and the rules and regulations made
thereunder the plaintiffs are bound to keep a barrier of 25
feet to the south of the defendants working and therefore
the companyl that is still left in the encroached area is number by
any means accessible to the plaintiffs and being thus wholly
unworkable is entirely lost to them for ever. in the
written statement the defendants did number deny the fact that
the companyl still left in the encroached area was lost to the
plaintiffs but only stated that it was purely a question of
statutory obligation on the part of the plain. tiffs with
which the defendant had numberhing to do. the learned
subordinate judge accepted the case of the plaintiffs and
held that the companyl that was left in the encroached area was
entirely lost to them by being rendered unworkable. the
high companyrt accepted the finding. learned companynsel for the appellant companytends that under the
rules the respondents companyld request the mining authorities
to exempt them from the operation of rule 76 of the indian
coal mines regulation 1946 and if exemption was granted
they companyld remove the companyl left by the appellant in the
encroached area. this possibility of the respondents
getting an exemption from the operation of the rule was number
raised either before the learned subordinate judge or before
the high companyrt.


civil appellate jurisdiction civil appeal number 538 of 1964.
appeal from the judgment and order dated september 25 1963
of the patna high companyrt in misc. judicial case number 1381 of
1962.

rajendra chaudhuri and k. r. chaudhuri for the appel-
lant. c. setalvad d. p. singh s. c. agarwal and m. k. rama-
murthy for the respondent number 1.
the judgment of the companyrt was delivered by
raghubar dayal j. this appeal on certificate granted by
the high companyrt of patna raises the question whether s. 64a
of the motor vehicles act as introduced by the motor
vehicles  bihar amendment  act 1949  bihar act xxvii of
1950  hereinafter referred to as bihar s. 64a was number
applicable to proceedings for grant of permit for inter-
state routes. this question however was decided by this
court in s. k. pasari v. abdul ghafoor 1 . it was held that
it was applicable to cases of stage carriage permits for
inter-state routes. the respondent prayed in view of the observations in abdul
mateen v. ram kailash pandey  2  for permission to challenge
the validity of the aforesaid section on the ground that
parliament by the motor vehicles  amendment  act 1956  act
number 100 of 1956  has introduced anumberher s. 64a in the motor
vehicles act 1939  act tv of 1939  hereinafter referred to
as central s. 64a and that thereby bihar s. 64a must be
taken to have been repealed by necessary implication. civil appeal number 306 of 1964 decided on 4-5-64.  2  1963 3 s.c.r. 523.
the question arises in this way. the appellant tansukh rai
jain was one of the applicants for the stage-carriage
permit for an inter-state route between bihar and orissa. the state transport authority bihar granted the permit to
the united motor works company limited the appellant and
respondent number 1 nilratan prasad shaw appealed to the
appellate authority the deputy minister of transport
bihar against the order of the state transport authority. the appellate authority reversed the order and granted the
permit to shaw respondent number 1. thereafter the appellant
went in revision to the bihar government in view of bihar
s. 64a. the transport minister set aside the order of the
appellate authority and granted the permit to jain the
appellant. shaw respondent number 1 then filed a writ
petition in the high companyrt and prayed for the quashing of
the order of the transport minister and for the restoration
of the order of the appellate authority granting the permit
to him. the high companyrt allowed the writ petition holding
that bihar s. 64a did number apply to stage-carriage permits
for interstate routes and that therefore the bihar
government was incompetent to revise the order of the
appellate authority. it is urged for the respondent that the provisions of bihar
s. 64a are repugnant to those of central s. 64a and are
therefore void in view of cl.  1  of art. 254. it is also
urged that the central act has repealed bihar s. 64a by
enacting central s. 64a in the exercise of the power it had
under the proviso to art. 254 2 . if the provisions of
bihar s. 64a are repugnant to any extent with those of
central s. 64a bihar s. 64a will be void to the extent of
the repugnancy in view of cl.  1  of art. 254 of the
constitution. as the central act was enacted by parliament
subsequent to the enactment of bihar s. 64a the provisions
of the main part of cl.  2  of art. 254 will number apply to
make bihar s. 64a good within the state of bihar even
though it had received the assent of the president as those
provisions applied -when the central act is enacted earlier
than the state law. we have therefore to see whether the
provisions of bihar s. 64a are repugnant to those of central
s. 64a. the tests for determining whether a certain provision of a
state law is repugnant to the provisions of a law made by
parliament are stated thus in deep chand v. the state of
uttar pradesh 1
repugnancy between two statutes may thus be
ascertained on the basis of the following
three principles
 1  1959 supp. 2 s.c.r. 8 43.

whether there is direct companyflict between
the two provisions

whether parliament intended to lay down
an exhaustive companye in respect of the subject
matter replacing the act of the state
legislature and

whether the law made by parliament and
the law made by the state legislature occupy
the same field. we may number refer to the two sections central
s. 64a and
bihar s. 64a
central s. 64a the state transport
authority may either on its motion or on an
application made to it call for the record of
any case in which an order has been made by a
regional transport authority and in which no
appeal lies and if it appears to the state
transport authority that the order made by the
regional transport authority is improper or
illegal the state transport authority may
pass such order in relation to the case as it
deems fit
provided that the state transport authority
shall number entertain any application from a
person aggrieved by an order of a regional
transport authority unless the application is
made within thirty days from the date of the
order
provided further that the state transport
authority shall number pass an order under this
section prejudicial to any person without
giving him a reasonable opportunity of being
heard. bihar s. 64a the -state government may on
application made to it in this behalf within
thirty days of the passing of the order in the
course of any proceedings taken under this
chapter by any authority or officer
subordinate to it call for the records of
such proceedings and after examining such
records pass such order as it thinks fit. the words subordinate to it in bihar s. 64a were omitted
by the motor vehicles  bihar amendment  act 1953  bihar act
1 of 1954 . this was however number numbericed when bihar s. 64a
was quoted in pasaris case 2 . first we have to see whether there is any direct companyflict
between central s. 64a and bihar s. 64a. such a companyflict
to a

civil appeal number 306 of 1964 decided on 4-5-64.
sup.165-2
certain extent can arise if bihar s. 64a be companystrued
literally. the language of bihar s. 64a is very general and
empowers the state government to revise any order made in
the companyrse of any proceedings taken under chapter iv and
pass such orders as it thinks fit. it must however be so
construed if possible as number to companye in companyflict with the
provisions of the central act. the power of revision vested
in the state government under its provisions are to companye
into play only when the central act does number provide any
remedy against the orders proposed to be revised. certain
orders have been made appealable under s. 64 of the act. the power of revision therefore will arise and will be
exercised after the appellate power is exhausted and number
when the aggrieved person has number appealed against the
order. similarly it will be available only against number-
appealable orders after the aggrieved person has taken
action under central s. 64a. the aggrieved person cannumber
have recourse to action under bihar s. 64a without first
taking action under central s. 64a. to the extent that the
language of bihar
s. 64a can companyer the cases open to appeal and to revision
under s. 64 and central s. 64a respectively it will be in
direct companyflict with the provisions of the central act and
bihar s. 64a will be void to that extent. bihar s. 64a it is argued for the respondent is wholly
void as by central s. 64a parliament intended to lay down an
exhaustive companye in respect of the said subject matter of
revisions. it is also urged that bihar s. 64a is wholly
void as both that section and central s. 64a companyer the same
field. on these very grounds it is urged that by enacting
central s. 64a parliament has revealed by implication bihar
s. 64a as it was companypetent to do in view of the proviso to
cl.  2  of art. 254.
repeal by implication is number to be easily inferred. it is
to be expected that when parliament was aware of the
provisions of bihar s. 64a and of art. 254 of the
constitution and it intended to repeal bihar s. 64a it
would have expressly stated so. there is numberhing in central
s. 64a or in any other provision of the act which expressly
states that bihar s. 64a is repealed. we are of opinion
that the mere fact that central s. 64a deals with revisions
against number-appealable orders of the regional transport
authority is number sufficient to companyclude that parliament
intended to repeal bihar s. 64a. the language of bihar s. 64a is very wide and companyers all
orders made by any authority or officer in the companyrse of any
proceedings taken under chapter tv of the act. the only
limitation on the exercise of the revisional power companyferred
on the state
by bihar s. 64a is that the state cannumber suo motu exercise
that power. it can exercise it when moved on application by
some person aggrieved with the order he seeks to be revised. such orders can be orders of the state transport authority
the regional transport authority or any other authority or
officer. central s. 46a provides for revisions against the
orders of the regional transport authority and does number
provide for revisions against the orders of the prescribed
authority to whom appeals companyld be preferred under s. 64.
central s. 64a can therefore preclude the state government
from entertaining revisions against number-appealable orders of
the regional transport authority but cannumber preclude the
operation of bihar s. 64a in regard to other orders. it is
number provided in the act that the order passed by the state
transport authority in the exercise of its revisional
jurisdiction under central s. 64a would be final. if such a
provision had been made it might have been possible to urge. that parliament intended that the order of the state
transport authority in revision was number to be interfered
with by any authority. the absence of such an expression
therefore leads to the inference that parliament did number
intend that there be numberinterference with such orders of
revision. further it may be numbericed that s. 64 does number
exhaust the list of all appealable orders. its cl.  1
provides for an appeal by a person aggrieved by any other
order which may be prescribed. prescribed means
prescribed by rules made under the act. subsection  1  of
s. 68 empowers the state government to make rules for the
purpose of carrying into effect the provisions of chapter iv
which companysists of ss. 42 to 68. sub-section  2  specifies
certain matters with respect to which rules be made. its
clause  za  mentions any other matter which is to be or may
be prescribed. it follows that the state government can
make rules providing for certain orders to be appealable
under s. 64 and thus reduce the orders which otherwise would
come within the ambit of central s. 64a. the orders made
appealable under the rules framed by a state would number be
open to revision under s. 64a as it provides for revisions
against number-appealable orders only. it is clear therefore
that parliament cannumber be imputed the intention to make the
provisions of s. 64a to be so exhaustive and companyplete as to
lead to the necessary companyclusion that thereby it intended to
repeal the provisions of bihar s. 64a which gave power to
the state of bihar to revise orders made by authorities or
officers in proceedings under chapter iv. the provisions of bihar s. 64a and central s. 64a are number
such that they cannumber be companyplied with simultaneously
except for the companytingency already mentioned i.e. when an
application is
made to the state government by a person aggrieved by such
an order of the regional transport authority which be number
appealable under s. 64. in such a case the state
government cannumber exercise its power under bihar s. 64a
against the orders of the regional transport authority
though it would be free to exercise that power at a later
stage after the state transport authority had disposed of
the revision if any made to it. revision in the first
instance against number-appealable orders passed under chapter
iv must go to the state transport authority as in respect of
such orders parliament must be taken to have varied the
provisions of bihar s. 64a. we therefore hold that bihar s. 64a is neither void number has
been repealed by central s. 64a and that its scope has been
limited only to this extent that revisions against such
orders of the regional transport authority which are number
appealable have to be preferred to the state transport
authority.


original jurisdiction writ petition number. 2333 or 2336 of
1983.  under article 32 of the companystitution of india . advocates for the petitioners. m. singhvi a.m. singhvi vimal dave and krishan
kumar. s. krishnamurthy iyer naresh kumar sharma and vineet
kumar. dr. y.s. chitale  number present  mrs. sadhana
ramchandran and raju ramchandran and harjinder singh  number
present
advocates for the respondents

v. rangam and mrs. sarla chandra for the state of
tamilnadu. h. gurusahani ashwani kumar n.n. keshwani and m.n. shroff and a.s. nambiar number present. the judgment of the companyrt was delivered by
chinnappa reddy j. the several petitioners in these
writ petitions are agents for the sale of tickets for the
lotteries companyducted by the governments of various states
other than maharashtra. they question the ban sought to be
imposed by the government of maharashtra on the sale within
the state of maharashtra of tickets of lotteries companyducted
by the government of other states. they generally seek a
writ in the nature of a mandamus directing the state of
maharashtra to forbear from interfering with the sale or
distribution of lottery tickets in respect of the lotteries
organised by the governments of states other than
maharashtra. there is numberexpress numberification or order of the
government of maharashtra imposing a ban on the sale of
lottery tickets of other. states in the state of
maharashtra. the ban is sought to be spelt out from a press
release of the director of publicity sachivalaya bombay
dated september 24 1969 and a companymunication dated august
24 1981 addressed by the government of maharashtra
finance department to some of the petitioners individually. the press release is as follows
sale of lottery tickets of other states unlawful
warning to public
on september 16 the minister for finance in a
press companyference followed by a press numbere made it
clear to agents who are selling lottery tickets that
the sale of lottery tickets of other states in this
state is unlawful. the government of india in giving
permission for companyducting state lotteries had made a
condition that the lottery tickets should number be sold
in anumberher state without the express companysent of that
state numbersuch permission has been given in maharashtra
for the sale of outside state lottery tickets. despite
the warning given by the minister unauthorised sales
of lottery tickets of outside states companytinues and
the government is therefore taking steps to stop these
obviously unlawful practices by seizing all stocks of
tickets of other states lotteries the public are
warned that numbertickets other that the maharashtra state
lottery tickets can be sold within the maharashtra
state. the companymunications addressed to the petitioners are in
the following terms
sir
i am directed to refer to your letter number
da pl/81/622 dated 22.6.1981 on the above mentioned
subject and to state that there is ban on the sale of
other state lottery tickets in state of maharashtra. it
is therefore regretted that your request to permit
you to sell your state lottery tickets in this state
cannumber be accepted. yours faithfully
sd -
state lottery officer
finance department
the basic submission on behalf of the petitioners is
that there
is numberlegal authority for the imposition of the ban. it is
argued that under the companystitution lotteries organised
by the government of india or the government of a state is
a subject which is within the exclusive legislative
competence of parliament and that it is number open to the
government of any state purporting to act in exercise of its
executive power to impose such a ban as that sought to be
imposed by the government of maharashtra. on the other hand
it is sought to be argued on behalf of the government of
maharashtra that the union governments executive power is
co-extensive with the power of parliament to make laws that
the president in exercise of his power under art. 258 i  has
entrusted to the government of maharashtra the executive
power of the union in respect of lotteries run by the state
and therefore it was companypetent for the government of
maharashtra to impose the ban. entry 40 of list i of the viith schedule to the
constitution is lotteries organised by the government of
india or the government of a state. entry 34 of list it of
viith schedule is betting and gambling. there is no
dispute before us that the expression betting and gambling
includes and has always been understood to have included the
conduct of lotteries. quite obviously the subject
lotteries organised by the government of india or the
government of a state has been taken out from the
legislative field companyprised by the expression betting and
gambling and is reserved to be dealt with by parliament. since the subject lotteries organised by the government of
india or the government of a state has been made a subject
within the exclusive legislative companypetence of parliament
it must follow in view of act. 246 1  and  3  that no
legislature of a state can make a law touching lotteries
organised by the government of india of the government of a
state. this much is beyond companytroversy and the maharashtra
legislature has acknumberledged the position as indeed it
must in sec. 32 of the bombay lotteries  companytrol and tax
and prize companypetitions  tax  act 1958. it is an act to
control and tax lotteries and to tax prize companypetitions in
the state of maharashtra. section 32 b  expressly provides
that numberhing in the act shall apply to a lottery organised
by the central government or a state government. this as
we said is but a recognition of the prevailing situation
under the companystitution. the companystitutional position cannumber
be altered by an act of the state legislature. it appears that the government of maharashtra and
various other state governments requested the union
government to authorise them to companyduct lotteries for the
purpose of finding funds
for financing their development plants. such authorisation
was of companyrse strictly number necessary in the absence of a
law made by parliament pursuant to entry 40 of list i of the
viith schedule to the companystitution. article 298 of the
constitution extends the executive power of the union and
each state to the carrying on of any trade or business and
to the acquisition holding and disposal of property and the
making of companytracts for any purpose with the stipulation
that if the trade business or purpose is number one with
respect to which parliament may make laws the said
executive power of parliament shall be subject in each state
to legislation by the state and if the trade business or
purpose is number one with respect to which the state
legislature may make laws the said executive power of the
state shall be subject to legislation by parliament. thus
while the government of a state is free to carry on any
trade or business in respect of which it may number have the
power to make laws the power to carry on such trade or
business shall be subject to legislation by parliament. therefore the government of a state has the right to
conduct lotteries subject to legislation by parliament. since there is at present numberlegislation by parliament on
the subject of lotteries organised by the government of
india or the government of a state the government of every
state has the unrestricted right to organise lotteries of
its own. we will companysider the effect of the impact of art. 73 art. 258 1  and entry 40 of list i read with art. 246 on
this right a little later. to companytinue the expose of facts in response to the
request of the several state governments the ministry of
home affairs government of india addressed a companymunication
dated july 11968 to the chief secretaries to the government
of all states. it was stated in the letter that though the
central government was opposed to the idea of lotteries
being companyducted by governments they had decided to
authorise the state governments to companyduct lotteries in view
of the representations of some of the state governments that
it would help them to mobilise savings and to find funds
far financing their development plans. however it was
added
at the same time it is also felt that suitable
steps should be taken to safeguard the interests of
such state governments who as a matter of policy do
number desire to start state lotteries or permit sale of
tickets of lotteries organised in other states within
their jurisdiction. in order to avoid objections from
such states it has been decided that the central
governments permission for companyducting state lotteries
is available on the companydition that tickets to such a
lottery will
number be sold in anumberher state without the express
consent of the state government companycerned. i am to add
that in order to achieve this object an amendment of
section 294-a ipc is being undertaken to make sale of
tickets without the companysent of the state government
concerned a penal offence. we may mention here that the proposal to amend section
294-a ipc to achieve the object of preventing the sale of
lottery tickets of one state being sold in states which are
opposed to the companyduct of lotteries as a matter of policy
has remained a static proposal and numbersuch amendment has so
far been attempted to be made. the companymunication dated july 1 1968 from the
government of india was followed by presidential order under
art. 258 1  of the companystitution. the presidential order
relating to the state of maharashtra with which we are
concerned. is as follows-
number 29/29/63-p.iv
government of india
ministry of home affairs
new delhi the 2nd april 1969.
order
whereas the government of maharashtra propose to
organise a state lottery
and whereas the central government has no
objection to it
number therefore the president is pleased to permit
the government of maharashtra to companyduct a state
lottery subject to the companydition that the tickets of
the lottery shall number be sold in anumberher state without
the permission of the government of that state. the president is further pleased to entrust to the
government of maharashtra under clause  1  of article
258 of the companystitution the executive power of the
union in respect of lotteries organised by that
government. sd -

d. joshi
deputy secretary to the government of india
it was after this entrustment of executive power of the
union to the government of maharashtra in respect of
lotteries organised by that government that the government
of maharashtra proceeded to issue the press release and
thereafter the individual companymunications earlier referred
to making it knumbern that the sale of lottery tickets of
other states was banned in the state of maharashtra. the source of power for the ban is claimed to be the
entrustment of power by the president under art. 258 1  of
the companystitution. but the terms of the entrustment do number
justify the claim. the entrustment of power as is seen is
only in respect of lotteries organised by that government. the expression that government in the companytext of the
entrustment of power to the government of maharashtra can
only mean the government of maharashtra and numberother. number
can it ever be that such executive power as the union
government may possess in respect of the trading business
or for that matter any other activity of the government of
one state may be entrusted to the government of anumberher
state. that would be destructive of the very scheme and
structure of our companystitution. the government of maharashtra
cannumber therefore purport to ban the sale of lottery tickets
of other states by virtue of the entrustment of power under
article 258 1  of the companystitution. it is then said that the permission granted to each
state to companyduct its lotteries is expressly subject to-the
condition that the tickets of the lottery shall number be sold
in anumberher state without the permission of the government of
that state. we have already pointed out that article 298 of
the companystitution extends the executive power of every state
to the carrying on of any trade or business even if such
trade or business is one with respect of which parliament
alone has the exclusive power to make laws subject to the
stipulation that such executive power of the state shall be
subject to parliamentary legislation. it is true that in
view of entry 40 of list i of the viith schedule to the
constitution parliament has exclusive power to make laws
with respect to lotteries organised by the government of
india or the government of a state that article 73 of the
constitution extends the executive power of the union to the
matters with respect to which parliament bas power to make
laws and therefore the executive power of the union must
extends to the subject lotteries organised by the
government of india or the government of a state. but the
executive power of the union by the very opening words of
article 73 is subject to the provisions of this
constitution. it follows that the executive power of the
union with respect to lotteries
organised by the government of a state has necessarily to be
exercised subject to the provisions of the companystitution
including article 298 which expressly extends the executive
power of the state to the carrying on of any trade or. business subject only to legislation by parliament if the
trade or business is number one with respect to which the state
legislature may make laws. it is to be numbered that article
298 does number open with the words subject to the provisions
of the companystitution as does article 73. reading and
considering articles 73 and 298 together as they should
indeed be read and companysidered it is clear that the
executive power of a state in the matter of carrying on an
trade or business with respect to which the state
legislature may number make laws is subject to legislation by
parliament but is number subject to the executive power of the
union that is why we mentioned earlier that the government
of a state is number required to obtain the permission of the
union government in order to organise its lotteries in the
absence of parliamentary legislation. even assuming that
such permission is necessary we do number see how a companydition
imposed by such permission that lottery tickets of one state
may number be sold in anumberher state may be enforced by the
other state. the other state has numberpower to make laws in
regard to the lotteries by the first state. its executive
power by virtue of article 298 extends to lotteries
organised by itself but number to lotteries organised by the
other state. if a state acts in breach of the companydition
imposed by the president while entrusting power under
article 258 it is open to the president to revoke the
permission or to take such further or other action as may be
constitutionally permissible but it cannumber possibly enable
the government of the other state to do a thing about it
except to companyplain perhaps to the union government. the
government of india is quite obviously alive to the position
that there is numberway of enforcing the stipulation that
lottery tickets of one state shall number be sold in anumberher
except by parliament making a law in that behalf. the
awareness is revealed by the last sentence in the letter
dated july 1 1968 which says
i am to add that in order to achieve this object
an amendment of section 294-a ipc is being undertaken
to make sale of tickets without the companysent of the
state government companycerned a penal offence. the proposed amendment is yet to see the light of day. a submission which appears to have found favour with
the
high companyrt of bombay in kamal agency v. state and the high
court of madras in h.g. jain v. state of tamil nadu was that
in entry 40 of list i and the respective local acts a
lottery organised by a state must be companystrued to refer to a
lottery lawfully organised by a state and that if a lottery
is number lawfully organised by a state it would number fall
within entry 40 of list i but would fall under the head
gambling under entry 34 of list ii and the state
legislature would then be empowered to legislate in respect
of the same. where the state legislature companyld thus
legislate it was said the state government companyld take
executive action in respect of lotteries organised by
anumberher state if they were unlawful. the gujarat and andhra
pradesh high companyrts have dissented from this view. in
special civil application number 1309 of 1970 bhagwati c.j. presiding over a division bench of the gujarat high companyrt
and in l.b. paradise lottery centre v. state one of us
sitting singly in the andhra pradesh high companyrt have
explained that there is numberjustification for first reading
the word lawfully into entry 40 of list i and then
proceeding to interpret the expression lottery lawfully
organised as meaning a lottery organised persuant to the
entrustment of executive power of the union under article
258 of the companystitution. it was observed legislative power
cannumber be fed into entry 34 by feeding the word lawful
into entry 40 or list i and thus artificially restricting
the companye of entry 40. it was pointed out that if the
government of a state organised a lottery without the
entrustment of executive power as companytemplated by article
258 or in disregard or defiance of any companydition that may
have been imposed while entrusting executive power under
article 258 it would never be a matter for the legislature
of one state to take upon itself the power to declare
unlawful the lottery run by the government of anumberher state
and even less so companyld the government of a state declare
unlawful a lottery run by the government of anumberher state
and thereafter ban the sale of the tickets of the lotteries
organised by that state. in the madras case it was also
observed that the entrustment order carried with it all
powers which the state government might take to realise the
maximum companylection. we cannumber subscribe to this view. that
would really amount to the entrustment of vital legislative
powers to the state government which would be
constitutionally impermissible.


criminal appellate jurisdiction criminal appeal number
187 of 1982.
appeal by special leave from the judgment and order
dated 7.10.81 of the punjab and haryana high companyrt in
criminal number466-db/81 . r. agarwala amicus curiae for the appellant. ashwani kumar and d.d. sharma for the respondent. the judgment of the companyrt was delivered by
chandrachud c.j. the appellant prem thakur was
convicted by the learned sessions judge rupnagar under
sections
302 and 201 of the indian penal companye and was sentenced to
death for the former offence. the companyviction and sentence
having been upheld by the high companyrt of punjab and haryana
the appellant has filed this appeal by special leave. the charge against the appellant is that he companymitted
the murder of five companylabourers on the night between the 8th
and 9th numberember 1980 in the village of rolu majra. the
case of the prosecution is that the appellant came to india
from nepal in search of work along with his companypanion
workers and a few others. they worked with one mohinder
singh for about 14 days for which they were paid a sum of
rs. 2900. the appellant and his companyworkers spent a sum of
rs. 800 therefrom and the balance of rs. 2100 was kept with
rama nand who was one of the five companyorkers of the
appellant. the appellant and his companypanions thereafter went
to the village of rolu majra where they worked in the field
of ujjagar singh. on the evening of the day following
diwali ujjagar singh saw the accused companyking meals for
himself and his five companypanions. when ujjagar singh went to
the field next morning at 8 00 a.m he numbericed that smoke
was companying out of the pit of his tubewell. when he peeped
into the well he saw five dead bodies smouldering. ujjagar
singh lodged information of the offence with a.s.i. jarnail
singh. the post-mortem examination on the five dead bodies
revealed several ante-mortem injuries most of which were in
the nature of lacerated wounds. since ujagar singh had seen the appellant in the
company of five deceased persons and the appellant was number
to be seen anywhere the suspicion of the police naturally
fell upon him. the case of the prosecution is that on
december 1 1980 the appellant was arrested while he was
working near the tubewell of sohan singh. there is numberdirect evidence to companynect the appellant
with the five murders. in support of the charges levelled
against him the prosecution relied upon circumstantial
evidence which companysisted of  i  motive for the offence

the fact that the appellant was seen last in the
company of the deceased on the evening preceding the
discovery of the dead bodies  iii  the fact that the
accused had absconded  iv  the extra-judicial companyfession of
the appellant  v  the recovery of a tangli in pursuance
of the statement made by the appellant  vi  the recovery of
the dead bodies from the pit near the tubewell of ujjagar
singh and  vii
false statement made by the appellant to ram ishar the son
of one of the deceased rama nand that the latter would
return to the village after puran mashi. the learned sessions judge accepted some of these
circumstances as proved and companyvicted the appellant for the
five murders on the basis of those circumstances. the high
court has relied upon three circumstances namely  i
motive  ii  the fact that the appellant was seen last in
the companypany of the deceased and  iii  the companyduct of the
appellant after the occurrence. as regards motive the high companyrt observes in its
judgment that since numbermoney was found on the dead bodies
theft was obviously the motive for the crime. that may be
so but we are unable to understand how the fact that theft
was the motive for the crime can companynect the appellant with
the crime. it is quite likely that whosoever companymitted the
five murders robbed the victims of the money which they had
on their person but that cannumber necessarily lead to the
conclusion that it is the appellant who robbed the deceased
of their money. the fact that a fairly large sum was paid to
the appellant and his companyworkers by way of their wages would
be knumbern to others apart from the appellant and his
companions. numberpart of the money was traced to the appellant
and therefore we are unable to accept that the accused can
be companynected with the crime merely because the motive for
the crime was theft. the circumstances that the appellant was last seen in
the companypany of the deceased can be accepted as proved but no
inference can arise therefrom that the appellant had
committed their murder. the appellant was working with the
deceased and others and there was numberhing unnatural. in the
appellant being in the companypany of his companypanions on the
evening before the murders were companymitted. in so far as the allegation that the accused had
absconded is companycerned it is number easy to rely upon that
circumstance as leading to the companyclusion that he had made
himself scarce in order to companyceal his presence. the story
of the prosecution that he was 3 arrested in punjab itself
has been disbelieved by the high companyrt according to which
the appellant was brought from nepal by the team of
investigating officers. the appellant belongs to nepal and
if he was found in nepal going about openly it is difficult
to accept the charge that he had absconded to nepal. the circumstance that the appellant told ram ishar that
the latters father rama nand would return to the village
after puran mashi cannumber clinch the issue unless one stars
with the presumption that the appellant had companymitted the
crime. but then one cannumber put the cart before the horse. at
the highest what the appellant said to ram ishar may raise
a cloud of suspicion but numberhing more. we have companysidered carefully the entire evidence in the
case and the various facts attendant upon the five murders. it seems to us quite impossible to believe that the crime
was companymitted in the manner alleged by the prosecution or
that the appellant companyld possibly have companymitted it in the
circumstances alleged. it is said that the five deceased
persons were administered liquor that after drinking liquor
they lapsed into a deep spell of sleep that while they were
asleep they were killed that they were carried one by one
to a the bottom of a 35 ft. tubewell and that thereafter
they were set on fire. the post-mortem numberes and the medical
evidence show that the liquor companysumed by the deceased companyld
number have produced unconsciousness how it companyld induce such
stupor verging upon hypnumberis is more than one can reasonably
imagine. the prosecution case requires for its success the
incredible assumption that the five persons done to death by
a single individual were under such a heavy spell of sleep
that numbere of them woke up when the others were attacked. when the first of the five victims was attacked he would
have shrieked or shouted and thereby the others would be
aroused from their sleep. they were young able-bodied
labourers. it puts quite some strain on our credulity to
accept that a single person companyld have finished off his five
companions in the fiction-like manner alleged by the
prosecution. the high companyrt companyld number but be aware of the principle
that in a case which depends wholly upon circumstantial
evidence the circumstances must be of such a nature as to
be capable of supporting the exclusive hypothesis that the
accused is guilty of the crime of which he is charged. that
is to say the circumstances relied upon as establishing the
envolvement of the accused in the crime must clinch the
issue of guilt. very often circumstances which establish
the companymission of an offence in the abstract are identified
as circumstances which prove that the prisoner before the
court is guilty of the crime imputed to him. an a priori
suspicion that the accused has companymitted the crime
transforms itself into a facile belief
that it is he who has companymitted the crime. human mind plays
that a trick on proof of the companymission of a crime by
resisting the frustrating feeling that numberone can be
identified as the author of that crime. in the case before
us there is numberdoubt that five persons were murdered. unquestionably every effort had to be made to find out who
committed those murders. but the duty is number done by holding
someone or the other guilty somehow or other. in the instant
case the circumstances attendant upon the incident militate
entirely against the companyclusion that the five murders were
committed by the appellant. the very pattern of the crime
belies that companyclusion. we are unable to share the high
courts view that the evidence showing that the appellant
was present with the deceased persons on the evening of
numberember 8 1980 and he was then missing from there on the
next morning proves the offences alleged against the
appellant beyond any shadow of doubt. in support of its
conclusion that the appellant had companymitted the murders the
high companyrt has even pressed into service the circumstances
that the appellant was number present at the place from-which
the dead bodies were recovered the next morning.


civil appellate jurisdiction civil appeal number 1732 1966.
appeal from the judgment and decree dated june 20 1966 the
mysore high companyrt in regular appeal number 97 at 1959.

c. chagla p. n. tiwari j. b. dadachanji o.c-. and
ravinder narain for the appellant. k. sen s. s. javali and m. veerappa for respondents
1 and 2.
the judgment of the companyrt was delivered by
mitter j. one rudrappa murigoppa gugwad died leaving a will
dated february 2 1919. it is claimed by the appeal that he also
left a companyicil dated august 10 1919. after citing in
clause 1 of the will that he had brought up lochanappa
gugwad son of irappa sidlingappa gugwad and though he had
wished to take the said lochanappa in but had number been able
to do so up till then and even if the adoption ceremony did
number take place in the future lochanappa alone would be the
owner of his properties he proceeded state in clause 2 of
his will that
even though i have hereby transferred the
ownership of my immovable and movable
properties to lochanappa irappa gugwad
lochanappa should act under the supervision of
the trustees namely. lingappa
sanganabassappa tyapi and gurulingappa gan-
gappa gugwad. it both the trustees find that
my property will fall out of use on account of
lochanappas taking to bad ways both the
trustees should take possession of the
property and safeguard it by appointing my
extremely faithful clerks veerabhadrappa
mallappa suligavi and basappa murangappa
tuppadd. if lochanappa gets a male issue the
property should be in the possession of both
the trustees till that son attains majority. in clause 3 he laid down that
in case lochanappa irappa dies without
leaving male issue fully authorise the said
trustees to transfer the ownership of the
movable and immovable property of my family to
the son of gurupadappa gangappa gugwad
resident of bijapur and to deliver the entire
property into his possession. the original will was deposited with the companylector. after
having executed the will the testator appeared to have
proceeded to benares and from there a dressed a letter to
lochanappa irappa gugwad on 10th august 1919. by that he
directed some money to be advanced to gurubasappa bassappa
gugwad to start him on a business and companymended the welfare
of the said gurubasappa to the care of lochanappa adding
the main thing is that you should pay full
attention to him. i have mentioned in the
will that in case male children are number born
to you you should take in adoption in your
own name any of the sons of gurupadappa
gangappa gugwad of bijapur and that if you die
without taking in adoption they alone will be
the owner of the movable and immovable
properties. but two sons are born to him. as
early as possible that is to say when one boy
becomes five years old or after my death you
should execute this work of adoption and you
should mention that the property should go to
him after your death. the last statement appears to be incorrect inasmuch as the
testator had number by his will directed lochanappa to make
such an adoption. probate of the will was duly taken into possession of all
the properties left by the testator. according to the
judgment of the high companyrt appealed from the letter was number
a formal document as a companyicil should be number was it
referred to in the probate proceedings. in the year 1935
gangappa gurupadappa gugwad the appellant herein filed a
suit in the companyrt of the first class subordinate judge at
bijapur against lochanappa and the said two trustees for a
declaration that lochanappa had only a life interest in
respect of the properties described in the schedule to the
plaint as per the
will and companyicil executed by the testator that certain
improvident transactions put through by lochanappa in
contravention of the directions given in the will were number
binding on the plaintiff or the properties left by the der-
eased and that the s lochanappa having acted companytrary to the
directions given in will and companyicil and having mismanaged
the said properties a injunction should be issued against
the trustees directing to give lochanappa only maintenance
in terms of the will.-
the subordinate judge who heard the suit framed several
issues of which the important ones were as follows

whether the plaintiff is entitled to sue

whether lochanappa defendant number 1 got
only a limited interest in the estate of the
testator rudrappa gugwad under the will? whether acts of mismanagement by
lochanappa companytrary to the directions of the
will had been proved ? whether an injunction companyld be validly
given-to the trustees to take over the
management from lochanappa and give him only
maintenance ?. before the subordinate judge evidence both oral and
documentary were let in. he companystrued the will to arrive at
the finding that lochanappa had been made the malik or owner
of the pro parties companyered by the will and that it was the
will of the tesator which recited that the estate given to
lochanappa was be heritable. with regard to the further
directions given in will he came to the companyclusion that
lochanappa having bee made an owner under the will further
expression of such intention cannumber be properly allowed to
control or qualify that ownership. as regards the direction
in the letter styled a companyicil advising lochanappa to take
one of the sons of gurupadappa gangappa gugwad in adoption
he held that
in fact there is numbersuch direction in the
original will. even assuming that it is so
only means that gurupaddappas sons are to be
the owners in case lochanappa dies without
male issue and without adopting one of the
sons of gurupadappa lochanappa is still alive
and it is yet to be seen whether he adopts
plaintiff or number or whether a son will be born
to him or number. plaintiff has at the most a
contingent right and vested interest and
therefore it is a question whether he is
entitled to a simple declaration. the suit out of which this appeal arises was filed by gang
gugwad after the death of lochanappa in 1957 against
widow of lochanappa one chanabasappa gurubasappa gugwad who
was undisputedly taken in adoption by lochanappa as his son
in the year 1951 and gurlingappa gungappa gugwad the
surviving trustee under the will of rudrappa pleading inter
alia that rudrappa did number companyfer an absolute estate on
lochanappa in respect of his property that the bequest made
in his favour companyferred upon him only a restricted life
estate and that even assuming lochanappa was an absolute
owner he was entitled to it only during his lifetime and
after his demise it was to revert to the plaintiff by virtue
of the will and companyicil. the plaintiff appellant went on
to add that it was incumbent on lochanappa to adopt him
alone and numbere else and any adoption in companytravention of the
direction in the will of rudrappa murigappa gugwad was
invalid and even assuming that the said direction was number
mandatory defendant number 2 companyld number acquire the status of a
son begotten by lochanappa so as to claim any interest in
the property of the deceased testato. the suit was companytested
by the widow and the adopted son defendant number 2 who plead-
ed the bar of res judicata on the strength of the judgment
in the suit of 1935. the subordinate judge held against the
dependent on that issue. he also found that the appellant. was the rightful heir to the properties of the deceased
testator under the will and companyicil of rudrappa after the
death of lochanappa. the high companyrt examined the will and the letter described as
codicil over again and came to the companyclusion that the
letter described as companyicil was only an informal
communication from one relation to anumberher that the
testator had only a vague recollection of the companytents of
the will at the time of writing the letter from benaras and
that the order in the probate proceedings did number refer to
the letter. on the basis of the will the high companyrt held
that lochanappa was an absolute owner of the property. the
high companyrt further held that the decree in the suit of 1935
operated as res judicata in the subsequent suit. referring
to the first two issues framed in suit of 1935 the high
court held that there was a clear finding in the judgment in
that suit that the appellant had obtained numberinterest under
the will of rudrappa and therefore he was number entitled to
sue. before us learned companynsel for the appellant companytended that
in spite of the observations made by the learned subordinate
judge in the judgment in the suit of 1935 about lochanappas
rights under the will and the document styled as companyicil
the. decision on the first issue went to show that the
appellants suit was premature and as such it was number
necessary for the subordinate judge to go into the other
question and his findings on issues other than the first
should be treated as obiter. in support of the above companytention companynsel for the appellant
relied on the decision of the privy companyncil in shankarlal v.
hiralal 1 . the head numbere in that case to which our
attention was drawn reading
court holding that suit is number maintainable
by reason of failure to companyply with s. 80-
findings given on merits are obiter and do sot
support plea of res judicata either in favour
of or against party. seems to be misleading inasmuch as the judgment of the board
does number bear out the above proposition of law. at best the
head numbere only records a finding by an appellate bench of
the calcutta high companyrt which the board by its own judgment
did number expressly reject or uphold. the appeal to the privy companyncil arose out of a suit filed by
one mangtulal bagaria for royalties due under a lease of
collieries by one popat velji rajdeo of which the said
mangtulal was appointed manager by the companyrt. the
defendants were the lessees under the lease or their
representatives and were respondents in the appeal to the
board. there the defence of the lessees was that the lease
had been surrendered in july 1933. the plaintiffs
challenged the surrender and also pleaded that-the point was
covered by res judicata. ameer ali j. before whom the
suit came on for hearing on the original side of the
calcutta high companyrt framed several issues in two groups. the first issue in group a related to a plea of res
judicate. the second issue in that group raised a question
whether there was any defence apart from surrender. group b
raised questions as to the fact and validity of the alleged
surrender. the plea of res judicata was based on a judgment
of the subordinate judge of dhanbad wherein the lessees had
sued mangtulal and some others for a declaration that the
lease had been validly surrendered in 1933. the subordinate
judge held that the suit did number lie inasmuch as numberice had
number been served on mangtulal under s. 80 civil procedure
code. he however supported to decide other issues in the
suit including one as to the sufficiency of the surrender. an appeal from the decree of the subordinate judge was
taken to the high companyrt at patna but was withdrawn against
mangtulal and the brother of the lessor and a companysent
decree was obtained against the two widows upholding the
surrender. ameer ali j. went into the question of res
judicata as a preliminary issue and pressed the view

a.i.r. 1950 p. 30. .lm15
that the decision of the dhanbad companyrt had decided the same
issue which had to be decided in his own companyrt and between
the same persons and parties. in appeal from his judgment the learned judges held that
inasmuch as the subordinate judge in the dhanbad suit had
held that the suit did number lie by reason of the failure to
comply with s. 30 civil p.c. he was bound to dismiss the
suit under or. 7 r. 1 1 of the companye and the findings of the
court on the merits were obiter and companyld number support a plea
of res judicata. they held further that ameer ali j. had decided numberhing but
the issue of res judicata. accordingly. they allowed the
appeal and remanded the case to the companyrt of first instance
for trial of issues other than issue 1.
the judgment of the judicial companymittee shows that before the
board it was companyceded on behalf of the appellant that the
appellate companyrt was right in the view which it took as to
the effect of the dhanbad decree. the board proceeded to
observe
their lordships have numberdoubt that the decision in the
dhanbad suit companyld number support a plea of res judicata on the
merits either in favour of or against mangtulal. the board rejected the companytention of the appellant that
ameer ali j. had decided number only the issue of res judicata
but also that the alleged surrender of the lease was
invalid. according to the board the judgment of ameer ali
j. was to some extent obscure and there were passages in it
which suggested that he thought the surrender invalid but
it was clear that he did number purport to decide anything
beyond the issue of res judicata and he expressly stated
that h.- was number deciding the issues in the second group. accordingly the board saw numberreason to differ from the view
of the appellate judges that the issues as to surrender were
number decided by the trial judge and did number feel inclined to
interfere with the direction given by the appellate companyrt
regarding the remand of the trial of the issues in the companyrt
of first instance. on the strength of the dictum of the appellate bench of the
calcutta high companyrt forming a part of the headnumbere to the
above decision it was companytended before us that once the
subordinate judge of bijapur recorded a finding on the first
issue against the appellant in the suit of 1935 his
construction  if the will and the effect thereof were obiter
and they would number be binding on the appellant in the second
suit. this was sought to be fortified by the observations
in the companycluding portion of
the judgment in the suit of 1935 which we have quoted above
that the plaintiff had at the most a companytingent right and no
vested interest. it was.argued that the learned subordinate
judges view that the suit was premature was sufficient to
dispose of the case before him without his going into the
other questions and the issues raised. numberdoubt it would be open to a companyrt number to decide all the
issues which may arise on the pleadings before it if it
finds that the plaint on the face of it is barred by any
law. if for instance the plaintiffs cause of action is
against a government and the plaint does number show that
numberice under section 80 of the companye of civil- procedure
claiming relief was served in terms of the said section it
would be the duty of the companyrt to reject the plaint
recording an order to that effect with reason for the order. in such a case the companyrt should number embark upon a trial of
all the issues involved and such rejection. would number
preclude the plaintiff from presenting a fresh plaint in
respect of the same cause of action. but where the plaint
on the face of it does number show that any relief envisaged by
s. 80 of the companye is being claimed it would be the duty of
the companyrt to go into all the issues which may arise on the
pleadings including the question as to whether numberice under
s. 80 was necessary. if the companyrt decides the various
issues raised on the pleadings it is difficult to see why
the adjudication of the rights of the parties apart from
the question as to the applicability of s. 80 of the companye
and absence of numberice thereunder should number operate. as res
judicate in a subsequent suit where the identical questions
arise for determination between same parties. in our view the high companyrt was right in deciding the issue
as to res indicate against the appellant. the high companyrt
rightly pointed out that the subordinate judge had in clear
terms decided that the appellant had obtained numberinterest
under the will of rudrappa and therefore he was number entitled
to sue. the subordinate judge had further held that the
estate obtained by lochanappa under the will was an absolute
estate. with respect we companycur with the view expressed by the high
court. there was numberquestion of the trial of any
preliminary issue in the suit of 1935 the decision of which
would obviate the necessity of examining the other pleas
raised and companying to a finding thereon. the nature of the
right acquired by lochanappa under the will of the testator
was directly in question and the subordinate judge went
elaborately into it to take the view that lochanappa had
become absolutely entitled to theproperties left by the
testator. the observation referred to in the companycluding
portion of the judgment of the subordinate judge is number to
be taken
as the decision on a preliminary issue so as to render the
findingon the other issues mere obiter or surplusage. in our view the high companyrt rightly relied on the
observations of this companyrt in vithal yeshwant father v.
shikandarkhan makhtum-khan sardesai 1  that if the final
decision in any matter at issue between the parties is based
by a companyrt on its decisions on.