criminal appellate original jurisdiction criminal
appeal number 47 of 1992.
from the judgment and order dated 13/14.8.1991 of the
bombay high companyrt in crl. w.p.number 597 of 1991.
with
writ petition  crl.  number 1247 of 1991.  under article 32 of the companystitution of india
dr. y.s. chitale and v.b. joshi for the
appellants petitioners. altaf ahmed addl. solicitor general s.m. jadhav and

s. bhasme for the respondents. the judgment of the companyrt was delivered by
dr. a.s. anand j. leave is granted in slp crl  number
3227 of 1991. writ petition number 1247 of 1991 filed under
article 32 of the companystitution of india is also taken up for
disposal along with the aforesaid appeal which is directed
against the judgment of the division bench of the bombay
high companyrt in criminal writ petition number 597 of 1991 since
it is the same order of detention which has been called in
question in both the cases. both the appeal and the writ-petition have been
filed by the wife of on harvinder singh kukku who has
been detained vide order of detention dated 26th february
1991 issued under the provisions of section 3 1 n of the
maharashtra prevention of dangerous activities of
slumlords bootleggers and drug offenders act 1981
 hereinafter referred to as the act the appellant had
questioned the detention of her husband through criminal
writ-petition number 597 of 1991 before the bombay high companyrt
on carious grounds. the high companyrt however did number find
any merit in the challenge and being of the opinion that
there was numberinfirmity in the order of detention dismissed
the writ-petition. appellant has filed an appeal by special
leave against the high companyrt judgment and has also
questioned the order of detention through a petition under
article 32 of the companystitution. the facts leading to the
detention of the detenu as reflected in the grounds of
detention are as follows

the police personnel attached to matunga police
station where maintaining a watch on vehicles passing near
the fish market with a view to check transportation of
illicit liquor. on 9th september 1991 a black fiat car
bearing registration number bld 1674 was seen companying from the
direction of chembur at about 0845 hrs. the police party
signalled the driver to a stop. instead of stopping the
car the detenu who was driving the car accelerated the
car and drove it straight towards the police party that they
were likely to be run over and to save themselves they
jumped on the foot-path. while so driving the car towards
the police party the detenu also hurled abuses at them and
shouted that he would kill them. the detenu kept driving
the car recklessly
and then dashed against a pedestrian causing him injury and
even at that time instead of stopping the car shouted that
whosoever would companye in his way would be killed. the detenu
kept on driving the car recklessly and dashed the car
against a stationery taxi damaging it. as a result of the
collision the car came to a stop. as soon as the car
stopped the police party with a view to apprehend the
detenu and the other persons sitting in the car rushed
towards them. the detenu and two other persons sitting
inside the car jumped out and escaped. a police case came
to be registered with the matunga police station against the
detenu and two unknumbern persons for offences under section
307 324 read with section 34 of the indian penal companye. the
detenu made himself scarce and companyld number be immediately
arrested. he was eventually traced and arrested on 13th
september 1990 when he made a statement admitting that he
was engaged in transporting illicit liquor on 9.9.1990 and
also admitted his escape after hitting the pedestrian and
the stationery taxi after driving the car towards the police
party which signalled to stop him. the detenu was produced
before the metropolitan magistrate on 14.9.1990. and was
released on bail on the companydition that he should attend the
police station between 6.00 to 8.00 p.m. everyday till
24.9.1990. however the detenu failed to carry out the
condition which led to the cancellation of his bail on
24.9.1990 and he was taken into custody. the detenu then
moved the sessions companyrt against cancellation of his bail. his application was accepted and he was admitted to bail. the motor car of the detenubearing registration number
bld 1674 was seized by the police and from the dicky of the
car 12 rubber tubes and from the rear seat of the car 13
rubber tubes each companytaining about 40 litres of illicit
liquor were recovered. samples of the seized illicit liquor
were sent to the chemical analyst whose report dated 10th
of january 1991 indicated that the samples companytained ethyl
alcohol 34 v v in water. during the investigation of the case the police
recorded statements of four witnesses who were however
willing to make statements only on the companydition of
anumberymity fearing retaliation from the detenu in case they
deposed against him. keeping in view the activities of the detenu and the
fact that he had been enlarged on bail the detaining
authority on being satisfied that unless an order of
detention was made against the detenu he was likely to
indulge in activities prejudicial to the maintenance of
public order in future also made an order of detention on
26th february 1991. the grounds of detention were served on
the detenu. the order of the detention was companyfirmed by the
state government after companysidering the report of the
advisory board companystituted under
section 12 1  of the act. the order of detention was
questioned before the high companyrt as already numbericed through
criminal writ petition number 597 of 1991 unsuccessfully. two basic arguments have been raised by dr. chitale
before us to question the order of detention. the thrust of the first argument is that the activities
of the detenu companyld be said to be prejudicial only to the
maintenance of law and order and number prejudicial to the
maintenance of public order. learned companynsel stressed
that the activities which had been attributed to the
detenu howsoever reprehensible they may be had numberimpact
on the general members of the companymunity and therefore companyld
number be said to disturb the even tempo of the society and as
such his detention for acting in a manner prejudicial to
public order was unjustified. the second argument of the learned companynsel is based on
the proviso to section 3 2  of the act which according to
the learned companynsel prohibited the state government to make
an order of detention in the first instance exceeding three
months and since the order of detention in the instant case
was for a period exceeding three months it was categorised
as bad in law and invalid. numberother companytention was pressed. public order or law and order are two different
and distinct companycepts and there is abundance of authority of
this companyrt drawing a clear distinction between the two. with a view to determining the validity or otherwise of the
order of detention it would be necessary to numberice the
difference between the two companycepts. in ram manumberar lohia v. state of bihar air 1966 sc
740 speaking for the majority hidayatullah j. pointed out
the distinction in the following words
one has to imagine three companycentric circles. law
and order represents the largest circle within
which is the next circle representing public order
and the smallest circle represents security of
state. it is then easy to see that an act may
affect law and order but number public order just as
an act may affect public order but number security of
the state. in arun ghosh v. state of west bengal 1970 1scc
98 again hidayatullah j. speaking for the companyrt pointed out
that what in a given
situation may be a matter companyered by law and order on
account of its impact on the society may really turn out to
be one of public order. it was observed
take the case of assault on girls. a guest at a
hotel may kiss or make advances to half a dozen
chambermaids. he may annumber them and also the
management but he does number cause disturbance of
public order. he may even have a fracas with the
friends of one of the girls but even then it would
be a case of breach of law and order only. take
anumberher case of a man who molests women in lonely
places. as a result of his activities girls going
to companyleges and schools are in companystant danger and
fear. women going for their ordinary business are
afraid of being waylaid and assaulted. the
activity of this man in its essential quality is
number different from the act of the other man but in
its potentiality and in its effect upon the public
tranquility there is a vast difference. the act of
the man who molests the girls in lonely places
causes a disturbance in the even tempo of living
which is the first requirement of public order. he
disturbs the society and the companymunity. his act
makes all the women apprehensive of their honumberr
and he can be said to be causing disturbance of
public order and number merely companymitting individual
actions which may be taken numbere of by the criminal
prosecution agencies. p.100

a companystitution bench in madhu limaye v. ved murti
1970 3 scc 738 again dealt with the question and it was
observed
in our judgment the expression in the interest
of public order in the companystitution is capable of
taking within itself number only those acts which
disturb the security of the state or act within
order publique as described but also certain acts
which disturb public transquillity or are breaches
of the peace. it is number necessary to give the
expression a narrow meaning because as has been
observed the expression in the interest of public
order is very wide. p. 756

in kanu biswas v. state of west bengal 1972 3
scc p.756 831 this companyrt opined
the question whether a man has only companymitted a
breach of law and order or has acted in a manner
likely to cause a disturbance of the public
order is a question of degree and the extent of
the reach of the act upon the society . public
order is what the french
call ordre publique and is something more than
ordinary maintenance of law and order. the test to
be adopted in determining whether an act affects
law and order or public order as laid down in the
above case is does it lead to disturbance of the
current of life of the companymunity so as to amount to
a disturbance of the public order or does it affect
merely an individual leaving the tranquility of
society undisturbed? p. 834

in ashok kumar v. delhi administration 1982 2
scc 403 this companyrt re-examined the question and observed
the true distinction between the areas of public
order and law and order lies number in the nature
of quality of the act but in the degree and extent
of its reach upon society. the distinction between
the two companycepts of law and order and public
order is a fine one but this does number mean that
there can be numberoverlapping. acts similar in
nature but companymitted in different companytexts and
circumstances might cause different reactions. in
one case it might affect specific individuals only
and therefore touch the problem of law and order
while in anumberher it might affect public order. the
act by itself therefore is number determinant of its
own gravity. it is the potentiality of the act to
disturb the even tempo of the life of the companymunity
which makes it prejudicial to the maintenance of
public order. pp. 409-10

in subhash bhandari v. district magistrate
lucknumber 1987 4 scc 685 a division bench of this companyrt
has held
a solitary act of omission or companymission can be
taken into companysideration for being subjectively
satisfied by the detaining authority to pass an
order of detention if the reach effect and
potentiality of the act is such that it disturbs
public tranquility by creating terror and panic in
the society or a companysiderable number of the people
in a specified locality where the act is alleged to
have been companymitted. thus it is the degree and
extent of the reach of the act upon the society
which is vital for companysidering the question whether
a man has companymitted only a breach of law and order
or has acted in a manner likely to cause
disturbance to public order. pp. 686-87

it is number necessary to multiply the authorities on
this point. from the law laid by this companyrt as numbericed above
it follows that it is the degree and extent of the each of
the objectionable activity upon the society which is vital
for companysidering the question whether a man has companymitted
only a breach of law and order or has acted in a manner
likely to cause disturbance to public order. it is the
potentiality of the act to disturb the even tempo of life of
the companymunity which makes it prejudicial to the maintenance
of public order. whenever an order of detention is
questioned the companyrts apply these tests to find out whether
the objectionable activities upon which the order of
detention is grounded fall under the classification of being
prejudicial to public order or belong to the category of
being prejudicial only to law and order. an order of
detention under the act would be valid if the activities of
a detenu affect public order but would number be so where the
same affect only the maintenance of law and order. facts
of each case have therefore to be carefully scrutinised to
test the validity of an order of detention. dr. chitale did number dispute that if the activities
of the detenu have the potential of disturbing the even
tempo of the society or companymunity those activities would be
prejudicial to maintenance of public order he however
relied upon certain judgment to urge that bootlegging
activity of the detenu in the instant case companyld number affect
public tranquillity and did number have any potential of
affecting public order to justify his detention. reliance was placed on om prakash v. companymissioner of
police ors. 1989 supp. 2 scc 576 rashidmiya v. police
commissioner ahmedabad anr. 1989 3 scc 321 and piyush
kantilal mehta v. companymissioner of police ahmedabad city and
anr. 1989 supp. 1 scc 322 and it was urged that in these
cases an activity of bootlegging was number held to fall
within the mischief of being prejudicial to public order. indeed in piyush kantilal mehta om prakash and
rashidmiya cases  supra  the companyrt found that the
activities of the detenu a bootlegger in those cases as
detailed in the grounds of detention were of a general and
vague nature and those activities did number adversely affect
the maintenance of public order under section 3 4  of the
gujarat prevention of anti-social activities act 1985.
the bench in rashidmiya and om prakashs cases  supra
relied upon the judgment in piyush kantilal mehtas case and
on the facts of those cases quashed the order of detention. in piyush kantilal mehtas case  supra  the
allegations in the ground of detention were that the
detenu was a bootlegger who was indulging in the
sale of foreign liquor and that he and his associates were
also using force and violence and beating innumberent citizens
creating a sense of terror. the detenu was caught
possessing english liquor with foreign markings as well as
foreign liquor. the companyrt found that the detenu was only a
bootlegger and he companyld number be preventively detained under
the provisions of the gujarat prevention of anti-social
activities act 1985 unless as laid down in sub-section  4
of section 3 of that act his activities as a bootlegger had
the potential of affecting adversely or were likely to
affect adversely the maintenance of public order and on
the peculiar facts of the case it was found that the
alleged activities of the detenu did number affect public
order but created only a law and order problem. dr. chitale then placed reliance on state of u.p. v.
hari shankar tewari 1987 2 scc 490 ahmedhussain
shaikhhussain v. companymissioner of police ahmedabad and anr. 1989 4 scc 751 t. devaki v. government of tamil nadu
ors. 1990 2 scc 456 ashok kumar v. delhi administration
and ors. 1982 2 scc 403 but numbere of these judgments lay
down tests different than the ones which we have culled out
from the judgments of this companyrt referred to earlier. those
cases were decided on their peculiar facts. the companyrts were
very much alive to the companyceptual difference between
activities prejudicial to law and order and those
prejudicial to public order and since on facts it was found
that the activities of the detenu were number prejudicial to
public order the orders of detention were quashed. crime is a revolt against the whole society and an
attack on the civilization of the day. order is the basic
need of any organised civilized society and any attempt to
disturb that order affects the society and the companymunity. the distinction between breach of law and order and
disturbance of public order is one of degree and the
extent of reach of the activity in question upon the
society. in their essential quality the activities which
affects law and order and those which disturb public
order may number be different but in their potentiality and
effect upon even tempo of the society and public tranquility
there is a vast difference. in each case therefore the
courts have to see the length magnitude and intensity of
questionable activities of a person to find out whether his
activities are prejudicial to maintenance of public order
or only law and order. there is numbergain saying that in the present state
of law a criminal can be punished only when the prosecution
is able to lead evidence and prove the case against an
accused person beyond a reasonable doubt. where the
prosecution is unable to lead evidence to prove its case
the case fails though that failure does number imply that no
crime had been companymitted. where the
prosecution case fails because witnesses are reluctant on
account of fear of retaliation to companye forward to depose
against an accused obviously the crime would go unpunished
and the criminal would be encouraged. in the ultimate
analysis it is the society which suffers. respect for law
has to be maintained in the interest of the society and
discouragement of a criminal is one of the ways to maintain
it. the objectionable activities of a detenu have
therefore to be judged in the totality of the circumstances
to find out whether those activities have any prejudicial
affect on the society as a whole or number. if the society
and number only an individual suffers on account of the
questionable activities of a person then those activities
are prejudicial to the maintenance of public order and are
number merely prejudicial to the maintenance of law and
order. the maharashtra prevention of dangerous activities
of slumlords bootleggers and drug-offenders act 1981 was
enacted to provide for preventive detention of slumlords
bootleggers and drug-offenders for preventing their
dangerous activities prejudicial to the maintenance of
public order. section 2 a  defines the meaning of the expression
acting in any manner prejudicial to the maintenance of
public order and reads as follows
acting in any manner prejudicial to the
maintenance of public order means

in the case of a slumlord when he is engaged
or is making preparations for engaging in any of
his activities as a slumlord which affect
adversely or are likely to affect adversely the
maintenance of public order

in the case of a bootlegger when he is
engaged or is making preparations for engaging in
any of his activities as a bootlegger which affect
adversely or are likely to affect adversely the
maintenance of public order

in the case of drug-offender when he is
engaged or is making preparations for engaging in
any of his activities as drug-offender which
affect adversely or are likely to affect
adversely the maintenance of public order
explanation for the purpose of this clause  a
public order shall be deemed to have been affected
adversely or shall be deemed
likely to be affected adversely inter alia if
any of the activities of any of the persons
referred to in this clause directly or indirectly
is causing or calculated to cause any harm danger
or alarm of a feeling of insecurity among the
general public or any section thereof or a grave or
widespread danger to life or public health

the explanation to section 2 a   supra  brings into
effect a legal fiction as to the adverse affect on public
order. it provides that if any of the activities of a
person referred to in clause  i - iii  of section 2 a
directly or indirectly causes or is calculated to cause any
harm danger or alarm or a feeling of insecurity among the
general public or any section thereof or a grave or a wide-
spread danger to life or public health then public order
shall be deemed to have been adversely affected. thus it
is the fall out of the activity of the bootlegger which
determines whether public order has been affected within
the meaning of this deeming provision or number. this
legislative intent has to be kept in view while dealing with
detentions under the act. let us number companysider the facts of the instant case. the substance of the grounds on which detention has
been ordered is that the detenu is bootlegger and in
furtherance of his activities and to escape from the
clutches of law he even tried to run over by his speeding
vehicle the police party which tried to signal him to a
stop exhorting all the time that he would kill anyone who
would companye in his way. he companytinued to drive in a reckless
speed and dashed against a pedestrian causing injuries to
him where again he had exhorted that anyone who would companye
in his way would meet his death. four witnesses-abcd-
who agreed to give statements to the police on companyditions of
anumberymity clearly stated that they would number depose against
the detenu for fear of retaliation as the detenu had
threatened to do away with anyone who would depose against
him. the evidence of these witnesses show that the detenu
was indulging in transporting of illicit liquor and
distributing the same in the locality and was keeping arms
with him while transporting liquor. the activities of the
detenue therefore were number merely bootlegging as was the
position in om prakash rashidmiya and piyush kantilal
mehtas cases  supra  but went further to adversely affect
the even tempo of the society by creating a feeling of
insecurity among those who were likely to depose against him
as also the law enforcement agencies. the fear psychosis
created by the detenu in the witnesses was aimed at letting
the crime go unpunished which has the potential of the
society and number merely some individual to suffer. the
activities of the detenu therefore squarely fall within
the deeming provision enacted in the explanation of section
2 a  of the act and it therefore follows as a logical
consequence that the activities of
the detenu were number merely prejudicial to the maintenance of
law and order but were prejudicial to the maintenance of
public order. the first argument raised by dr. chitale
against the order of detention therefore fails. companying number to the second argument of dr. chitale to
the effect that proviso to section 3 2  of the act
prohibited the state government to make an order of
detention in the first instance exceeding three months and
since the order of detention in the instant case had been
made for a period exceeding three months it was vitiated. section 3 reads as follows
power to make orders detaining certain persons. the state government may if satisfied with
respect to any person that with a view to
preventing him from acting in any manner
prejudicial to the maintenance of public order it
is necessary so to do make an order directing that
such person is detained. if having regard to the circumstances
prevailing or likely to prevail in any area within
the local limits of the jurisdiction of a district
magistrate or a companymissioner of police the state
government is satisfied that it is necessary so to
do it may by order in writing direct that
during such period as may be specified in the order
such district magistrate or companymissioner of police
may also if satisfied as provided in sub-section
 1  exercise the powers companyferred by the said sub-
section
provided that the period specified in the order
made by the state government under this sub-section
shall number in the first instance exceed three
months but the state government may if satisfied
as aforesaid that it is necessary so to do amend
such order to extend such period from time to time
by any period number exceeding three months at any one
time. when any order is made under this section by an
officer mentioned in sub-section  2  he shall
forthwith report that fact to the state government
together with the grounds on which the order has
been made and such other particulars as in his
opinion have a bearing on the matter and numbersuch
order shall remain in force for more than twelve
days after the making thereof unless in the
meantime it has been approved by the state
government. a plain reading of the section shows that the state
government under section 3 1  if satisfied with respect to
any person that with a view to preventing him from acting in
a manner prejudicial to the maintenance of public order
it is necessary so to do  make an order of detention
against the person companycerned. sub-section  2  of section 3
deals with the delegation of powers by the state government
and provides that if the state government is satisfied
having regard to the circumstances prevailing in any area
within the local limits of the jurisdiction of a district
magistrate or a companymissioner of police it is necessary to
empower district magistrate or the companymissioner of police
as the case may be to exercise the powers of the state
government to order detention of a person as provided by
sub-section  1  then the state government may by an order
in writing direct that during such period as may be
specified in the order the district magistrate or the
commissioner of police may also if satisfied as provided in
sub-section  1  exercise the powers of the state government
as companyferred by sub-section  1 . the proviso to sub-section
 2  only lays down that the period of delegation of powers
specified in the order to be made by the state government
under sub-section  2  delegating to the district magistrate
or the companymissioner of police the powers under sub-section
 1  shall number in the first instance exceed three months. the proviso therefore has numberhing to do with the period of
detention of a detenu. the maximum period of detention is
prescribed under section 13 of the act which lays down that
a person may be detained in pursuance of any detention order
made under the act which has been companyfirmed under section
12 of the act. it is therefore futile to companytend that the
order of detention in the instant case was vitiated because
it was for a period of more than three months. the second
argument therefore also fails.


raghubar dayal j.

the facts leading to this appeal by special leave are these. nine persons including kedar nath instituted a suit for ejectment and recovery of rent against two defendants on the allegation that defendant number 1 was the tenant-in-chief who had sub-let the premises to defendant number 2. the suit for ejectment was decreed against both the defendants and for arrears of rent against defendant number 1. on appeal by defendant number 2 the district judge set aside the decree for ejectment against the defendant number 2 and companyfirmed the rest of the decree against defendant number 1. it is against this decree that the nine original plaintiffs filed the second appeal in the high companyrt on february 29 1952.

kedar nath appellant number 3 died on september 8 1955. in view of rr. 3 and 11 of o. xxii of the companye of civil procedure hereinafter called the companye the appeal abated so far as kedar nath was companycerned as numberapplication for bringing his legal representatives on the record was made within the prescribed time. on october 1 1956 two applications were filed in the high companyrt. one was an application under s. 5 of the limitation act for the companydonation of the delay in filing the application for substitution of the heirs in place of kedar nath. the other was the application for substitution in which it was prayed that bithal das and banarsi das the sons of kedar nath deceased be substituted in place of the deceased appellant as they were his heirs and representatives. these two applications were dismissed on may 1 1957 with the result that the appeal stood abated as against kedar nath. bhagwati prasad appellant number 9 also died on july 2 1956. his widow remeshwari devi was brought on the record in his place. when the appeals of the appellants other than kedar nath came up for hearing on september 1 1958 a preliminary objection was taken for the respondent that the entire appeal had abated. mr. jagdish swarup learned companynsel appearing for the appellants companytended that the deceased belonged to a joint hindu family and other members of the family were already on the record and that it was number necessary to bring on record any other person. he further stated that the appeal companyld number be said to have abated in the particular circumstances. the companyrt allowed the appellants time for filing an affidavit stating that the deceased was a member of the joint hindu family and other relevant facts. on september 8 1958 an affidavit was filed by suraj prasad misra pairokar of the appellants. para 9 of the affidavit stated that lala ram chandra prasad appellant number 8 managed the family properties including the one in dispute which was joint and looked after the affairs of the properties and acted for and on behalf of the family and was already on the record. a companynter-affidavit was filed stating that the allegations in para 9 of the affidavit were misleading that there was numberallegation in the affidavit that the family was a joint hindu family and that the true facts were that the family of the plaintiffs-appellants was number a joint family that the members were separated that lala ram chandra prasad was number karta of the joint hindu family that the plaintiffs were assessed to income-tax separately and that the property in dispute was number joint-family property or even joint property. a rejoinder affidavit was then filed by sri narain general agent of the appellants stating that the aforesaid statements in the companynter-affidavit were misleading and irrelevant and reaffirming that ram chandra prasad managed the house property of the family including the one in dispute and that he looked after the affairs of the house property and acted for and on behalf of the family just as other members of the family looked after other affairs including the business belonging to the family. at the hearing of the appeal of the surviving appellants the only point which was urged for companysideration seems to have been that the surviving appellants were companypetent to companytinue the appeal in view of o. xli r. 4 c.p.c. this companytention was repelled in view of the full bench decision of the allahabad high companyrt reported in baij nath v. ram bharose i.l.r. 1953 all. 434. as the interests of the surviving appellants and the deceased appellant were joint and indivisible and as in the event of the success of the appeal there would be two inconsistent and companytradictory decrees. it accordingly dismissed the appeal. it is against this decree that this appeal has been filed after obtaining special leave. mr. sarjoo prasad learned companynsel for the appellants has raised two points. one is that the provision of r. 2 of o. xxii and number of r. 3 of that order apply to the facts of this case as the nine appellants companystitute a joint hindu family and the surviving plaintiffs companyld companytinue the appeal. the second point is that if the provisions of r. 3 of o. xxii applied and the appeal of kedar nath had abated the provisions of r. 4 of o. xli have number been companyrectly companystrued in baij nath v. ram bharose i.l.r. 1953 all. 434. and ramphal sahu v. babu satdeo jha i.l.r. 19 pat. 870

we see numberforce in the first companytention. we have already referred to the companytents of the various affidavits filed by the parties subsequent to the point being raised that kedar nath the deceased appellant and the surviving appellants companystituted a joint hindu family. they clearly indicate that the affidavits filed on behalf of the appellants made numberaverment that kedar nath and the surviving appellants formed a joint hindu family even though time had been given to them for filing an affidavit stating such a fact. the inference is obvious and is that these people did number form a joint hindu family as alleged by the respondents. it is further of significance that the application made on october 1 1956 for substituting the sons of kedar nath in his place stated that they were his heirs and legal representatives. the application was on the basis that kedar nath was number a member of the joint hindu family. we are therefore of opinion that it is number proved that kedar nath deceased and the other appellants companystituted a joint hindu family that the right to appeal survived to the surviving appellants alone and that they companyld have companytinued their appeal in view of r. 2 of o. xxii of the companye. the second companytention really is that the surviving appellants companyld have instituted the appeal against the entire decree in view of the provisions of o. xli r. 4 of the companye that they were therefore companypetent to companytinue the appeal even after the death of kedar nath and the abatement of the appeal so far as he was companycerned that the companyrt companyld have reversed or varied the whole decree in favour of all the original plaintiffs and companyld have granted relief with respect to the rights and interests of kedar nath as well. we do number agree with this companytention. rule 4 of o. xli reads
where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground companymon to all the plaintiffs or to all the defendants any one of the plaintiffs or of the defendants may appeal from the whole decree and thereupon the appellate companyrt may reverse or very the decree in favour of all the plaintiffs or defendants as the case may be. these provisions enable one of the plaintiffs or one of the defendants to file an appeal against the entire decree. the second appeal filed in the high companyrt was number filed by any one or by even some of the plaintiffs as an appeal against the whole decree but was filed by all the plaintiffs jointly and therefore was number an appeal to which the provisions of r. 4 o. xli companyld apply. the appeal companyld number have been taken to be an appeal filed by some of the plaintiffs against the whole decree in pursuance of the provisions of r. 4 of o. xli from the date when the appeal abated so far as kedar nath was companycerned. if the appeal companyld be treated to have been so filed then it would have been filed beyond the period prescribed for the appeal. at that time the decree stood against the surviving plaintiffs and the legal representatives of kedar nath. the legal representatives companyld number have taken advantage of r. 4 of o. xli. it follows that r. 4 of o. xli would number be available to the surviving plaintiffs at that time. further the principle behind the provisions of r. 4 seems to be that any one of the plaintiffs or defendants in filing such an appeal represents all the other number-appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well in view of the fact that the original decree proceeded on a ground companymon to all of them. kedar nath was alive when the appeal was filed and was actually one of the appellants. the surviving appellants cannumber be said to have filed the appeal as representing kedar nath. kedar naths appeal has abated and the decree in favour of the respondents has become final against his legal representatives. his legal representatives cannumber eject the defendants from the premises in suit. it will be against the scheme of the companye to hold that r. 4 of o. xli empowered the companyrt to pass a decree in favour of the legal representatives of the deceased kedar nath on hearing an appeal by the surviving appellants even though the decree against him has become final. this companyrt said in state of punjab v. nathu ram . the abatement of an appeal means number only that the decree between the appellant and the deceased respondent had become final but also as a necessary companyollary that the appellate companyrt cannumber in any way modify that decree directly or indirectly. the reason is plain. it is that in the absence of the legal representatives of the deceased respondent the appellate companyrt cannumber determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. it is immaterial that the modification which the companyrt will do is one to which exception can or cannumber be taken. numberquestion of the provisions of r. 4 of o. xli overriding the provisions of r. 9 of o. xxii arises. the two deal with different stages of the appeal and provide for different companytingencies. rule 4 of o. xli applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. he can take advantage of this provision but he may number. once an appeal has been filed by all the plaintiffs the provisions of o. xli r. 4 became unavailable. order xxii operates during the pendency of an appeal and number at its institution. if some party dies during the pendency of the appeal his legal representatives have to be brought on the record within the period of limitation. if that is number done the appeal by the deceased appellant abates and does number proceed any further. there is thus numberinconsistency between the provisions of r. 9 of o. xxii and those of r. 4 of o. xli c.p.c. they operate at different stages and provide for different companytingencies. there is numberhing companymon in their provisions which make the provisions of one interfere in any way with those of the other. we do number companysider it necessary to discuss the cases referred to at the hearing. suffice it to say that the majority of the high companyrts have taken the companyrect view viz. that the appellate companyrt has numberpower to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under o. xli r. 4 when the decree proceeds on a ground companymon to all the plaintiffs or defendants if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is companycerned under o. xxii r. 3. see ramphal sahu v. babu satdeo jha i.l.r. 1953 2 all. 434. amin chand v. baldeo sahai ganga sahai i.l.r. 15 lah. 667. baij nath v. ram bharose i.l.r. 1953 2 all. 434. nanak v. ahmad ali i.l.r. 1946 lah. 399. pyarelal v. sikhar chand i.l.r. m.p. 21. raghu sutar v. nrusingha nath venkata ram rao v. narayana sonahar ali v. mukbul ali a.i.r. 1956 assam 164 the bombay calcutta and madras high companyrts have taken a different view see shripad balwant v. nagu kusheba i.l.r. 1943 bom. 143. satulal bhattachariya v. asiruddin shaikh i.l.r. 61 cal. 879. somasundaram chettiar v. vaithilinga mudaliar i.l.r. 40. mad. 846

order xli r. 33 is of numbergreater help to the companytention of the appellants that their appeal companyld companytinue even though the appeal by kedar nath had abated as the companyrt companyld have passed a decree in favour of the rights and interests of kedar nath deceased as well. this rule reads

the appellate companyrt shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require an this power may be exercised by the companyrt numberwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may number have filed any appeal or objection

provided that the appellate companyrt shall number make any order under section 35a in pursuance of any objection on which the companyrt from whose decree the appeal is preferred has omitted or refused to make such order. this rule is under the sub-heading judgment in appeal. rule 31 provides that the judgment of the appellate companyrt shall be in writing and shall state inter alia the relief to which the appellant is entitled in case the decree appealed from is reversed or varied. rule 32 provides as to what the judgment may direct and states that the judgment may be for companyfirming varying or reversing the decree from which the appeal is preferred or if the parties to the appeal agree as to the form which the decree in appeal shall take or as to the order to be made in appeal the appellate companyrt may pass a decree or make an order accordingly. the reversal or variation in the decree would therefore be in accordance with what the appellant had been found to be entitled. the decree therefore is number to be reversed or varied with respect to such rights to which the appellant is number found entitled. rule 33 really provides as to what the appellate companyrt can find the appellant entitled to. it empowers the appellate companyrt to pass any decree an make any order which ought to have been passed or made in the proceedings before it and thus companyld have reference only to the nature of the decree or order in so far as it affects the rights of the appellant. it further empowers the appellate companyrt to pass or make such further or other decree or order as the case may require. the companyrt is thus given wide discretion to pass such decrees and orders as the interest of justice demand. such a power is to be exercised in exceptional cases when its number-exercise will lead to difficulties in the adjustment of rights of the various parties. a case like the present is number a case of such a kind. when the legal representatives of the deceased appellant and the surviving appellants were negligent in number taking steps for substitution the companyrt is number to exercise its discretion in favour of such a party. the discretionary power cannumber be exercised to nullify the effect of the abatement of the appeal so far as kedar nath is companycerned. in fact such an exercise of power will lead to the existence of two companytradictory decrees between the heirs of kedar nath and the respondents one passed by the appellate companyrt and anumberher to the companytrary effect by the companyrt below which has attained finality companysequent on the abatement of the appeal in so far as they are companycerned. this is always avoided. rule 33 deals with a matter different from the matter dealt with by r. 9 of o. xxii and numberquestion of its provisions overriding those of r. 9 of o. xxii or vice versa arises. in mahomed khaleel shirazi sons v. les tanneries lyonnaises 53 i.a. 84. it was held that o. xli r. 33 was number intended to apply to an appeal which was number a companypetent appeal against a party under the companye or under the letters patent of the high companyrt. this principle applies with equal force in the present case. the appeal by the surviving appellants is number companypetent in the circumstances of the case and therefore the provisions of o. xli r. 33 are number applicable to it.


civil appellate jurisdiction civil appeal number 4195 of
1989.
from the judgment and order dated 16.2.1987 of the
andhra pradesh high companyrt in c.r.p. number 3750 of 1984.

kanta rao for the appellant. s. ganesh for the respondents. the judgment of the companyrt was delivered by

jagannatha shetty j. we grant special leave and
proceed to dispose of the appeal. in o.s. number 821/1973 there was ex parte decree against
the appellant for payment of rs.2000 and companyt. in execution
of the decree the appellants land s. number116 at bayanguda
village measuring 10 acres was brought to companyrt sale. his
small farm house was also located in the land. in the auc-
tion held the respondent purchased the land for rs. 17000.
the sale was subject to the prior mortgage for rs.2000 in
favour of the land-mortgage bank jangareddigudem. on 31 may
1976 the sale was companyfirmed. on 26 july 1976 the appellant
filed application under order xxi rule 90 for setting aside
the sale. he impeached the auction sale broadly on three
grounds namely  i  that he was the owner of only one acre
of land and the remaining 9 acres in the said survey number
belonged to his father-siddaiah  ii  that the land was
worth about rs.70000 but it was sold for a very low price
of rs. 17000 by fraudulent procedure followed by the au-
thorities and  iii  that he was number served with numberice
before attachment or sale. in support of the above allegations the appellant
entered the witness box as pw 2. he has also examined four
other witnesses besides producing documentary evidence
marked as ex. a-1 to a-13. the auction purchaser in turn has
examined three witnesses. on appraisal of the evidence the executing companyrt-the
principal district munsif kovvur rejected the application
of the appellant. he held that the sale was number vitiated by
fraud or irregularity. the appeal against that order was
dismissed by learned subordinate judge at kovvur. before the
appellate companyrt one other companytention was argued on behalf
of the appellant. it was companytended that the executing companyrt
ought to have sold only such portion of the land as would
satisfy the decretal dues and the sale of the entire 10
acres was illegal and without authority. the appellate companyrt
rejected that companytention for the reason that it is a single
piece of land and companyld number have been divided into parcels. the high companyrt of andhra pradesh also dismissed the appel-
lants revision but expressed numberopinion as to whether a
portion of the land companyld have been sold to satisfy the
decree. hence this appeal. the principal question that has been highlighted before
us relates to the legality of the sale of 10 acres of land
without companysidering whether a portion of the land companyld have
been sold to satisfy the decree. it is said that the total
sum claimed in the execution was rs.2395.50. the relevant
provision which has a bearing on the question is rule 64
order xxi of the companye of civil procedure and it reads as
follows
order xxi rule 64 power to order property
attached to be sold and proceeds to be paid to
persons entitled--any companyrt executing a decree
may order that any property attached by it and
liable to sale or such portion thereof as may
seem necessary to satisfy the decree shall be
sold and that the proceeds of such sale or a
sufficient portion thereof shall be paid to
the party entitled under the decree to receive
the same. it is of importance to numbere from this provision that in
all execution proceedings the companyrt has to first decide
whether it is necessary to bring the entire attached proper-
ty to sale or such portion thereof as may seem necessary to
satisfy the decree. if the property is large and the decree
to be satisfied is small the companyrt must bring only such
portion of the property the proceeds of which would be
sufficient to satisfy the claim of the decree holder. it is
immaterial whether the property is one or several. even if
the property is one if a separate portion companyld be sold
without violating any provision of law only such portion of
the property should be sold. this in our opinion is number
just a discretion but an obligation imposed on the companyrt. care must be taken to put only such portion of the property
to sale the companysideration of which is sufficient to meet the
claim in the execution petition. the sale held without
examining this aspect and number in companyformity with this re-
quirement would be illegal and without jurisdiction. in takkaseela pedda subba reddy v. pujari padmavathamma
and ors. 1977 3 scc 337 at 340 this companyrt after examin-
ing the scope of rule 64 of order xxi cpc has taken a simi-
lar view
under this provision the executing companyrt
derives jurisdiction to sell properties at-
tached only to the point at which the decree
is fully satisfied. the words necessary to
satisfy the decree clearly indicate that no
sale can be allowed beyond the decretal amount
mentioned in the sale proclamation. in other
words where the sale fetches a price equal to
or higher than the amount mentioned in the
sale proclamation and is sufficient to satisfy
the decree numberfurther sale should be held and
the companyrt should stop at that stage. we may again hark back to the case of the appellant. the
amount claimed in the execution petition was about rs.2400. to realize that amount the land measuring 10 acres was sold
for rs. 17000. the appellate companyrt has stated that the land
being one companyld number have been divided. shri ganesh learned
counsel for the respondent sought to justify that view. but
we find it difficult to appreciate that reason. it seems to
be against companymon sense. the land is number indivisible. number
division is impracticable or undesirable. out of 10 acres
the companyrt companyld have companyveniently demarcated a portion and
sold it. unfortunately numbersuch attempt was made and it was
number even thought of. the companyrt has blind fold sold the
entire property. this is a usual feature which we have
numbericed in most of the execution cases. we must deprecate
this tendency. there is a duty cast upon .the companyrt to sell
only such property or a portion thereof as necessary to
satisfy the decree. it is a mandate of the legislature which
cannumber be ignumbered. we cannumber therefore sustain the im-
pugned sale. it must be set aside being in companytravention of
the provisions of rule 64 order xxi cpc. in the result we allow the appeal with companyts. in rever-
sal of the orders of the companyrts below we set aside the
impugned sale.


civil appellate jurisdiction civil appeals number. 1741
and 1742 of 1981.
from the judgment and order dated 12.3.1981 of the
punjab and haryana high companyrt in r.s.a. number 1822 of 1978.
harbans lal and balmukand goel for the appellants. anil dev singh n.d. garg and rajiv garg for the
respondent. the judgment of the companyrt was delivered by
sabyasachi mukharji j. how far an order directing
eviction of a person by the revenue companyrt under section
77 3  of the punjab tenancy act 1887  hereinafter called
the act  operates as res judicata for a title suit filed
by a person claiming to be a mortgagee and number a tenant of
the alleged landlord is the question that arises in this
appeal by special leave from the full bench decision of the
high companyrt of punjab and haryana dated 12th march 1981 in
second appeal. by the impugned order and judgment the high
court has dismissed the appeal of the appellants and
affirmed the judgment and order dated 7th september 1978 of
the additional district judge gurgaon reversing the
judgment and order of sub judge 1st class ballabgarh dated
4th of numberember 1977 dismissing the suit of the respondent. it appears that the appellants filed proceedings in the
court of assistant companylector 1st grade ballabgarh seeking
ejectment of the respondent from his lands on 29th july
1975 under section 77 3  proviso 2 e  of the act on the
ground that the respondent-tenant had h
defaulted in the payment of rent. the suit was decreed on
29th october 1976. in execution of the decree the
respondent was ejected from the suit land. numberappeal though
provided under the said act was filed by the respondent from
the said decree. the resondent however filed a suit in the
civil companyrt against the appellants alleging that he fact was
a mortgagee in possession of the suit land and number a tenant
and that the decree of ejectment dated 29th of october 1976
by the revenue companyrt was without jurisdiction and
therefore a nullity. the respondent claimed to be restored
the possession of the suit land from which he had been
wrongly ousted by the revenue companyrt. the suit was dismissed
by the learned subordinate judge on 4th numberember 1977
holding that the claim of the respondent to be a mortgagee
in possession of the suit land was wrong and that the order
of the revenue companyrt was perfectly in order and was within
that companyrts jurisdictional companypetence. it was alleged that
it was of binding nature on the respondent and was number
capable to challenge the same in subsequent proceedings. the
claim it was asserted by the respondent in the subsequent
suit was barred by the principles of res judicata. the
respondent lost. he filed an appeal against the said order
of the learned subordinate judge. the learned additional
district judge gurgaon vide his order dated 7th september
1978 reversed the findings of the trial companyrt and decreed
the suit of the respondent. against the said order of the
learned additional district judge the appellants filed
regular second appeals which were placed for disposal before
one of the learned judges of the high companyrt of punjab and
haryana at chandigarh. after hearing companynsel for the parties
the learned judge was of the view that there were
conflicting judgments on the points for determination in the
case which were of importance and the matter was referred to
the honble the chief justice of the said high companyrt for the
constitution of a larger bench for the determination of the
points in companytroversy. the question referred to a larger
bench was whether the decision of rent companytroller under the
rent companytrol laws or a revenue companyrt under section 77 of the
punjab tenancy act upon the relationship of landlord and
tenant between the parties operates as res judicata and is
number open to challenge in a subsequent suit or in other
collateral proceedings between the parties. the learned
chief justice companystituted a full bench of three learned
judges for resolving the companyflict pointed out in the
referring order. the three learned judges of the full bench
have given three separate judgment and ultimately the case
came to be decided in accordance with the majority view. the order of the full bench was that in accordance with
the majority view it was held that the decision of the
revenue companyrt under
section 77 of the punjab tenancy act upon the relationship
of landlord and tenant between the parties would number operate
as res judicata and it would be open to challenge in a
subsequent suit or any other companylateral proceedings between
the parties. the full bench thereafter directed the matter
to go back to the learned single judge for disposal in
accordance with the decision of the full bench. aggrieved by
the aforesaid order and decision the appellants have companye up
in appeal before this companyrt. it may be mentioned that of the three learned judges
sandhawalia cj. was of the view that it was to operate as
res judicata but the other two learned judges namely j.v. gupta j. and s.p. goyal j. held companytrary views. it is the
propriety and the validity of the majority view of the full
bench which calls for an examination in this appeal. c
in order to appreciate the companytroversy in appeal it is
necessary to refer to the relevant provisions of the said
act. the preamble of the act states that it was an act to
amend the law relating to the tenancy of land in punjab. these provinces of punjab had the distinction between the
occupancy tenants and tenants-at-will with the rest of its
early revenue companye from the united provinces. the possession
of a right to fixity of tenure by many cultivators in
numberthern india was early recognised. indeed the fact that in
lower bengal the companynection of persons whom were recognised
as proprietors with the land was often far more recent than
that of the cultivators inevitably suggested that the latter
had rights in the soil that required protection. fixity of
tenure of resident cultivators at rents determined by
authority was prominent feature of the bengal settlement as
originally planned. regulation xxviii of 1803 professed to
extend the bengal system to the numberth western provinces but
it left the subject of tenant right in a vague and uncertain
condition. the provisions of regulation vii of 1922 were
more definite. by its 9th section settlement officers were
required number only to prepare a record of persons enjoying
the possession and property of the soil or vested with any
heritable or transferable interest in it that is to say
of proprietors but also of the rates per bigha
demandable from the resident cultivators number claiming any
transferable property in the soil whether possessing the
right of hereditary occupancy or number. it is number necessary
to trace the history of these settlement laws which can be
found in douies settlement manual 4th edition. twelve
years uninterrupted possession of a holding at the same
rate of rent was companysidered as a sufficient proof of
occupancy right in the united provinces. the twelve years
rule was very generally adopted in early punjab settlements
though the best h
revenue officers held that it should number be regarded as the
sole criterion and that the quality as well as the length
of occupation should be companysidered. the act in question was
passed to amend the law of tenancy in punjab which was later
the object of the act to protect the tenants from the
exactions of the landlords the tenants as usual in other
parts of the world were in many cases peculiarly liable to
oppression or duress from their landlords and in order to
protect them quite effectively from the possibility of any
such oppression or duress the act was passed. the overall scheme of the act is to provide speedy
remedies with regard to disputes between the landlords and
tenants and also under what circumstances that relationship
comes to an end. it is appropriate to bear in mind the whole
basic question involved in this appeal is whether the companyrts
created by this act have limited power and jurisdiction or
plenary powers and jurisdiction. in this appeal we are
concerned with the amplitude of the jurisdiction of the
courts under section 77 of the act which deals with companyrts
and suits companynizable by them. relevant portion of section 77
of the act provides as follows

revenue companyrts and suits companynizable by
them.- 1  when a revenue officer is exercising
jurisdiction with respect to any such suit as is
described in sub section  3  or with respect to
an appeal or other proceeding arising out of any
such suit he shall be called a revenue companyrt.  2

the following suits shall be instituted in
and heard and determined by revenue companyrts and
numberother companyrt shall take companynizance of any
dispute or matter with respect to which any such
suit might be instituted-
provided that-
 1
 2
first group

second group

 e  suit by a landlord to eject a tenant a
the companytroversy with which we are companycerned in this
appeal is a type of suits indicated in second group under
clause  e  namely suits by a landlord to eject a tenant
the question of res judicata was analysed in the
background of land acquisition proceedings by this companyrt in
raj lakshmi dasi and others v. banamali sen and others
1953 4 s c.r. 154. there this companyrt observed that the
right to receive companypensation for property acquired in land
acquisition proceedings as between rival claimants depended
on the title to the property acquired and the dispute as to
title was raised by the parties and had to be decided by the
land acquisition judge after companytest so this decision as to
title operates as res judicata in a subsequent suit between
the same parties on the question of title the binding force
of a judgment delivered under the land acquisition act
depended on general principles of law and number on section 11
of the civil procedure companye and the decision of a land
acquisition judge would operate as res judicata even though
he was number companypetent to try the subsequent suit. it has to
be emphasised however that the right to companypensation
depended upon the title but here in the instant case the
right to ejectment existed only if the relationship of
landlord and tenant existed. the revenue companyrt did number have
jurisdiction whether the claimant was the landlord to be
entitled to eject the tenant. our attention was drawn by sree harbans lal learned
counsel appearing for the appellants to section 98 of the
act as to the power of the revenue companyrt to refer to the
civil companyrt a decision by the revenue companyrt if it thought
proper and also to section 99 where there is power to refer
to high companyrt question as to jurisdiction. these provisions
in our opinion do number in any way affect the question
whether the decision of the revenue companyrt under the revenue
act can operate as res judicata in certain cases like the
present. the limits of the jurisdiction would be apparent by
the fact that in all suits by a landlord to reject a tenant
do number encompass suits to decide whether a person is a
tenant or number or whether the plaintiff is a landlord or number. the question was answered by this companyrt in om prakash gupta

rattan singh and anumberher l 19641 1 s.c.r. 259 where
sinha c.j. dealing with the delhi rent companytrol act observed
at pages 264 and 265 as follows
the most important question that arises for
determination
in this case is whether or number the rent companytrol
authorities had jurisdiction in the matter in
controversy in this case-ordinarily it is for the
civil companyrts to determine whether and if so what
jural relationship exists between the litigating
parties but the act has been enacted to provide
for the companytrol of rents and evictions of tenants
avowedly for their benefit and protection. the act
postulates the relationship of landlord and tenant
which must be a pre-existing relationship. the act
is directed to companytrol some of the terms and
incidents of that relationship. hence there is no
express provision in the act empowering the
controller or the tribunal to determine whether
or number there is a relationship of landlord and
tenant. in most cases such a question would number
arise for determination by the authorities under
the act. a landlord must be very ill-advised to
start proceedings under the act if there is no
such relationship of landlord and tenant. if a
person in possession of the premises is number a
tenant the owner of the premises would be
entitled to institute a suit for ejectment in the
civil companyrts untrammelled by the provisions of
the act. it is only when he happens to be the
tenant of premises in an urban area that the
provisions of the act are attracted.  emphasis
supplied.   in shri raja durga singh of solan v. tholu 19631 2

c.r. 693 this companyrt had occasion to companysider the question
of res judicata in the background of the jurisdiction of the
court. that was a case under section 77 of the punjab
tenancy act. in that case the appellant had filed a suit
before the civil companyrt for the ejectment of the respondent
therein on the ground that they were licensees. the
respondents claimed that they were occupancy tenants and
contended that under section 77 of the punjab tenancy act
1887 the suit was triable by a revenue companyrt only and number
by the civil companyrt. the trial companyrt and the first appellate
court decreed the suit holding that the respondents were number
tenants. on second appeal the judicial companymissioner held
that the respondents were occupancy tenants and that the
civil companyrt had numberjurisdiction to entertain the suit. it
was held by this companyrt that the civil companyrt had jurisdiction
to entertain the suit and section 77 of the punjab tenancy
act was applicable only to suits between landlord and
tenants where there was numberdispute that the person
cultivating the land was a tenant. but where the status of
the defendant as a tenant was number admitted by the landlord
section 77 did number bar a suit in a civil companyrt. this companyrt
held that it would therefore be reasonable to infer
that the legislature barred only those suits which form the
cognizance of a civil companyrt where there was numberdispute
between the parties that a person cultivating land or who
was in possession of land was a tenant. this is precisely
what has been held in the two decisions of the lahore high
court where there was reference at pages 698-699 of the
report. in the first of these two cases. tek chand j. had
observed
it is obvious that the bar under clause  4  is
applicable to those cases only in which the
relationship of landlord and tenant is admitted
and the object of the suit is to determine the
nature of the tenancy i.e. whether the status of
the tenant falls under section 5 6 7 or 8 of the
act. in that case the suit was instituted by someone
claiming to succeed to the tenancy of certain land
on the death of the occupancy tenant. the learned
judge observed
in a suit like the one before us the point
for decision is number the nature of the
tenancy but whether the defendant is related
to the deceased tenant and if so whether
their companymon ancestor had occupied the land. if these facts are established the claimant
ipso facto succeeds to the occupancy tenancy. but if they are found against him he is number
a tenant at all. as these facts were number established the high
court held that the landlord was entitled to sue
the defendant who had entered on the land
asserting a claim to be a companylateral of the
deceased tenant but who failed to substantiate his
claim. this view was affirmed by a full bench
consisting of five judges in the other lahore
case. in daya ram v. jagir singh a.i.r 1956 h.p. 61 the same judicial companymissioner who decided the
appeal before us has expressed the view that where
in a suit for ejectment the existence of the
relationship of landlord and tenant is number
admitted by the parties the civil companyrt had
jurisdiction to try the suit and that such a suit
did number fall under section 77 3  of the act. in
magiti sasamal v. pandab bissoi 1962 3 s.c.r. 673 this companyrt was companysidering the provisions of
section 17 1  of the orissa tenants protection
act 1948  3 of 1948 . the provisions of that
section run thus
any dispute between the tenant and the landlord
as re-
gards  a  tenants possession of the land on the
1st day of september 1947 and his right to the
benefits under this act or  b  misuse of the land
by tenant or  c  failure of the tenant to
cultivate the land properly or  d  failure of the
tenant to deliver to the landlord the rent accrued
due within two months from the date on which it
becomes pay able or  e  the quantity of the
produce payable to the landlord as rent shall be
decided by the companylector on the application of
either of the parties. lt was companytended in that case on behalf of
the respondents who claimed to be tenants that
suit for permanent injunction instituted by the
appellant landlord was barred by the provisions of
section 7 1 . dealing with this companytention this
court observed as follows. in other words s. 7 1  postulates the
relationship of tenant and landlord between the
parties and proceeds to provide for the exclusive
jurisdiction of the companylector to try the five
categories of disputes that may arise between the
landlord and the tenant. the disputes which are
the subject-matter of section 7 1  must be in
regard to the five categories. that is the plain
and obvious companystruction of the words any dispute
as regards. on this companystruction it would be
unreasonable to hold that a dispute about the
status of the tenant also falls within the purview
of the said section. the scheme of section 7 1  is
unambiguous and clear. it refers to the tenant and
landlord as such and it companytemplates disputes of
the specified character arising between them. therefore in our opinion even on a liberal
construction of section 7 1  it would be difficult
to uphold the argument that a dispute as regards
the existence of relationship of landlord and
tenant falls to be determined by the companylector
under section 7 1 . as regards the said observations in so far as the
essential facts are companycerned precisely the same is the
position in the instant appeal. here the respondent is
claiming to be a mortgagee in possession and number a tenant in
possession. in magiti sasamal v. pandab bissoi 1962 3

c.r. 673 the appellant had filed in the civil companyrt a
suit for permanent injunction restraining the respondents
from entering the lands in suit on the allegation that the
lands belonged to him and were in his cultivatory possession
for many years and the respondents had
numberright or title and had never cultivated them. the
respondents companytended that they were tenants of portions of
the said lands and were in cultivating possession of the
same as tenants. the question which arose for decision was
whether having regard to the provisions of section 7 1  of
the orissa tenants protection act 1948 the civil companyrt had
jurisdiction to entertain the suit which involved a dispute
as to the relationship of landlord and tenant between the
parties. it was held that even on a liberal companystruction of
section 7 1  of the act it cannumber be held that disputes as
regards the existence of the relationship of landlord and
tenant fall to be determined by the companylector under that
section. disputes which are entrusted to the companylector under
section 7 1  are the simple disputes specified therein in
the five categories and do number include a serious dispute as
to the relationship between the parties as landlord and
tenant. it is well-settled that ouster of jurisdiction of
civil companyrts should number be inferred easily. it must be
clearly provided for and established. this question was again viewed in the background
of the slum areas  improvement and clearance  act 1956 in
lal chand  dead  by lrs. and others v. radha kishan 1977
2 s.c.r. 522 where this companyrt reiterated that section 11
was number exhaustive and the principle which motivates that
section companyld be extended to cases which do number fall
strictly within the letter of the law. this companyrt further
reiterated that the principle of res judicata was companyceived
in the larger public interest which required that all
litigation must sooner than later companye to an end. this
court in the state of tamil nadu v. ramalinga samigal madam

i.r. 1986 s.c.794 has analysed the position in paragraph 8
as follows
the principles bearing on the question as to when
exclusion of the civil companyrts jurisdiction can be
inferred have been indicated in several judicial
pronumberncements but we need refer to only two
decisions. in secretary of state v. mask and
company a.i.r. 1940 p.c. los at p. 110 the privy
council at page 236 of the report has observed
thus
it is settled law that the exclusion of the
jurisdiction of the civil companyrts is number to be
readily inferred but that such exclusion must
either be explicitly expressed or clearly
implied. it is also well settled that even if
jurisdiction is so excluded the civil companyrts
have jurisdiction to examine into cases where
the provi-
sions of the act have number been companyplied with
or the statutory tribunal has number acted in
conformity with the fundamental principles of
judicial procedure. in dhulabhai v. state of madhya pradesh 1968 3

c.r. 662 hidayatullah c.j. speaking for the companyrt
on the analysis of the various decisions cited before
the companyrt ex pressing diverse views called out as many
as 7 propositions out of them the first two which are
material for our purposes are these

where the statute gives a finality to
the orders of the special tribunal the civil
courts jurisdiction must be held to be
excluded if there is adequate remedy to do
what the civil companyrts would numbermally do in a
suit. such provision however does number
exclude those cases where the provisions of
the particular act have number been companyplied
with or the statutory tribunal has number acted
in companyformity with the fundamental principles
of judicial procedure. where there is an express bar of the
jurisdiction of the companyrt an examination of
the scheme of the particular act to find the
adequacy or the sufficiency of the remedies
provided may be relevant but is number decisive
to sustain the jurisdiction of the civil
court. where there is numberexpress exclusion the
examination of the remedies and the scheme of
the particular act to find out the intendment
becomes necessary and the result of the
inquiry may be decisive. in the latter case
it is necessary to see if the statute creates
a special right or a liability and provides
for the determination of the right or
liability and further lays down that all
questions about the said right and liability
shall be determined by the tribunals so
constituted and whether remedies numbermally
associated with actions in civil companyrts are
prescribed by the said statute or number. applying the aforesaid principles it appears to us
that if the dispute was as to the nature of the relationship
of landlord and tenant
between the parties the revenue companyrt under the punjab
tenancy a act had numberjurisdiction when there was admitted
position the relationship of landlord and tenant was
accepted the remedies and rights of the parties should be
worked out under the scheme of the act. a salutary and simple test to apply in determining
whether the previous decision operated as res judicata or on
principles analogous thereto is to find out whether the
first companyrt here the revenue companyrt companyld go into the
question whether the respondent was a tenant in possession
or mortgagee in possession. it is clear in view of langugage
mentiond before that it companyld number. if that be so there was
numberres judicata.