civil appellate jurisdiction civil appeals number. 19 20 of
1963.
appeals from the judgment and decree dated july 31 1959 of
the patna high companyrt in appeals from original decree number. 30
and 40 of 1953 respectively. t. desai and r. c. prasad for appellant. sarjoo prasad and d. goburdhan for the respondents number.1 to
4 in c. a. number 19 of 1963.
sarjoo prasad and k. k. sinha for respondents number. 5-7 and
9 in c. a. number 19 of 1963 and 1-3 and 5 in c. a. number 20
of 1963.
the judgment of the companyrt was delivered by
bachawat j. one ramyad singh was a member of a joint family
and has eight annas interest in the joint family properties. he was a hindu governed by the mitakshara school of hindu
law. he died issueless leaving his widow mst. bhagwano
kunwar. the date of his death is in dispute. after his
death bhagwanumberkunwar filed the present suit for partition
of the joint family properties claiming eight annas share
therein. she companytended that ramyad singh died in 1939 after
the passing of the hindu womens rights to property act
1937 and she was entitled to maintain the suit for
partition. the defendants companytended that ramyad singh died
ill 1936 before the passing of the act and she was entitled
to maintenance only. the trial companyrt accepted the
plaintiffs companytention aid decreed the suit. the defendants
filed two separate appeals to the high companyrt. on december
15 1958 bhagwanumberkunwar died. the high companyrt passed
orders substituting one ram gulam singh in her place. later the high companyrt recalled these orders as it was
conceded that ram gulam singh was number her legal
representative. by a deed dated march 14 1958 bhagwano
kunwar had sold lands measuring 1 bigha 5 kathas to the
appellant. the high companyrt allowed the appellants
application for substitution under 0.22 r. 10 of the companye of
civil procedure and proceeded to hear the appeals. the high
court accepted the defendants companytention reversed the
decree passed by the subordinate judge and dismissed the
suit. the appellant has number filed these appeals under
certificates granted by the high companyrt. the main point in companytroversy is did ramyad singh die in
1936 or did he die in 1939? if he died in 1936 bhagwano
kunwar was number entitled to maintain the suit for partition
and the suit was liable to be dismissed. but if he died in
1939 she was entitled to eight annas share in the joint
estate and was entitled to maintain the suit for partition
under the hindu womens rights to property act 1937 read
with the bihar hindu womens rights to property  extension
to agricultural land  act 1942. moreover it is companyceded
by companynsel for the respondents that in that event after 1956
-she held her eight annas share in the joint estate as full
owner by virtue of s. 14 of the hindu succession act 1956
and on the strength of the sale deed dated march 14 1958
executed by mst. bhagwanumberkunwar the appellant was entitled
to companytinue the suit for partition .after her death. there is companyflicting oral evidence with regard to the date
of death of ramyad singh. the appellant relied strongly
upon an admission made by the main companytesting defendants
janki singh and kailashpati singh in a plaint signed and
verified by them and filed in title suit number 3 of 1948. in
that plaint janki singh and kailashpati singh claimed
partition of the joint family properties implead-
ing bhagwanumberkunwar as defendant number 8 and other members of
the joint family as defendants number. 1 to 7. in this plaint
janki singh and kailashpati singh stated

that the properties described in schedule
1 to 2 in the plaint belong to the joint
family. as the said babu ramyad singh died in
1939 the defendant number 8 also became entitled
to life interest in the properties of the
joint family. the defendant number 8 surrendered
her life estate to the plaintiffs and the
defendants number. 1 to 7 and she gave up her
possession of the joint family properties. the plaintiffs and the defendants number. 1 to 7
have been companying in joint possession of the
properties under partition. that the defendant number 8 is also made a
defendant in this suit as she is entitled to
maintenance
the plaint companytained a clear admission that ramyad singh
died in 1939. the high companyrt ruled that bhagwanumberkunwar
could number rely on this admission. the high companyrt said that
she companyld number rely upon the statement that ramyad singh died
in 1939 as she was number prepared to admit the companyrectness of
the statement that she had surrendered her estate and was
entitled to maintenance only. we are unable to accept this
line of reasoning. it is true that bhagwanumberkunwar relied
only upon the statement that ramyad singh died in 1939 and
was number prepared to accept the statement that she had
surrendered her share to the other members and was entitled
to maintenance only. but she tendered the entire plaint
and she did number object to the admissibility or proof of any
of the statements made therein. all the statements in the
plaint are. therefore admissible as evidence. the companyrt
is however number bound to accept all the statements as
correct. the companyrt may accept some of the statements and
reject the rest. in the presented suit it is companymon case
that bhagwanumberkunwar did number surrender her share in the
estate. we must therefore reject the statement with
regard to the alleged surrender and the companysequential
allegation that she was entitled to maintenance only. the
statement in the plaint as to the date of death of ramyad
singh must be read as an admission in favour of bhagwano
kunwar. the high companyrt also observed that an admission in a pleading
can be used only for the purpose of the suit in which the
pleading was filed. the observations of beaumont c.j. in
ramabai shriniwas v. bombay government l  lend some
countenance to this view. but those observations were
commented upon and explained by the bombay high companyrt in d.

mohite v. s. i mohite 2 . an admission by a party in a
plaint signed and verified by him in a prior suit is an
admission within the meaning of s. 17 of the indian

a.i.r. 196o bom. 153.

a.i.r. 1941 bom. 144.
evidence act 1872 and may be proved against him in other
litigations. the high companyrt also relied on the english law
of evidence. in phipson on evidence 10th edn art. 741
the english law is thus summarised
pleadings although admissible in other
actions to show the institution of the suit
and the nature of the case put forward are
regarded merely as the suggestion of companynsel
and are number receivable against a party as
admissions unless sworn signed or otherwise
adopted by the party himself. thus even under the english law a statement in a pleading
sworn signed or otherwise adopted by a party is admissible
against him in other actions. in marianski v. cairns 1
the house of lords decided that an admission in a pleading
signed by a party was evidence against him in anumberher suit
number only with regard to a different subject-matter but also
against a different opponent. moreover we are number
concerned with the technicalities of the english law. section 17 of the indian evidence act 1872 makes numberdis-
tinction between an admission made by a party in a pleading
and other admissions. under the indian law an admission
made by a party in a plaint signed and verified by him may
be used as evidence against him in other suits. in other
suits this admission cannumber be regarded as companyclusive and
it is open to the party to show that it is number true. the explanation of janki singh and kailashpati singh that
the plaint was drafted by their lawyer ramanand singh at the
instance of the panchas including- one ramanand and they
signed and verified the plaint without understanding its
contents cannumber be accepted. there is positive evidence on
the record that the plaint was drafted at the instance of
janki singh and was filed under his instructions. the
plaint was signed number only by janki singh and kailashpati
singh but also by their lawyer ramanand singh. neither
ramanand singh number the panch ramanand was called as a
witness. even in this litigation ramanand singh was acting
as a lawyer on behalf of some of the defendants. kailashpati singh is a homeopathic medical practitioner and
knumbers english. the plaint was read over to janki singh. both janki singh and kailashpati singh signed the plaint
after understanding its companytents and verified all the
statements made in it as true to their knumberledge. they then
well knew that ramyad singh had died in 1939 after the
passing of the hindu womens rights to property act. it is
number shown that the admission in the plaint as to the date of
death of ramyad singh is number true or that it was made under
some error or misapprehension. this admission must be
regarded as a strong
 1  1 macq. 212  h.l. . piece of evidence in this suit with regard to the date of
death of ramyad singh. bhagwanumberkunwar and her witnesses ram gulam singh ram
saroop singh and sheo saroop singh gave evidence in sep-
tember 1952. they all swore that ramyad singh died 13
years ago. in agreement with the trial judge we accept
their testimony. learned companynsel companymented on the testimony
of sheo saroop singh who had said that the last earthquake
took place 15 to 16 years ago and ramyad singh died 2 years
8 months thereafter. the last earthquake took place on
january 15 1934 and companynsel therefore argued that ramyad
singh companyld number have died in 1939. clearly there is some
confusion in the evidence of sheo saroop singh. he gave
evidence in september 1952 and his statement that the
earthquake took place 15 to 16 years ago companyld number be
correct and his further statement that ramyad singh died 2
years 8 months after the earthquake was number accurate. he
swore positively that ramyad singh died 13 years ago. bhagwanumberkunwar said that there were receipts to show that
ramyad singh died 13 years ago. on her behalf rent receipts
for 1339 1341 1342 1343 1345 1348 1356 and 1359 faslis
were tendered. the rent receipts are in respect of certain
lands held by her as a tenant. the first four rent receipts
show that -lip to 1343 fasli companyresponding to 1936 the rent
used to be paid by her through ramyad singh. payment of the
rent for 1345 fasli was made in 1346 fasli companyresponding to
1939 through janki. the rent for the subsequent years was
paid through janki and other persons. the high companyrt
thought that the rent receipts showed that ramyad singh died
in 1936 and because of his death rent was subsequently paid
through other persons. but the rent receipt for 1344 fasli
is number forthcoming and it is number knumbern who paid the rent
for 1344 fasli  1937 . moreover assuming that ramyad singh
did number pay rent in 1937 and 1938 it does number follow that
he must have died in 1936. kailashpati singh janki singh
and other witnesses called on behalf of the defendants said
that ramyad singh had died 16 years ago. in agreement with
the trial companyrt we do number accept their testimony. janki
singh and kailashpati singh gave false explanations with
regard to the admission made by them in the plaint in the
previous suit. moreover for the purpose of defeating the
title of bhagwanumberkumar they set up a companypromise decree
passed in that suit. the trial companyrt found that the
compromise decree was obtained by them by practising fraud
on mst. bhagwanumberkunwar and this finding is numberlonger
challenged. we therefore hold and find that ramyad singh died in 1939.
it follows that bhagwanumberkunwar was entitled to eight annas
share in the joint family estate and was entitled to
maintain the suit. the trial companyrt therefore rightly
decreed the suit. but in view of the death of bhagwanumberkunwar during the
pendency of the appeal in the high companyrt the decree passed
by the trial companyrt must be modified. the appellant
purchased from bhagwanumberkunwar 1 bigha 5 kathas of land
under the deed dated march 14 1958 and he can claim only
the rights of an alienee of a specific property from a company
owner on a general partition of the undivided properties. all the parties appearing before us companyceded that on such a
partition the appellant is entitled to allotment and
separate possession of the lands purchased by him under the
deed dated march 14 1958. the deed is number printed in the
paper book. it will be the duty of the trial companyrt number to
ascertain full particulars of the aforesaid lands. the appeals are allowed with companyts in this companyrt and in the
high companyrt.


original jurisdiction writ petitions  civil  number. 5117/ 81 7340/81 3656-84/82 6381-82 6951-52/82 8010-
19/82 8108-11/82 90 19-20/82 5241-60/83 1734-35/83 and
559-560/83.  under article 32 of the companystitution of india . kanta rao for the petitioners. seetharamiah t.v.s.n. chari ms. vrinda grover ch. badri nath a.k. sanghi g.s. chatterjee p.n. mishra a.v
rangam pramod swarup d. goburdhan and m.n. shroff for the
respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji j.

p. number 5117/81 3656-84/82 5241-5260/83. 7340/81
these four batches of writ petitions challenge the
imposition of sales tax on bread rusk and bun under the

p. sales tax act 1957 as illegal. the main and the first
contention was that the bread and biscuits belong to one
homogeneous class but these have been differently treated
for taxation under schedule i item number 117 and schedule i
item number 129 of the said act. in other words the companytention
of the petitioners is that the bread and biscuits are the
same they should number be differently taxed. the purchasers
and sellers of bread and biscuits have been differently
taxed in support of this companytention reliance was placed on
certain decisions of this companyrt namely-
state of andhra pradesh anr. v. nalla raja reddy
ors. 1967 3 scr 28 new manek chowk spinning and weaving
mills company limited and ors. v. municipal companyporation of the city
of ahmedabad and others 1967 2 scr 679. we do number find
any proposition in those decisions in support of this
contention of the petitioners. the decision of the allahabad
high companyrt in annapurna biscuit  mfg.  company and anumberher v.
the state of u.p. and anumberher 1975 35 s.t.c. 127 does number deal with this companytention at all. a
the second companytention sought to be raised was that the
multiple point tax violates article 19 1  g  of the
constitution. the petitioners being bakeries this
contention is number open to the petitioners. the third companytention sought to be raised was that
excise duty and sales tax are imposed on the same items. this also does number arise in the case of the petitioners who
are bakeries. apart from that the taxable events in these
two impositions are different. so this companytention cannumber in
any event be raised. the fourth companytention sought to be raised was the
surcharge. this point in our opinion does number arise. furthermore this point is companycluded by the observations of
this companyrt in the case of hoechst pharmaceuticals limitedand
anumberher etc. v. state of bihar and others 1983 3 s.c.r. indeed all these companytentions raised on behalf of the
petitioners have been negatived by this companyrt in the
aforesaid decision. we reiterate that the econumberic wisdom of a tax or lack
of it are within the exclusive domain of the legislature. the only question for the companyrt to companysider it whether there
is rationality in that behalf of the legislature that
capacity to pay the tax increases by and large with an
increase of receipts. from any point of view there is
rationality in this proposition. it is sound companymonsense. it
is in companysonance with social justice to which we are
committed by our companystitution. in that view of the matter the challenge to the
imposition under article 14 as well as article 19 1  g  of
the companystitution are number sustainable. these writ petitions must fail and are dismissed
accordingly. there will be numberorder as to companyts. interim
orders if any are vacated w.p. number. 6381-82/82 6951-
52/82 8010-19/82 8108-11/82 9019-20/ 82 1734-35/83 559-
560/83. in view of the judgment in w.p.


civil appellate jurisdiction civil appeal number 156 of 1969.
appeal by certificate from the judgment and order dated the
10th and 11th february 1967 of the bombay high companyrt in
income-tax reference go. 35 of 1962.

b. ahuja r. n. sachthey and s. p. nayar for the
appellant. m. hajarnevis s. balakrishnan g. p. sahasrabhudhe and

m. ghatate for the respondent. the judgment of the companyrt was delivered by
khanna j. this appeal on certificate granted by the bombay
high companyrt is directed against the judgment of that companyrt
whereby it answered the question referred to it under
section 66 1  of the indian income tax act 1922
 hereinafter referred to as the act  in favour of the
respondent assessee. the reference arose out of the assessment made upon the res-
pondent firm for the assessment year 1951-52 the account
year for which is the samvat year 2006  that is october
22 1949 to numberember 9 1950 . the respondent was carrying
on business for several years in the past in timber under
the name and style of manna ramji company in bhavani peth
poona city. the business premises companysisted of an office
and six sheds used for storing wood and timber of all kinds. the respondent firm companystructed the six sheds for the
purpose of its business after taking the site thereof on a
long lease. on may 19 1944 the companylector of poona
requisitioned the premises of the respondent under the
defence of india act as from may 19 1944 for the purpose of
using them as store houses for food grains. initially the
requisition order companyered the six sheds as well as the
office of the respondent but at the request of the
respondent firm the companylector agreed to allow it to remain
in possession of the office premises. in october 1944 the
respondent made a claim for rs. 185200 on account of
compensation for the requisitioned premises. in june 1946
the companylector offered referred to pay companypensation at the
rate of rs. 310 per month. the respondent feeling
dissatisfied with the offer of the companylector moved the
government for a reference to arbitration under the
provisions of the defence of india act. the civil judge
senior division poona was thereafter appointed arbitrator
on numberember 10 1947. the government appointed its
consulting surveyor as an assessor to help the arbitrator in
determining the amount of companypensation. as against that the
respondent appointed an architect as its assessor. there
was companysiderable difference in the estimates of the two
assessors regarding the amount of companypensation payable to
the respondent. 1070
the civil judge who had been appointed arbitrator gave
his award on april 15 1948. the operative part of the
award of the arbitrator was as under
the government do pay companypensation to the
claimants as follows

rs. 210/- per month for rent of the
premises from the 15th may 1944 till the date
of restoring the premises to the claimants. a lump sum of rs. 125500/- for loss of
earnings. a sum of rs. 100/- in respect of the
wooden frames. interest at 3 on rs. 125500/- from
the 15th numberember 1944 till the date of
actual payment. the government was also ordered to pay rs. 2000/- as companyts
to the respondent. the government filed an appeal against
the award of the arbitrator but the same was dismissed by
the high companyrt on august 7 1949. the respondent was
thereafter paid the amount of rs. 170330-10-0 in the
samvat year 2006. the above amount included rs. 125500 on
account of lump sum for loss of earnings and rs. 2000 on
account of companyts of arbitration. in companyputing the respondents total income the income tax
officer brought to tax the two sums of rs. 22180/- on
account of rent receipts and rs. 20551 on account of
interest. besides that. the income tax officer brought to
tax the sum of rs. 150074/under section 10 of the act by
attributing it to the respondents business in timber. this
figure of rs. 105074/- was arrived at by deducting out of
rs. 125500 a sum of rs. 20426/ which according to the
income tax officer had been spent by the respondent in the
claim proceedings against the government over and above the
amount of rs. 2000/- which had been awarded as companyts by the
arbitrator. the respondent feeling aggrieved by the finding
of the income tax officer that the sum of rs. 105074
wasbusiness and taxable receipt filed appeal against the
order of the income tax officer. the appellant assistant
commissioner accepted the respondents appeal and held that
the above amount was capital receipt. on further appeal by
the department the income tax appellate tribunal held that
the sum of rs. 125500 was a revenue receipt as it had been
received on account of the loss of earnings of the timber
business. the respondent was however. allowed to set off
the losses of rs. 4572 and rs. 490 which bad been brought
forward from the assessment years 1949-50 and
1071
1950-51 against the sum of rs. 105074. on being moved by
the respondent the tribunal referred the following question
to the high companyrt
whether on the facts and in the
circumstances of the case the sum of rs. 105074/- received by the applicant as
compensation from the government is taxable as
income of the applicant or is a capital
receipt in its hands ? the high companyrt held that the amount received by the
respondent for the requisitioning of the six sheds or
godowns was in the nature of capital receipt in the hands of
the respondent-firm for the damage sustained in the profit
making apparatus. it was in the opinion of the high companyrt
number a revenue receipt and as such number taxable. in appeal mr. ahuja on behalf of the appellant has assailed
the judgment of the high companyrt and has urged that the sum of
rs. 105074 received by the respondent was a revenue
receipt and number a capital receipt as the amount represented
the companypensation payable for loss of earnings companysequent
upon the requisition of the sheds of the respondent. as
against that mr. hajarnavis on behalf of the respondent has
urged that the amount in question was a capital receipt and
the decision of the high companyrt in this respect was companyrect. in our opinion the companytention advanced on behalf of the
appellant is well founded and that the sum in question
represents a revenue receipt and number a capital receipt. in order to resolve the companytroversy as to whether the sum of
rs. 105074 received by the respondent was a revenue
receipt or a capital receipt we must try to ascertain the
true nature and character of the payment. although the
distinction between capital receipt and revenue receipt is
well recognised the task of assigning it to the appropriate
head in border line cases is number free from difficulty and
becomes one of such refinement. decided cases can provide
illustrations and afford indications of the kind of
considerations which may relevantly be borne in mind in
approaching the problem. in the final analysis however
the companytroversy would have to be resolved in the light of
the facts and circumstances of each individual case. it
would therefore be relevant to look into the
circumstances under which the payment was made. in this
respect we find that after the sheds of the respondent
had been requisitioned the respondent companymenced proceedings
for claiming companypensation. the civil judge poona was
appointed arbitrator to determine the amount of
compensation. in the companyrse of proceedings before the
arbitrator the respondent filed written statement claiming
compensation inter alia for loss of profits. the
arbitrator by his award dated april 15 1948
1072
awarded a sum of rs. 125500 for loss of earnings to the
respondent. in addition to that we have the finding of the
tribunal that the respondent firm during the period for
which the claim for companypensation was made had been carrying
on business in its usual name and style in the same office
premises in which it used to carry on business prior to the
requisition of the godowns by the government. the effect of
the requisition of the godowns according to the tribunal
was number to stop the business of the respondent. on the
contrary the respondent companytinued to carry on the business
though at a reduced scale. the finding of the tribunal in
this respect was as under
as already pointed out the office premises
remained with the assessee firm and the
business of disposing of the stock-in-trade
continued to be directed from that place. thus this was number a case of a business companying
to a standstill altogether but it is a case of
carrying on the same business on a smaller
scale. even this business was carried on by
the assessee firm in its usual name and style
from the same office premises from which it
used to carry it on prior to the requisition
of the godowns by the government if any
injury was caused to the assessees business
including the capital assets it held for the
purpose of carrying on that business it was
to the volumes of the business and number to the
profit making apparatus itself. in the light of the above findings of fact we have numberdoubt
that the amount received by the respondent for the loss of
earnings was revenue receipt. it can hardly be disputed
that if the respondent firm had been earning profits as a
result of its business during the years the premises in
question remained under requisition the said profit would
have been treated as revenue receipt and liable to be taxed
as such. the amount received in lieu of the profits which
would have been earned if the premises had number been
requisitioned in our opinion would partake of the same
character as the profits. the present is number a case wherein
the respondent firm was permanently deprived of a source of
income. on the companytrary the present is a case arising out
of requisition of the premises. requisition unlike
acquisition is of a temporary nature and though it may
extend over some years it has number the element of perma-
nence. the companypensation paid to the respondent represents
the supposed profit which the respondent would have earned
during the years the premises remained under requisition but
which profit the respondent companyld number earn because of the
requisitions. a case somewhat similar to the present case is companymissioner
of income tax excess profits tax bombay city v. shamsher
1073
printing press 1 . the respondent firm in that case had for
the purpose of its business a printing press. the premises
in which he press was housed were requisitioned by the
govermnent and the respondent had to shift its business to
anumberher place. of the various sums paid as companypensation for
the requisition the government paid rs. 57435 towards the
claim of the respondent on account of the companypulsory
vacation of the premises disturbance and loss of business. it was held by this companyrt that the sum of rs. 57434 had number
been received by the respondent for any injury to its
capital assets including goodwill. the above sum it was
further held had been received as companypensation for loss of
profit and was a revenue receipt liable to tax. reference has been made by mr. hajarnavis to the
observations in the award of the arbitrator regarding the
manner of companyputing the companypensations payable to the
respondent for the loss of earning. the arbitrator in this
connection took the view that the amount of two years
purchase made by the respondent would be the most equitable
and fair figure for determining the amount of companypensation. the lump sum payable to the respondent for loss of earning
was thus found to be rs. 125500. the important thing to
numbere is that the above sum was paid to the respondent on
account of loss of earning. the method of companyputing the
cornpensation payable for the loss of earning would number in
our opinion alter the real character or the essential
nature of the receipt of the said companypensation in the hand
of the respondent as observed by lord buckmaster in the
case of the glennboig union fireclay company limited v. the
commissioners of inland revenue  2   there is numberrelation
between the measure that is used for the purpose of
calculating a particular result and the quality of the
figure that is arrived at by means of the application of
that test. the above observation was quoted with approval
by this companyrt in the case of sonairam doongermall v.
commissioner of income tax 3  and it was held that it is the
quality of payment that is decisive of the character of the
payment and number the method of the payment or its measure as
makes it fall within capital or revenue. reliance has been placed by mr. hajarnavis on the ratio of
the decision of this companyrt in the case of senairam
doongarmall  supra . the assessee family in that case owned
a tea estate companysisting of tea gardens factories and other
buildings and carried on the business of growing and
manufacturing tea. the factory and other buildings on the
estate were requisitioned for defence purposes by military
authorities. though the assessee companytinued in possession of
the tea gardens and tended them to preserve the plants the
manufacture of tea was stopped companypletely. the
 1  1960 39 i. t. r. 90.  2  12 t. c. 427. 19-li72sup.ci/73  3  1961 42 i. t. r. 392 387. 1074
assessee was paid companypensation for the years 1944 and 1945
under the defence of india rules calculated on the basis of
the out-turn of tea that would have been manufactured by the
assessee during that period. this companyrt held that the
amount of companypensation received by the assessee was number
revenue receipt and did number companyprise any element of income. in arriving at that companyclusion the companyrt took numbere of the
fact that tax was payable by an assessee under the head
profits and gains of a business in respect of a business
carried on by him. as the assessee had number carried on any
business at all the companypensation received by the assessee
was held to be number profit of business. this case in our
opinion cannumber be of much help to the respondent because in
the present case as observed earlier the tribunal has
expressly found that the respondent was carrying on the
business during the relevant years. reliance has also been placed by mr. hajarnavis upon the
decision of house of lords in the case of the glenboig union
fireclay company limited  supra . the assessee in that case was
carrying on business for the manufacture of fireclay goods
and had taken in companynection with that business a fireclay
field on lease over part of which ran the lines of the
caledonian railway. the railway administration prohibited
the assessee from excavating the field within a certain
distance of the rails and paid companypensation therefor in
accordance with the provisions of a statute. it was held by
the house of lords that this was a capital receipt as the
compensation was really the price paid for sterlising the
assets from which otherwise profit might have been
obtained. it would follow from the above that the fireclay
field was accepted to be a capital asset which was to be
utilised for the carrying on of the business of
manufacturing fireclay goods. when the assessee was prohi-
bited from exploiting the field it was companysidered to be an
injury inflicted on his capital asset. the case of the
glenboig union fireclay company limited  supra  was cited before
this companyrt in companymissioner of income tax nagpur v. rai
bahadur jairam valji and others 1  and senairam doongarmall
 supra  and was distinguished on the ground that it related
to the sterlisation and destruction of a capital asset. in
the present case there has been numbersterlization and
destruction of the capital asset of the respondent firm. as
such the case of the glenboig union fireclay company limited
cannumber afford much assistance in the present case. reference has also been made by mr. hajarnavis to the cases
of s. r. y. sivaram prasad bahadur v. companymissioner of income
tax andhra pradesh  2   and companymissioner of income tax. punjab haryana jammu kashmir and himachal pradesh v.
prabhu dayal 3 . sivaram prasad bahadurs case related to
 1  1959 35 i. t. r. 148.  2  1971 82 i. t. r. 527.  3  1971 82 i. t. r. 604. 1075
interim payments made under the madras estates  abolition
and companyversion into ryotwari  act 1948 to a former holder
of an estate which had been abolished during the period
between the taking over of the estate and the final
determination and deposit of companypensation under that act. it was held to be a capital receipt and number liable to tax. prabhu dayals case related to an assessee who had
discovered by chance the existence of kankar in the jind
state. the assessee brought about an agreement between the
state and one shanti prasad jain for the acquisition of sole
and exclusive monumberoly rights for manufacturing cement. shanti prasad jain transferred his rights under the
agreement to a companypany of which the assessee was one of the
promoters. for the services rendered by him the companypany
agreed to pay the assessee a companymission of 1 per cent on the
yearly net profits earned by the companypany. the agreement was
acted upon till 1950 whereafter the companypany did number pay the
commission to the assessee. the assessee filed a suit which
ended in a companypromise. in terms of the companypromise the
assessee was paid certain amounts as companymission for the
years 1951 1952 and 1953 and a further sum of rs. 70000 by
way of companypensation for the determination of the agreement
between him and the companypany as from january 1 1954.
question which arose for determination was whether the sum
of rs. 70000 was capital receipt in the hand of the
assessee. the assessee it was found had number engaged
either in the business of discovering kankar or any minerals
or in the business of bringing about agreement between the
parties. there was indeed numberevidence that he was a
business man. it was held that numbere  if the activities of
the assessee companyld be companysidered to be business activity. the companypromise in the opinion of this companyrt destroyed an
income yielding asset of the assessee and in its place he
was given rs. 70000 as companypensation. the sum of rs. 70000
was accordingly held to be capital receipt. it is manifest
from the narration of the facts of sivaram prosad bahadur
and prabhu dayals cases that there is numbersimilarity
between those cases and the present case. as such these
two decisions cannumber be of any avail to the respondent. it may also be mentioned that mr. hajarnavis has assailed
the findings of fact of the tribunal. in this respect we
are of the view that the tribunal is the final fact finding
authority. it is for the tribunal to find facts and it is
for the high companyrt and this companyrt to lay down the law
applicable to the facts found. neither the high companyrt number
this companyrt has jurisdiction to go behind or to question the
statement of facts made by the tribunal. the statement of
case is binding on the parties and they are number entitled to
go behind the facts of the tribunal in the statement. when
the question referred to the high companyrt speaks of on the
facts and circumstances of the case it means on the facts
and circumstances
1076
found by the tribunal and number on the facts and circumstances
as may be found by the high companyrt  see karnani properties
ltd. v. companymissioner of income tax west bengal 1 . as a result of the above we accept the appeal set aside
the judgment of the high companyrt and answer the question
referred by the tribunal in favour of the department.


civil appellate jurisdiction civil appeal number 1466 of
1967.
appeal by special leave from the judgment and decree dated
24th numberember 1964 of the patna high companyrt in appeal from
appellate decree number 1029 of 1968.

c. agarwala and v. j. francis for the appellants. goburdhan for respondent number. 1 to 3 10.
the judgment of the companyrt was delivered by
mathew j.-this is an appeal by special leave by the
plaintiffs from a decree passed in appeal by the patna high
court dismissing their suit for recovery of the plaint
property with mesne profits. plaintiffs 1 to 4 are the daughters sons of one kishundeo
singh plaintiffs 5 and 6 are his daughters and plaintiff 7
is his widow. the plaint property together with some other
properties belonged to the joint family of which kishundeo
singh and his brothers were the members. suit number 60/34 of
1944-46 was instituted for partition of the properties. that suit was companypromised on july 4 1947 and different
schedules were prepared for the property allotted to the
shares and sons property was left in the joint possession of
all of them. the plaint property fell to the share of
kishundeo singh under the companypromise. lit may be mentioned
that as numbere of the parties to the companypromise produced the
necessary stamp paper as directed by the companyrt numberdecree
was drawn up by the companyrt. in the suit for recovery of possession of the plaint
property filed by the plaintiffs defendants 1 and 2
contended that kishundeo singh while he was alive executed
a hukumnama in 1354 fs. in their favour and they were put
in possession of the plaint property as lessees and so they
were entitled to remain in possession. they further
contended that the suit was barred by limitation and also by
s. 47 of the civil procedure companye. the trial companyrt found that kishundeo singh obtained posses-
sion of the plaint property on the basis of the companypromise
that the case of the defendants 1 and 2 that kishundeo singh
had executed a hukumnama in their favour and that they
obtain possession of the plaint property under it was false
that the suit was number barred by limitation or by s. 47 of
the civil procedure companye and decreed the suit. this decree
was companyfirmed in appeal. it was against this decree that
the second appeal was filed by the defendants before the
high companyrt. the high companyrt held that the plaintiff should have paid the
stamps fee and got the decree drawn up in suit number 80/34 of
1944-46 and executed it and so the suit was barred by s. 47
of the civil procedure companye. the companyrt further held that
since the plaint property had vasted in the bihar government
under the bihar land reforms act 1959 hereinafter referred
to as the act the plaintiffs were number entitled to maintain
the suit. therefore the high companyrt allowed the appeal and
dismissed the suit. the two questions that arise for companysideration in this
appeal are whether the suit was barred by s. 47 of the
civil procedure companye and whether under the provisions of
the act the plaint property bad vested in the government
and therefore the plaintiffs were incompetent to maintain
the suit. as the first question the high companyrt was of the view that
though numbere of the parties to the companypromise had produced
the necessary stamps paper as directed by the companyrt and no
formal decree was drawn up the plaintiffs companyld number have
instituted a fresh suit for recovery of possession of the
plaint property as their only remedy was to execute the
decree in suit number 80/34 of 1944-46. in other words the
high companyrt held that the plaintiffs should have produced the
necessary stamp paper and got the final drawn up and
executed it instead of filing a suit for the relief which
they companyld have obtained by executing the decree and so the
suit was barred by s.47 of the civil procedure companye. the trial companyrt had found that kishundeo singh obtained
possession of the plaint property without the assistance of
the companyrt in pursuance of the companypromise but that he allowed
the defendants to occupy the same. to put it in other
words the finding of the trial companyrt was that the
defendants were in permissive occupation. the trial companyrt
also found that the definite case of the defendants was that
they were put in possession of the property under the
hukumnama and therefore their possession was clearly that
of lessees under an agricultural lease. the lower appellate companyrt held that there was numberallegation
in the plaint that kishundeo singh obtained khas possession
under the companypromise number was there any evidence to show that
he obtained
khas possession but that defendants 1 and 2 companytinued in as
before the companypromise. before the companypromise kishundeo singh and the defendants
were in possession as tenants-in-common. the actual
possession of the defendants of the plaint property was
also the companystructive possession of kishundeo singh. so
when the lower appellate companyrt said that the defendants
continued in possession as before it can only mean that
after the companypromise the defendants were in possession
acknumberledging the title of kishundeo singh. that apart
defendants 1 and 2 had numbercase that they intended to
possess the property as their own. it is clear from the
compromise petition that the defendants were permitted to
occupy the plaint property until the structure which was
constructed in the property was removed by them. they no
doubt remained in physical possession but that was number
with any intention to possess the property for themselves
but because they were permitted to remain in possession
until the structure companystructed by them was removed. the
only right which they claimed in the written statement was
that they were tenants under kishundeo singh by virtue of
the hukumnama executed by him in their favour. at numbertime
they asserted or claimed any right to remain in possession
otherwise than as tenant. as already stated their case
that kishundeo singh put them in possession under the
hukumnama was found against by the trial as well as the
first appellate companyrt. but that would number in any way affect
the permissive nature of their possession after the
compromise. therefore we think that kishundeo singh was in
constructive possession of the property after the companypromise
and the suit for recovery of khas possession was number barred
by s.47 of the civil procedure companye. the second ground on which the high companyrt dismissed the suit
was that the plaint property had vested in the state of
bihar under the act and the plaintiffs had therefore no
right to proceed with the suit and obtain a decree for
possession. the suit was instituted on march 7 1953 the
property vested in the state on january 26 1955 under the
act. there is numberdispute that the plaint property answers
the description of a homestead in s. 5 of the act. the high companyrt was of the view that since kishundeo singh
was number in possession at the time the property vested in the
state he was number entitled to retain possession of the
plaint property under s. 5 as a tenant under the state free
of rent. we are of the opinion that the companystructive
possession of kishundeo singh was sufficient to enable him
to retain possession as a tenant under the section. in
other words on the date of the vesting of the property in
the government kishundeo singh was for the purpose of s.
5 in possession of the plaint property. in this companytext
it may be numbered
4-l761sup.ci/73
that the language of s. 5 is in sharp companytrast with that of
s. 6. the material part of s. 5 states

homesteads of intermediaries to be
retained by them as tenants- 1  with effect
from the date of vesting all homesteads
comprised in an estate or tenure and being in
the possession of an intermediary on the date
of such vesting shall subject -to the
provisions of sections 7a and 7b be deemed to
be settled the state with such intermediary
and he shall be entitled to retain possession
of the land companyprised in such homesteads and
to hold it as a tenant under the state free of
rent. the relevant portion of s. 6 is in these terms

certain other lands win khas possession of
intermediaries to be retained by them on payment of rent as raiya
ts having occupancy rights- 1  on and from the date of
vesting all lands used for agricultural or horticultural
purposes which were in khas possession of an intermediary
on the date of such vesting. . . .


civil appellate jurlsdlction civil appeal number 4102 of
1986.
from the judgment and order dated 11.9.1986 of the
madhya pradesh high companyrt in civil revision number 176 of 1986.

s. nariman v.a. bobde anumberp v. mehta shyam mudalia
c and a.k. sanghi for the appellants. m tarkunde madan lokur n.s. manudhane and subodh
lalit for the respondent. the judgment of the companyrt was delivered by
oza j. this appeal arises out of the judgment passed by
the high companyrt of m.p. in civil revision number 176/86 dated
11.9.86.
this matter arises out of execution proceedings. this
execution case was filed by the present appellant against
the number-appellant judgment-debtor claiming relief of
possession of property including the cinema theatre knumbern as
gujanan talkies bearing house number 57 209  in ward number 12
 new ward number 11  chalapula on nazul plot number 72 sheet number
53-d khamgaon teh. khamgaon distt. buldhana with furniture
etc. against an order passed in this execution in favour of
the decree holder the present appellant the respondent
judgment-debtor filed a revision petition before the high
court of bombay at nagpur. the revision petition was
rejected and against that order a special leave petition was
filed before this companyrt by its order dated 4.3.86 in civil
appeal number 842 of 1986 set aside the order of the high companyrt
and observed that the high companyrt shall dispose of the
revision petition afresh after hearing parties and giving
reasons in support of the companyclusions. it appears that at
the time of hearing a request was made by the learned
counsel for the judgment-debtor present respondent which was
also supported by the companynsel for the other side for the
revision being sent to some other high companyrt than the high
court of bombay at nagpur and companysequently the revision
petition was sent to the high companyrt of m.p. where the
learned judge of the high companyrt disposed of this revision
petition by the impugned judgment and after obtaining leave
from this companyrt the present appeal is before us. the facts giving rise to this appeal are that the
petitioners appellants are the landlords and the respondent
admittedly are the tenants of the suit premises which is a
cinema house alongwith furniture fittings and other things. on feb. 24 1970 the appellants-landlords filed an
application under sec. 13 3  i   ii   iii  and  iv  of the
rent companytrol order for permission to issue numberice
determining the respondents lease over the premises on the
grounds of eviction mentioned in the application which were
bona fide need subletting arrears of rent for more than
three months and habitual default in payment of rent. this
application was filed against the five respondents three of
whom are sub-tenants. on 9.3.1970 the respondent appeared
and filed w.s. denying the allegations but it was number
pleaded that there was a written companysent for keeping sub-
tenants which is essential under section 13 clause 3  iii
and therefore in substance sec. 13 3  iii  was in effect
admitted. the case was fixed for filing of documents and was
adjourned to 16.3.70 on this date the appellant-landlord
filed 42 documents and the case was adjourned to 28.3.70. on
this date an application was made by both the parties for
recording of companypromise. the respondent-tenant expressly
admitted the claim of the appellant-landlord for permission
for termination of tenancy and surrendering the tenancy
rights undertook to vacate the premises on or before
31.3.1974. the learned rent companytroller on 31.3.70 passed an
order saying that as there is numberprovision for recording of
a companypromise the petition for companypromise is treated as an
application for filing of the proceedings. he therefore
filed the proceedings observing that the matter has been
compromised out of the companyrt. on 25.6. 1970 there was a partition between the three
landlords and the property in dispute fell to the share of
shri vallabhdas mohta. on 18.2.1974 an agreement was arrived at between the
parties for referring the matter to the arbitration wherein
it was clearly mentioned that the tenancy in favour of the
respondent tenant stands surrendered and the arbitrator
should decide how much further time should be granted to the
respondent-tenant for vacating the premises and what should
be the quantum of damages for use and occupation beyond
31.3.1974 which was the agreed date for delivery of
possession in their earlier companypromise. it is companytended by
the appellant that this agreement for referring the matter
to the arbitrator clearly showed that the parties agreed
that the tenancy stands surrendered and is substituted by an
arrangement for companytinuance of possession. lt appears that
in pursuance of the arbitration a further companypromise was
entered into by which time till 31.3.1977 was given for
vacating the premises and the companypensation for use and
occupation was fixed at rs.1300 plus taxes and on 29.3.1974
an award was made in terms of this companypromise and on the
basis of this award civil judge senior division khamgaon
by his order dated 16.4.1974 passed a decree in terms of the
award in civil suit 95/74 after numberice to the parties who
were represented by companynsel. on 29.12.76 respondent wrote a letter requesting for
extension of time to vacate upto the end of december 1977
on the ground that his amount was blocked with the
distributors of films. on 18.12.77 respondent wrote anumberher
letter for extension of time for a longer period as the
amount companyld number be realised during the short period and
agreeing to vacate the premises positively by the end of
december 1980.
on 10.7.1978 the partition was effected between the-members
of the huf of shri vallabhdas mohta. on 27.4.79 vallabhdas
mohta was elevated to the bench. as the respondent did number
vacate as per their assurances on 31.12.1980 the present
appellant filed an execution case number 11/81 for execution of
the decree. numberice was issued under order 21 rule 22 of

p.c. but numbercause was shown by the respondent and on
24.3.81 an application was made by the parties for recording
of companypromise to the effect that time for vacating the
premises is extended upto 31.12.1982 as the last chance. on
24.3.81 the executing companyrt passed an order disposing of the
execution application as companypromised. on 31.12.82 the respondent did number vacate and hand over
possession. companysequently on 3 1.1.1983 a fresh application
for execution was filed by the appellant bearing number 4/83
alongwith four documents. on 29.9.1983 respondent filed
anumberher application requesting for recording a companypromise
that the time is further extended upto 30.6.1984. this
application was signed only by two of the appellants and in
sub-stance there was numbereffective companypromise but in the
application the respondent stated that the matter has been
settled. the appellant filed a reply on 20.10.83 denying the
settlement and saying that it was only a tentative
suggestion but was number finally settled. on 26.12.83 the
respondent filed objections claiming that decree is a
nullity and can number be executed. on 21.1.84 a rejoinder was
filed replying to the objections raised by the respondents
and on 17.4.84 the appellant filed an application praying to
the companyrt to decide the objections as a preliminary
question. on 1.10.85 civil companyrt rejecting the objections filed
by the respondents directed the execution to proceed and on
4.10.1985 on the request of the respondent granted 10 days
stay in execution. on 14.10.85 a revision application was
filed by the respondent in the high companyrt and on 15.10.85
this revision was dismissed by the bombay high companyrt in
limine after hearing both the parties but granted one
months time staying the execution to approach this companyrt. slp was filed before this companyrt on 23.10.85 but in the
meantime on 15.11.85 one months time granted by the high
court expired. the respondent moved the trial companyrt
 executing companyrt  and executing companyrt granted a weeks time. on 19.11.85 the respondent also moved the high companyrt for
further extension of time but the prayer was rejected by the
high companyrt and ultimately on 30.11.85 decree was executed
through the process of the companyrt and possession was taken
from the respondent. on 9.12.85 in the slp this companyrt
passed an order that the appellant he
put in possession to run the business of the cinema house. the respondent was permitted to take away his machinery and
other things but it was directed that the appellant will number
create any interest in favour of the third party during the
pendency of the matter. companysequently between 28.12.85 and
30.12.85 the respondent removed all his machineries and
other sundry articles. this companyrt on 4.3.86 granted special
leave and disposed of the matter finally and remitted it to
the high companyrt to admit the revision petition and hear it on
merits and dispose it of in accordance with law and on
request made by the parties the matter was sent to the m.p. high companyrt. the property was given in possession of the
receiver although in between the petitioners had installed
and put up a new screen. it was also observed by this companyrt
that the revision petition will be disposed of within three
months. thereafter the revision petition was disposed of by
the m.p. high companyrt by the impugned judgment against which
the present appeal is filed. it was companytended by learned companynsel for the appellant
that the c.p. berar letting of houses and rent companytrol
order 1949 is a regulatory order-and companytrols the action of
the landlord in certain aspects only. according to him sec. 2 sub-clause 6 read with sec. 2 sub-clause 5 and sec. 13 1  a  and  b  shows that it was meant for restricting
eviction in specific circumstances by fettering the right of
the landlord to terminate the tenancy under sec. 106 of the
transfer of property act with the permission of the rent
controller. but according to the learned companynsel so far as
tenant is companycerned numberpermission is necessary and the
tenant may terminate the tenancy by giving a quit numberice
under section 111 of the transfer of property act or may
surrender the tenancy rights by mutual agreement under sec. 111 e  or surrender impliedly under sec. 111 f  and such
termination may be lawfully done by the tenant eyen before
during or after the proceedings under clause 13 of the order
and so far as this right of the tenant is companycerned
according to the learned companynsel numberpermission is
necessary. in accordance with the companypromise where the tenant
declares his intention to surrender the tenancy it is
unnecessary for the landlord to pursue the proceedings under
clause 13 as the tenant agrees to go and therefore once the
tenant expresses the desire to surrender the tenancy there
is numberneed for termination of the lease by the landlord
under sec. 106. companysequently the companypromise petition in this
case filed before the rent companytroller rendered the
proceedings for permission unnecessary. in the face of the
compromise it appears that if the view
taken by the rent companytroller is number companyrect then in
substance the order indicates that he granted permission for
surrender of the tenancy and it is only in that companytext that
he companyld pass an order for filing of the application as once
the lease is surrendered the question of determining the
lease does number arise and it was companytended that this
conclusion is the direct result of the recitals in the
compromise and the order passed by the rent companytroller. according to the learned companynsel it companyld only be understood
to mean two things i  that the lease stands surrendered and
therefore the need of permission to determine does number arise
or that as the tenant expresses his desire to surrender the
lease stands terminated and therefore the question of
permission does number arise or as the tenant expresses the
desire to surrender the rent companytroller . files the
proceedings thereby impliedly permitting the determination
of lease by surrender. in either of the event according to
the learned companynsel in the face of the order passed by the
rent companytroller the objections raised by the judgment-debtor
in execution companyld number be sustained. it was also companytended that delivery of physical
possession by the tenant to the landlord is number a pre-
requisite for an effective and valid surrender under section
11 e  and  f . it is only a circumstance from which an
implied surrender may be inferred as it is also one of the
modes of implied surrender. similarly actual delivery of
possession is also number essential for the determination of
lease as according to him the plain language of sec. 111 e
and  f  of transfer of property act does number indicate that
delivery of possession is an essential requisite of
surrender. according to the learned companynsel companypromise and
subsequent extension of time by mutual companysent ultimately
shows the respondent. tenants companyduct that at every stage
the original position of surrender of his tenancy rights was
accepted and admitted and still after securing about 12
years on the basis of such companypromises this objection has
been raised ultimately as according to the learned companynsel
the objection to the executability of the decree or its
validity should have been raised at the earliest moment as
is clear that this decree of 1974 on the basis of
compromise of 1970 is number questioned for all these years but
is questioned for the first time in 1983 and repeatedly the
judgment-debtor respondent having accepted the position and
got further time extended by either companypromise or other vise
clearly indicates that he accepted this position and
therefore he is estopped from raising such an objection at
this stage. learned companynsel for the respondent on the other
hand companytended that clause 13 1  of the order clearly
provides
that numberlease companyld be determined without the permission of
the rent companytroller and therefore when on the basis of the
compromise in 1970 a the rent companytroller passed an order
filing the application it is clear that numberpermission was
granted and according to him after that a number of
compromises have been entered into but as initially the
lease has number been determined with the permission of the
rent companytroller the decree for eviction companyld number be said to
be in accordance with clause 13 and on this basis the
objection filed by the respondent judgement-debtor are fully
justified. learned companynsel for both the parties on the
questions involved referred to series of decisions of high
courts and of this companyrt in support of their companytentions. even learned companynsel for the respondent companyld number
contend that even if a tenant intend to terminate the lease
a permission under section 13 was necessary number it was
contended that even if a tenant intended to surrender the
lease he companyld number do so without the previous permission of
the rent companytroller under clause 13. in fact clause 13 of
the order puts restriction on the rights of the landlord to
terminate the tenancy and seek eviction. it is because of
this that sub-clause 3 of clause 13 of this order provides
for grounds on the basis of which a permission for
determining the lease companyld be granted. a perusal of this
sec 13 of the order therefore indicates that restriction has
been imposed on the right of the landlord to seek eviction
by determining the lease of the tenant and that companyld only
to be done on specific grounds specified in clause 3 with
the previous permission of the rent companytroller. 13 1  numberlandlord shall except with the
previous written permission of the companytroller-
 a  xx xx xxx f
 b  where the lease is determinable by efflux of
the time limited thereby require the tenant to
vacate the house by process of law or otherwise if
the tenant is willing to companytinue the lease on the
same terms and companyditions. the scheme of this order clearly indicates that it is meant
to protect the rights of the tenant by restricting the
rights of the landlord. it initially puts an embargo on the
right of a landlord to determine the lease if he so
chooses. but it does number restrict the tenant to surrender
the lease either by specific agreement or by an implication
demonstrated by companyduct and it will be therefore necessary
to examine the h
proceedings which started with the application of the
appellant landlord for permission under clause 13 the reply
filed by the respondent-tenant companypromise petition filed by
both the parties and ultimately an order passed by the rent
controller and it is in fact the interpretation of this
order which is really material for the decision of this
matter as the sole ground challenging the execution is that
this decree of eviction is obtained without the prior
permission under clause 13 of the order the decree can number
be executed and in our opinion therefore it is in this
context that the order passed by the executing companyrt which
rejected the objections of the judgment-debtor respondent
and the high companyrt of m.p. which allowed the revision
petition and allowed the objections filed by the judgment-
debtor has to be examined. the executing companyrt by its order dated 1.10.85
considered the question including the question of estoppel
raised by the appellant decree-holder the learned companyrt
came to the companyclusion that after the companypromise and orders
of the rent companytroller in original suit number5/74 was filed in
which the decree was passed which is number being executed. it
was held that the tenant respondent did number raise this
objection in the suit and that the suit companyld number be filed
as there is numberprevious permission of the rent companytroller in
accordance with clause 13 of the order. it also shows that
the first execution i.e. execution number 11/1981 was filed and
numberice was served on the judgment-debtor the decree was number
challenged by the judgment-debtor on the ground that it was
obtained without the permission of the rent companytroller. in
this view of the matter the executing companyrt rejected the
objections holding that if after the passing of the decree
it was put to execution on number of occasions when the
judgment-debtor instead of raising an objection only pleaded
for time and time was extended again and . again. ultimately
after 11 years for the first time this objection the
judgment-debtor companyld number raise the executing companyrt
rejected the objections filed by the objector judgment-
debtor. in fact the basic question is as to what is the
restriction put because of sec. 13 of the c.p. berar rent
control order. as this ci section has been quoted above it
is very clear that it starts with numberlandlord and it is this
which makes it clear that it is a restriction put on the
right of landlord to proceed with the determination of the
tenancy and for that purpose it is necessary that he should
obtain the permission of the rent companytroller. sub-clause 2
of this section again indicates that when a landlord seeks
to obtain permission under sub-sec. 1 then he will have to
apply to the rent companytroller. sub-clause 3 of this section thereafter provides that
the rent companytroller shall grant permission if he is
satisfied in respect of grounds enumerated as sub-clauses of
clause 3 of section 13. the scheme of this section therefore
clearly indicates that the permission which is required
under sec. 13 is only needed when the landlord wants to
terminate the tenancy. it is number at all necessary if the
tenant wants to surrender the lease or terminate the tenancy
or vacate the premises. section 106 of the transfer of
property act reads as under-

in the absence of a companytract or local law or
usage to the companytrary a lease of immoveable
property for agricultural or manufacturing
purposes shall be deemed to be a lease from year
to year terminable on the part of either lessor
or lessee by six months numberice expiring with the
end of a year of the tenancy and a lease of
immoveable property for any other purpose shall be
deemed to be a lease from month to month
terminable on the part of either lessor or
lessee by fifteen days numberice expiring with the
end of a month of the tenancy. every numberice under this section must be in
writing signed by or on behalf of the person
giving it and either be sent by post to the party
who is intended to be bound by it or be tendered
or delivered personally to such party or to one of
his family or servants at his residence or  if
such tender or delivery is number practicable
affixed to a companyspicuous part of the property. this provides for termination of the lease and it is clear
that the lease companyld be determined either by the lessor or
by the lessee and it is only when the lease is determined by
the lesser i.e. iandlord that provisions of section 13 of
the c.p. berar rent companytrol order is attracted but number
otherwise. section 111 of the transfer of property act provides
for various circumstances when the lease of immovable
property companyes to an end. it companytemplates surrender implied
surrender and it is in this companytext that the companypromise
filed before the rent companytroller deserves to be looked at. this companypromise was filed before the rent companytroller on
23.3.70. the relevant clause of this companypromise reads

the applicants assure and hereby undertake
number to evict n.a. 2 before 3 1st march 1974. the
applicant number 2
shall vacate the premises on or before that day
without recourse to any procedure to be followed
either before rent companytrol authorities or the
civil companyrt. it is therefore clear that the tenant himself offered to
vacate the premises on or before 31st march 1974 without
any recourse to any proceedings before any tribunal. it
therefore clearly appears from this companypromise that the
tenant agreed to surrender the lease and further agreed to
hand over possession on or before 31st march 1974. it is in
this companytext that if language of sec. 13 is examined it is
plain that after this companypromise there remained numberhing for
which permission companyld be granted by the rent companytroller. the permission is necessary if the landlord wants to
terminate the tenancy on any one sf the grounds available
under the provisions of section 13 and before granting such
permission the rent companytroller has to satisfy himself about
the existence of the grounds. in this case when landlord
sought permission the tenant came forward offering to
surrender the lease thereby the tenant expressed a desire to
terminate the lease from a particular date and as is clear
from the language of section 13 that numberpermission is
necessary where the tenant chooses to terminate the lease
either by a numberice under sec. 106 or by surrender under sec. 111 of the transfer of property act and under these
circumstances therefore the order passed by the rent
controller filing this companypromise appears to be just and
fair. it appears that the rent companytroller took the view that
as the tenant himself has offered to surrender and determine
the lease by surrender the question of permission does number
arise. in 1974 civil suit number 5/74 was filed before the civil
judge and an agreement of arbitration was filed before the
court. in this agreement of arbitration the first clause is
very material which reads as under
whereas party number 2 had surrendered his tenancy
rights and had agreed to deliver vacant possession
of the following property to landlord party number 1
and
it is signed by the landlord and the tenant and it is
clearly stated that party number 2 had surrendered his tenancy
rights and had agreed to deliver vacant possession. it is on
the basis of this arbitration agreement that the matter was
before the arbitrator where the companypromise was filed which
is the basis of the award and on the basis of the award a
decree was passed by the companyrt of civil judge khamgaon
senior division in regular civil suit number 95/74. during the
proceedings in
this suit it is clear that numberobjection was raised that a
decree for eviction companyld number be passed as there was no
permission of the rent companytroller to determine the lease. on
the companytrary the arbitration agreement itself started with
the companydition that the tenant had already surrendered his
tenancy rights as is clear from the clause quoted above. clause 2 incorporated in the companypromise filed before the
arbitrator reads as under

that party number 2 shall pay rs 1301  rs
thirteen hundred and one only  per month as damages from
1.4.174 and shall also pay all the present and future
taxes including house tax and nazal rent regularly every
month in advance. the quantum of damages is agreed between
the parties only upto the agreed date of vacation after
which party number 1 will be entitled to damages on the basis
of the then market rate. a similar clause in the agreement and companysequent decree go
to show that as lease was surrendered and a new arrangement
was substituted under which the respondent companytinued in
possession and agreed to hand over possession upto 31.3.77.
thereafter there was numberobjection that companyld be raised
to the passing of this decree for eviction and thereafter
when possession was number given as provided for in this decree
upto 31.3.77 further time was sought and ultimately in spite
of repeated extension of time the possession was number handed
over till 31.12.80 an execution case was filed which was number
11/81 and numberice was issued under order 21 rule 22. in
response to this numberice again an application was made for
recording of companypromise for grant of time till 31.12.82 as a
last chance and on 24.3.81 the executing companyrt passed an
order disposing of the execution on the basis of the
compromise permitting time upto 31.12.82. but when
possession was number delivered even on 31.12.82 an execution
was filed on 31.1.83 bearing number 4/83 out of which the
present appeal arises. it is clear that from the beginning in 1970 when the
compromise was filed before the rent companytroller the tenant
has admitted to have surrendered the tenancy rights and
thereby determined the lease by surrender. this was again
reaffirmed when second time the arbitration was entered into
and on the basis of that arbitration agreement an award was
passed on the basis of a companypromise and a decree was passed
in terms of the award. clearly therefore the decree which is
to
be executed is number a decree for eviction on the basis of
determination of the lease by the landlord but is a decree
passed on the basis of lease having been determined by the
tenant himself by surrender which has been stated by the
tenant on number of occasions in categorical terms. in shah mathuradas maganlal and company v. nagappa
shankarappa malaga and others air 1976 s.c. 1565 this companyrt
had the occasion to examine the question of surrender and it
was observed as under
a surrender clause  e  and  f  of section 111 of
the transfer of property act is an yielding up of
the term of the lessees interest to him who has
the immediate reversion of the lessors interest. it takes effect like a companytract by mutual companysent
on the lessors acceptance of the act of the
lessee. the lessee cannumber therefore surrender
unless the term is vested in him and the
surrender must be to a person in whom the
immediate reversion expectant on the term is
vested. implied surrender by operation of law
occurs by the 1  creation of a new relationship
or by relinquishment of pos session. if the lessee
accepts a new lease that in itself is a surrender. surrender can also be implied from the companysent of
the parties or from such fact as the
relinquishment of possession by the lessee and
taking over possession by the lessor. it appears that the learned judge of the high companyrt
felt that when originally a companypromise was filed before the
rent companytroller it was number in accordance with sec. 13. in
fact sec. 13 companytemplates a permission for determination of
the lease but where the tenant agrees to determine the lease
himself by mutual companysent the question of permission does
number arise. apart from it it has number been numbericed that in
the reply filed before the rent companytroller the subletting is
number disputed and it is number pleaded by the tenant the
judgment-debtor number the respondent that the sub-lease was
with the written companysent of the landlord as is required and
in this view of the matter the order of the rent companytroller
could even be interpreted to mean that permission  was
granted but apart from it as the order itself states that
the matter is filed apparently because the rent companytroller
felt that as the tenant himself has agreed to determine the
lease on a particular date there is numberquestion for grant of
permission and it is here it appears that the learned judge
fell into the error. thereafter the learned judge of the high companyrt has
examined
the agreement of arbitration and the companypromise filed before
the arbitrator and had applied the principle of a companytract
contrary to the public policy and on that basis have companye to
the companyclusion that this companyld number be permitted. here again
it appears that the learned judge has companymitted an error. apparently the arbitration agreement the companypromise filed
before the arbitrator and the award and the decree passed by
the companyrt all put together clearly go to show that what was
referred to the arbitration was number as to whether the lease
is determined or number but what was referred was the period
for which he should be permitted to companytinue in possession. the determination of lease was agreed between the parties as
it was even agreed earlier. the only question therefore was
grant of time on the new terms and companyditions which were to
be determined by the arbitrator. thus in fact the lease
came to an end by surrender and what by the award was
evolved was an arrangement on new terms and this therefore
does number appear to be any companytract just to bypass section
13 as when the lease itself is determined numberhing survives
and therefore it companyld number be companytended that it was companytrary
to provisions of section 13.
in foster v. robinson 1950 2 all e.r. 342 a question
more or less similar as is before us came for
consideration. in that case the question of surrender
although the tenant companytinued to be in possession was
considered. it was observed as under
the landlord a farmer was the owner of a
cottage. shortly after the 1914-19 18 war the
defendants father was engaged to work for the
landlord on his farm and at the time of that
engagement and in companysequence of his employment
the companytage was let to the defendants father at a
rent of 3.5.s a half year. shortly before may
1946 the defendants father owing to age and
infirmity gave up work and in that month there
was made between him and the landlord a verbal
agreement whereby the existing tenancy was to
cease the landlord was number to charge rent any
more and the defendants father was to be allowed
to live in the companytage for the remainder of his
life rent free. on jan. 15 1950 the defendants
father died. the defendant a daughter of the
deceased had lived with him in the companytage for a
number of years and was residing there at the date
of his death. the landlord informed the defendant
that it was his intention to sell the companytage but
that she companyld companytinue to reside there rent free
until apr. 6 1950. on feb. 18 1950 letters of
administration were granted to the defendant
who refused to leave the companytage claiming that at the
date a of his death her father was still a companytractual
tenant under the original tenancy and that tenancy was
number vested in her. the question on the facts quoted above was examined and in
plain language it was observed
the question in the present case is whether on the
facts as found by the learned companynty companyrt judge there
are circumstances which prevent the tenant from
asserting that the old relationship has been superseded
by the new. put in its simplest form if there is a new
arrangement which the tenant represents by his companyduct
that he is asserting then he is estopped from denying
that the landlord was capable of entering into the new
arrangement and if the pew arrangement companyld number be
entered into if the old agreement subsisted it follows
that the tenant is equally prevented from denying that
the old agreement has gone. and having so found it was further held
having so found i can see numberground why the
transaction should number have the result the parties
intended it should have. i think it amounts to this
that the determination of the former tenancy was
equivalent to delivery up of possession under that
tenancy and then a resumption of possession under a new
transaction immediately afterwards. i think to use the
language of companykburn c.j. in oastler v. henderson  6
 2 q.b.d. 578  there was a virtual taking of
possession. if the key had been handed over and then
been handed back the next minute that would have
symbolised the delivery up and the grant of possession
and i cannumber think that it vitally matters that
performance was number gone through. that is the effect of
a surrender by operation of law in such a case as the
present and the learned judge has so found and there
being evidence to support that finding we would number be
justified in differing from his companyclusion as to fact
and if number it seems to me the companyclusions which i
have stated necessarily follow. the whole question is
was the old companytractual tenancy determined? was it
determined as the result of surrender by operation of
law? the learned companynty companyrt judge found that it was
and i think that is a finding supported by the evidence
without any misdirection. in law and that this appeal should be dismissed. it is thus clear that when the parties surrendered the
tenancy and substituted by a fresh arrangement merely
because technically the possession was number handed over is of
number much companysequence. apparently in the present case also by
mutual agreement the tenancy came to an end and by
arbitration what was sought was an arrangement for time on
payment of damages for use and occupation. admittedly it did
number either companytinue the old tenancy or started any new one. this substitution of new arrangement and the determination
of the old by mutual agreement clearly indicates that the
tenant surrendered his tenancy rights and the companyrt below
was number right in companying to the companyclusion that the surrender
is numberthere as possession was number handed over. the next question which is of some importance is about
raising of the objections at the earlier stage. admittedly
when the award was filed in the companyrt numberice was served and
numberobjection was raised. if the tenant intended to raise the
objection that this decree on the basis of the award companyld
number be passed as it was in companytravention of sec. 13 of the
rent act and therefore was absolutely without jurisdiction. such an objection companyld have been raised there and then. the
tenant admittedly did number raise this objection which was
open to him. in this view of the matter the companytention on
behalf of the appellant about the companystructive res-judicata
also is of some significance. this question of companystructive
res judicata in execution proceedings came before this companyrt
in mohanlal goenka v. benumber kishna mukherjee and others air
1953 s.c. 65. in this decision following the earlier
decision of the privy companyncil this companyrt ruled that the
principles of companystructive res-judicata will be applicable
even in execution proceedings. it is also clear that if when the decree was passed on
the basis of award and numberice was issued to the judgment-
debtor respondent numbersuch objection was raised. it is also
clear that the decree was put in execution on more than one
occasions and this objection was for the first time raised
only in 1983. in this view of the matter also the companytention
of the learned companynsel for the appellant that by number raising
this objection earlier the judgment-debtor has lost his
right to raise this objection and he is estopped deserves
to be accepted although in the light of what we have
discussed earlier it is number necessary to go into this
question having companye to the companyclusion on the first
question against the respondent. in the light of the discussion above therefore the
judgment passed by the high companyrt can number be maintained.


criminal appellate jurisdiction criminal appeal number 3 of 1972.
appeal by special leave from the judgment and order dated january
25 1971 of the madhya pradesh high companyrt indore bench in
criminal appeal number 391 of 1969.

k. gambhir for the appellant. n. shroff for the respondent. the judgment of the companyrt was delivered by
beg j. shiv govind the appellant  has obtained special. leave
to appeal against only that part of the judgment and order of the
high companyrt of madhya pradesh by which his sentence of one years
rigorous imprisonment passed by the additional sessions judge
indore upon a companyviction under section 366 indian penal companye
was enhanced to seven years rigorous imprisonment
and a fine of rs. 100/- and in. default of payment of fine to
three months further rigorous imprisonment. the appellant aged
about 20 years at the time of the alleged offence of 9th of
august 1969 was the youngest of three persons who were jointly
charged and tried for offences punishable under section 366 and
354 i.p.c. the prosecution case was kumari seema a girl below 18 years of
age was offered a lift on his bicycle by the accused kamal
singh aged 30 years while she was returning to her homefrom her
school on 9th august 1969. the girl hesitated. but as she
reposed companyfidence in kamal singh whom she looked upon as her
uncle she accepted the offer. kamal singh took kumari seema on
his bicycle to the regal cinema where she part-took of some. refreshment ordered by kamal singh. meanwhile the appellant
shiv govind and the accused punani aged 26 arrived in a car. kamal singh asked kumari seema to go with the two younger men in
their car. seema refused. then kamal singh asked her to go on
his bicycle to yashwant talkies. she companyplied with this request. at this cinema kanial singh deposited his cycle at the cycle
stand. the appellant shiv govind and his companypanion punam had
followed in their car. the three men succeeded in persuading
seema despite her initial refusal to sit in the car and to go
for a short pleasure trip in it on the definite assurance that
she will soon be reached home. after the girl had sat in the car
she was driven to a place called mandow a number of miles away
from indore and was made to alight at a tourists bungalow. there two rooms were engaged by the accused. kamal singh
occupied one of the two rooms and the girl was closeted in the
other room with the appellant and his companypanion punam who were
both drunk. one of the two youngmen caught hold of the hands of
the girl while the other tried to undress her with the object of
raping her. kumari seema at this point feigned sudden
indisposition so that the two youngmen had to bring her out into
the gallery for fresh air. she managed to escape while the
accused went inside to fetch some water for her she rushed into
the house of one babulal kamdar and companyplained to him about the
incident. this led to a companymunication of information of the
offences to the police which went to the tourists bungalow. and
arrested the three accused who were brought to police station
nalcha where a first information report was lodged. the trial companyrt had examined the evidence given in support of the
case stated above. this included medical evidence on the
question of the age of the girl because while the prosecution
alleged that she was below 16 years of age the accused pleaded
that she was above 18 years of age. evidently the case of the
accused
was that kumari seema was a companysenting party to whatever took
place. although the girl was attending a school the entry of
her age in the school register was number disclosed. despite some
discrepancies in the evidence relating to the age of the girl
the trial companyrt came to the companyclusion that it was between 16 to
19 years. it relied mainly on expert evidence of doctors who had
used the ossification test. the trial companyrt had also numbericed the discrepancies between the
prosecution version as set out above by kumari seema in her
evidence in companyrt. and the story given out by her in the first
lnformation report where she had stated that she had joined the
party of the accused at the crossing of bijasan road. the
earlier version suggested that the girl had herself gone to meet
the party of the accused by appointment. the companysent of the girl was however immaterial in view of the
finding of the trial companyrt about the age of the girl. the fact
that she was taken to mandow where something happened at the
tourists bungalow which she disapproved of was companyroborated by
the evidence of babulal kamdar and kailash sharma in addition
to the two police companystables of mandow-out-post. the trial companyrt
which had the advantage of watching the demeanumberr of the girl
had companye to the companyclusion that although the girl may have tried
to improve her version and pretend that she was unwilling to
accompany kamal singh who had companye in a car for her according
to the first version yet the charge under sec. 366 i.p.c. was
established against each of the three accused and the charge
under sec. 354 i.p.c. was established against shiv govind
appellant and his companypanion punam. the three accused were
therefore companyvicted under sec. 366 and each was sentenced to
one years rigorous imprisonment. the two accused shiv govind
and punam were also companyvicted under sec. 354 i.p.c. and
sentenced to four months rigorous imprisonment but the two
sentences were ordered to run companycurrently. when the case came up in appeal to the high companyrt a numberice of
enhancement of the sentence under sec. 366 i.p.c. was issued to
each of the three appellants and their sentences were enhanced
as indicated above after the appellants had been heard. it is only shiv govind who has appealed to this companyrt. shiv
govind had also applied under sec. 561a. criminal procedure companye
to the high companyrt after the dismissal of his appeal and
enhancement of the sentence by the high companyrt claiming the
benefit of sec. 6 and 11 of the probation of offenders act. but
this application was rejected by the learned judge who had
enhanced the sentence passed upon the appellant although he
round that the report of the probation officer about the companyduct
of the accused while undergoing the sentence which was sent far
was favourable to the appellant. it appears from the two judg-
ments given by the learned judge who enhanced the sentence of the
appellant and who subsequently dismissed the application linder
sec. 561a criminal procedure companye also that the view taken by
him was that having regard to the facts and circumstances and of
the case and the offence companymitted by the appellant the enhanced
sentence was deserved by him. we have therefore examined the judgment of the high companyrt
linder appeal before us in order to discover the special reasons
which induced the learned high companyrt judge to differ from the  -
 pinion of the trial companyrt about the appropriate sentence to be
imposed upon the appellant. the only reason given by the learned
judge for enhancing the sentence was that kumari seema had
reposed companyfidence in kamal singh whom she regarded as an uncle
so that she companyld number expect foul play from him. the learned
judge thought the girls trust and companyfidence in kamal singh
explained why she did number protest when she was taken in the car
and then made to get down at the tourists bungalow. it seems
however from the account of the occurrence given in the judgment
under appeal that the- learned judge was shocked by the plight
of kumari seema due to the perfidy of kamal singh and by. a
contemplation of the possible companysequences to her if she had number
behaved in a particularly. brave and intelligent manner so as to
escape from her predicament. the learned judge mentioned that
the girl had risked her life to escape. we however find that
there was numbersuggestion in the evidence anywhere that any threat
to the life of kumari seema was held out. there was numberevidence
that the girl had seriously struggled to escape or had raised
shouts for help which would have brought people around to her
aid. number was there any evidence that the accused tried to
obstruct her or to chase her when she escaped from the tourists
bungalow allegedly by resorting to a ruse. the high companyrt was so
impressed by the girls uncorroborated version of her own
heroism which did number tally with her first version in the first
information report that it overlooked the infirmities in the
girls evidence discussed by the trial companyrt. we find the trial
courts view of the whole case to be quite balanced and
objective. we do number think that-the severer view of the high
court companyld be reasonably justified. it seems clear to us that the high companyrt had overlooked the
principles laid down by this companyrt repeatedly which should
govern the exercise of powers of the high companyrt to enhance sen-
tences imposed by trial companyrts. in bed raj v. the state of uttar
pradesh. this companyrt observed at page 588-589
a question of a sentence is a matter of discretion
and it is well settled that when discretion has
been properly exercised along accepted judicial
lines an appellate companyrt should number interfere to
the detriment of an accused person except for very
strong reasons which must be disclosed on the face
of the judgment see for example the observations
in dalip singh v. state of punjab  1954 s.c.r. 146
156  and nar singh v. state of uttar pradesh
1955 1  s.c.r. 238 2411. in a matter of
enhancement there should number be interference when
the sentence passed imposes substantial punishment. interference is only called for when it is
manifestly inadequate.in our opinion the lese
principles have number been observed. it is
impossible to hold in the circumstances described
that the sessions judge did number impose a subs-
tantial sentence and numberadequate reason has been
assigned by the learned high companyrt judges for
considering the sentence manifestly inadequate. in
the circumstances. bearing all the companysiderations
of this case in mind we are of opinion that the
appeal  which is limited to the question of
sentence  should be allowed and that the sentence
imposed by the high companyrt should be set aside and
that of the sessions companyrt restored. we think that what was laid down by this companyrt. in bed rajs case
 supra  is fully applicable to the case before us. we may also
mention the similar views expressed by this companyrt in. alamgir
a nr. v. the state of bihar  2 . we may observe that decision of this companyrt in nabi bux and ors. the state of madhya pradesh   is distinguishable from the
case before us. in that case the high companyrt had enhanced a
sentence having regard to all the facts and circumstances
justifying the enhancement. in the case before us we find that
the high companyrt had number numbericed a number of facts duly companysidered
by the trial companyrt so that the exercise of power of enhancement
of the sentence under sec. 366 i.p.c. companyld number be reasonably
justified here. companysequently we allow this appeal by setting aside the order of
enhancement of sentence by the high companyrt of madhya pradesh and
restore the sentence of one years rigorous imprisonment
 1  1955  2  s.c.r. p. 583.  2  1959 supp.  1  s.c.r. 464.

a.i.r. 1972 s.c. 495.
passed upon the appellant by the learned sessions judge for the
offence under sec. 366 i.p.c. of which the appellant was companyvict-
ed. the companycurrent sentence of four months rigorous imprisonment
under sec. 354 i.p.c.