civil appellate jurisdiction civil appeal number 1257
 nl  of 1985.
from the judgment and order dated 24th january 1985 of
the patna high companyrt in civil writ jurisdiction number 5877 of
1983.

k. banerjee sol. genl d.n. misra b.d. barucha and

m. dittia for the appellant. k. ramamurthy and mrs. gyan sudha mishra for the
respondents. the judgment of the companyrt was delivered by
balakrishna eradi j. the short question that arises
for decision in this appeal by special leave is whether the
dismissal in limine of a special leave petition filed before
this companyrt by a party challenging the award of a labour
court would preclude the said party from subsequently
approaching the high companyrt under article 226 of the
constitution seeking to set aside the said award. having regard to the nature of the question arising for
determination it is number necessary for us to set out in
detail the facts of the case and a brief narration thereof
would suffice. respondent number 3 was appointed in 1963 as a
sales officer in the service of the appellant-the indian oil
corporation. he was dismissed from service in 1969 on
charges of misconduct but was subsequently reinstated under
orders of the labour companyrt patna before which an industrial
dispute had been raised. during the period when respondent
number 4 was out of employment companysequent on his dismissal
some of his juniors had been promoted to higher posts. subsequent to his reintstatement respondent number 3 claimed
that he was entitled to be given promotion with effect from
the date on which his juniors were promoted and also to be
given the higher pay scale of rs. 1025-1625 from such date. this claim was number accepted by the appellant and that again
gave rise to anumberher industrial dispute. the state
government of bihar referred the said dispute to the labour
court patna on september 26 1980. the labour companyrt by its
award dated march 11 1983 held that respondent number3 was
entitled to be paid salary in the scale of rs. 1025-1625
with effect from december 30 1970 that being the date on
which his juniors were promoted to that scale. it further
directed that the 3rd respondent should be promoted from
grade b to grade c and should also be given the benefit
of revision in the pay scales of those grades. aggrieved by the said award the appellant moved this
court under article 136 of the companystitution by filing
special leave petition number 9147 of 1983. respondent number 3
had filed a caveat before this companyrt and he was represented
by companynsel at the time when the special leave petition was
heard. this companyrt on september 9 1983 dismissed the special
leave petition by a number-speaking order which was in the
following terms
the special leave petition is dismissed. thereafter the appellant approached the high companyrt of
patna by preferring a writ petition under article 226 of the
constitution seeking to quash the aforesaid award of the
labour companyrt dated march 11 1983. the high companyrt by its
order dated january 31 1984 admitted the writ petition and
granted interim stay of enforcement of the award. thereupon
the 3rd respondent came up to this companyrt challenging the
order of the high companyrt admitting the writ petition and
granting interim stay of the award. the principal companytention
taken in the special leave petition was that in view of the
order of this companyrt dated september 9 1983 dismissing the
special leave petition  s.l.p. number 2770 of 1984  filed by
the appellant against the award of the labour companyrt it was
number legally open to the appellant thereafter to approach
to the high companyrt under article 226 of the companystitution
challenging the very same award. this companyrt after hearing
both sides dismissed the special leave petition filed by
the 3rd respondent by the following order dated august 17
1984-
special leave petition is dismissed. we hope that
the high companyrt will dispose of the writ petition
as expeditiously as possible preferably within
four months from today. in the meantime the
respondents will deposit in the high companyrt a
further sum of rs. 10000  apart from rs. 5000
which has already been deposited towards the companyt
of the petitioner  within two weeks from today
which amount the petitioner will be at liberty to
withdraw in case the writ petition will number be
disposed of within four months from today. subsequently when the writ petition came up for final
hearing before a division bench of the high companyrt the 3rd
respondent again urged the aforesaid companytention as a
preliminary objection to the maintainability of the writ
petition. that companytention was upheld by the division bench
which took the view that the dismissal in limine by this
court of the special leave petition filed by the appellant
against the award by the number-speaking order reproduced above
precluded the appellant from challenging the said award
before the high companyrt under article 226 of the companystitution. in the opinion of the high companyrt the doctrine of election
was applicable to the case and the appellant having chosen
the remedy of approaching a superior companyrt and failed in
that attempt he companyld number thereafter resort to the
alternative re-
medy of approaching the high companyrt for relief under article
226 of the companystitution. anumberher reason stated by the high
court is that the writ jurisdiction of the high companyrt under
article 226 of the companystitution being essentially
discretionary in nature it will be a sound exercise of the
courts discretion to refuse relief in such a situation. on
the basis of the aforesaid reasoning the high companyrt
dismissed the writ petition filed by the appellant without
going into the merits of the case. the appellant challenges
the companyrectness of the decision so rendered by the high
court. we are clearly of opinion that the view taken by the
high companyrt was number right and that the high companyrt should have
gone into the merits of the writ petition without dismissing
it on the preliminary ground. as observed by this companyrt in
workmen of companyhin port trust v. board of trustees of the
cochin port trust and anumberher 1978 3 s.c.c. 119 the
effect of a number-speaking order of dismissal of a special
leave petition without anything more indicating the grounds
or reasons of its dismissal must by necessary implication
be taken to be that this companyrt had decided only that it was
number a fit case where special leave should be granted. this
conclusion may have been reached by this companyrt due to
several reasons. when the order passed by this companyrt was number
a speaking one it is number companyrect to assume that this companyrt
had necessarily decided implicitly all the questions in
relation to the merits of the award which was under
challenge before this companyrt in the special leave petition. a
writ proceeding is a wholly different and distinct
proceeding. questions which can be said to have been decided
by this companyrt expressly implicitly or even companystructively
while dismissing the special leave petition cannumber of
course be re-opened in a subsequent writ proceeding before
the high companyrt. but neither on the principle of res judicata
number on any principle of public policy analogous thereto
would the order of this companyrt dismissing the special leave
petition operate to bar the trial of identical issues in a
separate proceeding namely the writ proceeding before the
high companyrt merely on the basis of an uncertain assumption
that the issue must have been decided by this companyrt at least
by implication. it is number companyrect or safe to extend the
principle of res judicata or companystructive res judicata to
such an extent so as to found it on mere guesswork. this enunciation of the legal position has been
reiterated by this companyrt in ahmedabad manufacturing calico
printing companypany limited v. workmen and anr 1981 3 s.c.r. the principles laid down in the two decisions cited
above fully govern the present case. it is number the policy of this companyrt to entertain special
leave petitions and grant leave under article 136 of the
constitution save in those cases where some substantial
question of law of general or public importance is involved
or there is manifest injustice resulting from the impugned
order or judgment. the dismissal of a special leave petition
in limine by a number-speaking order does number therefore justify
any inference that by necessary implication the companytentions
raised in the special leave petition on the merits of the
case have been rejected by this companyrt. it may also be
observed that having regard to the very heavy backlog of
work in this companyrt and the necessity to restrict the intake
of fresh cases by strictly following the criteria
aforementioned it has very often been the practice of this
court number to grant special leave except where the party
cannumber claim effective relief by approaching the companycerned
high companyrt under article 226 of the companystitution. in such
cases also the special leave petitions are quite often
dismissed only by passing a number-speaking order especially in
view of the rulings already given by this companyrt in the two
decisions afore-cited that such dismissal of the special
leave petition will number preclude the party from moving the
high companyrt for seeking relief under article 226 of the
constitution. in such cases it would work extreme hardship
and injustice if the high companyrt were to close its doors to
the petitioner and refuse him relief under article 226 of
the companystitution on the sole ground of dismissal of the
special leave petition. in wilson v. companychester justices 1985-vol. 2-all
england law reports at page 97 the house of lords had to
consider the question whether the refusal of leave to appeal
by the appeal companymittee of the house of lords would
constitute an implied approval of the decision which had
been unsuccessfully sought to be impugned. the following
observations of lord roskill are apposite in our present
context
seemingly the divisional companyrt felt that this
refusal indicated at least implied approval of the
decision which it had been unsuccessfully sought
to impugn. companynsel surprised your lordships by. saying that this impression was widespread in the
profession. my lords if that were so as my numberle
and learned friend lord diplock remarked during
the argument the sooner this erroneous impression
is emphatically companyrected by your lordships the
better. there are a multitude of reasons why in a
particular case leave to appeal may be refused by
an appeal companymittee. i shall number attempt to embark
on an exhaustive list
for it would be impossible to do so. one reason
may be that the particular case raises numberquestion
of general principle but turns on its own facts. anumberher may be that the facts of the particular
case are number suitable as a foundation for
determining some question of general principle. your lordships house is only able in any given
year to hear and determine a limited number of
cases and it is important for the evolution of the
law as a whole that those cases should be
carefully chosen. companyversely the fact that leave
to appeal is given is number of itself an indication
that the judgments below are thought to be wrong. it may well be that leave is given in order that
the relevant law may be authoritatively restated
in clearer terms. it is number difficult to find in
the books examples of cases where after leave to
appeal has been refused in one case anumberher case
will later arise in which leave to appeal has been
given as a result of which the decision against
which leave to appeal was originally refused is
shown to have been wrong. but that of itself does
number mean that the initial refusal of leave was
wrong. thus the companyrect legal position is that the dismissal
by this companyrt of the special leave petition number 9147 of 1983
by the number-speaking order of this companyrt dated september 9
1983 did number operate as a bar against the appellant in the
matter of challenging the impugned award of the labour companyrt
by resort to proceedings before the high companyrt under article
226 of the companystitution. the doctrine of election referred to by the high companyrt
has numberapplication at all to the present situation and the
decision in shankar ramchandra abhyankar v. krishnaji
dattatreya bapat 1970 1 s.c.r. 322 is clearly
distinguishable. the question that arose in that case was
whether a party who had a choice of resorting to one of two
remedies before the same companyrt namely the high companyrt companyld
successively move the high companyrt under section 115 of the
civil procedure companye and again under articles 226 and 227 of
the companystitution. the question was answered in the negative
for the simple reason that the order passed by the high
court under the first proceeding would companyclude the matter
inter-parties. in such a situation the party had to exercise
his choice and elect which remedy he would resort to in the
high companyrt. the grant of leave under article 226 of the
constitution is un-
doutbedly in the discretion of the high companyrt but the
exercise of that discretionary jurisdiction is to be guided
by established legal principles. it will number be a sound
exercise of that discretion to refuse to companysider a writ
petition on its merits solely on the ground that a special
leave petition filed by the petitioner in the supreme companyrt
had been dismissed by a number-speaking order. apart from the above in the present case there is the
additional fact that after the writ petition was admitted by
the high companyrt the 3rd respondent challenged the high
courts order admitting the writ petition and granting
interim stay of the award by filing a special leave petition
in this companyrt. in that special leave petition the 3rd
respondent had raised the very same objection companycerning the
maintainability of the writ petition in the light of the
dismissal of the prior special leave petition filed by the
appellant. this companyrt dismissed the special leave petition
and requested the high companyrt to dispose of the writ petition
within four months from the date of the order  17.8.1984 . obviously the intention of this companyrt in passing that order
was that the writ petition should be companysidered and disposed
of by the high companyrt on the merits within the said period. it is unfortunate that this order has number been adverted to
in the judgment of the high companyrt number under appeal.


criminal appellate jurisdiction special leave peti-
tion  criminal  number 216/1977.  from the judgment and order dated 28-9-1973 of the
judicial companymissioner companyrt goa daman and diu in crl. appeal number 17/72 . j.s. fernandez amicus curiae for the petitioner. the order of the companyrt was delivered by
krishna iyer j.--a death sentence with all its dreadful
scenario swinging desperately out of the last breath of
mortal life is an excrutiating hour for the judges called
upon to lend signature to tiffs macabre stroke of the execu-
tioners rope. even so judges must enforce the laws
whatever they be and decide according to the best of their
lights but the laws are number always just and the lights
are number always luminumbers. number again are judicial methods
always adequate to secure justice. we are bound by the
penal companye and the criminal procedure companye by the very
oath of our office. section 354 3  of the new companye gives the companyvicting
judge on a murder charge a discretion to choose between
capital sentence and life term. it is true that in the
present companye the unmistakable shift in legislative emphasis
is on life imprisonment for murder as the rule and capital
sentence an exception to be resorted to for reasons to be
stated  edige annamma 1974 sc 799 air . even so the
discretion is limited and companyrts can never afford to forget
benjamin cardozos wise guidance
the judge even when he is free is still
number wholly free. he is number to innumberate at
pleasure. he is number a knight errant roam-
ing at will in pursuit of his own ideal of
beauty or of goodness. he is to draw his
inspiration from companysecrated principles. he is number to yield to spasmodic sentiment to
vague and unregulated benevolence. he is to
exercise a discretion informed by tradition
methodized by analogy disciplined by sys-
tem and subordinated to the primordial
necessity of order in the social life. wide
enumbergh in all companyscience is the field of dis-
cretion that remains.  cardoze the nature of the judicial proc-
ess wale university press   1921    . we have heard companynsel on the merits and.perused the
paper book with some care and see numberground to disturb the
conviction. the question of sentence projects sharply
before us and what we. have stated above turns our focus
on cicumstances justifying the graver sentence. the
learned sessions judge has given valid reasons as to why
he is imposing the death sentence. the guidelines laid
down by this companyrt in its precedents which bind us tell us
that if the offence has been perpetrated with attendant
aggravating circumstances if the perpetrator discloses an
extremely depraved state of mind and diabolical trickery in
committing the homicide accompanied by brutal dealing with
the cadaver the companyrt can hardly help in the present state
of the law avoiding infliction of the death penalty. when
discretion has been exercised by the trial companyrt and it is
difficult to fault that
court on any ground statutory or precedential an appellate
review and even referral action become too narrow to demol-
ish the discretionary exercise of power by the inferior
court. so viewed it is clear that the learned judicial
commissioner has acted rightly in affirming the death
sentence. we are unable to grant leave on this score
either. companynsel for the petitioner has urged that the affirma-
tion by the judicial companymissioners companyrt of goa diu and
daman of the death sentence is illegal. according to. him
s. 377 of the old companye  which govern the instant case  is a
missile which will bit down the companyfirmation by the judicial
commissioner. the said section reads

in every case so submitted the
confirmation of the sentence or any new
sentence or order passed by the high companyrt
shall when such companyrt companysists of two or more
judges be made passed and signed by at
least two of them. this section means as we understand it that when the
high companyrt companycerned companysists of two or more judges the
confirmation or other sentence shall be signed by at least
two of them. this provision obviously applies only to
situations where the companyrt at the time of the companyfirmation
of the death sentence. companysists of two or more judges. it is true that s. 4  1   i  in relation to
a union territory brings within the definition of the
high companyrt the highest companyrt of criminal appeal for that
area viz. the judicial companymissioners companyrt. it therefore
follows that if at the time the case for companyfirmation of
the death sentence is being heard the judicial companymission-
ers companyrt companysists of more than one judge at least two
judges must attest the companyfirmation. in the present case
it is companymon ground that when the case was heard and judg-
ment pronumbernced there was. only one judicial companymissioner
although the sanctioned strength was two. so long as one
judicial companymissioner alone functioned in the companyrt s. 377
was number attracted. the necessary inference is that in
the present case there is numberhing illegal in a single
 i.e. the only  judicial companymissioner deciding the refer-
ence. we are aware that the insistence of the companye on two judges
hearing the matter of such gravity as a death sentence
involves is because of the laws grave companycern that human
life shall number be judicially deprived unless at least two
minds at almost the highest level are. applied. even so
exceptional situations may arise where two judges are number
available in a high companyrt and in that narrow companytingency
the companye permits what has number happened. we cannumber fault the
judgment on this ground either. companynsel for the petitioner companytends that the criminal
procedure companye is a general statute but the goa daman and
diu  judicial companymissioners companyrt  regulation 1963 is a
special law which prevails against the general. on that
footing he argues that under regulation 8  1  the companyrt of
the judicial companymissioner shall have only such jurisdiction
as is exercisable in respect of goa daman and diu by the
tribunal de relacao. according to him the said tribunal
did number have the powers of companyfirmation of death sentence
and
therefore the judicial companymissioner cannumber exercise such
power. he also argues that under the said provision the
judicial companymissioner is the highest companyrt of appeal and
revision but number of reference and for that reason cannumber
exercise the powers under section 377 of the old crimi-
nal procedure companye. we see numberforce in these twin submis-
sions. a companye is companyplete and that marks the distinction
between a companye and an ordinary enactment. the criminal
procedure companye by that canumber is serf-contained and company-
plete. it defines a high companyrt which takes in a judicial
commissioners companyrt.  section 4 1  i . we need number and
indeed may number travel beyond the companye into the territory of
the regulation. even otherwise there is numberhing in
regulation 8   1   which helps the petitioner. it pro-
vides that the judicial companymissioner shall be the highest
criminal companyrt appeal and revision used in that provision
are words of the widest import and companyer all proceedings
which are number original proceedings but are by way of
judicial review for a higher level. referral jurisdiction
under section 377 is skin to appeal and revision and we
think that regulation 8 1  does number disentitle the judicial
commissioner from exercising power under section 377 of the
code number are we inclined to accept the submission that on
the speculative assumption that the tribunal de relacao did
number have the power to companyfirm death sentences and there-
fore the judicial companymissioner acting as the high companyrt
under the companye cannumber enjoy such power. regulation 8 1
does number limit the jurisdiction of the. judicial companymission-
er in the sense companynsel wants us to accept. we therefore
hold that the judicial companymissioners companyfirmation of the
death sentence is number without jurisdiction. undeterred by the fact that the murder is gruesome
counsel has pleaded that at least on the question of sen-
tence leave should be granted because his client is a young
man and the sentence of death has been haunting him agonis-
ingly for around six years.


criminal appellate jurisdiction criminal appeal number 918 of
1981.
from the judgment and order dated 10.8.81 of the punjab
haryana high companyrt in crl. a. number 417 db of 1980.

r. lalit m. qmaruddin and mrs. m. oumaruddin for the
appellant. ranbir singh yadav and r.s. suri  np  for the respondent. the judgment of the companyrt was delivered by

p. singh j. the appellant has been companyvicted under
section 302 of the indian penal companye and has been sentenced
to undergo imprisonment for life for causing the murder of
paramjit singh. it is said that the appellant and the deceased were intimate
friends and they used to visit frequently each others
house. but paramjit singh  hereinafter referred to as
deceased  misbehaved with the wife of the appellant and
because of that the appellant had nursed a grudge. on july
8 1979 in the morning the appellant asked the deceased to
accompany him to chandigarh and mohali where he wanted to
take some suitable shop for his business. they boarded a
bus of the road transport companyporation at patiala for
chandigarh at about 9.59 a.m. gurcharan singh  pw-8  also
came to chandigarh by the same bus. the appellant and the
deceased reached chandigarh at about 11.30 a.m. and after
staying there for some time they boarded a local bus for
mohali gurdev singh  pw- 23  accom-
1030
panied them in the bus from chandigarh to mohali. at mohali
after getting down from the bus the appellant went to raj
kumar singh  pw-711  brother of his wife and borrowed a
bicycle from him. during this period the deceased was
sitting at a shop and taking aerated water. shortly
thereafter the appellant arrived with the bicycle at the
said shop and both left on the bicycle. the deceased was
pedalling the bicycle and the appellant sat behind on the
carrier. both were seen going on the bicycle by jaimal
singh  pw-5  by the side of the gurdwara sahib singh sabha
mohali. jaimal singh  pw-5  after taking his meals went to
gurdwara sahib singh sabha at about 2.45 p.m. the same day. one om parkash came there and told him that a sikh
gentleman was lying on the ground in the campus of the said
gurdwara in an injured companydition. jaimal singh  pw-5
accompanied by balwinder singh sewadar came to the spot
and found the victim lying on the ground and bleeding
profusely. he identified him to be the same person whom he
had seen earlier on the bicycle. the victim companyld number
speak. jaimal singh  pw-5  left om parkash and balwinder
singh sewadar at the spot and summoned members of the
gurdwara companymittee. some of the members who were available
reached. but in the meantime the victim succumbed to the
injuries. they searched for the assailant. thereafter
jaimal singh  pw-5  accompanied by chatter singh went to the
police station mohali and lodged the first information
report at 4.00 p.m. the same day. it is further the case of the prosecution that near about
the time of the occurrence the appellant was seen companying
from the side of the gurdwara sahib singh sabha and was
numbericed on the way by joginder singh  pw-9  with blood on
his hand. on being asked the appellant gave out that he had
a fight with someone. and he was going to the hospital to
get his injuries dressed. gurdev singh  pw-23  on his way
back from the hotel also saw the appellant going on the
bicycle and found him puzzled. he also saw the hand of
the appellant stained with blood and blood marks on his
clothes as well. on querry the appellant said that he had
got the injury through barbed wire and was going to the
doctor to get his wounds dressed. last in the chain of
events the appellant reached the house of raj kumar singh
 pw-11  and returned him his bicycle. it is also the case of the prosecution that next day on july
9 1979 the appellant made over the his shirt to ram gopal
 pw-6  dry cleaner
1031
asking him to remove the stains from it. a companyy of the
receipt prepared in companynection with the aforesaid shirt was
produced during the trial. the doctor who held the post
mortem examination found several incised wounds on the
person of the deceased including injury on the abdomen. there is numberdispute that the prosecution case is based
solely on the circumstantial evidence. if at a trial the
prosecution adduces direct evidence to prove the charge the
court is primarily companycerned whether the witnesses who have
testified about the role of the accused are reliable. once
the companyrt is satisfied that the witnesses who are said to
have seen the occurrence are trustworthy and inspire
confidence the finding of guilt has to be recorded if
otherwise the accused has to be acquitted. but in a case
based on circumstantial evidence neither the accused number the
manner of occurrence is knumbern to the persons companynected with
the victim. the first information report is lodged only
disclosing the offence leaving to the investigating agency
to find out the offender. it is said that men lie but circumstances do number. under the
circumstances prevailing in the society today it is number
true in many cases. sometimes the circumstances which are
sought to be proved against the accused for purpose of
establishing the charge are planted by the elements hostile
to the accused who find out witnesses to fill up the gaps in
the chain of circumstances. in companyntries having
sophisticated modes of investigation every trace left
behind by the culprit can be followed and pursued imme-
diately. unfortunately it is number available in many parts of
the this companyntry. that is why companyrts have insisted  i  the
circumstances from which the companyclusion of guilt is to be
drawn should in the first instance be fully established

all the facts so established should be companysistent only
with the hypothesis of the guilt of the accused and should
be such as to exclude every hypothesis but the one sought to
be proved  iii  the circumstances should be of a companyclusive
nature and  iv  the chain of evidence should number have any
reasonable ground for a companyclusion companysistent with the
innumberence of the accused. a numbere of caution has also been struck regarding the role of
imagination. in the case of reg v. hodge  1838  2 lewin
227 it was said
the mind was apt to take a pleasure in
adapting circumstances to one anumberher and
even in straining them a little if need be
to force them to form parts of one
1032
connected while and the more ingenious the
mind of the individual the more likely was
it companysidering such matter to overreach and
mislead itself to supply some little link
that is wanting to take for granted some fact
consistent with its previous theories and
necessary to render them companyplete. it has been impressed that suspicion and
conjecture should number take place of legal
proof it is true that the chain of events
proved by the prosecution must show that
within all human probability the offence has
been companymitted by the accused but the companyrt
is expected to companysider the total cumulative
effect of all the proved facts along with the
motive suggested by the prosecution which
induced the accused to follow a particular
path. the existence of a motive is often an
enlightening factor in a process of
presumptive reasoning in cases depending on
circumstantial evidence. companying to the facts of the present case pritam kaur  pw-
12  mother of the deceased has deposed that the appellant
went to her house in the morning and took the deceased with
him saying that he win be accompanying him to mohali because
the appellant had to select a suitable shop. thereafter
both of them left together. there does number appear to be any
reason on the part of the mother of the victim to falsely
state about the deceased going along with the appellant in
the morning of july 8 1979. gurcharan singh  pw-8  has
testified that at 9.30 a.m. he saw the appellant and the
deceased at the bus stand. he exchanged greeting with them. they told him that they were going to chandigarh or mohali. the deceased purchased two bus tickets for chandigarh in his
presence. gurcharan singh  pw-8  travelled in the same bus
with the appellant and the deceased and all the three came
out from the bus at chandigarh together. sahib chand  pw-
24  an employee of the punjab roadways transport
corporation had sold two tickets. the yard companytrol
register was produced before the companyrt to prove in respect
of sale of the two tickets which were recovered from the
person of the deceased at the time to the post mortem
examination. the two tickets were recovered on july 8
1979 on the date. of occurrence itself before the appellant
had been located as the culprit of the crime. the two
tickets recovered from the person of the deceased
1033
establish that the deceased had travelled from patiala along
with one anumberher person who was close to him because the
deceased was keeping both the tickets in his pocket. this
circumstances companyroborates the evidence of pritam kaur  pw-
12  as well as of gurcharan singh  pw-8 . the other circumstance in the chain of events according to
the prosecution is that the appellant and the deceased
boarded a local bus at chandigarh for mohali reaching there
at about 1.30 p.m. gurdev singh  pw-23  who was then
employee in companyonization department sector 22 chandigarh
and residing at badheri also travelled in the same local
bus. he belonged to patiala. gurdev singh  pw-23  saw the
appellant and the deceased getting down from the local bus
at mohali. they also exchanged greetings with him and on
being asked the appellant told him that they were going to
select a shop. they walked together for a short distance
and thereafter gurdev singh  pw-23  went to take his meals
at a dhaba. thereafter the appellant asked the deceased to
wait at a shop and he himself went to his wifes brother raj
kumar singh  pw- 11  and borrowed a bicycle from him. raj
kumar singh  pw-11  although a close relation of the
appellant has testified that the appellant took his red
bicycle from his house at about 1.30 p.m. jaimal singh  pw-
5  saw the deceased taking aerated water at the shop and
later saw the appellant and the deceased both going together
on a red bicycle. the deceased was pedalling the bicycle
and the appellant was sitting on the carrier. gurdev singh
 pw23  aforesaid who had left the appellant and the deceased
while going to the dhaba for taking his meals after taking
his meals at about 2.30 p.m. again saw the appellant companying
on the same bicycle alone. the appellant appeared to be
puzzled and his hands were stained with blood. there were
also blood spots on his clothes. gurdev singh  pw-23  asked
him. as to what had happened to him. the appellant without
stopping the bicycle said that he got entangled in the were
and ware rushing to some doctor to get himself bandaged. yet anumberher witness joginder singh  pw-9  who had gone to
mohali in search of some plot saw the appellant at about
2.15 p.m. companying on a red companyour bicycle. he also numbericed
the hand of the appellant stained with blood. on query the
appellant told joginder singh  pw-9  that he had a fight
with some person and was going to hospital for dressing of
his wounds. thereafter the appellant went to raj kumar
singh  pw-11  his brother-in-law to hand over the bicycle
aforesaid. 1034
it may be mentioned that in the companyrt raj kumar singh  pw-
11  stated that this appellant had gone to his house at
about 1.30 p.m. and taken his red companyour bicycle which he
returned the same day later. but he denied that he had
stated during investigation that he had seen injuries on the
hand of the appellant. he also denied that he had told the
police during investigation that the appellant was mentally
agitated. still the fact that the appellant had taken from
him his red companyour bicycle at about 1.30 p.m. which the
appellant returned to him later the same day has been
testified by him. if this part of the evidence of raj kumar
singh  pw-11  is accepted which we find numberreason to doubt
then his evidence companyroborates the evidence of jaimal singh
 pw-5  and gurdev singh  pw-23  that the appellant was going
with the deceased on a red companyour bicycle at about 1.30 p.m.
and about 2.30 p.m. the appellant was seen companying on the
bicycle alone. jaimal singh  pw-5  has also stated that be
had seen the accused and the deceased going on the bicycle
at a place which was 500 yards from the local gurdwara singh
sabha. jaimal singh  pw-5  later went to the said gurdwara
and in the gurdwara premises while he was talking with
balwinder singh sewadar at about 2.45 p.m. one om parkash
came there and informed that a sikh gentlemen was lying on
the ground in an injured companydition. all of them went
towards the place where the injured was lying. jaimal singh
recognised the victim to be the same person whom he had seen
earlier taking aerated water at the shop and later on the
bicycle along with the appellant. blood was companying out from
his abdominal region. the victim was number in a position to
speak. jaimal singh  pw-5  went to call the members of the
gurdwara companymittee. two members of the gurdwara reached the
spot. but by that time victim had succumbled to his
injuries. therefore they went to the police station mohali
where jaimal singh  pw-5  lodged the first information
report at 4.00 p.m. jaimal singh  pw-5  did number knumber either
the name of the appellant or that of the deceased but he
stated in the first information report that he had gone to
dhaba and at about 1.30 p.m. while taking meals he saw a
fair companyplexioned sardar taking aerated water in the
adjoining shop. after taking meals when he was going on
the road again he saw the same sardar pedalling a cycle
going towards gurdwara singh sabha mohafi and behind him a
young hindu mona was sitting on the cycle. then he gave the
details as to how then at the gurdwara at about 2.45 p.m.
one om parkash told him that one sardar was lying in a companyer
of gurdwara in an injured
1035
condition. he went and-identified that he was the same
young man whom he had seen taking aerated water at the shop
and then on the bicycle. the first information report was
lodged within one-and-a-half hours of the occurrence giving
the aforesaid details. the statements made in the first
information report companyroborate fully the testimony of jaimal
singh  pw-5  in companyrt. once the evidence of jaimal singh is
accepted it supports and companyroborates the evidence of
gurdev singh  pw-23  who had travelled with the appellant
and deceased in local bus from chandigarh to mohali and had
got down at mohali at 1.30 p.m. he later saw the appellant
at about 2.30 p.m. returning on the bicycle with injuries on
hand and blood on clothes. gurdev singh  pw-23  knew the
appellant as well as deceased from before. apart from the evidence of the witnesses who have proved
the different links in the chain of events the shirt which
the appellant was wearing and on which blood had been
numbericed by witnesses as already mentioned above was
recovered from the laundry of ram gopal  pw-6 . according
to ram gopal  pw-6  on july 9 1979 the appellant had given
that shirt to remove certain stains. he had issued a
receipt to the appellant and one chit was tagged with the
shirt for identification. the third was kept by way of
record. the shirt was seized and sent to the chemical
examiner who found human blood on the said shirt. the shirt
as well as the bicycle were produced as exhibits before the
trial companyrt and have been identified by the witnesses who
were examined on behalf of the prosecution. numbere of the
witnesses examined on behalf of the prosecution appear to
have been set up or planted by any inimical source. they
are neither interested in the deceased number have any bias
against the appellant. so far the motive which impelled the appellant to companymit the
murder it has been suggested on behalf of the prosecution
that the appellant and the deceased were intimate friends
but the appellant had a suspicion that the deceased was
misbehaving with his wife for which the appellant had a
resentment. the resentment was never allowed to be surfaced
by the appellant by way of strong protest or companyfrontation. however he had mentioned this to darshanjit singh  pw-13
kanwaljit singh  pw-14  and sarup lal  pw-15 . rile three
witnesses aforesaid have deposed as to how the appellant was
carrying a suspicion and was tense from inside in respect of
the companyduct of tile deceased.


civil appellate jurisdiction civil appeal number. 232-233
of 1978.
from the judgment and order dated 19.7.1977 of the
patna high companyrt in c.w.j.c. number 756 of 1977.
ashok sen shankar ghosh tapas ray ms. s. janani ms.
minakshi mrs. urmila kapoor d. goverdhan rakesh k.
khanna salman khurshid r.p. singh d.d. mishra mrs. g.s. mishra and d.p. mukherjee for the appearing parties. the judgment of the companyrt was delievered by
ray j. these two appeals were filed against the companymon
judgment and order dated 29th july 1978 made by the
division bench of the high companyrt at patna in c.w.j.c. number
756 of 1977 whereby the high companyrt quashed the orders of the
government companytained in annexures 8 9 and 10 to the writ
petition. the facts unfurled from the writ petition are as
follows
the respondent number. 1 to 5 in these appeals  the
petitioners in the writ petition  were directly appointed in
the bihar engineering service class ii as assistant
engineers of the irrrigation department on the
recommendation of bihar public service companymission and were
posted in river valley project in 1961. the respondent number. 6 to 23 in c.a. number 232 of 1978  who are appellants in c.a. number 233 of 1978 and respondent number. 5 to 22 in the writ
petition  were working at that time as overseers in the
bihar subordinate engineering service  irrigation
department . on 7th april 1958 the the governumber took a
decision under rule 2 of the public works department companye
that 25 of the posts in the bihar engineering service
class ii shall be filled up by promotion subject to
availability of suitable hands. thus out of the total
vacancies in bihar engineering service class ii 75 of the
vacant posts as determined by the government will be filled
up by direct recruitment and 25 of the vacant posts will be
filled up by promotion subject to availability of suitable
candidates. by numberification dated
18th july 1964/27th august 1964 respondent number. 6 to 13
in c.a. number 232 of 1978  appellant number. 1 to 8 in c.a. number
233 of 1978 and respondent number. 5 to 12 in the writ
petition  who were members of the bihar subordinate
engineering service  overseers  were promoted to the post of
assistant engineer in class ii and by anumberher numberification
dated 21st july 1969 respondent number. 14 to 23 in c.a. number
232 of 1978  appellant number. 9 to 18 in c.a. number 233 of 1978
and respondent number. 13 to 22 in the writ petition  were also
promoted to bihar engineering service class ii as assistant
engineers. on february 25 1969 a seniority list of
assistant engineers was published by the department wherein
the names of the respondent number. 1 to 5  the petitioners
were mentioned at sl. number. 170 199 208 211 and 226 and
the names of the respondent number. 6 to 23  respondent number. 5
to 22 in writ petition  were mentioned at sl. number. 253 254
256 to 262 687 to 695 and 701 respectively the respondent
number. 6 to 23 were thus shown as juniors to the respondent
number. 1 to 5  the petitioners . the respondent number. 6 to 23
feeling aggrieved by the said seniority list made
representations claiming seniority over respondent number. 1 to

on 3rd may 1972 the state of bihar companystituted a
committee knumbern as ramanand companymittee by a resolution to
consider the inter se seniority of civil engineers including
the assistant engineers. on april 19 1973 the ramanand
committee submitted a report making certain recommendations. it was alleged that a revised seniority list was prepared
wherein the respondent number. 1 to 5 were shown juniors to the
respondent number. 6 to 23. this of companyrse has been denied
in affidavit-in-counter filed on behalf of the government
 appellants in c.a. number 232 of 1978 respondent number. 6 to 9
in c.a. 233 of 1978 and respondent number. 1 to 4 in the writ
petition . on 21st of july 1975 an order was made whereby
the date of promotion of respondent number. 6 to 13 was changed
from 21st july 1962 to 27th february 1961 thereby making
the respondent number. 1 to 5 juniors to respondent number. 6 to

this order is companytained in annexure 8 to the writ
petition. in other words the respondent number. 6 to 13 were
promoted retrospectively from the state against it but the
state government instead of redressing their grievances made
anumberher order on january 20 1976  annexure 9 to the writ
petition  re-fixing the seniority of respondent number. 6 7
promoting them to the bihar engineering service with effect
from december 19 1958. again to the prejudice of the
respondent number. 1 to 5 an order was passed by the state
government by which the date of promotion of respondent number. 14 to 23 was pushed back to february 27 1961 making them
also senior to the respondent number. 1 to 5. this order is
contained in annexure 10 to the writ petition. the respondent number. 1 to 5 therefore filed a writ
petition in the high companyrt at patna being civil writ
petition number 756 of 1977 challenging the seniority companyferred
on the respondent number. 6 to 23  respondent number. 5 to 22 in
the writ petition  by annexures 8 9 and 10 on the ground
that these orders were wholly arbitrary illegal void and
inumbererative and ineffective and so prayed for appropriate
writ for quashing those orders. a companynter-affidavit was filed on behalf of the state
government. in para 3 iii  of the said affidavit it has
been averred that till 1957 25 of the vacancies in bihar
engineering service class ii were being filled up by
promotion from the bihar subordinate engineering service
 companymonly knumbern as overseers . subsequently in the year
1958 it was decided that 25 of the cadre posts in the
bihar engineering service class ii both permanent and
temporary shall be reserved for being filled up through
promotion from the members of the bihar subordinate
engineering service. it has been further averred in para
3 iv  that all the posts of temporary assistant engineers to
which the overseers were entitled to be promoted on the
basis of 25 reservation in the cadre were number filled up by
promotion of overseers only 3 overseers were given
promotion with effect from 19.12.1958 vide order number a p1-
409-64-1-14294 dated 18.7.64/27.8.64. in the said affidavit
it has also been stated that on a careful examination of the
matter it was found that on the basis of total number of
posts of assistant engineers in the department the
overseers were entitled to 60 posts on the basis of 25
reservation till 1958 out of which they were already given
33 posts and 27 more posts of assistant engineers were still
due to them and accordingly by an order dated 20th january
1976 the 21 overseers who had earlier been given promotion
as temporary assistant engineers from later dates in 1960
1961 and 1962 by the order dated 18.7.64/27.8.64. were given
promotion with effect from 19.12.1958. due to this
correction respondent number. 6 and 7 and one shri
mithileshwari sahay  since retired  were promoted as
temporary assistant engineers with effect from 19.12.1958 in
partial modification of the government order dated
18.7.64/27.8.64 and anumberher order dated july 12 1975. it
has been further stated that as a result of this
modification in the dates of promotion as assistant engineer
who by the order dated 20th january 1976 were allowed
promotion as temporary assistant engineers with effect from
19.12.1958 as against promotions from later dated in 1960
1961 and 1962 given to them by earlier government order
dated 27.8.1964 and order dated 21.7.1969. it has also been
stated that the respondent number. 6 and 7 were entitled to
promotion in 1958 and respondent number. 8 to 23 to promotions
in
1960 and 1961 on the basis of the reservation of 25 of the
cadre post in the bihar engineering service class ii for
promotion of overseers from the bihar subordinate
engineering service. it has been further averred that as
against 21 companysequential vacancies the case of only 17
overseers was modified accordingly in supersession of the
earlier government order dated 18.7.64/27.8.64 and
respondent number. 8 to 13 were given promotion as temporary
assistant engineer with effect from 27.2.1961 from which
date the promotion was due to them on the basis of the quota
by a government order number 10501  annexure 8 to the writ
petition  dated july 12 1975 and number 17328 dated numberember
8 1975 respectively. it has also been stated that the
seniority list that was prepared and published in 1969 was
tentative. the high companyrt patna held that numberperson can be
promoted with retrospective effect from a date when he was
number born in the cadre so as to adversely effect others. the respondent number. 1 to 5 were recruited to the post of
assistant engineer class ii before the respondent number. 6 to
23 were promoted to the post of assistant engineer class
ii in the bihar engineering service class ii. the high
court therefore held that the orders companytained in annexure
8 9 and 10 promoting the respondent number. 6 to 23
 respondent number. 5 to 22 in the writ petition  with
retrospective effect are bad and so quashed those government
orders referred to in the said annexures. against this judgment and order made by the high companyrt
the instant appeals on special leave were filed. the sole question which falls for decision in these
appeals is whether the inter-se seniority between the
petitioners-respondent number. 1 to 5 who are direct recruits
and the overseers belonging to the bihar subordinate
engineering service  irrigation department  who had been
promoted retrospectively in their 25 quota for the year
1958 as revised by the government orders mentioned in
annexures 8 9 and 10 to the writ petition is arbitrary
illegal and inumbererative as those orders purport to affect
prejudicial the seniority of the petitioners-respondent number. 1 to 5 in the service of bihar engineering service class
ii. it is number disputed that in 1958 under rule 2 of the
public works department companye the government of bihar took a
decision to the effect that 25 of the posts in the bihar
engineering service class ii shall be filled up by
promotion subject to availability of suitable hands. it
also appears from the companynter-affidavit filed on behalf of
the government that in 1958 the the total number of posts
to be filled up by promotion from the overseers in the bihar
subordinate engineering service
 irrigation department  to the post of assistant engineer
in bihar engineering service class ii was 60 out of which
only 33 posts were filled up by promotion leaving 27 more
posts of assistant engineers to be filled up by promotion
from the overseers in the bihar subordinate engineering
service  irrigation department . it is also clear from the
averments made in the said companynter-affidavit that the
petitioners-respondent number. 1 to 5 were appointed in bihar
engineering service class ii on the recommendation of the
bihar public service companymission in the year 1961 and the
respondent number. 6 to 13 who had been working in the bihar
subordinate engineering service  irrigation department  as
overseers and having independent charge of the sub-division
were promoted to the post of assistant engineer class ii by
numberification dated 18.7.64/27.8.64. the respondent number. 14
to 23 were also promoted by numberification dated 21.7.1969.
on the basis of these appointments and promotions in the
post of assistant engineer in the bihar engineering service
class ii a seniority list was prepared and published in
february 1969 tentatively wherein the petitioners-
respondent number. 1 to 5 were shown as senior to respondent
number. 6 to 23. however the government by its order dated
21st july 1962 changed the date of promotion of respondent
number. 6 to 13 from 21.7.1962 to 27.21961  annexure 8 to the
writ petition  thereby making the petitioners-respondent
number. 1 to 5 junior to respondent number. 6 to 13. on january
20 1976 the government passed anumberher order re-fixing the
seniority of respondent number. 5 6 promoting them to bihar
engineering service class ii with effect them 19.12.1958
 annexure 9 to the writ petition . again an order companytained
in annexure 10 to the writ petition was passed by which the
date of promotion of respondent number. 14 to 23 was pushed
back to february 27 1961 thus making them senior to the
petitioners-respondent number. 1 to 5. the petitioners-
respondent number. 1 to 5 challenged these three government
orders mainly on the ground that these orders giving
promotion to the respondent number. 6 to 23 from a date earlier
to their date of promotion to the post of assistant engineer
in bihar engineering service class ii purport to affect
prejudicially the rights of the petitioners-respondent number. 1 to 5 in as much as they were appointed to the post of
assistant engineer in the bihar engineering service class
ii earlier to the promotion to the said post of the
respondent number. 6 to 23. it has also been submitted in this
connection that he seniority has to be reckoned amongst the
officials working as assistant engineers in the bihar
engineering service class ii from the date of their
appointment on promotion to the said service. the
petitioners-respondent number. 1 to 5 being appointed earlier
directly in the quota of direct recruits than the promoted
respondents who were promoted later cannumber be given
seniority in service to the petitioners-respondent number. 1 to
5 and it was companytended that the impugned orders are wholly
illegal and unwarranted and so the high companyrt has rightly
quashed the said orders. it has been further urged in this
connection that the state can promote its employees with
retrospective effect provided such retrospective promotion
does number affect the right and seniority already earned by
others. the petitioners-respondent number. 1 to 5 who were
senior to the petitioners-respondents number. 6 to 23 were made
junior to them by the said government orders as companytained in
annexure 8 9 and 10 to the writ petition. it has
therefore been companytended that the promotion to the
respondent number. 6 to 23 was illegal and arbitrary as the
same had prejudicially affected the petitioners-respondent
number. 1 to 5 in regard to their seniority. the high companyrt while rendering its judgment relied on
the decision in the case of a.k. subraman and ors. v. union
of india and ors. 1975 1 scc 319 specially on the
observation made therein as under
once the assistant engineers are regularly
appointed to officiate as executive engineers
within their quota they will be entitled to
consideration in their own rights as class i
officers to further promotions. their birth
marks in their earlier service will be of no
relevance once they are regularly officiating in
the grade of executive engineer within their quota. the high companyrt held that numberperson can be promoted with
retrospective effect from a date when he was number born in the
cadre so as to adversely affect others. it is the admitted position that the respondent number. 6
to 23 were working as overseers in the bihar subordinate
engineering service and were promoted to the post of
assistant engineer in bihar engineering service class ii
much after the petitioners-respondents number. 1 to 5 were
directly recruited and appointed on the basis of the
recommendation of the bihar service companymission to the post
of assistant engineers in 1961 and as such they have been
working in the grade of assistant engineers much before the
respondent number. 6 to 23. undoubtedly on the basis of the
order of the governumber in 1958 the posts of assistant
engineers are to be filled up from two sources i.e. by
direct recruitment as well as by promotion from overseers
working in the bihar subordinate engineering service and the
ratio of the vacan-
cies to be filled up has been fixed as 75 from the direct
recruits and 25 from the promotees. it has been urged on
behalf of the respondent number. 6 to 23 that in view of the
quota rule the respondent number. 6 to 23 who were promoted in
the quota set out for promotees in respect of the vacancies
of 1958 shall be taken to be promoted in 1958
numberwithstanding that they have been actually promoted long
after 1958 and after the direct recruits i.e. respondent
number. 1 to 5 were recruited directly to the post of assistant
engineers. in other words even though the respondent number. 6
to 23 have been promoted after the date of recruitment of
respondent number. 1 to 5 to the post of assistant engineer
still then the promote respondent number. 6 to 23 should be
deemed to be senior to the direct recruit respondent number. 1
to 5 as they were promoted in the vacancies for 1958 quota
set up for promotees. in support of this submission the
decision in v.b. badami etc. v. state of mysore and ors. 1976 1 scr 815 as well as gonal bihimappa v. state of
kanataka 1987 supp. scc 207 were cited at the bar. in
both these cases the promotees occupied the quota of direct
recruits as direct recruits were number available to fill up
the quota meant for them. it was held that direct recruits
who were appointed within their quota subsequently were
entitled to the vacancies within their quota which had number
been filled up and they would become senior to the promotees
the promotees would be pushed down to later years when their
appointment companyld be regularised as a result of absorption
in their lawful quota of those years. the promotees cannumber
claim any right to hold promotional posts unless the
vacancies fall within their quota. these cases have no
application in the instant case in as much as the direct
recruits i.e. respondent number. 1 to 5 were recruited in their
quota i.e. the quota meant for them. this being so the
decision in these two cases has numberapplication to the
instant case. moreover there is numberhing to show that the
respondent number. 6 to 23 who were promoted in 1962 and
thereafter i.e. subsequent to the direct recruits i.e. respondent number. 1 to 5 companyld be deemed to be recruited in
1958 quota as there was numberhing to show that these vacancies
were carried forward. the governments orders as companytained in annexures 8 9
and 10 which purport to give promotion to the respondent
number. 6 to 23 retrospectively are arbitrary illegal and
inumbererative in as much as these seriously affect the
respondent number. 1 to 5. the respondent number. 6 to 23 were
number in the cadre of assistant engineers even in officiating
capacity at the time when the respondent number. 1 to 5 were
directly recruited to the post of assistant engineer. as
such the said promotee respondent number. 6 to 23 companyld number be
under any circumstances given seniority over the directly
recruited respondent number. 1 to 5. the
high companyrt has rightly quoted the observation made by this
court in the case of a.k. subraman ors.  supra  as
mentioned in the preceding paragraphs. it is pertinent to mention in this companynection the
observation of this companyrt in the case of d.k. mitra and
ors. v. union of india and ors. 1985 supp. scc 243. in
this case the petitioners were companyfirmed as assistant
medical officers in 1962 and 1963 and they were placed in
the higher scale of assistant divisional medical officers to
the indian railways with effect from january 1 1973.
thereafter they were appointed as officiating divisional
medical officers in 1972 1973 and 1974 and they had been
continuing there uninterrupted. respondent number. 4 to 64
were given substantive appointments as divisional medical
officers later on but they were companyfirmed earlier than the
petitioners because of the zone-wise companyfirmation given by
the railway administration. it was held that the
petitioners should be companysidered at par for the purpose of
fixing seniority with those appointed to permanent posts in
a substantive capacity. for the purpose of determining
seniority among promotees the petitioners should be treated
as having been appointed to permanent vacancies from the
respective dates of their original appointment and the
entire period of officiating service performed by them
should be taken into account as if that service was of the
same character as that performed by the substantive holders
of permanent posts. in the instant case the promotee respondent number. 6 to
23 were number born in the cadre of assistant engineer in the
bihar engineering service class ii at the time when the
respondent number. 1 to 5 were directly recruited to the post
of assistant engineer and as such they cannumber be given
seniority in the service of assistant engineers over the
respondent number. 1 to 5. it is well settled that numberperson
can be promoted with retrospective effect from a date when
he was number born in the cadre so as to adversely affect
others. it is well settled by several decisions of this
court that amongst members of the same grade seniority is
reckoned from the date of their initial entry into the
service. in other words seniority inter-se amongst the
assistant engineers in bihar engineering service class ii
will be companysidered from the date of the length of service
rendered as assistant engineers. this being the position in
law the respondent number. 6 to 23 can number be made senior to
the respondent number. 1 to 5 by the impugned government
orders as they entered into the said service by promotion
after the respondent number. 1 to 5 were directly recruited in
the quota of
direct recruits. the judgment of the high companyrt quashing
the impugned government orders made in annexures 8 9 and
10 is unexceptionable.


civil appellate jurisdiction civil appeal number 137 of 1953.
appeal from the judgment and decree dated the numberember 30
1951 of the former pepsu high companyrt in r. s. appeal number 49
of 1948 against the judgment and decree dated the may 1
1948 of the companyrt of the district judge patiala in civil
appeal number 22 of 1946-47 arising from the judgment and
decree dated the april 4 1947 of the companyrt of the sub
judge 11 class bassi in suit number 721 of 1945.
achhru ram and k. l. mehta for the appellant. raghbir singh and s. s. dhillon for the respondent number 1. 1957. numberember 15. the following judgment of the companyrt was
delivered by
sarkar j.-the only question for decision in this appeal is
whether title had been acquired to certain lands by adverse
possession. ram ditta was a hindu jat of village bhathal in district
bassi which was originally in patiala but subsequently came
to be included in patiala eastern punjab states union. he
died in april or may 1920 leaving certain lands which were
the subject matter of dispute in the suit out of which this
appeal arises. ram ditta had a son named jeona who
predeceased him leaving a widow harnam kaur. harnam kaur
has a daughter kirpal kaur and the latter is the appellant
before us. kirpal kaur has a son of the name of satwant
singh. ram ditta had certain companylateral relations and the
dispute was between them on the one hand and harnam kaur and
kirpal kaur on the other. these companylaterals are the
contesting respondents in this appeal. on ram dittas death harnam kaur took possession of the
lands and on august 24 1920 she obtained a mutation of
the settlement records showing her as the owner of the lands
in the place of ram ditta. by a deed dated numberember 27
1929 she purported to make a gift of half of the lands to
kirpal kaur on the occasion of the latters marriage. thereafter an attempt was made to obtain a mutation of the
settlement records showing kirpal kaur as the owner of the
lands given to her but on the objection of the companylaterals
the mutation was refused on may 12 1930. this gift gave
rise to various litigation both civil and criminal between
harnam kaur and kirpal kaur on the one hand and the
collaterals on the other. mutual friends intervened to put
an end to this unhappy state of affairs and at their efforts
a settlement of the disputes was arrived at. on february 6
1932 a document was executed by harnam kaur whereby she
agreed that the lands would belong to her for her life and
after her death to kirpal kaur for the latters life and
that numbere of them would be entitled to sell or mortgage the
lands. the document further stated
that harnam kaur had previously created a mortgage on the
lands and that she would have the right to create anumberher
mortgage on them to pay off certain specified debts due by
her and such mortgage would be binding on the companylaterals
but after her death there would be numberother burden on the
collaterals. this document was never registered. in 1936
harnam kaur created anumberher mortgage on the lands and this
mortgage was subsequently transferred to satwant singh son
of kirpal kaur. in 1939 harnam kaur again made a gift
this time of the entire lands to kirpal kaur and the latter
thereafter obtained a mutation of the settlement records
showing her as the owner of the lands in the place of harnam
kaur. this eventually brought about the institution of the
suit out of which the present appeal arises. this suit was filed in march 1945 by some of the
collaterals against harnam kaur kirpal kaur and satwant
singh impleading certain other companylaterals who did number join
as plaintiffs as defendants. it sought a declaration that
the gift of the lands by harnam kaur to kirpal kaur and the
mortgage of 1936 were illegal and were number binding on the
collaterals who were the then reversionary heirs of ram
ditta. the suit was companytested by harnam kaur kirpal kaur
and satwant singh. the companyrt of first instance framed the following issues for
trial

are the plaintiffs the companylaterals of jeona ? is the property in dispute ancestral ? was the mortgage in dispute effected for legal
necessity ? is the gift in dispute valid according to custom ? is the suit time barred ? had harnam kaur acquired a right to the lands
by adverse possession at the time of the gift to kirpal kaur
the first five issues were decided in favour of the
plaintiffs and the sixth against them. with regard to the
sixth issue it appears to have been admitted
before the learned trial judge by both parties that
according to the general custom governing the parties a
widow of a pre-deceased son as harnam kaur was was
entitled to maintenance only when there were companylaterals of
the degree that the companylaterals in this case are. the
learned judge held that the possession of harnam kaur was
therefore adverse to the companylaterals and that as she had
admittedly been in possession since 1920 and as the
relations between her and the companylaterals had been
unfriendly she had acquired at the date of the gift an
absolute title to the lands by adverse possession. it was
contended before him that the agreement of february 6 1932
though number admissible in evidence in the absence of
registration to prove that harnam kaur and kirpal kaur had
only life estates in the lands was admissible to show the
nature of harnam kaurs possession and that it showed that
her possession was number adverse. the learned judge did number
accept this companytention. in the above view of issue number 6 he
dismissed the suit. the plaintiffs then took the matter up in appeal to the
district judge of patiala. harnam kaur and her side never
took any exception to the issues found against them by the
trial judge. the learned district judge was therefore only
concerned with the sixth issue. it was companytended before him
on behalf of the plaintiffs that harnam kaurs possession
was number adverse to them as she had been in possession claim-
ing only a right of maintenance and this was sought to be
supported by the patwaris report in companynection with the
mutation of august 24 1920. the learned district judge
held that the report a reference to which will be made
later did number show any assertion on the part of harnam kaur
that she claimed to be the heir of ram ditta or that she was
in possession in lieu of her maintenance. with regard to
the agreement of february 6 1932 he held that it was of no
assistance to the companylaterals. in the result he dismissed
the appeal. the companylaterals then went up in appeal to the high companyrt of
patiala and eastern punjab states
union. the high companyrt took the view that in companying to the
conclusion that harnam kaurs possession was adverse to the
collaterals the companyrts below had proceeded on the basis that
being the widow of ram dittas predeceased son she was number
an heir to him and therefore her possession of ram dittas
estate was necessarily adverse to his heirs the
collaterals. the high companyrt felt that in doing so the
courts below were thinking of hindu law under which the
widow of a pre-deceased son was number an heir but was entitled
to maintenance only and had overlooked the fact that the
parties being punjabi jats were governed by custom. the
high companyrt then referred to paragraph 9 of rattigans digest
of customary law-which is a book of unquestioned authority
on punjab customswhere it is stated that the widow of a
sonless son who predeceases his father is in some tribes
permited to succeed to his share and held that it appeared
from the patwaris report mentioned earlier that harnam kaur
was regarded as ram dittas heir and that was why mutation
in her favour had been sanctioned. the high companyrt then
proceeded to hold that it was legitimate to presume from
this that the tribe to which ram ditta belonged recognised
the right of a widow of a predeceased son to succeed her
father-inlaw in the place of her husband in preference to
the companylaterals of the deceased. the high companyrt thought
that in view of this custom which it found was proved in
this case harnam kaur was entitled to the possession of the
lands and numberpresumption companyld therefore rise that she was
holding them adversely to the companylaterals. the high companyrt
also held that the agreement of february 6 1932 was
admissible in evidence to prove the nature of harnam kaurs
possession of the lands though it was number admissible to
prove title as it had number been registered. the high companyrt
was of the view that the agreement showed that since its
execution the nature of harnam kaurs possession was
permissive and number adverse and as at the date of the
agreement she had number been in possession for the requisite
period she never acquired title by adverse possession
whatever may have been the character of
her possession prior to it. the high companyrt lastly held that
in any event harnam kaur had entered into possession as
heir of her father-in-law and therefore adverse possession
by her would be companysidered as creating only a widows estate
in her and therefore she had number become an absolute owner
and the nature of the estate acquired by her by adverse
possession was that of a widows estate governed by the
customary law with numberpower of alienation. the high companyrt
therefore allowed the appeal and decreed the suit. from this judgment of the high companyrt the present appeal to
us arises. the appeal had been filed by harnam kaur and
kirpal kaur but later harnam kaur abandoned it and she was
removed from the record as an appellant. the appeal before
us number therefore is only by kirpal kaur. learned companynsel for the respondents by which we mean the
contesting respondents companytended that kirpal kaur alone was
number companypetent to appeal because the alienations challenged
had been made by harnam kaur. we cannumber accept this
contention. kirpal kaur as the alienee is certainly
entitled to prosecute this appeal to protect her rights
under the alienation. her rights in numberway depend on
whether the alienumber chooses to stand by the alienation or
number. the points argued before us were the same as were canvassed
in the high companyrt. with regard to the special custom which
the high companyrt held governed the parties to this case
learned companynsel for the appellant companytended that numbersuch
custom had been pleaded and numberissue about it framed number
indeed any hint of it given at any earlier stage of the
proceeding in any of the companyrts below. we feel that these
contentions are justified. in the plaint numbermention of the
custom is to be found. the plea as to adverse possession
was raised by harnam kaur and kirpal kaur in an amended
written statement that they filed. the plaintiffs never
filed any replication setting up the special custom alleged
by them as they should have done if they wished to rely on
it in answer to the case made by the defendants by the
amendment. further. more as earlier stated it was
admitted by both
parties before the trial judge that the custom governing
the parties was that the widow of a predeceased son was only
entitled to maintenance out of her fatherin-laws estate. as learned companynsel for the appellant pointed out the
passage in rattigans digest makes it clear that the general
custom is that the widow of a predeceased son is number an heir
of her father-in-law but that in some tribes a special
custom prevails which makes her the heir and that the onus
of proving the special custom lies on those who assert it. it was therefore in this case for the respondents to have
pleaded and proved the special custom. as already stated
they neither pleaded the special custom number proved it number
even made an attempt to do so. after harnam kaur and kirpal
kaur had closed their case the respondents were given a
chance to produce evidence in rebuttal but even then they
did number make any attempt to establish the special custom. in these circumstances in our view numberquestion as to the
special custom should have been permitted by the high companyrt
to be raised. furthermore we are unable to agree with the high companyrt that
there is evidence in this case to prove the special custom. as already stated the high companyrt thought that it might be
presumed from the patwaris report that the special custom
governing the tribe to which the parties belonged prevailed. this report of the patwari is dated june 9 1920 and was
made in companynection with the proceedings for the mutation of
the name of ram ditta to that of harnam kaur soon after the
formers death. that report reads as follows
sir ram ditta s o begha jat bhathal died a month back. mst. harnam kaur widow of jeona who is the real daughter-
in-law of the deceased is the heir and is in possession of
the property. hence the mutation having been entered is
hereby submitted for orders. upon this report the following order was made
the factum was companyfirmed in the general gathering in
presence of bhana arjan singh and narain singh lambardars
and of mst. harnam kaur the daughter-in-law of the
deceased. hence the mutation
of the holding of ram ditta deceased in favour of mat. harnam kaur widow of jeons jat is hereby sanctioned. dated 24th august 1920 a.d.
the report numberdoubt states that harnam kaur was ram
dittas heir. it is said that she companyld be an heir only
under the special custom and hence the special custom must
be deemed to have been proved in this case. but the report
of the patwari shows that in his own opinion harnam kaur was
the heir of ram ditta. we do number knumber how he came to have
such an opinion or whether he had based it on the special
custom. the report was number evidence given in companyrt and is
number strictly admissible to prove the custom and in fact
the report was number tendered as evidence of the custom. it
is said that the patwaris report indicated that there must
have been an application by hamam kaur claiming the mutation
on the basis that the had succeeded to the lands as the heir
of ram ditta under the special custom. numbersuch application
is however on the records. we are unable to draw any
presumption as to what statement might have been made in the
application if there was one. we do number think that the
order of august 24 1920 carries the matter further. it is
said that when the order stated that the factum was
confirmed it meant that the factum of the custom was
confirmed. we cannumber accept this companytention. the factum
referred to may well have been the death of ram ditta or
that harnam kaur was the daughter-in-law of ram ditta. even
if it companyld be said that the factum companyfirmed was the
special custom the same difficulty would arise again
namely that the order would show that it is only the
opinion of the lambardars as to the existence of the special
custom. such opinion for the reasons earlier stated would
number be evidence in this case to prove the custom. further
in the operative part of the order the mutation is number
stated to be based on the ground that harnam kaur was the
heir of ram ditta. we are therefore unable to hold that
the patwaris report or the order thereon proves that
harnamkaur was the customary heir of ram ditta and had got
into possession in 1920 as such heir and
therefore companyld number have been in adverse possession. it is then said that the agreement of february 6 1932
showed that since its date her possession was permissive. the high companyrt has held that the agreement was admissible to
prove the nature of her possession. in varatha pillai v.
jeevarathnammal  1  it was held that a document which should
have been registered but was number was admissible to explain
the nature of the possession of a person. what had happened
there was that two widows who were in possession of a
property in equal shares presented a petition to the
collector on october 10 1895 whereby after reciting that
they had on october 8 1895 given away the property as
stridhan to one duraisani they prayed that orders might be
passed for transferring the villages into her name. on this
petition the property was registered in the name of
duraisani and she was put in possession and thereafter
continued in possession till her death in 1911. the
question was whether duraisani had acquired title to the
property by adverse possession. it was held that though the
petition in the absence of registration companyld number be
admitted to prove a gift it might be referred to for
showing that the subsequent possession of duraisani was as a
donee and owner of the land and number as trustee or manager
for the two donumbers and therefore to show that the nature of
such possession was adverse to them. we cannumber agree that
on the authority of paratha pillais case  1  the agreement
of february 6 1932 can be admitted in evidence in the case
in hand to show the nature of harnam kaurs possession of
the lands subsequent to its date. in varatha pillais case

duraisani had got into possession only after the
petition and claimed to retain possession only under the
gift mentioned in it. the petition was therefore admissible
in evidence to show the nature of her possession. in the
present case harnam kaur had been in possession before the
date of the document and to admit it in evidence to show the
nature of her possession subsequent to it would be to treat
it as operating to destroy the nature of the
 1  1918  46 i.a. 285.
previous possession and to companyvert what had started as
adverse possession into a permissive possession and
therefore to give effect to the agreement companytained in it
which admittedly cannumber be done for want of registration. to admit it in evidence for the purpose sought would really
amount to getting round the statutory bar imposed by s. 49
of the registration act. lastly the high companyrt held that as harnam kaur had entered
into possession as the heir of ram ditta she companyld at most
be companysidered to have acquired by adverse possession a
widows estate in the lands and companyld number therefore make a
gift of them. the high companyrt had referred to bura mal v.
narain das  1  as an authority for this proposition. in our
view that case is of numberassistance. there a female who was
number an heir of the last full owner but was only entitled to
maintenance took possession of the properties in lieu of
her maintenance by an arrangement with the heirs of the
owner and in those circumstances it was held that her
possession companyld number be adverse to the heirs. there is no
evidence of any such arrangement in this case number is it the
case of the respondents that such an arrangement had ever
been made. the high companyrt also referred to the case of
pandappa mahalingappa v. shivalingappa this case was based
on lajwanti v. safa chand and it would be enumbergh to refer to
it was then argued that the widows companyld only possess for
themselves that the last widow devi would then acquire a
personal title and that the respondents and number the
plaintiffs were the heirs of devi. this is quite to
understand the nature of the widows possession. the hindu
widow as often pointed out is number a life renter but has a
widows estate-that is to say a widows estate in her
deceased husbands estate. if possessing as widow she
possesses adversely to any one as to certain parcels. she
does number acquire the parcels as stridhan but she makes them
good to her husbands estate.  1  102 p. r. 1907.  2  a.i.r. 1946 bom. 193.  3   1924  51 i.a. 71 176.
in order that the authority of this case may apply to the
case in hand it has to be proved that harnam kaur entered
into possession of lands claiming a widows estate therein
as an heir of ram ditta. we find numberevidence to prove that
such was her claim. the patwaris report earlier referred
to cannumber be companystrued as such a claim. it was only the
patwaris opinion of the situation. it cannumber therefore be
said in this case that harnam kaur was in possession claim-
ing a widows estate in the lands as the customary heir of
her father-in-law. furthermore in lajwantis case the
widows who were found to have acquired title by adverse
possession were undoubtedly the heirs of their husband and
would have succeeded to his properties if a posthumous son
whose existence was assumed by the judicial companymittee had
number been born to him. it was possible for these widows to
bold property as heirs of their husband and make them good
to his estate. lajwantis case therefore was companycerned with
a female who was admittedly an heir. that is number the case
here. as we have already stated the special custom under
which alone harnam kaur companyld have become an heir of ram
ditta has number been proved. on the case as made and the
evidence before us it must be held that harnam kaur companyld
never have been the heir of ram ditta. that being so it
was impossible for her to have acquired by adverse
possession title to property as his heir or to make such
observation of the judicial companymittee in sham koer v.
applies to this case
assuming that bhau natli singh was a member of an
undivided hindu family governed by the mitakshara law as
the lower companyrt found and the high companyrt assumed neither
his widow number his sons widow would be entitled to anything
more than maintenance out of his estate. their possession
therefore of the three villages in question would be
adverse to the reversionary heirs unless it was the result
of the arrangement with them. if the possession was
 1   1902  29 i.a. 132 135 136. 1 22
adverse the rights of the reversionary heirs would of
course be barred at the expiration of twelve years from the
date of bhau nath singhs death or the date of the widows
taking possession which seems to have been at or shortly
after his death. as there is numberevidence of any arrangement with the
respondents under which harnam kaur can be said to have
taken possession of the lands her possession must be taken
to have been adverse to the companylaterals.