PETITIONER: SHIVJI NATHUBHAI Vs. RESPONDENT: THE UNION OF INDIA & OTHERS DATE OF JUDGMENT: 19/01/1960 BENCH: <NAME>, K.N. BENCH: <NAME>, K.N. SINHA, BHUVNESHWAR P.(CJ) <NAME>, P.B. GUPTA, K.C. DAS SHAH, J.C. CITATION: 1960 AIR 606 1960 SCR (2) 775 CITATOR INFO : RF 1961 SC1361 (8) R 1961 SC1669 (6,34) R 1962 SC1110 (8) D 1962 SC1513 (7) RF 1964 SC1140 (13) R 1964 SC1643 (4,7) R 1965 SC1595 (16) RF 1966 SC 671 (5) RF 1967 SC1507 (6) R 1967 SC1606 (8) APL 1970 SC1896 (18) R 1973 SC 678 (14) R 1974 SC 87 (11) D 1987 SC1802 (29) RF 1991 SC 818 (37) ACT: Mining Lease-Grant by <ORG>-Cancellation in review by <ORG>-Such cancellation if a quasi-judicial act-Mineral Concession Rules, 1949. rr. 52,54. HEADNOTE: Rule 54 of the Mineral Concession Rules, 1949, provided as follows: " Review. Upon receipt of such application, <ORG> may, if it thinks fit, call for the relevant records and other information from <ORG>, and after considering any explanation that may be offered by <ORG>, cancel the order of <ORG> or revise it in such manner as <ORG> may deem just and proper. The appellant was granted mining leases in respect of five areas and possession was delivered to him. On an application for review made by one of the respondents under r. 52 of the Rules, <ORG>, without giving the appellant an opportunity of being heard, cancelled the leases with regard to two of the areas and directed <ORG> to grant leases in respect thereof to the said respondent. The appellant applied to <ORG> under Art. 226 of the Constitution for quashing the said order. The Single judge who heard the application as well as <ORG> on appeal held that the order of cancellation was an administrative order and the appellant was not entitled to a hearing. It was contended on behalf of the appellant in this Court that rr. 52-55 of the Rules showed that the proceeding before <ORG> was a quasijudicial proceeding and, consequently, the rules of natural justice must apply. Held, that the contention must prevail and the order of cancellation be quashed. In exercising its power of review under r. 54 of the Mineral Concessions Rules, 1949, <ORG> acted judicially and not administratively. Assuming that the act of <ORG> in granting a mining lease was an administrative act, it was not correct to say that no right of any kind passed to the lessee thereunder untill the review was decided by <ORG> where a review had been applied for. Rule 52, therefore, by giving the aggrieved party the right to a review created a lis between him and the lessee and, consequently, in the absence of anything to the contrary either in r. 54 or the statute itself, there could be no 99 776 doubt that <ORG> was acting quasi- judicially under r. 54. <CITATION> .  S.C.R.621, applied. <CITATION> . (1924) I. K. B. 171, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 428 of 1959. Appeal from the judgment and order dated February 25, 1959, of <ORG> (Circuit Bench) at Delhi in Letters Patent Appeal No. 47-D of 1955, arising out of the judgment and order dated November 28, 1955 of the said <ORG> in Writ Petition No. 306-D of 1954.

<NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the appellant. <NAME>. Solicitor-General of India, <NAME>, <NAME> and <NAME>, for respondents Nos. 1 &

2. <NAME>, <NAME> and Mrs. <NAME>, for respondent No. 3.

1960. January 19. The Judgment of the Court was delivered by <NAME> appeal upon a certificate granted by <ORG> raises the question whether an order of <ORG> under r. 54 of the Mineral Concession Rules, 1949, (hereinafter called the Rules) framed under s. 6 of the Mines and Minerals (Regulation and Development) Act , No. 53 of 1941, (hereinafter called the Act) is quasi- judicial or administrative. The brief facts necessary for this purpose are these. The appellant was granted a mining lease by the then Ruler of Gangpur State on December 30, 1947, shortly before the merger of that State with the State of Orissa on January 1, 1948. This lease was annulled on June 29, 1949. Thereafter the appellant was granted certificates of approval in respect of prospecting licences and mining leases. Eventually, the appellant applied on December 19, 1949, for mining leases for manganese in respect of five areas in the district of Sundergarh (Orissa). He was asked on July 4, 1950, to submit a separate application for each area which he did on July 27, 1950. Some defects were pointed out in these applications and therefore the appellant submitted fresh applications on September 6, 1950, after removing the defects. In the meantime, the third respondent also made applications for mining leases for manganese for the same area on July 10, 1950. These applications were not accompanied by the deposit required under r. 29 of the Rules. Consequently, the third respondent was asked on July 24, 1950, to deposit a sum of Rs. 500, which it did on August 3, 1950. It was then found that the third respondent's applications were defective. It was therefore asked on September 5, 1950, to send a separate application in the prescribed form for each block and thereupon it submitted fresh applications on September 6, 1950. Eventually, on December 22, 1952, the State of Orissa granted the mining leases of the five areas to the appellant taking into account r. 32 of the Rules, which prescribed priority. It was held that the appellant's applications were prior and therefore the leases were granted to him. Thereafter on April 21, 1953, possession of the areas leased was delivered to the appellant. It seems, however, that the third respondent had applied for review to <ORG> under r. 52 of the Rules. This review application was allowed by <ORG> on January 28, 1954, and <ORG> was directed to grant a mining lease to the third respondent with respect to two out of the five areas.

The appellant's complaint is that he came to know in February, 1954, that the third respondent had applied to <ORG> under r. 52 for review. He thereupon addressed a letter to <ORG> praying that he might be given a hearing before any order was passed on the review application. He was, however, informed on July 5, 1955, by <ORG> of the order passed by <ORG> on January 28, 1954, by which the lease granted to him by the State of Orissa with respect to two areas was cancelled. Consequently, he made an application under Art. 226 of the Constitution to <ORG> praying for quashing the order of January 28, 1954, on the ground that it was a quasi-judicial order and the rules of natural justice had not been followed inasmuch as he had not been given a hearing before the review application was allowed by <ORG>, thus affecting his rights to the -lease granted by the State of Orissa. The writ petition was heard by a learned Single Judge of <ORG> and it was held that the order was not a quasi-judicial order but merely an administrative one and that there being no lis, the appellant was not entitled to a hearing. In the result, the writ petition failed. The appellant went up in <ORG> to a Division Bench of <ORG>, which upheld the order of the learned Single Judge. The appellant then applied for a certificate to permit him to appeal to this Court which was granted; and that is how the matter has come up before us.

<NAME> appearing on behalf of the appellant contends that <ORG> was acting in a quasi- judicial capacity when it passed the order under r. 54 of the Rules and therefore it was incumbent upon it to hear the appellant before deciding the review application, and inasmuch as it did not do so it contravened the principles of natural justice which apply in such a case and the order is liable to be quashed. In support of this, learned counsel relies on <CITATION> (1), and submits that rr. 52 to 55 of the Rules which are relevant for the purpose clearly show that the proceeding before <ORG> is a quasi-judicial proceeding in view of the following circumstances appearing from these rules: (1) Rule 52 gives a statutory right to any person aggrieved by an order of <ORG> to apply for review in case of refusal of a mining lease; (2) It also prescribes a period of limitation, namely, two months; (3) Rule 53 prescribes a fee for an application under r. 52. These circumstances taken with the circumstance that a lis is (1)  S.C.R. 1240.

created as soon as a person aggrieved by an order is given the right to go up in review against another person in whose favour the order has been passed by <ORG> show that the proceeding before <ORG> at any rate at the stage Of review is quasi-judicial to which rules of natural justice apply.

Mr. <NAME> appearing for the third respondent on the other hand contends that the view taken by <ORG> is correct and that the order of January 28, 1954, is a mere administrative order and therefore it was not necessary for <ORG> to hear either party before passing that order. He points out that the minerals, for mining which the lease is granted under the Rules, are the property of the <ORG>. No person applying for a mining lease of such minerals has any right to the grant of the lease. According to him, the right will only arise after the lease has been granted by the <ORG> Government and the review application, if any, has been decided by <ORG>. He submits that even under r. 32, which deals with priority the <ORG> Government is not bound to grant the lease to the person who applies first and it can for any special reason and with the prior approval of <ORG> grant it to a person who applies later. His contention further is that as at the earlier stage when the grant is made by the <ORG> Government the order granting the lease is a mere administrative order-as it must be in these circumstances (he asserts)-, the order passed on review by <ORG> must also partake of the same nature. In order to decide between these rival contentions it is useful to refer to rules 52 to 55 which fall for consideration in this case. These are the rules as they existed up to 1953. Since then we are told there have been amendments and even the Act has been replaced by the Mines and Minerals (Regulation and Development) Act , 1957. We are, however, not concerned with the Rules as modified after January 1954 or with the Act of 1957. Rule 52 inter alia provides that -any person aggrieved by an order of the <ORG> Government refusing to grant a mining lease may within two months of the date of such order apply to <ORG> for reviewing the same. Rule 53 prescribes a fee. Rule 54 may be quoted in extenso, " Upon receipt of such application, <ORG> may, if it thinks fit, call for the relevant records and other information from the <ORG> Government and after considering any explanation that may be offered by the <ORG> Government, cancel the order of the <ORG> Government or revise it in such manner as <ORG> may deem just and proper. "

Rule 55 then says that the order of <ORG> under r. 54, and subject only to such order, any order of <ORG> under these rules shall be final. This Court had occasion to consider the nature of the two kinds of acts, namely, judicial which includes quasi- judicial and administrative, a number of times. <CITATION> (1), it adopted the celebrated definition of a quasi-judicial body given by <NAME> in <CITATION> (2), which is as follows:-

" Whenever any body of persons having legal authority to determine questions affecting rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of <ORG> exercised in these writs. " This definition insists on three requisites each of which must be fulfilled in order that the act of the body may be a quasi-judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting the rights of subjects, and (3) must have the duty to act judicially. After analysing the various cases, <NAME> (as he then was) laid down the following principles as deducible therefrom in <NAME> case (1)at p. 725 :-

" (i) That, if a statute empowers an authority, not being a <ORG> in the ordinary sense, to decide (1) [1950] S.C.R. 621.

(2) [1924] 1 K.B. 171.

disputes arising out of a claim made by any party under the statute which claim is opposed by another party and to determine' the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. " It is on these principles which are now well-settled that we have to see whether <ORG> when acting under r. 54 is acting in a quasi-judicial capacity or otherwise. It is not necessary for present purposes to decide -whether <ORG> when it grants a lease is acting merely administratively. We shall assume that the order of the <ORG> granting a lease under the Rules is an administrative order. We have, however, to see what the position is after the <ORG> has granted a lease to one of the applicants before it and has refused the lease to others.

Mr. <NAME> contends that even in such a situation there is no right in favour of the person to whom the lease has been granted by <ORG> till <ORG> has passed an order on a review application if any. Rule 55, however, makes clear that the order of <ORG> is final subject to any order by <ORG> under r. 54. Now when a lease is granted by <ORG>, it is quite possible that there may be no application for review by those whose applications have been refused. In such a case the order of <ORG> would be final. It would not therefore be in our opinion right to say that no right of any kind is created in favour of a person to whom the lease is granted by <ORG>. The matter would be different if the order of <ORG> were not to be effective until confirmation by <ORG>; for in that case no right would arise until the confirmation was received from <ORG>. But r. 54 does not provide for confirmation by <ORG>. It gives power to <ORG> to act only when there is an application for review before it under r. 54. That is why we have not accepted Mr. <NAME>'s argument that in substance <ORG>'s order becomes effective only after it is confirmed; r. 54 does not support this. We have not found any provision in the Rules or in the Act which gives any power to <ORG> to review suo motu the order of <ORG> granting a lease. That some kind of right is created on the passing of an order granting a lease is clear from the facts of this case also. The order granting the lease was made in December 1952. In April 1953 the appellant was put in possession of the areas granted to him and actually worked them thereafter. At any rate, when the statutory rule grants a right to any party aggrieved to make a review application to <ORG> it certainly follows that the person in whose favour the order is made has also a right to represent his case before the authority to whom the review application is made. It is in the circumstances apparent that as soon as r. 52 gives a right to an aggrieved party to apply for review a lis is created between him and the party in whose favour the grant has been made. Unless therefore there is anything in the statute to the contrary it will be the duty of the authority to act judicially and its decision would be a quasi-judicial act. The next question is whether there is anything in the Rules which negatives the duty to act judicially by the reviewing authority. Mr. <NAME> urges that r. 54 gives full power to <ORG> to act as it may deem I just and proper' and that it is not bound even to call for the relevant records and other information from,, <ORG> before deciding an application for review. That is undoubtedly so. But that in our opinion does not show that the statutory Rules negative the duty to act judicially. What the Rules require is that <ORG> should act justly and properly; and that is what an authority which is required to act judicially must do. The fact that <ORG> is not bound even to call for records again does not negative the duty cast upon it to act judicially, for even courts have the power to dismiss appeals without calling for records. Thus r. 54, lays down nothing to the contrary. We are therefore of opinion that there is prima facie a lis in this case as between the person to whom the lease has been granted and the person who is aggrieved by the refusal and therefore Prima facie it is the duty of the authority which has to review the matter to act judicially and there is nothing in r. 54 to the contrary. It must therefore be held that on the Rules and the Act, as they stood at the relevant time, <ORG> was acting in a quasi-judicial capacity while deciding an application under r. 54. As such it was incumbent upon it before coming to a decision to give a reasonable opportunity to the appellant, who was the other party in the review application whose rights were being affected, to represent his case. In as much as this was not done, the appellant is entitled to ask us to issue a writ in the nature of certiorari quashing the order of January 28,1954, passed by <ORG>. We therefore allow the appeal and setting aside the order of <ORG> quash the order of <ORG> passed on January 28, 1954. It will, however, be open to <ORG> to proceed to decide the review application afresh after giving a reasonable opportunity to the appellant to represent his case. The appellant will get his costs throughout from the third respondent, who is the principal contesting party.

Appeal allowed.


PETITIONER: <NAME> & <NAME>. Vs. RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT12/04/1988 BENCH: <NAME>, K.N. (J) BENCH: <NAME>, K.N. (J) KANIA, M.H. CITATION: 1988 AIR 1158 1988 SCR (3) 513 1988 SCC (2) 557 JT 1988 (2) 72 1988 SCALE (1)698 CITATOR INFO : R 1989 SC2004 (30) ACT: Indian Penal Code -Challenging conviction by <ORG> under section 302 read with section 34 , Indian Penal Code , after acquittal by trial court. HEADNOTE: This appeal was directed against the judgment of <ORG>, setting aside the order of the trial court acquitting the appellants, and convicting them under section 302 read with section 34 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life. The prosecution case was that on 4.1.1982 <NAME> deceased had gone to <ORG>, Panna where he noticed that <NAME> and <NAME>, who were inimical to him, were shadowing him in the <ORG>. He requested <NAME> PW 14, <NAME>. <NAME>, and <NAME>, PW 16, to accompany him on his return journey as he sensed danger to his life, and sent <NAME> to purchase bus tickets with a direction that he should meet him at the octroi toll barrier on the Ajaigarh Road from where he proposed to take the bus. Thereafter, he alongwith <NAME>, <NAME> <NAME>. <NAME>, proceeded to Chungi Chowki (octroi Post) on the Ajaigarh Road. While they were waiting for <NAME>, <NAME> went for drinking water from a well nearby. When he was just in the process of drinking water, gun shots were fired towards him, causing injuries to him. Upon this, he ran towards his associates and fell down near <NAME> and <NAME>. The prosecution further alleged that on hearing the gun shots, <NAME> and <NAME> saw the appellant <NAME> armed with a.315 rifle and <NAME> armed with a 12 bore gun running away. <NAME> and <NAME>, armed with a rifle and a gun respectively, fired shots towards the assailants and the assailants also fired towards them. On hearing gun fire, <NAME>, Sub-lnspector of Police, PW 20, rushed to the spot with Constable <NAME>, PW 12. <NAME>, PW 14 gave him information about the incident, which was recorded by him (Dehati Nalishi Ex. P. 12 at 3.10 P.M.) <NAME>, 514 sent <NAME> to <NAME> through <NAME>, Constable, for recording the first information report. <NAME>, sub-inspector then prepared the panchnama and spot map Ex P. 17 on the same day. A charge-sheet was submitted against five accused persons, including the two appellants <NAME> and <NAME> for trial for offences under section 312 read with section 34 and section 307 read with section 34 of the Indian Penal Code. <ORG> disbelieved the testimony of the two eye-witnesses, <NAME>, <NAME> <NAME>, PW IS, and referring to a number of circumstances which made the prosecution story doubtful, acquitted the accused. On appeal by the State Government, <ORG> disagreed with the reasons recorded by <ORG>, and placing reliance on the testimony of the eye-witnesses, i.e.. <NAME> and <NAME>, allowed the State appeal, set aside the acquittal of the appellants and convicted them under section 302 read with section 34 of the Indian Penal Code and awarded a sentence of life imprisonment to each of them. The appellants appealed to this court against the decision of <ORG>. Allowing the appeal, the <ORG>, ^ HELD: The High <ORG> on an appraisal of the evidence came to the conclusion that the prosecution had proved its case beyond all reasonable doubt. It referred to a number of decisions of this <ORG> in considering the scope of its jurisdiction in interfering with an order of acquittal passed by the trial court, but while applying the principles, it failed to appreciate that the view taken by the trial court was reasonable and plausible. While considering an appeal against acquittal, <ORG> must, in appreciating the evidence, keep in mind that if on appraisal of evidence and considering relevant attending circumstances it is found that two views are possible, one held by the trial court for acquitting the accused, and the other, for convicting the accused, in such a situation, the rule of prudence should guide <ORG> not to disturb the order of acquittal made by the trial court. Unless the conclusions of the trial court drawn on the evidence on record are found to be unreasonable, perverse of unsustainable, <ORG> should not interfere with the order of acquittal. The High <ORG> in this case made an attempt to explain away the infirmities in the testimony of the eye-witnesses in setting aside the order of acquittal. The High <ORG> disregarded the rule of judicial prudence in converting the order of acquittal to conviction, and committed error in interfering with the order of acquittal. [519G-H; 520A-B] 515 The first information report, Ex. P. 12, showed that the occurrence took place at 14.15 hours while the report was lodged at 15.10 hours. The evidence on record and the attending circumstances indicated that the first information report was not lodged at 15.10 hours; instead it was lodged at about 17.00 hours. The testimony of <NAME>, PW 14, regarding the lodging of the first information report was contradictory. The statement of <NAME>, PW 20, the investigating officer, clearly indicated that the first information report was written after 17.00 hours and it was not recorded at the time it purported to have been lodged. There were material contradictions in the testimony of <NAME> <NAME> the investigating officer. Since the Sub-Inspector, the District Magistrate and the Superintendent of Police had reached the place of occurrence within a few minutes of the incident, the delay in lodging the first information report was highly suspicious. Why this delay when all officers and the eye-witnesses were present at the spot, and the police station was at a distance of two furlongs? The obvious reason appeared to be that the names of the assailants were not known, as most likely, the eye- witnesses had not seen the assailants and they were not present at the scene of the occurrence. In all likelihood, they arrived at the scene after the incident, and since the names of the assailants were not known, the F.l.R. was lodged with delay after deliberation. This view finds support from the testimony of <NAME> PW 16 and other circumstances. There were material contradictions in the statements of the three witnesses <NAME> PW 14, <NAME>, <NAME> and <NAME>, PW 16, and in view of the same and, further in view of the discrepancy regarding the delay in the lodging of the first information report, it was apparent that till the first information report was lodged, nobody knew who the assailants were and that was why <NAME> could not disclose the names of the assailants to <NAME> on his arrival at the scene of occurrence after he had been sent to bring the- bus tickets. [520H; 521A-C. E; 522H; 523A] The prosecution relied upon the recovery of the two empty cartridges to connect the appellants with the commission of the crime. The recovery of these empty cartridges was not made on 4.1.1982; instead, these cartridges were recovered on 5.1.82, although the spot map of the scene of occurrence was prepared on 4.1.82 itself. It was interesting to note that the spot where these cartridges were recovered was shown in the spot map prepared on 4.1.82 although the recovery was made on S.1.82. The witnesses in whose presence the recovery of the cartridges was made had not supported the prosecution. Moreover, it was the admitted case of the prosecution that there was an exchange of fire from both sides-by the assailants and by <NAME> and 516 <NAME>-but no other cartridges were recovered by the Investigating officer. The investigating officer did not take into possession the licensed rifle and gun of <NAME> and <NAME>, nor was any effort made to secure the evidence of the ballistic expert to prove that the empty cartridges had been fired from the respective weapons. These circumstances indicated that the empty cartridges were not recovered; instead, the investigating officer had planted those cartridges to support the prosecution case. [523B-E] On the evidence on record, it was apparent that the Chungi Chowki (octroi toll barrier) was manned by the employees of <ORG>, who were present at the spot, and in addition to them, there was <ORG> office adjacent to the toll barrier and there were residential houses near the barrier and the place of occurrence was a busy public place. It came into evidence that large number of persons had gathered at the scene of occurrence, but no employee of the toll barrier or <ORG> once or local resident came forward to support the prosecution case. The District Magistrate, the superintendent of Police and other officers had also reached the spot within minutes of the incident, but none of them entered the witness box to support the prosecution case. The prosecution produced <NAME> and <NAME>, who were residents of Uttar Pradesh and close relatives of the deceased. Their presence at the scene of occurrence as highly doubtful and their testimony was not free from doubt as they were highly interested persons. The trial court rightly discarded their testimony as their statements had been recorded by the police after two months of the occurrence. without there being an explanation for the delay. [523F-H; 524A-B] The injuries mentioned in the testimony of Dr. <NAME> who had carried out the post mortem examination of the dead body of <NAME>, could not be caused in the manner and from the place where the assailants were alleged to be present at the time of firing, and the same were inconsistent with the testimony of the eye-witnesses and the site plan. The trial court had discussed this question at length and the <ORG> agreed with the findings of the trial <ORG>. In the opinion of the doctor, the person who caused injuries to the deceased was at a higher level than the deceased; this was wholly inconsistent with the testimony of the eye-witnesses. Though medical expert's opinion is not always final and binding, in this case, it corroborated the other circumstances which indicated that the eye-witnesses had not seen the actual occurrence. [524B; 525E-H] 517 The prosecution had failed to prove its case beyond all reasonable doubt and <ORG> committed error in interfering with the trial court's order of acquittal. Order of <ORG> and the appellant's conviction were set aside and order of the trial court was restored and the appellants were acquitted. [526A-B] G.B. Patel & Anr. v. State of Maharashtra,  2 SCR 94 and <CITATION> .l.R. 1934 PC 227. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 537 of 1986.

From the Judgment and order dated 3.9.1986 of <ORG> in Criminal Appeal No. 936 of 1983.

<NAME>, <NAME>, <NAME>, and <NAME> for the Appellants.

<NAME> and <NAME> for the Respondents. The Judgment of the Court was delivered by <ORG> This appeal is directed against the judgment of <ORG> dated 3.9.1986 setting aside the trial court's order acquitting the appellants herein and convicting them for offence under Section 302 read with Section 34 of the Indian Panel Code and sentencing each of them to undergo imprisonment for life.

The prosecution case in brief is that on 4.1.1982 <NAME> deceased resident of village Kharoni P.S. Ajaigarh, District Panna had gone to <ORG> Panna to file reply to a show-cause notice issued to him for the cancellation of his gun licence. While he was at the <ORG> he noticed <NAME> and <NAME> who were inimical to him, were shadowing him in the <ORG>. He requested <NAME> PW 14, <NAME> 15, and <NAME> 16 to accompany him on his return journey as he sensed danger to his life. <NAME> the deceased sent <NAME> to purchase tickets for Bus with a direction that he should meet him at the octroi Toll barrier on the Ajaigarh Road from where he proposed to take the Bus, thereafter the deceased along with <NAME>, PW 14, and <NAME> 15 proceeded on foot to Chungi Chowki, (octroi Post) situate at about two furlongs away from the <ORG> on the Ajaigarh Road. While the deceased, <NAME> and <NAME> were waiting for <NAME> near the octroi Post one bus arrived, but the deceased told <NAME> and <NAME> not to travel by that bus as he had apprehension that <NAME> and his associates may be inside the bus. While they were waiting for <NAME>, the deceased went for drinking water from a well which was near the road at the octroi Post. After drawing the water from the well while the deceased was in the process of drinking water at that precise moment gun shots were fired towards him from the Northern side from the Bari boundary, causing injuries to him in his chest and hand. On receipt of injuries the deceased ran towards his associates and fell on a takhat near <NAME> and <NAME>. The prosecution further alleged that <NAME> and <NAME> on hearing the gun shot saw the appellant <NAME> armed with a .315 rifle and <NAME> armed with a 12 bore gun running away along with an other person named <NAME> who was also armed with a gun. <NAME> PW 14 who was armed with a. 275 rifle and <NAME> was armed with a 12 bore gun fired shots towards the assailants. The assailants also fired towards them, but they escaped. On hearing the gun shot fire <NAME>, Sub-Inspector of Police PW 20 accompanied by Constable <NAME> PW 12 rushed to the spot. <NAME> PW 14 gave him information about the incident which was recorded by <NAME>, (<NAME> Ex. P. 12 at 3.10 p.m.). <NAME>, the Sub-Inspector sent the <NAME> to Kot vali Panna through <NAME>, Constable, for recording the first information report. After holding inquest, <NAME>, the Sub- Inspector prepared <NAME> and sent requisition for post- mortem examination of the dead body and he also prepared the spot map Ex. P. 17 on the same day. After completion of investigation a charge sheet was submitted against five accused persons including the two appellants <NAME> and <NAME> for trial for offences under Section 302 read with Section 34  and under Section 307 read with Section 34 of the Indian Panel Code. <NAME> one of the accused was shown absconding. Before the trial court <NAME> PW 14 and <NAME> 15 supported the prosecution case as eye- witnesses, they claimed to have witnessed the assault, they further claimed that they had recognised the accused persons. The learned Sessions Judge disbelieved the testimony of these two eye-witnesses, be referred to a number of circumstances which made the prosecution story doubtful, therefore, he acquitted the accused. On appeal by the <ORG> Government <ORG> disagreed with the reasons recorded by the trial court and placing reliance on the testimony of the eye-witnesses, i.e., <NAME> and <NAME>, it allowed the <ORG>'s appeal and set aside the acquittal of the appellants and convicted them under Section 302  519 read with Section 34 of the Indian Penal Code and awarded sentence of imprisonment for life to each of them.

The trial court held that the prosecution had failed to prove its case beyond all reasonable doubt and no reliance could be placed on the testimony of <NAME> PW 14 and <NAME> 15. The trial court referred to a number of circumstances creating doubt on the credibility of the prosecution story but <ORG> differed from those findings and on appraisal of evidence it came to the conclusion that the prosecution had proved its case beyond all reasonable doubt. <ORG> referred to a number of decisions of this court in considering the scope of its jurisdiction in interfering with an order of acquittal passed by the trial court but while applying the principles it failed to appreciate that the view taken by the trial court was reasonable and plausible. Even <ORG> has not held that the view taken by the trial court was not a possible view. <ORG> reappraised the evidence and took a different view and it explained the infirmities of the prosecution pointed out by the Sessions Judge. In <NAME> & Anr. v. State of Maharashtra, [1979] 2 SCR 94 this Court quoted with approval the principles laid down by <ORG> in <CITATION> , AIR 1934 PC 227 wherein it was held that although the power of <ORG> to reassess the evidence and reach its own conclusion, are as extensive as in an appeal against the order of conviction, yet, as a rule of prudence, <ORG> should always give proper weight and consideration to matters e.g. (i) the views of the trial judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (iii) the right of the accused to the benefit of any doubt, and (iv) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. <NAME>, J. speaking for the court observed "where two reasonable conclusions can be drawn on the evidence on record, <ORG> should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the court below. In other words, if the main grounds on which the court below based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, <ORG> should not disturb the acquittal." While considering an appeal against acquittal <ORG> must keep in mind these principles in appreciating the evidence of witnesses. If on appraisal of the evidence and on considering relevant attending circumstances it is found that two views are possible, one as held by the trial court for acquitting the accused, and the other for convicting the accused in such a situation the rule of prudence should guide <ORG> not to disturb the order of acquittal made by the trial court. Unless the conclusions of the trial court drawn on the evidence on record are found to be unreasonable, perverse or unsustainable, <ORG> should not interfere with the order of acquittal. <ORG> has in the instant case made an attempt to explain away the infirmities in the testimony of eye-witnesses in setting aside the order of acquittal. <ORG> has in our opinion disregarded the rule of judicial prudence in converting the order of acquittal to conviction .

The trial court held that the cumulative effect of the following circumstances made the prosecution case doubtful, these are; (i) first information report was not recorded or lodged at the time it purports to have been lodged, (ii) <NAME> PW 14 and <NAME> 15, the two eye- witnesses did not give the names of assailants to <NAME>,

(iii) recovery of two cartridges on 5th January. 1982 one day after the occurrence, (iv) nature and position of injuries on the body of the deceased were not consistent with the testimony of eye-witnesses having regard to the local site (v) empty cartridges of .315 rifle which were alleged to have been fixed by <NAME> and 12 bore cartridge was alleged to have been fired by <NAME> accused causing injuries to the deceased, but the same were not sent to ballistic expert for his opinion nor he was examined to support the prosecution case, (vi) unnatural and inconsistent testimony of eye-witnesses <NAME> PW 14 and <NAME> PW 15, (vii) a large number of persons were available at the scene of occurrence at the octroi Toll barrier but no independent witness, either employee of the Toll barrier or of <ORG> or any other person was examined to support the prosecution. <ORG> made an attempt to explain the circumstances in holding that some times the memory of the witnesses fail and a broad view of the evidence given by the eye-witnesses clearly indicated that the prosecution had proved its case. We have been taken through the entire evidence and we have also closely and carefully considered the judgment of the trial court and <ORG>. We are of opinion that <ORG> committed error in interfering with the order of acquittal .

The first information report Ex. P. 12 shows that the occurrence took place on 14.15 hours while the report was lodged at 15.10 hours that is to say within 55 minutes of the occurrence. The evidence on record and the attending circumstances indicate that the first information report was not lodged at 15.10 hours instead it was lodged at about 17.00 hours. <NAME>, PW 14 stated before the trial court that from the place of occurrence he had accompanied the police to Panna Kotwali where he lodged the report and signed the Ex. P. 12. In cross-examination he stated that he had gone to the Kotwali for lodging report in a police van. He further stated that the report had been written by the <ORG> clerk on his dictation, and that the police arrived at the scene of occurrence after an hour of his lodging the first information report. At an earlier stage he had stated that the police had arrived at the place of occurrence at about 3.30 p.m. and thereafter he had accompanied the police to Kotwali for lodging the report. His testimony regarding lodging of the first information report is contradictory. <NAME>, PW 20 Sub-Inspector of police, the investigating officer, stated that it was wrong to say that the first information report Ex. P. 12 was made by <NAME> at Kotwali. According to him he was on duty at <ORG> and there he got the news at about 2.30 or 3.00 p.m. that gun shots were fired at Toll barrier on the Ajaigarh Road, he reached there with few minutes along with <NAME>, Constable. On reaching the spot he wrote Marg intimation drew up panchnama of the dead body and sent the dead body for post-mortem examination and thereafter he recorded <NAME> Ex. P. 12. He asserted that first information report had been recorded at the place of occurrence. He further stated that <NAME> was recorded by him after the dead body of the deceased had been sent by him for post-mortem examination which according to the document (Ex. P. 8) was sent at 5.00 p.m. His statement clearly indicates that the first information report was written after 17.00 hours and it was not recorded at the time it purports to have been lodged. There are material contradictions in the testimony of <NAME> PW. 14 and the investigating officer. Since the Sub-Inspector, the District Magistrate and the Superintendent of <ORG> had reached the place of occurrence within few minutes of the incident, the delay in lodging the first information report is highly suspicious. Why this delay when all officers were present, and eye-witnesses were present at the spot and the police station was at a distance of two furlongs. The obvious reason appears to be that the names of the assailants were not known as most likely the alleged two eye-witnesses had not seen the assailants and they were not present at the scene of occurrence, at the time the shooting took place, in all likelihood, they like, others arrived at the scene after the incident. Since names of the assailants were not known the F.I.R. was lodged with delay after deliberation.

This view finds support from testimony of <NAME> and other circumstances. According to the prosecution the deceased <NAME> had sent <NAME> to purchase bus tickets and had directed him to meet him at the Chungi Naka on Ajaigarh Road. He had further told <NAME> that he was apprehending danger from the accused persons so he would get into bus at the Toll barrier. After giving instructions to <NAME> he proceeded to Chungi Chowki (Octroi Post) along with <NAME> and <NAME>. The prosecution further alleged that after the occurrence took place <NAME>'s dead body was lying near Takhat at the Octroi barrier when <NAME> arrived at the scene. He met <NAME> PW 14 and <NAME> PW 15 who were waiting. <NAME> testified that when he reached the toll barrier neither <NAME> nor <NAME> disclosed the names of the assailants. <NAME> PW 15 in his testimony stated that when <NAME> arrived at the scene of occurrence he did not enquire from him or from <NAME> as to who had killed <NAME>. At a later stage in cross examination he said that <NAME> had asked <NAME> PW 14 who had killed <NAME> but <NAME> told him that he would tell him later while going to the police station for lodging the first information report. According to <NAME> PW 14 when <NAME> reached the spot he directed him to proceed to the Collectorate and give information to the police about the murder having taken place. <NAME> proceeded to the Collectorate and from there he contacted the Kotwali on telephone and gave information about the murder having taken place near the Toll barrier. <NAME> PW 14 has stated that neither <NAME> asked nor he told him the names of the assailants. This conduct is highly improbable and unnatural. Admittedly <NAME>, <NAME>, <NAME> and the deceased were friends of each other and <NAME> had been sent by the deceased to bring bus tickets and he had also told him about apprehensions to his life and according to the <NAME> PW 14 and <NAME> PW 15 when <NAME> arrived at the scene he did not enquire about the names of the assailants, although dead body of the deceased was lying at the spot. This is highly unnatural. When <NAME> was cross- examined on this question he tried to explain that while he was proceeding to the police station along with <NAME> Sing PW 14 to lodge the first information report the latter had told him the names of the assailants. We have noticed earlier that according to investigating officer first information report was recorded at the scene of occurrence and not at the police station. This indicates that <NAME> and <NAME>'s story regarding their going together to Kotwali is highly suspicious. In view of the material contradiction in the statement of three witnesses <NAME> PW 14, <NAME> PW 15 and <NAME> and further in view of the discrepancy regarding the delay in lodging the first information report, it is apparent that till the first information report was lodged nobody knew who the assailants were and that is why <NAME> could not disclose the names of the assailants to <NAME> on his arrival at the scene of occurrence.

The prosecution relied upon the recovery of the two empty cartridges one of them .315 rifle and the other of 12 bore gun. By recovery of these cartridges the prosecution tried to connect the appellants with the commission of the crime as <NAME> was alleged to have fired from .315 rifle and <NAME> with 12 bore gun. The recovery of these empty cartridges were not made on 4.1.1982 instead these cartridges were recovered on 5.1.1982, although spot map of the scene of occurrence was prepared on 4.1.1982 itself. It is interesting to note that the spot where these cartridges were recovered was shown in the spot map prepared on 4.1.1982 although recovery was made on 5.1.1982. The witnesses in whose presence recovery of the cartridges were made have not supported the prosecution. Moreover, it is the admitted case of the prosecution that there was exchange of fire from both sides, by the assailants as well as by <NAME> and <NAME>, but no other cartridges were recovered by the investigating officer. The investigating officer did not take into possession the licenced rifle of <NAME> appellant and the 12 bore gun of <NAME> nor any effort was made to secure the evidence of ballistic expert to prove that the empty cartridges had been fired from the respective weapons. These circumstances indicate that empty cartridges were not recovered instead investigating officer planted these cartridges to support the prosecution case.

On the evidence on record it is apparent that the Chungi Chowki (Octroi Toll Barrier) was manned by the employees of <ORG> and they were present at the spot and in addition to them there was <ORG> quite adjacent to the Toll Barrier and there were other residential houses near the Barrier and the place of occurrence was a busy public place. It has further come into evidence that large number of persons had gathered at the scene of occurrence but surprisingly enough no employee of Toll Barrier, <ORG> or local resident came forward to support the prosecution case. The District Magistrate, Superintendent of Police and other officers had also reached the spot within few minutes of the incident but none of them entered the witness box to support the prosecution case. The prosecution produced <NAME> PW 17 and <NAME> PW 19 who deposed that they had seen the appellants running away with weapons and that they had recognised them. It is interesting to note that <NAME> and <NAME> are residents of Uttar Pradesh and they are close relatives of the deceased, their presence at the scene of occurrence was highly doubtful and their testimony is not free from doubt, as they are highly interested persons. <ORG> rightly discarded their testimony as their statement had been recorded by the police after two months of the occurrence without there being any explanation for the delay.

In his testimony Dr. <NAME>, who carried out the post mortem examination of the dead body of deceased <NAME>, stated that he found following gun shot wounds:

"Gunshot wound No. 1:

(a) Wound of entrance: One circular wound 5 mm. in diameter present two and a half inch below the left exilla and half inch posterior to left exillary lime.

In the way the bullet had perforated the following organs of the body-The bullet had passed through the lateral side of left 5th-ribe. There was a fracture of lateral side of left 5th ribe. After that the bullet passed through the lower third of left pleura and entered in the left lung and perforated through the lung parindiama. There was through and through (complete) perforation of lower third of left pleura and lung. After exit from the lung, it crossed through the past side of right ventricle of heart. Posterior side of right ventricle of heart was completely lacerated. After exit from the posterior side of right ventricle of heart the bullet passed through the upper border of liver and the whole upper border of liver was completely lacerated.

(b) Wound of Exit: One circular wound in diameter present over posterior and right side of chest at the level of 7th dorsel spine three and a half inch right lateral in the vertibral column. The margins of the wound were slightly lacerated. There was fracture of 9th and 10th. ribe of right posterior side. The direction of passage of bullet of gun shot in wound No. 1 was antere-posteriorly. Gunshot wound No:2:

(a) Wound of entrance-4 mm. diameter circular wound present over left 6th. intercostal space 2" lateral to left sterval border. After passing from the left 6th intercostal space the bullet perforated the upper part of stomach. After escaping from medial side of stomach it came out from side of chest at the level of 7th dorsal spine from the 8th intercostal space of right posterior side.

(b) Wound of exit-one circular wound 5 mm. in diameter present at the level of 7th dorsal spine 2 and half inch right lateral to spinal column. The direction of bullet of gunshot in wound No. 2 was entre posteriorly. Thororic cavity was hugely filled with dark coloured blood.

Gunshot Wound No. 3:

(a) Wound of entrance-3 mm. diameter circular would present 1" above postre-lateral aspect of right wrist. The bullet had passed through the right radius have and the wound of exit was over antro-lateral aspect 1" above the right wrist joint. Wound of exit was circular 5 mm. in diameter."

These injuries could not be caused in the manner and from the place where assailants were alleged to be present at the time of firing the gun shots, and the same are inconsistent with the testimony of the eye witnesses and the site plan. We do not think it necessary to discuss it in detail as the trial court has discussed this question at length and we agree with those findings. According to the testimony of <NAME> and <NAME>, when the deceased got gun shot injuries, he was at a higher level at the well whereas the assailants fired the shots from Bari, which was at lower level by one foot from the road and the well was higher than the road by two or two and a half foot. In this view if shots were fired from Bari, at the deceased who was drinking water in a sitting posture, the injuries in all likelihood would have been from lower part to upper part but Dr. <NAME> deposed that direction of the injuries caused by bullet was from upper part to lower part and the bullet was ante-posteriorly. In the opinion of the doctor, the person who caused injuries to the deceased was at higher level than the deceased, this is wholly inconsistent with the testimony of eyewitnesses. Though medical expert's opinion is not always final and binding, but in the instant case it corroborates other circumstances which indicate that the eye-witnesses had not seen the actual occurrence.

<NAME>

In view of the aforesaid facts and circumstances we are satisfied that the prosecution has failed to prove its case beyond all reasonable doubt, and <ORG> committed error in interfering with the trial court's order of acquittal. We accordingly allow the appeal set aside the order of <ORG> and the appellants' conviction and restore the order of the trial court and acquit the appellants. The appellants are in jail, they shall be set forth to liberty forthwith.

S.L. Appeal allowed.


CASE NO.: Appeal (civil) 774 of 1997 PETITIONER: <NAME> AND OTHERS Vs. RESPONDENT: NAZIM KHAN (DEAD) BY LRS. & OTHERS DATE OF JUDGMENT: 16/04/2001 BENCH: V.N. Khare & <NAME> JUDGMENT:

<NAME>, J.

L...I...T.......T.......T.......T.......T.......T.......T..J This appeal is directed against the judgment of <ORG> whereby <ORG> has allowed the second appeal preferred by the defendants/respondents and dismissed the suit brought by the appellants herein.

The facts of the case in brief are these:

On 14.5.1954, one <NAME>, predecessor-in-interest of the appellants herein, and one <NAME>, filed an application before the Tehsildar under Section 91 of the of the Madhya Bharat Land Revenue and Tenancy Act, 1950 (hereinafter referred to the Act) for reinstatement of pucca tenant <NAME> who was alleged to be dispossessed by <NAME>, predecessor-in-interest of respondents 1(a) to 1(k) in respect of agricultural land measuring .135 hectare, situated at village Maksi, Distt. Shajapur. The case of <NAME> was that the land in dispute was given to him on patta for consideration of a premium of Rs. 100/- and he, thereafter, planted trees and constructed two houses over the said land. On 31.8.1960, the Tehsildar allowed the application with a direction to late <NAME> to restore back possession of the land to <NAME> instead of <NAME>. Feeling aggrieved, late <NAME> filed an appeal before the Sub-divisional Officer, Shajapur. <NAME> also filed a cross-objection against the order of the Tehsildar directing delivery of possession to <NAME>. The Sub- divisional Officer, on 20.3.1963, allowed the appeal of <NAME> and dismissed the cross objection filed by <NAME>. <NAME> and <NAME> thereafter filed second appeal before the Commissioner, Bhopal, being Revenue Case No. 357/63. The Commissioner by order dated 30.4.1963, dismissed the appeal and affirmed the order passed by the Sub-divisional Officer. The revision petition filed before <ORG>, <NAME> by <NAME> and <NAME> was also dismissed. It was held by <ORG> that <NAME> and <NAME> were already in possession of the land since 1950 and they planted trees and also constructed two houses over the said plot of land. On 9.2.1972, the appellant herein, brought a suit for declaration of title and delivery of possession against <NAME> and <NAME>. Defendant <NAME> filed a written statement wherein it was pleaded that the suit brought by plaintiff was barred by limitation. The trial court framed various issues and one of the issues framed was whether the suit laid by the plaintiff was barred by limitation. The trial court was of the view that the time spent in prosecuting the case in the revenue court should be excluded under Section 14 of the Limitation Act while computing the period of limitation for the present suit. In view of the matter, the trial court held that the suit was filed within the period of limitation. Consequently, the suit was decreed. The decree of the trial court was affirmed by the first appellate court. However, the defendants/respondents second appeal was allowed by <ORG>. <ORG> was of the view that the benefit of Section 14(1) of the Limitation Act can be availed by the plaintiff only if the court had not entertained the plaintiffs earlier suit on the ground of defect of jurisdiction or other cause of like nature. Since the earlier application of the plaintiff was entertained and decided on merit, the benefit under Section 14(1) of the Limitation Act was not available to the plaintiff. In view of the matter, the suit stood dismissed. It is against the said judgment the plaintiffs/appellants are in appeal before us.

On 30.9.1996, this <ORG> while entertaining the Special Leave Petition passed the following order:

The submission of the learned counsel for the petitioner is that the petitioner could not have filed civil suit without resorting to remedies available before the revenue courts and the suit could not be filed only when he fails before the revenue court under Section 91 and 92 of the Act and that being so the question of limitation cannot be raised against the petitioner as according to him limitation will commence only after the decision by the revenue court. The second submission is that after resorting to the remedy under Sections 91 and 92 of the Act the limitation for adverse possession remains asserted.

Issue notice. Mr. <NAME> accepts notice on behalf of legal heirs of respondent No. 1. Issue notice to respondent No. 2. Issue notice on application for stay also."

<NAME>, learned senior counsel raised two submissions. The first submission is that the remedy of filing the suit for recovery of possession of the land under Section 93 of the Act is available to a pakka tenant only after exhausting remedy provided under Sections 91 and 92 of the Act and, therefore, the suit brought by the plaintiff was not barred by limitation. The second submission is that once an application under Section 91 of the Act was filed by the plaintiff before the <ORG>, the adverse possession of the defendant ceased to continue thereafter and in view of this legal position, the suit brought by the plaintiff was not barred by limitation. Whereas, the contention of <NAME>, learned senior counsel, is that the remedy under Section 91 of the Act is summary in nature, akin to Section 6 of Specific Reliefs Act and further, it is always open to the plaintiff either to take recourse to the summary proceedings under Sections 91 and 92 of the Act or to file a regular title suit in the civil court and also claim possession in the same suit. In nut-shell, the argument is that the filing of the suit is not envisaged only after the recourse had been taken under Sections 91 and 92 of the Act and in view of the matter, the suit brought by the plaintiff was barred by limitation.

On the arguments of learned counsel for the parties the questions that arise for consideration are whether the proceedings under Section 91 of the Act is summary in nature and, secondly, whether it was permissible under law to file a suit for recovery of possession without resorting to remedy available under Section 91 of the Act. In order to appreciate the arguments of learned counsel appearing for the parties it is necessary to reproduce Sections 91 , 92 and 93 of the Act which run as under :

91. Re-instatement of pakka tenant improperly dispossessed -(1) If a pakka tenant has been dispossessed of the whole or any part of his holding otherwise than in due course of law, he or his successor in interest may apply to the Tehsildar within three years from the date of dispossession for the restoration of the possession.

(2) The Tehsildar shall, after making an enquiry into the respective claims of the parties, pass necessary orders in the matter and shall hand-over possession of the land to the party entitled to it.

(3) Before proceeding to make the full enquiry prescribed by the foregoing sub-section, the Tehsildar may pass after such enquiry as he may deem proper, an interim order for handing-over the possession of the land to the applicant if he finds that he was dispossessed by the opposite party within six months prior to the submission of the application under this section. In such a case the opposite party shall be ejected, if necessary, under orders of the Tehsildar.

(4) When an interim order has been passed regarding possession of the land under the foregoing sub-section, the opposite party may be required by the Tehsildar to execute a bond for such sum as the Tehsildar may deem fit for abstaining from taking possession of the land until the final order is passed by the Tehsildar.

(5) If the person executing a bond is found to have entered into or taken possession of the land in contravention of the bond, the Tehsildar may forfeit the bond in whole or in part and may recover such amount as arrears of land revenue.

(6) If the order passed under sub-section (2) is in favour of the applicant, the Tehsildar shall also award a reasonable compensation to be paid to the applicant by the opposite party.

(7) The compensation awarded under this section shall be recoverable as arrears of land revenue.

(8) When final order has been passed under sub- section (2), the Tehsildar may require the opposite party to execute a bond for such sum as the Tehsildar may deem fit for abstaining from taking possession of the land in contravention of the order.

92. Reinstatement of ordinary tenant or sub tenant improperly dispossessed If an ordinary tenant or a sub-tenant has been dispossessed of the whole or any part of his holding otherwise than in due course of law, he or his successor in interest may apply to the Tehsildar within two years from the date of dispossession for the restoration of the possession. The Tehsildar shall after making necessary enquiry in accordance with the provisions of section 91 , pass such orders as he thinks fit.

93. Civil Courts jurisdiction in regard to sections 91 and 92 No order passed under section 91 and 92 shall preclude any person from establishing such rights as he may claim in the whole or any part of the holding and from obtaining possession of such holding or part thereof by means of a regular suit in a competent civil court.

A perusal of Section 91 of the Act shows that if a pakka tenant has been dispossessed from the land, otherwise than in accordance with law and if he wants restoration of possession he is required to file an application before the Tehsildar within 3 years from the date of dispossession. The remedy for restoration of possession is not available to anyone else except to a pakka tenant who has been dispossessed otherwise than in accordance with law. When such an application is moved by an applicant for restoration of his possession, the first thing what the court is required to enquire into and find out is whether the applicant is a pakka tenant or not. The applicant under Section 91 of the Act has to prove and establish that he is a pakka tenant and he has been dispossessed otherwise than in due course of law. Thus, Section 91 of the Act requires the <ORG> to go into the title of the applicant who has applied for restoration of possession. In view of nature of enquiry which is required to be made by the <ORG>, the proceedings under Section 91 of the Act cannot be termed as summary in nature and akin to Section 6 of the Specific Relief Act. Under Section 6 of the Specific Relief Act, a person who has been dispossessed otherwise than in due course of law can claim restoration of possession without proving his title to the land. He can succeed merely by establishing that he was in possession over the land and has been dispossessed otherwise than in accordance with law. We do not, therefore, find that proceedings under Section 91 of the Act is akin to Section 6 of the Specific Relief Act. Learned counsel appearing for the respondent then pointed out that Section 91 is in pari materia to Section 250 of M.P. Land Revenue Code and a Full Bench of M.P. High <ORG> while interpreting Section 250 of the Code has held that proceedings under Section 250 of the Code is summary in nature and, therefore, in view of the said decision the proceedings under Section 91 of the Act has to be held as summary in nature. In the case of <CITATION> AIR 1967 M.P. p.14 which was subsequently approved in the case of <CITATION> AIR 1976 M.P. p.160, it was held by the Madhya Pradesh High <ORG> that proceedings under Section 250 of the Code are summary in nature and it is open to the plaintiff to file suit for recovery of possession without resorting to remedy available under Section 250 of the Code. It is true that the courts while construing a provision of an enactment often follow the decisions by the courts construing similar provision of an enactment in pari materia. The object behind the application of the said rule of construction is to avoid contradiction between the two statutes dealing with the same subject. But in the present case , what we find is that the Madhya Bharat Land Revenue and Tenancy Act contains one integrated scheme providing for remedy to a pakka tenant claiming restoration of possession under sections 91 and 93 of the Act. The Madhya Bharat Land Revenue and Tenancy Act was repealed by M.P. Land Revenue Code. In repealing Act i.e., M.P. Land Revenue Code we do not find any provision like Section 93 of the Act. We are, therefore, of the view that Sections 91 , 92 and 93 of the Act are not pari materia with the provision of Section 250 of the M.P. Code. It is not sound principle of construction to interpret a provision of an enactment following the decisions rendered on similar provision of an enactment when two statutes are not in pari materia. For the aforesaid reasons we find that Sri <NAME> is absolutely correct when he contended that proceeding under Section 91 of the Act is not summary in nature.

Coming to the next question whether the plaintiff could have brought a suit for restoration of possession under Section 93 of the Act without resorting to remedy provided under Section 91 of the Act, it is necessary to look into the relevant provisions of the Act. An analysis of Section 91 read with Section 93 shows that the recourse to a civil court is not available to a pakka tenant who has been dispossessed unless he exhausts the remedy under Section 91 of the Act. In this connection the use of the expression in Section 93 of the Act that no order passed under Section 91 and 92 shall preclude any person from establishing such rights shows that a pakka tenant who has been dispossessed and claims recovery of possession is first required to take recourse to the remedy available under Section 91 of the Act. This matter may be examined from another angle. Section 9 of the Code of Civil Procedure provides that the civil courts shall have jurisdiction to try all suits of a civil nature except suits of which their cognizance is either expressly or impliedly barred. Section 147 of the Act runs as thus :

147. Exclusive jurisdiction of <ORG> Except as otherwise provided in this Act, <ORG> shall entertain any suit instituted or application made, to obtain a decision or order on any matter which the Government are, or a Revenue Officer is, by this Act, empowered to determine, decide or dispose of.

If Section 93 of the Act for the time being is kept out of sight, it could be easily said that any civil suit by a pakka tenant for recovery of possession is barred by virtue of Section 147 of the Act. The provisions of the Act besides conferring right on a pakka tenant for restoration of possession of the land from which he has been dispossessed provides for complete procedure and machinery for getting the relief of restoration of possession. The scheme envisaged under the Act which comprises of Sections 91 , 92 and 93 of the Act shows that where a pakka tenant who has been dispossessed without due course of law and such a pakka tenant wants restoration of possession, there is implied exclusion of the jurisdiction of the civil court to grant relief to a pakka tenant. In such a situation a pakka tenant who has been dispossessed is at first instance required to file an application for restoration of his possession before the Tehsildar under Section 91 of the Act. In view of the matter, it cannot be said that remedy available under Section 91 of the Act is discretionary and it is open to a pakka tenant either to take recourse to Section 91 of the Act or file suit under Section 93 of the Act. If such a suit is filed in a civil court at the first instance without resorting to the remedy under Section 91 of the Act, the same would be not maintainable. We, therefore, uphold the contention of <NAME> that unless remedy contemplated under Section 91 of the Act is resorted to, there would be no cause of action to a pakka tenant for filing a suit under Section 93 of the Act.

The third question that arises for consideration in this case is whether once a remedy available under Section 91 of the Act is resorted to the period of limitation for adverse possession is arrested. In other words, whether filing an application under Section 91 of the Act causes an interruption to the continuity of adverse possession. Article 65 of the Limitation Act runs as under :

65 For possession of Twelve When the possession immovable property or years of the defendant becomes any interest therein based adverse to the plaintiff on title.

For bringing a suit for possession of immovable property the period of limitation is 12 years when the possession of a defendant becomes adverse to the plaintiff. Once a suit for recovery of possession is instituted against a defendant in adverse possession his adverse possession does not continue thereafter. In other words, the running of time for acquiring title by adverse possession gets arrested.

<CITATION> . 1991 M.P. Law Journal p.81 it was held as under :

It is true that in instant case no suit for recovery of possession was filed but only proceedings under Section 248 of the Code were filed. Section 248 of the Code only provides an alternative forum for recovery of possession and therefore, proceedings under this provision will have the same effect as a suit in a regular <ORG>. Since a suit for recovery of possession is sufficient to interrupt the adverse possession, proceedings under Section 248 of the Code must have the same effect.

<CITATION> . AIR 1973 Madhya Pradesh p.72 it was held that very institution of the suit arrests the period of adverse possession of the defendant.

In <NAME> v. <NAME> & Ors. 1969 Allahabad Law Journal p.975 it was held as under:

It is not possible to hold that if the defendant has been in adverse possession before the institution of the suit, such adverse possession continues to run even after the institution of the suit so as to prescribe a good title in favour of the defendant.

The legal position that emerges out of the decisions extracted above is that once a suit for recovery of possession against the defendant who is in adverse possession is filed, the period of limitation for perfecting title by adverse possession comes to a grinding halt. We are in respectable agreement with the said statement of law. In the present case, as soon as the predecessor-in-interest of the applicant filed an application under Section 91 of the Act for restoration of possession of the land against the defendant in adverse possession, the defendants adverse possession ceased to continue thereafter in view of the legal position that such adverse possession does not continue to run after filing of the suit, we are, therefore, of the view that the suit brought by the plaintiff for recovery of possession of the land was not barred by limitation.

For the aforesaid stated reasons this appeal deserves to succeed. We accordingly set aside the judgment under challenge. The appeal is allowed. There shall be no order as to costs.


JUDGMENT <NAME>, J.

1. The question referred by <ORG>, Bangalore Bench, for the opinion of this court, at the instance of the assessee is this:

"Whether, on the facts and in the circumstances of the case, the <ORG> was right in holding that in computing the actual cost for the purpose of calculating development rebate under Section 33 no upward adjustment of Rs. 2,64,24,737 which the assessee had to bear as a result of devaluation of the rupee should be made ?"

2. The assessee, a resident shipping company, returned a loss of Rs. 13,31,088 for the assessment year 1967-68, claiming a development rebate of Rs. 7,32,79,891 at the rate of 40 per cent. on the cost of two ships after taking into account the effect of devaluation of the rupee on June 6, 1966. The <ORG> allowed development rebate to the extent of only Rs. 5,71,94,305 which alone, according to him, represented the development rebate on the actual cost of the imported ships on the ground that while Section 43A(1) of the I.T. Act provides for extra depreciation allowance on account of the effect of devaluation, there is no provision in the Act for allowing development rebate on the increased liability arising out of devaluation, and Section 43A(2) expressly forbids such a provision. The <ORG> decided to allow the development rebate of Rs. 5,71,94,305 in the year in which a reserve is created in view of the fact that in the year in question there was a loss.

3. On the assessee's appeal to the <ORG>, it was found that the ships in respect of which development rebate was claimed by the assessee had been purchased from a foreign country on January 25, 1966, and April 21, 1966, during the accounting year ending December 31, 1966. The original rupee cost of these two ships "Chennai Penimai" and "Chennai Ookkam" was Rs. 2,88,65,083 and Rs. 2,87,40,787, respectively. Due to devaluation of the rupee on June 6, 1966, the revised rupee cost of the ships came to Rs. 4,21,17,856 and Rs. 4,19,12,751. The <ORG> was of the view that Section 43A(1) applies where as a result of the change in the exchange rate there is an increase or reduction in the liability of the assessee in terms of the rupee to pay the price of any asset in foreign currency or to repay monies borrowed in foreign currency specially for the purpose of acquiring the asset, and that the section does not apply unless, (i) the asset is acquired, and (ii) the liability existed before the change in the exchange rate took effect, that Section 43A(1) restricts the allowance to depreciation, etc., and does not refer to Section 33 dealing with development rebate and that Sub-section (2) of Section 43A specifically excludes development rebate being allowed under Section 33 in cases where the cost of the assets has increased due to devaluation. The submission made on behalf of the assessee before the <ORG> was that even, apart from Section 43A , on general principles, extra liability incurred in respect of the capital assets has to be added to the cost of the assets. The <ORG> relied upon the decision in <CITATION>  24 ITR 566 ( <CITATION>  45 ITR 602 (Mad) and declined to accept the submission on the ground that general principles cannot be applied where special provisions are applicable. The agreement dated August 6, 1964, between the foreign ship building yard which built the two ships and the assessee provided for payment of 15 per cent. of the cost of the ships on the signing of the agreement and the balance of 85 per cent. in equal half-yearly instalments, the first of them commencing six months after the delivery of the ships, and also for the ship building yard having a right to negotiate with a first class German bank and/or banking syndicate to have credit for the 85 per cent, extended to it subject to the approval of the purchaser of the ships. In accordance with that clause in that agreement a loan agreement was entered into between the assessee and the consortium of West German banks with whom the ship building yard had entered into an agreement, and the consortium of West German banks disbursed the 85 per cent, of the cost of the two ships amounting to DM 94,095,000 to the ship building yard on January 25, 1966, and April 21, 1966, before the devaluation of the rupee took place. The <ORG> was, therefore, of the view that what remained at the time of the devalution was only the liability of the assessee to discharge its debt due to the consortium of West German banks and not any portion of the price of the ships and that the increased liability due to devaluation of the rupee cannot be added to the original cost of the ships for the purpose of claiming development rebate. In that view, the <ORG> dismissed the assessee's appeal.

4. In the assessee's further appeal to the <ORG> it was found that the assessee's system of accounting is mercantile. The cost of the fleet of ships of the assessee referable to the payment up to December 31, 1965, was shown in the balance-sheet of the assessee-company as on December 31, 1965, as Rs. 2,76,71,863. But in the balance-sheet as at December 31, 1966, the additions to the fleet were shown as Rs. 18,31,99,728 on the ground that due to the devaluation of the rupee the assessee's liability to the consortium of the West German banks for the ships acquired before the date of devaluation had gone up by Rs. 3,92,16,681 and that the additional liability had been included as addition to the cost of the fleet. The <ORG> held that the increased liability to the consortium of the West German banks due to devaluation of the rupee, which took place after the two vessels had been acquired by the assessee, cannot be considered to be indirect expenditure laid out for the purpose of acquiring the assets and that though the actual cost of the ships would include the excess payable due to the devaluation of the rupee, there is a specific prohibition in Section 43A(2) of the Act against adopting the adjusted actual cost due to the devaluation for the purpose of development rebate allowable under Section 33 of the Act, and accordingly dismissed the appeal.

5. The facts established are that 15 per cent. of the total cost of the two ships had been paid by the assessee to the foreign ship building yard by the date of signing the agreement entered into between the foreign ship building yard and the assessee on 6th August, 1964, and credit for the balance of 85 per cent. had been given to <ORG> by the consortium of West German banks with whom <ORG> had entered into an arrangement in pursuance of the arrangement entered into for that purpose between the assessee and the consortium of West German banks. The payment of the entire cost of the two ships to <ORG> had been completed on January 25, 1966, and April 21, 1966, and the ships had been acquired before the devaluation of the rupee took place on June 6, 1966. The additional liability as a result of the devaluation had accrued to the assessee which had to discharge its debt to the consortium of West German banks incurred before the date of the devaluation for the purpose of acquiring the ships. It was conceded by the learned counsel for the revenue that on general principles the additional liability arising out of the devaluation of the rupee would become part of the cost of the ships as it had been done by the assessee in revising the cost of the fleet in the balance-sheet as at December 31, 1966, as Rs. 18,31,99,728 while it had been shewn in the balance-sheet as at December 31, 1965, as Rs. 2,76,71,863 as being due to the devaluation of the rupee and the consequent increase in the assessee's liability to the consortium of West German banks incurred for the acquisition of the ships before the date of the devaluation of the rupee.

6. Our attention was drawn to the decision of a Bench of this court in Addl. <CITATION> .  109 ITR 646 (Mad), where the assessee's claim for development rebate was based on the fact that the actual cost of the machinery had increased by Rs. 48,342 consequent on the increase in the rate of exchange on the devaluation of the rupee, as the machinery was acquired before the date of the devaluation. The learned judges have observed that the effect of Sub-section (2) of Section 43A is to exclude the applicability of Section 43A(1) and, therefore, for the purpose of computing the actual cost of an asset for the purpose of deduction on account of development rebate under Section 33 the only statutory provision relevant is Section 43A(1) , defining the expression "actual cost". The learned judges upheld the assessee's right to development rebate on the actual cost as defined in Section 43A(1) which admittedly included the sum of Rs. 48,342. That decision will not apply to the facts of the present case for, in that case, the actual cost of the machinery had increased due to the devaluation of the rupee even before the date of the acquisition, unlike the present case. The learned counsel for the assessee invited our attention to the decision of a Bench of <ORG> in I.T. Ref. No. 30 of 1975 [ <CITATION> --since reported in  112 ITR 64], where the question was whether the additional liability which the assessee incurred on account of the devaluation of the rupee in the midst of the relevant previous year in. relation to the repayment of the loan which it had borrowed for acquiring the imported machinery during the said year constituted an element in the actual cost of such machinery to the assessee for the purpose of allowing development rebate under Section 33 . The learned judges answered that question in favour of the assessee. This decision also will not apply to the facts of the present case for, in that case, the increased liability on account of devaluation was within the contemplation of the parties as an integral part of the original transaction and it was held by the learned judges that the assessee must be held to have incurred such liability in respect of each instalment, no sooner it started drawing upon the loan account, since the assessee maintained its accounts according to the mercantile system. The learned judges have observed in their judgment (pp. 84, 85) that cases like the one before them:

"where the increased liability is in fact incurred prior to acquisition of the asset and it, therefore, becomes part of the cost of acquisition in its ordinary signification, are not within the ambit of the said section. The said section may be attracted in cases such as, for example, when an assessee maintains his accounts on cash receipt basis and the increased liability in respect of repayment of instalments of purchase price or loan accrues or arises for the first time after the acquisition and installation of the asset."

7. Section 33(1)(a) provides that in respect of a new ship which is owned by the assessee and is wholly used for the purposes of the business carried on by him, there shall, in accordance with and subject to the provisions of this section and of Section 34 , be allowed a deduction in respect of the previous year in which the ship was acquired, a sum by way of development rebate as specified in Clause (b). According to Clause (b), in the case of a ship, the develop ment rebate shall be forty per cent, of the actual cost thereof to the assessee. According to Section 43 , in Sections 28 to 41 and in that section, "actual cost" means the actual cost of the assets to the assessee reduced by that portion of the cost thereof, if any, as has been met directly or indirectly by any other person or authority. Section 43A(1) lays down that:

"Notwithstanding anything contained in any other provision of this Act, where an assessee has acquired any asset from a country outside India for the purposes of his business or profession and, in consequence of a change in the rate of exchange at any time after the acquisition of such asset, there is an increase or reduction in the liability of the assessee as expressed in Indian currency for making payment towards the whole or a part of the cost of the asset or for repayment of the whole or a part of the moneys borrowed by him from any person, directly or indirectly, in any foreign currency specifically for the purpose of acquiring the asset (being in either case the liability existing immediately before the date on which the change in the rate of exchange takes effect), the amount by which the liability aforesaid is so increased or reduced during the previous year shall be added to, or, as the case may be, deducted from, the actual cost of the asset as defined in Clause (1) of section 43 or the amount of expenditure of a capital nature referred to in Clause (iv) of Sub-section (1) of section 35 or in Section 35A or in Clause (ix) of Sub-section (1) of Section 36 or, in the case of a capital asset (not being a capital asset referred to in Section 50 ), the cost of acquisition thereof for the purposes of Section 48 , and the amount arrived at after such addition or deduction shall be taken to be the actual cost of the asset or the amount of expenditure of a capital nature or, as the case may be, the cost of acquisition of the capital asset as aforesaid." The Sub-section restricts the effect of devaluation to, (1) the expenditure of a capital nature on scientific research related to the business carried on by the assessee covered by Section 35(1)(iv) ; (2) expenditure on acquisition of patent rights or copyrights covered by Section 35A ; (3) expenditure bona fide incurred by a company for the purpose of promoting family planning amongst its employees covered by Section 36(1)(ix) ; and (4) capital asset (not being a capital asset referred to in Section 50 ) the cost of acquisition thereof for the purpose of Section 48 . Section 50 deals with a capital asset in respect of which a deduction on account of depreciation has been obtained by the assessce in any previous year either under the I.T. Act , 1961, or the Indian I. T. Act, 1922, or under executive orders issued when the I.T. Act (II of 1886) was in force. Section 48 relates to the mode of computation of income chargeable under the head "Capital gains". But Section 43A(2) speci fically lays down that:

."The provisions of Sub-section (1) shall not be taken into account in computing the actual cost of an asset for the purpose of the deduction on.

account of development rebate under Section 33 ."

Therefore, it is clear that the legislature has clearly intended not to take the variation in the cost of acquisition of an asset arising out of the.

devaluation of the rupee for the purpose of granting development rebate under Section 33 of the Act. In these circumstances, we are of the opinion that the general principles, according to which the increase in the cost of the asset arising out of devaluation of the rupee must be treated as part of the cost of the asset, cannot be applied for the purpose of granting develop- ment rebate under Section 33 of the Act in view of the definite provision against it in Section 43A(2) of the Act, referred to above. " Accordingly, we hold that the <ORG> was right in holding that in computing the actual cost for the purpose of calculating development rebate under Section 33 no upward adjustment of Rs. 2,64,24,737, which the assessee had to bear as a result of the devaluation of the rupee, should be made and answer the question in the affirmative and against the assessee and in favour of the revenue. The assessee will pay the costs of the revenue. Advocate's fee Rs. 250. 8. A copy of this judgment under the signature of the Registrar and the seal of this court shall be forwarded to the I. T. A. <ORG> concerned.


CASE NO.: Appeal (civil) 3375 of 1998 PETITIONER: <NAME> Vs. RESPONDENT: <ORG> & <ORG>. DATE OF JUDGMENT: 09/01/2001 BENCH: <NAME>, S.R.Babu JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J J U D G M E N T S. N. VARIAVA, J.

This Appeal is against an Order passed by <ORG> on 20th August, 1996. Briefly stated the facts are as follows: The <ORG> claim to be a Union representing the workmen of a Canteen run by the Respondents. <ORG> claimed that even though the <ORG> are actually the employees of the Respondents, the Respondents are not treating them at par with other employees and have notionally engaged contractors to run the canteen. As the Respondents were not accepting the <ORG>' claim to treat them as their employees, the Appellant filed a Complaint under Section 28(1) of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 (hereinafter called the MRTU & PULP Act) alleging that the Respondents had engaged in unfair labour practices under Item Nos. 1, 1(a), 1(b), 4, 4(a) of Schedule II and Items 3, 5, 6, 7, 9 and 10 of Schedule IV of the MRTU & PULP Act. This Complaint came to be dismissed by the impugned Order dated 20th August, 1996. <ORG> has filed an SLP directly in this Court against this Order as <ORG>, in the case of <CITATION> reported in (1993) 1 CLR Page 1002, has already held that <ORG> cannot in a complaint under MRTU & PULP Act abolish contract labour and treat employees as direct employees of the company. At this stage it must be mentioned that this Court has also in the case of <CITATION> . reported in (1995) 2 LLJ 765, held that where the workmen have not been accepted by the Company to be its employees, then no complaint would lie under the MRTU & PULP Act. We are in full agreement with the above mentioned view. The provisions of MRTU & PULP Act can only be enforced by persons who admittedly are workmen. If there is dispute as to whether the employees are employees of the Company, then that dispute must first be got resolved by raising a dispute before the appropriate forum. It is only after the status as a workmen is established in an appropriate Forum that a complaint could be made under the provisions of MRTU & PULP Act. Faced with this situation it was submitted that <ORG> had always recognised the members of <ORG> to be their own workmen. It is submitted that a formal denial was taken only to defeat the claim. We see no substance in this submission. In the written statement it has been categorically denied that the members of <ORG> were employees of <ORG>. The question has been agitated before <ORG>. <ORG> has given a finding, on facts, that the members of <ORG> were not employees of <ORG>. This is a disputed fact and thus till the <ORG> or their members, get the question decided in a proper forum, this complaint was not maintainable. Accordingly, we dismiss this Appeal on the ground that the complaint was not maintainable. We clarify that it is open for the Appellant or their members to raise dispute in this behalf before an appropriate forum provided they are entitled to do so. If they get a declaration to the effect that they are employees of <ORG>, then it may be open to them to file such a complaint. It is also clarified that if a dispute as to their status is raised in an appropriate forum then the same will be decided on merits without taking into consideration any observations made or finding given by <ORG> in the impugned Order.


JUDGMENT <NAME>, Kt., <NAME> and <NAME>, J.

1. The objections to the ownership of <NAME> having been abandoned, we have only to consider the objections taken to the status of the respondent as the widow of <NAME>.

2. The parties to the suit are Muppanars and are classed with Sudras. It appears that <NAME>, the father of the respondent, had married the niece of <NAME> alias <NAME>. When he was thirty years of age and had had three daughters born to him, <NAME> assumed to take him in adoption; but dissensions arose, and he brought a suit--Original Suit 272 of 1829--against <NAME> for maintenance as an adopted son, and, although the fact and validity of the adoption were denied, he obtained a decree which was confirmed on appeal.

3. <NAME> subsequently married a second wife, <NAME>, who is said to have been his mother's sister's daughter, and by her he had a son, <NAME>, who was a minor of the age of four years when his father died in 1847.

4. In 1859 <NAME> instituted Original Suit 1 of 1859 against the minor <NAME>, represented by his mother as guardian, claiming a one-fourth share in the estate of <NAME> in virtue of his adoption. He relied on the decision in the previous suit as estopping the then defendants from questioning his title, and the validity of his contention was allowed by the Subordinate Judge (Ex. 6) and by <ORG> in <CITATION> 1. M.H.C.R. 45 though, in advertence to a passage in the Saraswati Vilasa, <ORG> affirmed the decree only to the extent of a one-fifth share. <NAME> took steps to present an appeal to the Privy Council, but the parties came to terms. <NAME> accepted a sum of money and an allotment of land in extent considerably less than a one-fifth share and the appeal was withdrawn. It is said to have been arranged at the time of the compromise that <NAME> should obtain in marriage the respondent, the fourth daughter of <NAME> and born after the alleged adoption. The marriage was shortly afterwards celebrated in the presence of members of the family, and from that time up to the death of <NAME>, which occurred in 1869, and subsequently up to the date of the institution of this suit, the respondent was treated in the family on the footing that she was the lawful wife of <NAME>, while her daughter has been sought in marriage by the seventh defendant for his son, a circumstance which certainly among the higher castes would argue admitted legitimacy.

5. It is now contended that the marriage of <NAME> with the respondent was invalid, in that as the daughter of his adoptive brother she was his near sapinda on the father's side.

6. The respondent meets this contention by asserting the invalidity of the adoption, the inefficacy of the adoption if it were at all valid to create a paternal relation, and a custom in the caste which sanctions marriages of sapindas which would be prohibited by the rules of Brahmanical law. The appellants reply that the respondent is estopped by the decrees obtained by her father from denying the fact and validity of the adoption, and the first question that calls for decision is, whether or not those decrees have the effect claimed for them by the appellants. <ORG> has held that, inasmuch as the parties to Original Suit 1 of 1859 came to a compromise when the decree of <ORG> was under appeal to <ORG>, the question as to the validity of the adoption was left unsettled. We cannot assent to this ruling. When the proceedings in appeal were discontinued, the decree of this <ORG> became final, but we allow the objection of the respondent that neither that decree nor the decree in Original Suit No. 272 of 1829 estops the respondent from contesting the validity of the adoption. She was neither a party nor privy to the suits in which those decrees were passed; she is not claiming under her father. It is true that both she and the respondents are claiming as heirs of <NAME>, but although <NAME> and those claiming under him would have been or would be estopped by the decree in Original Suit 1 of 1859 from denying the fact and validity of the adoption in any proceedings between them and <NAME> or those deriving title from him, it does not follow that parties claiming inter se under a title derived from <NAME> would, be so estopped. <NAME> v. <NAME> L.R. 2, P. & D. 230) though it is not precisely in point, supports the contention that the rule of estoppel by matter of decision should not be carried further than it has been established by authority, and no authority has been cited in support of the appellants' objection. Moreover, the decree in Original Suit 1 of 1859 was not passed in a suit to determine status. It was a suit inter partes to determine the rights in the estate of <NAME>. In this suit the rights in question are rights in the estate of <NAME>. Holding then that the respondent is not precluded from questioning the fact and validity of the adoption, we may next deal with the issue whether the adoption made was valid. The fact that an act was done or certain conduct pursued which was asserted to be tantamount to adoption cannot be disputed.

7. As to the validity of the adoption the decision of this Court in the appeal of <NAME> is the only reported case in this Presidency which lends any colour to the opinion that even among Sudras the adoption of a married man would be regarded as valid under Hindu Law. It would certainly be invalid under the Dattaka Chandrika, which declares that marriage concludes the period within which a Sudra may be adopted. In <NAME> v. <NAME> I, p. 412 <ORG> in 1823 ruled that the adoption of a Sudra after marriage was illegal and void. It will be seen that the decision of <ORG> in the appeal of <NAME> did not proceed on the ground that the adoption was valid. The Court conceived it was precluded by the decree obtained by the appellant in the earlier litigation from examining its validity. We have not before us the proceedings in Original Suit 272 of 1829, but from the decision of <ORG> it appears that the then plaintiff relied on the recogintion of the adoption rather than on its validity, and that the decree was finally affirmed by <ORG> on the ground that "an adoption once made is valid and cannot be set aside."

8. It was incumbent on the appellants to prove the validity of the adoption. They have relied solely on the decisions already pronounced, and do not in their appeal to this Court assert the existence of a special custom at variance with the received law.

9. The conduct of the family suggests either that the adoption was regarded as invalid or that if the act of <NAME> to which the character of an adoption is imputed were effective to confer on him a right to property, it was not regarded as producing an altered paternity. The daughters of <NAME> born' before his adoption have since the adoption been married by persons who, by the adoption, become sapindas of their father, and although it may be that if the adoption of a married man were valid, the children born before marriage would not become members of the family into which their father had passed, it is not shown that the marriage of the respondent who was born after the adoption was regarded as less proper than those of her sisters.

10. Although some evidence has been adduced to show that marriages are allowable in the caste which under strict rules of Hindu Law would be prohibited, and while we may admit that among Sudras the same attention is not paid to the rules as among Brahmans, we can hardly say that there is sufficient evidence to establish a custom sanctioning a marriage with a brother's daughter. Some instances are indeed mentioned, but the practice so far as it prevails is admitted by one of the witnesses for the appellant to have been of recent origin and hardly yet regarded as sanctioned by usage. We prefer then to rest our judgment on the ground that the validity of the adoption of <NAME> is not established.

11. Affirming the decrees of the <ORG> below, we dismiss this appeal with costs.