CASE NO.: Appeal (civil) 6109 of 2004 PETITIONER: <ORG> RESPONDENT: <NAME> DATE OF JUDGMENT: 17/09/2004 BENCH: <NAME> , <NAME> & <NAME> JUDGMENT:

J U D G M E N T (Arising out of S.L.P. (C) No. 15977 of 2002) With C.A. No. 6110 @ out of SLP (C) No. 15978 of 2002 C.A. No. 6111 @ out of SLP (C) No. 15980 of 2002 C.A. No. 6112 @ out of SLP (C) No. 15981 of 2002 C.A. No. 6113 @ out of SLP (C) No. 15982 of 2002 C.A. No. 6114 @ out of SLP (C) No. 15984 of 2002 C.A. No. 6115 @ out of SLP (C) No. 15986 of 2002 C.A. No. 6116 @ out of SLP (C) No. 15987 of 2002 C.A. No. 6117 @ out of SLP (C) No. 15989 of 2002 C.A. No. 6118 @ out of SLP (C) No. 15990 of 2002 C.A. No. 6119 @ out of SLP (C) No. 15991 of 2002 C.A. No. 6120 @ out of SLP (C) No. 15994 of 2002 C.A. No. 6121 @ out of SLP (C) No. 15996 of 2002 C.A. No. 6142 @ out of SLP (C) No. 15998 of 2002 C.A. No. 6127 @ out of SLP (C) No. 16000 of 2002 C.A. No. 6128 @ out of SLP (C) No. 16001 of 2002 C.A. No. 6143 @ out of SLP (C) No. 16020 of 2002 C.A. No. 6140 @ out of SLP (C) No. 16023 of 2002 C.A. No. 6120 @ out of SLP (C) No. 16024 of 2002 C.A. No. 6124 @ out of SLP (C) No. 16025 of 2002 C.A. No. 6125 @ out of SLP (C) No. 16026 of 2002 C.A. No. 6129 @ out of SLP (C) No. 16027 of 2002 C.A. No. 6141 @ out of SLP (C) No. 16028 of 2002 C.A. No. 6122 @ out of SLP (C) No. 16029 of 2002 C.A. No. 6123 @ out of SLP (C) No. 16030 of 2002 C.A. No. 6133 @ out of SLP (C) No. 16031 of 2002 C.A. No. 6126 @ out of SLP (C) No. 16033 of 2002 C.A. No. 6138 @ out of SLP (C) No. 16034 of 2002 C.A. No. 6132 @ out of SLP (C) No. 16035 of 2002 C.A. No. 6130 @ out of SLP (C) No. 16036 of 2002 C.A. No. 6136 @ out of SLP (C) No. 16038 of 2002 C.A. No. 6137 @ out of SLP (C) No. 16041 of 2002 C.A. No. 6139 @ out of SLP (C) No. 16042 of 2002 C.A. No. 6131 @ out of SLP (C) No. 16043 of 2002 C.A. No. 6135 @ out of SLP (C) No. 16044 of 2002 C.A. No. 6134 @ out of SLP (C) No. 16045 of 2002 C.A. No. 6145 @ out of SLP (C) No. 16046 of 2002 C.A. No. 6146 @ out of SLP (C) No. 16047 of 2002 C.A. No. 6147 @ out of SLP (C) No. 16048 of 2002 C.A. No. 6148 @ out of SLP (C) No. 16050 of 2002 SANTOSH HEGDE, J.

Leave granted.

In these appeals, a short but an important question of law arises for our consideration as to the interpretation of Section 17(4) of the Land Acquisition Act, 1894 ('the Act') and the procedure to be followed by the appropriate <ORG> while dispensing with the inquiry contemplated under Section 5A of the Act. These question arose for consideration before <ORG> of <ORG> which on facts came to conclusion that the Lt.Governor of Delhi who was the authority to pass orders under Section 17 (4) of the Act did not apply his mind as to the existence of need for the dispensation of 5A inquiry. <ORG> also held that the Lt.Governor was not informed that there was an earlier attempt to acquire land measuring 40 bighas for the same public purpose and said acquisition had lapsed by afflux of time which also contributed to non-application of mind. Hence, the decision of the Lt. Governor to exclude the inquiry under Section 5A of the Act in the present acquisition proceedings was vitiated.

The acquiring authority namely <ORG> and others connected with the said acquisition are in appeal before us in the above appeals questioning the correctness of the said judgment.

The facts necessary for the disposal of these appeals are as follows:- There is an annual festival called "Phool Walon Ki Sair", which was started during the Mughal regime. But over the period the same was discontinued. It is stated that in the year 1961 the then Prime Minister of India Pt. <NAME> took the initiative to revive this age old festival to focus on the spirit of secularism. It is also stated that the festival has since been revived and is being organised by an organisation called Anjuman-Saire-e-Gul-Faroshan and this organisation has the President of India as its Chief Patron. From the records it is seen at present this festival which starts with a procession concludes with all its participants gathering in the village Mehrauli. The above mentioned organisation in the year 1987 felt that it required 4000 sq.yards of land in and around the place where this festival concludes, for a proper procession ceremony hence made a representation to the Lt.Governor on 19.10.1987 seeking acquisition of the said area of land in Mehrauli village. Based on the instructions issued by the Lt. Governor in this regard proceedings were initiated to acquire the earmarked land for the purpose of above festival of "Phool Walon Ki Sair". During the process of considering this acquisition proceedings it was noticed by the authorities that in and around the area required for the above acquisition, there were certain ancient monuments which were in dilapidated conditions, it was also noticed that certain areas of land which was sought to be acquired was in the unauthorised possession of some persons. Hence, to serve the larger public purpose a notification acquiring 72 bighas of land was mooted under the stated public purpose of Planned Development of Delhi. During the process of preparing the acquisition notification the recommending authorities felt that provisions of Section 17 (1) of the Act should be utilised to facilitate urgent acquisition of the required land. Hence notings were put up on different levels that the draft notification may indicate the need for urgency for invoking Section 17 (1) of the Act. Since, the usual bureaucratic procedure was not proceeding in the required pace <ORG> wrote a letter to the Deputy Commissioner, Delhi dated 8.6.1988 calling upon the said officer to ensure that the concerned draft notification in regard to the said acquisition should be sent to that office without further delay. It is in the above background a notification dated 30.6.1988 under Section 4(1) of the Act came to be published. As stated above, the public purpose mentioned therein was "Planned Development of Delhi". This notification specifically stated that the Lt. Governor was of the opinion that provision of sub-section (1) of Section 17 of the Act is applicable to this acquisition and that he was pleased under sub-Section (4) to direct the provisions of Section 5A of the Act should not apply. Simultaneously, a declaration under Section 6 of the Act as well as the notice under Section 7 of the Act were also published. Being aggrieved by this notification the owners of the land and persons interested filed Civil Writ Petitions before <ORG> primarily contending that there was no such urgency which require the invocation of Section 17 (1) and (4) of the Act by deleting 5A inquiry. The basis of this argument was that the decision of the Lt. Governor in this regard was vitiated from the vice of non-application of mind and from procedural irregularities.

<ORG> which heard the petition, noticed that during the course of arguments, the petitioners did not seriously press the argument based on Section 17(1) of the Act and confined their challenge to the question whether or not the provisions of Section 5A of the Act should have been dispensed with by the Lt. Governor.

During the course of hearing before <ORG> the records of proceedings were summoned and the court examined whether there was any material to indicate the application of mind by the Lt. Governor for dispensing with the inquiry under Section 5A of the Act. <ORG> after copiously referring to the notings in the file and considering the various judgments cited before it came to the conclusion that there was no application of mind by the Lt. Governor as to whether or not an inquiry under Section 5A of the Act ought to be dispensed with. Though the notification published under Section 4(1) of the Act specifically mentioned the dispensation of inquiry under Section 5A of the Act.

<ORG> on the material placed before it, also noticed the fact that in regard to 40 bighas of land, out of the 72 bighas now sought to be acquired in the same Khasra, <ORG> by a notification dated 24.7.1973 did try to acquire the said land for the same public purpose which acquisition came to be questioned before <ORG> in a writ petition and when the matter was pending before the Division Bench even though there was no interim order since no further steps were taken by the acquiring authorities, the said acquisition lapsed. Since the Lt. Governor was not made known of this earlier attempt having lapsed, it considered this also as a ground for coming to the conclusion that the decision to exclude 5A inquiry suffered from the vice of non-application of mind. <ORG> on the above finding allowed the writ petition in part and while setting aside the decision of the Lt. Governor to exclude 5A inquiry permitted the appellants to continue the acquisition proceedings afresh from the stage of 4(1) notification. Consequently, the declaration made under Section 6 of the Act came to be quashed. It directed that the acquiring authority should give an opportunity to the persons interested to file their objections and the same should be heard by the concerned authority and further acquisition proceedings should be proceeded with and concluded within the time and manner stipulated in the impugned judgment.

It is against the said judgment and order of <ORG> the above appeals are preferred.

Though, it is strictly not necessary for us to go into the subsequent events that had taken place after the impugned judgment of <ORG> , it may be of some relevance to note that after the judgment of <ORG> the authorities held the 5A inquiry and after considering the report of the Collector a fresh Section 6 declaration has already been issued but the same is pending fresh challenge before <ORG> at present. Mr. <NAME>, learned senior counsel appearing for the appellants, contended that the principal public purpose for which the land was sought to be acquired is of great public importance to the people of Delhi. The festival "Phool Walon Ki Sair" being a festival in which both Hindus and Muslims take part, any step taken towards furthering this objective would only benefit the society. Hence, the public purpose for which the land was sought to be acquired was of great importance in the present day context. He further submitted that Section 17 of the Act is a special provision which empowers the acquiring authorities when so directed by the appropriate <ORG> to proceed to take possession of the land as contemplated in the said Section. He pointed out under sub-section (4) of Section 17 , a further wider power is bestowed on the appropriate <ORG> to even exclude an inquiry under Section 5A of the Act and if so done, even a declaration under Section 6 of the Act becomes unnecessary and what is necessary was only a publication of Section 4(1) notification. According to the learned counsel a careful perusal of the provisions of Section 17 indicates that in case of urgency it is open to the appropriate <ORG> as in the instant case to exclude the inquiry under Section 5A of the Act by invoking the power under sub-section (4) of Section 17 . He contended that the urgency contemplated under sub-sections (1) and (2) of Section 17 by itself are sufficient for invoking Section 17 (4) to exclude the inquiry and in the instant case the appellants themselves having given up their challenge as to the existence of the urgency under Section 17 (1) they can not contend that there was no urgency to invoke Section 17(4) of the Act, therefore the Lt. Governor rightly entertained the said urgency under Section 17(1) invoking Section 17 (4) and to exclude 5A inquiry. It is his contention that <ORG> erroneously quashed the notification though partially. Mr. <NAME> submitted from the material on record it is clear that right from the time of initiation of acquisition proceedings there was application of mind in regard to the exclusion of inquiry under Section 5A at every stage. The learned counsel also submitted the degree or sufficiency of urgency is not a matter to be assessed by <ORG> in a judicial scale. Hence, <ORG> in the present case erred in making the impugned order. He placed strong reliance on the judgment of this Court in the case of <CITATION> . {} wherein this Court held thus:- "The provision for housing accommodation in these days has become a matter of national urgency and courts should take judicial notice of this fact. Having regard to the enormous growth of population in the country, the governmental schemes of development of residential areas, such as those of <ORG> constituted by the State <ORG>s for cities, now demand emergent action eliminating summary enquiry under Section 5-A of the Land Acquisition Act".

Taking sustenance from the observations of this <ORG> extracted hereinabove, Mr.<NAME> contended that the public purpose of the acquisition in the present case is to further religious amity between the various communities and to protect ancient monuments. Therefore, <ORG> ought to have taken judicial notice of the urgency in the present case. He then relied upon the judgment of this <ORG> in the case of <CITATION> . { } wherein this <ORG> observed thus:-

"Very often the officials, due to apathy in implementation of the policy and programmes of the <ORG>, themselves adopt dilatory tactics to create cause for the owner of the land to challenge the validity or legality of the exercise of the power to defeat the urgency existing on the date of taking decision under Section 17(4) to dispense with Section 5-A inquiry."

On the basis of the above observations of this Court, learned counsel submitted in a given case the delay by itself could exhilarate the urgency as in this case when an attempt to acquire the land for a genuine public purpose was for some reason or the other has remained unfulfilled from the year 1987 the High Court ought to have held the delay already occurred itself was sufficient evidence of the factum of urgency to exclude Section 5A .

Learned counsel then placed reliance on the judgment of this Court in the case of <CITATION> . {} wherein this Court held thus :-

"The question of urgency of an acquisition under Section 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts."

Learned counsel also relied on another judgment of this Court in <NAME> vs. State of U.P. & Ors. { (1999) 2 SCC 384} which supports the proposition as to the extent to which a judicial scrutiny of a subjective satisfaction in a land acquisition case could extend.

Nextly, the learned counsel relied on another judgment of this Court in <CITATION> . { } wherein this Court held thus :- "Decision on urgency is an administrative decision and is a matter of subjective satisfaction of the appropriate Government on the basis of the material available on record. Therefore, there was no need to pass any reasoned order to reach the conclusion that there is urgency so as to dispense with the enquiry under Section 5-A in exercise of power under Section 17(4) ."

Taking support from the above judgment, as stated above, Mr. <NAME> submitted <ORG> exceeded its jurisdiction by re- appraising the factual basis on which the appropriate Government came to the conclusion that there was urgency requiring the exclusion of Section 5A inquiry, which is impermissible in law.

Before adverting to the arguments of learned counsel appearing on behalf of the respondents, we would like to refer to one of the grounds raised by way of preliminary objections by the respondents which is in regard to the maintainability of these appeals on the ground that pursuant to the directions issued by <ORG>, the acquiring authorities have conducted a 5-A inquiry and a fresh declaration under Section 6 has already been made, therefore, these appeals are not maintainable. Mr. <NAME>, learned senior counsel for the appellants, has rebutted this contention by relying on the judgment of this Court in the case of <CITATION> {(1972) 2 SCR 452}. But in fairness, we must note that the learned counsel appearing for the respondents has not pressed this objection any further than raising the same in the pleadings. That apart, since this objection may have some bearing on the pending writ petitions before <ORG> and is not a necessary question to be decided in these appeals, we refrain from making any observation on this preliminary objection.

Mr. <NAME>, learned senior counsel appearing for the respondents, rebutted the arguments of learned counsel for the appellants. He submitted that under the Scheme of the Act , each and every section from Sections 4 to 17 has an independent role to play though there is an element of interaction between them. According to him, some of the sections also provide certain mandatory conditions to be fulfilled before the next steps is taken. Thus, in the Scheme of the Act , learned counsel submitted, that Section 5A has its own role to play. It is his argument that the entire acquisition proceedings under the Act are based on the principle of eminent domain and the only protection given to a person whose land is sought to be acquired is an opportunity under Section 5A of the Act to convince the acquiring authority that the public purpose for which the land is sought to be acquired is in fact is not a public purpose and is only purported to be one in the guise of a public purpose. Therefore, according to the learned counsel excluding this inquiry can only be an exception where the urgency cannot brook any delay. He also submitted this inquiry provides an opportunity to the owner of the land to convince the authorities concerned that the land in question is not suitable for the purpose for which it is sought to be acquired or the same is sought to be acquired for collateral purpose. He also submitted that the report of the inquiry officer though not binding on the acquiring authority still it could open the mind of the acquiring authority as to the need or necessity to acquire the concerned land. Further analysing the Scheme of the Act and with particular reference to Section 17 of the Act, the learned counsel submitted that sub-sections (1) and (2) of Section 17 do provide a deviation from the normal scheme of the Act while acquiring the land depending upon the nature of urgency. It is his argument that sub-sections (1) and (2) of Section 17 contemplates different types of urgency and procedure contemplated while exercising the power under each one of these sub-sections are also different from one and the other. He pointed out that though for exercise of power under Section 17(4) of the Act existence of emergency contemplated under sub-sections (1) or (2) is a condition precedent that urgency by itself would not empower the authority to dispense with the 5A inquiry under Section 17(4) of the Act without there being a further need to do so. In other words, the learned counsel contends that assuming that there is urgency for taking possession of the land as contemplated under sub-sections (1) and (2) by excluding the operation of Section 6 and the time mentioned in Section 9 (1) of the Act, the same would not by itself give rise to the required urgency to avoid an inquiry under Section 5-A . He submitted that in the instant case the authorities have not understood this mandatory difference and have proceeded as if the existence of urgency required under Section 17(1) is by itself sufficient to exclude the inquiry under Section 5A .

Learned counsel also copiously referred to the various notings in the file and pointed out that this aspect of the urgency which is necessary for excluding an inquiry under Section 5A of the Act was not taken note of. He also pointed out that in almost all the notings on the file which were considered by <ORG> there was actually no reference to Section 17(4) at all, much less any reference to the need for excluding the inquiry under Section 5A of the Act. It is also pointed out by the learned counsel from the records that even on the final noting of the Lt. Governor dated 23.6.1988 pursuant to which a preliminary notification was issued, there is no reference to the exclusion of the inquiry under Section 5A of the Act. While for the first time such an exclusion was specifically notified in Section 4(1) notification dated 30.6.1988 by <ORG>, therefore, <ORG> was justified in coming to the conclusion that the Lt. Governor did not apply his mind to the need for dispensing with the inquiry under Section 5A of the Act. He further submitted that the fact that the respondents have given up their challenge in regard to the urgency under Section 17 (1) would not in any way affect the merit of their argument of non application of mind by the acquiring authority to exclude 5A inquiry.

Keeping in mind the arguments of the learned counsel for the parties, we will now examine certain relevant provisions of the Act to understand the scheme of the Act.

Section 4(1) of the Act requires the <ORG> to publish a preliminary notification declaring its intention to acquire the land in question as also the likely public purpose for which the land is sought to be acquired. This section itself provides for a procedure for publication of the notice and puts an embargo on the future dealings by the owners of the said property.

Section 5-A contemplates a right of hearing to any person interested in the land and provides for filing of objections which objections will have to be heard by the authorised officer by providing an opportunity of hearing to such interested persons. As noted above, the reports submitted after this inquiry may not be binding on the appropriate Government but the same is necessary to be considered by appropriate Government at the same time the report can not be left out of consideration.

Section 6 contemplates the making of a declaration as to the requirement of the land for the public purpose. This declaration in the normal course will have to be made only after the report of the Inquiry Officer under Section 5-A is considered by the appropriate <ORG>. This declaration is required to be published in the official gazette.

Section 9 contemplates issuance of a notice to the interested persons after steps enumerated in Section 7 & 8 is completed.

Section 11 contemplates an inquiry and award being made by the Collector and Section 16 contemplates when an award is made under Section 11 , the collector is entitled to take possession of the land which thereupon vests absolutely with the Government . The only exception to deviate from the above scheme of the Act is found under Section 17 of the Act. Said Section 17 to the extent required for our consideration is extracted hereinbelow:-

"17. Special powers in cases of urgency.  (1) In cases of urgency, whenever the Appropriate <ORG> so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9 , sub-section (1), 1[take possession of any land needed for a public purpose]. Such land shall thereupon vest absolutely in the <ORG>, free from all encumbrances.

(2) Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, 2[or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity,] the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the government free from all encumbrances :

Provided that the Collector shall not take possession of any building or part of a building under this sub- section without giving to the occupier thereof at least forty-eight hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.

(3) In every case under either of preceding sub- sections the Collector shall at the time of taking possession offer to the persons interested, compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24 ; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.

[(3A) x x x (3-B) x x x (4) In the case if any land to which, in the opinion of the appropriate Government, the provisions of sub- section (1), or sub-section (2) are applicable , the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time 1[after the date of the publication of the notification under section 4 , sub-section (1):"

A careful perusal of the above Section shows that sub- section (1) of Sec. 17 contemplates taking possession of the land in the case of an urgency without making an award but after the publication of Section 9(1) notice and after the expiration of 15 days of publication of Section 9(1) notice. Therefore it is seen that if the appropriate Government decides that there is an urgency to invoke Section 17(1) in the normal course Section 4(1) notice will have to be published, Section 6 declaration will have to be made and after completing the procedure contemplated under Sections 7 and 8 , 9(1) notice will have to be given and on expiration of 15 days from the date of such notice the authorities can take possession of the land even before passing of an award. Sub-section (2) of Section 17 contemplates a different type of urgency inasmuch as it should be an unforeseen emergency. Under this Section if the appropriate Government is satisfied that there is such unforeseen emergency the authorities can take possession of the land even without waiting fort 15 days period contemplated under Section 9(1) . Therefore, in cases, where Government is satisfied that there is an unforeseen emergency it will have to in the normal course, issue a Section 4(1) notification, hold 5A inquiry, make Section 6 declaration, and issue Section 9(1) notice and possession can be taken immediately thereafter without waiting for the period of 15 days prescribed under Section 9(1) of the Act.

Section 17 (4) as noticed above provides that in cases where the appropriate Government has come to the conclusion that there exists an urgency or unforeseen emergency as required under sub-sections (1) or (2) of Section 17 it may direct that the provisions of Section 5A shall not apply and if such direction is given then 5A inquiry can be dispensed with and a declaration may be made under Section 6 on publication of 4(1) notification possession can be made.

A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4) that by itself is not sufficient to direct the dispensation of 5A inquiry. It requires an opinion to be formed by the concerned government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5A inquiry which indicates that the <ORG> intended that the appropriate government to apply its mind before dispensing with 5A inquiry. It also indicates the mere existence of an urgency under Section 17 (1) or unforeseen emergency under Section 17 (2) would not by themselves be sufficient for dispensing with 5A inquiry. If that was not the intention of the <ORG> then the latter part of sub-section (4) of Section 17 would not have been necessary and the <ORG> in Section 17 (1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5A inquiry will be dispensed with. But then that is not language of the Section which in our opinion requires the appropriate <ORG> to further consider the need for dispensing with 5A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate <ORG> while dispensing with 5A inquiry does not mean that in and every case when there is an urgency contemplated under Section 17 (1) and unforeseen emergency contemplated under Section 17 (2) exists that by itself would not contain the need for dispensing with 5A inquiry. It is possible in a given case the urgency noticed by the appropriate <ORG> under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate <ORG> on that very basis to dispense with the inquiry under Section 5A but then there is a need for application of mind by the appropriate <ORG> that such an urgency for dispensation of the 5A inquiry is inherent in the two types of urgencies contemplated under Section 17 (1) and (2) of the Act. An argument was sought to be advanced on behalf of the appellants that once the appropriate <ORG> comes to the conclusion that there is an urgency or unforeseen emergency under Section 17(1) and (2), the dispensation of enquiry under Section 5A becomes automatic and the same can be done by a composite order meaning thereby that there no need for the appropriate <ORG> to separately apply its mind for any further emergency for dispensation with an inquiry under Section 5A . We are unable to agree with the above argument because sub- section (4) of Section 17 itself indicates that the "government may direct that provisions of Section 5A shall not apply" which makes it clear that not in every case where the appropriate <ORG> has come to the conclusion that there is urgency and under sub- section (1) or unforeseen emergency under sub-section (2) of Section 17 the <ORG> will ipso facto have to direct the dispensation of inquiry. For this we do find support from a judgment of this Court in the case of <ORG> vs. The State of U.P. & Ors. { 1964 ( 3) SCR 425) wherein considering the language of Section 17 of the Act which was then referable to waste or arable land and the U.P.Amendment to the said section held thus :

"It will be seen that s. 17(1) gives power to the <ORG> to direct the Collector, though no award has been made under s. 11 , to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the <ORG> free from all encumbrances. If action is taken under s. 17(1) , taking possession and vesting which are provided in s. 16 after the award under s. 11 are accelerated and can take place fifteen days after the publication of the notice under s. 9 . Then comes s.17(4) which provides that in case of any land to which the provisions of sub-s. (1) are applicable, the <ORG> may direct that the provisions of s. 5-A shall not apply and if it does so direct, a declaration may be made under s. 6 in respect of the land at any time after the publication of the notification under s. 4(1) . It will be seen that it is not necessary even where the <ORG> makes a direction under s. 17(1) that it should also make a direction under s. 17(4) . If the <ORG> makes a direction only under s. 17(1) the procedure under s. 5-A would still have to be followed before a notification under s. 6 is issued, though after that procedure has been followed and a notification under s. 6 is issued the Collector gets the power to take possession of the land after the notice under s. 9 without waiting for the award and on such taking possession the land shall vest absolutely in <ORG> free from all encumbrances. It is only when the <ORG> also makes a declaration under s. 17(4) that it becomes unnecessary to take action under s. 5-A and make a report thereunder. It may be that generally where an order is made under s. 17(1) , an order under s. 17(4) is also passed; but in law it is not necessary that this should be so. It will also be seen that under the Land Acquisition Act an order under s. 17(1) or s. 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand."

A careful reading of the above judgment shows that this Court in the said case of <NAME> case (supra) has also held that there should an application of mind to the facts of the case with special reference to this concession of 5A inquiry under the Act.

At this stage, it is relevant to notice that the limited right given to an owner/person interested under Section 5A of the Act to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away for good and valid reason and within the limitations prescribed under Section 17(4) of the Act. The object and importance of 5A inquiry was noticed by this Court in the case of <CITATION> { where this Court held thus:- " Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be made. The legislature has made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections . It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5-A ."

It is clear from the above observation of this Court that right of representation and hearing contemplated under Section 5A of the Act is a very valuable right of a person whose property is sought to be acquired and he should have appropriate and reasonable opportunity of persuading the authorities concerned that the acquisition of the property belonging to that person should not be made. Therefore, in our opinion, if the appropriate Government decides to take away this minimal right then its decision to do so must be based on materials on record to support the same and bearing in mind the object of Section 5A . We will now refer to the facts of the present case. We make it clear that this consideration of facts by us is not for the purpose of finding out whether the stated public purpose is in reality a public purpose or not, nor is it for the purpose of finding out whether there was an urgency as contemplated under Section 17(1) of the Act, but limited to the question of whether there was any material available before the Lt. Governor pursuant to whose order Section 4(1) notification stated that 5A inquiry is dispensed with. Since formation of an opinion and application of mind cannot be assessed except by looking into the proceedings which culminated in the impugned order, we intend considering only such facts as is necessary for this limited purpose. The facts of the present case as found from the records shows that <ORG> the committee that organises this festival was using some land in village Mehrauli for conducting its concluding ceremony. It is for this purpose it sought 4000 sq. yards of land in Khasra No. 1151/3 (new) and 1665 (old) of said village. It is also found from the record ever since the revival of the festival the concluding programme was being continued in a piece of land situated in the said Khasra of Mehrauli village which is now sought to be acquired along with certain other lands. There is no material on record to show that either the said festival has been discontinued for want of land or the owners of the land where the festival has its concluding ceremony are preventing the utilisation of that land for the said purpose. We have also noticed hereinabove that an earlier attempt to acquire 40 bighas of the land for the very same purpose was allowed to be lapsed by the authorities concerned by afflux of time which is also a relevant factor to be taken note of by the Lt. Governor when he took the decision to dispense with the 5A inquiry but the same was not placed before him. These facts coupled with the findings of <ORG> that in almost all the notings in the file there is no reference to the need for invoking Section 17(4) indicates that the Lt. Governor was not apprised of all the necessary and relevant facts before he took the decision in question. Therefore, in our opinion, the findings of <ORG> that the decision of the Lt. Governor to dispense with the 5A inquiry suffered from the vice of non-application of mind has to be upheld. For the reasons stated above, these appeals fail and are dismissed.


JUDGMENT <NAME>, J.

1. This is an appeal against the judgment of a learned singal Judge of <ORG> convicting the Appellants namely <NAME> and <NAME> of offences under Sections 306 and 498A of the Indian Penal Code. A few facts are necessary for the purpose of disposing of this appeal.

2. Appellant No. 1 <NAME> and Appellant No. 2 his son <NAME>, are both residents of Faridabad. The deceased <NAME> was married to <NAME> on October 16, 1983 On June 10, 1984, within less than a year of her marriage, <NAME> died after having sustained burn injuries at the residence of her husband <NAME> who was living with his father <NAME>. She sustained bum injuries at about 6/6.30 a.m. on June 10, 1984 and was takento the Geeta Nursing Home where she died at about 11am The case of the prosecution is that the Appellants and <NAME> wife of <NAME>, not being satisfied with the dowry given at the time of <NAME>'s marriage were making demands for further articles of dowry from <NAME> and her relatives and were harassing, humiliating and insulting <NAME> and she was driven to commit suicide by setting herself on fire The case appears to be that she sprinkled kerosene on her clothe and set herself on fire. This incident occurred in the kitchen of <NAME> s residence. It is also the case of the prosecution that, although <NAME> cried the noise of her cries were suppressed by someone In <NAME>'s family by putting on loudly a radio or television set and that the neighbours and outsiders whose attention was attracted by the cries of <NAME> were prevented from entering the residence as the doors were shut It was also alleged by the prosecution that there was deliberate delay in taking <NAME> to the Geeta Nursing home where she died, and that she was deliberately taken to Geeta Nursing Home where adequate facilities for treatment of burn injuries were not avail able instead of the Badshah Khan Hospital, which is also known as the Civil Hospital where better treatment for burn injuries was available as known to the Appellants. The Appellants, <NAME> and <NAME> as well as <NAME>, the wife of <NAME> were charged and tried before the Court of the learned Additional Sessions Judge, Faridabad under Sections 306 and 498A respectively of the Indian Penal Code . The defence taken by the accused was tha veena did not commit suicide but her clothes accidentally caught fire when she was preparing tea for the family over a stove. The allegations regarding harassment of <NAME> for dowry were also denied The learned Additional Sessions Judge acquitted <NAME> but convicted <NAME> and <NAME> under the aforesaid sections of Indian Pen Code. <NAME> was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 500/- for the conviction under Section 306 of the Indian Penal Code and was further sentenced to rigorous imprisonment for one year and the payment of a fine of Rs. 100/- for the conviction under Section 498A of the Indian Penal Code. As far as the <NAME> is concerned, it was held that he played the more important and active part in putting pressure on <NAME> for dowry articles and causing harassment to her. He was sentenced to undergo rigorous imprisonment for five years and payment of a fine of Rs. 500/- for the offence under Section 306 of the Indian Penal Code and further sentenced to rigorous imprisonment for one year and a fine of Rs. 100/- for the conviction under Section 498A of the Indian Penal Code.

3. <NAME> and <NAME> preferred an appeal to <ORG> against the decision of learned Additional Sessions Judge. The learned Single Judge of <ORG> disposed of the said appeal confirming the conviction of both the accused i.e. <NAME> and <NAME> but reduced the sentence on <NAME> under Section 306 of the Indian Penal Code to a period of three years. In <ORG> as well as in <ORG> the sentences were directed to run concurrently. It is this judgment of the learned Single Judge which is said to be impugned in this appeal before us.

4. It was submitted by Mr. <NAME>, learned Counsel for the Appellants that there is no evidence to establish that the deceased <NAME> committed suicide. It was further submitted by learned Counsel that, as far as the demands for dowry articles are concerned, the evidence of witnesses is full of inconsistencies regarding the precise nature of the demands and the articles demanded and it was not possible to come to a conclusion of harassment to <NAME> on the basis of this evidence with the degree of certainly required in the criminal trial.

5. We propose to discuss first the validity of conviction under Section 306 of the Indian Penal Code because that is the more serious offence alleged against <NAME> and <NAME>. Section 306 of the Indian Penal Code states inter alia that whoever abets the commission of suicide shall be punished with imprisonment and fine as set out in the said section. Section 307 of the Indian Penal Code defines abetment. Reading Sections 306 and 307 together it is clear that if any person instigates any other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished under Section 306 of the Indian Penal Code for abetting the commission of suicide. A plain reading of this provision shows that before a person can be convicted of abetting the suicide of any other person, it must be established that such other person committed suicide. We may mention here that commission of dowry death is now punishable under Section 304B of the Indian Penal Code and certain presumptions are prescribed under Sub-section (1) of that section, but it is pointed out to us that that section was not enacted at the time when the incident in question took place and hence can have no application to the case before us. We must, therefore, first examine whether the evidence on record establishes with the degree of certainty required in criminal law that <NAME> committed suicide. In this regard it is pointed out by Mr. <NAME> that, in the present case, there is no such clear piece of evidence like a suicide note or statement had been made by <NAME> after the incident to the effect that she had taken her own life or set herself on fire. Further there is no evidence that her clothes gave out a smell of kerosene which would indicate of suicide. It is true that the post-mortem was performed after several hours and such smell might not have been detectable from <NAME>'s clothes at that time but it is significant that Dr. <NAME>, who treated <NAME> at <ORG> has not been asked any question regarding any smell given out by <NAME>'s clothes. As far as the question of improbability of sustaining burns accidentally from the stove lighted for preparing tea is concerned, evidence was led by the prosecution to show that the stove was placed on the raised slab which would make it unlikely that burns were caused to <NAME> by accident. The evidence in this regard, however, is by no means satisfactory. The evidence of the Investigating Officer, <NAME> undoubtedly is to the effect that when he went to the residence of <NAME> for the first time for investigation, the stove was lying on the slab. However, the evidence of the photographer who went to the residence of <NAME> along with the investigating officer is to the effect that when he went there, the said stove was lying on the kitchen floor. In view of this contradiction, it is not possible to hold that the stove was placed on the club when <NAME> was preparing tea for the family and hence an accident was highly unlikely.

6. The next circumstance sought to be relied upon by the prosecution to establish the case of suicide was that there was deliberate delay in taking <NAME> to a Hospital or <ORG>. It was urged by the prosecution that although the accident occurred at about 6/6.30 a.m. it was only one and a half hours later that <NAME> was taken to the <ORG> and this would show that <NAME> committed suicide as a result of the harassment and instigation of <NAME> and <NAME> and his relatives and that delay was made in taking her to hospital so that she might become unconscious and unable to make any statement and further so that the chances of her recovery might be diminished or rendered nugatory. In this regard, again, there is no satisfactory evidence. Dr. <NAME>, a Private Practitioner has deposed that on June 10, 1984 <NAME> came to his house in Old Faridabad in the morning at about 6.30 a.m. or 6.45 a.m. and told him that his daughter-in-law has received some burns on account of catching fire from the stove and desired that Dr. <NAME> should accompany him to his residence for treatment. Dr. <NAME> told him that he would be opening his clinic within half an hour and that <NAME> should be brought there. Dr. <NAME> has stated that on that day, when she entered the Geet<ORG> which is her private <ORG> between 7.45 or 8.00 a m. in the morning, <NAME> was lying on a bed there with burn injuries on her body and in a semi-conscious stage. She was accompanied by one lady and two gentlemen, one of them was aged, apparently <NAME>. In view of this evidence, it is not possible to come to a conclusion with the degree of certainty required in a criminal trial that there was any deliberate delay in taking <NAME> to the hospital. As far as the question of not taking <NAME> to <ORG> is concerned, it is again difficult to base any conclusion on this circumstance. It is true that better treatment would, in all probability, have been available at <ORG>. The evidence, however, shows that <NAME> first went to Dr. <NAME> and thereafter took <NAME> to Geet<ORG> and he was there by 7.45 a.m. to 8.00 a.m. The evidence on record also shows that <ORG> was in the same Sector of Faridabad, namely, Sector No. 16 so that it was easier to take <NAME> to that <ORG>. In these circumstances, it is difficult to come a conclusion that <NAME> deliberately avoided taking <NAME> to <ORG>. As far as the question of suppressing the sounds of cries of <NAME> is concerned, it is again not possible to draw any inference from this circumstance as it has not been put to cither <NAME> or <NAME> with the inference sought to be drawn when their statements were recorded under Section 313 of the Criminal Procedure Code. It is, therefore, not permissible to place any reliance on this circumstance in convicting them. The result, therefore, is that there is no satisfactory evidence on the basis of which a conclusion could be reached with any reasonable certainty that <NAME> committed suicide and the conviction of <NAME> and <NAME> under Section 306 of the Indian Penal Code must be set aside.

7. Coming next to conviction under Section 498A of the Indian Penal Code, a reading of the said section shows that whoever, being the husband or relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Clause (b) of the Explanation to that section shows that the harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for property or valuable security or is on account of the failure by her or any person related to her to meet such demand would amount to cruelty for the purposes of Section 498A . In the present case, as pointed out by the learned Additional Sessions Judge as well as the learned Judge of <ORG>, there is an ample evidence that repeated demands were made inter alia by <NAME> and <NAME> on <NAME>, her parents and her brother <NAME> for articles of dowry and money. There is also evidence that <NAME> made statements after her marriage and right up to the time when she died that she and her parents were being harassed by <NAME>, <NAME> and his family members for various dowry articles and also for money. As pointed out by Mr. <NAME> that there are some inconsistencies regarding the precise nature of the articles demanded but we are of the view that these inconsistencies are of little importance, considering the volume of evidence showing that repeated demands were made for various articles of dowry and money on <NAME> and her parents. In fact, what is the most telling circumstance is that after the death of <NAME> a large number of dowry articles seem to have been taken back by <NAME>'s family members from <NAME>'s residence which were admittedly being given as dowry. There is also substantial evidence to show that an amount of Rs. 20,000 to 25,000 was demanded from <NAME>, the brother of <NAME> and her mother by <NAME> for setting up <NAME> in business and they were unable to satisfy these demands. We, therefore, agree with the conclusion reached by the Additional Sessions Judge and confirmed by <ORG> in this connection and confirm the conviction and sentence imposed on <NAME> and <NAME> under Section 498A of the Indian Penal Code.

8. As far as the aforesaid Special Leave Petition is concerned, it has been preferred by the <ORG> for enhancement of the sentence under Section 306 of the Indian Penal Code. As the conviction of the accused under Section 306 of the Indian Penal Code is set aside, the said Petition must be dismissed and it is ordered accordingly. The notice of enhancement is also in respect of the conviction under Section 306 and the same is discharged.

9. The appeal is partly allowed as set out earlier in so far as the conviction under Section 306 of the Indian Penal Code and the sentence imposed thereupon are concerned. The appeal against the conviction under Section 498A of the Indian Penal Code is dismissed. If the Appellants are on bail, they must surrender to the police and undergo the balance of their sentences, if any, and also pay the fine imposed on them for the conviction under Section 498A , if that has not already been paid.


PETITIONER: <NAME> AND OTHERS Vs. RESPONDENT: BANAMALI SEN AND OTHERSBHOLANATH SEN AND <NAME> DATE OF JUDGMENT: 27/10/1952 BENCH: <NAME>, MEHR CHAND BENCH: <NAME>, MEHR CHAND AIYAR, N. CHANDRASEKHARA BHAGWATI, NATWARLAL H. CITATION: 1953 AIR 33 1953 SCR 154 CITATOR INFO : F 1960 SC1186 (8) R 1961 SC1457 (12) R 1964 SC1013 (16) R 1965 SC1153 (5,51,52) D 1971 SC 664 (19) RF 1977 SC1268 (21) RF 1986 SC 500 (6,7) R 1987 SC2205 (8) D 1991 SC 264 (4) ACT: Res judicata-Land -acquisition proceedings-Dispute as to title between rival claimants-Decision after contest-Whether operates as res judicata in subsequent suit-Effect of decision on mortgagees. HEADNOTE: Where the right to receive compensation for property acquired in land acquisition proceedings as between rival claimants depends the title to the property acquired and the dispute as to title is raised by the parties and is decided by the Land Acquisition Judge after contest, this decision as to title operates as res judicata in a subsequent suit between the same parties the question of title. The binding force of a judgment delivered under the Land Acquisition Act depends general principles of law and not s. 11 of the Civil Procedure Code, and the decision of a Land Acquisition Judge would operate as res judicata even though he was not competent to try the subsequent suit. If a mortgagee intervenes in land acquisition proceedings and makes a claim for compensation, and any question of title arises about the title of the mortgagor in respect to the land acquired which affects the claim for compensation, he has every right to protect that title and if he defends that title and the issue is decided against his mortgagor, the decision would operate as res judicata even as against the mortgagee. Certain premises which formed part of the estate of a de- ceased person were acquired in land acquisition proceedings. There was a triangular contest about the right to the compensation money between A and B, two rival claimants to a four annas 155 share in the estate of the deceased, and C, a mortgagee from one of the claimants. The three parties required the question of apportionment to be referred to the <ORG> and a Special Judge who was appointed decided the question of title to the four annas share upon which the right to receive the compensation depended and made an award. The Land Acquisition Judge and High <ORG> found the title in favour of B after due contest between the parties but <ORG> reversed the decision and decided the question of title in favour of A. In a subsequent suit between the -same parties the question of title was again raised:, Held (i) that the decision of <ORG> the ques- tion of title in the land acquisition proceedings operated as res judicata as against B &a well as C, even though the Land Acquisition Judge was a Special Judge who would have had no juris diction to try the subsequent suit; (ii)that the rule of res judicata was applicable even though the subject matter of dispute in the land acquisition proceedings was the compensation money and not the property which was in dispute in the subsequent suit ; (iii)the fact that the mortgagee did not appear at the hearing before <ORG> was immaterial as the judgments in the first two courts were given after full contest. <CITATION>  49 I.A. 129, and <CITATION>  66 I.A. 14 applied. JUDGMENT:

CIVIL APPFLLATE JURISDICTION: Civil Appeals Nos. 110 and 111 of 1951. Appeals from the Judgment and Decree dated May 6, 1946, of <ORG> (<NAME> and <NAME> <NAME>.) in Original Decree No. 43 of 1942 with Civil Rule 399 of 1945, arising out-of Judgment and Decree dated June 30, 1941,, of <ORG>, 24 Parganas, in Title Suit No. 63 of 1938.

<NAME> (<NAME> and <NAME>, with him) for the appellants in Civil Appeal No. 110.

<NAME> (<NAME> and <NAME>, with him) for Respondents Nos. I (a) and 1

(b) in Civil Appeal No. 110 and the appellants in Civil Appeal No. I I I.

<NAME> (guardian ad litem) for responded No. 5 (3) in Civil Appeal No. 110 and No.4 (3) in Civil Appeal No. 111, 1952. October27. The Judgment of the court wag delivered by <NAME> connected apeals from the judgment and decree of <ORG> at Calcutta in appeal from Original Decree No. 43 of 1942 dated the 6th May, 1946, arise out of Title Suit No. 63 of 1938, instituted the 21st September, 1938, in <ORG>, by <NAME> against the Sens and the <NAME> for possession of the properties which represent a four anna share of the estate once held by one <NAME>.

the 8th June, 1870, two days before his death, <NAME>, a Hindu inhabitant of the town of Calcutta governed by the Bengal School of Hindu law, executed a will giving authority to his widow <NAME> to adopt a son and appointed her and three other persons as executors and trustees of the estate and gave them elaborate directions for the administration and distribution of his extensive properties. <NAME> was one of those persons who believe 0in leaving detailed instructions about their property and the manner in which it is to be managed and taken after their death and expect their wishes to be dutifully carried out by those who survive them. How his wishes have been respected by his descendants is now a matter of history. Since the year 1890 this is the eighth or ninth litigation concerning the construction of the testament he made that fateful &ay, and if by any means <NAME> could be informed of the result of these litigations and was told that it had been held that he had died intestate, he would surely rise out of the ashes and lodge an emphatic protest against what has happened.

<NAME> died the 10th June, 1870, leaving him surviving his widow <NAME> and three grandsons, who were sons of a predeceased daughter by another wife and one of whom died in 1880 unmarried. The grandsons' line will be referred to in this judgment as the <ORG>. On <NAME>'s death, <NAME> entered into possession of the estate and adopted one <NAME> in 1873 under' the authority conferred her. <NAME> married <NAME>, and <NAME>, the plaintiff in the suit out of which these appeals arise, is their only child. She was less than one year old when <NAME> died in 1886. Shortly after the death of <NAME>, <NAME> adopted <NAME>, a brother of <NAME> in further exercise of the authority conferred her. <NAME> died in 1899 and the <ORG> then appeared to have taken possesion of the estate. During the lifetime of <NAME>, the two grandsons commenced a suit 22nd July, 1890, against <NAME> and the other executors then living, <NAME> and <NAME>, for a declaration of the rights of the parties under the will, administration of the estate, accounts and a declaration' as regardit their quarter share of the net income. <NAME> declared that the grandsons were entitled to an onefourth share of the estate absolutely and directed accounts to be taken. This declaration was granted against <NAME> alone, the suit having been dismissed against the other defendants. The two grandsons having taken possession of the whole estate after the death of <NAME>, <NAME> brought a suit the 9th October, 1901, against them and <NAME> for construction of the will and a declaration that he was the duly adopted son and heir of <NAME> and that as such, he was entitled to a three- fourth share of the estate and the <ORG> were entitled only to the remaining one-fourth share. By a judgment dated 5th January, 1903, the trial court dismissed the suit the view that under the will the first adopted son had acquired an absolute right, Pitle and interest.in the share -of the estate left by the will of his adoptive father and he having left a widow and a daughter, <NAME> had no authority to make a second adoption. This decision was affirmed appeal. [<NAME> v. <NAME>)]. 13th January, 1903, eight days after the decision -of the trial, court dismissing <NAME>'s suit, (I) (1905) I.LR. 32 Cal. 361 <NAME> commenced suit No. 11 of 1903 against the <ORG>, <NAME> and the receiver appointed in <NAME>'s suit, for construction of the will, declaration of title, partition and accounts. In, the plaint as originally filed, <NAME> admitted the title of the <ORG> to an one-fourth share of the estate and claimed only a three-fourth share for herself as the widow of <NAME>. The <ORG> claimed the whole estate for themselves as the heirs of <NAME>. They pleaded that the will was not genuine and that even if it was genuine, the bequests in favour of the adopted son and for the worship of the deity were invalid and that even if they were valid, <NAME> having died before attaining the age of 20 years had taken nothing under the will.

During the pendency of this suit, the 25th September, 1903, the <NAME> mortgaged the whole sixteen annas of the estate to one <NAME> in order to secure a loan of Rs. 7,000. The mortgagee and his representatives in interest will be described in this judgment as the <NAME>. <NAME>'s appeal against the judgment of the trial court dated 5th January, 1903, was decided in 1905, during the pendency of <NAME>'s suit No. 1 1 of 1903 instituted the 13th January, 1903, and after the <NAME> as mortgagees had entered into possession. the 26th September, 1905, after the decision of <ORG> in <NAME>'s suit, <NAME> applied for an amendment of the plaint so as to include a claim for the whole estate in accordance with that decision. This application was allowed. To this amended plaint no further written statement was filed by the <NAME>. By a judgment dated 21st December, 1905, the trial Judge decreed the claim of <NAME> for,the whole of <NAME> estate and a decree for recovery of possession of the whole estate was passed in her favour. It was held that the whole of the corpus of the estate had vested in <NAME> and the provisions of the will whereby a fourth-share had been bequeathed to the grandsons were void and ineffectual. The plea of adverse possession and limitation taken by the <NAME> was abandoned at the trial, Against this decision an appeal was taken to the District Judge. The mortgagee <NAME> was also added as a party in the appeal. The appeal was compromised and under the compromise <NAME> was to get a six anna share in absolute right in the estate, <NAME>, her father, was to get another six anna share for his supposed troubles and expenses in connection with the litigation and each of the <ORG> a two anna share, their shares to be subject to the mortgage. charge. The compromise decree was passed 9th January, 1907, and the suit was remanded to the trial court in order that a partition might be effected and a final decree passed. A partition was made in due course and final decree was passed 10th September, 1907.

On the 18th April, 1907, after the consent decree had been made by the appellate court in <NAME>'s suit, <NAME>, daughter of <NAME> and the next reversioner to the estate of <NAME>, commenced suit No. 59 of 1907 'against the parties to the compromise for a declaration that the compromise and the consent decree were void and inoperative and that they were not binding her. The trial court held that the compromise was binding <NAME> but that she was entitled to a declaration that <NAME> had taken only a widow's estate 'in the six annas share given to her. appeal by <NAME>, <ORG> 8th August, 1910, reversed the trial court's decree and declared that the consent decree was void and inoperative as against <NAME> and that she was in no way bound by the partition proceedings which had taken place in execution thereof. The appeal was not contested by the <ORG> but was contested by the representatives of their mortgagees (the Dasses) who asserted the title of their mortgagors to an one fourth- share of the estate both under the compromise decree and the will. ( <CITATION> (1). In the year 1919, two cross suits were commenced by the grandsons and by <NAME> and <NAME> (I) (1911) I.L.R 38 Cal. 639.

for recovery of the twelve <ORG> share and the four <ORG> share respectively in the possession of the respective parties. <NAME> brought suit No. 115 of 1919 for recovery of the four anna share against the Sens and the <NAME>, while the Sens brought suit No. 112 of 1919 for recovery of the twelve <ORG> share of the estate against <NAME> and <NAME>. Both these suits were dismissed by the trial judge and his decision was affirmed appeal 21st July, 1925. Before the commencement of this suit, the <NAME> had brought a suit the foot of their mortgage and had obtained a mortgage decree which was made final 23rd November, 1918.

The property described as 2, Deb Lane, Calcutta, forming part of <NAME> estate and which had' been allotted under the compromise to the share of the <NAME> was notified by a declaration under the Land Acquisition Act for acquisition the 16th January, 1921. the 27th April, 1928, <NAME>, mortgagee, made an application' claiming the entire amount of compensation money and contended that the mortgagee decree-holders were entitled to the whole of it. <NAME> claimed the entire amount as owner of the sixteen anna share of <NAME> estate. the 7th July, 1928, a joint award was made in favour of 'all the claimants. <NAME> asked for a reference to the court the point of apportionment of compensation by a petition made by her the 18th July, 1928. She asserted that the <NAME> and the <NAME> were not entitled to any portion of the compensation money. <NAME>, mortgagee, also made an application for reference the 18th August, 1928. A similar petition was made by <NAME>. <NAME> filed a statement of the claim 8th June, 1929. A special judge was appointed under the Land Acquisition Act to try the matter. He disallowed <NAME>'s claim and held that the <NAME> were entitled to the entire compensation money. Both the <NAME> and the <NAME> were represented by their respective counsel and made common cause against <NAME>.

<NAME> appealed to <ORG> against the decision of the special judge but without any success. Her appeal was dismissed 8th March, 1935. She preferred an appeal to <ORG>. This was allowed and <NAME> was declared entitled to the entire compensation money. ( <CITATION> ) (1).

Within two months of the decision of <ORG>, the suit out of which these appeals &rise was commenced, as already stated, by <NAME> 21st September, 1938, against the <NAME> and the Dsses for possession of the properties which represented the four anna share of the estate allotted to the <NAME>, and possession of which was delivered to them in pursuance of the terms of the final decree in suit No. 11 of 1903. A portion of these had since then been purchased by the Dasses in execution of the mortgage decree. This suit was dismissed by the trial judge. <NAME> appealed to <ORG> against the dismissal of her suit. <ORG> allowed the appeal in part, the judgment and, decree of the trial court in so far as they dismissed the plaintiff's suit as against the <NAME> were set aside and the suit was decreed against them and the plaintiff's title to the properties in suit was declared as against them. It was ordered that she should recover possession from them, as also from defendant 14 as receiver but that her title and possession were subject to the rights of the defendants-respondents 3 to 13 (Dasses) to proceed against the properties in execution of their mortgage decree the basis that these properties were in the possession of and dealt with by defendantsrespondents 1 and 2 as representing the four anna share of the estate to which they had title. An enquiry was also ordered as to the amount of the mesne profits. The appeal was dismissed as against respondents 3 to 13, the Dasses. The correctness of this decision has been impugned before us in these appeals by the respective parties to the extent that it goes against them.

(I) (1938) 65 I.A. 365.

In order to appreciate the contentions raised in the two appeals it is necessary to determine the true scope and effect of the decision of <ORG> in the land acquisition case of 1928 ( <CITATION> ) (1). The premises acquired in those proceedings admittedly formed Part of the estate of <NAME>, which under the compromise decree of 1907 had by partition fallen to the four anna share allotted to the <ORG>. There was a triangular contest about the award of the compensation and a joint award was made in their favour after notice to all the parties interested in the property acquired including the mortgagees. That the mortgagees were within the definition of the phrase " person interested" is plain from the language of section 10 of the Act and perhaps it would have been unnecessary to mention this elementary fact by reference to the provisions of the Act had not <ORG> thought otherwise. As already stated, the <ORG>, the <NAME> and <NAME> required the question of apportionment of compensation to be referred to the determination of the court and they stated the grounds which their claims were based. The dispute that arose between the parties is apparent the face of those proceedings and in the words of Lord <NAME> who delivered the decision of the Board, the matter in controversy was whether <NAME> was entitled to the compensation money awarded in respect of the acquisition of part of the premises, 2 Deb Lane, in the town of Calcutta as successor to the estate of <NAME> of which the said premises formed part. The claim to compensation made by the respective parties was founded the assertion of their respective titles in that part of <NAME> estate which under the partition decree of 1607 had been allotted to the <ORG> subject to the charge of the <NAME>, and the decision the question of apportionment depended the determination of that title. The land acquisition court had thus jurisdiction to decide the question of title of the parties in the property (I) (1938) 65 I.A. 365.

acquired and that title could not be decided except by deciding the controversy between the parties about the ownership of the four anna share claimed by the <ORG> and <NAME>.

<ORG> and the <ORG> appeal held the title of the four annas share proved in the <ORG>. But their Lordships of <ORG> held otherwise and found that the <ORG> had no such title, and that <NAME> alone was entitled to the whole of the estate of Raj Ballav Seat including the four anna share that was in possession of the <ORG> and which their mortgagees had a charge. This is how their Lordships settled the matter in controversy:- "It is important to get a clear view of the position of the estate after the decision of the <ORG> of 8th August, 1910, the effect of which (inter alia) was to annul the consent decree of <ORG> in No. 11 of 1903, and to leave the decree of the Subordinate Judge, dated December 21, 1905, which has been already quoted, as final and binding. This decree declaring <NAME>'s title to the whole estate, was clearly a decree in <NAME>'s favour as representing the whole interests in the estate, and it has rightly been so regarded by both the courts below in the present case; and it formed res judicata in any I question with the <ORG>. As regards possession of the estate, while the decree made an order for recovery of possession, the possession given under the partition of 1907 continued, the <ORG> being in possession of the four annas. It seems clear that possession under an agreement which was not binding the reversionary heirs could not avail the <ORG> in a question with a reversionary heir, whose right to possess could not arise until the succession opened to such heir." The above is a clear determination of the question of title between the <ORG> and <NAME> in regard to the four anna share. It was argued behalf of the <ORG> before <ORG> that in any case the decision in suit No. 115 of 1919instituted by <NAME> against the <ORG> and their mortgagees for recovery of the four anna share operated as res judicata the claim of <NAME>. This plea was Inegatived and it was held that the decree in suit No. 115 of 1919 could not and did not affect <NAME>'s right to possession. There can thus be no doubt that the determination of the question of title to this part of <NAME> estate was within the scope of the land acquisition proceedings and the title was finally determined in those proceedings.

In order successfully to establish a plea of res judicaia or estoppel by record it is necessary to show that in a previous case a court, having jurisdiction to try the question, came to a decision necessarily and substantially involving the determination of the matter in issue in the later case. It was at one time a matter of doubt whether the determination of a court to which a matter had been referred by the collector was such a decision and that doubt was resolved by the judgment of <ORG> in <NAME> v. <NAME>), which decided that where a dispute as to the title to receive the compensation had been referred to the court, a decree thereon not Appealed from renders the question of title resjudicata in a suit between the parties to the dispute. In that case it was observed as follows:-

"<ORG> appear only to have regarded the matter as concluded to the extent of the co'mpensation money, but that is not the true view of what occurred, for, as pointed in <NAME> v. <NAME>) it is not competent for the court, in the case of the same question arising between the same parties, to review a previous decision no longer open to appeal, given by another court having jurisdiction to try the second case. If the decision was wrong, it ought to have been appealed from in due time. Nor in such circumstances can the interested parties be heard to say that the value of the subject-matter (1) (1922) 49 I.A. 129.

(2) [1909] A.C. 623.

which the former decision was pronounced was comparatively so trifling that it was not worth their while to appeal from it. If such a plea were admissible, there would be no finality-in litigation. The importance of a judicial decision is not to be measured by the pecuniary value of the particular item in dispute. It has been suggested that the decision was not in a former suit, but whether this were so or not makes no difference, for it has been recently pointed out by this Board in <CITATION> (1) that the principle which prevents the same matter being twice litigated is of general application, and is not limited by the specific words of the Code in this respect." In <NAME> v. <NAME>) an issue was decided in favour of B in a land acquisition proceeding that she was entitled to the whole of the compensation money. In a subsequent suit by another widow, who was also a claimant in the land acquisit ion proceedings, for a declaration that she was entitled to a half share in the estate inherited by her- husband and his brothers, it was held that her suit was barred by the rule of res judicata, the District Judge having in the previous proceeding decided that she had no title to the land. In that case part of the property in dispute was, acquired under the Land Acquisition Act and the Collector by his award apportioned the compensation between the widows in equal shares. Both the widows raised the question of title to the compensation. The objections were referred under the Act to the District Judge and the District Judge the issue as to whether <NAME> was entitled to the entire compensation or whether <NAME> was entitled to a half, found in favour of <NAME>. <NAME> then brought a suit' against <NAME> for a declaration of her right to a half share of the whole of the property inherited by the brothers and their mother. The Subordinate Judge held that the suit was barred by res judicala by the decision of the District Judge in the reference under the Land Acquisition Act . <ORG> (1) (1921) 48 I.A. 187.

(2) (1939) 66 I.A. 145.

reversed this decision holding that <NAME> title ,was not the subject-matter of the reforence to the ;District Judge and he was not therefore competent to try it. <ORG> reversed this decision and held that the District Judge did determine the question of the ownership and his decision was binding upon the parties and the-matter was res judicata.

These two decisions, in our opinion, are conclusive the point of resjudicata raised in the present case and in these circumstances it has to be hold that the question of title to the four anna share was necessarily and substantially involved in the land acquisition proceedings and was finally decided by a court having jurisdiction to try it and that decision(thus operates as res judicata and estops the Sens @ and the mortgagees from re-agitating that matter in this suit. We are not now concerned with the question whether <ORG> was right or wrong.

<ORG> held that there can be no question that this decision is binding the <ORG> and concludes them the question of their title as against <NAME> and that there could be no question also that it is binding the mortagees who were parties to the proceeding. In the concluding part of the judgment they observed as follows -- "Our conclusion, therefore, is that there is nothing in the decision of <ORG> which can operate as res judicata against the <ORG>, either directly or constructively, the question of the title of the <ORG> to the mortgaged properties. They are bound by the decision so far as it goes: just as the <ORG> can no longer say that the decision in suit No. 11 ,is not res judicata against them in a question with the plaintiff, both as regards title and the right to possession,so cannot the <ORG> say that the decision is not res judicata against the <ORG>. But their own right to prove the title of the <ORG> against the plaint- iff is in no way affected. This may look anomalous, 'but such anomaly is -inherent in the doctrine of res judicata which does not create or destroy title but is only a rule of estoppel,"

With great respect it seems to us that the, conclusion reached as regards the mortgagees is neither illuminating nor sound. The anomalous result arrived at is account of a wrong approach to the solution of the problem and is not the result of any anomaly inherent -in the doctrine of res judicata. The learned Judges posed certain questions and then attempted to answer them in view of the limited provisions of section 11 , Civil Procedure Code, which in terms apply only to suits, forgetting for the moment, if we may say so with respect, that the doctrine of res judicata is based general principles of jurisprudence. The questions were: (1) Did the judgment of the Privy Council in the 1928 land acquisition proceedings decide any question as to the right of the mortgagees to hold from the <ORG> a mortgage of the four anna share, or their right to prove the title of their mortgagors in a question between themselves and the reversioners to <NAME>'s estate ? (2) Could the mortgagees have raised these questions in the land acquisi- tion proceedings and even if they could have, are the questions such that they ought to have been raised? It is difficult to appreciate how both these questions were germane to the issue to be decided in the case. Here it is worthwhile repeating what was said by Sir <NAME> in delivering the judgment of the <ORG> in <NAME> v. <NAME>):"

`` In view of the arguments addressed to them, their Lordships desire to emphasize that the rule of res judicata while founded ancient precedent, is dictated by a wisdom which is for all time. 'It hath been well said' declared Lord <NAME>, 'interest reipublicaeut sit finis litium- otherwise, great oppression might be done under colour and pretence of law' (6 <NAME> 9a). Though the rule of the Code May be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. <NAME> and <NAME> include the plea of a former judgment among those allowed by law, each citing for this purpose the text of

(i) (1916) 43 I.A. 91 at p. 98 <NAME> who describes the plea thus: If a person, though defeated at law, sue again, he should be answered, "you were defeated formerly". This is called the ple a of former judgment. And so the application of the rule by the courts in India should ,',be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law."

The binding force of a judgment delivered under the Land Acquisition Act depends general principles of law and not upon section 11 of the Act. If it were not binding, there would be no end to litigation, The- mortgagees had been fighting about the title of the mortgagors from - the year 1910. When <NAME> lost her suit instituted 18th April, 1917, to contest the compromise decree in suit No. 59 of 1907 and preferred an appeal to <ORG>, that appeal was not contested by the <ORG> at all, but was contested by the representatives of their mortgagee who asserted the title of the mortgagors to one-fourth share of the estate both under the compromise decree and under the will. In the year 1919 when the two cross suits above mentioned wore commenced, the mortgagees were impleaded as parties and took an active interest in the cases. When the proceedings under the Land Acquisition Act were commenced in the year 1928 a joint award was made in their favour along with the <ORG> and <ORG>. As parties interested in the property acquired they asked for a reference and gotit. They were represented by counsel before the land acquisition court and got a decision the question of title as to the four anna share of the estate of the late <NAME> in favourofthemortgagorsandthemselves. They were impleaded as parties in the appeal preferred by <NAME> to <ORG> and before that court also they were represented by counsel and were successful in defending that appeal. They were again impleaded as parties by <NAME> in the appeal preferred by her to <ORG>. They took active part in the proceedings for leave to appeal and in having the papers prepared for the use of <ORG>. As a matter of fact, they paid part of the printing cost. Their non-appearance before <ORG> at the time of hearing cannot thus relieve them of the consequence of an adverse decision given against them by, <ORG>. They had every, right in those proceedings to defend the title of their, mortgagors to the four anna share and they fully exercised their right except that at the last stage, possibly having won in the two courts below, they assumed that the decision in the final court would also be favourable to them and did not appear before <ORG>. It had been held in a number of cases prior to the amendment made in section 73 of the Transfer of Property Act by Act XX of 1929 that where the property acquired forms part of an estate which is mortgaged for an amount larger than the amount awarded as compensation, the mortgagee is entitled to the whole of the compensation in liqcuidation of the mortgage debt. This view was accepted by the legislature when it added sub-sections (2) and (3) to section 73 . Sub-section (2) is in these terms "Where the mortgaged property or any part thereof or any interest therein is acquired under the Land' Acquisition Act , 1894, or any other enactment for the time being in force providing for the compulsory acquisition of immoveable property, the mortgagee shall be entitled to claim payment of the mortgagemoney, in whole or in part, out of the amount due to the mortgagor as compensation."

In view of the provisions of sections 9 , 10 , 18 and 30 of the Land Acquisition Act, it is evident that if the mortgagee actually intervenes in the land acquisition proceedings and makes a claim for the compensation, and any question of title arises about the right of the mortgagor in respect to the land acquired which affects the claim for compensation, he has every right to protect that title. In the proceedings commenced in 19<ORG>8 for the acquisition of <ORG>, Deb Lane, Calcutta, as already stated, the mortgagees actually intervened and defended the title of their martgagors but without success. In those circumstances the view taken by <ORG> that they-had no locus standi to make the claim, as it was not based their own title cannot be sustained because a mortgagee has no other title than the title of his mortgagor. The judgment of <ORG> when it says that the Dasses claimed it the footing that they being; creditors of the <ORG>, with a lien the property, were entitled to receive the money towards the satisfaction of their debt and their claim therefore was not a claim of title, but only- a claim to receive the compensation money, is clearly erroneous as the claim could be established only by proving the title of their mortgagors as against <NAME>. We have further not been able to follow the judgment of <ORG> when it says that the and acquisition court must be presumed to have dismissed the mortgagees' claim the proper and legal ground that the mortgagees being mere mortgagees had no locus standi to lay claim for the compensation money. It would have been more accurate if it was said that the land acquisition court having held the title of the <ORG> proved to the premises acquired, presumed that the compensation money to which the <ORG> were entitled would be paid in due course to their mortgagees as both of them were sailing together and had a common cause against <NAME>. <ORG> further observed that the mortgagees were bound by the decision of <ORG> so far as it goes against them. We are not able to see to which part of the decision this remark relates. The only decision that <ORG> gave was the question of the title of the <ORG>. The award of compensation to <NAME> was a mere consequence of it, and if the <ORG> had no title in the four anna share of <NAME> estate, the mortgagees obviously can have no lien any part of the property included in that share. The strangest part of the judgment of <ORG> is when it says that the right of the Dasses to prove the title of the <ORG> against the plaintiff was in no way affected by <ORG> decision.

,It seems to have lost sight of the fact that that right was advanced by the <NAME> more than once. It was exercised by them in the litigation of the year 1907 which ended in the decision of <ORG> in 1910. It was exercised by them in the 1919 litigation and was again exercised by them in the land acquisition proceedings of 1928. In these circumstances it appears to us that they had no further right left to establish the title of their mortgagors in the four anna share of <NAME> estate claimed by them. It may be pointed out that the mortgagees having got a decision in their favour from <ORG>, absented themselves before us. One of the representatives of the original mortgagees, <NAME>, is a minor and was represented by a guardian ad litem appointed for the suit in the court below. He appeared and contested the appeal and urged that the mortgagees had no interest whatever in the property acquired and that they were interested only in realising their debt. This contention is directly opposed to the provisions of section 58 of the Transfer of Property Act and the clear provisions of section 73 which only states the law that prevailed even before then. The result is that we are of the opinion that <ORG> was in error in holding that the decision of <ORG> in the land acquisition case of 1928. was not binding the mortgagees the question of the title of the <ORG> to the four anna share of <NAME>. estate as against <NAME>. Mr. <NAME> for the. <ORG> made a valiant effort to escape from the effect of <ORG> judgment in <NAME> v. <NAME>) a number of grounds. None of his arguments, however, was convincing and might well have been summarily ,rejected but we think that it is due to Mr. <NAME> and ,his long standing at the <ORG> that the arguments are noticed and met.

The first contention raised by :him was that the judgment of <ORG> could not operate as

(i) [1938] 65 I.A. 365.

res judicata against the present contention of the <ORG> and the mortgagees,about the title to the four anna share of <NAME> estate, because the subject matter of those proceedings was the compensation money, a sum of Rs. 900, and not the property that is the subject-matter of the present suit. He argued that when the plea of res judicata is founded general principles of law, that plea can only prevail provided the subject-matter in the two cases is identical. It was conceded that such contention could not be sustained under the provisions of section 11 of the Code. In our opinion this argument is untenable and was negatived by their Lordships of <ORG> in <NAME> v. <NAME>), cited above, in clear and emphatic terms. In that case, in a regular suit which concerned the rest of the property the plea of res judicata was upheld by reason of the decision in the land acquisition case which concerned another part of the property which had been acquired and for which compensation was payable. The quotation already cited earlier from this decision brings out that point clearly. The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases.

It was then argued by Mr. <NAME> that the judge who decided the apportionment issue in the land acquisition proceedings of 1928 was a special judge appointed under the Land Acquisition Act and not being a District Judge, the two decisions of <ORG>., i.e., <NAME> v. <NAME>) and <NAME> v. <NAME>), had no application, as the special judge had no jurisdiction to hear the present suit, while the District Judge in those cases would have jurisdiction to hear the regular suits. It was urged that to substantiate the plea of resjudicata even general principles of law it was necessary that the court that heard and decided the former case should be a court competent to hear the subsequent case. This contention was based the language of (I)  66 I. A. 145.

(2) [1922] 49 I.A. 129.

section 11 . The condition regarding the competency of the former court to try the subsequent suit is one of the limitations engrafted the general rule of res judicata by section 11 of the Code and has application to suits alone. When a plea of res judicata is founded general principles of law, all that is necessary to establish is that the court that heard and decided the former case was a court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata general principles can be successfully taken in respect of judgments of courts of exclusive jurisdiction, like revenue courts, land acquisition courts, administration courts, etc. It is obvious that these courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred them by the statute. We have not been able to appreciate the distinction sought to be made out by Mr. <NAME> that had this matter been decided by a District Judge, then the decision of <ORG> would have been res judicata but as it was decided by a special judge the effect was different. The District Judge when exercising powers of a court under the Land Acquisition Act , in that capacity is not entitled to try a regular suit and his jurisdiction under the Land Acquisition Act is quite different from the jurisdiction he exercises the regular civil side. Next it was urged that the decision given by <ORG> was ex parte, and it had not the force of res judicata unless the subject-matter of the two proceedings was identical. Reliance for this proposition was placed certain observations contained in the decision of <ORG> in <ORG> Co. v. <ORG>). in that case a view was expressed that in the case of a judgment in default of appearance, a defendant is only estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment, and it (I) (1939] A.C. I.

was said that if a Writ is issued for a small claim, the defendant may well think it is better to let judgment ,go by default rather than incur the trouble and expense of contesting it and that in such cases the default judgment one bond cannot be used as governing the construction of 992 other bonds even if identical in tenor as it would involve a great hardship were the defendat precluded from contesting the later case. These observations have no apposite. application to the circumstances of the present case where the judgments of the first two courts were given after full contest and then a party defaulted in appearing before <ORG> after having obtained judgment in his favour in the courts below.

A now point was taken for the first time before us which had not been taken in express terms in the written statement and which had not been argued either before the Subordinate Judge or before <ORG>. The point was that the present suit of <NAME> was barred by section 47 , Civil Procedure Code, inasmuch as she obtained a decree for possession of the whole estate including the four anna share now in dispute in her suit No. II of 1903 and having obtained a decree for possession, her remedy to recover possession of that share along with the twelve anna share was by executing that decree and not by a separate suit. , The plea has no substance in it. The decree given in suit No. 11 of 1903 became unexecutable by reason of the compromise arrived at in appeal in that case in 1907, which compromise was given full effect by actual partition of the property. When that, decree was declared null and void at the instance of <NAME>, it still remained binding inter partes during the lifetime of <NAME> and that was the reason why <NAME>'s suit brought in 1919 for recovery of possession of the four anna share was dismissed. That suit, however, was held to have been instituted by <NAME> for protection of her personal rights and not as a representative of <NAME>'s estate. It was for this reason that <ORG> in, the 1928 land acquisition case held that it had not the effect of res judicata <NAME>s suit claiming title in the four anna share of <NAME> estate which under the partition decree had gone to the Sens. <NAME> in view of the compromise decree had no right to execute the decree as a different situation had arisen after the decree had been passed. She had a fresh cause of action' to bring a new suit for possession by setting aside the compromise. This she did but failed. As against Raj- lakshmi the plea of section 47 in these circumstances can have no validity. Even as against <NAME> it was untenable-and it seems it was for this reason that this plea was never taken either in the earlier suit of 1919 or in the present suit. For the reasons given above this contention of Mr. <NAME> also fails.

Mr. <NAME> raised a question of limitation and urged that <NAME>'s suit was barred by time inasmuch as the cause of action to sue for possession of the four anna share accrued to <NAME> and he having failed to file a suit, both <NAME> and <NAME> must be taken to have lost the title to the part of the property in the possession of the Sens. The premises which this contention is based is erroneous. <NAME> died long before the Sens took possession of the property and therefore <NAME> before his death had no cause of action against the Sens to eject them as they were not in possession. the other hand, the trustees were holding the property his behalf. The pleas of limitation and adverse possession were abandoned by the Sens a former occasion, as already stated in the earlier part of this judgment, and they were negatived by <ORG> in the land acquisition proceedings. It is evident that the possession of the Sens during the lifetime of <NAME> could not confer any title them as against <NAME>, the next reversioner, whose title to the estate could only arise the death of <NAME>.

For the reasons given above we hold that the appeal (No. 111 of 1951) preferred behalf of the <ORG> has no merits and must fail. It is accordingly dismissed with costs. The appeal preferred by <NAME> against the mortgagees '(No. 110 of 1951) is allowed with costs in all the courts and her title to the property in suit and for possession of the f same is decreed and it is directed that the defendants do deliver Possession of the suit properties to the plaintiff. It is further declared that the plaintiff is entitled to <ORG> profits from the defendants. An enquiry will be made as to the amount of <ORG> profits due prior and-subsequent to the institution of the suit and there will be a decree for the amount so determined.

In conclusion we do express the hope that this judgment will finally conclude the ruinous litigations which have-been going in courts since the last 62 years in respect of <NAME> estate and ingenuity of counsel will no longer-be pressed into service to again reopen questions which must now be taken as finally settled.

Appeal No. 110 allowed. Appeal No. 111 dismissed. Agent for the appellants in C. A. No. 110 and respondent No. Agent for respondents Nos. 1 (a) and (b) in C.A. No. 110 and appellants in C. A. No. Ill: <NAME>.