JUDGMENT <NAME>, J.

1. In this batch of writ petitions under article 226 of the Constitution, the petitioners challenge the validity of the orders made by the Commissioner of Income-tax under section 263 of the Income-tax Act, 1961, for short "the Act".

2. The facts in all these cases are similar and, for the sake of convenience, I set out those leading up to the petition in W.P. No. 6660 of 1974. The petitioner herein is a lady. She filed voluntary returns of income for the assessment that it was her previous savings inclusive of the gifts given to her at the time of her marriage. She was not assessed to tax previously. Along with the returns of income she filed a letter dated October 20, 1972, which reads as follows :

"With reference to the above, I beg to request you that out of my previous savings I am now having cash of Rs. 31,500 with me and that I may be assessed as under :

Y.E. Asst. Year : Rs. 21-10-68 69-70 7,500 9-11-69 70-71 7,800 30-10-70 71-72 8,000 19-10-71 72-73 8,200 ----------- 31,500 ----------- and have enclosed Form No. 3 for all the above 4 years. I have not been assessed to income-tax anywhere in India and have submitted the above 4 returns voluntarily." On October 25, 1972, she submitted another letter stating thus :

"In continuation of my letter dated October 20, 1972, I write to inform you that my father at the time of marriage paid the cash to me. Subsequently I used to lend this privately and I earned interest. Thus, all the cash of Rs. 31,500 is now offered for assessments. I have no documentary evidence to prove the same. My husband, <NAME>, is an assessee and paying income-tax. I further state that no part of this amount has been received from my husband."

3. While accepting the returns, spot assessments were made by the Income-tax Officer spreading over the income for the assessment years 1969-70 to 1972-73 as desired by the petitioner. Large number of similar assessments were made on other assesses. Thereafter, it was brought to the notice of the Commissioner of Income-tax that the income of these assesses has been invested in the business of their husbands. In the enquiry made, it was discovered that the assesses during the relevant period of assessment had no business of their own, much less any money-lending business.

4. The Commissioner issued a notice dated October 14, 1974, calling upon the petitioner to show cause why the assessments should not be set aside with a direction to the Income-tax Officer to re-do the same in accordance with law. On October 18, 1974, the petitioner filed her objection raising various contentions. After hearing the petitioner and considering her contentions, the Commissioner formed prima facie opinion that the returns filed by the assessee did not disclose her circulating capital for any of the five years and there was no evidence that she was engaged in the money-lending business. He further observed thus :

"Any Income-tax Officer who does his duties diligently would have sat up, on reading the assessee's letter and seeing the assessee's returns and would have made elementary enquiries to satisfy himself that there was a business done by the assessee and there was income earned from it as alleged. That he did not so and misdirected himself in accepting the returns under section 143(1) without the basic necessaries prescribed thereunder is enough to establish prejudice to revenue. The subsequent enquiries, as already stated, only confirmed what should have occurred prima facie to any diligent and industrious Income-tax Officer doing his functions without haste and with due deliberation. The result of these enquiries have no doubt been put in my notice to the assessee, but they do not form the sole basis for prejudice. Prejudice can be easily deduced on the facts of her record from the very returns filed by the assessee and the impossible explanations given in her letter and the fact that the assessments were completed in great haste without any enquiry being made in a new case and on the very next day the returns of income were received for the assessment years 1969-70 to 1972-73;

5. With that conclusion, the Commissioner set aside the assessments in exercise of his powers under section 263 , with a direction to the Income-tax Officer to afford an opportunity to the assessee to prove her case and to make the assessments afresh according to law.

6. Though the order of the Commissioner related to the assessments made for the years 1969-70 to 1973-74, the petitioner has challenged the validity of the said order so far as it relates to the assessment for the year 1969-70 only.

7. In the writ petitions, the petitioners have stated that they gave no alternate remedy against the impugned orders except to approach this hon'ble court. It is an incorrect statement. The orders challenged in all these petitions were made by the Commissioner under section 263 of the Act, and are appealable to the <ORG> under section 253(1)(c) of the Act. The Act provides a complete and self-contained machinery for obtaining relief against improper action taken by the departmental authorities, and normally a party who is aggrieved by such action should have recourse to that machinery. It is only where the action complained of is, on the face of it, erroneous for want of jurisdiction or impairs the fundamental right of a person, this court entertains a petition under article 226 and not otherwise. I do not think that the case on hand falls within any one of these principles. However, I proceed now to examine the validity of the contentions since counsel on both sides wanted a decision on merits, as there are similar cases still pending before the Commissioner.

From the contentions urged, the primary question that falls for decision is whether the Commissioner was justified in invoking his power under section 263 of the Act. Section 263 , so far as it is relevant, provides :

"263. (1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or canceling the assessment and directing a fresh assessment.

(2) No order shall be made under sub-section (1)

(a) to revise an order of reassessment made under section 147 , or

(b) after the expiry of two years from the date of the order sought to be revised."

<CITATION> , while dealing with the scope of the above section, the present learned Chief Justice of this court observed :

"The section requires that two conditions should be satisfied in order to entitle the Commissioner to set aside an order passed by the Income-tax Officer. The said conditions are : (1) that the order proposed to be revised is erroneous; and (2) that such order has resulted in prejudice to the interests of the revenue. The satisfaction of these two conditions is essential for setting aside the order proposed to be revised."

8. Relying on the above decision, Mr. <NAME>, learned counsel for the petitioners, submitted that the assessments revised by the Commissioner could not be said to be erroneous and prejudicial to the interests of the revenue, and, therefore, he was in error in setting aside the said orders.

9. I cannot accept the contention. In all these cases the assessments were made in undue haste and without any enquiry or evidence. The petitioners were all new assesses filing returns without any accompanying statements of their income or the interest earned by the alleged money lending transactions, or the particulars of the gift said to have been received from their relatives to build up their circulating capital. The Income-tax Officer chose to complete the assessments without making any enquiries on those matters, spreading over the income disclosed for the past four assessment years. Assuming that the income disclosed belonged to the assessee, there was no reason why it should be spread over for the past assessment years, and why it should not have been assessed for the current year in which the returns were filed. The assessments made without such enquiry and evidence, in my view, are doubtless erroneous and prejudicial to the interests of the revenue.

10. Section 263 of the Act is analogous to section 33B of the Indian Income-tax Act, 1922. While dealing with the scope of the latter, the supreme Court in Smt. <NAME> v Commissioner of Income-tax observed that where an income has not been earned and is not assessable merely because the assessee wants it to be assessed in his\her hands in order to assist someone else who would have been assessed to a larger amount and rate of tax, the assessment so made will be erroneous and prejudicial to the interests of the revenue and that the commissioner of Income-tax seas jurisdiction to cancel the assessment. These principles are clearly attracted to the present cases.

11. Mr. <NAME>, however, contended that after the amendment to section 143 of the Act, the assessment in question, though made without any enquiry or evidence, cannot in any event be said to be erroneous, though it might be prejudicial to the interests of the revenue, since the Income-tax Officer could accept any voluntary return without requiring the presence of the assessee or the production by him of any evidence in support of the return, and he need not be satisfied about the correctness of the source of income..

12. Section 143(1)(a) as substituted by Act 42 of 1970 with effect from April 1, 1971 provides where a return has been made under section 139 , the Income-tax Officer may, without requiring the presence of the assessee or the production by him of any evidence in support of the return, make an assessment of the total income or less of the assessee after making such adjustments to the income or loss declared in the return as are required to be made under clause (b)........... and determine the sum payable by the assessee or refundable to him on the basis or such assessment. It is true that the Income-tax Officer need not have been satisfied that the voluntary return submitted by the assessee was correct and complete. He could accept the return of income as submitted by the assessee. But the income must be the income earned by the assessee in the relevant year. The Income-tax Officer has no power to assess the income of one person in the hands of another. To that extent at least, he must apply his mind and cannot blindly make the assessment while accepting the voluntary return. Since no such inquiry was made by the Income-tax Officer in all these cases, the assessments must be held to be prejudicial to the interests of the revenue, and what is prejudicial to the interests of the revenue must be held to be erroneous though the converse may not always be true. The Commissioner, in my view was, therefore, right in revising the assessment under section 263 of the Act.

13. The petitioners have not been prejudiced in any way by not disclosing to them the nature of the materials collected by the Commissioner behind their back. The Commissioner has directed the Income-tax Officer to make the assessments afresh according to law after making proper enquiries. The petitioners will have full opportunity of showing to the Income-tax Officer that the assessments earlier made were correct and the enquiries subsequently made were incorrect.

14. In the result, rules in these petitions are discharged, with costs. Advocate's fee Rs. 100. One set.


JUDGMENT Mitter, J.

1. The plaintiff is the patnidar of Pergunnah Batasone. The defendants Nos. 1 to 9 are the inhabitants of Roopsi, the defendants Nos. 10 and 11 are the inhabitants of Joroollahpore, and the defendants Nos. 12 and 13 are the inhabitants of Manipore. The villages of Roopsi, Joroollahpore and Manipore appertain to the zamindari of Pergunnah Batasone.

2. The plaintiff brought this suit praying for an injunction against the defendants to restrain them from fishing in certain bhils set out in the schedule to the plaint, and for a declaration that they had no right of fishing in the aforesaid, bhils.

3. The grounds of action stated in the plaint are, that the bhils in question appertain to the zamindari of Pergunnah Batasone, of which the plaintiff is the patnidar; that the plaintiff is in possession of the fishery right in the said bhils; that out of these bhils, bhils Kendra and others, named in the second paragraph of the plaint, were let out in ijara to Kholie Mahomed and <NAME> for three years, from 1283 to 1285 (1876 to 1878); that during the term of this ijara lease the defendants, in the months of Falgoon and Cheyt 1283 (February and March 1877), without the permission of the ijaradars, having caught and taken away fish from these bhils, the said ijaradars brought a suit for damages against them; that in that suit it was held by the Courts that the defendants, in common with the inhabitants of the villages mentioned above, had a prescriptive right to catch fish in these bhils, using for the purpose certain specified fish traps; that the defendants are still continuing to fish in these bhils in the manner stated above; that they have no right of fishing in these bhils, the julkur right in which is owned and held by the plaintiff.

4. The prayers mentioned above were based upon these allegations.

5. The defendants in their written statement stated that the plaintiff did not possess any julkur right in these bhils; that neither he nor his predecessor in title ever held the possession of julkur right in them; that the defendants and other tenants of Pergunnah Batasone and the tenants of Pergunnahs Koondi and others had been in possession of the aforesaid julkur right under an adverse title for more than twelve years; that the tenants of these pergunnahs had exercised their right of fishing in these bhils from time immemorial for generation after generation.

6. Upon these allegations the lower Courts substantially raised the following issues: (1st), Is the suit barred by limitation; (2nd), Has the plaintiff any right in the disputed julkur; (3rd), Have the defendants in common with the tenantry of pergunnahs Batasone, Koondi, etc., any right to fish in the disputed julkur; (4th), Whether the defendants, in common with the tenantry of Batasone, Koondi, and other pergunnahs have any prescriptive right to fish in these bhils.

7. The lower <ORG> have dismissed the plaintiff's suit. It is clear from the judgments that the plaintiff is the owner of the disputed bhils. This fact was admitted. The lower <ORG>, however, have laid some stress upon the fact which they find, viz., that the plaintiff does not pay the revenue of these bhils; but the fact that these bhils appertain to his zamindari being admitted, it seems to us incomprehensible how the lower <ORG> could come to the conclusion that no revenue was being paid for these bhils. The Sub-Judge refers to a <ORG> paper in support of this finding. We have referred to that paper, and it is clear to us that it does not afford any ground whatsoever for the conclusion based upon it. We must, therefore, decide this case, taking it as an admitted fact that the plaintiff is the owner of these bhils. The second issue may be, therefore, dismissed from our consideration.

8. The lower <ORG>, it seems to us, have dismissed this suit upon the first and the fourth issues. The Sub-Judge based his decision simply upon the plea of limitation; but the lower <ORG>, while concurring with the decision of the Sub-Judge on the question of limitation, has based his judgment also upon the ground of the defendants having established their right of fishing by prescription.

9. We are of opinion that the decisions of the lower <ORG> upon both these questions are erroneous. In order to determine whether the plaintiff's claim is barred by limitation or not, we must see what the finding of the lower <ORG> upon this point is. The Sub-Judge says:

10. "They (the defendants) have examined six witnesses, almost all of whom are aged between 50, 60, and 70 years, and prove beyond doubt that the defendants, including the people of the neighbourhood, have been fishing in the bhils from their infancy, their knowledge extending since they came to sense when they were seven or eight years old. It is also amply in evidence that there are shingadars in some of the villages adjacent to the bhils, who, by the sound of their instruments called shinga, would invite the people in the vicinity, who would then assemble together and join in a body to catch fish in the bhils, which the witnesses in this case have styled in the colloquial language the bowaet system of fishery." In order to ascertain clearly what this finding really amounts to, we have referred to the witnesses upon whom the Sub-Judge relies. They, without any special reference to the defendants in this case, prove that the tenants of the pergunnahs mentioned above have been in the habit of fishing in these bhils in the manner stated in the passage cited above. This does not, in our opinion, amount to a dispossession of the plaintiff, the owner of the bhils. It cannot be said that the defendants, upon the facts stated, above, are in wrongful possession of the bhils. Unless it can be shown that the acts of misappropriation of the fish were done by a person or defined number of persons, the acts of misappropriation, even if they have the effect of depriving the owner of a property wholly of its profits, would not constitute dispossession of the owner. Suppose from a field belonging to A, B and C carry away the crops raised by him in one particular year, D and E in the next year, and so on for any number of years--these acts can be only looked upon as mere trespasses, giving to A a right of action for damages against the successive trespassers, but in the eye of the law, the possession of A is not discontinued, because, it cannot be said that any ascertained persons, viz., B and C or D and E, are in wrongful possession of the property in question at any given time. You cannot say that an owner is out of possession unless you can say that a third party is in wrongful possession.

11. Moreover, supposing that such a fluctuating body, as the tenants of certain pergunnahs, can be said to be in wrongful possession of a property, still, until it is shown that the owner is excluded from the participation of the enjoyment of it, he cannot be said to be out of possession.

12. For these reasons we are of opinion that the facts deposed to by the witnesses, upon whom the lower Courts rely, amount only to successive acts of trespass, and do not amount to a complete ouster of the plaintiff.

13. A question similar to this was raised in <CITATION> . 3 Cal. 276; but in that case the defendants were ascertained persons who, under a claim of right, continuously exercised the right of taking fish from a bhil; and it was held that they were in possession for more than twelve years of an interest in land. Accordingly the claim of the plaintiff, who was the owner of the bhil, to restrain the defendants from exercising that right, was held to be barred by limitation. It is obvious that the distinction between that case and the present is,--that in the former some ascertained persons were proved to have been in adverse possession for more than twelve years of an interest in an immoveable property; in the present case, it has been already shown that no defined and ascertained persons have been in continuous possession of the fishery right in these bhils. The plaintiff's claim is, therefore, not barred by limitation.

14. The next question is, whether the defendants have established a prescriptive right to this fishery right. The learned pleader for the respondents upon this point has relied upon Section 26 of the present Limitation Act . That section requires that any easement which is claimed (a right of fishery has been held now to be an easement under the present Limitation Act )--see <CITATION> . 5 Cal. 945; 6 C.L.R. 269 must be shown to have been peaceably and openly enjoyed by any person claiming title thereto, etc., etc. For the reasons given above, it cannot be said that in this case that right was exercised by any person or persons. The section evidently requires that the same person or persons must be shown to have exercised that right for a particular length of time. Then, again, from the length of user (a fact found by the lower <ORG> in favour of the defendants), it cannot be presumed that there was a grant by <ORG>. It seems to us that the presumption of a grant is impossible; because in this case it cannot be shown that there was some ascertained grantee or grantees. The Subordinate Judge was of opinion that the tenants of the several pergunnahs, in whose favour the right in question is claimed, must be considered to constitute a unit,--that is to say, he considers that they form a corporate body. We fail to see any tangible ground for this assumption. For instance, it may be that such a grant may be presumed in favour of a village community if such community be shown to possess all the essentials of a corporate body; but we do not see any reason suggested by any evidence on the record which can support the conclusion that the tenants of the different pergunnahs, in whose favour the right in question is claimed, form anything like a corporate body. This point in the defence must, therefore, also fail.

15. This disposes of the grounds upon which the lower <ORG>' decisions are based. There remains to consider whether the right, set up by the defendants, can have for its basis a valid existing custom. It seems to us that it is unnecessary to enquire whether such a custom as the one set up by the defendants, has been established by the evidence. Because, supposing that it has been established, in our opinion, it cannot be treated as a valid custom on the ground of its unreasonableness. According to the custom set up, there is no limitation to the number of persons entitled to enjoy it. The tenantry may increase to any number, so that according to this custom, an unlimited number of persons can take away the profits of a private property, and that nothing may be left to the owner. If the defendants are entitled to exercise the right of fishery in the way stated by them, they may take away the whole of the fish stocked in the bhils, leaving nothing for the plaintiff, who is admittedly the owner of them. Such a custom as this does not seem to be reasonable. We are, therefore, of opinion that it ought to be rejected as invalid.

16. Upon these questions of custom and prescriptive right, there is the case of Lord Rivers v. Adams L.R. 3 Ex. D. 361 which is exactly in point. It is true that we are not absolutely bound by the authority of this ease, but if the grounds upon which the decision is based be founded upon natural justice; we would be fully justified in following it. On an examination of the reasons given by the <ORG> in that case it will appear that they are not peculiar to any country or any particular state of society, but they are in conformity with the dictates of natural justice.

17. We are, therefore, of opinion that the decisions of the lower <ORG> are erroneous and should be reversed. We reverse them accordingly and decree the plaintiff's suit with costs in all the <ORG>.