JUDGMENT

1. In this case the appellant <NAME> or <NAME> Was placed on his trial with six others before the 4th Presidency Magistrate on charges of unlawful possession of opium Under Section 9 of Act I of 1878. All were convicted and sentenced and the present accused, who received an appealable sentence, has appealed.

2. The case for the prosecution is that in concert with certain informers certain Excise Officers arranged to give to the appellant a quantity of cocaine in exchange for a corresponding quantity of opium to be obtained from him. For the purpose of carrying through the transaction a house, No. 1, Eden Hospital Lane, was hired. In this house behind the ball there are two rooms with an inter-communicating door. At the bottom of this door there are two holes, one a semicircular hole measuring 2 1/2 by 1 1/2 inches at the meeting of the two-halves, and one a larger triangular hole caused by the decay of the wood work against the door post on the west. There are also doors leading from each room into the hall in front and into corridors at the back and sides. To this house on the morning of the 14th August, a Mr. <NAME>, a Sub-Inspector of Excise, took 25 ounces of cocaine obtained from the Excise Superintendent <NAME>. With an excise peon <NAME>, <NAME> placed himself in the southern room, and to the northern room were brought by the informers the appellant <NAME> and another accused <NAME>. This was at about 5 a.m. The cocaine was shown to <NAME>, who then left to fetch the opium. <NAME> returned. without it, at about 11 a.m and it was then arranged that he should bring it in the evening.

3. At about 7 P.m. the same day Excise Inspector <NAME> stationed himself in the southern room. At or soon after 8, the seven accused came with the opium and, on a signal given, <NAME>, two Sergeants of Police and the excise peons raided the house, and arrested the accused. One was captured in the northern room, five as they rushed into the adjoining, room, and <NAME> the appellant as he tried to make his escape through the hall. The opium brought by the accused to, and seized in, the northern room in a variety of packages was found to weigh just under 31 seers.

4. The case of the appellant is that he knows nothing of the opium, that he was arrested when walking along Eden Hospital Road as an innocent passer by, "And was hustled into the house in question. He further says that on the morning of the 14th of August he was in Burdwan. and that this case has been falsely brought against him because he has incurred the displeasure of Excse Officer <NAME>.

5. We may first examine he, defence evidence.

6. In support of the appellant's allegation that on the morning of the 14th he was absent at Burdwan, two witnesses have been examined, a doctor named <NAME> and a Pleader, named <NAME>. Their story is that the appellant was staying at the house of a friend named <NAME> and that the doctor treated him for diarrhoea from the 12th to the 14th and on each day gave him a prescription. The Pleader says that on the 14th he received from the appellant a sura of Rs. 5 as a subscription to a Muhammadan association. Now the appellant is not a member of the association, and this is the only subscription the Pleader realised in the course of the year 1916. The receipt and the counterfoil do not agree and the Treasurer's cash book has not been produced. The prescriptions again are on loose pieces of paper and not on pages from the doctor's printed prescription hook. The doctor is the family doctor both of appellant's friend <NAME> and of the Pleader <NAME>. <NAME> has not been examined. The doctor does hot explain why on the 30th October he should have asked another doctor (<NAME>) to countersign a certificate which the defence does not produce. We are satisfied that both these witnesses have given false evidence.

7. In explanation of his presence in Eden Hospital Road on the night and at the time in question appellant says that feeling uneasy after his return by an afternoon train to Calcutta he went to his family doctor, got a prescription and was arrested when on his way home. In support of these explanations are examined the doctor, <NAME>, one <NAME>, and Sub-Inspector <NAME>, then of <ORG>, to which thana the appellant was taken under arrest at about 9 p.m, The doctor says that between 7-30 and 8 p.m. the appellant came to his house and obtained from him a prescription for <NAME>'s Essence of Camphor (Exhibit B). <NAME> says that at the thana between 10-30 and 11 P.m. and before appellant's release on bail he was shown Exhibit D by the appellant and at the latter's request placed his initials upon it. <NAME> says he saw the appellant's arrest by a Police Sergeant at a point on Eden Hospital Road a little to the east of its junction with Eden Hospital Lane. He is a chance witness and is a friend of, and has had business dealings with, the appelant. The doctor's prescription again is on a piece of paper, loose or taken from a book without counterfoils. The doctor as no diary and no register. For a well-known article such as <NAME>'s Essence of Camphor no prescription is necessary, and the doctor has to say that there was nothing serious the matter with the appellant, a well-to-do man, who has been his patient for three or four years.

8. <NAME>'s conduct on his own showing is peculiar. The accused were brought to the thana at about 9. The charge was entered, and the Excise Officers and others of their party left at 10-15. About 10-30 the appellant, he says, showed him Exhibit D. He does not explain why he returned it to appellant instead of retaining it and entering it in his: register. He was examined on the 22nd November and when recalled for cross-examination on the 20th November, says for the first time that before initialling Exhibit D he took his superior officer <NAME>'s permission. It is one of the complaints of the defence that their application, made on the 1st December, for a subpoena upon <NAME> was refused. It is said that the statement regarding <NAME> made by <NAME> on the 20th November came as a surprise to the defence, but, if true, it should not have been a surprise to the appellant and we are of opinion that the application made at that late stage was properly refused. We may further notice that the appellant has not explained why he said nothing of Exhibit D to the superior Excise Officers <NAME> and <NAME> who found him under arrest at No. 1, Eden Hospital Lane, at about 9 P.m. We are satisfied that these three defence witnesses have also given false evidence.

9. We may now examine the evidence adduced by the prosecution. At the outset, we may say that the Magistrate has improperly admitted in evidence certain incriminating statements said to have been made by the appellant to Messrs. <NAME> and <NAME>. It has been contended on behalf of the appellants that the Excise Officers, who have large powers of search, arrest and detention, are to be regarded as <ORG> Officers within the meaning of Section 25 of the Evidence Act. We need not decide this question, as it is the case for the prosecution that two <ORG> Sergeants accompanied the Excise Officers, assisted in the arrest of the appellant, and were in the house as part of the force in charge of the prisoners at the time when the statements are said to have been made. Though these <ORG> Officers were not in the room with the appellant, <NAME>, <NAME> and the excise peons, yet in our opinion when, making a statement in that room, the appellant is to be regarded as in <ORG> custody for the purposes of Section 26 of the Evidence Act. The statements are, therefore, inadmissible.

10. Of the prosecution witnesses, <NAME> and <NAME> (examined nominally as a <ORG> witness) attempt to support the defence. <NAME> says that he arrested the appellant on the Eden Hospital Road 3 or 4 yards to the east of the junction with Eden Hospital Lane. Both say that the appellant struggled and was hustled by them into the house No. 1 and there in the house was taken charge of by the Excise Officers.

11. The two sergeants have hopelessly contradicted one another, and have also in the course of their depositions contradicted themselves. <NAME> has further contradicted his own previous statement taken from him in the presence of <NAME> by <NAME> on the 31st of October and admitted by <NAME> to have been correctly recorded. It is inconceivable also that if their story had been true, appellant would not have given his account of his arrest to Mr. <NAME> and it is char that he did not do so. The two Police Sergeants are, it would seem, taking advantage of the fact that by mistake one of the informers was arrested by some one of the party, and we are satisfied that for reasons best known to themselves they also are deposing falsely.

12. The other prosecution witnesses, <NAME>, <NAME> and <NAME>, fully bear out the prosecution case as already set out. They are corroborated by the seizure of the Opium, and by the capture (which is beyond dispute) of the six other accused. They are further corroborated by <NAME> as to the 25 ounce of cocaine and by <NAME> and <NAME> who at ahout 9 p.m. found all the accused including the appellant under arrest within the house.

13. It is urged that through the hole or holes to which reference has been made the witnesses, <NAME> in the morning, <NAME> in the evening, could, hot have seen the appellant as they say they did. Here the defence relies on the evidence of the plan-maker, <NAME>, who says that through the middle bole he could see into the adjoining room to a distance of only 3 1/2 feet and could see a man sitting in the room only up to the waist. No doubt, to see into the adjoining room, both he and the Excise Officers had to stretch themselves on the floor and this they say they did. <NAME> does not say he confined himself to the middle hole and it may well be that being younger men they were able to adjust themselves better than <NAME>. We have no doubt on their evidence that the opium in question was taken to the house by the appellant in pursuance of the arrangement of which the officers speak and that he was arrested in the hall by <NAME> as he was attempting to make his escape.

14. In conclusion, we should say that we view with grave concern the manner in which the proceedings before the Magistrate were protracted. The hearing began on the 12th of September and did not conclude until the 7th of December. In the course of these three months or so on as many as 10 different dates, at intervals of 5 to 13 days, witnesses were examined at cross-examined by batches, in whole or p Article We have already animadverted on the evils attendant on this method of trial and we invite the special attention of the Magistrate to the judgment of this Court in the case of <CITATION> 28 Ind. Cas. 1000; 42 C. 813 ; 19 C.W.N. 278 ; 16 Cr. L.J. 424.

15. Lastly, we should say that Superintendent" <NAME> would, in our opinion, have been better advised if after the commencement of the trial he had refrained from taking a statement from the witness <NAME> on the 31st of October.

16. For the reasons already given we dismiss this appeal and affirm the conviction of and sentence upon the appellant, who will be now called upon to surrender, to his bail and undergo the unexpired portion of his sentence.


PETITIONER: <NAME> FREY Vs. RESPONDENT: THE SUPERINTENDENT, DISTRICT JAIL,AMRITSAR, AND ANOTHER(and DATE OF JUDGMENT: 31/10/1957 BENCH: <NAME>, <NAME>CJ) BENCH: <NAME>, <NAME>CJ) AIYYAR, T.L. VENKATARAMA <NAME>, S.K. SARKAR, <NAME>, VIVIAN CITATION: 1958 AIR 119 1958 SCR 822 ACT: Sea <ORG>-Award of confiscation and Penalty-If a bar to prosecution for criminal conspiracy-Sea <ORG> Act, 1878 (VIII of 1878), ss. 167(8), 186-Indian Penal Code (Act XLV of 1860),s.120B-Constitution of India, Art. 20(2). HEADNOTE: The petitioners were found guilty under s. 167(8) of the Sea <ORG> Act and the currency and other goods recovered from their possession were confiscated and heavy personal penalties imposed on them by the Collector of <ORG>. Complaints were thereafter lodged against them by the <ORG> authorities before the Additional District Magistrate under s. 120B of the Indian Penal Code, read with S. 23 / 23B of the Foreign Exchange Regulations Act, 1947, and s. i67(8i) of the Sea <ORG> Act, as also under other sections of the two latter Acts. The Magistrate granted bail but they could not furnish the requisite security and were, therefore, kept in judicial custody. By two petitions under Art. 32 Of the Constitution they prayed for the issue of writs of certiorari and/or prohibition for quashing the proceedings pending against them in <ORG> as also for the issue of writs of habeas corpus. It was contended on their behalf that in view of the provision of Art. 20(2) Of the Constitution they could not be prosecuted and punished twice over for the same offence and the proceedings pending before the Additional Magistrate violated the protection afforded by Art. 20(2) of the Constitution. Held, that the contention was without substance and the petitions must be dismissed. The fact that in imposing confiscation and penalties under s. 167(8) of the Sea <ORG> Act, the Collector of <ORG> acts 823 judicially is not decisive and does not attract the protection of Art. 20(2) of the Constitution. Section 186 of the Act does not prevent the infliction of any other punishment to which the person concerned may be liable under any other law. <NAME> v. Collectoy of <ORG>, Petition NO. 438 Of 955, decided on May 16, 1957, referred to. Criminal conspiracy is an offence under s. 120B of the Indian Penal Code but not so under the Sea <ORG> Act, and the petitioners were not and could not be charged with it before the Collector of <ORG>. It is an offence separate from the crime which it may have for its object and is complete even before the crime is attempted or completed, and even when attempted or completed, it forms no ingredient of such crime. United States v. <NAME>, (1915) 238 U.S. 78, referred to. JUDGMENT:

ORIGINAL JURISDICTION: Petitions Nos. 126 and 127 of 1957. (Under Article 32 of the Constitution of India for enforcement of Fundamental Rights).

<NAME> and <NAME>, for the petitioners. <NAME>, Attorney-General for India, <NAME> and <NAME>, for the respondents.

1957. October 31. The following Order of the Court was delivered by DAS C.J.--In their respective separate petitions, the petitioners pray (1) for an order, direction or writ in the nature of certiorari and/or prohibition calling for the records in the case of the Assistant Collector of Land Customs & Central Excise, Amritsar, against the two petitioners and one <NAME>, on the file of the Additional District Magistrate of Amritsar and for quashing the proceedings therein, and (2) for an order, direction or writ in the nature of habeas corpus for the production before this Court of the persons of the petitioners to be dealt with according to law.

The facts appearing from the records are shortly as follows: The petitioner, <NAME>, purchased a car No. C.D. 75 TT 6587 from an officer of <ORG> Embassy in Paris. This car was sold by the petitioner <NAME> to the petitioner <NAME>, in May 1957. On transfer, the car was registered in the name of the petitioner <NAME> on May 18, 1957. Both the petitioners thereafter booked their passages through <ORG> from Geneva to Bombay by s.s. <ORG>. The car was also shipped by the same vessel. The two petitioners disembarked at Karachi Ion June 11, 1957, and after a brief halt at Karachi, they left together by plane for Bombay and reached Bombay on the same day. petitioners stayed together at <ORG> at Bombay from June 11, 1957, to the afternoon of June 19, 1957. On the last mentioned date both of them left Bombay by plane and reached Delhi the same evening. They occupied room No. I at <ORG> and stayed there from June 19, to June 29, 1957. After the car, which had been booked by rail from Bombay to Delhi, had arrived in Delhi, the two petitioners left Delhi and travelled together in the car from Delhi to Amritsar on June 22, 1957, and after staying the night there, they arrived at Attari Road Land <ORG> Station on their way out to Pakistan on June 23, 1957. The <ORG> officers there required the petitioners to declare in Baggage Declaration Forms supplied to them the articles which they had in their possession, including any goods which were subject to Export Trade Control and/or Foreign Exchange restrictions and/or were dutiable. Each of the petitioners completed his Baggage Declaration Form and handed it over to the <ORG> authorities duly signed by him. On that very day the persons of each of the petitioners were also searched and certain currency and movable property which had not been included in the baggage declaration were recovered. Amongst other things, a pocket radio and a time-piece were recovered from the petitioner <NAME> and a pistol of 22 bore with 48 live cartridges of the same bore was recovered from the person of the petitioner <NAME>. Both the petitioners were put under arrest on the same day, namely, June 23, 1957. On June 30,1957, the petitioners were interrogated and the car was thoroughly searched. As a result of such intensive search and minute inspection, a secret chamber above the petrol tank was discovered. On opening the secret chamber, Indian currency to the tune of Rs. 8,50,000 and U.S. dollars amounting to 10,000 were discovered in the concealed recess and seized by the police. On July 7, 1957, notice was issued to the petitioner <NAME> under s. 167(8) of the Sea <ORG> Act to show cause before the Collector why under that section penalty should not be imposed on, him and why the seized articles should not be confiscated. A similar notice was served on the petitioner <NAME>, on July 9, 1957. The petitioners made representations in writing and were also heard in person. On July 24, 1957, the Collector of Central Excise and Land <ORG> made an order for the confiscation of the currency and also of the motor car with an option to the petitioner <NAME> to redeem the car on payment of Rs. 50,000 and also ordered confiscation of articles other than the currency recovered from the car subject to redemption on payment of Rs. 100. The Collector was also satisfied that each of the two petitioners was equally guilty of an offence under s. 167(8) of the Sea <ORG> Act and imposed a personal penalty of Rs. 25,00,000 on each of the petitioners, to be paid within two months from the date of the order or such extended period as the adjudicating officer might allow.

On August 12, 1957, the Assistant Collector of Customs and Central Excise, Amritsar, lodged a complaint against the two petitioners and one <NAME> of Bombay before the Additional District Magistrate, Amritsar, under s. 23 read with s. 8 of the Foreign Exchange Regulations Act, 1947 and s. 167 (81) of the Sea Customs Act, 1878, as amended by the Sea Customs (Amendment) Act, 1955. Subsequently, a fresh complaint was filed by the same Assistant Collector of Land Customs and Central Excise against the two petitioners and the said <NAME> before the Additional District Magistrate, Amritsar,' under s. 23 read with s. 8 of the Foreign Exchange Regulations Act, 1947, and s. 167(81) of the Sea Customs Act and s' 120-B of the Indian Penal Code , read with S. 23 / 23-B , Foreign Exchange Regulations Act and s. 167(81) , Sea Customs Act, 1878. A case was also started against the petitioner <NAME> under the Indian Arms Act for being in possession of the pistol and the cartridges in contravention of the provisions of s. 20 of that Act. He was ordered to be let out on bail in the sum of Rs. 10,000 with one surety in the Arms Act case, which he furnished. The trial of the Arms Act case has concluded in <ORG> but orders are pending. The petitioners, <NAME> and <NAME>, were directed to be released on bail in the sum of rupees five lakhs and ten lakhs respectively, which were finally reduced by <ORG> to rupees two lakhs and five lakhs respectively. Neither of the petitioners could furnish the requisite security and they have, therefore, been in judicial custody. They have now come forward with these applications for the reliefs already mentioned. Their main contention, urged before us, is that they have been deprived of their liberty otherwise than in accordance with procedure established by law.

In ordinary circumstances the production of the order or warrant for the apprehension and detention of an undertrial prisoner would be a good return to a writ of habeas corpus. But the petitioners contend that in this case there has been a violation of their fundamental right under Art. 20(2) of the Constitution. Relying on the observations in the decision of <ORG> in Assistant Collector v. <NAME> (1), and in the decision of <ORG> in <CITATION> (2), it is contended that in making the order of confiscation and penalty under s. 167(8) of the Sea Customs Act, the Collector was acting judicially and therefore the petitioners have already been proceeded with and punished for the offence of importation and attempted exportation of goods, the importation or exoprtation of which is for the time being prohibited or restricted by or under chap. IV of the Sea Customs Act, and consequently they cannot again be prosecuted and punished for the same offence. The argument is that the pending proceedings before the Additional District Magistrate offend against the protection given to the petitioners by Art. 20(2) of Constitution. That in imposing confiscation and penalties the Collector acts judicially has been held by this Court in its judgment (I) (1952) 56 C.W.N. 452.

(2) A.I.R. 957 Mad. 496.

pronounced on May 16, 1957, in <CITATION> (1). No question has been raised as to the maximum amount of penalty that can be imposed under s. 167(8) and we are not called upon to express any opinion on that point. But the fact that the Collector of <ORG> acted judicially is not decisive and does not necessarily attract the protection guaranteed by Art. 20(2) and the question still remains whether the petitioners' case comes within the provisions of Art. 20(2). That article protects a person from being ,prosecuted and punished for the same offence more than once". The question has to be answered as to whether the petitioners had previously been prosecuted and punished for the same offence for which they are now being prosecuted before the Additional District Magistrate. The proceedings before the <ORG> authorities were under s. 167(8) of the Sea <ORG> Act. Under s. 186 of that Act, the award of any confiscation, penalty or increased rate of duty under that Act by an officer of <ORG> does not prevent the infliction of any punishment to which the person affected thereby is liable under any other law. The offences with which the petitioners are now charged include an offence under s. 120B , Indian Penal Code . Criminal conspiracy is an offence created and made punishable by the Indian Penal Code . It is not an offence under the Sea <ORG> Act. The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences. This is also the view expressed by <ORG> in United States v. <NAME> (2). The offence of criminal conspiracy was not the subject matter of the proceedings before the Collector of <ORG> and therefore it cannot be said that the petitioners have already been prosecuted and punished for the "same offence".

(1) Petition NO. 438 Of 1955. 105

(2) (1915) 238 U.S. 78.

It is true that the Collector of <ORG> has used the words " punishment " and " conspiracy ", but those words were used in order to bring out that each of the two petitioners was guilty of the offence under s. 167(8) of the Sea <ORG> Act. The petitioners were not and could never be charged with criminal conspiracy before the Collector of <ORG> and therefore Art. 20(2) cannot be invoked. In this view of the matter it is not necessary for us, on the present occasion, to refer to the case of <CITATION> (1) and to discuss whether the words used in Art. 20 do or do not contemplate only proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal as ordinarily understood. In our opinion, Art. 20 has no application to the facts of the present case. No other points having been urged before us, these applications must be dismissed.

Applications dismissed.


JUDGMENT

1. This appeal arises out of a suit for the recovery of land. It was dismissed by both the lower Courts but on appeal Mr. Justice <NAME> passed a decree in the plaintiff's favour. From this decree the present appeal has been preferred under the Letters Patent.

2. The facts found are that <NAME> held the suit land as a raiyat under <NAME>, the proprietor; that the plaintiffs held the land as under-raiyat under <NAME>, that on the 27th of February 190], <NAME>'s raiyati interest was expressed to be transferred to <NAME> who was benamidar for <NAME>; that <NAME> made the land khas and let it to defendant No. 1; and that thus the plaintiffs have been dispossessed.

3. Before us it has been contended that the plaintiffs are not entitled to possession as under Section 85 (1) of the Bengal Tenancy Act the oral sub-lease to them is not valid against defendant No. 1 who for this purpose, it is argued, stands in the position of landlord.

4. Assuming for the sake of the argument that defendant No. 1 is entitled to the same rights against the plaintiffs as <NAME>, can it be said that the plaintiffs' interest in the land has come to an end? If not, the plaintiffs are manifestly entitled to a decree for possession.

5. The defendant-appellant argues that this must be answered in the affirmative on the strength of the transfer of the raiyat's interest and Section 85 (1) of the Bengal Tenancy Act.

6. It is conceded that Section 85 (1) without this transfer would not suffice, for the existence of the intermediate holding would have been an answer to the landlord's claim.

7. But can this protection be destroyed by the Voluntary Act of the raiyat who created the under-raiyat's holding? It would certainly be contrary to justice, equity and good conscience that it should, but this, I recognize would, be no answer to the words of the statute.

8. The right of the landlord under Section 85 (1) is a right vested in him by virtue of his landlord's interest and not by virtue of any other interest he might acquire; and to entitle the landlord to act by virtue of that interest there must be no obstacle in the shape of an intervening interest, and so the appellant is forced to contend that the raiyat's transferred interest has been extinguished.

9. For this view reliance has been placed on the doctrine of merger and on the terms of Section 22 (1) of the Act.

10. But it is at least doubtful whether the doctrine of merger applies to lands in the mofussil see per Sir <NAME>, C.J. in <NAME> v. <NAME> 10 W.R. 15 at p. 17; <CITATION> 19 C. 760; Prosunno Nath Roy v. Jogut Chunder Pundit 3 C.L.R. 159. And even if it be assumed that it does, it cannot be that it would be more oppressive in its operation on the undertenant than the English Common Law doctrine. Mergers were never favoured in Courts of law and still less in <ORG> and so we find it said in C. Lit 338b that having regard to strangers who were not parties or privies there unto lest by a voluntary surrender they may receive prejudice touching any right or interest they had before the surrender the estate surrendered both in consideration of law and continuance."

11. So clearly the doctrine of merger would not help the appellant. Then is there anything in the Act which assists him? Our attention has been drawn to Section 22 (1) and there no doubt it is provided that where the entire interests of the landlord and the raiyat in the holding became united in the same person by transfer succession or otherwise the occupancy right shall cease to exist; but nothing in this section shall prejudicially affect the rights of any third person."

12. It may be a question whether it can be said on the facts of this case that entire interest of the raiyat has united with that of the landlords. But be that as it may what is it that has ceased to exist? The occupancy right, not the entire interest of the raiyat, so that on the words of the section there would be no extinguishment of the holding, and I see no reason for adopting a construction beyond what the language imports see <CITATION> 24 C. 143 at p. 148 and <NAME> v. Sheikh Kachu 32 C. 386. And if as I have shown the holding continues in favour of the under-tenant. then there is, a continuing intermediate interest between that of the landlord and the undertenant which still furnishes an answer to any claim under Section 85 (1). To hold otherwise would involve the view that if the position were reversed and the raiyat acquired the holding of his landlord he could call Section 85 (1) in aid against his own under-tenant; for this the learned appellant's pleader admitted he could not contend.

13. The conclusion at which I have arrived is in substantial accord with decisions in <CITATION> 31 C. 932 and <CITATION> 34 C. 104 and is distinguishable from <CITATION> 28 C. 205 in that there the tenant's interest did not pass to the landlord by the voluntary act of the tenant.

14. The result is that, in my opinion, the conclusion at which <ORG> arrived, is correct and this appeal must be dismissed with costs. Exception has been taken to the expression by <ORG>, of the opinion that it would be open to the present plaintiffs in any subsequent suit or proceeding taken against them to raise the question whether the plaintiffs by custom or usage had acquired an occupancy right. This objection is, I think, well founded; whether the question can be raised in a future suit or proceeding must be determined in that suit or proceeding and its determination cannot be anticipated in this suit.

15. This judgment, it is conceded, will govern the other appeal (No. 49) which is, accordingly, dismissed with costs.


JUDGMENT

1. The eighth issue raises the question whether the family of the parties possesses any interest in the lands comprised in schedule II-B. The plaintiff's contention is that, while the melvaram is admittedly part of the charity estate, the kudivaram in those lands belongs to the family. According to the memorandum made on the 26th May 1888, the property declared to have been purchased by the plaintiff for Rs. 7,750 was the choultry at Vachakarapatti. It is more particularly described in Exhibit D as "the huk right of Vachakarapatti choultry, the lands the registry of which stands in the names of <NAME> and <NAME> in No. 6, the decree razinamah, and all other daeds in respect of the said choultry, Rs. 747 being in possession of <NAME>, and Rs. 70 from the tirvah of Sekanapuram and all the lands partaining to Vachakarapatti choultry together with all the rights and privileges thereof."

2. The property now claimed as family property consists of the lands registered in the names of <NAME> and <NAME>. The circumstance that they are specifically mentioned in Exhibit D is regarded by the Subordinate Judge as indicating that they were not chattram lands. In our opinion the language is equivocal, and, taking Exhibit D with Exhibit E, we do not think that any inference in the plaintiff's favour can be drawn from it; rather the contrary. Similarly with regard to the security bond (Exhibit R), the language of it is consistent with either view. Seeing that the writer styled himself hukdar, we think he might, with perfect honesty, describe the charity lands as his lands. The fact that he so designates them in such a document is no ground for the inference that he treated the lands as his own to the exclusion of the right of the charity. The fact is that the family treated the charity and its property as their own.

3. There is no documentary evidence distinctly showing that the family claimed the kudivaram of these lands. No patta or village accounts are produced. The Subordinate Judge refers to the evidence of certain witnesses. The third witness is the only witness who has no direct interest in these lands. His evidence is not specific as to the lands in question; the plaintiff's vakil was unable to show what the receipts mentioned by him proved. The other two witnesses are the parties themselves.

4. The defendant No. 1 says that the lands were previously entered in the name of the chattram and that he was no party to the transfer to the names of the plaintiff and defendant No. 2. The plaintiff on the other hand is unable to say in whose name the lands stood in his father's time, and he has no voucher to show that they stood in his father's name. He professes not to know how they came to be transferred to himself and the second defendant. It cannot therefore be according to him that the transfer was made by common consent as the plaintiff's vakil contends.

5. We cannot agree with the Subordinate Judge in thinking that the evidence as to enjoyment proves the alleged possession of the <NAME> by the family.

6. The result is that we must hold that so much of the agreement as relates to the auction sale in consideration of the Rs. 7,750 cannot be enforced.

7. As, however, this arrangement is clearly separate from the rest of the agreement, we see no reason why the plaintiff should not have partial relief. There is no dispute as to the findings on issues 1, 2, 3 and 6. It is unnecessary to decide the issues numbered 9, 10 and 11. The finding on the new issue is not challenged.

8. The decree of the lower Court must be reversed and the plaintiff must have a decree as prayed except so far as regards the property included in Schedules II-B and II-G attached to the plaint, as to which property the plaintiff must be declared to be jointly entitled to management with the defendants Nos. 1 and 2.

9. Under the circumstances we think each party should pay his own costs.