judgement:
l Appeal No. 173 of 1951.
Appeal from the Judgment and Decree dated February 22, 1949, of the High Court of Judicature at Calcutta (Blank and Lahiri JJ.) in Appeal from Original Decree No. 23 of 1944 &rising out of Judgment and Decree dated August 25, 1943, of the Court of the Subordinate Judge, Zilla Midna pore, in Title Suit No. 30 of 1941.
Panchanan Ghose (S.N. Mukharjee, with him) for the appellant.
Sarat Chandra Jana and Bijay Kumar Bhose for respondent No. 1.
Arun Kumar Dutta for respondents Nos. 2 (b) and 15. 278 1952.
December2.
The Judgment of the Court was delivered by MAHAJAN J.
The circumstances under which this ,appeal arises are as follows Touzi No. 2409 of the Midnapore Collectorate consists of several mouzas including mouza Dingol.
The annual land revenue payable in respect of the entire touzi is Rs. 2,892 8 0.
This touzi was distributed into two shares, one being a separate account bearing No. 249/1 and the other being the residuary share.
Both these shares came in course of time to be held by a single person, viz., Jiban Krishna Ghosh and from him they devolved upon his two sons, Sudhir Krishna Ghosh and Sunil Krishna Ghosh, defendants 2 and 3 in the present suit.
Both the two accounts were recorded in their names as joint proprietors.
Under touzi No. 2409 there was a patni which included mouza Dingol.
In the year 1885 Kritibas Hui purchased a share of the said patni.
His father Ramnath Hui purchased some transferable occupancy ryoti lands under the said patni.
These lands are described in schedule " Ka " of the plaint.
Kritibas Hui, while he was a co sharer patnidar, purchased some transferable ryoti lands under the patni described in schedule " Kha " of the plaint.
Kritibas Hui died in the year 1906 or 1907 and his father Ramnath died in the year 1908 or 1909 soon after the death of his son.
On the death of Kritibas Hui, the plaintiff s, four in number, being his sons and nephews, inherited the patni and the other properties left by him.
Subsequently on the death of Ramnath, the plaintiff s while they were co sharer patnidars, inherited the aforesaid transferable occupancy ryoti lands under the patni purchased by Ramnath.
Occupancy ryoti lands in schedule " Ga " of the plaint were purchased by the plaintiffs by different kabalas on different dates, after they had inherited the lands mentioned in schedules " Ka " and " Kha of the plaint.
Similarly the niskar lands mentioned in schedule " Gha " of the plaint were purchased by 279 the plaintiffs after they had taken the inheritance of their father and grandfather.
By the same process they acquired the mokarrari maurashi interest under the Bahali niskar lands of Sree Ishwar Dwar Basuli Thakurani mentioned in schedule "Una" annexed to the plaint.
On the 22nd April, 1938, by a registered kabala the plaintiffs sold their interest in the patni to one Upendranath Pal.
Upendranath Pal thus became the patnidar of the six anna share that was held by the plaintiffs prior to the year 1938.
The rest of the interest in the patni which had been acquired by Satish Chandra Hui, respondent No. 1, was also sold to one Gouranga Sundar Das Gupta along with Upendranath Pal.
The plaintiffs thus ceased to have any interest in the patni and remained in possession of the lands in the status of occupancy ryots or undertenure holders.
When the plaintiffs in the year 1938 sold their patni interest they were heavily indebted to their landlords Sudhir Krishna Ghosh and Sunil Krishna Ghosh for arrears of patni rent.
On the 25th March 1939, the landlords filed a suit claiming a sum of Rs. 16,835 3 6 as arrears of rent due to them from April, 1935, to March, 1939, in the court of the subordinate judge of Midnapore against the recorded patnidars (viz., the plaintiffs) without recognizing the transfer made by them.
While this suit was pending, the landlords failed to pay the March kist of the revenue and cesses of the touzi in both the accounts, with the result that both the undivided half shares of the touzi represented by separate account No. 1 and by residuary account were advertised for sale on 24th June, 1939, under section 6 of the Bengal Land Revenue Sales Act (XI of 1859).
The notice advertising the sale is exhibit H.
It notified sale of the shares in the estate as such and did not state that the entire estate would be sold.
In column of the notification the arrears due from the two shares were entered separately.
Both these shares were actually sold on the issue of a single notice and at a 280 single sale and were purchased by defendent 15 the appellant before us.
The sale certificate shows that what was certified to have been purchased by the appellant was the separate account share as also the residuary share making up between them the totality of the touzi.
On the 9th January, 1940, defendant 15 (the appellant) in exercise of the rights conferred by section 37 of the Revenue Sales Act as purchaser of an entire estate in the revenue sale served a notice on the maha expressing his unequivocal intention to annul and avoid all under tenures including patnis and darpatnis.
On the same date he is alleged to have taker possession of some plots of land in possession on under tenure holders, encumbrance holders and niskardars.
The revenue sale held on 24th June, 1939, has lead to a crop of litigations.
As already stated, the land lords had sued for the recovery of the arrears of rent due from the patnidars, viz., the plaintiffs, before the sale took place.
That suit was decreed on the 14th May, 1940.
An application was made for execution of the decree on 21st June, 1940, by attachment and sale of certain plots in possession of the judgment debtors On behalf of the judgment creditors it was contended that the entire touzi having been sold under the revenue sale, the purchaser had become entitled to annul the tenure under section 37 of the Revenu Sales Act and as a matter of fact had annulled the same and consequently the tenure itself having expired, section 168 A of the Bengal Tenancy Act did not apply and the decree was executable against other properties of the judgment debtors.
This con tention was upheld by the subordinate judge but was negatived in appeal by the High Court, and it was held that the revenue sale was a sale of the shares on the touzi under section 13 of the Revenue Sales A and the purchaser did not acquire any right to and the tenures, he not being a purchaser of the entire estate as such and therefore the patni being in existence, the decree holder could not execute the decre 281 for arrears of rent of the patni against other properties of the judgment debtors.
(Vide Satish Chandra Hui vs Sudhir Krishna Ghosh (1), decided in February, 1942, during the pendency of the present suit).
The appellant was not a party to those proceedings.
For the second time the question whether at the same revenue sale defendant 15 purchased the entire estate or two separate shares only arose in a case wherein he was impleaded as a party.
Bimal Kumar Hui and another brought a suit some time in the year 1941 for establishment of their rent free title in certain lands and for confirmation of their possession.
The present appellant was impleaded as defendant 2 in the suit as purchaser of the touzi and as claiming to have annulled the plaintiffs ' interest.
Defendant 2 pleaded that an entire touzi had been purchased by him at the revenue sale and he had thereafter annulled the interest held by the plaintiffs and they were disentitled to relief as they had no subsisting interest in the plots of land claimed by them.
, This plea was negatived up to the High Court and the plaintiffs ' suit was decreed.
(Vide ' Gunendranath Mitra vs Bimal Kumar Hui (2) decided in September, 1948).
Harries C. J. and Chakravarti J. in a very well considered and reasoned judgment reached the conclusion that the revenue sale in favour of the appellant was a sale of two separate shares under the provisions of section 13 of Act XI of 1859 and not of the entire estate and that he had not acquired the.
right to annul the encumbrances under section 37 of the Revenue Sales Act.
The third occasion on which the effect of the revenue sale held on 24th June, 1939, came up for consideration by the High Court arose in the suit which has given rise to the present appeal.
On the 28th June, 1941, the plaintiff respondents, Satish Chandra Hui and others, instituted title suit No. 30 of 1941 for a declaration of title and confirmation of possession of certain plots of land in the court of (1) (2) 282 the subordinate judge of Midnapore.
There was the usual preliminary skirmish between the parties antecedent to the suit, resulting in proceedings under section 144, Criminal Procedure Code.
Possession of the paddy crop growing on a number of plots was taken by the District Magistrate and eventually under the orders of the High Court the crop was handed over to defendant 1, an employee of the appellant.
In this suit the present appellant was impleaded as defendant 15.
In the plaint it was averred that the plaintiffs were in possession of the plots of land mentioned in schedules " Ka", " Kha" and " Ga " of the plaint as occupancy tenants, that in respect of the lands mentioned in schedules " Gha " and " Una they had niskar rights and that as in the revenue sale the appellant did not purchase the entire estate he was not entitled to annul the patni and the other tenures or the rent free grants; and that the plaintiffs having transferred the patni rights to Upendranath ,Pal which still subsisted, none of the encumbrances could be said to have been extinguished.
The appellant pleaded that he was the purchaser of the entire touzi at the revenue sale held on 24th June, 1939, and had acquired the power to avoid and annual the encumbrances and that by a notice duly published on the 9th January, 1940, he had annulled all under tenures including the patni and that the transfer of the patni to Upendranath Pal was a benami transaction and that even if it was held genuine the plaintiffs ' rights in the ryoti land had been extinguished as the ryoti rights had merged with the patni rights under section 22 of the Bengal Tenancy Act as it was in force before its amendment in 1928 and that by a sale of the patni to Upendranath Pal.
the plaintiffs ' rights in those lands stood transferred to him and they were not entitled to maintain any suit in respect of those plots.
The trial judge decreed the suit in respect of some of the plots detailed at page 144 of the paper, book.
The plaintiffs ' claim in respect of other lands mentioned in schedule " Gg " of the plaint was dismissed.
283 Plaintiffs were also given a decree for Rs. 416 4 0 against defendant 1 on account of the paddy of 55 1/2 bighas of the land out of schedules.
"Ka ", " Kha " and " Ga ", to which they had proved their title and of which they were entitled to recover khas possession.
It was held that at the revenue sale the entire touzi did not pass to the appellant and he had acquired no right to annul or avoid the under tenures and encumbrances, that the ryoti holdings of the plaintiffs had merged in the patni and had passed to, Upendranath Pal on the sale of the patni to him on 22nd April, 1938, but that Upendranath Pal had resettled these lands with the plaintiffs and they being settled the ryots of the village had acquired occupancy rights in these plots.
The plots of land described in schedule Ga " were held as not assessed to revenue and that being so, defendant 15 was held not entitled to possession of these niskar lands.
Defendant 15 preferred an appeal to the High Court against the judgment of the subordinate judge, while the plaintiffs preferred cross objections.
The appeal and the cross objections were both dismissed by the High Court and the findings of the trial judge were maintained.
It was contended before the High Court that the revenue sale, though held in fact under section 13 of Act XI of 1859, should be deemed to have been held under section 3 and that the appellant had acquired all the rights of the purchaser of an entire estate.
The High Court negatived this con tention and observed that on a plain reading of section 13 the contention could not be sustained, the essential conditions for the exercise of jurisdiction under section 13 being the existence of a separate account or accounts, and the liability of the entire estate for sale for revenue arrears and that both these conditions having been fulfilled in this case, the Collector rightly proceeded under section 13 to sell the shares and that the additional provisions mentioned in the second paragraph of the section need only be complied with in cases where there does exist a share from which no arrear is due it was further 37 37 284 hold that though the old occupancy rights of the plaintiffs merged in the patni and passed to Upendranath Pal after the sale of the patni to him, the action of Upendranath Pal in realizing the rent from the plaintiffs amounted to a resettlement and that by his action he had conferred a right of tenancy upon the plaintiffs who being settled ryots of the village acquired a right of occupancy in all the lands in respect of which rents were realized. ' This decision was announced by the High Court on the 22nd February, ' 1948, and is in appeal before us on a certificate granted by the High Court on 25th August, 1960.
For the fourth time the same question came up for consideration before the High Court after the decision under appeal and the view expressed in its earlier judgments by the High Court was followed.
[Vide Gowranga Sundar vs Rakhal Majhi (1).] Mr. Ghosh for the appellant argued two points before us : (1) that defendant 1 5 being the purchaser of an entire estate at a revenue sale had all the rights conferred upon him by section 37 of the Bengal Land.
Revenue Sales Act, and all under tenures stood annulled and plaintiffs had no rights in the lands in suit in which they had no occupancy rights, and (2) that the plaintiffs were not entitled to a decree on the basis of the resettlement of land, which case was never made out by them, and which was inconsistent with the pleadings and evidence and that on the facts proved there could not be any legal inference of resettlement.
In our opinion, neither of these contentions is well founded.
Section 6 of Act XI of 1859 authorizes the Collector after the latest day of payment fixed in the manner prescribed in section 3 of the Act has expired, to issue a notification specifying the estates or shares of estates which have to be sold for recovery of arrears of revenue, and further authorizes him to put up to public auction on the date notified for sale, the estates or (1) 285 shares of estates so specified.
The contents of the notifi cation issued for the sale in question in unambiguous terms indicate that two separate units of the estate from which separate items of arrears ' were due were notified for sale.
No entry was made in the notification in the column meant to be filled in when the entire estate is to be put up for sale.
In the face of these facts it was conceded by Mr. Ghosh that the sale in fact took place as provided for in section 13 of Act XI of 1859 and what was actually put up for sale were two separate shares in the estate which made up the totality of the estate.
The learned counsel, however, contended that the sale should be deemed to have been of an entire estate, as both the shares sold con stituted the totality of the estate and because section 13 could have had no application to a case wherein both the accounts were in default, the section having application only in cases where there at least exists a share that is not in default and which needs protection against the default of the, other co sharers.
This argument, though attractive, is fallacious.
To hold that a sale, which in fact was of two different accounts, is to be deemed to be a sale of the entire estate would be tantamount to converting a fact into a fiction by a judicial verdict.
The notification under section 6 issued by the Collector must, in our opinion, be considered as conclusive on the point as to what the subject matter of the sale was, i.e., whether what was sold was the entire estate or two shares.
The appellant is really on the horns of a dilemma.
If the contention of his learned counsel that the sale by the Collector of shares of the estate was not authorized by section 13 is taken seriously, the sale would then be a nullity as under none of the provisions in the Revenue Sales Act such a sale could be held in the manner adopted and the appellant would have no title under it whatsoever; if such a sale is authorized by section 13 of the Act, then it gives him no rights to annul the undertenures.
In either event, be cannot resist the plaintiffs ' suit.
In our judgment, it has been rightly held 286 in the courts below that the appellant at this revenue sale did not become the purchaser of the entire touzi as such and did not become entitled to the privileges conferred on such a purchaser by the provisions of section 37 of Act XI of 1859.
The contention of Mr. Ghosh that the provisions of section 13 are not attracted to a case where all the shares in an estate are in default and that in that event the only authority that the Collector has is to put up for auction the entire estate is again, in our opinion, not well founded.
Before the Revenue Sales Act was passed in 1869 estates were being put up for sale for arrears irrespective of the question whether the majority of the cosharers had deposited their shares of the revenue or whether the amount due was large or small.
The cosharers who had paid their shares within the due date were affected seriously by such sales.
Provision was therefore made in 1859 for affording protection to the cosharers who were willing to pay and had ' paid their share of the revenue.
On the application of the parties the Collector began to keep a record of separate accounts in the names of the different cosharers.
The liability of the entire estate for the total amount of revenue was not in any way affected by this arrangement. 'The only privilege given was that if the cosharers had got separate accounts opened in the collectorate the revenue apportioned for the particular cosharers would be receivable by the Collector.
At the initial stage the shares belonging to such of the cosharers who duly paid the amount allotted in their share would not be put up to sale even if there be a default on the part of one or more of the other cosharers.
Only the defaulting separate accounts would be put up to sale in the first instance.
If the Collector found that the total amount of the revenue in arrears was not realizable from such sale, he would thereupon stop the sale of the defaulting share and give notice that the entire estate would be put up to sale.
The paramount consideration governing the whole of this Act is to preserve intact the 287 ultimate security of government for the revenue demand against the estate.
By permitting the opening of separate accounts the Act seeks to give recorded sharers of a joint estate an easy means of protecting their shares from sale for the default of their cosharers, but there is no ultimate protection if the government demand is still unsatisfied.
Even in cases where all the shares are in default, this protection cannot be denied because the amount of arrears due from them may be different sums of money.
Sections 13 and 14 of the Act on which the argument rests are in these terms: 13.
" Whenever the Collector shall have ordered a separate account or accounts to be kept for one or more shares if the estate shall become liable 'to sale, for arrears of revenue, the Collector or other officer as aforesaid in the first place shall put up, to sale only, that share or those shares of the estate from which,, according to the separate accounts, an arrear of revenue may be due.
In all such cases notice of the intention of excluding the share or shares from which no arrear is due shall be given in the advertisement of sale prescribed in section 6 of this Act.
The share or shares sold, together with the share or shares excluded from the sale, shall continue to constitute one integral estate, the share or shares sold being charged with the separate portion, or the aggregate of the several separate portions, of jama assigned thereto.
If in any case of a sale held according to the provisions of the last preceding section the highest offer for the share exposed to sale shall not equal the amount of arrear due thereupon to the date of sale, the collector or other officer as aforesaid shall stop the sale, and shall declare that the entire estate will be put up to sale for arrears of revenue at a future date,unless the other recorded sharer or sharers or one or more of them, shall within ten days purchase the share in arrear by paying to the Provincial Government the whole arrear due from such share.
288 If such purchase be completed, the Collector or other officer as aforesaid shall give such certificate and delivery of possession as are provided or in sections 28 and 29 of this Act to the purchaser or purchasers, who shall have the same rights as if the share bad been purchased by him or them at the sale.
If no such purchase be made within ten days.
as aforesaid I the entire estate shall be sold, after notification for such period and publication in such manner as is prescribed in section 6 of this Act.
" The concluding words of section 14 furnish a key to the construction of these sections.
When a contingency arises in a case, where two separate accounts have been kept, to sell an entire estate, a fresh notification has to issue in accordance with the provisions of section 6 of the Act notifying that the entire estate is for sale.
In the absence of such a notification a sale of an entire estate is not authorised in such a case.
Section 13 thus empowers the Collector where separate accounts are kept, to sell the shares in default as such, there being no scope for the operation of paragraph 2 of the section where all the shar ers ' are in default.
There is nothing in that section which disentitles the Collector where two separate accounts have been kept and both of them are in default, to notify for sale the separate accounts for recovery of arrears due from each of them separately, or to bring several defaulting shares to sale all at once without following the procedure laid down in section 13.
If the Collector proposes to sell the entire estate, where there are several accounts, the first step he has to take is to close the separate account or accounts or merge them into one demand and the next step would be to issue a notification for sale of the entire estate under section 6 and it is only when the Collector has followed this procedure that he would have authority to bring to sale the entire estate and not otherwise .
In this case no such thing was done.
The demands against the two shares were not merged into one item and the entire estate could not 280 be sold for two separate demands.
It could only be notified for sale for recovery of a single sum of arrears due from the entire estate.
In our judgment, therefore, it is not right to hold as was contended by Mr. Ghosh that a sale for arrears of revenue is not a sale under section 13 unless there is a share from which no arrear is due and unless a notice of the intention of excluding that share is given in the advertisement of sale under section 6 of the Act that that share is excluded from sale.
The second point of Mr. Ghosh that no inference should have been drawn in this case that the lands in suit were resettled by the purchaser of the patni on the plaintiffs is also without force.
The facts from which an inference of resettlement has been drawn by the courts below were alleged in the plaint and on those facts such an inference could be justifiably raised.
The plaintiffs had been paying rent to the purchaser of the patni on the land in their possession and this was accepted by the purchaser as if they were his tenants.
In those circumstances the absence of a 'specific pleading as to resettlement could not in any way be said to prejudice defendant 15 's case.
Upendranath Pal having treated the plaintiffs as tenants, defendant 15 has no right to question their interest and it must 'be held that their claim was rightly decreed in the courts below to the extent that they were able to establish it.
The appeal before us was limited to the plots of land which were not covered by the sanads or regarding which plaintiffs hid not been able to prove that they were occupancy tenants.
In view of our findings, however, the appeal even as regards those plots has no merits.
For the reasons given above the appeal fails and is dismissed with costs.
Appeal dismissed.
Agent for respondents Nos. 1, 2 (b) & 15; section C.Bannerjee.

summary:
Under the Bengal Land Revenue Sales Act (XI of 1859) if this Collector proposes to sell the entire estate where there art separate accounts for the several shares which constitute the estate, he has first to close the separate account or accounts or merge them into one demand and then he has to issue a notification for the sale of the entire estate under section 6 of the Act and it is only when the Collector has followed this procedure that he would have authority to bring to sale the entire estate.
Where a touzi was held in two shares in respect of which separate accounts were kept in the Collector 's records and, as the shares were in arrears a notification was issued putting up for sale the two separate units of the estate and showing the separate items of arrears due from each unit, and both the shares were sold: Held, that the sale cannot be treated as a sale of the entire estate even though the two shares constituted the whole estate, and the purchaser was not entitled to the privileges conferred on the purchaser of an entire estate by section 37 of the Bengal Land Revenue Sales Act, 1859.
The notification issued under section 6 of the Act was conclusive as to whether the subject matter of the sale was the entire estate or the separate shares constituting the estate.


judgement:
minal Appeal No. 156 of 1960.
Appeal by special leave from the judgment and order dated August 1, 1958, of the Rajasthan High Court, at Jodhpur in Criminal Appeal Nos. 98 and 155 of 1957 and Criminal Revision No. 116 of 1957.
Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellant.
H. J. Umrigar, H. R. Khanna, Bipin Behari Lal, R. H. Dhebar and D. Gupta, for the respondent.
663 1961.
March 30.
The Judgment of the Court was delivered by SUBBA RAO, J.
This is an appeal by special leave against the judgment of the High Court of Judicature for Rajasthan dated August 1, 1958, confirming the Judgment of the Additional Sessions Judge, Churu, dated May 3, 1957, in so far as he convicted the appellant under sections 347, 365 and 386, Indian Penal Code, and setting aside his order acquitting the appellant under section 458, Indian Penal Code, and convicting the appellant under section 452, Indian Penal Code.
The learned Additional Sessions Judge sentenced the appellant for the offences under sections 347, 365 and 386, Indian Penal Code, to undergo rigorous imprisonment for I year, 2 years and 3 1/2 years respectively.
Tile High Court enhanced the sentences in respect of the offences under so.
347 and 386, Indian Penal Code, to 3 years and 8 years respectively, and also imposed a fine of Rs. 20,000 on the appellant; the sentence in regard to the offence under section 365, Indian Penal Code, was confirmed.
The High Court further found that the appellant was guilty under section 352, Indian Penal Code, also and for that offence it sentenced him to undergo rigorous imprisonment for 7 years.
At the outset it would be convenient to state briefly the case of the prosecution.
One Kashiram, a prosperous businessman, was residing at Sidhmugh.
His only son Suraj Bhan was living at Rajgarh where lie was carrying on an independent business of his own.
On November 12,1954, when Suraj Bhan was at his desk in his house, somebody made an enquiry whether one Rameshwar was there, to which Suraj Bhan replied in the negative.
A few minutes thereafter, two men with masks entered the room and one of them was armed with a revolver.
The said two persons threatened to shoot Suraj Bhan if he made any noise and then took him outside the house where two camels were kept waiting attended by two other persons similarly masked.
After covering the face of Suraj Bhan by tying a cloth round his neck, he was made to mount one of the camels.
The two persons who pulled Suraj Bhan out of his house also 664 mounted the same camel, one in front of Suraj Bhan and the other behind him.
After firing some shots in the air, presumably to prevent pursuit, the said per sons, along with Suraj Bhan, left the place.
After riding for 3 or 4 hours, the camels were made to stop on a railway line, the said persons got down from the camel, Suraj Bhan was also made to get down, and all of them went along the railway line for 3 or 4 furlongs.
Thereafter, Suraj Bhan was taken to the house of Dee Chand, the appellant, in village Kalari and was kept there in confinement in a small room for 17 days.
During the entire period he was kept blindfolded.
Two or three days after the abduction, Suraj Bhan was made to write three letters to his father and put down his father 's address on the envelopes.
He was made to write these letters under the cover of a blanket after his bandage was removed temporarily.
In the first letter he was made to write that if his father reported the matter to the police, he would not see his son again in the second letter, he was made to inform his father that in view of the attempts made by his father to trace him, his abductors had made up their minds not to release him, but in view of his entreaties they had agreed to release him on payment of a ransom of Rs. 60,000; and in the third letter, he was made to write that the money should be handed over to the bearer of the letter and that he would be released on such payment.
After the receipt of the first two letters by Kashi Ram, the abductors entered on the second stage of negotiations.
Meanwhile, to facilitate the smooth conduct of the negotiations, on November 29, 1954, Suraj Bhan was removed to the house of one Lachhman and was confined there till his release.
Kashi Ram has a son in law by name Shiv Bhagwan, the son of one Durga Parshad.
Dhannaram and Shiv Bhagwan knew each other.
Dhannaram offered to help Kashi Ram to get the release of his son.
Dhannaram gave a letter addressed to Deep Chand to Durga Parshad wherein Deep Chand was requested to render his help in the matter of the release of Suraj Blian.
On the basis of the letter, Durga Parshad contacted Deep Chand, who promised 665 to do his best in the matter.
After further talks, Dhannaram met Shiv Bhagwan and told him that Suraj Bhan was alive but a large sum would be required as ransom to get his release.
He also warned him not to divulge the secret, for, if he did so, not only the life of Suraj Bhan but also of other relations would be in danger.
He demanded Rs. 70,000 as ransom, but after some higgling it was fixed at Rs. 50,000.
The third letter written by Suraj Bhan at the instance of Deep Chand was shown to Shiv Bhagwan and to his father Durga Parshad to assure them that Suraj Bhan was alive.
After satisfying themselves ' of the bona fides of the negotiations conducted by Dhannaram, Shiv Bhagwan and Durga Parshad went to the house of Dhannaram where they found Deep Chand.
The sum of Rs. 50,000 was paid to Dhannaram and Deep Chand; and both of them counted the money.
The money was paid on December 17,1954, and Suraj Bhan was released on December 20, 1954.
Five persons, namely, Deep Chand, Sisram, Jiwan Ram, Dhannaram and Ramji Lal, were prosecuted in the Sessions Court for the aforesaid offences.
The learned Sessions Judge acquitted Ramji Lal, Dhannaram and Jiwan Ram, and convicted Sisram under sections 347 and 365, Indian Penal Code, and Deep Chand as aforesaid.
Nothing more need be said about the conviction of Sisram, as on appeal he was acquitted by the High Court and no appeal was preferred by the State against his acquittal.
The learned Sessions Judge, on a consideration of the entire evidence placed before him, held that there was overwhelming evidence to show that Deep Chand detained Suraj Bhan in his house for sometime and thereafter in Lachhman 's house and released him on payment of a ransom.
But he held that there was not sufficient evidence to find definitely that Deep Chand participated in the abduction of Suraj Bhan on November 12, 1954, from the latter 's house.
On these findings, he convicted Deep Chand under sections 347, 365 and 386, Indian Penal Code.
Deep Chand preferred an appeal against his conviction, and the State filed an appeal 84 666 against the judgment of the learned Sessions Judge in so far as he acquitted Deep Chand of the offence under section 458, Indian Penal Code.
The State also preferred a revision for enhancing the sentences passed on Deep Chand.
All the matters were heard together by the High Court and, on a resurvey of the entire evidence, it agreed with the Sessions Judge that Suraj Bhan was confined in the house of Deep Chand and later on in the house of Lachhman and that he extorted money from Kashi Ram by putting him under fear of death of his son, Suraj Bhan.
Disagreeing with the Sessions Judge, the High Court further held that it had been established on the evidence that Deep Chand was one of the persons who abducted Suraj Bhan from his house on November 12, 1954.
In the result, the High Court convicted the appellant not only under sections 347, 365 and 386, Indian Penal Code, but also under section 452 thereof.
In the matter of enhancement of the sentences, it was of the view that the case deserved an exemplary punishment and, therefore it enhanced the sentences as aforesaid.
Deep Chand preferred the present appeal by special leave.
Learned counsel for the appellant in an attempt to dislodge the findings arrived at by the High Court raised the following points before us: (1) The High Court erred in relying upon the statement made by Suraj Bhan before the Magistrate at the time of verification proceedings, though it was not recorded in compliance with the provisions of section 164 of the Code of Criminal Procedure, and if the said statement and the verification proceedings based on that statement were excluded, it is not possible to predicate that the High Court would have accepted the evidence of Suraj Bhan in respect of his version that he was confined in the house of Deep Chand.
(2) The High Court also went wrong in upholding the privilege claimed by Shri section Gajender Singh, the District Magistrate, in respect of important questions put to him in the cross examination; and if the claim of privilege had not been upheld, answers would have been elicited from him which might have established that Suraj Bhan was lying in the witness stand and that his previous 667 statements represented the truth.
(3) The High Court erred also in setting aside the order acquitting the appellant under section 458, Indian Penal Code, without sufficient and compelling reasons and in convicting him under section 452, Indian Penal Code.
To appreciate the said questions, it is necessary to notice briefly the facts found by the courts below.
On the first part of the episode, that is, the abduction of Suraj Bhan, the High Court accepted the evidence of Suraj Bhan.
Suraj Bhan stated in his evidence that when he was writing his accounts at about 7 15 p.m. in his house on November 12, 1954, two persons with their faces covered with masks entered his house and by threatening to shoot him, forcibly took him away on one of the two camels brought by them.
He further alleged that he recognized one of the abductors who threatened him with a revolver as Deep Chand, as he was a local Congressman known to Suraj Bhan from before.
This identification of Deep Chand as one of the accused was not accepted by the Sessions Judge, but the High Court accepted it for the reason given in its judgment.
As regards the second stage, namely, the confinement of Suraj Bhan in Deep Chand 's house, the High Court accepted the evidence of Suraj Bhan identifying the said house by giving particulars thereof.
Suraj Bhan 's version was as follows: During his confinement in the house, he used to loosen the bandage and see through the chinks in the wall of the room in which he was interned.
He was in that house for 17 days and he had heard the voice of Deep Chand whom he knew before.
During his confinement there, he also heard a lady enquiring whether Deep Chand had gone out and another lady answering the query.
He had also given in detail the landmarks he gathered in the course of his journey from his house to the house of Deep Chand which substantially tallied with those leading to Deep Chand 's house.
This evidence of Suraj Bhan was corroborated by the evidence of Devisingh, the Magistrate, Randhawa and Ratan Singh.
The Magistrate took Suraj Bhan along with him to the house of Deep Chand.
He inspected the house and got the plan, exhibit P 28, prepared under his 668 supervision by P.W. 25, the Reserve Inspector, Churu.
He also recorded the memorandum, exhibit P 27, in which his observations and the statements made by Suraj Bhan were noted down. ' The Magistrate gave evidence as P.W. 21 and in his evidence he described the building of Deep Chand and also proved the memorandum prepared by him.
His evidence is further corroborated by the evidence of two witnesses, P.W. 25, Randhawa, and P.W. 39.
The memorandum prepared by the Magistrate, his evidence and the evidence of P.Ws. 25 and 39 establish that there used to be chinks in the wall through which Suraj Bhan used to see a tree and that these chinks had been recently closed "by pointing the room from inside" and that two new rooms were constructed towards the north of the house.
P.W. 27 deposed that these two new constructions were made about the beginning of the year 1955.
This evidence, which was accepted by the courts below, supported the evidence of Suraj Bhan in regard to the condition of the building at the time he was interned therein.
On the basis of the said evidence, both the courts concurrently held that the house in which Suraj Bhan was interned for 17 days was the house of Deep Chand.
Now coming to the third stage of the journey, that is, the confinement of Suraj Bhan in Lachhman 's house, Lachhman, as P.W. 3, deposed that on a request made by Jiwan Ram on behalf of Deep Chand he agreed to keep a lady whom Jiwan Ram and Deep Chand would bring to his house for a few days and on the next day, Deep Chand and Sisram brought in the midnight Suraj Bhan instead of a lady.
He also described in detail the instructions given to him by Deep Chand and the manner in which he attended on Suraj Bhan, during his stay of 21 days in his house.
This house was also identified by Suraj Bhan.
Suraj Bhan further gave some details of the surroundings of the house and also the name of the son of Lachhman.
This evidence proves that Suraj Bhan was shifted by Deep Chand to the house of Lachhman on the eve of the negotiations.
The High Court held against the appellant, even without calling in aid the evidence of Lachhman, on the basis of other facts.
669 Then there is the evidence of Shiv Bhagwan and Durga Parshad, who actually paid the ransom.
These witnesses spoke about the negotiations and also the actual payment of Rs. 50,000 to Deep Chand.
This evidence was again accepted by both the courts.
Then there was the evidence of Lachi Ram and Amar Singh, who carried on negotiations with Deep Chand for the return of the ransom in the presence of Chowdhuri Kumbbaram, the then Home Minister of Rajasthan.
This evidence was also accepted by both the courts.
The aforesaid evidence, along with other circumstances, according to the High Court, brought home the guilt to the appellant on all charges.
It is the usual practice of this Court to accept the concurrent findings of fact arrived at by the courts below and there are no exceptional circumstances in this case to depart from the usual practice.
We shall now proceed to consider the arguments of learned counsel for the appellant seriatim.
His first criticism is directed against the verification proceedings conducted by the Magistrate at the house of Deep Chand.
On the basis of the statement made by Suraj Bhan giving the particulars of the building, the Magistrate got a plan, exhibit P 28, prepared and also a memorandum, exhibit P 27.
He also gave evidence in the court.
It is said that the High Court went wrong in acting upon the said memorandum by the Magistrate.
The relevant provisions are section 164 of the Code of Criminal Procedure and section 9 of the Evidence Act.
The material part of section 164 of the Code of Criminal Procedure reads: "(1) Any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government may, if he is not a police officer record any statement or confession made to him in the course of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial.
(2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording 670 evidence as is, in his opinion, best fitted for the circumstances of the case.
Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.
" Section 9 of the Evidence Act says that facts which.
establish the identity of any thing or person whose identity is relevant, are relevant in so far as they are necessary for that purpose.
These two sections deal with different situations: section 164 of the Code of Criminal Procedure prescribes a procedure for the Magistrate recording statements made by a person during investigation or before trial; section 9 of the Evidence Act, on the other hand, makes certain facts which establish the identity of a thing as relevant evidence for the purpose of identifying that thing.
If a statement of a witness recorded by a Magistrate in derogation of the provisions of section 164 will go in as evidence under section 9 of the Evidence Act, the object of section 164 of the said Code will be defeated.
It is, therefore, necessary to resort to the rule of harmonious construction so as to give full effect to both the provisions.
If a Magistrate speaks to facts which establish the identity of any thing, the said facts would be relevant within the meaning of s, 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of section 164 of the Code of Criminal Procedure, such part of the evidence, though it may be relevant within the meaning of section 9 of the Evidence, ' Act, will have to be excluded .
By such a construction of the provisions a satisfactory solution could be evolved.
The decision of the Judicial Committee in Nazir Ahmad vs The King Emperor (1) is rather instructive.
There, a Magistrate gave evidence in court on the strength of a confession made to him which was not recorded under section 164 of the Code of Criminal Procedure.
The question was whether the said evidence was admissible against the accused.
The Judicial Committee quoted and approved the well recognized rule that (1) Lahore 629.
671 where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all, and other methods of performance are necessarily forbidden.
Adverting to section 164 of the Code of Criminal Procedure, the Judicial Committee proceeded to state at p. 642 thus: "It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by sections 164 and 364 would be of such trifling value as to be almost idle." The Judicial Committee also stated the policy underlying the section thus at p. 643: "In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever.
" These are weighty observations and we respectfully adopt them.
But this decision does not preclude, a Magistrate from deposing to relevant facts if no statute precludes him from doing so either expressly or impliedly.
Neither the Evidence Act nor the Code of Criminal Procedure prohibits a, Magistrate from deposing to relevant facts within the meaning of section 9 of the Evidence Act.
In Legal Remembrancer vs Lalit Mohan Singh Roy (1), a Magistrate sought to give evidence of an unrecorded statement made to him by the accused.
The court rightly held that it was not permissible.
The same remarks we made in regard to the decision of the Privy Council would apply to this case.
In this context a few relevant decisions bearing on the admissibility in evidence of verification proceedings could conveniently be noticed.
In Amiruddin Ahmed vs Emperor (2), a Magistrate conducted verification proceedings with a view to test the truth of a confession made by the accused.
Teunon, J., made the following observations at p. 564: "They are undertaken, it would seem, with a view (1) Cal. 167.
(2) Cal 557.
672 to testing the truth of a confession and to obtain evidence either corroborating the confession or indicating its falsity.
In so far at least as such evidence may be obtained, for instance, in ascertaining that the prisoner is familiar with, or wholly ignorant of, the localities of which he has spoken, or in furnishing clues to further enquiry, such proceedings may be useful.
In connection with such proceeding the main concern of the Court would seem to be to ensure that evidence not strictly admissible is not admitted.
In the present case that precaution has not been taken: for we find that the verifying Magistrate has been permitted to speak to statements said to have been made to him in the course of his proceedings.
Such additional statements being statements made in the course of an investigation, when not recorded in the manner provided in section 164 of the Code of Criminal Procedure, are, in my opinion, inadmissible." The other learned Judge, Shamsul Huda, J., made the following statement at p. 572: "I think, 'verification ' under conditions such as these lends itself to very great abuses and should be avoided.
There is perhaps nothing objectionable in a verification made independently of the confessing accused and unaided by him".
We are not concerned in this case with the propriety of verification proceedings in regard to a confession made by an accused.
This decision is an authority for the position that the evidence given by a Magistrate on the basis of the verification proceedings conducted by him is relevant evidence ' though he could not speak of statements made by the accused or a witness recorded by him in contravention of section 164 of the Code of Criminal Procedure.
The same distinction was pointed out by the Special Bench of the Calcutta High Court in Jitendra Nath vs Emperor (1).
In that case, the learned Judges observed at p. 110 thus: "In one case there was a verification report so far as the confessional statement of an accused person was concerned, which it would appear was fairly (1) A.I.R. 1937 Cal.
673 supported by other evidence bearing on matters covered by the said report by the Magistrate by whom it was recorded, and which cannot be ruled out on the ground that it was inadmissible in evidence, seeing that the Magistrate himself was examined as a witness in the case, and spoke to the contents of the report made by him, which is placed on record as evidence, in support of the confessional statement of Sudhir Bbattacharjya.
" Then the learned Judges proceeded to state, "Statements made by the accused to the verifying Magistrates in the course of the proceedings, if they are not recorded in the manner provided in section 164, Criminal Procedure Code, are however inadmissible.
" It is, therefore, clear that the memorandum prepared by the Magistrate describing the present condition of the house and the evidence given by him on the basis of that memorandum would be relevant evidence under section 9 of the Evidence Act; but *.he statements made by Suraj Bhan to the Magistrate said to be not recorded in the manner prescribed by section 164 of the Code of Criminal Procedure would be inadmissible.
We are proceeding on the basis that the said statements were not recorded in compliance with the provisions of section 164 of the Code of Criminal Procedure and we should not be understood to have expressed any opinion on the question whether they have been so recorded or not, or whether mere irregularities, if any, committed in the manner of recording such statements by Magistrates under section 164 of the Code of Criminal Procedure would make such statements inadmissible.
That apart, exhibit P 27 and the evidence given by the Magis trate were only used by the court as corroborating the evidence of Suraj Bhan in regard to his evidence describing the house of Deep Chand.
Apart from the Magistrate 's evidence there is also other.
evidence in the case in regard to the original condition of the building and the subsequent additional structures put up by Deep Chand.
As the High Court accepted that evidence, even if the evidence of the Magistrate was excluded it would not have made any difference in the result.
We, therefore, hold that the evidence of the 85 674 Magistrate, excluding that part pertaining to the statements made to him by Suraj Bhan, was relevant evidence in the case.
The second contention turns upon the claim of privilege raised by witness Gajender Singh and allowed by the learned Sessions Judge.
Some of the relevant facts may now be stated.
Suraj Bhan was released on December 20, 1954.
On February 14, 1955, one Shiv Dutt made a statement before the District Magistrate, section Gajendar Singh, and the said Magistrate recorded the same under section 164 of the Code of Criminal Procedure.
In that statement Shiv Dutt stated that Suraj Bhan told him the present version of the prosecution.
On March 12, 1955, Suraj Bhan was examined by the police and he made a statement (exhibit D 8).
Therein he gave an altogether different version contradicting the statement of Shiv Dutt, On April 29, 1955, Suraj Bhan filed an affidavit, exhibit P 5, in the: Court of the Additional District Magistrate, Ganganagar, stating that Deep Chand had nothing to do with the offence ' On May 5, 1955, the prosecution got five copies of the said affidavit made and attested.
On May 23, 1956, for the first time, Suraj Bhan implicated Deep Chand in the crime.
Regarding the question whether Shiv Dutt made such a statement on February 14,1955, Gajender Singh and Shiv Dutt were examined and both of them spoke to that fact.
The argument is that important questions put to Gajender Singh were illegally disallowed and if they had not been disallowed the accused would have been in a position to establish that Gajender Singh was not speaking the truth and that if that evidence was eliminated, the High Court might not have accepted the reasons advanced by the prosecution explaining away the inconsistent versions given by Suraj Bhan.
At the outset it may be stated that it is not quite correct to state that the High Court explained away the earlier versions given by Suraj Bhan on the basis of the evidence given by Gajender Singh.
On the other hand, both the courts have given convincing reason why Suraj Bhan and the members of his family did not come forward immediately with the true version of the incident; for, at one stage, they were anxious to 675 save the life of Suraj Bhan and at a later stage they were equally anxious to get back the money paid as ransom by Suraj Bhan 's father.
The courts have also accepted the evidence of Shiv Dutt.
That apart, the question of privilege was not raised before the High Court.
In the circumstances, we would not be justified in allowing the appellant to raise before us the question of privilege based upon ' the disallowance of a few questions put to one of the witnesses.
This objection is, therefore, rejected.
The third argument has no merits either.
The High Court considered, and in our view rightly that there was no reason to disbelieve the evidence of Suraj Bhan when he identified Deep Chand at the time of abduction.
Suraj Bhan knew the accused before and he also knew his stature and voice.
Suraj Bhan was in the company of Deep Chand from the time of his abduction till he was finally released.
When Suraj Bhan, in the circumstances, stated that he identified Deep Chand, there is no valid reason to reject his evidence.
In the circumstances, the High Court was quite justified in setting aside the order of acquittal under section 458, Indian Penal Code, and convicting him for the offence under section 452 there of Finally learned counsel for the appellant made an impassioned appeal on the question of sentence.
He said that the learned Sessions Judge had awarded a reasonable sentence to the accused and the High Court was not justified in enhancing the said sentence.
The Sessions Judge held that the accused was guilty of a grave and heinous crime and we are surprised that he should have sentenced the accused to undergo rigorous imprisonment for one year under section 347, 2 years under section 365 and 3 1/2 years under section 386, Indian Penal Code, and direct the sentences to run concurrently.
When the Sessions Judge gave such a disproportionately lenient sentences, it was the duty of the High Court to rectify such an obvious error.
In our view, the learned Judges of the High Court rightly enhanced the sentence imposed on the appellant.
In the result, the appeal fails and is dismissed.
Appeal dismissed.

dataset_name: IN-Abs

summary:
In a verification proceeding held by him the Magistrate.
prepared a memorandum recording his own observations as also the statements made to him by a prosecution witness but not in the manner prescribed by section 164 Of the Code of Criminal Procedure.
He proved the memorandum in court and gave his evidence.
It was contended that the High Court was wrong in acting upon the said memorandum.
Held, that although section 164 Of the Code of Criminal Procedure and section 9 of the deal with two different matters, they must be read together and harmoniously con strued so as to give full effect to both of them.
So construed, there could be no doubt that the evidence of the Magistrate himself on the basis of the memorandum would be relevant under section 9 of the Evidence Act and as such admissible in evidence but the statements made to him by the prosecution witness, having been recorded in contravention of the mandatory provisions of section 164 Of the Code, must be excluded as inadmissible ' on evidence.
Nazir Ahmad vs The King Emperor, Lah.
620, Legal Remembrancer vs Lalit Mohan Singh Roy, (192I) I.L.R. considered.
Amiruddin Ahmed vs Emperor, Cal.
557, and jitendra Nath vs Emperor, A.I.R. 1937 Cal.
99, referred to.


judgement:
iminal Appeal No. 37 of 1960.
Appeal by special leave from the judgment and order dated the April 7, 1958, of the Punjab High Court (Circuit bench) at Delhi in Criminal Writ No. 57 D of 1957.
M. C. Setalvad, Attorney General of India, B. Sen and T. M. Sen, for the appellants.
H. L. Anand and Janardan Sharma, for respondent.
April 4.
The Judgment of the Court was delivered by 94 746 SARKAR, J.
This is an appeal by the Union of India from a judgment of the High Court of Punjab allowing the respondent 's application under article 226 Of the Constitution for a writ quashing an order made against him on January 29, 1958, under section 3(2)(c) of the .
That order was made by the Chief Commissioner of Delhi and was in these terms: "The Chief Commissioner of Delhi is pleased to direct that Mr. Ghaus Mohd. . a Pakistan national shall not remain in India after the expiry of three days from the date on which this notice is served on him. . .
The order was served on the respondent on February 3, 1958.
The respondent did not comply with that order but instead moved the High Court on February 6, 1958, for a writ to quash it.
The High Court observed that "There must be prima facie material on the basis of which the authority can proceed to pass an order under section 3(2)(c) of the .
No doubt if there exists such a material and then the order is made which is on the face of it a valid order, then this Court cannot go into the question whether or not a particular person is a foreigner or, in other words, not a citizen of this country because according to Section 9 of the , this question is to be decided by a prescribed authority and under the Citizenship Rules, 1956, that authority is the Central Government.
" The High Court then examined the materials before it and held, "in the present case there was no material at all on the basis of which the proper authority could proceed to issue an order under Section, 3(2)(c) of the ." In this view of the matter the High Court quashed the order.
It was contended on behalf of the Union of India that section 9 of the , had no application to this case.
We think that this contention is correct.
That section deals with the termination of citizenship of a citizen of India in certain circumstances.
It is not the Union 's case nor that of the respondent that the latter 's citizenship came to an end 747 for any of the reasons mentioned in that section.
The reference to that section by the High Court for the decision of the case, was therefore not apposite.
That section had no application to the facts of the case.
Section 2(a) of the , defines a "foreigner" as "a person who is not a citizen of India Sub section (1) of section 3 of that Act gives power to the Central Government by order to provide for the presence or continued presence of foreigners in India.
Sub section (2) of section 3 gives express power to the Government to pass orders directing that a foreigner shall not remain in India.
It was under this provision that the order asking the respondent to leave India was made.
There is no dispute that if the respondent was a foreigner, then the order cannot be challenged.
The question is whether the respondent was a foreigner.
Section 8(l) of the to which we were referred, deals with the case of a foreigner who is recognised as its national by more than one foreign country or when it is uncertain what his nationality is.
In such a case this section gives certain power to the Government to decide the nationality of the foreigner.
Sub section (2) of this section provides that a decision as to nationality given under sub sec.
(1) shall be final and shall not be called in question in any court,.
We entirely agree with the contention of the Union that this section has no application to this case for that section does not apply when the question is whether a person is a foreigner or an Indian citizen, which is the question before us, and not what the nationality of a person who is not an Indian citizen, is.
Section 9 of this Act is the one that is relevant.
That section so far as is material is in these terms: Section 9.
"If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner. . the onus of proving that such person is not a foreigner . shall, notwithstanding anything contained in 'the (1 of 1872), lie upon such person.
" 748 It is quite clear that this section applies to the present case and the onus of showing that he is not a foreigner was upon the respondent.
The High Court entirely overlooked the provisions of this section and misdirected itself as to the question that arose for decision.
It does not seem to have realised that the burden of proving that he was not a foreigner, was on the respondent and appears to have placed that burden on the Union.
This was a wholly wrong approach to the question.
The question whether the respondent is a foreigner is a question of fact on which there is a great deal of dispute which would require a detailed examination of evidence.
A proceeding under article 226 of the Constitution would not be appropriate for a decision of the question.
In our view, this question is best decided by a suit and to this course neither party seems to have any serious objection.
As we propose to leave the respondent free to file such a suit if he is so advised, we have not dealt with the evidence on the record on the question of the respondent 's nationality so as not to prejudice any proceeding that may be brought in the future.
We think, for the reasons earlier mentioned, that the judgment of the High Court cannot be sustained and must be set aside and we order accordingly.
On behalf of the Union of India the learned Attorney General has stated that the Union will not take immediate steps to enforce the order of January 29, 1958, for the deportation of the respondent so that in the meantime the respondent may if he so chooses, file a suit or take any other proceeding that he thinks fit for the decision of the question as to whether he is a foreigner.
In the result the only order that we make is that the order and the judgment of the high Court are set aside.
Appeal allowed.

summary:
An order had been made under section 3(2)(C) Of the , directing that the respondent, "a Pakistan national 745 shall not remain in India after the expiry of three days".
The respondent moved the High Court of Punjab under article 226 of the Constitution to quash the order contending that he was not a Pakistan national.
The High Court held that if there was Prima facie material to show that a person was a foreigner, a civil court would not go into the question whether he was a foreigner for under section 9 of the , that question had to be decided by the prescribed authority which under the Rules framed under the Act, was the Central Government.
The High Court came to the conclusion that there was no Prima facie material on the basis of which an order under section 3(2)(C) Of the could be passed against the respondent and in that view quashed the order.
On appeal by the Union of India by special leave, Held, that section 9 of the dealt with the termi nation of the citizenship of an Indian citizen and had no application to this case as the Union did not contend that the respondent had been an Indian citizen whose citizenship had terminated.
Section 8 of the which made the decision` of the Central Government on a question of the nationality of a foreigner who is recognised as its national by more than one foreign country or when it is uncertain what his nationality is final, also did not apply as the only question in this case was whether the respondent was a foreigner or an Indian Citizen.
The case was governed by section 9 of the under which when a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner is on that person.
The High Court was in error In placing on the Union of India the burden of proving that the respondent was a foreigner.


judgement:
ons Nos. 93 and 125 of 1959.
Petitions under article 32 of the Constitution of India for enforcement of Fundamental Rights.
V. M. Limaye, E. Udayarathnam and section section Shukla, for the petitioners.
734 H.N. Sanyal, Additional Solicitor General of India, R. Ganapathy Iyer and D. Gupta, for the respondent.
W. section Barlingay and A. G. Ratnaparkhi, for the Interveners.
April 4.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
These two writ petitions have been filed under article 32 of the Constitution and they seek to challenge the validity of the Bombay Tenancy and Agricultural Lands Act 99 of 1958 (hereafter called the Act).
The impugned Act in substance is intended to extend to Vidarbha region and Cutch area which had then become a part of the Greater Bi Lingual State of Bombay the provisions of the Bombay Tenancy and Agricultural Lands (Amendment) .Act, 1956 (Act XIII of 1956).
The preamble to the impugned Act shows that it was intended to amend the law relating to tenancies of agricultural lands and sites used for allied purposes in the two areas of the State of Bombay and to make certain other provisions in regard to those lands.
In extending the provisions of the earlier Bombay Act XIII of 1956 to the two areas the legislature has conformed to the pattern set up by the said earlier Act.
The policy underlying the Act and the object intended to be achieved by it are the same and the method adopted in achieving that object is also the same.
The validity of the earlier Bombay Act (XIII of 1956) was challenged before this Court in Sri Ram Ram Narain Medhi vs The State of Bombay (1) but the challenge failed and the Act was held to be constitutional.
One of the points which arose for decision in that case was whether the impugned Act was protected by article 31A(2)(a) of the Constitution, and the answer to that question depended upon the determination of another issue which was whether the lands to which the said Act applied were an "estate" as required by article 31A(2)(a).
In dealing with that question this Court held that the word "estate" as defined by section 2(5) of the Bombay Land Revenue Code, 1879, clearly applied to the lands (1) [1959] Supp. 1 S.C.R. 489.
735 covered by the Act and so article 31A(2)(a) was applicable.
Having regard to this decision the only point which Mr. Limaye attempted to raise before us in support of the two writ petitions is that the lands belonging to the two petitioners are not an "estate" within the meaning of article 31A(2)(a), and so the impugned Act is outside the protection of article 31A.
If this contention is not upheld then it is obvious that( the writ petitions must fail; if the said contention is upheld then of course the other contentions raised by the two writ petitions against the validity of certain specific provisions of the Act may fall to be consi dered.
The two petitioners are Namdeorao Baliramji and Mahadeo Paikaji Kolhe respectively.
The first one resides at Amraoti and the second at Yeotmal.
The first owns about 80 acres dry lands situated in Amraoti out of which 43 acres are under his personal cultivation and the rest in the possession of the tenants.
The second petitioner owns about 1168 acres dry lands situated in Yeotmal out of which 400 acres are under his personal cultivation and the rest with the tenants.
The lands in both the cases are charged to the payment of land revenue.
The case for both the petitioners is that the lands thus held by them are not an "estate" within the meaning of article 31A(2)(a).
Article 31A(2)(a) provides, inter alia, that the expression "estate" shall in relation to any local area have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area.
The existing local law, it is common ground, is the Madhya Pradesh Land Revenue Code, 1954 (II of 1955), and so it is necessary to find whether the lands belonging to the petitioners can be said to be an 'estate ' within the meaning of the said Code.
Before we do so, however, it may be pertinent to refer to the relevant definitions in the impugned Act.
Section 2(17) of the Act defines land as meaning, inter alia, land which is used or capable of being used for agricultural purposes and includes the sites of farm buildings appurtenant to such land.
Section 2(18) defines a land holder as meaning a 736 tenure holder whom the State Government has declared on account of tile extent and value of the, land or his interests therein to be a land holder for the purposes of this Act.
Now,s.27 of the Madhya Pradesh Land Revenue Code in question defines a holding as meaning, inter alia,a parcel of land separately assessed to land revenue,and section 2(20) defines a tenure holder as meaning a person holding from the State Government as a Bhumiswami or a Bhumidari.
Chapter XII of the Code deals with tenure holders.
Section 145 provides that there, shall be two classes of tenure, holders of lands held from the State, namely, Bhumiswami and Bhumidhari.
Section 146 deals with Bhumiswami.
It provides that "every person who at the coming into force of this Code belongs to any of the classes specified in clauses (a) to (f) of the said section shall be called a Bhumiswami and shall have all the rights and is subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code".
Amongst these classes is the class covered by el.
(e) which relates to persons in respect of lands held by them as occupants in Berar.
Thus reading the relevant definitions along with the provisions of section 146 of the Code it would follow that the land in the possession of the Bhumiswami who is a tenure holder is in substance all estate.
It is true that the word "estate" as such has not been employed in the Code, but it must be borne in mind that article 31A(2)(a) refers not only to estate but also to its local equivalent.
It was realised that in many areas the existing law relating to land tenures may not expressly define all estate as such though the said areas had their local equivalents described and defined.
That is why the relevant provision of the Constitution has deliberately used both the word "estate" as well as its local equivalent".
The petitioners hold lands under the State and they pay land revenue for the, lands thus held by them.
Therefore, there is no difficulty in holding that under the existing law relating to land tenures the lands held by them fill within the class of the local equivalents of the word "estate" as contemplated by 737 article 31A(2)(a).
If that is so the contention raised by Mr. Limaye that the impugned Act is not protected by article 31A cannot succeed.
As we have already indicated it is not disputed that if article 31A applies there can be no further challenge to the validity of the impugned statute.
The writ petitions accordingly fail and are dismissed with costs one SEt of hearing costs.
Petitions dismissed.

summary:
The petitioners challenged the constitutional validity of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, which extended the provisions of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956, to Vidarbha and Kutch.
That Act was declared valid by this Court in Sri Ram Narain Medhi vs The State of Bombay, [1950] Supp. 1 S.C.R. 489, and one of the reason , for doing so was that the lands covered by that Act fell within the definition of the word 'estate ' contained in the Bombay Land Revenue Code, 1879.
The lands in question in the present petitions were situated in Amraoti and Yeotmal and the existing law relating to land tenures in force in that area was the Madha Pradesh Land Revenue Code, 1954.
This Code did not employ the word ,estate ' and it was contended by the petitioners that the impugned Act was not within the protection of article 31A of the Constitution.
Held, that the contention must fail.
Although the Madhya Pradesh Land Revenue Code, 1954, did not employ the word 'estate ', the relevant definition contained in sections 2(17) and 2(18) of impugned Act and sections 2(7), 2(20) of the Code read with sections 145 and I46 thereof leaves no manner of doubt that the lands in the possession of the petitioners were tenures and in substance ,in estate.
Since the petitioners held the lards tinder the State and paid land revenue for them, the lands fell within the class of local equivalents of the word 'estate. ' as contemplated by article 31A(2)(a) of the Constitution.