judgement:
Appeal No. 22 of 1960.
Appeal by special leave from the judgment and order dated March 19, 1958, of the Allahabad High Court in F. A. No. 62 of 1954.
section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellant.
G. section Pathak, section K. Kapur, B. N. Kirpal and Ganpat Rai, for the respondent.
April 27.
The Judgment of the Court was delivered by section K. DAs, J.
This is an appeal by special leave granted by this Court on December 8, 1958.
On July 19, 1950, Satya Deo Gupta, respondent before us, made an application under a. 14 of the (Act V of 1940) (hereinafter referred to as the Act) for registration of the trade name of a biochemical medicinal preparation, commonly known as 'Laksbmandhara ', in Class 5 of the Fourth Schedule to the Trade 486 Marks Rules, 1942.
The application was made by the respondent as the sole proprietor of Rup Bilas Company situate, at Dhankutti in Kanpur.
The averments made in the application were that the said medicinal preparation had been in use by the name of "Lakshmandhara ' since 1923 and was sold throughout the length and breadth of India as also in some foreign markets; the mark or name 'Lakshmandhara ' was said to be distinctive to the article, and it was stated that the approximate annual turnover was Rs. 40,000/ .
Notice of the application was given by the Registrar of Trade Marks, Bombay, and the Amrit dhara Pharmacy, a limited liability company and appellant before us, filed an application in opposition.
In this application the appellant stated that the word 'Amritdhara ' was already registered as a trade name for the medicinal preparation of the appellant, and that medicinal preparation was introduced in the market so far back as in the year 1901; on account of its great popularity many people advertised similar medicines with slight variations of name to pass off their goods as 'Amritdhara '.
It was averred that the composite word Lakahmandhara ' was used to denote the same medicine as Amrit, dhara '; and the single word dhara , it was stated, was first used in conjunction with 'Amritdhara ' to denote the medicine of the appellant and the medicine 'Lakahmandhara ' being of the same nature and to quality could be easily passed off as 'Amritdhara ' to the ultimate purchaser.
The appellant contended that as 'Amritdhara ' was already registered and 'Lakshmandhara ' being a similar name was likely to receive the public, registration should be refused.
On behalf of the respondent a counter affidavit was made in which it was stated that "Amritdhara ' and Lakshinandhara ' were two distinctly different names and no one could pass off one for the other.
487 It was further stated that during the long period of introduction and sale of Lakshmandhara ' since 1923, no objection was ever raised from any quarter, from the appellant or anybody else, to the use of the name 'Lakshmandhara '.
It was denied by the respondent that the composite word 'Lakshmandhara ' was likely to deceive the public or could by any stretch of imagination be taken or mistaken for 'Amritdhara '.
The respondent further alleged that the single word 'dhara ' had no particular significance in relation to the medicine, nor did that word mean or convey any special or exclusive meaning or effect in relation to the medicine.
It was also stated that apart from the difference in name, the phial, label and packing of 'Lakshmandhara ' had exclusive designs of their own and were not likely to be confused with 'any other medicine of similar nature, least of all with 'Amritdhara ' whose packing was distinctly different in colour, design and layout.
The Registrar of Trade Marks dealt with the application and the opposition thereto by his order dated September 10, 1953.
It appears that apart from the affidavits filed, no other evidence was led on behalf of either party; but certified copies of certain decisions in earlier cases (to which the respondent was not, however, a party) given in favour of the appellant in support of its claim of infringement of its registered trade mark 'Amritdhara ' were filed.
A list of such cases has been printed as annexure 'A '.
These cases showed that a number of medicines with the word 'Amrit ' or 'dhara ' as part of their names had been introduced in the market since 1947; and the appellant 'successfully took action against them for infringement of its trade mark.
Even in the Trade Marks Registry the appellant successfully opposed the introduction of names which contained the word 'dhara ' as part of the,trade name.
A question has 488 been raised before us whether the Registrar of Trade Marks was justified in taking into consideration the decisions in those cases.
To that question we shall advert later.
The Registrar found that in 1901 Pandit Thakur Datta Sharma commenced to do business at Lahore in a particular ayurvedic medicine which was meant for alleviation for of headaches, diarrohea, constipation and other complaints.
This medicine was first sold under the mark 'Amrit Ki Dhara ', but in 1903 the name was changed to "Amritdhara ', Pandit Thakur Datta Sharma formed a limited liability company in 1942 and the name 'Amritdhara ' became a well known popular name for the medicine.
The sale of the medicine went up to about Re. 4 lacs a year.
The business was done in Lahore but when partition came in 1947, the appellant established its business in Dehradun.
The Registrar expressed the view that if the matter had rested on section 8 and section 10(1) of the Act, he world have no hesitation in allowing the opposition and dismissing the application.
This could only mean that the Registrar was of the view that the name 'Lakshmandhara ' so nearly resembled the trade mark 'Amritdhara ' that it was likely to deceive the public or cause confusion to the trade.
We are saying this because the High Court through that the Registrar did not express his own opinion whether the name 'Lakshmandhara ' was likely to cause deception to the public or confusion to the ' trade.
The respondent, however, relied also on two other circumstances, viz. (a) honest concurrent user of the name 'Lakshmandhara ' since 1923, and (b) acquiescence on the part of the appellant in the user of the name Lakshmandhara '.
The respondent contended that these two circumstances brought the case With in the meaning of special circumstances ' in A. 10(2) of the Act, which permitted the registration by more than one Proprietor of trade marks which are identical or 489 nearly resemble each other, subject to such condition and limitations, if any, as the Registrar might think fit to impose.
On the point of honest concurrent user the Registrar found in favour of the appellant.
As to acquiescence he, however, found in favour of the respondent and expressed his finding in these words.
"In the case before me it is not disputed that the applicant commenced his user in a small way in 1923 and it may even be said that up to about 1942 the applicant 's user was insignificant.
In paragraph 12 of the appli cant 's affidavit dated the 30th March, 1953 he has given details of advertisements in directories, pamphlets, newspapers etc.
in which both the applicant 's and the opponents ' marks were advertised.
The facts given in the affidavit go to show that from 1938 right up to the date of the applications by the applicant he has been advertising through mediums which were common to both the applicant and the opponents.
Here we have a case in which Pandit Thakur Datta Sharma states that he had no notice of the applicant 's mark.
He has, however, admitted that he had about 12 persons in his factory which constituted the clerical staff and amongst them were persons who were in charge of advertising the opponents mark.
It seems to me that the opponents and their agents were well aware of the advertisements by the applicant and did not raise any protest till the applicant 's mark was advertised in the Trade Mark Journal.
In other words the opponents stood by and, allowed the applicant to develop his business and, as I have shown, from small beginning he began to sell these medicines to the extent of about Rs. 43,000/ in 1949.
In my opinion, this is 490 acquiescence which would come under, the phrase 'or other special circumstances ' in section 10(2) of the and, that appears to me to be fatal to the case of the opponents.
" Before the Registrar it was admitted on behalf of the respondent that his goods were sold mainly in, Uttar Pradesh and there were, at the most, only sporadic sales in other States.
Taking that circumstance into consideration the Registrar passed an order allowing registration of 'Lakshmandhara ' for sale in the State of Uttar Pradesh only.
From the decision of the Registrar two appeals were referred to the High Court of Judicature at Allahabad under section 76 of the Act: one appeal Was referred by the respondent and ' the other by the appellant.
The respondent complained of the registration being limited to Uttar Pradesh only and the appellant pleaded that registration should: have been refused altogether, The learned Judges of the High Court held that the words 'Amrit ' and 'dhara ' were common, words in the Hindi language and the combined word 'Amritdhara ' meant current of nectar ' or the flow of nectar '; the two words 'Lakshman ' and 'dhara 'were also well known common words and combined, together they meant "current or flow of Lakshman '.
The learned Judges, then said: "There is no possibility of any Indian confusing the two ideas.
Even phonetical differences are wide enough not to confuse anybody.
The claim of the Amritdhara pharmacy that both the words Amrit and dhara ' have become so associated with their goods that the use of each part separately or in any combination is ' likely to mislead is an, untenable claim.
The whole phrase 'Amritdhara ' had been registered and the Monopoly ' has to be 491 confined only to the use of the whole word.
The words of common language like "Amrit ' and 'dhara ' cannot be made the monopoly of any individual.
We, therefore see no reason to disallow registration of the trade mark "Lakshmandhara '.
" As to honest concurrent user from 1923 to 1942 the learned Judges again held in favour of the respondent.
But on the point acquiescence they held against the respondent and found in favour of the appellant.
They said that from the fact that both the medicines were being advertised in the same journals or periodicals it did not, following that the attention of the appellant was, drawn to@ the use of the word 'Lakshmandhara ' by the respondent.
In view, however, of their finding that the two names were not likely to cause any confusion and that the ' respondent had been an honest concurrent user from 1923 onwards, they held that there was no justification for refusing registration to the trade mark 'Lakshmandhara ' for the whole of India.
They accordingly allowed the appeal of the respondent and dismissed that of the appellant by their judgment dated March 19, 1958.
The appellant then obtained special leave from this Court and the present appeal has been filed in pursuance of the leave granted by this court.
Two points have been agitated before us.
The first point is whether the name 'Lakshmandhara ' was likely to deceive the public or cause confusion to trade within the meaning of section 8 and section 10 (1) of the Act.
The second point is whether there was Such, acquiescence on) behalf of the appellant in the use of the name 'Lakshmandhara ' in the.
State of Uttar Pradesh as to bring it within the, expression 'special circumstances ' mentioned in sub section
10 of the Act.
We shall deal with these two points in the order in which we have stated them, 492 We may first read the relevant sections of the Act, viz.s. 8 and 10. 8.
Prohibition of registration of certain matter.
No trade mark nor part of a trade mark shall be registered which consists of, or contains, any scandalous design, or any matter the use of which would. (a) by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a Court of justice ; or (b) be likely to hurt the religious susceptibilities of any class of the citizen of India or (c) be contrary to any law for the time being in force, or to morality.
Prohibition of registration of identical or similar trade mark. (1) Save as provided in sub section (2), no trade mark shall be registered in respect of any goods or description of goods which is identical with a trade mark belonging to a different proprietor and already on the register in respect of the same goods or description of goods or which so nearly resembles such trade mark as to be likely to deceive or cause confusion.
(2) In case of honest concurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do he may permit the registration by more than one proprietor of trade marks which are identical or nearly resemble each other in respect of the same goods or description of goods, subject to such conditions and limitations if any, as the Registrar may think fit to impose.
(3) 493 It will be noticed that the words used in the sections and relevant for our purpose are "likely to deceive or cause confusion.
" The Act does not lay down any criteria for determining what is likely to deceive or cause confusion.
Therefore, every case must depend on its own particular facts, and the value of authorities lies not so much in the actual decision as in the tests applied for determining what is likely to deceive or cause confusion.
On an application to register, the Registrar or an opponent may object that the trade mark is not registerable by reason of cl.
(a) of section 8, or sub section
(1) of section 10, as in this case.
In such a case the onus is on the applicant to satisfy the Registrar that the trade mark applied for is not likely to deceive or cause Confusion.
In cases in which the tribunal considers that there is doubt as to whether deception is likely, the application should be refused.
A trade mark is likely to deceive or cause confusion by the resemblance to another already on the Register if it is likely to do so in the course of its legitimate use in a market where the two marks are assumed to be in use by traders in that market.
In considering the matter, all the circumstances of the case must be considered.
As was observed by Parker, J. in Pianotist Co. s Application (1), 'which was also a case of the comparison of two words "You must take the two words.
You must Judge them, both by their look and by their sound.
You must consider the goods to which they are to be applied.
You must consider the nature and kind of customer who would be likely to buy those goods.
In fact you must consider all the surrounding circumstances and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks (1) ,777.
For deceptive resemblance two important questions are: (1) who are the persons whom the resemblance must be likely to deceive or confuse, and (2) what rules of comparison are to be.
adopted in judging whether such resemblance exists.
As to confusion, it is perhaps an appropriate description of the state of mind of a customer who, on seeing a mark thinks,that it differs from the mark on goods which ' he has previously bought, but is doubtful whether that impression is Dot due to imperfect recollection.
(See Kerly on Trade Marks, 8th edition, p. 400.) Let us apply these tests to the facts of the case under our consideration.
It is not disputed before use that the two names 'Amritdhara ' and 'Lakahmandhara ' are in use in respect of the same description of goods, namely, a medicinal preparation for the alleviation of various ailments, Such medicinal preparation will be purchased mostly by people who instead of going to a doctor wish to purchase a medicine for the quick alleviation of ;their suffering, both villagers and townsfolk, literate as well as illiterate.
As we said in Corn Products Refining Co. vs Shangrila Food Products Ltd (1); the question has to be approached from the point of view of a man of average intelligence and imperfect recollection.
To such a man the overall structural and phonetic similarity of the ,two names 'Amritdhara ' and 'Lakshmandbara ' is, in our, opinion likely.
t o deceive or ; cause confusion.
We must consider, the overall similarity of the two composite words 'Amritdhara ' and 'Lakshman dhara '.
We do not think that the learned Judges of the High Court were right in Paying that no Indian would mistake one 'for the other.
An unwary purchaser of average intelligence and imperfect recollection would not, as the High Court supposed, split the name into its component parts and consider the etymological meaning thereof or 495 even consider the meanings of the composite words as 'current of nectar ' or current of Lakshman '.
He. would go more by the overall structural and phonetic similarity and the nature of the medicine he has previously purchased, or has been told about, or about which has other vise learnt and which he wants to purchase.
Where the trade relates to goods largely sold to illiterate or badly educated persons, it is no answer to say that a person educated in the Hindi language would go by the entymological or ideological meaning and, see the difference between 'current of nectar ' and current of Lakshman '. 'Current of Lakshman in a literal sense has no meaning to give it meaning one must further make the inference that the 'current or stream ' is as pure and strong as Lakshman of the Ramayana.
An ordinary Indian villager or townsmen will perhaps know Lakshman, the story of the Ramayana being familiar to him but we doubt if he would etymologine to the extent of seeing the so called ideological difference between 'Amritdhara 'and 'Lakshmandhara '.
He would go more by the similarity of the two names in the context of the widely known medicinal preparation which he wants for his ailments.
We agree that the use of the word 'dhara ' which literally means 'Current or stream ' is not by itself decisive of the matter.
What we have to consider here is the overall similarity of the composite words, having regard to the circumstance that the goods bearing the two names are medicina l preparations of the same description.
We are aware that the admission of a mar is not to be refused, because unusually stupid people, "fools or idiots", may be deceived.
A critical comparison of the two names may disclose some points of difference.
but an unwary purchaser of average intelligence and imperfect recollection would be deceived by the overall similarity of the two names having regard 496 to the nature of the medicine he is looking for with a somewhat vague recollection that he had purchased a similar medicine on a previous occasion with.
a similar name.
The trade mark is the whole thing the whole word has to be considered a the case of the application to register 'Erectiks ' (opposed by the proprietors of the trade mark 'Erector ') Farwell, J. said in William Bailey (Bir mingham) Ltd.8 Application (1) : "I do not think it is right to take a part of the word and compare it with a part of the other Word; one word must 'be considered as a whole and compared with the other word as a whole. . .
I think it is a danger ous method to adopt to divide the word up, and seek to distinguish a portion of it from a portion of the other word".
Nor do we think that the High Court was.
right in thinking that the appellant was claiming a. monopoly in the common Hindi word 'dhara '.
We do not think that is quite the position here.
What the appellant is claiming is its right under section 21 of the Act, the exclusive right to the use of its trade mark, and to oppose the registration of a trade mark which go nearly resembles its trade mark that it is likely to deceive or cause confusion.
A large number of decisions relating to the use of composite words, such as Night Cap and RedCap, Limit and Summit, Rito and Lito, Notrate and Filtrate, etc. were cited in the High Court.
Some more have been cited before us.
Such deci sions, examples of deceptive resemblance arising out of contrasted words, have been summarised at page 429 to 434 in Karly on Trade Marks, 8th Edition.
No useful purpose will be served by referring to them all.
As we have said earlier, each case must be decided or its own fact.
What degree of ' (1) 497 resemblance is necessary to deceive or cause confusion must the nature of things be incapable of definition a priori.
As to the decisions in annexure 'A ', it has been argued before us that they were not at all admissible by reason of sections 40 to 43 of the .
On behalf of the appellant it has been contended that they were admissible under section 13 of the Evidence.
Act as showing the particular instances in which the appellant claimed its right under section 21 of the Act.
We consider it unnecessary to decide this question for the purposes of this case because those decisions even if they are admissible under section 13 do not throw any light on the question whether 'Amritdhara ' and 'Lakshmandhara ' so nearly resemble each other as to cause deception or confusion.
That is a, question which we must determine as a case of first impression and irrespective of the earlier decisions.
On a consideration of all the circumstances, we have come to the conclusion that the overall similarity between the two names in respect of the same description of goods was likely to cause deception or confusion within the meaning of section 10(1) of the Act and Registrar was right in the view he expressed.
The High Court was in error taking a contrary view.
We know go the second question, that of acquiescence.
Here again we are in agreement with the Registrar of Trade Marks, who in a paragraph of his order quoted earlier in this judg ment has summarised the facts and circumstances on which the plea of acquiescence was based.
The matter has been put thus in Halsbury 's Laws of England, Vol.
32 (second edition) pages 659 657, paragraph 966.
" If a trader allows another person who is acting in good faith to build up a reputa 498 tion under a trade name or mark to which he has rights, he may lose his right to complain, and may even be debarred from himself using such name or work.
But even long user by another, if fraudulent, does not affect the plaintiff 's right to section final injunction on the other hand prompt warning or action before.
the defendant has built up any good will may materially assist the plaintiff 's case".
We do not think that there was any fraudulent user by the respondent of his trade name 'Lakshmandbara '.
The name was first used in 1923 in a small way in Uttar Pradesh.
Later it was more extensively used and in the same journals the two trade marks were publicised.
The finding of the Registrar is that the appellant and its agent were well aware of the advertisements of the respondent, and the appellant stood by and allowed the respondent to develop his business till it grew from a small beginning in 1923 to an annual turnover of Rs. 43,000/ in 1946.
These circum stances establish the plea of acquiescence and bring the case within sub section
(2) of section 10, and in view of the admission made on behalf of the respondent 'that his goods were sold mainly in Uttar Pradesh, the Registrar was right in imposing the limitation which he imposed.
For these reasons, we would allow the appeal, set aside the Judgment and order of the High Court, and restore those of the Registrar of Trade Marks, Bombay, dated September 10. 1953.
In the circumstances of this case, there will be no order for costs.
Appeal allowed.

summary:
The respondent applied for registration of the trade name "Lakshmandhara" in relation to the medicinal preparation manufactured by him at Kanpur since 1923.
It was admitted that the respondent 's product was mainly sold in the State of Uttar Pradesh.
The appellant opposed the registration on the ground that it had an exclusive proprietary interest in the trade mark "Amritdhara" in relation to a similar medicinal preparation which had acquired considerable repu tation since 1903 and that the respondent 's trade name "Lakshmandhara" was likely to deceive and cause confusion and therefore the registration was prohibited by section 8 of the Trade Marks Act.
The Registrar of Trade Marks held that there was sufficient similarity between "Amritdhar 'a ' and "Lakshamandhara" so as to cause confusion and it was likely to deceive the public, but the acquiescence of the appellant in the use of the trade name "Lakshmandhara" by the respondent in the relation to his product for a long period to the knowledge of the appellant was special circumstance under section 10(2) entitling the respondent to have his name registered along with the appellant 's trade name.
He, however, confined the registration to sales with the State of Uttar Pradesh.
Both the appellant and the respondent appealed to the High Court which allowed the respondent 's appeal holding that the words "Amrit" and "dhara" were common words in the Hindi language as also the words "Lakshman" and "dhara" and that there was no possibility of any Indian confusing the two ideas.
The High Court further held there had been honest concurrent user by the respondent.
,, On the question of acquiescence it held against the respondent.
On appeal by special leave.
Held, that the question whether a trade name is likely to deceive or cause confusion by its resemblance to another al.
ready registered is a matter of first impression and one for decision in each case and has to be decided by taking an over.
all view of all the circumstances.
The standard of comparison to be adopted in judging the resemblance is from the point of 485 view of a man of average intelligence and imperfect recollection.
Pianotist Co. 's Application, , referred to.
Corn Products Refining Co., vs Shangrila Food Product8 Ltd., , referred to.
Held, further, that the two names as a whole should be considered for comparison and not merely the component words thereof separately.
William Bailey (Birmingham) Ltd. '8 application, (1935) 52 R. P. C. 137, referred to.
Held, also, that in the present case the similarity in the two name in respect of the same description of goods was likely to deceive or cause confusion; but the facts found by the Registrar established the plea of acquiescence so a to bring the case within sub s.(2) of section 10, and the Registrar was right in imposing the limitation which he imposed.


judgement:
Appeal No. 177 of 1960.
554 Appeal from the Judgment and order dated March 27, 1958, of the Orissa, High Court in O. J.C. No. 191 of 1956.
Hemendra Chandra Sen and section Ghose, for the appellants.
N. section Bindra, V. N. Sethi and P. D. Xenon, for the respondents.
April 30.
The Judgment of the Court was delivered by SINHA, C. J.
This appeal on a certificate granted by the High Court of Orissa raises the question of the interpretation of certain provisions of The Orissa Estates Abolition Act, 1951 (Orissa Act 1 of 1952) which hereinafter will be referred to as the Act.
The appellants who were petitioners in the High Court were the proprietors of an Estate, known as Paikpara Estate, in the district of Puri, bearing Touzi Nos.
268, 269 and 270.
The respondents are the State of Orissa and its officials.
The facts on which the High Court based its judgment under appeal areas follows.
Within the said Paikpara Estate, there were several tenures and sub proprietory interests.
The Paikpara Estate vested in the State of Orissa by virtue of a notification issued under section 3 of the Act, on August 23, 1953.
It is common ground that the interests of tenure holders and sub proprietors within the said estate have not yet been taken over under the provisions of the Act.
Under the tenure holders aforesaid, there were some occupancy holdings which Lad been purchased by the proprietors, the appellants in this Court, long ago.
Thus the proprietors by virtue of their purchase became occupancy raiyats, under the tenure holders or sub proprietors, in respect of the holdings purchased by them.
It is also common ground that in the last Settlement Khatians their interests as occupancy 555 raiyat8 in respect of the holdings purchased by them have been recorded.
On the lands of the occupancy holdings, there were several buildings which were used as Katcheri houses by the proprietors, for the administration of their estate.
In January 1954, according to the petitioners in the High Court, the State Officials took illegal possession of those buildings situate on the raiyati land, as aforesaid.
The appellants thereupon made an application to the Collector of Puri for vacant possession of the lands and the buildings, described in the petition, on the allegation that those lands together with the buildings, purchased from tenants with rights of occupancy, were, after purchase by the proprietors, used as Katcheri house by them.
They also alleged that those properties had not vested in the State of Orissa as a result of the said notification, under the Act.
Part of the said house had been let out to the Postal Department.
The Anchal Adhikari of that area wrote to the Postmaster, and Superintendent of Post Offices, not to pay rent to the proprietors.
The Postal Department, therefore, vacated that portion of the building in their occupation, which has gone into the occupation of the State Government.
Another portion of the property, which was used as dhangola was let out for storing paddy, to a third party.
That dhangola was also taken illegal possession of by the Naib Tehsildar of the place.
Other portions of the property also are in illegal possession of the State Government, through its Anchal Adhikari.
It was thus claimed on behalf of the proprietors that the State Government had no right to take possession of the property, as it did not form part of the estate which had been acquired under the Act, and had, on notification, vested in the State Government.
The learned Collector of Puri did not concede the demand of the proprietors, and held that the occupancy holding is situated within the tenure held 556 under the proprietors and lay within the geographical limits of the (state which had vested in the Government.
Being aggrieved by the aforesaid order of the Collector, dated November 20, 1956, the proprietors moved the High Court under article 226 of the Constitution for relief against what was alleged to be illegal interference with their interest not as proprietors but as occupancy tenants.
The High Court dismissed the proprietors ' claim chiefly on the ground that the question raised by the petition before the High Court was "practically concluded by the observations of the Supreme Court in the case of K. C. Gajapati Narayan Deo vs The State of Orissa (1).
It is manifest that the controversy raised in this case has to be answered with reference to the provisions of the Act. 'Estate ' has been defined in cl.
(g) of section 2 of the Act as follows : " 'estate ' includes a part of an estate and means any land held by or vested in an Inter mediary and included under one entry in any revenue roll or any of the general registers of revenue paying lands and revenue free lands, prepared and maintained under the law relating to land revenue for the time being in force or under any rule, order, custom or usage having the force of law, and includes revenue free lands not entered in any register or revenue roll and all classes of tenures or under tenures and any jagir, inam or muafi or other similar grant"; Explanation I. Land Revenue means all sums and payments in money or in kind, by whatever name designated or locally known, received or claimable by or on behalf of the State from an Intermediary on account of or (1) ; 557 in relation to any land hold by or vested in such intermediary; Explanation II.
Revenue free land includes land which is, or but for any special covenant, agreement, engagement or contract would have been, liable to settlement and assessment of land revenue or with respect to which the State has power to make laws for settlement and assessment of land revenue; Explanation III.
In relation to merged territories estate ' as defined in this clause shall also include any mahal or village or collection of more than one such mahal or village held by or vested in an Intermediary which has been or is liable to be assessed as one unit to land revenue whether such land revenue be payable or has been released or compounded for or redeemed in whole or in part".
The definition makes reference to an 'Intermediary ', which has been defined in cl.(h) as follows: 'Intermediary ' with reference to any estate means a proprietor, sub proprietor, landlord, landholder, malguzar, thikadar, gaontia, tenure holder, undertenure holder, and includes an inamdar a jagirdar, Zamindar, Ilaquadar, Khorgoshdar, Parganadar, Sarbaraka r and Maufidar including the Ruler of an Indian State merged with the State of Orissa and all other holders or owners of interest in land between the raiyat and the State; Explanation I. Any two or more Intermediaries holding a joint interest in an estate which is borne either on the revenue roll or on the rent roll of another Intermediary shall be deemed to be one Intermediary for the purposes of this Act; 558 Explanation II.
The heirs and successors in interest of an Intermediary and where an Intermediary is a minor or of unsound mind or and idiot, his guardian, committee or other legal curator shall be deemed to be an Intermediary for the purposes of this Act.
All acts done by an Intermediary under this Act shall be deemed to have been done by his heirs and successors in interest and shall be binding on them.
Reading the two definitions together, the position in law is that 'estate ' includes the interest, by whatever name called, of all persons, who hold some right in land between the State at the apex and the raiyat at the base.
That is to say, the Act is intended to abolish all Intermediaries and rentreceivers and to establish direct relationship bet ween the State, in which all such interests vest, after abolition under the Act, and the tillers of the soil.
The interest of a raiyat is designated by the word 'holding and is defined by the Orissa Tenancy Act (Bihar and Orissa Act II of 1913), as follows: .
" holding" means a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy".
Under the, Orissa Tenancy Act, the unit of interest of a proprietor is an 'estate '.
Under a proprietor may be a number of sub proprietors. 'Sub proprietor ' is also defined in the Tenancy Act, but we are not concerned in this case with that class of holders of land.
The interest of a tenure holder or an under tenureholder is characterised as a "tenure '.
Thus, the process of in feudalist and sub infeudation, which has been similar in all places where the Permanent Settlement took place, that is to say, in Bengal, Bihar and Orissa and Madras and Andhra Pradesh, 559 has led to the coming into existence of proprietors, with their estates, sub proprietors under them, tenure holders and under tenure holders and ultimately the tiller of the soil, the raiyat, whose unit of interest is a 'holding '.
The Act was intended to abolish all proprietors, sub proprietors, tenureholders and under tennure holders, with a variety of names; but did not touch the interest of the raiyat.
The same person, by transfer or by operation of law, might at the same time occupy different status in relation to land.
He maybe in respect of a particular area, which is geographically included in the estate, the proprietor.
That land may be held by a raiyat not directly under a proprietor but under a tenure holder, who holds directly under proprietor.
The proprietor may have acquired the interest of a raiyat.
Thus the proprietor, in his capacity as the owner of the estate holds the entire estate, and he may have by purchase acquired the interest of a raiyat, paying rent for the raiyati interest to his immediate landlord, the tenure bolder.
The tenure holder, in his turn, may have been liable to pay rent to the proprietor.
That is what appears to have happened in this case.
The appellants held the Paikpara estate as proprietors.
They also appear to have purchased the properties in question comprising raiyati lands with certain buildings thereon from the raiyat.
Hence, the position in law is that though these lands with the buildings are situate geographically within the ambit of the appellants ' estate, they are not part of the estate.
In other words, the appellants hold those properties with the buildings not as proprietors as such, but as rayats.
It appears that the Courts below have not kept clearly in view this distinction.
The Collector, in the first instance, and the High Court in the proceedings under article 226 of the Constitution, appear to have fallen into the error of confusing the petitioners ' position as ex proprietors, with their present position as raiyat in 560 respect of the land on which the buildings stand.
The High Court has drawn the conclusion from the decision of this Court in K. C. Gajapati Narayan Deo vs The State of Orissa, (1) and has observed that whether the buildings in question vested in the Government, on the vesting of the estate under section 3 of the Act, world depend not upon whether it formed part of the estate acquired by the Government but on the, purpose for which the buildings wore used by the proprietors.
As the buildings in question had been primarily used as office or Katcheri for the collection of rent or for the use of servants or for storing grains by way of rent in kind, the buildings will vest in the Government on the vesting of the estate itself.
In our opinion, this conclusion drawn by the High Court from the decision of this Court is not well founded in law.
The High Court draw its conclusions from the following observations of this Court in the aforesaid case at Pages 25 26. "Assuming that in India there is no absolute rule of law that whatever is affixed to or built on the soil becomes a part of it and is subject to the same rights of property as the soil itself, there is nothing in law which prevents the State legislature from providing as a part of the estates abolition scheme that buildings, lying within the ambit of an estate and used primarily for management or administration of the estate, would vest in the Government as appurtenances to the estate itself.
This is merely ancillary to the acquisition of an estate and forms an integral part of the abolition scheme.
Such acquisition would come within article 31 (2) of the Constitution and if the conditions laid down in clause (4) of the article are complied with, it would certainly attract the protection afforded by that clause.
Compensation has (1) , 561 been provided for these buildings in section 26(2)(iii) of the Act and the annual rent of these buildings determined in the prescribed manner constitutes one of the elements for computation of the gross asset of an estate.
" The observations quoted above of this Court have reference to the following definition of ,homestead ' in el.
(i) of section 2 of the Act: "homestead ' means a dwelling house used by the Intermediary for the purpose of his own residence or for the purpose of letting out on rent together with any courtyard, compound, garden, orchard and outbuildings attached thereto and included any tank, library and place of worship appertaining to such dwelling house but does not include any building comprised in such estate and used primarily as office or kutchery for the administration of the estate on and from the is day of January, 1946".
it will appear from this definition that the Legislature placed a proprietor 's homestead ' in two categories, namely (1) a dwelling house used by the Intermediary for his own purposes and (2) any building comprised in such estate and used primarily as office or.
Katcheri for the administration of the estate on and from the list day of January, 1946.
In respect of first category the Act provides in a. 6 that portion of the homestead shall be deemed to be settled by the State with the Intermediary, who will continue to hold it as a tenant under the State Government, subject to the payment of fair and equitable groundrent, except where under the existing law no rent is payable in respect of homestead lands.
It will be noticed further that the second category in the definition of homestead, which has not been permitted to the outgoing 562 Intermediary has reference to "any building comprised in such estate".
It has no reference to any building standing on rayati holding or a portion thereof.
This becomes further clear with reference to the provisions of a. 5, which lays down the consequences of vesting of an estate in the State.
Under cl (a) of section 5, the entire estate, including all kinds of lands described in meticulous details, and other non raiyati lands vest absolutely in the State Government.
This Court, while dealing with the constitutionality of the Act, was not concerned with raiyati lands.
Its observations had reference only to such buildings as stood upon the proprietor 's private lands like peel, seer, Zirat, etc., whicl, were in his possession as proprietor or as tenure bolder.
It is thus clear that the very basis of the judgment of the High Court is entirely lacking.
That the High Court was not unaware of this distinction becomes clear from the following passage in its judgment: "Doubtless, Ryoti lands are excluded from the scope of this clause.
But buildings and structures standing on Ryoti lands and in the possession of the proprietor are not expressly saved.
" The first sentence quoted above is correct, but not the second. 'I here is no question of expressly saving structures on ratyati lands, when it is absolutely clear that raiyati lands are not the subject matter of legislation by the Act.
The same remarks apply to the reference in section.
26 (b) (iii).
Section 26 begins with the words ,for the purpose of this chapter", namely, Chapter V, headed "Assessment of Compensation".
Reading section 26 as a whole it is absolutely clear that for the purpose of assessment of the compensation payable to the outgoing proprietor or tenure holder, of the estate to be acquired, gross assets have to be determined, by aggregating the rents payable by 563 tenure holders or under tenure holders and raiyats.
It is, thus, clear that the rent payable by the appellants as raiyats in respect of the disputed lands would form part of the assets which have to be included in the gross assets in determining compensation.
But that does not mean that the interests of raiyats also have become vested in the State as a result of the notification under. 3, read with section 5.
For the reasons aforesaid, it must be held that the appellant 's raiyati interests in the lands and in the buildings standing on those lands have not been affected by the abolition of his interest as proprietors, and that the State authorities had illegally taken possession of those.
The appeal is accordingly allowed with costs here and below.
Appeal allowed.

dataset_name: IN-Abs

summary:
The appellants held the Paikpara estate as proprietors.
They had purchased the properties in question comprising raiyati lands with certain buildings thereon from the raiyat.
Thus the proprietors became occupancy raiyat8 under the tenure holders or sub proprietors.
By virtue of a notification issued under section 3 of the Orissa Estates Abolition Act, 1951, the Paikpara estate vested in the State of Orissa.
But the interest of tenure holders and sub proprietors within the estate had not been taken over under the provisions of the Act: 553 The said buildings on the lands of the occupancy holdings were used as Katcheri houses by the proprietors for the administration of their estates.
The state officials took possession of these buildings situated on the raiyati land.
The appellants made an application to the collector, Puri, for vacant possession of the lands and the buildings.
The Collector did not concede the demand and held that the occupancy holding was situated within the tenure held under the proprietors and lay within the geographical limits of the estate which had vested in the Government.
The High Court dismissed the writ petition of the appellant under article 226 on the ground that the question raised was practically concluded by the Supreme Court in K. C. Gajapati Narayan vs Deo State of Orissa.
The appellants came up in appeal on a certificate granted by the High Court.
Held, that the appellants ' raiyati interests in the lands and in the buildings standing on those lands had not been affected by the abolition of their interests as proprietors, and the State Authorities had illegally taken possession of them.
Held, further, that the Orissa Estates abolition Act,1951, was intended to abolish all proprietors,sub proprietors, tenureholders, with a variety of names, but did not touch the interest of the raiyat.
Hence though these lands with buildings was situate geographicaiy within the ambit of the appellant 's estate, they were not part of the estate.
The appellant held those properties with the buildings not as proprietors as such, but as raiyats.
Held, also, that the conclusion drawn by the High Court from the decision in K. C. Gajapati Narayan Deo vs The State of Orissa is not well founded.
The observation of this Court on which it drew its conclusion had reference to the definition of 'home stead ' in cl.
(1) of section 2 of the Act.
This court while dealing with the constitutionality of the Act, in the above case, was not concerned with raiyati lands.
Its observations had reference only to such buildings as stood upon the proprietor 's private land, which were in his possession as proprietor or as tenure holder.
K. C. Gajapati Narayan Deo vs The State of Orissa; , , not applicable.


judgement:
Appeal No. 182 of 1952.
Appeal by special leave from the Judgment and Order dated 2nd August, 1951, of the High Court of Judicature at Nagpur in Miscellaneous Petition No. 187 of 1950 under articles 226 and 227 of the Constitution.
N. C. Chatterjee (R. M. Hajarnavis, with him) for the appellant.
R. Ganapathy Iyer for the State of Madhya Pradesh.
February 23.
The Judgment of the Court was delivered by DAS J.
On the 28th November, 1947, the appellant Hoosein Kasam Dada (India) Ltd., (hereinafter referred to as the assessee) submited to the Sales Tax Officer, Akola, a Sales Tax return in Form IV for the first quarter.
Notice in Form XI calling upon the assessee to produce evidence in support of the said return having been issued by the Sales Tax Officer, the assessee produced his account books.
Not being satisfied by the inspection of the account books as to the correctness of the return and being of opinion that the taxable turnover exceeded rupees two lacs the Sales Tax Officer submitted the case to the Assistant Commissioner of Sales Tax, Amravati, for assessment, 989 On the 25th January, 1949, the Assistant Commissioner issued a fresh notice in Form XI under section 11 and fixed the case for disposal on the 5th February, 1949.
After various adjournments and proceedings to which it is not necessary to refer, the hearing commenced on the 9th June, 1949, when an agent of the assessee appeared with books of account of the Akola Branch.
Eventually after various further proceedings the Assistant Commissioner on the 8th April, 1950, assessed the assessee, to the best of his judgment, in the sum of Rs. 58,657140 and a copy of the order in Form XIV was sent to the assessee.
Being aggrieved by the order of assessment the assessee on the 10th May, 1950, preferred an appeal to the Sales Tax Commissioner, Madhya Pradesh, under section 22(l) of the Central Provinces and Berar Sales Tax Act, 1947 (hereinafter referred to as the Act).
The appeal not having been accompanied by any proof of the payment of the tax in respect of which the appeal had been preferred, the authorities, after giving the assessee several adjournments, declined to admit the appeal.
The assessee moved the Board of Revenue, Madhya Pradesh, by a revision application against the order of the Sales Tax Commissioner contending that his appeal was not governed by the proviso to section 22(l) of the Act as amended on the 25th November, 1949, by the Central Provinces and Berar Sales Tax (Second Amendment) Act (Act LVII of 1949) but was governed by the proviso to section 22(l) of the Act as it stood when the assessment proceedings were started, i.e., before the said amendment.
The Board of Revenue took the view that as the order of assessment was made after the amendment of the section and the appeal was filed thereafter such appeal must be governed by the provisions of law as it existed at the time the appeal was actually filed and that the law as it existed before the filing of the appeal could not apply to the case.
The assessee thereupon moved the High Court of Madhya Pradesh under articles 226 and 227 of the Constitution of India praying, amongst other things, for a writ of mandamus or an appropriate 128 990 order directing the Sales Tax Commissioner to admit and hear the appeal without demanding payment of the amount of sales tax assessed by the Assistant Commissioner of Sales Tax.
The High Court dismissed the application on the 2nd August, 1951.
The assessee applied to the High Court for leave to appeal to this Court which was also dismissed by the High Court on the 14th March, 1952. 'The assessee thereupon applied to this Court for special leave to appeal on the 12th May, 1952.
This Court granted special leave to appeal, but such leave was, by the order granting such leave, limited to the question of the effect of the amendment to section 22 of the Act on the petitioner 's appeal to the Sales Tax Commissioner, Madhya Pradesh.
This Court took the view that the other questions sought to be raised by the assessee would have to be decided by the Sales Tax Commissioner in case the appeal succeeded.
The appeal has now come up for final disposal before us and in this appeal we are concerned only with the limited question of the effect of the amendment to section 22 of the Act.
Section 22(l) of the Act was originally expressed in the following terms : "22.
(1) Any dealer aggrieved by an order under this Act may, in the prescribed manner, appeal to the prescribed authority against the order: Provided that no appeal against an order of assessment, with or without penalty, shall be entertained by the said authority unless it is satisfied that such amount of tax or penalty or both as the appellant may admit to be due from him, has been paid." The relevant portion of section 22 as amended runs as follows: "22.
(1) Any dealer aggrieved by an order under this Act may, in the prescribed manner, appeal to the prescribed authority against the order: Provided that no appeal against an order of assessment, with or without penalty shall be admitted by the said authority unless such appeal is accompanied by a satisfactory proof of the payment of the tax, with 991 penalty, if any, in respect of which the appeal has been preferred.
" It is clear from the language used in the proviso to section 22 (1) as it stood prior to the amendment that an aggrieved assessee had only to pay such amount of tax as he might admit to be due from him, whereas under the proviso to section 22(l) as amended the appeal has to be accompanied by satisfactory proof of payment of the tax in respect of which the appeal had been preferred.
The contention of the present assessee is that as the amendment has not been made retrospective its right of appeal under the original section 22(l) remains unaffected and that accordingly as it does not admit anything to be due it was not liable to deposit any sum along with its appeal and the Commissioner was bound to admit its appeal and had no jurisdiction or power to reject it on the ground that it had not been accompanied by any proof of payment of the tax assessed against the appellant as required under the amended proviso and the Board of Revenue and the High Court were in error in not directing the Commissioner to admit the appeal.
That the amendment has placed a substantial restriction on the assessee 's right of appeal cannot be disputed, for the amended section requires the payment of the entire assessed amount as a condition precedent to the admission of its appeal.
The question is whether the imposition of such a restriction by amendment of the section can affect the assessee 's right of appeal from a decision in proceedings which commenced prior to such amendment and which right of appeal was free from such restriction under the section asit stood at the time of the commencement of the proceedings.
The question was answered in the negative by the Judicial Committee in Colonial.
Sugar Refining Co., Ltd. vs Irving(1).
In that case the Collector of Customs acting under an Act called the Excise Tariff Act, 1902, required the appellants to pay pound 20,100 excise duty on 6,700 tons of sugar.
The appellants disputed the claim.
So they deposited (1) 992 the money with the Collector and then brought the action by issuing a writ on the 25th October, 1902.
A special case having been stated for the opinion of the Supreme Court, that Court on the 4th September, 1903, gave judgment for the Collector.
In the meantime the Judiciary Act, 1903, was passed and received Royal assent on the 25th August, 1903, that is to say about 10 days before the judgment was delivered.
By section 39(2) of that Act the right of appeal from the Supreme Court to the Privy Council given by the; Order in Council of 1860 was taken away and the only appeal therefrom was directed to lie to the High Court of Australia.
The appellants having with the leave of the Supreme Court filed an appeal to the Privy Council the respondents filed a petition taking the preliminary point that no appeal lay to the Privy Council and praying that the appeal be dismissed.
in dismissing that application Lord Macnaghten who delivered the judgment of the Privy Council said: "As regards the general principles applicable to the case there was no controversy.
On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded.
On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed.
The Judicary Act is not retrospective by express enactment or by necessary intendment.
And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure ? It seems to their Lordships that the question does not admit of doubt.
To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure.
In princi ple, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal.
In either case there is an interference 993 with existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.
" The principle of the above decision was applied by Jenkins C.J. in Nana bin Aba vs Sheku bin Andu (1) and by the Privy Council itself in Delhi Cloth and General Mills Co. Ltd. vs Income tax Commissioner, Delhi( ').
A Full Bench of the Lahore High Court adopted it in Kirpa Singh vs Rasaldar Ajaipal Singh (3).
It was there regarded as settled that the right of appeal was not a mere matter of procedure but was a vested right which inhered in a party from the com mencement of the action in the Court of first instance and such right could not be taken away except by an express provision or by necessary implication.
In Sardar Ali vs Dalimuddin (4), the suit out of which the appeal arose was filed in the Munsiff 's Court at Alipore on the 7th October, 1920.
The suit having been dismissed on the 17th July, 1924, the plaintiffs appealed to the Court of the District Judge but the appeal was dismissed.
The plaintiffs then preferred a second appeal to the High Court on the 4th October, 1926.
That second appeal was heard by a Single Judge and was dismissed on the 4th April, 1928.
In the meantime Clause 15 of the Letters Patent was amended on the 14th January 1928 so as to provide that no further appeal should lie from the decision of a Single Judge sitting in second appeal unless the Judge certified that the case was a fit one for appeal.
In this case the learned Judge who dismissed the second appeal on the 4th April, 1928, declined to give any certificate of fitness.
The plaintiffs on the 30th April, 1928, filed an appeal on the strength of clause 15 of the Letters Patent as it stood before the amendment.
The contention of the appellants was that the amended clause could not be applied to that appeal, for to do so would be to apply it retrospectively and to impair and indeed to defeat a substantive right which was in existence (1) Bom.
(3) A. I. R 1928 Lah.
(2) (1927) L.R. 54 I.A. Lah.
(4) Cal.
994 prior to the date of the amendment.
The apppllants claimed that on the 7th October, 1920, when the suit was filed they had vested in them by the existing law a substantive right to a Letters Patent appeal from the decision of a Single Judge and that an intention to interfere with it, to clog it with a new condition or to impair or imperil it could not be presumed unless it was clearly manifested by express words or necessary intendment.
In giving effect to the contentions of the appellants Rankin C.J. observed at p. 518: Now, the reasoning of the Judicial Committee in The Colonial Sugar Refining Company 's case is a conclusive authority to show that rights of appeal are not matters of procedure, and that the right to enter the superior court is for the present purpose deemed to arise to a litigant before any decision has been given by the inferior court.
If the latter proposition be accepted, I can see no intermediate point at which to resist the conclusion that the right arises at the date of the suit.
" It was held that the new clause could not be given retrospective effect and accordingly the date of pre sentation of the second appeal to the High Court was not the date which determined the applicability of the amended clause of the Letters Patent and that the date of the institution of the suit was the determining factor.
As against the last mentioned decision of the Calcutta High Court Sri Ganapathy Aiyar, appearing for the respondent, refers us to the decision of a Bench of the Bombay High Court in the case of Badruddin Abdul Rahim vs Sitaram Vinayak Apte (1), where it was held that the amendment of clause 15 of the Letters Patent operated retrospectively.
That case followed an earlier decision of the same High Court in Fram Bomanji vs Hormasji Barjorji (2).
The decision in the old case proceeded upon two grounds, namely, (1) that the question was one of procedure and (2) that sec (1) Bom.
753; A.I.R. (1928) Bom.
(2) (1866) Bom.
H.C. (O.C.J.) 49. 995 tion 2 of the New Letters Patent of 1865 gave retrospective operation to the Letters Patent by making it applicable to all pending suits.
In so far as the first ground is concerned it clearly runs counter to the decision of the Privy Council in Colonial Sugar Refining Co. Ltd. vs Irving (supra) and must be taken as overruled as Fawcett J. himself acknowledged at page 756.
As regards the second ground it is inapplicable to the case before us and it is not necessary to express any opinion as to the. soundness and validity of that ground.
It may be mentioned here that in Shaikh Hasan Abdul Karim vs King Emperor (1) another Bench of the same High Court expressly dissented from the decision in Badruddin Abdul Rahim vs Sitaram Vinayak Apte (supra).
The principle laid down in the Colonial Sugar Refining Co. 's case (supra) was followed by a Special Bench of Madras in In re Vasudeva Samiar (2).
A Full Bench of the Allahabad High Court in Ram Singha vs Shankar Dayal (3) fell into line and held that the earlier decision on this point of that Court in Zamin Ali Khan vs Genda (4) stood overruled by the Privy Council decision in the Colonial Sugar Refining Co. 's case.
A Full Bench of Nagpur High Court in Radhakisan vs Shridar (5 ) has also taken the same view.
The Punjab High Court has also adopted the same line in Gordhan Das vs The Governor General in Council (1).
The case of Nagendra Nath Bose vs Mon Mohan Singha Roy (7) is indeed very much to the point.
In that case the plaintiffs instituted a suit for rent valued at Rs. 1,30615 and obtained a decree.
In execution of that decree the defaulting tenure was sold on the 20th November, 1928, for Rs. 1,600.
On the 19th December, 1928, an application was made, under Order XXI, rule 90 of the Code of Civil Procedure, by the present petitioner, who was one of the judgment debtors, (1) I.L.R (2) A I.R. ; (3) All. 965; A.I.R. (1928) All.
(4) All. 375.
(5) A.I.R. (1950) Nag.
(6) A.I.R, (1952) Punjab 103 (F.B.), (7) 996 for setting aside the sale.
application having been dismissed for default of his appearance the petitioner preferred an appeal to the District Judge of Hoogly who refused to admit the appeal on the ground that the amount recoverable in execution of the decree had not been deposited as required by the proviso to section 174, clause (c), of the Bengal Tenancy Act as amended by an amending Act in 1928.
The contention of the petitioner was that the amended provision which came into force on the 21st February, 1929, could not affect the right of appeal from a decision on an application made on the 19th December, 1928, for setting aside the sale.
Mitter J. said at page 1011: " We think the contention of the petitioner is wellfounded and must prevail.
That a right of appeal is a substantive right cannot now be seriously disputed.
It is not a mere matter of procedure.
Prior to the amendment of 1928 there was an appeal against an order refusing to set aside a sale (for that is the effect also where the application to set aside the sale is dismissed for default) under the provisions of Order 43, rule (1), of the Code of Civil Procedure.
That right was unhampered by any restriction of the kind now imposed by section 174(5), Proviso.
The Court was bound to admit the appeal whether appellant deposited the amount recoverable in execution of the decree or not.
By requiring such deposit as a condition precedent to the admission of the appeal, a new restriction has been put on the right of appeal, the, admission of which is now hedged in with a condition.
There can be no doubt that the right of appeal has been affected by the new provision and in the absence of an express enactment this amendment cannot apply to proceedings pending at the date when the new amendment came into force.
It is true that the appeal was filed after the Act came into force, but that circumstance is immaterial for the date to be looked into for this purpose is the date of the original proceeding which eventually culminated in the appeal." 997 The, above decisions quite firmly establish and our decisions in Janardan Reddy vs The State (1) and in Ganpat Rai vs Agarwal Chamber of Commerce Ltd. (2) uphold the principle that a right of appeal is not merely a matter of procedure.
It is matter of substantive right.
This right of appeal from the decision of an .inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court.
In the language of Jenkins C.J. in Nana bin Aba vs Shaik bin Andu (supra) to disturb an existing right of appeal is not a mere alteration in procedure.
Such a vested right cannot be taken away except by express enactment or necessary intendment.
An [intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.
Sri Ganapathy Aiyar urges that the language of section 22(1) as amended clearly makes the section ret.
rospective.
The new proviso, it is pointed out, peremptorily requires the authority not to admit the appeal unless it be accompanied by a satisfactory proof of the payment of the tax in respect of which the appeal is preferred and this duty the authority must discharge at the time the appeal is actually preferred before him.
The argument is that after the amendment the authority has no option in the matter and he has no jurisdiction to admit any appeal unless the assessed tax be deposited.
It follows, therefore, by necessary implication, according to the learned Advocate, that the amended provision applies to an appeal from an assessment order made before the date of amendment as well as to an appeal from an order made after that date.
A similar argument was urged before the Calcutta Special Bench in Sardar Ali vs Dalimuddin (supra), namely, that after the amendment the court had no authority to entertain an appeal without a certificate from the Single Judge.
(1) (2) 129 998 Rankin C.J. repelled this argument with the remark at page 520: " Unless the contrary can be shown, the provision which takes away jurisdiction is itself subject to the implied saving of the litigants ' right." In our view the above observation is apposite and applies to the case before us.
The true implication of the above observation as of the decisions in the other cases referred to above is that the pre existing right of appeal is not destroyed by the amendment if the amendment is not made retrospective by express words or necessary intendment.
The fact that the pre existing right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right.
As the old law continues to exist for the purpose of supporting the pre existing right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing the exercise of that right.
The argument that the authority has no option or jurisdiction to admit the appeal unless it be accompanied by the deposit of the assessed tax as required by the amended proviso to section 22(1) of the Act overlooks the fact of existence of the old law for the purpose of supporting the pre existing right and really amounts to begging the question.
The new proviso is wholly inapplicable in such a situation and the jurisdiction of the authority has to be exercised under the old law which so continues to exist.
The argument of Sri Ganapathy lyer on this point, therefore, cannot be accepted.
The learned Advocate urges that the requirment as to the deposit of the amount of the assessed costs does not affect the right of appeal itself which still remains intact, but only introduces a new matter of procedure.
He contends that this case is quite different from the case of Sardar Ali vs Dalmuddin (supra), for in this case it is entirely in the power of the appellant to deposit the tax if he chooses to do so whereas it was not 999 within the power of the appellant in that case to secure a certificate from the learned Single Judge who disposed of the second appeal.
In the first place the onerous condition may in a given case prevent the exercise of the right of appeal, for the assessee may not be in a position to find the necessary money in time.
Further this argument cannot prevail in view of the decision of the Calcutta High Court in Nagendra Nath Bose vs Mon Mohan Singha (supra).
No cogent argument has been adduced before us to show that that decision is not correct.
There can be no doubt that the new requirement "touches" the substantive right of appeal vested in the appellant.
Nor can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right.
The right that the amended section gives is certainly less than the right which was available before.
A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in procedure.
Indeed the new requirement cannot be said merely to regulate the exercise of the appellant 's pre existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure.
Finally, Sri Ganapathy lyer faintly urges that until actual assessment there can be no 'lis ' and, therefore, no right of appeal can accrue before that event.
There are two answers to this plea.
Whenever there is a proposition by one party and an opposition to that proposition by another a 'lis ' arises.
It may be conceded, though not deciding it, that when the assessee files his return a 'lis ' may not immediately arise, for under section 11 (1) the authority may accept the return as correct and complete.
But if the authority is not satisfied as to the correctness of the return and calls for evidence, surely a controversy arises involving a proposition by the assessee and an opposition by the State.
The circumstance that the authority who raises the dispute is himself the judge can make no difference, for the authority raises the dispute in the interest of the State and in so acting only represents the State.
It 1000 will appear from the dates given above that in this case the 'lis ' in the sense explained above arose before the date of amendment of the section.
Further, even if the 'lis ' is to be taken as arising only on the date of assessment, there was a possibility of such a 'lis ' arising as soon as proceedings started with the filing of the return or, at any rate, when the authority called for evidence and started the hearing and the right of appeal must be taken to have been in existence even at those dates.
For the purposes of the accrual of the right of appeal the critical and relevant date is the date of initiation of the proceedings and not the decision itself.
For all the reasons given above we are of the opinion that the appellant 's appeal should not have been rejected on the ground that it was not accompanied by satisfactory proof of the payment of the assessed tax.
As the appellant did not admit that any amount was due by it, it was under the section as it stood previously entitled to file its appeal without depositing any sum of money.
We, therefore, allow this appeal and direct that the appeal be admitted by the Commissioner and be decided in accordance with law.
The appellant is entitled to the costs of this appeal and we order accordingly.
Appeal allowed.
Agent for appellant: Rajinder Narain.
Agent for respondent: G. H. Rajadhyaksha.

summary:
The right of appeal is a matter of substantive right and not merely a matter of procedure, and this right becomes vested in a party when the proceedings are first initiated in, and before a decision is given by, the inferior Court and such a right cannot be taken away except by express enactment or necessary intendment.
Section 22(l.) of the Central Provinces and Berar Sales Tax Act, 1947, provided that no appeal against an order of assessment should be entertained by the prescribed authority unless it was satisfied that such amount of tax as the appellant might admit to be due from him, had been paid.
This Act was amended on the 25th November, 1949, and section 22(l) as amended provided that no appeal should ])a admitted by the said authority unless such appeal was accompanied by satisfactory proof of the payment of the tax in respect of which the appeal had been preferred.
On the 28th of November, 1947, the appellant submitted a return to the Sales Tax Officer, who, finding that the turnover exceeded 2 lacs, submitted the case to the Assistant Commissioner for disposal and the latter made an assessment on the 8th April, 1950.
The appellant preferred an appeal on the 10th May, 1950, without depositing the amount of tax in respect of which he had appealed.
The Board of Revenue was of opinion that section 22(l.) as amended applied to the case as the assessment was made, and the appeal was preferred, after the amendment came into force, ' and rejected the appeal.
Held, (i) that the appellant had a vested right to appeal when the proceedings were initiated, i.e., in 1947, and his right to appeal was governed by the law as it existed on that date ; (ii) that the amendment of 1950 cannot be regarded as a mere alteration in procedure or an alteration regulating the exercise of the right of appeal, but whittled down the right itself, and it had no retrospective effect as the Amendment Act of 1950 did not expressly or by necessary intendment give it retrospective effect, and the 988 appeal could not therefore be rejected for non payment of the tax in respect of which the appeal was preferred.
Colonial Sugar Refining Co. Ltd. vs Irving , Nanabin Aba vs Sheku bin Andu (I.L.R. , Delhi Cloth and General Mills Co. Ltd. vs Income tax Commissioner, Delhi (54 I.A. 421), Kirpa Singh vs Rasaldar Ajaipal Singh (A.I.R. 1928 Lab. 627), Sardar Ali vs Dalimuddin (I.L.R. applied.
Badraddin Abdul Rahim vs Sitaram Vinayak Apte (I.L.R. disapproved.
In re Vasudeva Samiar (A.I.R. 1929 Mad. 381), Ram Singha vs Sankar Dayal (I.L.R. 50 All. 965), Radhakisan vs Sri Dhar (A.I.R. , Gordhan Das vs Governor General in Council (A.I.R. 1950 Punj. 103) and Nagendra Nath Bose vs Monmohan referred to.


judgement:
Appeal No. 382 of 1960.
Appeal by special leave from the judgment and decree dated October 31, 1957, of the Judicial Commissioner 's Court of Himachal Pradesh at Simla in Civil Regular Second Appeal No. 8, of 1957.
Achhru Ram and Naunit Lal, for the appellant.
Anil Kumar Gupta, section C. Agrawal, R. K. Garg, D. P. Singh and M. K. Ramamurthy, for the respondents.
May 1.
The Judgment of the Court was delivered by MUDHOLKAR, J.
In this appeal by special leave against the judgment of the Judicial Commissioner, Himachal Pradesh in second appeal two points have been urged on behalf of the appellant.
The first is that the Court of the Judicial Commissioner was in error in interfering with a finding of fact of the District Judge and the second is that the Court of the Judicial Commissioner was wrong in holding that the suit was not triable by a civil court but is triable by a revenue court under section 77 of the Punjab Tenancy Act, 1887 (Punj.
XVI of 1887) (hereinafter referred to as the Act) which applies to Himachal Pradesh.
In order to appreciate these points it is necessary to state some facts.
The appellant who was plaintiff in the suit was the former ruler of the State of Bhagat, one of the Simla Hill states.
The State of Bhagat and several other Simla Hill States were merged in Himachal Pradesh on July 1, 1947.
As a consequence of the merger the ruler surrendered his sovereignty to the new States.
Khasra Nos. 70, 80, 81, 167, 263/170, 171, 172, 173 and 2691177 measuring in all 15 bighas and 19 695 biswas, among other property, were declared to be the private property of the appellant.
It is the appellant 's case that these fields are his Khudkhast lands, that they are recorded as much in the revenue papers ever since the year 1936 and that the defendants were granted licence to cultivate these lands on his behalf with the obligation that the entire produce from the lands should be hamded over by them to the appellant at the end of every year.
The consideration for the arrangement was a remission in rent and land revenue which the appellant had granted to the respondents with respect to certain other lands which were leased out by him to the respondents.
Bulk of these lands were declared to be the State property as a result of the merger and presumably the respondents have now to pay full assessment or rent with respect to them.
According to the appellant the respondents failed to hand over the annual produce from the fields in suit to him and, therefore, he leased out the lands at Rs. 500/ per annum to Chuku Koli for Rs. 500/ for a period of one year from October, 1950.
The respondents, however, obstructed Choku in taking possession of the land and despite repeated demands by the appellant, they kept him out of possession.
He therefore instituted a suit for possession and mesneprofits from Rabi 1950 to Kharif 1953 at m. 500 per annum and future profits in July, 1954.
On behalf of the respondents it was contended that they were the occupancy tenants of these lands for the last two or three generations.
that they were cultivating these lands jointly and severally and that the suit was not cognizable by a civil court.
They also contended that had filed a suit against the appellant in the court of the Assistant Collector, First Grade, Solon for a declaration to the effect that they are in possession of the lands as occupation tenants and that, therefore, the appellant 's suit 696 should be stayed.
The trial court decreed the suit of the appellant as against all the respondents including the claim for mesne profits.
The respondents preferred an appeal before the District Judge, Mahau.
He dismissed the appeal and confirmed the decree of the trial court.
They therefore preferred second appeal to the Court of Judicial Commissioner.
The Judicial Commissioner allowed the appeal holding that the respondents were occupancy tenants of the lands and that consequently the provisions of section 77 (3) read with the first proviso thereto barred the jurisdiction of the civil court.
On this finding the Judicial Commissioner set aside the decree granted by the trial court and affirmed by the District Judge and directed that the plaint be returned for presentation to proper court.
It is contended before us by Mr. Achhru Ram for the appellant that for a suit to be barred under section 77 (3) of the Act from the cognizance of a civil court two conditions have to be satisfied.
The first is that the suit should relate to one of the matters described in sub section 3 and the second is that the existence of the relationship of landlord and tenant should be admitted by the parties.
If these two conditions are not satisfied then, according to him, the suit is not barred from the cognizance of a civil court.
In support of his contention he has relied upon the decision in Sham Singh vs Amarjit Singh Baru vs Nader ; (2) Daya Ram vs Jagir Singh He has also relied upon certain observations of this Court in Magiti Sasamal vs Pandab Bissoi (4).
Section 77 (3) and the first proviso there to run as follows: "The following suits shall be instituted in, and heard and determined by Revenue Courts, and no other Court shall take cognizance of (1) Lah.
III (2) (1942) I.L.R.24 Lah.
191 F.B. (3) A.I.R (1956) Him.
(4) 697 any dispute or matter with respect to which, any such suit might be instituted: Provided that (1) where in a suit cognizable and instituted in a Civil Court it becomes necessary to decide any matter which can under this sub section be heard and determined only by a Revenue Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by Order VII, rule 10, Code of Civil procedure and return the plaint for presentation to the Collector.
" We are not concerned with the second proviso.
Below the second proviso the kind of suits which are triable by the revenue courts are set out in three groups.
It is contended on behalf of the respondents that the suit in question would fall under entry (e) in the second group.
That entry reads thus: "suits by a landlord to eject a tenant.
" They also contend that their suit before the revenue court was one under entry (d) which reads thus: "Suits by a tenant to establish a Claim to a right of occupancy, or by landlord to prove that a tenent has not such a right.
" It would, however, appear that not only it can (d) and (e) but every other item in the three groups relates to a dispute between tenants on the one hand and the landlord on the other.
There is no entry or item relating to a suit by or against a person claiming to be a tenant and whose status as a tenant is not admitted by the landlord.
It would, therefore, be reasonable to infer that the legislature barred only those suits form the cognizance of a civil court where there 698 was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant.
This is precisely what has been held in the two decisions of the Lahore High Court relied upon by Mr. Achhru Ran.
In the first of these two cases Tek Chand J., observed: "It is obvious that the bar under clause (4) is applicable to those cases only in which the relationship of landlord and tenant is admitted and the object of the suit is to determine the nature of the tenancy i. e. whether the status of the tenant falls under sections 5, 6, 7 or 8 of the Act." In that case the suit was instituted by someone claiming to succeed to the tenancy of certain land on the death of the occupancy tenant.
The learned Tudge observed: "In a suit like the one before us the point for decision is not the nature of the tenancy, but whether the defendant is related to the deceased tanant and if so whether their common ancestor had occupied the land.
If these facts are established, the claimant ipso facto succeeds to the occupancy tenancy.
But if they are found against him, he is not a tenant at all." As this facts were not established the High Court held that the landlord was entitled to sue the defendant who had entered on the land asserting a claim to be a collateral of the deceased tenant but who failed to substantiate his claim.
This view was affirmed by a Full Bench consisting of five Judges in the other, Lahore case.
In Daya Ram vs Jagir Singh (1) the same Judicial Commissioner who decided the appeal before us has expressed the view that where in a suit for ejectment the existence of the relationship of (1) A.I.R. (1956) Him.
Pra. 61.
699 landlord and tenant is not admitted by the ' parties the Civil Court had jurisdiction to try the suit and that such a suit did not fall under section 77 (3) of the Act.
In Magiti Sasamal vs Pandab Bissoi (1) this Court was considering the provisions of section 17 (1) of the Orissa Tenants Protection Act, 1948 (3 of 1948).
The provisions of that section run thus: "Any dispute between the tenant and the landlord as regards, (a) tenant 's possession of the land on the 1st day of September, 1947 and his right to the benefits under this Act, or (b) misuse of the land by tenant, or (c) failure or the tenant to cultivate the land properly, or (d) failure of the tenant to deliver to the landlord the rent accrued due within two months from the date on which it becomes payable, or (e) the quantity of the produce payable to the landlord as rent, shall be decided by the Collector on the application of either of the parties.
" It was contended in that case on behalf of the respondents who claimed to be tenants that suit for permanent injunction instituted by the appellant landlord was barred by the provisions of section 7 (1).
Dealing with this contention this Court observed as follows: "In other words, section 7 (1) postulates the relationship of tenants and landlord between the parties and proceeds to provide for the exclusive jurisdiction of the Collector to try the five categories of disputes that may arise between the landlord and the tenant.
The disputes which are the subject matter of section 7 (1) must be in regard to the five categories.
That in the plain and obvious construction of the words any dispute as regards '.
On this construction it would be unreasonable to (1) 700 hold that a dispute about the status of the tenant also falls within the purview of the said section.
The scheme of section 7 (1) is unam biguous and clear.
It refers to the tenant and landlord as such and it contemplates disputes of the specified character arising between them.
Therefore, in our opinion, even on a liberal construction of section 7 (1) it would be difficult to uphold the argument that a dispute as regards the existence of relationship of landlord and tenant falls to be determined by the Collector under section 7 (1)".
The observations of this Court would clearly apply to the present case also inasmuch as the relationship of landlord and tenant as between the parties to the suit is riot admitted by the appellant.
Now we will come to the second point because the argument is that on the finding of the learned District Judge the respondents are tenants arid, therefore, their ejectment cannot be ordered by a Civil Court.
As already stated the appellant challenged the finding of the Judicial Commissioner on the point on the ground that it had no jurisdiction to reverse the finding of the District Court because it was a finding of fact on the question.
There is no doubt in our mind that the learned Judicial Commissioner was in error in reversing the finding of fact of the District Judge particularly so because the finding of the District Judge is based upon a consideration of entries in the record of rights from the year 1936 onwards showing that the lands were the khudkhast lands of the appellant and were in his possession, The learned Judicial Commissioner has omitted to bear in mind the provisions of section 44 of the Act which give a presumptive value to the entries in revenue records.
It was argued before us that there are prior entaries which are in conflict with those on which the learned District Judge has 701 relied.
It is sufficient to say that where there is such a conflict, it is the later entry which must prevail.
Indeed from the language of section 44 itself it follows that where a new entry is substituted for an old one it is that new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry.
In Deity Pattabhiramaswamy vs section Hanymayya(1) this Court held that a finding of fact arrived at by the District Judge on the consideration of all evidence, oral and documentary, adduced by the parties, cannot be set aside in second appeal.
the question here is whether the respondents are the tenants of the appellant.
Though for determining the question documentary evidence fell to be considered, the finding on the question is no less a finding of fact than may have been the case if the evidence to, be considered was merely oral.
As was pointed out by this Court in that case as well as recently in Sir Chunilal V. Mohta & Sons Ltd., Bombay vs The Century Spinning & Manufacturing Co. Ltd, Bombay (2) an issue of law does not arise merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed.
Of course here, as we have already pointed out, the Judicial Commissioner has ignored the presumption arising from certain documentary evidence and, therefore, there is an additional reason vitiating its finding.
Upon this view we set aside the decree of the Court of the Judicial Commissioner and restore that of the trial court as affirmed by the District Court.
Costs throughout will be borne by the parties as incurred.
Appeal allowed.
(1) A. 1.
R. (2) (1962) Supp.

summary:
The appellant filed a suit before the Civil Court for the ejectment of the respondents on the ground that they were licenses.
Tile respondents claimed that they were occupancy tenants and contended that under section 77 of the Punjab Tenancy Act, 1887, the suit was triable by a revenue court only and not by the civil court.
The trial court and the first appellate court decreed the suit holding that the respondents were not tenants.
On second appeal the judicial Commissioner held that the respondents were occupancy tenants and that the civil court had no jurisdiction to entertain the suit.
Held, that the civil court had jurisdiction to entertain the suit.
Section 77 of the Punjab Tenancy Act was applicable only to suits between landlord and tenants where there was no dispute that the person cultivating the land was a tenant.
But where the status of the defendant as a tenant was not admitted by the landlord, section 77 did not bar a suit in a civil court.
Sham Singh vs Amarjit Singh, (1930) 1.
L. R. and Baru vs Niadar, Lah.
19 1, F. B., approved.
Magiti Sasamal vs Pandab Bissai, , relied on, Held, further that the finding of the first two courts that the respondents were not tenants was one of fact even though documentary evidence had to be considered in determining the question and the judicial Commissioner bad no jurisdiction to interfere with it in second appeal.
The judicial Commissioner had ignored the presumption which arose from entire in the revenue records under section 44 of the Act and this vitiated his findings.
Where there is conflict between prior and subsequent entries, the later entries must prevail.