judgement:
iminal Appeal No. 65 of 1966, Appeal by special leave from the judgment and order dated September 20, 1965 of the Allahabad High Court in Criminal Misc.
Contempt Application No. 76 of 1964.
R. K. Garg and section C. Agarwal, for the appellants.
The respondent did not appear.
The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by special leave, is directed against the judgment and order of the Allahabad High Court.
dated September 20, 1965, passed in Criminal Miscellaneous Contempt Application No. 76 of 1964, finding the appellant 177 guilty, of having committed contempt of Court, and sentencing each of them, to pay a fine of Rs. 5001 .
They have also been directed to pay the costs, in the contempt proceedings.
The first appellant died, during the pendency of this appeal.
As a fine has been imposed, against him, in addition to the liability to pay costs, his widow has been brought on record, as his legal representative, and allowed to continue these proceedings.
The circumstances, under which the contempt proceedings came to be initiated, in the High Court, may be briefly indicated.
The second respondent, herein, Sri V. P. Singh, is an advocate, practising at Azamgarh, and he was a member of the Congress Organisation, at the material time.
He stood for election, for membership of the Prarambhik (primary) Congress Committee, of Tarwa, in the District of Azamgarh, held on April 10, 1964.
His opponent was one Badri Singh.
In that election.
Badri Singh .was declared elected.
The second respondent filed, on April 16, 1964, a suit, No. 132 of 1964, in the Court of the City Munsif.
Azamgarh, for having the election of Badri Singh, declared void and inoperative.
He had alleged various irregularities, regarding the conduct of the said election.
Along with the suit, he had also filed an application, for injunction, restraining the District Election Officer, and other Officers, from holding elections for membership of the District Congress Committee.
He had also asked for an injunction, restraining Badri Singh, from taking part in the elections, for membership of the District Congress Committee.
The City Munsif had granted the interim injunction, on April 18, 1964.
Badri Singh, on being served with this interim order, filed an application, dated April 21, 1964, before the City Munsif, praying for vacating the order of interim injunction.
At the time, when the election that was challenged, by the 2nd respondent, took place, Sri Ajit Prasad Jain was the President of the Uttar Pradesh Congress Committee, Shri Govind Sahai was the General Secretary of the said Committee and Sri Rameshwar Narain Singh was the General Secretary of the District Congress Committee, Azamgarh.
It appears that the Working Committee of the Indian National Congress bad passed a resolution.
dated December 4/5, 1960, the substance of which was that any member of the Congress, having any grievance, in respect of any action taken, or decision given, by a Congress Organization.
should take advantage of the tribunals provided, to seek redress by way of appeal or reference, and that such matters should not be taken to law Courts.
That resolution further provided that initiating of such litigation, and securing of ex parte interlocutory orders, against the Congress Committee and Congress authorities.
178 was highly detrimental to the discipline of the Organisation, and its smooth working.
The resolution wound up, by saying that the Working, Committee resolved that any member, who instituted a suit or other proceeding in law Courts against any Congress Committee or Official, did so at the risk of being considered guility of gross indiscipline and of being summarily, and without any further notice, removed from membership of the Congress, by order of the Provincial Congress Committees concerned, or the Working Committee.
In view of this resolution, Sri Gulzari Lal Nanda, who is stated to have been delegated the authority of the Working Committee, in respect of organisational elections in Uttar Pradesh, issued a directive, dated April 20, 1964, to the President, Uttar Pradesh Congress Committee, Sri Ajit Prasad Jain, to take immediate action against those members, who had gone to Courts, in regard to Congress organisational elections, anywhere in Uttar Pradesh.
Accordingly, Sri Jain, on April 21, 1964, sent out circular letters to all the District Returning Officers in Uttar Pradesh, expelling those Congressmen, from membership of the Congress, who had filed suits, in Courts, concerning organizational elections.
Sri Govind Sahai and Sri Rameshwar Narain Singh, the appellants herein, also sent, each of them, a letter to the District Returning Officer, expelling the second respondent, and removing his name, from the membership of the Congress.
This decision was duly com municated, to the second respondent.
To resume the narrative, regarding the proceedings, connect ed with the suit, the application for vacating the injunction, filed by Badri Singh, came up for final hearing, before the City Munsif, on April 25, 1964, when the second appellant, filed an affidavit, mentioning the fact that the second respondent, herein, who was the plaintiff in the suit, had been expelled, from the Congress Organisation.
In view of the fact that the very foundation, for initiating action, vanished, the City Munsif dismissed the injunction application, on April 27, 1964, on the ground that the second respondent was no longer a member of the Congress Organisation.
The second respondent moved an application, before the City Munsif, on May 9, 1964, for taking proceedings in contempt, against the appellant and Sri Ajit Prasad Jain, but that application was dismissed on May 30, 1964, on the ground that the present appellants were not parties to the suit.
The second respondent filed Criminal Miscellaneous Contempt Application No. 76 of 1964, in the High Court.
After setting out the circumstances, under which he filed the suit, and the order of expulsion, passed against him, the second respondent alleged that the act of the appellants, along with Sri Ajit Prasad Jain, had directly interfered with the normal course of justice, by hampering the progress of the suit.
179 Sri Ajit Prasad Jain, and the appellants, filed written statements, containing identical pleas.
Their contention was that the second respondent was bound by the rules and regulations, of the Indian National Congress, and that they had full right and justification, for expelling him, and removing his name, from the membership of the Congress.
That action, expelling the second respondent, they contended, had been taken on the strength of the resolution of the Congress Working Committee, referred to earlier.
They had further contended that their object, in enforcing the Circular, dated December 4/5, 1950, was only to enforce discipline in the Congress, and not with a view to render the second respondent 's suit infructuous, or interfere with the Court 's proceedings.
They ultimately pleaded that none of them were guility of any contempt of Court.
So far as Sri Ajit Prasad Jain is concerned, it is seen that.
after filing his written statement, he was appointed Governor of Kerala.
The High Court, in view of article 361, clauses (2) and (3), held that the proceedings could not be continued against that party, and hence discharged the rule.
Regarding the appellants, the High Court held that their conduct directly tended to interfere with the suit proceedings, pending in Court, initiated by the second respondent, and, as such, amounted to contempt of Court, of the City Munsif, Azamgarh.
In view of the fact that no expression of regret was made, by them, the High Court sentenced each of the appellants, to pay a fine of Rs. 5001 and also pay costs of the State,, as well as the second respondent, herein.
Mr. R. K. Garg, learned counsel for the appellants, urged that the second respondent was a member of the Congress Organisation, and he was bound by the Resolutions, passed by the same.
The appellants had only acted, in accordance with the directions, given by the appropriate officers of the Congress organisation, and they were bound to obey the instructions, given to them.
When, in the course of the discharge of their duties, they had been directed to enforce the resolution, of the Congress dated December 415, 1950, they issued the Circulars, expelling the second respondent, from the Congress.
Their object, in expelling the second respondent, was not in any manner intended to interfere with the proceedings, pending in the suit.
The fact that the injunction application was dismissed, because it became infructuous, by the second respondent having ceased to be a member of the Congress Organisation, was certainly not a circumstance which could be put against the appellants, in the matter of issuing the circular, concerned.
There has been no appearance, on behalf of the respondents.
After giving due consideration, to the contentious, urged by the 180 learned counsel, for the appellants, we are satisfied that the High Court has rightly found the appellants guilty of contempt of Court.
The original first appellant, Sri Govind Sahai, and the second appellant, had each sent letters to the District Returning Officer, expelling the second respondent, and removing his name, from the membership of the Congress.
There is no dispute, about this fact.
It is also not disputed that the second appellant filed an affidavit, in Suit No. 132 of 1964, drawing the attention of the Court, to the order of expulsion, from membership, passed as against the second respondent, and it is substantially in view of this that the application, for temporary injunction, was dismissed.
We are of opinion ', that these acts are of each a nature, as to interfere with, or prejudice the second respondent in the proceedings, connected with this suit.
Oswald, in his book 'Contempt of Court ', Third Edition, says, at p. 6; "To speak generally, Contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of.
the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation.
" This statement, has been quoted, with approval, by Das, J., who delivered the majority judgment, in the decision, reported as Pratap Singh vs Gurbaksh Singh(1).
More or less, under similar circumstances, this Court, in the said decision, has held that certain actions, taken by the officers therein, amounted to contempt of Court.
From the facts, noted in that decision, it emerges that an Officer of the Forest Department, against whom an order for recovery of certain amounts, had been made, had instituted a suit for having that order declared null and void.
When the summons in the suit, was served on the State Government, the Under Secretary to the Government, in the concerned Department, sent a memorandum, to the Chief Conservator of Forests, drawing his attention, to a Circular letter, issued by the Government, on January 25, 1953.
In that Circular letter, the Government had indicated that any attempt, by a Government servant, to seek decision, in a Court of law, in respect of matters, arising out of employment, or conditions of service, without exhausting the normal official channels of redress, was considered to be contrary to official propriety and subversive of discipline, and such conduct would justify the initiation of disciplinary action, against the government servant.
The Under Secretary, in his communication to the Chief Conservator of Forests, had stated that the (1) [1962] Supp.2 S.C.R.838, 848.
181 officer, who had instituted the suit, had not exhausted his departmental remedies, and, therefore, he had rendered himself liable to disciplinary action, as per the Government Circular letter, of January 25, 1953.
The Under Secretary further added that the Chief Conservator should intimate what action he proposed to take, against the particular officer.
On receipt of this letter, disciplinary proceedings were initiated, against the officer, who had filed the suit.
Promptly, that officer filed an application, before the High Court, for taking action for contempt, against the officers, mentioned therein.
The defence was that the action, taken, was perfectly competent, and it did not amount to contempt of Court.
The High Court negatived the defence contention and held that the officers, who had initiated disciplinary proceedings, were guilty of contempt of Court.
This Court, on appeal, approved of the decision of the High Court.
In that decision, Das, J., and Subba Rao, J., (as he then was), took the view that the action, of the officers, who initiated the disciplinary proceedings, against the person, who had filed a suit, amounted to contempt; whereas, Raghubar Dayal, J., held to the contrary on facts.
But, Raghubar Dayal, J., also agreed with the proposition that, if any pressure is put on a party, in order to make it act in a particular manner, with respect to a pending action, that would amount to contempt of Court, in which the matter be pending.
But, the learned Judge was of the view that, inasmuch as disciplinary proceedings had been initiated, in view of the Government Circular letter, dated January 25, 1953, there was no question of contempt.
With respect, we are in agreement with the majority view, in the above decision.
In the instant case, the passing of the orders of expulsion, by the two appellants, against the second respondent, and the filing of a supporting affidavit, in the suit by the second appellant, clearly indicate that it was a deliberate attempt, by the appellants, to interfere with, or prejudice the second respondent, in the conduct of the litigation, instituted by him.
It is no answer that the action, by way of expulsion, was taken on the basis of the Resolution, of the All India Congress Working Committee, and to enforce discipline, in the Congress Organization.
As emphasized by Das, J., in Pratap Singh 's Case(.), 'any conduct, which interferes with, or prejudices parties litigant, during the litigation, is undoubtedly Contempt of Court '.
The High Court, in this case, was justified in holding the appellants guilty of contempt.
We agree with the said conclusion.
Before closing the discussion, on this matter, we may state that Mr. Garg referred us, to the decision in Webster V. Bake (1) [1962] Supp 2 S.C.R. 838 (2) 182 well Rural Council(1), and urged that, on the principles, laid down therein, the appellants were not guilty of contempt.
The consideration of this English decision, need not detain us much, because it has been adverted to , by Das, J., in Pratap Singh 's Case(1), and distinguished.
Therefore, Websters Case(2) does not apply, to the facts of the instant case.
The result s that this appeal fails, and is dismissed.
Y.P. Appeal dismissed.
(1) [1962] Supp. 2 S.C.R. 838.

summary:
The second respondent a member of a political party filed a suit challenging the election of his opponent to a committee of the party.
He also obtained an interim injunction restraining his opponent from taking part in certain elections.
The appellants office bearers of ' the party.
issued letters expelling the second respondent from the Organisation in pursuance of an earlier resolution of the party which barred reference of such dispute to law courts and provided for summary removal of an,,, member who initiated a suit.
The opponent of the second respondent moved the court for vacating the injunction, in which the second appellant filed an affidavit stating the expulsion of the second respondent.
The second respondent moved the Munsif for taking proceedings in contempt against the appellant ,.
which was dismissed.
Thereupon he filed con tempt application in the High Court and the High Court held the appellants guilty of contempt court.
In appeal, this Court : HELD : The appellants were guilty of contempt of court.
The passing of the orders of expulsion, by the two appellants against the second respondent, and the filing of a supporting affidavit, in the suit by the second appellant, clearly indicated that it was a deliberate attempt, by the appellants, to interfere with, instituted by second respondent, in the conduct of the litigation, instituted by him.
It was no answer that the action, by way of expulsion was taken on the basis of the resolution of the party and to enforce discipline in the Organisation.
[181 F G] Pratap Singh vs Gurbaksh Singh [1962] Supp. 2 S.C.R. 838 followed.
Webster vs Bakewell Rural Council, distinguished.


judgement:
iminal Appeal No. 09 of 1966.
Appeal by special leave from the judgment and order dated November 24, 1965 of the Bombay High Court in Criminal Revi ion Application No. 232 of 1965.
194 A.S. R. Chari, N. C. Maniar, P. C. Bhartari and J. B. Dada.
chanji, for the appellant.
G. L. Sanghi and section P. Nayyar, for respondent No. 1.
N. C. Maniar, K. L. Hathi and Atiqur Rehman, for respondent No. 2.
The Judgment of the Court was delivered by Vaidialingam, J.
In this appeal, by special leave, on behalf of the appellant, the fifth accused in Special Case No. 9 of 1963.
in the Court of the Special Judge for Greater Bombay, Mr ' A. section R. Chari, learned counsel, challenges the order, dated November 24, 1965, passed by the High Court of Bombay, in Criminal, Revision Application No. 232 of 1965.
There are five accused, in Special Case No. 9 of 1963.
The appellant, and accused No. 4, are partners of an industrial concern, known as 'Premier Industries '.
Accused No. 1 is an Income tax Consultant, and accused Nos. 2 and 3, are clerks.
in the Income tax Department.
The substance of the prosecution case.
against these five accused, is that they formed a conspiracy, to cheat the income tax authorities, in respect of the income tax assessments, of the Premier Industries, for the assessment year 1960 61, and, in pursuance of the said conspiracy, committed ,offences, under section 420 IPC., and section 5(1)(d) read with section 5(2).
of the Prevention of Corruption Act, 1947 (Act 11 of 1947).
(hereinafter called the Act).
They have also been charged with an offence, under section 468 IPC., alleged to have been committed, by them, in furtherance of the said conspiracy.
The allegations, relating to the commission of the offence,.
under section 420 IPC., is comprised in charge No. 2.
That charge ends up by saying that, by the various acts, mentioned therein.
the appellant, along with accused No. 1, who is the Income tax Practitioner, and accused No. 4, dishonestly or fraudulently induced the income tax authorities and obtained assessment order for less income tax than due by accused Nos. 4 and 5, and that.
all the three of them, have committed an offence, under section 420.
It is not necessary to refer to the other charges.
The appellant raised an objection, to the framing of a charge.
under section 420 IPC.
According to him, the charge should really have been framed under section 417, on the ground that the assessment order, in this case, is not 'property '.
He also raised an objection, that the assessment order, is not 'valuable security '.
The Special Judge, by his order, dated February 3, 1965, re jected the preliminary objections, raised by the appellant.
He held that the assessment order was 'property ', and that it was also 'valuable security '.
Therefore, he held that the charge, framed 195 under section 420 IPC., was correct.
There were certain other objections, raised 'by the appellant, viz., that sanction had not been obtained, under section 196A, Cr.
P.C., that where the offence itself was alleged to have been committed, in pursuance of the conspiracy, and was the subject matter of charge, no charge of conspiracy could still be maintained, and that the period of conspiracy had been artificially fixed, in the charge.
These objections have also been overruled, by the Special Judge.
The appellant carried the, matter, in revision, before the High Court of Bombay.
The learned Judge, by his order, dated November 24, 1965, which is under attack, has confirmed the order of the Special Judge.
Here again, the High Court has taken the view that the assessment order is 'property ' and it is also 'valuable security ', under section 30, IPC.
The High Court is further of the view that the allegations, contained in the material charge, do prima facie disclose an offence, under section 420 IPC.
Certain other objections, raised before the High Court, were also negatived.
Mr. A. section R. Chari, learned counsel for the appellant, has again reiterated the same objections.
Except for the question, relating to the charge framed under section 420 IPC., we make it clear that we are not expressing any opinion, regarding the other points, raised by Mr. Chari.
If any other objections are available to the appellant, or any other accused, he or they, will be perfectly entitled to raise the same, during the course of the trial.
The argument, regarding the invalidity of the charge, framed under section 420, runs as follows.
The essential ingredient of an offence, under section 420 IPC., is that the person cheating, must thereby, dishonestly induce, the person deceived, to deliver any property, or to make the whole or any part of a valuable security.
We are not referring to the other matters, contained in section 420 IPC.
The issue or delivery of an order of assessment, by an Income tax Officer is not in consequence of the cheating, committed by a party, though it may be that the computation of income, as found in the assessment order, may be the result of cheating, practised by the accused.
Therefore, the accused cannot be considered to have, by creating, dishonestly induced the Income tax Officer, to deliver the assessment order, because that is issued, to a party, as a matter of routine.
The assessment order, cannot also be considered to be 'property ', within the meaning of section 420 IPC.
It cannot also be stated, that the accused, by cheating have dishonestly induced the Income tax Officer to make a valuable security, because an assessment order, can, in no sense, be considered to be a valuable security.
No legal right is created by an assessment order.
The liability to payment of income tax is created by the charging section, section 3, of the Indian 196 Income tax Act, 1922, and the demand, for payment of tax is made, on the basis of a notice of demand, issued by the Income tax Officer, concerned.
At the most, the accused will be guilty of ' cheating ', as defined under section 415, IPC, inasmuch as they may have intentionally induced the Income tax Officer, who is deceived, to do or omit to do, anything which he would not do, or omit.
if he were not so deceived, and they will be liable for punishment, under section 417, IPC.
Mr. G. L. Sanghi, learned counsel for the State, has supported the views, expressed by the High Court.
We are not inclined to accept the contentions of Mr. Chari, that there is any error, or illegality, in framing a charge, under section 420 IPC.
As to whether the prosecution is able to make out its case, or not, is a different point.
We are only concerned, at this stage, to consider as to whether, under the circumstances, a charge, under section 420, could have been framed.
It is well known, that, under the Indian Income tax Act, liability to pay income tax arises on the accrual of the income, and not from the computation, made by the taxing authorities, in the course of assessment proceedings, and that it arises, at a point of time, not later than the close of the year of account.
It has also been laid down, by this Court, that assessments particularise the total income of an assessee and the amount of tax, payable.
But it is not as if that the assessment order is valueless, as is sought to be made out.
The question, that arises for consideration, in this case, is whether there is any 'delivery of property ', or, at any rate, whether the Income tax Officer has been induced 'to make a valuable security '. 'Movable property ' is defined, in section 22, IPC; 'Document ' and 'valuable security ' are defined in sections 29 and 30, IPC, respectively.
Under the scheme of the Income tax Act, it is clear that the assessment order determines the total income of the assessee, and the tax payable, on the basis of such assessment.
The assessment order has to be served, on the assessee.
The tax is demanded, by the issue of a notice, under section 29; but the tax demanded, is on the basis of the assessment order, communicated to an assessee.
The communicated order of assessment, received by an assessee, is in our opinion, 'property ', since it is of great importance, to an assessee, as containing a computation, of his total assessable income and, as a determination, of his tax liability.
In our view, the word 'property ', occurring in section 420, IPC, does not necessarily mean that the thing, of which a delivery is dishonestly desired by the person who cheats, must have a money value or a market value, in the hand of the person cheated.
Even if the thing has no money value, in the hand of the person cheated, but becomes 197 a thing of value, in the hand of the person, who may get possession of it, as a result of the cheating practised by him, it would still fall within the connotation of the term 'property ', in section 420, IPC.
Once the assessment order is held to be 'property ', the question arises as to whether there is a 'delivery ', of the, same, to the assessee, 'by the Income tax Officer.
It is argued that the order is communicated, in the usual course, and that irrespective of any ,cheating ', the officer is bound to serve the assessment order.
This argument, though attractive, has no merit.
Communication, or service of an assessment order, is part of the procedure of the assessment itself.
But it can be held that, if the necessary allega tions are established, the accused have dishonestly induced the Income tax Officer, to deliver the particular property, viz., the assessment order, as passed by him, in and by which a considerably low amount has been determined, as the total income of the assessee, on the basis of which the amount of tax, has been fixed.
Nor are we impressed with the contention, that the deception, if at all, is practised, not when the assessment order is delivered, but at the stage, when the computation, of the total income, is made, by the Income ,tax Officer.
The process of 'cheating ', employed by an assessee, if successful, would have the result of dishonestly inducing the Income tax Officer to make a wrong assessment order and communicate the same to an assessee.
An offence under section 420, IPC, will also be made out, if it is established that the accused have cheated and, thereby, dishonestly induced the Income tax Officer to make a 'valuable security '.
This takes us to the question : "Is the assessment order. 'valuable security ' ?" We have already referred to section 30, IPC, defining, valuable security '.
The assessment order is certainly a 'document ', under section 29, IPC.
The order of assessment does create a right, in the assessee, in the sense that he has a right to pay tax only on the total amount assessed therein and his liability to pay tax is also restricted to that extent.
Therefore an 'order of assessment ' is a 'valuable security ', under section 420, IPC.
Therefore, if the cheating, employed by the accused, resulted in inducing the Income tax Officer to make a wrong assessment order, it would amount to inducing the Income tax Officer, to make a 'valuable security '.
Considering the question, from either point of view, as indicated above, it follows that the framing of a charge, for an offence, tinder section 420 IPC., is correct.
The appeal, accordingly, fails, and is dismissed.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant along with certain others was tried for the offence of entering into a conspiracy to cheat the income tax authorities in respect of the income tax assessment of a firm.
The prosecution levelled against him a charge inter alia, of the offence under section 420 I.P.C.
The appellant raised before the Special Judge an objection to the effect that the terms of section 420 I.P.C. were not satisfied inasmuch as (i) an assessment order was not 'property ', (ii) its communication to him was not 'delivery ', (iii) an assessment order was also not a 'valuable security '.
The Special Judge and the High Court rejected these contentions.
The appellant came to this Court by special leave.
HELD : (i) Even if an assessment order is not 'property ' in the hands of the Income tax Officer, it is 'property ' in the hands of the assessee because it contains a computation of his assessable income and a determination of his tax liability.
The word property occurring in section 420 I.P.C. does not necessarily mean that the. thing, of which a delivery is dishonestly desired by the person who cheats, must have a money value or a market value in the hands of the person cheated.
[196 G 197 A] (ii) Communication or service of an assessment order is part of the procedure itself.
But if the necessary allegations are established, the accused must be held to have dishonestly induced the Income tax Officer to 'deliver ' the particular property viz. the assessment order.
Nor could the contention be accepted that the deception, if at all, is practised not when the assessment order is delivered, hut at the stage when the computation of the total income is made by Income tax Officer, for, the process of 'cheating ' employed by an assessee, if successful, would have the result of dishonestly inducing the Income tax Officer to make a wrong assessment order and communicate the same to an assessee.
[197 C D] (iii) An order of assessment is a 'valuable security ' under section 420 [.P.C. because@ it creates a right in the assessee in the sense that he has right to pay tax only on the total amount assessed therein and his liability to pay tax is also restricted to that extent.
[197 F G] On the above reasoning, framing of a charge for an offence under 420 I.P.C. is correct.


judgement:
iminal Appeal No.124 of 1966.
Appeal by special leave from the judgment and order dated February 17, 1966 of the Punjab High Court (Circuit Bench) Delhi in Criminal Appeal No. 63 D of 1964.
184 M. C. Chagla E. C. Agarwala, Santosh Agarwala and P. C. Agarwala, for the appellant.
D. Narsaraju and R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by special leave, from the judgment of the Punjab High Court dated February 17, 1966 in Criminal Appeal No. 63 D of 1964 affirming the conviction of the appellant under section 5(2) of the Prevention of Corruption Act (Act 11 of 1947) and section 161 of the Indian Penal Code.
The case of the prosecution is that Miss Eylene (P.W. 2) used to live in 1962 with her father at Fazilka.
She developed illicit connection with someone and became pregnant.
In April 1963.
she went to Ambala to her maternal aunt, who is employed as a sister in the Ambala Air Force Hospital, and give birth to a son there in July 1963.
In August 1963 Miss Eylene along with her newly born son came to the house of her uncle Russel Nathaniel in Andrews Ganj, Delhi.
Since Miss Eylene was unmarried and could not keep the son with her, she asked Russel Nathaniel and his wife to make arrangement for the bringing up of the child.
Russel Nathaniel knew Roshan Lal who had no child of his own and wanted to adopt a child.
Accordingly, on August 25, 1963 the child was handed over to Roshan Lal.
After the child was handed over to Roshan Lal, Miss Eylene went to the house of her sister 's husband, N. K. Lal, P.W. 11 and stayed there with her sister.
It is alleged that on August 29, 1963 at about 9.30 or 10 P.m.
the appellant went to the house of Russel Nathaniel in police uniform and accused Russel Nathaniel and his wife of disposing of the illegitimate child.
The appellant further warned Mr. & Mrs. Nathaniel that if they wanted to save themselves they should make some settlement with him and demanded a bribe of Rs. 1,000/ .
But Mr. Nathaniel paid him Rs. 90/ and agreed to pay later on a sum of Rs. 700/ .
The appellant thereafter compelled Russel Nathaniel and his wife to execute a document in writing that they would pay him Rs. 700/ or agree to go to prison.
It is said that the appellant asked Russel Nathaniel to bring to him Roshan Lal and when Roshan Lal was called, 'the appellant asked him to pay something to him.
Roshan Lal ex.
pressed his inability to pay anything whereupon the appellant removed a golden ring from his finger.
On the same night the appellant contacted the girl, Miss Eylene and wished to record her statement.
Russel Nathaniel and his wife expressed their reluctance to send Miss Eylene with the appellant to the police station and therefore the appellant interrogated the girl at the resi dence of N. K. Lal, her brother in law.
The appellant made her sign a paper and took the same with him.
On September 4, 185 1963 Russel Nathaniel and N. K. Lal decided to refer the matter to the anti corruption department.
Accordingly, Russel Nathaniel went to D.S.P. Mukatdhari Singh who recorded his statement and called two witnesses to witness the proceedings.
Russel Nathaniel produced seven currency notes of the denomination of Rs. 100/ each.
The numbers of those currency notes were noted and Russel Nathaniel was then instructed to pass on the money to the appellant.
Russel Nathaniel contacted the appellant and asked him to come to the house of N. K. Lal.
They arrived at the house of N. K. Lal at about 7.30 or 7.45 P.m.
The appellant sent for the girl because he wanted to reprimand her and there after he asked for the payment of the agreed amount.
Russel Nathaniel handed over the currency notes to the appellant who put them in the left side pocket of his trousers.
Russel Nathaniel then gave a signai and immediately D.S.P. Mukatdhari Singh turned up and recovered the currency notes from the pocket of the appellant.
On being questioned the appellant told the D.S.P. that he never asked for bribe and that the money was paid to him in repayment of the loan by him to Russel Nathaniel.
The appellant produced in the witness box Dharam Vir, F. C. Ram Saran, H. C. Jai Parkash and A. section Kapur.
After conclusion of the trial the Special Judge, Delhi accepted the prosecution case as correct and convicted the appellant of the charged framed against him and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5001 or in default to undergo rigorous imprisonment for a further period of six months under section 5(2) of the Prevention of Corruption Act, and to two years rigorous imprisonment under section 161, Indian Penal Code and ordered the substantive sentences to run concurrently.
The appellant took the matter in appeal to the Punjab High Court.
The High Court maintained the conviction of the appellant under section 5(2) of the Prevention of Corruption Act and section 161, Indian Penal.
Code and also the sentence to undergo rigorous imprisonment for a period of two years awarded to the appellant on each count.
The High Court.
however, set aside the order with regard to the payment of fine or imprisonment in default.
In support of this appeal Mr. Chagla submitted in the first place that the order of sanction was bad in law as all the relevant papers and materials were not placed before the D.I.G. Police, Mr. M. P. Singh who, was the sanctioning authority.
Reference was made in this connection to the decision of the Judicial Committee in Gokulchand vs The King(1) in which it was held that a sanction which simply names the person to be prosecuted and specifies the provision of the Order which he is alleged to have contravened is not a sufficient compliance with cl. 23.
Mr. Chagla (1) A.I.R. 1948 P.C. 82.
10 Sup.
C.I 68 13 186 also referred to the evidence of P.W. 9, Sub Inspector, Ascharaj Lal who said that "all the papers relating to the case were sent to the D.I.G." When cross examined, he could not say which were the documents which were sent to the D.I.G. because they were in a sealed cover.
In our opinion, there is no substance in the argument put forward by Mr. Chagla on behalf of the appellant.
The Order of sanction dated December 10, 1963 shows on the face of it what were the facts constituting the offence charged and that a prima facie case was made out against the appellant.
The Order also further recites that Mr. M. P. Singh, D.I.G., "after fully and carefully" examining the material before him in regard to the "aforesaid allegations" in the case, considers that a prima facie case is made against the appellant.
It is manifest that the decision of the Judicial Committee has no application to the present case, for the order of sanction in that case was much more cryptic and materially different.
We are satisfied that the order of sanction in the present case fulfils the requirements of section 6 of the Prevention of Corruption Act.
We accordingly reject the argument of Mr. Chagla on this aspect of the case.
It was then contended that the concealment of the birth of an illegitimate child was not an offence under the Indian Penal Code or any other criminal statute and if the appellant had obtained money from Russel Nathaniel, it cannot be said that the appellant had obtained a gratification for doing or forbearing to do any official act, or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any per son.
In other words, the argument was that the appellant could not prosecute either Miss Eylene or Russel Nathaniel or anybody else for any offence and obtaining of money by the appellant for refraining from any such imaginary prosecution cannot be said to be an offence under section 161, Indian Penal Code or section 5(1)(d) of the Prevention of Corruption Act.
We are unable to accept this argument as correct.
When a public servant is charged under section 161, Indian Penal Code and it is alleged that the illegal grati fication was taken by him for doing or procuring an official act, it is not necessary for the Court to consider whether or not the accused public servant was capable of doing or intended to do such an act: see the decision of this Court in Mahesh Prasad vs The State of Uttar Pradesh(1).
In the second place, the charge against the appellant is also under section 5(1)(d) of the Prevention of Corruption Act which states "5.(1) A public servant is said to commit the offence of criminal misconduct (1) [1955] 1 S.C.R.965.
187 (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage or," Section 5(2) states : "(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to, fine X X : Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year.
" Upon the facts which have been found by the High Court to be proved there can be no doubt that the appellant was guilty of grossly abusing his position as public servant within the meaning of section 5(1)(d) of the Prevention of Corruption Act and thereby obtained for himself a valuable thing or pecuniary advantage, and the charge under that section is established.
We are therefore of the opinion that Mr. Chagla is unable to make good his argument on this aspect of the case also.
Lastly, Mr. Chagla submitted that the sentence of imprison ment was excessive.
We are unable to accept this contention.
Upon the finding of the High Court in this case it is manifest that the appellant grossly abused his position as a police officer and extorted money from Russel Nathaniel and his wife and also a gold ring from Roshan Lal.
The appellant in his official capacity as a police officer was expected to maintain a high standard of integrity and to uphold the maintenance of law.
Instead them proved facts disclose that there was a gross abuse of his official position on the part or the appellant and in the circumstances of the case we are satisfied that the sentence imposed is not excessive.
For the reasons expressed we affirm the judgment of the High Court of Punjab dated February 17, 1966 in Criminal Appeal No. 63 D of 1964 and dismiss this appeal.

summary:
An unmarried woman gave birth to a child and on her request, her uncle and aunt made arrangements for the child being brought up by some one who wanted to adopt a child.
The appellant, who was a police officer, accused the uncle and aunt of having disposed of an illegitimate child and demanded a bribe.
The anti corruption department was thereupon informed, a trap laid and currency notes which were given as bribe were recovered from the appellant.
He was prosecuted and convicted for offences under section 5(2) of the Prevention of Corruption Act and section 161, I.P.C. The High Court confirmed the conviction and sentenced him to 2 years R.I.
In appeal to this Court, HELD : (1) The order of sanction showed on the face of it what were the facts constituting the offence, that 'a prima facie case was made out, and that the sanctioning authority had fully and carefully examined the material Therefore,, the order of sanction fulfilled the requirements of section 6 of the Prevention of Corruption Act.
[186 B, D] Gokukhand vs The King, A.I.R. 1948 P.C. 82, distinguished.
(2) (a) When a public servant is charged under section 161 I.P.C. and it is alleged that illegal gratification was taken by him for doing or procuring an official act, it is not necessary for the court to consider whether or not the accused public servant was capable of doing or intended to do such an act.
[186 F G] Mahesh Prasad vs The State of U.P. ; , followed.
Therefore, though the concealment of the birth of an illegitimate child is not an offence and the appellant could not have prosecuted any one, it could not be said that the obtaining of money by the appellant for refraining from an imaginary prosecution was not an offence under 161 I.P.C. [186 E F] (b) In any event, the appellant was guilty of an offence under section 5(1)(d) of the Prevention of Corruption Act, in that he grossly abused his position within the meaning of the section and thereby obtained for himself pecuniary advantage and so, the sentence imposed on him was not excessive [187 D, E]


judgement:
minal Appeal No. 128 of 1966.
Appeal by special leave from the judgment and order dated December 23, 1965 of the Madhya Pradesh High Court (Indore Bench) in Criminal Revision No. 131 of 1964.
C. L. Sareen and R. L. Kohli, for the appellants.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Vaidialingam, J.
This is an appeal, by special leave, in which the appellants challenge the propriety and correctness, of the order of the Madhya Pradesh High Court confirming their conviction, under section 120B, IPC, and section 9(a), of the Opium Act, 1878 (Act I of 1878) (hereinafter called the Act).
Appellants 2 and 3 are the sons of the first appellant, and the 4th appellant, since deceased, was his nephew.
189 On receiving information, that opium was being smuggled and secretly kept, in the house of the appellants, the Sub Inspector of Police, Station Malharganj, Indore, with a police party, raided their house, on September 19, 1960, and recovered a fairly large quantity of opium, of about 2 maunds, 14 seers and 14 chhatacks.
The appellants were arrested, and charge sheeted, for having committed offences, under section 120B, IPC., and section 9(a), of the Act.
They pleaded not guilty.
Their defence was that each of them was living separately, and they were not also in the house, when the opium was stated to have been recovered.
The deceased.
4th appellant, raised a plea that one Altaf had come, in the morning of September 19, 1960, at about 9 a.m., and told him that the police were after him, and that he wanted to throw a bundle.
which was, in his possession, in the house of the appellants.
Accordingly, Altaf threw a bundle, in the court yard of the house of the appellants.
The Additional City Magistrate, Indore, accepted the case of the prosecution, and rejected the plea of the appellants.
The trial Magistrate found that the opium was recovered, from the possession of the appellants, who had no permit or licence, for its possession or transportation, and he also found that the appellants, along with others, had conspired to possess the said opium.
On these findings, each of the appellants, was convicted, under sections 120B, IPC., and section 9(a), of the Act, and sentenced to undergo two years ' rigorous imprisonment, in respect of each of the offences, the sentences, to run concurrently.
The appellants challenged their conviction and sentence, before the First Additional Sessions Judge, Indore, in Criminal Appeal No. 118 of 1963.
The learned Sessions Judge, agreeing with the conclusions, arrived at by the trial Court, dismissed the appeal.
The appellants, again, moved the High Court of Madhya Pradesh, in Criminal Revision No. 131 of 1964, to set aside their conviction; but the High Court also, by its order, dated December 23, 1965, which is under attack, dismissed the revision.
On behalf of the appellants, Mr. C. L. Sarin, learned counsel raised three contentions : (1) that there is no evidence of any conspiracy, to attract section 120B, IPC; (2) neither the High Court, nor the two Subordinate Courts, have considered the vital question, viz., whether the evidence establishes that the four appellants were in conscious possession of the opium, recovered from the house; and (3) the trial, which was held, under section 251A, of the Code of Criminal Procedure, was vitiated, as it should have been properly held, only under section 252, Cr.
So far as the first two contentions are concerned, in our opinion, it is really an attack, on the concurrent findings, recorded 190 by the Magistrate, and, on appeal, by the Sessions Judge, and which have been accepted, 'by the High Court, in revision.
The Magistrate, as well as the learned Sessions Judge, have posed, one of the questions for consideration, as to whether the appellants can be considered to have been in conscious possession of the, opium, recovered from the house.
It is, in considering this question, that the plea of the appellants, that each of them was living separately in the house and that they were not present, at the time of tile recovery, and that it was.
possible, for some outsider, to have thrown the opium recovered, into the court yard of the house, have all been considered, in detail, and findings recorded.
against the appellants.
The chance of any outsider, having thrown this article in the court yard of the appellants ' house, has been eliminated.
The courtyard has been found to be a place where various domestic articles were kept, and has also been found to be a place, in frequent use, by the appellants.
Their presence, at the time of the recovery, has also been held to be ,established.
In view of all these, and other circumstances, to which it is unnecessary for us to refer, the finding has been recorded that the opium, found in the court yard of the house of the appellants, was in their conscious possession and that the appellants, along with others, had also conspired together, to obtain, deal in, and possession .
The further finding is that the presence of such a large quantity of opium could not ,have been possible, without each of them, taking the other, into confidence. 'These findings have been accepted, by the High Court, and we :are satisfied that there is no legal error, or infirmity, committed by any of the Courts, in arriving at that conclusion.
Therefore.
the two contentions, noted above, will have to be rejected.
That leaves us, for consideration, the third contention, noted above, that the trial, in this case ought to have been held, under, s.252, Cr.
P.C., and it is vitiated, as it has been held, under section 251A. Mr. Sarin, learned counsel for the appellants, urged that the officers, who are to investigate offences, and grant bail.
to persons arrested under the Opium Act, as well as the procedure, for trial, in respect of offences, under the Act, and other incidental matters, connected therewith, have been laid down in sections 20 to 20 1, introduced in the Act, by the Opium (Madhya Pradesh) Amendment Act, 1955 (M.P. Act XV of 1955).
Counsel urged that the officer, empowered to investigate ,offences, under section 20, be he an officer of the Department of Excise.
or a police officer, must be considered to be an excise officer; and though the report, made by such an officer, is treated, under section 20G, of the Act, as applied to Madhya Pradesh, as a report.
made by a police officer, under s.190 (1) (b), Cr.
P.C., it cannot be held to be a police report, within the meaning of section 251A, and hence, the trial should have been held, in this case, not under s.251 A, but under section 252, Cr.
P.C. Counsel referred us to the 191 decision, of the Madhya Pradesh High Court in Sardar Khan Multan Khan vs State(1), in this connection.
Counsel further stated that this question, regarding the illegality, of the trial held under section 251A, was raised, in the present proceedings, when the appellants had filed in the High Court, a criminal revision, challenging their conviction, by the two Subordinate Courts.
This question, was referred, by a learned Single Judge by his order dated August 3, 1965, to a Full Bench, for consideration.
The Full Bench, in its decision, reported as Ashiq Miyan vs State(2) has overruled the earlier decision, in Sardar Khan 's case(1).
The learned Judges, of the Full Bench, have rejected the contention of the appellants, that their trial was vitiated, by the fact that the procedure, prescribed by section 251A, Cr.
P.C., has been adopted.
The Full Bench has further held that section 251A, Cr.P.C., is attracted to a case, instituted under the Opium Act, on a report made by a police officer, and that it logically follows that the trial, of an accused, under the Opium Act, instituted on a report, made by an excise officer, would also be governed, by section 251A.
According to the appellants, this decision of the Full Bench, is erroneous.
and counsel wants the earlier decision of the Madhya Pradesh High Court, in Sardar Khan 's case(1), to be restored.
Mr. 1.
N. Shroff, learned counsel for the State_ pointed out ,that the case against the appellants was investigated, in accordance, with the provisions, contained in the Opium Act and was initiated, on a report, made by a police officer.
These facts have been noted, by the learned Judges of the Full Bench, and it is, on that basis, that ultimately, after a reference to the decision of this Court, in Amalshah vs The State of Madhya Pradesh(3), that the Full Bench has held that the trial is not vitiated.
It is not really necessary, for us, to consider the larger question, as to whether, when an excise officer makes a report, under section 20 G, of the Act, whether the trial, following it, in such a case, would be governed by section 251A.
In fact, the Full Bench has gone further, and expressed an opinion, on this point also, that even in such a case, the trial would be governed, by section 251A,Cr.
P.C. We express no opinion, on that aspect of the matter.
We will confine our decision, to the present case, on the basis that the crime was investigated, in accordance with the provisions, con tained in the Opium Act and the case was initiated against the appellants, on a report, made by a police officer.
The, first information report, Exhibit P 20, shows that the search of the appellants ' house was conducted, by the Sub Inspector of Police, Malharganj Police Station, and the recovery of opium, as well as the arrest of the appellants, were made, by the (1) A.I.R. 1963 M.P. 337.
(2) A.I.R. 1966 M.P. 1 (F.B.).
(3) Unreported decision, in Crl.
A. 201 of 1963, decided on II 1 2 1964.
192 said officer.
Investigation was also done, by him.
Ultimately, the report, which is styled as a 'complaint ', and dated October 23, 1960, was made and signed by Tehsildar Singh, Sub Inspector of Police, Malharganj Police Station, as the Investigating Officer.
It is on the basis of that report, that the Magistrate, in this case, conducted the trial of the appellants.
We have already referred to the Full Bench decision, of the Madhya Pradesh High Court, wherein these facts have been stated.
No doubt, counsel for the appellants has urged that, even under those circumstances, a trial, for an offence under the Opium Act, cannot 'be held, under section 251 A.
We are not inclined to accept, this contention of the, learned counsel.
More or less, a similar question arose, before the Constitution Bench of this Court, in Amalsh 's Case(1).
Similar contentions were also urged, and reliance was placed, on section 20 G, of the Act, as applied to Madhya Pradesh.
This Court, after referring to the material provisions of section 20 G, by its judgment, dated December 11, 1964, declined to express an opinion on the larger question, that the report, made by an excise officer, cannot be held to be a police report, so as to attract section 251 A, of the Code of Criminal Procedure.
In that decision, this Court actually found that the proceedings, against the appellant before them, commenced on the report, of a police officer, and not on the report, of an excise officer, and that the complaint, lodged before the Magistrate, had been signed by the police officer, who investigated the offence.
On these findings, this Court held that, inasmuch as the proceedings commenced, on a report made by a police officer, section 251 A, Cr.
P.C., in terms, would apply, and hence the trial held, under that section, in that case, was perfectly legal.
Therefore, it will be seen, that in respect of a trial, conducted by a Magistrate, on a report made by a police officer, under the Opium Act, as applicable to the State of Madhya Pradesh, for an offence under that Act, this Court held that section 251 A, Cr.P.C., applied.
In the case before us, on the facts, it is clear that the investigation was done by a police officer, the seizure of the articles and the arrest, of the accused, were effected, by a police officer, and the complaint or report, dated October 23, 1960, to the Magistrate, was made, by the Police Officer.
It is, on this report of the police officer, that the Magistrate acted further, and the trial also followed.
Under those circumstances, it is clear that section 251 A. Cr.
P.C., directly applies, and it was, in accordance with the procedure, indicated in that section, that the trial was held.
It follows, that there is no illegality, in the trial.
The result is that this appeal fails, and is dismissed.
Y.P. Appeal dismissed.
(1) Unreported decision in Crl.
A. 201 of 1963 decided on 11 12 1964.

summary:
On receiving information, that opium was being smuggled and secretly kept in the house of the appellants, the Sub Inspector of Police with a police party raided their house, and recovered large quantity of opium from the courtyard of the house.
The Sub Inspector of Police made the report and the trial followed.
The appellants ' plea that they were living separately and that one A had thrown the bundle, was rejected by the courts below, and they were convicted under section 120B I.P.C. and section 9(a) of the Opium Act.
In the appeal to this Court, the appellants contended that the trial, which was held, under section 251A of the Code of Criminal Procedure, was vitiated, as it should have been properly held only under section 252 Cr.
P.C. HELD : There was no illegality in the trial.
In this case the investigation was done by a police officer.
the seizure ,of the articles and the report to the Magistrate was made by the Police Officer.
It was on this report of the police officer that the Magistrate acted further, and the trial also followed.
In respect of a trial conducted by a Magistrate on a report made by a police officer, under the Opium Act,as applicable to the State of Madhya Pradesh, for an offence under that Act, section 251A Cr.
P.C. is applicable.
[192 F H] Amalshah vs State of Madhya Pradesh, unreported decision, in Cr.
A. No. 201/63, dt.
11 12 64, followed.


judgement:
Appeal No. 2460 of 1966.
Appeal by special leave from the judgment and order dated November 9, 1960 of the Allahabad High Court in Second Appeal No. 2074 of 1944.
J. P. Goyal and Sobhag Mal Jain, for the appellants.
Yogeshwar Prasad and M. V. Goswami, for the respondent.
The Judgment of the Court was delivered by Wanchoo, C. J.
The main question raised in this appeal by special leave is whether Parjoti land (i.e. a permanent lease hold interest) in the city of Benaras can be preempted.
The respondent brought a suit for pre emption of the land in dispute, which was sold under a sale deed dated February 6, 1942.
The case of the respondent was that he was owner of a house and land to the south of the property sold.
He based his claim to pre emption as a shafi i jar (i.e. pre emptor by right of vicinage) and also as a shafi i khalit (i.e. pre emptor by right of appendages).
His case was that there was such a custom of pre emption prevailing in the whole of the city of Benaras and therefore he was entitled to pre empt the property sold which was a khandar (i.e. a house in ruins).
The plaint made the ususal allegation that the necessary talabs had been performed and the respondent was entitled to pre empt the sale.
The suit was resisted by the vendee, whose legal representa tive is the appellant before this Court.
The vendee denied that there was any custom of pre emption in the city of Benaras, and particularly, in the mohalla in which the property in dispute was situate.
It was further alleged that even if the existence of custom of pre emption was proved, it could not be applied to parjoti land (i.e. lease hold land).
It was also denied that the respondent was either Shafi i jar or shafi i khalit.
It was further pleaded that as the vendors and the vendee lived in Calcutta, they were not 556 governed by the custom of pre emption, if any, prevalent in the city of Benaras.
The performance of talabs was also disputed.
The trial court framed four issues, namely, (i) whether the respondent had a right to sue, (ii) whether the custom of pre emption prevailed in Mohalla Baradeo, in the city of Benaras, (iii) whether the vendors and the vendee, as residents of Calcutta, were governed by the custom of pre emption, and (iv) whether the talabs had been performed.
The trial court held that the necessary talabs had been per formed.
It also held that the respondent was the 'owner of the contiguous house and had therefore the right to sue.
On the question of custom, the trial court held that there was a custom of preemption in the locality, which was co extensive with Mahomedan Law of pre emption.
Finally, the trial court held that the vendors and the vendee were not governed by the custom, as they did not live in Benaras.
In this view of the matter, the suit was dismissed with costs.
The respondent then went in appeal, and his contention, in one of the grounds of appeal, was that as the custom of pre emption was held by the trial court to have been proved (and it was co extensive with Mahomedan Law), the custom would bind Hindus also.
It was further contended that the fact that the vendors and the vendee did not live in Benaras made no difference and they would be bound by the custom prevailing in the locality in which the property was situate.
Two main questions thus arose before the first appellate court, namely (i) whether the custom as proved bound Hindus also, and (ii) whether the fact that the vendors and the vendee did not live in Benaras exempted them from being governed by the custom.
On the question of custom, the first appellate court observed that the custom in question had been proved to exist in the locality and was co extensive with Mahomedan Law of pre emption and that this finding had not been challenged before it.
On the second question, the first appellate court held that the fact that the vendors and the vendee did not reside in Benaras made no difference to the application of the custom to them with respect to the property transferred.
The question whether Parjoti lands could be subjected to pre emption was not decided by the trial court, for it dismissed the suit on the ground that the vendors and the vendee not being residents in Benaras, were not bound by the custom.
The first appellate court having found that the vendors and the vendee were so bound went into the question whether lease hold property could be preempted.
It held that the property was heritable and transferable and though the vendors were lessees and paid some groundrent they were for all intents and purposes owners and therefore the land was pre emptible.
It therefore allowed the appeal and granted a decree for 'pre emption.
557 Then followed a second appeal to the High Court by the vendee and two main questions were raised there, namely (i) that the custom of pre emption could not prevail against the vendors and the vendee as they were not residents of Benaras and (ii) that in any case it did not extend to lease hold land or parjoti land.
The High Court held that the custom would bind the vendors and the vendee in this case even though they were not residents of Benaras.
On the question whether the custom prevalent applied to parjoti land or not.
the High Court seems to have read the judgments of the two lower courts as holding that the custom of pre emption even in the case of transfer of parjoti land had been proved.
The High Court therefore dismissed the appeal.
The vendee 's heir then obtained special leave from this Court; and that is how the matter has come before us.
A number of questions has been raised on behalf of the appellant, but it is unnecessary to go into all of them.
The main point that has been urged on his behalf is that the High Court had misread the judgments of the two courts below when it held that they had found that the custom of pre emption existed even with respect to transfer of parjoti land in the city of Benaras.
It is argued that all that the two lower courts have held is that the custom of pre emption co extensive with Mahomedan Law existed in the city of Benaras, and the first appellate court had further held that such a custom bound even Hindus, whether they were residents in Benaras or not.
We are of opinion that this contention is well founded.
We have already referred to the findings of the two lower courts.
The finding of the trial court is clear and is expressed in these words: "I hold that there is a custom of pre emption co extensive with Mahomedan Law.
" The first appellate court endorsed this finding in these words "The trial court found that the custom in question existed in the locality and was co extensive with Mahomedan Law of pre emption and the finding is not challenged in appeal.
" Further in the grounds of appeal by the respondent, one of the grounds was in these terms: "Because when the lower court has held that the custom of pre emption as obtaining in Benaras is co extensive with Mahomedan Law which embraces the zimmees the lower court has erred in holding that the plaintiff could not enforce his right of pre emption against the defendants.
" It is thus clear that all that was found by the two Iower courts was that there was a custom of pre emption prevailing in the city of Benaras which was co extensive with Mohomed Law and 558 which bound Hindus also whether they were residents there or not, so long as the property to be preempted was in the city of Benaras.
It is true that the first appellate court held that the custom applied to lease hold land also because it was of opinion that the ' holder of parjoti land was for all intents and purposes the owner.
But that does not mean that the two courts had found that the ,custom as such related to parjoti land.
The custom that was pre vailing was co extensive with Mahomedan Law; whether it applied to parjoti land or not would depend upon the provisions of Mahomedan Law.
The first appellate court which was apparently not unaware of the provisions of Mahomedan Law with respect to pre emption seems to have held that though there was some ground rent payable, the holder of parjoti land was for all intents and purposes the owner.
The High Court was therefore not right in saying that it had been found by the two courts below that the custom of preemption prevailing in the city of Benaras applied even to transfer of parjoti land.
All that the two courts had found was that the ,custom prevailing in the city of Benaras was co extensive with Mahomedan Law.
This immediately raises the question as to what is the extent of Mahomedan Law in the matter of pre emption.
The contention on behalf of the appellant is that Mahomedan Law recognises pre emption only with respect to full proprietary rights and that it does not recognise pre emption with respect to lease hold rights.
We are of opinion that this contention is well founded.
In PrinciPles of Mahomedan Law by D. F. Mulla (15th Edition), the extent ,of pre emption in Mahomedan Law is thus stated at p. 207: "There must be also full ownership in the land preempted, and therefore the right of pre emption does not arise on the sale of a lease hold interest in land.
" This statement of law is supported by a number of decisions to which reference may now be made.
The earliest of these decisions is Baboo Ram Golam Singh vs Nursing Sahoy & others(1).
In that case, mokureree land was sold and the owner wanted to pre empt the sale.
The court held, that the mokurereedar did not stand in the same position as the malik and the law of pre emption only applied to the sale of land of a malik i.e., proprietor.
Therefore there could be no pre emption where the sale was of only mokureree rights which were permanent lease hold rights.
The next case to which reference may be made is Phul Mohammad Khan vs Quazi Kutubuddin(2).
In that case the Patna Court held that Mahomedan Law of pre emption did not (1) (1875) XXV Weekly Reporter (Sutherland) 43.
(2) I.L.R. [1937] 16 Pat.
559 apply to preempting Mukarrari and raivati rights, the sale of such .interests being not of full proprietary interest.
The next case to which reference may be made is Dashrathlal Chhaganlal vs Bai Dhondubai(1).
There also the right of preemption arose by custom and was co extensive with Mahomedan Law.
The property sold in that case was a plot of land with two rooms on it in which the vendors had transferable and heritable rights and some rent was paid to Government on account of the permanent lease on which the land was held.
The High Court held that Mahomedan Law of pre emption with which the custom of pre emption was co extensive applied only as between freeholders, that is to say, the neighbouring land in respect of which the custom was claimed must be freehold and the land, sought to be preempted must also be freehold.
It did not arise on the sale of leasehold interests in land.
The next case to which reference may be made is Rameshwar Lal Marwari vs Pandit Ramdeo Jha(2).
In that case rayati land had been sold and a suit was brought to pre empt that sale.
The Patna High Court held that there could be no pre emption with respect to rayati land which amounted to a leasehold, whatsoever might be the ground on which the pre emption might be sought under Mahomedan Law.
These cases bear out the proposition which has been accepted without dissent by High Courts that Mahomedan Law of pre emption applies only to sales where they are of full ownership and pre emptors must also base their claim on similar full ownership whether pre emption is claimed on ground of co sharership, vicinage or participation in amenities and appendages.
Learned counsel for the respondent relied on Bhagwati Prasad vs Balgobind(3) for the proposition that there could be pre emption of leasehold interest also for that was a case of lease.
Pre emption there was claimed not under Mahomedan Law but under the Oudh Laws Act.
That case therefore does not help the respondent.
The law in our opinion is quite clear and it is that under the Mahomedan Law of pre emption there must be full ownership in the land preempted and therefore the right of pre emption does not arise on the sale of leasehold, interest in land.
It may be added that the pre emptor also must have full ownership in order to maintain a suit for pre emption, for reciprocity is the basis of Mahomedan Law of pre emption.
In this view of the matter, as the custom which was found proved was co extensive with Mahomedan Law there can be no pre emption of the land which had been sold by the impugned sale deed because the land was parjoti land i.e. leasehold.
We may in this connection refer to Oudh Behari Singh vs Gajadhar (1) I.L.R. (3) A.I.R. 1933 Oudh 161.
(2) A.I.R. 1957 Pat.
560 Jaipuriya(1).
That was also a case of pre emption relating to this very mohalla in the city of Benaras, and the land Pre empted was parjoti land ie.
leasehold It was held by the Allahabad High Court that the sale of parjoti land corresponding to lessee 's right could not be a subject of pre emption.
The learned Judges pointed out in that case that no case had been brought to their notice in which lessee 's rights were held pre emptible under Mahomedan Law.
As the property sold was leasehold land it was not open to the respondent to pre empt it under a custom which was co extensive with Mahomedan Law whatever might be the ground on which pre emption was claimed.
We therefore allow the appeal, set aside the decree of the High Court and of the first appellate court and dismiss the suit.
The appellant will get his costs throughout from the respondent, Bishwanath Prasad.
R.K.P,S. Appeal allowed.
(1) A.I.R. 1955 All.

summary:
The respondent brought a suit for pre emption of certain leasehold (Parjoti) land in Benaras which was sold under a sale deed in February, 1942.
He claimed that there was a custom pre emption in the whole of the city of Benaras, that he was the owner of a house and land adjacent to the property sold, that he was entitled to preempt as a shaft i jar (pre emptor by right of vicinage) and also as a shafi i khalit (pre emptor by right of appendages), and that the necessary talabs had been performed.
The Trial Court held that there was a custom of pre emption in the locality which was co extensive with Mahomedan Law of preemption, that the respondent was the owner of a contiguous house and therefore entitled to sue, and had performed the necessary talabs but that the vendors and the vendee were not governed by the custom as they did not live in Benaras.
The first appellate court in appeal took the view that the fact that the vendors and the vendee did not reside, in Benaras made no difference to the application of the custom to them; it also examined the question whether lease ' hold property could be preempted and held that though the vendors were lessees and paid some ground rent, they were for all intents and purposes owners and therefore the land was pre emptible.
It therefore allowed the appeal and granted a decree for pre emption.
In second appeal the High Court confirmed the view that the custom would bind the vendors and the vendee even though they did not reside in Benaras and further held that the custom of preemption even in the case of transfer of parjoti land had been proved.
It therefore dismissed the appeal.
In the appeal to this Court it was contended inter alia (i) that the High Court had mis read the judgment of the Courts below when it held that they had found the custom of pre emption existed even with respect to transfer of parjoti land in the city of Benaras and (ii) that Mabomedan Law recognises pre emption only with respect to full proprietary rights and does not recognise pre emption with respect to lease hold rights: as the custom in Benaras which was found proved was co extensive with Mahomedan Law, there could be no pre emption of the land which had been sold by the impugned sale deed because the land was parjoti land.
HELD: As the property sold was lease hold land, it was not open to the respondent to pre empt it under a custom which was coextensive with Mahomedan Law whatever might be the ground on which pre emption was claimed.
[560 B C] (i) The High Court was not right in saying that it had been found by the courts below that the custom of pre emption prevailing in the city of Benaras applied even to transfer of parjoti land.
All 555 that the two courts had found was that the custom prevailing in the city of Benaras was co extensive with Mahomedan Law.
[558C D] (ii) It is well established that under the Mahomedan Law of pre emption there must be full ownership in the land preempted and therefore the right of pre emption does not arise on the sale of leasehold interest in land.
Furthermore, the pre emptor also must have full ownership in order to maintain a suit for pre emption, for reciprocity is the basis of Mahomedan Law of pre emption, [559G] Baboo Ram Golam Singh vs Nursing Sahoy & others, (1875) XXV Weekly Reporter (Sutherland) 43; Phul Mohammad Khan vs Quazi Kutubuddin, I.L.R. [1937] 16 Pat.
519; Dashrathlal Chhaganlal vs Bai Dhondubai, I.L.R. [1941] Bombay 460; Rameshwar Lal Marwari vs Pandit Ramdeo, A.I.R. 1957.Patna, 695, and Oudh Behari Singh vs Gajadhar Jaipuriya, A.I.R. 1955 All. 698; referred to.
Bhagwati Prasad vs Balgobind, A.I.R. 1933 Oudh 161; distinguished.


judgement:
Appeals Nos. 984 and 985 of 1965.
Appeals by special leave from the judgment and decree dated April 28, 1961 of the Madhya Pradesh High Court in Second Appeals Nos. 176 and 177 of 1969.
H. R. Gokhale, section T. Khirwadkar and I. N. Shroff, for the appellants.
R. section Dabir, O. P. Malhotra, P. C. Bhartari and J. B. Dadachanji for the respondent.
The Judgment of the Court was delivered by Bhargava, J.
The appellants brought a suit against the res pondent for possession of a plot Kharsa No. 1227 having an area of 58.35 acres of Monza Shahpur, Tehsil Burhanpur in November, 1950 on the ground that they had been unlawfully dispossessed from this land.
This land formed part of the property of one Laxmanrao who had two sons Vishwasrao and Krishnarao.
Krishnarao had two sons Dinkerrao and Shamrao.
Shamrao was adopted by Vishwasrao in the year 1895.
The rights in certain village properties, including 'Sir ' lands, vested in this joint family consisting of Vishwasrao, his adopted son Shamrao, and 272 his nephew Dinkerrao.
The three of them jointly executed two mortgage deeds in that year, and, in the mortgage deeds, mentioned that they were mortgaging the property which was described as 'Malguzari Mouzas and Sir land of Tehsil Burhanpur District Nimar ', and 'Maufi Government land ' situate in certain villages in Pargana Jainabad, Tehsil Burhanpur.
The mortgages were in favour of the predecessors in title of the appellants.
In the year 1928, there was a partition in the joint Hindu family of the mortgagors.
By this time, Dinkerrao had died leaving two sons Ramchandrarao and Wamanrao.
Vishwasrao and Shamrao had also died and Shamrao left an adopted son Shankerrao alias Narayanrao, who was the natural son of Dinkerrao, but had been adopted by Shamrao.
The parties to the partition were, therefore, Shankerrao, the adopted son of Shamrao Ramachandrarao and Wamanrao the sons of Dinkerrao.
Shankerrao received 1 share in the property, while Ramachandrarao and Wamanrao received 1/4 share each.
In that partition Wamanrao separated from Shankerrao and Ramachandrarao who continued to be joint, and, with the consent of the mortgagee, the mortgage liability was not continued against the share of Wamanrao.
The liability under the mortgages was undertaken entirely by Shankerrao and Ramachandrarao.
On this partition, in the property remaining joint with Shankerrao and Ramachandrarao, Shankerrao had 2/3rd share.and Ramachandrarao had 1/3rd share, because, originally, before partition Shankerrao was entitled to 1/2 share and Wamanrao to 1 share.
In the year 1939, the proprietary rights of Shankerrao were purchased by one Vinayakrao, so that, under the law then existing, Shankerrao became the ex proprietary occupancy tenant of his share in the 'Sir ' plot No. 1227.
In 1940, 'Ramachandrarao was declared insolvent and his share in the proprietary rights, which vested in the Insolvency Court, was sold and purchased by the mortgagee.
The result was that Ramachandrarao also became ex proprietary occupancy tenant of his 'sir ' plot No. 1227, so that this plot became a co tenancy of Shankerrao and Ramachandrarao in the capacity of ex proprietary occupancy tenants.
Thereafter, there was some dispute about the amount and the right of redemption under the mortgage between Shankerrao and the mortgagee, and this dispute was referred to an arbitrator, Sri Vipat.
who gave his award, on the basis of which a decree was passed by the Court of Additional District Judge, Khandwa.
In pursuance of that decree, Shankerrao 's 2/3rd share, including his rights in the 'sir ' plot No. 1227, was purchased by the mortagee.
In 1940, Ramachandrarao had died and his ex proprietary occupancy rights in that plot No. 1227 had vested in his widow, Sitabai, the respondent in these appeals.
In 1942,when she was dispossessed from this plot No. 1227 in pursuance of the mortgage 273 decree passed in terms of the award, she filed an application to the Revenue Court under sections 12 and 13 of the Central Provinces Tenancy Act 1 of 1920 (hereinafter referred to as "the Act") for restoration of possession of her occupancy rights in this plot No. 1227.
The Revenue Court allowed her claim and restored her to the possession of this plot.
Thereupon, the appellants filed the suit claiming possession of this plot as mentioned above.
The suit was partially decreed by the trial Court granting to the appellants the right to joint possession with Sitabai on the basis that they had 1/3rd share in the plot, while Sitabai continued to be entitled to the remaining 2/3rd share.
Both parties filed appeals to the Court of the District Judge, Khandwa.
The lower appellate Court dismissed the appeal of the appellants in respect of the 2/3rd share in this plot No. 1227, and allowed the respondent 's appeal in respect of the 1/3rd share of the same plot, with the result that the whole suit of the appellants stood dismissed.
The appellants then filed two appeals before 'the High Court of Madhya Pradesh.
The High Court dismissed both the appeals and consequently, the appellants have now come up to this Court against that judgment of the High Court in this appeal by special leave.
The High Court in its judgment held that the finding of fact recorded by the lower appellate court that the mortgagees in the year 1895 did not get possession over cultivatory rights in this plot was decisive of the claim put forward in this case on behalf of the appellants.
The Court was of the view that, not having obtained possession over the cultivatory rights, the appellants were not entitled to claim actual possession from the mortgagors, who had become occupancy tenants of this plot.
We consider that this decision arrived at by the High Court is perfectly correct.
It is true that the two mortgages of the year 1895 were both usufructuary mortgages and they included mortgage of the 'sir ' land.
There was, however, no express mention in those mortgages that the mortgage was to operate in respect of the cultivatory rights also in this 'sir ' land.
The mere mention of the 'sir ' land as part of the property mortgaged can only be interpreted as laying down that the proprietary rights in the 'sir ' land were the subject of the mortgages, so that the cultivatory rights continued to remain with the mortgagors.
This circumstance is further borne out by the finding of fact recorded that, even after the execution of the usufructuary mortgages in 1895, the mortgagors continued to cultivate this land and actual possession over this land for purposes of cultivating it was not obtained by the mort gagee.
In these circumstances, it is clear that the mortgagors must have become ex proprietary occupancy tenants of this land in the year 1895.
274 Learned counsel appearing on behalf of the appellants put before us one provision of the C.P. and Berar Tenancy Act of 1883, which was then in force, to show that the rights of ex proprietary tenant could only accrue if the proprietary rights in 'sir ' land were transferred by sale and not if they were transferred by usufructuary mortgage.
The whole of that Act was not placed before us and, consequently we have been handicapped in our effort to determine what rights accrued to the mortgagors when the usufructuary mortgages were executed by them, but possession over cultivatory rights in the 'sir ' land was retained.
In the cir cumstances, we considered it advisable to examine the position on the basis of both alternatives.
One alternative is that they became ex proprietary occupancy tenants when the usufructuary mortgages were executed.
The other alternative is that the rights of ex proprietary tenants did not accrue, but they did become tenants of the mortgagees in whom the proprietary rights vested because of the usufructuary mortgages.
Even if the mortgagors became ordinary tenants in 1895 it is clear that, by the time the Act came into force in the year 1920, they must have become occupancy tenants as defined in section 10 of the Act.
Section 10 lays down that "Every tenant who is not an absolute occupancy tenant or a sub tenant is an occupancy tenant.
" Clearly, the mortgagors were not sub tenants nor is it the case of any party that they were absolute occupancy tenants of this plot No. 1227.
Consequently, they must be held to be occupancy tenants of this plot under the Act.
Long before the year 1939, therefore, the mortgagors must be held to have become occupancy tenants of this land or ex proprietary occupancy tenants of it.
The claim of the appellants that they acquired rights to possession of this land on the basis of the mortgages of 1895, in these circumstances, must fail.
The alternative claim put forward on behalf of the appellants was that, under the decree passed on the basis of the award, and in the proceedings for insolvency of Ramachandrarao, the rights in this land were acquired by the mortgagees through the proceedings taken by the courts.
The claim was that the rights of Shankerrao passed to the mortgagees when the mortgagees purchased his rights in execution of the decree in Civil Suit No. 12 A of 1942 of the Court of Additional District Judge, Khandwa passed on the basis of the award given by Sri Vipat, while the remaining 1/3rd share of Ramachandrarao also passed to them when his rights were transferred by the Insolvency Court.
This claim, clearly, fails in view of the provisions of section 12 or section 49 of the Act as they stood at the relevant time.
Section 49 deals with the right of transfer of lands cultivated by an ex proprietary occupancy tenant, while section 12 deals with the right of transfer of lands cultivated by an occupancy tenant.
We need not go into 275 the question whether the expression "occupancy tenant" in section 12 does or does not include an ex proprietary occupancy tenant.
If it be held that the mortgagees had become ex proprietary occupancy tenants of the land in 1895 as a result of the execution of usufructuary mortgages, the provisions of section 49 would apply.
As a result of those provisions, the rights of the ex proprietary occupancy tenant could not have been transferred in favour of the mortgagees.
Section 50, as it was at that time, did permit transfer of certain rights of an ex proprietary occupancy tenant; but, to be valid, such transfers required permission of the appropriate revenue authority.
In this case, there is no suggestion that, when transfers were obtained by the mortgagees in pursuance of the decree in Suit No. 12 A of 1942 and in pursuance of the insolvency proceedings against Ramachandrarao, the transfers purported to be effected were made with the permission of the appropriate authority.
Consequently, under section 49, those transfers would be void.
Taking the case of the second alternative that the mortgagors did not become ex proprietary occupancy tenants in 1895 and were occupancy tenants simpliciter when the Act came into force, the transfers in favour of the mortgagees under the decree in Civil Suit No. 12 A of 1942 and in the insolvency proceedings would be in contravention of section 12 of the Act.
It appears that the revenue authorities, in restoring possession to Sitabai on her application purporting to be under section 13 of the Act, proceeded on the basis of this second alternative that the rights of the mortgagors were governed by section 12 of the Act.
We are unable to hold that, in this proceeding, the revenue authorities committed any error.
Section 12 barred the transfer of the cultivatory rights of an occupancy tenant in execution of the decree of a civil court or in insolvency proceedings.
In fact, such rights did not vest in the Insolvency Court at all under the Provincial Insolvency Act.
Consequently, the mortgagees could not acquire title to cultivatory right by virtue of the proceedings taken in execution of the decree in civil suit or in the insolvency proceedings.
The right continued to vest in the mortgagors and the respondent, who was entitled as the sole survivor to those rights, was rightly restored to possession by the revenue authorities.
The decision of the revenue authorities was challenged on one other ground viz., that the jurisdiction to grant relief under section 13 of the Act is confined to cases where one of the co tenants claims possession on being illegally dispossessed and not in a case where the sole tenant has been dispossessed.
It appears to us that this is immaterial, because relief from the same revenue authority could be claimed by a sole tenant by an application under section 100 of the Act.
The application filed by Sitabai for restoration of possession could, therefore, be treated as an appli 276 cation under section 100 of the Act in case she was the sole tenant, and the grant of relief to her was not without jurisdiction.
In these circumstances, it is clear that the appellants are not entitled to claim possession in this suit.
The appeals fail and are dismissed with costs.
One hearing fee.
Y.P. Appeals dismissed.

summary:
The predecessors in interest of the respondent executed usufrutory mortgage deeds in 1898 in favour of the predecessors in interest of the appellants in respect of certain 'sir ' land.
In 1940 one of the mortgagors, R, the husband of respondent, was declared insolvent and his share in the proprietary rights which vested in the Insolvency Court was purchased by the mortgagee.
Some disputes arose about the amount and the right of redemption under the mortgage between the mortgagee and the other mortgagor S, the matter was referred to arbitration.
In pursuance of the decree in this award, the mortgagee purchased the share of 'S ' including his rights in 'sir '.
R died, and when his widow the Respondent was dispossessed from the land in pursuance of the mortgage decree passed in terms of the award, she filed an application to the Revenue Court under section 12 and section 13 of the Central Provinces Tenancy Act for restoration of possession of her occupancy rights in the land, which was allowed.
Thereupon the appellants filed the suit claiming possession, which was partly allowed.
Both the parties appealed and in appeals the suit was dismissed, which in further appeals, was upheld by the High Court.
HELD : The appellants were not entitled to claim possession in this suit.
The mere mention of the 'sir ' land as part of the property mortgaged can only be interpreted as laying down that the proprietary rights in the 'sir ' land were subject of the mortgages, so the cultivator rights continued to remain with the mortgagors.
The circumstance was further borne out by the fact that even after execution of the usufructuary mortgages in 1895, the mortgagors continued to cultivate this land and actual possession over this land for the purposes of cultivating it was not obtained by the mortgagee.
In the circumstances, it was clear that the mortgagors must have become ex proprietary occupancy tenants of this land in the year 1895.
[273 G. H] Even if the mortgagors become ordinary tenants in 1895, it was clear that by the time the Act came into force in the year 1920, they must have become occupancy tenants as defined in section 10 of the Act.
So the claim of the appellants that they acquired rights to possession of this land on the basis of the mortgages in 1895, in these circumstances, must fail.
[274 D] The appellants ' claim that the rights of S passed to them when they purchased his rights in execution of the decree under the award and that the share of R passed to them when his rights were transferred by the insolvency Court, fails in view of the provisions of section 12 or section 49 of the 271 Act, as they then stood.
As a result of these provisions, the rights of the ex proprietory occupancy tenant could not have been transferred in favour of the mortgagees.
Section 50, as it was at that time, did permit transfer of certain rights of an ex proprietory occupancy tenant; but, to be valid such transfers required permission of the appropriate revenue authority.
In this case, there is no suggestion that, when transfers were obtained by the mortgagees in pursuance of the decree in the award and in pursuance of the insolvency proceedings against R, the transfers purported to.
be affected were made with the permission of the appropriate authority.
Consequently under section 49 those transfers would be void.
[274 H 275 C] Section 12 barred the transfer of cultivatory rights of an occupancy tenant in execution of the decree of a civil court or in insolvency proceedings.
In fact, such rights did not vest in the Insolvency Court at all under the Provincial Insolvency Act.
Consequently, the mortgagees could not acquire title to cultivatory right by virtue of the proceedings, taken in execution of the decree in civil suit or in the insolvency proceedings.
The right continued to vest in the mortgagors and the Respondent, who was entitled as the 'sole survivor to those rights, was rightly restored to possession by the revenue authorities.
[275 E G] The challenge, to the decision of the revenue authorities on the ground that its jurisdiction to grant relief under section 13 of the Act is confined to cases where one of the covenants claims possession on being illegally dispossessed and not in a case where the sole tenant has been dispossessed, was immaterial, because relief from the same revenue authority could be claimed by a sole tenant by an application under section 100 of the Act.
The application filed by the respondent could, therefore, be treated as an application under section 100 of the Act in case she was the sole tenant, and the grant of relief to her was not without jurisdiction.
[275 H]