judgement:
Civil Appeal No. 34 of 1954.
Appeal from the judgment and decree dated July 2, 1951, of the Punjab High Court in Regular First Appeal No. 269 of 1945.
N. section Bindra, and Harbans Singh, for the appellant.
Gopal Singh, for the respondents.
November 3.
The Judgment of the Court was delivered by WANCHOO, J.
The suit out of which the present appeal arises has had a chequered history.
It was filed as far back as June 1943, the plaintiff being section Balwant Singh (hereinafter referred to as the respondent).
The main defendants were Kesar Singh and Jaswant Singh, of whom Kesar Singh will be referred to as the appellant hereinafter.
The suit was with respect to a house known as bunga Maharaja Sher Singh which is situate outside the tank around Sri Harmandir Saheb (hereinafter referred to as the Golden Temple) in Amritsar.
The case of the respondent was that he and his uncle who was made a defendant to the suit were managers of this bunga which was wakf property and that they and their ancestors had been in possession of it throughout.
There were proceedings before the Sikh Gurdwaras Tribunal established under the Sikh Gurdwaras Act, No. VIII of 1925, (hereinafter referred to as the Act) in 1933 with respect to this bunga.
The proceedings arose because a claim was put forward that the bunga was the property of the Golden Temple.
In those proceedings the appellant and the other defendant claimed the bunga.
The respondent also made a 327 claim to the bunga.
The proceedings were all consolidated and it was decided that the bunga was not the property of the Golden Temple; the claims of the appellant and the other defendant were also dismissed and the Tribunal held that the respondent and his uncle had the right to manage and supervise the bunga and were its managers.
There were appeals to the High court from that decision by the appellant and the other defendant which were dismissed with the result that the status of the respondent and his uncle as determined by the Tribunal was upheld.
Thereafter the respondent along with his uncle filed a declaratory suit against the appellant and the other defendant.
In that suit they were ordered to file a suit for possession.
Consequently the present suit was filed for possession and ejectment of the appellant and the other defendant.
The case for ejectment was based on the ground that the appellant and the other defendant were in possession of the bunga without any right.
They had been asked to deliver possession to the respondent but refused to do so and continued to treat the bunga, which was wakf property as their personal property.
The respondent therefore did not desire to keep the appellant and the other defendant as servitors to look after the bunga as they were claiming rights adverse to the wakf and consequently prayed for their ejectment and delivery of possession of the bunga to him and his uncle.
The suit was resisted by the appellant and the other defendant and it was contended that the respondent was not a descendant of Maharaja Sher Singh and was therefore not entitled to the management of the bunga.
It was denied that the bunga was wakf property.
It was also denied that the respondent and his uncle had ever anything to do with the bunga or were ever in possession of it as 328 managers.
It was further alleged that any decision of the tribunal against the appellant had no effect as the tribunal had no jurisdiction to give an decision and in any case the tribunal had given no decision in favour of the respondent and his uncle.
Further even if any decision was given in favour of the respondent and his uncle by the tribunal, it was not binding on the appellant as he was no party to those proceedings.
It was also claimed that the appellant was the owner of the bunga and in any case even if the bunga was wakf property the appellant was its hereditary manager and was entitled to its possession and could not be ejected by the respondent.
Finally, adverse possession was claimed against the respondent who was alleged to have never been in possession within 12 years before the suit was filed and in any case as the respondent 's application under section 25A of the Act had been dismissed in July 1935 he had no right to file a suit for possession thereafter.
On these pleadings, eight issues were framed by the trial court, which are as below: 1.
Whether the bunga in dispute is a wakf property founded by Maharaja Sher Singh, or any descendant of Maharaja Sher Singh? 2.
Is the plaintiff a descendant of Maharaja Sher Singh, and is therefore entitled to get possession of the bunga in dispute as a manager? 3.
Is the plaintiff entitled to bring this suit alone? 4.
Is the suit within time? 5.
Is the suit barred under section 92 Civil Procedure Code? 6.
Are the defendants debarred from denying the plaintiff 's title in view of the judgments.
329 of the Lahore High Court and the decision of the Sikh Gurdwaras Tribunal? 7.
Has the plaintiff relinquished his right and what is its effect? 8.
Relief? In the trial court, the parties agreed that the decision might be given only on issues 3 to 7 and issues Nos. 1 and " might be left undecided.
Consequently, the trial court Proceeded to decide issues 3 to 7 only.
It held on issue No. 3 that the respondent was entitled to bring the suit alone.
On issue No. 4, the trial court held that the suit was barred by time.
Issue No. 5 was not pressed and was therefore decided against the appellant.
On issue No. 6 the trial court was of the view that it was not necessary to give any finding on it in view of the finding on the question of limitation; even so it held that the defendants were debarred from denying the plaintiff 's title in view of the judgment of the Lahore High Court and the decision of the Tribunal.
On issue No. 7 it held that in view of the decision of the tribunal and judgment of the High Court it could not be said that the respondent had relinquished his rights.
In the result, the suit was dismissed on the ground of limitation.
The respondent then went in appeal to the Punjab High Court.
The High Court held on the question of limitation that the suit was not barred by time.
It then referred to the decision of the tribunal which had held that the bunga was wakf property founded by Maharaja Sher Singh and held that this decision of the tribunal was binding and conclusive.
It was of the view that the question whether the respondent was the descendant of Maharaja Sher Singh and therefore entitled to obtain possession of the bunga which was the subject matter of issue No. 2 should have been decided.
It therefore accepted the appeal and set aside the order of the trial court on the question of limitation 330 and remanded the case for the decision of issue No. 2 as framed by the trial court and further framed two additional issues and directed the trial court to decide them also.
These additional issues were: 1.
Was Jaswant Singh a bungai or a servitor of the plaintiff and defendant No. 3 or their ancetors? 2.
Can the plaintiff dispossess the defendants on any of the grounds specified in paragraph 4 of the plaint? On remand the trial court held against the respondent on issue No. 2.
Its finding was that it had not been proved that the respondent was the eescendant of Maharaja Sher Singh and therefore entitled to get possession of the bunga in dispute as manager.
On the first additional issue, the trial court found that the appellant and the other defendant were servitors or bungais.
On the second additional issue it was found that a bungai or servitor if he denies the title of the rightful owner on whose behalf he manages the property forfeits his rights to retain the property or to continue as servitor, and as the appellant and the other defendant had set up a title adverse to the respondent, they would be liable to ejectment on the ground specified in para 4 of the plaint, if the respondent is the rightful owner, whether as trustee or otherwise, of the bunga.
On receipt of these findings, the appeal was heard again, this time by another Bench of the High Court, The High Court pointed out that issue No. 6 had not been decided on the earlier occasion and took the view that if issue No. 6 were decided in favour of the respondent it would not be necessary to go into the question whether the respondent was the descendant of Maharaja Sher Singh and therefore entitled to sue for ejectment.
The High Court therefore addressed itself to the decision of 331 issue No. 6 and held that in view of the judgment of the Lahore High Court and the decision of the tribunal, the appellant and the other defendant were debarred from denying the respondent 's title as a descendant of Maharaja Sher Singh.
In that view of the matter it held that the suit must succeed as the question of limitation had been decided against the appellant and the other defendant and it was not open to go into the question whether the respondent was a descendant of Maharaja Sher Singh and therefore entitled to maintain the suit.
The appeal was therefore allowed and the suit was decreed.
The appellant then applied for leave to appeal to this Court, which was granted; and that is how the matter has come up before us.
The appeal came up for hearing before this Court in 1958.
This Court then took the view that it was difficult to decide the appeal satisfactorily without having a finding on the essential issue, namely, whether the plaintiff was a descendant of Maharaja Sher Singh and therefore entitled to get possession of the bunga in dispute as a manager.
This Court therefore directed the High Court to record a finding on issue No. 2 and also on the two additional issues framed by the High Court when the remand was made on an earlier occasion.
The appeal has now come up for hearing again after the findings of the High Court, which are that the respondent has not been proved to be the descendant of Maharaja Sher Singh and that the appellant and the other defendant were in possession of the bunga as bungais or sewadars and that they were liable to ejectment because they had denied the title of the rightful owner on whose behalf they were managing the property.
In effect the High Court confirmed the findings of the trial court on remand.
Before we go into the effect of the findings now submitted by the High Court on the direction of this court, it is in our opinion necessary to decide issue No. 6, for if that issue is decided in favour of 332 the respondent it will not be open to the appellant or the other defendant to question that the respondent was the descendant of Maharaja Sher Singh and consequently had the right to maintain the suit.
That brings us to the consideration of the effect of the decision of the tribunal and the judgment of the Lahore High Court in appeal therefrom, which in its turn requires a consideration of the provisions of the Act.
The Act was passed to provide for the better administration of certain Sikh Gurdwaras and for inquiries into matters and settlement of disputes connected therewith.
Section 3 (1) of the Act provides for forwarding by any Sikh or any present office holder of a Gurdwara, specified in Sch.
I, of a list of all rights, titles or interests in immovable properties situate in Punjab and in all monetary endowments yielding recurring income or profit received in Punjab which he claims to belong, within his knowledge, to the gurdwara along with the name of the person in possession of any such right, title or interest.
On receiving such lists, the State Government has to publish, inter alia, under section 3 (2) a consolidated list in which all rights, titles and interests in such properties as are described in sub s.(1) are included and also to send by registered post a notice of the claim to each of the persons named therein as being in possession of such right, title or interest.
Section 5 (1) then provides that any person may forward to the State Government a petition claiming a right, title or interest in any such property included in such consolidated list within a certain time of its publication.
Sub section (3) then lays down that if no claim is made under section 5 (1) within the time limited thereby, the State Government shall publish a notification declaring that no such claim has been made with respect to the property notified under section 3 (1).
Sections 7 and 10 make similar provisions with respect to gurdwaras which are not included in Sch.
I to the Act; but we 333 are not concerned with them in the present appeal for the Golden Temple is included in Sch.
I and sections 3 and 5 apply to it.
Section 12 then provides for setting up of a tribunal.
Section 14 gives power to the State Government to forward to the tribunal all petitions received by it under the provisions of section 5 and other sections and the tribunal has to dispose of such petitions in accordance with the provisions of the Act.
Section 15 is important and may be read in extenso "(1) In disposing of any matter in which it has jurisdiction a tribunal may order any dispute arising therefrom to be dealt within one proceeding separately or more such disputes than one to be dealt with in one proceeding, and may, by public advertisement or otherwise, enquire if any person desires to be made a party to any proceeding, and may join in any proceeding any person who it considers ought to be made a party thereto.
(2) The tribunal may order any person to submit within a fixed time a statement in writing setting forth the nature of his claim or objection and the grounds thereof.
(3) If any person fails to comply with an order passed under the provisions of subsection (2) and duly notified to him, the tribunal may decide the matter in dispute against him, provided that the tribunal may at any time extend the time fixed by its order for the submission of the statement if the person satisfies it that he had sufficient cause for not submitting the statement within the time fixed.
(4) A tribunal may pass any such order as to costs of a proceeding as a court might pass under the provisions of the Code of Civil Procedure, 1908.
" 334 Then comes section 25A which lays down that when it has been decided under the provisions of the Act that a right, title or interest in immovable property belongs to a notified Sikh Gurdwara, or any person, the Committee of the Gurdwara concerned or the person in whose favour a declaration has been made may, within a period of one year from the date of the decision or the date of the constitution of the Committee, whichever is later, institute a suit before a tribunal claiming to be awarded possession of the right, title or interest in the immovable property in question as against the parties to the previous petition, and the tribunal shall, if satisfied that the claim relates to the right, title or interest in the immovable property which has been held to belong to the Gurdwara, or to the person in whose favour the declaration has been made, pass a decree for possession accordingly.
Section 26 then inter alia lays down that when it has been decided, under the provisions of the Act, that a right, title or interest in immovable property belongs to a Notified Sikh Gurdwara or when a right, title or interest in such property has been included in a list published under the provisions of section 5 (3), the Collector of the district in which the property is situated shall, on application being made to him on this behalf and after making such enquiry as he may deem proper into the fact of such decision or inclusion, cause an entry to be made in the records of rights, if any, of the estate in which the property is situated recording the gurdwara as the owner of the right, title or interest in accordance with the provisions of the Punjab Land Revenue Act, 1887.
Section 28 then provides for a suit for possession in respect of properties in which no claim has been made under section 5 or section 10.
Section 34 (1) gives a right of appeal to the High Court to any party aggrieved by a final order passed by the tribunal determining any matter decided by it under the provisions of the Act.
Section 36 and 37 are important and may be read in extenso.
335 "36.
No suit shall lie in any court to question anything purporting to be done by the State Government or by a tribunal in exercise of any powers vested in it by or under this Act." "37.
Except as provided in this Act no court shall pass any order or grant any decree or execute wholly or partly, any order or decree, if the effect of such order, decree or execution would be inconsistent with any decision of a tribunal, or any order passed on appeal therefrom, under the provisions of this Part.
" It is clear therefore from the scheme of the Act that it gives jurisdiction to the tribunal to decide all claims to properties which are claimed to be the properties of a Sikh Gurdwara mentioned in Sch.
I to the Act.
It is true that where a property in notified in the list under section 3 each person who has a claim to that property has to make a separate claim on his own behalf which is forwarded to the tribunal for decision.
It is clear however from the provisions of section 15 that where a tribunal is dealing with a property which is claimed to belong to a Sikh Gurdwara and in respect of which counter claims have been made by other persons, it has jurisdiction to decide to whom that property belongs, whether to the Sikh Gurdwara or to any other person claiming it and for that purpose it can consolidate the proceedings resulting from different claims to the same property so that all dispute with regard to that property can be decided in one consolidated proceeding.
Further it has the power under section 15 to inquire by public advertisement or otherwise if any person desires to be made a party to any proceeding and may join in any proceeding any person who it considers ought to be made a party there to.
Where therefore a number of claims have been made under section 5 to the same property which is claimed under section 3 336 to belong to a Sikh Gurdwara the tribunal can consolidate all such claims under section 15 and treat all the claims as one proceeding.
Where therefore the tribunal consolidates the claims in one proceeding each claimant even though he had made a claim for himself as against the Sikh Gurdwara would be entitled under section 15 to contest the claim not only of the Sikh Gurdwara but of any other person who is making a rival claim to the property as against the Sikh Gurdwara.
It is also clear from section 25A that in deciding the claims made under section 5 it is open to the tribunal not only to decide whether the property to which claims have been made belongs to the Gurdwara but also to decide whether it belongs to any of the claimants.
It seems therefore that the Act has given full power to the tribunal to decide between the rival claims of the Sikh Gurdwara and other claimants under section 5 and empowers it not only to give a decision as to the rights of the Sikh Gurdwara but also of other claimants.
Further there is provision in section 34 of the Act for appeal to the High Court by any party aggrieved by a final order passed by a tribunal in matters decided by it under the provisions of the Act.
The words in section 34 (1) are very wide and where claims are consolidated in one proceeding under section 15 and the claim of the Gurdwara and the rival claims of various claimants under section 5 with respect to one property are decided in a consolidated proceeding, it is clear that any party who was party to the consolidated proceeding would be entitled to appeal against the order of the tribunal if it went against it and was in favour of the Sikh Gurdwara or of any other claimant in the consolidated proceeding.
Section 36 thereafter bars a suit in any court to question any decision of a tribunal in exercise of any powers vested in it by or under the Act.
Section 37 bars any court from passing any order or granting any decree or executing wholly or partly any order or decree, if the effect of such order, or decree or execution would be 337 inconsistent with any decision of a tribunal or any order passed on appeal therefrom under the provisions of the Act.
It is on this scheme of the Act that we have to see whether it is open to the appellant and the other defendant to raise the question in the present suit that Balwant Singh was not the descendant of Maharaja Sher Singh and therefore not entitled to maintain the present suit.
It is necessary for this purpose to examine the order of the tribunal which was made on June 22, 1933, by a majority of two to one.
It is not in dispute that this bunga was notified under section 3 of the Act as property claimed by the Golden Temple.
This notification led to four claims with respect to this bunga, namely, by Jaswant Singh who was a party to the suit from which the present appeal has arisen, Darbara Singh and others with whom we are not concerned, Kesar Singh appellant and Balwant Singh respondent.
The tribunal consolidated all the four claims under section 15 of the Act and dealt with the matter in one proceeding.
The case of Jaswant Singh was that he was in possession of the first storey of the bunga by virtue of his perpetual rights of possession and management in the bunga as bungai.
Kesar Singh 's case was that he was in possession of two rooms on the first and second floors of the bunga.
He did not define what his right was but denied that the bunga was wakf.
Balwant Singh 's case was that the bunga was built by his ancestors for spiritual and wordly benefit of their offspring and was in his possession and that of his ancestors and should be declared to be the property of his family.
All these three claimants denied that the Golden Temple had any kind of right in the bunga.
In the consolidated proceeding therefore the tribunal had to decide firstly whether the bunga was the property of the Golden Temple.
If it decided that, all the claims would necessarily fall 338 through.
But if it held that the bunga was not the property of the Golden Temple it had to adjudicate on the respective claims of Jaswant Singh, Kesar Singh and Balwant Singh.
By majority, the tribunal held that the bunga was not the property of the Golden Temple.
It therefore had to decide to which of the three claimants under section 5, if any, the bunga could be held to belong.
It negatived the claims of Kesar Singh and Jaswant Singh.
As to Balwant Singh 's claim it held by a majority that Balwant Singh had no personal or private right in the bunga.
It further held that the bunga was wakf property dedicated to the pilgrims to the Golden Temple and that the descendants of Maharaja Sher Singh were the managers of the bunga.
It is clear from the decision of the majority of the tribunal that the descent of Balwant Singh from Maharaja Sher Singh was not disputed before the tribunal either by the Golden Temple or by any other party.
It is clear therefore that the tribunal had jurisdiction to decide the rights to the bunga, as it was one of the properties notified under section 3.
It had also the jurisdiction to determine all claims made under section 5 and it consolidated all the claims into one proceeding and decided the rights of the claimants and the Golden Temple in that Proceeding.
Now the respondent was claiming in those proceedings that he was the owner of the bunga as the descendant of Maharaja Sher Singh.
Neither the Golden Temple nor the other claimants seem to have challenged the claim of the respondent before the tribunal on the ground that he was not a descendant of Maharaja Sher Singh and therefore had no right to maintain the claim.
The whole proceeding before the tribunal was conducted on the basis that the respondent was a descendant of Maharaja Sher Singh and the only question was whether as such descendant he had a right to the property.
The tribunal nagatived his claim of ownership of the bunga and held that it was wakf property under the management of the descendants or Maharaja Sher Singh.
339 It has been urged that the order of the tribunal does not mention in the operative part that Balwant Singh was entitled to manage the property as the descendant of Maharaja Sher Singh and this shows that though the tribunal was of opinion that the descendants of Maharaja Sher Singh were entitled to manage the bunga it was not accepting Balwant Singh 's claim as such descendant and there was thus no decision in favour of Balwant Singh.
We cannot accept this contention, for if Balwant Singh was not a descendant at all of Maharaja Sher Singh and if this point was raised by anybody before the tribunal his claim would have failed on the simple ground that he was nobody to put forward the claim of the descendants of Maharaja Sher Singh.
The reason why the tribunal used the words "that the descendants of Maharaja Sher Singh are managers of the bunga" appears to be that at that time the father of Balwant Singh was alive and in the presence of his father Balwant Singh could not claim a right to manage the bunga.
Therefore the tribunal used neutral words, namely, "the descendants of Maharaja Sher Singh are managers of the bunga", instead of mentioning Balwant Singh as the manager of the bunga.
This is clear from an earlier part of the decision of the tribunal where in dealing with the question of ownership of Balwant Singh, it has remarked that "it is hard to see that Balwant Singh has any personal or private rights over the bunga in the presence of his father Raghbir Singh".
Though therefore the respondent was held by the majority of the tribunal, not to have rights in himself because his father was alive the tribunal nevertheless went into the question of the rights of Maharaja Sher Singh 's descendants at the instance of Balwant Singh treating him as a representative of the descendants.
This is also clear from the form in which the issue No. 3 was framed, namely, "was the bunga in dispute built by Maharaja Sher Singh, ancestor of Balwant Singh petitioner in 1629, and has been in his possession ? What rights as he been exercising over it ?" It is 340 clear therefore that before the tribunal Balwant Singh 's claim as a descendant of Maharaja Sher Singh was not challenged by the appellant or the other defendant; and the tribunal found in favour of the descendants of Maharja Sher Singh at the instance of Balwant Singh.
It was in our opinion open to the appellant and the other defendant to challenge this finding in favour of the descendants of Maharaja Sher Singh at the instance of Balwant Singh under section 34 of the Act as all the claims were consolidated under section 15 and treated as one case relating to one property.
But though the appellant and the other defendant went in appeal to the High Court they do not seem to have challenged the finding of the tribunal in favour of the descendants of Maharaja Sher Singh.
Further the Golden Temple also went in appeal; but it also did not challenge the decision in favour of the descendants of Maharaja Sher Singh.
That decision has therefore become final and according to that decision the descendants of Maharaja Sher Singh are the managers of this bunga.
That decision was given at the instance of the respondent whose claim in those proceedings based on his being a descendant of Maharaja Sher Singh was never challenged on the ground that he was not the descendant of Maharaja Sher Singh.
The question therefore that arises is whether in view of sections 36 and 37 of the Act it would be open to any court now to give a decision which will go against what has been held in that decision of the Tribunal.
If a court cannot give a decision which would go against the decision of the Tribunal in 1933, it would obviously be not open to a party to those proceedings to raise any question which would have the effect of questioning the decision of the Tribunal.
Section 36 bars any court from questioning anything done by a Tribunal in exercise of the powers vested in it by or under the Act.
Section 37 bars any court from passing any order 341 or granting any decree or executing wholly or partly any order or decree if the effect of such order, decree or execution would be inconsistent with any decision of the tribunal or any order passed on appeal therefrom under the provisions of the Act.
Now the decision of the tribunal which became final as it was not appealed from either by the Golden Temple or by the appellant or the other defendant was that the bunga was wakf property under the management of the descendants of Maharaja Sher Singh and this decision was given at the instance of the respondent who claimed in those proceedings to be a descendant of Maharaja Sher Singh and this claim of his to be a descendant of Maharaja Sher Singh was never disputed.
If therefore the Court now holds at the instance of the appellant or the other defendant that the respondent is not the descendant of Maharaja Sher Singh it will be questioning the decision of the tribunal and passing an order or granting a decree which would be inconsistent with the decision of the tribunal.
Section 36 and 37 bar any such order or decree by the court and therefore the appellant and the other defendant are naturally debarred from raising point the decision of which is barred under sections 36 and 37 of the Act.
We are therefore of opinion that the view taken by the High Court in its judgment after remand on issue No. 6 is correct and it is not open to the appellant to raise the question whether the respondent is a descendant of Maharaja Sher Singh and as such entitled to maintain the present suit.
This brings us to the question of limitation, which was decided by the High Court on the earlier occasion when the remand was made.
The case of the appellant in that connection is that he was in adverse possession and the respondent had been out of possession for over 12 years before the suit was filed in 1943 and therefore the suit should be dismissed as barred under article 144 as well as article 142 342 of the Limitation Act.
The appellant contends that the plaint itself shows that the respondent had been dispossessed more than 12 years before the present suit was filed and therefore the suit must fail on the ground of limitation.
We agree with the High Court however that a careful reading of paras.
3 and 4 of the plaint shows that the respondents case was that he and his uncle were managers of the bunga as descendants of Maharaja Sher Singh and that the appellant and the other defendant were in possession as their servants or servitors.
But these servants had started denying the title of the respondent and his uncle they do not want to keep them any longer in their service.
They therefore filed the suit for ejectment of these servants and for possession of the property.
The High Court therefore was right in the view it took that it was a case of permissive possession arising in favour of the appellant and the other defendant.
Whatever may be the position about the actual possession, it appears from the decision of the tribunal that the claim of the appellant and other defendant before the tribunal in 1933 was that they were bungais i.e. servitors; and this was also the view of the High Court in the appeal from the decision of the tribunal where the High Court said that "no doubt Kesar Singh, his father and grandfather have been Bungais of the bunga, but there is no reliable evidence of their having set up a title adverse to the institution or that the nature of this bunga is exceptional." Similarly Jaswant Singh also claimed to be a mere bungai before the tribunal by virtue of his father being adopted by Natha Singh who was undoubtedly a bungai.
In these circumstances from the decision of the tribunal in favour of the respondent in 1933, it appears that no hostile title adverse to the respondent was ever set up by the appellant and the other defendant before that decision.
In consequence it cannot be said that adverse possession over 12 years has been established 343 before June 1, 1943 when the present suit was filed.
As originally the possession of the appellant and the other defendant was clearly permissive, there can be no question of the application of article 142 in the present case and the appellant could only succeed if he could prove adverse possession under article 144 for over 12 years.
The decision of the High Court on the question of limitation is correct.
Lastly, it is urged that the respondent had applied under section 25A to the tribunal but allowed that suit to be dismissed for default and therefore it was not open to him to file the present suit for possession.
It is enough to say that though this point was framed in the written statement no issue was framed with respect to it by the trial court.
When the matter was raised in the High Court on the first occasion it held that as no issue had been framed and no evidence had been led by the parties as to whether the cause of action was or was not the same and no copy of the plaint in the earlier proceeding had been filed the question whether the present suit was barred by virtue of O.IX.
of the Code of Civil Procedure could not be gone into and it must be held that it was not barred under O. IX.
In view of what the High Court has said we are of opinion that it is not open to the appellant to raise this point before us when he had failed to get an issue framed on it and no evidence was led in that behalf.
As the appellant cannot challenge that the respondent is the descendant of Maharaja Sher Singh the respondent would have a right to maintain the suit.
Further as the appellant and the other defendant are servitors and they have undoubtedly set up a title after the decision of the tribunal adverse to the respondents 's right as found by the tribunal, the respondent is entitled to eject the appellant and the other defendant, for servitors cannot claim to remain in possession after they set up an adverse title with respect to the property of 344 which they are servitors.
In view of our decision on issue No. 6, it is unnecessary to consider issue No. 2 on which a finding was called for by this Court by its interlocutory judgment in 1958.
The appeal therefore fails; there would be no order as to costs.
Appeal dismissed.

summary:
In 1933 there were proceedings before the Sikh Gurdwaras Tribunal under the Sikh Gurdwaras Act, 1925, for determining whether the bunga in suit was the property of the Golden Temple.
In these proceedings K and J claimed to be owners of the bunga and claimed that he was the descendant of Maharaja Sher Singh and as such was entitled to the bunga as a manager.
The Tribunal rejected the claims of the Golden Temple and of K and J and held that the bunga was wakf property under the management of the descendants of Maharaja Sher Singh.
Subsequently, B brought a civil suit for possession of the bunga by ejectment of K and J on the ground that they being servants or servitors of the wakf had forfeited their right of residence as they were claiming rights adverse to the wakf.
K and J resisted the suit mainly on the grounds that was not competent to maintain the suit as he was not a descendant of Maharaja Sher Singh and that they had prescribed title by adverse possession.
^ Held, that sections 36 and 37 of the Act barred K and J from raising the question before the Civil Court whether B was a descendant of Maharaja Sher Singh.
The Act had given full powers to the Tribunal to decide, not merely the claim of the Sikh Gurdwara, but also of all the rival claimants before it.
Section 36 barred any court from questioning anything done by the Tribunal in exercise of its powers under the Act.
Section 37 barred any court from passing any order or decree or executing any order or decree if the effect of doing so was inconsistent with decision of the tribunal.
The decision of the Tribunal that the bunga was wakf property and that the descendants of Maharaja Sher Singh were the managers had become final.
The claim of B that he was a descendant of Maharaja Sher Singh was never challenged before the Tribunal and its decision was given at the instance of B. Held, further, that the suit was not barred by limitation either under article 142 or article 144 of the Limitation Act.
K and 326 J were in possession as servants or servitors and their possession was permissive.
From the decision of the Tribunal it was clear that no hostile title was set up by K and J against B at any time before the proceedings of 1933, as such the suit which was filed in 1943 could not be barred by limitation.


judgement:
Appeal No. 93 of 1952.
Appeal from the Judgment and Decree dated the 20th January, 1950, of the High Court of Judicature at .Calcutta (Das and Gupta JJ.) in Appeal from Original Decree No. 141 of 1940 arising out of Judgment and Decree dated the 8th May, 1940, of the Court of the Subordinate Judge, 1st Court of Zillah If owrah in Title Suit No. 38 of 1948.
N.C. Chatterjee (A. N. Sinha, with him) for the appellant.
Panchanan Ghosh (Syama Charan Mitter and A.K. Dutt, with him) for the respondent.
January 28.
The Judgment of the Court was delivered by DAS J.
This is an appeal by the plaintiff ' in an ejectment suit.
His case was that defendant No. I Pratul Chandra Ghose was a Ticca tenant of premises Nos. 2 and 3, Watkin 's Lane, Howrah, comprising an area of I Bigha 19 Cottahs of land on a rent of Rs. 78 per annum under the landlords Kumar Sarat Kumar Roy and Bibhuti Bhusan Chatterjee, proform a defendants Nos. 2 and 3, that the plaintiff took a Mourashi Mokarari lease from these landlords on the 23rd September, 1937, and thereby became the immediate landlord of the said defendant and that the teancy was determined by a notice to quit dated the 7th October, 1937.
The trial Court, amongst other 932 things, found as a fact that the tenancy of the defendant Pratul Chandra Ghose was permanent, heritable and transferable and was not liable to be determined by notice.
The plaintiff preferred an appeal to the High Court but the High Court dismissed that appeal holding, amongst other things, that the finding of the trial Court as to the nature of the tenancy was correct.
The plaintiff has now come up on appeal before us after getting a certificate from the High Court that it is a fit case for appeal to this Court.
Relying on the decision of the Privy Council in Dhanna Mal vs Moti Sagar(1) Shri N. C. Chatterjee appearing on behalf of the plaintiff appellant contends that the present appeal is not concluded by the concurrent finding of the Courts below that the tenancy was permanent because that question was one of the proper inference in law to be deduced from the facts as found by the Courts below.
The learned counsel has, therefore, taken us through.
the evidence mostly documentary, as to the nature of the tenancy.
The earliest document referred to is Exhibit P/11, being a conveyance executed in 1226 B.S.1819 1820 by Sheikh Manik and another in favour of Mrs. Cynthia Mills Junior.
How the vendors had acquired their title is not known.
By that deed of sale the vendors, for a money consideration,, conveyed their interest in the lands described as Jamai lands to the purchaser who, on payment of rent of Rs. 480 per kist, was to "go on possessing and enjoying the same with great felicity down to your sons and grandsons etc.
, in succession by constructing houses and structures." Mrs. Cynthia Mills died some time before October, 1855, and her son John Henry Mills who had succeeded her sold the premises to one Mrs. Sabina Love by a conveyance Exhibit P/10 dated the 29th October, 1855.
It appears from that deed that by that time a tank with masonry steps had been excavated on the lands which were described as a plot of rentpaying garden land.
The consideration for the sale (1) (1927) L. R. 54 1.
A. 178.
933 was Rs. 1,000.
The following provisions of the sale deed are of importance: "From this date being entitled to make gift and sale of the said property, you do bring into your own possession the said lands etc., and on paying annually to the Maliks Zemindars Rs. 480 (Rupees four and annas eight) in Siccas coins as rent and on getting your name mutated in place of mine and obtaining Dakhilas in your own name, you do go on possessing and enjoying the same with great felicity down to your sons and grandsons etc.
, in succession.
" By a conveyance Exhibit P/9, dated the 10th October, 1856, Mrs. Sabina Love transferred the premises to one Francis Horatio Dobson.
The premises were there described as "garden land held under Mourashi Patta" which Patta has since been held to be a spurious document in a subsequent litigation.
It appears from this document that Mrs. Cynthia Mills had excavated a tank and constructed a pucca ghat and laid out a garden and that on her death her son and heir John Henry Mills came into possession of the land and that he had sold the premises to Mrs. Sabina Love and that after her purchase Mrs. Sabina Love had enclosed the said lands and had manufactured bricks with the earth of the land she purchased.
The consideration for this conveyance was Rs. 1,200.
It provided as follows : " From to day you become the owner of the said lands with powers of making gift and sale.
On keeping the said lands together with the tank with all interests therein in your possession and under your control, and on paying according to the previous Patta the Mokarari annual rent of Rs. 480 in Sicca coins into the Sherista of the Zemindar and on having the previous name struck off from the landlord 's Sherista and getting your own name recorded therein, you do go on enjoying and possessing the same with great felicity down to your sons, grandsons etc.
, in succession .
" On 10th Jeshta 1266 B.S. corresponding to 23rd May, 1859, a notice under sections 9 and 10 of Regulation V of 1812 was issued by the then Zemindars Rani 934 Lalanmoni and Raja Purna Chandra Roy.
It was ,addressed to " Mrs. Cynthia Mills Junior, Sarbarahkar Mr. Dobson, of Salkhia.
" It rail as follows: " This is to inform you that you are in.
possession of I Bigha 19 Cottas of lands of different kinds as per the boundaries given below as recorded in the Mal Department in the said village for which according to your own statement you are paying a yearly rental of Rs. 4126.
But you have taken no settlement in respect thereof from our estate (sarkar).
Now on fixing the annual Jama of the said lands according to the prevailing rate as per Jamabandi at Rs. 137 8 0 a year, fifteen days ' notice is given to you under the provisions of sections 9 and 10 of Regulation V of 1812 and you are hereby informed that within the said period you should appear before, our Zamindary Cutchery and accept a Pottah after submitting a Kabuliyat according to the practice in respect of the land and Jama.
In default, after the expiry of the said period action will be taken according to law, and thereafter no plea shall be entertained.
" The requisition not having been complied with, the landlords evidently filed a suit being Suit No. 590 of 1859.
The pleadings in this suit are not on the record.
On 21st September, 1860, the Principal Sudder Amin delivered his judgment, Exhibit 24.
It appears from that judgment that the following two issues had been framed: " 1.
Whether the plaintiffs have served notice on the other party for assessment of Jama ? 2.
Whether a Jama can be assessed in respect of the disputed lands; if so at what rate?" The Principal Sudder Amin overruling the objection of the defendants held that the landlords had full power to assess the rent and accordingly he fixed the rent at Rs. 2 per Cotta which worked out at Rs. 78 in respect of the entire land.
There was an appeal from that decision which, however, was dismissed by the judgment Exhibit Z (2) delivered on the 18th March, 1862 .
The Mourashi Patta relied upon was rejected as 935 it was not registered and appeared, on examination, to have been newly written and filed.
Thereafter the landlord filed a suit for rent of the disputed lands# against Dobson and Exhibits Z and Z (1) are the certified copies of the judgment and order passed thereon.
On the 29th May, 1866, Dobson executed two mortgages (Exhibits P/6 and P/7) in favour of De Rozario and John Dominic Freitas for Rs. 4,000 and Rs, 2,000 respectively.
The two re conveyances dated 29th February, 1874, and 12th March, 1874, are also on the record.
On 6th March, 1874, Dobson sold the premises to Henry Charles Mann by a deed which is Exhibit P/5.
The consideration for the sale was Rs. 9,500.
It appears from this deed that by that time there were two brick built dwelling houses on the property which came to be numbered as Nos. 2 and 3, Watkin 's Lane.
On 11th September, 1883, Henry Charles Mann sold the premises to George Jones for Rs. 10,000: vide Exhibit P/4.
In both those sale deeds the transferee is granted a heritable right forever.
In the assessment books of the Howrah Municipality (Exhibits 22 series) the interest of George Jones is described as Mourashi.
In the landlord 's Sherista the nature of the tenancy is not stated and Dobson continues to be the recorded tenant (Exhibit D series).
There was, however, no column.
in the rent receipts to indicate the status of the tenant.
It appears that on the death of George Jones the estate came into the hands of the Administrator General of Bengal representing the estate of George Jones.
In the rent receipts of Dighapatia Raj the rent is said to be "received from Jones Administrator General of Bengal." In May, 1931, the plaintiff and the Administrator General of Bengal entered into an agreement for sale of premises No. 2, Watkin 's Lane, being a portion of the premises in question, for a sum of Rs. 10,001 and Rs. 1,001 was paid by the plaintiff as and by way of earnest money.
The landlords having declined to subdivide the ground rent between the two portions of the premises, namely, Nos. 2 and 3, Watkin 's Lane, and a portion of the Premises No. 2, Watkin 's Lane, having fallen down the 936 agreement for sale appears to have fallen through.
On the 4th June, 1932, the plaintiff suggested that a lease for 20 years should be granted which was refused by the Administrator General, Bengal.
Then there was some negotiation between the plaintiff and the Administrator General of Bengal for the sale of both the premises, Nos. 2 and 3, Watkin 's Lane, to the plaintiff for a sum of Rs. 12,500.
The plaintiff on 9th April, 1933, sent a draft deed of sale (Exhibit 15) for the approval of the Administrator General of Bengal describing the premises as a Mokarari Mourashi homestead.
On 21st April, 1933, Dighapatia Raj Estate wrote to the Administrator General.
of Bengal saying that the tenancy was a Ticca one.
On 6th June, 1933, the Administrator General of Bengal declined to approve the draft as drawn.
After some further proposal by the plaintiff for a long lease he declined to purchase the property on the ground that the Administrator General of Bengal had not a good marketable title.
Nothing having come out of the negotiations between the plaintiff and the Administrator General of Bengal the latter in September, 1936, invited offers for sale of the lands (Exhibit B).
The defendant No. I made the highest offer of Rs. 12,251.
and this was accepted by the Administrator General in preference to the offer made by the plaintiff for Rs. 11,251.
The Administrator General accordingly executed a conveyance in favour of the defendant Pratul Chandra Ghose (Exhibit P. X) who thereupon became the tenant of the premises.
Having failed to obtain title to the premises from the Administrator General of Bengal the plaintiff approached the landlords and on 22nd September, 1937, obtained a Mokarari Mourashi Patta in respect of the disputed land on payment of a Selami of Rs. 3,205 and at an annual rent of Rs. 78 only.
The defendant Pratul Chandra Ghose filed rent suits against the plaintiff in respect of the underlease held by the latter under the Administrator General of Bengal and obtained rent decrees.
The plaintiff, however, on the strength of his new title derived from the superior landlords under the Mourashi Patta served 937 notice on the defendant Pratul Chandra Ghose on the 7th October, 1937, requiring him to vacate the premises on the last day of the month of Chaitra 1944 B. section The defendant Pratul Chandra Ghose, not having vacated the premises, the plaintiff filed the suit out of which the present appeal has arisen.
Shri N. C. Chatterjee contends that in view of the decision in the suit of 1859 it was not open to the defendant Pratul Chandra Ghose to contend that his tenancy was a heritable permanent tenancy.
This point was neither pleaded nor raised in the trial Court but was put forward for the first time before the High Court.
The pleadings of the 1859 suit are not on the record but the substance of ' the written statement appears from the judgment Exhibit 24 passed in that case.
The issues framed in that case have already been set out.
There was no issue regarding the character of the tenancy, namely, whether it was permanent and heritable or otherwise.
The only question there was whether rent could be assessed tinder the Regulation.
There is nothing in that Regulation suggesting that rent could be assessed only if the tenancy was a ticca tenancy or that rent could not be assessed if the tenancy was a permanent one.
The question of permanency of the tenancy was not, therefore, directly or substantially in issue.
We find ourselves in agreement with the High Court that the permanency of tenure does not necessarily imply both fixity of rent and fixity of occupation.
The fact of enhancement of rent in 1859 may be a circumstance to be taken into consideration but it does not necessarily militate against the tenancy being a permanent one, as held by the Privy Council in the case of an agricultural tenancy in Shankarrao vs Sambhu Wallad(l).
The principle of that decision was applied also to non agricultural tenancies in Jogendra Krishna Banerji vs Sm.
Subashini Dassi(2).
In Probhas Chandra Mallik vs Debendra Nath Das(3) also the same view was taken.
We, therefore, hold that the plea of res judicata cannot be sustained.
(1) (2) (3) , 121 938 Shri N. C. Chatterjee then contends, relying on the decisions in Rasmoy Purkatt vs Srinath Moyra (1), Digbijoy Roy vs Shaikh Aya Rahman (2), Satyendra Nath vs Charu Sankar (3 ) and Kamal Kumar Datta vs Nanda Lal Dule ( 4 ) that the tenancy in this case cannot be regarded as a permanent one.
The decisions in those cases have to be read in the light of the facts of those particular cases.
The mere fact of rent having been received from a certain person may not, as held in Rasamoy Purkatt vs Srinath Moyra (supra) and Digbijoy Roy vs Shaikh Aya Rahman (supra), amount to a recognition of that person as a tenant.
Mere possession for generations at a uniform rent or construction of permanent structure by itself may not be conclusive proof of a permanent right as held in Kamal Kumar Dutt vs Nanda Lal Dule (supra) but the cumulative effect of such fact coupled with several other facts may lead to the inference of a permanent tenancy as indicated even in the case of Satyendra Nath vs Charu Sankar (supra) on which Shri N. C. Chatterjee relies.
What, then, are the salient facts before us ? It is not known how the earliest known tenant Shaik Manik acquired the tenancy or what the nature of that tenancy was.
The tenancy has passed from one person to another by inheritance or by will or by transfers inter vivos.
In the deeds of transfer the transferee has been given the right to enjoy the property from generation to generation for ever.
A tank has been excavated and a pucca ghat built on the land.
Bricks have been manufactured with the earth taken from the land and the premises have been enclosed within pucca walls.
Pucca buildings have been erected and mortgages have been executed for substantial amounts.
Although there was an enhancement of rent in 1860 that rent has continued to be paid ever since then.
Portion of the premises, namely, No. 2, Watkin 's Lane, has been used as a factory by the plaintiffs and on the other portion, namely, No. 3, Watkin 's Lane, residential buildings were erected which indicate that the lease was for residential purposes.
As already (1) (2) (3) (4) Cal.
939 indicated there have been many transfers and devolutions and the landlords have accepted rent ' from the transferees or the successors.
The names of Mrs. Cynthia Mills and Dobson and, Jones were mutated in the Zamindar 's Sherista.
Although in the rent receipts Dobson continued to be shown as the recorded tenant, eventually Jones 's name appears on the rent receipts as tenant.
In spite of the increase in land value and the letting value the landlords through whom the plaintiff derives his title did not at any time make may attempt to eject the tenant or to get any further enhancement of rent since 1860.
All these circumstances put together are explicable only on the hypothesis of permanency of the tenure and they irresistibly lead to the conclusion, as held by the lower Courts, that the tenancy in question was heritable and a permanent one.
The decision of Mukherjea, J., in the case of Probhas Chandra Mallick vs Debendra Nath Das (supra) is definitely in point.
In this view of the matter we hold that the Courts below were right in dismissing the plaintiff 's claim for ejectment. ' In the result this appeal must fail and we dismiss it with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
Permanency of tenure does not necessarily imply both fixity of rent and fixity of occupation and the fact of enhancement of rent does not necessarily militate against the tenancy being a permanent one.
When, therefore, in a previous suit the only question was whether the jama could be increased and the jama was increased: Held, that this decision did not operate as res judicata on the question of permanency of the tenure in a subsequent suit for ejectment.
Shankar Rao vs Sambhu Wallad ; Jogendra Krishna Banerji vs Subashini Dassi , Probhas Chandra Mallick vs Debendra Nath Das (1939) 43 C.W.N.828, relied on.
Mere possession for generations at a uniform rent, or construction of permanent structures by itself may not be conclusive proof of a permanent right but the cumulative affect of such facts coupled with other facts may lead to the inference of a permanent 931 tenancy Where it was not known how the earliest known tenant acquired the tenancy or what the nature of the tenancy was, the tenancy bad passed from one person to another by inheritance or by will or by transfer inter vivos, in the deeds of transfer the transferee was given the right to enjoy from generation to generation for ever, pucka structures and tanks had been constructed, and though there was an enhancement of rent in 1860, the rent bad not been increased since then: Held, that all these circumstances put together irresistibly led to the conclusion of a permanency of the tenure.
Probhas Chandra Mallik vs Debendra Nath Das (1939) 43 O.W.N. 828 referred to.


judgement:
ION: Criminal Appeal No. 194 of 1960.
Appeal by special leave from the Judgment and Order dated January 20, 1960, of the Punjab High Court in Criminal Revision No. 1485 of 1959.
Porus A. Mehta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants.
H. R. Khanna and P. D. Menon, for the respondent.
November 13.
The Judgment of the Court was delivered by AYYANGAR, J.
The three appellants were convicted by the First Class Magistrate of Jullundur of an offence under section 167 (81) of the for "having acquired possession of smuggled gold and for carrying, keeping and concealing the said gold with intent to defraud the Government knowing that the gold had been smuggled into India from a foreign country and that no duty had been paid thereon," and were sentenced to terms of imprisonment.
Appeals were filed by the accused to the Sessions Judge, Jullundur but the convictions were upheld though the sentence was reduced in the case of the third appellant.
A revision petition preferred therefrom to the High Court of Punjab was dismissed and thereafter the appellants obtained leave from this Court under article 136 of the Constitution and filed the appeal which is now before us.
A few facts are necessary to be stated to appreciate the point raised for decision.
The City Inspector of Police, Jullundur is stated to have 366 received information that some smugglers were on the point of transporting gold from Amritsar into Jullundur and at about mid night on July 16, 1958, further information that some of these had actually come and were present in the house of Gian Chand the first appellant.
A raid party was accordingly orgainsed and the house of the first appellant was cordoned and raided at about 3 A.M. on the early morning of July 17,1958.
In the course of the search certain bars of gold were found on the person of some of the inmates of the house and in the house itself, as also a large amount of cash.
Thereafter the first appellant, his wife the third appellant and her brother the second appellant were arrested, the gold found was seized and a complaint filed charging the three accused of offences under sections 411 and 414 of the Indian Penal Code.
This charge of receiving stolen property preferred against the three appellants was, however, not proceeded with and the Police Inspector made a report to the Court on January 7, 1959, that no case had been made out against them, and the case was thereupon dropped.
Meanwhile, the Assistant Collector of Customs contacted the City Police at Jullundur and made an application to the Court of the First Class Magistrate, Jullundur for the delivery of these gold bars to the Customs authorities obviously under section 180 of the to the terms of which we shall refer later, and they were delivered to the Customs authorities on January 7, 1959, this being the date on which the case against the appellants under sections 411 and 414 of the Indian Penal Code was dismissed.
Very soon thereafter a notice was issued to the appellants to show cause why the gold in the possession of the Customs authorities should not confiscated under section 167 (8) of the , and after considering the explanations of the appellants the Collector passed an order directing the confiscation of the gold.
That order has 367 become final and this appeal is not concerned with the correctness of the order of confiscation of the gold under section 167 (8).
During the proceedings before the Customs authorities for confiscation, sanction was accorded to prosecute the appellants for an offence under section 167 (81) which runs in these terms: "167.
The offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively: Section of this Act to Offences which off Penalties ence has reference.
If any person General such person knowingly, and with shall on con intent to defraud the viction before Government of any duty a Magistrate payable thereon, or to be liable to evade any prohibition or imprisonment restriction for the time for any term being in force under or not exceeding by virtue of this Act with two years, or respect thereto acquires to fine, or to possession of, or is in both.
any way concerned in carrying, removing, depo siting, harbouring, keep ing or concealing or in any manner dealing with any goods which have been unlawfully removed from a ware house or which are chargeable with a duty which has not been paid or with respect 368 to the importation or exportation of which any prohibition or restriction is for the time being in force as aforesaid; or If any person is in relation to any goods in any way knowingly con cerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods," and it is the correctness of the conviction in the prosecution that followed which is the subject matter of the appeal now before us.
It will be seen from the terms of section 167 (81) that there are two distinct matters which have to be established before a person could be held guilty of the offence there set out: (1) that the goods in this case (gold) were smuggled, i.e., imported into the country either without payment of duty or in contravention of any restriction or prohibition imposed as regards the entry of those goods, and (2) that the accused knowing that the goods were of that character did the acts specified in the latter part of the provision.
It is clear that in the absence of any valid statutory provision in that behalf the onus of establishing the two ingredients necessary to bring home the offence to an accused is on the prosecution.
In regard to the first of the above matters the position stands thus: With a view to conserve the foreign exchange resources of this country, in line with provisions framed for a like object by 369 several other Governments, the Foreign Exchange Regulation Act, 1947, was enacted which came into force on March 25, 1947.
Section 8(1) of the Act enacted: "8.
(1) The Central Government may, by notification in the Official Gazette, order that, subject to such exemptions, if any, as may be contained in the notification, no person shall, except with the general or special permission of the Reserve Bank and on payment of the fee, if any, prescribed bring or send into India any gold or silver or any currency notes or bank notes or coin whether Indian or foreign.
Explanation.
The bringing or sending into any port or place in India of any such article as aforesaid intended to be taken out of India without being removed from the ship of conveyance in which it is being carried shall nonetheless be deemed to be a bringing, or as the case may be sending, into India of that article for the purposes of this section.
" On the same day on which the Act came into force a notification was issued under this section reading: "(1) Restrictions on import of gold and silver.
In exercise of the powers conferred by sub section 1 of section 8 of the Foreign Exchange Regulation Act, 1947 (Act 7 of 1947) and in supersession of the notification of the Government of India in the late Finance Department No. 12 (11) FI/47, dated the 25th March, 1947, the Central Government is pleased to direct that except with the general or special permission of the Reserve Bank no person shall bring or send into India from any place outside India (a) any gold coin, gold bullion, gold sheets or gold ingot whether refined or not; " 370 Virtually therefore a ban was imposed on the import of gold into the country.
This prohibition naturally resulted in the rise of the internal price of gold compared to its external price, i.e., its price in the international markets and this gave a great incentive to smuggling in the commodity.
As a result Parliament enacted a provision (section 178 A of the ) reading: "178 A. (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized.
shifting the onus of proof in respect of particular commodities seized under the Act in stated circumstances that the goods were not smuggled, on the person from whose possession they were taken.
Sub section (2) set out the commodities to which the section applied and gold was specified as one such.
The details of the circumstances in which this provision found its place in the statute book as well as its construction have been dealt with in Collector of Customs, Madras vs Nathella Sampathu Chetty and need not here be repeated.
Suffice it to say that if the terms of the section were satisfied the gold seized in the present case would be presumed to be smuggled and the burden of proving that they are not, would be on the person from whom they were seized.
Without much of a discussion or a consideration of the several provisions the learned First Class Magistrate held that section 178 A of the was applicable to the case and that accordingly the onus was properly on the accused.
Before considering his reasoning it is necessary to refer to a few other provisions of the 371 which have a bearing on the point now under discussion.
Section 178 of the Act which empowers Customs Officers to effect a seizure of goods suspected by them to be smuggled, enacts: "178.
Any thing liable to confiscation under this Act may be seized in any place in India either upon land or water, or within the Indian customs waters by any officer of Customs or other person duly employed for the prevention of smuggling.
" Section 180 under the provisions of which the gold seized by the police as a result of their search on July 17, 1958, came into the possession of the Customs authorities, runs in these terms: "180.
When any things liable to confiscation under this Act are seized by any Police officer on suspicion that they have been stolen, he may carry them to any police station or Court at which a complaint connected with the stealing or receiving of such things has been made, or an enquiry connected with such stealing or receiving is in progress, and there detain such things until the dismissal of such complaint or the conclusion of such enquiry or of any trial thence resulting.
In every such case the Police officer seizing the things shall send written notice of their seizure and detention to the nearest custom house; and immediately after the dismissal of the complaint or the conclusion of the enquiry or trial, he shall cause such things to be conveyed to, and deposited at, the nearest custom house, to be there proceeded against according to law.
" The question that now arises is whether the possession obtained by the Customs department by goods being "conveyed to and deposited at the nearest Custom house" within the last words of the second 372 paragraph of section 180 are goods which have been seized under the Act within the opening words of section 178A.
In the first place, it would be seen that these three sections which have to be read together draw a distinction between seizure under the Act and a seizure under provisions of other laws.
A seizure under the Act is one for which the authority to seize is conferred by the Act and in the context it could be referred to as a seizure under section 178.
The seizure from the owner of the property under section 180 is not a seizure under the Act but by a police officer effecting the seizure under other provisions of the law, for instance the Criminal Procedure Code.
And that is made clear by appropriate language in the first paragraph of section 180.
Learned Counsel for the respondent State has urged that "the conveyance and deposit" in the office of the Customs authority under the second paragraph of section 180 also involves a seizure under the Act and for this purpose relied on the meaning of the word 'seize ' given in Ballantyne 's Law Dictionary where it is equated to "taking a thing into possession".
This however might be the meaning in particular contexts when used in the sense of the cognate Latin expression "Seized" while in the context in which it is used in the Act in section 178A it means 'take possession of contrary to the wishes of the owner of the property '.
No doubt, in cases where a delivery is effected by an owner of the goods in pursuance of a demand under legal right, whether oral or backed by a warrant, it would certainly be a case of seizure but the idea that it is the unilateral act of the person seizing is the very essence of the concept.
There is another matter to which reference should be made which, in our opinion, conclusively establishes that the delivery of the goods to the Customs authorities under the latter part of section 180 is not seizure under the Act within the meaning of section 178A.
The last part of sub section
(1) of section 178A lays 373 the burden of proving that the goods are not smuggled on "the person from whose possession the goods are taken".
Assuredly when the goods are delivered to the Customs authorities by the Magistrate they are not taken from the possession of the persons accused in criminal case so as to throw the burden of proof on them and it would lead to an absurdity to hold that the section contemplated "proof to the contrary" by the Magistrate under whose orders the delivery was effected.
For the purpose of deciding the point arising in this case we do not think it necessary to enter into the philosophy or refinements of the law as to the nature of possession.
When the goods were seized by the police they ceased to be in the possession of the accused and passed into the possession of the police and when they were with the Magistrate it is unnecessary to consider whether the Magistrate had possession or merely custody of the goods.
The suggestion that the goods continued to be, at that stage, in the possession of the accused does not embody a correct appreciation of the law as regards possession.
A 'seizure ' under the authority of law does not involve a deprivation of possession and not merely of custody and so when the police officer seized the goods, the accused lost possession which vested in the police.
When that possession is transferred, by virtue of the provisions contained in section 180 to the Customs authorities, there is no fresh seizure under the .
It would, therefore, follow that, having regard to the circumstances in which the gold came into the possession of the Customs authorities, the terms of section 178A which requires a seizure under the Act were not satisfied and consequently that provision cannot be availed of to throw the burden of proving that the gold was not smuggled, on the accused.
Through the learned Magistrate held that section 178A applied to the case, he also entered into an elaborate discussion of the positive evidence in the case, so that it is not quite clear whether he would 374 have reached the same conclusion, viz., that the gold was smuggled, even without reference to the rule as to onus enacted by that section.
When the matter was before the learned Sessions Judge he first held that section 178A of the Customs Act did apply to the case before him but proceeded also to deal with the case on an alternative footing that the provisions of section 178A were not applicable to the case and set out the circumstances which led him to that conclusion.
The learned Single Judge who heard the revision in the High Court, however, dealt with the case solely on the footing that section 178A was applicable.
The constitutional validity of that section was challenged before the High Court and figured prominently in the grounds of appeal to this Court but this point has been decided against the appellants by this Court and is therefore no longer a live issue.
If, as we have pointed out earlier, the delivery to the Customs authorities under section 180 is not a seizure under the Act within section 178A it would follow that the judgment of the High Court cannot be upheld for it has proceeded on the sole basis of the provisions of that section being attracted.
We have already pointed out that the learned Sessions Judge had upheld the conviction of the appellants by an independent finding that the prosecution had positively established that the goods were smuggled and that the accused had knowingly done the acts referred to in section 167(81) with which they were charged.
This part of the case of the prosecution has not been considered by the learned Judge in the High Court and this would have to be done before the revision petition of the appellants could properly be disposed of.
The appeal is accordingly allowed and the order of the High Court set aside.
The case will be remitted to the High Court for the revision petition of the appellants being disposed of in the light of this judgment and in accordance with law.

summary:
On receipt of information that some smugglers were transporting gold from Amritsar into Jullundur, the police made a raid of the house of the first appellant in Jullundur and in the course of the search certain bars of gold were found on the person of some of the inmates of the house and in the house itself.
The gold found was seized by the police and the appellants were prosecuted on a charge of receiving stolen property.
The case however was not proceeded with and, in the meantime, the customs authorities contacted the police and on the order of the Magistrate on an application under section 180 of the , made by them the gold bars were delivered to them.
Proceedings were taken by the Collector of Customs for confiscation of the gold under section 167 (8) of the Act, and the appellants were prosecuted for an offence under section 167 (81) of the Act on the ground that the gold was smuggled and that the appellants, did the acts specified in that section knowing that the gold was of that character.
The Magistrate took the view that section 178A of the Act was applicable to the case so that the burden of proving that the gold was not smuggled could be laid on the appellants.
The question was whether the possession obtained by the customs authorities under section 180 of the Act was such that the goods could be treated as that seized under the Act within the meaning of section 178A of the Act. ^ Held, that the taking possession of the goods by the customs authorities when they were delivered to them under section 180 of the , did not amount to a seizure under the Act within the meaning of section 178A of the Act.
A seizure under the authority of law involved a deprivation of possession and when the police seized the goods the appellants lost possession which vested in the police so 365 that when the possession was transferred to the customs authorities by virtue of the provisions in section 180 there was no fresh seizure under the Act.
Accordingly, section 178 was not applicable to the case.
The term "seized" in section 178A means "taken possession of contrary to the wishes of the owner of property".