judgement:
Civil Appeal No. 368 of 1969.
Appeal by Special Leave from the Judgment and Order dated 10 7 1968 of the Patna High Court in Appeal from Appellate Decree No. 343 of 1964.
Sarjoo Prasad, D. N. Mukherjee and section N. Misra for the Appellant.
L. N. Sinha and D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
The chequered history of the litigation culminating in this appeal by special leave by the original plaintiff spreads over a period of 70 years with no end in sight.
To ascertain and dispose of the point raised in this appeal willy nilly the history of the litigation, as briefly as one can humanly try, will have to be set out.
One Tikait Fateh Narain Singh was the holder of an estate comprising Taluka Chakai within the revenue limits of which the lands involved in this litigation are situated.
On the death of Tikait Fateh Narain Singh the estate devolved on his widow Mussamat Durga Kumari, she having widow 's interest as per the prevalent Hindu law at the relevant time.
Durga Kumari sold the entire estate includ 9 ing Taluka Chakai to Maharaja of Gidhaur.
After her death one Tikait Chandi Prasad claiming to be the next reversioner of Tikait Fateh Narain Singh brought an action on 15th May, 1907 being Title Suit No. 86/1908 against the Maharaja of Gidhaur for setting aside the alienation on the ground that the alienation was made by a widow having life estate and being without legal necessity, it was not binding on the reversioner.
This litigation culminated in a decree in favour of Tikait Chandi Prasad by the Privy Council on 2nd November, 1915.
However, Tikait Chandi Prasad had succeeded in obtaining possession of Taluka Chakai somewhere in 1911 before the Privy Council finally ruled in his favour.
Soon after commencing the suit hereinbefore mentioned, Tikait Chandi Prasad felt stringency of funds necessary for fighting the litigation and he mortgaged the proprietary interest in the estate which he was claiming as reversioner, with one Mr. Chrestian for Rs. 30,000/ Even after the decision of the Privy Council in his favour, Tikait Chandi Prasad failed to discharge the mortgage with the result that Mr. Chrestian brought Title Suit No. 150/21 to recover the mortgage dues.
This suit ended in a final decree on 17th November, 1923.
Mr. Chrestian took out execution of the final decree in Execution Petition No. 207/25 and at the Court auction Mr. Chrestian himself purchased the proprietary interest in Chakai Taluka on 16th June, 1931 and then took delivery of the estate through the Court in 1934.
Before Mr. Chrestian commenced his action in Title Suit No. 150/21, one Pitamber Rai, the ancestor of the defendants (present respondents) had filed a Money Suit No. 22/1919 against Tikait Chandi Prasad for recovering dues from him and this suit ended in a money decree.
Execution Case No. 22/21 was commenced by Pitamber Rai for sale of the lands involved in the present appeal and he himself purchased the same at a Court auction along with some other lands included in Khata Nos. 140 and 146.
After the sale was confirmed Pitamber Rai obtained delivery of possession on 10th October, 1924.
A petition by judgment debtor Tikait Chandi Prasad for setting aside Court sale under Order 21, Rule 90, Code of Civil Procedure, did not meet with success.
On 18th April, 1943 Mr. Chrestian sold his proprietary interest in Chakai Taluka to Rai Bahadur section K. Sahana, the plaintiff in the present litigation and he claimed to have obtained possession of the lands purchased by him.
The plaintiff filed Title Suit No. 15/46 against the respondents defendants for recovery of possession of the suit lands alleging that 10 the suit lands were proprietor 's private lands and were in actual cultivating possession of Tikaits from time immemmorial.
Alternatively it was the plaintiff 's case that even if it be held that Tikait Chandi Prasad had occupancy ryoti rights over the suit lands, the same had merged with his proprietary rights and, therefore, the character of the land would be bakast lands of the proprietor and the defendants respondents would have no vestige of title for continuing in possession and they would be trespassers.
This suit was dismissed by the trial Court and the first appeal by the plaintiff to the High Court failed.
What is historically relevant for the present litigation is that the High Court held in its judgment dated 23rd September, 1952 in First Appeal No. 355/47 that the defendants (present respondents) or their ancestors had not acquired any ryoti interest with right of occupancy nor they had the status of tenure holders and they were mere tenants at will by virtue of rent receipt granted by Mr. Chrestian.
Having so ascertained the character of possession of the respondents in respect of the suit lands, the High Court further proceeded to hold that the suit of the plaintiff was not maintainable because even tenant at will cannot be ejected without determining the tenancy in accordance with law.
In other words, they were entitled to notice and no such notice was shown to have been served.
Thus ended the first round of litigation started by the purchaser against the present respondents.
Taking cue from the judgment of the High Court, the plaintiff served notice to quit on the defendants and commenced an action in ejectment in Title Suit No. 60/53.
During the pendency of the suit the plaintiff died and his legal representatives were substituted and they continued the suit.
The defendants contested the suit, inter alia, on the ground that on the issue of a notification dated 12th April, 1953 published in the Government Gazette dated 14th May, 1953 under section 3 of the Bihar Land Reforms Act, 1950, ( 'Act ' for short), the estate of the plaintiff had vested in the State and, therefore, the plaintiff was not entitled to evict the defendants.
The trial Court negatived the contention of the defendants holding that they were not occupancy tenants of the suit lands as alleged by them but they were mere tenants at will as held by the High Court in the earlier round of litigation and their tenancy having been properly terminated by a notice to quit, the plaintiff was held entitled to a decree for possession.
Issue No. 3 framed by the trial Court was whether the plaintiff had a right to file the suit for possession after vesting of the estate in the State ? The trial Court held that as the plaintiff had a right to take possession the land could be deemed to be in his khas possession within the meaning of section 6(1)(b) of the Act, and, therefore, plaintiff would be entitled to evict the defendants, the inter 11 vening vesting of the estate in the State would not abrogate plaintiff 's right to possession which accrued to him prior to the date of issue of the notification under section 3.
Defendants (present respondents) preferred Title Appeal No. 17/60 which was dismissed as the appellate Court substantially agreed with the findings of the trial Court.
Defendants preferred Second Appeal No. 343 of 1964 to the High Court of Patna.
The learned single Judge of the High Court was of the opinion that even if the defendants were in possession of the suit lands as tenants at will on the date of vesting of the estate, their possession of the suit land would not enure for the benefit of the intermediary (plaintiff) within the meaning of section 6 of the Act.
The High Court was also of the opinion that the right to take possession does not constitute khas possession within the meaning of section 6(1)(b) of the Act.
In accordance with these findings the High Court held that since the issue of notification under section 3 the estate of the plaintiff vested in the State and the plaintiff, therefore, cannot seek, to evict the defendants.
The High Court accordingly allowed the appeal of the defendants and dismissed the plaintiff 's suit for possession.
Hence the present appeal by the plaintiff.
Before the principal and the only contention canvassed on behalf of the appellants is examined in this case a brief reference to the relevant provisions of the Act would illumine the contours of the controversy.
The Act, as its long title shows, was enacted to provide for the transference to the State of the interests of proprietors and tenure holders in land etc.
and to provide for matters ancillary and incidental to such transference.
Section 3 provided for passing and becoming vested in the State, the estate or tenures of a proprietor or a tenure holder on the issuance of a notification.
Section 4 provides for the consequences of vesting of the tenure or an estate, one such consequence being that on issue of a notification under section 3 the estate or tenure including the interests of the proprietor or tenure holder not only in land but in building or part of a building used for various purposes set out therein shall vest absolutely in the State free from all encumbrances and such proprietor or tenure holder shall cease to have any interest in such estate or tenure, other than the interests expressly saved by or under the provisions of the Act.
One such specific provision saving the interest of the proprietor, relied upon by the plaintiff is section 6, the relevant portion of which reads as under: "6.
Certain other lands in 'khas ' possession of intermediaries to be retained by them on payment of rent as 12 'raiyates ' having occupancy rights (1) On and from the date of vesting, all lands used for agricultural or horticultural purposes, which were in 'khas ' possession of an intermediary on the date of such vesting, including: (a) (i) proprietor 's private lands let out under a lease for a term of years or under a lease from year to year, referred to in Sec.
116 of the Bihar Tenancy Act, 1885 (8 of 1885), (ii) landlord 's privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less, referred to in Sec.
43 of the Chota Nagpur Tenancy Act, 1908 (Ben.
Act 6 of 1908).
(b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lease of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and (c) land used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover 'khas ' possession thereof; shall subject to the provisions of Sec.
7A and 7B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a 'raiyat ' under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner".
There is no dispute that a notification dated 12th April, 1953 as contemplated by section 3 was published in the Government Gazette dated 14th May, 1953.
On the issue of the notification under section 3 the consequences as envisaged by section 4(1) ensued, namely, the estate of the plaintiff vested in the State.
Mr. Sarjoo Prasad, learned counsel who appeared for the appellant plaintiff, contended that the land involved in this appeal was used for agricultural purposes and was in khas possession of the plaintiff who was an intermediary on the date of vesting as understood in clause (b) of sub section
(1) of section 6 and, therefore, by the operation of 13 section 6 the land stood settled by the State with the plaintiff who was an intermediary and he would be entitled to retain possession and consequently the plaintiff would be entitled to a decree for possession.
Section 6 is an exception to section 4.
A notification under section 3 would have the effect of vesting the estate or tenure of a proprietor or a tenure holder in the State.
Consequently an estate or tenure including all interests of the proprietor or tenure holder as set out in section 4 shall with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure holder shall cease to have any interest in the estate or tenure other than the interest expressly saved by or under the Act and according to the plaintiff his interest was expressly saved as his case is covered by section 6(1).
Section 6(1) provides that all lands used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of vesting shall be deemed to be settled by the State with the intermediary and he shall be entitled to retain possession thereof and hold the same as a raiyat under the State having occupancy rights in respect of such lands subject to certain conditions specified in the section.
According to the plaintiff he was in khas possession (as the word is understood in the Act) of the suit lands used for agricultural purpose on the date of vesting and, therefore, under section 6 the lands are deemed to be settled by the State with him as intermediary and, therefore he is entitled to retain possession thereof.
The expression 'khas possession ' is defined in section 2(k) as under: "2. Definitions.
In this Act, unless there is anything repugnant in the subject or context (k) 'khas possession ' used with reference to the possession of a proprietor or tenure holder of any land used for agricultural or horticultural purposes means the possession of such proprietor or tenure holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock; Explanation "Land used for horticultural purposes" means lands used for the purpose of growing fruits, flowers or vegetables".
The contention is that as the respondents were tenants at will of the suit land as held by the High Court in the former litigation inter 14 partes, the plaintiff could evict them at his sweet will and, therefore, the plaintiff could be said to be in khas possession of the suit land within the meaning of the expression as understood in the Act and the plaintiff is entitled to evict the defendants.
It was said that the tenant at will has no certain or sure estate in the land which can be asserted against the landlord of such tenant at will and, therefore, the landlord can be said to be in khas possession of the land even if it be in actual possession of the tenant at will.
Woodfall on "Landlord and Tenant", 27th Edn., Vol.
I, p. 279, says: "A tenancy at will is where lands or tenements are let by one man to another, to hold at the will of the lessor; in this case the lessee is called tenant at will, because he has no certain or sure estate for the lessor may put him out at any time he pleases.
Either party may at any time determine a strict tenancy at will, although expressed to be held at the will of the lessor only, and the landlord may determine it by a demand of possession or otherwise without a previous formal notice".
At p. 30 it is observed that a tenant at will cannot demise, for that would amount to a determination of his estate at will; but a purported demise, with possession thereunder, will create a tenancy by estoppel as between him and his lessee, and will be good as against himself.
It was said that if such be the position of a tenant at will, the case would fall within the latter part of the definition of khas possession which provides that if landlord is cultivating such land himself with his own stock or by his own servants or by hired labour or with hired stock, such cultivation would constitute khas possession of the landlord.
An identical expression is used in section 6(1)(b) which provides that lands used for agricultural or horticultural purposes and held in direct possession of a temporary lease of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock would be deemed to be in khas possession of the intermediary.
It was, therefore, said that there is no marked or noticeable difference between a tenant at will who can be evicted by mere demand of possession and cannot resist the demand for possession, and a hired servant or a hired labourer or a man made to work by hired stock.
It was said that if in latter case the statute considers the land to be in khas possession of proprietor a fortiori, in the former case as well it must be treated in khas possession of intermediary or proprietor.
Mr. Sarjoo Prasad said that khas possession within the meaning of section 6 comprehends within its ambit the right 15 to take possession.
In other words, it was said that if on the date of vesting in respect of land used for agricultural purpose the intermediary had a right to take possession from a person who could not resist an action for possession, for the purpose of section 6 the intermediary would be deemed to be in khas possession of the land.
The substantial point, therefore, which needs examination is: What constitutes khas possession within the meaning of section 6 ? That necessitates examination of the position of a tenant at will vis a vis landlord, and even if it is held that a tenant at will has no sure estate or interest in the lease which can be set up against his landlord, whether his actual possession enures for the benefit of the landlord who should be said to be in khas possession through his tenant at will for the purpose of section 6(1).
The question is whether khas possession within the meaning of the expression in the Act and especially section 6 thereof, takes within its sweep the right to take possession without any hindrance.
The proposition canvassed on behalf of the plaintiff may be first examined on principle.
If a tenant at will actually cultivating agricultural land could be evicted by the landlord by merely demanding possession from him, does it imply that for all purposes the landlord himself is in possession? This stands negatived by a decision inter partes.
In the former suit filed by the plaintiff for possession the High Court after holding that the defendants were tenants at, will, declined to pass a decree for eviction holding that even tenant at will is entitled to a reasonable notice and in the absence of notice the plaintiff would not be entitled to a decree for actual possession.
The High Court has thus recognised some right in the tenant at will which can be set up against the landlord who seeks to evict him.
The judgment of the High Court in the former litigation concluded as under: "For all the reasons which I have given I am forced to the conclusion that the interest of the Roys (respondents here in) in the suit property is that of tenants at will holding from year to year, whose tenancy can only be terminated by due notice".
(Reuben, J.) The other learned member of the Bench concluded as under: "I, therefore, agree with my Lord the Chief Justice that the defendants could not be evicted from the disputed lands in the absence of a due notice to quit ending with the expiry of an agricultural year".
The decision of the High Court is not open to question at the instance of the plaintiff.
The position concluded against the plaintiff 16 is that the defendants were tenants at will of agricultural land and they were holding from year to year and, therefore, they could be evicted not only after termination of their tenancy by a notice to quit but such notice must expire with the agricultural year.
Even if it be held that section 106 of the Transfer of Property Act is not attracted, this being an agricultural lease, the fact remains that in respect of agricultural lease the notice to quit must expire with the end of agricultural year.
It would not be correct to say that some reasonable notice would be sufficient to terminate the tenancy.
The notice has to be one terminating the tenancy and the notice must expire with the end of the agricultural year.
It is not in dispute that the agricultural year in Bihar ends, depending upon the custom in the area, around September.
This becomes clear from the fact that the plaintiff has averred in the plaint that a notice dated 15th January 1953 terminating the tenancy of the defendants and calling upon them to surrender possession was served upon them and they were called upon to handover possession by 1st Aswin, 1361 F.S. corresponding to 24th September, 1963.
Once it is concluded inter partes that even a tenant at will of an agricultural land is entitled to notice in consonance with justice and reason, he cannot be thrown out at any period during the year but the notice must expire with the end of the agricultural year.
Any other approach would be unfair to the tenant at will.
If he is left at the sweet mercy of the landlord he can be thrown out just after he puts in all his labour and the crop is ready for harvesting.
A tenant under a lease of land used for agriculture would be entitled to a notice expiring with the end of agricultural year so that he may not be evicted after the crop is ready for harvesting and may not be exposed to unfair treatment at the hands of the landlord.
Thus, even if it is held that a tenant at will has no sure interest or estate, yet he is entitled to notice and he cannot be evicted without notice the duration of which would be dependant upon the nature of the lease.
In the case of an agricultural lease, the notice must expire with the end of agricultural year.
As a corollary it must follow that a tenant at will can hold out against his landlord if he is sought to be evicted without due process of law which would imply notice terminating tenancy, and can continue to remain in possession against the landlord till the termination of the lease by a proper legal notice.
In Halsbury 's Laws of England, 3rd Edn., Vol. 23, p. 507, it is stated as under: "A tenancy at will is determinable by either party on his expressly or impliedly intimating to the other his wish that the tenancy should be at an end.
Until the intimation is 17 thus given the tenant is lawfully in possession, and accordingly the landlord cannot recover the premises in an action for recovery of land without a previous demand of possession or other determination of the tenancy".
An attempt was made inviting us to re examine the position of a tenant at will vis a vis the landlord urging that no particular notice of any particular duration is necessary for evicting a tenant at will.
It was said that a tenant at will has no certain or sure estate for the lessor may put him out at any time he pleases (see quotation from Woodfall extracted above).
Reference was also made to Sudhir Kumar Majumdar & Ors.
vs Dhirendra Nath Biswas & Anr.(1) wherein a learned single Judge of the Calcutta High Court held that the service of a formal notice to quit is not necessary for the termination of the tenancy at will.
We find it difficult to subscribe to this view.
Apart from the fact that in the former litigation inter partes which concluded the earlier suit brought by the present appellant, being dismissed on the only ground that the respondents who were tenants at will could not be evicted as their tenancy was not terminated by a notice to quit expiring with end of agricultural year, we have already extracted above an observation from Halsbury 's Laws of England which also supports the view that notice terminating tenancy of a tenant at will is pre requisite before he can be evicted.
A tenant at will is nonetheless a tenant.
The concept of tenancy at will has reference to duration and interest in the land of which the tenant is a tenant at will.
He is not at the sweet will and mercy of the landlord.
The Division Bench which disposed of the appeal inter partes on the earlier occasion, after examining a large number of authorities came to the conclusion that a tenancy at will has to be determined by a reasonable notice to quit and we are in agreement with the view of the High Court and we are not persuaded to agree with the opinion expressed by the learned single Judge of the Calcutta High Court.
The view taken by the Division Bench of Patna High Court in F.A. No. 355 of 1947 between the parties to the present proceeding that a tenant at will of agricultural land cannot be evicted without a notice terminating the tenancy expiring with the end of agricultural year commends to us as laying down correct law.
It can thus demonstrably be established that a tenant at will is not holding possession on behalf of landlord but he has a vestige of title to it and holds on his own behalf and can set up his possession against the landlord till formality prescribed by law is undertaken by the land 18 lord and he is evicted by due process of law.
If a notice of a certain duration is necessary expiring with a certain event such as end of the agricultural year, till the end of the agricultural year the tenant, notwithstanding the fact that he is a tenant at will and under a notice to quit, will be able to hold on to his possession and keep the landlord at bay.
If such be the position of the landlord vis a vis his tenant at will, could the landlord be said to be in khas possession of the land when the tenant at will is in actual possession and holds out against the landlord and questions his right to be put in possession till a procedure prescribed by law is followed by the landlord? In this very case the landlord in his earlier litigation for obtaining actual possession from the tenant at will failed to obtain a decree against the tenant at will because the landlord had not followed the procedure prescribed by law, viz., a notice to quit and determination of the lease.
Could possession of such a tenant at will be said to be the possession on behalf of the landlord for the purpose of section 6(1)? A tenant at will is some one other than the landlord.
If a tenant at will is cultivating land used for agriculture, the agricultural operation carried on by the tenant cannot be said to be cultivation of the landlord himself, nor the stock of the tenant at will can be said to be a stock of the landlord, nor the tenant at will can be said to be servant of the landlord or hired labourer, or the stock of the tenant at will can be said to be the hired stock of the landlord.
When a servant or hired labourer is engaged or stock is hired the landlord has to pay such servant or hired labourer or for the hired stock.
When a tenant at will is carrying on agricultural operations he does it on his own and merely pays rent to the landlord.
The landlord does not pay the tenant at will for the agricultural operations nor for the stock employed by the tenant at will.
There is a marked, noticeable and understandable difference between a tenant at will vis a vis the landlord and a servant or hired labourer employed by the landlord.
Therefore, keeping in view the definition of the expression 'khas possession ' in s.2(k), a cultivation of land by tenant at will could not be said to be cultivation by the landlord by himself or by his servants or by hired labourer.
Accordingly, in such a situation the landlord could not be said to be in khas possession of the land in possession of the tenant at will who is in a position to hold out against the landlord unless his lease is determined in the manner prescribed by law.
Mr. Sarjoo Prasad, however, urged that the case would be covered by section 6(1) (b).
The requirements for attracting section 6(1) (b) are in pari materia with the definition of khas possession save and except that 19 if the land is held in direct possession of a temporary lessee of an estate or tenure and is cultivated by such lessee with his own stock or by his own servants or by hired stock or hired labour it shall be deemed to be in khas possession of the intermediary.
Section 6(1) (b) envisages a temporary lease of an estate or tenure by the intermediary and if such lessee is personally cultivating the land included in the estate or tenure then the land would be deemed to be in khas possession of the intermediary.
A tenant at will is not a temporary lessee of an estate or tenure.
An estate or tenure is a certain kind of interest in land.
It is such an element of interest in land which is described as estate or tenure and temporary lease of such an estate or tenure is envisaged by section 6(1) (b).
Such being not the case here, section 6(1) (b) would not be attracted.
Analysis of section 6 read with sections 3 and 4 along with the definition of expression 'khas possession ' in section 2(k) of the Act would on principle unquestionably show that the land in possession of a tenant at will cannot be said to be in khas possession of the intermediary for the purpose of section 6.
It was, however, contended by Mr. Sarjoo Prasad that khas possession in section 6(1) takes within its sweep right to take possession.
This position is no more res integra and is concluded by two decisions of this Court.
In Surajnath Ahir & Ors.
vs Prithinath Singh & Ors.,(1) it was contended that the expression 'khas possession ' in section 6(1) includes the subsisting title of possession as well.
Negativing this contention this Court held as under: "Reliance was placed by the High Court on the case reported as Brijnandan Singh vs Jamuna Prasad (AIR 1958 Pat.
589) for the construction put on the expression 'khas possession ' to include subsisting title to possession as well, and therefore for holding that any proprietor, whose right to get khas possession of the land is not barred by any provision of law, will have a right to recover possession and that the State of Bihar shall treat him as a raiyat with occupancy right and not as a trespasser.
We do not agree with this view when the definition of 'khas possession ' means the possession of a proprietor or tenure holder either by cultivating such land himself with his own stock or by his own servants or by hired labour or with hired stock.
The mere fact that a proprietor has a subsisting title to possession over certain land on the date of vesting would not make that land under his 'khas possession '.
20 This view was re asserted in Ram Ran Bijai Singh & Ors.
vs Behari Singh alias Bagandha Singh(1) wherein this Court held that this equation of right to possession as khas possession is not justified on principle or authority.
The word used in section 6 is not 'possession ' but it is qualified by the adjective 'khas possession ' its equivalent being 'actual possession ' as the word is understood in contra distinction to the word 'constructive possession '.
Frankly speaking, the law has still not provided clear and unambiguous definition of the jurisprudential concept of possession.
Number of angular approaches to the problem of possession can be referred to with confidence.
Here we are concerned with what is called 'khas possession ' in a statute for ushering agrarian reforms and, therefore, the purpose and object behind the legislation must inform the interpretative process.
The interpretation must tilt in favour of the actual cultivator, the tiller of the soil.
Dealing with this expression, this Court in Gurucharan Singh vs Kamla Singh & Ors.,(1) has observed as under: "There are, therefore, three requisites of possession.
First, there must be actual or potential physical control.
Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it.
Thirdly, the possibility and intention must be visible or evidence (sic) by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed;. ! In the end of all, however, the meaning of 'possession ' must depend on the context (ibid p. 153).
May be, in certain situations, possession may cover right to possess.
It is thus clear that in Anglo American jurisprudence also, possession is actual possession and in a limited set of cases, may include constructive possession, but when there is a bare right to possess bereft of any domination or factum of control, it will be a strange legal travesty to assert that an owner is in possession merely because he has a right to possess when a rival, in the teeth of owner 's opposition, is actually holding dominion and control over the land adversely, openly and continuously".
After thus observing this Court approved the ratio extracted above in Surajnath Ahir 's case (supra) as also the ratio in Ram Ran Bijai Singh 's case.
(supra) 21 It was, however, said that in both these cases the Court overlooked the fact that on redemption of a mortgage the mortgagee is bound to deliver possession of the mortgaged property to the mortgagor.
In both these cases the question was whether the tenant inducted by the mortgagee in possession who had no right to continue in possession beyond the redemption of the mortgage could be said to be holding possession on behalf of the mortgagor as the mortgagor had a right to evict him and the tenant had no right to continue in possession against the mortgagor.
It is true that ordinarily a mortgagee in possession is under a duty to surrender possession to the mortgagor on redemption of the mortgage.
A tenant inducted by the mortgagee, unless he is protected by some other law, could be evicted by the mortgagor on redemption of the mortgage.
The mortgagor may thus have a right to claim possession but once it is held that the right to recover possession cannot be equated with khas possession within the meaning of the expression used in the Act it would have made no difference in the ultimate decision of the Court even if the Court 's attention was drawn to the fact that on redemption the mortgagee is bound to deliver possession to the mortgagor.
Reliance was, however, placed on Sonawati & Ors.
vs Sri Ram & Anr.,(1) where in the context of the U.P. Zamindari Abolition & Land Reforms Act, 1951, and U.P. Land Reforms (Supplementary) Act, 1952, this Court examined the connotation of the expression 'cultivatory possession ' and held that a trespasser who has no right to be in possession by merely entering the land by force cannot be said to be in cultivatory possession within the meaning of the aforesaid law.
An observation in the context of a different scheme of law would not assist in analysing the concept of 'khas possession ' in the Act.
Further, a tenant at will enters possession with consent of landlord and till his tenancy is determined, he is in lawful possession and cannot be styled as a trespasser.
It thus becomes crystal clear that on 12th April, 1953 when the notification under section 3 was issued the respondents tenants at will were under a notice to quit which would expire on 24th September 1953.
Therefore, till 24th September, 1953 the respondents tenants at will were in actual and physical possession of the land and till that date could hold against the intermediary landlord.
It may be that when the notice to quit dated 15th January, 1953 was served the intermediary landlord may have a right to take possession but till 24th September, 1953 when notice would expire the respondents were in actual 22 possession and till then they could thwart any attempt of intermediary landlord to take actual possession.
Therefore, on the date of the vesting i.e. 12th April, 1953 the intermediary was not in khas possessions within the meaning of section 6(1) and when on that day his estate vested in the State he was not entitled to recover possession.
After the vesting of the estate in the State which event had occurred prior to the institution of the suit he could not maintain an action for eviction as he had no more subsisting interest in the estate, his interest having vested in the State.
Mr. Sarjoo Prasad contended that an application under Order 41, Rule 27, Code of Civil Procedure, was given seeking permission to lead additional evidence which, if permitted, would tend to establish that the land was already settled with the plaintiff intermediary by the State as envisaged by section 6 and, therefore it is no more open to the respondents to contend that the plaintiff intermediary was not entitled to the settlement of the land in his favour.
Mr. Lal Narain Sinha, learned counsel for the respondents countered this submission by saying that on the strength of decree of the trial Court such an order is obtained but the Court at this stage need not look into it because this Court should consider the rival contentions of the parties according to the facts and law as were available on the date of the suit.
Obviously, if the plaintiff appellant has obtained some settlement of land on the basis of a decree of the trial Court or the first appellate Court which became interlocutory in view of the appeal preferred to the High Court and then to this Court, it is not open to the plaintiff to take any advantage of such a settlement.
If this evidence is allowed to be admitted on record at this stage it might put the respondents at a disadvantage.
Nor can the validity of that settlement be determined in this suit.
Therefore, the rejection of this application is justified.
The appellants may seek relief in respect of the so called settlement in their favour as advised.
The last contention was that the appeal as a whole of the respondents should have been dismissed by the High Court in view of non compliance with the order made by the High Court on 8th March, 1967.
Entry 11 in the order sheet of Second Appeal 343/64 shows that three day 's time was granted by the Court to take steps for fresh service of notice of appeal on respondents 2, 4 and 8 11 failing which the Court directed that the appeal shall stand dismissed without further reference to Bench.
This order appears to have been made because the respondents who were appellants before the High Court appear not to have made energetic efforts to make the appeal ready by completing the service.
The next entry serial No. 12 dated 10th 23 August, 1967 reads that seven day 's final time was allowed to take steps to take out fresh notice as per the earlier order.
This entry is signed by the Deputy Registrar.
Entry 13 in sequence dated 19th August, 1967 reads that as order No. 12 which was final had not been carried out the matter be placed before the Bench for orders.
Entry 14 dated 23rd August 1967 signed by the same learned Judge who had made order entry 11 directs acceptance of talbana (process fee) and C (costs), if filed in the course of the day.
That order appears to have been carried out except with regard to respondents 11 and 4.
Again the Deputy Registrar granted seven day 's time.
On 12th December 1967 the Registrar made the order that the matter should be placed before the Bench.
There are some subsequent orders which are not very relevant.
Mr. Sarjoo Prasad urged that the order at entry 11 directed that if the direction therein made was not carried out the appeal would stand dismissed without further reference to the Bench and that the subsequent entry shows that the direction was not carried out, and it was urged that the appeal stood dismissed and, therefore, the appeal no more survived for consideration on merits.
We find no merit in this contention, firstly, because this contention was not taken before the High Court though it was available to the present appellants who were respondents before the High Court.
The contention could be said to have been abandoned and once it is abandoned it cannot be re agitated before this Court vide decision of this Court in Jayarama Reddy & Anr.
vs Revenue Divisional Officer & Land Acquisition Officer, Kurnool.(1) Apart from this, if the Court fixes time for doing a certain thing, the Court always retains the power to extend the time and the same learned judge of the High Court who made order at entry 11 extended the time as per order at entry 14.
Therefore, it cannot be said that the appeal stood dismissed.
Accordingly, there is no merit in this appeal and it fails and is dismissed with costs.
P.B.R. Appeal dismissed.

summary:
In a suit filed against the respondents (defendants), for recovery of possession of the suit lands, the appellants (plaintiffs) alleged that the suit lands were the proprietor 's private lands and were in their actual cultivating possession from time immemorial.
The trial court dismissed the suit.
Eventually, the High Court held that the defendants or their ancestors had not acquired any ryoti interest with right of occupancy; nor were they tenure holders but were mere tenants at will; and that the suit was not maintainable because even a tenant at will could not be ejected without being given notice to quit.
Thereupon the appellants gave notice to the defendants.
In the meantime, by virtue of a notification issued under section 3 of the Bihar Land Reforms Act 1950, the estate had vested in the State by reason of which the plaintiff was not entitled to evict the defendants.
On the question whether the plaintiff had a right to file a suit for possession after the vesting of the estate in the State, the trial court held that since the plaintiff had a right to take possession, the land could be deemed to be in his khas possession and, therefore, he would be entitled to evict the defendants notwithstanding the vesting of the estate in the State.
In appeal the High Court dismissed the plaintiff 's suit on the ground that the right to take possession did not constitute khas possession within the meaning of section 6(1)(b) of the Act.
In appeal to this Court it was contended on behalf of the appellant that khas possession within the meaning of section 6 comprehends the right to take possession and so the appellant was entitled to evict the respondents.
Dismissing the appeal, ^ HELD: (a) A combined reading of the definition of khas possession under section 2(k) and sections 3, 4 and 6 of the Act shows that the land in possession of a tenant at will cannot be said to be in khas possession of the intermediary for the purpose of section 6.
[19D] (b) A tenant at will is not holding possession on behalf of the landlord but he has a vestige of title to it and holds on his own behalf and can set up his possession against the landlord till the formality prescribed by law is undertaken 7 by the landlord and he is evicted by due process of law.
If a notice of a certain duration is necessary expiring with a certain event such as the end of the agricultural year, till the end of the agricultural year the tenant, notwithstanding the fact that he is a tenant at will and under a notice to quit will be able to hold on to his possession and keep the landlord at bay.
[17H] In the instant case, in the suit between the same parties to the present litigations, the High Court held that the defendants were tenants at will of agricultural land, that they were holding from year to year and that they could be evicted not only after termination of their tenancy by a notice to quit but such notice must expire with the agricultural year.
The notice to be issued to the tenant at will has to be a notice terminating the tenancy which must expire with the end of the agricultural year.
In Bihar the agricultural year expires in September.
Therefore, once it is concluded inter parties that even a tenant at will of an agricultural land is entitled to notice in consonance with justice and reason the tenant at will cannot be thrown out at any period during the year but the notice must expire with the end of the agricultural year.
Sudhir Kumar Majumdar & Ors.
vs Dhirendra Nath Biswas & Anr., , not approved.
(c) A tenanat at will is someone other than the landlord.
When he cultivates land used for agriculture, the agricultural operations cannot be said to be cultivation of the landlord himself.
When a tenant at will carries on agricultural operations, he does them on his own and merely pays rent to the landlord.
The landlord does not pay the tenant at will for the agricultural operations nor for the stock employed by the tenant at will.
Keeping in view the definition of 'khas possession ', cultivation of land by the tenant at will could not be said to be cultivation by the landlord, by himself or by his servants or by hired labourers.
In such a situation the landlord cannot be said to be in 'khas possession ' of the land in possession of the tenant at will.
[18A G] (d) The term 'possession ' used in section 6 is qualified by the adjective 'khas ' which means actual possession and is used in contra distinction to the word 'constructive ' possession.
The term 'khas ' possession, is used in a statute for ushering agrarian reforms and, therefore, the purpose and object behind the legislation must inform the interpretative process.
The interpretation must tilt in favour of the actual cultivator, the tiller of the soil.
[20 B C] 2.
When a notification under section 3 was issued the respondents tenant at will were under a notice to quit which was to expire on September 24, 1953.
Therefore, till September 24, 1953 the respondents tenants at will were in actual and physical possession of the land and till that date could hold against the intermediary landlord.
It may be that when the notice to quit dated January 5, 1953 was served the intermediary landlord might have the right to take possession but till September 24, 1953 when notice would expire, the respondents were in actual possession and till then they could thwart any attempt of intermediary landlord to take actual possession.
Therefore, on the date of the vesting i.e. April 12, 1953 the intermediary was not in 'khas possession ' within the meaning of section 6(1) and when on that day his estate vested in the State thereafter he was not entitled to recover possession.
After the vesting of the estate in the State, which event had occurred prior to the institution of the suit, he could not maintain an action for eviction as he had no more subsisting interest in the estate, his interest having vested in the State. 8 Surajnath Ahir & Ors.
vs Prithinath Singh & Ors. ; Ram Ran Bijai Singh & Ors.
vs Behari Singh alias Bagandha Singh ; Gurucharan Singh vs Kamla Singh & Ors.
; at 752 753; and Sonawati & Ors.
vs Sri Ram & Anr.
[1968] 1 SCR 617; referred to.
The contention of the appellant that if his application under Order 41 rule 27 C.P.C. to lead additional evidence were allowed it would establish that the land was already settled with the intermediary by the State and that there fore it was no more open to the respondents to contend that the intermediary was not entitled to the settlement of the land in his favour has no force.
The rejection of the application is justified because if the evidence was allowed to be admitted on record at this stage it might put the respondents at a disadvantage.
If the plaintiff (appellant) had obtained some settlement of land on the basis of a decree of the trial Court or the first appellate Court which became interlocutory in view of the appeal preferred to the High Court and then to this Court, it is not open to the plaintiff to take any advantage of such settlement.
[22C F] 4.
If a contention which was available to a party had been abandoned in the High Court, it cannot be reagitated before this Court.
Jayarama Reddy & Anr.
vs Revenue Divisional Officer & Land Acquisition Officer, Kurnool ; referred to.
If a court fixes time to do a certain thing, the Court always retains the power to extend the time.


judgement:
Civil Appeal No. 5 of 1969.
126 From the Judgment and Order dated 20th June, 1968 of the Bombay High Court in Appeal No. 48/66.
K. Jayaram, Amicus Curiae for the Appellant.
Y. section Chitaley, M. V. Goswami and Ambrish Kumar for the Respondent.
The Judgment of the Court was delivered by UNTWALIA, J.
The plaintiff appellant filed a suit in the Trial Court in the year 1963 alleging certain unjustifiable and illegal actions on the part of his employer, the respondent in this appeal.
The reliefs claimed in the suit were the following: "(a) That it may be declared that the defendant has removed the plaintiff from service illegally and without any reason.
(b) That it may be declared that the defendant failed and neglected to re employ the plaintiff although the defendant restarted the factory.
(c) That the defendant be ordered to reinstate the plaintiff to his former job with due benefits and advantages.
(d) In the alternative the defendant may be ordered to pay to the plaintiff such compensation as to the Hon 'ble Court may deem fit.
(e) For costs of the suit.
(f) For such further and other reliefs as this Hon 'ble Court may deem fit.
" On contest by the respondent, the Trial Court held that the dispute raised by the appellant was in the nature of an industrial dispute and hence the Civil Court had to jurisdiction to try it.
The appellant took the matter in appeal before the First Appellate Court.
It allowed the appeal and held that the dispute raised was of a civil nature and the case was cognizable by a Civil Court.
The respondent filed the second appeal in the High Court and the High Court has agreed with the view of the Trial Court.
It has said that the appellant had not claimed damages by pleading wrongful dismissal and breach of the contract of his service.
The facts pleaded by him all converged to show that the dispute was an industrial dispute cognizable only by an industrial court and not by a Civil Court.
The appellant has presented his appeal in this Court by a certificate granted by the High Court.
127 The Court is obliged to Mr. K. Jayaram for assisting it as Amicus Curiae in this case.
After having appreciated the entire facts and the circumstances of the case, we are of the opinion that it is not quite correct to say that the suit filed by the appellant is not maintainable at all in a Civil Court.
The correct position of law is that the main reliefs asked for by him which when granted will amount to specific performance of the contract of service and therefore they cannot be granted.
There are a number of decisions of this Court to that effect; to wit Dr. section B. Dutt vs University of Delhi(1), section R. Tiwari vs District Board Agra & Anr.(2) and Indian Airlines Corporation vs Sukhdeo Rai.(3) Reference was also be made in this connection to the decision of this Court in Premier Automobiles Ltd. vs Kamlekar Shantaram Wadke of Bombay and Ors.(4) But then in the alternative, the appellant had also prayed for awarding compensation to him.
And reading the plaint as a whole, it can legitimately be culled out that he had made out a case, whether it was right on fact or not, that is a different question, that he was wrongfully dismissed from service.
This relief could be granted by the Civil Court if it found that the plaintiff 's case was true.
The High Court, in our opinion, is not right in saying that no such case had at all been made out in the plaint.
In our opinion, as we have earlier said, reading the plaint as a whole, such case can be spelt out.
That being so to this limited extent, the matter could be examined by the Civil Court.
We accordingly allow the appeal set aside the judgments of the courts below and send back the case to the Trial Court for disposing it of in accordance with law in the light of this judgment.
There will be no order as to costs.
Since the suit has become very old, the Trial Court is directed to dispose it of as expeditiously as possible.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant filed a suit against his employer, the respondent, for a declaration that he had been removed from service illegally and without any reason and that he should be reinstated in his former job with due benefits and advantages.
He also claimed compensation.
The trial court held that the dispute raised by the appellant was in the nature of an industrial dispute and that the civil court had no jurisdiction to try the same.
The First Appellate Court allowed the appeal and held that the dispute raised was of a civil nature and the case was cognizable by a civil court.
In the respondent 's second appeal, the High Court agreed with the view of the trial court and held that the appellant had not claimed damages by pleading wrongful dismissal and breach of the contract of his service and that the facts pleaded in the plaint showed that the dispute was an industrial dispute cognizable only by an industrial court and not by a civil court.
In the further appeal to this Court the point for consideration was whether on the facts pleaded by the appellant the dispute was an industrial dispute cognizable only by an industrial court and not by a civil court.
Allowing the appeal, ^ HELD:(1) It is not quite correct to say that the suit as filed by the appellant is not maintainable at all in a civil court.
The main reliefs asked for by the appellant which when granted will amount to specific performance of the contract of service and, therefore, they cannot be granted.
But the appellant in the alternative has also claimed for awarding compensation to him.
[127A C] (2) Reading the plaint as a whole, it can legitimately be culled out that the appellant had made out a case that he was wrongfully dismissed from service.
This relief could be granted by the civil court if it found that the plaintiff 's case was true.
The High Court was not right in saying that no such case had at all been made in the plaint.
To this limited extent the matter could be examined by the civil court.
[127D E] Dr. section B. Dutt vs University of Delhi, ; ; section R. Tewari vs Distt.
Board Agra & Anr., ; ; Indian Airlines Corp. vs Sukhdeo Rai, , Premier Automobiles Ltd. vs Kamlekar Shantaram Wadke of Bombay & Ors., ; ; referred to.


judgement:
Civil Appeal Nos.
2472 2473 of 1969.
From the Judgment and Decree dated 26 4 1966 of the Allahabad High Court in F.A.F.O. No. 447/61 and 476/60.
R. N. Sachthey, R. B. Datar, Girish Chandra and Miss A. Subhashini for the Appellant.
R. K. Garg for the Respondent.
The Order of the Court was delivered by UNTWALIA, J. These two appeals by certificate arise out of the same proceedings between the parties.
The respondent company applied to the Trial Court for the filing of the Arbitration agreement under Section 20 of the hereinafter called the Act and for appointment of an Arbitrator under Section 8.
The applications were allowed.
An Arbitrator was appointed.
The Union of India took the matter in appeals to the Allahabad High Court.
The High Court has dismissed the appeal arising out of the order of the Trial Court under Section 20 of the Act and has treated the appeal arising out of Section 8 order as a revision and dismissed the same also.
The Union of India has come to this Court.
129 The decisions of the courts below in regard to Section 20 matter is at an end now.
It was denied on behalf of the appellant that there was any Arbitration agreement.
The findings of the court below in this regard could not be assailed at all.
The Arbitration clause in the contract between the parties ran as follows: "All disputes or differences arising between the parties or their representatives and the Controller of Rationing Delhi at any time hereafter and of whatever nature arising out of or in respect of the contract shall be referred for arbitration to the Chief Commissioner/Director of Storage, Ministry of Food, Government of India, and his decision shall be final and binding.
" The post of Director of Storage, Ministry of Food, Government of India was abolished and no person holding that post was available for arbitration for the purpose of the arbitration clause aforesaid.
The Chief Commissioner, however, was available but he refused to act.
That led the respondent company to apply to the court under Section 8 of the Act for appointment of another Arbitrator.
The argument put forward on behalf of the appellant is that when there was a named Arbitrator even though he was named by office, it was not open to the court to supply the vacancy in his place under Section 8(1) (b) of the Act.
We did not find any substance in this argument.
The court had no power to supply the vacancy under Section 8(1) (b) only if the arbitration agreement did show that the parties did not intend to supply the vacancy.
If no such intention could be culled out from the arbitration clause, the court could supply the vacancy.
There is a direct decision of this Court ' in M/s. Prabhat General Agencies etc.
vs Union of India & Another.(1) Mr. R. B. Datar, counsel for the appellant placed the reliance upon the Full Bench Decision of Madras High Court in Badam Satayanarayanamurthi vs Badam Venkataramanamurthi & Ors.(2), in support of his submission that no other Arbitrator could be appointed by the court under Section 8 of the Act when the Arbitrator named in the agreement refused to act.
In our opinion while considering the provisions of Section 8(1) (b) of the Act, that decision is of no help to the appellant.
The full Bench decision was given with reference to the corresponding provisions of 130 law contained in Schedule II of Code of Civil Procedure, 1908 in paragraph 5 whereof the crucial words occurring in Section 8(1)(b) of the Act were not there.
The words in Section 8(1)(b) are these: "and arbitration agreement does not show that it was intended that the vacancy should not be supplied.
" For the reasons stated above, we hold that there is no merit in either of the two appeals.
They are accordingly dismissed with costs which we quantify at Rs. 1500/ .
S.R. Appeals dismissed.

summary:
HELD: 1.
The Court had no power to supply the vacancy under section 8(1) (b) of the only if the arbitration agreement did show that the parties did not intend to supply the vacancy.
The words in section 8(1) (b) are these: "and arbitration agreement does not show that it was intended that the vacancy should not be supplied".
If no such intention could be culled out from the arbitration clause, the Court could supply the vacancy.
[129 D E].
M/s. Prabhat General Agencies etc.
vs Union of India and Anr.
,[1971] 2 S.C.R. 564; affirmed.
Badam Satyanarayanamurthi vs Badam Venkataramanamurthi, A.I.R. 1948 Madras 312; distinguished.


judgement:
Civil Appeal No. 2021 of 1969.
Appeal by Special Leave from the Judgment and Order dated 15th January, 1969 of the Punjab and Haryana High Court in S.A. No. 905 of 1963.
123 R. K. Garg for the Appellants.
Hardev Singh for Respondent No. 1.
N. section Bindra and T. section Arora for Respondent No. 2.
The Judgment of the Court was delivered by UNTWALJA J.
This appeal arises out of an unfortunate litigation where the plaintiff appellant in this appeal has got to fail in this Court too on some technical grounds.
One Sardar Balwant Singh died on 10th March, 1955 leaving only three sons according to the case of appellants, namely, the two appellants and respondent No. 2.
Respondent No. 1 claimed to be a fourth son of Balwant Singh entitled to 1/4th share in the property left by him.
The appellants filed Suit No. 41 of 1958, in the Court of Sub Judge, Bassi.
The Civil Court on the objection of Respondent No. 1 framed a preliminary issue whether the said Court was competent to try the suit or was it a matter which could be decided only by the Settlement Commissioner.
By Order dated 7.7.1958 the learned Subordinate Judge decided that the Civil Court had no jurisdiction to try this suit and directed the return of the plaint for presentation to the proper Revenue Court.
When the appellants filed their claim in the Revenue Court their petition was returned holding that the Revenue Court had no jurisdiction to try it.
Thereupon the appellants instituted suit No. 13 of 1960 in the Court of Sub Judge, First Class, Bassi on 2 4 1960.
This suit has failed throughout on the ground of res judicata.
The High Court has affirmed the dismissal on the view that the decision dated 7 7 1958 given by the Civil Court in Suit No. 41 of 1958 on the point of Civil Court 's jurisdiction to try the suit will operate as res judicata.
In our opinion the High Court is right.
The learned counsel for the appellants submitted that the appellants were driven from pillar to post for the redress of their grievances.
When they instituted the suit in Civil Court, that Court held that it had no jurisdiction to try it.
When the suit was filed in the Revenue Court, the said Court took a contrary view.
Where could the appellants then go? We do sympathise with the appellants ' dilemma but they were wrongly advised to do as they did.
Either they ought to have followed the matter in the First Civil Suit and insisted up to the end that the suit was triable by a Civil Court, or, they would have taken the matter further before the higher authorities and Court from the order of the Revenue Court and persisted that the matter whether the Civil Court had jurisdiction to decide the dispute between the parties or not was res judicata; the Revenue Court had no jurisdiction to go behind the decision of the Civil Court.
The appellants did 124 neither.
It is unfortunate that due to the wrong paths which they followed under wrong advice they have ultimately to fail on the technical ground of res judicata but there is no way out.
It was pointed out by Lord Russell of Killowen, Upendra Nath Bose vs Lall and Others,(1) that there could be res judicata in regard to the question of lack of jurisdiction of the Civil Court to try a matter but "A Court which declines jurisdiction cannot bind the parties by its reasons for declining jurisdiction: such reasons are not decisions, and are certainly not decisions by a Court of competent jurisdiction." (vide page 225).
The above passage does not help the appellants, rather, goes against them.
Mr. Garg had also placed reliance upon a Single Judge decision of the Allahabad High Court in Jwala Debi vs Amir Singh, (2) wherein the Learned Judge observed at page 132: "Looked at closely, a question of jurisdiction, alongwith it may be raised by the defendant, is a question that virtually arises between the plaintiff and the Court itself.
The plaintiff invokes the jurisdiction of the Court.
The defendant may or may not appear.
If the Court finds that it has no jurisdiction to entertain the plaint, it will order the return of it for presentation to the proper Court.
The defendant, if he appears, and if he so chooses, may point out to the Court that it has no jurisdiction.
A decision on the question of jurisdiction does not affect in any way the status of the parties or the right of one party to obtain redress against the other.
The fact that a decision as to jurisdiction is not binding on the parties in a subsequent litigation will be apparent from this.
" We do not approve at all the views as expressed by the learned Single Judge of the Allahabad High Court.
If defendant does not appear and the Court on its own returns the plaint on the ground of lack of jurisdiction the order in a subsequent suit may not operate as res judicata but if the defendant appears and an issue is raised and decided then the decision on the question of jurisdiction will operate as res judicata in a subsequent suit although the reasons for its decisions may not be so.
For the reasons stated above we dismiss this appeal but direct the parties to bear their own costs throughout.
P.B.R. Appeal dismissed.

summary:
The appellants filed a suit in the court of a subordinate judge.
At the instance of respondent No. 1 (who was the defendant in the suit) an issue as to the jurisdiction of the court to try the suit was framed.
Holding that it had no jurisdiction to try the suit the civil court returned the plaint to the appellants for being presented to the proper revenue court.
The revenue court, on presentation of a petition by appellants, held that it had no jurisdiction to try it.
Thereupon the appellants again filed a suit in the court of subordinate judge.
The suit failed on the ground of res judicata.
On appeal the High Court upheld the view of the civil court.
On the question whether the decision of the subordinate judge on the preliminary issue operated as res judicata.
Dismissing the appeal, ^ HELD: If in a case, the defendant does not appear and the Court, on its own, returns the plaint on the ground of lack of jurisdiction, the order in a subsequent suit may not operate as res judicata; but if the defendant appears and an issue is raised and decided then the decision on the question of jurisdiction will operate as res judicata in a subsequent suit although the reasons for its decision may not be so.
[124G] In the instant case, in the first suit the appellants ought to have consisted that the suit was triable by civil court, or, they should have taken the matter before a higher Court in the revenue proceeding.
The appellants did neither.
The revenue court had no jurisdiction to go behind the decision of the civil court.
[123G] Upendra Nath Bose vs Lall & Ors., AIR 1940 P.C. 222; held inapplicable.
Jwala Debi vs Amir Singh, AIR 1929 All. 132; not approved.


judgement:
ON: Criminal Appeals No. 28 to 31 of 1955.
Appeals by special leave from the judgment and order dated the 11th February, 1953 of the Hyderabad High Court in Criminal Appeals Nos. 1260 to 1263 of 1951/1952 arising out of the judgment and order dated the 6th November, 1951 of the Court of the Sessions Judge at Warangal in Original Criminal Case No. 127 of 1950.
H. J. Umrigar, for appellant No. 1.
K. R. Choudhry, for appellants Nos. 2 to 4.
Porus A. Mehta and P. G. Gokhale, for the respondent.
March 14.
The Judgment of the Court was delivered by CHANDRASEKHEARA AIYAR J.
The four appellants and two others named Sheshaya and Pitchi Reddy, who are all communists, were charged with the murder of one Venkatakrishna Shastry who was a Congress worker or leader.
The appellants were convicted of the offence but the other two were acquitted by the Sessions Judge, Warangal, Hyderabad State, on the astounding ground that no overt acts were proved against them.
The appellants preferred appeals to the High Court at Hyderabad and there was the usual reference for confirmation of the death sentences imposed on them.
The appeals were heard by a Bench consisting of Deshpande J. and Dr. Mir Siadat Ali Khan J. and 249 they disagreed with each other.
Deshpande J. held that the evidence did not establish the guilt of the appellants and be acquitted them.
On the other band, Dr. Mir Siadat Ali Khan came to the conclusion that the prosecution had established its case beyond reasonable doubt.
He confirmed the convictions but reduced the sentences to imprisonment for life.
Owing to this difference of opinion, the matter was referred to a third Judge, Manohar Pershad J. and be agreed with the finding of guilty given by his learned bro ther Dr. Mir Siadat Ali Khan.
We granted special leave to the appellants to come before this court.
The facts of the occurrence, as alleged by the prosecution, are these.
On the evening of 19 1 1949, the deceased Venkatakrishna Shastry of the village of Maturpeta and five other persons, who were Congress workers like him, were returning to the village from a tank.
One of the communist leaders called Nagabhushan Rao had been arrested a month or two previously and the communist party believed that Venkatakrishna Shastry was responsible for the arrest.
So a large group of communists, about 25 or 30 in number including the accused, armed with guns and swords, paid a visit to Maturpeta to wreak vengeance against the Congress group led by Venkatakrishna Shastry.
They ran into the Congress group as they were getting back to the village after the evening stroll.
P.W. 14, a dhobi boy named Gopai was one of the camp followers of this communist group.
Venkatakrishna Shastry and his co workers were tied up with their own clothes and were led to the village chavadi over which a Congress flag was flying.
A rope was brought from the house of P. W. 17 and the members of the Congress group were tied with this rope and led some distance away from the village to a red gram field, and all of them were beaten by their enemies; except Shastry, the rest were driven away from the place.
Shastry was tied with the rope and taken in the eastern direction by Mangapaty (the dalam or troup leader) and the accused.
P. W. 14 was following the group carrying a bundle of their clothes on his head.
After a short halt at the village of 250 Suknevedu, where some food was taken, the party went towards a mango tope near a brook, four or five miles away leading Venkatakrishna Shastry as the captive.
The deceased, Gopai (P.W. 14) and some of the accused remained on the bank of the brooklet.
The others went a little beyond and one of them came back with orders that Venkatakrishna Shastry should be fetched.
Venkatakrishna Shastry was taken along and when the moon was at the meridian, the rope with which he was led was tied round the neck of the deceased into a noose.
Two of the accused pulled one end of the rope and two others at the other end in opposite directions.
Venkatakrishna Shastry was thus strangled to death.
A pit was dug and the body of Venkatakrishna Shastry was buried in the river bed.
P.W. 14 saw all this from a distance of twenty yards in clear moonlight.
Two or three days later, after some wanderings in the jungle and mountain dens P.W. 14 left the company of his masters who were implored by the boy 's father P.W. 7 to permit him to take the boy away.
Next morning a report was sent by P.W. 2 the police patel about the abduction of Venkatakrishna Shastry and investigation was begun.
On 8 2 1949, that is about twenty days after the occurrence, some bones of a human body were discovered in the riverbed as the result of crows and vultures hovering round the place.
The police Patwari (P.W. 10) sent a report about this discovery.
The police arrived on the scene and exhumed the body which was identified as that of Venkatakrishna Shastry.
This was on 9 2 1949.
It was sent for postmortem examination.
The condition in which the body was at the time of exhumation is stated in a panchnama that was then prepared.
The results of the postmortem examination are spoken to by the doctor P.W. 7.
Being the only witness for the commission of the crime, the dhobi boy (P.W. 14) was subjected to severe criticism by Mr. Umrigar who held the dock brief for the appellants.
He described him as an accomplice and as an unmitigated liar and he asked us not even to look at his evidence.
P.W. 14 does not satisfy the 251 definition of an accomplice; he falls somewhat short of the requirements which would confer on him this status.
According to the evidence, he left his parents ' roof after a quarrel with his father and while wandering in the jungles he was picked up by the communists only 3 days before and taken as their servant on promise to give him food.
His main duty appears to have been to go with the group carrying their bundles of clothes on his head.
It was in this capacity that he was not only able to see the abduction of the deceased but also to witness the actual murder.
He took no part whatever in the commission of the offence or in any active or passive preparations for the same.
He was not a particeps crimines.
After securing his release from his temporary masters, he went back with his father to the village.
It is true he did not divulge the secret of the murder to any one else except to his own father.
But who would, in view of the atrocities and terrorism that prevailed in that region during the relevant time? It required a very courageous man to have proclaimed the truth, needless of consequences to himself, And we cannot credit the dhobi boy with so much of fearlessness.
The learned counsel urged that if a man sees the perpetration of a crime and does not give information of it to anyone else, he might well be regarded in law as an accomplice and that he could be put in the dock with the actual criminals.
There is, however, no warrant for such an extreme proposition.
On the other hand, the following short passage from Russell on Crime, 10th Edition, page 1846, will show its untenability: "But a person may be present, and, if not aiding and abetting, be neither principal nor accessory; as, if A, happens to be present at a murder and takes no part in it, nor endeavours to prevent it, or to apprehend the murderer, this course of conduct will not of itself render him either principal or accessory".
Indeed, there can be no doubt that the evidence of a man like P.W. 14 should be scanned with much caution and we must be fully satisfied that he is a witness of truth, especially when no other person 252 was present at the time to see the murder.
Though he was not an accomplice, we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as it would be unsafe to hang four people on his sole testimony unless we feel convinced that he is speaking the truth.
Such corroboration need not, however, be on the question of the actual commission of the offence;, if this was the requirement, then we would have independent testimony on which to act and there would be no need to rely on the evidence of one whose position may, in this particular case, be said to be somewhat analogous to that of an accomplice, though not exactly the same.
What the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness.
In the leading case of Rex vs Baskerville(1) it was pointed by Lord Reading C.J. that "the corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.
The nature of the corroboration will depend on and vary according to the particular circumstances of each case.
What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.
Judged by this test, we can say that the evidence given by P.W. 14 has been amply corroborated.
It was not disputed for the appellants that there is abundant evidence consisting of the testimony of several witnesses in support of the truth of the narrative given by P.W. 14 regarding the abduction of the deceased.
This evidence was given not by mere onlookers but by men like P.Ws. 3, 4, 5, 6 and 9, who were with the deceased when the communist group came upon them and who were themselves badly beaten up by the gang before being released from, impending death at the merciful intervention of (1) [1916] 2 K.B.D. 658 253 some one of them.
They say that at the time of the release the accused retained the deceased with them and took him away in the direction of Mulgupad.
From this stage, P. W. 14 takes us to the river bank where the deceased and he were allowed to sit.
The accused went into the river bed and later on orders were issued by the appellant No. 1, the deceased was led by a rope from the bank by Muthyalu (4th appellant).
The rope was tied round the neck of the deceased into a noose and pulled in opposite directions by two of the accused on each side and Shastry was thus strangled to death.
His body was buried in a pit dug in the river bed.
The rope which was found round the neck of the dead body when it was exhumed is said to be the rope with which P.Ws. 3 to 6 and 9 were tied up and as the one that the members of the gang brought from the house of Silam Brahmareddi (P.W. 17) earlier that evening when the village was raided and the Congress workers were marched to the Congress flag.
There is also evidence that the party of the accused when they first encountered the party of the deceased asked who and where was Venkatakrishna Shastry.
The assailants, who were armed to the teeth, indulged in threats to kill all of them.
The deceased was a Congress leader and it is not surprising that he was singled out for terrific punishment, while the others were let off with a good thrashing and admonitions that they should give up their Congress affi liations.
It is but natural in the circumstances that they should take away the deceased to a distant place to do away with him.
That he was so led by the group of the accused is also corroborated by the evidence of Yesob (P.W. 12) who was watching his jawar crop on the night in question in a neighbouring field.
Let us now turn to the exhumation of the dead body, the inquest report, the postmortem certificate, and the evidence of the doctor (P. W. 7).
The patwari of Sakrivedu (P.W. 10) sent a report on the 8th February, 1949, that he had information that a dead body lay buried in the river bed.
The report has not 254 been filed but its purport about the condition of the body is given in the inquest report as unidentifiable.
Two police sub inspectors and some constables reached the river bed the same day and exhumed the body.
Its then condition is described in these words in the inquest report: "It was noticed that a rope of Chinna and Ambara was wrapped from neck to the waist.
Both hands were missing and out of the two legs one was attached to the body with little flesh.
The bones of the other separated leg (the down part of the knee) and the bones of one hand were found in the pit.
There were some hairs in the head.
The flesh of the face was rotten and decayed.
Teeth are safe and sound.
There is rotten flesh from the neck to the buttocks.
It appears that this dead body is of a Hindu Brahmin".
The panchnama is signed by two persons, one of whom HAS BEEN EXAMINED AS P.W. 16.
He, along with the witnesses who gave evidence as co sufferers with the deceased in the communist raid of that evening, have identified the body as that of Venkatakrishna Shastry.
The doctor 's postmortem certificate is exhibit 2 and according to it the body was petrified and even the marks of strangulation could not be detected; both the palms had been cut out, the left hand was severed completely; there was only the left eye in a rotten condition; the right eye was not found, the right ear was not there.
Examined as P.W. 7, the doctor has said that the face of the corpse could not be identified, as the scalp was eaten away by mud, and the bony structure of the face was present.
In the face of this evidence, the learned counsel for the appellants contended with much force that identification must have been impossible and that the witnesses who speak to the same should be disbelieved.
Two factors are,, however, overlooked in this argument.
Though the body was in an advanced state of decomposition and many parts of the limbs were missing and even the flesh in the face was gone, it would not have been difficult for close associates of 255 Venkatakrishna Shastry to say that it was his corpse, from the general features form, outline, contour build of the body, and the appearance of such of the limbs as were available to see.
His friend Madhusudhana Rao, P.W. 15, was working with the deceased for some years in the Congress office and knew him well indeed.
There is his evidence about identification.
More important still is the identification of the rope round the neck of the body, the dhoti with the violet border that was on its waist, and the janjam or the holy thread.
The rope was brought from the house of Brahma Reddy (P.W. 17).
It was the one which was tied in loops round each member of the Congress group as they were led from the village to the redgram field; it was the rope that was used to lead Venkatakrishna Shastry to the brooklet; and it was the rope that was found round the neck of the dead body when it was unearthed.
The bordered dhoti which was on the corpse belonged to Venkatakrishna Shastry.
From these external marks, and the general features, friends of the deceased like P.Ws. 3 to 6 and 9 and P.W. 17 in whose house Shastry was living could say, we think, that the body buried in the waist deep pit in the bed of the river was that of Venkatakrishna Shastry.
Whether he is regarded as an accomplice or as the sole witness of the offence P.W. 14 has been corroborated in such a manner that his evidence about the steps taken by the accused immediately prior to the perpetration of the murder carries conviction to our minds.
The connection of the accused with the crime must be held to have been made out.
We have also to accept that the dead body recovered was that of Venkatakrishna Shastry and no question of the absence of the body arises.
For this gruesome and revolting murder the appellants have got only imprisonment for life for which they must be thankful to the difference of opinion that arose among the learned Judges of the High Court.
The appeal fails and is dismissed.

summary:
There is no warrant for the extreme proposition that if a man sees the perpetration of a crime and does not give information of it to anyone else, he might well be regarded in law as an accomplice and that he could be put in the dock with the actual criminals.
A person may be present, and, if not aiding and abetting, be neither principal nor accessory; as, if A, happens to be present at a murder and takes no part in it, nor endeavours to prevent it, or to apprehend the murderer, this course of conduct will not of itself render him either principal or accessory.
Russell on Crime, 10th Edition, p. 1846, referred to.
33 248 In the matter of corroboration of the evidence of a single witness against the accused what the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness.
The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.
The nature of the corroboration will depend on and vary according to the particular circumstances of each case.
Rex vs Baskerville (1916) 2 K.B.D. 658, referred to.