judgement:
Appeal No. 399 of 1957.
Appeal from the judgment and decree dated July 27, 1954 of the High Court of Judicature at Hyderabad in Civil Appeals Nos.
I and 2 of 1954 55.
619 section T. Desai, C. Krishna Reddi, T. Ramachandra Rao and M. section K. Sastri, for the appellants.
Sadashiv Rao, J. B. Dadachanji and section N. Andley, for the respondent.
March 28.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal on a certificate granted by the former High Court of Hyderabad.
A suit was brought by the respondent in 1920 with respect to village Timmapet.
The case of the respondent was that the village had been granted to his ancestor Harinarayan alias Raja Nemiwant Bahadur by the Nizam in 1787.
On the death of Raja Harinarayan, the village was conferred by another sanad on his son Raja Govind Narayan in 1811.
Ever since then the village had continued in the possession of the descendants of Raja Govind Narayan.
In 1817, Raja Govind Narayan granted this village on Tahud (i.e., lease) to Raja Rama Krishna Rao, ancestor of the defendants.
Inam inquiries with respect to this village started in 1901 and then an objection was made on behalf of the appellants that the village had been granted to their ancestors by the Nizam and the respondent was only entitled to the pan mukta of the village and no more.
Pan mukta means a fixed sum which is payable in perpetuity for any land granted by the Ruler or the jagirdar to any person.
The respondent 's case further was that the lease money was being regularly paid, though some time before the suit there was some default.
The respondent had to file a suit to recover the lease money which was decreed and the decretal amount was recovered.
In 1917 disputes arose between the parties and consequently in 1918 the respondent asked the appellants to vacate the village.
They, however, refused to do so.
Thereupon the present suit was filed in 1920 and the respondent 's case was that the lease granted to the appellants was not a permanent lease and could only enure for the lifetime of the grantor and therefore the respondent was entitled to possession of the 620 village, particularly as the appellants had begun to assert a title adverse to the respondent.
The suit was resisted by the appellants, and their main defence was that the village had been granted as bilmakta with a fixed pan makta in their favour by the Nizam and therefore the respondent was only entitled to the fixed pan makta per year and could not claim to dispossess them from the village.
As an alternative, defence of limitation was also pleaded, though the written statement did not make it clear whether the bar of limitation was under article 142 or article 144 of the Limitation Act.
There were other defenses also with which we are however not concerned in the present appeal.
The trial court framed a large number of issues, which were answered in favour of the respondent and the suit was decreed and the plaintiff was held entitled to obtain possession of the village as well as to recover mesne profits at the rate of Rs. 931 12 0 0.
section per year.
On the two main defenses, the trial court held that the village had not been granted by the Nizam to the appellants as claimed by them and the appellants were liable to ejectment as they could not claim the rights of a permanent losses under the lease granted to their ancestor by the respondent 's ances tor.
Further on the question of limitation, the trial court held that the suit was not barred by article 142.
It does not appear that the case of adverse possession was put forward in the trial court.
There were two appeals to the High Court; one of them was by the appellants and the other by the respondent.
The respondent 's appeal was confined only to the rate of mesne profits while the appellants reiterated their two main contentions as to the nature of their right and limitation.
The appeals were heard by a Division Bench of the High Court, the Judges composing Which however differed.
Schri Ran, J., agreed with the trial court as to the nature of the rights of the 'respondent as well as on the question of limitation and was of the opinion that the appeal of the appellants should be dismissed.
It appears that in the High Court a plea 621 of adverse possession was also raised in the matter of limitation; but that plea was also negatived by Schripat Rau, J. Further Schripat Rau, J., was of the View that the appeal of the respondent should be allowed and the amount of mesne profits per year should be _ raised to Rs. 4,381 12 11.
The other learned Judge, Khalilulzaman Siddiqu, J., seems Lo have held in favour of the appellants both on the questions of title and adverse possession and was of the view that the suit should be dismissed in toto.
There was then a reference to a third learned Judge, Ansari, J. He agreed with Schripat Rau, J., on the questions of title and limitation; but as by the time he came to deliver judgment the Hyderabad (Abolition of Jagirs) Regulation, No. LXIX of 1358 F had come into force from 1951 and possession could not be granted to the respondent, Ansari, J., held that the respondent would be entitled to the compensation payable on the abolition of jagirs.
As Ansari, J., had per force to differ from Schripat Rau, J., as to the part of the relief to be granted to the respondent because of the abolition of jagirs, the case was referred to a Full Bench of three Judges in view of section 8 of the Hyderabad High Court Act.
The Full Bench held that as Ansari and Schripat Rau, JJ., were in agreement on the questions of title and limitation these matters did riot fall to be decided before them and would be concluded by the judgment of Ansari, J.
But on the nature of relief on which Ansari, J., per force had to differ from the view of Schripat Rau, J., the Full Bench upheld the view of Ansari, J. Thereafter the appellants applied for a certificate for leave to appeal to this Court, which was granted; and that is how the matter has come up before us.
Learned counsel for the appellants has urged only two points before us.
In the first place, lie submits that on the evidence it has been proved that the Nizam granted a bilmakta sanad to the appellants which included this village also and therefore the appellants were entitled to the possession of the village permanently subject only to the payment of pan 622 makta to the respondent.
In the second place, he submits that even if it be held that the Nizam did not grant a bilmakta sanad including this village, the appellants had perfected their title by adverse possession to the limited right of being permanent lessees under the respondent subject to payment of a fixed amount of rent per year.
The first question therefore that arises is whether the appellants ' case that this village is included in the bilmakta sanad granted to them by the Nizam and therefore by virtue of that sanad they are entitled to hold this village permanently subject only to the payment of a certain sum annually to the respondent, is proved.
It is now no longer in dispute that the village was granted in jagir to the ancestors of the respondent.
It is also not in dispute that in 1817 Raja Govind Narayan granted a kowl in favour of the appellants ' ancestor.
Under the terms of that kowl the village was granted on Tahud (lease) for the fixed sum of Rs. 1027 10 0 per year to the appellants ' ancestor.
No term is mentioned in the kowl as to its duration; but after reciting that the village had been granted on Tahud for a certain fixed amount annually, the kowl goes on to say that the grantee should with entire confidence rehabilitate old and new riots and pay the amount of Tabud annually as per fixed installments, in every crop season.
As one reads the kowl, on its plain terms it cannot be read to confer on the appellants ' ancestor a permanent lease on a fixed sum which was not liable to be varied at all.
But the appellants claim that they had been in uninterrupted possession since 1817 for over 100 years.
on the same rent when the suit was filed and this shows that the village must have been granted to them as a permanent lease.
We cannot accept this contention and the fact that the appellants and their ancestors have continued in possession over 100 years on the same rent would not make the kowl of 1817 a permanent, lease in the face of its plain terms.
The courts below were therefore right in the view that the kowl does not show a grant of a permanent lease on a fixed annual payment to the appellants.
623 The appellants however relied on what happened soon after the kowl was granted to them.
It appears that soon after 1817 the appellants ' ancestor made a vajab ul arz (i.e., application to the Nizam) with various prayers.
One of the prayers was for grant of bilmakta sanad.
This was obviously with respect to certain Government lands, which the ancestors of the appellants held.
In para 6 of the vajab ul arz it is said that "in these days your devotee has regularly paid Government dues and expects that he should receive sanads of bilmakta with the seal of Diwani".
In para 3 it is said that "from out of the Government Talukas whichever is entrusted on Tahud, your petitioner will pay the Tahud amount and will look after and improve the Taluka".
On a fair reading of the vajabul arz there can be little doubt that the ancestor of the appellants was praying that he should be granted a bilmakta sanad of lands held by him from the Government.
To this vajab ul arz was appended a list of villages which apparently the ancestor of the appellants hold.
This list contained 88 villages.
There is no difficulty about 85 of these villages which were apparently field by the ancestor of the appellants from the Government; but about three villages there was a special mention in the list.
These were:(1) Timmapet, Jagir Raja Nemivant, Makta of Zamindar of Sugur.
It may be mentioned that the ancestor of the appellants was the Zamindar of Sugur and that is how he prayed for a sanad of bilmakta; (2) the village Korotkal, attached to Jagir Bahrami, makta Zamindar Sugur; and (3) Palmur, including hamlet Gattalpalli.
These three villages were obviously not of the same kind as the other 85 villages.
Village Timmapet was in the jagir of the ancestor of the respondent and Could not therefore ordinarily be granted to the ancestor of the appellants.
Village Korotkal was an attached jagir which has handed over to one Bakhshi Ismail Khan while village Palmur had been granted to the ancestor of the appellants.
Village himself in lieu of seri.
Strictly speaking these three villages which stood apart should not have been included in the list of villages for which bilmakta 624 sanad was prayed for.
Anyhow the order of the Government on this vajab ul arz was that a sanad with seal of Niabat Diwani be granted.
The actual sanad which was granted by virtue of this order has not been strictly proved, though a copy of it appears in a judgment copy of which has been filed.
We do not therefore propose to refer to this copy.
It appears however that in 1880 a bilmkta sanad was again granted by the Nizam himself to the ancestor of the appellants on the death of the previous holder.
The amount of bilmakta (i.e., fixed annual payment) was fixed at Rs. 1,05,412.
This amount is made up of the revenue of 85 villages out of the 88 villages which were included in the list along with the vajab ul arz.
The remaining three villages which we have mentioned above, were also shown in the schedule to this sanad under the heading "Deduct 3 villages of separate Jagir".
The three villages under this heading are Timmapet, Korotkal and Palmur.
It is the meaning of these words under the heading of which these villages appear which; required interpretation in the present suit.
The contention of the respondent was that the heading showed that the bilmakta sanad granted by the Nizam excluded these villages, for the revenue of these villages amounting to Rs. 2,101 was not included in the bilmakta amount of Rs. 1,05,412.
It is further contended on behalf of the respondent that the, reason why these three villages were mentioned in this manner in the schedule attached to the bilmakta sanad was that the appellants ' ancestor had wrongly included these ' villages in his list filed with the vajab ul arz and ever, since then these villages were included in the schedule to the sanads but were always shown as deducted from the bilmakta.
We are of opinion that this contention of the respondent is correct and the courts below were right in accepting the respondent 's contention in this behalf.
The very fact that the revenue of these villages is not included in the bilmakta amount of Rs. 1,05,412 shows that they could not be part of the bilmakta grant by the Nizam.
We cannot accept the argument on behalf of the appellants that the revenue of these villages was 625 not included because the ancestor of the appellants had to pay the amount of this revenue in the case of Timmapet and Korotkal to the jagirdars and the revenue of Palmur was given to him free in seri.
The very fact that these three villages appear under the heading " 'deduct three villages of separate jagir" along with the fact that their revenue is not included in the bilmakta grant of Rs. 1,05,412 shows that they were not part of the bilmakta sanad.
It is true that they have been mentioned in the schedule, and strictly speaking they should not have been so mentioned there; but the reason for that in our opinion is that the appellants ' ancestor had included them in his list and they seem to have been put down in the schedule to the sanad from that list.
But the way in which they were put in the schedule to the sanad shows that they were not part of the sanad granted by the Nizam.
Our attention was also drawn to the Avarja said to have been prepared in 1836 in which also these three villages are included.
But Avarja is merely a paper in which a note of the sanads issued each day is mentioned.
The fact therefore that these; three villages were mentioned in the Avarja can be easily explained by the fact that they were mentioned in the sanads which were prepared from the list of villages supplied by the appellants ' ancestor along with his vajab ul arz.
The presence of these three villages in the Avarja would not establish that the villages were granted as bilmakta by the Nizam to the appellants ' ancestor, unless the sanads granted by the Nizam establish it.
We have already examined the sanad of 1880 which is on the record and have no difficulty in agreeing with the courts below that the bilmakta sanad excluded these villages and was only confined to the remaining villages for which the appellants ' ancestor paid Rs. 1,05,412 to the Nizam as the fixed annual amount.
It was urged on behalf of the appellants that the Nizam was an absolute Ruler and it Was open to him to take away any land from a jagirdar and grant it to any other person.
That is undoubtedly so; but even where an absolute Ruler takes away some land from 79 626 a jagirdar and gives it to another person, it seems to us clear that he would inform the jagirdar that he had taken away in whole or in part what he had granted to him and would also make it clear by proper words in the sanad granted to the other person that he was giving him the land taken away from the jagirdar.
In any case where the land was granted earlier to the jagirdar, there must be a clear indication in the sanad to another person that what had been granted to the jagirdar had been taken away and was being granted to this other person.
As we read the sanad of 1880 we find no clear indication in it that the village of Timmapet which was granted along with other villages as jagir to the respondent 's ancestor was being taken away at any rate in part and that in future the respondent 's ancestor would only be entitled to a fixed sum from the appellants ' ancestor with respect to this village and no more.
On the other hand, in the recital of the sanad unfortunately there is nothing clear for the words "etc.
" appear therein in more than one place as to the land granted.
We have therefore to turn to the schedule for whatever help we can get from it.
The schedule shows that these three villages were under the heading "deduct three villages of separate jagir".
From that the only inference can be that these three villages were not being included in the bilmakta sanad.
In any case we cannot infer from that the Nizam was intending to take away a part of the rights of the respondent 's ancestor in village Timmapet and confer them on the appellants ' ancestor.
Further there is nothing to show that the respondent 's ancestors were ever informed that the Nizam had taken away part of their rights in village Timmapet.
If anything, as late as 1918 village Timmapet along with others was conferred perpetually in favour of the respondent as zat jagir subject to the payment of 2 per centum of haq malkana.
At that time the appellants ' ancestor had raised some dispute about his right as bilmaktadar of Timmapet but that was left undecided.
On a review therefore of the evidence in this case the conclusion is inescapable that the appellants ' ancestor was never granted bilmakata sanad by the Nizam which 627 included the village of Timmapet.
Their rights in this village therefore depend entirely on the kowl of 1817, which, as we have already pointed out, did not confer a permanent lease.
The case of the appellants therefore based on their title on the sanads granted to them by the Nizam must fail.
We now turn to the question of limitation.
The case put forward before us in that connection is that the appellants have prescribed for the limited right of being permanent lessees of this land by adverse possession and the genesis of this is traced to what happened in 1875.
It appears that there was trouble between the then ancestors of the parties about this village about that time.
The ancestor of the respondent appears to have made an application to the Government and the Revenue Member had issued orders for delivery of possession of this village to him.
Thereupon the ancestor of the appellants made a representation to the Prime Minister against that order in which it was said that the ancestor of the respondent had conferred the said village on the ancestor of the appellants by way of bilmakta (i.e., on a fixed amount) more than eighty years ago and the ancestor of the appellants had been in possession all along and had been regularly paying the amount due; the ancestor of the appellants therefore prayed that the order of delivery of possession of the land to the respondent 's ancestor be set aside.
It is remarkable that in this representation the case put forward was that the village had been granted bilmakta,by the ancestor of the respondent to the appellants ' ancestor and not by the Nizam or the Government to the appellants ' ancestor.
However that may be, the Prime Minister ordered that as the ancestor of the appellants had been in possession for a long time, no order could be passed dispossessing him.
The ancestor of the res pondent then tried to get this order of the Prime Minister changed but failed and in consequence the appellants ' ancestor remained in possession thereof.
It is urged that this shows that the ancestor of the appellants asserted that he was entitled to possession as a permanent lessee against the respondent 's ancestor and this claim was resisted by the respondents 628 ancestor and the resistance failed.
Therefore it must be held that adverse possession of this limited kind was asserted to the knowledge of the respondent 's ancestor and in consequence twelve years after 1875 the adverse title would be perfected and article 144 would bar the present suit for ejectment.
There is no doubt that there can be adverse possession of a limited interest in property as well as of the full title as owner: see Sankaran vs Periasami(1); Thakore Fatehsingji Dipsangji vs Bamanji Ardeshir Dalal (2); and Shrimat Daivasikhamani Ponnambala Desikar vs Periayanan Chetti (9).
The present however is a case where the original kowl was granted by a jagirdar and the question arises whether in the case of a jagir there can be adverse possession of a limited interest in the nature of a permanent lease.
In that connection one has to look to the incidents of a jagir, and the first incident of a jagir is that it must be taken Prima facie as an estate granted, for life: Gulabdas Jugjivandas vs The Collector of Surat.
(4) In the present.
case also the indication is that the jagir that was granted to Raja Harinarayan in 1787, was for life, for we find that on the death of Raja Harinarayan a fresh sanad was granted to his son Raja Govind Narayan in 181 1.
Similar conclusion can be drawn from the fact that as late as 1880 a bilmakta sanad was granted to Raja Rameshwar Rao, an ancestor of the appellants on the death of his father in spite of certain sanads in favour of previous holders of bilmakta.
But the appellants contend that after 1811 no fresh sanads were granted to the descendants of Raja Govind Narayan and therefore it must be held that the jagir became hereditary and was not merely for the lifetime of the grantee after Raja Govind Narayan 's death.
There is no doubt that there are no sanads on the record which might have been granted to the descendants of Raja Govind Narayan; but there is equally no evidence on behalf of the appellants that no such sanads were in fact granted to the descendants of Raja Govind Nara yan, due to change in State Policy.
Reliance has been (1) Mad. 467.
(2) Bom.
(3) (1936) L.R. 63 I.A. Mad.
(4) (1878) L.R. 6 1.A. 54.
629 placed on behalf of the appellants on a publication of the Government of Hyderabad called "Jagir Administration", Vol.
I, at P. 3, where the following passage appears. "Zaot or personal grants were originally tenable for lifetime only.
If, however, the Sanad conferring such grant contains any words indicative of permanency the grant was treated as one in perpetuity.
Formerly on the death of the grantee, the Jagir was attached and re issued in favour of his eldest son by another Sanad.
" It is urged on the basis of this that the system of attachment of jagir and reissue of new sanads in favour of the eldest son fell into disuse in Hyderabad and therefore jagirs became hereditary.
In the first place this passage does not show when the system of attachment of jagir and re issue of another sanad came to an end.
In the second place, even this passage shows that jagirs were tenable only for life unless there was something in the terms of jagir grant to show that it was perpetual.
The jagir grant of Raja Govind Narayan is on the record and there is nothing in it to show that it was granted perpetually, Therefore, it must be held to be a grant for life time only; at any rate it is clear that the system of granting sanads on each succession was certainly in force when Raja Govind Narayan succeeded, for he was granted a fresh sanad.
In his case it must therefore be held that the jagir was granted to him only for life.
Reliance was also placed on Raje Vinaykrao Nemiwant Brahmin vs Raje Shriniwasrao Nemiwant Brahmin (1) where a letter of 1877 from the Government of India, Foreign Department,, is quoted as saying that "The Governor General in Council also accepts the view that these inams are held in accordance with the custom of the Hyderabad State, which permits the continuance of such jagheers to posterity, notwithstanding the absence of specific provision on the point, but at the same time reserves to the State the right of resuming such grants at pleasure.
" (1) I.L.R. 630 But even this letter shows that the State has got the right to resume the grant at pleasure and if that is so it cannot be said that the jagirs granted in Hyderabad were permanent and hereditary, though it may be that a son was allowed to succeed to " 'the father in the normal course.
The State however had always the right to resume the grant at pleasure.
The nature of jagirs in Hyderabad came to be considered by a bench of five judges of the former High Court of Hyderabad in Ahmad un Nissa Begum vs State ( ').
Ansari, J., after referring to two cases of the Privy Council of the former State of Hyderabad as it was before 1947 and certain firmans of the Ruler observed as follows as to the nature of jagirs in Hyderabad: "The cumulative effect of the authorities referred to above is that the jagir tenures in this State consisted of usufructuary rights in lands which were terminable on the death of each grantee, were inalienable during his life, the heirs of the deceased holder got the estate as fresh grantees and the right to confer the estate was vested in the Ruler and exercisable in his absolute discretion.
Nevertheless, the Jagirdars had during their lives valuable rights of managing their estates, enjoying the usufructs and other important privileges which conferred considerable monetary benefits on them." This view of Ansari, J., as to the nature of jagirdari tenure was accepted by the other learned Judges composing the Bench.
Therefore the mere fact that sanads granted to the successors of Raja Govind Narayan have not been produced in this case or even the fact that no such sanads were granted lo them would make no difference to the nature of the jagirdari tenure in Hyderabad.
It is only in 1918 for the first time that we know that this village along with other villages was conferred in perpetuity on the respon dent.
There is nothing to show that before that the respondent 's ancestors had permanent hereditary rights in the jagir.
The initial presumption therefore that jagirs are only for the lifetime of the grantee must prevail in the present case till we come to the sanad of 1918.
Therefore upto that time it must be (1) A.I.R. 1952 Hyd. 163, 167.
631 held that the jagirs were held by various ancestors of the respondent only for their lives.
In such a case where a grant is continued in a family from generation to generation and each grantee holds it for his life the limitation against any one grantee starts to run from the date his title arose.
This was recognized by the Privy Council in Jagdish Narayan vs Nawab Saeed Ahmed Khan (1), where it was observed that where each grantee holds an estate for his lifetime the limitation would start to run against an heir from the date when his title accrued on the death of the previous heir.
From the very fact that the grant of a jagir is only for the life time of the grantee and that his son when he gets the jagir gets a fresh grant, it follows that it was not open to a jagirdar to make an alienation which would enure beyond his lifetime and thus a jagirdar could not grant a permanent lease, unless he was specifically entitled to do so, under the sanad or the law of the State.
Similarly in such cases limitation would only run against an heir from the date when his title accrued on the death of the previous heir.
Consequently the appellants cannot take advantage of what happened in 1875 in the time of Raja Ramarao as the starting point of adverse possession against the respondent.
So far as the respondent is concerned, he apparently succeeded to the jagir in 1910 and in his case limitation would start from 1910.
The present suit was brought in 1920 and therefore so far as the respondent is concerned, there is no question of perfecting even the limited title by adverse possession as against him. ' Learned counsel for the appellant drew our attention in this connection to the case of Daivasikhamani (2), where the Privy Council held that the suits were barred under article 144 of the Limitation Act.
That was however a case where a permanent kowl of temple lands was granted by a manager.
It was held in view of certain facts proved in that case that the lessee had acquired permanent rights by adverse pos session, even though the manager of a temple has no authority, except in certain circumstances, to grant a permanent lease.
That case is in our opinion clearly (1) A.I.R. 1946 P.C. 59.
(2) (1935)) 1 [I.L. R 632 distinguishable from the facts of the present case.
It is true that the manager of a temple has generally speaking no authority except in certain circumstances to grant a permanent lease of temple property; there fore a permanent lease granted by the manager of a temple may be voidable but is not void ab initio and so unless it is avoided by the succeeding manager, it may not be rendered inoperative.
Further the temple in that case was the owner of the property and there was no question of any succession from father to son.
In the case of a jagir on the other hand, the holder for the time being is not the owner of the property; his son when he succeeds holds the property as a fresh grantee and not on the basis of hereditary succession.
A jagirdar has no right to make a permanent alienation of any part of the jagir granted to him; if he makes a permanent alienation even by way of permanent lease the same may be good in his lifetime, but it is void and inoperative after his death; the succeeding jagirdar need not avoid it; he can just ignore it as void.
Therefore, while it may be possible in the case of a permanent lease granted by a manager of a temple which is the owner of the property to prescribe for a limited permanent interest by adverse possession it would be impossible to do so in the case of a jagir, for the limitation in such a case would start to run against the heir from the date when his title accrues on the death of the previous heir and no advantage can be taken of any running of time against the previous holder of the jagir.
Besides, in the case of such temple grants, long lapse of time may sometimes give rise to the inference that the alienation was in such circumstances as would justify a permanent lease.
No such inference is however possible in the case of permanent leases granted by jagirdars.
In this view therefore the case of the appellants that they have prescribed for the limited interest of a permanent lessee against the respondent must fail.
The appeal therefore.
fails and is hereby dismissed with costs.
Appeal dismissed.

summary:
Although title to a limited interest in property can be acquired by adverse possession, no limited interest in the nature of a permanent lease can be ordinarily acquired in a jagir which must initially be presumed to enure for the life time of the grantee unless the grant itself shows otherwise.
Sankaran vs Periasami, Mad. 467, Thakore Fatehsingji Dipsangji vs Bamanji Ardeshir Dalal, Bom.
5I5, Shrimat Daivasikhamani Ponnambala Desikar vs Periayanan Chetti, (1936) L.R. 63 I.A. 261 and Gulabdas,Jugjivandas vs The Collector of Surat, (1878) L.R. 6 I A 54, referred to.
Although in the former State of Hyderabad a son might in normal course be allowed to succeed to the father 's jagir, it could not be said that jagirs granted by the State were therefore permanent and hereditary in character, for the State generally .had the right to resume the grant.
Raje Vinaykrao Nemiwant Brahmin vs Raje Shriniwasrao Nemiwant Brahmin, I.L.R. and Ahmad un Nissa Begum vs State, A.I.R. 1952 Hyd. 163, referred to.
Where, therefore, a grant was continued in a family from generation to generation, each grantee must be taken to hold it for his life and limitation against each must start from the date of his title.
Since a jagirdar could not grant a lease beyond his lifetime unless specifically empowered by the sanad or the law of the State, the period of adverse possession against one jagirdar could not be tacked to that against another for the purpose of article I44 Of the Indian Limitation Act.
In this respect a jagirdar stood on a different footing from that of the manager of a temple.
Jagdish Narayan vs Nawab Saeed Ahmed Khan, A.I.R. 1946 P.C. 59, referred to.
Shrimat Daivasikhamani Ponnambala Desikay vs Periyannan Chetti, (1936) L.R. 63 I.A. 26i, distinguished.


judgement:
minal Appeal No. 165 of 1960.
Appeal by special leave from the judgment and order dated December 19, 1958, of the Allahabad High Court in Criminal Appeal No. 1010 of 1956.
Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellants.
O. C. Mathur and C. P. Lal, for the respondent.
March 28.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
This appeal, by special leave, is by four persons against the order of the High Court of Judicature at Allahabad dismissing their appeal and confirming their conviction for several offences including one under section 302 read with section 149, I.P.C., by the Sessions Judge, Saharanpur.
603 These appellants, along with three other persons, were alleged to have forcibly taken two carts loaded with sugarcane from the field of Suraj Bhan through the field of Harphool, in transporting the sugarcane from the field, about a furlong and a half away, to the public passage running by the side of Harphool 's field, and to have beaten Harphool and others on Harphool 's protesting against the conduct of the appellants ' party at the damage caused to his wheat and gram crop.
Ram Chandar, one of the appellants, was armed with a hatchet (kulhari) and the others were armed with lathis.
Harphool and others who came to his help struck the appellants ' party also in self defence.
Harphool died as a result of the injuries received in this incident.
The appellants admitted their taking the carts through Harphool 's field and alleged that at Harphool 's protest they asked to be excused, promised not to take the carts through the fields in future and pleaded for the carts being allowed to cross the very small portion of the field which remained to be covered before reaching the public passage.
The accused state that in spite of all this meek conduct on their part, Harphool and his companions attacked them and that then they also struck Harphool and others in self defence.
Both the learned Sessions Judge and the learned Judges of the High Court arrived at concurrent findings of fact an& held that (i) there was no passage through or along the boundary of Harphool 's field; (ii) when the carts were near the passage and Harphool protested, the appellants ' party began the attack; and (iii) the appellants ' party had no right of private defence of person but had formed an unlawful assembly with the common object of committing criminal trespass over Harphool 's field and using force to the extent of causing death, if necessary, in case they were prevented from taking the carts through the fields.
They accordingly convicted the appellants of the various offences.
Mr. Sethi, learned counsel for the appellants, has raised four contentions: (i) Any right of private 604 defence of property which Harphool had against the offence of criminal trespass committed by the appellants ' party, had ceased when the criminal trespass was over or when the trespassers indicated their intention to cease the criminal trespass; (ii) If one of the rioters causes injury for which the other rioters are to be liable under section 149, I.P.C., the injury must have been caused in prosecution of the common object; (iii) An assembly ceases to be an unlawful assembly after the completion of its common object and only that member of the unlawful assembly would be liable for any criminal act committed later, who has actually committed it; and (iv) The learned Judges of the High Court misdirected themselves in raising certain inferences from the facts found.
It is clear, from the first three contentions raised, that they are all based on the supposition that the criminal trespass which the appellants ' party was committing had come to an end when Harphool is said to have prevented them from committing criminal trespass and that it was Harphool who began the attack.
There is no such finding recorded by the High Court.
The two carts had not left Harphool 's field and reached the public passage.
They were inside the field when the incident took place.
They were near the boundary of Harphool 's field.
They must, in, the circumstances, have been several yards inside the field.
Criminal trespass had not therefore come to an end and therefore Harphool had the right to prevent the appellants ' party from continuing to commit criminal trespass for whatever short distance they had still to cover before reaching the public pathway.
It is true that the appellants ' party had to get out of the field and that this they could not have done without committing further criminal trespass.
But it does not follow that this difficult position in which the party found itself gave them any right for insisting that they must continue the criminal trespass.
They had to abide by the directions of Harphool, whatever be the degree of patience required in case they were not allowed to move in any direction in order to leave the field.
If Harphool had started the attack in the 605 circumstances alleged by the appellants, there may have been some scope for saying that he acted unreasonably in taking recourse to force in preference to taking recourse to public authorities or to such action which a less obstinate person would have taken and had therefore lost any right of private defence of property against the offence of criminal trespass.
We are therefore of opinion that the three propositions of law which, as abstract propositions of law, are sound to some extent, do not arise in the present case.
The fourth contention is really directed against the view of the High Court that the common object of the appellants ' party was to force their way through the fields of Harphool and to use force to the extent of causing death, if necessary, and that the death of Harphool was caused in prosecution of that common object.
We do not agree with the contention.
It is clear from the site plan, and has been so held by the Courts below, that the appellants ' party could have taken their carts to the same public passage by going northwards from Suraj Bhan 's sugarcane field.
In so doing, they would have had to cover a shorter distance up to the public pathway and would have had the necessity to trespass through one field only, and that too, of one of their own community Sandal Rajput.
The other fields lying on the way were of Suraj Bhan himself.
Their choosing a longer route which made them take their carts through the fields of several Sainis including Harphool, could not be justified.
It must have been obvious to them that in so doing they would cause damage to the crops growing in the number of fields through which they would have to pass.
Such damage must give rise to protests by the persons to whom loss is caused.
It could be expected that some such persons might object to the passing of the carts and that unless they be prepared to cover back the distance to their own field, they would have to insist on proceeding through the objector 's field.
Such instances must lead to a clash and to the use of violence.
The objector is not expected to be prepared for such a conduct of the appellants ' party and therefore for using force.
606 The appellants ' party consisted of a number of persons one of whom was armed with a hatchet.
It is therefore not unreasonable to conclude that the appellants ' party was prepared to use force against such an objector to achieve their object of taking the carts to the public pathway by a short cut.
The northern route, previously mentioned, was certainly shorter to reach the public passage, but that route, along with the longer portion of the public passage to be covered before reaching the spot near which the incident took place, was longer than the westerly route through the field which the party had taken.
When several persons are armed with lathis and one of them is armed with a hatchet and are agreed to use these weapons in case they are thwarted in the achievement of their object, it is by no means incorrect to conclude that they were prepared to use violence in prosecution of their common object and that they knew that in the prosecution of such common object it was likely that some one may be so injured as to die as a result of those injuries.
Harphool did receive seven injuries one of which was an incised wound, bone deep, on the right side of the head.
Another injury consisted of a contused wound, bone deep, on the left side of the head.
Harphool died within twenty four hours of his receiving injuries.
The death was due to shock and hemorrhage caused by the injuries of the skull bone and brain on account of the wounds on the head.
The offence made out on account of the death of Harphool caused by the concerted acts of the members of the appellants ' party has been rightly held to be the offence of murder.
In view of what we have stated we do not see any force in this appeal.
It is accordingly dismissed.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellants one of whom was armed with hatchet and others with lathis, on being prevented by one 'H ' and his suppor ters through whose field they were committing criminal trespass with the common object to reach a public passage with two loaded carts, are alleged to have attacked 'H ' and his supporters, as 76 602 a result of which 'H ' died.
The defence was that on 'H 's protest the appellants asked to be excused and pleaded to be allowed to cross the remaining small portion of the field to reach the public passage, whereupon they were attacked and in self defence they attacked back.
The appellants ' case was that H 's right of private defence of the property had ceased for the reasons that the criminal trespass was over on the appellants having indicated their intention to do so, and they were no more an unlawful assembly as their common object had ceased and thereafter all were not responsible for acts of another.
Held, that when a criminal trespass had been committed it did not come to an end on the trespasser 's expressing regret and then pleading to be allowed to proceed further with a view to end such a trespass.
The aggrieved party had the right to prevent the trespasser from continuing to commit such further criminal trespass, and his directions had to be abided by the trespasser, whatever be the degree of patience required; the trespasser had no right to insist on proceeding further even if not allowed to move in any direction in order to leave the field.
Held, further, that when several persons were with lathis and one of them was armed with hatchet and were agreed to use these weapons in case they were thwarted in the achievement of their object, it would be concluded that they were prepared to use violence in prosecution of their common object and that they knew that in the prosecution of such common object it was likely that some one might be so injured as to die as a result of those injuries.


judgement:
ivil Appeal No. 34 of 1958.
Appeal by special leave from the order dated July 6, 1956, of the Calcutta High Court in appeal to the section C. No. 32 of 1955.
N. C. Chatterjee and D. N. Mukherjee, for the appellants.
Syamdas Bhattacharya and section N. Mukherjee, for the respondents.
March 29.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
The short question of law which arises in this appeal is whether the Calcutta High Court had jurisdiction to extend the time for 645 furnishing security for costs of the respondents under 0.
45, r. 7, of the Code of Civil Procedure.
The Calcutta High Court has held that it had no jurisdiction to extend time as prayed for by the appellants, and so the certificate already granted by it to the appellants to appeal to this Court against its own decree has been cancelled.
The order canceling the said certificate has given rise to this appeal by special leave; and so the only question which we are ca.
led upon to consider is one of construing 0.
45, r. 7, of the Code as well as 0.
XII, r. 3, of the Supreme Court Rules.
The relevant facts leading to the present controversy are not in dispute.
The appellants had instituted a suit (No. 73 of 1944) in the First Additional Court of the Subordinate Judge of 24 Parganas against the six respondents.
In this suit they claimed a declaration of title to the immovable property in question and prayed for recovery of possession of the said property together with mesne profits.
The learned trial judge decreed the suit on March 20, 1948.
Two appeals were then filed against the said decree by two sets of respondents (Appeals Nos. 111 of 1948 and 135 of 1948).
Of these two appeals Appeal No. 135 of 1948 was dismissed but Appeal No. III of 1948 was partly allowed and the decree passed in favour of the appellants granting possession and mesne profits to the appellants against respondent 3 was set aside.
Thereupon the appellants applied for and obtained a certificate from the Calcutta High Court to enable them to appeal to this Court.
The decree under appeal was one of reversal and the valuation of the subject matter of the dispute both in the trial court and in the intended appeal before this Court exceeded the statutory limit prescribed in that behalf and so the appellants 'were in fact entitled to a certificate under article 133 (1)(a) of the Constitution.
Accordingly a certificate was issued on May 18, 1956.
The last date for the deposit of the security amount of Rs. 2,500 and the printing cost of Rs. 1,184 was June 29, 1956.
According to the appellants owing to circumstances over which they had no control they could not deposit 646 he said two amounts on the due date.
Consequently in July 4, 1956, they filed an application before the High Court praying that the requisite amounts tendered by them be accepted after condoning the delay made by them in the payment of the said amounts.
This application was rejected on the ground that according to the uniform current of decisions in the said Court it had no jurisdiction to extend the time for depositing the amount of security.
It is against this order that the appellants have come to this Court by special leave.
O. 45, r. 7, of the Code occurs in the Chapter dealing with appeals to the Supreme Court, and it deals with the security and deposit which are required to be furnished and made on grant of certificate to a party intending to prefer an appeal to this Court.
0. 45, r. 7(l)(a), provides that where the certificate is granted the applicant shall, within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date, furnish security in cash or in Government Securities for the costs of the respondent.
The word "within ninety days or such further period not exceeding sixty days" which occur in the first part of the rule have been added by Act 26 of 1920 in substitution for the words "six months" which were originally enacted in the said rule.
It is common ground, and indeed it is not disputed, that prior to the amendment made in 1920 High Courts had jurisdiction to extend time for furnishing security for cogent and satisfactory reasons.
In Burjore and Bhawani Pershad vs Mussumat Bhagana (1) the Privy Council had held, agreeing with the view taken by the Full Bench of the Calcutta High Court that the words in section 602 of the Code of 1877 (Act X of 1877), in regard to extending time for giving security in appeal were directive only and there was jurisdiction in the High Court to grant extension of time for cogent reason.
In other words, the time of six months prescribed by the (1) [1883] L.R. 11 I.A. 7.
647 statute could not be departed from without cogent reason.
As a result of this decision under the provisions of 0.
45, r. 7, as they stood until the amending ' Act 26 of 1920 was passed, all the High Courts consistently exercised their jurisdiction in the matter of furnishing securities and extended time where they were satisfied that there was a proper and valid reason to do so.
The question which arises for our decision is whether by the amendment made in 1920 this position has been altered.
There can be no doubt that the object of the amendment was to expedite the final decision of the appeals which were taken before the Privy Council, and so the restrictive words have now been introduced whereby the period prescribed by the first part of the rule can.
not be extended beyond 150 days; but, does the use of these restrictive words indicate that there is no jurisdiction in the High Courts to extend the period for a sufficient cause ? Having regard to the fact that even before the amendment the period of six months had been indicated it seems somewhat difficult to hold that by restricting the period to 150 days by the use of the restrictive words the Legislature had intended to take away the preexisting jurisdiction of the High Courts to extend the period for a reasonable cause.
The jurisdiction to enlarge the period for a good cause shown could not have been intended to be taken away by implication merely by the use of the restrictive clause introduced in the amendment.
Besides, it is significant that even after the amendment there is no specific provision which provides for the effect of failure to comply with 0. 45, r. 7.
Rule 8 deals with cases where security has been furnished and deposit made, and it provides that on the security being furnished and deposit made the Court shall declare the appeal admitted, give notice thereof to the respondent, transmit to the Supreme Court the record, as therein provided, and give to either party one or more authenticated copies as specified.
There is no rule which prescribes the consequence of non compliance with the order made under r. 7.
Failure to make this provision is not without significance because r. 11 648 expressly provides for the effect of failure to comply with the order made under r. 10.
In other words, where the Court makes an order calling upon the appellant to furnish within a time to be fixed by it other and sufficient security, or to make within like time the required payment, and the appellant fails to comply with the said order, r. 11 expressly provides that on such failure of the appellant the proceeding shall be stayed and the appeal shall not proceed without an order in that behalf of the Supreme Court and in the meantime execution of the decree appealed from shall not be stayed.
It would thus be seen that where the Legislature intended that failure to comply with a specific order should lead to the consequence of a specific result it has made an appropriate provision in that behalf, and so failure to make any such provision in regard to the consequence of non compliance with the order made under r. 7 may suggest that the jurisdiction of the Court to extend time was not intended to be taken away.
Since it is open to the Court to extend time, the Legislature may have thought that it should be left to the discretion of the Court to decide whether the failure to comply with its order under r. 7 should be condoned and the period extended for furnishing security, or whether the default should not be condoned and the certificate should therefore be cancelled.
In our opinion, therefore, reading 0.
45, r. 7, as amended along with the other relevant provisions of the said Order it would be difficult to hold that the High Court has no jurisdiction to extend time for furnishing security under the said rule.
High Courts had jurisdiction to extend time prior to the amendment of 1920 and the amendment of 1920 has made no difference in that behalf.
There is another statutory provision which leads to the same conclusion, and that is 0.
XII, r. 3, of the Supreme Court Rules framed by this Court in exercise of its rule making powers under article 145 of the Constitution.
Rule 3 reads thus: "Where an appellant, having obtained a certificate from the High Court, fails to furnish the security or make the deposit required, that Court 649 may, on its own motion or on application in that behalf made by the respondent, cancel the certificate, and may give such directions as to the costs of the ' appeal and the security entered into by the appellant as it shall think fit or make such further or other order as the justice of the case requires.
" This rule corresponds exactly to r. 9 of the Privy Council Rules.
On a fair construction of this rule there appears to be no doubt that if a party having obtained a certificate from the High Court fails to furnish security or to make the required deposit it is open to the High Court to adopt either of two courses; it may cancel the certificate and may give directions as to the costs of the appeal and the security entered into by the appellant or it may make such further or other order as the justice of the case may require; and that clearly suggests that the High Court has jurisdiction to consider the question as to whether the justice of the case requires that the certificate already granted should not be cancelled and further time should be given to the party to furnish the security or to make the required deposit.
The last clause of r. 3 refers to such further or other order as the justice of the case requires, and that must necessarily mean an order other than, and different from, the order canceling the certificate.
It is true that the intention behind this rule might have been differently and better expressed but the object of the rule is plain and unambiguous and its construction presents no difficulty whatever.
Failure to furnish the security or to make the deposit in time does not inevitably and in every case lead to the cancellation of the certificate.
Despite the said failure some further or other order according to the justice of the case may still be passed by the Court in its discretion, and that, in our opinion, must mean an order condoning the default and granting further time to furnish the security or to make the required deposit.
If this be the true position about the effect of 0.
XII, r. 3, of the Supreme Court Rules it would follow that the High Courts would have jurisdiction to extend time for furnishing security even 82 650 if r. 7 of 0. 45 after its amendment in 1920 had taken away the said jurisdiction.
Section 112 of the Code expressly provides that nothing contained in the Code shall be deemed, inter alia, to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court or their conduct before that Court.
Therefore, if 0. xII, r. 3, expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security or to make the deposit in a, proper case that provision would not be interfered with by r. 7 of 0. 45.
That is how, apart from the provisions of r. 7 of 0. 45, we reach the conclusion that the Calcutta High Court had jurisdiction to extend time for furnishing the security in the present case.
However, as we have already held the amendment of r. 7 of O. 45 does not really take away the preexisting jurisdiction of the High Courts to extend time and so there is complete harmony between the said rule and 0.
XII, r. 3, of the Supreme Court Rules.
On this question there appears to be consensus of judicial opinion in the decisions of all the High Courts in India except the Calcutta High Court which for some years past has struck a note of dissent.
It is unnecessary to deal with a catena of decisions on which Mr. Chatterjee relied in support of his contentions.
It would be enough merely to mention them.
It appears that in some High Courts the present question was referred to a Full Bench and the decisions of the Full Bench have negatived the view which appears to have been taken by the Division Benches in the said High Courts on the earlier occasions that the High Courts had no jurisdiction to extend time (Vide: Nilkanth Balwant Natu & Ors.
V. Shri Satchidanand Vidya Narsinha Bharati & Ors.
(1) (Full Bench); Bishnath Singh & Ors.
vs Balwant Rao Naik Kalia & Ors.
(Full Bench); Gulam Hussain vs Mansurbeg & Ors.
(Full Bench); Lachmeshwar Prasad Shukul vs Girdhari Lal Chaudhuri (4) (Full Bench); Ghulam Rasul V. Ghulam Qutabud din (5) (Full Bench); Thota Pitchaiah (1) Bom.
(3) I.L.R. (2) I.L.R. [1939] All. 549.
(4) (1040) I.L.R. 19 Pat.
(5) Lah.
447. 651 & Or8. 'V. M. Vedanta Narasimhacharyulu & Ors.
(1) (Full Bench); and Ismail Piperdi vs Momin Bi Bi & Ors.
(2) (Full Bench).
Even in Calcutta it was held by the Calcutta High Court by a Full Bench in Roy Jotindranath Chowdhury & Ors.
vs Rai Prasanna Kumar Banerjee Bahadur & Ors.
(3) that the High Court had power to extend time as provided by section 602 of the Code for depositing the estimated cost of translating, transcribing, indexing and transmitting to the Privy Council the records of the case under appeal, but it was added that the Court should not extend time without some cogent reason.
In support of this conclusion the High Court relied upon the decision of the Privy Council in the case of Burjore and Bhawani Pershad (4).
The same view was expressed by the said High Court in Harendra Lal Choudhry vs Sm.
Hari Dasi Debei (5) where it was held that High Court had power to extend the time for depositing costs in Court but it ought not to do so without some cogent reasons.
In reaching this conclusion the Court followed its earlier decision in the case of Roy Jyotindranath Chowdhury (3).
It, however, appears that in Raj Kumar Govind Narayan Singh & Ors.
V. Shamlal Singh & Ors.(6) Chief Justice Rankin and Ghose, J., took a contrary view and held that there was no jurisdiction to extend time for furnishing the security under 0.
45, r. 7, as amended in 1920.
With respect, the question does not appear to have been fully argued before the Court, for the judgment does not discuss the question of construing the relevant provisions of 0. 45, r. 7 or of r. 9, of the Privy Council Rules, and indeed the earlier decisions of the Court on that point do not appear to have been cited either.
Even so, this decision was subsequently followed and that led to a consistent practice in the said High Court on which the learned judges have relied in rejecting the appellant 's application for extension of time in the present case.
In this connection it may be relevant.
to note that when this question was raised before the (1) I.L.R. [1956] Andhra 55.
(3) (5) (2) (4) (1883) L.R. 111 I. A. 7.
(6) 652 Calcutta High Court again in Akimuddin Chowdhury vs Fateh Chand Mahesri & Ors.
(1) Chief Justice Derbyshire was referred to the Full Bench decision of the Bombay High Court in Nilkanth Balwant Natu (2) in support of the argument that there was a jurisdiction to extend time for furnishing security, but he observed that though he had great respect for the said Full Bench decision there was a contrary decision of the Calcutta High Court in the case of Raj Kumar Govind Narayan Singh( ') and so he was bound to follow the said decision and conform to the practice prevailing in the Calcutta High Court.
In our opinion, the practice prevailing in the Calcutta High Court since the decision of Chief Justice Rankin in the case of Raj Kumar Govind Narayan Singh (3) is not justified either by the provisions of 0.
45, r. 7, of the Code or 0.
XII, r. 3, of the Supreme Court Rules.
We must accordingly hold that the High Court was in error in holding that it had no jurisdiction to entertain the application made by the appellants to extend time for furnishing the security.
On the view which it took the High Court naturally did not examine the merits of the appellants ' case that there were sufficient and cogent reasons for condoning the delay.
We would therefore allow the appeal, set aside the order passed by the High Court and remit the matter to that Court for disposal of the appellants ' application in accordance with law.
In the circumstances of this case there would be no order as to costs.
Appeal, allowed.
(1) [1939]44 C.W.N. 920.
(2) Bom.

summary:
On an application made by the appellant, the Calcutta High Court granted a certificate on May 18, 1956, enabling him to appeal to the Supreme Court against the judgment and decree of the High Court.
Under 0. 45, r. 7(1)(a), of the Code of Civil Procedure, 1908, the appellant had to deposit the security amount for costs of the respondent within ninety days or such further period, not exceeding sixty days, as the court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever was the later date.
Being unable to deposit 644 the amount on the due date, the appellant filed an application on July 4, 1956, before the High Court praying that the amount tendered by him be accepted after condoning the delay, but the High Court rejected it on the ground that according to the uniform current of decisions of that Court it had no jurisdiction to extend the time for depositing the amount.
Held, that reading 0.
45" r. 7, of the Code of Civil Procedure, 1908, along with the other relevant provisions Of the said Order, a High Court has jurisdiction to extend time for furnishing security under the rule, and that the decisions of the Calcutta High Court to the contrary are erroneous.
Order XII, r. 3, of the Supreme Court Rules, 1950, expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security in a proper case.
Raja Kumar Govind Narayan Singh and others vs Shamlal Singh and others, 1 and Akimuddin Chowdhury vs Fateh Chand Mahesri & others, , disap proved.
Roy Jyotindranath Chowdhury & Ors.
vs Rai Prasanna Kumar Banerjee Bahadur, (1906) 11 C.W.N. I 104, Harendra Lal Choudhry vs Sm.
Hari Dasi Debei, , Nilkanth Balwant Natu & Ors.
vs Shri Satchidanand Vidya Narsinha Bharati & Ors., Bom.
430, Bishnath Singh & Ors.
vs Balwant Rao Naik Kalia & Ors., I.L.R. [1939] All 549, Ismail Piperdi vs Momin BiBi & Ors, , Lachmeshway Prasad Shukul vs Girdhari Lal Choudhuri, Pat. 123, Ghulam Rasul vs Ghulam Qutabud din, (1942) I.L.R.23 Lah.447, Gulam Hussain vs Mansurbeg & Ors., I.L.R. and Thota Pitchaiah Andhra 55, approved.


judgement:
82 of 1959.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
519 section K. Kapur, Jai Gopal Chagnani, K. K. Jain and B. P. Maheshwari, for the petitioners.
C. K. Daphtary, Solicitor General of India, G. C. Kasliwal, Advocate General, Rajasthan and D. Gupta, ' for the respondent.
March 22.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This is a petition under article 32 of the Constitution.
The petitioners, who are seven in number, challenge as unconstitutional and ultra vires certain provisions of the Rajasthan Passengers and Goods Taxation Act, 1959, the Rajasthan Passengers and Goods Taxation Rules, 1959, and a notification issued under R. 8.
For brevity, we will refer to them in this judgment, as the Act, the Rules and the notification respectively.
The first petitioner is a registered firm, petitioners Nos. 2 to 6 are the partners of that firm, and petitioner No. 7 is the General Manager of the firm.
Petitioner No. 7 holds a public carrier permit for the whole of Rajasthan in his individual name.
The petitioners also hold 59 stage carriage permits from the Regional Transport Authority, Jodhpur, for diverse routes over roads which have different kinds of surfaces, some being sandy or katcha and others, metalled., tarred, etc.
The Act was passed in 1959 for levying a tax on passengers and goods carried by road in motor vehicles.
The power to enact the Act purports to be derived from Entry No. 56 of the State List in Sch.
VII to the Constitution, which reads: "156.
Taxes on goods and passengers carried by road or on inland waterways.
" The Act received the assent of the President on April 27, 19.59, and was published in the Rajasthan Gazette on April 30, 1959.
The same day, the Rules framed in exercise of the powers conferred by section 21 of the Act were also published, and the notification was also issued.
The Rules were subsequently amended, and we are concerned with the Rules, as amended.
Before we deal with the case further, it is convenient to see how the Act is constructed and what the 520 Rules and the notification provide.
The Act, which consists of 21, sections, came into force in the whole of the State of Rajasthan on May 1, 1959.
The Act contains the usual provisions to be found in all taxing statutes about appeals, revision, offences and penalties, power to compound offences, recovery of tax as arrears of land revenue, bar of proceedings, exclusion of the jurisdiction of Civil Courts, refunds and power to make rules, to which detailed reference need not be made. ' We are only concerned with the imposition of the tax and the mode of its recovery, and will refer to those provisions which are relevant.
Section 3 is the charging section, and section 4 deals with the method of collection of the tax.
Since these sections are the main subject of attack, we quote them in full: "3.
Levy of tax. (1) There ' shall be levied, charged and paid to the State Government, a tax on all fares and freights in respect of all passengers carried and goods transported by motor vehicles 'at such rate not exceeding one eighth of the value of the fare or freight, in the case of cemented, tarred, asphalted, metalled, gravel and kankar roads and not exceeding one twelfth of such value in other cases, as may be notified by the State Government from time to time subject to a minimum of one naya paisa in any one case, the amount of tax being calculated to the nearest nays paisa.
Explanation.
When passengers are carried and goods are transported by a motor vehicle, and no fare or freight has been charged, the tax shall be levied and paid as if such passengers were carried or goods transported at the normal rate prevalent on the route.
(2) Where any fare or freight charged is a lump sum paid by a person on account of a season ticket or as subscription or contribution for any privilege, right or facility which is combined.
with the right of such person being carried or his goods transported by a motor vehicle without any further payment or at a reduced charge, the tax shall be levied on the amount of such lump sum or on such amount as appears to the prescribed authority to be fair and 521 equitable having regard to the fare or freight fixed by a competent authority under the Motor Vehicles Act, 1939(Central Act 4 of 1939).
(3) Where passengers are carried or goods transported by a motor vehicle from any place outside the State to any place within the State, or from any place within the State to any place outside the State, the tax shall be payable in respect of the distance covered within the State at the rate laid down in sub section (1) and shall be calculated on such amount as distance covered in the State bears to the total distance of the journey: Provided that where passengers are carried or goods transported by a motor vehicle from any place within the State to any other place within the State through the intervening territory of another State, the tax shall be levied on the full amount of the fare or freight payable for the entire journey and the owner shall issue a single ticket or receipt, as the case may be, accordingly.
(4) Method of collection of tax.
The tax shall be collected by the owner of the motor vehicle and paid to the State Government in the prescribed manner: Provided that in case of public carriers the State Government may accept a lump sum in lieu of the tax chargeable on freight in the manner prescribed: Provided further that in case of contract carriages the State Government may accept a lump sum in lieu of the tax chargeable on fare in the manner prescribed.
" Section 5 lays down the method of levy, and enjoins the issuance of a ticket showing the tax paid of a receipt showing the freight charged and the tax paid.
It includes a proviso that in the case of passengers the tax becomes chargeable only on entry in the State, if the journey began outside the State.
Section 6 requires the owner to keep accounts and to submit periodic returns and provides for levy of penal ties in case of failure, which penalties are laid down in section 8.
Section 7 deals with the appointment of taxing authorities, and a. 12 gives the power of entry the 522 officers into vehicles, garages, and offices for inspection and checking.
Section 10 enjoins upon the owners the duty of furnishing tables of fares and freights, time tables,, etc.
Section 9 enables the State Government to grant to any person or class of persons,.
exemption from all or any of the provisions of the Act.
The Rules prescribe those matters which are required under the Act to be prescribed by the Rules.
It is not necessary to refer to them beyond Rules 8 and 8 A, which have been challenged.
Rule 8(i) prescribes the method of payment of tax by means of stamps to be affixed to the tickets, and the second proviso is to the following effect: "Provided further that the tax payable under the Act on fare by the owner of a motor cycle, rickshaw or a motor cab shall be paid to the State Government in lump sum, of which the amount shall be fixed by the State Government from time to time by, Notification in this behalf." Rule 8(ii) then provides: "The owner of a public carrier shall pay to the State Government a lump sum in lieu of the tax ,chargeable under the Act on freight and the amount of such lump sum shall be fixed by the State Government from time to time by Notification in this behalf.
" Rule 8 A, in so far as material to this case, reads: "Provisions for payment of lump sum in lieu of tax on fare or freight.((1) In cases covered by the second.
proviso to sub rule (1) of rule 8 and by subrule (ii) of that rule the lump sum fixed by the State Government as payable in lieu of the tax on fare or freight, as the case may be, shall be deposited in cash into a Government Treasury or a Sub Treasury in equal quarterly instalments payable within 15 days from the 31st day of March, the 30th day of June, the 30th day of September and the 31st day of December every year; and in case of such vehicles not registered in Rajasthan to the incharge of the check post or barrier at the time of their entry into the State of Rajasthan or to the officer of the Excise and Taxation Department nearest to the point of 523 entry into the State and having jurisdiction over that area: Provided that Provided that (a) for the quarter ending on the 30th day of June ', 1959, such payment shall be made for the months of May and June, 1959, at the rate of 1/12 of the said sum for each month, (b) where the owner has not plied his vehicle for the entire quarter immediately preceding any of the aforesaid dates a proportionate decrease in the amount due for that quarter may be made, (c) if the owner ceases to ply his vehicle on a date preceding any of the aforesaid dates, the proportionate amount for the quarter shall be paid by him immediately upon such cessation, and (d) where the owner has not plied his vehicle for a continuous period of not less than three months and produces a certificate from the authority competent under the Rajasthan Motor Vehicles Taxation Act, 1951, or the rules made thereunder to the effect that he has been refunded the tax for that period under section 7 of the said Act, no amount by way of tax under the Act shall be payable for such period.
(2) The owner shall inform the Assessing Authority as soon as his vehicle goes out of use.
When the vehicle is again put on the road, an intimation to that effect shall be sent to the Assessing Authority immediately.
" The notification which was issued under R. 8 prescribing lump sum rates, is as follows: "Jaipur, April 30, 1959 No. F. 15(5) E & T/59.
In pursuance of rule 8 of the Rajasthan Passengers and Goods Taxation Rules, 1959, the Government of Rajasthan hereby directs that the tax chargeable on fare or freight in respect of the following cl.
was of Motor Vehicles, shall be paid in lump sum of which the amount is mentioned opposite each such class: 3.
Public carriers (Goods Vehicles): (a) Holding a general permit under the , to use all roads in Rajasthan; 524 (i) Load carrying capacity below 5 Tons Rs. 420 per annum.
(ii) Load carrying capacity 5 Tons and above .
Rs. 540 per annum.
(b) Holding a permit under the , for plying within the limits of any region or on fixed routes in any one region: (i)Load carrying capacity below 5 Tons .
Rs. 360 per annum.
(ii) Load carrying capacity 5 Tons and above Rs. 480 per annum.
"4 Public Carriers (Goods Vehicles) plying on hire on temporary permits under the . (b) Public Carriers (Goods Vehicles) d(i) Load carrying capacity below 5 Tons .
Rs. 2 for each calendar day (ii) Load carrying capacity 5 Tons and above.
Rs. 4 for each calendar day This shall have effect on and from the 1st May, 1959" The petitioners challenged the Act, the Rules and the notification from many angles, in the petition; but at the hearing before us, the arguments were more restrained.
The main objection to the Act is that the tax has not been laid upon "passengers and goods" as authorised by Entry No. 56 but upon "fares and freights", which are different entities, and in support of the contention that there is a difference, reference is made to Entry No. 89 of the Union List, where power is conferred to tax "fares and freights".
It is submitted that a tax on fares and freights being a different tax, cannot be levied under the Entry, and thus, the tax is without authority of law.
The Act and the Rules are further challenged on the grounds that they are repugnant to articles 301 and 304 as being a restriction upon inter State trade, commerce and intercourse, to article 19 as involving an unreasonable restriction upon the business of the petitioners, and also to article 14 as discriminating between this mode of transport and the Railways.
The Act is further challenged on the ground that it concedes to the State 525 Government the power to fix the amount of lump sum payment without guidance.
The rates and lump sum payment are challenged because they involve discrimination between routes involving roads of different surfaces.
Rules 8 and 8 A and the notification are challenged as, it is submitted, they go beyond the Act by making the lump sum payment compulsory, even though under the Act it is optional, and involve payment of tax even when no passengers or goods are transported.
Lastly, it is said that by making tax payable even though the route between two intra State point passes outside the State, the Act has an extra territorial operation which is ultra vires the legislature.
The first and the 'Main contention is that the Act in the guise of taxing passengers and goods, taxes really the income of the petitioners, or, at any rate, fares and freights, and is thus unconstitutional.
It is argued that the tax is borne by the operators because of competition with the Railways.
That the petitioners are required to bear the tax themselves to stand competition with the Railways is a matter of policy ', which the petitioners follow and is not something which flows inevitably from the provisions of the Act.
We do not agree that the Act, in its pith, and substance, lays the tax upon income and not upon passengers and goods.
Section 3, in terms, speaks of the charge of the tax "in respect of all passengers carried and goods transported by motor vehicles", and though the measure of the tax is furnished by the amount of fare and freight charged.
it does not cease to be a tax on passengers and goods.
The Explanation to section 3(1) lays down that even if passengers are carried or goods transported without the charge of fare or freight,, the ' tax has to be paid as if fare or freight has been charged.
This clearly shows that the incidence of the tax is upon passengers and goods, though the amount of the.
tax is measured by the fares and freights.
A similar argument was not accepted by the Madras High Court in Mathurai vs State of Madras (1), and the same view was expressed in Atma Ram Budhia vs State of Bihar (2).
In our opinion, the charging section does (1) I.L.R. (2) (1952) I.L.R 31 Pat 493 (S.B.).
526 not go outside Entry No. 56.
The tax is still on passengers and goods, though what it is to be is deter,mined by the amount of fare or freight.
It is clear that if the tax were laid on passengers irrespective of the distance travelled by them, it would lead to anomalies if the amount charged be the same in every case.
This if; additionally clear in the case of goods where the weight, bulk or nature of the goods may be different, and a scale of payments must inevitably be devised.
Though the tax is laid on passengers and goods, the amount varies in the case of passengers according to the distance travelled, and in the case of goods because the freight must necessarily differ on account of weight, bulk and nature of the goods transported.
The tax, however, is still a tax on passengers and goods, and the argument that it is not so, is not sound.
We are also of opinion that no inter State trade, commerce or intercourse is affected.
The tax is for purposes of State, and falls upon passengers and goods carried by motor vehicles within the State.
No doubt, it falls upon passengers and goods proceeding to or from an extra State point but it is limited only to the fare and freight proportionate to the route within the State.
For this purpose, there is an elaborate scheme in R. 8 A to avoid a charge of tax on that portion of the route which lies outside the State.
There is thus no tax on fares and freights attributable to routes outside the State except in one instance which is contemplated by the proviso to sub a.
(3) of section 3 and to which reference will be made separately.
In our opinion, the levy of tax cannot be said to offend articles 301 and 304 of the Constitution.
The next contention is that the Act allows an option to pay a lump sum in lieu of the tax, but Rules 8 and 8 A and the notification make the payment of the lump sum compulsory.
There is no doubt that ex facie the two provisos to a. 4 employ language which is permissive, while the two Rules and the notification employ language which is imperative.
The two provisos to a. 4 are enabling, and thereby authorise the State Government to accept a lump sum payment in lieu of the tax actually chargeable.
The 527 word "accept" shows that the election to pay a lump sum is with the taxpayer, who may choose one method of payment or the other.
The inclusion of such a provision is designed to promote easy observance of the Act and also its easy enforcement.
The charge of tax calculated on fares and freights involves difficulties for the operators who have to keep accounts and also difficulties for the taxing authorities, who have to maintain constant checks and inspections.
The lump sum payment is a convenient mode by which an amount is payable per year irrespective of whether the tax would be more or less if calculated on actual fares or freights.
The operators pay the lump sum if they so choose, to avoid having to maintain accounts and to file returns, and the Government accepts it to avoid having to inspect accounts and to keep a check.
The rates which are prescribed for a lump sum payment per year are for those who wish to avail of them.
It is, however, contended that though the section creates an option, the Rules and the notification make the payment compulsory, and attention is drawn to the word "shall" used both in Rules 8 and 8 A and the notification, whereas the words in the two provisos to section 4 are "may accept".
The word "shall" is ordinarily mandatory, but it is sometimes not so interpreted if the context or the intention otherwise demands.
In re Lord Thurlow Ex Parte Official Receiver (1), Lord Esher, M. R., observed at p. 729 that "the word 'shall ' is not always obligatory.
It may be directory", and Lopes L. J., at p. 731 added: "It is clear that the word 'shall ' is not always used in a mandatory sense.
There is abundance of authority to the contrary in cases where it has been held to be directory only".
It was thus that the word 'shall ' was held to be directory only, in that case, by Coutts Trotter, C. J., in Manikkam Pattar vs Nanchappa Chettiar (2), by Russel, J., in In re Rustom (3), by Venkatasubba Rao, J., (1) (1895) 1 Q.B 724 (2) (3) Bom.
396; 528 in Jethaji Peraji Firm vs Krishnayya (1) and by the Judicial Committee in Burjore and Bhavani Pershad V. Mussumat Bhagana (2).
Now, Rules 8 and 8 A and the notification only lay down what lump sum payment has to be in each case, if a lump sum is being paid.
The mandatory language is used to fix peremptorily the amount of the lump sum.
Rules 8 and 8 A and the notification cannot be said to overreach the section to which they are subordinate and from which they must take their colour and meaning.
If the Act creates an option, it cannot be negatived by the Rules.
The Act and the Rules must be read harmoniously, and reading them so, it is plain that the apparent mandatory language of the Rules and the notification still retains the permissive character of the section, but only lays down what the amount of the lump sum must be, if lump sum payment is made in lieu of payment of the tax calculated on actual fares and freights.
If the two Rules and the notification are read in this way, the mandatory language is limited to the prescribing of the lump sum rates.
In our opinion, the two Rules and the notification are not void and contradictory of the Act.
It is contended that the power to fix lump sums in lieu of tax has been conferred upon Government without guidance, and is, therefore, unconstitutional.
It is also urged that the levy of a lump sum leads to the result that even if passengers or goods are not transported, the tax is still payable.
These arguments, in our opinion, cannot be accepted.
The learned Advocate General pointed out that the lump sum rates work out at a very low figure, the minimum being less than Re. 1/ per day and the maximum, Rs. 1.50 nP. per day.
The rates are no doubt very reasonable, but this hardly meets the argument of the petitioners.
There are, however, good reasons for upholding the fixation of lump sums.
The payment of the lump sum is not obligatory, and a person can elect to pay tax calculated on actual fares and freights.
(1) (1929) I.L.R , 656.
(2) (1883) L.R. 11 I. A. 7.
529 The fares and freights are fixed by competent authority under the , and that takes into account the average earnings, and the lump sum is fixed as an average of what tax would be realised if calculated on actual fares and freights.
There is no compulsion for any operator to elect to pay a lump sum if he does not choose to do so.
Nor is the argument that there may be.
vacant periods when no passengers or goods are transported but the tax is payable, is of any force, because there may be days when the business done might result in tax in excess of the lump sum payable.
The lump sum figure is based on averages, and cannot be impeached by reference to a possibility that on some days no business might be done.
The next contention that there is discrimination between road transport and rail transport is also without force.
The entry in the State List is limited to a tax on passengers and goods transported by road or inland waterways.
, The comparison with Railways is not admissible, because tax on railway fares and freights is a Union subject, and is not available to the State Legislature.
There is thus a clear classification made by the Constitution itself.
No discrimination between operators of public motor vehicles using roads has been pointed out, and all operators are equally affected by the, Act.
Some manner of support for the argument was sought from section 9, where the State Government is empowered to grant exemption from the Act by general or specific order to any person or class of persons.
But we were informed that no exemption has been granted except to hospitals or charities.
It is next urged that the imposition of a higher rate of tax for cemented, tarred, asphalted, metalled, gravel and kankar roads than that for other roads discriminates between operator, This argument overlooks the very object and purpose of a tax.
As is well known, taxes are burdens or charges imposed by legislative power upon persons or property to raise money for public purposes.
The power to tax is thus 67 530 indispensable to any good government, and the imposition of the tax is justified on the assumption of a return in the shape of conveniences.
If this be the true import of a tax, it is but natural that taxes will be graded according as they involve more or less of such conveniences.
They will be heavy in case of roads requiring greater expenditure to construct and to maintain, than in case of roads not requiring such expenditure.
All operators using the better kind of roads have to pay the heavier tax, and there is no discrimination between them as a class.
Discrimination can only be found if it exists between persons who are comparable, and there is no comparison between persons using the better kind of roads and those who use roads which are not so good.
It is the cost of construction and maintenance which makes the difference in the tax, and no case of discrimination can be said to be made out.
The last contention is that the proviso to sub section
(3) of section 3 is extra territorial in nature, because it makes the tax payable on fares and freights attributable to the territory of another State when the route passes through such territory, even though the journey starts and ends in Rajasthan.
We were informed that now there are no such routes, but even otherwise, such portions must have been very short and negligible.
No affidavit was sworn to show how many such routes were involved and what their extent was, and in view of lack of adequate averments, we must reject the contention.
In the result, the petition fails, and is dismissed with costs.
Petition dismissed.

summary:
The petitioners who were partners of a registered firm hold ing public carrier and stage carriage permits challenged the constutionality of certain provisions of the Rajasthan Passengers and Goods Taxation Act, 1959, the Rajasthan Passengers and Goods Taxation Rules, 959, and a notification issued under r. 8.
The Act was passed for levying a tax on passengers and goods 518 carried by road in motor vehicles the power to enact being derived from Entry 56 of the State List in Sch.
VII of the Constitution.
Section 3(4) of the Act prescribed the method of collection of the tax and provided that the State Government may accept a lump sum in lieu of the tax chargeable".
Rule 8(i) prescribed the method of payment and provided that the tax "shall be paid in lump sum" and the notification in question prescribed the rates of the tax.
Held, that the incidence of the tax was upon "passengers and goods" and not upon income of the petitioners though the amount of the tax was measured by the fares and freights.
The charging section, namely, section 3 did not go outside Entry 56.
Mathurai vs State of Madras, I.L.R. , Alma Ram Budhia vs State of Bihar, Pat. 493, referred to.
The tax did not offend articles 301 and 304 of the Constitution and no inter State trade, commerce or intercourse was affected by it.
Although the tax fell upon passengers and goods proceeding to or from an extra State point, it was limited only to the fare and freight proportionate to the route within the State.
The word "shall" is ordinarily mandatory but it is sometimes interpreted as directory, and in the present case the word "shall" used in rr. 8 and 8A and the notification should be interpreted as directory as section 4 of the Act from which the Rules and the notification derive their authority, creates an option by using the words "may accept".
The Act, the Rules and the notification must be read harmoniously.
The mandatory language was used to fix peremptorily the amount of the lump sum if paid in lieu of the tax.
In Re Lord Thurlow Ex Parte Official Receiver, (1895) 1 Q.B. 724, Mannikam Patter vs Nanchappa Chettiar, (1928) M.W.N. 441, In re Rustom, 369, jethaji Peraji Firm v: Krishnayya, Mad.
648 and Burjore and Bhavant Pershad vs Mussumat Bhagana, (1883) L.R. II I.A. 7, followed.
The lump sum figure was based on averages and could not be impeached by reference to a possibility that on some days no business might be done.
Comparison with Railways which is a union subject was not admissible.
There was no discrimination between operators of public motor vehicles using roads all of whom were affected by the Act, There could be no comparison between persons using better kind of roads and those using roads which were not so good.
All operators using better kind of roads had to pay heavier tax, and there was no discrimination between them as a class.