judgement:
iminal Appeals Nos. 24 and 25 of 1957.
Appeals by special leave from the judgment and order dated July 25, 1956, of the Madras High Court in Criminal Appeals Nos. 247 & 248 of 1956 and Referred Trial No. 41 of 1956 arising out of the judgment and order dated March 28, 1956 of the Court of Sessions, East Tanjore Division at Nagapatam, in care S.C. No. 5 of 1956.
982 H. J. Umrigar and section Subramanian, for the Appellants.
P. section Kailasham and T. M. Sen, for the respondent.
April 12.
The Judgment of the Court was delivered by SINHA J.
These two appeals by special leave, which arise out of the same occurrence, are directed against the Judgment and Order dated July 25, 1956, of the Madras High Court, confirming the sentence of death passed by the Court of Sessions, East Tanjore Division, at Nagapattinam, under section 302 of the Indian Penal Code, against appellant in Criminal Appeal No. 24 of 1957, for the murder of Kannuswami, and modifying the order of conviction and sentence under section 302, read with section 109 of the Indian Penal Code, to one under section 326, Indian Penal Code, and reducing the sentence of imprisonment for life to one for 5 years, in respect of the appellant in Criminal Appeal No. 25 of 1957.
In the course of this Judgment, we shall call the appellant in Criminal Appeal No. 24 of 1957, as the " first appellant ", and the appellant in Criminal Appeal No. 25 of 1957, as the " second appellant ".
The occurrence which was the subject matter of the charges against the two appellants took place at about 11 30 p.m. on November 10, 1955, at Muthupet, in front of the tea stall of Kannuswami, husband of Shrimati Dhanabagyam prosecution witness No. 1who will be referred to, in the course of this judgment, as the " first witness ", and who is the principal witness for the prosecution, because, as will presently appear, the prosecution case and the convictions and sentences of the appellants depend entirely upon her testimony.
The occurrence took place in the immediate vicinity of a cinema house in which the second show was in progress at the time of the alleged cold blooded murder.
As there were no customers at that time at the tea shop run by Kannuswami, his wife called him for his dinner to be served to him behind the tea stall, as the husband and wife used to live there.
Kannuswami was about to attend to the call for dinner when 983 an old man came into the shop and asked for a cup of tea.
When Kannuswami got busy preparing the tea, the two appellants rushed into the premises.
The old man the intending customer naturally ran away, and the two accused dragged Kannuswami out of the shop on to the road side; and the first appellant gave him several blows on the front part of his body in the region of the chest with an aruval a cutting instrument about 2 feet long including the handle.
Kannuswami fell down on his back and cried out for help.
His wife, the only other inmate of the house, tried to come to his rescue by raising and putting his head into her lap after the two accused had left him.
But soon after, perhaps, realising that Kannuswami was not dead as a result of the first blows, as deposed by the wife, both the accused returned.
Kannuswami 's wife who figures in court as the sole witness to the killing, placed his head on the ground and went and stood on the steps of the tea stall.
The first appellant this time, made the body of Kannuswami lie with face downwards and gave a number of cuts in the region of the head, the neck and back.
These injuries were such as to cause instantaneous death.
At the time of the second assault, according to the evidence of the first witness, Shunmuga Thevar Prosecution Witness No. 3, one of the proprietors of the cinema housecame and remonstrated with the accused but to no purpose.
After inflicting the injuries, both the accused ran away.
According to the testimony of the first witness, it was the first appellant, the second accused (A 2 in therecord), who inflicted cutting injuries with the aruval.
The second appellant, the first accused (A 1 inthe record), was standing nearby at the time the cutting injuries were inflicted.
There were two electric lights burning in the tea shop, a Panchayat Board light burning on the road, as also a light burning on the pathway leading to the cinema house.
The wife of the deceased, finding her husband thus murdered, went and told Ganapathi Prosecution Witness No. 4 who had a tea stall on the other side of the road, and informed him as to what had taken place.
He asked her to lodge information of the 984 occurrence at the Police Station.
She then went to the Mathupet Police Station, but found it shut.
She went to the house of the Sub Inspector of Police, who took her to the Police Station, and recorded her statement as the first information report (Exhibit P. 1).
After recording the first information report, the SubInspector came along with the first informant to the scene of occurrence.
He held an inquest early in the morning.
At the trial, the Prosecution examined, besides the widow of the murdered man (P.W. 1), P.W. 2 an assistant in the tea shop of Ganapathi Thevar, P.W.3 one of the proprietors of the cinema house and P.W. 4Ganapathi who kept another tea stall near the cinemahouse, in support of the prosecution case.
P.W. 2Singaram testified to the occurrence and stated that he had seen Vadivelu 'Cut ' Kannuswami and Chinniah standing by the side of Vadivelu, a few feet away; but he added that the accused persons were not those con cerned with the crime though they bore the same names.
The Public Prosecutor was permitted to cross examine this witness who admitted that he knew that the Police were searching for the accused in the dock and that he did not tell the Police that these were not the persons who had committed the murder.
He went to the length of admitting that he did not tell anybody that the accused in the dock were not the persons who had committed the murder and that it was in the committal court that he stated, for the first time, that the accused persons were not concerned with the crime.
He also admitted that at the time of the occurrence, lights were burning at the place of occurrence, in the tea shop and in the theatre.
P.W. 3, one of the proprietors of the cinema house, when examined in court, admitted that he had been examined by the police two days after the occurrence, but stated that he did not tell the Police that he had seen the accused assaulting Kannuswami.
It appears that, though the record of the examination in chief of this witness would itself indicate that the Public Prosecutor had, put questions to him in the nature of cross examination, yet it is not recorded, unlike the record of the depositions 985 of P.W. 2 and P.W. 4, that this witness had been declared hostile and the Public Prosecutor had been permitted to cross examine him.
That appears to be a slip of the learned Sessions Judge, as he had been so treated even in the committal court.
The Investigating Sub Inspector, P.W. 14, stated, with reference to his diary, that P.W. 3 had stated before him that he had seen accused No. 2 cutting the deceased on the head and neck with an aruval, and accused No. I standing by the side of the second accused.
Witness No. 4 for the Prosecution Ganapathi who ran a tea stall near the cinema house, about 50 to 60 feet away from the tea stall of the deceased Kannuswami, stated in court that the first witness came to him weeping and saying that Chinniah and Vadivelu Thevar had cut her husband, but added that the two accused in court were not those persons.
Thus, whatever may have been the previous statements of the prosecution witnesses 2 to 4, aforesaid, their evidence in court does not directly support the prosecution case.
The orders of conviction and sentence, as passed by the courts below, as indicated above, rest solely on the testimony of the first witness.
It has been argued by the, learned counsel for the appellants that the conviction and sentences of the appellants should not, be upheld because they rest on the sole testimony of the first witness, particularly, because, it is further argued, her testimony is not free from all blemish.
In this connection, her statement in court that it was the second accused (first appellant) who gave the number of cut injuries with the aruval to the deceased Kannuswami, was challenged in crossexamination.
She has been cross examined with reference to her statement (Exhibit D 2) recorded by the committing Magistrate, and she has categorically stated : " Accused 1 had no weapon of any kind with him.
He did not give any cut.
I have not stated in the committal court that accused 1 continued to cut even after Shanmugham Thevar asked him not to cut.
" Exhibit D 2 is in these terms: 127 986 " Even while he was asking not to cut, accused 1 was cutting.
Soon after, accused 1 stopped cutting and went away.
" With reference to the statement of the first witness, as recorded in Exhibit D 2, the learned Sessions Judge has observed that it was a mistake of recording by the committing Magistrate.
We have looked into the whole evidence of the first witness, as recorded by the committing Magistrate not printed in the record, but supplied to us by the learned counsel for the appellants and in our opinion, there is no doubt that the learned Sessions Judge was correct in his conclusion that the recording by the Magistrate is defective in the sense that accused 1 has been recorded in place of accused 2, inasmuch as, throughout her deposition, the first witness had consistently stated that it was accused 2 who actually used the deadly weapon against her husband and that accused I was only aiding and abetting him and lending him strength by his presence.
That this conclusion is well founded, is also substantiated by the state of the record of the appeal in the High Court.
Each of the two appellants in the High Court filed a separate Memorandum of Appeal through his own counsel.
In neither of the Memoranda of Appeal, any ground has been taken that the first witness had materially contradicted herself with reference to her previous statement in the committal court.
Her testimony was assailed only as 'interested, artificial and unnatural '.
It is not even suggested that the learned Sessions Judge 's conclusion in respect of the recording by the committing Magistrate (Exhibit D 2) was not based on any material.
When the matter was argued before a Bench of the High Court, there is no indication in the judgment that any point was sought to be made of this alleged serious discrepancy in the statement of the first witness at different stages.
In the High Court, it was sought to be argued only that she was an interested witness though her testimony throughout had been consistent, as will appear from the following observations of the High Court 987 " To prove that it was the two accused that caused these injuries to the deceased, the prosecution put forth as many as four witnesses.
Of these four witnesses, P.Ws. 2, 3 and 4 turned hostile both in the committal court as also in the Sessions Court.
The only witness that remained constant throughout was P.W. I who is no other than the wife of the deceased.
" The same was the position with reference to the petition for leave to appeal to this Court filed in the High Court.
It was a joint petition on behalf of both the appellants, and as many as 13 grounds had been taken.
There is not even a suggestion that the testimony of the first witness was vitiated by any such discrepancy as has been sought to be made out in this Court.
It was after the High Court refused to grant the necessary certificate that for the first time, in the petition for special leave to appeal, filed in this Court, the ground is taken that the High Court failed to appreciate that the testimony of the first witness was untrustworthy for the reason that there was the alleged discrepancy between her statement in the committal court and in the Court of Sessions.
Thus, it is abundantly clear that the finding of the learned Sessions Judge about the mistake in recording the evidence of the first witness, by the committal court, has not been challenged at any stage in the court below.
The second ground of attack against the veracity of the first witness is that she had stated that Shanmugham Thevar Prosecution Witness No. 3 had also seen the first appellant giving the deadly blows to her husband, and that the assailant continued giving his blows in spite of protests of P.W. 3.
This argument proceeds upon the assumption that Prosecution Witness No. 3 is telling the truth and that, therefore, his evidence effectively contradicts that of the first witness.
P.W. 3 was, as indicated above, cross examined by the Public Prosecutor with reference to his previous statement before the Investigating Police Officer (P.W. 14).
P.W. 14 has stated that before him P.W. 3 had stated just the contrary Of what he stated in court.
The statements of P.W. 3 at 988 the earlier stage, before the Police, and later when examined in court, may or may, not have been false, but certainly both cannot be true.
Hence, it cannot be said that the evidence of P.W. 3 in court was the true version.
That being so, his evidence in court is not strong enough to wipe out the evidence of the first witness on the ground that it is contrary to what P.W. 3 had stated.
It is, thus, clear that none of the grounds, urged in support of the contention that the evidence of the first witness is unreliable, has been made out.
On the other hand, the first witness, being the most important witness from the point of view of the prosecution, was put to a severe test in her cross examination.
She has frankly made admissions in her cross examination, which throw a very lurid light on the past life of her deceased husband.
She admitted that he had been transported for life for having committed a murder and that after his release also, he had been sent to jail twice for having caused cut injuries to others.
If the first witness were inclined to tell falsehoods or at least to conceal her husband 's past, she could have taken shelter behind failing memory or want of information not an uncommon characteristic of prevaricating witnesses.
Her evidence, read as a whole, rings quite true, and we have no hesitation in acting upon it.
It is true that her evidence in court has been sought to be contradicted by the evidence of P.Ws. 2 to 4, but the latter set of witnesses have been shown to be not reliable because they appear to have made different statements at different stages for reasons of their own.
Their testimony does not inspire confidence and we cannot, therefore, brush aside the testimony of the first witness as compared to the evidence of P.Ws. 2 to 4.
The testimony of the first witness is consistent with what &he has stated in her first information report at the Police Station without any avoidable delay, within less than an hour of the occurrence.
It cannot, therefore, be said that her statement in court, is an afterthought, or the result of tutoring by other interested persons.
Her story of the double attack, first on the front,: and subsequently on the back and 989 side of the victim, is also consistent with the medical evidence as deposed to by the Medical Officer P.W. 8.
It is not necessary to set out in detail the dozen incised gaping.
wounds on the person of the deceased, which are all set out in extenso in the judgment of the learned Sessions Judge who has written a very careful and satisfactory judgment.
Alternatively, it has been argued on behalf of the appellants that it is not safe to convict the appellants on the testimony of a single witness even though she may not have been demonstrated to have been a lying witness.
It has not even been claimed by counsel for the appellants that this is a rule of law.
He has only put it on the ground of prudence that, ordinarily, the court should not, in a case involving a charge of murder, convict an accused person upon the testimony of a single witness.
In this connection, our attention was drawn to the observations of their Lordships of the Judicial Committee of the Privy Council in the case of Mohamed Sugal Esa Mamasan Rer Alalah vs The, King (1).
In that case, their Lordships looked for corroboration of the testimony of a single witness in a murder case.
It is true that in that case, the court had to look for and found corroboration of the testimony of the single witness in support of the murder charge, but the testimony of that witness suffered from two infirmities, namely: (1)The witness was a girl of about 10 or 11 years at the time of occurrence.
(2)The girl witness had not been administered oath because the Court did not consider that she was able to understand the nature of the oath though she was competent to testify.
That was a case from Somaliland to which the provisions of the Indian Evidence Act (1 of 1872) and of the Indian Oaths Act (X of 1873), had been made applicable.
Special leave had been granted to appeal to His Majesty in Council on the ground that the local courts had admitted and acted upon the unsworn evidence of a girl of 10 or 11 years of age.
Their Lordship upheld the conviction and sentence of death, holding that the (1) A.I.R. (1946) P.C. 3. 990 evidence, such as it was, was admissible.
In the course of their Judgment, they made the following observations (at pp.
5 6) which are pertinent to the present controversy : " It was also submitted on behalf of the appellant that assuming the unsworn evidence was admissible the Court could not act upon it unless it was corroborated.
In England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused.
But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not.
Once there is admissible evidence a court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence.
It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law.
" The decision of this Court in the case of Vemireddy Satyanarayan Reddy and three others vs The State of Hyderabad (1) was also relied upon in support of the contention that in a murder case the court insists on corroboration of the testimony of a single witness.
In the said reported decision of this Court, P.W. 14 has been described as " a dhobi boy named Gopai. " He was the only person who had witnessed the murder and his testimony had been assailed on the ground that he was an accomplice.
Though this Court repelled the contention that he was an accomplice, it held that his position was analogous to that of an accomplice.
This Court insisted on corroboration of the testimony of the single witness not on the ground that his was the only evidence on which the conviction could be based, but on the ground that though he was not an accomplice, his evidence was analogous to that of an accomplice in the peculiar circumstances of that case as would be clear from the following observations at p. 252: (1) ; 991 is.
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.
" It is not necessary specifically to notice the other decisions of the different High Courts in India in which the court insisted on corroboration of the testimony of a single witness, not as a proposition of law, but in view of the circumstances of those cases.
On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established: (1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated.
One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is 992 much too broadly stated.
Section 134 of the Indian Evidence Act has categorically laid it down that " no particular number of witnesses shall in any case be required for the proof of any fact.
" The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses.
In England, both before and after the passing of the , there have been a number of statutes as set out in Sarkar 's I Law of Evidence 9th Edition, at pp.
1 100 and 1 101, forbidding convictions on the testimony of a single witness.
The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in section 134 quoted above.
The section enshrines the well recognized maxim that " Evidence has to be weighed and not counted".
Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon.
It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence.
If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished.
It is here that the discretion of the presiding judge comes into play.
The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected.
If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof.
Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.
Hence, in our opinion, it is a sound and well established rule of law that the 993 court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact.
Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation.
In the second category, the court, equally has no difficulty in coming to its conclusion.
It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
There is another danger in insisting on plurality of witnesses.
Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.
Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact.
The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony.
The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution.
There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime.
But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict,if it is satisfied that the testimony of a single witness is entirely reliable.
We have, therefore, no reasons to refuse to act upon the testimony of the 128 994 first witness, which is the only reliable evidence in support of the prosecution.
Lastly, it was urged that assuming that the court was inclined to act upon the testimony of the first witness and to record a conviction for murder as against the first appellant, the court should not impose the extreme penalty of law and in the state of the record as it is, the lesser punishment provided by law should be deemed to meet the ends of justice.
We cannot accede to this line of argument.
The first question which the court has to consider in a case like this, is whether the accused has been proved, to the satisfaction of the court, to have committed the crime.
If the court is convinced about the truth of the prosecution story, conviction has to follow.
The question of sentence has to be determined, not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution case, but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime.
If the court is satisfied that there are such mitigating circumstances, only then, it would be justified in imposing the lesser of the two sentences provided by law.
In other words, the nature of the proof has nothing to to with the character of the punishment.
The nature of the proof can only bear upon the question of conviction whether or not the accused has been proved to be guilty.
If the court comes to the conclusion that the guilt has been brought home to the accused, and conviction follows, the process of proof is at an end.
The question as to what punishment should be imposed is for the court to decide in all the circumstances of the case with particular reference to any extenuating circumstances.
But the nature of proof, as we have indicated, has nothing to do with the question of punishment.
In this case, there are no such extenuating circumstances which can be legitimately urged in support of the view that the lesser penalty under section 302 of the Indian Penal Code, should meet the ends of justice.
It was a cold blooded murder.
The accused came for the second 995 time, determined to see that their victim did not possibly escape the assassins ' hands.
As regards the second appellant, we need not say anything more than that he was lucky enough to escape conviction under section 302 of the Indian Penal Code, for the reasons given by the High Court, which may not bear close scrutiny.
He amply deserves the punishment of 5 years ' rigorous imprisonment under s.326 of the Indian Penal Code.
For the reasons aforesaid, both the appeals fail and are dismissed.
Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The appellants were charged with murder and convicted on the sole testimony of a witness.
The first appellant was sentenced to death and the second to five years ' rigorous imprisonment.
it was contended for them, inter alia, that the conviction and sentences should not be upheld because in a case involving a charge of murder the court should not, on the ground of prudence, convict an accused person upon the testimony of a single witness, and, in any case, impose the extreme penalty of law.
Held, that the question whether in such a case the court could convict him depended upon the facts and circumstances of the case and unless corroboration was a statutory requirement, a court could act upon such evidence, though uncorroborated, except in cases where the nature of the testimony of the single witness itself required, as a matter of prudence, that corroboration should be insisted upon, as in the case of a child witness, an accomplice or any others of an analogous character.
Where the court has recorded an order of conviction the question of sentence must be determined, not by the volume or character of the evidence adduced, but on a consideration of any extenuating circumstances which could mitigate the enormity of the crime.
Mohamed Sugal Esa Mamasan Rer Alalah vs The King, A.I.R. and Vemireddy Satyanarayan Reddy and three others vs The State of Hyderabad; , , distinguished.


judgement:
Civil Appeal Nos.
803, 834 to 83J of 1971.
From the Judgment and Order dated 4th January, 1971 of Punjab & Haryana High Court at Chandigarh in Letters Patent 1 Appeal No. 227 of 1970.
T. section Krishna Murthy Iyer and E.C. Agarwala for the Appellant.
V. C. Mahajan, Mrs. Urmila Sirur and Sanjive Puri for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Though we confess that during the course of the hearing we did feel somewhat perplexed as to the proper cons traction to be placed on the provisions of secs.
7, 7 A and 8 of the PEPSU Tenancy and Agricultural Lands Act, 1955, on second thoughts we think that only one conclusion is permissible.
The PEPSU Tenancy and Agricultural Lands Act, 1955 which was originally passed in 1955 and amended in 1955, was again amended in 1956.
The Act purports to amend and consolidate the law relating to tenancies of agricultural land and to provide for certain measures of land reforms.
Section 3 broadly defines "permissible limit" for the purposes of the Act to mean 30 standard acres of land and where such 30 standard acres on being converted into ordinary acres exceed 80 acres, such 80 acres.
Section 5 enables every land owner owning land exceeding 30 standard acres to select for personal cultivation from the land held by him in the State in parcel or parcels of land not exceed 640 ing in the aggregate the permissible limit and reserve such land for personal cultivation by intimating his selection in the prescribed form and manner to the Collector.
Section 6 requires the Collector to notify the particulars of all lands reserved for personal cultivation of a land owner under sec.
Chapter IV A (secs.
32 A to 32 A) deals with ceiling on land and acquisition and disposal of surplus area.
In particular sec.
32 A provides that notwithstanding anything to the contrary in any law, customs, usage or agreement, no person shall be entitled to own or hold as land owner or tenant land under his personal cultivation within the State which exceeds in the aggregate the permissible limit The subsequent provisions provide for the determination of the surplus area and sec.
32 E provides for the vesting of surplus area in the State Government.
We have to note here that sec.
32 DD provides that tenancies created after the commencement of the 1956 amendment in any area which could have been declared as surplus area have to be declared for the purposes of determining the surplus area of any person.
Section 32 F vests the Collector with the power to take possession of surplus area and sec.
32 J describes the modes of disposal of surplus area.
We are not really concerned with all those provisions for the present purpose.
Chapter III of the Act deals with "General rights of tenancy".
Section 7 prescribes that no tenancy shall be terminated except in accordance with the provisions of the Act or except on any of the following grounds.
The grounds mentioned are non payment of rent within period of six months after it falls due, subletting without the consent in writing of the land owner, cessation of personal cultivation of the tenant in the manner and to the extent customary in the locality, user of the land or any part of it in a manner which is likely to render it unfit for the purpose for which the land was leased and the refusal by the tenant, on demand in writing, to execute a kabuliyat agreeing to pay rent in accordance with the statutory provisions.
What has to be particularly noticed is that the tenancy cannot be terminated except in accordance with the provisions of the Act or except on any of the grounds mentioned in sec.
In other words, a tenancy may be terminated in accordance with the provisions of the Act or on any of the grounds mentioned in sec.
Therefore, it means that the tenancy may be terminated on any grounds mentioned in sec.
7 or in accordance with the provisions of the Act provided, of course, other provisions of the Act provide for the termination of tenancy.
In the case of tenancies subsisting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, sec.
7 A provides for two grounds for termination of tenancy in addition 641 to the grounds specified in sec. 7, namely, (i) that the land comprising the tenancy has been reserved by the landowner for his personal cultivation in accordance with the provisions of Chapter II and (ii) that the landowner owns 30 standard acres of less land and the land falls within his permissible limit.
In the case of tenancies commencing after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, sec. 8 provides that the minimum term of the tenancy shall be three years, subject to the provisions of sec.
The question raised for consideration in the present case is whether in the case of tenancies commencing after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, sec.
8 provides for an additional ground for terminating a tenancy, namely, the expiry of the period of tenancy provided it is not less than three years.
The learned counsel for the appellant argued that sec.
8 is made expressly subject to the provisions of sec 7 and when it prescribes that the minimum period of tenancy shall be three years, it cannot possibly mean that the tenancy may be terminated before the expiry of the term of three years According to the learned counsel, sec. 8 means that a tenancy may not be terminated on any ground whatsoever for three years but may be terminated after the term of three years but may be terminated on any of the grounds mentioned in sec.
Such a construction in our opinion would lead to some absurd and anomalous results.
For example, one of the grounds mentioned in sec. 7 which enables the termination of the tenancy is the user by the tenant of the land in a manner which is likely render the land unfit for the purpose for which it was leased him.
If the construction placed upon sec. 8 by the appellant is to be accepted, a tenant may, with impunity as soon as the land is leased to him, use the land in a manner to render the land unfit for the purpose for which it was leased to him, yet the land owner would have to wait for a term of three years before terminating the tenancy.
This appears to us to be an absurd consequence and it is not possible for us to accept a construction which will lead to such disastrous results.
The only alternate construction of sec.
8 is to hold that quite distinctly from the provisions of sec.
a tenancy may not be terminated within a period of three years after its commencement if the tenancy commenced after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, that is to say, while the provisions of sec. 7 would always be available in the case of tenancies commencing after the Second Amendment Act, a tenant may also be evicted on the termination of the period of tenancy which shall not be less than three years.
So construed it may appear as if the words 'subject to the pro 642 visions of sec.
7 ' are being read by us as 'notwithstanding the provisions of sec. 7; but that may not be a correct way of looking at what we have said.
The proper way of looking at the scheme of secs.
7, 7 A and 8 is to hold that while sec.
7 enumerates the grounds on which any tenancy may be terminated, sec.
7 A provides for additional grounds on which tenancies subsiting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 may be terminated and sec.
8 provides for the termination of a tenancy commencing after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment), 1956, apart from the grounds mentioned in sec 7.
That is why sec.
7 itself uses the word 'no tenancy shall be terminated except in accordance with the provisions of the Act or except of any of the following grounds, ' that is to say, a tenancy may be terminated either on the grounds mentioned in sec.
7 or in accordance with the provisions of the Act.
We think that this is the only reasonable and permissible way of construing sec.
8 in the setting of secs 7, 7 A and 8.
The view taken by us appears to have been taken consistently by the Punjab High Court in the last 15 years and construing as we are doing a State Act, we do not think that there are any compelling reasons justifying any departure from the view taken by the Punjab High Court for so long.
The appeals are, therefore, dismissed.
No Costs.
N. V. K. Appeal dismissed.

summary/full:
Whether landowner has to wait for a term of three years before terminating tenancy.
The PEPSU Tenancy and Agricultural Lands Act, 1955 which was originally passed in 1955 and amended in 1955 was again amended in 1956.
The Act purports to amend and consolidate the law relating to tenancies of agricultural land and to provide for certain measures of land reforms.
A tenancy may be terminated in accordance with the provisions of the Act or on any of the grounds enumerated in section 7; namely non payment of rent within a period of six months, subleting without written consent, cessation of personal cultivation of the tenant, user of the land in a manner which is likely to render it unfit, and refusal by the tenant on demand in writing to execute a kabuliyat.
In the case of tenancies subsisting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, section 7 A provided for two grounds for termination of tenancy in addition to the grounds specified in section 7, namely, (i) that the land comprising the tenancy has been reserved by the landlord for his personal cultivation in accordance with the provisions of Chapter II, and (ii) that the landowner owns 30 standard acres or less of land and the land falls within his permissible limit.
In the case of tenancies commencing after the commencement of Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, section 8 provided that the minimum term of the tenancy shall be three years, subject to the provisions of section 7.
In the appeals to this Court on the question, whether in the case of tenancies commencing after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, section 8 provided for an additional ground for terminating a tenancy, namely, the expiry of the period of tenancy provided it is not less than three years.
639 Dismissing the Appeals, ^ HELD: The proper way of looking at the scheme of sections 7, 7 A and 8 is to hold that while section 7 enumerates the grounds on which any tenancy may be terminated, section 7 A provides for additional grounds on which tenancies subsisting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 may be terminated and section 8 provides for the termination of a tenancy commencing after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 apart from the grounds mention d in section 7.
That is why section 7 itself uses the word 'no tenancy shall be terminated except in accordance with the provisions of the Act or except on any of the following grounds. ' that is to say, a tenancy may be terminated either on the grounds mentioned in section 7 or in accordance with the provisions of the Act.
[642A C]


judgement:
Civil Appeal No. 2480 of 1977 From the Judgment and Order dated 28.3.77 of the Gujarat High Court in L.P.A. No. 232 of 1976.
R.N. Karanjawala 2nd P.H Parekh for the appellant.
M.N. Phadke, S.C. Patel and R.N. Poddar for the respondents.
The Judgement of the Court was delivered by PATHAK, J.
This appeal by special leave arises out of a writ petition filed by the appellant in the Gujarat High Court challenging an order terminating his services.
634 The appellant was appointed to the post of Sales Tax Officer by an order dated March 22, 1972.
The order recited that the appointment was on probation for a period of two years.
The period of two years expired, and the appellant continued in service and no order was made confirming his appointment.
On March 31, 1975 the appellant 's services were terminated.
Aggrieved by the termination of his services, the appellant filed a writ petition in the High Court of Gujarat, but by his judgment and order dated April 21, 1976 a learned Single Judge dismissed the writ petition.
An appeal was filed by the appellant, and an Appellate Bench of the High Court dismissed the appeal by its judgement and order dated March 28.
1977 Three points have been raised before us in this appeal.
The first contention is that the order terminating the appellant 's services was passed mala fide, the second is that on the expiry of the period of probation the appellant must be deemed to have been confirmed, and inasmuch as his services have been terminated without complying with clause (2) of Article 311 the order is invalid.
The last contention is that the principles of natural justice were violated inasmuch as on the facts of the present case the appellant.
even as a probationer, was entitled to be heard before his services were terminated.
On the first contention, the learned Single Judge as well as the Appellate Bench examined the material on the record and came concurrently to the conclusion that the allegation of mala fide was without foundation.
Learned counsel for the appellant has taken us through the record and has endeavored to show that the appellant had discharged his duties ably and with integrity, and there was no reason for terminating his services.
Various particulars were set forth in the special leave petition filed in this Court in support of that assertion.
Now, it appears that substantially the same allegations were set forth by the appellant in his writ petition, but in the affidavit filed in reply by the State Government those allegations were denied.
On the contrary, it was asserted that the appellant 's services were terminated entirely because of his unsatisfactory record and that the order was not vitiated by any illegality or unfairness.
In support of the plea of mala fides, the appellant alleged that his services had been terminated because he had taken proceedings against an assessee, Messrs. Shriraj & Company who, according to the appellant, enjoyed political favour and influence with the authorities.
The allegation 635 has been denied in the counter affidavit.
During the hearing of the special leave petition this Court directed the State Government to file a specific affidavit relating to the facts alleged in the writ petition regarding a confidential enquiry initiated by the Government.
The affidavit filed in reply admits that an enquiry was initiated against the appellant on the complaint of the said assessee, but it maintains that there was no mala fides on the part of the Ministers concerned and that a persual of the record relating to that enquiry shows that the allegation of mala fides is wholly baseless.
We have considered the matter carefully and we find no sufficient reason to differ from the finding of the High Court that the allegation of mala fides is not established.
We think it desirable to observe that where a finding of fact has been rendered by a learned Single Judge of the High Court as a Court of first instance and thereafter affirmed in appeal by an Appellate Bench of that High Court, this Court should be reluctant to interfere with the finding unless there is very strong reason to do so.
The second contention on behalf of the appellant is that the appellant must be deemed to have been confirmed inasmuch as he was allowed to continue in service even after the expiry of the period of probation of two years specified in the order of appointment.
We are of opinion that when the order of appointment recited that the petitioner would be on probation for a period of two years, it conformed to Rule 5 of the Recruitment Rules which prescribes such period of probation.
The Rule states further that the period of probation may be extended in accordance with the rules.
The period of two years specified in the Rule is merely the initial period for which an officer may be appointed on probation.
As the terms of the same Rule indicate, the period of probation may be extended.
The period of two years does not represent the maximum period of probation.
It is next urged that as no rules have been framed indicating the manner for extending the period of probation, there is no power to extend the period of probation.
The argument suffers from a fallacy.
The power to extend the period of probation must not be confused with the manner in which the extension may be affected.
The one relates to power, the other to mere procedure.
Merely because procedural rules have not been framed does not imply a negation of the power.
In the absence of such rules, it is sufficient that the power is exercised fairly and reasonably, having regard to the context in which the power have been granted.
636 It is then submitted that the appellant enjoyed a legitimate expectation of being confirmed on the expiry of two years of probation and on successfully completing the qualifying tests and training undergone by him.
We are not impressed by that contention.
It was open to the State Government to consider the entire record of service rendered by the appellant and to determine whether he was suitable for confirmation or his services should be terminated.
There was no right in the appellant to be confirmed merely because he had completed the period of probation of two years and had passed the requisite tests and completed the prescribed training.
The function of confirmation implies the exercise of judgment by the confirming authority on the overall suitability of the employee for permanent absorption in service.
The second contention must also be rejected.
The last contention is that the appellant should have been heard before his services were terminated.
The order of termination does not contain any stigma or refer to any charge of misconduct on the part of the appellant.
It is said that the State Government terminated the appellant 's services because a complaint had been made against him by Messrs. Shriraj & Company, whose case had been dealt with by him, and that the appellants should have been given a hearing to show that there was no basis for the complaint.
There would have been substance in this contention if the appellant 's services had been terminated on the ground of misconduct committed in connection with the case of Messrs. Shriraj & Company.
On the contrary, it appears from the record before us that the appellant 's services were terminated because on an overall appreciation of his record of service he was found unsuitable for being absorbed in the service.
A distinction is sought to be drawn between a probationer whose services are terminated on the expiry of the period of two years and a probationer, who has completed the normal span of two years and whose services are terminated some time later after he has put in a further period of service.
We are unable to see any distinction.
It is perfectly possible that during the initial period of probation the confirming authority may be unable to reach a definite conclusion on whether the candidate should be 637 confirmed or his services should be terminated.
Such candidate may A be allowed to continue beyond the initial period of two years in order to allow the confirming authority to arrive at a definite opinion.
It seems to us difficult to hold that a candidate enjoys any greater right to confirmation if he is allowed to continue beyond the period of probation.
B In our judgment there is no force in this appeal, and it is dismissed but in the circumstances without any order as to costs.
S.R. Appeal dismissed.

summary/full:
The services of the appellent who was appointed to the post of Sales Tax Officer, by an order dated March 22, 1972 on probation for a period of two years, but continued thereafter in service without any order confirming him in his appointment were terminated on March 31, 1975.
The writ petition filed in the High Court of Gujarat, challenging the said terminated was dismissed, by a judgment dated April 21, 1976.
Finding no basis for the allegation of mala fide on facts the court held that there was no right to confirmation on the expiry of the period of probation, and therefore, there was no violation of the provisions of Clause (2) Article 311 of the Constitution.
An appeal filed by the appellant was dismissed by the Division Bench, on March 28, 1977.
Hence the appeal, by special leave of the Court.
Dismissing the appeal, the Court, ^ HELD 1.1.
The allegation of mala fides is wholly baseless and has not been established.
Where a finding of fact has been rendered by a learned Single Judge of the High Court as a Court of first instance and thereafter affirmed in appeal by an Appellate Bench of that High Court, the Supreme Court should be reluctant to interfere with the finding unless there is very strong reason to do so.
[635C D1 2.1 When the order of appointment recited that the appellant would be on probation for a period of two years, it conformed to Rule 5 of the Recruitment Rules which prescribes such period of probation.
Under the Rule the period of probation may be extended in accordance with the rules.
The period of two years specified in the Rule is merely the initial period for which an officer may be appointed on probation and does not represent the maximum period of probation In terms of the said rule the period of probation may be extended.
[635E F] 633 2.2 The power to extend the period of probation must not be confused A with the manner in which the extension may be effected.
The one relates to power, the other to mere procedure.
Merely because procedural rules have not been framed does Dot imply a negation of the power.
In the absence of any rule indicating the manner for extending the period of probation, it is sufficient that the power is exercised fairly and reasonably, having regard to the context in which the power has been granted.
[635G H] B 3.1 There is no question of any legitimate expectation of being confirmed or even right to confirmation on the expiry of two years of probation and on successfully completing the qualifying tests and training undergone by a Government employee.
It was open to the State Government to consider the entire record of service rendered by its employee and to determine whether he was suitable for confirmation or his services should be terminated.
The function of confirmation implies the exercise of judgment of the confirming authority on the overall suitability of the employee for permanent absorption in service.
[636A B] 3.2 The contention that the appellant should have been heard before his services were terminated is not correct since the order of termination does not contain any stigma or refer to any charge Or misconduct on the part of the appellant and the termination was on the basis of an overall appreciation of his record of service disentitling him to be absorbed in the service.
No distinction lies between a probationer whose services are terminated on the expiry of two years and a probationer who has completed the normal span of two years and whose services are terminated some time later after he has put in a further period of service.
It is perfectly possible that during the initial period of probation the confirming authority may be unable to reach a definite conclusion on whether the candidate should be confirmed or his services should be terminated.
Such candidate may be allowed to continue beyond the initial period of two years in order to allow the confirming authority to arrive at a definite opinion.
A candidate does not enjoy any greater right to confirmation if he is allowed to continue beyond the initial period of probation.
[636G H; 637A B]


judgement:
Civil Appeal No. 1321 of 1980.
From the Judgment and Order dated the 15th February, 1976 of the High Court of Rajasthan at Jodhpur in section B. Civil Revision No. 320 of 1978.
P. G. Gokhale and Mr. B. R. Agarwala for the Appellant.
Dalveer Bhandari for the Respondents.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
The appellant, the Bank of Baroda, agreed through its Banswara Branch to sanction a demand loan facility in the sum of Rs.36,000 in favour of respondent l.
In consideration thereof, respondent I executed a demand promissory note in favour of the Bank on June 18, 1973.
He also executed a bond hypothecating the standing Crop of his lands situated at Khandu and 786 Surjipada in Rajasthan Respondents 2 and 3 are the guarantors for the repayment of the loan.
In order to further secure the repayment of the loan, respondent 1 executed a deed of simple mortgage in favour of the Bank, ill respect of the lands at Khandu and Surjipada.
The respondents having failed to repay the loan, the appellant filed against them a suit in the court of the learned District Judge, Banswara, for recovering a sum of Rs. 52,000 and odd which was due ` on the loan transaction.
Respondents raised a preliminary objection to the maintainability of the suit on the ground that the claim in the suit was essentially one for enforcing the mortgage executed by them in favour of the Bank and, therefore, the Revenue court had the exclusive jurisdiction to entertain the suit, by reason of the provisions contained in the Rajasthan Tenancy Act 3 of 1955, (hereinafter called "the Act").
That objection was overruled by the learned District Judge but, in a civil revision application filed by the respondents, the High Court upheld it.
According to the High Court, "the execution of the mortgage deed by defendant No. l in favour of the plaintiff in respect of his tenancy rights in agricultural land also forms the essential part of the cause of action of the plaintiff and as such, the suit is triable by a revenue court".
The correctness of this view is questioned by the plaintiff in this appeal by special leave.
Section 207 of the Act reads thus; 207.
Suit and applications cognizable by revenue court only. (1) All suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court.
(2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application.
Explanation: If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than, or additional to, or is not identical with, that which the revenue court could have granted.
Section 256 of the Act, which is complementary to section 207, reads thus; 787 "256.
Bar to Jurisdiction of civil courts. (1) Save as otherwise provided specifically by or under this Act, no suit or proceeding shall lie in any civil court with respect to any matter arising under this Act or the Rules made thereunder, for which a remedy by way of suit, application, appeal or otherwise is provided therein.
(2) Save as aforesaid, no order passed by the State Government or by any revenue court or officer in exercise of the powers conferred by this Act or the Rules made there under shall be liable to be questioned in any civil court".
A combined reading of these two sections would show that the Jurisdiction of civil courts is barred only in respect of suits and applications of the nature specified in the Third Schedule to the Act and in respect of suits or applications based on a cause of action in respect of which any relief could be obtained by means of a suit or application of the nature specified in the Third Schedule.
The civil court has no jurisdiction to entertain a suit or proceeding with respect to any matter arising under the Act or the Rules made thereunder provided that a remedy by way of a suit, application or appeal or otherwise is provided in the Act.
The legal position on the question of jurisdiction which is stated above requires examination of the various entries in the Third Schedule.
That Schedule is divided into three parts, the first of which is called "Suits", the second is called "Applications", and the third is called "Appeals".
We are concerned in this appeal with the 35 entries which are comprehended in the first part which deals with suits.
It is common ground, and the High Court has not held to the contrary, that none of the specific entries I to 34 is applicable to the suit filed by the appellant Bank.
The argument is that the residuary Entry 35 would govern the suit and, therefore, by reason of sections 207 and 256 of the Act, the Revenue court alone could entertain it.
Entry 35 is described in the Third Schedule as a "General" entry, that is to say, not relatable to any particular section of the Act.
The description of the entry as "General" is given in Column 2 of the Third Schedule which is headed "Section of Act.
" the third column of the Schedule carries the heading "Description of suit, application or appeal".
Under that column, the relevant description runs thus: "Any other suit in respect of any matter arising under this Act, not specifically provided for elsewhere in this Schedule".
788 We are unable to appreciate how the suit filed by the Bank can fall under this "General" or residuary entry.
The suit of the Bank to recover the loan is not in respect of any matter arising under the Act.
The long title of the Act shows that it was passed in order "to consolidate and amend the law relating to tenancies of agricultural lands, and to provide for certain measures of land reforms and matters connected therewith".
A loan given by a Bank to an agriculturist, which is in the nature of a commercial transaction, is outside the contemplation, of the Act and can, by no stretch of imagination be said to be in respect of any matter arising under the Act.
The High Court has relied on section 43 of the Act in order to come to the conclusion that the deed of mortgage was executed by respondent 1 in favour of the Bank in accordance with that section and, therefore, the suit for the sale of the tenancy rights of the mortgagee by enforcement of the mortgage is a suit in respect of a matter arising under the Act.
The High Court holds that such a suit would attract the residuary entry since the matter to which it relates has not been specifically provided for elsewhere in the Third Schedule.
With respect, we are unable to accept this line of reasoning.
Section 43 (1) of the Act, which is relevant for this purpose, reads thus: "43.
Mortgage: (1) Khateder tenant, or, with the general or special permission of the State Government or any officer authorised by it in this behalf, a Ghair Khatedar tenant, may hypothecate or mortgage his interest in the whole or part of his holding for the purpose of obtaining loan from the State Government or a Land Development Bank as defined in the Rajasthan Co operative Societies Act, 1965 (Act 13 of 1965) or a Co operative Society registered or deemed to be registered as such under the said Act or any Scheduled Bank or any other institution notified by the State Government in that behalf" The High Court is in error in saying that `it cannot be disputed ' that the mortgage was executed by respondent 1 in pursuance of section 43.
The business of the Bank, in so far as lending transactions are concerned, is not to lend moneys on mortgages but the business is to lend moneys.
In this particular case, the Bank lent a certain sum of money to respondent 1 in the usual course of its commercial business and nothing could be further removed from the contemplation of the Act than such a transaction.
It is only by way of a collateral security that the Bank obtained a hypothecation bond and 789 a deed of mortgage from respondent 1 find a letter of guarantee from A respondents 2 and 3.
The entire judgment of the High Court is based on the assumption that the mortgage was executed in pursuance of section 43 of the Act and, therefore, residuary Entry 35 of the Third Schedule is attracted.
Once it is appreciated that the mortgage executed by respondent I is outside the scope of the Act, the reasoning of the High Court has to be rejected.
On the question of jurisdiction, one must always have regard to the substance of the matter and not to the form of the suit.
If the matter is approached from that point of view, it would be clear that primarily and basically, the suit filed by the Bank is one for recovering the amount which is due to it from the respondents on the basis of the promissory note executed by respondent 1 and the guarantee given by respondents 2 and 3.
The relief sought by the Bank is that the suit should be decreed for the repayment of the amount due from the respondents.
By the second prayer, the Bank has asked that "in case of non payment of the decretal amount" the mortgaged property should be brought to sale and if the proceeds of that sale are not enough to meet the decretal liability, the other movable and immovable properties of the respondents should be put at sale.
The suit is not one to enforce the mortgage and, even assuming for the purpose of argument that it is, the mortgage not having been executed under Section 43 of the Act, nor being one relatable to `that section, the residuary Entry 35 can have no application.
If that entry is out of way, there is no other provision in the Act, which would apply to the instant suit.
The civil court has therefore, jurisdiction to entertain the suit filed by the appellant Bank.
For these reasons, we set aside the judgment of the High Court and restore that of the District Court.
The suit shall be disposed of expeditiously.
The appellant will be entitled to its costs of this appeal from the respondents.
section R. Appeal allowed.

summary/full:
The appellant Bank filed a suit for the recovery of the amount of loan together with interest thereon granted to Respondent No. I who had not only executed a promissory note but also a bond hypothecating the standing crop of his lands situated at Khandu and Surjipada in Rajasthan.
Respondents 2 and 3 being guarantors for the repayment of the loan were also proceeded against.
The Trial Court overruled the preliminary objection raised by the Respondents as to the maintainability of the Suit, in view of sections 207 and 256 of the Rajasthan Tenancy Act, 1955.
But the High Court, while allowing the Civil Revision Application set aside the judgment of the Trial Court and dismissed the suit.
Hence the appeal by special leave of the Court.
Allowing the appeal, the Court.
^ HELD: 1.1 A combined reading of sections 207 and 256 of the Rajasthan Tenancy Act, 1955 would show that the jurisdiction of the civil courts is barred only in respect of suits and applications of the nature specified in the Third Schedule to the Act and in respect of suits or applications based on a cause of action in respect of which any relief could be obtained by means of a suit or application of the nature specified in the Third Schedule.
The civil court has no jurisdiction to entertain a suit or proceeding with respect to any matter arising under the Act or the Rules made thereunder, provided that a remedy by way of a suit, application or appeal or otherwise is provided in the Act.
the long title of which shows that it was passed in order "to consolidate" and amend the law relating to tenancies of agricultural lands and to provide for certain measures of land reforms and matters connected therewith.
[787C D; 788A] 1.2.
Entry 35 is described in the Third Schedule as a "General" entry, that is to say, not relatable to any particular section of the Act.
The 785 suit filed by the Bank cannot fall under this "General" or "residuary" entry.
A loan given by a Bank to an agriculturist, which is in the nature of a commercial transaction, is outside the contemplation of the Act and cannot be said to be in respect of any matter arising under the Act.
[787G; 788A B] 1.3.
The business of the Bank, in so far as lending transactions are concerned, is not to lend moneys on mortgages but the business is to lend moneys.
In this particular case, the Bank lent a certain sum of money to respondent 1 in the usual course of its commercial business and nothing could be further removed from the contemplation of the Act than such a transaction.
It is only by way of a collateral security that the Bank obtained a hypothecation bond and a deed of mortgage from respondent 1 and a letter of guarantee from respondents 2 and 3.
The assumption that the mortgage has executed in pursuance of section 43 of the Act and, therefore, residuary Entry 35 of the Third Schedule is attracted, is not correct.
[788G H; 789A] 2.
On the question of jurisdiction, one must always have regard to the substance of the matter and not to the form of the suit.
Approaching the matter from that point of view, primarily and basically the suit filed by the Bank is one for recovering the amount which is due to it from the respondents on the basis of the promissory note executed by respondent No. I and the guarantee given by respondents 2 and 3.
The reliefs sought for also make it clear that the suit is not one to enforce the mortgage and, even assuming that it is, the mortgage not having been executed under section 43 of the Act, nor being one relatable to that section, the residuary Entry 35 can have no application.
If that entry is out of way, there is no other provision in the Act which would apply to the instant suit and therefore, the civil court has jurisdiction to entertain the suit filed by the appellant Bank.
[789C E]


judgement:
Civil Appeal No. 245 (N) of 1971.
Appeal by Certificate from the Judgement and Order dated the 9th February 1979 of the Madhya Pradesh High Court at Jabalpur in Miscellaneous Petition No. 361 of 1967.
Mukul Rohtagi and A. G. Ratnaparkhi for the Appellants.
Ravinder Bana and A. K Sanghi for the Respondents The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by certificate is directed against a judgment of the Madhya Pradesh High Court dismissing the writ petition filed by the appellants against certain orders of the Revenue Officers under the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (for short, 'Abolition Act ') which came into force sometime in the year 1951.
By virtue of s.6 of the Abolition Act all transfers made by proprietors at any time after 16th March 1950 were deemed to be void unless declared valid by the Collector on a proper application made to him.
The transferees, in view of the aforesaid provisions, filed applications before the Collector in 1964 who validated the transfers by his order dated 6th June 1964.
Against the order of the Collector a revision was taken by the Commissioner in exercise of his powers under section 50 of the M. P. Land Revenue Code, 1959 (hereinafter referred to as the 'Code ').
The transferees objected to the jurisdiction of the Commissioner on the ground that he had no power to revise the order of the Collector.
This contention was rejected by the Commissioner and hence, a revision was taken to the Board of Revenue which confirmed the view of the Commissioner.
It was against this order that the appellants filed a writ petition 802 before the High Court assailing the orders of the Commissioner as also the Board of Revenue.
The learned counsel for the appellants contended that any order passed under s.6 of the Abolition Act was not revisable under the Code because the Abolition Act was a Code or a law complete in itself and conferred no powers of revision or appeal outside the Abolition Act.
Hence, it was contended, the Commissioner had no jurisdiction to entertain suo moto revision.
In the second place, it was argued that under section 84 of the Abolition Act appeals were provided against all orders passed by Revenue Officers and since there was a right of appeal provided under the Act, no revisional power could be exercised either by the commissioner or by the Board of Revenue under the Code It was also faintly urged before the High Court that the Revenue Officers when exercising powers under the Abolition Act were not exercising the powers as Revenue Officers but as a persona designata under the Abolition Act In other words, the contention raised before the High Court, which was repeated before us, was that the Revenue Officers had a dual capacity (1) under the Abolition Act, and (2) under the Code.
The High Court, however, rejected the contention and, in our opinion, rightly.
A perusal of the schemes of the Abolition Act and the Code clearly indicates that the two Acts were in pari materia and the revenue officers were exercising powers under both the Acts cognately.
There was no clearcut distinction between a Revenue Officer acting under the Abolition Act and acting under the Code.
This being the position, it is manifest that the revisional powers could be exercised by the Revenue Officers under 9 50 of the Code and even under the Abolition Act as well.
We find ourselves in complete agreement with the view taken by the High Court on this point and which was also not seriously challenged before us.
The sheet anchor of the contention of the learned counsel for the appellants before us was that even assuming that the two statutes (Abolition Act and the Code) were statutes in pari maieria, they possess two clearcut and separate powers, that is to say, no suo moto revision could lie to the Revenue officers unless a revision or appeal was filed before the Commissioner by the party.
It is not disputed in this case that the Commissioner Board of Revenue passed the order in exercise of their revisional powers.
It would, however, appear that under the provisions of the Abolition 803 Act as also the Code, both the Commissioner and the Board were appellate as also revisional authorities.
Thus, when two powers were conferred on the said officers in a sort of a combined capacity, it cannot be said that merely because the formality of filing a regular appeal before the Commissioner or the Board was not adopted, a suo moto revision would not lie.
The contention could have some substance if there would have been any statutory embargo on the hierarchy of the Officers mentioned above to entertain any revision against an order passed by one authority without filing an appeal before it.
In the instant case, we find that both the Commissioner and the Board of Revenue had appellate as also revisional powers.
Both these powers being conferred on the same authority, the difference between the exercise of a revision or appeal was a mere idle formality and was of no consequence.
The result is that all the contentions raised by the appellants fail and the appeal is dismissed but in the circumstances of the case without any order as to costs.
M.L.A Appeal dismissed.

summary/full:
The Collector validated certain transfers on the applications of appellants U/5.
6 of the M. P. Abolition Act 1950 but a revision was taken by the Commissioner section 50 of the M. P. Land Revenue Code 1959 (for short, the Code) against the order Or the Collector.
The appellants ' contention before the Commissioner that he had no jurisdiction or power to revise the order of the Collector was rejected.
The Board of Revenue in the revision and the High Court in a writ petition filed by the appellants confirmed the view of the Commissioner.
Hence this appeal.
The appellants contended (i) that the order of the Collector was not revisable under the Code because the Abolition Act was a Code or a law complete in itself and conferred no powers of revision or appeal outside the Abolition Act and therefore the Commissioner had no jurisdiction to entertain suo moto revision; (ii) that since there was a right of appeal under sec.
84 of the Abolition Act, no revisional power could be exercised either by Commissioner or by the Board of Revenue under the Code; and (iii) that even assuming that the Abolition Act and the Code were statutes in pari materia, they possess two clear cut and separate powers, that is to say, no suo moto revision could lie to the Revenue Officers unless a revision or appeal was Sled before the Commissioner by the party.
Dismissing the appeal, to this Court ^ HELD: (1) A perusal of the schemes of the Abolition Act and the Code clearly indicates that the two Acts were in pari materia and the revenue officers were exercising powers under both the Acts cognately.
There was no clearcut distinction between a Revenue Officer acting under the Abolition Act and acting under the Code.
This being the position, it is manifest that the revisional powers could be exercised by the Revenue Officers under section 50 of the Code and even under the Abolition Act as well.
[802D E] 801 (2) Under the provisions of, the Abolition Act as also the Code, both the Commissioner and the Board were appellate as also revisional authorities.
Thus, when two powers were conferred on the said officers in a sort of a combined capacity, it cannot be said that merely because the formality of filing a regular appeal before the Commissioner or the Board was not adopted, a suo moto revision would not lie [802H; 813A B] In the instant case, both the Commissioner and the Board of Revenue had appellate as also revisional powers Both these powers being conferred on the same authority, the difference between the exercise of a revision or appeal was a mere idle formality and was of no consequence [803C D]


judgement:
Civil Appeal No. 4160 of 1985 From the Judgment and Order dated 25.
6. 1984 of the Kerala High Court in T. R. C. No. 19 of 1984.
1075 V. J. Francis for the Appellant.
A R.M. Ansari ,Markose Vellpally and D. N. Misra, for the Respondent, The Judgment of the Court was delivered by BHAGWATI, J.
The sole question which arises for determination in this appeal is as to what is the rate at which the goods which had been purchased earlier and which were in stock with the assessee on 30 6 74 were assessable to purchase tax when the purchases were found to be last purchases as a result of events which took place subsequent to 30.
6. 1974 This question has become C material since the rate of purchase tax was increased from 3% to 5% with effect from 1st July, 1974.
Now it is not disputed in the present case that the purchases of goods effected by the assessee prior to 30 6 74 were last purchases within the State because the goods purchased which were in stock on 30 6 74 were subsequently sold by the assessee in the course of inter state trade or commerce Which means that they were not sold within the State and hence the assessee was clearly the last purchaser within the State and as such was liable to pay purchase tax under Item 71 of the First Schedule to the Kerala General Sales Tax Act.
Equally it is clear that the assessee could not be made liable to tax on the purchases made by it prior to 30th June 1974, unless s the purchases acquired the quality of being last purchases in the State.
It was pointed out by this Court in State of Madras vs Shri T. Naral anaswami Naidu & Anr. ; when the assessee ' files a return and declares the stock in hand, the stock in hand cannot be said to have been ac quired by last purchase because he may still during the next assessment year, sell it or he may consume it himself or the goods may be destroyed, etc.
He would be entitled to claim before the assessing authorities that the character of acquisition of the stock in hand was undetermined; in the light of subsequent vents it may or may not become the last purchase inside the State.
" There can therefore be no doubt that the assessee in the present case became liable to pay tax on the purchases made by it prior to 30th June, 1974, as soon as it became determined though subsequent to 30th June 1974, that these purchases were last purchases inside the State and were consequently exigible to tax.
But the question remains as to what is the rate at which 1076 the assessee was liable to be taxed in respect of these purchases.
Since the purchases took place before 30th June 1974, the assessee would, in our opinion, liable to be taxed at the rate prevailing at the time when the purchases were made and since the rate at that time was 3% of the sale price, the High Court was right in taking the view that the purchases made by the assessee prior to 30th June 1974 were taxable at the rate of 3%.
We may point out that a similar view has been taken by the Kerala High Court in Seaso Rubbers vs State of Kerala, 48 section T. C. 256.
We find ourselves in agreement with the reasoning adopted by the Full Bench of the High Court in that case.
We accordingly reject the appeal but with no order as to costs.
Appeal dismissed.

summary/full:
The respondent assessee had made certain purchases before 30th June, 1974 and sold them subsequently in the course of inter state trade or commerce.
The rate of purchase tax under Item 71 of the First Schedule to the Kerala General Sales Tax was increased from 3% to 5% with effect from 1st July, 1974.
The High Court held that the purchases made by the respondent prior to 30th June, 1974 were taxable at the rate of 3%.
Dismissing the appeal to this Court.
^ HELD: The assessee could not be made liable to tax on the purchases made by it prior to 30th June, 1974, unless the purchases acquired the quality of being last purchases in the State.
In the instant case there can be no doubt that the assessee became liable to pay tax on the purchases made by it prior to 30th June, 1974, as soon as it became determined though subsequent to 30th June, 1974, that these purchases were last purchases inside the State and were conse quently exigible to tax.
Since the purchases took place before 30th June, 1974, the assessee would be liable to be taxed at the rate of 3% which was prevailing at the time when the purchases were made.
[1075E; G H; 1076B] State of Madras vs Shri T. Narayanaswami Naidu and Anr, ; , referred to.
Seaso Rubbers vs State of Kerala, 48 S.T,C. 256 approved.