judgement:
ivil Appeal No. 2588 of 1966.
Appeal from the judgment and decree dated January 14, 1964 of the Patna High Court in First Appeal No. 572 of 1958.
D. Goburdhun and R. Goburdhun, for the appellants.
A. N. Sinha and P. K. Mukherjee, for respondent No. 1.
640 The Judgment of the Court was delivered by Mitter, J.
The only question involved in this appeal is, whether the direction of the High Court that the partition suit launched in 1943 should be allowed to proceed in view of the provisions of section 6 of the Bihar Land Reforms Act, 1950 which came into force on 25th September, 1950, is correct.
The suit had a chequered career.
It was instituted against a number of persons the main relief asked for being partition of four annas Milkiat interest in Touzi No. 702, Tappa Haveli, Pargana Maheshi, District Champaran, Bihar.
The Subordinate Judge of Motihari made a preliminary decree for partition declaring the first respondent 's share in the property as claimed by him.
The High Court in appeal modified the decree reducing the plaintiff 's share to Rs. 0 1 4 interest only.
In further appeal to these Court the trial court 's preliminary decree was upheld on 5th ,October 1953.
In the meanwhile the Bihar Land Reforms Act of 1950 effecting far reaching changes in the incidents of land tenure and land holdings had been passed.
The first appellant made an application to the trial court in June 1958 prayina that the proceedings for final decree be treated as having abated in view of the vesting of all estates in land in the State of Bihar.
This was accepted by the Subordinate Judge by an order dated July 12, 1958.
The High Court allowed the appeal with the direction above mentioned which the appellants now seek to have set.
aside.
The bone of contention between the parties is the extensive "bakasht ' lands in the aforesaid Mouza.
The appellants contend that under section 6 (1) of the Act all these lands vested in the State and came to be held by the persons in "khas possession" thereof as raiyats under the State.
To appreciate the plea it is necessary to make a brief reference to some of the provisions of the Act.
As is well known the object of the Act was to cause transference to the State of the interest of proprietors and tenure holders in land as also of the mortgagees and lessees of such interests including interests in trees, forests, fisheries, jalkars, ferries, hats, bazars, mines and minerals and to provide for certain consequences following there from and connected therewith.
section 3 of the Act ,enabled the State Government to declare by notification that the estates or tenures of a proprietor or tenure holder specified therein 'would pass to and become vested in the State.
The consequences ,of such vesting are set forth in section 4.
Under cl.
(a) : "Such estate or tenure including the interests of the proprietor or tenure holder in any building or part of a building comprised in such estate or tenure and used 641 primarily as office or cutchery for the collection of rent of such estate or tenure, and his interest in trees, forests, fisheries, jalkars, sairati interest as also his interest in all sub soil including any rights in mines and minerals whether discovered or undiscovered, or whether being worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure (other than the interests of raiyats or under raiyats) shall, with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure holder shall cease to have any interest in such estate or tenure, other than the interests expressly saved by or under the provisions of the Act.
" section 6 of the Act provides for such saving and the relevant portion thereof runs as follows "(1) On and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting, including (a) (i) proprietor 's private lands let out under a lease for a term of years or under a lease from year to year. . . (ii) landlords privileged lands let out under a registered lease for a term exceeding one year or under ,a lease, written or oral, for, a period of one year or less, referred to in section 43 of the Chota Nagpur Tenancy Act, 1908, (b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and (c) lands used for agricultural or horticultural purposes forming ' the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof; shall. . . be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupying rights in respect of such lands subject to the payment of such fair and equit able rent as may be determined by the Collector in the prescribed manner.
642 The broad proposition which was advanced before the High Court and rejected by it and reiterated before us is that the consequence of section 6, was to put an end to the character of the possession of the bakasht lands to the malik by causing them to vest in the State and simultaneously creating a tenancy in favour of the person in khas possession thereof.
There is no dispute that bakasht lands fall under categories (b) and (c).
We are not here concerned with category (c) and have quoted it to appreciate some decisions relied on where there are references to that category.
This question has engaged the attention of the Patna High Court more than once and it would appear that the views expressed in different cases have not been uniform.
So far as the said High Court is concerned the point was settled by a decision of the Full Bench in Mahanth Sukhdeo Das.
vs Kashi Prasad Tewari and Shrideo Misra vs Ramsewak Singh(1).
The main questions before the Full Bench were whether on the vesting of an estate which was mortgaged at the material time the bakash lands therein which are deemed to be settled with the ex proprietor in khas possession would form substituted security for the purpose of the mortgage, and whether a co sharer proprietor not in actual possession of such lands had Any claim thereto on the basis of his constructive possession.
The High Court answered both the above in the affirmative.
One of the earliest cases in which this Court had to interpret section 6 of the Act was that of Surajnath Ahir vs Prithinath Singh (2 ) .
There the question which engaged the attention of this Court was whether the appellants who had originally gone into possession on the strength of a mortgage lost their right to continue in possession even if they claimed to be trespassers after the redemption of their mortgage by reason of the estate vesting in the State on the passing of the Act.
Although the case is not directly in point, it bears upon the identical provisions of law which have to be applied to the facts of the case before us.
The facts in that case were that the appellants had entered into possession of kasht lands of the mortgagors on the strength of a mortgage deed.
The mortgagors thereafter executed another mortgage with respect to their milkiat (proprietary) interest in favour of certain persons.
The plaintiff respondents bought the milkiat rights together with "kasht" lands from the mortgagors and entered into possession of the milkiat property and subsequently redeemed the mortgage deeds in 1943.
The appellants however did not make over possessions of the lands in dispute even after the redemption of the mortgage.
It was held by this Court that the respondents could not take advantage of section 6 (1) (c) of the Act as no mortgage subsisted on the date of vesting and the mere fact that the proprietor had a subsisting (1) I.L.R. 37 Patna 918.
(2) [1963] 3 S.C.R. 290 643 title to possession over certain land on the date of vesting could, ' not amount to that land being treated as under his "khas possession" for the purposes of the Act.
Referring to the definition of "Khas possession" in section 2(k) of the Act as meaning "the possession of such proprietor or tenure holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock".
it was held that in order that the respondents could take advantage of the provision of section 6 (1 ) (c) of the Act they had to, establish a subsisting mortgage on the date of vesting which was inclusive, of the land subject to their right of redemption.
On the question of possession of the lands it was observed "On the date of vesting, the appellants were not in possession as mortgagees.
The mortgages had been redeemed in 1943.
Thereafter, the possession of the appellants was not as mortgagees.
It may be as trespassers or in any other capacity.
The land in suit, therefore, did not come within cl.(c) of section 6 of the Act.
" Rejecting the construction put on the expression 'khas possession by the High Court in Brijnandan Singh vs Jamuna Prasad(1) it was said : " The mere fact that a proprietor has a subsisting title to possession over certain land on the date of vesting would not make that land under his 'khas possession '.
" The Full Bench decision of the Patna High Court, came up for consideration by this Court in Ram Ran Bijai Singh vs Behari Singh alias Bagandha Singh(2).
There the appellants before this, Court were the plaintiffs who had filed a suit for a declaration that a certain plot of land was their zeraiti land and that the persons impleaded as the defendants 1st and 2nd parties had no right or title thereto and for recovery of possession of the said land by dispossessing them therefrom.
It was argued that in view of the concurrent findings of the courts below that the lands were the zeraiti lands of the plaintiffs they would not vest in the State because of the saving in section 6 of the Act and the appellant should be deemed to have been in khas possession of the land under section 6 (1) (c).
The respondents contended that it was not a case of a mortgagee remaining in possession after payment of the debt without anything more but of tenants who claimed to remain in possession by asserting a title which was as much against the mortgagors as against the mortgagees.
Reference was made in the (1) A.I.P. 1958 Patna 580.
(2) (3) I.L.R.37Pat.
644 course of arguments to the Full Bench decision in Sukhdeo Das 's case(3) and it was submitted that a mortgagee continuing in possession of the mortgaged property after payment of the :mortgage amount must hold the same on behalf of the mortgagor and in trust for him.
Counsel further relied on certain observations in the judgment of the Full Bench in aid of his proposition and submitted on the basis thereof that even the possession of a trespasser who had not perfected his title by adverse possession for the requisite period of time under the Limitation Act should be considered as in khas possession of the true owner.
Turning down this submission it was observed by this Court (p. 378) : "We consider that this equation of the right to possession with 'khas possession ' is not justified by principle or authority.
Besides this is also inconsistent with the reasoning of the Full Bench by which constructive pos session is treated as within the concept of khas possession.
" The Court went on to add that "The possession of the contesting defendants in the present case was in their own right and adverse to the plaintiffs, even on the case with which the appellants themselves came to court." Noting the statement of the plaintiffs in their plaint that the mortgagees had fulfilled their obligations and the obstruction to possession was put forward only 'by persons who claimed occupancy rights this Court concluded that, in the circumstances of the case, it was not possible for the appellants to contend that these tenants (defendants 1st and 2nd parties) were in possession of the property on behalf of the mortgagor or by virtue of any right through the mortgagor.
The case is not therefore an authority for the proposition that a co sharer 's constructive possession is to be ignored under section 6 (1) (c) of the Act.
Counsel for the appellants also referred us to a recent decision of this Court in section P. Shah vs B. N. Singh(1) in aid of his contention that the true effect of section 6 of the Act was to create a new right ,of tenancy in favour of the person in khas possession and consequently even if the plaintiff in the partition suit had a right to ask for demarcation of his Rs. 0 4 0 share of the bakasht lands before the passing of the Land Reforms Act, he could not pursue his claim by a prayer that he be considered a tenant along with those who were in actual khas possession.
In our view the above decision is no authority for this broad proposition.
In that case the appellants who were mortgagees of an estate including bakasht lands and other lands filed a suit on (1) ; 64 5 their mortgage and tried to follow up the preliminary decree which was obtained before the Act came into force by a petition for passing a final decree.
One of the questions before this Court was whether the mortgage decree had become unexecutable in view of the provisions of the Act.
It was held that the net effect of sections 3, 4 and 6 was that although on the vesting of the, lands in the State a settlement was deemed to be effected with the person in khas possession in law, there were two different transactions and the deemed settlement was in effect a separate transaction creating new rights.
The Court came to the conclusion that the only remedy open to the decree holders wag that provided in Chapter IV of the Act i.e. a claim under section 14 before the Claims Officer for determining the amount of debt legally and justly payable to each creditor in respect of his claim.
The Court was there dealing with the rights of the mortgage creditors after the Act had come into force.
Chapter IV of the Act made special provisions for dealing with the rights of secured creditors and section 4 (1) (d) expressly provided for the abatement of all suits and proceedings for the recovery of any money through proceedings which might be pending on the date of vesting arising out of securities created by mortgage or a charge on an estate or tenure.
Here however we are not dealing with the claims of mortgagees under Chapter IV.
In this case we have to consider whether the appellants had laid a claim which a co sharer could not put forward except by pleading ouster or any other independent ground.
Even if they were in actual khas possession within the meaning of section 2 (k) of the Act it must be held that the plaintiff who was a co sharer was in constructive possession through the appellants as "under the law possession of one co sharer is possession of all the co sharers".
We see no reason to hold that the observations of this Court to the above effect in P. L. Reddy vs L. L. Reddy(1) are not applicable to the case before us.
The appellants do not claim to be trespassers on the property neither did they claim any title to the lands adversely to the plaintiff respondent.
The deeming provision of section 6 must therefore enure for the benefit of all who in the eye of law would be regarded as in actual possession.
It follows that the plaintiff had not lost his share in the bakasht lands and had a right to them though not as tenure holder or proprietor but certainly as a raiyat under the provisions of the Land Reforms Act. ' The appeal must therefore be dismissed with costs.
V.P.S. Appeal dismissed.
(1) ; , 202.

summary/full:
In a suit for partition of bakash land a preliminary decree was passed.
The defendants appellants, claiming to be in actual possession of the bakasht land, filed a petition contending that the consequence of section 6.
of the Bihar Land Reforms Act, 1950 (which came into force in the meanwhile) was to put an end to the proprietor 's possession of the bakasht land by causing them to vest in the State and simultaneously creating a tenancy in favour of the person in khas possession thereof, and therefore, no final decree could be passed.
The trial court accepted the contention and dismissed the plaintiff 's application for passing final decree.
In appeal, the High Court set aside the order.
In appeal to this Court, HELD : Even if the appellants were in actual khas possession within the meaning of section 2(k) of the Act, it must be held that the plaintiff respondent, who was a co sharer, was in constructive possession through the appellants, as, under the law, possession of one co sharer is possession of all co shares.
The appellants did not claim to be trespassers on the property neither did they claim any title to the lands adversely to the respondent.
The deeming provision of section 6 must, therefore, enure for the benefit of all, who in the eye of land) would be regarded as in actual possession.
Therefore, the respondent had not lost his share in the bakasht lands and had a right to his share in them, though not as tenure holder or proprietor, but as a raiyat under the provisions of the Act.
[645 E G] P. L. Reddy vs L. L. Reddy, ; , 202, followed.
Surajnath Ahir vs Prithitnath Singh, , Ram Ran Baijal Singh vs Behari Singh alias Bagandha Singh, , section P. Shah vs, B. N. Singh; , and Mahant Sukhdeo Das vs Kashi Prasad, Tewari referred to.


judgement:
minal Appeal Nos.
139 to 141 of 1968.
Appeals by special leave from the judgments and orders dated January 31, 1968 of the Punjab and Haryana High Court in Criminal Appeals Nos. 653, 655 and 654 of 1967 respectively.
R. L. Kohli, for the appellants (in all the appeals).
Harbans Singh, for the resondent (in all the appeals).
The Judgment of the Court was delivered by Grover, J.
Hazara Singh, his brothers Bachan Singh and Jamail Singh and three others Bhajan Singh, Baj Singh and Balwant Singh were tried under section 148 of the Indian Penal Code for being members of an unlawful assembly and in prosecution of the common object of that assembly which was to attempt to murder the police party, while these persons were armed with deadly weapons Eke pistol and rifle, having committed the offence on the midnight intervening 21st and 22nd July 1964.
Hazara Singh and Bhajan Singh were also charged under section 307, Indian Penal Code, while the other four were charged under section 307 read with section 149 of the Code for Hazara Singh and Bhajan Singh having fired pistol shots at the police party with such intention and under such circumstances that if they had there by caused the death of any member of the police party they would have been guilty of murder.
Hazara Singh and Bhajan Singh were further tried on a charge under section 25 of the Indian Arms Act.
The learned Sessions Judge found that all the six persons were proceeding towards Pakistan in order to smuggle six bags containing 40 Kg.
cardamom each.
Hazara Singh and Bhajan Singh were armed with a rifle and a pistol respectively and when challenged by the police party they fired shots from their weapons at the police party in their attempt to murder them in pursuance of the common object of them all and as such they were guilty of an offence under section 148 of the Indian Penal Code.
They were con 676 victed and sentenced to one year 's rigorous imprisonment on that count.
Hazara Singh and Bhajan Singh were found guilty of the offence under section 307 of the Indian Penal Code while their co accused were found guilty of the offence under sections 307 and 149, Indian Penal Code, and each one of them was sentenced to rigorous imprisonment for a period of five years and payment of a fine of Rs. 5001.
The sentences were to run concurrently.
Bhajan Singh and Hazara Singh were further found guilty of the illegal possession of firearms under section 25 of the Arms Act and were sentenced to rigorous imprisonment for one year each.
On appeals to the High Court the conviction of the aforesaid persons was upheld but the sentences of Bachan Singh, Jarnail Singh, Baj Singh and Balwant Singh were reduced to three years ' rigorous imprisonment.
All the convicted persons have filed appeals to this Court (Cr.
139 141/68) by special leave.
These shall stand disposed of by this judgment.
The prosecution story was that Inderjit Singh P.W. I who was posted as Deputy Superintendent of Police P.A.P. Border, Khem Karan, had received information on 31st July 1964 that a party of smugglers would be smuggling some goods to Pakistan during the night.
He organised a raiding party consisting of Sub Inspector Ajit Singh P.W. 1,5, Agya Ram P.W. 12, A.S.1s.
Darshan Singh, Nand Singh and Mulakh Raj, Head Constables Surjit Singh P.W. 3, and Ajai Singh P.W. 13.
The entire raiding party was divided into four groups.
Each group was headed by one of the officers including Inderjit Singh D.S.P.
At about midnight the police party noticed some persons coining from the side of village Lakhna by the katcha path with some mares.
The path led to Pakistan.
It was a moonlit night but was cloudy at that time.
It is unnecessary to go into the details which will be presently noticed of how the firing of the shots took place by the accused persons and how they were identified and arrested.
Four of them were taken into custody at the spot but Hazara Singh and Bhajan Singh escaped on their mares ' They were arrested later and on their disclosure a rifle and 'a revolver were recovered.
No one was injured and although some empty cartridges were found but no attempt was made to find the bullets which are alleged to have been fired by the party of the appellants.
The evidence of the police officers was consistent and we may only refer to the deposition of Inderjit Singh D.S.P. who appeared as P.W. 1 According to him when the culprits were at a distance of 25 to 30 karams (One karam is equal to 5 67 7 feet) he alerted members of the police party to be on their guard and directed Sub Inspector Ajit Singh to challenge the culprits and inform them that the police party was holding its positions and they should stop proceeding further.
Ajit Singh accordingly challenged the culprits.
Thereupon the, leader of the party fired a shot at the police party.
Inderjit Singh then ordered Sub Inspector Agya Ram to fire a light pistol so that there might be light and it might be possible to identify the culprits.
Agya Ram fired a shot and in the light that emerged the leader of the party was identified as Hazara Singh appellant who was riding a mare and who had a rifle in his hand.
He was followed by Bhajan Singh or Harbhajan Singh who also was riding a mare and had a loaded, bag and was armed with pistol.
He was followed by the other four on foot.
These persons then shouted to their companions Hazara Singh and Bhajan Singh that they should open fire on the police party.
Thereupon Hazara Singh and ' Bhajan Singh started firing shots from their respective weapons.
Sub Inspector Ajit Singh ordered the police party to open fire in defence.
Four Head Constables fired two shots each from their rifles at the culprits.
At this stage Agya Ram fired another light pistol shot.
Hazara Singh and Bhajan Singh ran away on their mares throwing away the bags.
The other four persons were found lying down on the ground.
There can be no manner of doubt that if Hazara Singh and Bhajan Singh fired shots at the police party and even though no one was injured the appellants would be guilty of the offences with which they were charged.
The real question is whether it had been proved beyond doubt that the shots were fired at the police party.
There could be two possibilities in such a situation, one could be of the shots being fined in the direction of the police party or taking aim at them and the other could be of the shots being fired in the air or in some other direction and not in the direction of the police party merely to create confusion for the purpose of running away.
On the evidence of Inderjit Singh P.W. 1 himself it was a moonlit night but owing to the weather being cloudy it was dark and light pistol shots bad to be fired by Sub Inspector Agya Ram on two occasions in order to provide sufficient light for seeing and identifying them.
The light provided by these pistol shots admittedly lasted only for 2 or 2 1/2 seconds.
If the shots which are alleged to have been fired by Hazara Singh and Bhajan Singh had been fired,at the time when there was light as a result of the firing of the light pistol shots by Sub Inspector Agya Ram then it could be said to have been established that the Deputy Superintendent of Police and the other witnesses could have seen in which direction the fire arms were fired by Hazara Singh and 678 Bhajan Singh and their statement could have been accepted that ,the shots had been fired at them.
But from the evidence of Inderjit Singh as also of Sub Inspector Agya Ram who actually fired the light pistol shots which provided the light on two occasions it is quite clear that the shots which were fired by Hazara Singh and Bhajan Singh were not fired during the few seconds there was light as a result of the light pistol shots of Agya Ram.
In other words the shots which are stated to have been fired by the aforesaid two appellants were fired in complete darkness when it was not possible for any member of the police party to see the direction in which they were fired or the aim which was taken by Hazara Singh and Bhajan Singh.
It is not possible to say from this evidence that Hazara Singh and Bhajan Singh fired the shoots in the direction of the police party or at them, and the possibility that the shots were fired in the air cannot be excluded.
Thus the conviction under section 307 of Hazara Singh and Bhajan Singh and of the other appellants under section 307 read with section 149, Indian Penal Code cannot be maintained and they must ' be acquitted of that charge.
It is unfortunate that the judgment of the High Court ' is very sketchy and there is hardly any discussion or examination of all the above material facts.
As regards, the conviction of the appellants under section 148 of the Indian Penal Code we find it difficult to uphold the same.
According to that section whoever is guilty of rioting being armed with deadly weapons or with anything which used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Rioting is defined by section 146 which provides that whenever force or violence is used by an unlawful assembly or any member thereof in prosecution of the common object of such assembly every member of such assembly is guilty of the offence of rioting.
Section 349 gives the meaning of the word "force".
The learned counsel for the State has not been able to show how any force or violence is proved to have been used by the appellants in prosecution of the common object of the unlawful assembly of which they were members.
With the exception of the firing of the shots in a direction which cannot be determined no attempt was made by any of the appellants to use any force or violence on any member of the police party.
Consequently the conviction of the appellants under section 148 must also be set aside.
As regards the conviction of Hazara Singh and Bhajan Singh under section 25 of the Indian Arms Act it is most unfortunate that the witnesses who were produced with regard to the disclosure statements made by them and the recoveries effected at their 6 7 9 instance are of such a type that their evidence could never have been believed by any court.
Lal Singh P.W. and Karnail Singh P.W. admitted that they had been joining in the police raids and had been appearing as witnesses for the police for the last 15 years.
Apart from that the statements made by them were so similar particularly with regard 'to the manner in which they happened to join the investigation that their whole evidence looks tutored and unconvincing.
P.W.11 Hakam Singh admitted that Pooran Singh was the son of his cousin Geja Singh and that he had been convicted in a case of murder and sentenced to life imprisonment.
Charan Singh, uncle of the two appellants had appeared as a witness against Pooran Singh in that case.
He was obviously an inimical witness.
It is again surprising that the High Court in its very sketchy judgment had made no mention of these salient facts and has contended itself by saying that there was nothing on the record to indicate that the appel lants had been falsely implicated.
The conviction of Hazara Singh and Bhajan Singh, therefore, cannot be maintained under section 25 of the Arms Act.
In the, result the appeals are allowed and the convictions and sentences of all the appellants are here by set aside.
The bail bonds of the appellants who were ordered to be released on bail by this Court on July 15, 1968 shall stand discharged.

dataset_name: IN-Abs

summary/full:
The six appellants were challenged by a police party when they were proceeding towards Pakistan territory with contraband goods.
Two of them, H and B, had fire arms with which they fired shots.
No member of the police party was injured.
There was darkness except for a temporary illumination created by the firing of two shots from a light pistol.
The police claimed to have recognised H and B, in this light even though they fled away from the scene.
The remaining four persons were arrested ,on the spot.
H and B, were arrested later and on their pointing out, two unlicensed arms were recovered.
The Sessions Judge held H and B, to be guilty under section 307 of the Indian Penal Code as well as section 25 of the Arms Act.
The remaining four appellants were convicted under section 307 read with section 149 I.P.C.
All the appellants were convicted under section 148.
The High Court maintained the convictions of the appellants though in the ,case of those without fire arms it reduced the sentences.
, With special leave the appellants filed appeals in this Court, HELD : (1) From the evidence it was quite clear that the shots which were fired by H and B, were not fired during the few seconds there was light as a result of the light pistol shots.
In other words the shots were fired in complete darkness when it was not possible for any member of police party to see the direction in which they were fired or the aim which was taken by H and B. It was not possible to say from this evidence that H and B fired the shots in the direction of the police party or at them and the possibility that the shots were fired in the air could not be excluded.
Thus the conviction under section '307 of H and B and of the other appellants under section 307 read with section 149 could not be maintained.[678 B D] (2)Rioting is defined by section 146 which provides that whenever force or violence is used by an unlawful assembly or any member thereof in prosecution of the common object of such assembly every member of such assembly is guilty of the offence of rioting.
Section 349 gives the meaning ,of the word 'force '.
In the present incident no force or violence was proved to have been used by the appellants in prosecution of the common ,object of the unlawful assembly of which they were members.
With the exception of the firing of the shots in a direction which could not be deter mined, no attempt was made by any of the appellants to use any force or 675 violence on any member of the police party.
Accordingly, the conviction of the appellants under section 148 must also be set aside.
[678 F G] (3)The discloure statements made by H and B in respect of fire arms recovered at their instance could not be acted upon because the two witnesses produced in this connection gave statement which by their similarity appeared to be tutored and unconvincing.
These witnesses were associated with the police raids over a long period.
The other witness was proved to be inimical to H and B.
The High Court erred in ignoring these facts.
The conviction of H and B under section 25 of the Arms Act could not be sustained.
[679 B D]


judgement:
Appeal No. 2394 of 1966.
Appeal by special leave from the judgment and decree dated June 26, 1964 of the Calcutta High Court in Appeal from Appellate Decree No. 1011 of 1962.
section V. Gupte and D. N. Mukherjee, for the appellants. 667 Bishan Narain and P. K. Ghosh, for respondents Nos. 1, 2(c), 2 (d), 2 (f ) and 2 (g).
The Judgment of the Court was delivered by Mitter, J.
The main question in this appeal is, whether the defendants appellants perfected their title to the property in respect of which partition was claimed by the plaintiffs by adverse, possession for the prescriptive period of twelve years or more.
The relevant facts are as follows.
The parties are all descendants of one Durgadas Mukherjee who died many years back, leaving six sons and inter alia the property which is the subject matter of this litigation, recorded as Dag No. 444 Khatian No. 72 in Mauja Barasat, District 24 Parganas during the last Cadastral survey.
Of the two plaintiffs the first Saradindu is a great grandson of the said Durgadas Mukherjee of the branch of the youngest son, his co plaintiff being a grandson in another branch.
The defendants belong to other branches of the said family.
The first plaintiff based his title on several conveyances from other members of the family as also purchase at an execution sale of a fractional interest of the members of the branch of Bama Charan, the second son of Durgadas.
The second plaintiff claims by inheritance.
The property consists of 34 acres together with two structures thereon which are quite separate from each other.
One portion of the structures i.e. that to the east, popularly known as Bamacharan Babu 's ' Bati is a fairly commodious building with a separate municipal number.
The other structure in the western portion known as Baitakhana Bati was and is admittedly the joint property of the descendants of Durgadas with a municipal number of its own.
The plaintiffs claim that the land and the two buildings are joint property while the whom are appellants before this the said eastern building with the case of the appellants was that the contesting defendants, some of Court, claim exclusive title to land on which it stands.
The eastern structure was constructed, by Bama Charan with his own money and that.
the co sharers of Bama Charan, by ekramamas, gave up their interest in the land on which the same stood.
The High Court agreeing with the finding of the first appellate court found that there was no, evidence on record to show that Bama Charan had put up the said building with his own money or that he was the exclusive owner of the said two storeyed building or that the other co sharers gave up their ownership of the subjacent soil and rejected the exclusive title sought to be set up with regard thereto.
This is a conclusion of fact which does not require further scrutiny.
The High Court also agreed with the lower appellate court in rejecting the story of permissive possession of the defendants over the said building set up by the plaintiffs and came to the conclu 13 918 Sup.
C.I./71 668 sion that "at all material times the heirs in the line of Bama Charan including the appellants were in separate possession of the eastern two storeyed building.
" The point for consideration before the High Court was and before us is, whether by such exclusive possession the heirs in the line of Bama Charan including the appellants acquired title by adverse possession to the eastern portion i.e. Bama charan Babu 's Bati.
With regard to the Baitakhana Bati there is no dispute about its jointness.
No question can be raised about the 'first plaintiff 's having become a co sharer with the heirs in the line of Bama Charan.in the year 1941 by private treaties and the auction purchase of the shares of three of his sons in execution of an award under a Co operative Societies Act.
By the kobalas the first plaintiff acquired fractional interest in the shares of some of the descendants of Bama Charan as also of the descend ants of his brother Shyama Charan.
In the sale certificate following the ;auction purchase there is a reference to "Dalan 3 Privy 2" but there is no express reference to these in the koabalas (exhibit 6 series).
In the courts below the defendants appellants contended that the eastern two storeyed building was neither intended to be nor was conveyed under Ex.6 series kobalas and exhibit 9 a), the sale certificate.
Both the trial court and the first a ale court :held that the kobalas and sale certificate were sufficiently comprehensive so as to include all or any structures which stood on the aforesaid plot of land at the material time and that there was, nothing express or implied in the kobalas to show that the two storeyed building on the eastern side was intended to be excluded from their operation.
The High Court also found that so far as the sale certificate was concerned the first plaintiff had acquired the interest of three sons of Baba Charan.
The point as to adverse possession canvassed by the appel lants arises in the following manner.
Their contention is that although the sale certificate was obtained in 1941 inasmuch as the suit for partition was filed in 1955 the requisite period of 12 years under article 144 of the Limitation Act of 1908 had elapsed in the meanwhile resulting in the perfection of their title by exclusive separate possession of the property.
To this the plaintiffs ' rejoinder was that the two storeyed building in the eastern wing had indisputably been in the occupation of the military authorities by requisition under the Defence of India Act and the Rules, 1939 for four years from 1942 to 1946.
It was argued that there was thus a break in the claim to the prescriptive title set up and adverse possession, if any, was limited to the period between 1946 and 1955.
This was sought to be repelled by the plea that the military authorities had taken possession of the property from the defendants and had restored possession W them in 1946 and 669 that their possession was really under or on behalf of the defendants without causing a break in the continuity of their possession.
An attempt was made to substantiate this by reference to several documents which form part of the record.
The order of requisition dated May 28, 1942 made under rule 75 A of the Defence of India Rules issued by the Collector of the District of 24 Parganas ' shows that the building together with fixtures, fittings etc.
was to be placed at the disposal and under the control of Brigadier Commander 36 Indian Infantry Brigade, Barrackpore on and from 8 2 1942 until six months after the termination of the war unless relinquished earlier.
A copy of the notice was served on Prakash Chandra Mukherjee of Barasat described as "the owner/occupier" of the said property. ' The notice of an award under section 19 of the Defence of India Act 1939 addressed to Prokash Chandra Mukherjee, another descendant of Bama Charan shows that compensation had been adjudged and awarded in respect of the property at Rs. 125.
A third notice dated June 24, 1946 sent out from the office of the Land Acquisition Collector addressed to Pankaj Kumar Mukherjee and others shows that possession of Cadastral survey plot No. 444 Mouza Barasat requisitioned under rule 75 A would be restored to, the addressee on July 2, 1946.
exhibit D, a memo forwarding a cheque for Rs. 2,100 was addressed to Prokash Chandra Mukherjee.
and others by way of rent for terminal compensation in respect of the premises which had been requisitioned.
In our view possession by Government or the military autho rities of immovable property under rule 75 A of the Defence of India Rules 1939 cannot be said to be in the character of an agent or by virtue of any implied permission from the true owner or occupier.
section 2 of the Act of 1939 under which rules were made and in particular cl.
(xxiv) of sub section
(2) of that section empowered the authorities mentioned to make orders providing for the requisitioning of any property, movable or immovable, including the taking possession thereof 'and the issue of any orders in respect thereof.
section 19 (1) of the Act only enjoined upon the Government to pay compensation in every case of such requisition and under section 19 B(1) Government was under an obligation, whenever any property requisitioned under any rule was to be released therefrom, to make such enquiry, if any, as was considered necessary and specify by order in writing the person to whom possession was to be given.
Sub section
(2) of this section clearly shows that delivery of possession of the property to the person specified in an order under sub section
(1) was to operate as full discharge to the Government from all liabilities in respect of the property, but was not to prejudice any rights in respect thereof which any other person might be entitled by due process of law to enforce against the person to whom possession of the pro 670 perty was given.
Rule 75 A enabled the Central Government of the Provincial Government to requisition any property, movable.
or immovable, subject to certain exceptions mentioned therein.
The net result of the Act and the Rules and the effect of orders of requisition and relinquishment of possession and or payment ' of Compensation must be taken to be that possession was taken by virtue of the powers under the Act and the rules irrespective of any consideration as to the rights of the true, owner or the occupier who could only make a claim to compensation.
It is further clear that even if possession was taken from A but was made over to B after relinquishment, A could have no cause of action against Government if relinquishment was in terms of cl.
(2) of section 19 B(1).
In other words possession of Government was neither by permission nor in the character of, an agent.
If possession under the requisition had been taken from a trespasser but had been restored to the lawful owner after the end of the period of requisition, the trespasser could not contend that he was wrongfully deprived of possession or that the, period of Government 's occupation should be added to the period of his preceding trespass to enable him to claim a prescriptive right by adverse possession.
The High Court relied on the decision of the Judicial Com mittee of the Privy Council in Karan Singh vs Bakar Ali Khan(1) in coming to the conclusion that such requisition put an end to the claim for adverse possession, if any, which might have started from an anterior date.
The Judicial Committee held that possession of the defendants since 1863 when the Collector had relinquished possession was not, 12 years ' possession but it was contended on behalf of the defendant that he was justified in tacking to his possession the possession of the Collector from 1861.
The Board found that pending a dispute between the parties the Collector, in order to secure the Government revenue had attached and taken possession of the property and retained possession of it from 1861 until October 1863 when in consequence of the decree of the civil court he delivered possession to the defendant and paid over to him the surplus profits of the estate after deducting the Government revenue and expenses.
As the suit was brought in the year 1874 the period of 12 years had to commence some time in 1862.
The Board observed that it must be assumed that "the Collector properly took possession for the purpose of protecting the Government revenue.
It was the duty of the Collector whi1st in possession under the attachment, to collect the rents from the ryots, and having paid the Government revenue and the expenses of collection to pay over the surplus to the real owner.
If the defendant was the real owner the surplus belonged (1) 9 I.A. 99. 671 to him; but if, on the other hand, the infants were the right owners, then the surplus belonged to them.
The Collector, by paying over the money to Karan Singh, did not give Karan Singh a title.
" Accordingly it was held that the suit was not barred by limitation.
Mr. Gupte on behalf of the appellants relied on Halsbury 's Laws of England (Third Edition, Vol.
24) article 484 at P.253 in support of his contention that the exclusive possession of s client was not disturbed by the requisition.
The article relied on reads "The mere fact that land is taken under the Lands Clauses Consolidation Act, 1845, for the purposes of a public undertaking, and is not superfluous land, does not prevent a person, who has exclusive possession of such land for the statutory period, from acquiring title under the statute;" The decision relied on by Mr. Gupte is that of Bobett vs The South Eastern Railway Co. (1).
In our view neither the above passage nor this judgment helps the appellants in any way.
One of the points raised in Bobett 's case was, whether the plaintiff in an action of trespass and to recover possession of land could be allowed to set up a plea that inasmuch as he had been let into possession by the defendants or that he had been in possession to the exclusion of the defendants without any tenancy at all during the time required by the Statute of Limitation for the acquisition of a prescriptive title, he was absolutely entitled to the land when ousted by the defendants.
It was argued on behalf of the defendants that even if the plaintiff was a tenant at will for the requisite period and in exclusive possession of the land the Statute of Limitation did not apply to the case, for the land in question was inalienable by the company under section 127 of the Lands Clauses Act and therefore could, by the mere aches of its officers have vested in the plaintiff contrary to the intention of the Legislature which only allowed the company to take possession of the land for the purposes of the undertaking and subject to the provisions of its Acts and not give it up to others.
There on a consideration of section 7 of 3 and 4 wm. 4, c. 27 and other statutory provisions Denman, J. arrived at the conclusion: ". .that the mere fact that the property in question was land taken for the purposes of the undertaking and not superfluous land, would not prevent the plaintiff if he had exclusive possession since 1863, either as a (1) 672 wrongdoer or as tenant at will in the first instance from being entitled to the land by virtue of the Statute of Limitations.
" Put simply the dictum only meant that the Statute of Limitation would be applicable to possession of a trespasser notwithstanding the provisions of the Lands Clauses Act, 1845.
The question before us is altogether of a different character.
If the defendants appellants could have established that an order under r. 75 A of the Defence of India Rules merely enabled the military authorities to take possession of the land for the period of their need by their permission or in the character of agents, they would have probably been on firm ground.
But, as already observed by us, the nature of the order of requisition under r. 75 A is altogether different and such possession cannot enure for the benefit of the person who was in possession before for the purpose of acquisition of a prescriptive, title.
The only other decision to which our attention was drawn is that of Dagdu vs Kalu(1).
In this case it was found that the plaintiff had been admittedly out of possession of the lands since 1881 and the defendant had been in adverse possession of them from that time until the date of suit October 2, 1895, with the exception of a period of three years during which period he had been dispossessed by one Barsu who wrongly alleged that he was a donee of the plaintiffs.
On that allegation the donee obtained possession of the land under the decree of the court of first instance but it was reversed by the High Court and the land was as a reversal restored by the court to the defendant on 9th April 1895.
It was observed by the High Court that (p. 736) : "The erroneous action of the Court of first instance cannot, we think, prejudice the defendant, or put him in a worse position that he would have occupied, had the erroneous decree not been made.
" This decision too, in our opinion, does not help the appellants.
The possession of the defendants was disturbed by a wrong order of the court which was ultimately put right and the court no doubt acted on the maxim that a litigant is not to be prejudiced by any wrong order of the court.
A faint attempt was made to re agitate the question that the auction sale of 1941 did not include the eastern portion.
This in our opinion is concluded by the finding of the High Court already noted.
(1) 22 Bombay 733.
673 The last, point put forward was that the plaintiffs had not asked for possession in their plaint.
This can be rejected summarily.
The prayers in the plaint not only include one, for preliminary decree for partition but for the appointment of a commissioner for effecting partition of the property by separating the shares of the plaintiffs from those of the defendants in the suit property.
Clearly the plaintiffs were asking for demarcation of ' the portion of the property which should be theirs as a result of the partition.
Imbedded in this prayer is a claim for possession.
In the result the appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.

summary/full:
The plaintiff became a co sharer with the defendant in the suit property in the year 1941 as a result of some conveyances by members of the defendants ' family.
The property was in the occupation of military authorities by requisition under the Defence of India Act, 1939, and the Rules made thereunder, for four years from 1942 to 1946.
The defendants were in exclusive possession thereafter from 1946 to 1955 when the plaintiff filed a suit for partition and possession of his share.
On the question whether the suit was barred by limitation under article 144 of Limitation Act, 1908, on the plea that as the military authorities had taken possession of the property from the defendants and had restored the possession to them in 1946 the possession of the said authorities was really under or on behalf of the defendants without causing any break in the continuity of their possession, HELD : The possession of the Government was neither by permission of the defendants nor in the character of an agent of the defendants.
The orders of requisition, relinquishment of possession and payment, of compensation under the Defence of India Act read with Act and the Rules how that the possession was taken by Virtue of the powers under the Act and the Rules irrespective of any consideration as to the rights of the true owner or the occupier who could make a claim to compensation.
Therefore, possession of Government by requisition under rule 75 A can not enure for the benefit of the person who was in possession before, for the purpose of enabling such person to acquire a prescriptive title.
[669 E F; 670 B D] Karan Singh vs Bakar Ali Khan, 9 I.A. 99, applied.
Bobett vs South Eastern Railway Co. and Dagdu vs Kalu, 22 Bombay 733, explained.


judgement:
Appeal No. 1125 of 1970.
Appeal under section 116 A of the, Representation of the People Act, 1951 from the Judgment and order dated March 1970 of the Assam and Nagaland High Court in Election Petition No. 2 of 1969.
section V. Gupte, section K. Ghose, Advocate General, Nagaland, Naunit Lal, A. R. Barthakar, R. C. Chowdhury and B. K. Dass, for the appellant.
660 D.P. Singh, A. K. Gupta, V. J. Francis and section P. Singh, for A the respondent.
The Judgment of the Court was delivered by Ray, J.
This is an appeal from the judgment dated 26 March 1970 of the Assam and Nagaland High Court declaring the election of the appellant void under section 1 00 ( 1 ) (b) of the Representation of the People Act (hereinafter referred to as the Act) and further declaring the appellant to have committed a corrupt practice within the meaning of section 123(6) of the Act for incurring or authorising expenditure in contravention of section 77 of the Act.
The gist of the finding of the High Court is that the appellant showed in his return a sum of Rs. 900/ as election expenses after claiming a refund of Rs. 100/ but the appellant is found to have ' incurred or authorised expenditure of a further amount of Rs. 154.15 which the appellant did not include in his return and thereby the appellant exceeded the permissible limit of Rs. 1000/by Rs. 54.15.
The finding of the High Court is, that the appellant incurred or authorised the expenditure of Rs. 90/ for what is described as pink identity cards and secondly incurred or authorised the expenditure of Rs. 22.65 in respect of purchase of forms and election handbooks and,thirdly incurred or authorised the expenditure of Rs. 42.50 on 18 trunk calls between 15 January, 1969 and 11 February, 1969 aggregating Rs. 154.15 which sum was not included in the return of election expenses.
The appellant was at the time of the election Chief Minister of the State of Nagaland.
The appellant and the respondent were two candidates at the General Election in the year 1969 to the Nagaland Legislative Assembly from No. 6 Western Angami Constituency.
The polling took place on 6, 8 and 10 February, 1969 and counting of votes took place on 12 February, 1969.
The appellant polled 1933 votes.
The respondent polled 935 votes.
On 12 February, 1969 the result of the election was declared and the appellant having secured the majority of valid votes was declared to be elected.
The respondent in the election petition alleged that the appellant included in his return as election expenses the sum of Rs. 75/paid by him to Kohima Printing Press on 17 January, 1969 for printing blue identity cards but the appellant did not include in the said return a sum of Rs. 90/ by him to Kohima Printing Press on 29 January, 1969 for printing a set of pink identity cards issued by him.
The appellant in his written.
statement denied that lie spent IZs.
90/ for the purpose of printing identity cards that were 661 used by him in any way in his election.
The appellant stated that he spent Rs. 75/ only for printing the identity cards which were used in the election and the same has been properly accounted for in his statement for his election expenses.
Under section 123(6) of the Representation of the People Act the incurring or authorising of expenditure in contravention of section 77 is a corrupt practice for the purpose of the Act.
Section 77 deals with account of election expenses and maximum thereof.
The first sub section states that every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and ,the date of declaration of the result thereof both dates inclusive.
The second sub section states that the account shall contain such particulars ' as may ' be prescribed.
The third subjection states that the total amount shall not exceed such amount as may be prescribed.
The prescribed maximum for election expenses is the sum of Rs. 1,000 as will be found in Rule 90(2) of the Conduct of Election Rules.
That is the sum prescribed for the State of Nagaland for State Assembly Election.
For other States different amounts are prescribed as the maximum of election expenses for the State Assemblies.
The relevant issue with regard to the alleged expenditure of Rs. 90 raises the question as to whether the appellant incurred or authorised the expenditure of the, said amount.
On behalf of the appellant the owner of the printing press Vipikejeye gave evidence.
He said that the appellant placed an order (exhibit 10) for 5000 identity cards for election and he also said that Exhibit 1 1 the blue identity cards were printed in his press.
The owner of the press further said that the appellant did not personally come to place the order but his party men came and placed the order ' The blue identity card was not found suitable and the owner of the printing press printed the pink identity card.
The owner was paid Rs. 75 for printing 5000 blue identity cards.
As for the pinkcards the evidence of the owner of the printing press was that the order for the pink cards was placed on 29 January, 1969 "by the young man" of the appellant.
The owner of the press supplied the pink cards numbering 6000 and be received the sum of Rs. 90 on 1 February, 1969 and one Pralie Peseyie paid that sum and took away the pink identity cards.
Pralie Peseyie was said to be a man of the appellant.
There was no written order for the printing job.
The owner of the press specifically said that he did not receive Rs. 90 from the appellant, 662 The appellant in his oral evidence said that the blue identity card was ordered by him to be printed and he entrusted one of his worker to do it.
On his return the appellant found that there was something wrong in the blue identity cards which contained the words 'Vote for T. N. Angami '.
The appellant said that he became annoyed and asked.
the, person entrusted with the printing of the identity cards to, go immediately to the printing press and get the cards "reprinted correctly".
After that "the man" brought the pink identity card but he did not tell anything about the payment of such printing work and that is how the appellant did not account for them.
The appellant accounted for Rs. 75 as the cost of printing identity cards.
In cross examination the appellant was asked whether he asked Pralie Peseyie to pay the cost of the blue identity card because of the appellant 's annoyance.
His answer was that he did not say anything specifically but Pralie Peseyie did something wrong and the latter felt shy and did not ask any money from the appellant.
The appellant 's evidence was that the press submitted the bill for the printing of the blue identity card and the payment was made by, the appellant but he did not personally go and pay.
In cross examination the appellant was specifically asked whether the pink identity cards were produced before him with the bill.
The appellant, answered in the negative.
The appellant was then asked whether before filing the return the appellant had asked from the press as to what the cost of the printing of the pink identity cards was.
The, appellant 's answer was "I bad not paid personally and the bill was not produced before me I did not enquire".
The appellant was again asked whether the amount for printing pink identity cards was paid.
, His answer was that the amount was paid by Pralie Peseyie.
Pralie Peseyie gave evidence on behalf of the appellant and said that the appellant was "much annoyed" because Pralie Peseyie without the appellant 's knowledge put the words "Please vote for T. N. Angami" on the blue identity cards and the appellant asked Pralie Peseyie to get the identity cards reprinted.
Pralie Peseyie therefore placed order to get 6000 identity cards printed again.
He said that he paid Rs. 90 from his own pocket as he felt that it was his responsibility to get the cards printed correctly.
He also said that he never asked the appellant to reimburse him for that amount of Rs. 90.
In cross examination he was asked whether he told the appellant that he paid Rs. 90.
His answer was in ,the negative.
Pralie Peseyie further said that the words "Please vote for T. N. Angami" were not on the sample that the appellant gave but the witness added those words without the knowledge of the appellant.
The witness was asked a direct question as to what amount the witness spent for the appellant in the election and his 663 answer was "I paid Rs. 90 for the printing of the pink identity cards and no more".
The High Court held that the amount of Rs. 90 must have been paid to the press by Pralie Peseyie on behalf of the appellant and therefore the expenditure was incurred by the appellant as well as authorised by him in connection with his election.
The respondent in the election petition alleged that the appellant paid Rs. 90.
The Representation of the People Act uses the words incuffing and authorising the expenditure.
The appellant denied that he paid Rs. 90.
It was never suggested to the appellant that he had authorised the expenditure of Rs. 90.
On the contrary, the positive evidence of the appellant is that he was annoyed with Pralie Peseyie for introducing the words 'Vote for 'F. N. Angami ' on the blue identity cards and therefore the appellant wanted Pralie Peseyie to get the cards reprinted correctly.
It is also the evidence of Pralie Peseyie that he did something wrong and he had to have it corrected.
He therefore paid Rs. 90 out of his own pocket.
The most significant feature in ',he evidence is, that the bill for Rs. 90 was never produced or sent to the appellant whereas the 'bill for the blue identity cards was sent to the appellant.
The manner in which the appellant reprimanded Pralie Peseyie for adding the words "Vote for T. N. Angami" would not necessarily involve an obligation to pay and authorise an expenditure for getting the cards reprinted correctly.
If it were the fault of the press, the press would have to rectify the same.
On the other hand, if the blame fell on Pralie Peseyie he would have to bear the brunt.
The fact that the bill was not sent to the appellant shows that the fault was of the witness Pralie Peseyie The oral evidence also points to that inescapable conclusion.
The High Court was in error in holding on the evidence that the expenditure for Rs. 90 was incurred or authorised by the appellant.
This finding is not supported by the evidence and on the contrary it is repelled by the evidence.
We cannot help observing that both the appellant and Pralie Peseyie gave evidence in a very straightforward and truthful Manner.
They narrated the correct course of events.
We accept their evidence and hold that the appellant neither incurred nor authorised the expenditure of Rs. 90 for the pink identity cards.
It would, therefore, not be necessary for us to go into the question whether, the sum of Rs. 41.50 for trunk calls and the sum of Rs. 22.65 for purchase of forms and hand books were incurred or authorised by the appellant.
Even if those two sums of money were added, the return would not be in violation of the maximum amount of Rs. 1000/ .
664 Counsel for the respondent contended that the findings of the High Court on allegations contained in paragraph 1(a), (f) and (j) of particulars of corrupt practice mentioned in paragraph 6 of the petition were incorrect and the High Court should have held that the appellant was guilty of corrupt practice.
Paragraph 1 (a) relates to a charge against the appellant of having paid Rs. 200 in cash to Dolhoutha Gaonbura of Zubra and one bag of sugar for entertainment of electors attending a function at Zubra on 25 January, 1969.
Paragraph 1 (f) alleges that on 27 Janu ary, 1969 a women 's meeting was held at Daklane when it was announced that a procession would be taken out on 1 February, 1969.
About 200 people mostly women formed a procession shouted slogans to vote for the appellant and the appellant asked them to vote for him and after the meeting a feast was held at the appellant 's house at which drinks were served to the people.
Paragraph 1 (j) alleges that on 27 January, 1969 the appellant and his wife and some other persons came to the village Pedugei in connection with the election and held a meeting where the appellant and his wife promised 8 bundles of corrugated iron sheets for the women of Kiruphema with the object of inducing them to vote for the appellant and corrugated iron sheets were later on brought from Dimapur by a truck belonging to Mizielhouto and divided amongst three groups of people.
The appellant in the written statement denied the charges.
The respondent did not have personal knowledge of the feast alleged in paragraph I (a) of the particulars but three witnesses were examined on behalf of the respondent.
On behalf of 'the appellant there was the evidence of Dolhoutha and Shitovi Hesso.
The High Court held that the three witnesses on behalf of the respondent were interested in the success of the respondent and the three witnesses attributed statements about feast and distribution of sugar to Dolhoutha who denied the same and said that the people of the village organised the feast with their money.
The High Court correctly found that the quality of evidence on behalf of the respondent was such that no reliance could be placed upon it.
As to allegations of corrupt practice in paragraph 1 (f) about the women 's meeting the High Court held that there was no evidence to indicate that the.
respondent or any person induced the persons present to vote or offered them food and fruit.
On the contrary, the High Court found that evidence of both sides indicated that it was customary practice in Nagaland to offer hospitality to the people who visit their house.
It will not be correct to equate ordinary hospitality or courtesy with corrupt practice.
With regard to allegations mentioned in paragraph I (j) and the distribution of bundles of corrugated iron sheets the High Court 665 held that the women 's society asked for corrugated sheets for a public cause.
The 'appellant was the Chief Minister at the time of the election.
It would not be unnatural for people to make requests to the Chief Minister for a public cause.
It would also be reasonable to expect that the Chief Minister would try to redress grievances of the people.
There is no proof of corrupt motive.
We agree with the High Court that there is no proof of corrupt practice alleged in paragraphs 1 (a), (f) and (j) of the particulars dealt with above.
For these reasons we accept the appeal and hold that the appellant is not guilty of any violation of section 123 (6) and section 77 of the Representation of the People Act.
The judgment of the High Court is set aside.
The charge, of corrupt practice under section 123(6) is set aside.
The order setting aside the election of, the appellant and the declaration avoiding the election under section 100(1)(b) of the Act are both set aside.
The election petition of the respondent is dismissed.
The appellant will be entitled to costs.
K.B.N. Appeal allowed.

summary/full:
The appellant was elected to the Nagaland legislative assembly.
He was at the time of his election Chief Minister of the State.
The, respondent challenged the election of the appellant on the grounds : (i) the appellant incurred or authorised the incurring of expenditure beyond the prescribed limit in contravention of section 77 of the Act and thereby committed corrupt practice within the meaning of section 123(6) of the Act, (ii) he offered inducements to the electors by giving feasts and entertaining them and (iii) he distributed bundles of Corrugated iron Sheets to a Women 's Society, with the object of inducing the members thereof to vote for him.
The High Court held that the appellant committed corrupt practice within the meaning of section 123(6) and set aside his election.
The other corrupt practices were held not proved.
Allowing the appeal and dismissing the election petition, HELD:(i) The High Court was in error in holding on the evidence that expenditure beyond the prescribed limit was incurred or authorised by the appellant [663 F] (ii)There was no evidence to indicate that the appellant or any person with his consent or knowledge induced any of the voters to vote for him by offering them food.
On the contrary the evidence on both sides indicated that it was customary practice in Nagaland to offer hospitality to the people who visit their house.
It would not be correct to equate ordinary hospitability or courtesy with corrupt practice.
(iii)There was no corrupt motive in the distribution of bundles of iron sheets.
The Society asked for corrugated iron sheets for a public cause.
The appellant was the Chief Minister at the time of the election and it would not be unnatural for people to make request to the Chief Minister for a public cause.
It would also be reasonable to expect that the Chief Minister would try to redress the grievances of the people.
[665 D]


judgement:
Appeal No. 18 of 1968.
Appeal by Special leave from the judgment and order dated April 14,,1967 of the Allahabad High Court in Second Appeal No. 307 of 1965.
694 V.M. Tarkunde, Urmila Kapoor and R. K. Khanna, for the appellant.
section V. Gupte and M. V. Goswami, for the respondent.
The facts are not in dispute.
The appellant had been occupying a shop in Mathura belonging to the respondent from a very long time, at a monthly rental of Rs. 18.37.
In 1962 the respondent wanted to construct rooms on the upper Storey of the shop for his own residence.
This construction could possibly be made only if the appellant vacated the shop for some period.
On June 4, 1962, the appellant and the respondent entered into an agreement .
After reciting the above facts it was agreed that the shop would be.
vacated by the appellant on the condition that as soon as the required construction had been completed he would resume possession of the shop.
At this stage the following clauses of the agreement may be set out.
On this day the second party has withdrawn his possession from the shop bearing No. 1/2C, situate at Tilakdwar, and has given the same to the first party.
The first party shall get the shop constructed within thirty days and would then hand over the possession of the same to the second party.
At present a sum of Rs. 18 6 0 per mensem, which includes house tax and water tax, is being paid by the second Party to the first party as rent.
After the construction of the shop, the first party shall be entitled to get the same, amount as rent from the second party.
All the sections of the U.P. Rent Control and Eviction Act shall be fully applicable to this house.
The first party shall in no case be entitled to derive benefits from it as the property built after 1 1 51." After the construction had been made and the appellant had resumed his possession of the shop the appellant offered rent to the respondent but the latter did not accept the same.
Ultimately lie deposited the rent from April 1, 1962 to July 31, 1963 in court under section 7 C of the Act.
The respondent served a notice April 20, 1963 apparently under the provisions of the 695 Transfer of Property Act purporting to terminate the tenancy of the appellant.
This was followed by a suit which the respondent filed for ejectment of the appellant and for arrears of rent, damages etc.
The Munsif dismissed the suit holding that the appellant was entitled to the protection conferred by section 3 of the Act which was applicable.
The District Judge, on appeal, took the contrary view and decreed the suit.
The ' High Court affirmed the judgment of the District Judge.
It was held, inter alia, that the, respondent was, entitled to rely on section 1 A of the Act and the appellant could not be given the benefit of section 3.
Now there can be no manner of doubt that the tenancy between the appellant and the respondent was governed by the provisions of the Act prior to the reconstruction of the premises.
It appears to have been accepted that when the respondent made the re construction after the agreement mentioned above in 1962 the buildings came to be constructed within the terms of section 1 A of the Act: That section says that nothing in the Act shall apply to any building or part of a building which was under erection or was constructed on or after January 1, 1951.
It will have to be decided whether it was open to the respondent to give up the benefit of this provision or waive it by means of an agreement of the nature which was entered into between the appellant and the respondent in June 1962.
According to the preamble on the cessation of the applicability of sub rule 2 of rule 81 of the Defence of India Rules after September 30, 1946 it was considered expedient owing to the shortage of accommodation in the State of Uttar Pradesh to provide for the continuance during admitted period of powers to control the letting and "the rent of accommodation and to prevent the eviction of tenants therefrom.
Section 3 imposed restrictions on eviction.
No suit could be filed in any civil court against the tenant for his eviction from any accommodation except on one or more of the grounds mentioned in sub section
(1) 'of that section without the permission of the District Magistrate or of the Commissioner to whom a revision lay against the order of the District Magistrate.
Section 5 contained provisions relating to control of rent.
The ether provisions of the Act need not be noticed.
It has never been disputed that the Act was enacted for affording protection to the tenants against eviction except in the manner provided by the Act.
It was also meant to regulate the letting of accommodation, fixing of rent etc.
, the provisions relating to which were all intended to confer benefits on the tenants against unreasonable and capricious demands of the landlords.
At the same time ' it appears that the legislature was conscious of the fact that the Act might retard and slacken the pace of construction of new buildings because the landlords would naturally be reluctant to invest 696 money in properties the letting of which would be governed by the stringent provisions of the Act.
It was for that purpose that the saving provision in section 1 A seems to have been inserted.
The essential question that has to be resolved is whether section 1 A was merely in the nature of an exemption in favour of the landlords, with regard to the buildings constructed after January 1, 1951 and conferred a benefit on them which they could give up or waive by agreement or contractual arrangement and whether the consideration or object of such an agreement would not be lawful within the meaning of section 23 of the .
The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy.
Thus the maxim which sanction the nonobservance of the statutory provision is cuilibet licat renuntiare juri pro se introducto.
(See Maxwell on Interpretation of Statutes, Eleventh Edition, pages 375 & 376.) If there is any express prohibition against contracting out of a statute in it then no question can arise of any one entering into a contract which is so prohibited but where there is no such prohibition it win have to be seen whether an Act is intended to have a more extensive operation 'as a matter of public policy.
In Halsbury 's Laws of England, Volume 8, Third Edition, it is stated in paragraph, 248 at page 143 : "As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy.
Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void.
" In the footnote it is pointed out that there are many statutory provisions expressed to apply "notwithstanding any agreement to the contrary", and also a stipulation by which a lessee is deprived of his right to apply for relief against forfeiture for breach of covenant (Law of Property Act, 1925).
Section 23 of the provides "The consideration or object of an agreement is lawful, unless it is forbidden by law; or 69 7 is of such a nature that, if permitted, it would defeat the provisions of any law or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful.
Every agreement of which the object or consideration is unlawful is void.
" It has never been the case of the respondent that the consideration or object of the agreement which was entered, into in June 1963 was forbidden by law.
Reliance has been placed mainly on the next part of the section, namely, that it is of such a nature that it would defeat the provision of any law and in the present case it would be section 1 A of the Act.
Now section 1 A does not employ language containing a prohibition against or impose any restriction on a landlord and a tenant entering into an agreement that they would not be governed by that section.
We concur with the view expressed in Neminath Appayya Hanumannavar vs Jamboorao Satappa Kocheri(1) that the words "if permitted it would defeat the provisions of any law" in section 23 of the Contract Act defer to performance of an agreement which necessarily entails the transgression of the Provisions of any law.
What makes an agreement, which is other wise legal, void is that its performance is impossible except by disobedience of law.
Clearly no question of illegality can arise unless the performance of the unlawful act was necessarily the effect of an agreement.
The following observations of Lord Wright in Vita Food Products Incorporated vs Unus Company Ltd.(1) (in Liquidation) are noteworthy in this connection "Nor must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only, and public policy understood in a wider sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds.
" We are unable to hold that the performance of the agreement which was entered into between the parties in the present case would involve an illegal or unlawful act.
In our judgment section 1 A. (1) A. I.R. (2) , 293.
698 was meant for the benefit of owners of buildings which were under erection or were constructed after January 1, 1951.
If a particular owner did not wish to avail of the benefit of that section there was no bar created by it in the way of his waiving, or giving up or abandoning the advantage or the benefit contemplated by the section.
No question of policy, much less public, policy, was involved and such a benefit or advantage could always be waived.
That is what was done in the present case and we are unable to agree with the High Court that the consideration or object of the agreement entered into between the parties in June 1962 was unlawful in view of section 23 of the Contract Act.
In the result the appeal is allowed, the judgment of the High Court is set aside and that of the trial court restored.
The appellant will be entitled to his costs in this, court.
V.P.S. Appeal allowed.

summary/full:
The appellant was the tenant of the respondents shop.
As the latter wanted to make some constructions they entered into ail agreement in 1962, according to which, the appellant was to vacate the shop but reoccupy it on the same rent as soon as the construction was completed.
It was also agreed that all the sections of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, shall be fully applicable to the new tenancy.
After the construction was completed the appellant resumed possession and offered rent.
The respondent refused the rent and filed a suit for ejectment.
In appeal, the High Court held that the appellant was not entitled to the protection of the Act, because, the res pondent was entitled to rely on section IA according to which nothing in the Act shall apply to a building constructed on or after 1st January, 1951, and that the agreement was unlawful within the meaning of section 23 of the .
In appeal to this Court, HELD : The general principle is that every one has a right to waive the advantage of a law, made for his benefit in his private capacity, when a public right or public policy is not infringed thereby.
Section 1A was meant for the benefit of owners of buildings constructed after January 1, 1951.
But there is no prohibition in the section against a land lord and his tenant entering into an agreement, that they would not be governed by that section.
If a particular owner did not want to avail himself of the benefit of the section, there was no bar created by it to his waiving or giving up or abandoning the advantage and no question of policy, or public policy is involved.
Therefore, the performance of the agreement in the present case would not entail the transgression of any law and the agreement was not void under section 23 of the .
[696 C; 69 7 D E; 698 A C] Neminath Appayya Hanumannavar vs
Jamboorao Sateppa Kochteri, A.I.R. (1966) Mys.
154, approved.
Vita Food Products Incorporated vs Unus Co. Ltd. (in Liquidation), at 291, referred to.


judgement:
Appeal No. 1728 of 1967.
Appeal by special leave from the judgment and order dated February 23, 1967 of the Bombay High Court, Nagpur Bench in Civil Revision No. 32 of 1965.
W. section Barlingay and A. G. Ratnaparkhi, for the appellants.
M. C. Bhandare and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judg ment of the Bombay High Court (Nagpur Bench).
The appel lants had filed a suit for claiming proprietary rights in a property which was known as "Navegaon tank" and which consisted of several khasras with a total acreage of 3104 odd.
These villages were Malguzari villages.
By virtue of the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands), Act, 1950 the malguzari of this tank were deprived of their rights and the Government took over possession.
The compensation was paid by the Government after holding enquiry provided by the Act.
The appellants, however, claimed a declaration that they still continued to be owners as before and wanted a permanent injunction restraining the Government from interfering with their rights.
Alternatively it was prayed that if the Government was found to be in possession then a decree for possession be granted in their favour.
605 The Court Fee which was paid by the appellants was cal culated on the following basis.
It was alleged that compensation of Rs. 1126/ only had been paid, to the proprietors and therefore the tank had to be valued on the basis of that figure for the purpose of court fee and jurisdiction.
In addition owing to the injunction claimed an additional court fee of Rs. 501 was paid.
On behalf of the State an objection was raised in the trial court that the value of the tank would not be less than Rs. 10,00,000/ and court fee on that amount should have been paid.
The trial court came to the conclusion that the suit was for possession of land on the evidence which was produced it was held that the value of the land was Rs. 25,00,000/ .
The appellants were directed to pay court fee on that amount and make appropriate amendments in the plaint.
The appellants approached the High Court on the revisional side and challenged the decision of the trial court on the question of court fee.
The High Court referred to section 6(i) (v) of the Bombay Court Fees Act, 1959, which was in force at the material time.
This provision may be reproduced "In suits for the possession of land, houses and gardens according to the value of the subject matter; and such value, shall be deemed to be, where the subject matter is a house or garden according to the market value of the house or garden and where the subject matter is land." (a). . (b) (c). .
According to the High Court the court fee was payable according to the value of the subject matter of the suit.
So far as the houses and gardens were concerned it was the market value on which the court fee had to be paid.
As regards the land subclauses (a), (b) and (c) contained a qualification with regard to those lands which were liable to pay land revenue to the State.
Since tank was land covered under water it had to be valued as on the date of the suit without taking into consideration the improvements which might have been made.
The value was of the subject matter and it would be that value which would be relevant for the purpose of court fee and jurisdiction.
The matter was remanded to the trial court for further enquiry in the matter.
It appears that according to the view of the High Court the court fee is payable under section 6 (i) (v) even with regard to land 606 on its value which according to the counsel for the State would be the market value.
In our judgment section 6 (i) (v) does not admit of any such method of calculating the court fee where the subject matter is land.
There is no doubt that where the subject matter is a house or a garden, in a suit for possession the court fee has to be paid according to the market value of the house or garden but where the subject matter is land the court fee has to be calculated according to what has been provided in the subclauses (a), (b) and (c) with regard to different categories of land.
It may be that in clause (v) the land which has not been assessed to land revenue is not covered by, clauses (a), (b) and (c) but then the court fee will have to be calculated under some ,other provision of the Act but not on the basis of the value of the land.
If there is any lacuna in the Bombay Act that will not justify the court in straining the language of clause (v) and reading it in such a way that if the land does not fall within sub clauses ,(a), (b) and (c) mentioned therein it must be valued in the same way as a house or a garden and court fee should be paid on that value.
If, however, it is found that the land underneath the tank is assessed to land revenue then there is no difficulty and the court fee has to be calculated in accordance with the provisions of section 6(i) (v).
But if the court fee cannot be determined under that provision it will be for the trial court to decide, under which provision court fee is payable and the appellant shall be required to pay that amount of court fee which is payable under the appropriate provision.
The appeal is consequently allowed and the order of the High Court is set aside.
The case is remanded to the trial court for disposal in accordance with law.
Costs shall abide the event.
K.B.N. Appeal allowed.

summary/full:
In a suit for possession of land court fee was held to be payable, under section 6(1) (v) of the Bombay Court Fees Act, 1959, on the value of the land.
On appeal, HELD : Under section 6(i)(v) in a suit for possession of land the court fee has to be calculated according to what has been provided in subclauses (a) (b) and (c) with regard to different categories of land.
It may be that in cl.
(v) the land which has not been assessed to land revenue is not covered by clause (a), (b) and (c) but then the court fee will have to be calculated under some other provision of the Act but not on the basis of the value of the land.
[606 A]