judgement:
ivil Appeal Nos.
1524 47 of 1973.
From the Judgment and Order dated 13.12.1972 of the Gujarat High Court in Wealth Tax References Nos.
6 to 11, 13, 15, 17, 18, 22,24 and 25 of 1971, 34, 39, and 40 of 1970, 20 and 42 of 1971, 22, 35, 41,42,43 & 38 of 1970.
S.C. Manchanda, B.B. Ahuja and Miss A. Subhashini for the Appellant.
F.S. Nariman, Mrs. A.K. Verma and K.J. John for the Respondents.
In Civil Appeal No. 1524 of 1973 the facts are these.
In the computation of his net wealth for the assessment year 1962 63, the corresponding valuation date being March 31, 1962, the assessee claimed a deduction in respect of debts which included amounts representing estimated liabilities on account of income tax and wealth tax for the assessment year 1962 63.
The Wealth Tax Officer rejected the claim on the ground that as those liabilities were claimed on the basis of an estimate they could not be regarded as 487 debts owed on the valuation dates.
In appeal before the Appellate Assistant Commissioner of Wealth Tax the assessee claimed the deduction of a larger sum on account of income tax, wealth tax and gift tax liabilities.
The Appellate Assistant Commissioner scrutinised the data placed before him and allowed part of the deductions claimed.
The Revenue now appealed to the Appellate Tribunal, and contended that the deductions on account of income tax, wealth tax and gift tax liabilities for the assessment year 1962 63 should have been allowed on the basis of the respective returns filed by the assessee and not on the basis of the final assessment as the assessment orders were made after the valuation date.
The Appellate Tribunal rejected the contention and dismissed the appeal.
At the instance of the Revenue, the Appellate Tribunal referred the case to the Gujarat High Court for its opinion on the question of law set forth earlier.
Similar references were made in other cases, and all of them were disposed of by a common judgment of the High Court dated December 13, 1972.
The High Court, relying on its earlier judgment in Commissioner of Wealth Tax vs Kantilal Manilal(1) held that the deduction admissible in computing the net wealth of the assessee must be calculated on the basis of the tax as finally determined on assessment though the assessment may have been made subsequent to the valuation date, and not on the basis of tax computed in accordance with the returns filed by the assessee.
In these appeals, it is contended on behalf of the Revenue that the High Court has erred, and that on a true construction of section 2 (m) of the Wealth Tax Act defining the expression "net wealth" the tax liability disclosed by the assessee in his returns should be taken as representing the debt owed by the assessee on the valuation date.
Now, it is settled law that an income tax liability becomes crystallized on the last day of the previous year corresponding to the particular assessment year, and a wealth tax liability becomes crystallized on the valuation date corresponding to the particular assessment year.
In each case the liabilities are perfected debts on the last day of previous year or the valuation date, as the case may be.
See Kesoram Industries and Cotton Mills Ltd. vs Commissioner of Wealth Tax (Central), Calcutta(2) and H.H. Setu Parvati Bayi vs Commissioner of Wealth Tax, Kerala.(3) Likewise, we think a gift 488 tax liability becomes crystallized, and therefore a perfected debt, on the last day of the previous year relevant to the particular assessement year.
See Commissioner of Wealth Tax, Madras vs K.S.N. Bhatt (1) The object and purpose of the assessment procedure prescribed by the relevant tax statute, be it the Income Tax Act, the Wealth Tax Act or the Gift Tax Act, is to quantify the precise amount of the tax liability.
The process is initiated ordinarily by the assessee filing a tax return, and thereupon the asssessment machinery swings into motion.
The tax return is scrutinised by the assessing authority and in accordance with the procedure detailed in the relevant statute the assessing authority proceeds to determine the true figure, in its opinion, of the asseessee 's taxable income or taxable wealth or total value of the taxable gifts, depending on whether it is a case of income tax, wealth tax or gift tax.
The assessment order made by the assessing authority specifies the assessed income, wealth or value of the gifts, and on that the corresponding tax liability is computed followed by a notice of demand.
The assessment order may be subjected to consideration in appeal before the Appellate Assistant Commissioner and thereafter the case may be carried in second appeal to the Appellate Tribunal, in reference to the High Court and ultimately in appeal before this Court.
At every stage, the endeavour of the authority, tribunal or court is to adjudicate on questions which will lead in the final result to a true determination of the tax liability.
There may be cases where the assessment finally made may be reopened in accordance with the procedure and subject to the conditions stated in the relevant statute.
There may also be cases where a rectification of apparent errors is effected pursuant to jurisdiction granted by the relevant statute.
Both these proceedings are similarly intended for the true quantification of the tax liability.
When, in the course of a wealth tax assessment, the assessee makes a claim to deduction on account of income tax, wealth tax and gift tax liabilities subsisting as debts owed by him on the valuation date, it is the final quantification of the particular tax liability which must be taken into account.
Where the wealth tax assessment so made is carried in appeal, we have no doubt that the appellate authority will take into account the ultimate quantification of the tax liability, even though such ultimate quantification has been reached after the relevant valuation date and during the pendency of the wealth tax appeal.
489 Upon the aforesaid considerations, we are of opinion that the High Court has acted rightly in holding that in computing the net wealth of the assessee the deduction admissible must be calculated on the basis of the tax as finally quantified on assessment even though the assessment may have been made subsequent to the valuation date.
Once an assessement order is passed, the data disclosed by the assessee in his return is no longer determinative of the assessee 's tax liability becomes in law it stands superseded by the assessment order.
The appeals are dimissed with costs.
H.S.K. Appeals dismissed.

summary/full:
The assessee while computing his net wealth claimed a deduction in respect of debts which included amounts representing estimated liabilities on account of income tax, wealth tax and gift tax.
The Wealth Tax Officer rejected the claim on the ground that as those liabilities were claimed on the basis of an estimate they could not be regarded as debts owed on the valuation date.
In appeal the Appellate Assistant Commissioner allowed part of the deductions claimed.
The Revenue 's appeal to the Appellate Tribunal was dismissed.
On a reference being made the High Court held against the Revenue.
In this Court the Revenue contended that on a true construction of sec.
2 (m) of the Wealth Tax Act defining the expression "net wealth" the tax liability disclosed by the assessee in his returns should.
be taken as representing the debts owed by the assessee on the valuation date.
Dismissing the appeals, ^ HELD: It is settled law that an income tax liability becomes crystallized on the last day of the previous year corresponding to the particular assessment year, and a wealth tax liability becomes crystallized on the valuation date corresponding to the particular assessment year.
In each case the liabilities are perfected debts on the last day of the previous year or the valuation date, as the case may be.
Likewise, a gift tax liability becomes crystallized, and therefore a perfected debt, on the last day of the previous year relevant to the particular assessment year.
[487 F G; 488 A] Kesoram Industries and Cotton Mills Ltd. vs Commissioner of Wealth Tax (Central), Calcutta; , ; H.H. Setu Parvati Bayi vs Commissioner of Wealth Tax, Kerala, ; and Commissioner of Wealth Tax, Madras vs K.S.N. Bhatt, Civil Appeals Nos. 384 to 387 of 1978, Judgment delivered on October 21, 1983 referred to.
When, in the course of a wealth tax assessment, the assessee makes a claim to deduction on account of income tax, wealth tax and gift tax liabilities 486 subsisting as debts owed by him on the valuation date, it is the final quantification of the particular tax liability which must be taken into account.
Where the wealth tax assessment so made is carried in appeal, there is no doubt that the appellate authority will take into account the ultimate quantification of the tax liability even though such ultimate quantification has been reached after the relevant valuation date and during the pendency of the wealth tax appeal.
[488 F G]


judgement:
titions Nos.
6890, 7204 of 1982 and 3491 of 1983.
Under article 32 of the Constitution of India Ram Jethmalani, V.M. Tarkunde and R. Dwivedi for the Petitioner.
M.K. Ramamurthi, D.P. Mukherjee and G.S. Chatterjee for the Respondents State of West Bengal.
K.K. Venugopal, M/s. Inderjit Sen and G.S. Chatterjee for the Respondent.
Danial A. Latiffi and R.S. Sodhi for the Intervener, All India Lawyers Union.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The petitioner in Writ Petition No. 6890/82, a monk of the Ananda Marga and currently General Secretary, Public Relations Department of the Ananda Marga Pracharak Sangh, has filed this petition under Article 32 of the Constitution for a direction to the Commissioner of Police, Calcutta and the State of West Bengal to allow processions to be carried in the public streets and meetings to be held in public places by the followers of the Ananda Marga cult accompanied by the performance of Tandava dance within the State of West Bengal.
There are two connected writ petitions being Writ Petition Nos.
7204/82 & 3491/83 by the Diocese Secretary of West Bengal Region and another follower of Ananda Marga.
All these Petitions raise this common question and have been heard at a time.
For convenience the petition by the General Secretary, Public Relations Department of the Ananda Marga Pracharak Sangh has been treated as the main petition and references in the judgment have been confined to it.
451 In the original petition certain factual assertions have been made and after counter affidavits were filed several further affidavits have been placed before the Court on behalf of the petitioner and counter affidavits too have been filed.
Shorn of unnecessary details, the averments on behalf of the respective contenders are as follows: Shri Pravat Ranjan Sarkar otherwise known as Shri Ananda Murti, founded a socio spiritual organisation claimed to have been dedicated to the service of humanity in different spheres of life such as physical, mental and spiritual, irrespective of caste, creed or colour, in the year 1955.
In the initial period the Headquarters of this organisation was located near Ranchi in the State of Bihar but later it has been shifted to a place within the City of Calcutta in West Bengal.
It has been pleaded that Ananda Marga contains no dogmatic beliefs and teaches the yogic and spiritual science to every aspirant.
In order to realise the Supreme, Ananda Marga does not believe that it is necessary to abandon home, profession or occupation and spiritual sadhana is possible at any place and concurrently with fulfilling all duties and responsibilities of family life.
It has been pleaded that Ananda Marga shows the way and explains the methods for spiritual advancement and this helps man to practice his dharma.
According to the petitioner Lord Shiva had performed Tandava Dance in 108 forms but Shaivite literature has given details of 64 kinds only.
Seven forms out of these 64 appear to have been commonly accepted and they are called Kalika, Gouri, Sandhya, Sambhara, Tripura, Urdhava and Ananda.
The first of these forms elaborates the main aspects of shiva while the seventh, i.e. the Ananda Tandava portrays all the manifold responsibilities of the Lord.
Ananda Tandava is claimed to have taken place at Tillai, the ancient name of Chidambaram now situated in the State of Tamil Nadu.
It is the petitioner 's stand that the word Tandava is derived from the root Tandu which means to jump about and Shiva was the originator of Tandava about 6500 years ago.
Ananda Murtiji, as the petitioner maintains, is the Supreme Father of the Ananda Margis.
It is customary for every Ananda Margi after being duly initiated to describe Ananda Murtiji as his father.
One of the prescriptions of religious rites to be daily performed by an Ananda Margi is Tandava Dance and this is claimed to have been so introduced from the year 1966 by the preceptor.
This dance is to be performed with a skull, a small, symbolic knife and a Trishul.
It is also customary to hold a lathi and a damroo.
It is explained that the knife or the sword symbolises the force which cuts through the fetters of the mundane world and 452 allows human beings to transcend towards perfection; the trishul or the trident symbolises the fight against static forces in the three different spheres of human existence spiritual, mental and physical; the lathi which is said to be a straight stick stands out as the symbol of straightforwardness or simplicity; the damroo is the symbol to bring out rhythmic harmony between eternal universal music and the entitative sound; and the skull is the symbol of death reminding every man that life is short and, therefore, every moment of life should be utilised in the service of mankind and salvation should be sought.
The petitioner has further maintained that Ananda Margis greet their spiritual preceptor Shri Ananda Murti with a dance of Tandava wherein one or two followers use the skull and the symbolic knife and dance for two or three minutes.
At intervals processions are intended to be taken out in public places accompanied by the Tandava dance as a religious practice.
Though in subsequent affidavits and in the course of argument an attempt was made by Mr. Tarkunde to assert that Ananda Marga is a new religious order, we do not think there is any justification to accept such a contention when it runs counter to the pleadings in paragraphs 4 and 17 of the writ petition.
In paragraph 4 it was specifically pleaded that "Ananda Marga is more a denomination than an institutionalised religion", and in paragraph 17 it was pleaded that "Ananda Margis are Shaivites. " We shall, therefore, proceed to deal with this petition on the footing that, as pleaded by the petitioner, Ananda Marga is a religious denomination of the Shaivite order which is a well known segment of Hindu religion.
Though the petitioner had pleaded that Tandava dance has been practiced and performed by every Ananda Margi for more than three decades, it has been conceded in the course of the hearing that Tandava Dance was introduced for the first time as a religious rite for Ananda Margis in or around 1966.
Therefore, by the time of institution of this writ petition the practice was at best prevalent for about 16 years.
The Commissioner of Police, respondent 1 before us is alleged to have made repetitive orders under section 144 of the Code of Criminal Procedure, 1973 ( 'Code ' for short) from August 1979, directing that "no member of a procession or assembly of five or more persons should carry any fire arms, explosives, swords, spears, knives, tridents, lathis or any article which may be used as weapon of offence or any article likely to cause annoyance to the 453 public, for example skulls. " A petition was filed before the Calcutta High Court under Article 226 of the Constitution by the General Secretary of Ananda Marga for a writ of mandamus against the respondents for a direction not to interfere with or place restraints on the freedom of conscience and free profession, practice and propogation of their religion, including Tandava Dance, in matter No. 903 of 1980.
The Calcutta High Court rejected the said petition on September 23, 1980 and observed: "It is open to any one in this country to practice any religion but the religious practice must not be inconsistent with the susceptibility or sensibility or fairness or public order.
Tandava dance as such may not be objectionable.
In the streets of Calcutta all kinds of demonstrations and procession are being held every day which may on many occasions cause disturbance to others and interrupt the free flow of traffic.
In spite of the same, such demonstrations and processions are allowed to take place particularly every day by the authority concerned.
If the petitioners or any member of their group want to hold a procession or reception or demonstration accompanied by any dance or music, that by itself may not be objectionable.
However, brandishing fire torches or skulls or daggers in the public places including streets cannot come under the same category.
Here other things are involved.
The interests of other members of the public are involved, the sense of security of the others is also involved.
The authorities concerned have to keep in mind the question of the feelings of other members of the public and the question of the possibility of any attempt to retaliate or counter act to the same are also to be considered.
Taking into consideration all these factors I am of the opinion that the petitioners do not have any legal right and they have not established any legal right to carry fire torches, skulls and daggers in public places or public streets and do not intend to pass any order entitling the petitioners to do so.
However, the petitioners shall be entitled to go in procession or hold any demonstration without any such fire tourches, daggers or skulls.
However, this would be subject to prevailing law of the land in the particular area.
For example, in the High Court, Dalhousie Square and Assembly order under section 144 454 of the Criminal Procedure Code is promulgated from time to time.
This order would not entitle the petitioners to hold any such procession, demonstration in violation of such promulgation, if any.
This order would also not entitle the petitioners to hold any procession or demonstration without the permission of the authority concerned when such permission is required for such purposes under any existing law.
" On March 29, 1982, respondent 1 made a fresh order under s.144 of the Code wherein the same restraints as mentioned in the earlier order were imposed.
An application for permission to take out a procession on the public street accompanied with Tandava dance was rejected and that led to the filing of this petition.
The petitioner asserts that tandava dance is an essential part of the religious rites of the Ananda Margis and that they are entitled to practise the same both in private as also in public places and interference by the respondents is opposed to the fundamental rights guaranteed under Articles 25 and 26 of the Constitution.
The order under s.144 of the Code has been assailed mainly on the ground that it does not state the material facts of the case though the statute requires such statement as a condition precedent to the making of the order.
Repetitive orders under s.144 of the Code, it has been contended, are not contemplated by the Code and, therefore, making of such orders is an abuse of the law and should not be countenanced.
Two separate returns have been made to the rule nisi.
Respondent 1 has filed a counter affidavit alleging that Ananda Marga is an organisation which believes in violence and if Ananda Margis are permitted to carry open swords or daggers in public processions it is bound, or likely, to disturb public peace and tranquillity and is fraught with the likelihood of breach of public order and would affect public morality.
Carrying of human skulls and indulging in provocative dances with human skulls is not only repulsive to public taste and morality, but is bound, and is likely, to raise fears in the minds of the people particularly children thereby affecting public order, morality, peace and tranquility.
It has been further pleaded that the petitioner, or for the matter of that, Ananda Margis can have no fundamental right to carry weapons in the public, in procession or otherwise, nor have they any right to perform tandava dance with daggers and human skulls.
It is stated that Ananda 455 Marga is a politico religious organisation started in 1961 by Shri Pravat Ranjan Sarkar alias Sri Ananda Murti, who is a self styled tantrik yogi.
Reference has been made to an incident of 1971 which led to prosecution of Sri Ananda Murti and some of his followers.
It is stated that militancy continues to be the main feature of the organisation.
Prior to promulgation of the prohibitory orders, it has been pleaded, Ananda Margis took out processions carrying lethal weapons like tridents, lathis as well as human skulls and knives from time to time and caused much annoyance to the public in general and onlookers in particular, and this tended to disturb public peace, tranquillity and public order.
In spite of the prohibitory orders in force from August 10, 1979, a procession was taken out on the following day within the city of Calcutta by Ananda Margis with lathis, tridents, Knives, skulls, and the procession became violent.
The assembly was declared unlawful and the police force was obliged to intervene.
The police personnel on duty including a Deputy Commissioner of Police received injuries.
Reference to several other incidents has also been made in the counter affidavit of the Police Commissioner.
The State Government has supported the stand of the Police Commissioner in its separate affidavit.
We have already indicated that the claim that Ananda Marga is a separate religion is not acceptable in view of the clear assertion that is was not an institutionalised religion but was a religious denomination.
The principle indicated by Gajendragadkar, CJ, while speaking for the Court in Sastri Yagnapurushadji & Ors.
vs Muldas Bhudardas Vaishya & Anr., also supports the conclusion that Ananda Marga cannot be a separate religion by itself.
In that case the question for consideration was whether the followers of Swaminarayan belonged to a religion different from that of Hinduism.
The learned Chief Justice observed: "Even a cursory study of the growth and development of Hindu religion through the ages shows that whenever a saint or a religious reformer attempted the task of reforming Hindu religion and fighting irrational or corrupt practices which had crept into it, a sect was born which was governed by its own tenets, but which basically subscribed to the fundamental notions of Hindu religion and Hindu philosophy. ' 456 The averments in the writ petition would seem to indicate a situation of this type.
We have also taken into consideration the writings of Shri Ananda Murti in books like Carya Carya, Namah Shivaya Shantaya, A Guide to Human Conduct, and Ananda Vachanamritam.
These writings by Shri Ananda Murti are essentially founded upon the essence of Hindu philosophy.
The test indicated by the learned Chief Justice in the case referred to above and the admission in paragraph 17 of the writ petition that Ananda Margis belong to the Shaivite order lead to the clear conclusion that Ananda Margis belong to the Hindu religion.
Mr. Tarkunde for the petitioner had claimed protection of Article 25 of the Constitution but in view of our finding that Ananda Marga is not a separate religion, application of Article 25 is not attracted.
The next aspect for consideration is whether Ananda Marga can be accepted to be a religious denomination.
In The Commissioner Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, Mukherjee, J. (as the learned Judge then was), spoke for the Court thus: "As regards article 26, the first question is, what is the precise meaning or connotation of the expression 'religious denomination ' and whether a Math could come within this expression.
The word 'denomination ' has been defined in the Oxford Dictionary to mean 'a collection of individuals classed together under the same name: a religious sect or body having a common faith and organisation and designated by a distinctive name '.
" This test has been followed in The Durgah Committee, Ajmer & Anr.
v, Syed Hussain Ali & Ors.
In the majority judgment in section P. Mittal etc.
vs Union of India & Ors reference to this aspect has also been made and it has been stated: "The words 'religious denomination ' in Article 26 of the Constitution must take their colour from the word 'religion ' and if this be so, the expression 'religious denomination ' must also satisfy three conditions: 457 (1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well being, that is, a common faith; (2) common organisation, and (3) designation by a distinctive name." Ananda Marga appears to satisfy all the three conditions, viz., it is a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well being; they have a common organisation and the collection of these individuals has a distinctive name.
Ananda Marga, therefore, can be appropriately treated as a religious denomination, within the Hindu religion.
Article 26 of the Constitution provides that subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion.
Mukherjea, J. in Lakshmindra Thirtha Swamiar 's case (supra) adverted to the question as to what were the matters of religion and stated: "What then are matters of religion ! The word 'religion ' has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition.
In an American case (Davie vs Benson; , at 342), it has been said "that the term 'religion ' has reference to one 's views of his relation to his Creator and to the obligations they impose of reverence for His Being and Character and of obedience to His will.
It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter".
We do not think that the above definition can be regarded as either precise or adequate.
Articles 25 and 26 of our Constitution are based for the most part upon article 44(2) of the Constitution of Eire and we have great doubt whether a definition of 'religion ' as given above could have been in the minds of our Constitution makers when they framed the Constitution.
Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic.
There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause.
A religion undoubtedly 458 has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief.
A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress. " "Restrictions by the State upon free exercise of religion are permitted both under Articles 25 and 26 on grounds of public order, morality and health.
Clause (2) (a) of article 25 reserved the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices . " "The contention formulated in such broad terms cannot, we think, be supported.
In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.
It the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b). " Courts have the power to determine whether a particular rite or observance is regarded as essential by the tenets of a particular 459 religion.
In Laxshmindra Thirtha Swamiar 's case, Mukherjea, J. observed: "This difference in judicial opinion brings out forcibly the difficult task which a Court has to perform in cases of this type where the freedom of religious convictions genuinely entertained by men come into conflict with the proper political attitude which is expected from citizens in matters of unity and solidarity of the State organization." The same question arose in the case of Ratilal Panachand Gandhi vs State of Bombay & Ors.(1) The Court did go into the question whether certain matters appertained to religion and concluded by saying that "these are certainly not matters of religion and the objection raised with regard to the validity of these provisions seems to be altogether baseless." In Tilkayat Shri Govindlalji Maharaj vs State of Rajasthan & Ors.,(2) this Court went into the question as to whether the tenets of the Vallabh denomination and its religious practices require that the worship by the devotees should be performed at the private temples and, therefore, the existence of public temples was inconsistent with the said tenets and practices, and on an examination of this question, negatived the plea.
The question for consideration now, therefore, is whether performance of Tandava dance is a religious rite or practice essential to the tenets of the religious faith of the Ananda Margis.
We have already indicated that tandava dance was not accepted as an essential religious rite of Ananda Margis when in 1955 the Ananda Marga order was first established.
It is the specific case of the petitioner that Shri Ananda Murti introduced tandava as a part of religious rites of Ananda Margis later in 1966.
Ananda Marga as a religious order is of recent origin and tandava dance as a part of religious rites of that order is still more recent.
It is doubtful as to whether in such circumstances tandava dance can be taken as an essential religious rite of the Ananda Margis.
Even conceding that it is so, it is difficult to accept Mr. Tarkunde 's argument that taking out religious processions with tandava dance is an essential religious rite of Ananda Margis.
In paragraph 17 of the writ petition the petitioner pleaded that "Tandava Dance lasts for a few minutes where two or 460 three persons dance by lifting one leg to the level of the chest, bringing it down and lifting the other." In paragraph 18 it has been pleaded that "when the Ananda Margis greet their spiritual preceptor at the airport, etc., they arrange for a brief welcome dance of tandava wherein one or two persons use the skull and symbolic knife and dance for two or three minutes.
" In paragraph 26 it has been pleaded that "Tandava is a custom among the sect members and it is a customary performance and its origin is over four thousand years old, hence it is not a new invention of Ananda Margis.
" On the basis of the literature of the Ananda Marga denomination it has been contended that there is prescription of the performance of tandava dance by every follower of Ananda Marga.
Even conceding that tandava dance has been prescribed as a religious rite for every follower of the Ananda Marg it does not follow as a necessary corollary that tandava dance to be performed in the public is a matter of religious rite.
In fact, there is no justification in any of the writings of Shri Ananda Murti that tandava dance must be performed in public.
Atleast none could be shown to us by Mr. Tarkunde despite an enquiry by us in that behalf.
We are, therefore, not in a position to accept the contention of Mr. Tarkunde that performance of tandava dance in a procession or at public places is an essential religious rite to be performed by every Ananda Margi.
Once we reach this conclusion, the claim that the petitioner has a fundamental right within the meaning of Articles 25 or 26 to perform tandava dance in public streets and public places has to be rejected.
In view of this finding it is no more necessary to consider whether the prohibitory order was justified in the interest of public order as provided in Article 25.
It is the petitioner 's definite case that the prohibitory orders under section 144 of the Code are being repeated at regular intervals from August 1979.
Copies of several prohibitory orders made from time to time have been produced before us and it is not the case of the respondents that such repetitive prohibitory orders have not been made.
The order under section 144 of the Code made in March 1982 has also been challenged on the ground that the material facts of the case have not been stated.
Section 144 of the Code.
as far as relevant, provides: "(1) In cases where in the opinion of a District Magistrate, a Sub Divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a 461 written order stating the material facts of the case and served in the manner provided by section 134, direct. " It has been the contention of Mr. Tarkunde that the right to make the order is conditioned upon it being a written one and the material facts of the case being stated.
Some High Courts have taken the view that this is a positive requirement and the validity of the order depends upon compliance of this provision.
In our opinion it is not necessary to go into this question as counsel for the respondents conceded that this is one of the requirements of the provision and if the power has to be exercised it should be exercised in the manner provided on pain of invalidating for non compliance.
There is currently in force a prohibitory order in the same terms and hence the question cannot be said to be academic.
The other aspect, viz., the propriety of repetitive prohibitory orders is, however, to our mind a serious matter and since long arguments have been advanced, we propose to deal with it.
In this case as fact from October 1979 till 1982 at the interval of almost two months orders under section 144(1) of the Code have been made from time to time.
It is not disputed before us that the power conferred under this section is intended for immediate prevention of breach of peace or speedy remedy.
An order made under this section is to remain valid for two months from the date of its making as provided in sub section (4) of section 144.
The proviso to sub section
(4) authorises the State Government in case it considers it necessary so to do for preventing danger to human life, health or safety, or for preventing a riot or any affray, to direct by notification that an order made by a Magistrate may remain in force for a further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired.
The effect of the proviso, therefore, is that the State Government would be entitled to give the prohibitory order an additional term of life but that would be limited to six months beyond the two months ' period in terms of sub section
(4) of section 144 of the Code.
Several decisions of different High Courts have rightly taken the view that it is not legitimate to go on making successive orders after earlier orders have lapsed by efflux of time.
A Full Bench consisting of the entire Court of 12 Judges in Gopi Mohun Mullick vs Taramoni Chowdhrani(1) examining the provisions of section 518 of the Code of 1861 (corresponding to present section 144) took the view that such an action was beyond the Magistrate 's powers.
Making of successive orders was disapproved by the Division Bench of the Calcutta High Court 462 in Bishessur Chuckerbutty & Anr.
vs Emperor.(1) Similar view was taken in Swaminatha Mudaliar vs Gopalakrishna Naidu;(2) Taturam Sahu vs The State of Orissa;(3) Ram Das Gaur vs The City Magistrate, Varanasi;(4) and Ram Narain Sah & Anr.
vs Parmeshwar Prasad Sah & Ors.(5) We have no doubt that the ratio of these decisions represents a correct statement of the legal position.
The proviso to sub section
(4) of section 144 which gives the State Government jurisdiction to extend the prohibitory order for a maximum period of six months beyond the life of the order made by the Magistrate is clearly indicative of the position that Parliament never intended the life of an order under section 144 of the Code to remain in force beyond two months when made by a Magistrate.
The scheme of that section does not contemplate repetitive orders and in case the situation so warrants steps have to be taken under other provisions of the law such as section 107 or section 145 of the Code when individual disputes are raised and to meet a situation such as here, there are provisions to be found in the Police Act.
If repetitive orders are made it would clearly amount to abuse of the power conferred by s.144 of the Code.
It is relevant to advert to the decision of this Court in Babulal Parate vs State of Maharashtra & Ors.,(6) where the vires of section 144 of the Code was challenged.
Upholding the provision, this Court observed: "Public order has to be maintained in advance in order to ensure it and, therefore, it is competent to a legislature to pass a law permitting an appropriate authority to take anticipatory action or place anticipatory restrictions upon particular kinds of acts in an emergency for the purpose of maintaining public order. " It was again emphasized: "But it is difficult to say that an anticipatory action taken by such an authority in an emergency where danger to public order is genuinely apprehended is anything other than an action done in the discharge of the duty to maintain order. " 463 This Court had, therefore, appropriately stressed upon the feature that the provision of section 144 of the Code was intended to meet an emergency.
This postulates a situation temporary in character and, therefore, the duration of an order under section 144 of the Code could never have been intended to be semi permanent in character.
Similar view was expressed by this Court in Gulam Abbas & Ors.
vs State of U.P. & Ors., where it was said that "the entire basis of action under section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquillity . " Certain observations in Gulam Abbas 's decision regarding the nature of the order under section 144 of the Code judicial or executive to the extent they run counter to the decision of the Constitution Bench in Babulal Parate 's case, may require reconsideration but we agree that the nature of the order under section 144 of the Code is intended to meet emergent situation.
Thus the clear and definite view of this Court is that an order under section 144 of the Code is not intended to be either permanent or semi permanent in character.
The concensus of judicial opinion in the High Courts of the country is thus in accord with the view expressed by this Court.
It is not necessary on that ground to quash the impugned order of March 1982 as by efflux of time it has already ceased to be effective.
It is appropriate to take note of the fact that the impugned order under section 144 of the Code did not ban processions or gatherings at public places even by Ananda Margis.
The prohibition was with reference to the carrying of daggers, trishuls and skulls.
Even performance of tandava dance in public places, which we have held is not an essential part of religious rites to be observed by Ananda Margis, without these, has not been prohibited.
The writ petitions have to fail on our finding that performance of tandava dance in procession in the public streets or in gatherings in public places is not an essential religious rite of the followers of Ananda Marga.
In the circumstance there will be no order as to costs.

dataset_name: IN-Abs

summary/full:
Respondent No. 1 was alleged to have been making repetitive orders under s.144 of the Code of Criminal Procedure, 1973 from August 1979 directing that no member of a procession or assembly of five or more persons should carry any fire arms, explosives, swords, spears, knives, tridents, lathis or any article which may be used as weapon of offence or any article likely to cause annoyance to the public, for example skulls.
A writ petition was filed in the High Court for a direction on the respondents not to impose such restraints on the followers of Ananda Marga.
The High Court dismissed the writ petition.
The respondent No. 1 made a similar order on March 29, 1982.
An application for permission to take out a procession in the public streets by the followers of Ananda Marga accompanied with Tandava dance was rejected.
The petitioner filed writ petition under article 32 of the Constitution for a direction to the respondent No. 1 and the State to allow procession to be carried in the public streets and meetings to be held in public places by the followers of the Ananda Marga accompanied by the performance of Tandava dance within the State of West Bengal.
The petitioner submitted that Ananda Marga was a socio spiritual organisation dedicated to the service of humanity in different spheres of life such as physical, mental and spiritual, irrespective of caste.
creed or colour; one of the prescriptions of the religious rites to be 448 performed by an Ananda Margi was Tandava dance which was to be performed with a skull, a small symbolic knife, a trishul, and a damroo; and at intervals processions were intended to be taken out in public places accompanied by the Tandava Dance as a religious practice.
The petitioner contended that Tandava Dance was an essential part of the religious rites of Ananda Margis and that they were entitled to practice the same both in private as also in public places and interference by the respondent was opposed to the fundamental rights guaranteed under articles 25 and 26 of the Constitution.
The petitioner also contended that repetitive orders under s.144 of the Code of Criminal Procedure were not contemplated by the Code and, therefore, making of such orders was an abuse of the law and should not be countenanced.
Dismissing the writ petitions, ^ HELD: The Ananda Marga is not a separate religion by itself.
Therefore, application of article 25 of the Constitution is not attracted.
The petitioner asserted that Ananda Marga was not an institutionalised religion but was a religious denomination.
The writings of the founder of the Ananda Marga are essentially founded upon the essence of the Hindu philosophy.
The test indicated in ; and the admission in para 17 of the writ petition that Ananda Margis belong to the Shaivite order lead to the clear conclusion that Ananda Margis belong to the Hindu religion.
[455 E.456 C] Sastri Yagnapurushadji & Ors.
vs Muldas Bhudar das Vaishya & Anr., ; , referred to.
The words 'religious denomination ' in article 26 of the Constitution must take their colour from the word 'religion ' and if this be so, the expression religious denomination ' must also satisfy three conditions: (1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well being, that is, a common faith; (2) common organisation; and (3) designation by a distinctive name.
In the instant case Ananda Marga appears to satisfy all the three conditions.
Ananda Marga, therefore, can be appropriately treated as a religious denomination within the Hindu religion.
[456 G 457 C] The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar or Sri Shirur Mutt; , at 1021; The Durgah Committee Ajmer & Anr.
vs Syed Hussain Ali & Ors., ; ; and S.P. Mittal etc.
vs Union of India & Ors.
, ; at 774 referred to.
449 Article 26 of the Constitution provides that subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion.
Courts have the power to determine whether a particular rite or observance is regarded as essential by the tenets of a particular religion.
[457 C D, 458 H] Ratilal Panachand Gandhi vs The State of Bombay & Ors., [1954] S.C.R. 1055; and Tilkayat Shri Govindlalji Maharaj vs The State of Rajasthan & Ors., [1964] 1 S.C.R. 561 referred to.
In the instant case the Tandva dance was not accepted as an essential religious rite of Ananda Margis when in 1955 the Ananda Marga order was first established.
It is the specific case of the petitioner that Shri Ananda Murti, founder of Ananda Marga, introduced Tandva as a part of religious rites of Ananda Margis later in 1966.
Ananda Marga as a religious order is of recent origin and Tandva dance as a part of religious rites of that order is still more recent.
It is doubtful as to whether in such circumstances Tandva dance can be taken as an essential religious rite of the Ananda Margis.
Even conceding that Tandva dance has been prescribed as a religious rite for every follower of the Ananda Marga it does not follow as a necessary corollary that Tandava dance to be performed in the public in a religious procession is a matter of religious rite.
In fact, there is no justification in any of the writings of Shri Ananda Murti that Tandava dance must be performed in public.
Therefore, performance of Tandava dance in procession in the public streets or in gatherings in public places is not an essential religious rite of the followers of the Ananda Marga.
Thus, the Claim that the petitioner has a fundamental right within the meaning of articles 25 or 26 to perform Tandava dance in public streets and public places has to be rejected.
[459 E 460 E] An order made under s.144 of the Code of Criminal Procedure is intended to meet an emergent situation.
The order is not intended to be either permanent or semi permanent in character.
The order is to remain valid for two months from the date of its making as provided in sub s.(4) of s.144.
The proviso to sub s.(4) of s.144 which gives the State Government jurisdiction to extend the prohibitory order for a maximum period of six months beyond the life of the order made by the Magistrate is clearly indicative of the position that Parliament never intended the life of the order under s.144 of the Code to remain in force beyond two months when made by a Magistrate.
The scheme of that section does not contemplate repetitive orders and in case the situation so warrants steps have to be taken under other provisions of the law such as s.107 or s.145 of the Code when individual disputes are raised and to meet a situation such as in this case, there are provisions to be found in the Police Act.
If repetitive orders are made it would clearly amount to abuse of the power conferred by s.144 of the Code.
[461 D 462 D] Gopi Mohun Mullick vs Taramoni Chowdhrani, ILR 5 Cal. 7; Bishessur Chuckerbutty & Anr.
vs Emperor, A.I.R. 1916 Cal.
47; Swaminatha Mudaliar vs Gopalakrishna Naidu, A.I.R. ; Taturam sahu vs The State of Orissa, A.I.R. 1953 Orissa 96; Ram Das Gaur vs The City Magistrate, Varanasi, 450 A.I.R. 1960 All. 397; and Ram Narain Sah & Anr.
vs Parmeshwar Prasad Sah & Ors., A.I.R. 1942 Pat.
414, approved.
Babulal Parate vs State of Maharashtra & Ors., ; at 437; and Gulam Abbas & Ors.
vs State of U.P. & Ors.
,[1981] at 1862, referred to.


judgement:
Civil Appeal No. 1423 (NT) of 1973.
From the Judgment and Order dated the 13th December, 1972 of the Gujarat High Court at Ahmedabad in Wealth Tax Reference No. 21 of 1971.
S.C. Manchanda, B.B. Ahuja and Miss A. Subhashini for the appellant.
The Wealth Tax Officer rejected the claim.
An appeal by the assessee was allowed by the Appellate Assistant Commissioner, who held the assessee entitled to the deduction claimed but remanded the case to the Wealth Tax Officer for verifying the arithmetical accuracy of the claimed deductions.
The Wealth Tax Officer appealed to the Appellate Tribunal.
He contended that the assessee 's claim to the deduction of income tax liabilities for the assessment years 1962 63, 1963 64 and 1964 65, the wealth tax liability for the assessment year 1964 65 and the gift tax liabilities for the assessment years 1962 63, 1963 64 and 1964 65 determined on the basis of assessment completed after the valuation date were not admissible deductions in computing the net wealth, and that in any event, the deductions should have been allowed on the basis of the returns filed and not on the basis of the assessment orders.
The Appellate Tribunal rejected the contention in view of the judgment of this Court in Commissioner of Income Tax vs Kesoram Industries Pvt. Ltd. and H.H. Setu Parvati Bayi vs Commissioner of Wealth Tax, Kerala.
The Wealth Tax Officer also contended that the income tax liability for the years 1958 59 and 1960 61 and the wealth tax liability for the year 1961 62 created as a result of rectification orders made after the valuation date were not admissible deductions.
This contention was also rejected by the Appellate Tribunal.
Finally, the Wealth Tax Officer pointed out that the tax liabilities were not deductible in view of the provisions of section 2 (m) (iii) of the Wealth Tax Act.
The Appellate Tribunal observed that this aspect of the case had not been considered by the Appellate Assistant Commissioner and, accordingly, the Appellate Tribunal directed the Appellate Assistant Commissioner to consider the case again and determine which of the liabilities were covered by the provisions of section 2 (m) (iii).
On a reference being made to the Gujarat High Court at the instance of the Revenue on the questions of law set forth earlier, the High Court held that both questions were concluded by its judgment in Commissioner of Wealth Tax, Gujarat II vs Kantilal Manilal, and answered the questions in the affirmative.
As regards the first question, we have already expressed our view on the point in our judgment in The Commissioner of Wealth Tax, Gujarat, Ahmedabad vs Shri Vadilal Lallubhai etc.
in Civil Appeals 483 Nos. 1524 to 1547 of 1973.
We need add nothing more on that point, and answer the question in the affirmative.
The second question raises the point whether the income tax liability and wealth tax liability created in consequence of rectification orders passed after the relevant valuation date can be the subject of a claim to deduction in the computation of an assessee 's net wealth.
In appears from the record before us that while the Wealth Tax Officer completed the assessment proceeding for the assessment year 1964 65 by the assessment order dated November 23, 1964, the rectification order under section 154 of the Income Tax Act for the assessment year 1958 59 was made on May 13, 1966 and the rectification order under the same provision for the assessment year 1960 61 was made on January 1, 1965, and the rectification order under section 35 of the Wealth Tax Act for the assessment year 1961 62 was made on June 10, 1965.
In short, the rectification orders were made after the assessment proceeding had been completed by the Wealth Tax Officer.
It would seem that the claim to deduction on account of the income tax liabilities and the wealth tax liability was made in the course of the appeal before the Appellate Assistant Commissioner.
From the record, it appears also that the income tax liabilities, the wealth tax liability and the gift tax liabilities claimed as a deduction were quantified by assessment orders made after the Wealth Tax Officer had completed the assessment proceeding.
Those assessment orders were apparently brought to the notice of the Appellate Assistant Commissioner by the assessee during the hearing of Appeal filed the assessee.
Shri S.C. Manchanda, learned counsel for the Revenue, urges that the judgment of Gujarat High Court in Kantilal Manilal (supra) does not conclude the question arising on this claim because the High Court was concerned with a claim to deduction on account of income tax, wealth tax and gift tax liabilities which had arisen before the Wealth Tax Officer had completed the assessment before him.
Be that as it may, it is well settled that when an appeal is filed against an assessment order before the Appellate Assistant Commissioner, the assessment case is thrown open and the appellate proceeding constitutes a continuation of the assessment proceeding.
Even if the tax liabilities, of which a deduction was claimed, were created by rectification orders or by assessment orders made after the date of the wealth tax assessment order under appeal the law requires the claim to deduction being considered on the same basis as if it had been made in the original wealth tax assessment proceeding.
It is true that the rectification orders and the gift tax assessment related to tax 484 liabilities which were not claimed by the assessee in the course of the original assessment proceeding before the Wealth Tax Officer, but as the Appellate Assistant Commissioner permitted the claim to be made during the hearing of the appeal, we see no reason why the asseesee should be denied consideration of his claim.
And as regards the quantification of the other income tax and wealth tax liabilities effected after the Wealth Tax Officer had completed the original wealth tax assessment proceeding, the quantification of the liabilities related to claim which had already been raised before the Wealth Tax Officer in the course of the original assessment proceeding.
As we have observed in The Commissioner of Wealth Tax, Gujarat, Ahmedabad vs Shri Vadilal Lallubhai etc.(1) in Civil Appeals Nos.
1524 to 1547 of 1973, the rectification of an assessment must be treated on the same basis as an original assessment for the purpose of a claim to deduction in the computation of the assessee 's net wealth.
The rectification merely quantifies the true tax liability which had already been crystalized and become a debt on the last day of the previous year in the case of an income tax liability, on the valuation date in the case of a wealth tax liability and on the last day of the previous year in the case of a gift tax liability.
In the result, we hold that both the questions set forth earlier must be answered in favour of the assessee and against the Revenue.
The appeal is therefore dismissed.
As the assessee is absent, there is no order as to costs.

summary/full:
During the course of the hearing of an appeal against an assessment order made under the Wealth Tax Act for the assessment year 1964 65, the respondent who was the assessee, claimed deduction of an amount in the computation of net wealth which inter alia included the income tax and wealth tax liabilities created in consequence of certain rectification orders made under section 154 of the Income Tax Act and section 35 of the Wealth Tax Act.
The rectification order related to assessment of income tax/wealth tax for the previous years and had been made after the completion of the assessment proceedings under the Wealth Tax Act for the assessment year 1964 65.
The deduction claimed was allowed by the Appellate Assistant Commissioner and his decision was upheld by the Appellate Tribunal and the High Court.
Dismissing the appeal, ^ HELD: The rectification of an assessment must be treated on the same basis as an original assessment for the purpose of a claim to deduction in the computation of the assessee 's net wealth.
The rectification merely quantifies the true tax liability which had already been crystalized and become a debt on the last day of the previous year in the case of income tax liability, and, on the valuation date in the case of a wealth tax liability.
[484 C D] Commissioner of Wealth Tax, Gujarat vs Shri Vadilal Lallubhai (C.A. Nos.
1524 to 1527 of 1973 decided on 21.10.1983) referred to.
When an appeal is filed against an assessment order before the Appellate Assistant Commissioner, the assessment case is thrown open and the appellate proceeding constitutes a continuation of the assessment proceeding.
Even if the tax liabilities, of which a deduction is claimed, are created by rectification orders or by assessment orders made after the date of the wealth tax assessment order under appeal, the law requires the claim to deduction being considered on the same basis as if it had been made in the original wealth tax assessment proceeding.
[483 F H] 481 In the instant case, it is true that the rectification orders related to tax liabilities which were not claimed by the assessee in the course of the original assessment proceeding before the Wealth Tax officer but as the Appellate Assistant Commissioner permitted the claim to be made during the hearing of the appeal, there is no reason why the assessee should be denied consideration of his claim.
[483 H; 484 A]


judgement:
ivil Appeal No. 10083 of 1983.
From the Judgment and Order dated the 8th April, 1983 of the Madras High Court in CMP No. 1368 of 1981 (Review Petition) in S.A.No. 86 of 1978.
C.S. Vaidyanthan for the Appellant.
T.S. Krishnamoorthi Iyer, section Balakrishnan and M.K. Namoodri for the Respondents.
The Judgment of the Court was delivered by VARADARAJAN, J.
This appeal by special leave is directed against an order of the learned Single Judge of the Madras High Court, made in C.M.P. No. 1368 of 1983, reviewing his judgment in Second Appeal No. 86 of 1978 which he dismissed on 24 7 1981, confirming the judgment in Appeal Suit No. 135 of 1974 of the learned Subordinate Judge, Padmanabhapuram who in turn confirmed the judgment of the learned Principal District Munsif, Padmanabhapuram in Original Suit No. 365 of 1973.
The appellant Soundararaj filed the suit for demarcating the boundaries of his A schedule property bearing survey No. 3199 on which his building stands from the respondents ' B schedule property bearing survey No. 3153 on which their buildings stand and for a mandatory injuction directing the respondents to remove the eaves protruding on the northern side by reason of which the eaves water was falling into his property.
499 The respondents denied that they encroached upon any portion of the appellant 's property and contended that he had with ulterior motives removed the survey stones on the north eastern and north western sides of survey No. 3153 belonging to them and that after encroaching upon some portion of road poromboke he is claiming that the actual area of survey No. 3199 belonging to him is more than the area as per the settlement.
They contended that the eaves water falls only on their own land and that the appellant 's claim for mandatory injunction is not sustainable in law.
They further contended that even if it is found that the eaves water from their buildings falls on the appellant 's property he has no right to object to it because they have acquired the right by prescription to allow the eaves water from their roof to fall into the property on which it is now falling.
The parties did not produce their respective title deeds.
The appellant produced the Government Survey Plan Exhibit A 3.
The Advocate Commissioner who was directed to make a local inspection and file a report, filed his report Exhibit C 1 and plans exhibit C 2 and C 3 which were drawn to scale of 1 inch to 40 links.
The respondents did not file any objection to the Commissioner 's report and plans, while the appellant filed his objections to them.
The appellant contended before the Trial Court that the plan exhibit C 2 should be accepted for deciding the question of the boundary of his property whereas the respondents contended that the plan exhibit C 3 should be accepted as the basis for determination of the boundary.
The Trial Court accepted the appellant 's contention that the correct measurement of the diagonal line JC in the Government plan exhibit A 3 is 119 links and that the measurement given in it as 113 links is wrong.
The learned District Munsif took his own measurements by using a scale and was convinced on an inspection of the plans that the plan exhibit C 2 is the correct basis for determining the boundary line and that the demarcating line for survey No. 3153 belonging to the respondents is JR and not JD on the north and ZI and IJ on the other side, in exhibit C 2.
As regards the eaves the learned District Munsif found that the northern and western eaves of the respondents ' building protruding into the appellant 's property as indicated in the plan exhibit C 2 should be shortened as indicated in exhibit C 2 and that the respondents have not perfected any right of easement by prescription.
In this view the learned District Munsif passed a decree for demarcation of the appellant 's property by putting up a boundary wall to a height of 7 feet immediately west of ZI and on IJ and JR 500 within the appellant 's property and for a mandatory injunction directing the removal of portions of the eaves of the respondents ' buildings west of ZI and IJ and north of JR.
The first appellate court 's judgment has not been made available in the records before us.
But it is seen from the judgment of the learned Single Judge of the High Court in the second appeal that the learned Subordinate Judge had confirmed the Trial Court 's judgment and decree in toto.
In the second appeal the boundary fixed by the Trial Court on the Western side was acceptable to both the parties and the dispute was only with regard to the demarcation of the boundary line on the other side of the respondent 's property.
The respondents ' contention in the second appeal was that the measurement given in exhibit C 3 should be accepted and not those given in exhibit C 2, a contention which did not find favour with either the Trial Court or the first appellate court.
The learned Single Judge negatived the respondents ' contention in that regard observing thus: "In the first place the finding that is impugned is purely factual in character and it does not involve any question of law.
On this simple ground, the contention of the appellants deserves to fall and the appeal could well be dismissed.
Even otherwise I find on merits, the appellants do not have a case at all.
The trial court as well as the lower appellate court have chosen to place reliance on Exhibit C 2 rather on Exhibit C 3 because the measurements given in Exhibit C 2 tally with the measurements given in Exhibit A 3, the survey plan.
It is common ground the measurements given in Exhibit C 3 do not tally.
The appellants who now assail the correctness of the measurements giving in Exhibit C 2 have not filed any objection to the Commissioner 's report and the markings contained in Exhibit C 2 before the trial court.
Having regard to these factors, it is not open to the appellants now to contend that the Commissioner 's report and the markings contained in Exhibit C 2 are not correct. ." Consequently it follows that there is no justification whatever to interfere with the findings recorded concurrently by the courts below.
501 Regarding the eaves the learned Single Judge rejected the respondents ' contention observing thus: "The counsel for the appellants then stated that it will cause hardship to the appellants if they were to remove a portion of their eaves projecting into the land of the respondents and also to close the doorways opened by them.
This is not a relevant factor for consideration in the appeal.
Once it is found that the appellants are not entitled to any space of land beyond the line JR, they are not entitled to have their eaves projecting into the respondents ' land or to open any doorways leading into his land.
" With these observations the learned Single Judge dismissed the second appeal with no order as to costs.
But when the review petition filed by the respondents came up before the learned Single Judge he noticed the error in the measurement of the diagonal line JC in the Government survey plan exhibit A 3 pointed out by the Trial Court and opined that in view of that mistake there should be a fresh consideration of the question whether exhibit C 3 or exhibit C 2 merits acceptance because exhibit C 2 has been found by the first two courts to be more acceptable on the ground that the measurements given therein tally with those given in exhibit A 3.
The learned Judge further opined that the parties who had not chosen to produce their title deeds for some reason or other should be called upon to produce them, and that there was substance in the respondents ' contention that the survey stone at the northern limit of their property bearing survey No. 3154 has been removed and that its position should be fixed and measurements taken from that point for determining the boundary of the appellant 's property on the northeast at the point X or Point E.
The learned Judge further opined that as regards the projecting eaves the question is of adverse possession for a period of 12 years which is for acquisition of right to moveable property and not the larger period relating to acquisition of a right of easement, overlooking the fact that the parties and all the courts until the review petition was filed understood the case to be only one of easement After hearing the learned Counsel of the parties we are satisfied that the learned Single Judge was not fully justified in allowing the review petition and setting aside not only his own judgment which 502 had confirmed the concurring judgments of the first two courts but also of the opinion that the learned Judge erred in setting aside the judgments of the first two courts and remanding the suit to the court of first instance without adopting the more equitable and just method of framing some additional issues, if any, strictly arising on the pleadings and calling for findings on those issues from the Trial Court with liberty to both the parties for adducing evidence.
Under the circumstances of the case we allow the appeal in part and confirm the learned Single Judges ' order only in so far as it relates to setting aside his own judgment in the second appeal but set aside that order in other respects keeping in tact the judgments and decrees of the first two courts.
The High Court will frame such additional issues as may legally arise on the pleadings of the parties and call for findings thereon from the Trial Court as mentioned above and dispose of the second appeal after receipt of the findings in the light of those findings and judgments of the first two courts already rendered and the objections, if any, which may be filed by the parties to the findings.
It is desirable that a fresh mind is brought to bear on the questions involved in the second appeal after receipt of the findings.
The matter will go back to the High Court for fresh disposal in accordance with the law as indicated above.
The costs shall abide the result.
The parties are directed to appear before the High Court on November 17, 1983.
N.V.K. Appeal allowed.

summary/full:
The appellant filed a suit in the District Munsiffs ' Court for demarcating the boundaries of his property from that of the respondents and for a mandatory injunction directing the respondents to remove the eaves protruding on the northern side by reason of which the 'eaves ' water was falling into his property.
The respondents denied that they encroached upon any portion of the appellants property and contended that the appellant had with ulterior motive removed the survey stones in the north eastern and north western side of the respondents ' property and had encroached upon some portion of their land.
It was further contended that the eaves ' water fell only on their own land and that the mandatory injunction claimed was not sustainable in law.
An Advocate Commissioner who was directed to make a local inspection filed his report.
The Trial Court passed a decree for demarcation of the property by putting up of a boundary wall within the appellant 's property and also issued a mandatory injunction directing the removal of portions of the eaves of the respondents ' buildings.
The Trial Court Judgment was confirmed by the Subordinate Judge in appeal.
In the second appeal to the High Court, a Single Judge rejected the contention of the respondents that the measurements in the Commissioner 's report and the markings contained in his plan were not correct, and dismissed the second appeal.
When a review petition was filed by the respondents, the Single Judge noticed that there was an error of measurement in the Government survey plan and the plan filed by the Commissioner and opined that there should be a fresh consideration of the question, set aside his judgment and the concurring judgments of the first two courts, and remanded the matter to the Trial Court.
Allowing the appeal to this court, 498 ^ HELD: 1.
The single Judge was not fully justified in allowing the review petition and setting aside not only his own judgment which had confirmed the concurring judgments of the first two courts, but also erred in setting aside the judgments of the first two courts and remanding the suit to the court of first instance.
He should have adopted the more equitable and just method of framing some additional issues and calling for findings on those issues from the Trial Court with liberty to both the parties for adducing evidence.
[501 H; 502 A B] 2.
The Single Judges ' order in so far as it relates to setting aside his own judgment in the second appeal is set aside.
The judgment and decrees of the first two courts are kept in tact.
The High Court will frame such additional issues as may legally arise on the pleadings of the parties and call for findings thereon from the Trial Court and dispose of the second appeal after taking into consideration the findings and the objections of the parties to the findings.
[502 C D]