judgement:
iminal Appeal No. 80 of 1953.
Appeal by Special Leave granted by the Supreme Court by its order dated the 9th February, 1953, from the Judgment and Order dated the 23rd September, 1952, of the High Court of Judicature at Bombay in Criminal Appeal No. 828 of 1952 arising out of the Judgment and Order dated the 27th March, 1952, of the Court of Stipendiary Magistrate, Ahmedabad, in Summary Case No. 3029 of 1954.
Rajni Patel and M. section K. Sastri for the appellant.
M. C. Setalvad, Attorney General of India, and (Porus A. Mehta and P. G.Gokhale, with him) for the respondent.
October 29.
The Judgment of the Court was delivered by BOSE, J.
This case is unimportant in itself, for a small fine of Rs. 50 (Rs. 25 on each of two counts) has been imposed for a couple of breaches under section 52 (f) of the Bombay Shops and Establishments Act, 1948, read with rule 18(5) and (6) of the Rules framed under 888 the Act.
But the question involved is of general importance in the State of Bombay and affects a large number of similar establishments, so in order to obtain a clarification of the law, this has been selected as a test case.
The appellant is the owner of a small establishbment called the Honesty Engineering Works situate in Ahmedabad in the State of Bombay.
He employs three workers.
He does business in a very small way by going to certain local mills, collecting orders from them for spare parts, manufacturing the parts so ordered in his workshop, delivering them to the mills when ready and collecting the money therefor.
No buying or selling is done on the premises.
The question is whether a concern of this nature is a "shop" within the meaning of section 2(27) of the Act.
The learned trying Magistrate held that it was not and so acquitted.
The High Court, on an appeal against the acquittal, held it was and convicted.
It is admitted that the appellant maintains no "leave registers" and gives his workers no "leave books" and it is admitted that the Government Inspector of Establishments discovered this on 12th January, 1951, when he inspected the appellant 's works.
If his establishment is a "shop" within the meaning of section 2(27) he is guilty under the Act; if it is not, he is not guilty.
"Shop" is defined as follows in section 2(27): " 'Shop ' means any premises where goods are sold, either by retail or wholesale or where services are rendered to customers, and includes an office, a store room, godown, warehouse or work place, whether in the same premises or otherwise, mainly used in connection with such trade or business but does not include a factory, a commercial establishment, 'residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment".
As we have said, it is admitted that no goods are sold on the premises and it is also admitted that no services are rendered to customers there, for the manufacture of spare parts for sale elsewhere cannot be regarded as "services rendered.
" 889 The learned Attorney General contends that the definition should be read as follows: Shop includes a work place mainly used in connection with such trade or business. " He says that the word "such" in the phrase "such trade or business" relates back to the opening words of the definition which read " any premises where goods are sold.
" He argues that the emphasis is on the words "goods are sold" and not on the word "premises" because a trade or business relates to the buying and selling of goods and is not confined to the premises where that occurs.
He admits that the main portion of the definition which relates to "premises where goods are sold" cannot exclude the "Premises" element and that unless there are premises on which goods are sold, the main portion of the definition cannot apply, e.g., in the case of a street hawker or of a man who totes his goods from house to house and sells them at the door.
But he contends that the main definition is extended by including in it matter which would not be there without the words of extension and in that portion the em phasis ceases to be on the "premises" and shifts to the nature of the business; provided there is a business of selling, any work place wherever situate "mainly used in connection with it" will fall within the definition.
The other side relies on the ejusdem generis rule.
The argument runs that the trade or business contemplated by the main portion of the definition is not any business of selling wherever and however conducted but only those trades where the selling is conducted on defined premises.
The learned counsel contends that the very idea of a shop in that connotation betokens a room or a place or a building where goods are sold.
The rest of the definition merely links on the main definition ancillary places, such as store rooms, godowns, work places, etc., which are mainly used in connection with the "business", and "business" means the kind of business defined in the earlier part of the definition, that is to say, not business in general, nor even the business of selling in general, but that portion of the business Of Selling which is confined to selling on,some defined premises.
To illustrate this graphically, the 890 business of selling in general may be regarded as a big circle and the business of selling on defined premises as a small portion which is carved out of the larger whole.
The second part of the definition is linked on to the carved out area and not to the circle as a whole.
The word "such" confines what follows to what has gone before and what has gone before is not the trade of selling in general but only that part of the trade of selling which is carried on defined premises.
Counsel argues that there is no justification for ignoring the limitation which the Legislature has placed on the main portion of the definition and holding that "such" relates to a much wider classification of "selling" which the main portion of the definition not only does not envisage but has deliberately excluded.
We think that as a matter of plain construction this is logical and right.
The learned Attorney General went on to contend that even if this is a possible view, his view is also tenable and therefore when we have two possible interpretations we must choose the one which best accords with the policy of the Act.
Taking us through the Act he pointed out that this is a piece of social legislation designed partly to prevent sweated labour and the undesirable employment of women and young children and partly to safeguard the health and provide for the safety of workmen and employees.
He con tended that this object would be partly frustrated if small establishments of this kind are placed outside the purview of the Act, for their number is very large and the persons employed in them are entitled to, and require, just as much protection as those more happily placed in larger concerns.
We have considered this carefully and are of the opinion that the fear is groundless because there is express provision in the Act for such contingencies.
Under section 5 the State Government can by mere notification in the Official Gazette extend the Act to any establishment or class of establishments or any person or class of persons to which or whom the Act or any of its provisions does not for the time being apply In our opinion, the Legislature did not intend to rope 891 in small establishments of this kind in the first place but reserved power to the State Government to do that when desirable by the very simple process of notification in the Official Gazette.
In reaching this conclusion we are influenced by the policy of the Central Legislature on an allied topic.
We do not intend to break the general rule that points to the undesirability of interpreting the provisions of one Act by those of another passed by a different Legislature, but as we have already decided the question of construction and interpretation and are now considering only the general policy of the State Legislature, we deem it right to view the matter in its larger aspect for the special reasons we shall now enumerate.
Now the Central Act, the Factories Act of 1948, was passed on the 23rd of September, 1948.
The Bombay Act, though entitled Act LXXIX of 1948, was not passed till the following year, namely, on 11th January, 1949.
The Bombay Legislature had the Central Act in mind when it passed its own legislation because section 2(27) says that a "shop" shall not include a "factory" and section 2(9) defines a " factory " as any premises which is a factory within the meaning of section 2 of the Central Act or which is deemed to be a factory under section 85 of that Act.
Under the Central Act (section 2(m) no establishment can be a factory unless it employs more than ten workmen or unless it is artificially converted into a " factory " within the meaning of this definition by a notification in the Official Gazette.
Had it not been for the fact that the appellant employs less than ten workmen, his concern would have been classed as a factory under the Central Act and would then have been excluded from the definition of "shop" in the Bombay Act, for the appellant carries on a manufacturing process in his workshop with the aid of power: that is not disputed.
The Central Legislature undoubtedly had the intention of excluding small concerns like this from the purview ,of the Central Act except where Government decided otherwise, and as there is this reference to the Central Act.
on this very point in section.2(27) we think.
, in view of the way that section 2(27) is worded, that ,Was also the intention of the Bombay Legislature, 892 Therefore, even on the assumption of the learned Attorney General that two interpretations of section 2(27) are possible, we prefer the one which, in our opinion, better accords with the logical construction of the words used.
The learned High Court Judges were influenced by matters which we consider inconclusive.
The appellant applied for registration under the Bombay Act and in the statement made under section 7 he called his establishment a "workshop" and described the nature of his business as a " factory ".
The learned Judges considered that this imported an admission that his establishment was a " shop " because of the use of the word "shop" in "workshop".
This might have raised an inference of fact against the appellant had nothing else been known but when the facts are fully set out as above and admitted, the appellant 's opinion about the legal effect of those facts is of no consequence in construing the section.
No estopped arises.
The appellant explained that the matter seemed doubtful, so, to be on the safe side and avoid incurring penalties for non registration should it turn out that his concern was hit by the Act, he applied for registration.
It is to be observed that though he applied on 12th April, 1949, he was not registered till 4th May, 1950, and the certificate was not given to him till 8th January, 1951.
The present prosecution was launched on 4th April, 1951.
Government itself seems to have been in doubt.
However, that is neither here nor there.
What we think was wrong was placing of the burden of proof on the appellant, in a criminal case, because of a so called admission.
The learned High Court Judges also advert to the fact that though the appellant 's concern was registered as a "shop" he made no protest and did not have recourse to section 7(3) of the Act.
We do not think section 7(3) has any application.
The appeal is allowed.
The conviction and sentence are set aside and the judgment of the learned trying Magistrate acquitting the appellant is restored.
The fines, if paid, will be refunded.

dataset_name: IN-Abs

summary/full:
The appellant, the owner of a small establishment in Ahmedabad, employs three workers, does business in a very small way by going to certain local mills, collecting orders from them for spare parts, manufacturing the parts so ordered in his workshop, delivering them to the mills when ready and collecting the money therefor.
No buying or selling is done on the premises.
Hold, that a concern of this nature is not a shop within the meaning of section 2(27) of the Bombay Shops and Establishments Act, 1948,


judgement:
Appeal No, 85 of 1967.
Appeal by special leave from the judgment and decree dated August 19, 1966 of the Bombay High Court, Nagpur Bench in Special Civil Application No. 831 of 1965, W. section Barlingay and A. G, Ratnaparkhi, for the appellant, M. section Gupta and section K. Dhingra, for respondent No. 1.
The appellant was a 'protected lessee within the meaning of that expression contained in the Berar Regulation of Agricultural Leases Act, 1951 (Act 24 of 1951 75 (hereinafter called the Berar Act) in respect of the suit lands bearing survey No. 23 of an extent of 7 acres and 4 gunthas under the 5th respondent herein, who was then the original owner of the lands.
The 5th respondent served on the appellant (hereinafter called the tenant) a notice dated December 28, 1955 under section 9(1) of the Berar Act terminating the I tenancy of the appellant on the ground that he required the lands for personal cultivation; and he also submitted an application to the Revenue Officer under section 8(1)(g) of the Berar Act for an order determining the tenancy.
The 5th respondent obtained an order from the Revenue Officer on May IS, 1956 directing the tenant to surrender possession of the lands.
The 5th respondent in pursuance of the order of the Revenue, Officer obtained possession of the lands on April 4, 1957 and continued in such possession till June 21, 1961, on which date he transferred the suit lands to the first respondent ',hereinafter to be referred as the landlord) and got, .in exchange 8 acres in survey No. 33 plus an amount of Rs. 13,000/ .
in the meanwhile on December 30, 1958 the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch area) Act of 1958 (Act No. XCIX of 1958) (hereinafter called the Bombay Act) came into force.
The tenant filed an application under section 52 of the Bombay Act before the Naib Tahsildar, Achalpur, against respondent Nos. 1 and 5 for restoration of the possession of the suit lands on the ground that the original owner, the 5th respondent, had eased to cultivate the lands personally within the period of 12 years after obtaining possession of the lands on April 4, 1957.
The Naib Tahsildar by his order dated November 14, 1962 dismissed the application on the ground that section 52 does not apply and hence the application was not maintainable.
On appeal by 'the tenant, the Special Deputy Collector, Amravati by his order June 30, 1964 reversed the decision of the Naib Tahsildar and directed the landlord to restore possession of the lands as prayed for by the tenant.
The first respondent 's revision challenging the order of the Special Deputy Collector was dismissed on August 5, 1965 by the, Maharashtra Revenue 'Tribunal.
The Revenue Tribunal while dismissing the revision petition, inter alia, held that the tenant was a protected lessee and that in pursuance of the proceedings taken by the 5th respondent in terms of the notice tinder section 9(1) of the Berar Act, the tenant was deprived of the lands and his tenancy rights on the ground of personal cultivation by the then owner of the lands.
The Tribunal further held that as the 5th respondent had transferred the suit lands in favour of the first respondent on June 21, 1961.
, the former must be considered to have failed to use the lands for the purposes specified in his notice within 12 years from the date on which lie took, possession and in consequence the tenant 76 was entitled to be restored to possession under section 52 of the Bombay Act.
On this reasoning the Revenue Tribunal confirm ed the order of restoration passed by the Special.
Deputy Collector in favour of the tenant.
The first respondent filed a writ petition under article 227 of the Constitution, being Special Civil Application No. 831 of 1965, in the High Court of Bombay (Nagpur Bench) challenging the orders restoration.
passed against him by the Special Deputy Collector and the Maharashtra Revenue Tribunal.
The High Court by its judgment and order dated August 19, 1966 has set aside the orders of the Special Deputy Collector and the Revenue Tribunal, thus restoring the order of the Naib Tahsildar, land has dismissed the application for restoration tiled by the tenant.
The tenant challenges the decision of the High Court in this appeal by special leave.
The High Court in its order under appeal has recorded the following findings The, original owner, the 5th respondent, was entitled to terminate the lease of the tenant by giving a notice under section 9(1) of the Berar Act.
He accordingly terminated the tenancy by giving notice dated December 23, 1955.
After initiating proceedings under section 8(1)(g) read with section 19(1) of the Berar Act, the owner also obtained possession of the lands on .April 4, 1957.
Under the Berar Act there was a duty cast on 'the landlord to cultivate, the lands personally for a period of 2 years and in this case the 5th respondent has complied with this requirement.
As possession was taken from the tenant by the 5th respondent when the Berar Act was in operation and :as the latter had cultivated the lands for a period of 2 years, as required by section 9(6) of the Berar Act, the tenant had ceased to have any rights after the expiry of the period of 2 years and.
hence section 52 of the Bombay Act was not applicable and it follows that the application for restoration under that section filed by the tenant was not maintainable.
The position is concluded ,against the tenant by an earlier Full Bench decision of the High ,Court reported in Saraswatibai Babji Tukaram Umarkar vs Bhikamchand Peemsukhdas,(1) wherein it had been held that when possession of the lands had been taken before coming into force of the Bombay Act, the rights and liabilities of the parties are governed by the Berar Act and that section 52 of the Bombay Act has no retrospective operation.
On these findings the High Court allowed the writ petition of the first respondent.
Dr. Barlingay, learned counsel for the appellant, has urged that having due regard to the scheme of the Berar and Bombay Acts, the High Court 's view that section 52 of the Bombay Act has no .application, is erroneous.
In this case.
he pointed out that the (1) 77 Bombay Act has come into force on December 30, 1958 even before the expiry of the period of two years from April 4, 1957, on which date the original owner, the 5th respondent, had entered into possession after terminating the lease.
Section 52 ' of the Bombay Act contains provisions substantially similar to section 9(6) of the, Berar Act which was repealed and the only change was that the Bombay Act enlarged the period for which the landlord was required to continue to cultivate land personally from two years to 12 years.
As the enlarged period under the Bombay Act has come into operation before the expiry of the shorter period under the Berar Act, which was repealed, the landlord was bound to conform to the requirements of the larger period provided under the Bombay Act.
In this case the 5th respondent had transferred the suit lands to the first respondent on June 21, 1961 and hence there has been a failure in law on the part of the 5th respondent to utilise the lands for the purpose of personal cultivation for the period mentioned in section 52 of the Bombay Act and so the said section fully applies and the dismissal of the tenant 's application for restoration by the High Court is.
opposed to the mandatory provisions of the Bombay Act.
The counsel, further pointed out that the Full Bench decision, on which the present judgment of the High Court is .rested, is not applicable for the reason that the Full Bench was dealing with a case where the period provided under section 9(6) of the Berar Act had already expired before the coming into force of the Bombay Act, whereas in the case on hand even before the expiry of that two years ' period the Bombay Act has come into force.
This material difference has not been noted in the present order by the High Court.
He further urged that if the Full Bench decision applies, as held by the High Court, it should be held.
by this Court that the Full Bench decision is not correct.
Mr, M. section Gupta.
learned counsel for the first respondent, landlord, raised a preliminary objection to the hearing of the appeal and prayed for cancellation of the special leave granted by this Court on January 11, 1967.
According to him the appellant has made deliberately certain false statements in his application for grant of special leave.
We will revert to this aspect a little later.
On merits Mr. Gupta contended that the obligation of his client 's transferor, the 5th respondent, after obtaining possession of the lands from the tenant under the Berar Act was only to cultivate the lands for two years.
Admittedly in this case the 5th respondent had cultivated the lands for the said period of two years and the obligation incurred by him under section 96) of the Berar Act having been duly complied with, 78 pointed out that section 132 deals with repeals and savings.
Subsection (1) had repealed the enactments specified in Schedule I to the extent specified in column No. 4 of the said Schedule.
Schedule I shows that the Berar Act has been repealed in its entirety.
Notwithstanding the repeal sub section (2) has saved certain matters and on of the matters so saved is the obligation or liability already incurred before the commencement of the Bombay Act.
The 5th respondent, who had incurred the obligation or liability to cultivate the lands for two years under the Berar Act before the commencement of the Bombay Act, has discharged the said obligation or liability and hence the tenant has no further rights which he can enforce.
He also urged that section 52_protects even cases where possession has beer.
taken after the coming into force of the Bombay Act on the basis of an order for restoration obtained under the Berar Act.
In support of 'his contention he relied on the decision in Ramchandra vs Tukaram and others(1).
Before we deal with the merits we will now dispose of the preliminary objection raised by Mr. Gupta praying or cancellation of special leave granted by this Court.
According to the learned counsel the appellant has deliberately made certain false ,statements in the application for grant of special leave and has misguided the Court.
He drew our attention to the statements made in paragraph 6 of the application wherein the appellant has stated that the 5th respondent had transferred the suit lands in favour of the first respondent on June 21, 1961 by taking in exchange 8 acres of land plus a sum of Rs. 30,000/ .
Again in paragraph 10 of the petition the appellant has stated that his claim in these proceedings is for restoration of possession of the lands measuring 7 acres and 4 gunthas, the market value of which happens to be more than Rs. 20,000/ and that this fact is further strengthened because of the 5th respondent exchanging his lands with the first respondent for a sum of Rs. 30,000/ plus 8 acres of land.
The appellant has filed an affidavit stating that the statements contained in the special leave petition 'are true and correct to the best of my personal knowledge '.
From these statements Mr. Gupta pointed out that it is clear that the appellant has categorically stated that the value of the lands concerned in this, appeal is over Rs. 20,000/ and he has also specifically stated that the suit land% were exchanged for Rs. 30,000/ plus 8 acres of lands and these statements have been affirmed to be true to the personal knowledge of the appellant.
Mr. Gupta pointed out that these statements regarding valua tion are absolutely false to the knowledge of the appellant as will (1) (1966) 1.S.C.R. 594 79 be clear from the value given in the writ petition filed by the first respondent in the High Court.
In para 1 of the writ petition the first respondent has stated that the 5th respondent after transfering the suit lands of 7 acres and 4 gunthas has taken in exchange from him 8 acres of land and a sum of Rs. 13,000/ , thus making a total of Rs. 19,000/ .
In the affidavit filed along with the writ petition the first respondent has again stated that the amount received from him along with 8 acres of land as Rs. 13,000/ the total value of the lands being only Rs. 19,000/ .
He also drew our attention to the recitals in the judgment printed in the appeal records wherein the exchange has been stated as being of 8 acres of land plus a sum of Rs. 13,000/ .
In view of these circumstances, the counsel points out that the statements made by the appellant, which have been affirmed to be true to his knowledge about valuation of the suit lands being over Rs. 20,000/ and the exchange having been obtained of 8 acres and Rs. 30,000/ are false and have been deliberately made to mislead the Court so as to obtain special leave making it appear that the requirement regarding valuation is satisfied.
Mr. Gupta drew out attention to the decisions of this Court, namely, Hari Narain vs Badri Das(1), Sita Bai vs Sonu Vanji Wani and ors.(2) and section R. Shetty vs Phirozeshah 'Nusserwanji Golabawalla and another(3).
Mr. Gupta pointed out that in all these decisions when there has been false statements made on material particulars or matters of importance either on facts or about valuation, this Court bad cancelled special leave already granted.
The proposition enunciated by Mr. Gupta that the statements in the special leave application should not contain any untrue or false statements either in material particulars or on matters of importance or about valuation is certainly laid down in those decisions and the requirement in this regard cannot be over emphasised.
In Hari Narain vs Badri Das(1), this Court held that the special leave petition contained inaccurate, untrue and misleading statements and cancelled special leave already granted.
This Court observed at page 209 as follows : "It is of utmost importance that in making material statements and setting forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate, untrue or misleading.
In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading." (1) ; (2) C.A. No. 982 of 1965 decided on 25 4 1968.
(3) G.A. No. 155 of 1963 decided on 25 4 1963.
80 From the facts in that case it will be seen that the material statements made in the special leave petition were false.
In Sita Bai vs Sonu Vanji Wanil and ors.
(1) this Court held that in the special leave petition there was a misrepresentation of facts on a matter of importance, though it was not possible to say that when granting special leave these untrue facts had misled the Court.
It has been further emphasised in this decision that the appellant had deliberately made untrue statements on matters of importance and that they were not the result of inadvertence.
Similarly in section R. Shetty vs Phirozeshah Nusserwanji Golabawalla and another(2) a statement had been made regarding the value of the subject matter as being above Rs. 20,000/ though the suit had been valued only in the sum of Rs. 5001 and court fee paid on that valuation.
This Court held that the statements of valuation in the plaint, namely, Rs. 5001 cannot be reconciled with the statement regarding valuation in the special leave application and this Court took the view that the valuation has been deliberately inflated with a view to getting over the preliminary hurdle as regards valuation.
In this view special leave granted was revoked.
If it is held that there has been an untrue averment regarding material statements or a false statement on matters of importance or a deliberate untrue statement regarding valuationhas been made to mislead this Court, it cannot be gainsaid that thespecial.
leave granted by this Court will have to be revoked.
Dr. Barlingay pointed out that there has been nountrue or false statement made by his client on any material particular nor has any statement been deliberately made to mislead the Court so as to enable his client to obtain special leave.
On the other hand, the counsel pointed out, that the certified copy of the judgment of the High Court furnished to his client and which, has been filed in this Court clearly shows that in the said copy the, High Court has stated that the 5th respondent obtained an exchange from the first respondent 8 acres of land plus a sum of Rs. 30,000/ .
That mistaken value given in the High Court judgment has been adopted in the special leave petition.
The points that have been raised in the special leave petition are all I questions of law relating to legal effect of possession under the Berar Act after coming into force of the Bombay Act.
The valuation.
given in the certified copy of the High Court judgment was incorporated in the special leave petition filed as early as January 11.
He further pointed out that on March, 28, 1967 his client had moved the High Court for correcting the High Court 's (1) Civil Appeal No. 982 of 1965 decided on 25 4 68.
(2) CIVIL Appeal No. 155 of 1963 decided on 5 4 1963 81 judgment by deleting the valuation of Rs. 30,000/ and substitute the same by correct figure of Rs. 13,000/ .
The counsel for both the parties agreed before the High Court that the figure of Rs. 30,000/ contained in the judgment was an error and that the correct figure should be Rs. 13,000/ .
The High Court accordingly by its order dated April 17, 1967 corrected the judgment by stating that the valuation of Rs. 30,000/ should be corrected to Rs. 13,000/ .
That order was passed nearly three months after the special leave application was filed in this Court.
In view of the fact that his client and the counsel acting for him, at the time of drafting the petition for special leave adopted the valuation given in the certified copy of the High Court 's judgment, Dr. Barlingay pointed out that there has been no untrue or false statement given by his client so as to justify revocation of.
the leave already ranted.
We have given due consideration to all these aspects presented before us by both the learned counsel and we are of the view that in the particular circumstances of this case it cannot be said that the appellant is guilty of making any false or untrue statement on any material particulars or matters of importance or regarding valuation.
The mistake committed by the appellant regarding valuation was the result of the mistaken value given by the High Court itself in its judgment, which was corrected only long afterwards.
No doubt, the appellant who is a party to the proceedings should have been a little more careful, but that does not disclose any deliberate attempt on his part to mislead this Court.
Further the statement regarding valuation is not of much consequence in this case because the questions arising for decision are really points of law regarding applicability of either the Berar or Bombay Acts.
Therefore, Mr. Gupta has not been able to make out a case for cancelling the special leave already granted.
We will now proceed to consider the appeal on merits.
The suit land was originally in the Vidarbha Region, which before the passing of Bombay Act of 1958 was part of the state of Madhya Pradesh and the tenancy of the appellant was governed by the Berar Act.
As proceedings had been taken by the 5th respondent for evicting the appellant and for possession of the land under the Berar Act, it is necessary to refer to some of the material provisions of that statute.
Section 2(h) defines a protected lessee as 'a protected lessee within the meaning of section 3.
Section 3 enumerates various lessees who are protected lessees.
There is no controversy that the appellant before us was a protected lessee under the Berar Act.
Section 8(1) enumerates in cls.
(a) to (g) the (,rounds on which 82 the lease of a land held by a protected lessee can be got terminated under the orders of a Revenue Officer.
One of the grounds for eviction is provided under cl.(g) of section g(1), namely lessee having been served with the notice by a landholder as provided,, in section 9.
Section 9 deals with the right of the landholder to terminate the lease of a protected lessee.
Sub sections (1) and (6) of the said section which are material for the present purpose are as follows : "Right of landholder to terminate lease of a protected lessee.
Section 9 (1).
Notwithstanding anything contained in section 8 the landholder may terminate the lease of a protected lessee by giving him notice in writing delivered not less than three months before the commnence ment of the next agricultural year stating therein the reasons for such termination and the description of the area in respect of which it is proposed to terminate the lease, if the landholder requires the lands for cultivating the land personally.
Section 9(6).
If on re entering upon any land after termination of the lease of a protected lessee in accordance with this section, a landholder fails at any time during such period as may be prescribed to utilise the land for the purpose for which the lease was terminated, the dispossessed lessee may apply to the Revenue Officer to put him in possession of the land from the commencement of the agricultural year next following : and the Revenue Officer shall, after hearing the landholder and making such enquiry as he deems fit, put the lessee in possession of the land if he is satisfied of the, failure and also award him such sum by way of compensation as the Revenue Officer may consider sufficient.
" Section 19 (1) provides for a landholder applying to the Revenue Officer to eject a protected lessee against whom an order for the termination of the lease had been passed under sections 8 or 9.
Section 22 gives power to the State Government to make rules as stated therein.
Under cl.
(3) of section 22 (2) rules can be made regarding 'the period under sub section (6) of section 9 '.
Rules have been framed under section 22 and in particular r. 9 prescribes 'such period as that of two years '.
Hence it will be seen that section 9(6) read with r. 9 requires the landholder who terminates the tenancy of his protected lessee on the ground that the land was required 83 by him for his personal cultivation, to cultivate the land personally for a period of two years.
Under the Berar Act, after having entered upon the land, if the landholder fails to cultivate the land personally during the above period, then section 9(6) confers a right on the former protected lessee to apply to the Revenue Officer for being restored to possession.
We have already indicated that the Bombay Act came into force on December 30, 1958.
The material provisions to be referred to in the said statute are sections 52(1) and 132.
Section 52(1) runs as follows : "Landlord to restore possession if be fails to cultivate within one year : Section 52(1) : Where after terminating the tenancy of any land under section 9 of the Berar Regulation of.
Agricultural Leases Act, 1951, or under sections 38, 39 or 39A of this Act, the landlord has taken possession of such land and he fails to use the land for the pur pose specified in the notice given under the said section 9 or as the case may be within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him, unless he has obtained from the tenant his refusal in writing to accept the tenancy on the same terms and conditions or has offered in writing to give possession of the land to the tenant on the same terms and conditions and the tenant has failed to accept the offer within three months of the receipt thereof : Provided that no refusal of the tenant shall be valid unless it has been verified before the Tahsildar in the prescribed manner.
" Section 132 relates to repeals and savings.
Sub section 1 states that the provisions of the enactments specified in Schedule I are repealed to the extent specified in column 4 of the said Schedule.
It may be stated at this stage that one of the enactments so repealed was the Berar Act in its entirety.
Sub section 3 is not relevant.
Sub section 2 of section 132 on which reliance has been placed by both the parties is as follows : "Repeals and Savings : Section 132(2) : Nothing in sub section (1) shall, save as expressly provided in this Act, affect or be deemed to affect 84 (i)any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act, or (ii)any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability or anything done or suffered before the commencement of this Act, and any such proceedings shall be instituted, continued and disposed of,, as if this Act had not been passed.
" We have already referred to the fact that the 5th respondent had issued the necessary notice terminating the tenancy of the appellant on December 28, 1955 under section 9(1) and after initiating proceedings under section 8 ( 1) (g) read with section 19 (1), he obtained an order for possession as against the appellant from the Revenue Officer on lay 15, 1956, and had also obtained possession of the lands on April 4, 1957.
All these proceedings were under the Berar Act before the coming into force of the Bombay Act.
The 5th respondent continued in such possession of the lands till June 21, 1961, on which date he transferred the suit lands to the first respondent in exchange for certain other lands.
The appellant filed an application for restoration seeking relief on the ground that the 5th respondent had ceased to be in possession of the lands within twelve years from April 4, 1957.
Therefore the short question that arises for consideration is whether section 52 of the Bombay Act applies to those lands the possession of which was obtained by the landlord under section 9 of the Berar Act but in respect of which the period of two years ' disability as imposed under section 9(6) read with rule 9 of the Rules was not over before the coming into operation of the Bombay Act.
From the scheme of the Berar and Bombay Acts, it will be noted that while section 52 of the Bombay Act enlarged the period of personal cultivation to 12 years, the Berar Act had provided for personal cultivation only for a period of 2 years.
Under the Berar Act if the landlord does not personally cultivate for 2 years., the tenant can apply for restoration of possession from the landlord.
Similarly under the Bombay Act, if the landlord had ceased to cultivate the land within a period of 12 years, from the date of taking possession, the tenant can apply for restoration.
We have already referred to the fact that Mr. Gupta, learned counsel for the respondent, has relied on the decision of this Court in Rainachanadra vs Tukaram and others(1) in support of his (1) ; 85 proposition that section 52 of the Bombay Act applies, even to cases where possession has been taken after the coming into force of the Bombay Act in pursuance of an order for restoration obtained by the landlord under the Berar Act.
We have gone 'through the above decision and we are of the opinion that it does not lay down any such proposition.
The question that arose for consideration therein was a totally different one.
In that case, one X was a protected lessee under the Berar Act and the landlord had terminated the tenancy under section 9(1) on the round of personal cultivation and had also submitted an application to the Revenue Officer under section 8 (1) (g) for an order terminating the tenancy.
The Revenue Officer determined the tenancy by order dated July 2, 1957 and made it effective from April 1, 1958.
But before the latter date, Ordinance No. 4 of 1957 was pro mulgated, which in turn was replaced by the Bombay Act IX of 1958.
The said Act had imposed a ban on eviction of tenants and had also stayed all such proceedings pending on the date of commencement of the said Act.
The landlord had applied on May 15, 1958 to the Naib Tahsildar for an order for restoration of possession of the land by the tenant.
The Bombay Act.
which repealed the Berar Act and the Bombay Act No. IX of 1958, came into force on December 30, 1958, on which date the application filed by the landlord for restoration was pending before the Naib Tahsildar.
There was a controversy is to the nature of relief that could be granted to the landlord.
Having due regard to section 132(2)(ii) and (3) of the Bombay Act, this Court held that the application, filed by the landlord for restoration of possession on the basis of the order obtained under section 8 ( 1 ) (g) of the Berar Act, and which was pending when the Bombay Act came into force must be treated as an application under section 19 of the Berar Act and had to be tried and disposed of by the appropriate authority.
This Court further held that the application of the landlord being a pending proceeding in respect of a right acquired before the Bombay Act, it had to be continued and disposed of as if the Bombay Act had not been passed.
It was further held that in so disposing of the application, treating it as one under section 19 of the Berar Act.
there was no scope for the application of the conditions and restrictions prescribed by sub sections (3) and (4) of section 38 of the Bombay Act as those provisions do not apply to proceedings to enforce rights acquired when the Berar Act was in operation.
This judg ment, in our opinion, does not support the landlord in the case before us.
We have already referred to the fact that the High Court.
in its order tinder appeal, has held that section 52 of the Bombay Act does not apply to the present case as the landlord had cultivated the land for two years though a part of that period "?as after the 86 commencement of the Bombay Act.
The High Court has also stated that section 52 of the said Act will have no application to the case on hand inasmuch as the landlord had obtained possession on April 4, 1957 long before the coming into force of the Bombay Act.
For this proposition, the High Court has relied on an earlier decision of a Full Bench of the same Court in Saraswatibai Babji Tukaram Umarkar vs Bhikamchand Premsukhdas(1).
According to Dr. Barlingay, the High Court 's view that even it ' a landlord completes the period of two years personal cultivation, as required under section 9(6) of the Berar Act, after the coming into force of the Bombay Act, the larger period provided under section 52 does not apply, is not correct.
We have already stated that Dr. Barlingay has further urged that the Full Bench decision of the Bombay High Court does not apply and if that applies, the said decision must be he Id to be erroneous.
As the decision under appeal is substantially rested on the decision of the Full Bench, it is necessary to examine the scope of the Full.
Bench decision.
But we may straight way say that the High Court 's view that the Full Bench has held that section 52 will not apply to ' cases where the two years ' period is completed even after the Bombay Act came into force is not correct, because the Full Bench has not laid down any such proposition.
The Full Bench has only held that section 52 applies to cases where a landlord takes possession of the land on determination of a tenancy either under section 9 of the Berar Act or under.ss.
38, 39 or 39A of the Bombay Act after the latter Act has come into force.
The facts in the Full Bench case were briefly a,, follows : X, a landlord obtained possession on July 3, 1955 of certain lands from his tenant under the Berar Act on the ground that he required the same for personal cultivation.
After the death of X on October 28,1955, his heirs inherited the, property and continued in possession of the same till February 9. 1959, on which date they sold the lands to one section After purchase by section the original tenant applied under section 52 of the Bombay Act for restoration of possession on the ground that the landlord had ceased to use the property for a period of 1.2 years as required by the section.
The heirs of X and the purchaser S, were both made parties to the said application and relief was asked for against both of them.
At this stage it may be mentioned that the Bombay Act came into force on December 30, 1958.
From the facts stated above, it will be seen that the landlord had obtained possession from the tenant on July 3. 1955 and lie and his heirs had completed the requirement of section 9(6) of the Berar Act, namely, two years personal cultivation Oil July 3. 1957, long before the Bombay Act came into force.
After (1) 87 having completed the said two years period, the heirs were in, possession not only on the date of the coming into force of the Bombay Act, but also till the date of sale to section (February 9, 1959).
The question naturally arose whether section 52 of the Bombay Act will apply when the two years ' period under the Berar Act had expired before December 12, 1958.
There appears to have been earlier single Judge 's decisions of the Bombay High Court holding that section 52 of the Bombay Act will apply to cases where possession has been taken after the Bombay Act had come into force and also to cases where the period of 2 years ' personal cultivation by the landlord had been completed even before the coming into force of the Bombay Act.
Mr. Justice Wagle, before whom the matter came in the first instance expressed doubt about the correctness of the earlier decisions.
Mr. Justice Wagle was inclined to take the view that section 52 of the Bombay Act would apply only to those lands, the possession of which was obtained by the landlord under section 9 of the Berar Act.
but in respect of which the period of two years ' disability as imposed under section 9(6) read with r. 9 of the Rules was not over before the coming into force of the Bombay Act.
As the learned Judge was inclined to take a view, which was in conflict with the previous view of the Bombay High Court, he referred the matter to a Division Bench, which in turn referred the matter to the Full Bench.
From what is stated above, it will be seen that in that case, possession of the lands was taken by the landlord, from the tenant under the Berar Act and the two years ' period as required under section 9(6) of the said Act had also expired before the coming into force the Bombay Act.
The transfer in favour of section No. doubt, was made long after December 28, 1958.
In the case before us the landlord had obtained possession under the Berar Act on April 4, 1957 and he bad not completed the two years ' period under section 9(6) of the Berar Act on December 30, 1958.
We are only referring to these dates to show that the Full Bench decision did not have occasion to directly tackle the problem that arises for consideration before us.
But nevertheless there are certain broad principles laid down in that decision, the correctness of which will have to be considered by us.
The Full Bench, posed the following two questions for consideration : "1.
Whether the provisions of section 52 of the Bombay Tenancy and Agricultural Lands, (Vidarbha Region and Kutch Area) Act, 1958 are attracted to cases where the lease of a protected lessee had been determined by the landholder under section 9 of the Berar Regulation of Agricultural Leases Act, 1951 and possession thereof taken prior to the date the. 88 new.
Tenancy Act came, into force and the landholder continued to personally cultivate the land on the date the new Act came into force.
2.If the answer to the first question is in the affirmative,.
whether the expiry of two years prior to the coming into force of the new Act would have any bearing on the application of section 52.
" The first question, it will be noted, refers to the effect of taking possession by the landlord before December 30, 1958 and his still being in possession on the date of the coming into force of the Bombay Act.
The second question refers to the effect of the expiry of two years prior to the coming into force of the Bombay Act.
So far as the first question is concerned, the learned Judges held that section 52 of the Bombay Act would be attracted only to Such cases where a landlord takes possession after determination of tenancy either under section 9 of the Berar Act or under sections 38, 39, force.
So far as the second question is concerned, the learned Judgeshave not expressed any opinion on the ground that it does not 'survive on the View expressed by them on the first question.
It will be noted from a reading of the Full Bench judgment that the learned Judges have placed considerable emphasis for the applicability of section 52 of the Bombay Act about the landlord taking possession after the Bombay Act has come into force.
If possession had been taken before December 30, 1958, according to the Full Bench, section 52 does not apply; whereas if possession is taken after the said date, the said section will apply.
For coming to this conclusion the Full Bench has given considerable importance to the fact that section 52 refers also to sections 38, 39 and 39A of the Bombay Act and that it uses the expression "landlord has taken possession of such land and he fails to use the land.", These expressions, according to the Full Bench, can refer only to cases of lands taken possession by a landlord after the Bombay Act has come into force as section 52 is not retrospective.
In our opinion, the Full Bench has too broadly stated the principles regarding the circumstances under which section 52 of the Bombay Act will apply.
If taking possession of the land by the landlord after December 30, 1958, is the sole test for the applicability of section 52, the position, in our view, will be very anomalous.
For instance if a landlord had taken possession on December 29.
1958, section 52 will not apply and the requirement of two years ' personal cultivation may not also become necessary as the Berar 89 Act stands repealed as on December 30, 1958.
Similarly if the landlord had taken possession and had also complied with the requirement of two years ' personal cultivation long before December 30, 1958, but nevertheless if he is in possession of the land on December 30, 1958, according to the Full Bench, section 52 will stand attracted.
No doubt the Full Bench has not answered the second question posed before it, but the reasoning of the decision will be to that effect if the test of possession on December 30, 1958 is the only criteria.
We are of the opinion that the question of section 52 being retrospective or not has no material bearing in interpreting that section.
That section had necessarily to refer sections 38, 39 and 39A as they were also provisions enabling a landlord to get possession from a lessee.
It is in the light of these matters that the expressions occurring therein have to be given their natural meaning.
The Full Bench has misinterpreted that section.
In interpreting section 52, in our opinion, section 132 (2) (i) will be helpful.
The obligation of the landlord when he takes possession of the land from the tenant under the Berar Act is to cultivate it personally for two years and once the landlord complies with that requirement before the Bombay Act came into force, the tenant 's right to get restoration stands extinguished as the landlord has discharged his obligation.
Section 52 of the Bombay Act extends the period of personal ,cultivation to 12 years to all cases to which it applies.
If the 'landlord had taken possession under the Berar Act, there was an obligation on him to cultivate personally for two years and if he has not so cultivated, the tenant had acquired a right to be restored to possession.
That right which has been acquired by the tenant or accrued to him before the commencement of the 'Bombay Act is saved under section 132(2) (i).
Similarly, if the landlord had cultivated the lands personally for the required period, before the Bombay Act came into force, the landlord had acquired a right not to be disturbed from his possession thereafter.
That right again, which has been acquired by landlord or accrued to him has been saved under section 132(2) (i).
Having due regard to the provisions of the statutes and what has been stated by us earlier the position is that if the landlord on December 30, 1958 had completed the two years period of personal cultivation, his right not to be disturbed is continued and preserved under section 132(2) (i) of the Bombay Act.
Again if the landlord in pursuance of an order obtained under the Berar Act, takes possession, after the commencement of the Bombay Act, section 52 applies to him and his original obligation to cultivate personally for two years under the Berar Art gets L235 Sup.
CI/71 7 90 extended by the 12 years period provided under that section.
If he ceases to so cultivate within the period of 12 years from his taking possession, the tenant gets a right to apply for restoration of the land.
The several aspects enumerated above have not been consi dered by the Full Bench of the Bombay High Court and it has rested its decision for applying section 52 by applying the sole test whether the landlord has taken possession before or after December 30, 1958.
Such a test is not warranted by the provisions of both the statutes read together.
A fair reading of section 52 also, in our opinion, leads to the same conclusion.
Section 52 provides for: (i) the tenancy being terminated under section 9 of the Berar Act; (ii)the landlord taking possession of such land on the basis of such termination of the tenancy; (iii)the landlord failing to use the land for the purpose specified in the notice under section 9 of the Berar Act; (iv)failure to use the land for the purpose mentioned in the notice within one year from the date on which he took possession; (v) the landlord ceasing to use the land for the purpose for which he obtains possession within 12 years of his taking possession.
To the case of a landlord who had already completed two years personal cultivation before December 30,, 1958, the requirement of his failing to use the land for the purpose specified in the notice under section 9 within one year from the date of his taking possession, will have no application whatsoever.
The normal and reasonable construction to be placed upon section 52 is that it will apply only to cases of lands, the possession of which was obtained by the landlord under section 9 of the Berar Act, but in respect of which the period of two years disability imposed under section 9(6) read with r. 9 of the Rules was not over before the coming into force of the Bombay Act.
In respect of such landlords, section 52 enlarges the period for which he is required to personally cultivate the lands.
In this respect we are inclined to agree with the view of Mr. Justice Wagle.
To conclude section 52 applies to all cases where possession is taken by the landlord on or after December 30, 1958 on the basis of an order obtained under the Berar Act.
It applies to 91 cases where possession had been taken by a landlord under the Berar Act but the two years period of personal cultivation had not been completed when the Bombay Act came into force.
The instances of obtaining possession under sections 38, 39 or 39A of the Bombay Act have not been considered by us in this appeal.
It follows that section 52 of the Bombay Act applies to the case before us, as the landlord had not completed two years ' personal cultivation on December 30, 1958, the date on which the Bombay Act came into force.
He had taken possession on April 4, 1957, and the two years ' ptriod will expire only on April 4, 1959.
In the meanwhile the Bombay Act had come into force on December 30, 1958.
Under s.52 the period of personal cultivation had been extended to 12 years from the date of taking possession.
But as the 5th respondent, who obtained possession for personal cultivation had transferred the suit lands to the 1st respondent on June 21, 1961, on which date the 12 years period had not expired, the appellant tenant was entitled to apply for restoration on the ground that the said landlord had ceased to cultivate the lands for the required period as provided under section 52.
In the result the judgment and order of the High Court are set aside and the orders of the Special Deputy Collector and the Maharashtra Revenue Tribunal are restored and the appeal allowed.
Though normally costs should follow the event, in this case though the appellant succeeds we decline to award him costs, as we are of the view that he should have been more careful in giving the valuation in the special leave petition.
V.P.S. Appeal allowed.

summary/full:
Section 9(6) of the Berar Regulation of Regulation of Agricultural Leases Act, 1951, read with rule 9 of the Rules made thereunder required a land holder, who terminated the tenancy of his protected lease on the ground that the land was required by him for his personal cultivation, to cultivate the land personally for a period of 2 years.
It the land holder failed to do so then the section conferred a right on the former protected lessee to apply to the Revenue Officer for being restored to possession.
On December 30, 1958, the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act of 1958 came into force.
Under section 132 of ' the Bombay Act.
the Berar Act was repealed but certain rights acquired or accrued before the commencement of the Bombay Act were saved.
Under section 52 of the Bombay Act, if the landlord had ceased to cultivate the land within a period of 12 years from the date of taking possession, the tenant can apply for restoration, that is, the period of 2 years Linder the Berar Act was enlarged to 12 years.
The appellant was a protected lessee within the meaning of the expression in the Berar Act, in respect of certain lands.
The landlord obtained possession of the lands on April 4, 1957 on.
the ground that he required the lands for personal cultivation.
He continued in possession of the lands till June 21, 1961, on which date he transferred the lands to the first respondent.
The tenant thereupon filed in application under section 52 of the 'Bombay, Act.
The application was dismissed but the tenant 's appeal was allowed.
The appellate order was confirmed in revision by the ' 'Revenue Tribunal.
The first respondent filed a writ petition and the High Court set aside the order of the Revenue Tribunal.
The certified copy of the judgment of the High Court, by mistake, showed the valuation of the lands ,it a very much higher value than the value given by the appellant in the writ petition.
The appellant obtained special leave from this Court mentioning the enhanced valuation in his application for special leave.
On the questions : (1) Whether the special leave granted by this Court should be cancelled on the ground that the appellant made a false statement in regard to valuation; and (2) whether section 52 of the Bombay Act applies, HELD : (1) In the particular circumstances of this case, though the appellant should have been more careful, it cannot be said that he was guilty of making any false or untrue statement on any material particulars deliberately to mislead the court.
Further, the statement regarding valua tion was lot of Much consequence in this case because the questions raised are points of law regarding the applicability of section 51 of the Bombay Act.
[81 D F] Hari Narain vc.
Badri Das ; Sita Bai vs Sonu Vanji Wani & Ors.
C.A.No. 982/65 dt. 25 4 68 and section R. Shetty vs Phirozeshah Nusserwanji Golabawalla & Anr,.
V.A., No. 1551/63 clt.
5 4 61, referred to.
L235SLtp.
CI(P)71 74 (2) Section 52 of the Bombay Act applies to the facts of this case.
[91 B] If a landlord, in pursuance of an order obtained under the Berar Act,. takes possession after the commencement of the Bombay Act, section 52 applies to him and his obligation to cultivate personally for two years under the Berar Act gets extended to 12 years period provide( ' under that section.
[90 A B] If the landlord had taken possession of the land under the Berar Act before the commencement of the Bombay Act, there was an obligation on him to cultivate personally for two years and if he had not so cultivated, the tenant would have acquired a right to be restored to possession.
That right, so acquired by the tenant or accrued to him, before the commencement of the Bombay Act, is saved under section 132(2) (i) of the Bombay Act.
Similiarly, if the landlord had cultivated the land personally for the required period before the Bombay Act came into farce the landlord would have acquired a right not to be disturbed from his possession thereafter.
That right again, which had been acquired by the landlord or accrued to him is saved Linder section 132(2(i).
[89 E H] Therefore, section 52 applies to cases in which possession was obtained by the landlord under section 9 of the Berar Act but in respect of which the period of two years disability imposed under section 9(6) read with r. 9 of the rules was not over before the coining into force of the Bombay Act.
[90 F H] The decision of this Court in Rain Chandra vs Tukaram, ; does not lay down that section 52 of the Bombay Act doe, , not apply to case , where possession has been taken after the Bombay Act had come into force in pursuance of an order 'for restoration obtained by the landlord under the Berar Act.
[85 A B] In the Full Bench decision of the Bombay High Court in Saraswatibai Babji Tukaram Umakar vs Bhikamchand Premsukhdas, , the possession of the land was taken by the landlord from the tenant under the Berar Act and the two year, , period as required under section 9(6) of that Act had also expired before the coming into force of the Bombay Act.
The principle, that applicability of section 52 of the Bombay Act depends solely upon the date on which the landlord takes possession, that is, whether before or after the Bombay Act came into force, was to broadly stated in the decision.
[86 H; 88 G H]


judgement:
Appeals Nos.
1250 and 1251 of 1966.
Appeals by special leave from the judgments and decrees dated April 1, 1965 of the Punjab High Court in Civil Regular Second Appeals Nos. 138 and 139 of 1964.
105 K.L. Gosain and Janardan Sharma, for the appellants (in both the appeals).
Naunit Lal, for the respondents Nos. 1 to 7 and 9 (in both the appeals).
The Judgment of the Court was delivered by Hegde ' J.
The appellants in these appeals are the representatives of the mortgagees of the suit properties.
The respondents in both these appeals claim to represent the interest of the mortgagors.
Civil Appeal No. 1250 of 1966 arises from Suit No. 280 of 1961 in the court of Senior Sub Judge, Rohtak and Civil Appeal No. 1251 of 1966 arises from Suit No. 334 of 1961 on the file of the same judge.
Both the suits were suits for redemption.
The trial court dismissed both the suits on two grounds viz. (1) that Kura, the person from whom the plaintiffs claim to have purchased the rights of the mortgagors was incapable of entering into a contract as he was insane.
Hence the sale deeds executed by him are void and (2) the claim for redemption in respect of the various mortgages sought to be redeemed excepting the one executed on April.
26, 1912 is barred by limitation.
The learned District Judge allowed the appeals and decreed both the suits excepting as regards the mortgage dated January 20, 1878.
In second appeal Capoor J. of the Punjab High Court confirmed the decision of the learned District Judge.
The Letters Patent Appeals filed by the appellants were summarily dismissed.
Thereafter these appeals were brought after obtaining special leave from this Court.
Both the learned District Judge as well as the learned Judge of the High Court have concurrently come to the conclusion that there is no satisfactory evidence to show that Kura was insane at the time he sold the suit properties to the plaintiffs.
This is a finding of fact and we see no reason to go behind it.
The only other ground on which the appellants are resisting the plaintiffs ' claim to redeem the mortgages in question is that according to them the claim for redemption is barred by limitation.
For dealing with that question, it will be convenient to take up the two appeals separately.
In Suit No. 28 1, the plaintiffs sought redemption of four different mortgages.
Those mortgages were said to have been executed on the following dates: (1) April 26, 1912; (2) December 21, 1895; (3) December 18, 1901 and (4) January 20, 1879.
235Sup.
CI/71 106 The original mortgage deeds or even their registration copies have not been produced.
The execution of those mortgages have been sought to be proved on the basis of certain mutation proceedings, The courts below have relied on those proceedings to prove the factum of the mortgages sought to be redeemed.
The execution of those mortgages was not challenged before us.
So far as the suit relating to the mortgage executed on January 20, 1878 (property described in plaint Item No. 4), the plaintiffs sought to withdraw their suit on the ground that they are not able to prove their case on the basis of the material in their possession.
The learned trial judge did not permit them to withdraw that part of their suit.
He dismissed the plaintiffs ' claim in that regard.
His judgment was upheld in appeal as well as in second appeal.
That part of the plaintiffs ' case was not pressed before us.
Now coming to the mortgage said to have been executed on April 26, 1912 (the concerned property is described in plaint Item No. 1), the claim for redemption is admittedly within time as the suit was filed on November 27, 1961, the period of limitation being 60 years.
This leaves us with mortgages said to have been executed on December 21, 1895, (relating to plaint Item No. 2) and on December 18, 1901 (relating to plaint Item No. 3).
We shall first take up the mortgage said to have been executed on December 21, 1895.
Prima facie the suit in respect of this property is barred by time but it is said that in view of the acknowledgment made by mortgagors under the original of exhibit P 5 dated 22.6.1906, the suit is within time.
There is no satisfactory material to show that Ex.
P 5 relates to the mortgage in question.
It is not necessary to go into that question in detail as in our opinion, it was impermissible for the courts below to rely on Ex.
P 5 for the purpose of acknowledgment exhibit P 5 is a certified copy of a statement said to have been made in a mutation proceeding.
Its original has not been produced.
No witness has been examined to speak to the fact that the persons who are shown to have signed the original have in fact signed the same or those persons were the mortgagors or their representatives.
The signature on the original cannot be proved by production of a certified copy.
Nor can the courts raise any presumption under section 90 of the Evidence Act in that regard see Harihar Prasad Singh and anr.
vs Mst. of Munshi Nath Prasad and Ors.(1) The High Court and the 1st appellate court erroneously thought that they could presume that the persons mentioned as the executants in the copy have signed the original on the strength of section 44 of the Punjab Land Revenue Act and section 1 1 4 (e) of the Evidence Act.
Section 44 of the punjab Land Revenue Act deals with the presumption as regards an entry (1) ; 107 in the record of rights.
Herein we are not concerned with any entry in the record of rights.
We are, concerned with the genuineness of the, signature in the original of exhibit P 5 and the identification of the persons who signed it.
Hence that section affords no aid.
Section 114(e) of the Evidence Act says that court may presume that judicial and official acts have been regularly performed.
Herein we are not concerned with the regularity of the performance of any official act.
The identification of an executant or genuineness of a signature in a statement filed before an official as nothing to do with the regularity of his act unless it is shown that he had a duty to identify the person who signed it and further to take the signature in his presence.
Therefore exhibit P 5 cannot serve as an acknowledgment,of the mortgage.
Hence the plaintiffs claim to redeem the mortgage in respect of item No. 2 of the plaint must fail.
Now coming to plaint item No. 3, the plaint shows that the mortgage in question was executed on December 18, 1901, The original mortgage deed or its registered copy has not been produced.
For the proof of execution of the mortgage the plaintiffs relied on exhibit P 8, a certified copy of a mutation proceeding.
That copy shows that the mutation in question was ordered on 12th June 1901.
Therefore the concerned mortgage must have been executed earlier than that date.
It appears that the plaintiffs have deliberately given a wrong date of the mortgage in the plaint with view to bring the suit within the period of limitation.
I The learned District Judge has opined that the claim for redemption of this item of property is also within time in view of exhibit P 8.
Here again no evidence was led to show that the original statement was signed either by the mortgagors or by their representatives.
The original was not produced in court.
exhibit P 8 is only certified copy.
By merely producing a copy, it cannot be said hat the plaintiffs have succeeded in proving that the signature in original statement is that of the mortgagors or their represents gives.
As discussed earlier the plaintiffs cannot take the benefit of section 90 of the Evidence Act or section 44 of the Punjab Land Revenue Act or section 114(e) of the Evidence Act to prove that the original was signed by the mortgagors or their representatives.
Hence the plaintiffs ' claim in respect of plaint item No. 3 must also fail.
In the result Civil Appeal No. 1250 of 1966 is partly allowed and the plaintiffs ' claim for redemption of plaint items Nos. 3 and 4 is dismissed and the decree for redemption of plaint item No 1 is upheld.
Now we shall take up Civil Appeal No. 1251 of 1966 arising from Suit No. 334 of 1961.
Therein redemption of two mort gages said to have been executed on June 19, 1894 and May 15, 1896 was sought.
Prima facie the suit is barred by limitation.
108 But it was contended and that contention was accepted by the appellate court and the High Court that the suit is within time in view of (1) the acknowledgments made by the mortgagors or their representatives on several occasions, the last of which was on June 25, 1919 and (2) in view of the application made by the plaintiffs respondents under section 4 of the Redemption of Mortgages (Punjab) Act, 1913 (Act No. 11 of 1913).
We shall first take up the question of acknowledgments.
The acknowledgments in question were ought to be proved by production of certain certified copies.
The originals of those copies were not produced.
No evidence was led to show that the originals were signed either by the mortgagors or by their representatives.
For the reasons earlier mentioned those copies cannot serve as acknowledgments.
Now coming to the application made under section 4 of the Redemp tion of Mortgages (Punjab) Act, 1913, the same was made on May 16, 1959 and it was dismissed on April 18, 1961.
There in the parties were referred to a civil suit.
Even if the period taken in prosecuting the said application is excluded in computing the period of limitation, the suit for redemption is admittedly barred.
But what was urged on behalf of the plaintiffs is that in view of section 12 of the Redemption of Mortgages (Punjab) Act, 1913, the plaintiffs were entitled to bring the suit within one year from April 18, 1961, the date on which their application was dismissed.
There is no dispute that for the suit contemplated by the aforesaid section 12, the period of limitation prescribed is one year from the date of the order.
The dismissal of the petition in this case was made under section 10 of the Redemption of Mortgages (Punjab) Act, 1913.
Therefore the order made on that application comes within the scope of section 12.
But the real question is whether section 12 enlarges the period of limitation for a redemption suit.
That section to the extent material for our present purpose reads as follows "Any party aggrieved by an order made under sections 6, 7, 8, 9, 10 and 1 1 of this Act may institute a suit to establish his rights in respect of the mortgage; but, subject to the result of such suit, if any, the order shall be conclusive.
" This section merely provides that a summary order made under sections 6, 7, 8, 9, 10 and 1 1 of the Redemption of Mortgages (Punjab) Act, 1913 becomes final unless a suit to establish the rights of the mortgagors is instituted within the prescribed period.
From this provision we are unable to hold that in view of that section, the period of limitation fixed for redemption of mortgages can be enlarged.
Several decisions of the Lahore High Court holding that if a suit as required by section 12 is not filed within the time prescribed then the right of redemption will be lost even if the time prescribed under the Limitation Act for instituting a suit for 109 redemption has not expired.
It is not necessary to go into the correctness of those decisions though prima facie we are inclined to accept their correctness, because they merely Jay down that if ' any party aggrieved by an order under sections 6, 7, 8, 9, 10 and 11 of the Redemption of Mortgages (Punjab) Act, 1913 does not institute a suit to establish his rights in respect of the mortgage within the time prescribed his right to sue for redemption is lost.
Those decisions do not support the contention of the plaintiffs that a mortgagor whose application for redemption under section 4 of the aforesaid Act is dismissed can file a suit for redemption of the mortgage even though the limitation prescribed for such a suit had expired, if only he files that suit within a period of one year from the date of the order dismissing his petition under section 4.
No decision taking that view was brought to our notice.
What is made conclusive by section 12 is the order made by the Collector if the suit as contemplated by section 12 is not instituted within the prescribed time.
That provision does not lend any support for the contention that if an application which fulfils the requirements (4 section 4 is brought then the period of limitation prescribed for a redemption suit becomes irrelevant.
For the reasons mentioned above Civil Appeal No. 1251 of 1966 is allowed and the plantiffs ' suit No. 334 of 1961 is dismissed.
Appellants had falsely pleaded that Kura was insane.
Because of that plea the plaintiffs had to adduce considerable evidence.
Taking into consideration the various circumstances appearing in these cases we think it would be appropriate to direct the parties to bear their own costs throughout.
V.P.S. Appeals allowed.

summary/full:
Suits were filed by the representatives of the mortgagors to redeem ,certain mortgages beyond 60 years from the dates of the mortgages.
In order to get over the bar of limitation the plaintiffs relied upon certain acknowledgments made by the mortgagors.
The acknowledgments were alleged to have been made more than 30 years ago in mutation proceedings and certified copies of the statements were produced.
With respect to .Some mortgages, applicants were made under section 4 of the Redemption of Mortgages (Punjab) Act, 1913, and they were dismissed under section 10.
It was contended that the suits filed with respect to those mortgages were within time under section 12 of that Act, because, they were filed within one year of the date of the dismissal of the applications.
HELD : (1) As the originals of the acknowledgments were not produced and no witness was examined to speak to the fact that the persons who we 're shown to have signed the originals have in fact signed them or that they were the mortgagors or their representatives, there was no proof of the signatures; and the Court cannot raise any presumption under section 90 of the Evidence Act.
[106 F G] Harihar Prasad Singh vs Mst.
of Munshi Nath Prasad ; , followed.
Section 114(e) of the Evidence Act does not apply because the identification of an executant or the genuineness of a signature in a statement filed before an official has nothing to do with the regularity of his act, unless he had a duty to take the signature in his presence and to identify the person who signed.
[107 B C] Section 44 of the Punjab Land Revenue Act deals with the presumption as regards entries in the record of rights, but this case is not concerned with any such entry.
[107 A] (2)Section 12 of the Redemption of Mortgages (Punjab) Act, 1913, merely provides that a summary order made under sections 6 to II of that Act becomes final unless a suit to establish the rights of the mortgagors is instituted within the prescribed period of one year.
From this provision it cannot be held that the period of limitation fixed for redemption of mortgages is enlarged.
[108 G H]


judgement:
Appeal No. 1460 of 1969.
Appeal by special leave from the judgment and decree dated January 16, 1969 of the Gujarat High Court in Letters Patent Appeal No. 31 of 1966.
S.T. Desai, M. H. Chhatrapati, P. N. Tiwari and O. C. Mathur, for the appellants.
D. Y. Patel and I. N. Shroff, for respondents Nos. 1 and 3.
R. H. Dhebar, B. Datta and section P. Nayar, for respondent No. 2.
The Judgment of the Court was delivered by Bhargava, J.
The predecessors in interest of plaintiff respondents 1 to 3 gave, in 1895, land, bearing Serial Nos. 503 and 506 of Asarva within the limits of Ahmedabad Municipal Corporation, on lease for a period of 49 years at an annual rent of Rs. 199/ , to three persons, Shri Ramchandra Ambaram, Pardesi Sukhlal Anandram and Mehta Bogha Mugatram.
These original lessees, during the currency of the lease, made transfers of their rights and also granted sub leases.
A number of chawls and some other buildings were constructed on the land and some of them were let out on rent.
In 1945, the lessors, after serving notice on the occupants to give vacant possession, filed a suit for recovery of possession.
The suit was decreed on 8th July, 1946 on the basis of a consent decree as against some of the occupants including the four defendant appellants.
In the agreement, on the basis of which the decree was passed, it was agreed that the defendant appellants will continue in possession of the property for a period of five years and will hand over possession after the expiry of this period of five years.
For this period, they undertook to pay mesne profits every month at various rates on the lands in their possession.
Between them, the four appellants were required to pay @ Rs. 227 10 0 per mensem making up an annual amount of mesne profits of Rs. 2,731 8 0.
Similar terms were included 173 in the consent decree against other defendants who joined the compromise on the basis of which the decree was passed on 8th July, 1946.
The remaining defendants in the suit entered into a later compromise and,, as a result, another consent decree was passed on ' 28th January, 1949 against those defendants.
Under this decree, these remaining defendants were also entitled to continue in, possession for a period of five years from the date of the decree, but were required to pay mesne profits for this period.
All the defendants governed by the two decrees dated 8th July, 1946 and28th January, 1949, had to pay between them mesne profits monthly which worked out to an amount of Rs. 7,314 8 0 per annum.
Before, the expiry of the period of five years prescribed by either of the two decrees, the Custodian of Evacuee Property, in 1950, took possession of all the properties, as one of the decreeholders had become an evacuee.
After the property was released by the Custodian of Evacuee Property, an application was filed by the decree holders on 26th March, 1953 for execution of the consent decree dated 8th July, 1946 and, in that execution, possession was sought against the appellants of the property which was in .their possession.
Subsequently, a number of suits were filed for recovery of mesne profits also.
The Execution Court directed eviction of the appellants after over ruling the various objections ' raised by them in the execution proceedings.
The decision of the Execution Court on the objections taken by the appellants was challenged in appeal before the District Judge, in second appeal before a single Judge of the High Court of Gujarat, and by a Letters Patent appeal before a Division Bench.
All the Courts rejected the objectic raised by the appellants and upheld the order of the Execution Court directing delivery of possession.
It is against the judgment of the Division Bench in Letters Patent appeal in this execution that the appellants have come up to this Court in this appeal by special leave.
It is unnecessary for us to mention all the various objections that were taken at various stages by the appellants in the Execution Court, in the Court of the District Judge, or before the single Judge or the Division Bench in the High Court.
Only three of the points raised have been urged before us and, therefore, we are called upon to deal with these three points only.
The first point raised is that the decree which was passed on 8th July, 1946 was a nullity, because it was passed in contravention of section 11 ( 1 ) of the Bombay Rent Restriction Act No. XVI of 1939 (hereinafter referred to as "the Act").
This objection has been over ruled by the High Court on 'the ground that the provisions of the Act were not attracted by the lease in question on the expiry of which the suit for ejectment was decreed under the 174 consent decree dated 8th July, 1946.
Counsel appearing for the appellants urged that the terms of the decree passed as well as the terms contained in the lease deed of 1895 show that the Act was applicable because the land, to which the suit for ejectment related, was covered by the definition of "premises" to which the Act applies.
The expression "premises" is defined in section 4(2) of the Act as meaning (a) any building or part of a building let separately for any purpose whatever, including any land let therewith, or, (b) any land let separately for the purpose of being used principally for business or trade.
Admittedly, the lease of 1895 was not in respect of any building or part of a building let separately for any purpose whatever.
Reliance was placed on section 4 (2) (b) of the Act on the contention that the land had been let for the purpose of being used principally for business or trade.
Having gone through the documents relied upon by counsel for the appellants, we are unable to accept this submission.
In the plaint of the suit, as well as in the decree dated 8th July, 1946, there is no mention of the purpose for which the land was let out by the lease of 1895.
Reliance was,, however, placed on one of the pleadings in the plaint which had been reproduced in the decree in which the plaintiff respondents recited one of the terms of the lease in the following words : "On the expiry of the period of 49 years, the land shall be handed over without raising any dispute or objection or causing any obstruction, after removing whatever structures that might have been erected thereon and after making it as clear as it is." The argument was that this pleading indicates that the land was let out for making structures and those structures could only be utilised by being let out on rent.
This purpose would constitute business or trade.
We are unable to see any justification for such an inference.
The mere fact that there was a mention that structures that might have been erected will be removed can in no way lead to a reasonable conclusion that the principal purpose of the lease was the use of the land for business or trade.
Reference, in this connection, was also made to the terms of the lease of 1895; but we are unable to hold that it establishes the case of the appellants that the lease was taken principally for the purpose of using the land for business or trade.
All that the lease mentions is that it is for constructing houses and, at a later stage, 175 there is a mention that "in the said fields, the lessees could construct houses in any manner or use it in any manner.
" The other parts of the lease, on which reliance has been placed are as follows : 1.On the land of those fields we can build houses in any manner and we will receive income thereof and you will not raise any dispute or obstruction in respect thereof.
We can spend any amount on the construction of those houses which we will not demand from you for whatever reason nor we will have the right to deduct from rent payable to you.
2.If any houses are constructed thereon, we will remove the superstructures.
If we do not remove the structures then you will be the owners of the said structures.
If you take them, then we and our heirs and representatives will not object.
" We are unable to find even in these quotations from the lease any mention that the land is going to be used principally for the purpose of business or trade.
The lease does mention that it was being taken for constructing houses. 'Mere was no mention at all, however, of the manner in which the constructed houses were to be utilised.
Further, there is a clear option given to the lessees that they could us, , the land in any manner if they did not construct any houses.
These are terms on the basis of which it cannot be said that the land was being let out for business purposes.
The submission of counsel for the appellants was that, if the purpose was to construct houses and let them out on rent, that would constitute the use of the land for the purpose of business inasmuch as the lessees would be earning income from letting out those houses.
We are unable to accept this submission, because we do not think that the word "business ' or "trade" used in the definition of "premises" in section 4 (2) (b) of the Act comprehends within it a lease which is merely for constructing houses.
Learned counsel cited before us a number of decisions of Indian and English Courts, including decisions of the Privy Council and this Court,, in which the scope of the word "business" was interpreted.
That interpretation was given in connection with the word "business" as used either in income tax law or in the terms of a covenant or the Companies Act, etc.
We do not consider that it will be at all profitable to refer to them when interpreting the word "business" or "trade" as used in section 4(2) (b) of the Act, because none of those interpretations will cover a case similar to the one before us, where the lease was merely a permissive one giving a right to the lessees to construct houses and let them out or to use the land in any manner.
When the purpose of the lease 176 was expressed in this way, it is impossible to hold that the principal use, to which the land was to be put by the lessees, was business or trade.
As a consequence of this interpretation, it has to be held that the Act was not applicable to the lease of 1895 and, therefore, no question arises of the decree of 8th July, 1946 being invalid on the ground of contravening section 11 ( 1 ) of the Act.
The second point urged by learned counsel was that, by the consent decree itself, a new tenancy was created which was to continue for five years and, in the, meantime, the Bombay Rents Hotel & Lodging House Rates Control Act, 1947 came into force and the appellants were protected from ejectment under the provisions of that Act.
The consent decree does not state that a new tenancy is being created.
The argument was that the terms of that consent decree should be interpreted as indicating an intention to create a new tenancy. ' We are unable to find any such terms.
On the face of it, all that the, consent decree envisaged was that, though the judgment debtors were liable to immediate eviction, the decree holders agreed to let them continue in possession for a period of five years.
Since this concession was being granted as a special case, the decree holders insisted that mesne profits should be paid at a much higher rate so much so that between all the defendants, governed by the two decrees of 8th July, 1946 and 28th January, 1949, the amount payable as mesne profits became Rs. 7,314 8 0 per annum which had no relation with the original rent of Rs. 199/ per annum for the entire land fixed by the lease of 1895" In fact the decree holders sought further protection by requiring the judgment debtors to pay the mesne profits in monthly instalments, and the instalments were so fixed that the mesne profits due for five years were to be paid within a period of three years.
There was the further clause that, in case of default of payment of the mesne profits, the defaulting judgment debtors could be immediately called upon to deliver possession.
These terms can, in no way, be interpreted as creating a new tenancy constituting the decree holders as landlords and the judgmentdebtors as their tenants.
The terms of the consent decree neither constituted a tenancy nor a licence.
All that the decree holders did was to allow the judgment debtors to continue in possession for five years on payment of mesne profits as a concession for entering into a compromise.
The argument advanced must, therefore, be rejected.
Reference was made by learned counsel for the appellants, in support of his argument, to a decision of the Bombay High Court in Gurupadappa, Shivlingappa Itgi vs Sayad Akbar Sayad Budan Kadri(1), but that case, in our opinion, has no application.
In (1) 52 B.L.R. 143. 177 that case, in the consent decree itself, the first clause was that the defendant admits that he is a monthly tenant of the plaintiff and is to continue in possession till January 31, 1948.
This clause specifically and clearly, in the language used, made it manifest that the defendant was a monthly tenant and was to continue in that capacity in possession.
It was in these circumstances that it was held that a new tenancy had been created from the date of the consent decree.
In the case before us, the terms of the consent decree are in no way comparable with the terms used in the consent decree in that case.
The language used in the consent decree in the present case contains no indication of any intention to create a tenancy, so that the Bombay Rent Control, Act.
1947 could never apply to the case of the appellants.
The third point raised by learned counsel was that, since there was one single suit based on the lease of 1895 for ejectment of persons in possession, there could be only one single decree in that suit and the Court was incompetent to pass two separate decrees on 8th July, 1946 and 28th January, 1949.
Counsel, in this connection, relied on the provisions of rules 1 and 12 of Order XX of the Code of Civil Procedure which relate to the pronouncement of judgment and the Court passing a decree in a suit.
These rules have really no relevance.
On the other hand, rule 3 of Order XXIII, C.P.C., clearly envisages a decree being passed in respect of part of the subject matter of the suit on a compromise, and rule 6 of Order XII, C.P.C., permits the passing of a judgment at any stage without waiting for determination of other questions.
Thus, it is clear that, in the same suit, there can be more than one decree passed at different stages.
In the present case, the first decree of 8th July, 1946, was based on a compromise between the plaintiffs and some of the defendants, while the second decree dated 28th January, 1949 decided the rights of the remaining defendants.
Th. , two decrees were separate and independent and neither of them could be treated as a nullity.
In these circumstances, the Execution Court was right in re jecting all the objections raised by the appellants and in directing delivery of possession.
The appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.

summary/full:
The predecessors in interest of the respondents, leased certain land at an annual rent of Rs. 199, in 1895 for 49 years.
The lease was a permissive one and gave right to the lessees to construct houses and let them out or to use the land in any manner.
The original lessees, during the currency of the lease made transfers of their rights and also granted sub leases.
A number of chawls and other buildings were constructed on the land and were let out.
The respondents terminated the lease and sued for recovery of possession in 1945.
A compromise was entered into with the appellants, who were some of the occupants, and a consent decree was passed on 8th July 1946.
Another consent decree was passed against the remaining defendants on 28th January 1949.
Under the two decrees the defendants were allowed to remain in possession for 5 years from the dates of the respective decrees and they bad also to pay monthly mesne profits which worked out to more than Rs. 7,000 per annum, and that amount was so fixed that the mesne profits due for the 5 years were to be paid in 3 years.
There was also a clause that in case of default, the defaulting judgment debtors could be immediately called upon to deliver possession In 1953, the respondents sought possession by executing the consent decree dated 8th July 1946.
On the questions : (1) Whether the decree contravened the provisions of the Bombay Rent Restriction Act, 1939, as the leased land was 'premises ' within the meaning of section 4(2)(b) of that Act; (2) whether the consent decree created a new tenancy which was protected by the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947; and (3) whether the passing of two separate decrees was illegal as the court was not competent to do so.
HELD : (1) 'Premises ' is defined in section 4(2) (b) as any land let separately for the purpose of being used principally for business or trade.
The words 'business or trade ' do not comprehend a lease which is merely for constructing houses.
The terms of the lease, in the present case, do not establish that the lease was taken principally for using the land for 'business or trade. ' [174 C D ; 175 G H] The mere fact that there was a mention in the pleadings that any structure that might have been erected would have to be removed, would in no way lead to the conclusion that the principal purpose of the lease was to build structures and that the structures should be utilised for being let out on rent and thus constitute business or trade.
Therefore tile decree did not contravene the provisions of the Bombay Rent Restriction Act.
[174 F G; 175 D E; 176 A] 172 (2)On the face of it, all that the consent decree envisaged was that though the judgment debtors were liable to immediate eviction, the decree holders agreed to let them continue in possession for a period of 5 years, and, since the concession was granted as a special case, the decree holders insisted on payment of mesne profits at a much higher rate.
The terms of the consent decree could in no way be interpreted as creating a new tenancy constituting the decree holders as landlords and the judgment debtors as their tenants.
[176 C E, F G] (3)Order 23, r. 3 and 0. 12, r. 6 of the Civil Procedure Code envisage that in the same suit there can be more than one decree passed at different stages [177 D F]