judgement:
CTION: C.M.P. No.8076 of 1988 and I.A. Nos.
3,5,6 and 7 of 1990 In Civil Appeal No. 3519 of 1984.
From the Judgment and Order dated 3.4.1984 of the Delhi High Court in W.P. No. 1144 of 1983.
WITH Writ Petition (C) Nos.
2620 59 of 1985.
Under Article 32 of the Constitution of India).
C.S. Vaidyanathan, Ms. Smitha Singh, K.A.Raja, A.K. Srivastava, Sushma Suri, C.V.S. Rao, Ms. C.K. Sucharita and Vimal Dave for the appearing parties.
The following Order of the court was delivered: CMP No. 8076/1988: This is an application by certain doctors of the Central Health Service for clarification of the earlier orders passed by this Court in C.A. 3519/1984.
Actually, the appellants ' grievance is that even though the appeal was disposed of by the order of this court dated 9.4.
1987 and the directions given therein have been reiterated in the subsequent orders of this Court, the Union of India has not given proper effect to the directions given by this Court.
Briefly, the appellants were originally appointed after interview by selection committees but only as adhoc appoint ees in the above service.
They were appointed on various dates between 1968 and 1977.
Their grievance is that dispite their long service in the Department they were not regula rised with reference to their original dates of appointment.
The Union of India pointed out certain difficulties in giving effect to the order of this Court of April, 1987 by filing a review petition and then a clarification applica tion but these have been dismissed.
The resultant position is that all the appellants have to be regularised in Group A of the Central 112 Health Service w.e.f.
1.1.1973 or the date of their respec tive original appointments whichever is later.
We may men tion here that this date 1.1.1973 is mentioned here because the appellants have now expressed their willingness to be considered for regular appointment only from this date and not from any earlier date, this being the date on which the group B and Group A services were merged together by the Government of India on the recommendations of the Third Pay Commission.
The only difficulty experienced by the Union of India in giving effect to the directions of this Court which now subsists is that if regularisation is granted to all the appellants, doctors who have been regularly appointed in Group A after an interview by the Union Public Service Commission may get relegated to secondary positions in view of the fact that the appellants were appointed much earlier though on an adhoc basis.
These regularly recruited doctors had not been heard earlier and they have now come up with intervention applications praying that any order of regular isation of the appellants should ensure that their interests are not prejudiced.
This was also the anxiety of the Union of India as expressed in the counter affidavit filed in this Court.
After heating all the counsel, we were inclined to think that while the appellants should get their rights which were declared by this Court in its earlier orders, there should at the same time be no prejudice to the doctors appointed through regular recruitment by the Union Public Service Commission.
After some discussion, counsel for the appel lants agreed to put forward certain proposals which would safeguard their interests and also at the same time not prejudice the regular appointees through the Union Public Service Commission.
The essence of the proposal made by them is that they may be treated to be a separate category with their own seniority list and entitled to promotion in ac cordance with that seniority list, the problem of conflict with the direct regular recruits being avoided by creation of an appropriate number of supernumerary posts.
The Union of India is not agreeable to accept these proposals which were set down by the appellants at our instance, in the form of an affidavit.
The proposals of the appellants have been set down in an annexure to an affidavit filed by Dr. PPC Rawani and dated 16th July, 1991.
However, after considering the matter we are of the opinion that there is no way of rendering justice to all the parties before us except by accepting these proposals in the manner to be set down below particularly because we find that while making the propos als, the appellants have also to some extent expressed the willingness to forgo certain rights that might have accrued to them in consequence of the earlier orders passed by this Court.
We are of the opinion that the proposals made are reasonable in the circumstances of the case and that they do not also in any way prejudice the rights of the regularly recruited doctors.
113 In view of this, we direct that the following proposal be implemented by the Department by way of giving effect to the order of this Court in C.A. 3519/84 dated April, 1987 and the subsequent clarificatory orders passed by this Court: The directions given are as follows: 1.
Each of the appellants will be treated as regularised in Group A of the Central Health Service from 1.1.1973 or the date of his first initial appointment in the service (though as adhoc Group B doctor), whichever is later.
In order to ensure that there is no disturbance of the seniority and the promo tional prospects of the regularly recruited doctors there will be a separate seniority list in respect of the appellants and their promotions ( 'about which directions are given below) shall be regulated by such separate 'seniority list and such promotions will only be in supernumerary posts to be created as mentioned below.
(a) Each of the appellants will be eligi ble for promotion to the post of Senior Medi cal Officer or Chief Medical Officer or fur ther promotional posts therefrom taking into account his seniority in the separate seniori ty list which is to be drawn up as indicated above.
(b) The promotion of any of the appellants to the post of Senior Medical Officer, Chief Medical Officer and further promotional post therefrom will be on par with the promotion of the regularly recruited doctor who is immedi ately junior to the concerned appellant on the basis of their respective dates of appoint ment.
In other words, if a regularly recruited doctor, on the basis of the seniority list maintained by the Department, gets a promotion as Senior Medical Officer or Chief Medical Officer or further promotion thereafter, then the appellant who was appointed immediately earlier to him will also be promoted as a Senior Medical Officer or Chief Medical Offi cer or further promotion therefrom (as the case may be) with effect from the same date.
In order that there may be no conflict or any possibilities of reversion, the post to which an appellant will be promoted (whether as Senior Medical Officer or Chief Medical Officer or on further promotion therefrom) should only be to a supernumerary post.
Such number of supernumerary posts should be creat ed by the Government as may be necessary to give effect to the above directions.
No promo tion will be given to any of the appellants in the existing vacancies which will go only to the regularly 114 appointed doctors.
The appellants hereby agree to give up all monetary claims on account of revision of scales, regularisation or promotion to which they would be entitled till 31.10.
199 1. 6.
Apart from the appellants there are certain doctors who fall in the same category but who had not filed writ petitions before the High Court.
They have filed directly writ petitions before this Court beating Nos.
2620 2659/1985 and intervention applications.
The intervention applications are allowed and rule nisi is issued in the writ petitions of which the other parties take notice.
These interveners and writ petitioner have to be granted the same relief as the appellants.
It is made clear that all these applicants and petitioners will be entitled to the same reliefs as the appellants for all purposes of seniority and promotion.
All monetary claims on account of revision of scales, regularisa tion or promotion till 31.10.1991 are given up by These applicants and petitioners as well.
We direct that, in view of the long pendency of litiga tion before this Court, the Union of India should take immediate steps to implement the above directions.
The directions should be given effect to latest by 31st March, 1992.
All the interim applications in the matter stand dis posed of in view of the fact that the main CMP itself has been disposed of.
R.P. Matters dis posed of.

summary/full:
In Civil Appeal No.3519 of 1984, filed by the appel lants, who were appointed as doctors on adhoc basis in the Central Health Service on various dates between 1968 and 1977, praying for regularisation of their services with reference to their original dates of appointments, this Court, by its judgment dated 9.4.1987 and subsequent orders, gave certain directions.
Since the Union of India could not implement the directions, the appellants filed the civil miscellaneous petition for clarification of the earlier orders passed by this Court in the Civil Appeal.
Certain other doctors who fall in the category of the appellants (adhoc appointees) and who had not earlier filed writ peti tion before the High Court, filed writ petitions and inter vention applications before this Court praying for the benefits as granted to the appellants.
It was contended by the Union of India that if regulari sation was granted to all the appellants and the like cate gories of doctors, the doctors regularly appointed in Group A may get relegated to secondary position in view of the fact that the appellants were appointed much earlier on adhoc basis.
The regularly recruited doctors, not heard earlier, also filed intervention applications praying that any order of regularisation of the appellants and the similarly situated doctors should ensure that their interests were not preju diced.
The appellants and the other similarly situated doctors expressed their willingness to be considered for regular appointments 110 only from 1.1.1973, this being the date on which the Group B and Group A services were merged together by the Government of India.
They also agreed to give up monetary claims on account of revision of scales, regularisation or promotion to which they would be entitled till 31.10.1991.
Disposing of the matters, this court, HELD: 1.
Each of the appellants will be treated as regularised in Group A of the Central Health Service from 1.1.1973 or the date of his first initial appointment in the service (though as an adhoc Group B doctor) whichever is later.
[p. 113 B] 2.
In order to ensure that there is no disturbance in the seniority and the promotional prospects of the regularly recruited doctors there will be a separate seniority list in respect of the appellants and their promotions shall be regulated by such separate seniority list and such promo tions will only be in supernumerary posts to be created by the Government.
[p. 113 B C] 3(a).
Each of the appellants will be eligible for promo tion to the post of Senior Medical Officer or Chief Medical Officer or further promotional posts therefrom taking into account his seniority in the separate seniority list.
[p. 113 D] (b).The promotion of any of the appellants to the post of Senior Medical officer, Chief Medical Officer and further promotional post therefrom will be on par with the promotion of the regularly recruited doctor who is immediately junior to the concerned appellant on the basis of their respective dates of appointment, e.g. if a regularly recruited doctor, on the basis of the seniority list maintained by the Depart ment, gets a promotion as Senior Medical Officer or Chief Medical Officer or further promotion thereafter, then the appellant who was appointed immediately earlier to him will also be promoted as a Senior Medical officer or Chief Medi cal Officer or further promotion therefrom (as the case may be) with effect from the same date.
[p. 113 D F] 4.
In order to avoid any conflict or any possibilities of reversion, the post to which an appellant will be promot ed (whether as Senior Medical Officer or Chief Medical Officer or on further promotion therefrom) should only be to a supernumerary post.
Such number of supernumerary posts should be created by the Govern 111 ment as may be necessary to give effect to the above direc tions.
No promotion will be given to any of the appellants in the existing vacancies which will go only to the regular ly appointed doctors.
[pp. 113 F H, 114 A] All the writ petitioners and interveners, falling in the category of the appellants, would also be entitled to the same reliefs as the appellants for all purposes of seniority and promotion.
[p. 114 A C]


judgement:
Appeal No. 3850 of 1991.
From the Judgment and Order dated 21.4.1978 of the Andhra Pradesh High Court in Civil Revision Petition No. 3974 of 1977.
A. Subba Rao, G. Narasimhulu and A.D.N. Rao for the Appel lants.
T.V.S.N. Chari and Ms. Manjula Gupta for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
As we are in agreement with the conclusions arrived at by the High Court of Andhra Pradesh, we propose to set out the few facts necessary for the appreciation of the argu ments before us very briefly.
517 The parties belong to the Reddi caste in an area of Andhra Pradesh which originally formed part of the Madras Presidency.
Appellant No. 1 is the illatom son in law of Appellant No. 2.
The appellants filed their respective declarations under Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, (hereinafter referred to as "the Ceiling Act").
In his declaration, appellant No. 2 claimed an increase in the ceiling unit permitted to be held by him on the ground that appellant No. 1 as his illatom son in law who had attained the age of majority had a share in the properties of his father in law, appellant No. 2.
Appellant No. 2 deposed in the inquiry held that appellant No. 1 was entitled to a half share in his properties as his illatom son in law.
Both of them claimed that appellant No. 1 was entitled to the afore said share under an agreement (Exhibit A I).
The Land Re forms Tribunal, Anantapur by its judgment dated May 31, 1977, rejected the claim of the appellants and held that the declarant, appellant No. 2 held surplus holding to an extent of 0.4109 standard acres and directed him to surrender the excess land.
Appellant No. 1 was declared as not holding any land in excess of ceiling limit.
The appellants preferred an appeal to the Land Reforms Appellate Tribunal, Anantapur which was dismissed on November 4, 1977.
Aggrieved by the order of dismissal made by the said Tribunal, the appellants filed a Civil Revision Petition No. 3974 of 1977 in the High Court of Andhra Pradesh which was dismissed by a learned Single Judge of the High Court by a common judgment along with other connected matters on April 21, 1978.
This appeal by special leave is one of the appeals directed against the common judgment of the said High Court.
An illatom son in law is in a sense, a creature of custom.
It is well settled by a series of decisions that a custom of illatom adoption prevails among the Reddi and Kamma castes in territories which earlier formed part of the then Madras Presidency.
It is stated in Mayne 's Hindu Law and Usages, 13th Edition, Paragraph 242 in Chapter VII, as follows: "A custom known as that of illatom adoption prevails among the Reddi and Kamma castes in the Madras Presidency.
It consists in the affiliation of a son in law, in consideration of assistance in the management of the family property.
No religious significance appears to attach to the act.
Neither the execution of any document nor the performance of any cere mony is necessary.
The incidents of an illatom adoption have now become crystallized into fixed rules of law by a long course of deci sions.
To constitute a person an illatom, a specific agreement is necessary . .
After the death of the adop 518 ter he is entitled to the full rights of a son even as against natural sons subse quently born or a son subsequently adopted in the usual manner." It has also been stated by Mayne that an illatom son in law has no right to claim partition with his father in law unless there is an express agreement or custom to that effect.
An illatom son in law is not an adopted son in any sense.
In N.R. Raghavachariar 's Hindu LaW, 8th Edition, in paragraph 176, it is stated that an illatom son in law loses no rights of inheritance in his natural family and the property he takes in the adoptive family is taken by his own relations to the exclusion of those of his adoptive father.
The position, as set out in Mulla 's Hindu law, 16th Edition is no different.
Regarding the position of an illatom son in law it has been inter alia observed by Mulla at para 515 (page 534) as follows: "He does not lose his right of inheritance in his natural family.
Neither he nor his de scendants become coparceners in the family of adoption though on the death of the adopter he is entitled to the same rights and the same share as against any subsequently born natural son or a son subsequently adopted in accord ance with the ordinary law.
He cannot claim a partition with the father in law and the incidence of a joint family, such for instance as right to take by.
survivorship, do not apply.
In respect of the property or share that he may get he takes it as if it were his separate and self acquired property.
" To cite just a few decisions, the custom of having an illatom son in law in the Kamma Castes and the Reddis in Madras Presidency has been recognised in Nalluri Kristnamma and another vs Kamepalli Venkatasubbayya and others.
(1918 19) L.R. 46 I.A. 168.
The same custom has also been recog nised by the decision of a Division Bench of the Madras High Court in Hanumantamma vs Rami Reddi.
(1882) L.R. 4 I.A. Madras Series, 272.
In Narasayya and others vs Rammachan drayya and others A.I.R. [1956] 43 A.P. 209 it has been held that the institution of illatom adoption, that is, affiliat ing a son in law and giving him a share, is purely a crea ture of custom and judicial recognition has been given to it.
Learned Counsel for the appellants contends that appel lant No. 1 as an illatom son in law of appellant No. 2, was entitled to a half share in the property of appellant No. 2.
He submitted that an illatom son in law who had attained the age of majority was in the same position as a major son and hence, the ceiling area permitted to appellant No. 2 was liable to be increased by one ceiling unit as appellant No. 1 did not hold any land independently nor in any manner specified under Section 4 A of the Ceiling Act.
519 Before examining the correctness of these submissions, we may refer to the relevant provisions of the Ceiling Act.
The Ceiling Act which provided for a ceiling on agricultural holding in Andhra Pradesh was enacted in 1973 and amended by Act No. 10 of 1977 which was reserved tot the assent of the President and received the same on April 29, 1977.
The said amending Act was made effective from January 1, 1975.
Section 3 of the said Act is the definition section.
Sub section (c) of Section 3 defines the term 'ceiling area ' after the amendment as meaning the extent of land specified in Section 4 or 4A to be the ceiling area.
Sub section (5) of Section 3 defines the term "family unit" and clause (i) thereof provides that in case of an individual who has a spouse or spouses such individual, the spouses and their minor sons and their unmarried minor daughters, if any, constitute his family unit.
Section 4 provides for the ceiling area.
After Section 4 of the said Act, the following Section 4A was inserted in the Act.
"4A. Increase of ceiling area in certain cases : Notwithstanding anything in section 4, where an individual or an individual who is a member of a family unit, has one or more major sons and any such major son either by himself or together with other members of the family unit of which he is a member, holds no land or holds an extent of land less than the ceiling area, then, the ceiling area, in the case of said individual or the family unit of which the said individual is a member computed in accordance with section 4, shall be increased in respect of each such major son by an extent of land equal to the ceiling area applicable to such major son or the family unit of which he is a member, or as the case may be, by the extent of land by which the land held by such major.
son or the family unit of which he is a member falls short of the ceiling area.
" Section 5 prescribes how the standard holding for dif ferent categories of land is to be computed.
Section 8 provides for declaration of holding by persons whose holding on the notified date together with the other lands mentioned therein exceeds the specified limit.
Section 9 provides for the determination of the ceiling area by the Tribunal.
Section 10 inter alia provides that if the extent of the holding of a person is in excess of the ceiling area, the person shall be liable to surrender the land held in excess.
The question which arises is whether, for the purposes of Section 4A 520 of the Ceiling Act, an illatom son in law can be regarded as a major son, that is, whether an illatom son in law is covered in the definition of the term 'major son ' as em ployed in Section 4A of the Ceiling Act.
It has been ob served in the impugned judgment that an illatom son in law is a creature of custom and hence, his rights are such as recognised by the custom or under an agreement duly proved.
It has been pointed out in the impugned judgment that the Land Reforms Tribunal held, on consideration of the evidence, that half share in property of appellant No. 2 was bequeathed to him and hence, he would be entitled to half share only after the demise of appellant No. 2.
It was further pointed out that all the lands stood registered in the name of appellant No. 2 and hence, appellant No. 1 was not entitled to any share in the properties of appellant No. 2 during the life time of appellant No. 2.
It has been held in the impugned judgment that appellant No. 1 who is the illatom son in law could not be regarded as a son of appellant No. 2, although he had some rights which were similar to the rights of a natural born son or an adopted son.
The agreement (Exhibit A) which was set up by the appellants and under which appellant No. 1 given a share the land belonging to appellant No. 2 in presenti has not been accepted by the courts below on consideration of the evi dence.
It has been held that the said agreement was a document brought into existence merely with a view to avoid the ceiling law.
In this appeal, we are not inclined to interfere with these findings of the appeal.
It was also held in the impugned judgment that in the aforestated cir cumstances, the ceiling limit of appellant No. 2 was not liable to be increased on the ground that appellant No. 1 was his illatom son in law who had attained majority on the relevant date.
Coming to the position in law, the discussion in the text books, which we have referred to in some detail earli er, makes it clear that although an illatom son in law has some rights similar to those of a natural son born F after the adoption of the iliatom son in law, his rights are not identical to those of conferred by law on a son or an adopt ed son.
To cite two main differences, he does not succeed to the properties of his father in law by survivorship, but only on account of custom or an agreement giving him a share in the property of his father in law.
His position is not identical to that of an adopted son because he does not lose his rights in his natural G family on being taken as an iliatom son in law and continues to be entitled to a share in the property of his natural father.
It is, therefore, difficult to regard an iliatom son in law who has attained majority as a major son for the purposes of Section 4A of the Ceiling Act.
Learned Counsel for the appellants placed reliance on the decision of a learned Single Judge of the Andhra Pradesh High Court in Peechu 521 Ramaiah vs Government of Andhra Pradesh [1976] 2 (H.C.) Andhra Pradesh Law Journal 278, where it has been held that after the death of the father in law an iliatom son in law is entitled to the rights of his son.
If there is an agree ment to that effect, the illatom son in law is also entitled to half share in the property of the adoptive father in law even during his lifetime.
The Division Bench in the impugned judgment has not accepted the correctness of the aforesaid judgment.
In our opinion, the view taken by the Division Bench in the impugned judgment appears to be correct.
From the texts which we have cited earlier it is clear that the general recognised position is that an illatom son in law becomes entitled to a share in the property of his father in law as his heir; that is, on his death, it being well settled in law that there can be no heir to a living person.
Moreover, in Peechu Ramaiah vs Government of Andhra Pradesh the conclusion arrived at by the learned Single Judge that the illatom son in law was entitled to a half share in presenti, that is, even during the lifetime of his father in law, was based on an agreement to that effect which was duly proved.
In the present case, the agreement (Exhibit A) has been disbelieved by the authorities below as well as the High Court.
It has been pointed out by the Land Reforms Tribunal that the half share to which appellant No. 1 would be entitled was bequeathed to him in the Will of appellant No. 2 and he would be entitled to that share only on the death of appellant No. 2.
In fact, it was fairly conceded by learned Counsel for the appellants that he was not in a position to show any evidence on the basis of which it could be said that there was a custom applicable to the parties by which appellant No. 1 as an illatom son in law of appellant No. 2 was entitled to a share in the property of appellant No. 2 during the latter 's lifetime.
In our opinion, it is not possible to equate an iliatom son in law who has attained majority with a major son for the purposes of Section 4A of the Ceiling Act.
As pointed out in Penumatsa Koti Ramachandra Raju vs State of A.P., (1980) 1 (H.C.) Andhra Pradesh Law Journal, 307, it is quite apparent from the language of the Statement of Objects and Reasons of the Act 10 of 1977, whereby Section 4A was in serted in the Ceiling Act, that Section 4A was inserted in order to obviate the hardship caused to the Muslims and Christians among whom the concept of a joint family did not obtain and even major sons did not have any share in the ancestral property during the lifetime of the father unlike in the case of Joint Hindu Families.
It appears that the intention which lay behind the amendment was to put Muslims and Christians at par with Hindus in respect of the ceiling law.
It was with this point of view that it was provided in Section 4A of the Ceiling Act that, although the limit of the father 's holding would be increased on the ground of his having a major son that increase would 522 be limited to the extent by which the land holding of the major son and his family unit fell short of the ceiling unit.
In our opinion, the Statement of Objects and Reasons of the said amending Act whereby Section 4A was inserted into the said Act lends support to the view that we are taking, that an illatom son in law, who does not lose his rights in his own family, cannot be regarded as a major son of his father in law for the purposes of the Ceiling Act.
If he was so regarded, there would be a double benefit, in the sense that because of his presence the ceiling area of his father in law would be increased as well as the ceiling area of his natural father and that certianly could not have been the intention behind the amendment inserting Section 4A.
Since there is no custom of having an illatom among Muslims and Christians such a construction would lead to disparity between the position of Muslims and Christians on the one hand and Hindus on the other.
That would be contrary to the very purpose for which the amendment was made.
In the result, we are of the view that there is no merit in the appeal and it must fail.
Appeal dismissed.
However, looking to the facts and circumstances of the case there will be no order as to costs.
V.P.R Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellants, who belonged to the Reddi caste in an area of Andhra Pradesh, which originally formed part of the Madras Presidency filed their respective declarations under Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973.
Appellant No. 2 in his declaration claimed an increase in the ceiling unit permitted to be held by him on the ground that appellant No. 1, as his illatom son in law who had attained the age of majority, had a share in the proper ties.
In the inquiry held Appellant No. 2 deposed that appel lant No. 1 was entitled to a half share in his properties as his illatom son in law.
Both the appellants claimed that appellant No. 1 was entitled to a share under an agreement.
The Land Reforms Tribunal rejected the claim of the appellants and held that the declarant, appellant No. 2 held surplus holding and directed him to surrender the excess land.
Appellant No. 1 was declared as not holding any land in excess of ceiling limit.
The appellants preferred an .appeal to the Land Reforms Appellate 514 515 Tribunal, which was dismissed.
The appellants filed a Civil Revision Petition in the High Court, which was also dismissed.
This appeal by special leave is one of the appeals directed against the common judgment of the High Court.
The appellants contended that appellant No. 1 as an illatom sonin law of appellant No. 2, was entitled to a half share in the property of appellant No. 2; that an illatom son in law who had attained the age of majority was in the same position as a major son and hence, the ceiling area permitted to appellant No. 2 was liable to be increased by one ceiling unit as appellant No. 1 did not hold any land independently nor in any manner specified under Section 4A of the Ceiling Act.
Dismissing the appeal, this Court, HELD: 1.
The institution of illatom adoption, that is, affiliating a son in law and giving him a share, is purely a creature of custom and judicial recognition has been given to it.
It prevails among the Reddi and Kamma castes in territories which earlier formed part of the then Madras Presidency.
[518 G, 517 F] 2.
An illatom son in law becomes entitled to a share in the property of his father in law as his heir, that is, on his death.
[521 C] 3.
Although an illatom son in law has some rights simi lar to those of a natural son born after the adoption of the illatom son in law, his rights are not identical to those of conferred by law on a son or an adopted son.
The illatom son in law does not succeed to the properties of his father in law by survivorship, but only on account of custom or an agreement giving him a share in the property of his father in law.
His position is not identical to that of an adopted son because he does not lose his rights in his ' natural family on being taken as an illatom son in law and continues to be entitled to a share in the property of his natural father.
It is not possible to equate an illatom son in law who has attained majority with a major son for the purposes of Section 4A of the Ceiling Act.
[520 F G, 521 E] 516 4.
The Statement of Objects and Reasons of the Amending Act whereby Section 4A was inserted into the Ceiling Act indicate that an illatom son in law, who does not lose his fights in his own family, cannot be regarded as a major son of his father in law for the purposes of the Ceiling Act.
If he was so regarded, there would be a double benefit, because of his presence as the ceiling area of his father in law would be increased as well as the ceiling area of his natu ral father.
That Certainly could not have been the intention behind the amendment.
Since there is no custom of having an illatom among Muslims and Christians such a construction would lead to disparity between the position of Muslims and Christians on the one hand and Hindus on the other.
That would be contrary to the very purpose for which the amend ment was made.
[522A C] Nallun Kristnamma and another vs Kamepalli Venkatasub bayya and others, (1918 19) L.R. 46 I.A. 168; Hanumantamma vs Rami Reddi, (1882) L.R.4 I.A. Madras Series 272; Nara sayya and others vs Ramachandrayya and others, AIR [1956] 43 A.P. 209; Penumatsa Koti Ramachandra Raju vs State of A.P. (1980) 1 (H.C.) Andhra Pradesh Law Journal 307, referred to.
Peech Ramaiah vs Government of Andhra Pradesh, (1976) 2 (H.C.) Andhra Pradesh Law Journal 278, distinguished.
Mayne: Hindu Law and Usages, 13th Edition, Chapter VII, Paragraph 242, N.R. Raghavachariar; Hindu Law 8th Edition, Paragraph 176; Mulla: Hindu Law, 16th Edition, Para , referred to.


judgement:
Appeal No.4375 OF 1991.
From the Judgment and Order dated 3.9.1990 of the Karna taka Administrative Tribunal, Bangalore in Application No. 2564 of 1989.
M.K. Ramamurthy, section Ravindra, K.V. Mohan and S.R. Bhat for the Appellant.
Raju Ramachandran, M. Veerappa and Kh.
Nobin Singh (N.P.) for the Respondents.
The Judgment of the Court was delivered AHMADI, J.
Special leave granted.
The controversy which we are required to resolve in this appeal by special leave is regarding the appellant 's senior ity vis a vis respondents Nos.3 to 7.
The factual background which has given rise to this controversy, briefly stated, is as under: In the year 1966 posts of Junior Engineer (Mechanical) were created in the Department of Mines and Geology (Ground Water Surveys and Drilling Unit) of the State of Karnataka.
The appellant who was then working as a Rigman in the Drill ing Unit of the Department was appointed Junior Engineer (Mechanical) in the scale of Rs. 200 375 on one of the said posts by an order dated 14th August, 1967 issued by the Director of the department.
Subsequently, he was regularly recruited through the State Public Service Commission in the said post w.e.f. 4th May, 1970.
However, even though the Director had requested the State Government to frame Re cruitment Rules for the newly created post immediately after its creation, the Recruitment Rules were not finalised till the issuance of a Notification dated 26th June, 1973.
Before the appellant was regularly recruited through the State Public Service Commission in the year 1970 the Director had apprised the Government of the action which he proposed to 602 take to fill up the post.
The appointment order was issued after the Public Service Commission had advertised the post and had selected persons for appointment to the said posts.
The appellant was initially appointed on probation for one year and on his satisfactorily completing the probation period he was continued in service and was later confirmed in the said post by an order dated 13th June, 1974 w.e.f. 29th September, 1972.
Respondents Nos. 3 to 7 entered service as Drillers in 1964 65.
The appellant and the respondents Nos.
3 to 7 were promoted as Assistant Drilling Engineers by the Director 's order dated 16th December, 1974.
The Office Order No.676/74 75 shows that the appellant and one another were working as Junior Engineers at the relevant time whereas respondents Nos.
3 to 7 were working as Drillers before their promotions as Assistant Drilling Engineers.
The State Government did not approve of the Director 's action in promoting the appellant since he was a local candidate and directed that he be reverted.
However, no such reversion took place.
The State Government also did not take any further action.
The appellant was shown senior to respond ents Nos. 3 to 7 in the said cadre of Assistant Drilling Engineers.
The appellant was subsequently promoted by the State Government to the next higher post of Drilling Engi neer in 1980 and further as Chief Drilling Engineer in 1984 which post he was holding at the date when his seniority came to be disturbed.
The appellant was throughout shown senior to respondents Nos.
3 to 7 till the revised provi sional seniority list in regard to the cadre of Assistant Drilling Engineers was published on 31st December, 1987.
Since objections were invited the appellant objected to his being shown junior to respondents Nos.3 to 7 but to no avail.
Even in the final seniority list dated 4th May, 1989 he was shown junior to respondents Nos. 3 to 7.
Respondents Nos.3 to 7 were shown in both the provisional and final seniority list at Serial Nos.1 to 5 whereas the appellant was shown at Serial No.6.
Thus, for the first time, since his regular appointment in the year 1970, he was shown junior to respondents Nos. 3 to 7 under the provisional seniority list issued in 1987 and the final seniority sen iority list issued in 1989.
The appellant, therefore, chal lenged the provisional seniority list as well as the final seniority list by an Application No. 2564 of 1989 preferred to the Karnataka Administrative Tribunal.
The Tribunal by its order dated 3rd September, 1990 rejected his application holding that his initial entry into service as a Junior Engineer was itself irregular and since he did not have the requisite experience of three years as a regular incumbent he was not qualified to be promoted to the next higher post of Assistant Drilling Engineer because his regular employ ment could only be related from the date of framing of the Recruitment Rules for the adre which came to be notified on 23rd August, 1973.
In this view of 603 the matter, the Tribunal held that the service of the appel lant from 4th May, 1970 to 23rd August, 1973 could not be taken into consideration for the purpose of determining his inter se seniority vis a vis respondents Nos. 3 to 7.
The appellant feeling aggrieved by the dismissal of his applica tion, has approached this Court under Article 136 of the Constitution.
The appellant contends that the order of the Tribunal suffers from a number of fallacies, namely, firstly, the Tribunal has failed to realise that the appellant was re cruited as a regular employee on selection by the State Public Service Commission pursuant to an advertisement issued in this behalf and, therefore, the appellant 's em ployment was regular in nature and not that of a mere local candidate; secondly, the post to which he was appointed was a regularly created post and was a higher than that of respondents Nos. 3 to 7 even during the period there existed no recruitment rules and in any case after his confirmation w.e.f.
29th September, 1972 it was not open to the Tribunal to hold that his appointment was irregular and thirdly, the Tribunal had erred in overlooking the guideline issued by the state Government on 5th July, 1976 which specifically provided that 'all appointments made by the Government or under specific authority of Government either by direct recruitment or by promotion or on or after 1st November, 1956 but prior to the commencement of the Rules regarding recruitment to such cadres may be treated as regular '.
The appellant contends that in pursuance of this guideline issued by the State Government even if it is assumed that his initial appointment was irregular it had to be treated as regular throughout.
The appellant, therefore, contends that the Tribunal 's order suffers from certain patent in firmities and deserves to be set aside.
It appears that before the Tribunal respondents Nos.1, 2, 4, 6 and 7 did not file any counter challenging the appellant 's claim to sen iority but respondents Nos. 3 and 5 contested the appel lant 's claim while the State Government avoided entering into the arena by filing a counter but instead presented the relevant files to the Tribunal.
So far as respondents Nos. 3 and 5 are concerned, they supported the action taken by the state Government in preparing both the impugued provisional as well as the final seniority lists.
They contended that since they were regular employees and had entered service before the appellant and were promoted to the post of As sistant Drilling Engineers along with the appellant they were clearly senior to 'the appellant and the State Govern ment was, therefore, justified in showing them at Serial Nos.1 to 5 and the appellant at Serial No. 6 in the seniori ty list.
They, therefore, contend that this 604 appeal is without substance and needs to be dismissed.
We have heard counsel for the rival contestants.
Counsel of the State Government submitted that they had prepared the seniority list for reasons already stated but they would not like to take sides and would abide by the decision of this court.
In order to appreciate the controversy, it is necessary to refer to the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957.
According to Rule 5, the Civil Services of the State of Karnataka are classified into Class I, Class II, Class II and Class IV posts.
Class I and Class II are gazetted Posts whereas Class III and Class IV consist of non gazetted Posts.
So far as Class III posts are concerned the initial appointments have to be made by the authorities mentioned in Column 2 of Schedule II appended to the Rules.
In regard to the posts of Junior Engineers the lind Schedule makes the Director the Appointing Authority.
There can, therefore, be no doubt that the initial appoint ment of the appellant was by an authority competent to appoint.
It is indeed true that at the time when the appel lant was selected by the State Public Service Commission and appointed as Junior Engineer w.e.f.
4th May, 1970 there were no specific Recruitment Rules in existence for the post in question.
As stated earlier, the posts were created for the first time in 1966 and since then the Director had been in correspondence with the State Government for framing of the Recruitment Rules for the said posts.
Since the Recruitment rules were not framed for one reason or the other, in 1969 the Director wrote a letter to the State Public Service Commission to advertise the vacancies and select candidates for appointment.
Simultaneously, he wrote a letter informing the State Government of the action taken by him in request ing the State Public Service Commission to advertise the posts and select candidates for appointment.
Pursuant to the requisition sent by him the Commission selected candidates and forwarded the list to the Director who was the Appoint ing Authority under the Karnataka Civil Service (Classifica tion, Control and Appeal) Rules, 1957.
The Director who was competent to make the appointment by virtue of Rule 7 issued a letter of appointment dated 24th April, 1970 whereapon the appellant took charge w.e.f. 4th May, 1970.
It, therefore, becomes apparent that the posts were regularly created sometime in 1966 and the appellant was duly selected by the State Public Service Commission and appointed to the post in question in 1970.
The appellant being an engineering gradu ate was qualified for appointment to post in question.
The state Government 's approach while sliding down the appellant in seniority vis a vis the respondents Nos.
3 to 7 may be briefly noticed.
605 After the recruitment rules for Junior Engineers (Mechani cal) were framed and brought into effect w.e.f.
23rd August, 1973, it was felt that the two posts of Junior Engineers were filled by direct recruitment contrary to the said rules which provided a ratio of 50% by promotion from the cadre of Drillers and 50% by direct recruitment.
Since both the posts were filled by direct recruitment, it was felt that this ratio was violated.
The date of the appellant 's seniority was, therefore, reckoned from 23rd August, 1973 and since the appellant had not acquired experience of three years he was held ineligible for promotion to the next higher post of Assistant Drilling Engineer.
His entry into the promo tional post was, therefore, pushed down to 23rd August, 1976 and accordingly respondents Nos. 3 to 7 were placed above him in the seniority list.
The Tribunal concurred with this approach.
The Tribunal held that the initial appointment of the appellant as Junior Engineer (Mechanical) by the Direc tor was not supported by any rules and the Director not being the appointing authority for the said posts in 1970, the appellant 's appointment was not regular.
Secondly, the Tribunal concurred with the Government that the appellant 's entry into the cadre of Assistant Drilling Engineer must be assumed to be w.e.f.
23rd August, 1976 and hence respondents nos.
3 to 7 were clearly senior to him.
In short the Tribu nal approved of the Government 's approach in With respect we find it difficult to approve of the said approach.
As pointed out earlier, the posts were sanc tioned in 1966.
Initially the appellant was appointed as a local candidate but later the Director requested the State Public Service Commission to advertise the said two posts and select candidates for appointment to the said posts.
Pursuant to the advertisement so issued the appellant ap plied, was found qualified and was selected for appointment.
The Director, therefore, made the appointment as he was the appointing authority for Class III posts under the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957, vide Rule 7(2) read with Column 2 of Schedule II thereto.
That rule clearly shows that the Director is the appointing authority for Junior Engineers, a Class III post.
The Tribunal was, therefore, not right in holding that the appointment made was irregular as it was not by the appoint ing authority.
The Tribunal was wrong in holding that the Director was not the appointing authority for Junior Engi neers.
Strictly speaking, that was not the approach of the Government.
The Government held the appointment irregular as in its opinion it had exceeded the quota of 50% for direct recruits.
This view is based on the premise that the serv ices must be regularised applying the 1973 Rules retrospec tively.
Here there are two fallacies, firstly the appellant being senior of the two direct recruits appointed as Junior Engineers, he would fill the slot for the one post which 606 went to direct recruits on the 50% quota and secondly it was not permissible to question the appointment made in 1970 in 1987 when in the intervening period none had challenged the appellant 's appointment.
The objection which the Government had raised on his promotion to the next higher post was that he was a local candidate and not a regular appointee, an objection which was not pursued presumably on realising that he was selected by the State Public Service Commission before appointment.
Not only that the Government acquiesced in his appointment by promoting him to the next higher posts in 1980 and 1984.
Since the posts existed on the establish ment and selection for appointment was made by the State Public Service Commission and the Director was competent to make the appointment, it cannot be said that the absence of recruitment rules makes the appointment illegal or irregular when it is found that the appellant, a degree holder, was eligible for appointment to the post.
This is so also be cause irregular appointments were regularised by the Govern ment Memorandum dated 5th July, 1976, the relevant part whereof reads as under: "3(a).
All appointments made by Government or under specific authority of Government either by direct recruitment or by promotion on or after 1st November, 1956, but prior to the commencement of rules regulating recruitment to such cadres may be treated as regular".
This was clarified by the subsequent letter dated 17th September, 1977 as under: "Para 3(a) states that all the appointments made by Govern ment or under specific authority of Government either by direct recruitment or by promotion on or after 1.11.1956 and prior to the commencement of the Cadre and Recruitment Rules of the concerned cadre may be treated as regular, that is to say, the action taken by Government on other Appointing authorities in resorting either of the modes of recruitment is regular.
This para does not say that the appointment of local candidates as a stop gap arrangement is regular".
The Tribunal refused to place reliance on the above on the erroneous ground that the Director was not the appoint ing authority and the appellant was a local candidate.
Once both these are found to be erroneous there is no reason to brush aside the said guidelines.
It may also be appreciated that the services of local candidates in Class III cadre were regularised by Office Order No.177/71 72 dated 31s1 August, 1971 and had the 607 appellant not have been appointed as a regular candidate w.e.f. 4th May, 1970 his service would also have been regu larised as a local candidate.
From what we have discussed above it is obvious that the entire approach of the State Government and the Tribunal was erroneous.
Besides, the appellant was shown senior to re spondents Nos.
3 to 7 right from 1970 to 1987 when his seniority came to be disturbed.
During the said period of 17 years all attempts to disturb his seniority had 'failed.
No one successfully challenged it in Court.
The appellant 's seniority which had stabilised over a period of time and on the basis whereof he was granted promotions by the Govern ment could not be disturbed by doubting the.
regularity of the initial appointment after so many years.
It was not as if he had gained experience as an ad hoc employee in a stop gap arrangement that his experience as a Junior Engi neer could be overlooked.
We are, therefore, of the opinion that his seniority in the promotion post could not be upset on the ground that he did not possess the requisite experi ence till 23rd August, 1976.
In Direct Recruit Class H Engineering Officer 's Associa tion vs State of Maharashtra & Ors, ; , this Court held in paragraph 13 as under: "The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16.
If an appointment is made by way of stop gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment.
To equate the two would be to treat two unequals as equal which would violate the equality clause.
But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority.
Same will be the position if the initial appoint ment itself is made in accordance with the rules applicable to substantive appointments as in the present case.
To hold otherwise will be discriminatory and arbitrary".
In the present case also the appellant 's appointment was made in 1970 after all eligible candidates were interviewed by the State Public Service Commission.
As pointed out earlier, the posts were borne on the establishment and the Director was the appointing authority who made the appoint ment pursuant to the selection made by the State Public Service Commission.
The appellant worked on that post unit erruptedly till he was 608 promoted to the next higher post along with respondents Nos. 3 to 7.
In these circumstances, his experience in the post of Junior Engineer (Mechanical) from 1970 till his promotion to the next higher post could not be ignored.
We are, there fore, of the opinion that the ratio laid down by the Consti tution Bench in the aforequoted paragraph applies with all force in the present case also.
In the result, we allow this appeal and set aside the order of the Tribunal.
We hold that the appellant 's seniori ty over respondents Nos.
3 to 7 as was obtaining before 31st December, 1987 when the provisional seniority list was published shall be restored and he shall be shown to be senior to respondents Nos.
3 to 7 by correcting the impugned final seniority list.
The appeal is allowed accordingly with no order as to costs.
T.N.A. Appeal allowed.

summary/full:
The appellant, a Rigman in the Department of Mines and Geology, State of Karnataka, was initially appointed as a local candidate on the newly created post of Junior Engineer (Mechanical).
Later he was regularly selected by the State Public Service Commission and appointed on the said post on 4.5.1970 by the Director and was confirmed on the said post on 29.9.1972.
On 16.12.1974, he, alongwith respondents No. 3 to 7, who were drillers in the Department was promoted as Assistant Drilling Engineer and was shown senior to them.
However, in the revised provisional seniority list as well as in the final seniority list, he was shown junior to respondents No. 3 to 7 in the cadre of Assistant Drilling Engineer.
The appellant filed an application before the State Administrative Tribunal challenging the seniority lists which was rejected holding (i) the appellant 's appointment as Junior Engineer was irregular because it was not support ed by Recruitment Rules and the Director was not the ap pointing authority; (ii) since the appellant had not ac quired three years experience as regular incumbent he was not qualified to be promoted as Assistant Drilling Engineer;, his regular employment could only be related from the date of framing of the Recruitment Rules.
Accordingly, the Tribunal held that appellant 's service from 4th May, 1970 to 23rd August, 1973 could not be taken into considera tion for reckoning his seniority and hence he was junior to Respondents No3 to 7.
599 600 The appellant filed an appeal in this Court challeng ing the Tribunal 's order contending that (i) in view of his recruitment as a regular employe on selection by the Service Commission his employment was regular in nature; (ii) the post to which he was appointed was regularly created post and was higher than that of respondents even during the period there existed recruitment rules; in any case after his confirmation it was not open to the Tribunal to hold his appointment irregular;, and (iii) in view of the guidelines issued by the State Government, under which irregular ap pointments were regularised, even if it is assumed his initial appointment was irregular it has to be treated regular throughout.
Allowing the appeal and setting aside the order of the Tribunal this Court: HELD :1.
Rule 7(2) of the Karnataka Civil Services (Classification, Control & Appeal ) Rules, 1957 read with column 2 of Schedule 11 thereto clearly shows that the Director is the appointing authority for Junior Engineers.
The appellant was found qualified and was duly selected by the Public Service Commission and appointed as Junior Engi neer in 1970.
He worked on the post uninterruptedly till he was promoted to the next higher post of Assistant Drilling Engineer alongwith the respondents No. 3 to 7.
The Tribunal was, therefore, not right in holding that the appointment made was irregular and that the Director was not the ap pointing authority for Junior Engineers.
Accordingly his experience in the post of Junior Engineer from 1970 till his promotion to the next higher post could not be ignored.
[605 F, 604 G, 607 H, 608 A] 2.
Since the posts existed on the establishment and selection for appointment was made by the State Public Service Commission and the Director was competent to make the appointment, it cannot be said that the absence of recruitment rules made the appointment illegal or irregular.
Moreover, the irregular appointments were regularised by the Government Memorandum dated 5th July, 1976.
[606 B C] 3.
The appellant 's seniority which had stabilised over a period of time and on the basis whereof he was granted promotions by the Government could not be disturbed by doubting the regularity of the initial appointment after so many years.
It was not as if he had gained experience as an ad hoc employee in a stop gap arrangement that his experi ence as a Junior Engineer could be overlooked.
Therefore, his 601 seniority in the promotion post could not be upset on the ground that he did not possess the requisite experience.
[607 B C] Direct Recruit Class H Engineering Officers ' Associa tion vs State of Maharashtra & Ors.
; , fol lowed.
The appellant 's seniority over respondents No. 3 to 7 shall be restored and he shall be shown to be senior to them.
[608 B]


judgement:
iminal Appeal No.404 of 1979.
From the Judgment and order dated 19.4.79 of the Punjab High Court in Criminal Appeal No.843 of 1976.
A.N. Mulla, N.D. Garg and T.L. Garg for the Appellants.
Ms. Amita Kohli and R.S. Suri for the Respondents.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal by special leave is directed against the judgment and order of the Punjab and Haryana High Court at Chandigarh dated April 19, 1979 passed in Criminal Appeal No. 843 of 1976.
The appellants herein are five in number.
They along with four others were sent up for trial before the Court of Session, Faridkot on various charges as detailed in the judgment under appeal.
Those four co accused of the appel lants were acquitted by the learned Sessions Judge, and the matter seems to have rested there because apparently the State of Punjab did not rake up the issue against those four accused.
On the basis thereof, the principle plea of the appellants through their counsel herein is that when four accused have been acquitted, the prosecution story itself has lost credence, entitling the appellants to acquittal.
It is this plea which has engaged our attention.
579 The parties belong to village Talwandi Bhagerian, Distt.
Faridkot, Punjab.
Thereat was a vacant plot belonging to Karnek Singh, Jagatjit Singh and Wasakha Singh sons of Partap Singh, who were living abroadAdjoining thereto was the outer house of Balwant Singh P.W.15.
According to the prosecution, Balwant Smgh P.W.15 had put up a boundary wall around it as also a structure thereon storing wheat chaff therein, besides putting cotton sticks and dung manure in the unbuilt space.
Mohinder Singh son of the said Balwant Singh P.W.15 moved the Civil Court through a suit on Decem ber 10, 1975 seeking a decree for permanent injunction restraining his co villager Jiwan Singh, his sons Naib Singh appellaht herein and Mohinder Singh an acquitted co accused, as also the minor sons of the aforesaid two accused from interfering in his possession over the suit land.
The Court on December 10, 1975 granted interim injunction restraining the impleaded defendants from interfering with the posses sion of the plaintiff over the disputed plot.
Later on the request of the defendants, the Civil Court on 29 1 1976 identified the suit property being in Khasra No.345, 346 and 356 and out of the same vide Order exhibit
D 16, vacated the temporary injunction in respect of Khasra No. 345 and 346 confirming the same in respect of Khasra No.356.
Besides there had been security proceedings between Mohinder Singh aforesaid and his brother Ginder Singh (one of the victims) on the one hand and Nirmal Singh and Darshan Singh acquitted co accused and some others, on the other.
However, both parties were ultimately discharged by the Court.
The occurrence took place in that integral on 16 12 1975 when the temporary injunction was in force.
The complainant party except for P.Ws. 18 and 19 are members of one family.
This relationship is disclosed in the judgment of the learned Sessions Judge as also by the High Court.
We would not burden this judgment with details thereof.
The fact remains that on the night intervening 15th and 16th Decem ber, 1975, Jugraj Singh P.W.14, Balwant Singh P.W.15, Ginder Singh, since deceased and Assa Singh had slept in a room in their outer house, and where they were keeping their cattle also.
At about 8.00 a.m. on December 16, 1975, all the inmates of the outer house, and others having joined them having come from their residential house, at that ' time were busy doing their assigned chores.
At that juncture, the five appellants namely, Hoshiar Singh, armed with SBBL gun, Jalaur Singh, armed with a 12 bore DBBL gun, Ex.M.O/5, Sardara Singh, armed with a gandasa, Ex.M.O./2, Ram Singh alias Ram Charan Singh, armed with SBBL gun, exhibit
M.O./6 and Naib Singh son of Jiwan Singh, armed with a DBBL gun, exhibit
M.O./7 entered the house accompanied by five other men.
They were the four acquitted co accused namely, Thamman Singh, unarmed, Darshan Singh, armed with a gandasa, 580 Mohinder Singh, son of Jiwan Singh (brother of Naib Singh, appellant) armed with a spear, Nirmal Singh, armed with a rifle and Major Singh, the fifth man, armed with a DBBL gun, who was lately injured during the occurrence.
Thamman Singh acquitted co accused raised an exhortation challenging Ginder Singh that he would not be spared.
Tham man Singh, then caught hold of the long hair of Ginder Singh and thereupon Nirmal Singh acquitted co accused fired a shot with his rifle hitting Ginder Singh on his left flank.
On Ginder Singh falling down by the side of the manger, Sardara Singh appellant gave two successive gandasa blows on the head of Ginder Singh deceased while he was in the process of failing down.
This was the first casualty.
It was followed by Naib Singh appellant firing at Balwant Singh P.W.15 hitting him in the abdomen reflective of at tempt to murder.
Dhanna Singh alias Shinghara Singh a member of the complainant 's family also happened to reach the scene of the occurrence having come from the residential house and while in the door way was fired at by Jalaur Singh appellant with his gun followed by a gun shot by Ram Singh alias Ram Charan Singh appellant hitting Dhanna Singh.
This was the second casualty.
Sukhminder Singh, P.W.16 also reached there and was fired at by Hoshiar Singh appellant hitting him on the left arm and blank, where upon he fell down.
This was the second case reflecting attempt to murder.
The female folk Bhagwan Kaur P.W.17 and Raj Kaur present at the place of occurrence while raising alarm laid themselves over Ginder Singh and Sukhvinder Singh respectively.
Darshan Singh acquitted co accused gave blows from the reverse side of his gandasa to Bhagwan Kaur P.W.17, and Mohinder Singh co accused to Raj Kaur with the blunt side of his spear.
Apart from the members of the family involved Sukhdev Singh P.W.18, Pritam Singh P.W,19, neighbours, had occasion to see the occurrence while standing in their respective houses.
On the side of the accused party, so claimed the prosecution, a Barchha(spear) blow of Mohinder Singh meant to hit Raj Kaur accidently hit the abdomen of Naib Singh appellant.
Like wise, a shot fired by Jalaur Singh appellant accidently caused injury to Major Singh the co culprit, but that injury later proved fatal.
The accused persons took away not only their weapons but a licensed rifle of Ginder Singh and revolver of Mohinder Singh son of Balwant Singh P.W.15 from inside the room (baithak) while going away.
This is the whole prosecution case with regard to the motive and the actual occurrence.
To complete the picture the deceased persons were taken to the Civil Hospital, Moga wherefrom Dr.
A.C. Gupta P.W.I sent intimation to Police Station, Moga Sadar.
Avtar Singh, ASI.
P.W.20 reached the spot and recorded the statement of Jugraj Singh P.W.14 at 11.00 a.m., within three 581 hours of the occurrence, formal F.I.R. of which was recorded at the Police Station at 11.15 a.m.
In that statement vivid details of the occurrence are given.
The injured persons were examined and given medical aid.
The bodies of the deceased persons were subjected to post mortem.
The accused were arrested and weapons were recovered, either from them, or at their instance, on statements made under Section 27 of the Evidence Act.
The accused at the trial pleaded denial to the occurrence but Naib Singh appellant gave written state ment, exhibit
D 6 as his counter version.
The trial resulted in the acquittal of four persons but so far as the appellants were concerned, all of them were held guilty and convicted under Sections 148, 449 IPC awarding them various terms of sentences.
Substantively, Sardara Singh appellant was con victed under Section 302 IPC for having caused the death of Ginder Singh by giving him two fatal gandasa blows.
The remaining appellants were convicted constructively under Sections 302/149 IPC.
All of them were given life sentence.
Jalaur Singh and Ram Singh appellants were substantively convicted under Section 302/149 IPC for causing the death of Dhanna Singh and the remaining appellants under Sections 302/149 IPC, and all were awarded life sentence.
Naib Singh appellant was substantively convicted under Section 307 IPC for murderously attacking Balwant Singh P.W.15, as also Hoshiar Singh appellant under Section 307 IPC for murderous ly attacking Sukhminder Singh P.W.16.
The remaining four appellants in each case were convicted constructively under both counts under Sections 307/149 IPC and awarded various terms of imprisonment.
All the sentences imposed were or dered to run concurrently.
Appropriate orders of disposal with respect to the weapons recovered were passed by the learned Sessions Judge.
As indicated above, the main plea of the appellants is that four accused having been acquitted, despite the eye witnesses deposing to their participation, no credence should be given to the prosecution witnesses in order to maintain the convictions.
The maxim falsus in uno falsus in omnibus has been pressed into service.
It appears that the argument as such was not raised before the High Court.
Rather it appears that the High Court 's attention was not invited to the reasoning of the learned Sessions Judge in acquitting the four co accused.
It would be apt therefore to scrutinize that reasoning and see whether the prosecution case has lost credibility on such reasoning.
Thamman Singh acquitted accused was empty handed.
The role attributed to him is that he gave an exhortation chal lenging Ginder Singh deceased to be ready and that he would not be spared.
He then caught hold of the long hair of Ginder Singh.
Thereafter Ginder Singh was as 582 saulted.
At the end of the occurrence, he is blamed of having taken away the licensed rifle of Ginder Singh.
The learned Sessions Judge tended to go in generalities in terming that the evidence of exhortation, in the very nature of things, is a weak piece of evidence and there was quite often a tendency to implicate some person besides the actual assailant.
For this he took the cue from a reported decision of this Court in Jainul Haque vs State of Bihar, AIR 1974 SC 45 as well as a decision of the Punjab and Haryana High Court to that effect in support.
Then without coming to the specifics the learned Sessions Judge abruptly came to the conclusion that when Thamman Singh acquitted co accused had come to the spot empty handed, the exhortation appears to have been introduced in the prosecution case and that the witnesses apparently were out to rope him in.
The two roles attributed to him, namely, of catching the long hair of Ginder Singh and to have carried away the rifle of Ginder Singh went in the same sweep to hold that this was part of the over doing.
The fact that the rifle was being carried by Thamman Singh at the time of his arrest was considered by the learned Sessions Judge to be abnormal as otherwise in the normal course of events, it was expected to have been kept concealed somewhere.
His finding thus in his own words is "the fact remains that I have not been satisfied about the criminality of Thamman Singh." The only comment worth making is that exhortation is necessarily not a padding or over doing and has to be viewed in the correct perspective, in the facts and circumstances of each case.
In the instant case, besides the exhortation, there were other factors available enumerated herein, which could lead the learned Sessions Judge to take the view that he has, and that was a possible view which any cautious Judge could have taken.
But that per se does not mean that the witnesses which had deposed to the participation of the accused at the time of occurrence have to be dubbed as liars.
With regard to Darshan Singh acquitted accused, the role assigned to him is that he gave gandasa blows to Bhagwan Kaur P.W.17 from the reverse side and that he took away the licensed revolver of Mohinder Singh from the room (baithak) of the outer house.
The learned Sessions Judge opined that though the eye witnesses account was that Bhagwan Kaur had received injuries from the reverse side of the gandasa from Darshan Singh, still in the First Information Report given by Jugraj Singh P.W.14, the use of the weapon was mentioned but not of the manner in which it was used.
The learned Sessions Judge took the view that it was normally expected of Darshan Singh to have given at least one gandasa blow to someone from the sharp side as well.
Besides his taking away the revolver from Mohinder Singh after the occurrence did not inspire confidence, like the case of Thamman Singh.
Besides if these two weapons namely the rifle and the 583 revolver were available with the complainant party when the occurrence started it was expected of them to have used those, which had not appeared to have been used.
In that light the act of removing the revolver was viewed with suspicion, more so, when its recovery was made as a result of the disclosure statement after a span of eight days from the date of arrest of Darshan Singh.
The learned Sessions Judge then concluded with these words, "The case against Darshan Singh, accused does not again stand beyond reasona ble doubt".
Now such a view of the learned Sessions Judge was a possible view taken on a cautious approach, without telling on the veracity of the prosecution witnesses.
So far as Mohinder Singh acquitted accused is concerned, he is said to have used a spear blunt wise on Raj Kaur.
Raj Kaur was not found to have any stab or punctured wound.
Further the spear was recovered after seven days of the arrest of Mohinder Singh and that recovery was viewed with suspicion due to the time lag.
The version in F.I.R. was pressed into service about the omission of the specific manner in which the weapon had been used.
The learned Ses sions Judge then held, "I would accordingly give the benefit of doubt to Mohinder Singh accused and acquit him." This finding could be given by the learned Sessions Judge without causing the least dent to the prosecution case.
Shifting the grain from the chaff does not mean loss of grain and gain of chaff.
Such a view of the learned Judge cannot caste a reflection on the case as a whole.
Lastly Nirmal Singh acquitted accused was described in the F.I.R. to be armed with a "pakki banduq" which descrip tion the learned Sessions Judge translates as "rifle".
Since Nirmal Singh is accused to have begun the occurrence by firing at Ginder Singh and Ginder Singh had pellets seen in his dead body, such description of the weapon sowed the seeds of suspicion in the mind of the learned Sessions Judge.
It was at best either a case of a mistaken perception or flash impression that Nirmal Singh, undisputably being a licensee of a rifle, had that rifle.
Finding the description of the weapon being in discord with medical evidence, the learned Sessions Judge found the prosecution case not proved against Nirmal Singh acquitted accused.
Here even though the learned Judge did not extend the benefit of doubt to Nirmal Singh in so many words, his approach is an exercise in that direction.
The acquittal of Nirmal Singh too would cause no affectation to the prosecution case as a whole.
For the views afore expressed and the totality of the circumstances, we do not think that in the instant case the maxim falsus in uno falsus in omnibus is attracted.
The large number of participants in the occurrence would, at some place or the other, leave a place for entertaining some 584 doubt.
But here the prosecution case as a whole remains strong supported as it is by the independent evidence of P.Ws 18 and 19, the neighbours, and the occurrence having taken place in the house of the complainant party.
It was next contended that the prosecution has cocealed its own guilty part and has not explained the way the in juries were caused to Major Singh Deceased and to Naib Singh appellant.
The argument ' is barely to be noticed and reject ed.
Significantly Jugraj Singh in the First information Report specifically mentioned that the injuries to Major Singh deceased and Naib Singh appellant were as a result of the doings of accused persons themselves and in the circum stances narrated above all the eye witnesses have cogently and consistently deposed to that effect.
The findings of both the courts below are that the occurrence took place in the courtyard of the outer house of the complainant party.
Blood stained earth was collected from four places therein during investigation.
Time of the occurrence being 8.00 a.m. and the inmates of the house being busy with their daily chores leaves one to pose the question as to why should the complainant party anticipate an assault and be ready with fire arms to put them to use.
It does not stand to reason that the complainant party having licensed weapons, if anticipating an assault, to hhave not kept the same ready for use.
The fact that these licensed weapons of the com plainant party are not shown to have been used by itself goes a long way to establish that the injuries received by Major Singh deceased and Naib Singh appellant were acciden tal and suffered in the manner as suggested by the prosecu tion.
On this score also we remain unconvinced of the argu ment.
Having examined the prosecution case as finally estab lished at the level of the High Court and having seen the reasoning of the Court of Session in acquitting the four accused, and also for the reasons set out above, we go to hold the appeal to be devoid of merit and accordingly dis miss the same.
The appellants are on bail.
They are required to surrender to their bail bonds forthwith .
R.P. Appeal dis missed.

summary/full:
A litigation regarding possession of a certain plot of land was pending in the civil court between the complainants and the accused persons.
On 16.12.1975 at about 8 a.m. the accused, armed with fire arms and sharp edged weapons, reached the outer house of the complainants and attacked them.
According to the prosecution case, accused No. 4 who was unarmed, raised an exhortation challenging deceased 1l, and caught hold of his long hair while accused 1 fired a rifle shot at him and accused No.7 gave two successive gandasa blows on his head.
Accused No.9 fired a shot at PW 15.
Accused nos.6 and 8 fired one shot each at deceased 2 who also succumbed to his injuries.
PW 16 was fired at by accused No. 2 hitting him at the left arm and flank.
Accused No. 3 and 5 gave blows from the reverse side of gandasa and spear to PW. 17 and another woman respectively.
On the side of the accused, a spear blow of accused No. 5 accidently his accused No. 9 and a shot fired by accused No. 6 accidently hit another man on the side of the accused who later on died.
Besides the members of the complainant 's family, the neighbours, PWs, 18 & 19 also witnessed the occurrence.
The accused were alleged to have run away taking a rifle and revolver belonging to the complainants.
The police investi gation culminated in the trial of the 9 accused.
576 The Trial Court acquitted four accused (nos.1 and 3 to 5 ) but convicted the appellants (accused nos.
2 and 6 to 9) of offences punishable under sections 148, 149, 302, 302/149, 307 and 307/149 and sentenced them to various terms of imprisonment.
The appeal filed by the appellant having been dis missed by the High Court, an appeal by special leave to this Court was filed.
It was contended on behalf of the appellants that the four accused having been acquitted despite the eye witnesses deposing to their participation in the alleged incident, no credence should be given to the prosecution witnesses in order to maintain the convic tion; and that the prosecution failed to explain the way the injuries were caused to the persons on the accused side.
Dismissing the appeal, this Court, HELD :1.
The large number of participants in the occurrence would, at some place or the other leave a place for entertaining some doubt.
But in the instant case the prosecution case as a whole remained strong supparted as it was by the independent evidence of P.Ws.18 and 19, the neighhours.
The occurrence took place in the Courtyard of the outer house of the complainant party.
Blood stained earth was collected from four places therein during investi gation.
In the totality of circumstances it cannot be said that the maximfalsus in uno falsus in omnibus was attracted.
[583 H; 584A,C] 2.
Exhortation is necessarily not a padding or over doing and has to be viewed in the correct perspective, in the facts and circumstances of each case.
[582E] In the instant case, the roles assigned to accused No. 4 who was acquitted, that he gave [an] exhortation, caught hold of the long hair of deceased 1 and carried away his rifle after the incident, were, according to the Sessions Judge, part of the overdoing.
The fact that the rifle was being carried by the accused at the time of his arrest was considered by him to be abnormal as otherwise in the normal course of events it was expected to have been kept con cealed.
The Sessions Judge held that he was not satisfied about the criminality of accused No. 4.
[582 C D] 577 Besides the exhortation, there were other factors avail able which could lead the Sessions Judge to take the view that he had, and that was a possible view which any cautious Judge could have taken.
But that per se does not mean that the witnesses who had deposed to the participation of the accused at the time of occurrence have to be dubbed as liars.
[582 E F] Jainul Haque vs State of Bihar, AIR 1974 SC 45, referred to.
3.1 With respect to acquitted accused No. 3, the SeS sions judge held that though PW 17 had received injuries from the reverse side of the gandasa from the accused still in the FIR the use of weapon was mentioned but not the manner in which it was used; and that it was normally ex pected of the accused to have given at least one gandasa blow to someone from the sharp side.
Besides his taking away the revolver from the victim after the occurrence did not inspire confidence.
In the circumstances, the act of remov ing the revolver was viewed with suspicion, more so, when its recovery was made as a result of the disclosure state ment after a span of eight days of the arrest of the ac cused.
The view of the Sessions Judge that the case against acquitted accused No. 3 did not stand beyond reasonable doubt was a possible view taken on a cautious approach, without telling on the veracity of the prosecution witness es.
[582 G H; 583 A B] 3.2 Acquitted accused No. 5 was said to have used a spear bluntwise but the concerned victim was not found to have any stab or punctured wound.
The recovery of the spear taking place after seven days of arrest of the accused was viewed with suspicion due to the time lag.
There was omis sion in the FIR of the specific manner in which the weapon had been used.
The finding of benefit of doubt to accused No.5 could be given by the Sessions Judge without causing least dent to the prosecution case.
Shifting the grain from the chaff does not mean loss of grain and gain of chaff.
Such a view of the learned Judge cannot cast a reflection on the case as a whole.
[583 C E] 3.3 As regards acquitted accused No.1, finding the description of the weapon being in discord with the medical evidence the Sessions Judge held the prosecution case not to have been proved against the accused.
Even though the Ses sions Judge did not extend the benefit of doubt to the accused in so many words, his approach was an exercise in that direction.
The acquittal of accused No.1 too would cause no affectation to the prosecution case as a whole.
[589 F G] 578 4.1 The first information report specifically mentioned that the injuries to the persons on the side of the accused were as a result of the doings of accused persons them selves; and all the eye witnesses cogently and consistently deposed to that effect.
[584 B C] 4.2 The time of the occurrence being 8.00 a.m. and the inmates of the 'house being busy with their daily chores, the complainant party would not anticipate an assault and be ready with fire arms to put them to use.
The fact that the licensed weapons of the complainant party were not shown to have been used by itself established that the injuries received by the persons on the side of the accused were accidental and suffered in the man ner as suggested by the prosecution.
[584 D E]