judgement:
Appeal No. 368 of 1966.
Appeal by special leave from the judgment and order dated February 3, 1964 of the Patna High Court in, Appeal from Appellate Order No. 99 of 1963.
Sarjoo Prasad and R. C. Prasad, for the appellants.
K. K. Sinha and section K. Bisaria, for the respondents.
The Judgment of the Court was delivered by Hegde, J.
This appeal against the judgment of the Patna High Court dated the 3rd February, 1964 in its Appellate Order No. 99 of 1963 was filed obtaining special leave from this Court.
It arises from a proceeding under section 47, Civil Procedure Code.
In execution of a mortgage decree, the decree holders sought to proceed against 910 Bakasht lands of the judgment debtors.
The judgment debtors objected to the same on the ground that the execution was barred under section 4(d) of the Bihar Land Reforms Act, 1950 (to be herein,after referred to as the Act).
But that objection was overruled by the executing court on two different grounds namely (1) that the objection in question is barred by the principles of res judicata and (2) the bar of section 4(d) pleaded is not tenable.
The decision of the execution court was affirmed appeal but reversed in second appeal by the High Court.
The two questions that arise for decision in this appeal are (1) whether the objection as regards the executability of the decree pleaded by the judgment debtors is barred by the principles of res judicata and (2) whether the mortgage decree has become unexecutable in view of the provisions of the Act.
We shall now briefly set out the material facts of the case.
The mortgages, the appellants in this appeal obtained a preliminary decree on June 26, 1947 on the basis of a mortgage.
The property mortgaged was an Estate within the meaning of the Act.
That property included both Bakasht lands as well as other lands.
The Act came into force after the passing of the aforementioned preliminary decree.
The decree holders filed petition for passing a final decree on September 19, 1955.
The Estate mortgaged vested in the State of Bihar on January 1, 1956 as a result of a notification issued under section 3 (1) of the Act.
A final decree was passed in the mortgage suit on October 1, 1956.
Thereafter the mortgagees applied under section 14 of the Act and got determined the compensation to which they were entitled under the Act.
It is said that they did not proceed, any further in that proceeding but on the other hand filed on June 18, 1958 an execution petition to execute the mortgage decree against the, Bakasht lands.
The judgment debtors resisted that execution by filing an application under section 47, Civil Procedure Code (Misc.
Case No. 94 of 1959) on the ground that the decree cannot be executed in view of the provisions of the Act.
That application was dismissed for the default of the judgment debtors on September 12, 1959.
A second application raising the same ground (Misc.
Case No. 110 of 1959) was filed by the judgment debtors is barred on the principles of res judicata and further on July 23, 1960 for default of the judgment debtors.
A third application raising the same ground of objection (Misc.
Case No. 91 of 1960) was filed by the judgment debtors on September 12, 1960.
That application was dismissed on January 4, '1962 after examining the contentions of the parties.
Therein the execution court came to the conclusion that the objection raised by the judgment debtors is barred on the principles of res judicata and further that the same has no merits.
This decision as mentioned earlier was affirmed by the appellate court but reversed by the High Court.
We shall first take up the contention that the objection taken 911 by the judgment debtors ' is barried by principles of res judicata.
Though at one stage, learned Counsel for the appellants decree holders attempted to bring the case within Explanation 5, section 11, Civil Procedure Code, he did not pursue that line of argument but tried to support his contention on the broader principles of res judicata.
The real question for decision in this case is whether the dismissal of Misc.
cases Nos. 94 and 110 of 1959 for default of the judgment debtors can be said to be a final decision of the court after hearing the parties.
Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the court.
A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action.
If it was otherwise there was no need for the legislature to enact rule 9, Order 9, Civil Procedure Code which in specific term say that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.
The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee, of the Privy Council in Maharaja Radha Parshad Singh vs Lal Sahab Rai and Ors.(1).
Therein the Judicial Committee observed thus : "None of the questions, either of fact or law, raised by the pleadings of the parties was heard or determined by the Judge of the Shahabad Court in 1881; and his decree dismissing the suit does not constitute res judicata within the meaning of the Civil Procedure Code.
It must fall within one or other of the sections of chapter VII of the Code; in the present case it is immaterial to consider which, the severest penalty, attached to such dismissal in any case being that the plaintiff cannot bring another suit for the same relief.
" From this decision it is clear that the Judicial Committee opined that before a plea can be held to be barred by res judicata that plea must have been heard and determined by the court.
Only a decision by a court could be res judicata, whether it be statutory under section 11, Civil Procedure Code or constructive as a matter of public policy on which the entire doctrine rests.
Before an earlier decision can be considered as res judicata the same must have been heard and finally decided see Pulvarthi Venkata Subba.
Rao vs Velluri Jagannadha Rao, and Ors.
The courts in India have generally taken the view that an execution petition which has been dismissed for the default of the (1) L.R. 17 I.A. 150.
(2) ; 912 decree holder though by the time that petition came to be dismissed, the judgment debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petition filed in accordance with law see Lakshmibai Anant Kondkar vs Ravji Bhikaji Kondkar(1).
Even the dismissal for default of objections raised under section 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the executionsee Bahir Das Pal and Anr.
vs Girish Chandra Pal (1) Bhagawati Prasad Sah vs Radha Kishun Sah and OrS. (3); Jethmal and Ors.
vs Mst.
Sakina (4) ; Bishwanath Kundu vs Sm.
Subala Dassi (5).
We do not think that the decision in Ramnarain vs Basudeo(6) on which the learned Counsel for the appellant placed great deal of reliance is correctly decided.
Hence we agree with the High Court that the plea of res judicata advanced by the appellant is unsustainable.
The next question is whether the execution is barred under the provisions, of the Act.
The contention of the judgment debtors is that it is 'so barred whereas according to the appellants as the Bakasht lands which form part of the mortgaged property had, not vested in the State, the execution can proceed against those lands.
Therefore we have to see whether the entire mortgaged property had vested in the State in pursuance of the notification under section 3 or only the mortgaged property minus the Bakasht lands.
There is no dispute that the property mortgaged was an Estate within the meaning of section 2(1) and the notification issued under section 3 covered the entirety of the Estate.
But what was urged on behalf of the appellants is that what had vested in the State was the non bakasht lands as well as the proprietory interest in the Bakasht lands and hence the Bakasht lands do not have the protection of section 4(d); Consequently it is not necessary for them to exclusively proceed under section 14.
The consequences of the vesting of an Estate is set out in section 4.
Section 4(a) provides that once an Estate vests in the State the various rights in respect of that Estate enumerated therein shall also vest in the State, absolutely free from all encumbrances.
Among the rights enumerated therein undoubtedly includes the right of possession.
In view of section 4(a) there is hardly any doubt that the proprietor loses all his rights in the estate in question.
After setting out the various interests lost by the proprietor the section proceeds to say "such proprietoror tenure holder shall (1) XXXI, B.L.R. 400.
(2) A.I.R. (3) A I.R. 1950 Pat. 354.
(4) A. I. (5) A.I.R. 1962 Cal. 272.
(6) I.L.R. XXV pat.
913 cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act".
In order to find out the implication of the clause extracted above we have to go to section 6 which provides that on and from the date of vesting all lands used for agriculture or horticultural purposes which were in khas possession of an intermediary on the date a vesting (including certain classes of land specified in that section) shall subject to the provisions of sections 7A and B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands, subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.
Reading sections 3, 4 and 6 together, it follows that all Estates notified under section 3 vest in the State free of all encumbrances.
The quondum proprietors and tenure holders of those Estates lose all interests in those Estates.
As proprietors they retain no interest in respect of them whatsoever.
But in respect of the lands enumerated in section 6 the State settled on them the rights of raiyats.
Though in act the vesting of the Estates and the deemed settlement of raiyats rights in respect of certain classes of lands in cluded in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, and free of all encumbrances.
Then followed the deemed settlement by the State of raiyat 's rights on the quondum proprietors.
Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within section 6.
Section 4(d) provides that "no suit shall lie in any Civil Court 'for the recovery of any money due from such proprietor (proprietor whose estate has vested in the State) or tenure holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped".
Proceedings in this.
section undoubtedly include execution proceedings.
This is not a case where only a part of the mortgaged property has vested in the such the rule laid down by this Court in Raj Kishore Pratap(1) is not attracted.
As mentioned earlier the State and as vs Ram entire Estate mortgaged had vested though some interest in respect of a portion of the mortgaged property had been settled by the State on the mortgagors.
Under the circumstances the only remedy open to the decreeholders is that provided in Chap.
IV of the Act i.e. a claim under (1) ; ; 914 section 14 before the Claims Officer for "determining the amount of debt legally and justly payable to each creditor in respect of his claim '.
The procedure to be followed in such a proceeding is prescribed in sections 15 to 18. 'Provisions relating to the assessment and payment of compensation payable to the quondum proprietors and tenure holders are found in Chap.
V of the Act (sections 19 to 31.) Section 24(5) provides that "in the case where the interest of a proprietor or tenure holder is subject to a mortgage or charge, the compensation shall be first payable to the creditor holding such mortgage or charge and the balance, if any, shall be payable to the proprietor or tenure holder concerned:" That subsection further prescribes the maximum amount that can be paid to such a creditor.
In view of what has been stated above it follows that under the circumstances of this case it is not open to the appellants to proceed with the execution.
Their only remedy is to get compensation under the Act.
Our conclusion receives strong support from some of the decisions of this Court.
In Rana Sheo Ambar Singh vs Allhabad Bank Ltd., Allahabad(1), a question identical to the one before us, but arising under the U.P. Zamindari Abolition and Land Reforms Act, came up for consideration by this Court.
One of the questions that arose for decision in that case was whether the Bhumidari right settled by the State on a previous proprietor whose estate had vested in the State was liable to be proceeded against in execution of a mortgage decree against the Estate that had vested in the State.
This Court held that it was not liable to be proceeded against.
Therein it was ruled that the intention of the U.P. Zamindari.
Abolition and Land Reforms Act was to vest the proprietory rights in the Sir and Khudkasht land and grove land in the State and resettle on intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which he never had before by section 18 of the Act.
The provisions in that Act relating to vesting and settlement of Bhumidari rights are in all essential particulars similar to those in the Act relating to vesting and settlement of Bakasht lands.
This Court further ruled in that case that the mortgagee could only enforce his rights against the mortgagor in the manner as provided in section 6 (h) of the U.P., Act read with section 73 of the Transfer of Property Act and follow the compensation money under the Act.
In Krishna Prasad and Ors.
vs Gauri Kumari Devi( 2) the question that arose for decision by the Court was whether, a mortgage decree holder could proceed against the properties of the mortga (1) ; (2) [1962] Supp.
3 S.C.R. 564.
915 gor other than those mortgaged in enforcement of the personal covenant when the property mortgaged had vested in the State under the provisions of the Act.
That question was answered in the negative.
In the course of the judgment Gajendragadkar, J. (as he then was) who spoke for the Court observed that there is no doubt "that the scheme of the Act postulates that where the provisions of the Act apply, claims, of the creditors have to be submitted before the Claim Officer, the claimants have to follow the procedure prescribed by the Act and cannot avail of any remedy outside the Act by instituting suit or any other proceeding in the court of ordinary civil jurisdiction.
" Proceeding further he observed "It is in the light of this scheme of the Act that we must revert to section 4(b) and determine what its true scope and effect are.
Mr. Jha contends that in construing the words of Section 4 (d) it would be necessary to bear in mind the object of the Act which was merely to provide for the transference to the State of the interests of the proprietors and tenure holders in land and of the mortgagees and lessees of such interests.
It was not the object of the Act, says Mr. Jha, to extinguish, debts due by the proprietors or tenure holders and so, it would be reasonable to confine the operation of section 4 (d) only to the claims made against the estates which have vested in the State and no others.
In our opinion, this argument proceeds on an imperfect view of the aim and object of the Act.
It is true that one of the objects of the Act was to provide for the transference to the State of the estates as specified.
But as we have already seen, the provisions contained in section 16 in regard to the scaling down of the debts due by the proprietors and tenure holders clearly indicate that another object which the Act wanted to achieve was to give some redress to the debtors whose estates have been taken away from them by the notifications issued under section 3.
Therefore, in construing section 4(d), it would not be right to assume that the interests of the debtors affected by the provisions of the Act do not fall within the protection of the Act" and again at page 578 "Having regard to the said scheme, it is difficult to confine the application of section 4(d) only to execution proceedings in which the decree holder seeks to proceed against the estate of the debtor.
In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the State, would be incompetent because the said estate no longer belong to the judgment debtor.
" Sup CI 69 9 916 Summarising the effect of the aforementioned decisions this is what this Court observed in Raj Kishore 's case(1) a case arising under the Act: From the principles laid down by this Court in the above two decisions, follows that where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed, in order that the amount due to the creditor should be determined by the claims officer and the decision of the claims officer or the Board has been made final by the Act.
" For the reasons mentioned earlier we are of the opinion that the decision of the majority of the judges in the Full Bench decision in Sidheshwar Prasad Singh vs Ram Saroop Singh(2) is not correct.
The true effect of the decisions of this Court in Rana Sheo Ambar Singh 's case(3) and Krishna Prasad 's case(4) is as explained by Kamla Sahai, J. in that case.
In the result this appeal fails and it is dismissed with costs.
Y.P. Appeal dismissed.

summary/full:
After a preliminary decree was obtained by the appellants (mortgagees of an Estate including both Bakasht lands and other lands), the Bihar Land Reforms Act, 1950 came into force.
The appellant filed petition for passing final decree.
The Estate mortgaged vested in the State as a result of a notification issued under section 3(1) of the Act, and later a final decree was passed in the mortgage suit.
Thereafter the appellants applied under section 14 of the Act and got determined the compensation to which they were entitled under the Act.
But yet they filed an execution petition to execute the mortgage decree against the Bakasht land.
The respondents resisted that execution by filing an application under section 47, Civil Procedure Code contending that the execution was barred under section 4(d) of the Act.
That application was dismissed for default of the respondents.
A second application raising, the same ground was filed by the respondents but this, too, was dismissed for their default.
A third application raising the same ground was filed by the respondents and in this, the execution court overruled the objection raised by the respondents on the grounds (i) that the objection was barred by the principles of res judicata and (ii) that the bar of section 4(d) pleaded was not tenable.
This decision was affirmed in appeal, but reversed in second appeal by the High Court.
Dismissing the appeal this Court; HELD : (i) The objection was not barred by the principles of res judicata.
Before a plea can be held to be barred by res judicata that plea must have been heard and determined by the court.
Only a decision by a court could be res judicata, whether it be statutory under section 11, Civil Procedure Code or constructive as a matter of public policy on which the entire doctrine rests.
An execution petition having been dismissed for the default of the decree holder through by the time petition came to be dismissed, the judgment debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petitions filed in accordance with law.
Even the dismissal for default of objections raised under section 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the execution.
[911 B H] Maharaja Radha Parshad Singh vs Lal Sahab Rai & Ors.
L.R. 17 I.A. 150, Pulvarthi Venkata Subba Rao vs Velluri Jagannadha Rao & Ors.
; , Lakshmibai Anant Kondkar vs Ravi Bhikaji Kondkar, XXXI B.L.R. 400, Bahir Das Pal & Anr.
v, Girish Chandra Pal, A.I.R. 1923 Cal.
287, Bhagwati Prasad Sah vs Radha Kishun Sah & Ors.
A.I.R. 1950 Pat. 354, Jethmal & Ors.
vs Mst.
Sakina, A.I.R. 1961 Rai.
1959 Bishwanath Kundu vs Smt.
Subala Dassi, A.I.R. 1962 Cal. 272, referred to.
909 Ramnarain vs Basudeo, I.L.R. XXV Pat.
595, disapproved.
(ii)Proceedings under section 4(d).
of the Bihar Land Reforms Act, 1950 included execution proceedings and the execution could not be proceeded with.
The only remedy open to the appellants was to get compensation under Chapter IV of the Act.
[913 G, H] Reading sections 3, 4 and 6 together, it followed that all Estates notified under section 3 vested in the State free of all encumbrances.
The quondum proprietors and tenure holders of those Estates lost all interests in those Estates.
As proprietors they retained no interest in respect of them whatsoever.
But in respect of the lands enumerated in section 6 the State settled on them the rights of raiyats.
Though in fact the vesting of the Estates and the deemed settlements of raiyat rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, free of all encumbrances. 'Men followed the deemed settlement by the State of raiyat 's rights on the quondum proprietors.
Therefore in law it would not be correct to say that what vested in the State were only those interests not coming within section 6.
[913 C E] Section 4(d) provided that "no suit shall lie in any civil court for the recovery of any money due from such proprietor (proprietor whose estate has vested in the State) or tenure holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped".
Proceedings in this section undoubtedly included execution proceedings.
[1913 F] Ramnarain vs Basudeo I.L.R. XXV Pat.
595, Raj Kishore vs Ram Pratap, ; ; , Rana Sheo Ambar Singh vs Allahabad Bank Ltd., Allahabad, ; and Krishna Prasad & Ors.
vs Gauri Kumari Devi, (1962] Supp.
3 S.C.R. 564, referred to.
Sidheshwar Prasad Singh vs Ram Saroop Singh, 1963 B.L.J.R. 802, majority view disapproved.


judgement:
Appeal No. 438 a 1966.
Appeal by special leave from the judgment and decree dated November 18, 1963 of the Punjab High Court in Civil Regular Second Appeal No. 254 of 1962.
Mohan Behari Lal, for the appellants.
I. M. Lall and M. L. Agarwal, for the respondents.
The Judgment of the Court was delivered by Shah, J.
In 1916 Jawala a Hindu Jat governed by the customary law of the Punjab sold to one Shadi, without legal necessity, a fourth share in 891 bighas 3 biswas, which was ancestral in his hands.
Giani Ram son of Jwala instituted Suit No. 75 946 of 1920 in the Court of the Senior Subordinate Judge, Hissar, for a declaration that the sale of ancestral lands of Jwala in favour of Shadi was null and void and was ineffective against his reversionary rights.
The suit was decreed by the Senior Subordinate Judge, Hissar.
The effect of the declaratory decree was that the alienations could not enure beyond the life time of Jwala.
Jwala died on October 16, 1959, leaving his surviving three sons Giani Ram, Manphool and Chandgi his wife Rajni, and two daughters Phulwati and Chhanno.
Under the which came into force on June 17, 1956, the estate of Jwala devolved upon his widow, his sons and his daughters in equal shares.
In an action filed by the three sons of Jwala, his daughters and widow against the legal representatives, of Shadi for a decree for possession of the lands alienated by Jwala the Senior Subordinate Judge, Hissar decreed the suit for a half share in property claimed by the plaintiffs.
The learned Judge was of the view that only the sons of Jwala could claim the benefit of the decree in Suit No. 75 of 1920 and since their share in the estate of Jwala was in the aggregate only a half, the remaining half having devolved upon the widow and the two daughters, a decree for a half share in the lands alienated could issue against the alienees.
In appeal by the plaintiffs to the District Court, Hissar, the decree was modified.
The learned District Judge decreed the claim in its entirety, but only in favour of the three sons.
In his view the sons were entitled to the ancestral property alienated by Jwala and the widow and the two daughters had no interest there in the provisions of the notwithstanding.
Against that decree a second appeal was preferred by the heirs of Shadi.
The High Court of Punjab set aside the decree passed by the District Court and restored the decree of the Trial Court.
In the view of the High Court, under the , the two daughters and widow of Jwala could inherit a share in the, estate of Jwala, but since by section 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those persons could take the benefit of the declaratory decree obtained by any one of the reversioners, who could contest the alienation by the vendor, and it was a "settled rule of custom that a female heir cannot contest the sale" by a male owner, a half share in the estate of Jwala which devolved upon the sons could be claimed by them, and the widow and the daughters could not obtain benefit of the decree.
The High Court also held that the suit filed by the widow and the two daughters had been dismissed by the Trial Court and the District Court and as they had not filed an appeal in the High Court or even cross objections, the order of dismissal qua them had 'become final, and no decree could be passed in their 947 favour for possession of any part of the estate.
With special leave the appellants have appealed to this Court.
A preliminary objection raised by counsel for the respondents that the suit in its entirety should have been dismissed, because by the enactment of the Jwala was to be deemed a full owner and notwithstanding the decree passed in Suit No. 75 of 1920 his sops had after that Act no subsisting reversionary interest in the property, must stand rejected.
The High Court has granted a decree in favour of the three sons for a half share in the property, and the decree is not challenged in an.
appeal by the respondents.
The respondents cannot now be permitted to challenge that part of the decree.
In any event there is nothing in the which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before the Act.
The Punjab Custom (Power to Contest) Act 1 of 1920 was enacted to restrict the rights excercisable by members of the family to contest alienations made by a holder of ancestral property.
By virtue of section 6 of the Act no person is entitled to contest an alienation of ancestral immovable property Unless he is descended in the male line from the great great grand father of the alienor.
Under the customary law in force in the Punjab a declaratory decree obtained by the reversionary heir in an action to set aside the alienation of ancestral property enured in favour of all persons who ultimately took the estate on the death of the alienor for the object of a declaratory suit.filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a common apprehended injury, in the interest of the reversioners.
The decree did not make the alienation a nullity it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened.
By the decree passed in suit No. 75 of 1920 filed by Giani Rain it was declared that the alienations by Jwala were not, binding after his life time, and the property will revert to his estate.
It is true that under the customary law the wife and the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor.
But a declaratory decree obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the property alienated to the estate of the alienor.
The effect of the declaratory decree in suit No. 75 of 1920 was merely to declare that by the sale interest conveyed in favour of the alienee was to enure duuring the life time of the alienor ' The conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala, at the point of his death and all persons who would, but.
for the allenation, have taken the estate 1 Sup.
C.T./69 11 948 will be entitled to inherit the same.
If Jwala had died before the was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters.
After the enactment of the the estate devolved, by virtue of sections 2 and 4(1) of the , upon the three sons, the widow and the two daughters.
We are unable to agree with the High Court that because in the year 1920 the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the , inherit his estate when succession opened after that Act came into force.
The second ground on which the learned Judge has founded his judgment also does not appeal to us.
The three sons, the two daughters and the widow of Jwala had filed the suit claiming posession of the entire property from the alienee.
That suit was decreed by the Trial Court in favour of the sons, only to the extent of a halt share in the property alienated.
The Court held that the widow and the daughters were not entitled to a share because "only those persons can bring a suit for possession on the death of Jwala who had the right to challenge the alienation made by Jwala".
In appeal the District Court granted a decree for possession of the entire property on the view that the alinee had no subsisting interest after the death of Jwala.
But the District Court granted a decree for possession of the entire property alienated only in favour of the three sons, because in the view of the Court daughters and the widow of Jwala were not entitled to any share in the property.
According to the High Court if the widow and the daughters were entitled to the share in the property, they had disentitled themselves to that right, because they had not preferred an appeal or filed cross objections to the decree appealed from.
The sons, daughters and widow of Jwala filed a suit for a decree for possession of the entire property and their primary claim was that the alienee had no subsisting interest.
The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated.
If the alienes are unable to convince the Court that they had any subsisting interest in the property in dispute after the death of Jwala the Court will be competent to adjust the rights between the sons, the daughters and the widow of Jwala in that property.
Order 41, r. 33 of the Code of Civil Procedure was enacted to meet a situation of the nature arising in this case.
In so far as it is material, the rule provides : "Me Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or 94 9 other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection '.
The expression "which ought to have been passed" means "which ought in law to have beep passed".
If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the subordinate court, it may Pass or make such further or other decree or order as the justice of the case may require If the claim of the respondents to retain any part of the property after the death of Jwala is negatived, it would, be perpetrating gave injustice to deny to the wodow and the two daughters, their share in the property to which they are in law entitled.
In our view, the case was one in which the power under 0. 41, r. 33,.
Code of Civil Procedure ought to have been exercised and the claim not only of the three sons but also of the widow and the two, daughters ought to have been decreed.
The appeal is allowed and the decree passed by the High Court is modified.
There will be a decree for possession of the lands in suit in favour of the three sons, the widow and the two daughters of Jwala.
The interest of the three sons is one half in the Iands in suit and the interest of the widow and the two daughters is the other half in the lands.
The plaintiffs will be entitled to mesne profits from the date of the suit under 0. 20, r. 12, Code of Civil Procedure.
The appeal will be allowed with costs throughout.
G.C. Appeal allowed.

dataset_name: IN-Abs

summary/full:
J, a Hindu Jat governed by the Punjab Customary Laws, sold without legal.
necessity, in 1916, a fourth share of his ancestral land to one section Under the Punjab, Customary Laws females could not challenge a sale of ancestral property by a male owner.
J 's son G, in suit No. 75 of 1920 obtained a declaratory decree to the effect that the sale to S would not enure beyond the life time of J. When J died in 1959, the had come into force and his three sons, daughters and widow inherited his estate in equal shares.
The three sons, the widow and the daughters then filed a suit for possession of the aforesaid alienated land on the basis of the decree in suit No. 75 of 1920.
Under section 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those competent to contest an alienation clould take advantage of a decree obtained by a reversioner.
The trial court passed a decree for a half share of the suit property in favour of the sons only, holding that the female heirs of J were not entitled to take advantage of the decree in suit No. 75 of 1920.
The District Court modified the decree by decreeing the suit in respect of the whole property in favour of the sons.
In second appeal the High Court restored the decree of the trial court holding that the claim of the female heirs of J could not be upheld, firstly because of the Punjab customary law and section 8 of Act 1 of 1920, and secondly because they had not filed any appeals against the orders of the lower courts.
In appeals by special leave before this Court, HELD : (i) The preliminary objections 'raised by the alienees that the suit in its entirety should have been dismissed, because by the enactment of the J was to be deemed a full owner and notwithstanding the decree of 1920 his sons had after that Act no subsisting reversionary interest in the property, must stand rejected.
There is nothing in the which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before the Act.
[947 B C] (ii) Under the customary law of the Punjab the wife and the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor.
But a declaratory decree 945 obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the property alienated to the estate of the alienor.
[947 G] The effect of the declaratory decree in the suit filed by G in 1920 was merely to delclare that by the sale, the interest conveyed to the alienee was to enure during the life time of the alienor.
The conclusion was therefore inevitable that the property alienated reverted to the estate of J at the point of his death and all persons who would, but for the alienation have taken the estate were entitled to inherit the same.
If J had died before the was enacted, the three sons would have taken the estate to the exclusion of the widow and the two daughters.
After the enactment of the the estate devolved, by virtue of sections 2 and 4(1) of the , upon the three sons, the widow and the two daughters.
L947 H 948 B] The High Court was therefore in error in holding that because in the year 1920 the wife and daughters of J were incompetent to challenge the alienation of ancestral property by J, they could not, after the enactment, of the inherit his estate when succession (iii) The High Court was equally in error in holding that because the widow and daughters had not filed an appeal or cross objections against the decree of the lower courts, they were not entitled to any relief.
The sons, the daughters and the widow of J had filed the suit for a decree for possession of the entire property and their claim was that the alienee had no subsisting interest.
The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated.
If the alienees were unable to convince the court that they had any subsisting interest in the property in dispute after the death of J, the court was competent under 0.
41 r. 33 of the Code of Civil Procedure to adjust the rights between the sons, the daughters, and the widow of J in that property.
[948 E G; 949 D] In 0.
41 r. 33 the expression 'which ought to have been passed ' means 'what ought in law to have been passed '.
if the Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the 'subordinate court, it may pass or make such further or other decree or order as the justice of the case may require.
[949 D]


judgement:
Appeals Nos. 386 and 387 of 1966.
Appeal by special leave from the judgment and_decree dated April 16, 1963 of the Madhya Pradesh High Court in First Appeal No. 217 of 1959.
section V. Gupte, P. C. Bhartari and J. B. Dadachanji, for the appellants (in C.A. No. 386 of 1966) and the respondents (in C.A. No. 387 of 1966).
I. N. Shroff and Rama Gupta, for the State of Madhya Pradesh.
The Judgment of the Court was delivered by Ramaswami, J.
These appeals are brought by special leave from the judgment of the High Court of Madhya Pradesh dated 16th April, 1963 in ' First Appeal No. 217 of 1959, whereby the High Court modified partly the judgment of the first Additional District Judge, Jabalpur dismissing Civil Suit No. 10 A of 1954.
The suit was instituted against the State of Madhya Pradesh by Beohar Raghubir Singh and his three grand sons.
Beohar Raghubir Singh 's son, Beohar Rajendra Sinha, was a pro forma defendant.
A notice under section 80 of Civil Procedure Code had been given by Raghubir Singh on 11th January, 1954.
Plaintiffs 2, 3 and 4, his grand sons were joined as plaintiffs because in a partition made subsequent to the giving of the notice, they were each entitled to 1/5th share along with the first plaintiff.
Beohar, Rajendra Sinha was joined as a defendant because he did not choose to join as the plaintiff.
The plaintiffs sought a declaration (1) that the three nazul plots in suit had been in possession of the plaintiffs and the predecessors in their own right from time immemorial and their status was that of Raiyat Sarkar; and (2) that the order of the State Government in the Survey and Settlement Department refusing to recognise their possession over the plots was wrong and ultra vires.
The dispute relates to Phoota Tal a tank situated within the town of Jabalpur.
It was plot No. 282 in the settlement of 1863 A.D.
Its area then was 957 5.24 acres.
it was recorded as malkiat Sarkar and in the last column there was an entry showing possession of Aman Singh Thakur Prasad.
The next settlement took place in 1890 91.
The survey number of Phoota Tal was changed to plot No. 325.
Its area remained the same, it was recorded as "water (pani)" and in the last column, the entry showed the possession of Beohar Narpatsingh Raghubir Singh.
, The third settlement took placed in 1909 10.
The plot number of Phoota Tal was then , it was still recorded change to 327.
Its area remained the same it was still recorded as 'water", but there was no entry in favour of any one showing possession.
The nazul settlement took place in 1922 23.
In this settlement, the tank was given numbers 33, 34, 35, 36, 37 and 171.
Its area was recorded as 5.24 acres.
In this settlement about 2 acres of land was found to be occupied by the Municipal Committee, Jabalpur.
The land so found to be occupied was recorded in the possession of the Muncipal Committee, Jabalpur and the remaining land was again recorded as "Milkiat Sarkar".
There was no entry regarding possession in the remarks column so far as the remaining land was concerned.
The plaintiffs alleged that Thakur Prasad and Aman Singh were their ancestors, that they had been in continuous possession of the disputed landand the omission to record their possession in the last two settle ments of 1909 10 and 1922 23 was due to some oversight.
In 1948 the first plaintiff made an application for correction to the Deputy Commissioner, Jabalpur who made an order in his favour exhibit P 5.
The order of the Deputy Commissioner was however set aside by the State Government on 28th May, 1953 and it was held that the plaintiffs had no title to the disputed land.
The plaintiff therefore prayed for a declaration of the title to the disputed plots and for the correction of the entry in the settlement record showing the status of the plaintiff as that of "Raiyat Sarkar".
The suit was contested by the State of Madhya Pradesh.
It was urged that the plaintiff had no possession over the disputed land and the order of the State Government dated 28th May, 1953 was correct.
It was contended that plaintiffs 2, 3 and 4 had no right to institute the suit because no notice under section 80 of the Civil Procedure Code was given on their behalf.
The suit was not contested by the second defendant Beohar Rajendra Sinha.
By its judgment dated 24th January, 1959 the trial court held that there was no documentary evidence from 1891 to 1932 to support the possession of the ancestors of the plaintiffs regarding Phoota Tal.
The trial court also held that in all the settlement entries, the land was recorded as belonging to the Government "Milkiat Sarkar".
In any event, between 1891 to 1932 there was no evidence regarding the user of the property by the plaintiffs and in the subsequent years a part of the property was found in possession of the Municipal Committee.
The trial court dismissed the suit.
Against the judgment of the trial court 958 the plaintiffs preferred an appeal to the High Court.
The High Court held in the first place the notice exhibit P 8 was not in conformity with section 80 of the Civil Procedure Code.
The High Court held that Beohar Raghubir Singh had lost the right to represent the joint family as karta at the time of institution of the suit because there had been a severence of joint status and the notice served by Beohar Raghubir Singh could not ensure to, the benefit of the other plaintiffs.
On the merits of the case, the High Court found that the plaintiffs had established their possession for the statutory period of 60 years.
The High Court held that the plaintiffs had acquired the right of Raiyat Sarkar and that the order of the State Government refusing to correct the revenue record was illegal.
On these findings the High Court modified the judgment of the trial court to the extent that there was a declaration in favour of the plaintiffs that they were entitled to 1/5th share of the property in dispute and the claim regarding the 4/5th share was dismissed The order of the State Government dated 28th May, 1953 refusing to recognise the possession of the plaintiffs was held to be wrong and illegal.
The first question to be considered in these appeals is whether the High Court was right in holding that the notice given under section 80 of the Civil Procedure Code by the first plaintiff was effective only with regard to Raghubir Singh and.
the notice was ineffective with regard to the other plaintiffs and therefore Raghubir Singh alone was entitled to a declaration as regards the 1/5th share of the dispute plot.
On behalf of defendant No. 1 it was contended by Mr. Shroff that at the time of giving notice the plaintiffs and the second defendant were joint and plaintiff No. 1 Raghubir Singh was karta of the joint family.
The notice was given on 11th January, 1954 and the suit was instituted on 20th July, 1954.
It was admitted that between these two dates there was a disruption of the joint family of which Raghubir Singh was a karta.
It was argued that the right of the first plaintiff to represent the family had come to an end before the institution of the suit, and hence plaintiffs 2, 3 and 4 had to comply individually with the provisions of section 80 of the Civil Procedure Code before appearing as plaintiffs in the suit, In our opinion, there is no justification for this argument.
, We consider that there is substantial identity between the person giving the notice and the persons filing the suit in the present case.
At the time of giving notice the first plaintiff Beohar Raghubir Singh was admittedly the eldest member of the joint family and being a karta he was entitled to represent the joint family in all its affairs.
The cause of action had accrued at the time of giving of the notice and it was not necessary to give a second notice merely because there was a severence of the joint family, before 20th July, 1954 when the suit was actually instituted.
It is obvious 959 that the notice was given by Beohar Raghubir Singh as a representative of the joint family and in view of the subsequent partition the suit had to be instituted by, all the divided members of the joint family.
We are of the opinion that the notice given by Beohar Raghubir Singh on 11th January, 1954 was sufficient in law to sustain a suit brought by all the divided coparceners who must be deemed to be as much the authors of the notice as the karta who was the actual signatory of the notice.
There is substantial identity between the person giving the notice and the persons bringing the suit in the present case and the argument of defendant No. 1 on this point must be rejected.
The object of the notice under section 80, Civil Procedure Code is to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position and if that course is justified to make amends or settle the claim out of court.
The section is no doubt imperative; failure to serve notice complying with the requirements of the statute will entail dismissal of the suit.
But the notice must be reasonably construed.
Any unimportant error or defect cannot be permitted to be treated as an excuse for defeating a just claim.
In considering whether the provisions of the statute are complied with, the Court must take into account the following matters in each case (1) whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice; (2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity; (3) whether a notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section; and (4) whether the suit is instituted after the expiration of two months next after notice has been served, and the plaint contains a statement that such a notice has been so delivered or left.
In construing the notice the Court cannot ignore the object of the legislature, viz., to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position.
If on a reasonable reading of the notice the plaintiff is shown to have given the information which the statute requires him to give, any incidental defects or irregularities should be ignored.
In the present case, the notice was served on 11th January, 1954 by Beohar Raghubir Singh.
The notice stated the cause of action arising in favour of the joint family.
The requirements as to cause of action, the name, description and residence of the plaintiff were complied with and the reliefs which the plaintiff claimed were duly set out in the notice.
It is true that Beohar Raghubir Singh did not expressly describe himself as the karta.
But reading the contents of the notice exhibit P 8 in a reasonable manner it appears to us that the claim of Beohar Raghubir Singh 960 was made on behalf of the joint family.
It is true that the term of section 80 of the Civil Procedure Code must be strictly complied but that does not mean that the terms of the notice should be scrutinised in an artificial or pedantic manner.
In Dhian Singh Sobha , Singh & Anr.
vs The Union of India & Anr.
(1) Bhagwati, J. observed in the course of his judgment : "We are constrained to observe that the approach of the High Court to this question was not well founded.
The Privy Council no doubt laid down in Bhagchand Dagadusa vs Secretary of State (2) that the terms of this section should be strictly complied with.
That does not however mean that the terms of the notice should be scrutinised in a pedantic manner or in a manner completely divorced from common sense.
As was stated by Pollock C. B. in Jones vs Nicholls(3) We must impprt a little common sense into notices of this kind '.
Beaumonth, C.J., also observed in Chandu Lal Vadilal vs Government of Bombay(4) "One must construe section 80 with some regard to common sense and to the object with which it appears to have been passed. ." As already pointed out, the suit was instituted in the present case by the divided members of Hindu joint family on 20th July, 1954.
The notice had been given on 11th January, 1954 by Beohar Raghubir Singh who was the karta of the undivided joint family.
In our opinion there was identity between the person giving a notice and the persons filing the suit because it must be deemed in law that each of the plaintiffs had given the notice under section 80 of the Civil Procedure Code through the karta Beohar Raghubir Singh.
It is not disputed that the cause of action set out in the notice remained unchanged in the suit.
It is also not said that the relief set out in the plaint is different from the relief set out in the notice.
We are accordingly of the opinion that the notice given by the karta was sufficient to sustain the suit brought by the divided coparceners and the decision of the High Court on this point must be over ruled.
The view that we have expressed is borne out by the judgment of this Court in State of Andhra Pradesh vs Gundugola Venkata Suryanarayan Garu(5).
In that case, the Government of Madras applied the provisions of the Madras Estates Rent Reduction Act, 1947 to the lands in the village Mallindhapuram on the ground that the grant was of the whole village and hence an estate within the meaning of section 3 (2) (d)of the Madras Estates (1) ; (2) [1927] L.R. 54 I.A. 338.
(3) ; , 363; ; ,150.(4) I.L.R. (5) ; 961 Land Act, 1908.
The respondent and another person served a notice under section 80 of the Code of Civil Procedure upon the Government of the State of Madras in which they challenged the above mentioned notification and asked the Government not to act upon it.
Out of the two persons who gave the notice, the respondent alone filed the suit.
The trial court held that the original grant was not of the entire village and was not so confirmed or recognised by the Government of Madras and as it was not an "Estate" within the meaning of section 3 (2) (d) of the Madras Estates Land Act, the Madras Rent Reduction Act, 1947 did not apply to it.
But the suit was dismissed on the ground that although two persons had given notice under section 80 of the Code of Civil Procedure, only one person had filed the suit.
The High Court agreed with the trial court that the grant was not of an entire village but it also held that the notice was not defective and the suit was maintainable as it was a representative suit and the permission of the Court under 0.1, r. 8 had been obtained in this case.
The High Court granted the respondent the relief prayed for 'by him.
Against the order of the High Court the appellant appealed to this Court which dismissed the appeal holding that in the circumstances of the case there was no illegality even though the notice was given by two persons and the suit was filed by only one.
If the Court grants permission to one person to institute a representative suit and if the person had served the notice under section 80, the circumstance that another person had joined him in serving the notice but did not join him in the suit, was not a sufficient ground for regarding the suit as defective.
At page 953 of the Report Shah, J. observed as follows : "The notice in the, present suit was served by the plaintiff and Yegneswara Sastri.
They raised a grievance about the notification issued by the Government of Madras on May 16, 1950; it was not an individual grievance of the two persons who served the notice but of all the Inamdars or agrahamdars.
The relief for which the suit was intended to be filed was also not restricted to their personal claim.
The notice stated the cause of action arising in favour of all the Inamdars, and it is not disputed that the notice set out the relief which would be claimable by all the Inamdars or on their behalf in default of compliance with the requisition.
The plaintiff it is true alone filed the suit, but he was permitted to sue for and on behalf of ' all the Inamdars by an order of the Court unuder O. 1, r. 8 of the Code of Civil Procedure.
The requirements as to the cause of action, the name, description and place of residence of the plaintiff was therefore 962 complied with and the relief which the plaintiff claimed was duly set out in the notice.
The only departure from the notice was that two persons served a notice under section 80 informing the Government that proceedings would be started, in default of compliance with the requisition, for violation of the rights of the Inamdars, and one person only out of the two instituted the suit.
That in our judgment is not a defect which brings the case within the terms of section 80".
On behalf of respondent No. 1 reference was made, to the two decisions of the Judicial Committee in Vellayan Chettiar & Ors.
vs Government of the Province of Madras and Anr.(1) and Government of the Province of Bombay vs Pestonji Ardeshir Wadia & Ors.(2) But the 'principle of these decisions has no bearing on the question presented for determination in the present case.
In Vellayan Chettiar 's case(1) a notice was given by one plaintiff stating the cause of action, his name, description and place of his residence and the relief which he claimed although the suit was instituted by him and another.
It was observed by the Judicial Committee: "The section according to its plain meaning requires that there should be in the language of the High Court of Madras 'identity of the person who issues the notice with the person who brings the suit ' : See Venkata Rangiah Appa Rao vs Secretary of State(3) and on appeal Venkata Rangiah Appa Rao vs Secretary of State (4).
To hold otherwise would be to admit an implication or exception for which there is no jurisdiction" Two persons had sued for a declaration that certain lands belonged to them, and for an order setting aside the decision of the Appellate Survey Officer in regard to those lands.
It was found that one alone out of the two persons had served the notice.
The relief claimed by the two persons was personal to them and the right thereto arose out of their title to the land claimed by them.
It was held by the Judicial Committee that without a proper notice under section 80 the suit could not be instituted for to hold otherwise would be to admit an, implication or exception for which there was no justification.
In the other case, in Pestonji Ardeshir Wadia 's case(2) two trustees of a trust served a notice in October, 1933 upon the Government of Bombay under section 80 intimating that the trustees intended to institute a suit against the Government on the cause of action and for the relief set out (1) A.I.R. 1947 P.C. 197.
(2) 76 I.A. 85.
(3) I.L.R. Mad 416.
(4) 963 therein.
One of the trustees died before the plaint was lodged in court, and two more trustees were appointed in the place of the deceased trustee.
Thereafter the two now trustees and the surviving trustee filed the suit out of which the appeal arose which was decided by the Judicial Committee.
No notice was served on the Government on behalf of the two new trustees.
The Judicial Committee accepted the view of the High Court that where there were three plaintiffs, the names and addresses of all of them must be given in the notice.
Their Lordships observed that : "the provisions of section 80 of the Code are imperative and should be strictly complied with before it can be said that a notice valid in law has been served on the Government.
In the present case it is not contended that any notice on behalf of plaintiffs 2 and 3 was served on the Government before the filing of the suit".
It is clear that the principle of these two decisions of the Judicial Committee has no application in the present case because the material facts are different.
We proceed to consider the next question arising in these appeals viz., whether the High Court was right in holding that the plaintiffs had established their title as raiyat sarkar with regard to 1/5th share in nazul plots Nos.
34/3, 33 and 171/1 mentioned in the Deputy Commissioner 's order dated 7th May, 1948 in Revenue Case No. 9/45 46.
It was argued on behalf of defendant No. 1 that there was no evidence to show that the plaintiffs were in possession of the land from 1909 to 1932, and the plaintiffs had not established their title by prescription for the statutory period of 60 years.
It was contended that the High Court had no justification for holding that the plaintiffs had established the title of "Raiyat Sarkar" and the finding of the High Court was not based upon any evidence.
In our opinion, the argument put forward on behalf of defendant No. 1 is wellfounded and must be accepted as correct.
In the settlement of the names of Amansingh and Thakurprasad were noted in the remarks column.
But the column regarding tenancy right is definitely blank.
The owner is shown in the Khasra as the State "Milkiat Sarkar".
In the settlement of 189091 Amansingh Narpatsingh is again shown in the remarks column of the khata.
But the column regarding any kind of tenancy right is again blank.
It is clear that in the settlements of 1860 and 1890 91 the ownership of the land is recorded as that of the Government.
The possession of the plaintiffs or of their ancestors could not be attributed to ownership or tenancy right of the property.
In the settlement of 1909 10, exhibit
P 3 there is no entry in the remarks column showing the possession of the ancestors of the plaintiffs.
It was said on behalf of the plaintiffs that no (1) 76 I.A. 85.
L11 Sup.
C.I./69 12 96 4 notice was given to them of the proceedings of the. settlement of 1909 10.
Even assuming that this allegation is correct, the entries of the khasra P 3 cannot be treated to be a nullity and of no effect.
In any event, it was open to the plaintiffs to adduce other reliable evidence to prove their possession between the years 1909 to 1932.
But the plaintiffs have failed to produce any such evidence.
ln the nazul settlement of 1922 23 the tank was given new plot numbers 33, 34, 35,36, 37 and 171 and its area was recorded as 5.24 acres.
In this settlement about 2 acres of land was found to be occupied by the Municipal Committee, Jabalpur.
The land so found to be occupied was recorded in the possession of the Municipal Committee, Jabalpur and the remaining land was again recorded as "Milkiat Sarkar".
There is no entry as regards the remaining land recording anybody 's possession in the.
remarks column.
Actually proclamations were made during this settlement and objections were invited as per exhibit
ID 14.
A date was fixed upto 31 8 1924 but no one came forward.
The proclamation clearly recited that the vacant sites which were not in possession of anybody were not recognised as belonging to any person.
It is impossible to believe that the plaintiffs or their ancestors were unaware of such a proclamation.
Had they been in possession they would not have failed to make a claim.
For the period after 1933 34 the plaintiffs produced account books to show that they exercised certain rights.
Certain receipts were also proved but they also relate to a period after 1939.
We have gone through the oral evidence produced by the plaintiffs and it appears to be unreliable.
The result is that for the period 1891 till 1932 there is no reliable oral or documentary evidence to prove that the plaintiffs or their ancestors had any possession over the disputed land.
On the contrary the disputed land i.e. Phoota Tal was always recognised as Milkiat Sarkar and the State Government was justified in holding that the order of the Deputy Commissioner dated 7th May, 1948 should be set aside.
In the course of the argument reference was made by Mr. Gupte to the following passage in the Central Provinces Settlement Instructions (Reprint of 1953) page 213 "In dealing with proposed method of the settlement of titles it will be convenient in order to remove all causes for misapprehension among residents, to lay emphasis on the policy of Government in making these settlements.
That policy was defined in the Chief Commissioner 's Resolution No. 502 B X dated the 19th October, 1917, in the Revenue & Scarcity Department, but its main principles will bear repetition.
As it is not the intention of Government in making the settlement to disturb long possession, but only to 965 obtain an accurate record of the lands which are its property and to secure its right to any land revenue to which it may be entitled, long possession even without clear proof of a definite grant from Government will be recognised as entitled the holder to possession.
In deciding what constitutes long possession in any individual town, regard will be had to the special circumstances of the place, and while this point will be dealt with more particularly in the Deputy Commissioner 's report, the following general principles will ordinarily be observed : (1) all occupants who are able to prove possession to any land prior to 1891 or such later date as may be fixed for each town, either by themselves or by a valid title from a previous holder, and all occupants who can prove a definite grant or lease from Government will be recorded as entitled to hold such land as against Government (paragraph 6 of the Resolution) On the basis of this passage it was argued that it was the duty of the settlement officer to treat the plaintiffs as having established their title because they were shown to be in possession in the settlement of the year 1890 91.
We are unable to accept this argument as correct.
The passage quoted above only applies to a case where the ownership of the land was unknown i.e. where possession is proved for a long time, but its original title could not be traced, and not to a case where the land is recorded as Government land.
For the reasons expressed, we hold that the suit brought by the plaintiffs being Civil Suit No. 10 A of 1954 should be dismissed.
Civil Appeal 386 of 1966 is accordingly dismissed and Civil Appeal 387 of 1966 is allowed with costs in favour of defendant No. 1 i.e. State of Madhya Pradesh.
There will be one hearing fee.
R.K.P.S. Civil Appeal 386/66 dismissed.
Civil Appeal 387/66 allowed.

summary/full:
The appellant, who was at the time the Karta of a Hindu Joint Family, gave notice in January, 1954, to the respondent State under section 80 of the Civil Procedure Code.
Thereafter a suit was filed in July, 1954, by which time a partition had taken place in the family.
In view of this the appellant 's three grand sons were joined as plaintiffs in the suit the plaintiffs sought a declaration that three nazul plots in suit had been in the possession of the plaintiffs and their ancestors from time immemorial and their status was that of Raiyat Sarkar; so that an order of the State Government in the Survey and Settlement Department refusing to recognise their possession over the plots was wrong and ultra vires.
Apart from contesting the suit on the merits, the respondent State contended that plaintiffs 2, 3 and 4 i.e. the appellant 's grand sons had no right to institute a suit because no notice under section 80 C.P.C. was given on their behalf.
The trial court dismissed the suit.
In an appeal, the High Court held that the appellant had lost the right to represent the joint family as karta at the time of institution of the suit because their had been severence of joint status and the notice served by him could not enure to the benefit of other plaintiffs.
On the merits the High Court found that the plaintiffs had shown their possession for the statutory period of 6 years.
On appeal to this Court, HELD: (1) The notice given by the appellant in January, 1954, was sufficient in law to sustain a suit brought by all the divided coparceners who must be deemed to be as much the authors of the notice as the Karta who was the actual signatory of the notice.
There was substantial identity between the person giving the notice and the persons bringing the suit in the present case.
[959 B] At the time of giving notice the appellant was admittedly the eldest member of the joint family and being a Karta he was entitled to represent the joint family in all its affairs.
The cause of action had accrued at the time of giving of the notice and it was not necessary to give a second notice merely because there was a severance of the joint family, before 20th July, 1954, when the suit was actually instituted.
[958 G H] Although the terms of section 80 C.P.C. must be strictly complied with, that does not mean that the terms of the notice 'should be scrutinised in an artificial or pedantic manner.
[960 A] Dhian Singh Sobha Singh & Anr.
vs The Union of India, ; , referred to, 956 State of Andhra Pradesh vs Gundugola Venkata Suryanarayan Garu, ; ; Vellayan Chettiar & Ors.
vs Government of the Province of Madras and Anr.
, A.I.R. 1947, P.C. 197; Government of the Province of Bombay vs Pestonji Ardeshir Wadia & Ors., 76 I.A. 85, distinguished.
(2) On the merits, the appellants had failed to produce reliable oral or documentary evidence to prove that their ancestors had possession over the disputed land for many years.
On the contrary this land was always recognised as Milkiat Sarkar and the respondent State Government was justified in holding it as such.


judgement:
Appeal No. 2322 of 1968.
Appeal by special leave from the order dated October 4, 1968 of the Bombay High Court in Special Civil Application, No. 2053 of 1968.
N. N. Keswani, for the appellant.
R. B. Datar and section N. Prasad, for respondent No. 1.
section P. Nayar, for respondents Nos.
2 to 4.
The Judgment of the Court was delivered by Mitter, J.
This is an appeal by special leave from an order of the Bombay High Court dismissing in limine an application under articles 226 and 227 of the Constitution and refusing to quash the judgment and order of the Assistant Judge at Sangli rendered in Election Petition No. 10 of 1967.
The facts are as follows.
On June 3, 1967 election of councillors to the Sangli City Municipality was held under the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the Act.
The counting 968 of votes took place with regard to Ward No. 25 on June 4, 1967.
According to the election petition, the results were published in the Official Gazette on June 15, 1967 and the petition was filed on June 24, 1967.
The petitioner who was himself a candidate for election from the said ward challenged the election of the appellant before us on several grounds set forth in paragraph 3 of the petition.
The first of these was to the effect that the appellant bad, with the help of his supporters, published an undated pamphlet and circulated the same on a large scale among the voters in Ward No. 25 and that the said pamphlet contained untrue, false and defamatory statements about the petitioner thereby prejudicing the voters generally against him and in particular instigating the Muslim voters to vote against him by arousing their religious sentiments.
Another similar ground based on a defamatory pamphlet dated 30th May 1967 was urged in the petition.
Charges of terrorising voters and securing votes by false personation were also levelled therein.
Statements were made in the petition that the appellant 's name as councillor had been declared in the Official Gazette on June 15, 1967 and the petitioner 's cause of action bad arisen on that date.
The first of these was expressly accepted as correct in the written statement of the appellant and the second remained unchallenged.
The appellant however repelled the charges mentioned above and denied that he was responsible for the publication of any of the impugned pamphlets.
Of the four issues framed at the hearing of the petition, the first was : "whether the petitioner proved that opponent No. 1 who was elected as Municipal Councillor for Ward No. 25 had used malpractices at the time at the election by arousing religious sentiments of the voters and making defamatory statements against the petitioner by publishing pamphlets?" The petitioner gave evidence himself about the allegations in the petition to substantiate the charges raised by him.
The appellant examined himself to contradict the said evidence.
It appears that the petitioner had in the list of witnesses filed by him, mentioned the name of two persons, Hakim Abdul Rahiman Shaikh and Gopal Chintaman Ghugare and that these two persons had attended the court on certain days when they were not examined.
On August 21, 1968 the petitioner made an application before the Judge for issuing summons on these two persons as his witnesses, but the learned Judge rejected that application.
The appellant 's case was closed on the same day and the arguments started on August 22, 1968.
On that date the court adjourned the hearing of the case to August 24, 1968 for 969 recording the evidence of these two witnesses in respect of whom an application had been made by the election petitioner on the previous day.
The order exhibit 36 dated August 22, 1968 tends to show that the learned Judge was persuaded to do so by the mere fact that they were Government servants.
He however recorded that the ends of justice required that these witnesses should be examined.
He fixed August 24, 1968 for further hearing of the matter and directed the issue of summonses to these two persons.
These two persons were examined on the 24th August as court witnesses and thereafter the argument of counsel was resumed and concluded.
By judgment delivered on August 30, 1968 the learned Judge allowed the election petition holding in favour of the petitioner on the first issue.
The appellant before us presented an application to the High Court under articles 226 and 227 of the Constitution for quashing the order of the Judge; but the High Court dismissed the writ petition in limine on October 4, 1968 and the appellant has now come up before this Court by special leave.
Learned counsel for the appellant raised five points before us.
The first point was that the procedure adopted by the trial court was wrong in that the two witnesses who were examined as court witnesses had been cited by the election petitioner earlier and the learned Judge had in the exercise of jurisdiction vested in him refused to issue summonses to them when he was asked to do so on August 21, 1968.
It was urged that having rejected this application, it was not open to the Judge to examine these two persons as court witnesses and this was a serious irregularity which the High Court should have set right by quasbing the order of the Judge based on the evidence of these witnesses.
The second point was that the election petition was filed beyond the period prescribed by the Act and as such it was not maintainable.
The third point was that the first issue which was decided against the appellant was so confusing and misleading that there was no fair trial of the petition to the prejudice of the appellant.
The fourth point was that in any event there was no evidence of corrupt practice of which the appellant could be found guilty.
The fifth point was that the order of the Judge disqualifying the appellant for a period of five years was unduly harsh and ought to be set aside.
With regard to the first point it is to be noted that the case of the election petitioner was that the appellant was guilty of publication of two pamphlets which cast serious aspersions on his character and conduct and prejudiced him materially in the eyes of the voters as a result whereof he lost the election and that the first of these also aroused the religious sentiments of the Muslim voters to his detriment.
The appellant was found guilty of publication of the first pamphlet only.
This was.
signed by 970 six persons.
There was no evidence as to where it was printed or who got it printed.
The evidence adduced by the election petitioner was that the appellant had published all the phmphlets mentioned in the petition and distributed the same amongst the voters and the petitioner had come across the first pamphlet during the process of distribution.
There can be no two opinions about the contents of the pamphlet being defamatory of the election petitioner 's character.
The pamphlet read : "H. K. Kadlaskar, who contests the election from Ward No. 25 is an independent candidate, has been ostracized from the Muslim community and he has no support of the Muslim community and therefore nobody should vote for him." While Kadlaskar was in charge of the management of the Kabarasthan, he was extracting Rs. 12 for allowing the members of Muslim community to bury their dead and had prohibited the burial of the dead bodies of dancing girls and had extracted hundreds of rupees from the persons whose dead were buried there.
He turned the Kabarasthan into a brothel and was trading in illicit liquor for which he was convicted.
Recently he got published a pamphlet in the name of his mistress Noorjahan Bapulal Kavathekar to defame Mohamad Umar Shaikh and he is making some imputations against the private character of Mohmad Umar and Moulana Innan and nobody should vote for this mean minded and anti social person.
In a meeting of the Muslim workers held on 29 4 1967 in the Madina Masjid Hall under the presidentship of M. G. Shaikh it was resolved unanimously that in the place of Shaikh Usman Abdul Bidiwale the Congress ticket should be given to Umar Shaikh, who had the backing of Muslim community and that he did great public service in the past.
So all the voters should cast vote in favour of Mohammad Umar Shaikh whose symbol is a pair of bullocks.
(1) Ramjan Mohiddin Jamadar (Hundekari), Chairman Idgah Committee.
(2) Shaik Abdul Sattar Rahimanbhai Bidiwale, Treasurer, Idgah Fund Committee.
(3) Moulana Hannan, manager of Madrasa e Hidayatul Islam, and member of Madina Masjid (4) Kamalsaheb Babasaheb Shiledar, Chairman of Madina Masjid and member of Idgah Committee (5) Sayyed Amin, member of Madrasa e Hidayatul Islam and Idgah Committee.
(6) Jalaloddin Allabus Sayyad, B.A.LLB., member of Madrasa e Hidayatul Islam.
" The appellant who led evidence on his own behalf denied the publication of the pamphlet and the distribution of it by him as alleged by the petitioner.
Nothing came out in cross examination of the appellant to substantiate the election petitioner 's averment 971 that he was responsible for its distribution.
Of the two witnesses who were examined as court witnesses by the Judge, the witness Gopal Chintaman Ghugare did not say anything material on the point of distribution by the appellant.
He merely said that he had seen people reading the pamphlet but he did not know who had distributed it.
The other witness Hakim Abdul Rahiman Shaikh stated categorically that he had received a copy of the pamphlet on the day previous to the municipal election, that is to say, on June 2, 1967 and he gave full particulars as to how he came to receive it.
He stated that he had attended a prayer meeting at a mosque on the 2nd June and after the Namaj was over the appellant had read over the pamphlet and one Moulana Hannanlent support to the appellant.
In cross examination it was elicited from him that although he had occasion to see the distribution of other pamphlets, he could give no details thereof i.e. either about the person who distributed them or the dates when that was done.
In cross examination of this witness serious accusations were made against his character and probably no exception could have been taken if the Judge hearing the matter had refused to believe him.
However that may be, the learned Judge accepted his testimony and came to the conclusion that the appellant had been personally responsible for the distribution of the first pamphlet and as such found him guilty of a corrupt practice and made an order disqualifying him under the Act from taking part in municipal elections for the next.five years.
It was strenuously argued by learned counsel for the appellant that the recepition of evidence of the two witnesses called as court witnesses vitiated the whole trial and therefore the High Court was not right in refusing to quash the order.
Our attention was drawn to the provisions of O. XVI r. 14 of the Code of Civil Procedure and particularly to the conditions under which the court may examine any person other than a party to the suit and not called as a witness by a party to the suit but of its own motion to give evidence therein.
It was argued that after having turned down the application of the election petitioner on the 21st August for issue of summons to these two persons, the learned Judge clearly went wrong in allowing them to be called as court witnesses.
In this connection we. may note the provisions of section 21 sub section 7 of the Maharashtra Municipalities Act, 1965.
It provides as follows (7) For the trial of such petition, the Judge shallhave all the powers of a civil court including power in respect of the following matters : (a) discovery and inspection; 972 (b) enforcing the attendance of witnesses and requiring the deposit of their expenses; (c) compelling the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence on affidavit; and (g) issuing commissions for the examination of witnesses; and the Judge may summon suo motu any person whose evidence appears to him to be material.
The Judge shall be deemed to be a Civil Court, within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898.
" It appears that under this section, the Judge is given powers wider than those given by the Code of Civil Procedure under 0.
16 r. 14 inasmuch as the section does not prescribe any prerequisite to the examination of a person as court witness as envisaged by the Code of Civil Procedure.
In our view, the learned Judge had jurisdiction to call these two persons as witnesses under the provisions of the Act.
We may note that even under the Representation of the People Act, 1951 which does not contain a similar provision it has been held by this Court that "although. . the trial court should be at arms length and the court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved.
If the Court was satisfied that a corrupt practice has in fact been perpetrated, may be by one side or the other, it was absolutely necessary to find out who was the author of that corrupt practice." (see R. M. Seshadri vs G. Vasanta Pai(1).
In that case, the corrupt practice with which the appellant was charged was having used a large number of motor vehicles for the free conveyance of voters at an election.
The trial Judge examined two witnesses as court witnesses and it is quite clear that but for the evidence of these two persons, it would have been very difficult.
if not impossible, for the Judge to have come to the conclusion he did and find the appellant guilty of corrupt practice.
Although one of the two witnesses so examined had been cited earlier as a witness by one of the parties, he was not (1) ; 973 examined but during the course of the evidence led before the rial court, it became quite clear that the two persons who were called as court witnesses were fully conversant with the engagement of the motor vehicles and the court therefore examined them as court witnesses and on the basis of their evidence, found the appellant guilty of a corrupt practice.
There, this Court had to deal with the provisions of 0.
16 r. 14 and the quotation from that judgment shows that the powers of the court in this respect are of wide amplitude, specially when investigation is being made into allegations about the commission of a corrupt practice.
It may be that in the instant case, if the two persons had not been examined, the Judge might well have decided the issue the other way.
But the Act certainly gave him the power to do so and no exception can be taken to the course adopted by the Judge although it must be recorded that his earlier order refusing to issue summonses to them in the first instance when asked to do so on the 21st August was hardly justifiable.
Probably the learned Judge realised that his order of the 21st August needed recalling.
The appellant would have had a real cause for grievance if he had asked for an opportunity to rebut the evidence of these two witnesses and had been denied the same but this has nowhere been alleged.
On the evidence no exception can be taken to the course adopted by the Judge in deciding the issue against the appellant on the facts and circumstances of this case.
It may be that the evidence which was adduced was not so immaculate that another learned Judge deciding the petition might not have taken a different view.
But it cannot be said that there was no evidence on which the Judge could have come to the conclusion he did, The first point therefore fails.
With regard to the second point, the learned counsel argued by reference to two publications in the Maharashtra Gazette, the one of June 8, 1967 and the other of June 15, 1967 that the first publication having taken place on the 8th June the time limit of ten days fixed under section 21 sub section
(1) of the Act began to run from that date and the petition which was filed on the 24th June was beyond time and should not have been entertained.
It is difficult for us to see why two ' Gazette notifications had become necessary.
One seems to be the verbatim reprint of the other.
The first publication dated 8th June is headed "Maharashtra Government Gazette Extraordinary Official Publication" while the other is headed "Maharashtra Government Gazette Official Publication".
The first bears the date 8th June and the second bears the date 15th June and both start with the sentence "in accordance with section 19(1) of the Maharashtra Municipalities Act, 1965 it is declared that in respect of the Sangh Municipal Council General Elections held on 3rd June 1967, the below mentioned candidates are elected from.
the below mentioned 974 wards for the seats mentioned as against their names".
As a matter of fact, it does not appear that there is any difference between the two Gazettes with regard to the names of the successful councillors.
The appellant might have, if so minded, set up the first Gazette publication as the one fixing the period of limitation in which case the trial Judge would have been required to go into the matter.
But the appellant precluded himself from doing so by his unconditional acceptance of the statements in paragrapbs 1 and 2 of the petition.
If the point had been canvassed before the learned trial Judge, he would certainly have gone into the matter and found out why there were two Gazette Publications and which was the publication to be taken into account for computation of the period of limitation prescribed by section 21 (1) of the Act.
There was no error apparent on the face of the record before the High Court and consequently the jurisdiction under article 226 of the Constitution could not have been exercised on the facts of the case by the issue of a writ of certiorari.
Neither could the High Court have set aside the order of the trial court under article 227 of the Constitution under which the High Court 's power of superintendence is confined to seeing that the trial court had not transgressed the limits imposed by the Act.
On the facts of the case the High Court was not called upon to go into this question.
There is certainly some substance in the grievance raised on behalf of the appellant that the first issue was rather confusing and misleading.
Instead of framing a separate issue with regard to each charge of corrupt practice raised in the petition, the learned Judge, framed the issue in a manner which leaves much to be desired.
For instance he should have framed separate issue with regard to each of the pamphlets.
The issues should further have specified the different heads of corrupt practice committed in respect of each of the pamphlets.
We cannot, however, come to the conclusion that because of the unsatisfactory nature of the issues framed, the whole trial is vitiated.
The appellant knew exactly what points he had to meet.
Evidence was adduced about the publication and distribution of the pamphlets by the election petitioner and contradicted by the appellant.
As we have already stated, although the evidence about the distribution of the pamphlet was meagre and not beyond reproach it was not for the High Court to take the view that the order ought to be quashed on the ground that there was no evidence.
It was urged by learned counsel for the appellant that there was enough material for the court to come to the conclusion that Hakim Abdul Rahiman Shaik was not a person whose veracity could not be depended upon.
There is much that can be said against him but this does not mean that everything deposed to by him should be rejected and when the trial Judge accepted the evidence with regard to the distribution of the pamphlet by the appellant the High Court 975 which was not hearing an appeal could not be expected to take a different view in exercising jurisdiction under articles 226 and 227 of the Constitution and for ourselves, we see no reason to interfere with the order of the High Court.
The fourth point too is not one of substance.
If the distribution of the pamphlet be accepted, there can be no doubt that the appellant was guilty of trying to arouse religious sentiments of the voters of the particular ward a majority of whom were Muslims.
The pamphlet starts off by describing the election petitioner as a person ostracised from the Muslim community.
If this statement was true, naturally any right thinking Muslim would think twice before casting his vote in favour of such a person.
There was also a charge in that pamphlet that he had turned the Kabarasthan into a brothel and was trading in illicit liquor for which was alleged to have been convicted.
In our view, there is no merit in this point raised by the learned counsel.
As regards the last point, it was for the learned Judge to have come to his own conclusion as to the period of disqualification.
The maximum penalty which the Act allowed him to impose was disqualification for six years and we see no reason to take any exception to the disqualification actually imposed.
As noted above, the allegations of corrupt practice were of a serious nature and if the appellant was found guilty of the commission thereof, the period of five years ' disqualification would certainly not be inappropriate.
In the result, therefore, the appeal fails; but in the circumstances of this case, we make no order as to costs.
R.K.P.S. Appeal dismissed.

summary/full:
The first respondent challenged the appellant 's election to the Sangli City Municipality held in June 1967 under the Maharashtra Municipalities Act, 1965.
It was alleged that the respondent had published and circulated pamphlets containing defamatory statements against the respondent and in particular instigating Muslim ' voters to vote against him by arousing their religious sentiments.
At the trial of the petition the respondents applied to have two witnesses examined but the Trial Judge rejected the application, Later, however, the same two witnesses were called by the trial judge as court witnesses.
The Trial Court allowed the petition and disqualified the appellant from being a member of a Municipality for five years.
A petition under articles 226 and 227 of the Constitution by the appellant was rejected in limine by the High Court.
In appeal to this Court it was contended inter alia by the appellant (i) that the trial court was wrong in calling as court witnesses the same two witnesses who had been cited as the respondent 's witnesses and having earlier rejected the respondent 's application to call them; (ii) on the evidence the trial court 's finding was not justifiable; (iii) that the result of the election was published in the Gazette on the 8th June as well as 151th June but the limitation of 10 days ran from 8th June and the petition was therefore time barred; (iv) the first issue which was decided against the appellant was confusing and misleading whereby the appellant had been denied a fair trial; (v) the order of the Judge disqualifying the appellant for a period of five years was unduly harsh.
HELD: Dismissing the appeal : (i) Although the trial court 's earlier order refusing to issue summons to the two witnesses was not justifiable, ' under section 21(7) of the Maharashtra Municipalities Act, 1965, the Trial Judge is given powers wider than those given by the Code of Civil Procedure under Order 16, Rule 14, as the section does not prescribe any pre requisite to the examination of a person as a court witness as envisaged by the Code of Civil Procedure.
The trial Judge therefore had jurisdiction to call the two persons as witnesses under the provisions of the Act.
[972 D] R. M. Seshadri vs G. Vasanta Pai, ; , referred to.
(ii) On the evidence, no exception could be taken to the trial Judge deciding the issue against the appellant on the facts and circumstances of the case.
It could not be said that there was no evidence on which the Judge could have come to that conclusion.
When the trial Judge accepted 967 the evidence with regard to the distribution of the pamphlets by the appellant, the High Court, which was not hearing an appeal, could not be expected to take a different view in exercising jurisdiction under articles 226 and 227 of the Constitution and there was no reason shown to this Court to interfere with the order of the High Court.
[975 A] (iii) The appellant could have set up the first Gazette publication as the one fixing the period of limitation in which case the trial.
Judge would have been required to go into the matter.
But the appellant had precluded himself from doing so by his unconditional acceptance of the statement in the petition that the result was published on 15th June.
There was no error apparent on the face of the record before the High Court and consequently he jurisdiction under article 226 of the Constitution could not have been exercised on the facts of the case by the issue of a writ of certiorari.
Neither could the High Court set aside the order of the trial court under article 227 of the Constitution under which the High Court 's power of superintendence is confined to seeing that the trial court had not transgressed the limits imposed by the Act.
On the facts of the case the High Court was not called upon to go into this question.
[974 C D] (iv) It could not be concluded that because of the want of preciseness in the issues framed the whole trial was vitiated.
The appellant knew the points he had to meet.
Although the evidence about the disribution of the pamphlets was not beyond reproach, it was not for the High Court to take the view that the order ought to be quashed on the ground that there was no evidence.
[974 F] (v) The allegations of corrupt practices against the appellant were of a serious nature and if be was found guilty, the period of five years ' disqualification could not be considered inappropriate.