The Dutch government on Friday approved a ban on face-covering clothing, burqa, a niqab, a forage cap, or a full face helmet

The Hague: The Dutch government on Friday approved a ban on face-covering clothing, such as a burqa, a niqab, a forage cap, or a full face helmet, reported Xinhua.
People going on the streets with one of these now risk being fined for up to $499.
“It is very important that people in an open society meet each other in an open way,” minister of interior affairs Liesbeth Spies said.
The burqa ban was already part of the government coalition agreement. In September 2011, the proposal was sent for advice to the council of state, which issued a negative opinion.
The council considered the proposal contrary to the prohibition of freedom of religion and contrary to the standards of non-discrimination. The government’s main advisory body also wondered whether a burqa ban was too heavy a measure. IANS

WEST U.P. SUGAR MILLS ASSOCIATION & ORS.V/s.STATE OF UTTAR PRADESH & ORS.-Civil Appeal No. 7509-7510 of 2005-January 17, 2012

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7508 OF 2005

WEST U.P. SUGAR MILLS ASSOCIATION & ORS. ...Appellants

Versus

STATE OF UTTAR PRADESH & ORS. ...Respondents

WITH  Civil Appeal No. 7509-7510 of 2005

[BASTI SUGAR MILLS CO. LTD. V. STATE OF U.P. & ORS.]

Civil Appeal No. 150 of 2007

[WEST U.P. SUGAR MILLS ASSN. & ORS. V. STATE OF U.P. &ORS.]

Civil Appeal No. 2664 of 2007

[BAJAJ HINDUSTAN LTD. V. STATE OF U.P. & ORS.]

Civil Appeal No. 4026 of 2009

[KISAN MAZDOOR SANGATHAN V. BASTI SUGAR MILLS CO.LTD. & ORS.]

Civil Appeal No. 4024 of 2009

[COOP. CANE DEVT. UNION LTD. V. BASTI SUGAR MILLS CO. LTD. & ORS.]

Civil Appeal No. 4025 of 2009

[SHAHKARI GANNA VIKAS SAMITI LIMITED V. BASTI SUGAR MILLS CO.LTD. & ORS.]

Civil Appeal Nos. 4014-4023 of 2009

[STATE OF U.P. & ANR. V. BASTI SGUAR MILLS CO. LTD. &ORS.]

Contempt Petition (C) No. 169 of 2006 in C.A. No.7508/2005

[STATE OF U.P. & ANR. V. S.K. KANORIA & ORS.]

Contempt Petition (C) No.253 of 2007 in C.A. No.7508/2005

[U.P. CANE UNION FEDERATION LTD. V. S.K. KANORIA &ANR.]

Contempt Petition (C) No. 254 of 2007 in C.A. No.7508/2005

[U.P. CANE UNION FEDERATION LTD. V. SATYAJEET SINGH MAJITHIA & ANR.]

Civil Appeal Nos. 3911-3912 of 2009

[TIKAULA SUGAR MILLS LTD. & ORS. V. STATE OF U.P. &ORS.]

Civil Appeal No. 3925 of 2009

[BAJA HINDUSTHAN LTD. & ANR. V. STATE OF U.P. & ORS.]

Civil Appeal Nos. 3996-3997 of 2009

[M/S UTTAM SUGAR MILLS LTD. & ORS. V. STATE OF UTTARKHAND & ORS.]

Contempt Petition (C) Nos.263-264 of 2008 in C.A. Nos.3996-3997/2009

[COOP. CANE DEV. UNION, UTTARAKHAND V. RAJ KUMAR ADLAKHA & ANR.]

Contempt Petition (C) Nos.265-266 of 2008 in C.A. Nos.3996-3997/2009

[[COOP. CANE DEV. UNION. UTTARAKHAND V. MANMOHAN SHARMA]

Contempt Petition (C) Nos.267-268 of 2008 in C.A. Nos.3996-3997/2009

[COOP. CANE DEV. UNION, HARIDWAR, UTTARAKHAND V S.M. MITTAL & ANR.]

Civil Appeal No. 4764 of 2009

[WEST U.P. SUGAR MILLS ASSN. & ORS. V. STATE OF U.P. & ORS. SLP(C) NO. 21576-21581 of 2008

[U.P. CO-OPERATIVE CANE UNION FEDERATION V. BASTI SUGAR MILLS CO. LTD. & ORS.] SLP(C) NO. 21585-21587 of 2008

[STATE OF U.P. & ANR. V. BASTI SUGAR MILLS CO. LTD. &ORS.] SLP(C) NO. 18681 of 2008

[[EAST U.P. SUGAR MILLS ASSOCIATION & ORS. V. STATE OF U.P. & ORS.]

SLP(C) NO. 19183 of 2008

[M/S. MAWANA SUGARS LTD. V. STATE OF U.P. & ORS.]

(With prayer for interim relief)

SLP(C) NO. 20205 of 2008

[MODI SUGAR MILLS & ANR. V. STATE OF U.P. & ORS.]

SLP(C) NO. 20206 of 2008

[M/S SBEC SUGAR LIMITED & ANR. V. STATE OF U.P. &ORS.]

SLP(C) NO. 23202 of 2008

[KISAN MAZDOOR SANGATHAN V. BASTI SUGAR MILLS CO.LTD. & ANR.]

SLP(C) NO. 26026 of 2008

[UTTAM SUGAR MILLS LIMITED & ANR. V. STATE OF UTTARKHAND & ORS.]

J U D G M E N T

Dalveer Bhandari, J.

1. The crucial issue involved in this group of matters is

whether the State of Uttar Pradesh has the authority to fix the

State Advised Price (for short, `SAP'), which is required to be

4

paid over and above the minimum price fixed by the Central

Government?

2. It is submitted by the appellants that the power to

regulate distribution, sale or purchase of cane under Section

16 of the U.P. Sugarcane (Regulation of Supply and Purchase)

Act, 1953 (hereinafter referred to as the `U.P. Sugarcane Act')

does not include the power to fix a price. According to the

appellants, this aspect has been comprehensively dealt with

by the Constitution Bench judgment of this court in Ch. Tika

Ramji and others etc. v. State of Uttar Pradesh and

others (1956) SCR 393. In this case this Court enumerated

the legislative history of laws relating to sugar and sugarcane

of both Centre and States. This Court came to the specific

conclusion that the power reserved to the State Government to

fix the minimum price of sugarcane which existed in U.P. Act

1 of 1938 was deleted from the U.P. Sugarcane Act since that

power was being exercised by the Centre under Clause 3 of the

Sugar and Gur Control Order, 1950. The relevant paragraphs

from pages 422, 433 and 434 of the Tika Ramji's case are

reproduced as under:

5

"... ... ...Even the power reserved to the State

Government to fix minimum prices of sugarcane

under Chapter V of U.P. Act I of 1938 was deleted

from the impugned Act the same being exercised by

the Centre under clause 3 of Sugar and Gur Control

Order, 1950, issued by it in exercise of the powers

conferred under Section 3 of Act XXIV of 1946. The

prices fixed by the Centre were adopted by the State

Government required under rule 94 was that the

occupier of a factory or the purchasing agent should

cause to be put up at each purchasing centre a notice

showing the minimum price of cane fixed by the

Government meaning thereby the Centre. The State

Government also incorporated these prices which

were notified by the Centre from time to time in the

forms of the agreements which were to be entered

between the cane growers, the cane growers

cooperative societies... ... ..."

... ... ... ...

"... ... ...As we have noted above, the U.P. State

Government did not at all provide for the fixation of

minimum prices for sugarcane nor did it provide for

the regulation of movement of sugarcane as was

done by the Central Government in clauses (3) and

(4) of the Sugarcane Control Order, 1955. The

impugned Act did not make any provision for the

same and the only provision in regard to the price of

sugarcane which was to be found in the U.P.

Sugarcane Rules, 1954, was contained in Rule 94

which provided that a notice of suitable size in clear

bold lines showing the minimum price of cane fixed

by the Government and the rates at which the cane

is being purchased by the centre was to be put up by

an occupier of a factory or the purchasing agent as

the case may be at each purchasing centre. The

price of cane fixed by Government here only meant

the price fixed by the appropriate Government which

would be the Central Government, under clause 3 of

the Sugarcane Control Order, 1955, because in fact

6

the U.P. State Government never fixed the price of

sugarcane to be purchased by the factories. Even

the provisions in behalf of the agreements contained

in clauses 3 and 4 of the U.P. Sugarcane Regulation

of Supply and Purchase Order, 1954, provided that

the price was to be the minimum price to be notified

by the Government subject to such deductions, if

any, as may be notified by the Government from time

to time meaning thereby the Central Government, the

State Government not having made any provision in

that behalf at any time whatever. ... ... ..."

3. It has been specifically held in Tika Ramji's case that

there was no power to fix a price for sugarcane under the U.P.

Sugarcane Act or rules and orders made thereunder.

4. It is also submitted by the appellants that even if such a

power had existed under Section 16 of the U.P. Sugarcane Act,

even then such power would be totally repugnant to the power

of the Central Government to fix the minimum price under

clause 3 of the Sugarcane Control Order, 1955. This Court in

Tika Ramji's case has not commented on whether such a

power with the State Government would be repugnant to the

Central legislation, since it found no such power with the

State Government, however, the majority judgment in the later

Constitution Bench judgment of 2004 in U.P. Cooperative

7

Cane Unions Federations v. West U.P. Sugar Mills

Association and others (2004) 5 SCC 430 held as under:

"The inconsistency or repugnancy will arise if the

State Government fixed a price which is lower than

that fixed by the Central Government. But, if the

price fixed by the State Government is higher than

that fixed by the Central Government, there will be

no occasion for any inconsistency or repugnancy as

it is possible for both the orders to operate

simultaneously and to comply with both of them. A

higher price fixed by the State Government would

automatically comply with the provisions of sub

clause (2) of clause 3 of the 1966 Order. Therefore,

any price fixed by the State Government which is

higher than that fixed by the Central Government

cannot lead to any kind of repugnancy."

5. According to the appellants, the aforementioned

conclusion of the U.P. Cooperative Cane Unions

Federations is contrary to Tika Ramji's case.

6. We have heard learned counsel for the parties at length.

We have also carefully perused and analysed both the

aforementioned judgments delivered by the two Constitution

Benches of this Court in Tika Ramji and U.P. Cooperative

Cane Unions Federations's cases.

7. In our considered view, there is a clear conflict in the

aforementioned judgments of the Constitution Benches. It

8

may be pertinent to mention that almost every year a spate of

petitions are filed before the Allahabad High Court and

thereafter before this Court on similar issues and questions of

law. Therefore, in the interest of justice, it is imperative that

the conflict between these judgments be resolved or decided by

an authoritative judgment of a larger Bench of this Court.

8. The learned counsel for the appellants in one voice

asserted that these cases be referred to a larger Bench so that

at least in future the parties would have benefit of a clearer

enunciation of law by an authoritative judgment of a larger

Bench.

9. Following questions of law may be considered by a larger

Bench of this Court:

1) Whether by virtue of Article 246 read with

Entry 33 of List III to the Seventh Schedule of

the Constitution the field is occupied by the

Central legislation and hence the Central

Government has the exclusive power to fix the

price of sugarcane?

9

2) Whether Section 16 or any other provision of

the U.P. Sugarcane (Regulation of Supply and

Purchase) Act, 1953 confers any power upon

the State Government to fix the price at which

sugarcane can be bought or sold?

3) If the answer to this question is in the

affirmative, then whether Section 16 or the

said provision of the U.P. Sugarcane

(Regulation of Supply and Purchase) Act, 1953

is repugnant to Section 3(2)(c) of the Essential

Commodities Act, 1955 and Clause 3 of the

Sugarcane (Control) Order, 1966? and if so,

the provisions of the Central enactments will

prevail over the provisions of the State

enactment and the State enactment to that

extent would be void under Article 254 of the

Constitution of India.

4) Whether the SAP fixed by the State

Government in exercise of powers under

Section 16 of the U.P. Sugarcane (Regulation

1

of Supply and Purchase) Act, 1953 is arbitrary,

without any application of mind or rational

basis and is therefore, invalid and illegal?

5) Does the State Advisory Price (for short `SAP')

constitute a statutory fixation of price? If so, is

it within the legislative competence for the

State?

6) Whether the power to fix the price of

sugarcane is without any guidelines and

suffers from conferment of arbitrary and

uncanalised power which is violative of Articles

14 and 19 (1) (g) of the Constitution of India?

10. We are conscious of the fact that ordinarily a Bench of

three Judges should refer the matter to a Bench of five

Judges, but, in the instant case since both the aforementioned

conflicting judgments have been delivered by the Constitution

Benches of five Judges of this Court and hence this

controversy can be finally resolved only by a larger Bench of at

least seven Judges of this Court.

1

11. Recently, a three-Judge Bench of this court in Mineral

Area Development Authority and others v. Steel Authority

of India and others (2011) 4 SCC 450 dealt with somewhat

similar situation and this Court in para 2 of the said judgment

observed as under:

"Before concluding, we may clarify that normally the

Bench of five learned Judges in case of doubt has to

invite the attention of the Chief Justice and request

for the matter being placed for hearing before a

Bench of larger coram than the Bench whose

decision has come up for consideration (see Central

Board of Dawoodi Bohra Community v. State of

Maharashtra (2005) 2 SCC 673). However, in the

present case, since prima facie there appears to be

some conflict between the decision of this Court in

State of W.B. v. Kesoram Industries Ltd. (2004)

10 SCC 201 which decision has been delivered by a

Bench of five Judges of this Court and the decision

delivered by a seven-Judge Bench of this Court in

India Cement Ltd. v. State of T.N. (1990) 1 SCC

12, reference to the Bench of nine Judges is

requested. The office is directed to place the matter

on the administrative side before the Chief Justice

for appropriate orders."

12. Reference of these matters to a larger Bench is made so

that the controversy which arises almost every year is settled

by an authoritative judgment of a larger Bench of this Court.

13. However, in the peculiar facts and circumstances of these

cases, we direct the sugar factories to pay the balance

1

outstanding principal amount to the cane growers or to the

cooperative societies according to the SAP of the relevant

crushing seasons. In other words, in all those cases where the

sugar factories and other buyers have not paid the balance

outstanding principal amount to the cane growers or to the

cooperative societies because of the stay orders obtained by

them from this Court or from the High Court, they are now

directed to pay the balance outstanding principal amount

according to the SAP as fixed by the State Government from

time to time. All the stay orders granted by this court or by

the High Court are modified/vacated in the aforesaid terms.

Let the balance outstanding principal amount be paid by the

sugar factories within three months from the date of this

judgment.

14. In case the balance outstanding principal amount, as

directed by this Court, is not paid within three months from

the date of this judgment then the sugar factories/buyers

would be liable to pay interest at the rate of 18% per annum

on the delayed payment to the cane growers or to the

cooperative societies, as the case may be.

1

15. It is made clear that the payment of the balance

outstanding principal amount by the sugar factories is of

course without prejudice to the main submissions advanced

by them (sugar factories) that the State Government lack

legislative competence to impose the SAP.

16. It may be pertinent to mention that all these cases are

covered by separate individual agreements where the sugar

factories had undertaken to pay the SAP to the cane growers.

We are not examining the veracity of these agreements.

17. It may be relevant to note that the SAP has been

continuously increasing every year. In all those cases, where

for any reason, the SAP was not fixed in a particular year,

then, the sugar factories/buyers would be liable to pay the

balance outstanding principal amount to the cane growers at

the rate of the SAP of the previous year. On consideration of

all the facts and circumstances of these cases, we request

Hon'ble the Chief Justice of India to refer these matters to a

larger Bench, preferably to a Bench consisting of seven

Judges.

1

18. All these Civil Appeals and other petitions are accordingly

referred to a larger Bench.

...............................J.

(Dalveer Bhandari)

..............................J.

(T.S. Thakur)

..............................J.

(Dipak Misra)

New Delhi;

January 17, 2012

ACHYUTANAND CHOUDHARY (D) THR. LRS. v. LUXMAN MAHTO & ORS. [2012] INSC 7 (6 January 2012)

Judgement

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL ) NO. 8225 OF 2003

ACHYUTANAND CHOUDHARY

Versus

LUXMAN MAHTO & ORS

O R D E R

CHELAMESWAR, J.

1. The maintainability of a Civil Suit filed by the respondents being titled suit No. 34 of 1996 filed in the Court of Subordinate Judge, Bhagalpur is the question raised in the Special Leave Petition. The suit is filed with the following prayer:- " That the plaintiffs pray for the following reliefs:

(A) The court be pleased to hold and declare that the plaintiffs are the bonafide owners of the suit property having acquired Kayami right (right of occupancy) at the time of last cadastral survey and the entry of the suit property in the Khaitiayan of the defendant is wrong and illegal and result of collusion of survey amlas and did/does not confer any right to the defendant at any material time and the same is not binding upon the plaintiffs.

(B) The court be further pleased to restrain the defendant from dispossessing the plaintiffs from the suit property or from disposing of the suit property by passing an order of the temporary injunction till the disposal of the suit.

2 (C) The cost of the suit be awarded to the plaintiff. "

2. For the sake of convenience the parties are referred to as they are arrayed in the suit.

3. The plaintiffs claim that the Suit Scheduled Property admeasuring 7.29 acres is owned by them and their ancestors and they have been in an uninterrupted possession of the same for the period of about 100 years. The instant suit is filed with the allegation that the defendants (petitioners herein), threatened to dispossess them (plaintiffs) on the ground that the Suit Scheduled Property has been recorded in the name of the defendant in the Consolidation Survey. The Relevant portion of the plaint reads as follows:- "That on 26.11.1995 for the first time the defendant came to the plaintiffs and disclosed that an area on 7.29 acres of land of the family of the plaintiffs have been recorded in the name of the defendant during consolidation survey for which P.S. Plot No. 793 area 5.97 and P.S. Plot No.755 area 1.32 have been made and land P.S. Khata No.4 the above two plots have been included along with other land of defendant so on such knowledge, the plaintiff sent a messenger to Bhagalpur for taking certified copy of Khatiyan of consolidation survey and when the copy of said Khatiyan was delivered to the messenger of the plaintiff on 2.12.1995 the above information of defendant was found to be correct on perusal of certified copy of Khatian aforesaid."

4. The instant Special Leave Petition is filed urging various questions of law regarding the maintainability of the suit in the light of Sections 3 37 and 15 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. (hereinafter referred to as "the Act").

5. From the counter affidavit filed on behalf of the first respondent in the instant Special Leave Petition, it appears that after the trial of the suit commenced and two witnesses were examined on behalf of the plaintiffs, a petition was filed praying to determine the preliminary issue. The relevant portion of the counter affidavit reads as follows:- "That during the pendency of the suit aforesaid when the case was opened for trial and evidences on behalf of the respondents were started and two witnesses were examined, thereafter for the purpose of delaying the disposal of the suit, the petitioner filed a petition dated 11.9.2002 praying therein to determine preliminary issue on two questions namely, (1) the certificate of final Khatiyan of consolidation survey is a conclusive proof and for want of notice under section 80 C.P.C., the present suit cannot proceed which was replied by these respondents on 12.9.2002."

6. The learned sub-judge, Bhagalpur by his order dated 26.09.2002 rejected the said petition. Aggrieved by the same, the defendant carried the matter by way of a revision to the High Court of Patna.

7. The High Court dismissed the Revision by its order dated 14.1.2003 and hence the instant Special Leave Petition.

8. Unfortunately the defendants did not chose to place on record either the written statement filed by them in suit No. 34 of 1996 nor a copy of the application dated 11.9.2002 referred (supra). In order to 4 enable this Court to understand the exact scope of the defence and also the preliminary objections raised in the above-mentioned petition. Neither the order of the Trial Court dated 26.9.2002 nor the order of the High Court dated 14.1.2003 throw any light on the question.

9. However, in the instant Special Leave Petition, the submission made is that the suit is barred in view of Sections 15 and 37 of the Act.

10. From a perusal of the order of the trial court dated 26.09.2002, it appears that the objection raised is that in view of the declaration under Section 15 of the Act, the certificate issued under Section 15 is conclusive proof of the title of the holder of the certificate, and, therefore, the suit is not maintainable. It does not appear from the above-mentioned order that any specific objection on the basis of the bar contained under Section 37 of the act was pleaded.

11. In our opinion, the statutory declaration that a particular document is conclusive proof of a particular fact or legal right by itself, does not oust the jurisdiction of the Civil Courts. The effect of such a statutory declaration is that in any enquiry regarding the existence of such fact or a legal right, Courts/Tribunals are forbidden from entertaining any further evidence on such an issue the moment the document which is declared to be conclusive proof of such fact/legal rights is produced before the Court or Tribunal conducting 5 such an enquiry. The ouster of the jurisdiction is altogether a different matter.

12. The learned senior counsel Shri S.B. Sanyal, argued that the suit which is a subject matter of discussion is barred in view of the express language of Section 37 of the Act. He also relied upon the Kishori Raman Singh & Ors., 1985 PLJR 86 in an attempt to support is submission that the suit is barred under Section 37 of the Act.

13. On the other hand learned counsel for the respondents Shri A.N. Choudhry relied upon a full Bench decision of the Patna High Court reported in 1990 (1) BLJR 51, Kalika Kaur alias Kalika Singh is maintainable.

14. For an appreciation of the issue on hand, an examination of the scheme of the Act and relevant provisions is necessary.

15. The Act is virtually a sequel to the Abolition of Zamindaries in the State of Bihar. The purpose behind the Act is the consolidation of the small holdings and prevention of the fragmentation of the small pieces of land held by the raiyats. The expression `fragmentation' and `holding' and `raiyat' are defined under the Act. Section 3 of the Act 6 authorises the State Government to declare an intention to make a scheme for consolidation of holdings in any area by notification in the official gazette.

16. Section 4 declares that on the publication of such notification certain consequences enumerated therein would ensue. One of them being the "abatement" of all suits or legal proceedings for the correction of records, declaration of rights or interest in any land etc. covered by the notification. Such abatement is subject, of course, to certain conditions. The details of such are not necessary for the present purpose.

17. Section 8 of the Act stipulates that after publication of the notification under Section 3, an up to date record of rights shall be prepared in accordance with the various enactments specified therein. Section 8, in so far as it is relevant for the present purpose reads:-

8. Preparation of up-to-date record of-rights before consolidation.--(1) Save as provided in sub- section (2) as soon as may be after the publication of a notification under section 3, an up-to-date record of-rights, in respect of all lands comprised in the notified area, together with a map shall be prepared in accordance with the provisions of Chapter X of the Bihar Tenancy Act, 1885 (Act VIII of 1885), or as the case may be, Chapter XII of the Chota Nagpur Tenancy Act, 1908 (Ben. Act VI of 1908) or the Santhal Parganas Settlement Regulation, 1872 (Regulation III of 1872: [or the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 (Bihar Act 28 of 1975]:

7

18. On the preparation of such record-of-rights, the various steps contemplated in the subsequent provisions of the Act are required to be taken. The details of which are not necessary for the purpose of this case except to note that Section 11 contemplates the preparation of draft scheme. To indicate the nature of the draft scheme, we may extract Section 11 in so far as it is relevant. "11. Preparation of draft scheme-- Xxx xxx xxx (2) The Village Advisory Committee and the Assistant Consolidation Officer shall in preparation of a scheme of consolidation, keep the following factors in view, namely-- Xxx xxx xxx xxx (d) every raiyat is, as far as possible allotted a compact area of the plots where he holds the largest part of his holdings;

Provided that no raiyat may be allotted more chaks than three except with the approval in writing of the Deputy Director of Consolidation."

(e) every raiyat is, as far as possible allotted the plot on which exists his private source of irrigation or any other improvement, together with an area in the vicinity equal to the valuation of the plots originally held by him;

(f) every raiyat is, as far as possible, allotted chaks in conformity with the process of rectangulation in rectangular units; and (g) subject to rules made in this behalf by the State Government, the lands held by an under raiyat is consolidated:

Provided that the land allotted under the scheme to an under raiyat in lieu of any land held by him before the confirmation of the scheme shall form part of the new holding allotted under the scheme to the raiyat under whom the under raiyat originally held the land.

8 Section 13 prescribes that the draft scheme is required to be confirmed after considering the objections, if any, raised against such draft scheme. The section further mandates that the relevant extracts of the Consolidation scheme shall be granted to the concerned raiyat and declares that such extracts shall be the final allotment orders.

19. Section 15 contemplates the grant of a certificate:- 15(1) The Consolidation Officer shall grant to every raiyat to whom a holding has been allotted in pursuance of a scheme of consolidation a certificate in the prescribed form containing the prescribed particulars. Such certificate shall be conclusive proof of the title of such raiyat to such holding and he shall be liable for payment of such rent as may be specified in the certificate."

Section 35 provides for a revision etc. to the Director of Consolidation against any case decided or proceedings taken under the provisions of the Act by any authority subordinate to him. The only other provision which is relevant for the present purpose is Section 37 which reads as follows:- "37. Bar of jurisdiction of Civil Courts.--No Civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act."

20. In substance, under the said Section, the jurisdiction of the ordinary Civil Courts to entertain any suit, application either to stay or set aside any decision given or any order passed under the Act or 9 with respect to any matter for which a proceeding ought to have been taken is ousted.

21. In the background of the scheme of the Act, the question before us is the maintainability of Civil Suit filed by the respondent out of which the instant special leave petition arises.

22. Learned counsel for the defendant/petitioner relied upon the judgment in Ram Krit Singh (supra) and Sheoratan Chamar (supra) in support of the submission that the suit is not maintainable. In our opinion, neither of the judgments support the submission made by the learned counsel for the petitioner. In Ram Krit Singh (supra), a Full Bench of the Patna High Court was dealing with the effect of Section 4 of the Act on pending Civil Suits. We have already noticed that Section 4 declares that all pending suits with respect to the lands in the notified area shall abate. It was a case where the petitioners before the Patna High Court filed a suit in the year 1966 questioning certain alienation made by the first defendant in the suit in favour of the second defendant. While the suit was pending trial, a notification under Section 3 of the Act came to be issued. Therefore, the defendant raised preliminary objections that in view of the declaration under Section 4 of the Act, the suit had abated. The trial Court accepted the preliminary objection. Challenging the said decision of the trial Court and also the constitutionality of Section 4, 12A and 37 of the Act, the 10 plaintiffs thereon approached the High Court on the ground that those provisions violated Article 14 of the Constitution of India.

23. The Full Bench did not examine the scope of the content of Section 37. It was not necessary for the Full Bench to examine the question because the limited issue which fell for the consideration of the Full Bench on the facts of the case was the effect and constitutionality of Section 4 of the Act.

Ram Murat Singh alias Kishori Raman Singh & Ors., 1985 PLJR 86 (Full Bench). In this case also the High Court was concerned with the effect of Section 4 on the pending suit on the date, the Notification under Section 3 of the Act was issued.

25. The scope of section 37 did not fall for consideration of the Full Bench.

26. On the other hand, the learned counsel for the respondent Bihar and Ors. reported in 1990 (1) BLJR 51 (Full Bench) in support of his submission that the respondents suit is maintainable. We need not examine the content of the judgment of the High Court for the simple reason that the said judgment stood set aside by this Court in 11 Bihar and Ors., 2003 (5) SCC 448.

27. Therefore, the averment whether the instant suit is barred either under Section 15 or 37 of the Act is required to be examined. We have already held that Section 15 only embodies a rule of evidence and does not create any bar of the jurisdiction of the Civil Courts. No doubt Section 37 creates a bar to the jurisdiction of the Civil Courts to entertain any suit or application;

(a) to vary any decision or set aside any order given or passed under the Act;

(b) with respect to any mater for which a proceeding could or ought to have been taken under the Act.

28. From the material on record, it is not clear as to what exactly is the nature of the objection raised by the defendants to the maintainability of the suit. Whether the objection of the defendants to the maintainability of the suit is either under (a) or (b) mentioned above and what are the relevant facts are pleaded in support of the objection. It is also not possible to ascertain from the record whether the objection of the defendants is with rspect to both the prayers of the suit (extracted earlier) or otherwise. On the other hand, it appears that the trial of the suit is in progress. Therefore, we are of the opinion the extraordinary jurisdiction of this Court under Article 136 ought not to be exercised to interdict the suit. It is always open to the 12 defendants to seek the framing of an appropriate issue regarding the maintainability of the suit upon proper pleadings and invite a decision thereon.

29. The Special Leave Petition is, therefore, dismissed.

........................................J.

( P. SATHASIVAM) 

........................................J.

( J. CHELAMESWAR ) New Delhi;

January 06, 2012.

MUNAGALA YADAMMA v. STATE OF A.P. & ORS. [2012] INSC 9 (5 January 2012)

Judgement

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.67 OF 2012 [@ SLP(Crl) No(s).8114 of 2011]

MUNAGALA YADAMMA Appellant(s)

VERSUS

STATE OF A.P. & ORS. Respondent(s)

O R D E R

Leave granted.

2. The appellant's husband, Shri Munagala Anjaiah, son of Gandaian, resident of Ranga Reddy District in Andhra Pradesh, was served with a Detention Order dated 15th February, 2011, under Section 3(1) read with Section 2A and B of the Andhra Pradesh Prevention of Dangerous Activities of Boot Leggers Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986.

3. In the Detention Order, the Detaining Authority indicated that the detenue was a bootlegger within the meaning of Section 2(b) of the aforesaid Act and that recourse to Crl.A.67/12 2 normal legal procedure would involve more time and would not be an effective deterrent in preventing the detenue from indulging in further prejudicial activities.

4. It has been mentioned that the detenue was involved in several cases of violation of the provisions of Section 7A read with Section 8(C) of the Andhra Pradesh Prohibition Act, 1995, involving illicit distillation of liquor.

5. The Detention Order passed by the Collector and District Magistrate, Ranga Reddy District, was questioned by the wife of the detenue by way of WP No.13313 of 2011 before the Andhra Pradesh High Court, which dismissed the same on the ground that under the normal laws, it would be difficult to check the activities of the detenue and, accordingly, the order of detention was justified.

6. The order of the High Court has been challenged before us in this appeal.

7. On behalf of the appellant, it has been urged that the ground taken for issuance of the Detention Order was improper and not available in view of the reasoned judgment of this Secretary to Government and Anr., 2011(5)SCC 244, where a similar question had arisen and in paragraph 23 of the Crl.A.67/12 3 judgment, a three-Judge Bench of this Court was of the view that criminal cases were already going on against the detenue under various provisions of the Penal Code, 1860, as well as under the Drugs and Cosmetics Act, 1940, and that if he was found guilty, he would be convicted and given appropriate sentence. Their Lordships also indicated that in their opinion, the ordinary law of the land was sufficient to deal with the situation, and hence, recourse to the preventive detention law was illegal.

8. It has been submitted by Mr. Anil Kumar Tandale, learned advocate appearing for the appellant, that in the instant case also all the offences alleged to have been committed by the husband of the appellant, were under the provisions of the A.P. Prohibition Act, 1995, for which the normal law was sufficient to deal with the offence, if proved. He submitted that the Detaining Authority had wrongfully taken the easy way out and had resorted to an order of preventive detention in order to avoid having to investigate the cases filed against the appellant.

9. On behalf of the State of Andhra Pradesh, another decision of a two-Judge Bench of this Court in the case of Crl.A.67/12 4 [2011(10)SCALE 224], was brought to our notice, in which while referring to the three-Judge Bench decision in Rekha's case (supra) their Lordships were of the opinion that in view of the factual position and the enormous activities of the detenue, violating various provisions of the Indian Penal Code and the Andhra Pradesh Prohibition Act and Rules, continuous and habitual pursuing of the same type of offences damaging the wealth of the nation, the decision in Rekha's case (supra) was not applicable to the facts of the said case. Accordingly, the order passed by the Detaining Authority, as approved by the Division Bench and upheld by the High Court, did not require any interference.

10. Having considered the submissions made on behalf of the respective parties, we are unable to accept the submissions made on behalf of the State in view of the fact that the decision in Rekha's case (supra), in our view, clearly covers the facts of this case as well. The offences complained of against the appellant are of a nature which can be dealt with under the ordinary law of the land. Taking recourse to the provisions of preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution and sufficient grounds have to be made out Crl.A.67/12 5 by the detaining authorities to invoke such provisions. In fact, recently, in Criminal Appeal No.26 of 2012, Yumman Ongbi consider the same issue and the three-Judge Bench had held that the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws, as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order.

11. No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the Crl.A.67/12 6 ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenue may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Accordingly, while following the three-Judge Bench decision in Rekha's case (supra), we allow the appeal and set aside the order passed by the High Court dated 20th July, 2011, and also quash the Detention Order dated 15th February, 2011, issue by the Collector and District Magistrate, Ranga Reddy District, Andhra Pradesh.

12. This order should not in any way prejudice the outcome of the pending cases against the appellant.

........................J.

(ALTAMAS KABIR)

.........................J.

(SURINDER SINGH NIJJAR)

NEW DELHI;

Y. NAGARAJ v. JALAJAKSHI & ORS. [2012] INSC 6 (5 January 2012)

Judgement

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6714-6715 OF 2002

Y. Nagaraj ........Appellant 

Versus 

Smt. Jalajakshi and others .......Respondents 

G. S. Singhvi, J.

1. These appeals filed against judgment dated 22.2.1999 of the learned Single Judge of the Karnataka High Court represent culmination of the dispute among the heirs of Shri D. Yellappa, who died intestate on 27.03.1978, in relation to his properties.

2. Appellant, Y. Nagaraj, is the son of the deceased and respondent Nos.1 to 3 - Smt. Jalajakshi, Smt. Y. Susheela and 2 Smt. Y. Nirmalakumari are his daughters. They are governed by Mitakshara School of Hindu Law as also the provisions of the Hindu Succession Act, 1956 (for short, `the Act'), for the sake of convenience, they shall hereinafter be referred to with the same description.

3. Respondent No. 1 filed O.S. No. 286 of 1979 (renumbered as O.S. No. 4528 of 1980) impleading the appellant and respondent Nos. 2 and 3 as defendants for partition of the properties specified in Schedules `A' and `B' into four equal shares by metes and bound and for allotment of one share to her with absolute title and possession. She further prayed that the appellant be directed to give account of the income of the suit schedule properties with effect from 27.3.1978 and pay 1/4th share to her. In the alternative, she prayed that an inquiry be ordered under Order XXIX Rule 12 of the Code of Civil Procedure (for short, `the CPC') for determination of mesne profits. The schedules appended to the plaint are extracted below: 3 " :Schedule `A':

(1) Vacant land bearing Kaneshumari No. 130, of Dommasaacha Village, Surjapura Hobli, Anekal Taluk bounded on the East by : Nagi Reddy House West by : Konda Reddy House North by : Road South by : Erappa's land Measuring East West about 42' North-South about 45'.

:Schedule `B':

(1) S. No. 96/1, measuring 2 acres and 5 guntas (2) S. No. 108/2, measuring 1 acre 28 guntas (3) S. No. 79/2, measuring 3 acres 35 guntas all these properties situated at Thigala, Chowdadenahalli, Sarjapur Hobli, Anekla Tq, Bangalore Distt., (4) S.No. 205, measuring 1 acre 22 guntas situated at Dommasandra village, Anekla, Taluk.

(5) A house bearing D.No. 100, and new Nos. 100/1 and 100/2, measuring about 82' x 21' situated at Susheela Road Doddamavalli, Bangalore.4 (6) Any other property standing in the name of late D. Yellappa, or any of his family members.

(7) Jewels worth about Rs. 10,000/- (8) Household utensils worth about Rs. 10,000/- (9) Bank deposits."

(As extracted from the judgment of XVII Additional City Civil Judge, Bangalore.) 4

4. The claim of respondent No. 1 was founded on the following assertions:

(a) That late Shri D. Yellappa, who retired as Revenue Inspector from the Corporation of the City Bangalore, was an affluent person and possessed some ancestral properties (described in Schedule `A') and self-acquired movable and immovable properties (described in Schedule `B').

(b) That Shri D. Yellappa died intestate on 27.3.1978 and being his Class II heirs, the parties are entitled to share in his estate.

(c) That respondent Nos. 2 and 3 are unmarried and by taking advantage of his position as the son of the deceased, the appellant is wasting the property and trying to alienate the same.

5. In the written statement filed by him, the appellant denied that Shri D. Yellappa had only a bit of ancestral property. He pleaded that the suit properties are joint family 5 properties because the same had been acquired out of joint family income and respondent No. 1 had erroneously characterized the same as self-acquired properties of the deceased. The appellant further pleaded that his father had sold some properties to one Papaiah; that the agricultural lands shown in the plaint schedule were subject matter of the proceedings pending before Land Tribunal, Anekal for grant of occupancy rights; that Item No. 3 of plaint Schedule `B' had been purchased in his name vide sale deed dated 29.4.1961 and he was absolute owner thereof and that the jewellery, utensils, bank accounts, etc., mentioned at Item Nos. 7 to 9 of Schedule `B' were not available for partition because after the death of the mother, the deceased had divided the same among three sisters. In paragraph 6 of the written statement, the appellant averred that Item No.5 of Schedule `B' properties is an ancestral property and respondent No.1 has no right to claim any share in it. 6

6. Since the High Court has, while disposing of the appeals filed by the appellant and respondent No. 2 relied upon some of the averments contained in the written statement and made observations adverse to the interest of the appellant, it will be appropriate to notice the contents of paragraphs 2, 4 and 6 of the written statement which are extracted below:

"2. Late Sri. D. Yellappa had ancestral properties. It is incorrect to say that he has only a bit of ancestral property. He was getting a meagre salary, while he was in service, but he was having sufficient income from the joint family properties and out of the income-from joint family properties he purchased properties in his name as he was the head of the family. It is absolutely false that items mentioned in `A' Schedule are the ancestral properties and the items mentioned in `B ' schedule are the separate properties of the father of this defendant. The plaintiff is put to strict proofs of the same. The plaintiff with a view to claim larger share in the properties has characterised the ancestral properties as self acquired properties. The plaintiff in her anxiety to claim a larger share in the properties has included the items which are already sold by the father of the defendant. Thus it is clear that the plaintiff is not at all in joint possession of the properties. The item mentioned in `A' schedule was sold to one Papaiah by the father of the defendant during his life time and put him in possession. Inspite of it, the plaintiff has claimed this property which is in possession of Sri Papaiah. Hence, the said Papaiah is a necessary and a proper party. The 7 suit is bad for non-joinder of proper parties and the suit is liable to be dismissed.

4 . There is no self-acquired property of Sri Yellappa, for the plaintiff to claim any share in the property. The plaintiff is not entitled to any share in the properties detailed in the schedule and further the plaintiff has not brought the entire joint family properties for the purpose of division, though she is fully aware of the same. The pretentions ignorance of the plaintiff is a make believe one and is deliberately made to appear as such only to help the plaintiff's uncle against whom the suit has been filed for the recovery of this defendant's share in the property. The plaintiff is actively supporting her uncle in the said litigation in O.S.31/1979 on the file of the M u n s i f f, A n e k a l . Thus the suit as brought is not maintainable and liable to be dismissed in limine.

6. Item No.5 of the `B' Schedule properties is an ancestral property. The plaintiff has no manner of right, title or interest to claim any share therein."

7. Respondent Nos. 2 and 3 filed separate written statement. They admitted the claim of respondent No. 1 qua the properties specified in Schedules `A' and `B' except Item No. 5 of `B' Schedule, i.e., house No. 100 (new nos. 100/1 and 100/2). Respondent Nos. 2 and 3 pleaded that the house was purchased by their father in the name of the mother by registered sale deed dated 20.12.1943; that, subsequently, the mother transferred the house to the father, who 8 executed Will dated 28.3.1977 and bequeathed a portion of the house to them but, later on, he cancelled the Will and executed registered Settlement Deed dated 18.7.1977 in their favour.

8. The trial Court took cognizance of the pleadings of the parties and framed the following issues (the issues have been extracted from the impugned judgment):

"1. Whether plaintiff proves that the `A' schedule properties are the ancestral properties and the `B' schedule property were self acquired property of late D. Yellappa?

2. Whether defendant nos.2 and 3 proves that they are the absolute owners in possession and enjoyment of a portion of item no.5 of schedule `B' property by virtue of a registered settlement deed dated 18.7.1977 executed by late D. Yellappa?

3. Whether the defendants further prove that the plaintiff is not entitled to claim a share in items no.1 to 5 of the `B' schedule property as contended in their written statement?

4. Whether defendants further prove that the jewels in item no.7 of `B' schedule was divided in between defendants 1 and 2 and after the death of their mother as contended? 9

5. Whether defendant no.1 proves that item no.8 in `B' schedule was taken away by the plaintiff and the utensils now in his possession belong to him exclusively?

6. To what share is the plaintiff entitled to and in what all properties?

7. Whether the plaintiff is entitled to the mesne profits and if yes, at what rate?

8. What relief and what order?

9. Whether the defendants prove that the 3rd item of `B' schedule is the self acquired property of defendant no.1 as contended in para 6(b) of the written statement?

10. Whether the defendants prove that item nos.1,2 and 4 of `B' schedule property are the subject matter of tenancy rights pending before the Land Tribunal and that the plaintiff cannot claim anything in them?"

9. In support of her claim, respondent No. 1 appeared as PW-1 and produced 13 documents, which were marked as Ex. P1 to P13. The appellant examined himself as DW-1 and produced one document, which was marked as Ex. D1.

10. After considering the pleadings of the parties and evidence produced by them, the trial Court partly decreed the suit. The trial Court answered issue Nos. 1 and 7 in the negative 1 and issue Nos. 2, 4, 5, 9 and 10 in the affirmative. It held that Item Nos. 6 to 9 of Schedule `B' were not available for partition and respondent No.1 has miserably failed to prove her case qua those items. The trial Court further held that Item No.3 of Schedule `B' is also not available for partition because the same had been purchased in the name of the appellant vide sale deed Ex. P6 and mistake in the boundaries specified therein was rectified vide Ex. P7. Issue No.3 was answered by the trial Court by declaring that respondent No.1 will be entitled to 1/8th share in the compensation in lieu of agricultural land which was subject matter of the proceedings pending under the Land Reforms Act. The relevant portions of the judgment of the trial Court except those relating to Item Nos. 6 to 9 of Schedule `B' about which no controversy survives between the parties are extracted below:

"Though the plaintiff claims her 1/4th share in the agricultural lands being Item Nos. 1 to 4 of schedule `B' of the plaint, admittedly by the parties during the course of evidence, item Nos. 1 & 2 are the ancestral properties of this D. Yellappa and this D. Yellappa has purchased item No. 4 by a registered sale deed as 1 per Ex. P8 in the year 1966 and only because this D. Yellappa purchased that land, it cannot be classified as self-acquired property of Yellappa unless there is material or evidence produced by the plaintiff to show that he treated that property as self-acquired and separate property and was never meant for enjoyment of the joint family during his life time. Therefore, when there is material to show that D. Yellappa had some agricultural and being the ancestral property measuring 4 5 acres in Anekal Taluk and in addition to the same, he has retired in the year 1961 and got some retirement benefits and similarly, he had purchased some house properties in Bangalore and sold them for the benefit of the family for a sum of Rs. 26,000/- or so as admitted by DW1 himself and which is not disputed by the plaintiff, it can be safely said that item No. 4 was purchased by D Yellappa, out of the joint family funds and it was for the benefit of the family and it cannot be self-acquired and separate property of Yellappa. Similarly, he has purchased item No. 5 being the house property bearing Door No. 100 which is re-numbered as 100/1 and 100/2 in the name of his wife only in the year 1950 and the same was subsequently transferred in the name of D. Yellappa and thereafter, he has mortgaged the same by Ex. P13 and therefore, the plaintiff cannot contend that the said property belonged to her mother and therefore, she is entitled to a share in the same. The recitals of the mortgage deed in Ex. P13 go to show that D. Yellappa had purchased that property in Bangalore in the name of his wife and that fact is clinched by the fact that he has subsequently treated the same as joint family property and not as of his wife. With these observations, I hold that it is a joint family property and not self-acquired property of D. Yellappa and about the settlement of the property in favour of defendants 2 & 3, I will discuss later.

1 So far as the item No. 3 of `B' schedule property is concerned, it can be seen that it was purchased in the name of the first defendant by a sale deed Ex. P6 and there has been a rectification deed also regarding some mistake in the boundaries etc., as per Ex. P7 and this land is also said to be the subject matter of occupancy right before the Tribunal. But all the same, there is no material to show that it is a joint family property and the plaintiff has not produced any material to show that as to whether her father financed this first defendant to purchase this item no. 3 of schedule `B' nor is it the case of the plaintiff that it was actually purchased by D. Yellappa in his own name. As already pointed out, the land was purchased by the first defendant somewhere in the year 1961 and he got rectification deed in the year 1967 and therefore, in the absence of any evidence produced by the plaintiff to show that it was purchased out of the income of the ancestral properties, it can be safely said that the first defendant has treated that property as his self- acquired property because, there was no joint family as such after the death of his father. Because, the first defendant is the only son and the other issues of this D. Yellappa all are daughters and are married and staying with their husbands. Therefore, this item No. 3 will have to be treated as self-acquired property of defendant No 1.

Admittedly item Nos. 1 and 2 of schedule `B' are agricultural lands and were ancestral properties of D. Yellappa and if at all the plaintiff or defendants Nos. 2 and 3 are entitled to any share in those 2 lands (illegible) in the compensation to be awarded by the land tribunal, under the Hindu Succession Act and not under the General Hindu Law.

If these two lands are agricultural properties, the plaintiff as well as the defendants 2 and 3 would get 1 their share either in the compensation or by metes and bounds only in = share of the deceased-father of Yellappa because he has died somewhere in the year 1978 after coming into force of the Hindu Succession Act. In that undecided = share of properties they cannot claim 1/4th share as of right by birth. In the notional partition it is only the coparceners under the General Hindu Law who get a share each and the ladies cannot be co-parceners of the Joint Hindu Family and therefore in the notional partition, it is this D. Yellappa and Nagaraj alone get half and this 1/ share of Yellappa goes to the plaintiff and 2 defendants 2 and 3 under the Hindu Succession Act as their mother had pre-deceased this Yellappa having died in the year 1960. Thus, I hold that the plaintiff cannot claim 1/4th share. But they can claim only 1/8th share each in the entire item Nos. 1 and 2 either by metes and bounds or by way of compensation if any by the land tribunal.

Though the plaintiff has claimed share in item No. 5 the residential house of Bangalore Town, on the ground that it was her mother's property, her own document Ex. P. 13 negatives her contention because, as per the recitals, the finance has flowed from this Yellappa himself though it was purchased in the name of his wife. But it was subsequently transferred in the name of joint family and he treated it as his own property and mortgaged the same to some person by Ex. P. 13 and subsequently gifted the portions of those properties in favour of plaintiff herself and also defendants 2 and 3 and defendants 2 and 3 so also the first defendant stayed in those houses till they got married and therefore, at the most it can be said that house No. 100/1 and 100/2 alone are available for partition between the plaintiff and defendants except the settled properties in favour of the plaintiff and defendants 2 and 3. Thus, the plaintiff cannot claim share in the portions that are 1 settled in favour of defendants 2 and 3 and there has been a settlement deed by Yellappa himself between defendants 2 and 3 by a registered deed dated 18.7.77 as this fact is admitted by PW1 as well as DW1 though there is no evidence produced by the plaintiff and therefore, I am persuaded to answer issue No. 2 in the affirmative.

Now coming to `A' schedule property which according to the plaintiff is ancestral property and is a grame tana area and a residential house bearing Khaneshumari No. 130 in Anekal Taluk. This PW1 during the course of cross-examination admits that her father had gifted half of schedule property in favour of his own brother-Veerappa and also admits that her father might have sold remaining half schedule property in favour of one Papaiah. But, however, a suggestion is made that this first defendant took possession of half of `A' schedule property from Papaiah by filing suits. But the plaintiff has not produced any judgment copy of such suit nor is there any evidence produced to show that this defendant-1 has taken possession of the half of the `A' schedule property that was sold by D. Yellappa himself during his life time.

So therefore, if that is the position, it cannot be said that the plaintiff has proved the facts that `A' schedule property is available for partition and also that she is entitled for mesne profit also. There is no material to show that `A' schedule is in the possession of the first defendant and they cannot also contend that the first defendant has got income from the agricultural lands because, in view of the Land Reforms Act, tenanted lands vest in Govt. with effect from 1974 and when there is material to show that the matter of occupancy rights in respect of agricultural lands at item -1 to 4 of schedule `B' is pending before the Land Tribunal, the plaintiff cannot 1 seek accounting from the first defendant. But however, the contentions of the defendant-1 in the written statement that the plaintiff has not produced the record of rights and index of lands etc., in respect of agricultural land and that if partition is allowed, the same would hit provisions of Prevention of Fragmentation Act etc., are devoid of any merit and thus, in view of my discussions, I am persuaded to answer issue No. 1 in the negative."

11. The operative portion of the judgment passed by the trial Court (as contained in the paper book of the special leave petitions) is extracted below:

"The suit of the plaintiff is hereby partly decreed. The suit of the plaintiff for partition and actual possession in `A' schedule property and also for partition and possession of item Nos. 1 to 9 of schedule `B' by metes and bounds is hereby dismissed. It is hereby declared that the plaintiff is entitled to 1/8th share in the compensation to be paid by the Govt, in respect of item Nos. 1, 2 and 4 and she is also entitled to 1/8 th share in the un-sold portion of item No. 5 in as much as there are entitlement deeds of vacant sites in favour of plaintiff herself and also in favour of defendants 2 and 3. The plaintiff shall get her share partitioned by appointing a Commissioner in the Final Decree Proceedings in item No. 5. Similarly, the suit of the plaintiff for mesne profits is hereby dismissed. But costs of the suit shall come out of the assets of the joint family properties. It is hereby declared that defendants 2 and 3 are also entitled to 1/8th share like the plaintiff in all the properties that are available for partition as discussed above. Draw a preliminary decree accordingly."

1

12. During the pendency of the suit filed by respondent No. 1, respondent No. 2 filed O.S. No. 2062 of 1981 for declaration of title in respect of house bearing No. 100/2, Susheela Road, Doddamavalli, Bangalore and possession thereof and also for mesne profits. Respondent No.2 relied upon registered Settlement Deed dated 18.7.1977, which is said to have been executed by Shri D. Yellappa giving separate portions to her and respondent No.3, and pleaded that she was residing in the portion allotted to her and was paying taxes etc. but the appellant was trying to interfere with her possession.

13. The appellant contested the suit filed by respondent No. 2. He pleaded that the suit property was joint family property and the deceased had no right to execute settlement deed in respect of the joint family property. He further pleaded that the settlement deed was a fabricated document and the same cannot be relied upon for declaring respondent No.2 as owner of the suit property. He also raised an objection of 1 limitation and pleaded that the suit filed by the respondent No.2 was barred by time.

14. In the second suit, the trial Court framed nine issues and one additional issue. The same (as contained in para 10 of the impugned judgment) are extracted below:

"1. Whether the plaintiff proves that during the suit schedule property was the self acquired property of D. Yellappa?

2. Whether the plaintiff proves that during the lifetime of D. Yellappa, D. Yellappa has executed a registered settlement deed dated 18.7.1977 and registered Will dated 28.3.1977 in her favour pertaining to the suit schedule property as alleged in the plaint?

3. Whether the plaintiff proves that the defendant trespassed into the suit schedule property and proves further that she is entitled for possession as alleged?

4. Whether the plaintiff proves that she is entitled for Rs.1,440/- and also for mesne profits with costs thereon?

5. Whether the defendant proves that the alleged Will is a got up one when Yellappa was not in a fit condition to execute in favour of the plaintiff?

6. Whether the defendant proves that the suit schedule property is not self acquired property of D. Yellappa? 1

7. Whether the defendant proves that he is in possession of the property in his own right and not as a trespasser? 7(a) Whether the defendant proves that the suit is not maintainable in law?

8. To what relief the parties are entitled?

9. Whether the plaintiff is entitled for the declaration claimed? Additional Issues :

1. Whether the defendant proves that the suit is barred by time as he had taken a plea in O.S. No.151 of 1978 itself denying the title of the plaintiff as alleged?"

15. Respondent No.2 examined herself as PW-1 and produced 8 documents marked Ex. P1 to P8. The appellant examined himself as DW-1 and produced 16 documents marked Ex. D1 to D16.

16. The trial Court answered issue Nos. 1 to 4, 7(a), 9 and additional issue No.1 in the negative and issue Nos. 6 and 7 in the affirmative. As regards issue No.5, the trial Court observed that the same does not survive for consideration. 1 In conclusion, the trial Court dismissed the suit by observing that respondent No.2 has failed to prove that the suit property was purchased in the name of the mother vide Sale Deed dated 1.2.1950 and she had transferred the same to her father. The trial Court also held that respondent No.2 has failed to prove that the suit property was the self- acquired property of her father and he had the right to settle the same in her favour. The relevant portions of the judgment rendered by the trial Court in O.S. No. 2062 of 1981 are extracted below: "It is elicited in the cross examination of PW-1 that the suit property was transferred by her mother to her father but she does not know by what mode it was transferred. She does not know when her mother had purchased the property. There must be document of title regarding the purchase made by her mother and the plaintiff has denied ignorance about the mode under which the property was transferred by her mother to her father. The contents of Ex.P.l show that the property was purchased by sale deed dated 1.2.1950. The said sale deed dated 1.2.1950. The said sale deed has not been produced by the plaintiff and therefore the plaintiff has failed to prove that it is belong to her mother and her mother has transferred the property to her father.

On the other hand, the evidence of the defendant and the documentary evidence produced by him show 2 that the property was the joint family property as it was purchased out of the amount received by mortgaging the family properties to Salem Bank under Ex.D-7. DW-l has stated in his evidence that the suit schedule property was purchased out of the joint family funds. The property was purchased in the name of his mother during December 1943. In December 1943 joint family property was mortgaged to Salem Bank for purchasing the property and he has produced Ex.D-7 the mortgage deed and he has further stated that the said amount obtained by mortgaging was repaid out of the income derived from the suit house. Nothing has been elicited in the cross-examination of DW.1 to disbelieve his evidence that the suit property was purchased out of the amount received by mortgaging the joint family properties. Ex. D-7 shows that on 17.12.1943 D. Yellappa and his brother Erappa mortgaged the properties for borrowing Rs.600/- for the purpose of purchasing a house at Siddegowda Lane, Lalbagh, Doddamavalli Bangalore City in the name of the wife of D. Yellappa and the schedule to the said mortgage deed reads as follows:

I. All the piece and parcel of land with the dwelling houses and outhouses, wells, trees and drains thereon built and planted and situated together with all rights and easements appertaining thereto now and hereafter enjoyed and acquired bearing Municipal Door No. Old 8 and New No. 13. Chintala Venkatappa Lane, Lalbagh, Doddamavalli, Bangalore City, bounded on the North by Sarambigamma's house and Chinnayya's backyard, South by Municipal Road, East b y Ratnakka and her b r o t h e r Anjariappa's house and open space and West by land with public water t a p , measuring East to West 3 5 1 /2 feet and North to South 1 2 ' x 1 2 ' and admeasurements 4 4 3 square feet. Chintala 2 Venkatappa Lane is now called Siddegowda Lane.

II. And house bearing Municipal Door No. 2 (Old) New No. 3 . Aliraju Munisumappa Road, Thigalarpet, Bangalore City, bounded on North b y Jaragana-halli Muniswamy's house and Yellamma Temple, South by Lane and Yengatappa Gowda's house and Rangamma's house, East by Municipal Road and Muni Siddappa's house and West by Waste land belonging to choultry, measuring East to West 2 4 ' . 4 " , North to South 25 ' . 1 0 " b y admeasurements 6 2 6 square feet and which are at present in possession of the said mortgagors, 1. D. Yellappa and 2 . Erappa.

It is clear from the above said evidence of DW-1 and Ex. D-7 which clearly corroborates his evidence that the suit schedule property was purchased out of the money obtained by mortgaging the joint family properties. PW-1 has feigned ignorance as to whether her father had any other source of income except salary and as to whether the family had any other joint family property at the time of purchase of the suit schedule property. Therefore, it is clear that plaintiff has failed to prove that the suit schedule property was the self acquired property of her father and that her father had right to settle the property in favour of the plaintiff. On the other hand, the above said evidence on record clearly shows that the suit property was the joint family property of D. Yellappa and the defendant.

I have already given a finding that plaintiff has failed to prove that the suit schedule property was the self acquired property of D. Yellappa and defendant has proved that the suit schedule property was the joint family property. Therefore, the burden is upon the plaintiff to prove the execution 2 of the Settlement Deed. PW-1 has stated in her cross-examination that she does not know who were the witnesses that have signed Ex. P.l as they were acquaintance of her father. She does not know who was the scribe of the Settlement Deed. It is further elicited that she found some corrections in the Settlement Deed but she does not know who wrote it. The witnesses have not signed in her presence and she does not know if her father had intimated the defendant about the Settlement Deed. The plaintiff has not signed the Settlement Deed and the and the witnesses who have attested the Settlement Deed have not been examined by the plaintiff. The scribe who wrote the Settlement Deed has also not been examined by the plaintiff. There are some corrections in the Settlement Deed and PW-1 has stated that she does not know who had carried out the said corrections and she does not know who wrote the contents of the Settlement Deed as she has feigned ignorance as to who was the scribe of the Settlement Deed. Even the contents of the Settlement Deed have not been proved and the evidence on record clearly proba- bilities the version of the defendant that the Set- tlement Deed has been concocted by the plaintiff. It is mentioned in the Settlement Deed Ex. P.l that the property was the self acquired property of D. Yellappa. I have already held that suit property was not the self-acquired property of D. Yellappa."

17. The appellant filed RFA No. 189 of 1990 and prayed for setting aside the decree passed in O.S. No. 4528/1980 insofar as the trial Court upheld the claim of partition made by respondent No.1 qua Item No.5 of Schedule `B' 2 properties. Respondent No. 2 also filed RFA No. 476 of 1991 and challenged the dismissal of the suit for declaration filed by her.

18. Learned counsel for the appellant argued that the impugned judgment is liable to be set aside because the learned Single Judge of the High Court committed grave error by granting substantive relief to respondent No.1 despite the fact that she had not filed appeal or cross-objections to question the findings recorded by the trial Court on various issues. She further argued that the learned Single Judge committed an error by passing a decree in favour of respondent No.2 on the basis of Settlement Deed dated 18.7.1977 ignoring that she had failed to prove that the suit property was self- acquired property of the father and that in O.S. No. 4528 of 1980 the trial Court had ruled that Item No.5 of `B' Schedule properties was joint family property.

19. Learned counsel for the respondents supported the impugned judgment and argued that the High Court did not commit any error by granting relief to respondent Nos. 1 2 and 2. She submitted that even though respondent No.1 had neither filed an appeal against the judgment and decree passed by the trial court in O.S. No. 4528 of 1980 nor she filed cross-objections in RFA No. 189 of 1990, the learned Single Judge had rightly invoked the principle underlying Order 41 Rule 33 CPC for the purpose of doing full justice to the parties. She also defended the decree passed in favour of respondent No.2 and argued that the learned Single Judge did not commit any error by relying upon the recital in the settlement deed for the purpose of recording a finding that Item No.5 of Schedule `B' properties was self- acquired property of the deceased.

20. Before adverting to the arguments of the learned counsel for the parties and the reasons recorded by the learned Single Judge, we consider it proper to take cognizance of some of the additional documents filed by the counsel for the respondents which include copy of the plaint in O.S. No. 286 of 1979 (renumbered as O.S. No.4528 of 1980), written statement filed in that suit, the issues framed by the trial 2 Court, depositions of respondent No.1 and the appellant, copy of Settlement Deed dated 18.7.1977, orders passed by the Karnataka High Court in Writ Petition Nos. 11401 of 1981, 20067 of 1991 and 20068 of 1991 and order passed by the Land Tribunal. These documents show that respondent Nos. 1 to 3 had filed Writ Petition No. 11401 of 1981 for quashing order dated 9.6.1981 passed by the Land Tribunal whereby occupancy rights were granted to N. Bhadraiah in respect of land comprised in survey Nos. 79/2, 108/2 and 205. By an order dated 28.5.1985, the Division Bench of the High Court allowed the writ petition, quashed the order of the Land Tribunal and remitted the matter for fresh disposal of the application filed by N. Bhadraiah after giving opportunity to the parties. After remand, the Land Tribunal passed order dated 29.10.1988 and again accepted Bhadraiah's claim for occupancy rights. The second order of the Land Tribunal was challenged by respondent Nos. 1 to 3 in Writ Petition Nos. 20067 and 20068 of 1991, which were allowed by the Division Bench of the High Court on 20.1.1994 and the matter was again 2 remitted to the Land Tribunal for fresh consideration. Of course, learned counsel for the parties did not inform the Court whether the application filed by N. Bhadraiah for grant of occupancy rights has been finally disposed of.

21. The learned Single Judge first considered the issue raised in RFA No.476 of 1991, i.e., whether Settlement Deed dated 18.7.1977 executed by Shri D. Yellappa was valid. He referred to a portion of the settlement deed in which the executant has mentioned that the house property is a self- acquired property purchased by him on 01.02.1950 and proceeded to observe:

"In the light of the above recital in Ex. P.1 the settlement deed which is extracted above it is too late for the son to come and contend that it is not the self acquired property of their father. The recital coupled with the evidence available on record and the further fact that Susheela the plaintiff has been enjoying the property exclusively would go to show that the plea that the property in question is ancestral property, set up by the son, is not acceptable or believable. This aspect of the case has not been considered by the trial Court and as rightly found by the trial court in the other suit and I have also no hesitation to hold that, the suit property is self acquired property of their father and 2 consequently, the settlement deed executed by her father in valid and binding on the parties."

22. While recording the aforesaid finding, the learned Single Judge did not even refer to the detailed reasons recorded by the trial Court for holding that respondent No.2 has failed to prove that the suit property was self-acquired property of the executant because Sale Deed dated 01.02.1950 was not produced by her. The learned Single Judge also omitted to consider the statement of respondent No. 2 that the suit property was purchased by her father in the name of the mother and she had transferred the same in the name of the father, which enabled him to execute Will dated 28.3.1977 and Settlement Deed dated 18.7.1977. Not only this, the learned Single Judge failed to take note of the fact that the recital contained in the settlement deed was contrary to the evidence of the parties which, as mentioned above, was to the effect that the property had been purchased by the father in the name of the mother and the latter had transferred it to the father after some time and 2 that in the judgment of O.S. No. 4528 of 1980 it was categorically held that Item No. 5 of Schedule `B' properties was joint family property and respondent No.1 was entitled to a share in it. We are surprised that the learned Single Judge ignored the patently contradictory findings recorded by the trial Court in the two suits on the issue of nature of Item No. 5 of Schedule `B' properties and decreed the suit filed by respondent No. 2 by assuming that she had succeeded in proving that her father Shri D. Yellappa was competent to execute the settlement deed. In the process, the learned Single Judge completely overlooked the detailed reasons recorded by the trial Court in O.S. No. 4528 of 1980 after considering the mortgage deed Ex. P13 executed by Shri D. Yellappa and Erappa in favour of the Salem Bank Ltd. for the purpose of taking loan. Therefore, it is not possible to sustain the finding and conclusion recorded by the learned Single Judge in RFA No.476 of 1991.

23. We shall now deal with the appellant's challenge to the decree passed in favour of respondent No.1. It is not in 2 dispute that respondent No.1 had not challenged the findings recorded by the trial Court on various issues framed by it. She also did not file cross-objections in the appeal preferred by the appellant. Though, it is possible to take the view that even in the absence of an appeal having been preferred by respondent No.1, the learned Single Judge could have exercised power under Order 41 Rule 33 CPC, as interpreted by this Court in Nirmala Bala Ghose v. Balai Chand Ghose [1965] INSC 85; (1965) 3 SCR 550, Giani Ram and others v. Ramjilal and others [1969] INSC 73; (1969) 3 SCR 944 and Banarsi and others v. Ram Phal (2003) 9 SCC 606, after having carefully examined the entire record, we are convinced that the impugned judgment cannot be sustained by relying upon Order 41 Rule 33. In the impugned judgment, the learned Single Judge has included Item No. 3 of Schedule `B' properties in the pool of joint family property despite the fact that the same had been purchased by D. Yellappa by registered sale deed in 1961 in the name of the appellant. The learned Single Judge overturned the finding on this issue by adverting to some portions of the averments 3 contained in para 2 of the written statement filed by the appellant, while ignoring the remaining averments contained in that paragraph as also paragraph Nos. 4 and

6. The learned Single Judge also failed to take note of the fact that the claim made by N. Bhadraiah for grant of occupancy rights in respect of agricultural land was pending before the Land Tribunal. It is not possible for us to approve the approach adopted by the learned Single Judge in dealing with the claim of respondent No. 1 for partition of the suit properties despite the fact that she had failed to prove the case set up in the plaint. A substantial portion of the judgment of the trial Court as well as the learned Single Judge is based on pure conjectures. The learned Single Judge appears to have been unduly influenced by the fact that N. Bhadraiah was the father-in-law of the appellant and both seem to have conspired to deprive the three daughters of the deceased of their shares in the suit properties. 3

24. We may have remanded the matter to the High Court for fresh disposal of the appeals filed by the appellant and respondent No. 2 but keeping in view the fact that the findings recorded in the two suits regarding Item No. 5 of Schedule `B' properties specified in the plaint of O.S. No. 4528 of 1980 are contradictory and substantial portion of the judgment of O.S. No. 4528 of 1980 is based on surmises and conjectures, we feel that ends of justice would be met by setting aside the impugned judgment and remitting the matter to the trial Court for fresh disposal of the suits filed by respondent Nos. 1 and 2.

25. In the result, the appeals are allowed. The impugned judgment is set aside. The judgments of the trial Court in O.S. Nos. 4528 of 1980 and 2062 of 1981 are also set aside and the matter is remitted to the trial Court for fresh disposal of the suits. With a view to avoid the possibility of conflicting findings regarding Item No.5 of Schedule `B' properties specified in the plaint of O.S. No.4528 of 1980, we direct the trial Court to club the two suits and dispose of 3 the same by one judgment. The parties shall be free to file applications for additional evidence and bring on record the orders passed by the Land Tribunal and the High Court in relation to Item Nos. 1 to 4 of Schedule `B' appended to the plaint of O.S. No.4528 of 1980.

.....................................J.

[G.S. Singhvi]

 .....................................J.

[Asok Kumar Ganguly] New Delhi, January 05, 2012.