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Appeal No. 219 of 1962.
384 Appeal from the judgment and decree dated August 31, 1960 of the Patna High Court in Appeal from Original decree No. 7 of 1955.
B. Sen, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants.
B. R. L. Iyengar, section K. Mehta and K. L. Mehta, for the respondents.
April 25.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
This appeal arises out of proceedings under the Land Acquisition Act, 1894 (No. 1 of 1894) (hereinafter called 'the Act ').
The respondents owned an area of 0.12 acre of land in village Bermo No. 18 in the district of Hazaribagh.
This land was required for the construction 'of Aerial Rope way for Bokaro Thermal Power Plant, and so, in order to acquire the said land, a declaration under section 4 of the Act was made on August 9, 1952.
The property of the respondents which stands on this plot consists of two buildings, one is the main structure and the other is made up of out houses together with an open space of land in front of these structures.
The notification showed that the Government thought it necessary, to acquire a space of 50 fit in width for the electric wire to run over and this included a portion of open space as also the out houses of the respondents.
Under the proceedings taken under the relevant provisions of the Act, the Land Acquisition Officer fixed the compensation to be paid to the respondents at Rs. 4,4511516; according to him, the said amount represented a fair and reasonable compensation for the land together with the out houses under acquisition.
The respondents were not satisfied with this award, and so, ' they applied for reference under section 18 385 of the Act.
One of the grounds taken by the respondents in para I (d) of their petition for reference was that the other lands and buildings contiguous to the land and building acquired which belonged to them had not been acquired, and in consequence, they had to suffer a huge loss; the rope line passes close to the rest of the property, and so, it could not be used for fear of its being dangerous for human habitation.
On this basis, the respondents alleged that they were entitled to recover as compensation amount Rs. 21,765/8/ which they had spent on the construction of the principal building.
Besides, they urged that the monthly rent of Rs. 160/ which they were receiving from the tenants in respect of the said principal building would also be lost and they were entitled to adequate compensation on that account.
In other words, one of the grounds raised by the respondents in their petition was referrable to section 23 (3) of the Act.
The Deputy Commissioner of Hazaribagh then proceeded to make the reference as claimed by the respondents.
In his letter of reference, he stated that the respondents were claiming additional compensation on the ground that the other lands and buildings contiguous to the land and building acquired which they owned had not been acquired and thereby they had to suffer a huge loss.
On reference, the District judge of Hazaribagh heard the matter.
It appears that before the District judge, Kundan Singh, respondent No. 1, gave evidence and stated that on October 22, 1952, he had put in an application that the other quarters belonging to him which had not been acquired should also be acquired, because the said quarters were contiguous to the land acquired and had become useless to the respondents.
The learned District judge considered the point raised by the respondents and held that since only a narrow 386 strip of land had been left in front of the larger building, it had affected the utility of the said building and the other unacquired land of the respondents, and so, he directed that in addition to the amount of Rs. 4 451/5/6 which had been determined as the amount of compensation by the Land Acquisition Officer, Rs. 1000/ should be paid to the respondents.
In his opinion, the amounts determined by the Acquisition Officer for the property actually acquired was quite appropriate and all that was needed to be done was to award an additional amount of Rs. 1,000/ on the ground that the unacquired property was adversely affected by the acquisition in question.
The respondents then preferred an appeal before the High Court of Patna under section 54 of the Act.
In their appeal, the only ground which they urged was that the rope way having completely spoiled the main building, the Land Acquisition Officer could not acquire the out houses without acquiring the main building.
Accordingly, they claimed a declaration that the Land Acquisition Officer should acquire the main building along with the other properties under acqiuisition.
When this plea was raised before the High Court, the appellants, the State of Bihar and the Deputy Commissioner, Hazaribagh, contended that it was not open to the respondents to claim a declaration for the acquisition of other properties in their appeal, because the said appeal arose out of a reference under section 18 of the Act and a plea like the one raised by the respondents which could be made under section 49 of the Act, was foreign to the present enquiry.
It was also contended that this point had not been taken by the respondents either before the Land Acquisition Officer or before the District judge.
These arguments were rejected by the High Court and a direction has been issued by the High Court calling upon the Land Acquisition Officer to takeover the remaining area 387 and the building and assess the compensation thereon in due course according to law.
The High Court has ordered that when the said assessment is thus determined, the additional compensation of Rs. 1,000/which has been allowed by the District judge should be deducted and the balance paid to the respondents.
It is against this order that the appellants have come to this Court with a certificate issued by the High Court; and the principal question which has been raised before us by Mr. Sen on behalf of the appellants is that the High Court was in error is allowing section 49 to be invoked in the appeal before it.
The first point which must be considered in dealing with the appellants ' argument is whether the respondents had made an application to the Land Acquisition Officer under section 49 of the Act as alleged by respondent No. I in his evidence before the District judge.
We have already noticed that respondent No. I stated in his evidence that on October 22, 1952 he had put in an application that the other quarters should also be acquired.
In other words, his plea was that the said application had been made invoking the provisions of section 49 of the Act after the date of the notification and before the award was made on November 27, 1952.
The judgment of the District judge shows that he did not accept this plea, and so, he proceeded to deal with the case on the basis that the respondents were claiming additional compensation either under the third or the fourth clause of section 23 (1) of the Act.
If he had held that an application had been made by the respondents under section 49 of the Act before the award was made and they were asking for relief under that provision, he would, undoubtedly, have considered the matter and recorded his conclusion on it.
Therefore, it would not be unreasonable to assume that the District judge did not attach any importance to the statement made by respondent No. I that he had put in an application under section 49, or it may be that the 388 respondents merely pressed their claim for additional compensation under section 23 before the learned District judge.
When the matter was argued before the High Court, the appellants seriously disputed the allegation of the respondents that an application had been made to the Land Acquisition Officer under section 49.
It is true that the statement of respondent No. 1 that he had made such an application was not challenged in cross examination, but it is remarkable that the said statement does not appear to have been pressed before the District judge and when it was attempted to be pressed before the High Court, the application alleged to have been made by respondent No. I was not produced before or shown to the High Court at all.
In fact, no such application has been printed in the paper book prepared for this Court in the present appeal.
The High Court also does not appear to have made any definite finding that the statement of respondent No. I could be accepted.
It has, however, held that the claim made by the respondents when they asked for reference under s.18 showed that they were asking for protection under s.49 of the Act and it is on the basis of the said claim contained in para.
I (d) of the respondents ' petition under section 18 of the Act that the High Court came to the conclusion that the respondents had relied upon section 49 before the Land Acquisition Officer.
We have already referred to the ground taken by the respondents in para I (d) of their petition and have noticed that the claim made under the said ground was under section 23 of the Act and not at all under section 49; and so, we are not prepared to accept Mr. Iyenger 's argument that the present appeal should be dealt with on the basis that the respondents had made an application to the Land Acquisition Officer under section 49 of the Act before he pronounced his award.
By their application for 'reference, the respondents merely claimed additional compensation under section 23(1) and 389 that is how their claim was considered and decided by the learned District Judge.
It is in the light of this, finding that we have to determine the question as to whether the High Court could have entertained the respondents ' plea under section 49 in the appeal preferred before it by the respondents against the decision of the District Judge in reference proceedings taken before him under section 18 of the Act.
In determining the question about the scope of the enquiry under section 18, it is necessary to consider the relevant provisions of the Act.
Section 4 of the Act deals with the publication of a preliminary notification in regard to the acquisition proceedings proposed to be taken.
Section 5 A deals with the hearing of objections.
Section 6 provides for the declaration that a particular land is required for a public purpose.
Section 9 requires notice to be given to the persons interested in the said property.
Section 11 prescribes the manner of the enquiry and provides for the making of the award by the Collector.
Section 12 lays down that the award, when made, shall be filed in the Collector 's office and shall be final, as therein prescribed ' Section 16 empowers the Collector to take possession of the property acquired, ' and section 18 deals with reference to Court.
In dealing with the claim for compensation made by the owner of the property, the Court has to consider the matters specified in section 23.
The third clause of section 23 (1) provides that in determining the amount of compensation, the Court shall take into account the damage (if any), sustained by the person interested, at the time of the Collector 's taking possession of the land , by reason of severing such land from his other land and the fourth clause requires the Court to take into account the damage (if any), sustained by the person interested, at the time of the Collector 's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings.
390 Section 18 (1) provides that any person interested who has not accepted the award may, by written application to the Collector,require that the matter be referred by the Collector or the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. ' It is thus clear that the scope of the enquiry under section 18 (1) is specifically indicated by the section itself.
The objections which the Court can consider on a reference made to it under section 18 may be either in respect of the measurement of the land, the amount of compensation, the persons to whom it is payable, and the apportionment of the compensation among different persons.
In dealing with the ' question about the amount of Compensation, the Court may have to take into account the matters specified in s.23.
As was observed by the Privy Council in Pramatha Nath Mullick vs Secretary of State for India (1), the section clearly specifies four different grounds of objection which can be the subject matter of an enquiry in reference proceedings.
Therefore, it is very difficult to accede to Mr. Iyengers ' argument that in dealing with the reference proceedings under section 18 (1), the Court can also consider the pleas raised by the owner of the property under section 49 of the Act.
It does appear that the owner of property under acquisition may claim additional compensation on the ground that the portion of the property acquired so materially affects the value or the utility of his other property not acquired as to justify a claim for additional compensation under section 23, and if such a claim is made, it would legitimately form the subject matter of an enquiry in a reference under section 18 (1), but if the owner of the property wants to claim 'that the whole of his property should be acquired, and in that connection relies on the provisions of section 49, that cannot be introduced in an enquiry under section 18 (1) (1929) L. R. 57 I. A. 100.
391 such a claim must form the subject matter of different proceedings taken by the owner under section 49 itself.
That takes us to section 49.
Section 49 reads thus " (1) The Provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired Provided that the owner may, at any time before the Collector has made his award under section 1 1, by notice in writing, withdraw or modify his expressed desire that the whole of such house, manufactory or building shall be so acquired : Provided also that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of this section the Collector shall refer the determination of such question to the Court and shall not take possession of such land until after the question has been determined.
In deciding on such a reference the Court shall have regard to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building.
(2) If, in the case of any claim under section 23, sub section (1), thirdly, by a person interested, on account of the severing of the land to be acquired from his other land, the (appropriate Government) is of opinion that the claim is unreasonable or excessive, it may, at 392 any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part.
(3) In the case last hereinbefore provided for, no fresh declaration or other proceedings under sections 6 to 10, both inclusive, shall be necessary ; but the Collector shall without delay furnish a copy of the order of the (appropriate Government) to the person inter ested, and shall thereafter proceed to make his award under section 11.
The provisions of section 49 (1) prescribe, inter alia, a definite prohibition against putting in force any of the provisions of the Act for the purpose of acquiring a part only of any house, if the owner desires that the whole of such house shall be acquired.
This prohibition unambiguously indicates that if the owner expresses his desire that the whole of the house should be acquired, Do action can be taken in respect of a part of the house under any provision of the Act, and this suggests that where a part of the house is proposed to be acquired and a notification is issued in that behalf, the owner must make up his mind as to whether he wants to allow the acquisition of a part of his house or not.
If he wants to allow the partial acquisition, proceedings would be taken under the relevant provisions of the Act and an award directing the payment of adequate compensation would be made and would be followed by the taking of possession of the property acquired.
If, on the other hand, the owner desires that the whole of the house should be acquired, he should indicate his desire to the Land Acquisition officer and all further proceedings under the relevant provisions of the Act must stop.
This provision thus seems to suggest that if an objection is intended to be raised to the acquisition of a part of the house, it must be 393 made before an award is made under section 11.
In fact, it should be made soon after the initial notification is published under section 4 ; otherwise, if the proceedings under the relevant provisions of the Act are allowed to be taken and an award is made, it would create unnecessary confusion and complications if the owner at that stage indicates that he objects to the acquisition of a part of his house ; at that stage, it would no doubt be open to him to claim adequate compensation in the light of the material provisions of section 23 of the Act, but that is another matter.
The first proviso to section 49 (1) also leads to the same conclusion.
If the owner has made his objection to the acquisition of a part of his house, it is open to him to withdraw or modify his objection before an award is made under section 11 ; and if he withdraws 'his objection, further proceedings will follow and if he modifies his objection, steps will have to be taken as indicated in the other provisions of section 49.
This proviso, therefore, suggests that the objection of the owner to acquisition of a part of his house has to be considered and dealt with before an award is made under section 11.
It would be noticed that if an objection is made by the owner under section 49 (1), the Collector may decide to accept the objection and accede to the desire of the owner to acquire the whole of the house.
In that case, further proceedings will be taken on the basis that the whole of the house is being acquired.
In some cases, the Collector may decide to withdraw acquisition proceedings altogether, because it may be thought not worthwhile to acquire the whole of the house ; in that case again nothing further remains to be done and the notification issued has merely to be withdrawn or cancelled.
But cases may arise where the Collector may not accept the claim of the owner that what is being acquired is a part of the house ; in that case, the matter in dispute has to be 394 judicially determined, and that is provided for by the second proviso to section 49 (1).
Under this proviso, the Collector is under an obligation to refer the matter to the Court and he shall not take possession of the land under acquisition until the question is determined by the Court.
In dealing with this matter, the Court has to have regard to the question as to whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house.
Sub section
(2) of section 49 seems to contemplate that where land is acquired and it is shown to form part of a house, it would be open to award to the owner of the house additional compensation under the third clause of section 23, and I so, this sub section deals with cases where the claim made by the owner of the house under the third clause of section 23 is excessive or unreasonable, and provides that the appropriate Government may decide to acquire the whole of the land of which the land first sought to be acquired forms a part rather than agree to pay an unreasonable or excessive amount of compensation as claimed by the owner.
This provision also emphasises the fact that where land is acquired and it results in the acquisition of a part of the house connected with the land, the owner can make a claim for additional compensation under section 23, or he may require, before the acquisition has taken place, that the whole of the house should be acquired.
These are two alternative remedies available to the owner ; if he wants to avail himself of the first remedy under section 23, he may make a claim for additional compensation in that behalf and such a claim would form the subject matter of an enquiry under section 18 ; if, on the other hand, he claims the other alternative remedy provided by section 49 (1), that must form the subject matter of another proceeding which has to be dealt with under section 49 itself.
It is true that in cases of dispute, this matter also goes to the same Court for its decision on a 395 reference by the Collector; but though the Court is the same the proceedings taken are different and separate and must be adopted as such.
A claim under section 49 which can be properly tried by the Court on a reference made to it by the Collector under the second proviso to section 49 (1), cannot be mixed up with a claim which can be made in reference proceedings sent to the Court under section 18 by the Collector.
Section 49 (3) merely dispenses with the necessity of issuing a further fresh declaration or adopting other proceedings under sections 6 to 10 in regard to cases falling under section 49 (2).
Thus, it would be seen that the scheme of section 49 is that the owner has to express his desire that the whole of his house should be acquired before the award is made, and once such a desire is expressed, the procedure prescribed by section 49 has to be followed.
This procedure is distinct and separate from the procedure which has to be followed in making a reference under section 18 of the Act.
In the present case, the respondents have taken no steps to express their desire that the whole of their house should be acquired, and so, it was not open to the High Court to allow them to raise this point in appeal which arose from the order passed by the District judge on a reference under section 18.
That being our view, we do not think necessary to consider the respondents ' contention that what is acquired in the present proceedings attracts the provisions of section 49 (1).
It now remains to consider two relevant decisions which were cited before us.
In the Secretary of State for India in Council vs Narayanaswamy Chettier (1), the Madras High Court appears to have taken the view that there is nothing in section 49 requiring the claimant to put forward his particular claim, viz., that the whole of his house should be acquired, at any particular stage of the proceedings.
Referring (1) Mad.
391 396 to section 49 (1), Ramesam off.
C. J., observed that the said clause cannot imply that the claims covered by it should be made before the Collector makes his award.
Cornish J., who delivered a concurrent judgment agreed with this view.
It appears that in coming to this conclusion, both the learned judges referred to the special circumstances under which the claimant made his claim under section 49 on September, 29, that is to say, after the award. and those special circumstances clearly showed that the claimant was not to blame for the delay made by him in expressing his desire under section 49 (1).
In our opinion, however, the scheme of section 49 is clear.
Section 49 (1) has imposed a ban on taking any further action under any of the provisions of the Act where the owner expresses a desire that the whole of his house should be acquired, and that clearly indicates that after the relevant notifications are issued under sections 4 and 6, if it appears to the owner of the land under acquisition that a part of his house is being acquired, he has to express his desire before an award is made under section 11 ; otherwise if the owner allows.
proceedings to be taken under the provisions of the Act and an award follows, it would lead to unnecessary complications if the owner is allowed to express his desire under section 49 (1) and the reference is then required to be made under the second proviso to section 49 (1).
Logically, if an enquiry has to be made as contemplated by section 49, it must precede any further action under the other provisions of the Act, and that is the main basis of the mandatory prohibition prescribed by section 49 (1).
The said prohibition coupled with the first proviso to section 49 (1) leads to the conclusion that the owner cannot take recourse to section 49 after an award is made under section 1 1 of the Act.
In our opinion, therefore, the High Court did not correctly interpret the effect of section 49 (1) when it held that the said section did not require the claimant to put forward his claim before the award was made.
397 In Krishna Das Roy vs The Land Acquisition Collector of Pabna (1), the Calcutta High Court, on the other hand, seems to have taken the view and we think, rightly, that if the owner wants to make an application expressing his desire under section 49 (1), he has to make that application some time before the award is actually made.
The result is, the appeal is allowed, the order passed by the High Court is set aside and that of the District judge restored.
There will be no order as to costs.
Appeal allowed.

Output:
The appellant acquired a plot of land on which the respondent 's property stands, consisting of the main house and an outhouse with an open space in front of them.
The land acquired covered a space 50 ft.
in width for the electric wire to run over and this included a portion of the open space as also the outhouse.
The Land Acquisition Officer fixed a compensation of Rs. 4,451/5/6.
Not being satisfied with this award the respondents appealed under section 18 of the Land Acquisition Act, 1894.
One of the grounds taken in the petition for reference was that the other lands and buildings contiguous to the land and building acquired which belonged to them had not been acquired, they had to suffer a huge loss, the electric rope line passed close to the rest of the property and so it could not be used as it might be dangerous for human habitation.
On this basis compensation of about Rs. 21,765/8/which had been spent in the constructions of the principal house was claimed Before the District Judge, on reference, Respondent No. I gave evidence that he had made I an application before the award was given for the payment of the higher compensation on the above stated ground.
The District judge considered this ground and held that since only a narrow strip of land was left in front of the main building its utility was diminished and awarded an additional compensation of Rs. 1,000/ .
The respondents preferred an appeal to the High Court in which they prayed for a declaration that the Land Acquisition Officer should acquire the main building along with the other properties acquired.
The present appellant contended that the respondents should not be allowed to raise this contention 383 because this plea could have been raised by them only under section 49 of the Act and the plea was foreign to the scope of the reference out of which the appeal arose.
It was also contended that his plea was not taken before the Land Acquisition Officer.
The High Court rejected these contentions of the Appellants and granted the declaration as prayed for by the respondents.
The present appeal is by way of a certificate granted by the High Court.
Substantially the same contentions as were raised before the High Court were raised in this appeal before this Court.
Held that the claim was made by the respondents under section 23 of the Act and not under section 49 and what they have in fact done is to claim additional compensation under section 23 (1).
It is clear that the scope of the enquiry under section 18 (1) is specifically indicated by the section itself and the grounds on which objection can be taken.
The Court cannot consider the pleas raised by the owner of the property under section 49 in an enquiry under section 18 (1).
The scheme of section 49 is that the owner has to express his desire that the whole of his house should be acquired before the award is made and once such a desire is expressed the procedure prescribed by section 49 has to be followed.
This procedure is distinct and separate from the procedure which has to be followed in making a reference under section 18.
In the present case the respondents have not taken any steps to express their desire that the whole of their house should be acquired and it was not open to the High Court to allow them to raise this point in appeal which Arose out of an order passed by the District Judge under section 18.
Case law reviewed.
Pramatha Nath Mullick vs Secretary of State for India in Council, (1929) L. R. 57 I. A. 100.
The Secretary of State for India in Council V. R. Narayanaswami Chettiar, Mad. 391, distinguished.
Krishna Das Roy vs The Land Acquisition Collector of Pabna,


Input:
Appeal No. 2433 of 1966.
Appeal from the judgment and decree dated August 2, 1965 of the Bombay High Court, Nagpur Bench in Appeal No. 113 of 1959 from original decree.
V. section Desai, V. N. Swamy, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the appellants.
M. N. Phadke and A. G. Ratnaparkhi, for the respondents.
The Judgment of the Court was delivered by Shah, C.J.
Dawalatshah and Ranwirshah sons of Pratapshah instituted an action in the Court of the Additional District Judge Chanda, for a decree for possession of property immovable (including the Zamindari of Dhanora) and movable specified in the Schedules annexed to the plaint, and for an order for payment of mesne profits and also for recovery of the amount of compensation in respect of certain lands received by the defendants from the Government of Madhya Pradesh and for an order declaring 326 their right to receive the balance of compensation remaining to be paid.
The plaintiffs relied upon the following genealogy Gangashah Niru Bhakta Sakru Kajur Raju Thakur Thakur Thakur ThakurThakur Sitaram Tanba Chatturshah Thakur Thakur (dead) Nilkanthshah Pratapshah Dawaltshah Ranwirshab Gulab Lallshah (Platff (Platff.
Shah dead) No. 1) No. 2) (dead) Hanmantrao Amarshah Basu Chandarshah Karanshah Niranshah Died Dec. 9, (dead) (dead) 1950) Diwakarrao (Died Sept., 8,1932) Ballarshah Karansbah Dayaram Indersbah (Deft.
No. 1) (Deft.
No. 2) Govinda Budha Rama Laxman (dead,) The plaintiffs claimed that the property in suit originally belonged to Gangashah.
Gangashah had five sons: Hiru, Bhakta, Sakru, Kajur and Raju.
The branches of Sakru and Kajur became extinct a long time ago.
The branch of Hiru (who was 327 the eldest among the five sons of Gangashah) because extinct with the death of Amarshah on December 6, 1950.
The plaintiffs claimed the Zamindari held by Amarshah relying upon the rule of primogeniture, and the other estate of Amarshah as devisees under the will of Amarshah executed on December 3, 1950.
They submitted that the Dhanora Zamindari was granted to Sitaram ancestor of Amarshah as an impartible estate, devolving by the rule of primogeniture; that the Zamindari on that account devolved on the death of Amarshah upon Pratapshah and that on the death of Pratapshah and Zamindari devolved upon the first plaintiff.
The plaintiffs also claimed that the other property including Malguzari lands devolved upon them under a will executed on December 3, 1950 whereby Amarshah devised his estate in their favour.
Accordingly the first plaintiff claimed that he was entitled to the Zamindari on the death of Pratapshah on January 27, 1951 and the plaintiffs claimed the other estate of Amarshah as devisees under his will.
The plaintiffs submitted that Dayaram the first defendant took wrongful possession of the Zamindari and other property, movable and immovable of Amarshah.
The defendants by their written statement maintained that the genealogical table set up by the plaintiffs was incorrect, that by the order of the Governor of Madhya Pradesh dated November 9, 1951, the Zamindari was conferred upon the 1st defendant Dayaram as he was found suitable to hold the, Zamindari and the decision of the Governor was binding upon the plaintiffs; that the decision of the Compensation Officer regarding Malguzari lands which vested in consequence of the enactment of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals Alienated Lands) Act 1 of 1951, had become binding and conclusive against the plaintiffs because no suit challenging the deci sion was instituted within two months from the date thereof and the plaintiffs were on that account not entitled to claim the compensation paid or payable in respect of the Malguzari lands; that Amarshah did not execute the will set up by the plaintiffs; and that Amarshah had made a will dated December 8, 1950 under which his estate was devised in favour of the defendants.
The Trial Court held that the Dhanora Zamindari was impar tible and was governed by the rule of primogeniture and Pratapshah father of the plaintiffs being the eldest member of the seniormost branch from among the descendants of the common ancestor Gangashah was entitled to the Zamindari; that the plaintiffs were entitled to receive compensation in respect of the Malguzari lands and the decision of the Compensation Officer did not operate to deprive the plaintiff of the right to those lands or compensation payable in respect thereof; that the will set up by the plaintiffs 328 dated December 3, 1950 was genuine and the plaintiffs were under the will entitled to the estate devised in their favour by Amarshah; that the will dated December 8, 1950, set up by the defendants was "a fabricated will" and conferred no right or title upon the defendants; and that the genealogical table set up by the plaintiffs represented the true relationship between the descendants of Gangashah.
In appeal by the defendants, the High Court of Bombay con firmed the decree of the Trial Court with a slight modification.
The High Court held that the genealogical table set up by the plaintiffs was correct, that according to the custom governing succession Dhanora Zamindari devolved upon Pratapshah on the death of Amarshah, and on the death of Pratapshah the first plaintiff became entitled to the Zamindari, that the order of the Governor recognising Dayaram as Zamindar was not binding and conclusive, for it was not shown that in making the order the Governor had acted in exercise of the power conferred by the Chanda Patent; that the order was contrary to the customs and the law governing the Zamindari; that the decision of the Governor did not oust the jurisdiction of the the Civil Court; that the will dated December 8, 1950 set up by the defendants was not genuine and the will set up by the plaintiffs dated December 3, 1950, was genuine; and that the plaintiffs ' suit with regard to Malguzart lands was not barred by the decision of the Compensation Officer.
The High Court accordingly confirmed the decree passed by the Trial Court in respect of the Zamindari replying upon the rule of inheritance incorporated in the Wazibul Arz of the Chanda District and by ' succession under the will dated December 3, 1950 in respect of the other property except as to certain occupancy lands held by Amarshah.
With certificate granted by the High Court the defendants have appealed to this Court.
Certain concurrent findings on which not much argument was advanced at the Bar may first be set out.
The High Court agreeing with the Trial Court on appreciation of evidence held that the genealogy set up by the plaintiffs represented the true relationship between the parties.
Again the High Court agreeing with the Trial Court held that the will dated December 3, 1950 set up by the plaintiffs was genuine while the will dated December 8, 1950 set up by the defendants was not genuine.
The argument that the High Court did not give due weight to certain important circumstances in reaching their conclusion relating to the will set up by the plaintiff is without substance.
The circumstances relied upon are that the writing instrument with which the body of the will was written and the writing instrument with which 329 Amarshah, it was claimed, signed or executed the will were different, that the will was not registered, that the appearance of the will was suspicious, that the will was unnatural because it devised the estate in favour of the plaintiffs after giving a life interest in favour of the testator 's widow Ratnabai, that the will had not been produced before the revenue authorities and before the Com pensation Officer when disputes in relation to the estate of Amarshah were pending before those authorities, and that it was produced for the first time nearly seven years after the death of Amarshah, and that the scribe who wrote the will did not belong to the village to which Amarshah belonged.
The Trial Court and the High Court have reached the conclusion that on the circumstances no suspicion as to the genuineness of the will dated December, 1950 arose.
It may be noticed that the plaintiffs were, at the date of their father 's (Pratapshah 's) death minors, and soon after Pratapshah 's death, their mother abandoned them and re married.
Thereafter no one a tended to the pending litigation.
Failure to produce the will before the revenue authorities was therefore not a circumstance in the view of the High Court, which militated against the genuineness of the will.
In the view of the Courts absence of registration, appearance of the will, the contents thereof, the dispositions, thereunder, and the fact that the writer of the will belonged to another village did not in the circumstances of the case give rise to any suspicion.
We do not think that sitting in appeal we would be justified in interfering with the conclusion recorded by the Trial Court and confirmed by the High Court on what is essentially a conclusion on a question of fact.
The will set up by the defendants is not proved to be a genuine will executed by Awarshah.
This again is a concurrent finding of the two Courts and must be accepted in this Court.
No, argument has been advanced ' to pursuade us to take a different view.
The rights of the parties must be adjudged in the light of these findings.
The dispute between the parties relates to three set of properties (a) Dhanora Zamindari (b) Malguzari lands; (c) Occupancy lands and movables.
The ancestors of the parties held an extensive Zamindari in the Chanda District.
After the advent of the British rule, in that region, the revenue authorities commenced settlement operations.
An inquiry was held by the Settlement Officer in connection with the lands held by the family of the parties and statements of some 330 members were recorded.
Chattarshah s/o Kajur stated that the Zamindari of Dhanora was standing in the name of his cousin Sitaram and that all the members of the family were joint and maintained themselves out of the income from the Zamindari.
In his statement Sakru admitted that the rule of primogeniture prevailed in the family.
He stated that Hiru was his eldest brother and Sitaram was the son of Hiru and the Zamindari was recorded in the name of Sitaram according to Awwal Haqq i.e. rule of primogeniture from ancient times, even though he was senior in age, and that there was no quarrel between him and Sitaram and that he and Sitaram were living jointly and were taking the income from the Zamindari.
The Settlement Officer made an order on November 2, 1867 that the "Zamindari is of ancient tenure and the present Zamindar Sitaram Thakur has proved his right to be Zamindar.
Subject to the conditions to be embodied in patent of proprietary right.
I confer proprietary right in the Zamindari of Dhanora on Sitaram Thakur".
The Settlement Officer observed that conferment of proprietary rights was subject to conditions to be embodied in a patent of proprietary rights.
It may reasonably be inferred that a formal grant was made in favour of Sitaram.
The form of the grant which is known as "Chanda Patent" is reproduced in Aitchison 's "Collection of Treaties, Engagements and Sanads" Vol.
II, pp. 573 574.
Under the Chanda Patent it :was declared that the tenure shall be indivisible, and non transferable (save to to the nearest male heir the transfer in such case being subject to the approval of the Chief Commissioner) the land shall be held by one person, the Zamindar or Zamindarin for the time being and shall be held on conditions of (i) loyalty (ii) good police administration and (iii) improvement and cultivation of the estate.
Clauses V, VI, VII of the grant relating to succession to the Zamindari held under the Patent : "V. Subject to the provisions contained in Clause VI, the order of succession shall be as under : On the death of the Zamindar, the estates shall devolve upon his eldest son.
In default of a son, and when adoption has not taken place, the succession should preferably devolve on the nearest male kinsman, the widow receiving a suitable Maintenance.
In the event of the first in order of succession being, in the opinion of the local Government, unfit to carry out the conditions of Clause IV, the Zamindaree 'shall devolve upon the nearest heir who possesses the required qualification.
331 VII.
The Zamindar, in the case of gross misconduct, shall be liable to removal by the local Government; and if such removal be ordered, the succession shall take place as if the Zamindar removed had died.
" Tenure of the grant is entered in the Wajibul arz.
The relevant recitals in the Wajibul arz are as follows PART 1 Rights and liabilities of Zamindar in relation to Government.
(1) Watan Zamindar 's Watan is not partible and it cannot be given to anyone other than quite close (the nearest), male heir.
Changes taking place in this way should have sanction of the Governor in Council.
The Zamindari shall be in the name of only one person and the Zamindari has been granted to the Zamindar in possession at present on the conditions of this remaining loyal to the Government, managing his estate properly and improving the cultivation.
(2) Heirs On the death of Zamindar the estate shall devolve upon his eldest son.
If there is no legitimate or adopted son, it shall devolve upon a very close (the nearest) male relative.
If there arises a dispute regarding right of inheritance, the Governor in Council will decide it in accordance, with the custom in that family.
If the Governor in Council finds that the first heir is unable to abide by the conditions stated in BAB (clause).
the Zamindari shall be granted to a quite close (the nearest) male heir possessing the necessary qualifications.
(3) Dispossessing the Zamindar and forfeiting his rights.
Governor in Council may dispossess the Zamindar on account of his behaviour and bad administration.
Such dispossession may be for a few days or permanent.
If it is for a few days, the Deputy Commissioner will manage the Zamindari on behalf of the Zamindar and if the order of dispossession is permanent, the Zamindar shall so to say be deemed to have died and the heir will get the right.
" The entries in the Wajibul arz substantially reproduce the terms of the Chanda Patent as set out in Vol.
II of Aitchison 's "Collection of Treaties, Engagements and Sanads".
One Major C. B. Lucie Smith made a report relating to the Land Revenue settlement of the Chanda District, Central Pro vinces, 1869.
At pp.
179 to 180 Major Lucie Smith has referred to the Zamindarees of the Chanda District.
He has stated under the head "Zamindarees".
332 "The Zamindarees were settled by me; and in order to explain the principles of settlement adopted if will be necessary to touch first upon the questions of tenure and history.
The weight of testimony goes to show that the Zamindars are the descendants of men on whom were conferred tracts of country, more or less wild with the object of their being brought under cultivation and order maintained.
Naturally, .
while, the law was weak and its administrators distant the Zamindar, as the lord on the spot, exercised large powers but powers apparently never recognised by either the Gand or the Maratta Government.
He was undoubtedly regarded as a noble, bound to furnish a small contingent when required by his sovereign ; but there is nothing to warrant to the supposition that he possessed an absolute right in the soil; indeed, as far as my experience goes, such a right is foreign to the ideas of the races of this part of India.
The rulers of the day evidently made and unmade Zamindars at their pleasure;. . .
Under these circumstances it appeared that the Chanda Chiefs, though the Nobles of the Country, possessed no absolute rights in the soil, and that it rested with Government to confer it; and in conferring it, to prescribe such conditions as might be deemed fitting.
A scheme of conditions to be embodied in the, patent of proprietary right, and in the administration paper of the Zamindarees, was therefore drawn up, based upon the usages actually existing from ancient times; and, with one exception, the proposed arrangements were sanctioned in their entirety by the Government of India, who directed that they were to be taken as a general model for those to be applied to the Zamindarees of the Bala ghat district and to the non feudatory Zamindarees of Chutteesgurh.
The provision not approved as that on the death of a Zamindar, the estate should in default of a son, devolve upon his widow.
This code of succession has obtained among the Chanda Chiefs from time immemorial, and is the rule not only among them but among all classes of landholders in the district.
It suits especially the character of the Gond women. .
Government, however, after weighing the arguments urged ', decided that it was conducive to the interests of 333 the Zamindarees that the, succession should devolve only upon a male member of the family, and the clause was altered accordingly.
" Pratapshah and the 1st defendant Dayaram were descendants of Gangashah and they were related to Gangashah in the same degree.
But Pratapshah was the descendant of Bhakta, and Dayaram was the descendant of Raju.
Bhakta was the elder of the two brothers.
It is recited in the Wajibul arz that the Dhanora Zamindari is impartible, that on the death of the holder it devolves upon his eldest son and in the absence of a legitimate or an adopted son it devolves upon the nearest male relative.
Devolution of, the Zamindari closely resembles the traditional rule of liberal primogeniture.
If the holder dies leaving him surviving no son legitimate or adopted, the Zamindari devolves upon a descendant from the common ancestor of the nearest degree and in the event of there more, descendants from the common ancestor being in the same degree, the descendant in the senior line is preferred.
Succession to the Zamindari is subject to the power of the Governor to dispossess a person found unfit to observe the conditions of loyalty, good police administration and improvement and cultivation of estate.
But if the nearest in the line of succession is not selected the estate must be given to the nearest heir who has the prescribed qualifications and is a successor to the Zamindar.
When the Zamindar is removed, succession takes place as if the Zamindar so removed had died.
By the use of the expression "nearest male relative" the test of propinquity alone may be applied and when there are two or more claimants equally removed from the common ancestor the eldest male member in the senior most line will be preferred.
In adjudging the plaintiffs claim the Court must determine whether Pratapshah father of the plaintiffs, was the nearest male relative of Amarshah.
On the death of Amarshah there were two male relatives they were Pratapshah father of the plaintiffs and the 1st defen dant Dayaram.
The contest between them had to be adjudged in the light of the rules of lineal primogeniture governing an impartible estate which are well established : Succession is governed by the rules which governs succession to partible property subject to such modifications only as flow from the character of the impartible estate; the only modification which impartibility suggests in regard to the right of succession is the existence of a special rule for the selection of a single heir when there are several heirs of the same class who would be entitled to succeed to the property if it were partible under the general Hindu law; and in the absence of a special custom, the rule of primogeniture furnishes a ground of preference.
334 Subramanya Pandya Chokka Talawar vs Siva Subramanya Pillai(1).
In determining a single heir according to the rule of primogeniture the class of heirs who would be entitled to succeed to the property if it were partible must be ascertained first, and then the single heir applying the special rule must be selected.
Counsel for the first defendant submitted that under the terms of the Chanda Patent the Zamindari devolves on the death of the holder on the male relative who is the senior most in age, and not on the eldest member in the senior line.
There is nothing in the Chanda Patent which supports that contention.
By the use of the expression "nearest male relative" the rule of primogeniture is prescribed, it is not intended to confer the estate upon the eldest male relative of the Zamindar.
Counsel also submitted that under the terms of the Chanda Patent and the terms recorded in the Wajib ul arz the Governor having the right to determine inheritance and the right to remove a person who is not loyal or does not manage the property or does not improve the cultivation or who is guilty of bad behaviour or bad administration, it must be assumed that the holder of the Zamindari has merely a life interest and on the death of the holder, the Governor re grants the land consistently with the rules of succession according to the law and custom amongst the members of the family but subject to the dominant purpose of good administration and loyalty to the Government.
Counsel for the first defendant relied upon certain circumstances which he claimed established that the interest of the Zamindar was restricted to his life and on his death there was resumption and re grant of the Zamindari by the Governor.
Counsel submitted that the Zamindari was impartible and develoved upon the nearest male heir, that the sanction of the Governor was necessary for transfer, and also for recording inheritance, that loyalty, good management and improvement of cultivation were the conditions for holding the lands and that if the behaviour of the Zamindar was found unsatisfactory or that he was not capable of good adminis tration he was liable to be removed.
On that ground, said Counsel, the Government alone was competent to decide a dis pute arising out of inheritance.
But the power to take extraordinary steps to protect the interest of the Zamindari by the removed of the holder does not restrict the title of the Zamindar to a mere life interest.
The incidents of the tenure are restrictions on the estate of the Zamindar, but those restrictions do not make him a mere life tenant.
Under the Chanda Patent the lands of the Zamindari held by the family were confirmed in 1867 in favour of Sitaram.
On his (1)I. L. R. at p. 325.
335 death they devolved upon Hanmantrao.
There is no evidence that any fresh grant was made.
On the death of Hanmantrao the lands devolved upon his son Diwakarrao who died on September 8, 1932.
On the death of Diwakarrao dying without leaving any male descendant there arose a dispute between Pratapshah and Amarshah.
Pratapshah claimed to be the adopted son of Diwakarrao and on that ground entitled to take the Zamindari.
An inquiry was held and it was decided that Pratapshah failed to prove the adoption set up by him.
On the death of Amarshah again without leaving any male lineal descendant disputes arose.
The evidence is not clear as to whether any formal grant was issued in favour of Sitaram.
There is no evidence that recognition of the heirs of the successive Zamindars was accompanied by the issue of fresh patents or grants.
Succession was merely recognised by the revenue authorities.
The argument that the grant was for life of the grantee is therefore not supported by the terms of the Chanda Patent, nor by the entries in the Wajib ularz.
nor by the history of the Zamindari.
The right to determine inheritance it is true vests in the Governor but the power is exercisable in accordance with and not in violation of the custom of the family.
In determining the heir the Governor is not granting afresh the Zamindari; he merely determines the successor in accordance with the custom of the family.
The right of the Governor to remove a holder who is disloyal or does not manage his estate properly or does not improve cultivation or is otherwise of "bad behaviour" or guilty of bad administration, does not involve a condition that the interest of the Zamindar is only for his life.
When a holder of the Zamindari is removed, the Governor is bound to hand over the Zamindari to the next heir in the order of succession if the Zamindar removed had died and the heir will get the right.
Counsel, then contended that in any event the decision of the Governor in 1950 declaring Dayaram to be the successor on the death of Amarshah was 'binding and conclusive and could not be reopened.
Counsel urged that Pratapshah and the 1st defendant Dayaram were related to the common ancestor in the same degree, and it was open to the Governor to select one of the two members of the family related to the last holder in the same degree even though the person selected did not belong to the senior most line.
But if succession to the Zamindari is governed by the rule of lineal primogeniture, selection of a member of a branch in preference to a member of the senior branch would be plainly illegal.
Again, the evidence does not warrant the view that the Governor purported to pass any order in pursuance of the provisions of the Chanda Patent or the rules of succession recorded in 336 the Wajib ul arz.
The order of the Governor is in the form of a memorandum addressed to the Deputy Commissioner, Chanda, ,dated November 9, 1951 and it states that "Government are pleased to recognise Shri Dayaram Bapu son of Ballarshah Bapu Raj Gond as the Zamindar of Dhanora Zamindari in the Carchiroli tahsil of the Chanda District till the date of vesting of the Zamindari in the State Government".
There is no evidence that the Governor made any enquiry to determine the successor of Amarshah.
An order by the Gover nor purporting to exercise powers under the Chanda Patent con templates a quasi _judicial inquiry.
The order does not show that any inquiry was made for determining the rights of the contesting claimants or that any notice was issued to them or that they were heard before the Governor decided the issue.
There is nothing in the pleadings in that behalf.
The Governor is invested with quasi judicial power, and if there be a dispute.
the dispute must be decided after holding an inquiry, and the decision must be reached consistently with the rules of natural justice and in accordance with the custom of the family.
A bald statement that the "Government are pleased to recognise Dayaram Bapu son of Ballarshah Bapu as the Zamindar of Dhanora Zamindari" does not disclose the reason for rejecting the claim of Pratapshah who according to the custom of the family was "the nearest male relative".
There is no evidence on the record that the Governor was even aware that there were other claimants and if he was aware what their claims were and that the Governor had considered those claims before recognizing the claim of Dayaram.
In the 'absence of any evidence that the order was made by the 'Governor in exercise of the power conferred by the Chanda Patent it is unnecessary to consider whether any order made by the Governor is in exercise of the powers 'of the patent excludes the jurisdiction of the civil court.
The decision of Governor was apparently reached without any inquiry and was plainly contrary to the rules of Hindu Law and the custom of the family in the light of which alone the Governor was by the express mandate competent to adjudicate the claim.
It is true that there were mutation proceedings in regard to the Zamindari before the Naib Tahsildar Garchiroli Tahsil.
The Naib Tahsildar by his order dated May 9, 1951 held that the dispute relating to the mutation was raised by Pratapshah, that Amarshah had died issueless, that the genealogical tree set up by Daulatshah son of Pratapshah was incorrect being unsupported by reliable evidence,, that copies of settlement of 1867 were mere statements of interested persons, that the genealogical tree filed by Dayaram resembled the genealogical tree filed by Pratapshah 337 and was held to be genuine; that Amarshah had clearly admitted in his statement that Dayaram was entitled to succeed to the Zamindari after him and that Dayaram was the nearest male kinsman to the deceased Amarshah.
This decision of the Naib Tahsildar proceeded upon a genealogy produced by Dayaram which on the findings of the Trial Court as well as the High Court in this case is incorrect.
The decision of the Naib Tahsildar in a mutation proceeding even as a piece of evidence has little evidentiary value when it is founded on a material piece of evidence which was untrue.
The proceedings were carried in appeal before the Deputy Commissioner.
The Deputy Commissioner confirmed the order by his decision dated August 8, 1951.
He also accepted the genealogy set up by Dayaram and held that there were no other nearer male descendants in the branch and that Pratapshah was one degree more removed than Dayaram.
In view of the infirmity attaching to the genealogy relied upon by the Revenue Officer that decision has also little evidentiary value.
The orders passed by the Governor and the revenue authori ties do not exclude the jurisdiction of the civil court to decide the question of kinship.
In that view we agree.
with the High Court that the Zamindari originally confirmed in favour of Sitaram must according to the tenure as recorded in the Wajib ul arz devolve upon the first plaintiff Dawalatshah to the exclusion of the first defendant Dayaram.
The right in Malguzari land was since the death of Amarshah extinguished by the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1 of 1951.
The Malguzari lands are by the devise contained in the will dated December 3, 1950 given to the plaintiffs.
Compensation in respect of the lands would therefore belong to the plaintiffs.
But it is urged that notwithstanding the devise, because of the order of the Claim Officer under Section 14 of Act 1 of 1951, the plaintiffs were not entitled to agitate the question of heirship.
It is enacted by section 3 of the Act that on and from a date to be specified by a notification by the State Government in that behalf, all proprietary rights in an estate, mahal, alienated village or alienated land as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances.
Section 4 sets out of the consequences of the vesting of the land in the Government by N irtue of the notification issued under section 3.
Section 8 provides for assessment of compensation payable to every proprietor, who is 8 L807SupCI/71 338 divested of proprietary rights.
The compensation is to be, determined in accordance with the rules contained in Sch.
Section 12 requires that a proprietor who is divested of proprietary rights by virtue of a notification issued under section 3 shall, within such period as may be prescribed, file a statement of claim in the prescribed form and specify the particulars mentioned therein.
Section 13 authorises the Compensation Officer to determine the amount of compensation.
Section 14 provides: "(1) If during the course of an enquiry by the Compensation Officer, any question is raised regarding the proprietary right in any property divested under Sec. 3 and such question has not already been determined by a court of competent jurisdiction, the Compensation Officer shall proceed to enquire summarily into the merits of such question and pass such orders as he thinks fit." (2) The order of the Compensation Officer under sub section (1) shall not be subject to any appeal or revision, but any party may, within two months from the date of such order, institute a suit in the civil court to have the order set aside, and the decision of such court shall be binding on the Compensation Officer, but subject to the result of such suit, if any, the Compensation Officer shall be final and conclusive".
Counsel for Dayaram urged that the Compensation Officer had decided by his Order dated August 30, 1951 that compensation in respect of the Malguzari land was payable to Dayaram and since no suit was filed by the plaintiffs for setting aside that decision, the order of the Compensation Officer became final and conclusive and could not be reopened in a suit filed more than six, years after that date.
We are unable to accept that contention.
The Compensation Officer is entitled to decide a question only regarding the proprietary right in the property divested under section 3.
He is not concerned with determination of any question relating to a private dispute between two or more persons who make competing claims in the matter of compensation, relying upon their respective titles.
A question regarding the pro prietary rights may in ordinary course be raised only in a claim against the State, and if that claim be decided against the claim ' ant in a summary inquiry held by the Compensation Officer, a suit to set aside the decision must be filed within two months from that date and if no suit is filed, the order becomes final and conclusive.
section 14 was enacted with a view to put an end to disputes with regard to the claims to proprietary rights which by 339 virtue of the notification issued under section 3 are extinguished.
It is not intended by an Order under section 14 to determine complicated questions of title by the adjudication of a revenue officer in a summary inquiry without even a right of appeal and to make his adjudication conclusive unless a suit be filed within two months from the date of the order.
That is also clear from the terms of section 35(7) of Act 1 of 1951 which provides "The payment of compensation under this Act to the creditors of a proprietor or to the proprietor in accordance with the prescribed manner shall be a full discharge of the State Government from all liability to pay compensation for the divesting of proprietary rights, but shall not prejudice any rights in respect of the said rights to which any other person may be entitled by due process of law to enforce against the person to whom compensation has been paid as aforesaid".
The Civil Court is declared competent to determine disputed questions with regard to title to 'compensation.
We agree With the High Court that section 14 of Act 1 of 1951 does not invest the Compensation Officer.
with jurisdiction to determine competing claims, of persons claiming proprietary rights to the property vesting in the Government by the operation of section 3 of the Act.
Section 14 is intended to determine only the proprietary rights in the land, qua the State.
Finally it was urged that the Trial Court granted Rs. 10,000/as mesne profits, and even though the, High Court disallowed the claim of the plaintiffs with regard to certain items no reduction was made in the total amount of mesne profits awarded corresponding to the claim disallowed.
Counsel for the plaintiffs concedes that the High Court was in error in not reducing the amount of mesne profits awardable to the plaintiffs.
He agrees that instead of the figure of Rs. 10,000/ awardable to the plaintiff Rs. 8,000/ should be substituted.
We modify the mesne profits awarded.
Subject to this modification, this appeal fails and is dismissed with costs.
K.B.N. Appeal dismissed.

Output:
Under the Chanda Patent and the terms recorded in the Wajibul Arz the Dhanora Zamindari was impartible and on the death of the holder it devolved upon his eldest son and in the absence of a legitimate or an adopted son it devolved upon the nearest male relative.
The succession to the Zamindari was subject to the power of the Governor to dispossess a person found unfit to observe the conditions of loyalty, good police administration and improvement of the estate.
The respondent instituted an action for possession of certain immovable properties including the zamandari and for recovery of compensation, in respect of malguzari lands, paid to the appellants in consequence of the enactment of the Madhya Pradesh Abolition of Proprietary Rights (Estate, Mahals, Alienated Lands) Act, 1951.
They claimed the Zamindari relying upon the rule of primogeniture and other estates as devisees under a Will.
The trial court decreed the suit and the High Court affirmed the decree with slight modifications.
in the appeal to this Court the appellants urged that (1) the Zamindari devolved on the death of the holder on the male relative who is senior most in age and not the eldest member in the senior line; (2) by the order of the Governor the Zamindari was conferred upon the first appellant as he was found suitable to hold the zamindari and since the Government had the power to determine inheritance and the right to remove a person, the holder of the zamindari had merely a life interest; and (3) the compensation officer had decided by his order under section 14 of the Act that compensation in respect of malqutari land was payable to the first appellant and since no suit was filed by the plaintiffs for setting aside that decision within the period specified, the order of the compensation officer became final and conclusive.
HELD : (1) By the use of the expression "the nearest male relative" the test of propinquity alone may be applied and when there are two or more claimants equally removed from the common ancestor the eldest male member in the senior most line will be preferred.
The contest between the parties had to be adjudged in the light of the rules of lineal primogeniture governing an impartible estate.
In determining a single their according to the rules of primogeniture the class of heirs who would 325 be entitled to succeed the property if it were partible must be ascertained first, and then the single heir applying the special rule must be selected.
By the expression "nearest male relative" it was not intended to confer be estate upon the eldest male relative of the Zamindar.
The High Court was, therefore, right in holding that the Zamindari devolved upon the first respondent to ' the exclusion of the first appellant.
[333 C F] (2) The power vested in the Governor to take extraordinary steps to protect the interest of the zamindari by the removal of the holder did not restrict the title of the zamindar to a mere life interest.
The power had to be exercised in accordance with the custom of the family and an order by the Governor purporting to exercise powers under the Chanda Patent contemplated a quasi judicial inquiry.
The order does not show that any inquiry was made for determining the rights of the contesting claimants.
[334 G] (3) Section 14 of Act 1 of 1951 does not invest the compensation officer with jurisdiction to determine competing claims of persons claiming proprietary rights to the property vested in the Government by the operation of section 3 of the Act.
Section 14 is intended to determine only the proprietary rights in the land qua the State.
[339 D E]


Input:
minal Appeal No. 118 of 1959.
Appeal by special leave from the judgment and order dated July 2, 1957, of the Calcutta High Court in Criminal Appeal No. 101 of 1956 arising out of the judgment and order dated January 16, 1956, of the Second Court of the Municipal Magistrate, Calcutta, in case No. 208B of 1955.
C. B. Aggarwala, B. B. Tawakley and B. P. Maheshwari, for the appellant.
Nalin Chandra Bannerjee, Sunil K. Basu, section N. Mukherjee for P. K. Bose, for the respondent No. 2. 1960.
November 24.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
This is an appeal by special leave against the 'Order of the Calcutta High Court affirming the conviction of the appellants Messrs. Madan Mohan Damma Mal Ltd., and Om Prokash Manglik, its Manager, under section 462 of the Calcutta Municipal Act, 1951 (W. B. XXXIII of 1951) hereinafter called the Act.
The facts leading to this appeal are that Messrs. Madan Mohan Damma Mal Ltd., (hereinafter called appellant No. 1) sent a consignment of mustard oil, about 499 maunds in weight, from Firozabad, the place of manufacture, to itself, at Calcutta, on December 25, 1954, in tank wagon No. 75612.
This wagon was placed at the Pathuriaghat siding at Calcutta at 666 about 8.45 a.m., on January 3, 1955.
Dr. Nityananda Bagui, Food Inspector of the Calcutta Corporation, accompanied by certain police officers, went to that siding and took three samples of mustard oil contained in this wagon, after arranging with Om Prokash Manglik, appellant No. 2, who was found near the wagon, the purchase of 12 ounces of oil for annas eight.
He took the sample of oil in three phials.
They were properly sealed.
One of them was given to appel lant No. 2.
The other two were kept by Dr. Bagui.
He sent one of them to the Public Analyst for examination, the same day.
Ashit Ranjan Sen, the Public Analyst, examined the oil contained in that phial on January 3, 1955, but could not come to any positive opinion about its purity.
Dr. Bagui, however, seized the tank wagon that evening, sealed it with the Corporation 's seal and left it in the custody of appellant No. 2.
The oil in the tank was allowed to be removed to the godown of the appellants on January 6, 1955.
The lock of the godown was then sealed with the seal of the Corporation.
Mr. Sen reported on January 4, 1955, that the oil was adulterated.
He sent a detailed report about the result of the examination on January 24, 1955.
On receipt of the report about the mustard oil being adulterated, Dr. Bagui filed a complaint against the appellants on February 4, 1955, with respect to their.
selling and keeping for sale mustard oil, a sample of which was found on analysis to be mustard oil which was adulterated with groundnut oil.
During the course of the trial, the trial Court, on an application on behalf of the appellants, ordered the despatch of the third sample phial of the oil in the custody of the Corporation 's Health Officer, to the Director of Health Services, Government of West Bengal, for analysis and report.
This sample was analysed by Dulal Chandra Dey, Court Witness No. 1, and found to be adulterated with groundnut oil.
The report of the Analyst was, however, sent to the Court under the signature of Dr. section K. Chatterjee, D. W. 2, Deputy Director of Health Services, Government of West Bengal.
667 The appellants appear to have sent the sample of oil in their possession to Om Prakash, Oil Expert to the U.P. Government, who reported on July 27, 1955, that the sample 'conforms to Agmark Specification for Mustard Oil and is considered to be free from adulterants such as sesame, groundnut and linseed oil '.
This report, however, has not been proved.
The Deputy Commissioner of Police, Enforcement Branch, Calcutta, sent a sample of mustard oil on January 10, 1955, to the Public Analyst, Food & Water, West Bengal Public Health Laboratory.
Sri section N. Mitra, D. W. 7, examined this sample and reported, on the basis of its saponification value to be 173.3, and iodine value to be 105, that the sample approximated to the standards of genuine mustard oil.
This report does not establish that the sample was of pure mustard oil.
Sri Mitra 's reply to the query from the Deputy Commissioner of Police for clarification, makes this very clear.
It is: "But, unless conclusive evidence of the presence of a foreign oil, corroborated in some instances by the figures of the usual oil contents, is obtained, the sample is not and cannot be declared adulterated.
In the present case the sample of mustard oil has already been examined exhaustively and has been certified as `approximating to standards ' but not as genuine.
The legal implication of the expression is that the sample will have the benefit of doubt.
" Further, there is no good evidence on the record to establish that the sample sent to Sri Mitra was a sample from the appellants ' tank wagon.
Dr. Bagui does not depose about the police people taking a sample of oil.
He was not questioned about the police taking any sample of the oil.
There seems to be no good reason for the police taking a sample of oil for the purpose of analysis and finding out whether the mustard oil was pure or not.
The case put to Dr. Bagui during his cross examination, on behalf of the appellants, appears to have been that he himself had taken four samples of the mustard oil in question and that one of those samples was sent to the Enforcement Branch.
Dr. Bagui denied that he had taken 668 four samples of the mustard oil, His statement is fully corroborated by the statement of Kalidas Ganguli, Sub Inspector, Calcutta Enforcement Branch, Police Department, who had accompanied Dr. Bagui on the occasion.
He stated that the Corporation Food Inspector took three samples and the police took the one ,,sample which was sealed with the Corporation seal.
We are not satisfied that the police actually took one sample of the oil and had it sealed with the Corporation seal as deposed to by Kalidas Ganguli.
The Courts below found on the evidence that the mustard oil in the appellants ' tank wagon was adulterated with groundnut oil, that the appellants were in possession of that oil and had stored that oil for sale, in view of the presumption arising under subs.
(4) of section 462 of the Act, and which had not been rebutted on behalf of the appellants.
Learned counsel for the appellants has questioned the correctness of these findings.
We have considered the evidence in connection with the analysis of the samples of mustard oil by the Chemists.
Ashit Ranjan Sen, P.W. 2, Public Analyst, who examined the first sample sent by Dr. Bagui on January 3 4, 1955, found it adulterated, on the basis of the data that the B. R. Index at 40 degree C was 60.4 and the Bellier 's test for groundnut oil was positive inasmuch as it gave turbidity at 28 degree C. Court Witness No. 1, Dulal Chand Dey, who actually analysed the sample sent by the Court, also found it adulterated, on the basis of his obtaining the saponification value to be 175.5, iodine value to be 106degree 8 and the appearance of turbidity at 27 degree C. He also found indication of the presence of a small amount of linseed oil.
The correctness of his opinion on these data is admitted by Sri Mitra, D.W. 7.
In these circumstances, the finding of the Courts below that the mustard oil in the appellant 's tank wagon was adulterated is correct.
It is not established that the sample of mustard oil sent to Sri Mitra by the Deputy Commissioner of the Enforcement Branch contained mustard oil from this tank wagon.
The opinion of Sri Mitra about the nature of that sample therefore does not go against the opinion 669 of Sri Sen and Sri Dey that the mustard oil analysed by them was adulterated with groundnut oil.
The other contention for the appellants is that they were not in possession of the oil when the sample of mustard oil was taken by Dr. Bagui and that therefore no presumption under sub section
(4) of section 462 of the Act can be raised against them for holding that the oil was stored for sale.
It appears from the judgment of the High Court under appeal that it was not disputed at the hearing before it that the appellants were in possession of the mustard oil whose sample had been taken.
On the evidence on the record we are of opinion that they were in possession of the mustard oil.
The consignment of oil was from the manufacturing firm, appellant No. 1, to itself at Calcutta.
Its manager, appellant No. 2, took delivery of the wagon from the railway authorities on January 3, 1955.
There is no direct evidence to the effect that such delivery was taken prior to Dr. Bagui 's taking sample of the mustard oil.
But the circumstances, in our opinion, conclusively establish that appellant No. 2 had taken delivery of the wagon prior to Dr. Bagui 's visit and taking samples of oil from the wagon.
Appellant No. 2 is not expected to and could not have got the wagon opened for 'the purpose of taking samples of oil, if he had not taken delivery of the wagon from the railway authorities.
The railway authorities themselves would have seen to it that nobody tampers with the contents of the wagon in its charge.
Appellant No. 2 must have therefore paid the freight for the wagon prior to Dr. Bagui 's visit and thus obtained delivery of the wagon.
It was thereafter that he got control over the wagon and was in a position to take out oil from it or to permit anyone else to take out oil.
We therefore hold that the appellants were in possession of the oil in the tank wagon when Dr. Bagui took samples of the oil from it.
The main contention, however, for the appellants is that the presumption that the mustard oil was stored for sale by the appellants, under sub section
(4) of section 462 of the Act, is rebuttable and has been fully rebutted in view of certain arrangements between the 83 670 U.P. Oil Millers Association and the Deputy Commissioner of Police, Enforcement Branch, and the letter of the appellants to the Secretary of the Association (Exhibit R) on January 3, 1955.
We have considered the various documents which have been referred to in support of the arrangement between the Association stand the Deputy Commissioner, Enforcement Branch, but do not find therein anything which would restrain legally the appellants from selling the oil even if it is found to be adulterated.
The proceedings of the meeting of the U. P. Oil Millers Association held on June 9, 1954, and attended by the Deputy Commissioner and Assistant Commissioner of the Enforcement Branch show that no such agreement has been arrived at.
Even the suggestion of the Deputy Commissioner that all the members of the Association should write to their respective mills that all the quantity of oil which would be imported should at first be passed and then made delivery of, was not fully accepted, the members simply stating that they always and invariably imported pure mustard oil.
It was, however, decided that the samples of oil be taken from the next morning, i.e., June 10, 1954.
We however find that in November 1954 the U. P. Oil Millers Association wrote to appellant No. I that according to the decision of the Deputy Commissioner of Police, Enforcement Branch, every application to draw sample and test it should be accompanied by a certificate signed by the Chemist or the Manager or the Proprietor of the Mills to the effect that the mustard oil in the tank wagon was pure mustard oil free from Argemoni, linseed or any other adulteration, and that in February 1955 and April 1955, the Deputy Commissioner of Police, Enforcement Branch had to remind the U. P. Oil Millers Association that it should advise all its members that whenever they indent any mustard oil from outside Bengal, they would see that the railway receipts be accompanied by a clear certificate of examination from the Chemist of the factory who examined the same.
Such directions from the Deputy Commissioner of Police, Enforcement Branch, do not appear to have 671 had any great effect, as the consignment of oil received by the appellants was without any such certificate.
Mahendra Kumar Gupta, D.W. 1, Chemist of the appellants ' mill, deposed however that he had taken the sample of the oil sent in that wagon and found it to be genuine mustard oil, free from any adulteration.
Any such certificate about the purity of the mustard oil sent is not proved to have accompanied the railway receipt and to have been shown or made over to Dr. Bagui, or to the Police Officers who had accompanied him at the time.
Letter Exhibit R was sent on behalf of appellant No. I to the Secretary of the U. P. Oil Millers Association at 10 a.m., on January 3, 1955.
The letter said: "Please arrange for sample and test through the proper authorities concerned, so that we may take the delivery of oil only if it is found pure on analysis." Any such statement can hardly be sufficient to rebut the presumption that the oil which was consigned by appellant No. I to itself at Calcutta was stored for sale.
The letter itself does not say that the oil will not be sold.
It simply says that they may take the delivery of the oil only if it is found pure on analysis.
What would be done to the oil if it is found to be impure, is not stated.
The Association was not in any arrangement with the Corporation which had the sole authority to take action with respect to the adulterat ed mustard oil.
The Enforcement Branch of the Police had nothing to do with it.
In the circumstances, all the so called arrangement with the Enforcement Branch of the Police and the consequent letters, similar to letter Exhibit R, seem to be a subtle device to make things difficult for the proper authorities responsible to see that mustard oil fit for sale be pure.
It is obvious in this case itself, how this sort of arrangement has provided an occasion for the coming into existence of the alleged fourth sample of mustard oil from the appellants ' tank wagon and the non committal report about its purity.
We are therefore of opinion that this letter Exhibit R, or the arrangement which led to such communication, does not establish 672 that the mustard oil in the wagon which will be otherwise presumed to be stored for sale by the appellants, was not stored for sale.
We are therefore of opinion that the conviction of the appellants of the offence under section 462 of the Act is correct.
The appeal therefore stands dismissed.
Appeal dismissed.

Output:
The first appellant No. 1 sent a consignment of mustard oil in a tank wagon from Firozabad, U. P. to itself at Calcutta where it took delivery of the wagon from the railway authorities.
The Food Inspector took samples of the oil from the wagon which on analysis were found to be adulterated.
The appellants were prosecuted under section 462 of the Calcutta Municipal Act, 951 for storing adulterated mustard oil for sale.
The 665 appellants contended that the presumption under sub section
(4) of section 462 that the mustard oil was stored for sale was rebutted in view of certain arrangements between the U. P. Oil Millers Association and the Deputy Commissioner of Police and of a letter written by the appellants to the Association asking that a sample may be taken and tested so that the appellants "may take the delivery of oil only if it is found pure on analysis.
" Held, that this was not sufficient to rebut the presumption '.
that the oil was stored for sale.
The letter did not say that the oil would not be sold; it was not stated as to what would be done if the oil was found to be impure.
There was no arrangement between the Association and the Corporation which was the sole authority to take action.
The arrangement and the letter were a device to make detection difficult.