सम्मन लेने से इंकार करने वाला प्रतिवादी एकतरफा आदेश खारिज करने की मांग का अधिकारी नही- सर्वोच्च न्यायालय

हाई कोर्ट के उस फैसले को सर्वोच्च न्यायालय ने रद्द कर दिया है जिसमे नागरिक प्रक्रिया संहिता (सीपीसी) के आदेश 9 नियम 13 के तहत एक पक्षीय डिक्री को रद्द करने की इजाजत दी गई थी।

इस प्रकरण में प्रतिवादी ने वाद में जारी समन को स्वीकार करने से स्पष्ट इनकार कर दिया था। वाद के एकतरफा फैसले के उपरांत, निष्पादन की कार्यवाही शुरू की गई थी। प्रतिवादी ने विवादित संपति से जुड़े हुए नीलामी नोटिस प्राप्ति की विधिवत स्वीकृति दी थी। नीलामी इस प्रकार किये जाने के बाद उन्होंने संहिता के आदेश 9 नियम 13 के तहत अर्जी दायर की थी।

ट्रायल कोर्ट ने आवेदन को खारिज कर दिया, लेकिन हाई कोर्ट ने अपील में इसकी इजाजत दे दी। हाई कोर्ट ने कहा कि अपीलकर्ता की अनुपस्थिति के कारण वादी को हुई असुविधा की क्षतिपूर्ति उचित लागत वहन करके की जा सकती है। 

हाई कोर्ट द्वारा वाद को बहाल करने से व्यथित वादी ने सुप्रीम कोर्ट का रुख किया। 

सुप्रीम कोर्ट के जस्टिस इस रविंद्र भट्ट और जस्टिस उदय उमेश ललित की पीठ ने कहा कि संहिता के आदेश 5 नियम 9 के उपनियम 5 में अन्य बातों के साथ साथ कहा गया है कि अगर प्रतिवादी या उंसके एजेंट ने समन से जुड़ी हुई डाक की डिलीवरी लेने से स्पष्ट इनकार कर दिया था, समन जारी करने वाला कोर्ट घोषित करेगा कि प्रतिवादी को समन विधिवत तामील किया गया था।

पीठ ने सामान्य खंड अधिनियम 1897 की धारा 27 का भी उल्लेख किया, जिसके अंतर्गत नोटिस तामील माना जाता है जब इसे पंजीकृत डाक द्वारा सही पते पर भेजा गया हो। 

यह नोट किया गया है कि सीसी अलावी हाजी बनाम पलापेट्टी मुहम्मद एंव एआर एआईआर 2007 एससी सप्लीमेंट 1705 प्रकरण में सुप्रीम कोर्ट ने माना है कि जब एक नोटिस पंजीकृत डाक द्वारा भेजा जाता है और अस्वीकार अथवा घर और उपलब्ध नही है या घर बंद या दुकान बंद या पताकर्ता मौजूद नही है जैसे डाक पृष्ठांकन के साथ वापस किया जाता है तो उसे उचित सेवा मान ली जानी चाहिए।

ITR filing deadline for FY20-21 extended to December 31, 2021

The government on Thursday extended the deadline to file income tax return (ITR) for FY 2020-21 for most individuals from the earlier deadline of September 30, 2021, to December 31, 2021. The extension of the deadline is for those individuals whose accounts are not required to be audited and who usually file their income tax return using ITR-1 or ITR-4 forms, as applicable.

In a statement, the Finance Ministry said that the decision has been on consideration of difficulties reported by the taxpayers and other stakeholders in filing of income tax return and various reports of audit for the Assessment Year 2021-22 under the Income Tax Act, 1961.

The income tax return (ITR) filing deadline for FY 2020-21 for individuals has already been extended, from the normal deadline of July 31, 2021. However, the new income tax filing portal has been marred by glitches and other problems from inception. Finance minister Nirmala Sitharaman has given Infosys, the company which set up the new income tax portal, time till September 15, 2021 to fix all the problems.

Last year too, the government has extended the due date of filing ITR for individuals four times – first from July 31 to November 30, 2020, then to December 31, 2020, and finally to January 10, 2021.

Anticipatory Bail - Non-bailable warrant issued - Prima-facie case is found to be made out against applicant held that this is not a fit case for grant of anticipatory bail. (High Court Allahabad)

Anticipatory Bail - Non-bailable warrant issued - Prima-facie case is found to be made out against applicant held that this is not a fit case for grant of anticipatory bail. Criminal Procedure Code, 1973 Section 438 Indian Penal Code, 1860 Section 353 Prevention of Public Property Damages Act, 1984, Sections 3 and 5 - Anticipatory Bail Application - As per F.I.R., lodged by informant he is Lekhpal of village concerned - Vacant part of land belonged to Gaon Sabha, on which Gram Pradhan and co-accused were raising small boundaries - After intervention of Sub-Divisional Magistrate and Tehsildar police had to be called and illegal construction was removed - Anticipatory bail rejected to co-accused by Court Case of co-accused is not different from case of applicant - Charge sheet has been submitted against him and he is not appearing before Court below for trial - Non-bailable warrant issued against him Looking to fact that charge sheet has been submitted, which would disclose that prima-facie case is found to be made out against applicant held that this is not a fit case for grant of anticipatory bail - time granted to Two weeks applicant to surrender before Court below Anticipatory bail application of applicant stands disposed of.

(LMASLFD1785872)

Plaint cannot be rejected u/o VII Rule 11(d) of the CPC if the issue of limitation is a mixed question of law and fact.

The Supreme Court has held that a plaint cannot be rejected under Order VII Rule 11(d) of the Code of Civil Procedure if the issue of limitation is a mixed question of law and fact.

A bench comprising Justices Hemant Gupta and V Ramasubramaniam observed so while reversing a Bombay High Court's judgment which had upheld a civil court's order to reject a plaint.

The suit in question was filed essentially to set aside an order passed by the Agricultural Land Tribunal to issue sale certificate in respect of a tenancy under the Maharashtra Tenancy and Agricultural Lands Act, 1948.

The defendants raised an argument that that the suit filed in 1987 challenging the order passed in 1963 was time-barred. They also contended that civil suit was barred against the order of ALT under the Act. Raising these points, they sought for rejection of plaint under Order VII Rule 11 CPC. The trial court accepted these arguments and the plaint was rejected. This was upheld by the Bombay High Court.

The plaintiffs approached the Supreme Court assailing the rejection of the plaint.

As regards the issue of limitation, the Supreme Court noted that the plaintiffs had raised a contention that the suit was filed within the period of limitation from the date they got knowledge about the order of ALT. Whether this claim is true or not, it was a triable issue, and should not have been rejected at the threshold itself, the Supreme Court said.

"...the rejection of plaint under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11", the Supreme Court observed.

"Insofar as the rejection of plaint on the ground of limitation is concerned, it is needless to emphasis that limitation is a mixed question of fact and law", the judgment authored by Justice Ramasubramanian stated.

"We are dealing with a case where the plaintiffs assert in no uncertain terms that notices were never ordered to them nor served on them. Therefore, the answer to the issue  regarding limitation, will depend upon the evidence with regard to the issuance and service of notice and the knowledge of the plaintiffs. Hence, the Trial Court as well as the High Court were not right in rejecting the plaint on the ground of limitation, especially in the facts and circumstances of this case", the Court added.

As regards the second issue, the Court, after referring to the provisions of the Act, noted that the bar on civil suit was not absolute. The Court said that the civil court and the High Court did not ascertain if the circumstances which allowed the suit to proceed under the Act existed in the present case.

"...we are of the considered view that the Trial Court as well as the High Court were clearly in error in rejecting the plaint under Order VII Rule 11(d). Hence, the appeal is allowed, the judgment and decree of the Trial Court as well as the High Court are set aside and the suit is restored to file", the Court concluded.

Case Title : Salim D.Agboatwala and others v.Shamalji  Oddavji Thakkar and others

Section 319 CrPC: Supreme Court Says More Than Prima Facie Case Required to Summon a Person; Sets Aside Allahabad HC Judgment

K.M. JOSEPH, J.

Leave granted.

This is yet another case where summons issued purporting to invoke power under Section 319 of the Code ofCriminal Procedure (Cr.P.C.) has brought the newly summoned

person to this Court. FIR came to be lodged on 27.06.2015 by the second

respondent before us. It is inter alia alleged in the FIR that her husband(deceased) told her that he is leaving for work to meet the appellant. There is, in fact, no dispute

that the deceased was the driver of the appellant. In the FIR, it is also stated that at 2 p.m., he called and informed the second respondent-his wife that he is going to Gola and shall return by evening. It is thereafter her case that her husband’s phone was switched off and an unidentified dead body was found. The second respondent reported that the murder of her husband was committed by his

employer (the appellant before us) with the help of his friends. The statement came to be recorded from her on 27.06.2015. She also gave an additional statement. Thereafter, the police investigated the matter and

chargesheet was filed against three persons. Thereafter, the second respondent deposed:  In her evidence, she has inter alia deposed that, on

23.06.2015, her husband left home at around 7-8 in the morning telling her that his car owner had called him

immediately. On the same day her husband called her around 2 p.m. on her mobile phone and told her that he was going to Gola with the appellant and that he will return by evening.

She also deposed that when she called the appellant, he told her that the car was found near the Government tubewell near

Lagucha and that slippers of her husband were lying in that car. She has also stated that she and her family are convinced that her husband was murdered by the appellant

with the help of his friends. She further stated that she is fully confident that her husband was murdered by the appellant. This statement was made on 05.08.2017. On the very same day, an application was filed on behalf of the prosecution invoking Section 319 Cr.P.C. The Sessions Judge, Khiri, by order dated 11.09.2018, took the view that

the power under Section 319 Cr.P.C. has to be invoked and ordered to summon the appellant. This order came to be unsuccessfully challenged before the High Court. It is thus, the appellant is before us. We have heard Mr. Gaurav Srivastava, learned counsel

for the appellant, Mr. Adarsh Upadhyay, learned counsel for

the first respondent-State and Ms. Sansriti Pathak, learned counsel for the second respondent.  Learned counsel for the appellant would point out that the courts have erred in law in invoking power under Section

319 Cr.P.C. solely based on the deposition as already noted

by us, given by the second respondent. The appellant has relied on the judgments of this Court rendered in Hardeep Singh v. State of Punjab and Others (2014) 3 SCC 92 and

Labhuji Amratji Thakor and Others v. State of Gujarat and Another AIR 2019 SC 734.  While this Court has approved of relying upon deposition which has not suffered cross examination for the

purpose of invoking Section 319 Cr.P.C., it is relevant to note the standards which have been fixed by this Court for invoking the power under Section 319 Cr.P.C. The statement of law in this regard is contained in paragraphs 105 and 106 of Hardeep Singh (supra): 

105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the

circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions

Judge is of the opinion that some other person may also be guilty of committing that offence. Only where

strong and cogent evidence occurs against a person from the evidence led before the court that such

power should be exercised and not in a casual and cavalier manner. 

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil

of cross-examination, it requires much stronger evidence than mere probability of his complicity. The

test that has to be applied is one which is more than prima facie case as exercised at the time of framing

of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to

conviction. In the absence of such satisfaction, the court should refrain from exercising power under

Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence

that any person not being the accused has committed any offence’ is clear from the words “for which such

person could be tried together with the accused.” The words used are not ‘for which such person could be

convicted’. There is, therefore, no scope for the court acting under Section 319 Cr.P.C. to form any

opinion as to the guilt of the accused.”

After hearing learned counsel for the respondents, who, no doubt, point out that the deposition of the second

respondent as given by her, would suffice in law for the Court to invoke the power under Section 319 Cr.P.C., we are of the view that the matter must be reconsidered.

We say this for the following reason:

The test as laid down by the Constitution Bench of this Court for invoking power under Section 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319 Cr.P.C. should be exercised. The power cannot be exercised in a casual and cavalier

manner. The test to be applied, as laid down by this Court, is one which is more than prima facie case which is applied at the time of framing of charges. It will all depend upon the evidence which is tendered

in a given case as to whether there is a strong ground within the meaning of paragraph 105. We are of the view that from the facts of this case,

it becomes necessary for us to direct the Sessions Judge, Khiri, to consider the matter afresh in the light of the

principles which have been clearly enunciated by this Court.The appeal is accordingly, allowed. The impugned

judgment will stand set aside and we also set aside the order passed by the learned Sessions Judge issuing summons.The Sessions Judge, Khiri, will apply his mind in the light

of the principles which have been laid down by the Constitution Bench.

The Sessions Judge, Khiri, will call this case on 30.09.2021. The parties will be present on the said day.

Thereafter the Court will pass appropriate orders bearing in

mind the principles which have been laid down by this Court in Hardeep Singh (supra). The appeal is allowed as above. 

……………………………………………………………………., J.

[ K.M. JOSEPH ]

……………………………………………………………………., J.

[ PAMIDIGHANTAM SRI NARASIMHA ]

New Delhi;

September 13,2021

Compassionate Appointment: 'Divorced' Daughter Cannot Be Treated At Par With 'Widowed' Or 'Unmarried' Daughter: Supreme Court

The Supreme Court set aside a Karnataka High Court judgment that held that a divorced daughter would fall in the same class of an unmarried or widowed daughter for the purpose of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996.

The bench of Justices MR Shah and Aniruddha Bose reiterated that norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment.

In this case, the writ petitioner's mother was employed with the Government of Karnataka as Second Division Assistant at Mandya District Treasury. After she died, the writ petitioner filed an application for appointment on compassionate appointment. That was rejected on the ground that there is no provision provided under Rule 3(2)(ii) of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules 1996 for divorced daughter. Later, the Karnataka High Court directed to consider the application.The High Court interpreted Rule 3 and observed that a divorced daughter would fall in the same class of an unmarried or widowed daughter and therefore, a divorced daughter has to be considered on par with 'unmarried' or 'widowed daughter'.

In appeal, the court summarized the observations made about the grant of appointment on compassionate ground in earlier judgments including the recent one on N.C. Santhosh vs. State of Karnataka (2020) 7 SCC 617:

(i) that the compassionate appointment is an exception to the general rule; (ii) that no aspirant has a right to compassionate appointment; (iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India; (iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State's policy and/or satisfaction of the eligibility criteria as per the policy; (v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

Referring to the Rules, the court noted that only 'unmarried daughter' and 'widowed daughter' who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be 'dependent' of a deceased Government servant and that 'an unmarried daughter' and 'widowed daughter' only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant.

"As observed hereinabove and even as held by this Court in the case of N.C. Santhosh (Supra), the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. The word 'divorced daughter' has been added subsequently by Amendment, 2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner – respondent herein made an application for appointment on compassionate ground the 'divorced daughter' were not eligible for appointment on compassionate ground and the 'divorced daughter' was not within the definition of 'dependent.'", the court observed.

The court also noticed that the writ petitioner had, immediately on the death of the deceased employee, initiated the divorced proceedings under Section 13B of the Hindu Marriage Act, 1955  for decree of divorce by mutual consent. This would suggest that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained, the court added. It also noted that at the time when the deceased employee died on 25.03.2012 the marriage between the respondent and her husband was subsisting.

"Therefore, at the time when the deceased employee died she was a married daughter and therefore, also cannot be said to be 'dependent' as defined under Rule 2 of the Rules 1996. Therefore, even if it is assumed that the 'divorced daughter' may fall in the same class of 'unmarried daughter' and 'widowed daughter' in that case also the date on which the deceased employee died she – respondent herein was not the 'divorced daughter' as she obtained the divorce by mutual consent subsequent to the death of the deceased employee. Therefore, also the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee.", the bench said while setting aside the High Court judgment.

Case: Director of Treasuries in Karnataka vs. V. Somyashree ; CA 5122 OF 2021

Coram: Justices MR Shah and Aniruddha Bose 

Calcutta High Court set aside order rejecting objection against reopening of Income tax Assessment

In this matter the petitioner has challenged the impugned notice dated 17th March, 2020 issued under Section 148 of the Income Tax Act, 1961 relating to assessment year 2013-14 and impugned order dated 30th July, 2021 rejecting the objection of the petitioner against the recorded reason for reopening of assessment under Section 147 of the Act and subsequent notice under Section 142(1) of the Act. The petitioner submits that one of the criteria of reopening of assessment under Section 147 of the Act that is, omission or failure on the part of the assessee to disclose fully and truly his income in course of regular assessment has not been fulfilled andsecondly, that the reason recorded shows that the Assessing Officer concerned himself has recorded that it was true that the assessee had filed copy of accounts along with required materials with the return of income to complete the assessment where various information/materials were 

disclosed. Yet the Assessing Officer had recorded that the assessee 

company faulted in making the correct and true claim of his Book of Profit 

as per the provisions of Explanation (I) to Section 115 JB(2) of the Act 

which attracts the proviso to Section 147 of the Act, which according to the 

petitioner, is nothing but mere change of opinion by the successor of the 

Assessing Officer who has allowed the aforesaid claim of the 

assessee/petitioner on the self-same material and documents in the 

original assessment under Section 143 (3) of the Act and no new material came to the knowledge or to the possession of the Assessing Officer after the original assessment under Section 143(3) of the Act for invoking the relevant provisions of Section 147 of the Act. This is also the case of the 

petitioner that the Assessing Officer wants to reopen the assessment under Section 143(3) beyond four years without fulfilling the criteria for the same. The petitioner further challenges the impugned proceeding under Section 147 of the Act on the ground that the issue which is involved relates to minimum alternate tax (MAT) of assessee company which do not fall in the category of the provisions of Explanation (I) to Section 115JB(2) of the Act and contends that this issue has already been considered in the case of National Insurance Company Limited and in that case, CIT (Appeals) had held in favour of the assessee and against the Revenue on the aforesaid 

issue and further the order of the CIT (Appeals) was upheld by the Tribunal 

by its judgement dated 29th March, 2019 in ITA No.1876/KOL/2017 

holding against the Revenue and in favour of the assessee and which has 

been further challenged by the Revenue before this Court by way of Appeal under Section 260A of the Income Tax Act, 1961 and the same has been admitted by the order dated 29th August, 2019 in ITA No.112/2019 G.A. No. 2044/2018 (Principal Commissioner of Income Tax-2, Kolkata vs. National Insurance Co. Ltd.) and the same is pending without any interim order. Petitioner has also contended that the aforesaid order of the Tribunal where the same issue has been held in favour of the assessee, 

was relied upon by the petitioner in his objection filed against the recorded 

reason but the Assessing Officer in his impugned order of rejection has 

neither considered nor referred it at all though under Section 119 of the 

Income Tax Act, 1961, the Assessing Officer being a suboridinate authority 

in the hierarchy, the orders of the CIT Appeal and Tribunal were binding upon him.Mr. Dutta, learned Counsel appearing for therespondent/Assessing 

 Officer, could not deny the admitted position in paragraph 3 of the 

recorded reason which runs as follows –

“3. It is true that the assessee has filed copy of accounts along 

with required materials with return of income to complete the 

assessment where various information/materials were disclosed.

* ***”

Mr. Dutta could not satisfy this Court about what new material of 

documents came into the possession of the Assessing Officer after the 

order of assessment under Section 143(3) of the Act, which were not 

produced by the assessee before the Assessing Officer in course of regular 

assessment. Mr. Dutta in support of his contention also relies on 

Explanations (I) and (III) under Section 147 of the Act. In my considered 

opinion, the submission of Mr. Dutta is not convincing and acceptable and 

he has failed to meet the allegations of the petitioner as recorded above.

Considering the submission of the parties, I am inclined to set aside the impugned order dated July 30, 2021 of rejecting the objection of the petitioner to the recorded reason and subsequent notice under Section 

142(1) of the Act and remand the case to the Assessing Officer for a limited

purpose and only to the extent to reconsider the aforesaid judgment of the Tribunal on the issue in question in the case of Deputy Commissioner of 

Income-tax, Circle-6, Kolkata Vs. National Insurance Co. Ltd. reported in (2016) 72 taxmann.com 116 (Kolkata-Trib.) and also the contention of the 

petitioner about the change of opinion and pass a fresh speaking order 

after giving opportunity of hearing to the petitioner or his authorised 

representative within four weeks from the date of communication of this 

order. The subsequent proceeding under Section 147 of the Act will depend upon the fresh order to be passed by the respondent-Assessing Officer concerned after considering the aforesaid judgment of the Tribunal.

Since this writ petition has been disposed of at the motion stage 

without calling for affidavit, allegations contained in the writ petition should be deemed to have denied by the respondents.

WPO No. 553 of 2021 is disposed of accordingly.

(MD. NIZAMUDDIN, J.)

K. Banerjee/S. Bhattacharyya

A.Rs. [C.R.]

25 High Court Judges recommended to be transferred

25 HC Judges recommended to be transferred are-

1) Sabina – Rajasthan to   Himachal Pradesh

2) A.M. Badar – Kerala to Patna

3) Vivek Agarwal – Allahabad to Madhya Pradesh

4) Sudip Ahluwalia – Punjab and Haryana to Calcutta

5) Ravi Nath Tilhari – Allahabad to Andhra Pradesh

6) Chandra Dhari Singh – Allahabad to Delhi

7) Anoop Chitkara – Himachal Pradesh to Punjab and Haryana

8) Yashwant Varma – Allahabad to Delhi

9) T.S. Sivagnanam – Madras to Calcutta

10) Manindra Mohan Shrivastava – Chattisgarh to Rajasthan

11) Arindam Sinha – Calcutta to Orissa

12) Ujjal Bhuyan – Bombay to Telangana

13) Sureshwar Thakur – Himachal Pradesh to Allahabad 

14) Jaswant Singh – Punjab and Haryana to Orissa

15) Subhash Chand (Additional Judge) – Allahabad to Jharkhand

16) M.S.S. Ramachandra Rao – Telangana to Punjab and Haryana

17) M.N. Bhandari – Allahabad to Madras

18) Ahsanuddin Amanullah – Patna to Andhra Pradesh

19) Sanjaya Kumar Mishra – Orissa to Uttarakhand

20) Soumen Sen – Calcutta to Orissa

21) P.B. Bajanthri  - Karnataka to Patna

22) Sanjeev Prakash Sharma – Rajasthan to Patna

23) Paresh R. Upadhyay – Gujarat to Madras

24) Amarnath Goud – Telangana to Tripura

25) Rajan Gupta – Punjab and Haryana to Patna

Divorce by mutual consent 6 months waiting period is directory not mandatory- Supreme Court

  IN THE SUPREME COURT OF INDIA
           CIVIL APPELLATE JURISDICTION
    CIVIL APPEAL NO. 11158 OF 2017

(Arising out of Special Leave Petition (Civil)No. 20184 of 2017)

   Amardeep Singh                                              …Appellant

   Versus

  Harveen Kaur                                                …Respondent

                                             JUDGMENT

ADARSH KUMAR GOEL, J.

1. The question which arises for consideration in this appeal is whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations.

Signature Not Verified Digitally signed by SWETA DHYANI Date: 2017.09.12 16:23:52 IST Reason:

2. Factual matrix giving rise to this appeal is that marriage between the parties took place on 16 th January, 1994 at Delhi. Two children were born in 1995 and 2003 respectively. Since 2008 the parties are living separately. Disputes between the parties gave rise to civil and criminal proceedings. Finally, on 28 th April, 2017 a settlement was arrived at to resolve all the disputes and seeks divorce by mutual consent. The respondent wife is to be given permanent alimony of Rs.2.75 crores. Accordingly, HMA No. 1059 of 2017 was filed before the Family Court (West), Tis Hazari Court, New Delhi and on 8 th May, 2017 statements of the parties were recorded. The appellant husband has also handed over two cheques of Rs.50,00,000/-, which have been duly honoured, towards part payment of permanent alimony. Custody of the children is to be with the appellant. They have sought waiver of the period of six months for the second motion on the ground that they have been living separately for the last more than eight years and there is no possibility of their re union. Any delay will affect the chances of their resettlement. The parties have moved this Court on the ground that only this Court can relax the six months period as per decisions of this Court.

3. Reliance has been placed inter alia on decision of this Court in Nikhil Kumar vs. Rupali Kumar 1 wherein the statutory period of six months was waived by this Court under Article 142 of the Constitution and the marriage was dissolved.

The text of Section 13B is as follows:

“13-B. Divorce by mutual consent.— (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

4. There is conflict of decisions of this Court on the question whether exercise of power under Article 142 to waive the statutory period under Section 13B of the Act was appropriate. In 1 (2016) 13 SCC 383 Manish Goel versus Rohini Goel2, a Bench of two-Judges of this Court held that jurisdiction of this Court under Article 142 could not be used to waive the statutory period of six months for filing the second motion under Section 13B, as doing so will be passing an order in contravention of a statutory provision. It was observed :

“14. Generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. (Vide State of Punjab v. Renuka Singla[(1994) 1 SCC 175], State of U.P. v. Harish Chandra [(1996) 9 SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SC 560]

15. A Constitution Bench of this Court in Prem Chand Garg v. Excise Commr.[AIR 1963 SCC 996] held as under: (AIR p. 1002, para 12) “12. … An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.” (emphasis supplied) The Constitution Benches of this Court in Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] and E.S.P.

Rajaram v. Union of India [(2001) 2 SCC 186] held that under Article 142 of the Constitution, this Court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only 2 (2010) 4 SCC 393  through a mechanism prescribed in another statute. It is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure.”

5. This Court noted that power under Article 142 had been exercised in cases where the Court found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken down irretrievably. This power was also exercised to put quietus to all litigations and to save the parties from further agony 3. This view was reiterated in Poonam versus Sumit Tanwar4.

6. In Neeti Malviya versus Rakesh Malviya5, this Court observed that there was conflict of decisions in Manish Goel (supra) and Anjana Kishore versus Puneet Kishore6. The matter was referred to bench of three-Judges. However, since the matter became infructuous on account of grant of divorce in the meanwhile7.

3 Para 11 ibid, noting earlier decisions in Romesh Chander v. Savitri (1995) 2 SCC 7; Kanchan Devi v. Promod Kumar Mittal (1996) 8 SCC 90; Anita Sabharwal v. Anil Sabharwal (1997) 11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226; Kiran v. Sharad Dutt (2000)10 SCC 243; Swati Verma v. Rajan Verma (2004) 1 SCC 123; Harpit Singh Anand v. State of W.B. (2004) 10 SCC 505; Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit (2005) 13 SCC 410; Durga Prasanna Tripathy v. Arundhati Tripathy (2005) 7 SCC 353; Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220; Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263; Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 and Satish Sitole v. Ganga (2008) 7 SCC 734 4 (2010) 4 SCC 460 5 (2010) 6 SCC 413 6 (2002) 10 SCC 194 7 Order dated 23rd August, 2011 in Transfer Petition (Civil)No. 899 of 2007

7. Without any reference to the judgment in Manish Goel (supra), power under Article 142 of the Constitution has been exercised by this Court in number of cases 8 even after the said judgment.

8. We find that in Anjana Kishore (supra), this Court was dealing with a transfer petition and the parties reached a settlement. This Court waived the six months period under Article 142 in the facts and circumstances of the case. In Anil Kumar Jain versus Maya Jain9, one of the parties withdrew the consent. This Court held that marriage had irretrievably broken down and though the civil courts and the High Court could not exercise power contrary to the statutory provisions, this Court under Article 142 could exercise such power in the interests of justice. Accordingly the decree for divorce was granted. 8 Priyanka Singh v. Jayant Singh(2010) 15 SCC 390; Sarita Singh v. Rajeshwar Singh (2010) 15 SCC 374; Harpreet Singh Popli v. Manmeet Kaur Pople (2010) 15 SCC 316; Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234; Veena v. State (Govt of NCT of Delhi) (2011) 14 SCC 614; Priyanka Khanna v. Amit Khanna (2011) 15 SCC 612; Devinder Singh Narula v. Meenakshi Nangia (2012) 8 SCC 580; Vimi Vinod Chopra v. Vinod Gulshan Chpra (2013) 15 SCC 547; Priyanka Chawla v. Amit Chawla (2016) 3 SCC 126; Nikhil Kumar v. Rupali Kumar (2016) 13 SCC 383 9 (2009) 10 SCC 415

9. After considering the above decisions, we are of the view that since Manish Goel (supra) holds the field, in absence of contrary decisions by a larger Bench, power under Article 142 of the Constitution cannot be exercised contrary to the statutory provisions, especially when no proceedings are pending before this Court and this Court is approached only for the purpose of waiver of the statute.

10. However, we find that the question whether Section 13B(2) is to be read as mandatory or discretionary needs to be gone into. In Manish Goel (supra), this question was not gone into as it was not raised. This Court observed :

“23. The learned counsel for the petitioner is not able to advance arguments on the issue as to whether, statutory period prescribed under Section 13-B(1) of the Act is mandatory or directory and if directory, whether could be dispensed with even by the High Court in exercise of its writ/appellate jurisdiction.”

11. Accordingly, vide order dated 18th August, 2017, we passed the following order :

“List the matter on 23rd August, 2017 to consider the question whether provision of Section 13B of the Hindu Marriage, Act, 1955 laying down cooling off period of six months is a mandatory requirement or it is open to the Family Court to  waive the same having regard to the interest of justice in an individual case.

Mr. K.V. Vishwanathan, senior counsel is appointed as Amicus to assist the Court. Registry to furnish copy of necessary papers to learned Amicus”.

12. Accordingly, learned amicus curiae has assisted the Court. We record our gratitude for the valuable assistance rendered by learned amicus who has been ably assisted by S/Shri Abhishek Kaushik, Vrinda Bhandari and Mukunda Rao Angara, Advocates.

13. Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by judgments of the Andhra Pradesh High Court in K. Omprakash vs. K. Nalini 10, Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11, Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra12 and Madhya Pradesh High Court in Dinesh Kumar Shukla vs. Smt. Neeta13. Contrary view has been taken by Kerala High Court in M. Krishna Preetha vs. Dr. Jayan 10 AIR 1986 AP 167 (DB) 11 AIR 1994 Kar 12 (DB) 12 AIR 1990 Del 146 13 AIR 2005 MP 106 (DB) Moorkkanatt14. It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions:

          i)     How long parties have been married?

          ii)    How long litigation is pending?

iii) How long they have been staying apart?

iv) Are there any other proceedings between the parties?

v) Have the parties attended mediation/conciliation?

vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

14 AIR 2010 Ker 157

14. The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.

15. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

17. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh’s “Principles of Statutory Interpretation” (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.15as follows:

15 (2005) 4 SCC 480  “The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’ “ ‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.”

18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.

19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

22. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.

23. The parties are now at liberty to move the concerned court for fresh consideration in the light of this order.

The appeal is disposed of accordingly.

Report of Forensic Science Laboratory is a public document and admissible in evidence – there is no requirement to call the Director of that laboratory to get the report proved.

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 50 – Code of Criminal Procedure, 1973 – Section 293 – Report of Forensic Science Laboratory is a public document and admissible in evidence – there is no requirement to call the Director of that laboratory to get the report proved.

The accused submitted that report from Forensic Science Laboratory is not on record, therefore, it was not proved by the prosecution that the sample sent to the laboratory was found to be charas.  Perusal of record shows that chemical examination report of Forensic Science Laboratory, Varanasi, is very much on record. The accused objected that if there is such report, it is not exhibited and, hence, it cannot be read in evidence.

As per the provision of Section 293 Cr.P.C., the report of State Forensic Science Laboratory is admissible in evidence and there is no requirement to call the Director of that laboratory to get the report proved. The report on record shows that the sample sent to it was found to be charas. The prosecution proved its case beyond any reasonable doubt and the accused has been rightly convicted and sentenced by learned trial court.

Accordingly, the appeal lacks merit and is dismissed.

Section 293 in the Code Of Criminal Procedure, 1973

293. Reports of certain Government scientific experts. (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.

(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.

(4) This section applies to the following Government scientific experts, namely:-

(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the chief Inspector of- Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.

CRIMINAL APPEAL No. 757 of 2018 16.08.2021 | Jose Luis Quintanilla Sacristan v. State of U.P.

कब एक पुनर्विवाहित हिंदू विधवा पति की संपत्ति में हिस्सा लेने का हकदार है?

बॉम्बे हाई कोर्ट (नागपुर बेंच) ने फैसला सुनाते हुए उस तारीख पर जोर दिया जाता है जब उत्तराधिकार मिला है जैसा कि 1956 के अधिनियम की धारा 24 में उल्लेख किया गया है। पुनर्विवाह के रूप में एक विधवा की स्थिति उत्तराधिकार मिलने की तारीख को विधवा बनी रहती है।  पीठ ने आगे कहा कि अगर उत्तराधिकार खुलने की तारीख पर शब्द 1856 के अधिनियम की धारा 2 में उल्लिखित नहीं हैं। इसलिए, अदालत को 1956 के अधिनियम की धारा 24 के प्रावधानों को शामिल करते हुए विधायक के इरादे का सम्मान करना होगा कि एक पुनर्विवाहित विधवा को अपने मृत पति की संपत्ति का अधिकार है यदि पति की मृत्यु के समय उसने दोबारा शादी नहीं की थी।  कोर्ट ने ऐसी स्थिति को कहा कि जिस दिन उसे उत्तराधिकार मिला।

ये टिप्पणियां बेंच ने तब की थीं जब वह जनिवंतबाई वानखेड़े द्वारा एक आदेश के खिलाफ दायर एक अपील पर सुनवाई कर रही थी, जिसमें उनके बेटे की विधवा को उनकी सेवानिवृत्ति की बकाया राशि प्राप्त करने की इजाजत दी थी।  उनका बेटा रेलवे में प्वॉइंटमैन का काम करता था।

बेटे की 1991 में एक दुर्घटना में मौत हो गई थी और उस समय वह अपनी पत्नी से अलग रह रहा था।  एक महीने बाद पत्नी ने दूसरी शादी कर ली।

1993 में, मां ने बेटे की सेवानिवृत्ति बकाया राशि के लिए दावा दायर किया लेकिन रेलवे ने पत्नी को लाभ दिया।  इस आदेश को सिविल जज (जूनियर डिवीजन) के समक्ष चुनौती दी गई, जिन्होंने फैसला सुनाया कि पत्नी और मां दोनों सेवानिवृत्ति लाभ के हकदार हैं।

 मां ने इस आदेश को बंबई उच्च न्यायालय में चुनौती दी और दलील दी कि महिला ने पुनर्विवाह किया है, इसलिए वह लाभ की हकदार नहीं है।

 हालांकि, कोर्ट ने कहा कि चूंकि दुर्घटना होने पर महिला अभी भी मृतक से विवाहित थी, इसलिए वह सेवानिवृत्ति लाभों की हकदार थी।

 चूंकि रेलवे ने पहले ही पत्नी को पूरी राशि का भुगतान कर दिया था, इसलिए उसे अपनी सास को 50% देने का आदेश दिया गया था।

Code of Criminal Procedure, 1973 – Ss. 451, 452 & 457 – Prevention of Cow Slaughter Act, 1955 (Uttar Pradesh) – S. 5A – Regulation on transport of cow – Prevention of Cow Slaughter Act, a special act and local law – Powers u/s 451, 452 & 457 of CrPC not invocable in respect of proceedings under the Act.

HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon’ble Dr. Yogendra Kumar Srivastava, J.
APPLICATION U/S 482 No. – 12300 of 2021
Yas Mohammad v. State of U.P. and Another

1. Heard Sri Ramesh Kumar Chaurasia, learned counsel for the applicant and Sri Vinod Kant, learned Additional Advocate General appearing along with Sri Pankaj Saxena, learned Additional Government Advocate-I for the State-opposite party.

2. The present application under Section 482 of the Code of Criminal Procedure, 19731 has been filed with a prayer to set-aside the order dated 18.03.2021 passed by Additional Sessions Judge, F.T.C-1, Ballia in Criminal Revision No. 28 of 2021 (Yash Mohammad Vs. State), arising out of order dated 09.02.2021 passed in Case Crime No. 360 of 2020 under Sections 3/5-A/8 of The Uttar Pradesh Prevention of Cow Slaughter Act, 19552 and Section 11 of The Prevention of Cruelty to Animal Act, 19603, Police Station-Bairiya, District Ballia.

3. The pleadings of the case indicate that pursuant to proceedings initiated with lodging of an F.I.R. dated 21.9.2020 under section 3/5-A/8 of the PCSA and Section 11 of the PCAA registered as Case Crime No. 360 of 2020 at Police Station-Bairiya, District-Ballia, the vehicle stated to be carrying the animals was seized under section 5-A of the PCSA. The applicant claiming to be the owner of the vehicle in question, filed an application before the court of ACJM-I, Ballia, seeking release of the vehicle. The learned Magistrate upon taking into consideration the scheme of the Act and in particular, sub-section (7) of Section 5-A, which has been inserted by U.P. Act No. 20 of 2020, rejected the application. Aggrieved, against the order the applicant preferred a revision being Criminal Revision No. 28 of 2021 (Yash Mohammad Vs. State) and the learned Additional Sessions Judge/F.T.C.-1, Ballia held that there was no illegality or irregularity in the order passed by the Magistrate and accordingly, dismissed the revision by order dated 18.03.2021.

4. Learned counsel for the applicant has sought to assail the orders passed by the revisional court and the Magistrate by seeking to contend that since the vehicle of the applicant had been confiscated, the courts below have committed an error in rejecting the application for release, ignoring the powers exercisable under section 451 and 457 of the Code. He submits that the property in question i.e. the vehicle which is lying with the authorities is liable to be released. Reliance is sought to be placed on the judgement in the case of Sunderbhai Ambalal Desai v. State of Gujarat4

5. Learned Additional Government Advocate-I has controverted the aforesaid contention by submitting that the proceedings have been initiated under the PCSA, which is a Special Act, and provides a separate procedure with regard to confiscation and seizure under Section 5-A thereof, and in view of the provisions contained under Section 5 of the Code, the powers under Sections 451 to 457 relating to disposal of property would not be applicable. Accordingly, he submits that the orders passed by the Magistrate and the revisional court cannot be said to be faulted with.

6. In order to appreciate the rival contentions the provisions as contained under Sections 5, 451, 452 and 457 of the Code may be adverted to, and the same are as under :-

“5. Saving.-Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

451. Order for custody and disposal of property pending trial in certain cases.-When any property is produced before any Criminal Court during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation.-For the purposes of this section, “property” includes-

(a) property of any kind or document which is produced before the Court or which is in its custody,

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

452. Order for disposal of property at conclusion of trial.-(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.

(2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub-section (1) is modified or set aside on appeal or revision.

(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in Sections 457, 458 and 459.

(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.

(5) In this section, the term” property” includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.

457. Procedure by police upon seizure of property.-(1)Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.

(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in Sections 457, 458 and 459.

(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.

(5) In this section, the term” property” includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.

457. Procedure by police upon seizure of property.-(1)Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.

(3) Where the person transporting a cow, bull or bullock on a permit for a limited period does not bring back such cow, bull or bullock into the State within the period specified in the permit, he shall be deemed to have contravened the provision of sub-section (1).

(4) The form of permit, the form of application therefor and the procedure for disposal of such application shall be such as may be prescribed.

(5) The State Government or any officer authorised by it in this behalf by general or special notified order, may, at any time, for the purpose of satisfying itself, or himself, as to the legality or propriety of the action taken under this section, call for and examine the record of any case and pass such orders thereon as it or he may deem fit].

(6) Where the said conveyance has been confirmed to be related to beef by the competent authority or authorised laboratory under this Act, the driver, operator and owner related to transport, shall be charged with the offence under this Act, unless it is not proved that the transport medium used in crime, despite all its precautions and without its knowledge, has been used by some other person for causing the offence.

(7) The vehicle by which the beef or cow and its progeny is transported in violation of the provisions of this Act and the relevant rules, shall be confiscated and seized by the law enforcement officers. The concerned District Magistrate/Commissioner of Police will do all proceedings of confiscation and release, as the case may be.

(8) The cow and its progeny or the beef transported by the seized vehicle shall also be confiscated and seized by the law enforcement officers. The concerned District Magistrate/ Commissioner will do all proceedings of the confiscation and release, as the case may be.

(9) The expenditure on the maintenance of the seized cows and its progeny shall be recovered from the accused for a period of one year or till the release of the cow and its progeny in favour of the owner thereof whichever is earlier.

(10) Where a person is prosecuted for committing, abetting, or attempting to an offence under Sections 3, 5 and 8 of this Act and the beef or cow-remains in the possession of accused has been proved by the prosecution and transported things are confirmed to be beef by the competent authority or authorised laboratory, then the Court shall presume that such person has committed such offence or attempt or abatement of such offence, as the case may be, unless the contrary is proved.

(11) Where the provisions of this Act or the related rules in context of search, acquisition, disposal and seizure are silent, the relevant provisions of the Code of Criminal Procedure, 1973 shall be effective thereto.”

9. It would be pertinent to note that sub-sections (6), (7), (8), (9), (10) and (11) have been inserted after sub-section (5) of Section 5-A in terms of the Uttar Pradesh Prevention of Cow Slaughter (Amendment) Act, 2020. [U.P. Act no. 20 of 2020].

10. A plain reading of the provisions contained under Section 5-A of the PCSA would indicate that the transportation of cow, etc., is regulated in terms thereof. Sub-section (1) of Section 5-A contains a clear prohibition on transportation of any cow or bull or bullock, the slaughter whereof in any place in Uttar Pradesh is punishable under the Act, from any place within the State to any place outside the State, except under a permit to be issued by an officer authorised by the State Government in this behalf by notified order and except in accordance with the terms and conditions of such permit. Sub-section (4) mandates that the form of permit, the form of application therefor and the procedure for disposal of such application shall be such as may be prescribed.

11. In exercise of powers under Section 10 of the PCSA read with Section 21 of the U.P. General Clauses Act, 1904, and in supersession of Uttar Pradesh Prevention of Cow Slaughter Rules, 1956, the Uttar Pradesh Prevention of Cow Slaughter Rules, 19645 were made. Rule 16 of the Rules, 1964 provides for issuance of a permit in a prescribed form to any person intending to transport or to offer for transport or to cause to transport any cow, bull or bullock, the slaughter whereof is punishable under the Act in any place in Uttar Pradesh from any place within the State to any place outside the State. For ease of reference, Rule 16 of the Rules, 1964 is being reproduced below:-

“16. (1) Any person intending to transport or the offer for transport or to cause to transport any cow, bull or bullock, the slaughter whereof is punishable under this Act in any place in Uttar Pradesh from any place within the State to any place outside the State shall apply for a permit to the officer authorised under Section 5-A of the Act on prescribed Form “G”.”

12. In terms of Section 2 of the Amending Act i.e. U.P. Act No. 20 of 2020 by means of which sub-sections (6), (7), (8), (9), (10) and (11) have been inserted in Section 5-A, the powers with regard to confiscation and seizure of which vehicle used in transportation of the beef or cow and its progeny, in violation of the provisions of this Act and the relevant rules have been delineated.

13. As per terms of sub-section (7) of Section 5-A, the vehicle by which the beef or cow and its progeny are being transported in violation of the Act and the relevant rules is to be confiscated and seized by the law enforcement officers and concerned District Magistrate/Commissioner of Police are to undertake proceedings of confiscation and release, as the case may be.

14. Sub-section (11) of Section 5-A provides that where the provisions of Act or the related rules in context of search, acquisition, disposal and seizure are silent, the relevant provisions of the Code shall be effective thereto. The provisions inserted under Section 5-A in terms of the aforesaid Amending Act, i.e. U.P. Act No. 20 of 2020 in respect of confiscation and release of vehicle would therefore, go to show that the scheme of the Act provides a complete procedure with regard to proceedings relating to confiscation and release. The necessary provisions with regard to confiscation, seizure and release of vehicle used for transportation in violation of the provisions of PCSA and the Rules made therein, having being provided for, and the Act and the Rules not being silent in regard thereto as per the stipulation under sub-section (11) of Section 5-A, the provisions of the Code would not be invocable in matters relating to confiscation, seizure and release under the PCSA.

15. Section 5 of the Code contains a saving clause and as per terms thereof nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

16. The applicability of the provisions of the Code in an area covered by a special or local law, in the context of the saving clause under section 5 of the Code was considered in the Constitution Bench judgment in the case of Maru Ram Vs. Union of India6 and also in State (Union of India) Vs. Ram Sharan7, and it was held that the section consists of three components: (i) the Code covers matters covered by it; (ii) if a special or local law exists covering the same area, the said law is saved and will prevail; (iii) if there is a special provision to the contrary, that will override the special or local law.

17. The PCSA is a “local law” within the meaning of Section 5 of the Code and in view thereof, the general provisions contained under Sections 451 of the Code with regard to custody and disposal of the property pending trial or the power for making an order for disposal of property at the conclusion of trial under Section 452 or the procedure under Section 457 would therefore, be subject to the powers exercisable under Section 5-A of the PCSA which makes a special provision with regard to confiscation and seizure of the vehicle used for transport in contravention of the provisions of the Act.

18. The provisions under Section 451 to 457 of the Code are in the nature of general provisions whereas the provisions relating to seizure, confiscation and release as contained under Section 5-A of the PCSA which expressly deal with these matters would be in the nature of special provisions contained under a special Act and in view thereof, the normal rule of interpretation that the special provision must prevail over the general and if a case is covered by a special provision, the general provision would not be attracted, would be applicable.

19. In the case of Sunderbhai Ambalal Desai (supra), which is sought to be relied upon on behalf of the applicant, the subject matter of consideration was a challenge which had been raised to an order of police remand granted to the prosecuting agency for the petitioners therein, who were police personnel involved in offences punishable under Sections 429, 420, 465, 468, 477-A and 114 of the Indian Penal Code, 18608 on allegations that they had committed offences during a period of time by replacing of valuable articles retained as case property by other spurious articles, misappropriation of the amount which was kept at the police station, unauthorised auction of the property which was seized and kept in the police custody pending trial and tampering with the records of the police station. The offences which were subject matter of the case were under the penal code and not under a special Act, and accordingly, the provisions under Sections 451 and 457 were applicable. The judgment in the case Sunderbhai Ambalal Desai (supra), which is an authority relating to release of vehicles seized in connection with criminal proceedings under general law would not be applicable under the facts of the present case which relate to proceedings under a special Act, particularly in view of the provisions under Section 5 of the Code.

20. A similar question as to whether the Magistrate would have jurisdiction to exercise powers under Sections 451, 452 and 457 of the Code to direct release of any property which was subject matter of confiscation proceedings under Section 72 of the U.P. Excise Act, 19109 before the Collector, was considered in a recent judgement of this Court in the case of Vikki Vs State of U.P. and Another10 and taking into consideration that the Excise Act is a local law within the meaning of Section 5 of the Code, it was held that the provisions contained under Section 72 of the Excise Act would have the effect of denuding the Magistrate of his power to pass any order under Section 457 of the Code for release of any article seized in connection with an offence purporting to have been committed under the Act.

21. Applying the aforesaid principle to the facts of the present case, the vehicle in question having been confiscated and seized in exercise of powers under Section 5-A of the PCSA, which is in the nature of a special Act and a local law under Section 5 of the Code, the same would clearly have the effect of denuding the Magistrate of his power to pass any order under Sections 451, 452 and 457 of the Code for release of the vehicle seized for alleged violation of the provisions of the Act.

22. Having regard to the aforesaid, the view taken by the courts below in declining to entertain the application of the applicant for release of the vehicle during the pendency of proceedings under the PCSA, cannot be said to suffer from illegality so as to warrant interference.

23. The application under section 482 of the Code is thus, dismissed.

Whether person in possession of immovable property can be declared as owner of it?

The decision in Abdul Latif and Ors. V. Nagar Vikas Pranyas, Udaipur (Supra) case is also helpful to the appellants. When the plaintiffs had shown their longstanding possession, defendants failed to prove the title as well as had not come with a case that plaintiffs are trespassers or encroachers; under such circumstance merely because name of one Shrirang was shown as 'Pattedar', will not confer a title in him. The maxim "possession follows title" ought to have been invoked by virtue of Section 110 of Evidence Act by both the Courts below. Another fact is also required to be considered is that, ownership of a land cannot remain in abeyance. Here a third party is not coming forward to claim ownership. If both the parties to the proceeding are held to be 'not the owners', then such situation leads to a chaos which is not expected and especially to avoid such situation provisions like Section 110 of Evidence Act have been enacted. Therefore, the substantial question of law is answered in the affirmative. In consequence the second appeal succeeds.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 924 of 2005

Decided On: 26.04.2019

 Dhondiba  Vs.  Maruti and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2019(6) MHLJ 254

1. Present appeal has been filed by the legal heirs of original plaintiff No. 1. Plaintiff had filed Regular Civil Suit No. 230 of 1982 before Civil Judge, Junior Division, Beed for declaration of ownership and permanent injunction.

2. The plaintiff along with original defendant No. 2, who was later on deleted by order dated 22-08-1989, had come with a case that, they are the owners of portion of land Survey No. 16/E/5 and Survey No. 22/E/6 admeasuring 12 Acres 12 Gunthas and 10.06 Gunthas respectively situated at village Karchundi Tq. Dist. Beed. It is stated that, they are the joint owners and possessors of the suit land shown in the map appended to the land in Red colour. It was their ancestral property. They are in actual possession and cultivation of the same since their forefathers. Their names have been recorded in the revenue record. Defendants No. 1 and 2 are the real brothers inter se. They have no right, title and interest over the suit lands. However, in collusion with each other, they are interested in denying the ownership of the plaintiffs as well as disturbing the possession of the plaintiffs over the suit land. By way of amendment, defendant No. 3 was added to the suit and it was pleaded that, defendant No. 3 has no right, title or interest over the suit land. He ascertained his title and possession over the suit land on 22-07-1988, and therefore, cause of action arose against him also. Plaintiffs therefore prayed for declaration and perpetual injunction.

3. Defendants No. 1 and 2 have filed written statement at Exhibit 23; whereas defendant No. 3 has filed written statement at Exhibit 80. They all have denied the contents of the plaint. It has been stated that the description of the suit property is wrong. Plaintiffs are not in possession of the suit land as shown in the map appended to the plaint. It is stated that, the names of the plaintiffs are entered in the 7/12 extract but they are not in actual possession. It is stated that, plaintiffs are in possession to the extent of 1/4th share in both the suit properties. One Harinarayan was the original owner of Survey No. 16 and 22. After his death, his two sons Bhujanga and Lahanu became owners. Bhujanga was survived by his sons Shrirang and Hari. Lahanu had two sons, they are defendants No. 1 and 2. It is stated that, Bhujanga had given 1/4th share from both the survey numbers to one Babaji Kengre. After death of Babaji Kengre, the said share was given to the father of the plaintiffs for cultivation. It is stated that, plaintiff No. 2 and his sons went to the land of the defendants which is in their possession and tried to take possession on 11-06-1982. It is stated that, defendants No. 1 and 2 together have half share in Survey No. 16 and 22, whereas defendant No. 3 is having rest of the half share. On these grounds they prayed for dismissal of the suit.

4. Parties have led oral as well as documentary evidence. After hearing both sides and taking into consideration the evidence on record, the learned trial Court has held that, plaintiffs have failed to prove their ownership over the suit land, however they are in possession of the property to the extent that is shown in the map with Red colour, and therefore, it was held that the plaintiffs are entitled to get injunction as prayed.

5. Being aggrieved by the Judgment and decree, both the parties i.e. plaintiffs as well as defendants filed Regular Civil Appeal No. 05 of 1993 and Regular Civil Appeal No. 270 of 1992 respectively before District Court, Beed. Both the appeals were heard by learned District Judge, Beed. Both the appeals came to be dismissed on 27-11-2003. Hence, now the legal representatives of original plaintiff No. 1 have filed present second appeal to the extent of the refusal of the decree by the learned trial Court as well as First Appellate Court. It will not be out of place to mention here that, original defendants have not filed any appeal challenging the Judgment and decree passed by the learned District Judge, Beed, therefore the scope of this appeal is very much limited.

6. The Second Appeal was admitted by order dated 28-04-2009 by this Court on following substantial question of law;

"Whether the trial Court and the First Appellate Court committed error in refusing declaration of ownership to the plaintiffs even though long standing possession as owner is proved through revenue record?"

7. Heard learned Advocate Mr. V.D. Sapkal for appellants and learned Advocate Mr. R.A. Deshmukh for respondent No. 3A to 3D. It has been vehemently submitted on behalf of the appellants that, the second appeal is restricted only to the prayer of rejection of declaration of ownership to the plaintiff, and therefore, the substantial question of law is also limited to that extent. Plaintiffs are claiming ownership over the suit properties stating that, it is ancestral property. Their names are entered in the revenue record since their predecessor. Under such circumstance the document of ownership could not have been expected by both the Courts below. There is admittedly longstanding possession of the plaintiffs over the suit land, and therefore in view of Section 110 of Evidence Act, it ought to have been considered by both the Courts that this is a fit case where the declaration should be granted. Since admittedly there is possession of the plaintiffs since long over the suit property, the burden was on the defendants to prove that plaintiffs are not the owners of the suit land. In fact it ought to have been held that, defendants have failed to discharge this burden. So also they have not proved their ownership over the suit land. The automatic finding ought to have been granted that the plaintiffs are the owners of the suit properties. In order to support his arguments, he relied on the decision in, State of A.P. & Ors. Versus Star Bone Mill & Fertiliser Co., reported in MANU/SC/0190/2013 : AIR 2013 (SC) (Supp) 921, wherein it has been held that,

"The principle enshrined in Section 110 of Evidence Act, is based on public policy with the object of preventing persons from committing breach of peace by taking law into their own hands, however good their title over the land in question may be. It is for this purpose that the provisions of Section 6 of Specific Relief Act, 1963, Section 145 of Code of Criminal Procedure, 1973, and Sections 154 and 158 of Indian Penal Code were enacted. All the aforesaid provisions have the same object. The said presumption is led under Section 114 of the Evidence Act, and applies only in a case where there is either no proof, or very little proof of ownership on either side. The maxim, possession follows title is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in case of waste land, or where nothing is known about possession one-way or another. Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of plaintiff is not prima facie wrongful, and title of plaintiff is not proved. It certainly does not mean that, because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him. A person must establish that he has continued possession of the suit property, while the other side claiming title, must make out a case of trespass/encroachment etc. Where the apparent title is with the plaintiff, it is incumbent upon defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favours his version. Even a revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of the possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Evidence Act."

8. Further reliance has been placed on Abdul Latif and Ors. Versus Nagar Vikas Pranyas, Udaipur, reported in MANU/RH/0234/2006 : AIR 2006 Rajasthan 215, wherein it has been also held that,

"A document on record proved long, peaceful and settled possession over the suit property. Defendant could not make out case of trespass over its land in that case. The presumption of title on basis of possession could be drawn, on the basis of Section 110 of Evidence Act."

9. Per contra, the learned advocate appearing for the respondents No. 3A to 3D supported the reasons given by both the Courts below, especially paragraph No. 43 from the Judgment of the First Appellate Court wherein there is discussion in respect of Section 110 of the Evidence Act. It has been observed that, though the plaintiffs have shown various documents stating that they are in possession of the land since long, but the cultivation is not traceable to any definite title. It was said that, mere entries in Khasra Pahani Patrak as Kabjedar do not certify the source of title, and therefore the learned Courts below have rightly refused to draw the presumption under Section 110 of the Evidence Act by holding plaintiffs as owners of the suit lands.

10. As aforesaid the scope of the second appeal is very much limited. It is restricted to the relief which was not granted to the plaintiff in respect of ownership over the suit lands. Original defendants have not filed any second appeal challenging the Judgment and decree passed by the First Appellate Court after the dismissal of their Regular Civil Appeal No. 270 of 1992. Under such circumstance in the light of the above said submissions, it is required to be seen as to whether both the Courts below have committed error or not. Both the Courts below have held that, plaintiffs are possessing the suit land since many years. Though the title was not traced but the oldest document was Exhibit 111 in respect of Survey No. 16 which was Pahani Patrak for the year 1955-1956. Name of Shrirang Bhujanga Shinde was shown as 'Pattedar' and name of plaintiffs' predecessor were shown as possessor. It was specifically mentioned in the same that the right, title or interest of Dhondiba Nagu and Dnyandeo Nagu are not traceable. Same is the case in respect of Pahani Patrak of Survey No. 22 Exhibit 126. On the basis of these documents, the further entries have been recorded. Name of plaintiffs have been shown in the cultivation column and there are longstanding entries in the name of plaintiffs and predecessor. It is to be noted that, defendants have not produced any document of title. Only on the basis of entry as 'Pattedar' it appears that they were claiming ownership. In their written statement itself they had stated that, after death of Harinarayan Survey Nos. 16 and 22 devolved on his two sons Bhujanga and Lahanu. Bhujanga had two sons by name Shrirang and Hari. Name of Shrirang can be traceable to said Khasra Pahani Patrak as 'Pattedar', but then it is stated that Bhujanga during his lifetime gave 1/4th share from both the survey numbers to one Babaji Kengre for cultivation and after death of Babaji Kengre, it was given to father of the plaintiffs for cultivation. Defendants are not coming with a case that, father of plaintiffs was inducted as tenant in respect of the said portion. Under such circumstance even the defendants are not explaining as to how plaintiffs or their predecessor have got the possession of suit lands, if they want to claim ownership over the suit properties. Therefore, now the appellants are claiming that by taking advantage of the provisions under Section 110 of Evidence Act, both the Courts below ought to have declared plaintiffs as owner of the suit lands. The learned First Appellate Court took note of the provision but then observed that, though plaintiffs have shown various documents to support claim of cultivation of the suit lands. It is stated that, the cultivation is not traceable, that means it is not traceable to the title, but then at the same time it was stated that same is the case with the original defendants. Source of their ownership, title is also not traceable.

11. Defendants in this case have not come with a case that, plaintiffs are the trespassers, and therefore, definitely the ratio laid down in State of A.P. & Ors. Versus Star Bone Mill & Fertiliser Co., (Supra) would be applicable. In this case the Apex Court had taken note of the decisions of certain pronouncements in the past, they were;

"10. In Gurunath Manohar Pavaskar & Ors. V. Nagesh Siddappa Navalgund & Ors., MANU/SC/8191/2007 : AIR 2008 SC 901, this Court held as under:--

A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of Evidence Act."

"11. In Nair Service Society Ltd. V. K.C. Alexander & Ors. & Ors., MANU/SC/0144/1968 : AIR 1968 SC 1165, dealing with the provision of Section 110 of the Evidence Act, this Court held as under: -

Possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known. When the facts disclose no title in either party, possession alone decides."

"12. In Chief Conservator of Forests, Govt. of A.P. V. Collector & Ors., MANU/SC/0153/2003 : AIR 2003 SC 1805, this Court held that:

Presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title."

Based on these pronouncements the observation above stated (para 7) has been made.

12. The decision in Abdul Latif and Ors. V. Nagar Vikas Pranyas, Udaipur (Supra) case is also helpful to the appellants. When the plaintiffs had shown their longstanding possession, defendants failed to prove the title as well as had not come with a case that plaintiffs are trespassers or encroachers; under such circumstance merely because name of one Shrirang was shown as 'Pattedar', will not confer a title in him. The maxim "possession follows title" ought to have been invoked by virtue of Section 110 of Evidence Act by both the Courts below. Another fact is also required to be considered is that, ownership of a land cannot remain in abeyance. Here a third party is not coming forward to claim ownership. If both the parties to the proceeding are held to be 'not the owners', then such situation leads to a chaos which is not expected and especially to avoid such situation provisions like Section 110 of Evidence Act have been enacted. Therefore, the substantial question of law is answered in the affirmative. In consequence the second appeal succeeds.

ORDER

1) Appeal is hereby allowed as follows;

i) The Judgment and decree passed in Regular Civil Appeal No. 05 of 1993, passed by learned District Judge, Beed on 27-11-2003 and Judgment and decree passed in Regular Civil Suit No. 230 of 1982 by 3rd Jt. Civil Judge, Junior Division, Beed on 31-07-1992 is hereby set aside to the extent of refusal of granting ownership over the suit lands. The said suit stands decreed in entirety.

ii) Plaintiffs i.e. present appellants are declared as owners of land Survey No. 16/E/5 and Survey No. 22/E/6 to the extent as shown in the map appended to the plaint in Red colour.

iii) It is clarified that there is no change in the judgment and decree passed in Regular Civil Appeal No. 270 of 1992.

2) For the above said reasons, parties to bear their own cost of the proceeding. Decree be drawn accordingly.