Mohan Lal vs Nahar Singh

A.D. Koshal, J.—This regular second appeal by the defendant has arisen in the following circumstances. The land in suit, which is fully described in the plaint and is situated in the area of village Ferozepur, Sub-Tehsil Dhuri, belonged to one Shariff Hassan who sold the same to Nahar Singh respondent for Rs.4,500/- by virtue of a registered sale deed dated the 24th of February, 1955. At that time the appellant was occupying the land as a tenant which status he continued to hold under the respondent after the sale. Alleging that the appellant had failed to pay the rent due in respect of his tenancy, the respondent filed an application against him for recovery of arrears of rent before village Panchayat. A compromise between the two contending parties was arrived at before the Panchayat on the 16th of June, 1956, and. according to the terms thereof the appellant agreed to relinquish possession of the land while the respondent gave up his claim to all arrears of rent. This compromise was incorporated in a resolution (Exhibit P. 1) passed by the Panchayat on the same day on which the respondent also obtained possession of the land.

On the 21st of June, 1955, the appellant made an application (Exhibit D. 11) u/s 43 of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter to be referred to as the Act) to the Sub Divisional Magistrate, Malerkotla, alleging that he had been forcibly dispossessed of the land by the respondent and praying for restoration thereof. This application was dismissed on the 2nd of April, 1959, on the ground that the Sub Divisional Magistrate did not enjoin the powers of a Collector and that the application was not maintainable unless the compromise evidenced by Exhibit P. 1 was set aside by a competent Court. A petition for revision of the order made by the Sub-Divisional Magistrate was dismissed by the Commissioner, Patiala.

On the 4th of April 1959, the Sub-Divisional Magistrate, Malerkotla, was invested with powers of a Collector under the Act and on the 19th of January, 1960, the appellant presented to him another application (Exhibit D. 12) with the same allegations and prayer as were contained in application Exhibit D. 11. An objection taken by the respondent to the effect that the Collector had no jurisdiction to decide the dispute between the parties was turned down on the 17th of June, 1960, by the Sub-Divisional Magistrate acting as Collector whose order in that behalf (Exhibit D. 4) was upheld by the Commissioner in revision (Exhibit D. 5). The application (Exhibit D. 12) was ultimately decided by the Sub-Divisional Magistrate on the 12th of May, 1962 when holding that the appellant had not entered into the compromise voluntarily but had been forcibly dispossessed by the respondent, he directed that the respondent be ejected from the land (Exhibit P. 1). The appellant actually obtained possession of the land in dispute from the respondent through the Collector on the 25th of May, 1962 (Exhibits P. 3 and P. 4).

The respondent took an appeal to the Commissioner Patiala, but the same was dismissed on the 3rd of July, 1962 (Exhibit D. 6). His petition for revision of the order of the Commissioner met a similar fate at the hands of the Financial Commissioner on the 9th of August, 1962.

The respondent then knocked door of the High Court with a petition for the issuance of an appropriate writ which was, however, dismissed in limine on the 14th of October, 1962 (Exhibit D. 9).

It was then that the respondent filed the suit out of which this appeal has arisen, alleging that the order of the Collector was void, ineffective and without jurisdiction, that the appellant had voluntarily relinquished possession of the land and made the same over to him (the respondent) on the 16th of June, 1955, and that he (the respondent) was entitled to recover possession of the land. The case set up by the appellant was that he had never surrendered possession of the land to the respondent who had forcibly dispossessed him (the appellant) with the help of certain police personal and that the order of the Collector which was impugned. in the suit was correctly made. It was pleaded that the suit was time barred and that the civil courts had no jurisdiction to try it.

The parties went to trial on the following issues:

(1) Whether the suit is within time?

(2) Whether this Court has jurisdiction to try this suit?

(3) Whether the defendant voluntarily surrendered possession to the plaintiff on 16th June, 1955? If so, its effect?

(4) Whether the order of the Collector dated 12th May, 1962 is void, ineffective and without jurisdiction.

(5) Relief.

Sarimati Harmohinder Kaur, Subordinate Judge 1st Class, Dhuri, decreed the respondent''s suit with costs on the 23rd of November, 1964, all the issues having been found in his favour. Aggrieved by the decree passed by the trial Court, the appellant instituted his first appeal in the Court of the District Judge, Barnala, which was dismissed with costs by Shri Pritam Singh Pattar on the 14th of October, 1965. On a fresh appraisal of the evidence produced by the parties, Shri Pattar affirmed the finding of the trial Court on issue No. 3. He then proceeded to discuss issues Nos. 2 and 4 in respect of which also he affirmed the findings arrived at by the trial Court. Reliance in this connection was placed on Shri Raja Durga Singh of Solan Vs. Tholu, , Net Ram Surjia Ganeshi and another v. The State A .I.R. 1954 Pepsu 34. Harnani Singh and others v. Dalip Singh (1963) 65 P.L.R. 1133 and Hardev Bahadur Singh v. The State of Punjab (1964) 66 P.L.R. 751. The finding on issue No. 1 given by the trial Court was also maintained on the authority of Sadhu Singh v. Chanda Singh and others AIR 1957 P&H. 108 , and Union of India (UOI) Vs. Kedareshwar, .

It is from the appellate decree passed by Shri Pattar that the appellant has come up to this Court in second appeal.

Shri H.L. Sarin, learned counsel for the appellant, vehemently contended that the findings arrived at by the two Courts below in respect of issue No 2 were erroneous inasmuch as-

(a) Section 47 of the Act provides a complete bar to the entertainment by a civil Court of any matter which the Collector has jurisdiction to settle, decide or deal with under the Act and the present dispute between the parties constitutes such a matter in view of the provisions of section 43 of the Act, and

(b) the dismissal on the 24th of October, 1962, of the writ petition brought by the respondent against the orders of the revenue authorities operated as res judicata.

I shall deal with both this aspects of his contention.

Sections 43 and 47 of the Act run as follows:

(1) Any person who is in wrongful or unauthorized possession of any land-

(a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Act or

(b) to the use and occupation of which he is not entitled under the provisions of this Act may, after summary enquiry, be ejected by the Collector, who may also impose on such person a penalty not exceeding five hundred rupees (2). The Collector may direct that the whole or any part of the penalty imposed under sub-section (1) shall be paid to the person who has sustained any loss or damage by the wrongful or unauthorized possession of the land.

(1) No civil court shall have jurisdiction to settle, decide or deal with any matter which is under this Act required to be settled, decided or dealt with by the Financial Commissioner, the Collector or the prescribed authority.

(2) No order of the Financial Commissioner, the Commissioner, the Collector or the prescribed authority made under or in pursuance of this Act shall be called in question in any court.

Section 47 clearly enacts a complete bar to the entertainment by a civil Court of any matter which a Collector can settle, decide or deal with under the Act and this proposition is not disputed on behalf of the respondent whose case, however, is that the dispute now before the Court is not a matter covered by section 47, that u/s 43 the Collector can eject only a person who is in wrongful or unauthorized possession of land by reason of the existence of facts covered by clauses (a) and (b) of sub section (1) of section 43, that before the Collector can assume jurisdiction the existence of such facts must either be admitted or established in a civil court and that the Collector does not have the jurisdiction u/s 43 to adjudicate upon the nature of or title to the possession of land held by a particular individual. It was contended by Shri Sarin, on the other hand, that the Act was a complete Code, in itself, that it provided for a compute machinery for the decision of disputes like the one before me and that section 43 gave to the Collector clear authority to determine the existence of facts which would clothe him with jurisdiction to act there under. Numerous authorities were cited before me by learned counsel for the parties in this connection and after giving them my most careful consideration, I am fully inclined to agree with the proposition enunciated by Shri Sarin.

In Rai Brij Raj Krishna and Another Vs. S.K. Shaw and Brothers, , the question was whether the Controller had jurisdiction under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, to determine the question of non-payment of rent and whether his finding could be questioned in a civil court. Adverting to various provisions of the Bihar Act, their Lordships expressed the opinion that it had set up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depended, that it expressly made his order final (subject only to the decision of the Commissioner), that it empowered the Controller alone to decide whether or not there was non-payment of rent and that his decision on that question was essential before an order of eviction could be passed by him Their Lordships then referred with approval to the following observations of Lord Esher, MR. in The Queen v. Commissioner for Special Purposes of the income tax (1888) 21 Q B. D 313 at page 319:

When an inferior-Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceed-to do certain things, it shall nave jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction on finding that it does exist, to proceed further or do something more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.

Their Lordships has no doubt that the case before them fell within the second category mentioned by Lord Esher because the Bihar Act had entrusted the Controller with a jurisdiction which included the jurisdiction to determine whether there was non-payment of rent or not as well as the jurisdiction, on finding that there was non-payment of rent, to order eviction of a tenant, They concluded, therefore, that even if the Controller wrongly decided the question of non-payment of rent, his order could not be questioned in a civil Court.

The rise before me also appears to be fully covered by the second category mentioned by Lord Esher. The Act, as the preamble shows, was promulgated with a view to amend and consolidate the law relating to tenancies of agricultural lands and to provide certain measures of land reforms. In clause (k) of section 2 of the Act is given the definition of the term "tenant" thus:

''tenant'' has the meaning assigned to it in the Punjab Tenancy Act, 1887 (Punjab Act XVI of-1887), but does not include a person-

(i) who holds a right of occupancy, or (ii) who is relative of the tenant within the meaning of sub clause (2) of clause (g);

Clause (m) of section 2 of the Act lays down that all other words and expressions used in the Act and not defined but defined in the Punjab Tenancy Act, 1887 or the Punjab Land Revenue Act, 1887 shall have the meanings assigned to them in either of those Acts.

Chapter II of the Act deals with reservation of land for personal cultivation, while Chapter III therein is headed "General Rights of Tenancy".

The Chapter last mentioned contains ss. 7 to 19 which drastic-all amend the law relating to agricultural tenancies for the benefit of tenants. S. 7 provides that no tenancy (of agricultural land) shall be terminated except in accordance with provision of the Act or except on certain specified grounds. (Here 1 may mention that it was not disputed before me that if the appellant had been forcibly dispossessed from the land in dispute by the respondent on 16-6-1955, the latter would be a person in wrongful or unauthorized possession to the use and occupation of which he was not entitled under the provisions of the Act in as much as section 7 does not envisage the termination of a tenancy by forcible dispossession on the tenant). Chapter IV of the Act deals with acquisition of proprietary rights by tenants, Chapter IV-A with ceiling on land and surplus area, Chapter IV-B with the constitution of Land Commission and Chapter VI with miscellaneous provisions, Chapter V having been omitted by Pepsu Act No. 15 of 1956. Chapter VI consists of sections 39 to 53. Section 39 deals with appeals and revisions and section 40 with the correction of clerical or arithmetical mistakes in any order passed under the Act. Section 41 invests the officers and the authorities concerned with a proceeding under the Act with the powers of a civil court relating to proof of facts by affidavits, enforcing attendance of any person and his examination ON oath, production of documents and issue of. Commission and declares such officers and authorities to be civil courts within the meaning of sections 480 and 482 of the Code of Criminal Procedure.

From this detail of the provisions of the Act, I am of the view that the Act is a complete Code in itself and provides for complete machinery for the decision of disputes like the one now before me. It is further pertinent that section 43 of the Act envisages a summary enquiry by the Collector before he makes an order of ejectment. If the Collector has no jurisdiction to go into the question whether the person sought to be ejected is or not in wrongful or unauthorized possession of the land in dispute and is also not authorized to pronounce on the existence of facts which might bring a particular case within the ambit of clauses (a) and (b) of sub-section (1) of section 43 what is the enquiry to be about? The language used shows that the Legislature by necessary intendment, if not expressly, gave to the Collector the power to enquire not only into the question whether a person was liable to be ejected on the basis of certain facts admitted or already proved before a civil court but also into the existence of those facts.

In the opinion just above expressed I am fortified by the observations of their Lordships of the Supreme Court in another case State of Punjab and Others Vs. Bhai Ardaman Singh and Others etc., , the facts of which may be stated On the death in 1946 of Bhai Arjan Singh his lands devolved upon his son Bhai Ardaman Singh. Alleging that Bhai Arjan Singh forcibly deprived them of the lands sometime in May/June, 1943, seventy tenants applied to the Collector, Sangrur, and Bhatinda, for an order of restoration of possession u/s 43 of the Pepsu Tenancy and Agricultural Lands Act, 8 of 1953, which was identical in terms with Section 43 of the Act. The Collector granted the applications and ordered that possession be restored to the tenants. The orders were affirmed in appeal by the Commissioner who was of the view that the order u/s 43 could be passed by the Collector on his subjective satisfaction that a person was in wrongful or unauthorized possession of land. The Financial Commissioner confirmed the order of the Commissioner on the ground that substantial justice had been done by the subordinate revenue authorities and no interference with the orders was called for.

The orders of the Financial Commissioner were challenged in writ petitions filed in this Court. Gosain J. who dismissed the petitions, was of the view that Pepsu Act 8 of 1963 was a complete Code in itself and provided a complete machinery for the decision of disputes like the dispute before me. He observed :

Under this law Tribunals of special jurisdiction have been created and invested with powers which should enable them to effectively deal with disputes not only those which arise between the landlord and the tenant, but also those which arise between persons entitled to possession and persons wrongly dispossessing them. It may be that in the latter case the enquiry contemplated to be made by the Collector is only summary and that the aggrieved party may be able to have recourse finally to the civil court but the jurisdiction to make enquiry and to order eviction has been given by the law to the Collector.

The orders passed by Gosain J., were reversed by the High Court in appeal under the Letters Patent on the ground that Pepsu Act 8 of 1953 had no retrospective operation and that an order for possession of lands could not be made u/s 43 thereof when the alleged dispossession had taken place before it came into force. It was also held that the proceedings of the Collector were vitiated because he declined to give to Bhai Ardaman Singh an opportunity to lead evidence which he desired to lead. Dealing with these grounds their Lordships of the Supreme Court observed:

We must point out that the proceedings of the Collector are judicial in character. The trial is summary, but the Collector is bound to exercise the jurisdiction vested in him not on a subjective satisfaction as the Commissioner assumed, but on a judicial determination of facts which invest him with jurisdiction to pass an order in ejectment. When the condition precedent to the exercise of jurisdiction does not exist, the Collector cannot clothe himself with authority to pass the impugned orders. We also agree with the High Court that in view of the terms of CI. (b), S. 43 had no retrospective operation

That part of the above observations which I have underlined leaves no room for doubt that the Collector has the jurisdiction u/s 43 of the Act (which, as already stated, is identical in terms which section 43 of Pepsu Act 8 of 1953 to determine the facts which would invest him with jurisdiction to pass an order of ejectment and if that be so, section 47 at once come into play and bars the jurisdiction of civil courts to entertain the matter decided by the Collector.

Here I would like to make it clear that in the case just discussed above, the High Court and the Supreme Court were not acting as ''civil courts" in the sense in which that term is used in section 47 but in exercise of their writ jurisdiction under Article 226 of the Constitution under which it was open to them to correct any illegalities, etc., from which the orders passed by the revenue authorities suffered. "

Shri Sarin also referred to Babulal Bhuramal and Another Vs. Nandram Shivram and Others, , Om Prakash Gupta Vs. Rattan Singh and Another, , Muni Lal v. Chandu Lal 1968 C. L. J. 302. The Ambala Bus Syndicate (P) Ltd. v M/s lndra Motors (1968) 70 P L R 960, Civil Revisions No. 335 of 1966 decided by a Division Bench of this Court on the 10th of July, 1968, and M/s Kharaiti Ram Bansi Lal and others v. Shmt. Radha Rani another (1968) 70 P. L. R. 978, Civil Revision No. 877 of 1963 decided by another Division Bench of this Court on the 1st of August, 1968. In all these cases certain provisions of various Acts were held to invest special tribunals constituted there under with jurisdiction to determine facts, the existence of which would be necessary for clothing such tribunals with powers to adjudicate upon particular type of disputes All these cases, however, proceed on principles fully enunciated in Rai Brij Raj Krishna and another v. Messrs S. K. Shaw and Brothers (supra) and it is, therefore, not necessary to discuss those cases in detail here.

Learned counsel for the respondent relied upon AIR 1942 217 (Lahore) , Magiti Sasamal Vs. Pandab Bissoi, Shri Raja Durga Singh of Solon v. Tola and others (1969) 66 P L R 770 , Shiv Dayal and another v. Union of India and others19, and Lal Beg v. Pohlu and others (1964) 70 P. L. R. 163 , for the proposition that where the Legislature did not expressly or by necessary intendment invest a special tribunal with an authority to determine facts, the existence of which would give it jurisdiction to adjudicate upon a particular dispute, such tribunal could not determine the existence of those facts and that the jurisdiction of civil courts to determine the same would not be barred. This proposition is unexceptionable and covers cases falling within the first category mentioned by Lord Esher, to which all the authorities just above-mentioned belong, relate as they do to provisions of law very different from those contained in sections 43 and 47 of the Act. Baru and others v. Niadar and others (supra) and Shri Raja Durga Singh of Solon v. Tholu and others (supra) relate to the interpretation of section 77(3) of the Punjab Tenancy Act which provides that certain disputes between a landlord and a tenant are not cognizable by a civil court but must be decided by a revenue court. On the language used in that section it was held in both these cases that the revenue court had no jurisdiction to determine the question of relationship between the parties in a particular dispute and that it could resolve only those disputes the parties to which admitted that such relationship existed between them. Learned counsel for the respondent has not been able to indicate any similarity between the provisions of section 77(3) of the Punjab Tenancy Act and section 43 and 47 of the Act. The language used in the latter, as already found by me, fully justified the conclusion that the Legislature intended to clothe the Collector with jurisdiction to * enquire into the existence of facts which could bring a particular case within the ambit of clauses (a) and (b) of section 43. Magiti Sasamal v. Punjab Bissoi and others (supra) deals with a case u/s 7(1) of the Orissa Tenants Protection Act, 1948, which employ, language similar to that used in section 77(3) of the Punjab Tenancy Act. It may be mentioned, however, that in construing the relevant provision, their Lordships made the following observations:

Having regard to the beneficent object which the Legislature had in view in passing the (Orissa) Act its material provisions should be liberally construed. The Legislature intends that the disputes contemplated by the said material provisions should be tried, not by ordinary civil courts, but by tribunal specially designated by it, and so in dealing with the scope and effect of the jurisdiction of such tribunals the relevant words used in the section should receive not a narrow but a liberal construction.While bearing this principle in mind the courts must also have regard to another important principle of construction and that is that if a statute purports to exclude the ordinary jurisdiction of civil courts it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion.

The principles enunciated in these observations are no different from those made the basis of the decision in Rai Brij Raj Krishna and another v. Messrs. S. K. Shaw and Brothers (supra), on the application of which I have already construed sections 43 and 47 of the Act as above. Magiti Sasamal''t case (supra) is also, therefore, of no assistance to the case of the respondent Shiv Dayal and another v. Union of India and others (supra) was a case relating to the interpretation of section 24 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. It was held that that section could not be construed to mean that the Chief Settlement Commissioner had been given unfettered or arbitrary discretion in the matter of cancellation of an allotment and that he could not cancel the proprietary rights of allotters on their failure to pay the mortgage money due to Muslim residents of Pakistan. The language of the section last mentioned is again materially different from that employed in sections 43 and 47 of the Act and I do not see how the case can be of any help in determining the question before me.

Lal Beg v. Pohlu and others (supra) interprets sections 42 and 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 and no similarity between these sections and sections 43 and 47 of the Act has been pointed out. That case also, therefore, does not advance the cause of the respondent.

Learned counsel for the respondent also drew my attention to Harnam Singh and others v. Dalip Singh and another (supra) and Hartej Bahadur Singh v. The State of Punjab (supra). Both these authorities hold that section 7 of the Act relates to circumstances in which a tenancy can be terminated but that it does not imply that a tenant cannot relinquish his tenancy of his own accord. This proposition in not challenged but then it is irrelevant for the determination of the question as to whether the dispute about the manner in which the respondent obtained possession of the land from the appellant on the 16th of June, 1955, was to be decided by the Collector or by the civil court. It his to be emphasised that if the Collector had the power to decide the dispute, the civil court cannot upset his finding and any order of eviction passed in consequence, even though such court may come to a contrary finding if it had the jurisdiction to decide the dispute itself.

In Hartej Bahadur Singh v. The State of Punjab and others (supra), it was also held that the failure of the consolidation authorities to deliver possession of if land allotted in lieu of other land previously in his occupation did not give the tenant any right to seek possession u/s 43 of the Act. This dictum is also of no help to the respondent as it was given in exercise of the writ jurisdiction of the High Court. It is no authority for the proposition that a civil court has jurisdiction to determine disputes u/s 43 if it finds on facts that the Collector assumed jurisdiction either on an erroneous view of the law or on facts.

In view of whit I have stated above, I hold that the finding given by the two Courts below on issue No. 2 was erroneous. That finding is therefore, reversed on the ground that he Collector acted within jurisdiction in deciding the dispute between the parties as he did and that the entertainment of the same by the civil court was barred u/s 47 of the Act

In support of the plea of res judicata, Shri Sarin relied on Daryao and Others Vs. The State of U.P. and Others, and Bua Dass Kaushal Vs. State of Punjab, . 342, neither of which, however, states that if a writ petition is dismissed in limine and the order of dismissal is not a speaking order, the matters raised in the petition cannot be reagitated in a civil court. On the contrary, it was observed by their Lordships in Daryao''s case :

If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata

Bua Dass Koushal v. State of Punjab also proceeds on the same principles.

In the present case the only order passed by this Court in exercise of its writ jurisdiction was: "Dismissed-"

There is nothing to indicate the reasons for the dismissal and it cannot be said, therefore, that the order of dismissal, which is not a speaking order, would operate as res judicata.

The only other point raised by Shri Sarin related to issue No. 1. According to him the suit was time-barred in view of the provisions of article 110 of the Limitation Act, 1963, the relevant portion of which corresponds to article 14 of the Indian Limitation Act, 1908. He relied on AIR 1925 385 (Lahore) and AIR 1934 384 (Lahore) . in which it was held that a suit u/s 12 of the Punjab Redemption of Mortgages Act, 1913, would be barred under article 14 of the Indian Limitation Act, 1908 if brought after a vear of the date of the order. These authorities, in my view, have no application to the facts of the present case in which the order of the Collector was challenged as being without jurisdiction and was, therefore, an order which could be ignored without the necessity of having to be set aside.

In this connection reference may be made to Sadhu Singh v. Chanda Singh (supra), cited by the Courts below in connection with issue No. 1. It was held therein by Bishan Narain J., while dealing with an order passed by the Special Collector under the Punjab Restitution of Mortgaged Lands Act :

If the act or an order of an officer is illegal or ultra vires, it does not require to be set aside and Article 14 of the Limitation Act has no application vide inter alia The Secretary of State For India Vs. Faredoon Jijibhai Divecha, , and P.B. Thiruvenkatacharyulu v. Secy. of State for India in Council A. I. R. 1934 Mad. 147.

Shri Sarin''s contention under examination is thus found to be without substance.

No other point was urged before me and, in view of my finding on issue No. 2, I accept the appeal, set aside the decrees passed by the two Courts below and dismiss the plaintiff''s suit. The parties are left to bear their own costs.