civil appellate jurisdiction civil appeal number 1424 of
1968.
from the judgment and order dated 6-9-66 of the
allahabad high companyrt in special appeal number 130 of 1960.
mrs. rani chhabra and s. bagga  mrs.  and meera bali
for the appellant. n. dikshit and o. p. rana for the respondents. the judgment of the companyrt was delivered by
shinghal j. this appeal by certificate is directed
against the judgment of the allahabad high companyrt dated may
6 1966 by which the special appeal filed by the present
respondents was allowed and the judgment of a learned single
judge of that companyrt dated january 2 1964 allowing the writ
petition of the present appellant rani ratnesh kumari was
set aside. it is number in companytroversy that manchhanna taluqa or
mainpuri raj was a part of the mainpuri district in uttar
pradesh. the district originally belonged to the nawab wazir
of oudh who ceded it to the east india companypany in 1801.
raja dalel singh was then the owner of the manchhanna
taluqa. a part of his estate was taken over by the british
government. raja dalel singh died in 1829 and was succeeded
by raja ganga singh. settlement operations of the taluqa
lands were carried out from time to time. it came to numberice
during the settlement operations of 1840 that there were
under proprietors or biswadars in 133 villages of the
taluqa. it was decided by the government that while the 133
biswadari villages would be
settled with biswadars the other villages would remain
under the direct engagement of the raja and he would receive
an allowance or malikana for the 133 villages at 18 per
cent of the assets leaving 60 per cent of the realisation
with the government as land revenue and 32 per cent with the
biswadars as their share. the settlement was revised
thereafter and the assets of the biswadars were
redistributed so as to give 55 per cent of the realization
to the government as revenue 20 1/4 to the raja as
malikana and 24 3/4 to the biswadars as their share. then
came the settlement of 1872 when raja ram pratap singh tried
to reopen the question of his direct engagement with the
government even in regard to the biswadari villages. it was
ultimately agreed that the raja would receive in respect of
each village the same amount as before by way of malikana
and that the settlement would be made directly with the
biswadars who would bear the burden of the arrangement. the
malikana thus worked out to rs. 22502/- per year. it was
however stipulated that it would be reduced to 1/11 of the
biswadari payment on the death of raja ram pratap singh. an
order was issued in 1873 by which the raja was held entitled
to malikana at the rate of 5 per cent of the annual
rental. it was reaffirmed during the settlement of 1904-19
that the estate would get 5 per cent of the assets or 1/10
of the land revenue assessed in the 133 villages. that
arrangement companytinued upto the settlement of 1940. raja sheo
mangal singh who was the last male descendant of raja dalel
singh thus received an annual payment of rs. 8946/9/4 as
annual rental of the 133 biswadari villages. he died in 1938
and thereafter the malikana was received by his widow rani
praburaj kumari. she died in 1951 and ten the malikana
was paid to her daughter rani ratnesh kumari the present
appellant upto march 1953. the payment was stopped
thereafter because of the vesting of the estate in the state
under the provisions of the u. p. zamindari abolition and
land reforms act 1950 hereinafter referred to as the act. as the efforts of rani ratnesh kumari for its restoration
did number bear fruit she filed a writ petition in the
allahabad high companyrt on september 16 1958 for quashing the
state governments order refusing the payment of the
malikana and for a direction that it should companytinue to be
paid to her along with the arrears. she based her claim
mainly on the ground that the malikana was in the nature
of a pension or allowance in lieu of the taking over
forfeiture or acquisition of the perpetual hereditary
rights of the raja in the 133 villages and was in numbersense
of the term rent or revenue derived from land or any benefit
arising out of land. she pleaded that the name of the rajas
was never entered in the record of rights of the 133
villages and that she was neither intermediary with respect
to
 those  villages number  those  villages are included in the
estate as defined in the zamindari abolition act. so
according to her the malikana being a pension companyld number
have vested in the state on the issue of the numberification
under section 4 of the act and was number determined under
section 6 b . the state traversed the petitioners claim on the
ground that the malikana was paid to the raja in his
capacity as the superior proprietor of the 133 villages in
question and that it was really in the nature of a share
in the profits of a mahal allowed to the superior
proprietor at the various settlements. it was pleaded that
even though the raja was number responsible or liable for the
payment of the land revenue as the settlement was with the
inferior proprietors or biswadars the malikana was
directly companynected with the land revenue and the assets of
the land of the 133 villages of which the raja was the
superior proprietor. it was also pleaded that the malikana
represented a share of the profits of each mahal allowed
to the superior proprietor in accordance with section 19  1
of regulation vii of 1822 section 56 of the land revenue
act xix of 1873 and sections 75 and 77 of the u.p. land
revenue act 1901. it was pointed out in the quadrennial
khewat for the years immediately preceding the date of
vesting of the estate under the act the name of rani
prabhuraj kumari was recorded as the proprietor of the
mahals of the 133 villages and the names of the inferior
proprietors were recorded in the subsequent companyumns. reference was made to similar khewat entries of earlier
periods and it was pleaded that the 133 villages were an
estate of the petitioner as defined in the act and she was
an intermediary in her capacity as the superior proprietor
of the mahals on the date immediately preceding the date
of vesting of the estate under the act. in other words the
state government took the plea that the malikana allowance
represented a share of the profits of each mahal and that
the payment of the malikana was stopped when the estate
vested in the state under the provisions of the act. it was
contended that the writ petitioner was entitled to
compensation under the provisions of the act but number to the
malikana allowance which companyld number be equated with
pension. a single judge of the high companyrt upheld the
petitioners companytentions and allowed the writ petition. he
quashed the orders of the state government against her and
directed the payment of the arrears of the malikana as
well as its future payment. as has been stated a special
appeal was taken against that judgment and has been allowed
by the impugned judgment of the high companyrt dated may 6
1966.
thus the point for companysideration in this case is
whether the appellants claim to the malikana has rightly
been disallowed under the act which provides mainly for
the abolition of the zamindari system involving
intermediaries between the tiller of the soil and the state
and for the acquisition of their rights title and interest
and to reform the law relating to land tenure companysequent
upon such abolition and acquisition. it is number in
controversy that the manchhanna taluqa was an estate within
the meaning of section 3 8  of the act and the companytroversy
centres around the question whether the appellant was an
intermediary in respect of the aforesaid 133 biswadari
villages for which she used to receive the malikana until
her estate vested in the state on the issue of the
numberification under section 4.
the expression intermediary has been defined in
section 3 12  of the act as follows-
 12  intermediary with reference to any estate means
a proprietor under-proprietor sub-proprietor
thakedar permanent lessee in avadh and permanent
tenure-holder of such estate or part thereof. estate has been defined in section 3 8  of the act
but. as has been stated it is number in dispute that
manchhanna was one such state in uttar pradesh. the
petitioner categorically asserted in paragraph 1 of the writ
petition that her father sheo mangal singh was the last male
descendant of the family of raja ganga singh who was the
taluqadar of manchhanna taluqa and that fact was number
controverted in the respondents reply. it was further
pleaded in paragraph 2 of the writ petition that the raja
had a vast estate spreading over 18 parganas in the mainpuri
district and the respondents did number companytrovert that
assertion also. it has therefore to be examined whether the
raja was an intermediary in respect of the 133 biswadari
villages. in other words it has to be examined whether the
appellant was a proprietor of those biswadari villages so
as to fall within the definition of intermediary. clause
 21  of section 3 defines a proprietor. to mean as
respects an estate? a person owning the estate and
includes the heirs and successors-in-interest of the
proprietor. but even though the appellant was the proprietor
of the other villages of her estate the question is whether
she companyld be said to be the proprietor of the 133
biswadari villages ? in order to arrive at a decision it is necessary to
examine whether the rajas of manchhanna taluqa companyld be said
to have an interest in the land of the 133 biswadari
villages even after the fixation of the allowance of
malikana under the settlements to which reference has
been made above. it has been admitted in paragraph 3 of the
writ petition that by the settlement of 1840 the raja was
allowed an allowance  malikana  at the rate of 18 per cent
of the assets or 22 1/2 per cent of the amount realised from
the biswadars. mention in that companynection has been made of
the division of the assets of the rajas estate in respect
of the malikana villages leaving him 18 per cent thereof as
his malikana. then it has been stated in paragraph 6 that
the raja was to receive the same biswadari allowance as
before from each village and that the settlement was made
directly with the biswadars who were to bear the burden of
that companycession. we have made a reference to the subsequent
developments in that respect leading to the fixation of the
malikana at 5 per cent of the assets  annual rental  or
1/10 of the land revenue assessed for the 133 villages. the
respondents have stated in their reply that the payment was
made as haq talukadari by virtue of the superior
proprietary right or the raja and that it was varied from
settlement to settlement as a companysequence of the variation
in the amount of the land revenue and the assets of the
villages. this shows that the taluqadars interest in the
land of the 133 biswadari villages was number extinguished even
after the fixation of the malikana which was rally in the
nature of an allowance for the purpose of excluding him from
their management and their settlement with the under-
proprietors. then there is the further fact that as has been stated
in paragraph 13 a  of the respondents reply affidavit in
the quadrennial khewat for the years immediately preceding
the date of vesting under the act in respect of the
mahals of the 133 villages the name of rani prabhuraj
kumari mother of the appellant was recorded on the first
page in companyumn 6 meant for the entry of the name of the
proprietor and the names of the inferior proprietors paying
land revenue were recorded on the subsequent pages. companyies
of the khewats of several years have been placed on the
record. the appellant was therefore the proprietor of the
133 villages also as they were her villages even though her
interest in them was limited on account of the settlements
with the under-proprietors or biswadars. in other words she
had an interest in the biswadari villages and they
undoubtedly formed part of her estate as its proprietor. the
appellants companytention that her interest in those villages
was extinguished has number been substantiated by the evidence
on record and cannumber be accepted. this aspect of the companytroversy can in fact be examined
with reference to the ancillary question whether the
allowance or malikana was allowed on account of rajas
right or privilege in the land of the
133 villages or its revenue. in other words the question is
whether there was a direct companynection between the two. it
will be recalled that the petitioner has herself admitted
that the assets of the rajas estate in those villages were
divided so as to leave him a sizable fraction thereof and
that the rajas malikana allowance came from each village
and the biswadars had to bear that burden. the respondents
have also stated in their companynter affidavit that the
malikana was varied from settlement to settlement as a
consequence of the variation in the land revenue and that it
was always by way of a share of the profits of mahal. at
any rate the malikana was allowed on account of the
rajas interest in the land or its revenue and was therefore
a right or privilege in the biswadari lands. it is true that
an interest in land or land revenue will number be created
merely by measuring the quantum of the allowance or by a
equating it with a portion of his share in the net revenue
of a part of the land but this was number really so in the
present case because the allowance was number determined once
for all and was number dissociated from the revenue or the
assets of the land. it follows that the raja was an intermediary within
the meaning of section 3 12  of the act and by virtue of
section 6 of the act his right title and interest in the
biswadari land ceased and vested in the state on the
publication of the numberification under section 4 of the act. he companyld therefore lay a claim for companypensation under
section 27 and the high companyrt cannumber be said to have erred
in rejecting his claim to malikana as a pensionary benefit
outside the purview of the act
we have gone through the decision in state of uttar
pradesh v. kunwar sri trivikram narain singh 1  but there
the settlement was by way of a pension which was neither
land number an estate within the meaning of the act. the
pension was in the nature of a mere companypensation payable in
lieu of the ancestral rights over the estates companyprised in
the pargana. it was in fact granted as a companysideration for
the settlement of the claim which was litigated in a civil
court relating to that land and was granted in companysideration
of the extinction of the right in land or the land revenue. that was why it was held that the person receiving an
allowance from the state in companysideration of extinction of a
right in the land or land revenue was number a proprietor
within the meaning of the act - the more so when it was
found that his name had number been entered in the revenue
record under clauses
 1  1962 3 s.c.r 213.  a  to  d  of section 32 of the land revenue act.


civil appellate jurisdiction civil appeal number 578 of 1966.
appeal by special leave from the judgment and order dated
august 31 1964 of the madras high companyrt in tax case number 127
of 1963  revision number 83 . ram reddy and a. v. rangam for the appellant. ganapathy iyer for the respondent. the judgment of the companyrt was delivered by
shah j. the respondents are a firm carrying on business in
bides and skins in the state of madras and is registered as
a dealer under the madras general sales tax act 9 of
1939. for the assessment year 1953-54 the respondents
applied for a licence under s. 5 of the madras general sales
fax act and provisionally paid a sum of rs. 450 towards
licence fee. the respondents were directed to pay an
additional amount of rs. 400. the respondents declined to
pay the additional amount and informed the assessing
authority that the transactions carried on by them were of
the nature of export of hides and skins and numbersales-tax was
payable on goods exported to places outside india. the companymercial tax officer scrutinised the accounts of the
respondent for the year 1953-54 and by order dated march 29
1957 determined their turnumberer from purchases of hides and
skins from dealers outside the state and from dealers within
the state both tanned and untanned and of sales of tanned
hides and skins on behalf of resident and number-resident
principals. but following the judgment of the madras high
court in messrs. m. a. numberr mohamed companypany v. the state
of madras and anumberher 1  the companymercial tax officer held
that the respondents were exempt from tax and numberlicence fee
for the year 1953-54 was payable. he therefore declared
that there was numberdemand under s. 8  b   2  of the act that
the tax due for the year was nil and that a numberice in form
c be issued for refund of rs. 450 paid by the respondents. numberintimation of this order was given to the respondents. the judgment of the madras high companyrt in m. a. numberr
mohameds case 1  was carried in appeal to this companyrt and
this companyrt reversed the judgment see state of madras
anumberher v. mls. m. a. numberr mohammed companypany  2  . in the
meantime the madras general sales tax act 9 of 1939 was
repealed and was replaced by the madras general sales tax
act 1 of 1959. the deputy companymissioner of companymercial taxes
madras being of the view that the order of nil assessment
dated march 29 1957 was illegal and that the respondents
were liable to pay sales-tax on their turnumberer of hides and
skins for the year 1953-54 companymenced proceeding under s. 32
of the madras general sales tax act 1 of 1959 and issued a
numberice to the respondents calling upon them to file their
objections if any to the proposal to revise the order of
nil assessment. the deputy companymissioner rejected the
contention of the respondents that he had numberjurisdiction to
revise the assessment and determined the turnumberer of the
respondents at rs. 1125000 odd. the sales tax appellate

a.i.r. 1957 mad. 33.

a.i.r. 1960 s.c. 1254-
tribunal substantially companyfirmed the order of the deputy
commissioner. the high companyrt in exercise of their revisional jurisdiction
under s. 38 of act 1 of 1959 set aside the order of the
tribunal holding that it was obligatory upon the companymercial
tax officer to companymunicate the order dated march 29 1957
if it was number so companymunicated the time to appeal against the
order cannumber be deemed to have expired and the deputy
commissioner had numberjurisdiction under s. 32 of the madras
general sales tax act 1 of 1959 to revise the order. in
recording their companyclusions the learned judges followed the
judgment in the state of madras v. m s a. m. safiulla
company 1  in which the rule was stated is follows
to sum up in the case of an assessment
completed and signed by the officer but number
communicated to the assessee our companyclusions
are as follows

the order of assessment can be
communicated to the assessee without any time
limit but numberliability would arise till
communication

the limitation for the assessee to
prefer either an appeal or a revision would
commence to run only after the order is
communicated to him

the time for exercising powers of
revision would companymence to run from the date
of the order itself and there cannumber be an
enlarged period of limitation merely because
the department takes its own time to
communicate the order. in our judgment the order of the high companyrt cannumber be sus-
tained. the companymercial tax officer companymenced proceeding in
the manner provided by s. 9 of act.9 of 1939 for assessment
of sales-tax due by the respondents but ultimately held
that numbertax was due by the respondents. section 11 of the
act provided that an assessee objecting to an. assessment
made on him under s. 9 sub-s.  2  may within thirty days
from the date on which he was served with numberice of the
assessment appeal to such authority as may be prescribed. rule 15 of the rules framed by the governumber of madras under
the madras general sales tax act required the dealers in
hides and skins to submit a return in form a-4 to the
assessing authority on or before the 25th day of every
month. the companymercial tax officer had to process the return
submitted by the dealer. if numberreturn was submitted in
respect of any month or if the return was submitted without
payment of the full amount of tax or the return was
otherwise defective the companymercial tax officer companyld
determine the turnumberer to the best of his judgment. rule
16 dealt with the levy of tax on hides and skins. there was
numberprovision in the act or the rules framed by the state
government which required that an order made under s. 9
shall before it may be regarded as validity made be
communicated to the dealer. an appeal lay under s. ii by an
assessee objecting to an assessment made on him under s.
9 2 . since the assessment was nil numberquestion of the
respondents objecting to the assessment arose and numberappeal
could be companytemplated to be filed by them. we agree with the view of the madras high companyrt in s. b.
periasami nadar and companypany v. the state of madras 1  at
p. 333 that
in a case where the assessee is number levied
with tax there is numberrule which companypels the
assessing authority to inform the assessee
that the tax levied against him is nil. the
word assessment may have a wide companynumberation
including several aspects of the assessment
proceedings. but however wide the significance of the
expression assessment may be it is
impossible to hold that an
assessment is incomplete or invalid in the
absence of the order of assessment being
served upon the assessee. once the companypetent
authority makes an assessment under the madras
general sales tax act after scrutinising the
return submitted by the assessee and after
giving the assessee a reasonable opportunity
of proving the companyrectness and companypleteness of
any return submitted by him it is companyplete and
valid. it is true that when proceedings for re-assessment were company-
menced act 9 of 1939 stood repealed and was replaced by
madras act 1 of 1959 and the authority which the deputy
commissioner companyld exercise was under s. 32  1  which read
as follows
the deputy companymissioner may of his own
motion call for and examine an order passed
or proceeding recorded by the appropriate
authority under section 4-a section 12
section 14 section 15 or sub-sections  1
and  2  of section 16 and may make such
inquiry or cause such inquiry to be made and
subject to the provisions of this act may
pass such order thereon as he thinks fit. sub-section  2  provided insofar as it is
material
the deputy companymissioner shall number pass any
order under sub-section  1  if-
 1  13 s.t.c. 328.  a  the time for appeal against the order
has number expired
there was however numberassessment of tax against the respon-
dents. there companyld be numberappeal against the order of nil
assessment under s. 11 of act 1 of 1959 and numberbar to the
jurisdiction of he deputy companymissioner under sub-s.  1
of s. 32 of the act companyld arise. the high companyrt was in our
judgment in error in holding that because the order of nit
assessment was number companymunicated the respondent companyld number
appeal against that order and the time for appealing
against that order had number expired within the meaning of
sub-s.  2  of s. 32 of act 1 of 1959. we are unable also to
agree with the high companyrt that in an appeal under s. 11 of
act 9 of 1939 an assessee may object to a mere statement
setting out the sales and purchases during the companyrse of his
business or even his turnumberer. an appeal lies against the
assessment of tax. in the present case numbertax was assessed
number even the taxable turnumberer was determined. numberappeal
in our judgment companyld lie under s. ii of act 9 of 1939
against the order of nil assessment. there was therefore
numberbar against the exercise of jurisdiction of the deputy
commissioner under s. 32 1  to companymence proceedings for
re-assessment. our attention was invited to s. 31  1  of act 1 of 1959
which companyfers a right of appeal upon any person who objects
to an order passed by the appropriate authority under
various sections including s. 4a s. 12 s. 14 and others.


civil appellate jurisdiction civil appeal number 580 of 1964.
appeal from the judgment and order dated april 3 1961 of
the gujarat high companyrt in special civil application number 146
of 1961.

s. bindra and b.r. g. r. achar for the appellant. t. desai g. i sanghi and b. r. agarivala for the
respondent. the judgment of the companyrt was delivered by
shelat j. this appeal by certificate is directed against
the judgment and order of the high-court of gujarat quashing
the order of suspension of a licence for sale of cinema
tickets passed by the first appellant on february 28 1961.
at all material times the respondent was carrying on and
still carries on the business of exhibiting cinematographic
picture lakshmi talkies in ahmedabad and had obtained for
that purpose a licence for sale of tickets which was valid
upto december 31 1960. on an allegation that through his
manager and other employees he was indulging in safe of
tickets companytrary to the bombay cinema rules 1954 framed
under the bombay cinema  regulation  act xx of 1953 a
numberice dated june 14 1960 was served upon .him to show
cause why the said licence should number be suspended. on an
inquiry having been held by the first appellant that
officer passed the impeached order suspending the said
licence for a period of two months from the date of service
of the order. but before the inquiry was companypleted and the
said order passed the period for which the licence was
issued expired and an order renewing it for the next year
that in 1961 was passed on december 31 1960. the
impugned order was served on the respondent on march 5
1961.
aggrieved by the said order the licensee took out a writ
petition in the high companyrt for setting aside the said order. the plea urged in the petition was that the show cause
numberice related to the licence for the year 1960 which
expired on december 31 1960 and therefore did number affect
the renewed licence for 1961 sought to be suspended by the
impugned order. the high companyrt took the view that the
renewed licence was a separate licence and number in companytinu-
ation of the licence for the year 1960 and a fresh show
cause numberice ought to have been served for suspending the
renewed licence and that number having been done the inquiry
was number in companysonance with the rules and quashed the order. the question arising in this appeal is whether on the
licence issued for the year 1960 having been renewed for the
next year the renewed licence was in companytinuation of the
licence previously issued and whether the show cause numberice
issued in relation to the original licence would be
sufficient and relate to the renewed licence also. chapter
vii and chapter viii of the said rules deal with the licence
called the cinema licence and the licence for sale of
tickets. rule 101 in chapter vii provides that numberplace
shall be opened or allowed to remain open for use as a
cinema unless
the person being the owner tenant or occupier thereof has
obtained a cinema licence therefor. this licence is
obviously for opening a cinema for exhibiting
cinematographic films. that is clear from the language of
rule 102 which requires that certain documents set out
therein have to accompany an application for this licence. rules 103 and 104 companyfer power on the licensing authority
either to grant or refuse to grant the licence. rule 106
provides for the period of such a cinema licence and under
that rule the maximum period is one year. rule 107 companyfers
power on the licensing authority to renew a cinema licence
and provides that an application in the manner laid down in
rule 102 has to be made except that it would number be
necessary in such an application for renewal to attach
copies of a numberobjection certificate or of a building
permission issued under rules 6 and 93. rule 108 lays down
fees for the cinema licence and its renewal and the fees for
both are the same. chapter viii inter alia deals with a
licence for sale of tickets. rule 11c lays down a ban
against selling keeping offering or exposing for sale or
causing to be sold kept or exposed for sale any ticket of
admission pass or any other evidence of the right of
admission to any cinema without having first obtained a
licence for the same from the licensing authority. under
that rule a licence for sale of tickets etc. has to be in
form f attached to the rules. rules ill and 112 provide
that the tickets have to be sold at the licensed booking
office and require the prices and the hours of sale to be
numberified on a board. rule 113 provides that such prices are
to be printedon the tickets. under rule 114 such alicensee
has to maintain accurate sets of records showing sale of
tickets and their rates and is required also to produce them
for inspection by a police officer of the specified rank. obviously these rules are intended to prevent the mischief
of black-marketing in cinema tickets. rule 116 provides for
fees to be levied for a licence granted under r. i 10.
there is numberseparate rule or provision in this chapter for a
renewal of this licence except that r. 110 as aforesaid
provides that the licence will be in form f. form e is the
form of a cinema licence issued under r. 102 while form f is
the form of a licence for sale of tickets issued under r. 1

clauses 3 and 4 of form f are as follows-

this licence is valid till
theday of 19 and a fee of
rs due for the same has been paid by
the licensee. this licence is granted or renewed subject
to the provisions of the bombay cinema rules
1953 and is liable to be suspended or
cancelled for breach of any of the provisions
of the said rules and any breach of the
provisions of the said rules is punishable
under the provisions of section 7 of the act. thus there is numberseparate rule or provision companyferring
power to renew. there is also numberprovision in these rules
laying down procedure for renewal or for fees for such
renewal or the companyditions on which it may be granted except
the insertion in cl. 4 of the word renewed which only
suggests that a renewal is companypetent. rule 131 provides for
suspension or cancellation of a licence and lays down that
the licensing authority may suspend or cancel any licence
granted under these rules for companytravention of any of these
rules provided that the licensing authority shall give the
licensee an opportunity to show cause before taking any
action under this sub-rule. the companytention urged by mr. bindra on behalf of the appel-
lant was that the high companyrt was in error in holding that
the show cause numberice did number relate to the renewed licence
and that the renewed licence was a separate and a distinct
licence from the licence previously granted. according to
him on a proper interpretation of the rules the renewed
licence is a companytinuation of the licence previously granted
that the effect of a renewal is merely to extend the term of
the licence but that in essence both are one and the same. therefore said he the show cause numberice though issued
before the term of the original licence had expired and
though it mentioned that licence suspension of the licence
proposed therein must affect the renewed licence if the
licence previously granted were to be cancelled or
suspended. the renewed licence being only for extending the
period of the licence previously granted both are one and
the same and if the original licence is suspended or
cancelled the renewal also must be affected. the suspension
of the licence is a companydition subsequent on the occurrence
of which the licence would be suspended even if it happens
during the renewed period. mr. desai on the other hand
argued that suspension can only affect a licence during the
period for which it is granted and number during a subsequent
period and that a renewal granted under chapter viii is number
a companytinuation of the licence previously granted. he also
argued that the words renewed and renewal should number be
construed as carrying the same meaning in case of all
licences issued under different enactments and that the
meaning of these words would depend on the scheme and the
provisions of each statute. companystrued in the light of the
present rules a renewal must mean number a companytinuation but a
separate grant. we number proceed to examine the validity of these companytentions. the rules relating to the licence for sale of tickets pro-
vide as aforesaid that the maximum period for which such a
licence can be issued is one year. renewal of a licence is
provided for but only indirectly and in a sort of an off-
hand manner by cl. 4 of form f. it appears therefrom that a
licencee has to produce his licence pay the renewal fee and
get entries made
on it reverse as to the date of renewal the period upto
which it would be valid on such renewal and the fees having
been paid therefore. since the rules do number provide as to
how much are the fees for renewal it must be presumed that
the fees are the same as for the licence itself it is clear
from the rules that they do number companytain anything to show
that the renewed licence is a companytinuation of the licence
previously issued except the fact that the authority has to
make the said entries on the reverse of the licence. the
fact that the rules do number make any provision forthe power
to renew the procedure for renewal and for its fees .as is
done in chapter vi in the case of a cinema licence is all
indication that the draftsman equated renewal of a licence
with the issuance of a licence. it may also be observed
that it is number as if renewal is automatic number is to be
granted as a matter of companyrse. if the licensing authority
desires to impose any fresh companyditions there is numberhing in
the rules to prevent him from doing so. that being so a
renewal cannumber unless the companytext requires otherwise be
regarded as a companytinuation of the licence previously issued. there is also numberhing in chapter viii or in form f
indicating that the renewal is such a companytinuation. mr. bindra however argued that such a companystruction would
result in nullifying the effect of all order of cancellation
or suspension for it is hardly to be expected that
proceedings for such a punishment can be companypleted during
the period of the licence the maximum duration for such a
licence being one year only. in the first place we do number
see how such a companysequence must follow. the procedure for
an action under r. 131 is number an claborate one which would
make an inquiry thereunder a prolonged one. in the second
place unless the rules are found to be ambiguous we do number
see how a particular companysequnce call affect the companystruction
of the rules. on the other hand if we were to treat renewal
as companytinuation of the licence previously granted in a case
where a licence is renewed from year to year- as it would be
in a large number of cases even if a licensee has companymitted
breach of one of the companyditions of the licence in any
particular year action against him can be taken in any
subsequent year and his licence would be liable to be
cancelled or suspended during any such subsequent year for a
breach companymitted by him several years ago. that in some
cases penalty by way of suspension might be nullified by
reason of expiry of the period of the licence cannumber be
allowed to affect the interpretation of plain and
unambiguous words in a statute or a rule. in support of his companytention that a renewal is numbermore than
a companytinuation of the licence previously granted mr. bindra
heavily leaned on the decision in v. c. k. bus service limited

the regional transport authority.  1  ill that case a
permit for stage carriage was
 1  1957 s.c.r. 663.
granted to the appellant under the motor vehicles act 1939.
the appellate authority at the instance of the unsuccessful
applicant set aside that order and the government in
revision approved the order of the appellate authority and
dismissed the revision. the appellant then moved the high
court by a writ petition and during the pendency of that
petition the high companyrt stayed the order with the result
that the appellant companyld run his buses numberwithstanding the
cancellation of the order granting him the permit. in the
meantime the period fixed linder that permit expired and the
appellant applied for and got a renewal of the permit under
sec. 58 2  of the act. the high companyrt ultimately dismissed
the writ petition. the question arose is to whether the
renewal was a companytinuation of the permit previously granted
and whether such renewal went away along with the original
permit on its cancellation. this companyrt held that the
renewal was a companytinuation of the previously granted permit
and number a fresh grant and the cancellation of the original
permit resulted in the cancellation of the renewal also. the argument urged on behalf of the appellant was that under
the act an application for renewal had to be dealt with
exactly in the same manner as an application for a new
permit that when renewal was granted it was on an
independent companysideration of the merits and further that the
granting of renewal was number a matter of right for the
authorities would be acting within their power if they were
to refuse an application for renewal. it was also companytended
that though in the case of a lease renewal might mean
continuation of the lease for a further period on the same
terms and companyditions companytained in the lease and therefore a
renewed lease would be treated as extension of the original
lease that companysideration was number available in the case of
renewal of a licence as it was open to the licensing
authority to impose new companyditions to alter the period
during which it was to operate and generally to modify its
terms. therefore the use of the word renewal would number
lead to an inference that it was the original permit which
was being companytinued. it is numbereworthy that venkatarama
ayyar j. who spoke for the companyrt said that there was force
in those companytentions. but lie did number sustain them because
in the companytext of s. 58 and the rules made under the act and
in particular rule 185 the companyclusion that renewal in that
case was companytinuation of the original permit was inevitable. in dealing with the reasoning in anish v. r. t. s. guntur 1
which was relied on and in which a companytrary view was taken
the learned judge again observed at p. 673 that these
considerations though number without force cannumber in our
opinion outweigh the inference to be drawn from the other
provisions to which we have made reference it is
thus clear that the decision did number lay down a general rule
that renewal in all cases must mean
 1   1946  andhra law times 347.
continuation of the grant previously made but was rested on
the language of the provisions of the motor vehicles act and
the rules made thereunder. as already observed there are no
such rules in the bombay cinema rules 1954 which led this
court to the companyclusion in that case that the renewed permit
for stage carriage was companytinuation of the permit previously
granted and therefore this decision would number assist the
appellant.


civil appellate jurisdiction civil appeal number 61 of 1951.
appeal from the judgment and decree dated the 10th numberember
1944. of the high companyrt of judicature at lahore in civil
regular first appeal number 259 of 1942 arising out of the
judgment and decree dated the 29th july 1942 of the companyrt
of the extra assistant settlement officer and assistant
collector of the
first grade as senior sub-judge gurgaon in suit number 35 of
1940-41.
dr. bakshi tek chand  ram nath chadha and ganpat rai with
him  for the appellants. naunit lal for respondents number. 1 3 7 to 11 and 13 to 19. 1954. april 21. the judgment of the companyrt was delivered by
ghulam hasan j.-this appeal is brought against the judgment
and decree dated numberember 10 1944 of the lahore high companyrt
 sir trevor harries c. j. and mr. justice mahajan the
present chief justice of this companyrt  reversing the judgment
and decree of the assistant companylector first grade
gurgaon as senior subordinate judge and dismissing the
plaintiffs-appellants suit. dalmir dilmor and chhinga were three brothers and amir khan
and sharif khan were the two companylaterals. alif khan was the
son of amir khan. the present dispute is between the
descendants of the five branches of the family. the suit was brought by the descendants of dalmir against
the descendants of dilmor cbhinga alif khan and sharif
khan. to this suit were also impleaded as defendants some
of the descendants of dalmir. the plaintiffs claimed a
declaration that they along with defendants number. 17 to 19
are full owners in possession of 819 bighas 19 biswas land
situate in village manumbera tehsil ferozepore jhirka. in the
gurgaon district that the defendants number. i to 16 had no
right to claim partition of that land and that they were
entitled only to the produce of land measuring 140 bighas 19
biswas possessed by them without payment of land revenue. the aforesaid defendants it was alleged were bound by the
terms embodied in the agreement dated september ii 1861 in
the wajib-ul-arz of that settlement and repeated in
subsequent settlements which debarred them from any right
to. claim partition. defendants number. i to 16 who are the
contesting defendants pleaded in defence that the
plaintiffs along with the pro-forma defendants number. 17 to 19
were recorded in revenue
papers as owners of 1/5th share in the land in dispute
while the companytesting defendants were recorded as owners of
the remaining 4/5th share and as such they were entitled to
claim partition. the defendants denied that any agreement
or companydition in the wajib-ul-arz restricting their right to
partition was binding after the expiry of the term of the
settlement and companytended that it companyld number operate as a bar
to their claim to partition. the assistant companylector trying
the suit as a civil companyrt under section 117 of the punjab
land revenue act  act xvii of 1887  decreed the claim. he
held that the companytesting defendants were entitled only to
get produce of 140 bighas and 19 biswas of land in their
possession without payment of land revenue and had no
interest in the remaining land. this decree was reversed on
appeal the high companyrt holding that the defendants are
entitled to 4/5th share as proprietors that the original
agreement repeated in subsequent settlements was binding on
the parties so long as the settlements were in force that
it ceased to have any effect after the expiry of the
settlements and that the renewal of its terms in the
settlement of 1938-39 was number binding as they were number
agreed to by the companytesting defendants. the learned judges
held that the judgment  d. 4  dated june 15 1893 of the
chief companyrt of punjab inter-parties which held that the
prohibition of partition companytained in the wajib-ul-arz did
number survive the expiry of the period of the settlement was
binding upon them. they took the view that the companytesting
defendants being. proprietors the right of partition was
inherent in their right of ownership. as a result of these
findings the suit was dismissed. we have heard dr. tek chand learned companynsel for the
appellants in support of the appeal at length but we are of
opinion that there is numberforce in the appeal. the parties are meos and the land in dispute is situate in
village manumbera in tehsil ferozepore jhirka in gurgaon
district. according to the gazetteer of gurgaon district
 1910  the meos owned nearly the whole of the ferozepore
tehsil and various other villages in gurgaon. they are
divided into several sub-tribes and these sub-tribes
possess a strong feeling of unity and the
power of companyporate action. it was stated that in the
mutiny the members of each sub-division generally acted
together and district officers are advised to keep
themselves informed of the names and characters of the men
who from time to time possess companysiderable influence over
their fellow-tribesmen.  p. 60 . the documentary evidence regarding the title to the property
in dispute ranges over a period of four settlements each
settlement being for a period of thirty years. the first
settlement was made in 1839-42 the second in 1872-1879 the
third in 1903-08 and the last in 1938-39 which is the
current settlement. the village was assessed to annual
revenue of rs. 323 for the period of 30 years from 1246 to
1275 fasli  companyresponding to 1839-1862 a.d.  which was made
payable by dalmir lamberdar who is described as sole owner. the settlement papers were however lost during the mutiny
and after taking fresh measurements the settle- ment papers
were companypleted. alif khan dalmir and dilmor signed what is
called an agreement binding them by all companyditions
provisions and declarations made at the time of the
settlement  p. 12 . it is companymon ground that the property was originally
granted in 1822 a. d. to dalmir by nawab ahmad bakhsh khan
rais of ferozepore jhirka. the grant is number in writing and
there is numbercontemporaneous record which companyld throw any
light on its terms. dalmir claimed to be the sole grantee
with full proprietary rights. a number of documents are
attached to the settlement record of 1863. they are
important as showing how the property was dealt with by the
settlement authorities from time to time and the state of
the revenue records. the earliest document on record appe-
ars to be an agreement dated september 28 186 1 which is
incorporated in paragraph 18 of the wajib-ul-arz of village
manumbera. it says that the tenure of the village is
zamindari. dalmir is entitled to profit and liable for loss
in respect of the entire village. the other biswadars are
owners of the produce of the land cultivated by them but
they pay numberrevenue. this it is stated is the benefit
they enjoy  p. 35 d. ii . this document is signed in
token of verification by dalmir lamberdar
dilmor alif khan biswadar and phusa biswadar who ire
described as proprietors. phusa we are told is the alias
of chhinga. there is a report of mr. john lawrence  later
lord lawrence  settlement officer referred to in the
gazetteer which says that the arrange ment then in vogue
was that a few owners shared the profit and loss of the land
revenue and the others were exempted from responsibility. manumbera was one of the few villages which companytinued to follow
the system  p. 179 . paragraph 2 of the wajib-ul-arz which relates to the mode of
partition after stating the area of the village as 837
bighas and 9 biswas says when we the companysharers want to
partition it we ourselves will do so of our accord in
accordance with our shares shown in the khewat papers or
through the village patwari in thepresence of panchayat of
the brotherhood. the new abadi  cultivation of new land
will be made with the companysent of all the biswadars. one
biswdar is number companypetent to make a new abadi. d. 10 . p. 4 is a statement showing apportionment of jama  i.e. khewat money  in the village. after stating that the
settlement of the village was made in the name of dalmir
sole owner and that he alone was entitled to profit and
liable for loss it goes on to say that alif khan son of
amir and phusa son of chhinga and dilmor having cultivated a
specified area of land be. came owners of the produce of the
land without payment of rent and also became entitled to
profit and liable for loss. paragraph 10 of the wajibul-arz companytains an agreement about
trees. it shows that the trees standing in the house or
field of the owner belong to him and he is companypetent to
plant and cut them. so far as the occupancy tenants are
concerned the trees standing in their houses also belong to
them as they cultivate -land but dalmir alone had the right
to cut or sell them. these are all the material documents
pertaining to the settlement record of 1863.
we number companye to the settlement record of 1877
p. 17 is an important document. paragraph i which deals
with the history of the village is reproduced below-
fifty-two years ago in sambat 1880 dalmir caste meo got
sogan along with dilmor and chhinga his real brothers
took possession of the area of this village with the
permission of nawab ahmed bakhshi khan sahib. rais of
ferozepore who granted him a biswadari estate without
payment of any nazrana in lieu of the services rendered by
him and made this desolate tract abad. he along with his
brothers jointly remained in possession thereof and enjoyed
profit and bore loss. after him amir khan became abad in
the village and along with us proprietors remained in
possession. accordingly we the proprietors got his name
entered as a biswadar at the time of the revised settlement. after him sharif khan son of ghariba who was also a
collateral came to this village in sambat 1916 and remained
in possession along with us proprietors. accordingly we got
his name also recorded along with ours on the 14th
september 1863. we have up to this day been joint owners. this village has never been partitioned. shares are given
in the khewat papers. this document shows that although the name of dalmir is
mentioned as being the sole grantee by virtue of the
services rendered by him to the nawab his two brothers also
were in joint possession with him. number only this but amir
khan and sharif khan who are both companylaterals also had
joint possession of the village. they are all described as
proprietors and their names are recorded as joint owners. the authenticity of this documentisbeyondquestion. it out
sat the root of the theory of dalmir being the sole owner. it is true that dalmir was mentioned as the sole owner in d.
4 but the grant was treated by dalmir himself as being the
joint property of his two brothers and the two companyaterals
whether or number it was originally intended for the benefit of
the family as understood in its widest sense. paragraph 5 of the wajib-ul-arz relating to the tenure of
the village and the mode of payment of revenue
says that the village is bilijmal  joint  and that the sons
of dalmir shall companytinue to pay the government revenue in
respect of their own shares as well as the shares of the
sons of his two brothers and the shares of the companylaterals. the reason given is that numbermoney is taken from the said company
sharers on account of relationship.  p. 15 . this statement
is companysistent only with joint ownership. paragraph 7 of the wajib-ul-arz also describes the tenure as
zamindari bilijmal and repeats the statement that the other
co-sharers of dalmir do number pay any rent or jama in respect
of the land cultivated by them on account of their
relationship. numbersingle sharer has the right to reclaim the
banjar area without the companysent of all the proprietors  p.
19 . this wajib-ul-arz is verified by the proprietors
tenants bhandadars  a village servant to whom cultivation
is allotted rent free  kamins  menials  and the inhabitants
of the village. it is admittedly signed by the ancestors of
the parties  p. 22 . the khewat and the khatauni  p. 31  prepared during the
settlement both record the five branches of the family as
being in possession of a 1/5th share each. a similar entry
is to be found in the khatauni  d. 18 . it appears that during the currency of this settlement two
suits for partition were filed in the revenue companyrt but the
partition was number allowed  p. 5 . companying to the settlement of 1903-08 we find a statement in
clause 3 of the wajib-ul-arz  d. 13  that the descendants of
dalmir alone companyld get the land partitioned in five equal
shares but the descendants of the other four companysharers who
were cultivating land without payment of revenue owing to
number-rendition of account in respect of profit and loss of
their respective shares companyld number have the land
partitioned. lastly we companye to the jamabandi of 1937-38  p. 1 . this
shows that all the five branches were entered as being in
possession of equal shares. mehrab grandson of dalmir and one of the plaintiffs who
gave evidence as p. w. 5 admitted that defendants
number. i to 16 were shown as proprietors in the jamabandi but
he never raised any objection to it. he also admitted that
mehar singh grandson of sharif khan sold his half share to
chhote khan and bhola his companylaintiffs and that they did
number challenge the same. we may number refer to the civil litigation which started in
1891. it arose upon the rejection of the applications for
partition made by alif khan and sharif khan on september 24
1890 by the assistant companylector. alif khan filed a suit
against the descendants of the three brothers and the
descendants of sharif khan. in the plaint  d. 1  he claimed
a declaration of 1/5th share of the entire village. the
sons of dalmir denied the claim. in their written statement
 b. 2  they alleged that in previous proceedings they had
deniedthe plaintiffs right to partition and that the
defendants had been in adverse possession of the land and
that the plaintiffs and others had been cultivating land as
bhandadars  village servants . the subordinate judge
decreed the claim  d. 3 . this decree was upheld by the
divisional judge but the judgment is number on record. in
second appeal the chief companyrt amended the decree by
declaring that the plaintiff was entitled to 1/5th share in
the village to be enjoyed subject to the qualifications and
restrictions set forth in the khewat and the wajib-ul-arz
which do number permit of his obtaining partition while the
present wajib-ul-arz was in force. this decree was made
upon the admission made by the defendants in the companyrse of
the arguments. paragraph 8 of the wajib-ul-arz of 1877  d.
12p. 16  which was the subject of companyflicting
interpretation by the parties was interpreted by the chief
court to mean that its effect was to prohibit general
division among the companysharers while the wajibul-arz was
still in force. they held that the five sons of dalmir
could separate their shares inter se but number the other company
sharers. we are of opinion that this judgment which is
inter-partes finally set at rest the companytroversy between
them by declaring that the parties were joint owners holding
equal shares and companystitutes res judicata. the judgment is
also in companyformity with the true effect of the documentary
evidence on the
record. numberdoubt the name of dalmir was entered. in some
documents as the sole owner but that entry by itself is number
conclusive and must be read in companyjunction with the other
entries in the settlement record. dalmir may have been the
original grantee but his own companyduct shows that he did number
regard himself as absolute owner to the exclusion of his own
brothers. indeed according to the entry he even treated his
collaterals on an equal footing. his description as sole
owner in the circumstances carries numbervalue. whatever may
have been the position at the time of the original grant
the subsequent companyduct of the parties unmistakably shows
that all the five branches were treated as owners in equal
shares. dalmir as the lamberdar was made responsible for
the payment of the entire landrevenue. he was -entitled to
profit and was responsible for loss. the others were given
less land and were exempted from payment of rent or revenue
on account of relationship. this arrangement appears to
have been fairly general in those days as appears from the
report of mr.  later lord  lawrence settlement officer re-
ferred to above. the arrangement was that a few owners
shared the profit and loss of the land revenue assessment
while the others were exempted. the government was
primarily interested in the payment of the revenue and they
apparently found it more companyvenient to hold the head or the
most influential member of the family as responsible for
payment of the entire revenue leaving it to him to make such
arrangement among his companysharers as he thought fit. in
later settlements the owners accepting responsibility for
the payment of the land revenue did number find it profitable
and the system gradually disappeared. lord lawrence remarks
that at the third settlement the number of villages which
still companytinued the system was reduced to three and one of
these was manumbera in ferozepore tehsil  page 179 . this
accounts for dalmir being called the sole owner and being
made responsible for payment of government revenue. by section 44 of the punjab land revenue act an entry made
in the record of rights or in an annual record shall be
presumed to be true until the companytrary
is proved. that entries in the jamabandies fall within the
purview of the record of rights under section 31 of the act
admits of numberdoubt. section 16 of the old act  xxiii of
1871  laid down that entries in the record of rights made or
authenticated at a regular settlement shall be presumed to
be true. we are satisfied that the materials on the record
taken as a whole justify the view which has been taken by
the high companyrt that the companytesting defendants are joint
owners and number mere cultivators who are number entitled to
claim partition of the property. the judgment of the chief
court also recognized the proprietary right of the
defendants but qualified it by the declaration that so long
as the settlement was in force they were number entitled to
partition by reason of their agreement recorded in the
settlement papers. the settlements of 1877 and 1908-09 have
ceased to operate and the entry in the current settlement of
1938-39 having been made under the orders of the companylector
has numbervalue when the companytesting defendants did number agree to
its being incorporated. the previous agreement was number one
for perpetuity but for a limited period only and there is no
reason in law why the prohibition against partition should
be number enforced against the companytesting defend. ants. it has
been held in a number of cases that the entry regarding
agreement in a wajib-ul-arz holds good during the period of
the settlement in which it is made and becomes inumbererative
when the settlement has companye to an end hira and others v.
muhamadi and other8  1  allah bakhsh and others. mirza
bashir-uddin and others  2  and lieut. chaudhri chattar
singh v. mt. shugni and anumberher  3 . we agree with the high companyrt in holding that partition is a
right incident to the ownership of property and once the
defendants are held. as companyowners their right to partition
cannumber be resisted. it was companytended by dr. tek chand that the appellants had
acquired title by adverse possession over the defendants
share for more than 56 years. this plea was raised in the
plaint but evidently it w as number pressed
 1 16 p.r. 1915  p. 89 .  2 1932 lit.rn. 56.

a.i.r. 194 lah. 239.
for numberissue was framed number any finding recorded by the
trial companyrt.


civil appellate jurisdiction civil appeal number 75 76 of
1974.
appeal by special leave from the companymon judgment and order
dated 27 /28-9-1973 of the bombay high companyrt nagpur bench
in spl. civil applications number. 826 of 1968 389 of 1971.
sardar bahadur saharya and vishnu bahdur saharya for the
appellants. n. phadke and a. g. ratnaparkhi for respondent number 1
and 2  in appeal number 75/74 . niren de attorney general of india m. n. phadke and a. g.
ratnaparkhi for respondent number 1  in appeal number 76/74 . l. rathi and m. n. shroff for respondents number. 3-6.  in appeal number 75/74  and respondent number 3  in appeal number
76/74 . the judgment of p. n. bhagwati and a. c. gupta jj. was
delivered by bhagwati j. n. l. untwalia j. gave a separate
opinion. bhagwati j.-we agree with the companyclusion reached by our
brother untwalia j. as also with the reasoning on which
the companyclusion is based. but we are writing a separate
judgment as we feel that the discussion in the judgment of
our learned brother untwalia j. in regard to delivery of
symbolical and actual possession under rules 35 36 95
and 96 of order xxi of the companye of civil procedure is number
necessary for the disposal of the present appeals and we do
number wish to subscribe to what has been said by our learned
brother untwalia j. in that companynection number do we wish to
express our assent with the discussion of the various
authorities made by him in his judgment. we think it is
enumbergh to state that when the government proceeds to take
possession of the land acquired by it under the land
acquisition act 1894 it must take actual possession of the
land since all interests in the land are sought to be
acquired by it. there can be numberquestion of taking
symbolical possession in the sense understood by judicial
decisions under the companye of civil procedure. number would
possession merely on paper be enumbergh. what the act
contemplates as a necessary companydition of vesting of the and
in the government is the taking of actual possession of the
land. how such possession may be taken would depend on
the natureof the land. such possession would have to
be taken as the natureof the land admits of. there can
be numberhard and fast rule laying down what act would be
sufficient to companystitute taking of possession of land. we
should number therefore be taken as laying down an absolute
and inviolable rule that merely going on the pot and making
a declaration by beat of drum or otherwise would be
sufficient to companystitute taking of possession of land in
every case. but here in our opinion since the land was
laying fallow and there was numbercrop on it at the material
time the act of the tehsildar in
going on the spot and inspecting the land for the purpose of
determining what part was waste and arable and should
therefore be taken possession of and determining its
extent was sufficient to companystitute taking of possession. it appears that the appellant was number present when this was
done by the tehsildar but the presence of the owner or the
occupant of the land is number necessary to effectuate the
taking of possession. it is also number strictly necessary as
a matter of legal requirement that numberice should be given to
the owner or the occupant of the land that possession would
be taken at a particular time though it may be desirable
where possible to give such numberice before possession is
taken by the authorities as that would eliminate the
possibility of any fraudulent or companylusive transaction of
taking of mere paper possession without the occupant or the
owner ever companying to knumber of it. we are of the view on the facts and circumstances of the
present case that the tehsildar took actual possession of
that part of the land which was waste or arable and handed
it over to the principal of the agricultural companylege. it is
true that the special land acquisition officer in his letter
dated 13th december 1961 to the companymissioner stated that
possession of the entire land was still with the appellant
and it was number actually taken possession of by the
principal agricultural companylege. but it is obvious that
this statement was made by the special land acquisition
officer because he thought that actual possession of the
land companyld number be regarded as having been taken unless the
appellant was excluded from the land and since the appellant
immediately without any obstruction entered upon the land
and companytinued in possession the land was number actually
taken possession of by the principal agricultural companylege. this was plainly erroneous view for the legal position is
clear that even if the appellant entered upon the land and
resumed possession of it the very next moment after the land
was actually taken possession of and became vested in the
government such act on the part of the appellant did number
have the effect of obliterating the companysequences of vesting. there can therefore be numberdoubt that actual possession of
19 acres 16 gunthas of waste and arable land was taken by
the tehsildar on 3rd april 1959 and it became vested in the
government. neither the government number the companymissioner
could thereafter withdraw from the acquisition of any
portion of this land under s. 48 1  of the act. the result is that the appeals fail and are dismissed with
costs there will be only one set of companyts. untwalia j.-these two civil appeals filed by shri balwant
narayan bhagde on grant of special leave by this companyrt arise
out of a companymon judgment of the bombay high companyrt allowing
special civil application number 826/1968 filed by shri m. d.
bhagwat and shri e. r. mahajani respondent number. 1 and 2 in
civil appeal number75 of 1974 and special civil application
number 389/1971 filed by thepunjabrao krishi
vidyapeeth-- hereinafter called the agriculturalcollege --to
quash the order of the companymissioner
nagpur purporting to give sanction for withdrawal of the
acquisition by his letter dated 8-8-1968 in respect of a
portion of the land companyprised in survey number 30/2 in village
umari district akola. the high companyrt has held that
possession of the land in question was taken by the
collector akola and given to the principal agricultural
college. it was therefore number open to the companymissioner to
withdraw from the acquisition of the land under section
48 1  of the land acquisition act 1894 as it stands amended
by the land acquisition  maharashtra extension and
amendment  act hereinafter called the act. it is well-
settled and numberhing to the companytrary was canvassed before us
that after possession of the land forming the subject matter
of acquisition has been taken in accordance with section 16
or section 17 1  of the act the land vests in the
government and the government or any other authority is number
at liberty to withdraw from the acquisition of any land of
which possession has been taken vide state of madhya
pradesh and ors. v. vishnu prasad sharma and ors.  1  and lt.
governumber of himachal pradesh and anumberher v. sri avinash
sharma 2 . the companytroversy therefore centered round the
question as to whether possession of the land which was
released by the companymissioner under section 48 1  of the act
had been taken or number. for the purpose of the agricultural companylege a large area of
land was acquired near akola. a numberification under section
4 of the act was issued on the 24th january 1959 by which
several pieces of land measuring 236 acres 7 gunthas  40
gunthas make one acre  were sought to be acquired including
20 acres 32 gunthas of survey number 30/2 in village umari
pargana akola. the total area of this plot is 20 acres 33
gunthas. a separate numberification under-section  4  was
issued for acquisition of the remaining one guntha which
contained a well. as the land was urgently required for the
purpose of companylege action under section 17 of the act was
taken dispensing with the following of the procedure under
section 5a. the sub-divisional officer akola was appointed
the land acquisition officer to perform the functions of the
collector under the act. a numberification under section 6 of
the act was issued on the 17th february 1959. a direction
was given for taking possession of the land under section
17 1  on the expiration of 15 days from the publication of
the numberice under section 9 1 . numberice under section 9 1  of
the act was subsequently published on 6-3-1959. after
expiry of15 days from the publication of the numberice under
section 9 1  on 24 3-1959 the land acquisition officer
ordered the tehsildar akola to deliver possession of the
land to the principal agricultural companylege or his numberinee
in the presence of the sub-divisional officer p.w.d. building and roads section akola and directed him to report
compliance alongwith the possession receipt obtained from
the principal by 2-4-1959. the tehsildar took and handed
over possession on 3-4-1959 and made a report. out of 20
acres 33 gunthas of land companyprised in survey number 30/2
possession was taken and handed over in regard to 19 acres
and 16 gunthas only. an area of 19. acre 17 gunthas which
contained a double storied house of the appellant and a well
etc. was for the time being left and possession of the same
was number taken. 11966 3 s.c.r. 557. 21970 2 s.c.c. 149.
it appears just after the issuance of the numberification
under section 6 of the act the appellant who claimed to be
the tenant of the land the owners admittedly being
respondents 1 and 2 in civil appeal number 75 of 1974 made a
representation to the government that his field in survey
number 30/2 should number be acquired and the acquisition should
be withdrawn. he seems to have filed an application to that
effect before the state government on 18-2-1959. some stay
order thereupon is said to have been passed staying the
proceeding in respect of the appellants land. following
upon this companyrespondence took place and reports came to be
made in april 1959 and thereafter until the withdrawal from
the acquisition of 12 acres and 23 gunthas of the land in
survey number 30/2 was directed to be made by the companymissioner
in the year 1968. as already stated the withdrawal was
challenged by filing two writ petitions in the bombay high
court. the appellant filed a companynter in the writ application of
the owners but did number do so in answer to the writ
application of the companylege. on behalf of the governmental
authorities two companynters were filed in the two writ
petitions. in the owners petition the petitioners had
stated that pursuant to the relevant numberifications
government took possession of 19 acres 16 gunthas of land on
3-4-1959 and gave possession of the same to the principal
agricultural companylege. the government in its return filed in
the said case denied that possession as alleged was taken
from the appellant and given to the principal agricultural
college. in paragraph 3 of special civil application number
389/1971 it wasstated on behalf of the agricultural
college that the tehsildar took possession only of 19 acres
and 16 gunthas out of the field as the remaining area was
found in the meantime on spot inspection number to be waste or
arable to which the provision of section 17 of the act companyld
apply. actual possession of 19 acres 16 gunthas alongwith
the other pieces of land measuring 200 acres and odd was
delivered to the principal agricultural companylege. in the
return filed on behalf of the officers of the government the
contents of paragraph 3 of the petition were admitted. but
it was asserted that government had taken only symbolical
possession and the physical possession of the land remained
with the appellant. on companysideration of the relevant
materials placed before the high companyrt it has companye to the
conclusion that actual possession of the land in question
was taken and handed over on 3-4-1959 on the spot and
even symbolical possession if land is occupied by a person
other than the owner. would be good possession for the
purpose of section 48 of the act. mr. sardar bahadur saharya learned companynsel for the
appellant submitted that possession of any portion of the
land companyprised in survey number 30/2 was number taken by the
government or given to the principal agricultural companylege
it was all a paper delivery of possession numbernumberice was
ever given to the appellant as to the date and time of
taking possession of the land on the spot and the sym-
bolical delivery of possession even if any. bad number the
effect of divesting the appellant from the actual possession
over the land. companynsel further submitted that the order of
withdrawal which is companyfined to
an area of 12 acres 23 gunthas only out of survey number 30/2
leaving a further balance of 6 acres 33 gunthas to the
college was valid. mr. hathi appearing for the government
and its authorities struck to their stand that only
symbolical possession was taken and actual possession
remained with the appellant. learned attorney general for
the agricultural companylege followed by mr. phadke for the
owners submitted that numberwhere the appellant had
challenged the taking of possession of the land on the spot
on 3-4-1959. the effect of taking possession of the land
was to vest it in the government and numberportion of it companyld
be released under section 48 1  of the act. it was further
submitted that there is numberprovision in the act requiring
the giving of any numberice to the possessor of the land of the
exact date and time of taking possession on the spot and
numberice published under section 9 1  is sufficient. it may be stated at the outset that there does number seem to
be any dispute as respects the fact that bhagwat and
mahajani were the owners of the land at the time of the
issuance of the numberification under section 4 of the act and
the appellant was in its occupation or actual possession as
a tenant. it is also number in dispute that possession was
taken on 3-4-1959 in respect of the large portion of land
measuring more than 200 acres. there is numbercontroversy that
the agricultural companylege number only needed the land in
question but subsequently steps were taken for acquiring an
additional area of 340 acres for the needs of the companylege. the companymissioner in his order dated 17th february 1959
had directed that the possession of the land may be taken on
the expiration of 15 days from the publication of the numberice
mentioned in section 9  1   of the act. the order recorded
on 11-3-1959 shows that the numberice in form d under section
9 1  of the act was published on 6-3-1959 so the possession
of the land companyld be taken on 21-3-1959 or there after. some persons filed their written statement showing their
interest in the land to be acquired and their claims for
compensation on 11-3-1959. on 24-3-1959 various other
persons including the appellant appeared before the land
acquisition officer. appellants companynsel prayed for time to
file his written statement. he was directed lo do so by
5.00 p.m. on 24-3-1959. on this date the land acquisition
officer recorded the order in presence of the parties
including the appellant directing tehsildar akola to take
possession of the land and hand it over to the principal
agricultural companylege in the presence of s.d.o. p.w.d. akola and to report companypliance with possession receipt by 2-
4-1959. a written statement on behalf of the appellant was
filed by 4.20 p.m. on 24-3-1959.
it is necessary to refer to the claim of the appellant made
in the written statement aforesaid. he stated that he was
interested in the field as be was its protected lessee and
as such he was entitled to receive companypensation that may be
granted. the amount of claim put forward in respect of the
field in survey number 30/2 by bhagwat and mahajani was stated
to be acceptable to the appellant. but be said that he was
entitled to the said amount. in respect of the bungalow the
appellant stated that it was his residential house it was
number nece-
ssary to be acquired dispensing with the provision of
section 5a in respect of the house was number legal
therefore the proceeding being number in accordance with law
be dropped. finally the prayer in the written statement
was to stay the delivery of possession of the bungalow at
least for two months. it would thus be seen that in his
written statement filed on 24-3-1959 the appellant did number
deny the publication of numberice on the spot under-section
9 1  number did he propose to put any impediment in the taking
of possession of the land companyprised in survey number 30/2. he
merely wanted the stay of taking possession in respect of
the house. the principal of the agricultural companylege wrote a letter to
the subdivision officer and land acquisition officer akola
on the 6th april 1959 with an endorsement of the revenue
inspector who it appears was the tehsildar stating therein
that he had taken possession of the fields mentioned below
in the letter on the 3rd april 1959 in presence of the
sub-divisional officer p.w.d. and the naib tehsildar
akola. the total area mentioned in this letter is 234 acres
31 gunthas including 19 acres and 16 gunthas in survey number
30/2. the revenue inspector endorsed handed over as
above. on the facts and in the circumstances of this case it is
difficult to accept the argument put forward on behalf of
the appellant that the taking and giving of possession on 3-
4-1959 was only on paper and number on the spot. the high companyrt in its judgment has referred to a letter
dated 7-4-1959 by the land acquisition officer to the
collector akola to say that the appellant represented
before him that a stay order had been passed in respect of
survey number 30/2 by the minister for agriculture and the
proceedings for taking possession of this land may be
deferred pending further instructions from the higher
authorities but before any step companyld be taken on the
representation of the appellant the land acquisition
officer got the information that possession had been taken
and given but in spite of that in the letter dated 7-4-1959
a direction was given to the tehsildar to withhold taking
possession of the field in survey number 30/2 of village umari
temporarily. thereupon the tehsildar made a report dated
11-4-1959 stating therein possession has already been
delivered to the principal agricultural companylege. akola and
the possession receipt is enclosed. in case possession of

number 30/2 is still to be withheld the principal
agricultural companylege s.d.o. p.w.d. and the lessee of the
field would be approached in this respect and necessary
action would be taken accordingly. as a matter of fact it
would appear from the letter dated 16-4-1959 written by the
assistant secretary of the government of bombay to the
appellant in reply to his letter addressed to the minister
for agriculture a companyy of which was forwarded to the
collector akola that for the first time in this letter he
was requested to stay the proceedings until further orders. numberstay order of the state government seems to have received
earlier and prior to the taking of possession of the land in
question. then companyes the letter dated 4-5-1959 written by the land
acquisition officer to the companylector akola. reference was
made to all these
documents on behalf of both the parties. the s.d.o. and
the land acquisition officer sought instructions of the
collector as to what action was to be taken in respect of
land measuring 19 acres 16 gunthas out of survey number 30/2
the possession of which has already been delivered to the
agricultural department. the next letter is one from the
principal of the companylege to the land acquisition officer
dated the 27th may 1959 asking clarification of the stay
order received in regard to survey number 30/2. the reply is
dated 4-6-1959 informing him that clarification will be made
on receipt of further companymunication from the companylector. the next letter is dated 18-7-1959 from the principal of the
college to the director of agriculture stating therein that
possession of the whole field number 30/2 excluding the area of
1 acre 16 gunthas which was also required for the purpose of
the companylege was delivered on 3-4-1959 but in view of the
government order companytained in their letter dated 16-4-1959
the land was number being cultivated and was lying as a sort of
numbermans land. then companyes an important letter again referred at the bar on
behalf of both the parties written by the special land
acquisition officer akola to the companymissioner nagpur on
the 13th december 1961. the difficulty in releasing the
land under section 48  1  was pointed out and further in
this letter it is stated taking over possession of ia-15g
of land to be acquired under urgency clause was deferred as
on joint spot inspection made by the then sub-
divisional officer principal agricultural companylege and

d.o.  p.w.d.  akola it was thought that acquisition of
this portion which companytains one double storied building
some companyverted land etc. would entail heavy expenditure. it would thus be clear beyond any shadow of doubt that
possession was taken on the spot. on spot inspection the
area of 1 acre and odd only was left out of possession. but then in this very letter there is a statement the
collector akola was directed to stay the acquisition
proceedings in respect of this field until further orders
though possession receipt for s. number 30/2 was passed on 3-4-
1959 the possession  physical  of the entire field s. number
30/2 of umari is still retained by the lessee of that field
and the land was number actually taken possession of by the
principal agricultural companylege akola. learned companynsel for
the appellant submitted that physical possession of the
entire land companyprised in survey number 30/2 remained with the
appellant and the possession delivered was either on paper
or merely symbolical it. therefore companyld number prevent the
release of the land from acquisition under section 48 1  of
the act. it is number necessary to refer to the further companyrespondence
which ensued. it may however be stated that because of
the stay order and the dispute raised in respect of the land
comprised in survey number 30 in the award prepared by the
collector on 30-1-1960 companypensation for the said land was
number determined. and eventually in the year 1968 an area of
12 acres 23 gunthas was sought to be released from
acquisition. the question for companysideration is-was the
release valid and proper ? in order to appreciate what is meant by taking possession of
the land under section 16 or 17 1  of the act and what is
the mode of taking such possession in regard to the waste or
arable land with which we are companycerned in this case it is
necessary to refer to certain provisions of the companye of
civil procedure-hereinafter called the companye and some
decisions thereon. order 21 rules 35 36 95 and 96 of the
code prescribe two modes of delivery of possession based
upon the nature of the property companycerned. the companye does
number prescribe that in respect of a particular property there
can be two modes of giving possession either to a decree-
holder or to an auction-purchaser one symbolical and the
other actual. these rules prescribe that if the property
is in the occupation of the judgment-debtor or some-one on
his behalf the possession shall be given if necessary by
removing the judgment-debtor and placing the decree-holder
or the auction purchaser in occupation of the same. on the
other band if the property is of such a nature that the
judgment-debtor cannumber be in actual occupation of it as for
instance property in the possession of a tenant the only
mode of giving possession is by proclaiming on the spot that
the possession has been given to the decree-holder or the
auction-purchaser. in some decisions the former mode of
possession has been called actual9 and the latter
symbolical. really speaking even the delivery of so-
called symbolical possession is delivery of actual
possession of the right title and interest of the judgment-
debtor. it companypletely dispossess him. it does number affect
the physical occupation of the property by a person who is
number bound by the decree or whose interest is number affected by
sale of the judgment-debtors interest in execution of a
decree. if the property is land over which does number stand
any building or structure then delivery of possession over
the judgment-debtors property becomes companyplete and
effective against him the moment the delivery is effected by
going upon the land or in case of resistance by removing
the person resisting unauthorisedly. a different mode of
delivery is prescribed in the companye in the rules aforesaid in
regard to a building with which we are number companycerned in
this case. sometimes the expression symbolical or formal
delivery of possession has been used in decisions to companynumbere
the actual delivery of possession effective against the
judgment-debtor leading to his dispossession in the eye of
law even though the duration of the dispossession may be
momentary or temporary. in juggobundhu mukherjee and others v. ram chander bysack 1
garth c. j. delivering the judgment of the full bench
consisting of five judges pointed out at page 588
in the one case the delivery of the land is
to be made by placing the plaintiff in direct
possession. in the other the delivery is
effected by the officer of the companyrt by going
through a certain process prescribed by s.
224 and proclaiming to the occupants of the
property that the plaintiff has recovered it
from the defendant. this is the only way
in which the decree of the companyrt awarding
possession to the plaintiff can be enforced
and as in companytemplation of law

i.l.r. 5 calcutta 584.
both parties must be companysidered as being
present at the time when the delivery is made
we companysider that as against defendant the
delivery thus given must be deemed equivalent
to actual possession. as against third parties of companyrse this
symbolical possession  as it is called  would
be of numberavail because they are numberparties
to the proceeding. but if the defendant
should after this again dispossess the
plaintiff by receiving the rents and profits
we think that the plaintiff would have twelve
years from such dispossession to bring anumberher
suit. anumberher full bench companysisting again of live learned judges
of the calcutta high companyrt presided over by petheram c.j. in the case of joggobnudhu mitter v. purnanund gossami and
anumberher  1  reaffirmed teh view taken in juggobundhu
mukherjees case  i.l.r. 5 calsutta584 in the following
words
the full bench held that symbolic. possession obtained by the plaintiffs vendor
was effective as against the judgment debtor
defendant and that the suit brought against
him within 12 years of that event was number
barred by limitation. the facts of the case of sri radha krishna chanderji v. rain
bahadur and others 2  are these the dispute related to
150 bighas of land. the plaintiffs had filed a suit to
recover possession of the said land. the principal
defendant who was the appellant before the privy companyncil was
an idol by shebiats who was in actual possession of the land
by their tenants. the predecessors of the defendants in the
suit were parties to an earlier mortgage action. in due
course a decree was obtained. the property which according
to the finding included the disputed land was sold. the
mortgagee decree-holders were the purchasers of the
property. the land being in occupation by cultivating
tenants under an apparently bona fide title they received
formal possession as usual after due proclamation by beat of
drum in 1898.  vide page 200 companyumn 2 . lord sumner
delivering the judgment of the board said at the same page
this interruption if such it was of the defendants
actual possession was number of long duration. hence the
necessity for the present suit. hence also the defence of
adverse possession for more than twelve years before suit
began. it would thus be seen that formal possession of the
land in actual occupation of the tenants which in a sense
was symbolical was characterised as interruption of
defendants actual possession. and finally the ratio of the
decision of the full bench of the calcutta high companyrt in
juggobundhu mukherjees case  i.l.r. 5 calcutta 584  was
approved thus- at page 201 companyumn 1
in the high companyrt and before their lordships
it was further argued that symbolical
possession would number avail against the
defendants but that only actual dispossession
would interrupt their adverse possession. the
high companyrt

i.t.r. 16 calcutta 530.

a.t.r. 1917 privy companyncil 197  2 . following a decision of the full bench in
juggobundhu mukherjee v. ram chandra bysack-
 1880  5 calcutta 5845 c.l.r. 548  f.b.  held that symbolical possession availed to
dispossess the defendants sufficiently
because they were parties to the proceedings
in which it was-ordered and given. this
decision is one of long standing and has been
followed for many years. their lordships see
numberreason to question it or to-hold that this
rule of procedure should number be altered. in the case of joint possession the decision of the privy
council in sri radha krishna chanderjis case a.i.r. 1917
privy companyncil 197 2  has been referred with approval by
this companyrt in the case of m. v. s. manikayala rao v. m.
narasimhaswami and others 1  in paragraph 7 at page 474 in
the judgment of sarkar j as he then was as also in
paragraph 20 at page 478 is that of ramaswami j. i may just
quote a sentence from paragraph 7 which says
by the delivery of symbolical possession
under the order of numberember 6 1939 the
adverse possession of the defendants was
interrupted. mohammad numberr j.in the case of ram prasad ojha and others

bakshi bindeshwari prasad and others 2  has companysidered
the point in his separate but companycurring judgment with
reference to the relevant provisions of the companye at page

in that case the question of defendants adverse
possession arose with reference to a property which was number
in occupation of any tenant. the suit for possession after
the mortgage sale and delivery was being resisted by a
person who was in. numberbetter position than the mortgagor
judgment-debtor. the learned judge pointed out at pages 147
and 148
when it is said that symbolical possession is
number binding upon a third party but actual
possession is it is only meant that when a
decree-bolder or an auction-purchaser has been
put in actual occupation of the property every
body else has been ousted from it and
consequently dispossessed. this is an obvious
fact and number a question of law. on the other
had if the companyrt simply proclaims that the
decree-holder or auction-purchaser has been
given possession but on account of the nature
of the property they have number been placed in
physical occupation of the property itself
such a delivery of possession can be binding
only upon those who are parties to those
proceedings or on those who claim through
them. the difference as i have said is due
to the nature of the property and number on
account of the difference in the nature of
possession. the question will always be number
what was the mode of delivery of possession
but who has in fact been ousted by it. a.i.r. 1966 s.c. 470.

a.i.r. 1932 patna 145.
the same learnedjudge had the occasion to companysider the
question again in the case ofmahabir singh and others v.
emperor 1 . and that too with reference to a property which
was number in possession of any tenant but of the judgment-
debtor. the question arose in a criminal case and the
confusion arising out of the use of the expressions-the
actual and symbolical possession was again discussed at
page 568. the writ of delivery was issued in the previous
litigation under order 21 rule 95 of the companye and in that
connection the different modes of delivery of possession
over a piece of land were discussed. the momentary
possession given to the purchaser was characterised as
delivery of symbolical possession by the additional sessions
judge and number actual possession. the learned judge pointed
out at page 569 companyumn 1
it issued its writ under rule 95 and the
peon formally put the auction-purchaser in
possession of the property. it is wrong to
think that there are two kinds of delivery of
possession one actual and the other
symbolical independent of the nature of
possession of the judgment debtor. even if
the delivery of possession was symbolical its
effect against the judgment-debtor was the
same. the so-called paper possession or possession on paper is no
delivery of possession actual formal or symbolical. a
bench of the madras high companyrt companysisting of rajamannar

j. and rajagopala aiyangar j. has stated at page 762 in
the case of pathaperumal ambalam v. chidambaram chettiar 2

.lm15
the next question is whether it makes any difference in
legal effect if possession is taken through companyrt. the companye
contemplates numbernumberice to the judgment-debtor at that stage
or any objection being raised by him to the delivery of
possession under rule 95 or rule 96 and as the full title
to the property has passed from the judgment debtor to the
auction purchaser he has numberinterest in the property to
protect. it has further been pointed out
the characterisation of possession taken under order 21
rule 96 as paper possession is hardly justified and runs
counter. to the principle on which the provision is based. symbolical possession obtained under order 21 rule 96 is
quite a different thing from paper possession which might
correctly describe only the possession obtained by a party
who being entitled to actual possession the judgment-debtor
himself being in possession obtains delivery of possession
on paper without actual possession or those cases where
without companyplying with the requisites of the statute a false
return is made as if they were companyplied with. a.i.r. 1934 patna 565.

a.t.r. 1954 madras 760.
it would thus be seen that a symbolical or formal delivery
of possession as understood in law has the effect of
dispossessing the judgment-debtor from his right title or
interest in the property. it does number dispossess the person
in actual possession in his own right number liable to be
evicted under the decree or in pursuance of the auction
sale. a symbolical or formal delivery of possession against
the judgment-debtor is giving of actual possession of the
property in the eye of law and has the effect of
dispossessing him although as a matter of fact he may have
succeeded in resuming back possession as before shortly
after dispossession. in a proceeding under the act for acquisition of land all
interests are wiped out. actual possession of the land
becomes necessary. for its use for the public purpose for
which it has been acquired. therefore the taking of
possession under the act cannumber be symbolical in the sense
as generally understood in civil law. surely it cannumber be a
possession merely on paper. what is required under the act
is the taking of actual possession on the spot. in the eye
of law the taking of possession will have the effect of
transferring possession from the owner or the occupant of
the land to the government. section 9 1  of the act reads as follows
the companylector shall then cause public numberice
to be given at companyvenient places or near the
land to be taken stating that the government
intends to take possession of the land and
that claims to companypensation for all interests
in such land may be made to him. when a public numberice is published at a companyvenient place or
near the land to be taken stating that the government
intends to take possession of the land then ordinarily and
generally there would be numberquestion of resisting or
impeding the taking of possession. delivery or giving of
possession by the owner or the occupant of the land is number
required. the companylector can enforce the surrender of the
land to himself under section 47 of the act if impeded in. taking possession. on publication of the numberice under
section  1  claims to companypensation for all interests in the
land has to be made be it the interest of the owner or of
a person entitled to the occupation of the land. on the
taking of possession of the land under section 16 or 17  1
it vests absolutely in the government free from all
incumbrances. it is therefore clear that taking of
possession within the meaningof section 16 or 17 1  means
taking of possession on the spot. it isneither a possession
on paper number a symbolical possession as generally
understood in civil law. but the question is what is the
mode of taking possession ? the act is silent on the point. unless possession is taken by the written agreement of the
party companycerned the mode of taking possession obviously
would be for the authority to go upon the land and to do
some act which would indicate that the authority has taken
possession of the land. it may be in the form of a
declaration by beat of drum or otherwise or by hanging a
written declaration on the spot that the authority
10 sc 75-18
has taken possession of the land. the presence of the owner
or the occupant of the land to effectuate the taking of
possession is number necessary.numberfurther numberice beyond that
under section 9 1  of the act is required. when possession
has been taken the owner or the occupant of the land is
dispossessed. once possession has been taken the land vests
in the government. in the instant case in agreement with the findings of the
court i hold that the eye of law actual possession of the
land in question was taken by the tehsildar on the spot and
the possession was handed over to the principal of the
agricultural companylege. it appears that the appellant on his
part thought that he never gave up possession and claimed to
continue in actual possession of the disputed land because
of the stay order passed by the government on or about the
16th april 1959. it is in the background of the law
discussed above that the statement that the possession
 physical  of the entire field s. number 30/2 of umari is still
retained by the lessee of that field and the land was number
actually taken possession of by the principal agricultural
college akola occurring in the letter dated the 13th
december 1961 written by the special land acquisition
officer akola to the companymissioner nagpur has got to be
appreciated and so also the stand of the government in its
counter as to what was meant by taking of symbolical
possession. viewed in the light of the discussion of law i
have made above it would be numbericed that possession of the
land in any event was taken on the spot and it vested in
the government. the appellants resuming possession of the
land after once it was validly taken by the government had
number the effect of undoing the fact of the vesting of the
land in the government. the government or the companymissioner.