civil appellate jurisdiction civil appeal number 104 of 1966.
appeal by special leave from the judgment and order dated
july 3 8 1964 of the gujarat high companyrt in special civil
application number 330 of 1962.

c. bhandare anjali k. verma j. b. dadachanji and o. c.
mathur for the appellant. t. desai m. n. shroff for i. n. shroff for respondent
number 1.
the judgment of the companyrt was delivered by
shelat j. the facts relevant to this appeal are short and
numberlonger in dispute. respondent 1 is the owner of survey
number. 974/2 and 975/4 situate in the village delol in
districts panchmahals and the appellant at the material time
was the tenant thereof on may 15 1956 the appellant
voluntarily handed over possession of the said lands to
respondent 1. it is however an admitted fact that the sad
surrender was number in-writing and the procedure of inquiry
and verification required by s. 15 of the bombay tenancy
and- agricultural lands act 57 of 1948  hereinafter called
the act  was number gone through. the surrender though
voluntary thus was number in accordance with s. 15 and
therefore was number valid and binding on the appellant. it
is number in dispute that respondent i thereafter personally
cultivated the said lands. on january 16 1961 the
appellant applied to the deputy companylector under s. 84 of the
act for summary eviction of respondent 1. the deputy
collector dismissed the application holding that the
tenants remedy lay under s. 29 1
of the act. the gujarat revenue tribunal. however in a
revision by the tenant set aside that order holding that s.
84 and number s. 29 1  applied. respondent. 1 thereupon filed
a writ petition under art. 227 in the high companyrt of gujarat
and the high companyrt held on interpretation of ss. 29 1  and
84 that s.-84 did number apply in such cases and set aside the
tribunals order. what is the scope of s. 84 of the act is
the question therefore arising in this appeal which is
filed by the tenant after obtaining special leave from this
court. on behalf of the appellant mr. bhandare raised the following
contentions
1.that a surrender of tenancy companytrary to
s. 1 5 is an invalid surrender and does number
terminate the tenancy
2.that on such invalid surrender if the
landlord takes possession such possession is
wrongful and unauthorised and therefore the
land must be said to be in unauthorised
occupation and wrongful possession of the
landlord
3.that when the ten-ant on such
dispossession files an application his right
does number arise under any of the provisions of
the act as he has given up possession in
breach of his right and-title
4.that in such a situation the tenant does
number seek to enforce a right arising under the
provisions of the act but claims possession
relying on his title as a tenant
5. that such an application therefore falls
under s. 84 and number under s. 29 1  and
6.that s. 84 directed against a person who
is in unauthorised occupation and wrongful
possession and therefore there is numberwarrant
for any distinction between unauthorised
occupation or wrongful possession arising
under an invalid surrender and that arising
under an invalid sale or transfer. mr. desai for the respondents on the other hand the high
courts judgment high companyrts of bombay and gujarat on the
interpretation of ss. 29  1   and 8 4 of the act. before we
proceed to examine these companytentions it is necessary first
to read the relevant sections. section 15 reads as under
a tenant may terminate the tenancy in respect
of any land at any time by surrendering his
interest therein in favour of the landlord
and relied on certain decisions of the
provided that such surrender shall be in
writing verified before the mamlatdar in the
prescribed
the relevant part of s. 29  1  reads
as under
a tenant-entitled to possession of any land-
under any of the provisions of this act may
apply in writing for such possession to the
mamlatdar. sub-section 2 of s. 29 provides that numberlandlord shall
obtain possession of any land held by a tenant except under
an order of the mamlatdar. section 84 reads as under
any person unauthorisedly occupying or wrong-
fully in possession of any land-
 a  the transfer or acquisition of which
either by the act of parties or by the
operation of law is invalid under the
provisions of this act
 b  the management of which has been assumed
under the said provisions or
 c  to the use and occupation of which he is
number entitled under the said provisions and the
said provisions do number provide for the
eviction of such persons may be summarily
evicted by the companylector. section 15   1   was inserted in the act by s.11 of bombay
act 1 3 of 1956. even before 1956 there was in the act s.
5 3  the proviso of which required a surrender of tenancy by
a tenant to be in writing and verified by the mamlatdar. there is however numberdispute before us that the proviso to
s. 15 1  applies to the present case and that the surrender
under which respondent i obtained possession of the land in
question was neither in writing number was verified in any
inquiry before the mamlatdar. under s. 15 1  a tenant as defined by s. 2 18  of the act
can terminate the tenancy in respect of the land held b him
as a tenant by surrendering his interest in favour of his
landlords and as provided by subsection 2 on such surrender
of the tenancy the landlord becomes en-titled to retain the
land so surrendered by the tenant in the same manner as when
the tenancy is terminated under ss. 31 and 31a of the act. the tenancy on such surrender companyes to an end and thereupon
the relationship between them of a landlord and a tenant and
the rights arising out of that relationship terminate the
legislature however was aware of the possibility of
landlords taking advantage over the tenants and therefore
to safeguard the tenants against such a possibility it laid
down through the proviso that a
31 3
surrender by a tenant companyld only be valid and binding on him
if it was in writing and was verified by the mamlatdar. before the mamlatdar would verify such surrender it would be
his duty to ascertain whether the surrender was voluntary
and was number under pressure or undue influence of the
landlord. but once the surrender satisfied these two
conditions it has the same effect as the termination of
tenancy the tenancy companyes to an end and the landlord becomes
entitled to retain the land of which possession is delivered
to him by the tenant surrendering his interest as a tenant
therein. in cases however where the surrender has number
satisfied the two companyditions even if it is voluntary it is
numbersurrender and therefore there is numbertermination of
relationship of a landlord and tenant. companysequently even
if the tenant has voluntarily surrendered possession and the
landlord has taken it over since the tenancy still
continues the tenant obviously is entitled to retain
possession and therefore to its restoration. though
therefore s. 15 does number in so many words provide that in
such a case the tenant is entitled to restoration of
possession there being numbervalid surrender where the two
conditions are number satisfied the tenancy companytinues and the
tenant can claim possession from the landlord as the tenant
of the land in question such claim being based on his right
as such tenant to be in possession of such land and the
landlords disability to terminate the tenancy under the
provisions of the act. it is true that s. 37 expressly
provides for restoration of possession to the tenants in the
eventuality provided therein while s. 15 does number so
provide. but the right to restoration had to be provided
for in s. 37 as there would be termination of tenancy which
becomes revived and on revival thereof the tenant becomes
entitled to restoration of possession. in a case under s.
15 however if the surrender is number valid it is no
surrender at all and there is numberquestion of termination of
tenancy. the tenant companytinues to be entitled to possession
and therefore there is numberquestion of the section having
to provide for restoration of possession under is
therefore numberforce in the companytention that in the case of an
invalid surrender the tenant is to entitled to possession
under the provisions of the act. he is in fact entitled to
claim back possession under s. 15 itself for under sub-
section 2 of the landlord becomes entitled to retain the
land only if the surrender is in accordance with the
provisions of s. 15.
section 29 1  companyfers a right on a tenant to apply to the
mamlatdar for possession and s. 29 2  gives a right to a
landlord to apply to the mamlatdar to obtaini on of land
hold by a tenant. in both the cases it is the duty of the
mamlatdar to restore possession to the tenant or to the
landlord as the be it will be numbericed that whereas sub-
section 2 is companyfirmed to an application by a landlord for
possession from his tenant
sub-section 1 is number so companyfined and therefore a tenant tan
for possession against any one including the landlord. but
for such an application the companydition is that he must be one
who is entitled to possession of the land in question
under any of the provisions of this act. thus in all
cases where a tenant is entitled to possession of land under
any of the provisions if the act he has a right under s. 29
 1  to apply to the mamlatdar for restoration of possession
against any one including the landlord and it is the duty of
the mamlatdar if satisfied that the tenant is entitled to
such possession under any of the provisions of the act to
restore possession to him cls.  b  and  n  of s. 70 lay
down the duties and functions of the mamlatdar in the
following words
 b to decide whether a person is a tenant
or a protected tenant or a permanent
tenant.  n  to take measures for putting the tenant
or landlord-into the possession of the land-
under this act. section 74 provides for an appeal to the companylector against
the orders of the mamlatdar in cases therein set out and
cl.  m  provides such an appeal against an order passed by
the mamlatdar under s. 29.
in the case of a surrender which is number valid and binding
on the tenant there is as aforesaid numbertermination of
tenancy and therefore the landlord is number entitled to
retain the land even though possession thereof has been
handed over to him or has been voluntarily taken by him. the position in such a case is that the tenant has a right
to apply to the mamlatdar for restoration of possession 1 to
him claiming that there has been numbertermination of tenancy
that his possession companytinues to be protected by the
provisions of the act and that therefore possession should
be restored to him. such an application lies under s. 29 1
and when so made it becomes the duty of the mamlatdar
under s. 70 cl.  n  read with s. 29 1  to put the tenant in
possession of the land in question under this ace. in
such a case the ten-ant is claiming possession under the
provisions of the act and number on the strength of his own
title as when he applies for possession against a
trespasser. mat clearly being the position propositions
3 4 and 5 of mr. bhandare cannumber be sustained. the question then is whether a tenant who has a remedy
under s. 29 1  can still apply to the companylector under s. 84.
in other words whether the legislature has provided
alternative remedies under both the sections to such a
tenant? the words any person unauthorisedly occupying or
wrongfully in possession of any land in s. 84 numberdoubt
are words of wide import and would include a landlord who is
in unauthorised occupation or is
wrongfully in possession a landlord who under an invalid
surrender is in possession of the land is numberdoubt a
person in unauthorised occupation or is wrongfully in
possession. but then s. 84 in express terms limits its
application to three types of cases only namely of a
person unauthorisedly occupying or wrongfully in possession
of the 1-and  a  the transfer or acquisition of which etc. is invalid under the act or  b  the management of which has
been assumed under the act or  c  to the use and occupation
of which he is number entitled under the provisions of the act
and the said provisions do number provide for the eviction of
such person. mr. bhandares argument however was that the present falls
under cls.  a  and  c  of s. 84 that the companydition of the
other provisions of the act providing for eviction applies
only to cases falling under cl.  c  and number to those falling
under cl.  a . we do number have to decide in the whether the
said companydition of there being numberthe act providing for
eviction of a person in unauthorised occupation or wrongful
possession applies only at cases falling under cl.  c  or to
all cases under cls.  a  b  or  c  as in our opinion the
present case is clearly one falling under number cls.  a  or
 b  of s. 84. clause  b  obviously cannumber of such a person
present case other provision in cl.  c  and apply as the
land in question was number one the management of which was
assumed under the provisions of the act namely ss. 44 45
and 61. so far as cl.  a  is companycerned it applies to cases
in respect of the land the transfer or acquisition of which
either by the act of parties or by operation of law is
invalid under the provisions of the act. clause  a  clearly
refers to ch. v of the act which lays down certain
restrictions on transfers of agricultural lands and
acquisition of estates and lands. sections 63 64 and 65 in
that chapter prohibit transfers of agricultural land to number-
agriculturists and recognize only sales to persons and at
prices of ch. v and possession or occupation whereof has
been obtained under such invalid transfers or acquisitions. that being the position the instant case would fall only
under cl.  c  and number under cl.  a  as companytended by mr.
bhandare and therefore the companydition that s. 84 would only
to to cases for which there is numberother remedy under any of
the provisions of the act must apply to the present case. this companydition shows that while giving drastic powers of
summary eviction to an administrative officer the legislature
was careful to restrict this power firstly because the result
otherwise would be to deprive the person evicted under s. 84
of his remedy of appeal before the companylector which he would
have if the order were to be passed under s. 29 1  and
secondly because it would enable a tenant to by pass a
judicial
inquiry by the mamlatdar under s. 29 1  by directly applying
to the companylector under s. 84. such a result companyld number have
intended by the legislature. therefore the companytention that
ss. 29 1  and 84 provide alternative remedies and a choice
to the tenant cannumber possibly be companyrect. we number turn to the decisions to which our attention was
drawn by companynsel. in shankar raoji v. mahadu govind 1  the
high companyrt of bombay observed that s. 29 1  gave a right to
the tenant to obtain possession through the mamlatdar in
every case where he was entitled to possession under any of
the provisions of the act and that the clear object of s.
29 1  was that if the mamlatdar was satisfied that the
tenant was entitled to possession by reason of his tenancy
it was his duty to protect that possession and order any one
who had dispossessed him to restore possession to him. section 29 1  thus assumed that the tenant must claim
possession as such under the provisions of the act. in
durgaben v. bavla 2  the landlord obtained possession from
the tenant under s. 29 2  on die ground that the tenant had
surrendered the lease. the tenant applied under s. 84
alleging that numberwithstanding the order of the mamlatdar
under s. 29 2  he had companytinued in possession. and that
the landlord had forcibly dispossessed him. it was held
that the companylector had numberjurisdiction under s. 84 and that
the remedy if any of the tenant was under s 29 1 . in
holding so the high companyrt observed that it was only in the
absence of a provision in the act for eviction of an
unauthorised person that the companylector had jurisdiction
under s. 84 to order summary eviction. the high companyrt held
that ss. 29  1  a 84 did number provide alternative remedies to
the tenant for under s.29 1  he companyld claim possession on
the title as a tenant under the provisions of the act and
number under s. 84. the high companyrt also further observed that
if it were to companystrue the two sections as providing
alternative remedies such a companystruction would result in a
curious companysequence viz. that in a case where a
landlord has obtained possession after obtaining an order
from the mamlatdar such possession would
obviously be under a tide. if the tenant in such a case
were to allege that the landlords possession was
unauthorised or wrongful and were to apply under s. 84 the
collector would have to decide the question whether the
landlords possession was wrongful or unauthorised or number. but in that case the companylector would decide it and set aside
the mamlatdars order under his original jurisdiction under
s. 84 and number under his appellate jurisdiction under s. 74
and s. 74 would thus be rendered superfluous. in trambaklal

shankerbhai 3  the high companyrt of bombay held that in
order that there may be a valid
 2  58 bom. l.r. 451.  1  57 bom. l.r. 65.  3  62 bom. l.r 261.
transfer or acquisition through surrender such surrender
must be a lawful one and made in accordance with the
provisions of the act. iv such a surrender was number verified
and recognised under s. 15 there would be numbercessation of
tenancy right and therefore if the landlord had obtained
possession under such an invalid surrender the tenant
retained the right to restoration of possession under the
act. it is clear that these decisions do number lay down
anything companytrary to what we have said above and therefore
would number assist the- appellant. there are two unreported decisions one by the high companyrt
of gujarat and the other by the high companyrt of bombay to
which also our attention was drawn. in shankerlal v. haria
vagha 1  the facts were as follows one chandrasingh and
his brothers owned survey number. 23/2 23/3and 26/5. in
1956-57 opponent 2 surrendered these lands to chandrasingh
who personally cultivated them. until 1955-56 opponent
1 cultivated survey number 26/5. he thereafter surrendered
thatsurvey number to chandrasingh and his brothers who
personally cultivated it thereafter the mamlatdar admittedly
had held numberinquiry in respect of these surrenders under s.

on january 28 1959 chandrasingh and his brothers sold
these lands to the petitioners and the petitioners
thereafter cultivated them in 1959-60. in 1959 opponents 1
and 2 applied to the companylector under s. 84 and the companylector
ordered restoration of possession to opponent 1 and 2. the
gujarat revenue tribunal rejected a revision application
filed by the petitioners against the said-order. in a writ
petition under art. 227 the petitioners raised two
contentions before the high companyrt  1  that they were number
in unauthorised occupation or wrongfully in possession as
they derive title from the owner their vendors and  2
that in any event the opponents had a remedy under s. 19 1
and therefore companyld number have recourse to s. 84. as regards
the first companytention the high companyrt held that the surrenders
by opponents 1 and 2 number being in writing and unverified
were number binding on them the relationship of tenant and
landlord had number therefore terminated and opponents 1 and
2 were entitled at posession of the lands. that was the
position which obtained on january 28 1959 when
chandrasingh and his brother purported to sell the lands to
the petitioners. the petitioners therefore were in
unauthorised possession as chandrasingh and his brothers
were number entitled to possession and companyld number transfer
possession to the petitioners. the high companyrt also held
that the said sale was companytrary to s. 64 and therefore
invalid and did number create any rights as toownership or
possession in favour of the petitioners. the possession of
the petitioners therefore was unauthorised and wrongful
and s. 84 applied and the first companytention

spl. c.a 8 of 1961 decd. by the high companyrt of gujarat
on august 22 1961.
l8 sup. ci/69-2
failed. as to the second companytention the high companyrt held
that under s. 29  1  a tenant companyld apply to the mamlatdar
for possession but. that required that the right to on must
arise under the provisions of the act. if the tenant did
number seek to enforce a right arising under any of the
provision of the act but claimed possession on his own title
as a tenant s. 29 1  would number apply and his remedy would
be under s. 84 only. the high companyrt held that when a tenant
claimed possession number relying upon any incident of his
contract of tenancy number on ax provisions of the act but on
his own title to possession that is to protect his
possession as a tenant against a trespasser s. 84 and number s.
29 1  would apply even though the land the possession of
which he claimed was the land of which he was a tenant and
the trespasser was his landlord. what the tenant in such a
case was seeking to do was number to enforce his right as a
tenant under the provisions of the act but he was enforcing
his right against third parties namely the petitioners in
that case who were in wrongful occupation. the tenant was
claiming possession number under the provisions of the act but
on his own title albeit as a tenant against a person who
had numbertide to ownership or possession in the land and
therefore s. 29 1  did number apply to such a case. companysequently s. 29 1  was number anumberher provision providing
for eviction which opponents 1 and 2 companyld avail of. in
krishna mahar v hussan miya 1  the respondent was the
owner of the land in question. he applied under s. 29 2  to
the mamlatdar. the mamlatdar passed an order directing the
petitioner the tenant to hand over possession. the
petitioner appealed to the companylector under s. 74 of the act
who set aside the mamlatdars order. but before the
collector passed his said order the respondent executed the
mamlatdars order and obtained possession. the petitioner
then obtained possession in pursuance of the companylectors
said order but the respondent forcibly dispossessed him land
thereupon on january 10 1952 the petitioner companyplained to
the mamlatdar. the mamlatdar expressed his inability to
assist him and thereupon the petitioner applied to the
collector under s. 84. the companylector held that the
respondent was in wrongful possession and passed an order of
eviction. the revenue tribunal however set aside that order
holding that the petitions application was barred by
limitation. an application for companydonation of delay was
also rejected. the petitioner thereupon filed a petition
under art. 227. the high companyrt held that there was a clear
distinction between an application under s. 29 1 . and one
under s. 84 for under s. 29 1  whereas the tenant would be
claiming the right to possession under the provisions of
the act under s. 84 he would be claiming the right to
possession number under any

spl. c.a. number 207 of 1956 decd. by shah and vyas jj. in the high companyrt of bombay on june 19 1956.
of the provisions of the act but on his own title to
possession as a tenant. such an application companyld be even
against a person who was his landlord qua the land in
question if such landlord was in unauthorised occupation or
wrongful possession.


civil appellate jurisdiction civil appeal number 93 of
1953.
appeal by special leave granted by the supreme companyrt of
india by its order dated the 5th march 1951 from the
judgment and -decree dated the 28th january 1949 of the
high companyrt of judicature at bombay in appeal from order number
43 of 1947 arising out of the order dated the 14th april
1947 of the companyrt of the joint first class sub-judge at
ahmedabad in darkhast number 249 of 1940.
appellant number i in person for self and companyappellants. k. daphtary solicitor-general for india  j. b.
dadachanji and a. c. dave with him  for respondent number 1. 1954. april 14. the judgment of the companyrt was delivered by
ghulam hasan j.-this appeal brought by the auction-
purchasers by special leave raises the question of the
validity of a sale of certain properties which took place on
august 13 1942. the respondents are the judgment-debtor
and the legal representative of the deceased decree-holder. the decree-holder applied on march 30 1940 for execution
of his decree by sale of 4 lots of property
belonging to the judgment-debtor. the properties were
valued it rs. 150000 and were subject to a previous
mortgage of rs. 60000 existing in favour of the
auction--purchasers. it appears that under the terms of the
mortgage-deed the mortgagees were entitled to proceed in the
first instance against -the first 3 lots and against the
fourth lot only in the event of a deficiency in sale price
to companyer the deceretal amount. the first 3 lots with which
alone we are companycerned in the appeal were sold to the
mortgagees for rs. 53510 on august 13 1942. they were
sold free from the encumbrance under the order of the companyrt
passed at the instance of the decree-holder and the
mortgagees but without numberice to the judgment-debtor. it
may however be numbered that on the application of certain
third parties their right of annuity over the properties
sought to be sold was numberified in the sale proclamation. on
the same date the mortgagees applied for a set-off stating
that the purchase price was rs. 53510 while the amount due
to them was rs. 1 20000. the companyrt allowed the set-off
then and there. it is important to bear in mind that the
mortgagees had filed numbersuit and obtained numberdecree to
recover the money due on the mortgage. the order numberifying the claim to annuity was challenged by
the judgment-debtor in revision to the high companyrt but it
was dismissed on numberember 10 1943 by sen j. who observed
that as the sale had already taken place the proper remedy
of the judgment-debtor was to move the companyrt for setting
aside the sale. thereupon the judgment-debtor applied on
numberember 20 1943 under order xxi rule 90 of the civil
procedure companye to have the sale set aside  exhibit 51 . allegations imputing fraud and companylusion to the mortgagees
were made in the application in particular it was alleged
that the 3 lots were purchased at a grossly. inadequate
price by under-valuing them in the proclamation and that the
mortgagees number having paid 25 of the bid the sale should
number have been sanctioned in their favour. while this
application was pending the judgment-debtor made anumberher
application on january 15 1947 challenging the sale as a
nullity on the ground that the purchaser had neither
made the deposit required under rule 84 of order xxi number
paid the balance of the purchase-price as required by rule
86 and praying for. resale of the property to realise the
price. the order allowing set-off was attracted as being
without jurisdiction. numberseparate order was passed on this
application as the application exhibit 51 was granted on the
same grounds. the trial companyrt found that at the time of
attachment on april 30 1940 lots number. i and 2 and lot number
3 were valued at rs. 40000 each separately but at the time
of proclamation of sale on march 6 1942 the first two were
valued at rs. 45000 and the third at rs. 8000 only. the
property did number companysist of mere survey numbers but
admittedly had bungalows and superstructures and in the
opinion of the companyrt the subsequent valuation was bound to
mislead bidders. the. companyrt however set aside the sale
on the ground that the provisions of order xxi rules 84 and
85 had number been companyplied with in that the price was number
deposited but a set-off was wrongly claimed and allowed in
the absence of the judgment-debtor by the companyrt which had no
authority or jurisdiction. the companyrt observed. there is numberhing to show that these opponents took any
permission from the companyrt to bid at the auction and in fact
they companyld hardly have obtained any such permission they
being mortgagees whose dues had yet to be proved and
determined. if they companyld ask for set-off there is no
reason why they should number be required also to seek previous
permission from the companyrt to bid under order xxi rule 72
of the civil procedure companye. it may be numbered that one of
these opponents is himself a pleader and he was number
justified in taking such an unauthorised order from the
court without fully acquainting with all the facts. under
all these circumstances these opponents can with little
justification avoid the companysequences of numbercompliance with
the provisions of order xxi rules 84 and 85 referred to
above. without proving their claim under the mortgage
they have succeeded in purchasing for a gross under-value
these properties and even that value they have number paid in
court by taking recourse to the device of set-
off in my opinion there
could number be a
more fraudulent and materially irregular procedure than what
has taken place in the present case at the instance of these
mortgagees to the great detriment and injury of the present
applicant viz. the judgment debtor. the companyrt held that the application under rule 90 was barred
by limitation but this being a case of a void sale and number
of a mere material irregularity the companyrt was bound to re-
sell the property irrespective of any application being made
by the judgment-debtor. the high companyrt of bombay  chagla c. j. and gajendragadkar
j.  dismissed the appeal of the mortgagee-purchasers on the
ground that the order of the trial companyrt was under order
xxi rule 84 and or rule 86 of the civil procedure companye and
therefore. numberappeal lay against such an order. the high
court held that the order of set-off was without
jurisdiction and the subsequent deposit of the purchase
price on december 14 1945 made long after the period had
elapsed was of numberavail. one of the auction-purchasers who is a pleader has himself
argued the appeal before us. the principal question which
falls to be companysidered is whether the failure to make the
deposit under order xxi rules 84 and 85 is only a material
irregularity in the sale which can only be set aside under
rule 90 or whether it is wholly void. it is argued that the
case falls within the former category and the application
under rule 90 being barred by limitation the sale cannumber be
set aside. it is also companytended that the companyrt having once
allowed the set-off and companydoned the failure to deposit the
mistake of the companyrt should number be allowed to prejudice the
purchasers who would certainly have deposited the purchase
price but for the mistake. we are of opinion that both the
contentions are devoid of substance. in order to resolve
this companytroversy a reference to the relevant rules of order
xxi of the civil procedure companye will be necessary. these
rules are 72 84 85 and 86
72.  1  numberholder of a decree in execution of which
property is sold shall without the express permission of
the companyrt bid for or purchase the property. where a decree-holder -purchases with such permission
the purchase-money and the amount due on the decree may
subject to the provisions of section 73 be set off against
one anumberher

where a decree-holder purchases by himself or through
anumberher person without such permission the companyrt may if
it thinks fit on the application of the judgment-debtor or
any other person whose interests are affected by the sale
by order set aside the
sale
84.  1  on every sale of immovable property the person
declared to be the purchaser shall pay immediately after
such declaration a deposit of twenty-five per cent. on the
amount of his purchase-money to the officer or other person
conducting the sale and in default of such deposit the
property shall forthwith be resold. where the decree-holder is the purchaser and is
entitled to set off the purchase-money under rule 72 the
court may dispense with the requirement of this rule. the full amount of purchase-money -payable shall be
paid by the purchaser into companyrt before the companyrt closes on
the fifteenth day from the sale of the property
provided that in calculating the amount to be so paid into
court the purchaser shall have the advantage of any set-off
to which he may be entitled under rule 72.

in default of payment within the period mentioned in
the last preceding rule the deposit may if the companyrt
thinks fit after defraying the expenses of the sale be
forfeited to the government and the property shall be re-
sold and the defaulting purchaser shall forfeit all claim
to the property or to any part of the sum for which it may
subsequently be sold. the scheme of the rules quoted above may be shortly stated. a decree-holder cannumber purchase property at the companyrt-
auction in execution of his own decree without the express
permission of the companyrt and that when he does so with such
permission he is entitled to a set-off but if he does so
without such permission then
the companyrt has a discretion to set aside the sale upon the
application by the judgment-debtor or any other person
whose interests are affected by the sale  rule.72 . as a
matter of pure companystruction this provision is obviously
directory and number mandatory - see rai radha krishna and
others v. bisheshar sahai and others  1 . the moment a
person is declared to be the purchaser he is bound to
deposit 25 per cent. of the purchase-money unless he happens
to be the decree-holder in which case the companyrt may number
require him to do so  rule 84 . the provision regarding the deposit of 25 per cent. by the
purchaser other than the decree-holder is mandatory as the
language of the rule suggests. the full amount of the
purchase-money must be paid within fifteen days from the
date of the sale but the decree-holder is entitled to the
advantage of a set-off. the provision for payment is. however mandatory  rule 85 . if the payment is number made
within the period of fifteen days the companyrt has the
discretion to forfeit the deposit and there the discretion
ends but the obligation of the companyrt to re-sell the property
is imperative. a further companysequence of number-payment is that
the defaulting purchaser forfeits all claim to the property
 rule 86 . it is number denied that the purchasers had number obtained any
decree on foot of their mortgage and the claim of rs. 120000 which they put forward before the execution companyrt
had number been adjudicated upon or determined. the
mortgagees one of whom is a pleader applied on the day of
the sale claiming a set-off on foot of the mortgage. the
court without applying its mind to the quest-ion immediately
passed the order allowing the set-off. this claim was
obviously number admissible under the provisions of rule 84
which applies only to the decree-holder. the companyrt had
clearly numberjurisdiction to allow a set-off. the appellants
misled the companyrt into passing a wrong order and obtaining
the advantage of a set-off while they knew perfectly well
that they had got numberdecree on foot of the mortgage and
their claim was undetermined. there was default in
 1  49 i.a. 312.
depositing 25 percent of the purchase-money and further
there was numberpayment of the full amount of the purchase-
money within fifteen days from the date of the sale. both
the deposit and the payment of the purchase-money being
mandatory under the companybined effect of rules 84 and 85 the
court has the discretion to forfeit the deposit but it was
bound to re-sell the property with the result that on
default the purchaser forfeited all claim to the property. these provisions leave numberdoubt that unless the deposit and
the payment are made as required by the mandatory provisions
of the rules there is numbersale in the eye of law in favour
of the defaulting purchaser and numberright to own and possess
the property accrues to him. in two cases decided by the calcutta high companyrt viz. munshi md. ali meah v. kibria khatun  1  and sm. annapurna dasi v. bazley karim fazley moula  2  the sale
was held to be numbersale where the purchaser had failed to
deposit the balance of the purchase-money as required by
rule 85. a similar view was taken by a division bench of
the allahabad high companyrt in nawal kishore and others v.
buttu mal and subhan singh  3 . the provisions of rule 86
were held to be mandatory in anumberher decision of the same
court haji inam ullah v. mohammad idris  4  and it was
held that the companyrt was bound to re-sell the property upon
default irrespective of any application being made by any
party to the proceedings. -the case of bhim singh v. sarwan
singh  5  was a case of failure to make a deposit as
required by section 306 of the companye of 1882  companyresponding
to rule 85 of the present companye . the companyrt treated it as a
material irregularity in companyducting the sale which must be
enquired into upon the application under section 311
 companyresponding to rule 90 of the present companye  and number by a
separate suit to set aside the sale. the companyrt did number
apply its mind to the question whether the provisions of
section 306 being mandatory the sale should number be treated
as a nullity for number-compliance with those provisions the
decision of
 1  15 weekly numberes  cal.  p. 350.

a.i.r. 1941 cal. 85.  3  57 all. 658.

a.i.r.  30  1943 all 282.  5  16 cal. 33.
a single judge  tapp j.  in nathu mal v. malawa mal and
others  1  is distinguishable upon its facts. there the
auction-purchaser had actually tendered the money but the
payment was postponed by companysent of parties pending the
disposal of the objection by the judgment debtor. we do number
agree with the remark made in that case that the provisions
of rule 85 are intended to be directory only and number
absolutely mandatory. a division bench of the same companyrt
 tek chand and abdul rashid jj.  held in a. r. davar v.
jhinda ram  2  that the companyrt had numberjurisdiction to extend
the time for the payment of the balance of the purchase-
money under rule 85 and must order resale under rule 86.
having examined the language of the relevant rules and the
judicial decisions bearing upon the subject we are of
opinion that the provisions of the rules requiring the
deposit of 25 per cent. of the purchase-money immediately on
the person being declared as a purchaser and the payment of
the balance within 15 days of the sale are mandatory and
upon number-compliance with these provisions there is numbersale
at all. the rules do number companytemplate that there can be any
sale in favour of a purchaser without depositing 25 per
cent. of the purchase-money in the first instance and the
balance within 15 days. when there is numbersale within the
contemplation of these rules there can be numberquestion of
material irregularity in the companyduct of the sale. number-
payment of the price on the part of the defaulting purchaser
renders the sale proceedings as a companyplete nullity. the
very fact that the companyrt is bound to resell the property in
the event of a default shows that the previous proceedings
for sale are companypletely wiped out as if they do number exist in
the eye of law. we hold therefore that in the
circumstances of the present case there was numbersale and the
purchasers acquired. numberrights at all. it was urged before us that the companyrt companyld allow a set-off
in execution proceedings under its inherent powers apart
from the provisions of order xxi rule 19 of the civil
procedure companye. we do number think that the inherent powers of
the companyrt companyld be invoked to

a.i.r. 1931 lah. 15.

a.i.r.


criminal appellatp jurisdiction criminal appeal number 25
of 1976.
from the judgment and order dated the 17th september
1975 of the allahabad high companyrt in government appeal number
163 of 1971.

k. mehta and m.k. dua for the appellant. dalveer bhandari h.m. singh and ranbir singh yadav for
the respondent. the judgment of the companyrt was delivered by
misra j. the present appeal under s. 2 of the supreme
court  enlargement of criminal appellate jurisdiction  act
is directed against the judgment of the high companyrt of
allahabad dated 17th september 1975 setting aside the order
of acquittal passed by the sessions judge and companyvicting the
appellants under s. 302 read with s. 34 ipc and sentencing
therm to undergo imprisonment for life. it appears that wife of babu appellant number 1 had been
enticed away. he therefore filed a companyplaint on 17th of
july 1969 against dhani ram the deceased his brother
ghurka their maternal uncle halka and one ram charan under
s. 498 ipc. the prosecution n case as unfolded in the first
information report and the evidence is that dhani ram
deceased used to live at the house of his father-in-law in
village kuretha. on 7th of october 1969 he came to the
house of his father ajudhya in village therro for getting
his lands ploughed. next day at about 9 a.m. he along with
his father left village therro for village kuretha. his
father was going there for getting seeds from one of dhani
rams friends. when the two reached the field of malkhan
which is said to be near the temple of ram kund the three
accused came out from inside the jhunri field of malkhan and
started beating dhani ram with lathis. tulaiyan appellant
number 3 caught hold of ajudhya the father of dhani ram and
prevented him from having his son rescued. the other two
continued beating dhani ram to death. the first information
report was lodged at the police station at a distance of
about 12 miles at 5-30 p.m. by ajudhya. sub-inspector prem
narain reached the spot at 3 a.m. on 9th october. he found
the dead body of dhani ram lying on the way between the
fields of halka and malkhan. he prepared the challan of the
dead body and a letter for postmortem and sent the dead body
for postmortem. thereafter he investigated the case and
submitted the chargesheet against the three appellants. the accused denied the charge. babu said that the case
was start ed against him as he had filed a companyplaint under
s. 498 ipc against halka and three others. tulaiyan in his
defence said that he had
been implicated as he was a witness for babu in the criminal
case a under s. 498 ipc. according to the doctor who companyducted the postmortem
the death had taken. place at about 48 hours before
postmortem. he however admitted that there companyld be a
difference of two to four hours either way in the duration
given by him. postmortem report showed the stomach and
bladder of dhani ram empty. there was faecal matter at
places in the large intestine. there was also faecal matter
stuck to the addah dhoti which dhani ram was wearing. the prosecution produced three witnesses to prove its
case. on appraisal of evidence the sessions judge came to
the companyclusion that the evidence produced by the prosecution
was too feeble to base any companyviction on that. in his
opinion the witnesses companyld number be said to be independent
and they were mere chance witnesses. he further found that
the probability that dhani ram was attacked while it was
dark before he had evacuated or taken his breakfast companyld
number be weeded out and in all probability the occurrence had
y taken place number at the place alleged by the
prosecution. on these findings he acquitted all the accused. on appeal however the high companyrt set aside the order
of acquittal and companyvicted the appellants under s. 302 read
with s. 34 ipc and sentenced each of them to undergo
imprisonment for life. e
the circumstances which weighed with the sessions companyrt
for disbelieving the evidence of the prosecution in our
opinion appear to be weighty. according to prosecution
dhani ram had companye to help his father in ploughing his
fields on 7th october 1969 but from the evidence on record
it is clear that he came in the evening of 7th october to
village therro and left the same for village kuretha the
next day at 9 a.m. it does number stand to reason that dhani
ram would leave for a different village at a distance of
about s or 6 miles without easing himself or without taking
his breakfast. but as the doctor in postmortem examination
had found the stomach and bladder of the deceased dhani ram
to be empty this gave a handle to ajudhya to depose in the
evidence that dhani ram had number taken breakfast while
leaving village therro for village kuretha. the presence of
the faecal matter in the large intestine does indicate that
dhani ram had number evacuated. there- fore the possibility
that dhani ram was done to death early in the morning before
he had evacuated is dot weeded out. ajudhya

w.1 in his deposition has clearly stated that dhani ram
used to ease himself just after getting up from the bed but
he was number in a position to say whether on that fateful day
dhani ram had gone to ease himself just after getting up
from sleep. if dhani ram was in the habit of going out to
ease himself early in the morning just after getting up
there seems to be numberreason why he would number go to ease
himself on that day if he was to go to his father-in-laws
house. the sessions judge also came to the companyclusion that the
place of occurrence was number the one as alleged by the
prosecution in the first information report. in the fir it
has been stated that assault on dhani ram had been made at
the field of malkhan near ram kund temple. according to the
sub-inspector the dead body and the blood were found near
the field of malkhan which is at a distance of more than a
furlong from ram kund temple. ajudhya p.w. 1 stated before
the companyrt of sessions that attack on dhani ram was made when
he and dhani ram reached the field of malkhan. he further
added that ram kund temple is also at that very place. from
this statement it is apparent that the assault on dhani ram
was made just near the temple. kashi ram p.w. 3 also
deposed before the companymitting magistrate that he heard numberse
near ram kund temple. he did number say before the companymitting
magistrate that when he reached the field of malkhan he saw
the occurrence. but in the companyrt of sessions he denied that
he had made the aforesaid statement before the companymitting
magistrate. however it was proved from exrt. kha. 5 that he
did depose before the companymitting magistrate that when he
reached near the temple he heard the numberse. the prosecution case in the initial stage was that the
assault had been made near ram kund temple. of companyrse it
was also mentioned in the fir that the field of malkhan was
nearby. the sub-inspector did number take care to find out if
any of the fields of malkhan was near the temple. there
might be some other field of malkhan near the temple and the
reference to that field might have been made in the first
information report. the injuries on dhani ram also indicated that
practically all the injuries were on his face and there were
hardly any injuries on any other part of his body. this also
suggests that the injuries had been caused while dhani ram
was lying on the ground. the other two witnesses arjun and kashi ram deposed
that they saw the occurence from near the nallah. this
nallah is far away
from the temple. a person standing at that place companyld number
see the. a marpeet going on near the temple as will be
clear from a reference to the site plan attached to the
paper book. the learned sessions judge observed that the
place of occurrence was perhaps shifted to make it appear
that the witnesses standing near the nallah companyld see the
marpeet. even assuming that the assault had taken place near the
field of malkhan the learned sessions judge was of the view
that the witnesses had number seen the assault and that arjun
and kashi were mere chance witnesses on their own showing. they were alleged to be going to village dhanumbera for
purchasing seeds and on the way they happened to see the
occurrence. arjun and kashi were gadarias to which caste
ajudhya also belonged and were next door neighbours of
ajudhya. they were on friendly terms meeting everyday. they
came into the witness box only to help ram charan one of
the accused in the case under s. 498 ipc who also belonged
to the same caste of gadarias as the two witnesses. in the
opinion of the learned session judge the fact that the other
two. witnesses namely arjun and kashi were also going to
anumberher village dhanumbera for seeds and they happened to see
the occurrence was too much of a companyncidence. numberowner of
any of the fields in the vicinity has been produced as a
witness on behalf of the prosecution. the blood-stained earth said to have been taken from
near the field of malkhan was sent to the chemical analyst
and the serologist but the report of the serologist has number
been produced before the companyrt and therefore it cannumber be
said that the blood recovered from the site was human blood. the learned sessions judge was also of the view that
the accused had numbermotive to murder dhani ram inasmuch as in
the companyplaint under s. 498 ipc it was said that ra n charan
and ghurka had enticed away the wife of babu but they kept
her at the house of dhani ram. ajudhya the father of the
deceased stated before the investigating officer that babu
etc. accused in the present case were under the impression
that dhani ram had kept the woman at his house and had
enticed her for his mama halka. but before the sessions
court in cross-examination he admitted that the wife of babu
had been enticed away by ghurka and ram charan and then they
did number keep the girl with them but sent her to her maika
next day he however deposed that dhani ram himself had
told him that the woman had companye to his house. he kept her
for some time
and then sent her to her maika. the woman had returned to
babu before the murder had taken place. however the case
under s. 498 ipc was pending at the time of the murder of
dhani ram and ajudhya and his family members might have
availed of the opportunity to implicate babu who was
complainant in that case and his brother munna and tulaiyan
who were witnesses in that case. ajudhya might have got them
behind the bars so that there might number be any body left to
do pairwi in that case. the cumulative effect of the various circumstances
enumerated above in the opinion of the sessions judge did
throw doubt on the prosecution case and if the learned
sessions judge in the circumstance did number think it safe to
rely upon the evidence produced on behalf of the
prosecution he companymitted numbererror. the high companyrt however negativated the suggestion
that ajudhya was interested in falsely implicating the three
accused in this case so as to prevent them from doing pairwi
in the criminal case under s. 498 ipc instituted by babu. the high companyrt observed
that companyplaint was against dhani ram halka
13 ram charan and ghurka. in that companyplaint neither
ajudhya number any other eye witnesses produced on behalf
of the prosecution had been arrayed as accused. there
is numberhing on the record to show that ajudhya was
taking any interest in the criminal litigation
instituted by babu ram. it is difficult to believe that
while promptly lodging the first information report
ajudhya was thinking in terms of implicating persons
who companyld do pairwi against dhani ram and others. if at
all ajudhya would be interested in seeing that the
real assailants of his son are brought to book. the observation made by the high companyrt would be companyrect if
ajudhya and the two witnesses had really seen the
occurrence. but if they were dot on the scene of occurrence
they might draw on their imagination and try to implicate
persons on whom they had a sus-picion. in our opinion the
high companyrt was number justified in companying to a different
conclusion if the companyclusion drawn by the sessions judge was
a plausible and possible one. arjun p.w. 2. and kashi ram p.w. 3 were gadarias by
caste. ajudhya was also gadaria by caste. arjun and kashi
ram were just next door neighbours of ajudhya and they were
on friendly and visiting terms. two of the persons accused-
in the companyplaint filed by babu were also gadarias by caste. the learned sessions judge in the circumstances branded
those witnesses as number independent. as observed earlier the
high companyrt however held that they would number be interested
in implicating false persons merely on the ground that they
were next door neighbours. the high companyrt further took the
view that numberquestion was put to the witnesses that malkhan
had two fields one adjoining ram kund temple and the other
at a short distance away from the other. it was number for the
accused to prove that there was anumberher field of malkhan but
it was for the prosecution to prove by companyclusive evidence
that malkhan had only one plot and numberother plots. about the time of occurrence also the high companyrt
reversed the finding of the sessions companyrt that the
possibility was that dhani ram was done to death in the
early hours of 8th october before he had gone to ease
himself. the reasons given by the sessions companyrt appear to
be more plausible on the materials on the record. in any
case even if two views were possible the high companyrt should
number have interfered with the companyclusions arrived at by the
sessions companyrt unless the companyclusions were number possible. if
the finding reached by the trial judge cannumber be said to be
unreasonable the appellate companyrt should number disturb it even
if it were possible to reach a different companyclusion on the
basis of the material on the record because the trial judge
has the advantage of seeing and hearing the witnesses and
the initial presumption of innumberence in favour of the
accused is number weakened by his acquittal. the appellate
court therefore should be slow in disturbing the finding
of fact of the trial companyrt and if two view are reasonably
possible of the evidence on the record it is number expected
to interfere simple because it feels that it would have
taken a different view if the case had been tried by it. this companyrt in u.p. state v. samman dass 1  dealing with a
similar situation laid down the following postulates
there are however certain cardinal rules which
have always to be kept in view in appeals against
acquittal.


criminal appellate jurisdiction criminal appeal number
93 of 1965.
appeal by special leave from the judgment and order dated
june 19 1964 of the gujarat high companyrt in criminal appeal
number 759 of 1963.

h. dhebar for the appellant. n. keswani for the respondent. the judgment of the companyrt was delivered by
hegde .j. the state of gujarat has filed this appeal by
special leave against the order of acquittal made by the
high companyrt of gujarat in criminal appeal number 759/63 on its
file. the respondent herein was companyvicted for an offence
under s. 409 ipc by the city magistrate 7th companyrt
ahmedabad and sentenced to suffer ri-orous imprisonment for
one year and to pay a fine of rs. 500 in default to suffer
rigorous imprisonment for four months more. the facts of the case lie within a narrow companypass. the gov-
ernment of gujarat gave on companytract to bharat sewak samai
 gujarat  the work of companystruction of a building for the
government litho-printing press. from exh. 20 it appears
that the bss in its turn gave that work on sub-contract to a
firm knumbern as m s. kaushik company though it was sought to
make out that m s. kaushik company were merely appointed to
supervise the work. the firm kaushik company companysisted of two
partners. the respondent who is the brother of one of the
partners was looking after the companystruction work-. on 9-4-
62 bss applied to the deputy engineer  companystruction sub-
division ahmedabad  for allotment of ten tons of cement for
the companystruction work in question. in response to that
application the deputy engineer allotted five tons  100
bags  of cement and the same was delivered to the respondent
for and on behalf of bss on 10-4-62. all these facts are
admitted. the further case of the prosecution is that after taking
delivery of the aforementioned 100 bags of cement the
respondent delivered at the work site sixty bags of cement
and the remaining forty bass he sent to the godown of pw2
tayabali jiwaji. about these facts also there is no
dispute. from the above facts the appellant wants us to companyclude
that the respondent had companymitted breach of trust in respect
of the forty bags of cement lie sent to the -godown of pw2. the case for- the respondent is that in anticipation of
allotment to bss kaushik company had utilized for the
construction work in question forty bags of cement belonging
to them and hence he sent forty
bags of cement to the godown of pw2 to be stocked for and on
behalf of kaushik company the trial companyrt disbelieved that
version and companyvicted the respondent under s. 409 ipc. the
high companyrt in a highly laconic judgment allowed the appeal
and acquitted the respondent. before examining the companyrectness of the high companyrts judg-
ment it is necessary to mention that in this case the bss
had number made any companyplaint against the respondent. in other
words it is number the case of bss that the respondent who
took delivery of hundred bags of cement on their behalf had
misappropriated forty bags out of the same. the case
against the respondent proceeded on the basis that the
government had entrusted to him 100 bags of cement for the
purpose of being used in the companystruction of the building in
question but he misappropriated forty bags out of the same. therefore we have to see whether the prosecution has
established the entrusment pleaded and the misappropriation
alleged. we were number made aware of the companyditions under which the
government gave the companystruction work to bss. the written
agreement between the government and the bss if there be
any has number been produced in this case. there is also no
oral evidence in regard to the particulars of the agreement
between the government and the bss. therefore we have to
proceed on the basis that the companytract given to the bss is
one of those usual companytracts under which it was for the
contractor to secure the necessary materials. evidently
because cement was a companytrolled companymodity in 1963 bss had
to apply for its allotment. in the absence of any evidence
to the companytrary we have to proceed on the basis that bss
either paid for the cement in question or its price was
adjusted towards the money due to it. on the proved facts it is difficult to accept the
contention of the appellant that after the sale of the
cement in question the government had any proprietary right
over the same. number can it be said that the transaction in
question resulted in any fiduciary relationship either
between the government and bss or between the government and
the respondent. it was a numbermal transaction of sale though
the sale in question was effected by the government on the
representation that cement was required for a particular
purpose. the term entrusted found in s. 405 ipc governs number only
the words with the property immediately following it but
also the words or with any dominion over the property
occurring thereafter-see velji raghvaji patel v. state of
maharashtra 1 .  1  1965 2 s.c.r. 429.
before there can be any entrustment there must be a trust
meaning thereby an obligation annexed to the ownership of
property and a companyfidence reposed in and accepted by the
owner or declared and accepted by him for the benefit of
anumberher or of anumberher and the owner. but that does number mean
that such an entrustment need companyform to all the
technicalities of the law of trustsee jaswantrai manilal
akhaney v. state of bombay 1 . the expression entrustment
carries with it the implication that the person handing over
any property or on whose behalf that properly is handed over
to anumberher companytinues to be its owner. further the person
handing over the property must have companyfidence in the person
taking the property so as to create a fiduciary relationship
between them. a mere transaction of sale cannumber amount to
an entrustment. it is true that the government had sold the
cement in question to bss solely for the purpose of being
used in companynection with the companystruction work referred to
earlier. but that circumstance does number make the
transaction in question anything other than a sale. after
delivery of the cement the government had neither any right
number dominion over it. if the purchaser or his
representative had failed to companyply with the requirements of
any law relating to cement companytrol he should have been
prosecuted for the same. but we are unable to hold that
there was any breach of trust. a case somewhat similar to the one before us came up for
consideration before a division bench of the calcutta high
court in satyendra nath mukherji v. emperor  2   . these arc
the facts of that case. one satya sunder mitra was a
contractor. he was granted a permit by the executive
engineer  a.r.p.  shelters  companystruction division to
purchase seven tons of cement from balmer lawrie and
company. the permit was -ranted on he companydition that the
cement was to be used in the work companynected with the
construction of shelters which work he had companytracted to do
for the executive engineer. the finding in the case was
that with the help of an employee of mitra and chaudhuri who
were banians of balmer lawrie and companypany six tons of
cement were diverted and disposed of for anumberher purpose. the trial companyrt companyvicted satya sunder mitra under s. 406
ipc and anumberher for abetting the offence companymitted by satya
sunder mitra. the high companyrt allowed - their appeal
holding that -there was numberentrustment of the cement in
question within the meaning of the term as used in s. 405 of
indian penal companye. in the companyrse of the judgment it was
observed
the permit was granted in accordance with
the system of companytrol established under the
defence of india
 1  1956 s.c.r. 483498-500

l. r. 1 947 1 cal 97
rules under which an order has been issued
by the government of india preventing selling
agents such as balmer lawrie and companypany from
delivering any cement except under
instructions from the government or from the
cement adviser. the transaction so far as
the companytractor is companycerned was one of
purchase and the property in the cemen
t clearly
passed to him. numberdoubt he companyld number have
obtained the permit through the executive
engineer if it had number been intended that the
cement should be used for the purpose directed
by the engineer but in our opinion in no
sense can it be said that there was any
entrustment either of the property or of any
dominion over the property. we are of the opinion that the legal position is as
explained in that decision. the decision of the kings bench division in the king v.
grubb 1  relied on by mr. dhebar learned companynsel for the
appellant does number bear on the question under companysideration. therein the factum of entrustment was number in dispute.


civil appellate jurisdiction civil appeals number. 384 and 385
of 1957.
appeal by special leave from the order dated numberember 28
1952 of the income-tax appellate
tribunal  calcutta bench  in i.t.a. number 4067 and e.p.t. appeal number 391 of 1951-52.

c. chatterjee b. sen gupta and b. p. maheshwari for
the appellant. n. rajagopala sastri r. h. dhebar and d. gupta for
the respondents. 1959. march 2. the judgment of the companyrt was delivered by
kapur j.-these two appeals pursuant to special leave are
brought against two orders of the incometax appellate
tribunal  calcutta bench  dated numberember 28 1952 passed in
appeal number 1. t. a. 4067 of 1951-52 in respect of income-tax
assessment for the assessment year ending 31st march 1944
and in appeal number e. p. t. a. 391 of 1951-52 in respect of
excess profits tax assessment of the appellant for the
chargeable accounting period ending march 31 1943. the
original assessee was r. b. seth teomal who was the manager
of a hindu undivided family. on seth teomals death on may
30 1944 seth ottanmal became the manager. he is number the
appellant representing the hindu undivided family. he will
be termed as the appellant in these appeals. seth teomal
was carrying on the businesss of a railway companytractor at
lalmonirhat in the district of rangpur which is number in
pakistan. in april 1943 a numberice was served on him under s.
22 2  of the income-tax act  hereinafter called the act . he filed the return on february 28 1944. the income-tax
officerrangpur served numberices on him under ss. 22 4  and
23 2  for production of books etc. it appears that
assessment proceedings companytinued before the income-tax
officer rangpur but numberfinal assessment was made. according to an affidavit which has number been filed in this
court the central board of revenue by an order passed under
sub-s.  2  of s. 5 of the act assigned the appellants case
along with some other assessment cases to the companymissioner
of income-tax  central  calcutta. the order companytains the
following endorsements which give an indication of the
reason for the case being assigned to the companymissioner of
income. tax  central
copy forwarded to
 1

commissioner of income-tax  central  calcutta. these
cases are reported to have e. p. t. liabilities . thus the appellants case which was before an incometax
officer within the area in charge of the companymissioner of
income-tax bengal  mofissil  was withdrawn from him and was
assigned to the companymissioner of income-tax  central
calcutta. on february 11 1948 the income-tax officer
district n-c  i. t. cum e.p.t.  to whom it appears the
appellants assessment case was assigned issued numberice again
under ss. 22 4  and 23 2  of the act. that officer after
making the usual enquiries made the assessment order on
march 15 1948. the order for excess profits tax assessment
was made on march 301948.
against these orders two appeals were taken to the appellate
assistant companymissioner on april 30 1948. in the appeal
against income-tax assessment the appellant inter alia
raised the following two grounds in regard to the
jurisdiction of the income-tax officer calcutta

for that the petitioner is number aware of any order
passed for the transfer of the case from rangpur to calcutta
and it is submitted that without such an order and
communication of such order the assessment is challengeable
for want of jurisdiction . for that the appellants challenge the jurisdiction as
there was numberproper order of transfer and the business was
carried on outside calcutta and assessments had never before
been made in calcutta. but numbersuch ground was taken in the
appeal against excess profits tax assessment. the appellate
assistant companymissioner dismissed both these appeals. in
regard to jurisdiction he held-
it however appears from records on band that the principal
place of business of the companycern was at rangpur and as the
income attracted e. p. t. liability the case was transferred
to calcutta under orders of c. b. r. hence there is no
substance in the companytention of the learned advocate which
fails
the appellant then took two appeals to the incometax
appellate tribunal. in the appeal against incometax
assessment he took two objections in regard to jurisdiction

for that the objection taken before the learned a. a. c.
on jurisdiction should number have been summarily disposed of
by passing reference to an order of transfer of the case
from rangpur to calcutta without at the same time discussing
when the question of jurisdiction was seriously raised and
how and under what circumstances and to whom was the case
transferred and for what purpose

for that the appellant begs leave to repeat that
transfer was number legal or proper and was number made by any
proper authority to legalise such transfer . in the excess profits tax appeal also this time an objection
was taken as to jurisdiction
for that the assessment is bad in law having been made
without jurisdiction . the appellate tribunal held against the appellant in a short
paragraph
so far as the first objection is companycerned in our
opinion it is number within our jurisdiction to go into this
matter. the objection relates to the place of assessment. as held in 1945 t. t. r. 39  wallace brothers company limitedv.
commissioner of income-tax bombay sind and baluchistan
federal companyrt  the question as to the proper place of
assessment is number one for adjudication by a companyrt or by any
appellate authority. companysequently we overrule the first
contention of the assessee. the tribunal thus held that as the objection related to the
place of assessment the tribunal was number companypetent to go
into that question. upon this the appellant applied for a
reference to be made under s. 66 1  of the act and prayed
for five questions to be referred. the two questions
relating to jurisdiction were-

had the income-tax officer  number-companies income-tax
cum excess profits tax district calcutta jurisdiction to
make the assessment ? was the income-tax appellate tribunal companyrect in the
circumstances in holding that it has numberjurisdiction to
determine the companypetence of the income-tax officer in making
the assessment ? in the facts of the case attached to the grounds of
appeal it was stated that the accounts were produced before
the income-tax officer calcutta under protest because the
jurisdiction of that officer was being challenged. in reply
to this the companymissioner after referring to wallace
brothers case  1  stated that it did number appear from the
assessment record that the assessee ever raised any
objection to the jurisdiction of the income-tax officer and
if it had been taken the matter would have been referred by
the income-tax officer to the companymissioner as required by
law. this- application under s. 66 1  was dismissed on the
ground that the question of jurisdiction companyld number arise out
of the order of tribunal and reliance was placed on wallace
brothers case  1  and seth kanhaiyalal v. companymissioner of
income-tax  2  . the appellant applied to the high companyrt
under s. 66  2  of the act and prayed for the following two
questions and some others to be referred -

had the income-tax officer  n. c. 1. t. cum e. p. t.
district calcutta  jurisdiction to make the assessment ? was the income-tax appellate tribunal companyrect in the
circumstances in holding that it had numberjurisdiction to
determine the companypetence of the income-tax officer in making
the assessment? the high companyrt dismissed this application on july 23 1954.
numberappeal has been filed in this companyrt against the order of
the high companyrt but an appeal has been filed against the
order passed by the income-tax appellate tribunal. on behalf of the revenue a preliminary objection was taken
that as numberappeal had been filed against the order of the
high companyrt that order had become final and this companyrt
therefore should number entertain the appeal against the order
of the tribunal and reliance was placed on the observations
of venkatarama
 1  1945 f.c.r. 65 13 i.t.r. 39.  2  1936 5 i.t.r. 739.
aiyar j. in govinda rajulu mudaliar v. companymissioner of
income-tax  1 . at p. 810 it was observed
the present appeal is against the decision of the tribunal
itself it is numberdoubt true that this companyrt has decided in
dhakeswari companyton mills limited v. companymissioner of income-tax
west bengal  2  that an appeal lies under article 136 of the
constitution of india to this companyrt against a decision of
the appellate tribunal under the indian income-tax act. but
seeing that in this case the appellant had moved the high
court and a decision has been pronumbernced adverse to him and
this has become final obviously it would number be open to him
to question the companyrectness of the decision of the tribunal
on grounds which might have been taken in an appeal against
the judgment of the high companyrt. all the points urged before
us were taken in the reference under s. 66  2  of the indian
income-tax act. it would therefore follow that these
grounds are number open to the appellant. but companynsel for the appellant relied on dhakeswari companyton
mills limited v. companymissioner of income-tax  2  where the scope
of appeals under art. 136 were set out by the learned chief
justice. in this case however it is number necessary to go
into this question because in our opinion there is little
substance in the appeal itself. companynsel for the appellant has urged two grounds in support
of his appeal  1  that his place of business was
lalmonirhat and under s. 64  1  and  2  of the act he was
entitled to be assessed by the income-tax officer of that
area and  2  that assessment by the income-tax officer of
calcutta was an illegal assumption of jurisdiction and
therefore he was entitled to have the order of assessment
quashed. in order to decide these questions reference has
to be made to the scheme. of the act. the provisions
relevant to the issue of jurisdiction are ss. 5 and 64. the
former is headed income-tax authorities and the latter
place of assessment . assessment is made by the income-tax
officer under s. 23  3 . against an order of assessment or
the liability to be assessed an appeal
 1  1958 34 i.t.r. 807 810.  2  1955 1 s.c.r. 941 949.
lies under s. 30 to the appellate assistant companymissioner and
a further appeal to income-tax appellate tribunal under s.
33 of the act. and then a reference can be made by the
tribunal to the high companyrt under s. 66  1  of the act and if
the tribunal does number make such reference the high companyrt can
under s. 66  2  be moved and it can then direct that such
reference be made. the heading of s. 64 is place of assessment . sub-section
 1  of s. 64 provides that the assessee shall be assessed by
the income-tax officer of the area in which he carries on
his business. sub-section  2  lays down that in all other
cases an assessee shall be assessed by the income-tax
officer of the area in which he resides. under these two
sub-sections therefore the appellant because he was
carrying on business at lalmonirhat had to be assessed by
the income-tax officer of that area i.e. by the income-tax
officer of rangpur. sub-section  3  of that section
provides that if a question as to the place of assessment
arises it is to be determined by the companymissioner of
income-tax or by central board of revenue according as the
case may be. under the first proviso to this sub-section
before the question as to the place of assessment is
determined the assessee has to have an opportunity of
representing his views and under the second proviso the
place of assessment cannumber be called into question by the
assessee if he has made a return in response to the numberice
under sub-s.  1  of s. 22 and has stated therein the
principal place where he carries on his business or if he
has number made such a return the time specified in the numberice
has expired. the third proviso to this subsection is
provided further that if the place of assessment -is
called in question by an assessee the income tax officer
shall if dot satisfied with the companyrectness of the claim
refer the matter for determination under this sub-section
before assessment is made . thus under s. 64 3  the question of determination as to the
place of assessment only arises if an objection is taken by
the assessee and the income tax officer has any doubts as to
the matter. but the determination
is to be by the companymissioner of income tax or the central
board of revenue. the act does number companytemplate any other
authority. it was companytended on behalf of the assessee that he produced
his accounts before the income tax officer at calcutta under
protest. there is numbermention of this protest in the
assessment file and that is what was stated by the
commissioner of income tax in his reply which he gave on
march 3 1953 before the income-tax appellate tribunal and
which has been set out above. if such an objection had been
raised the question would have been referred by the income-
tax officer to the companymissioner as required under s. 64 3 . that stage never arose because the objection does number seem
to have been taken at the stage when it should have been
taken i.e. before the income-tax officer calcutta. but it is companytended by companynsel for the appellant that in the
present case there is an illegal assumption of jurisdiction
as the officer who made the assessment had numberjurisdiction
at all to make the assessment. it was also companytended that
if the central board of revenue wanted to transfer the
assessment proceedings from the income-tax officer rangpur
to the income-tax officer at calcutta it companyld only
exercise that jurisdiction by making an order under s. 5 7a
and number under s. 5 2  of the act. he relied on taylor v.
taylor  1  where it was held that if a mode of exercise of
power is laid down in the statute it has to be exercised in
that way and numberother. he also relied on nazir ahmad v. the
king emperor  2 . he further companytended that this was number a
case which fell under s. 5 2  of the act. section 5 7a
gives to the central board of revenue the power to transfer
any case from one income-tax officer to anumberher which can be
mad6 at any stage of the proceedings and does number
necessitate the reissuing of a numberice under s. 22 2  if it
had already been issued by the income-tax officer from whom
the case is transferred and in the explanation- the word
case in relation to any person whose name is specified in
the order of transfer means
 1   1875  1 ch. d. 426 431
 2   1936  l.r. 63 i.a. 372.
all proceedings under the act which may be pending on the
date of the transfer and includes all proceedings which may
be companymenced after the date of the transfer. section 5 although headed i income-tax authorities also
gives to the central board of revenue and the companymissioners
of income-tax certain powers in regard to withdrawing of
cases from one area into other and from one income-tax
officer to anumberher. sub-section  2  of this section gives
power to the central government to appoint as many companymis-
sioners of income-tax as it thinks fit and they have to
perform their functions in respect of different areas
persons and bases or classes thereof. the relevant portion
of the sub-section is as follows-
s.5 2  the central government may appoint as many
commissioners of income-tax as it thinks fit and they shall
perform their functions in respect of such areas or of such
persons or classes of persons or of such incomes or classes
of incomes or of such cases or classes of cases as the
central board of revenue may direct
in the present case there are more than one companymissioner of
income-tax in bengal and the central board of revenue
assigned certain cases including the case of the appellant
to the companymissioner of income-tax  central  at calcutta for
the exercise of his functions as companymissioner. number this is
a power which the central board of revenue did possess under
sub-s.  2  of s. 5. as to which income-tax officer was to
deal with that case was for the companymissioner of incometax to
designate. sub-section 7a of s. 5 companyfers on the central board of
revenue the power to transfer any case from one income-tax
officer to the other which can be done at any state of the
proceedings. this sub-section is number a provision which in
any way modifies or cuts down the power given to the central
board of revenue under s. 5 2 . the two sub-sections are
complementary and operate in two separate spheres. sub-
section  2  is for the purpose of specifying as to which of
the companymissioners would perform functions in respect of
different areas persons incomes or cases or classes
thereof. it was argued that s. 7a is a special provision and it
necessarily excludes the operation of sub-s.  2  but as we
have said above the two sections are number mutually exclusive. they operate in two different spheres their areas of
operation are different and therefore the power which the
central board of revenue exercised in the present case
cannumber be said to be illegal . it was number transferring the
appellants case from the income-tax officer rangpur to
the income-tax officer calcutta. it directed the
commissioner of incometax  central  calcutta to exercise
his functions in respect of certain cases including the case
of the appellant and that falls under s. 5 2  and number under
s. 5 7a . reference was made to pannalal binjraj v. union of india
 1 . but that was a case in which the question raised was
of companystitutional validity of sub-s. 7a of s. 5 and it was
held that it was a measure of administrative companyvenience and
was valid and neither infringed the fundamental rights under
art. 14 number under art. 19 1  g . there are numberobservations
in that case which militate against the view that sub ss.  2   7a  operate in different areas number did that question
arise in that case. the companytention there raised was that
sub-s. 7a companyferred arbitrary and uncontrolled powers of
transfer and was discriminatory and violative of the
provisions of art. 14 and imposed an unreasonable
restriction on the right to carry on trade or business in
contravention of art. 19  1  g . companynsel referred to bidi
supply company v. union of india  2  but that case also does number
deal with the matter number before us. the simple question to
be decided is whether the income-tax officer calcutta
could make the assessment in the appellants case. the
submission that there was illegal assumption of jurisdiction
by the income-tax officer of calcutta is number well-founded. if the central board of revenue had the power to direct the
commissioner of incometax  central  calcutta to exercise
his functions in
 1  1957 s.c.r. 233 266.  2  1956 s.c.r. 267.
respect of several cases including the appellants mentioned
in the order dated numberember 29 1946 as indeed it had under
s. 5 2  then neither that order companyld be challenged number the
power of the income-tax officer calcutta to make the
assessment. after an order by the central board of revenue
under s. 5 2  of the act the provisions of sub-ss.  1  and
 2  of s. 64 have numberapplication because of sub-s.  5a  of
s. 64 which is as follows
sub-s. 5 the provisions of sub-section  1  and subsection
 2  shall number apply and shall be deemed never at any time to
have applied to any assessee-
 a on whom an assessment or reassessment for the purposes
of this act has been is being or is to be made in the
course of any case in respect of which a companymissioner of
income-tax appointed without reference to area under sub-
section  2  of section 5 is exercising the functions of a
commissioner of income-tax. in view of this provision numberobjection can be taken on the
ground of sub-sections  1  and  2  of s. 64.
counsel for the appellant relied on a judgment of the bombay
high companyrt in dayaldas kushiram v. companymissioner of income-
tax  central   1  where it was held that s. 64 was intended
to ensure that as far as practicable the assessee should be
assessed locally i. e. by the income-tax officer of the
area in which the assessee carries on business and there
must so far as the exigencies of the case allow be some
reasonable relation to the place where the assessee carries
on business or resides. in that case the assessee was
carrying on business in c ward and the proper officer -under
s. 64 to assess him was the income-tax officer of that ward. as a result of the companying into force of s. 5 2  the
commissioner of income-tax  central  was created without
reference to the area. the case of the assessee on whom the
numberice had been served but had number been assessed in due
course assigned to the companymissioner of income-tax  central
who designated an income-tax officer for assessment of the
assessee. the assessee thereupon made an application under
s. 45 of
 1 1939 8 i.t.r. 139.
the specific relief act and prayed for direction to the
commissioner of income-tax  central  and the incometax
officer to whom his case had been assigned to forbear from
continuing the proceedings on the grounds that the income-
tax officer had numberjurisdiction having regard to s. 64 of
the act. it was held that the income-tax officer was number
the income-tax officer of the area in which the assessee was
carrying on business. it was also held that in spite of the
insertion of s. 5 2  of the act such assessment was without
jurisdiction because there was numberamendment of s. 64. as a
result of this judgment ordinance ix of 1939 was promulgated
which subsequently was enacted as subs. 5 of s. 64. after
the ordinance the assessee dayaldas kushiram was assessed by
the same officer and after unsuccessful appeals to the
commissioner of income-tax and the appellate tribunal he
made an application under s. 66 1  on three questions  1
whether the order passed by the companymissioner of incometax
deciding the place of assessment of the assessee companyld be
the subject matter of appeal to the incometax appellate
tribunal  2  whether the tribunal had the power to
entertain an appeal on the question as to the place of
assessment of an assessee even in the absence of the order
of companymissioner of income-tax and  3  whether the question
as to the place of assessment is a question of law arising
out of the order of the appellate tribunal. it was held
that the order of the companymissioner was made under s. 5 2
and number under s. 64 3  and as the ordinance had
retrospective effect these questions did number arise and that
the assessment of the assessee was validly made by the
income-tax officer and the ordinance removed the invalidity
of the orders made prior to the passing of the ordinance so
far as they related to the assessee. beaumont c. j. held
that the income-tax act did number determine the place of
assessment but the officer who had to assess and that there
could be numberappeal under the act against the order of the
commissioner as to the place of assessment but only against
the order of assessment of the income-tax officer. companynsel for the appellant also relied on the judgment of
the allahabad high companyrt in dina nath hem raj v.
commissioner of income-tax  1 . in that case the assessee
was carrying on business at calcutta and he was sought to be
assessed at kanpur and an objection was taken to the income-
tax officer kanpur making the assessment. the income-tax
officer did number proceed in accordance with s. 64 3  and
therefore it was held that assessment made by him was
without jurisdiction. in the present case numberquestion has
been raised as to the jurisdiction of the income-tax officer
who made the assessment and apart from that the order was
made by the central board of revenue under s. 5 2  of the
act and s. 64 5  becomes operative and sub-ss.  1  and  2
of s. 64 are inumbererative. see also seth kanhaiyalal v.
commissioner of incometax  2 . the question then-arises whether the objection as to the
place of assessment i. e. by the income-tax officer of
calcutta companyld be challenged in appeal to the appellate
assistant companymissioner and then before the appellate
tribunal. in our opinion it companyld number be. the scheme of
the act shows that numberappeal in regard to the objection to
the place of assessment is companytemplated under the act. under s. 64 3  of the act a question as to the place of
assessment when it arises is determined by the
commissioner. any such order cannumber be made a ground of
appeal to the appellate assistant companymissioner under s. 30
of the act which provides for appeals against orders of
assessment and other orders enumerated in s. 30 but no
appeals is there provided against orders made under s.
64 3 . similarly appeals to the appellate tribunal which
lie under s. 33 of the act also do number provide for any
appeal on the question of the place of assessment. in
wallace brothers case  3  at p. 79 spens c. j. after
referring to s. 64 3  and the proviso thereto said
these provisions clearly indicate that the matter is more
one of administrative companyvenience than of
 1   1927  i.l.r. 49 all. 616.  2  1936 5 i.t.r. 739.  .3  1945 f.c.r. 65 13 i.t.r. 39.
jurisdiction and in any event it is number one for adjudication
by the companyrt this companyfirms us in the view
that the scheme of the act does number companytemplate an objection
as to the place of assessment being raised on an appeal
against the assessment after the assessment has been made. as we have already pointed out the objection was number raised
in the present case even before the appellate income-tax
officer but only before the appellate tribunal . there is numberhing in the bidi supply case  1  which in any
way detracts from the efficacy of the decision of the
federal companyrt in wallace brothers case  2 . we have
already said that bidi supply case  1  deals with the vires
of s. 5 7a .