declare the action of the Government in proposing to fill up 70% of the Secondary Grade Teacher vacancies first, from among the Graduates and Diploma Holders, and then filling up of 30% of vacancies from among the Diploma holders, as illegal and arbitrary and contrary to proviso to Rule 7 of the A.P. Direct Recruitment of Teachers (Scheme of Selection) Rules, 2008 (for short “the Rules”), as amended by G.O.Ms.No.28, dated 29-01-2009. The Tribunal, vide its common order, dated 29-11-2011, disposed of the said O.As., by observing as follows:- “In view of the interconnectivity of the entire litigation with the pending Civil Appeals before the Hon’ble three Judges Bench of Hon’ble Supreme Court and various Writ Petitions which are pending before the Hon’ble High Court, it may not be desirable to take any decision in these matters by the Tribunal at this stage. It is necessary to await the orders of the Hon’ble Supreme Court in S.L.Ps., and Hon’ble High Court in WPs. Accordingly, these OAs., be posted after the orders of Hon’ble Supreme Court and Hon’ble High Court. In case the applicants need further clarifications/orders at this stage, they may approach the Hon’ble Supreme Court and Hon’ble High Court in this regard. With the above observations, the OAs., are disposed of.”

THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE N.RAVI SHANKAR W.P.Nos.34018, 33754, 34058 and 34059 of 2011 and W.P.No.287 of 2012 COMMIN ORDER: (per the Hon’ble Sri Justice V. Eswaraiah) 1. Heard both the counsel. 2. As common questions are involved in all these writ petitions, they are heard together and are being disposed of by a common order. 3. The petitioners herein are the applicants before the A.P.Administrative Tribunal, Hyderabad. They filed O.A.Nos.7063, 7237, 7394, 774 and 8571 of 2011 seeking to declare the action of the Government in proposing to fill up 70% of the Secondary Grade Teacher vacancies first, from among the Graduates and Diploma Holders, and then filling up of 30% of vacancies from among the Diploma holders, as illegal and arbitrary and contrary to proviso to Rule 7 of the A.P. Direct Recruitment of Teachers (Scheme of Selection) Rules, 2008 (for short “the Rules”), as amended by G.O.Ms.No.28, dated 29-01-2009. The Tribunal, vide its common order, dated 29-11-2011, disposed of the said O.As., by observing as follows:- “In view of the interconnectivity of the entire litigation with the pending Civil Appeals before the Hon’ble three Judges Bench of Hon’ble Supreme Court and various Writ Petitions which are pending before the Hon’ble High Court, it may not be desirable to take any decision in these matters by the Tribunal at this stage. It is necessary to await the orders of the Hon’ble Supreme Court in S.L.Ps., and Hon’ble High Court in WPs. Accordingly, these OAs., be posted after the orders of Hon’ble Supreme Court and Hon’ble High Court. In case the applicants need further clarifications/orders at this stage, they may approach the Hon’ble Supreme Court and Hon’ble High Court in this regard. With the above observations, the OAs., are disposed of.” 4. Aggrieved thereby, the present writ petitions are filed. 5. Learned counsel appearing for the petitioners submits that as per the proviso to Rule 7 (1) of the Rules, 30% of the Secondary Grade Teacher posts are filled up exclusively from candidates possessing D.Ed qualification and the balance 70% of the posts are filled from common pool of candidates possessing B.Ed and D.Ed qualification. 6. The Tribunal did not decide the issue as to whether D.Ed qualified candidates have a first preferential consideration for 30% of the posts or whether B.Ed and D.Ed candidates are entitled for 70% of the posts, as first preferential consideration. 7. Learned Government Pleader for Services-I submits that in the earlier batch of OAs., D.Ed candidates questioned the provisio to Rule 7 of the said Rules, but the Tribunal while upholding the said amendment, dismissed the O.As, against which, the applicants therein filed writ petitions before this Court and this Court suspended the proviso to Rule 7(1) of the said Rules against which, the matter was carried to the Hon’ble Supreme Court and the Hon’ble Supreme Court stayed the orders of this Court and that is how Rule 7(1) modification to Rule 7(1) is in operation of the statute and, therefore, the Government is required to implement the said amended Rule 7. Thus, it is stated that as per the existing orders as on date, proviso to Rule 7 has to be implemented and whether the D.Ed candidates have preferential consideration to fill up first 30% posts of the Secondary Grade Teachers or not, is a matter to be decided by the Tribunal. But, the Tribunal declined to decide the said issue in view of the pendency of an earlier batch of writ petitions and the S.L.Ps. before the Hon’ble Supreme Court and disposed of the O.As., as stated above. 8. Learned Government Pleader further submits that the writ petitioners have not made the persons, who are selected and appointed, as parties in the respective O.As and, therefore, in the event of accepting the contentions of the applicants, it may not be possible to set aside the selection of various candidates. 9. We are not inclined to express any opinion as it is for the respective parties to take appropriate steps before the Tribunal. 10. Learned counsel appearing for the petitioners submits that the validity and legality of Rule 7(1) is the subject matter of earlier batch of writ petitions and the S.L.Ps., but the mode of implementing Rule 7 is not the subject matter of pendency of writ petitions in the High Court. 11. Therefore, we are of the opinion that the Tribunal ought to have decided the modality and working of Rule 7, in accordance with law. 12. Accordingly, without expressing any opinion with regard to the contentions of either of the parties, we set aside the impugned orders and the writ petitions are allowed remitting the matter to the Tribunal to consider the contentions of either side and dispose of the O.As., on merits in accordance with law. We direct the Tribunal to dispose of the O.As., if pleadings are completed, as expeditiously as possible, without any undue delay. There shall be no order as to costs. ________________ V.ESWARAIAH, J ___________________ N.RAVI SHANKAR, J Date:26-12-2011 Prv

PARTITION SUITS = the findings recorded in the two suits regarding Item No. 5 of Schedule `B' properties specified in the plaint of O.S. No. 4528 of 1980 are contradictory and substantial portion of the judgment of O.S. No. 4528 of 1980 is based on surmises and conjectures, we feel that ends of justice would be met by setting aside the impugned judgment and remitting the matter to the trial Court for fresh disposal of the suits filed by respondent Nos. 1 and 2.

NON REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6714-6715 OF 2002 Y. Nagaraj ........Appellant Versus Smt. Jalajakshi and others .......Respondents J U D G M E N T G. S. Singhvi, J. 1. These appeals filed against judgment dated 22.2.1999 of the learned Single Judge of the Karnataka High Court represent culmination of the dispute among the heirs of Shri D. Yellappa, who died intestate on 27.03.1978, in relation to his properties. 2. Appellant, Y. Nagaraj, is the son of the deceased and respondent Nos.1 to 3 - Smt. Jalajakshi, Smt. Y. Susheela and 2 Smt. Y. Nirmalakumari are his daughters. They are governed by Mitakshara School of Hindu Law as also the provisions of the Hindu Succession Act, 1956 (for short, `the Act'), for the sake of convenience, they shall hereinafter be referred to with the same description. 3. Respondent No. 1 filed O.S. No. 286 of 1979 (renumbered as O.S. No. 4528 of 1980) impleading the appellant and respondent Nos. 2 and 3 as defendants for partition of the properties specified in Schedules `A' and `B' into four equal shares by metes and bound and for allotment of one share to her with absolute title and possession. She further prayed that the appellant be directed to give account of the income of the suit schedule properties with effect from 27.3.1978 and pay 1/4th share to her. In the alternative, she prayed that an inquiry be ordered under Order XXIX Rule 12 of the Code of Civil Procedure (for short, `the CPC') for determination of mesne profits. The schedules appended to the plaint are extracted below: 3 " :Schedule `A': (1) Vacant land bearing Kaneshumari No. 130, of Dommasaacha Village, Surjapura Hobli, Anekal Taluk bounded on the East by : Nagi Reddy House West by : Konda Reddy House North by : Road South by : Erappa's land Measuring East West about 42' North-South about 45'. :Schedule `B': (1) S. No. 96/1, measuring 2 acres and 5 guntas (2) S. No. 108/2, measuring 1 acre 28 guntas (3) S. No. 79/2, measuring 3 acres 35 guntas all these properties situated at Thigala, Chowdadenahalli, Sarjapur Hobli, Anekla Tq, Bangalore Distt., (4) S.No. 205, measuring 1 acre 22 guntas situated at Dommasandra village, Anekla, Taluk. (5) A house bearing D.No. 100, and new Nos. 100/1 and 100/2, measuring about 82' x 21' situated at Susheela Road Doddamavalli, Bangalore.4 (6) Any other property standing in the name of late D. Yellappa, or any of his family members. (7) Jewels worth about Rs. 10,000/- (8) Household utensils worth about Rs. 10,000/- (9) Bank deposits." (As extracted from the judgment of XVII Additional City Civil Judge, Bangalore.) 4 4. The claim of respondent No. 1 was founded on the following assertions: (a) That late Shri D. Yellappa, who retired as Revenue Inspector from the Corporation of the City Bangalore, was an affluent person and possessed some ancestral properties (described in Schedule `A') and self-acquired movable and immovable properties (described in Schedule `B'). (b) That Shri D. Yellappa died intestate on 27.3.1978 and being his Class II heirs, the parties are entitled to share in his estate. (c) That respondent Nos. 2 and 3 are unmarried and by taking advantage of his position as the son of the deceased, the appellant is wasting the property and trying to alienate the same. 5. In the written statement filed by him, the appellant denied that Shri D. Yellappa had only a bit of ancestral property. He pleaded that the suit properties are joint family 5 properties because the same had been acquired out of joint family income and respondent No. 1 had erroneously characterized the same as self-acquired properties of the deceased. The appellant further pleaded that his father had sold some properties to one Papaiah; that the agricultural lands shown in the plaint schedule were subject matter of the proceedings pending before Land Tribunal, Anekal for grant of occupancy rights; that Item No. 3 of plaint Schedule `B' had been purchased in his name vide sale deed dated 29.4.1961 and he was absolute owner thereof and that the jewellery, utensils, bank accounts, etc., mentioned at Item Nos. 7 to 9 of Schedule `B' were not available for partition because after the death of the mother, the deceased had divided the same among three sisters. In paragraph 6 of the written statement, the appellant averred that Item No.5 of Schedule `B' properties is an ancestral property and respondent No.1 has no right to claim any share in it. 6 6. Since the High Court has, while disposing of the appeals filed by the appellant and respondent No. 2 relied upon some of the averments contained in the written statement and made observations adverse to the interest of the appellant, it will be appropriate to notice the contents of paragraphs 2, 4 and 6 of the written statement which are extracted below: "2. Late Sri. D. Yellappa had ancestral properties. It is incorrect to say that he has only a bit of ancestral property. He was getting a meagre salary, while he was in service, but he was having sufficient income from the joint family properties and out of the income-from joint family properties he purchased properties in his name as he was the head of the family. It is absolutely false that items mentioned in `A' Schedule are the ancestral properties and the items mentioned in `B ' schedule are the separate properties of the father of this defendant. The plaintiff is put to strict proofs of the same. The plaintiff with a view to claim larger share in the properties has characterised the ancestral properties as self acquired properties. The plaintiff in her anxiety to claim a larger share in the properties has included the items which are already sold by the father of the defendant. Thus it is clear that the plaintiff is not at all in joint possession of the properties. The item mentioned in `A' schedule was sold to one Papaiah by the father of the defendant during his life time and put him in possession. Inspite of it, the plaintiff has claimed this property which is in possession of Sri Papaiah. Hence, the said Papaiah is a necessary and a proper party. The 7 suit is bad for non-joinder of proper parties and the suit is liable to be dismissed. 4 . There is no self-acquired property of Sri Yellappa, for the plaintiff to claim any share in the property. The plaintiff is not entitled to any share in the properties detailed in the schedule and further the plaintiff has not brought the entire joint family properties for the purpose of division, though she is fully aware of the same. The pretentions ignorance of the plaintiff is a make believe one and is deliberately made to appear as such only to help the plaintiff's uncle against whom the suit has been filed for the recovery of this defendant's share in the property. The plaintiff is actively supporting her uncle in the said litigation in O.S.31/1979 on the file of the M u n s i f f, A n e k a l . Thus the suit as brought is not maintainable and liable to be dismissed in limine. 6. Item No.5 of the `B' Schedule properties is an ancestral property. The plaintiff has no manner of right, title or interest to claim any share therein." 7. Respondent Nos. 2 and 3 filed separate written statement. They admitted the claim of respondent No. 1 qua the properties specified in Schedules `A' and `B' except Item No. 5 of `B' Schedule, i.e., house No. 100 (new nos. 100/1 and 100/2). Respondent Nos. 2 and 3 pleaded that the house was purchased by their father in the name of the mother by registered sale deed dated 20.12.1943; that, subsequently, the mother transferred the house to the father, who 8 executed Will dated 28.3.1977 and bequeathed a portion of the house to them but, later on, he cancelled the Will and executed registered Settlement Deed dated 18.7.1977 in their favour. 8. The trial Court took cognizance of the pleadings of the parties and framed the following issues (the issues have been extracted from the impugned judgment): "1. Whether plaintiff proves that the `A' schedule properties are the ancestral properties and the `B' schedule property were self acquired property of late D. Yellappa? 2. Whether defendant nos.2 and 3 proves that they are the absolute owners in possession and enjoyment of a portion of item no.5 of schedule `B' property by virtue of a registered settlement deed dated 18.7.1977 executed by late D. Yellappa? 3. Whether the defendants further prove that the plaintiff is not entitled to claim a share in items no.1 to 5 of the `B' schedule property as contended in their written statement? 4. Whether defendants further prove that the jewels in item no.7 of `B' schedule was divided in between defendants 1 and 2 and after the death of their mother as contended? 9 5. Whether defendant no.1 proves that item no.8 in `B' schedule was taken away by the plaintiff and the utensils now in his possession belong to him exclusively? 6. To what share is the plaintiff entitled to and in what all properties? 7. Whether the plaintiff is entitled to the mesne profits and if yes, at what rate? 8. What relief and what order? 9. Whether the defendants prove that the 3rd item of `B' schedule is the self acquired property of defendant no.1 as contended in para 6(b) of the written statement? 10. Whether the defendants prove that item nos.1,2 and 4 of `B' schedule property are the subject matter of tenancy rights pending before the Land Tribunal and that the plaintiff cannot claim anything in them?" 9. In support of her claim, respondent No. 1 appeared as PW-1 and produced 13 documents, which were marked as Ex. P1 to P13. The appellant examined himself as DW-1 and produced one document, which was marked as Ex. D1. 10. After considering the pleadings of the parties and evidence produced by them, the trial Court partly decreed the suit. The trial Court answered issue Nos. 1 and 7 in the negative 1 and issue Nos. 2, 4, 5, 9 and 10 in the affirmative. It held that Item Nos. 6 to 9 of Schedule `B' were not available for partition and respondent No.1 has miserably failed to prove her case qua those items. The trial Court further held that Item No.3 of Schedule `B' is also not available for partition because the same had been purchased in the name of the appellant vide sale deed Ex. P6 and mistake in the boundaries specified therein was rectified vide Ex. P7. Issue No.3 was answered by the trial Court by declaring that respondent No.1 will be entitled to 1/8th share in the compensation in lieu of agricultural land which was subject matter of the proceedings pending under the Land Reforms Act. The relevant portions of the judgment of the trial Court except those relating to Item Nos. 6 to 9 of Schedule `B' about which no controversy survives between the parties are extracted below: "Though the plaintiff claims her 1/4th share in the agricultural lands being Item Nos. 1 to 4 of schedule `B' of the plaint, admittedly by the parties during the course of evidence, item Nos. 1 & 2 are the ancestral properties of this D. Yellappa and this D. Yellappa has purchased item No. 4 by a registered sale deed as 1 per Ex. P8 in the year 1966 and only because this D. Yellappa purchased that land, it cannot be classified as self-acquired property of Yellappa unless there is material or evidence produced by the plaintiff to show that he treated that property as self-acquired and separate property and was never meant for enjoyment of the joint family during his life time. Therefore, when there is material to show that D. Yellappa had some agricultural and being the ancestral property measuring 4 5 acres in Anekal Taluk and in addition to the same, he has retired in the year 1961 and got some retirement benefits and similarly, he had purchased some house properties in Bangalore and sold them for the benefit of the family for a sum of Rs. 26,000/- or so as admitted by DW1 himself and which is not disputed by the plaintiff, it can be safely said that item No. 4 was purchased by D Yellappa, out of the joint family funds and it was for the benefit of the family and it cannot be self-acquired and separate property of Yellappa. Similarly, he has purchased item No. 5 being the house property bearing Door No. 100 which is re-numbered as 100/1 and 100/2 in the name of his wife only in the year 1950 and the same was subsequently transferred in the name of D. Yellappa and thereafter, he has mortgaged the same by Ex. P13 and therefore, the plaintiff cannot contend that the said property belonged to her mother and therefore, she is entitled to a share in the same. The recitals of the mortgage deed in Ex. P13 go to show that D. Yellappa had purchased that property in Bangalore in the name of his wife and that fact is clinched by the fact that he has subsequently treated the same as joint family property and not as of his wife. With these observations, I hold that it is a joint family property and not self-acquired property of D. Yellappa and about the settlement of the property in favour of defendants 2 & 3, I will discuss later. 1 So far as the item No. 3 of `B' schedule property is concerned, it can be seen that it was purchased in the name of the first defendant by a sale deed Ex. P6 and there has been a rectification deed also regarding some mistake in the boundaries etc., as per Ex. P7 and this land is also said to be the subject matter of occupancy right before the Tribunal. But all the same, there is no material to show that it is a joint family property and the plaintiff has not produced any material to show that as to whether her father financed this first defendant to purchase this item no. 3 of schedule `B' nor is it the case of the plaintiff that it was actually purchased by D. Yellappa in his own name. As already pointed out, the land was purchased by the first defendant somewhere in the year 1961 and he got rectification deed in the year 1967 and therefore, in the absence of any evidence produced by the plaintiff to show that it was purchased out of the income of the ancestral properties, it can be safely said that the first defendant has treated that property as his self- acquired property because, there was no joint family as such after the death of his father. Because, the first defendant is the only son and the other issues of this D. Yellappa all are daughters and are married and staying with their husbands. Therefore, this item No. 3 will have to be treated as self-acquired property of defendant No 1. Admittedly item Nos. 1 and 2 of schedule `B' are agricultural lands and were ancestral properties of D. Yellappa and if at all the plaintiff or defendants Nos. 2 and 3 are entitled to any share in those 2 lands (illegible) in the compensation to be awarded by the land tribunal, under the Hindu Succession Act and not under the General Hindu Law. If these two lands are agricultural properties, the plaintiff as well as the defendants 2 and 3 would get 1 their share either in the compensation or by metes and bounds only in = share of the deceased-father of Yellappa because he has died somewhere in the year 1978 after coming into force of the Hindu Succession Act. In that undecided = share of properties they cannot claim 1/4th share as of right by birth. In the notional partition it is only the coparceners under the General Hindu Law who get a share each and the ladies cannot be co-parceners of the Joint Hindu Family and therefore in the notional partition, it is this D. Yellappa and Nagaraj alone get half and this 1/ share of Yellappa goes to the plaintiff and 2 defendants 2 and 3 under the Hindu Succession Act as their mother had pre-deceased this Yellappa having died in the year 1960. Thus, I hold that the plaintiff cannot claim 1/4th share. But they can claim only 1/8th share each in the entire item Nos. 1 and 2 either by metes and bounds or by way of compensation if any by the land tribunal. Though the plaintiff has claimed share in item No. 5 the residential house of Bangalore Town, on the ground that it was her mother's property, her own document Ex. P. 13 negatives her contention because, as per the recitals, the finance has flowed from this Yellappa himself though it was purchased in the name of his wife. But it was subsequently transferred in the name of joint family and he treated it as his own property and mortgaged the same to some person by Ex. P. 13 and subsequently gifted the portions of those properties in favour of plaintiff herself and also defendants 2 and 3 and defendants 2 and 3 so also the first defendant stayed in those houses till they got married and therefore, at the most it can be said that house No. 100/1 and 100/2 alone are available for partition between the plaintiff and defendants except the settled properties in favour of the plaintiff and defendants 2 and 3. Thus, the plaintiff cannot claim share in the portions that are 1 settled in favour of defendants 2 and 3 and there has been a settlement deed by Yellappa himself between defendants 2 and 3 by a registered deed dated 18.7.77 as this fact is admitted by PW1 as well as DW1 though there is no evidence produced by the plaintiff and therefore, I am persuaded to answer issue No. 2 in the affirmative. Now coming to `A' schedule property which according to the plaintiff is ancestral property and is a grame tana area and a residential house bearing Khaneshumari No. 130 in Anekal Taluk. This PW1 during the course of cross-examination admits that her father had gifted half of schedule property in favour of his own brother-Veerappa and also admits that her father might have sold remaining half schedule property in favour of one Papaiah. But, however, a suggestion is made that this first defendant took possession of half of `A' schedule property from Papaiah by filing suits. But the plaintiff has not produced any judgment copy of such suit nor is there any evidence produced to show that this defendant-1 has taken possession of the half of the `A' schedule property that was sold by D. Yellappa himself during his life time. So therefore, if that is the position, it cannot be said that the plaintiff has proved the facts that `A' schedule property is available for partition and also that she is entitled for mesne profit also. There is no material to show that `A' schedule is in the possession of the first defendant and they cannot also contend that the first defendant has got income from the agricultural lands because, in view of the Land Reforms Act, tenanted lands vest in Govt. with effect from 1974 and when there is material to show that the matter of occupancy rights in respect of agricultural lands at item -1 to 4 of schedule `B' is pending before the Land Tribunal, the plaintiff cannot 1 seek accounting from the first defendant. But however, the contentions of the defendant-1 in the written statement that the plaintiff has not produced the record of rights and index of lands etc., in respect of agricultural land and that if partition is allowed, the same would hit provisions of Prevention of Fragmentation Act etc., are devoid of any merit and thus, in view of my discussions, I am persuaded to answer issue No. 1 in the negative." 11. The operative portion of the judgment passed by the trial Court (as contained in the paper book of the special leave petitions) is extracted below: "The suit of the plaintiff is hereby partly decreed. The suit of the plaintiff for partition and actual possession in `A' schedule property and also for partition and possession of item Nos. 1 to 9 of schedule `B' by metes and bounds is hereby dismissed. It is hereby declared that the plaintiff is entitled to 1/8th share in the compensation to be paid by the Govt, in respect of item Nos. 1, 2 and 4 and she is also entitled to 1/8 th share in the un-sold portion of item No. 5 in as much as there are entitlement deeds of vacant sites in favour of plaintiff herself and also in favour of defendants 2 and 3. The plaintiff shall get her share partitioned by appointing a Commissioner in the Final Decree Proceedings in item No. 5. Similarly, the suit of the plaintiff for mesne profits is hereby dismissed. But costs of the suit shall come out of the assets of the joint family properties. It is hereby declared that defendants 2 and 3 are also entitled to 1/8th share like the plaintiff in all the properties that are available for partition as discussed above. Draw a preliminary decree accordingly." 1 12. During the pendency of the suit filed by respondent No. 1, respondent No. 2 filed O.S. No. 2062 of 1981 for declaration of title in respect of house bearing No. 100/2, Susheela Road, Doddamavalli, Bangalore and possession thereof and also for mesne profits. Respondent No.2 relied upon registered Settlement Deed dated 18.7.1977, which is said to have been executed by Shri D. Yellappa giving separate portions to her and respondent No.3, and pleaded that she was residing in the portion allotted to her and was paying taxes etc. but the appellant was trying to interfere with her possession. 13. The appellant contested the suit filed by respondent No. 2. He pleaded that the suit property was joint family property and the deceased had no right to execute settlement deed in respect of the joint family property. He further pleaded that the settlement deed was a fabricated document and the same cannot be relied upon for declaring respondent No.2 as owner of the suit property. He also raised an objection of 1 limitation and pleaded that the suit filed by the respondent No.2 was barred by time. 14. In the second suit, the trial Court framed nine issues and one additional issue. The same (as contained in para 10 of the impugned judgment) are extracted below: "1. Whether the plaintiff proves that during the suit schedule property was the self acquired property of D. Yellappa? 2. Whether the plaintiff proves that during the lifetime of D. Yellappa, D. Yellappa has executed a registered settlement deed dated 18.7.1977 and registered Will dated 28.3.1977 in her favour pertaining to the suit schedule property as alleged in the plaint? 3. Whether the plaintiff proves that the defendant trespassed into the suit schedule property and proves further that she is entitled for possession as alleged? 4. Whether the plaintiff proves that she is entitled for Rs.1,440/- and also for mesne profits with costs thereon? 5. Whether the defendant proves that the alleged Will is a got up one when Yellappa was not in a fit condition to execute in favour of the plaintiff? 6. Whether the defendant proves that the suit schedule property is not self acquired property of D. Yellappa? 1 7. Whether the defendant proves that he is in possession of the property in his own right and not as a trespasser? 7(a) Whether the defendant proves that the suit is not maintainable in law? 8. To what relief the parties are entitled? 9. Whether the plaintiff is entitled for the declaration claimed? Additional Issues : 1. Whether the defendant proves that the suit is barred by time as he had taken a plea in O.S. No.151 of 1978 itself denying the title of the plaintiff as alleged?" 15. Respondent No.2 examined herself as PW-1 and produced 8 documents marked Ex. P1 to P8. The appellant examined himself as DW-1 and produced 16 documents marked Ex. D1 to D16. 16. The trial Court answered issue Nos. 1 to 4, 7(a), 9 and additional issue No.1 in the negative and issue Nos. 6 and 7 in the affirmative. As regards issue No.5, the trial Court observed that the same does not survive for consideration. 1 In conclusion, the trial Court dismissed the suit by observing that respondent No.2 has failed to prove that the suit property was purchased in the name of the mother vide Sale Deed dated 1.2.1950 and she had transferred the same to her father. The trial Court also held that respondent No.2 has failed to prove that the suit property was the self- acquired property of her father and he had the right to settle the same in her favour. The relevant portions of the judgment rendered by the trial Court in O.S. No. 2062 of 1981 are extracted below: "It is elicited in the cross examination of PW-1 that the suit property was transferred by her mother to her father but she does not know by what mode it was transferred. She does not know when her mother had purchased the property. There must be document of title regarding the purchase made by her mother and the plaintiff has denied ignorance about the mode under which the property was transferred by her mother to her father. The contents of Ex.P.l show that the property was purchased by sale deed dated 1.2.1950. The said sale deed dated 1.2.1950. The said sale deed has not been produced by the plaintiff and therefore the plaintiff has failed to prove that it is belong to her mother and her mother has transferred the property to her father. On the other hand, the evidence of the defendant and the documentary evidence produced by him show 2 that the property was the joint family property as it was purchased out of the amount received by mortgaging the family properties to Salem Bank under Ex.D-7. DW-l has stated in his evidence that the suit schedule property was purchased out of the joint family funds. The property was purchased in the name of his mother during December 1943. In December 1943 joint family property was mortgaged to Salem Bank for purchasing the property and he has produced Ex.D-7 the mortgage deed and he has further stated that the said amount obtained by mortgaging was repaid out of the income derived from the suit house. Nothing has been elicited in the cross-examination of DW.1 to disbelieve his evidence that the suit property was purchased out of the amount received by mortgaging the joint family properties. Ex. D-7 shows that on 17.12.1943 D. Yellappa and his brother Erappa mortgaged the properties for borrowing Rs.600/- for the purpose of purchasing a house at Siddegowda Lane, Lalbagh, Doddamavalli Bangalore City in the name of the wife of D. Yellappa and the schedule to the said mortgage deed reads as follows: I. All the piece and parcel of land with the dwelling houses and outhouses, wells, trees and drains thereon built and planted and situated together with all rights and easements appertaining thereto now and hereafter enjoyed and acquired bearing Municipal Door No. Old 8 and New No. 13. Chintala Venkatappa Lane, Lalbagh, Doddamavalli, Bangalore City, bounded on the North by Sarambigamma's house and Chinnayya's backyard, South by Municipal Road, East b y Ratnakka and her b r o t h e r Anjariappa's house and open space and West by land with public water t a p , measuring East to West 3 5 1 /2 feet and North to South 1 2 ' x 1 2 ' and admeasurements 4 4 3 square feet. Chintala 2 Venkatappa Lane is now called Siddegowda Lane. II. And house bearing Municipal Door No. 2 (Old) New No. 3 . Aliraju Munisumappa Road, Thigalarpet, Bangalore City, bounded on North b y Jaragana-halli Muniswamy's house and Yellamma Temple, South by Lane and Yengatappa Gowda's house and Rangamma's house, East by Municipal Road and Muni Siddappa's house and West by Waste land belonging to choultry, measuring East to West 2 4 ' . 4 " , North to South 25 ' . 1 0 " b y admeasurements 6 2 6 square feet and which are at present in possession of the said mortgagors, 1. D. Yellappa and 2 . Erappa. It is clear from the above said evidence of DW-1 and Ex. D-7 which clearly corroborates his evidence that the suit schedule property was purchased out of the money obtained by mortgaging the joint family properties. PW-1 has feigned ignorance as to whether her father had any other source of income except salary and as to whether the family had any other joint family property at the time of purchase of the suit schedule property. Therefore, it is clear that plaintiff has failed to prove that the suit schedule property was the self acquired property of her father and that her father had right to settle the property in favour of the plaintiff. On the other hand, the above said evidence on record clearly shows that the suit property was the joint family property of D. Yellappa and the defendant. I have already given a finding that plaintiff has failed to prove that the suit schedule property was the self acquired property of D. Yellappa and defendant has proved that the suit schedule property was the joint family property. Therefore, the burden is upon the plaintiff to prove the execution 2 of the Settlement Deed. PW-1 has stated in her cross-examination that she does not know who were the witnesses that have signed Ex. P.l as they were acquaintance of her father. She does not know who was the scribe of the Settlement Deed. It is further elicited that she found some corrections in the Settlement Deed but she does not know who wrote it. The witnesses have not signed in her presence and she does not know if her father had intimated the defendant about the Settlement Deed. The plaintiff has not signed the Settlement Deed and the and the witnesses who have attested the Settlement Deed have not been examined by the plaintiff. The scribe who wrote the Settlement Deed has also not been examined by the plaintiff. There are some corrections in the Settlement Deed and PW-1 has stated that she does not know who had carried out the said corrections and she does not know who wrote the contents of the Settlement Deed as she has feigned ignorance as to who was the scribe of the Settlement Deed. Even the contents of the Settlement Deed have not been proved and the evidence on record clearly proba- bilities the version of the defendant that the Set- tlement Deed has been concocted by the plaintiff. It is mentioned in the Settlement Deed Ex. P.l that the property was the self acquired property of D. Yellappa. I have already held that suit property was not the self-acquired property of D. Yellappa." 17. The appellant filed RFA No. 189 of 1990 and prayed for setting aside the decree passed in O.S. No. 4528/1980 insofar as the trial Court upheld the claim of partition made by respondent No.1 qua Item No.5 of Schedule `B' 2 properties. Respondent No. 2 also filed RFA No. 476 of 1991 and challenged the dismissal of the suit for declaration filed by her. 18. Learned counsel for the appellant argued that the impugned judgment is liable to be set aside because the learned Single Judge of the High Court committed grave error by granting substantive relief to respondent No.1 despite the fact that she had not filed appeal or cross-objections to question the findings recorded by the trial Court on various issues. She further argued that the learned Single Judge committed an error by passing a decree in favour of respondent No.2 on the basis of Settlement Deed dated 18.7.1977 ignoring that she had failed to prove that the suit property was self- acquired property of the father and that in O.S. No. 4528 of 1980 the trial Court had ruled that Item No.5 of `B' Schedule properties was joint family property. 19. Learned counsel for the respondents supported the impugned judgment and argued that the High Court did not commit any error by granting relief to respondent Nos. 1 2 and 2. She submitted that even though respondent No.1 had neither filed an appeal against the judgment and decree passed by the trial court in O.S. No. 4528 of 1980 nor she filed cross-objections in RFA No. 189 of 1990, the learned Single Judge had rightly invoked the principle underlying Order 41 Rule 33 CPC for the purpose of doing full justice to the parties. She also defended the decree passed in favour of respondent No.2 and argued that the learned Single Judge did not commit any error by relying upon the recital in the settlement deed for the purpose of recording a finding that Item No.5 of Schedule `B' properties was self- acquired property of the deceased. 20. Before adverting to the arguments of the learned counsel for the parties and the reasons recorded by the learned Single Judge, we consider it proper to take cognizance of some of the additional documents filed by the counsel for the respondents which include copy of the plaint in O.S. No. 286 of 1979 (renumbered as O.S. No.4528 of 1980), written statement filed in that suit, the issues framed by the trial 2 Court, depositions of respondent No.1 and the appellant, copy of Settlement Deed dated 18.7.1977, orders passed by the Karnataka High Court in Writ Petition Nos. 11401 of 1981, 20067 of 1991 and 20068 of 1991 and order passed by the Land Tribunal. These documents show that respondent Nos. 1 to 3 had filed Writ Petition No. 11401 of 1981 for quashing order dated 9.6.1981 passed by the Land Tribunal whereby occupancy rights were granted to N. Bhadraiah in respect of land comprised in survey Nos. 79/2, 108/2 and 205. By an order dated 28.5.1985, the Division Bench of the High Court allowed the writ petition, quashed the order of the Land Tribunal and remitted the matter for fresh disposal of the application filed by N. Bhadraiah after giving opportunity to the parties. After remand, the Land Tribunal passed order dated 29.10.1988 and again accepted Bhadraiah's claim for occupancy rights. The second order of the Land Tribunal was challenged by respondent Nos. 1 to 3 in Writ Petition Nos. 20067 and 20068 of 1991, which were allowed by the Division Bench of the High Court on 20.1.1994 and the matter was again 2 remitted to the Land Tribunal for fresh consideration. Of course, learned counsel for the parties did not inform the Court whether the application filed by N. Bhadraiah for grant of occupancy rights has been finally disposed of. 21. The learned Single Judge first considered the issue raised in RFA No.476 of 1991, i.e., whether Settlement Deed dated 18.7.1977 executed by Shri D. Yellappa was valid. He referred to a portion of the settlement deed in which the executant has mentioned that the house property is a self- acquired property purchased by him on 01.02.1950 and proceeded to observe: "In the light of the above recital in Ex. P.1 the settlement deed which is extracted above it is too late for the son to come and contend that it is not the self acquired property of their father. The recital coupled with the evidence available on record and the further fact that Susheela the plaintiff has been enjoying the property exclusively would go to show that the plea that the property in question is ancestral property, set up by the son, is not acceptable or believable. This aspect of the case has not been considered by the trial Court and as rightly found by the trial court in the other suit and I have also no hesitation to hold that, the suit property is self acquired property of their father and 2 consequently, the settlement deed executed by her father in valid and binding on the parties." 22. While recording the aforesaid finding, the learned Single Judge did not even refer to the detailed reasons recorded by the trial Court for holding that respondent No.2 has failed to prove that the suit property was self-acquired property of the executant because Sale Deed dated 01.02.1950 was not produced by her. The learned Single Judge also omitted to consider the statement of respondent No. 2 that the suit property was purchased by her father in the name of the mother and she had transferred the same in the name of the father, which enabled him to execute Will dated 28.3.1977 and Settlement Deed dated 18.7.1977. Not only this, the learned Single Judge failed to take note of the fact that the recital contained in the settlement deed was contrary to the evidence of the parties which, as mentioned above, was to the effect that the property had been purchased by the father in the name of the mother and the latter had transferred it to the father after some time and 2 that in the judgment of O.S. No. 4528 of 1980 it was categorically held that Item No. 5 of Schedule `B' properties was joint family property and respondent No.1 was entitled to a share in it. We are surprised that the learned Single Judge ignored the patently contradictory findings recorded by the trial Court in the two suits on the issue of nature of Item No. 5 of Schedule `B' properties and decreed the suit filed by respondent No. 2 by assuming that she had succeeded in proving that her father Shri D. Yellappa was competent to execute the settlement deed. In the process, the learned Single Judge completely overlooked the detailed reasons recorded by the trial Court in O.S. No. 4528 of 1980 after considering the mortgage deed Ex. P13 executed by Shri D. Yellappa and Erappa in favour of the Salem Bank Ltd. for the purpose of taking loan. Therefore, it is not possible to sustain the finding and conclusion recorded by the learned Single Judge in RFA No.476 of 1991. 23. We shall now deal with the appellant's challenge to the decree passed in favour of respondent No.1. It is not in 2 dispute that respondent No.1 had not challenged the findings recorded by the trial Court on various issues framed by it. She also did not file cross-objections in the appeal preferred by the appellant. Though, it is possible to take the view that even in the absence of an appeal having been preferred by respondent No.1, the learned Single Judge could have exercised power under Order 41 Rule 33 CPC, as interpreted by this Court in Nirmala Bala Ghose v. Balai Chand Ghose (1965) 3 SCR 550, Giani Ram and others v. Ramjilal and others (1969) 3 SCR 944 and Banarsi and others v. Ram Phal (2003) 9 SCC 606, after having carefully examined the entire record, we are convinced that the impugned judgment cannot be sustained by relying upon Order 41 Rule 33. In the impugned judgment, the learned Single Judge has included Item No. 3 of Schedule `B' properties in the pool of joint family property despite the fact that the same had been purchased by D. Yellappa by registered sale deed in 1961 in the name of the appellant. The learned Single Judge overturned the finding on this issue by adverting to some portions of the averments 3 contained in para 2 of the written statement filed by the appellant, while ignoring the remaining averments contained in that paragraph as also paragraph Nos. 4 and 6. The learned Single Judge also failed to take note of the fact that the claim made by N. Bhadraiah for grant of occupancy rights in respect of agricultural land was pending before the Land Tribunal. It is not possible for us to approve the approach adopted by the learned Single Judge in dealing with the claim of respondent No. 1 for partition of the suit properties despite the fact that she had failed to prove the case set up in the plaint. A substantial portion of the judgment of the trial Court as well as the learned Single Judge is based on pure conjectures. The learned Single Judge appears to have been unduly influenced by the fact that N. Bhadraiah was the father-in-law of the appellant and both seem to have conspired to deprive the three daughters of the deceased of their shares in the suit properties. 3 24. We may have remanded the matter to the High Court for fresh disposal of the appeals filed by the appellant and respondent No. 2 but keeping in view the fact that the findings recorded in the two suits regarding Item No. 5 of Schedule `B' properties specified in the plaint of O.S. No. 4528 of 1980 are contradictory and substantial portion of the judgment of O.S. No. 4528 of 1980 is based on surmises and conjectures, we feel that ends of justice would be met by setting aside the impugned judgment and remitting the matter to the trial Court for fresh disposal of the suits filed by respondent Nos. 1 and 2. 25. In the result, the appeals are allowed. The impugned judgment is set aside. The judgments of the trial Court in O.S. Nos. 4528 of 1980 and 2062 of 1981 are also set aside and the matter is remitted to the trial Court for fresh disposal of the suits. With a view to avoid the possibility of conflicting findings regarding Item No.5 of Schedule `B' properties specified in the plaint of O.S. No.4528 of 1980, we direct the trial Court to club the two suits and dispose of 3 the same by one judgment. The parties shall be free to file applications for additional evidence and bring on record the orders passed by the Land Tribunal and the High Court in relation to Item Nos. 1 to 4 of Schedule `B' appended to the plaint of O.S. No.4528 of 1980. .....................................J. [G.S. Singhvi] .....................................J. [Asok Kumar Ganguly] New Delhi, January 05, 2012.

NASA = The Appeal must, therefore, succeed. The impugned order of detention dated 31st January, 2011, passed by the District Magistrate, Imphal

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 26 OF 2012 (Arising out of SLP(Crl) No.7926 of 2011) YUMMAN ONGBI LEMBI LEIMA ... APPELLANT Vs. STATE OF MANIPUR & ORS. ... RESPONDENT J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. Under the Detention Order No.Cril/NSA/No.10 of 2011, Imphal, the 31st January, 2011, issued by the 2 District Magistrate, Imphal West District, Manipur, the Appellant's husband, Yumman Somendro @ Somo @ Tiken, was detained under the provisions of the National Security Act, 1980. The said detention order was approved by the Governor of Manipur on 7th February, 2011, in exercise of his powers conferred under Section 3(4) of the aforesaid Act. The order of the Governor of Manipur dated 18th March, 2011, confirming the detention order passed against the husband of the Appellant and fixing the period of detention for 12 months on the subjective satisfaction of the detaining authority that the detenu was likely to be released on bail by the normal criminal Courts in the near future, was challenged on behalf of Yumman Somendro in the Gauhati High Court (Imphal Bench), but without success. This Appeal is directed against the said order of the High Court and the order of detention itself. Earlier, the Appellant's husband had been 3 arrested on 21st March, 1994 in connection with FIR No.478(3)1994 IPS u/s 13 Unlawful Activities (Prevention) Act, but was released on bail by the normal criminal Court. Despite the above, again on 29th June, 1995, the Appellant's husband was arrested in connection with FIR No.450(6)95 under Churachandpur P.S. under Sections 386 and 34 IPC. Though he was released on bail by the normal criminal Court, he was again arrested under Section 13 UA (P) Act in connection with FIR No.190(5)98 and was released on bail on 8th July, 1998. After being released on bail by the normal Criminal Court, Yumman Somendro was again arrested on 16th January, 2011, in connection with FIR No.21(1)11 IPS under Section 302 IPC for the alleged murder of the then Chairman of the Board of Secondary Education, Manipur, Dr. N. Kunjabihari Singh. The Appellant's husband was produced before the Magistrate on 17th January, 2011, who remanded him 4 to police custody till 31st January, 2011. On the said date, he was further remanded to police custody till 2nd February, 2011, and when he was produced before the Chief Judicial Magistrate in connection with the said case, he was served with a copy of the detention order dated 31st January, 2011, issued by the District Magistrate, Imphal West, under the National Security Act, 1980. 3. On 31st January, 2011, the Appellant's husband was served with the grounds of detention under the National Security Act, 1980, under the authority of the District Magistrate, Imphal West. Along with the said order, copies of the documents on which the detaining authority had relied on to arrive at the conclusion that the detention of the Appellant's husband was necessary, was also served on him. 5 4. On a perusal of the grounds of detention, it is clear that the subjective satisfaction of the detaining authority is founded on the belief that after having availed of bail facility, the Appellant's husband could indulge in commission of further prejudicial activities. An alternative preventive measure was, therefore, immediately needed in the circumstances. 5. On behalf of the Appellant, Mr. Sanjay Parikh, relied heavily on the decision of this Court in Rekha Vs. State of Tamil Nadu through Sec. to Govt. [(2011) 4 SCC 260], in which it had been held that in the absence of material particulars in similar cases in which bail had been granted, the subjective satisfaction of the detaining authority was merely a ruse for issuance of the impugned detention order. After considering various decisions of this Court and the views of several jurists and the submissions made on behalf of the 6 parties, the Division Bench of the High Court was of the view that the subjective satisfaction of the detaining authority was based on proper material and the detaining authority was also aware that the detenu was in custody and was likely to be released on bail. The detaining authority, therefore, was of the view that the detention of the detenu was required in order to prevent him from acting in a manner prejudicial to the maintenance of public order as he was likely to be released on bail in the near future by the normal criminal Courts. On the aforesaid reasoning, the Division Bench of the High Court dismissed the Writ Petition filed by the detenu's wife. 6. The main contention urged by Mr. Parikh appearing for the Appellant was that the personal life and liberty of a person was too precious to be allowed to be interfered with in the manner in which it had been done. Mr. Parikh submitted that 7 as would be evident, the detention order was passed on a mere supposition that the Appellant's husband was likely to be released on bail in the near future in connection with the case in respect of which he had been arrested and that in view of such future apprehension, the detention order was sought to be legitimised. Mr. Parikh submitted that not only had the Appellant's husband not applied for bail at any stage, nor was there any indication that he intends to do so, which could give rise to the supposition that in the future there was every likelihood that he would be released on bail. Mr. Parikh submitted that supposition could never take the place of facts which were necessary to establish a case which warranted the detention of a person without any trial. 7. Mr. Parikh pointed out that Yumman Somendro had been arrested in connection with several cases, but had been released on bail in all the said cases 8 till ultimately an order of detention was passed against him under the National Security Act, 1980, on the flimsiest of excuses. Mr. Parikh submitted that if at all the Appellant's husband was alleged to have committed a crime which was punishable under the Indian Penal Code, the same could not be equated with the national security in any way, which warranted the issuance of a detention order under the National Security Act, 1980. 8. Referring to the provisions of Section 3 of the aforesaid Act, Mr. Parikh submitted that the sine qua non for an order of detention to be passed under the National Security Act, 1980, is that the Central Government or the State Government would have to be satisfied that in order to prevent any person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order or from acting in any manner prejudicial to the 9 maintenance of supply of services essential to the community that it was necessary so to do, make an order directing that such person be detained. Mr. Parikh submitted that although the Appellant's husband had been charged with having committed an offence under Section 302 IPC, Section 386 and Section 13 Unlawful Activities (Prevention) Act, there was no material whatsoever to bring the Appellant's husband within the ambit of the grounds enumerated in Sub-Section (2) of Section 3 of the aforesaid Act. Mr. Parikh submitted that the order of detention had been passed not for the reasons enumerated in Sub-Section (2) of Section 3, but since the police was unable to pin any offence against the Appellant's husband on account whereof he could be denied bail by the Courts. 9. In support of his submissions, Mr. Parikh firstly referred to the decision of this Court in Union of India Vs. Paul Manickam & Anr. [(2003) 8 10 SCC 342], wherein while considering the delay in disposal of a representation in the matter of preventive detention, this Court noticed that when the detenu was already in custody, the anticipated and apprehended acts were practical impossibilities, as was the case as far as the Appellant's husband is concerned. This Court further observed that as far as the question relating to the procedure to be adopted in case the detenu is already in custody is concerned, the detaining authorities would have to apply their minds and show their awareness in this regard in the grounds of detention. The necessity of keeping such person in detention under preventive detention laws have to be clearly indicated. It was further observed that the subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision in this regard has to depend on the facts of each case. 11 However, preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability, ordinarily it is not needed when the detenu is already in custody and the detaining authority must be reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities. 10. Mr. Parikh also referred to another decision of this Court in Haradhan Saha Vs. The State of West Bengal & Ors. [(1975) 3 SCC 198], wherein in the case of a preventive detention order passed under the Maintenance of Internal Security Act, 1971, the distinction between preventive detention and criminal prosecution was sought to be defined and 12 it was held that the essential concept of preventive detention is that the detention of a person is not to punish him for something he has done, but to prevent him from doing it. It was further observed that the basis of detention is the satisfaction of the Executive of a reasonable probability or the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. The criminal conviction, on the other hand, is for an act already done which can only be possible by a trial and legal evidence. 11. Referring to the Division Bench order dated 31st January, 2011, Mr. Parikh submitted that the same did not contain any material whatsoever on which the detaining authority could have arrived at a satisfaction that Yumman Somendro had acted in any manner which warranted his detention under the provisions of Section 3(2) of the National Security 13 Act, 1980. The only reason given for issuing such order of detention was that Yumman Somendro, who was in police custody, was likely to be released on bail in the near future by the normal criminal Courts, as, according to him, bails are granted in similar cases by the criminal Courts. Mr. Parikh submitted that this is a case where the detention order passed against the Appellant's husband was without any basis whatsoever and had been resorted to on account of the failure of the police to keep him in judicial custody. 12. On the other hand, appearing for the State of Manipur, Mr. Jaideep Gupta, learned Senior Advocate, repeated the facts indicated earlier to the effect that the Appellant's husband had been arrested in connection with several cases and, in particular, for the murder of Dr. N. Kunjabihari Singh, the then Chairman of the Board of Secondary Education, Manipur, in his office room on 11th January, 2011. Mr. Gupta submitted that it was subsequent to the 14 murder of Dr. N. Kunjabihari Singh that on 31st January, 2011, the order of detention was passed under Section 3 of the aforesaid Act and was served on the Appellant's husband, while he was in judicial custody, on 2nd February, 2011. It was also submitted that thereafter the grounds of detention were provided to the Appellant's husband, as required under Section 8 of the above-mentioned Act to enable him at the earliest opportunity of making a representation against the order to the appropriate Government. The detention order was considered by the State Government which approved the same on 7th February, 2011, and the representation made by Yumman Somendro to the State Government was rejected on 10th February, 2011. The matter was, thereafter, referred to the Advisory Board which came to the conclusion that since Yumman Somendro was a member of the banned organization, Kanglei Yaol Kanna Lup, he was a 15 potential danger to society, whose activities were prejudicial to the maintenance of public order and there was a likelihood that he would continue such activities the moment he was released from detention and accordingly he should be detained for the maximum period of 12 months, as provided under Section 13 of the Act. Mr. Gupta submitted that since the detention order was to end on 31st January, 2012, there could be no reason to interfere with the same prior to its dissolution by efflux of time. 13. Having carefully considered the submissions made on behalf of respective parties, we are inclined to hold that the extra-ordinary powers of detaining an individual in contravention of the provisions of Article 22(2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other 16 than the fact that there was every likelihood of Yumman Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention. Article 21 of the Constitution enjoins that no person shall be deprived of his life or personal liberty except, according to procedure established by law. In the instant case, although the power is vested with the concerned authorities, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as, such a detention order is an exception to the provisions of Articles 21 and 22(2) of the Constitution. 14. When the Courts thought it fit to release the Appellant's husband on bail in connection with the cases in respect of which he had been arrested, the mere apprehension that he was likely to be released on bail as a ground of his detention, is not 17 justified. In addition to the above, the FIRs in respect of which the Appellant's husband had been arrested relate to the years 1994, 1995 and 1998 respectively, whereas the order of detention was passed against him on 31st January, 2011, almost 12 years after the last FIR No.190(5)98 IPS under Section 13 of the Unlawful Activities (Prevention) Act. There is no live link between the earlier incidents and the incident in respect of which the detention order had been passed. 15. As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as 18 to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Indian Penal Code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention. 16. In our view, the detaining authority acted rather casually in the matter in issuing the order of detention and the High Court also appears to have missed the right to liberty as contained in Article 21 of the Constitution and Article 22(2) thereof, as well as the provisions of Section 167 of the Code of Criminal Procedure. 17. The Appeal must, therefore, succeed. The impugned order of detention dated 31st January, 2011, passed by the District Magistrate, Imphal 19 West District, Manipur, in regard to the detention of Yumman Somendro @ Somo @ Tiken son of Y. Roton Singh, is hereby quashed. The Appeal accordingly succeeds. Let the Appellant's husband, Yumman Somendro, be released from custody, if he is not required in connection with any other case. ............................................................J. (ALTAMAS KABIR) ............................................................J. (SURINDER SINGH NIJJAR) ............................................................J. (J. CHELAMESWAR) New Delhi Dated: 04.01.2012

whether the Coal Mines Provident Fund Commissioner is a public officer under the Union of India so as to attract the provisions of Order XXVII Rule 5A of the Code of Civil Procedure.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.41 OF 2012 (Arising out of SLP(C) No.5827 of 2011) COAL MINES P.F. COMMR. THR. BOARD OF TRUSTEE ... APPELLANT Vs. RAMESH CHANDRA JHA ... RESPONDENT J U D G M E N T ALTAMAS KABIR, J. 1. Leave granted. 2. The appellant herein is the Coal Mines Provident Fund Commissioner through the Board of Trustees, constituted under Section 3 of the Coal Mines Provident Fund and Miscellaneous Provisions 2 Act, CMPF Organisation, Dhanbad. The Respondent was appointed as a Lower Division Clerk on 16th January, 1967, by the Chief Commissioner in the service of the Coal Mines Provident Fund Organisation, hereinafter referred to as `CMPFO'. In connection with the forcible occupation of a Type III quarter, a departmental proceeding was commenced against the Respondent and on 16th March, 1979, on being found guilty of the charge framed against him, the Respondent was removed from service. 3. Challenging his removal from service, the Respondent filed Title Suit No.78 of 1979 in the Court of Munsif at Dhanbad. Simultaneously, the Respondent also filed an appeal before the Appellate Authority under Regulation 37 of the Staff Regulations, which was dismissed on 4th March, 1980. 3 4. Meanwhile, in the suit, the learned Munsif, Dhanbad (Jharkhand) framed a preliminary issue in Suit No.78 of 1979 as to whether in the absence of notice under Section 80 of the Code of Civil Procedure, the suit was maintainable? Aggrieved by the said order, the Respondent filed Civil Revision No.341 of 1980(R) in the Ranchi Bench of the Patna High Court, which held that since the Appellant was not a "public officer" as defined in the Code of Civil Procedure, no notice under Section 80 was required to be served upon him before the suit was filed. By its order dated 7th September, 1981, the Ranchi Bench of the Patna High Court set aside the findings of the learned Munsif and held the suit to be maintainable. The Appellant, thereafter, brought the matter to this Court and in Civil Appeal No.1932 of 1982 this Court by its judgment dated 31st January, 1990, reversed the finding of the Appellate Authority upon holding that the Coal Mines Provident Fund Commissioner is a "public 4 officer" within the meaning of Section 2(17) of the aforesaid Code. It was, therefore, settled upto this Court that the Appellant herein was a public officer and that notice under Section 80 was required to be given to him before the suit was filed by the Respondent. 5. On account of the above decision of this Court, on 15th February, 2002, the Respondent withdrew his Title Suit No.78 of 1979 and filed a fresh suit being Title Suit No.102 of 1990 after serving notice upon the Appellant under Section 80 CPC. The Appellant contested the suit which was decreed in favour of the Respondent on 15th February, 2002, by the Second Munsif, Dhanbad, declaring the removal of the Respondent from service to be arbitrary and in violation of the principles of natural justice and the provisions of Article 311 of the Constitution. Holding the same not to be binding on the Respondent/Plaintiff, the Munsif 5 declared that the Respondent would be deemed to be in continuous service in the CMPF Organisation under the Appellant, together with all benefits and privileges. 6. Aggrieved by the order of the learned Munsif decreeing the Respondent's Title Suit No.102 of 1990, the Appellant preferred Title Appeal No.29 of 2002 before the Court of XIIIth Additional District Judge, Dhanbad. In the said Appeal, the Respondent herein raised the question as to whether the suit of the Respondent was bad for non-joinder of the Union of India which was a necessary party in the suit? Accepting the contention of the Appellant, the First Appellate Court held that since the Coal Mines Provident Fund Commissioner was a public officer under the Union of India so as to attract the provisions of Order XXVII Rule 5A and Section 79 of the Code of Civil Procedure, the suit was bad for non-joinder of the Union of India which was a 6 necessary party. The XIIIth Additional District Judge, Dhanbad, accordingly, set aside the order of the learned Munsif, Second Court, Dhanbad, in Title Suit No.102 of 1990 by its judgment and order dated 16th February, 2005. 7. Aggrieved by the order of the First Appellate Authority, the Respondent filed Second Appeal No.134 of 2005 before the Jharkhand High Court at Ranchi. Four years later, on 15th June, 2009, since the Respondent had not delivered vacant possession of the quarters in his possession, the Estate Officer, by his order dated 15th June, 2009, gave the Respondent 15 days' time to vacate the suit premises along with other members of his family. The Respondent, however, did not vacate the quarters as directed, whereupon the Appellant filed I.A. No.1871 of 2009 in the Second Appeal No.134 of 2005 pending before the High Court, for a direction upon the Respondent to vacate the quarters occupied 7 by him. On 24th August, 2009, the Respondent, through his counsel, gave an undertaking to vacate the quarters by 30th November, 2009. In addition, the Estate Officer passed an order in the execution proceedings on 28th August, 2009, for eviction of the Respondent from the quarters in question. On his failure to honour the undertaking given by him to vacate the suit premises, the High Court took strong exception to the violation of the undertaking given by the Respondent and initiated fresh contempt proceedings against him and ordered the Superintendent of Police, Dhanbad, to get the quarters vacated and to hand over vacant possession of the same to the competent authority of the CMPFO, Dhanbad within 48 hours of the receipt of the order. On 19th February, 2010, the High Court heard the contempt case when it was informed that the Respondent had vacated the quarters and had handed over the keys to the concerned authorities on 17th February, 2010. 8 8. It is necessary to indicate at this stage that Second Appeal No.134 of 2006, which had been filed by the Respondent, was admitted on the substantial question of law as to whether the Lower Appellate Court had committed a serious error in dismissing the Respondent/Plaintiff's suit on the ground of non-joinder of the Union of India thereby upsetting the judgment and decree of the Trial Court without deciding the question as to whether the Coal Mines Provident Fund Commissioner is a public officer under the Union of India so as to attract the provisions of Order XXVII Rule 5A of the Code of Civil Procedure. 9. Appearing in support of the Appeal, Mr. J.P. Singh, learned Senior Advocate, urged that the High Court had not properly answered the aforesaid question ignoring the fact that earlier this Court had in Civil Appeal No.1932 of 1982 between the same parties, categorically decided that the Coal 9 Mines Provident Fund Commissioner, though functioning as the Chairman of the Board of Trustees constituted under paragraph 3 of the Coal Mines Provident Fund Act, is a public officer and was, therefore, required to be made a party in the proceedings under Order XXVII Rule 5A of the Code of Civil Procedure, which, inter alia, provides as follows :- "Order 27 Rule 5A - To be joined as a party in suit against a public officer. - Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit." Mr. J.P. Singh urged that since this Court had already decided the issue, there was no further need for the High Court to go into the question once again and decide the same in a manner which was contrary to the law declared by this Court. Mr. Singh submitted that this was in blatant violation of the principles of hierarchy of Courts 10 and also the binding nature of the judgments of the Supreme Court in terms of Article 141 of the Constitution of India. Learned counsel submitted that this was a fit case where the order of the High Court was liable to be set aside since the provisions of Order XXVII Rule 5A of the Code of Civil Procedure were squarely attracted to the facts of the case. 10. The Respondent, who appeared in-person, urged that notwithstanding the earlier decision of this Court in which the Coal Mines Provident Fund Commissioner had been held to be a public officer, such a stand was contrary to the other decisions of this Court in (1) R.P.F. Commissioner Vs. Shiv Kumar Joshi [AIR 2000 SC 331] and (2) Steel Authority of India Ltd. & Ors. Vs. National Union Waterfront Workers and Ors. [2001 (7) SCC 1], wherein it had been held that the Regional Provident Fund Commissioner under the Employees 11 Provident Fund Act and the Employees Provident Fund Scheme, 1952, is not a public officer, though it discharges statutory functions for running the Scheme. It was also observed that the Board of Trustees had not in any way been delegated with the sovereign powers of the State even if it is held that administrative charges were payable by the Central Government. The Respondent urged that the finding of the lower Appellate Court holding the suit to be bad for non-joinder of the Union of India as a party in the Appeal, was patently erroneous, contrary to law and unsustainable. Consequently, the order of the learned lower Appellate Court was set aside and the judgment and decree of the Trial Court in Title Suit No.102 of 1990 was restored. 11. Challenging the order of the learned Single Judge of the Jharkhand High Court, the Appellant herein filed Second Appeal No.134 of 2005, which 12 was ultimately allowed and the finding of the lower Appellate Court that the suit was bad for non- joinder of the Union of India as a party was held to be erroneous and was liable to be set aside. 12. As indicated hereinbefore, it is the said judgment and order of the High Court of Jharkhand which is the subject matter of the present Civil Appeal. 13. Having considered the submissions made on behalf of the Appellant and the Respondent appearing in-person, we are of the view that the judgment and order of the High Court does not require any interference, particularly when the issue raised in this Appeal has already been decided by this Court in Civil Appeal No.1932 of 1982, wherein it was categorically held that the Coal Mines Provident Fund Commissioner is a "public servant" within the meaning of Section 2(17) of the Code of Civil Procedure. It cannot be forgotten 13 that the First Suit filed by the Respondent, being Title Suit No.78 of 1979, was withdrawn on the ground that it had been held that a notice under Section 80 of the Code was necessary since the Coal Mines Provident Fund Commissioner was a public servant and, thereafter, a second suit, being Title Suit No.102 of 1990, was filed by the Respondent upon due notice to the Coal Mines Provident Fund Commissioner. In view of the aforesaid finding regarding the status of the Coal Mines Provident Fund Commissioner, the First Appellate Court erred in reversing the finding of the Trial Court on this score. It was not open to the First Appellate Court to re-open the question which had been decided by this Court, at least on the same submissions which had been made earlier that though the officer concerned was an employee of the Central Government, he no longer enjoyed the said status when he was discharging the functions of the 14 Chairman of the Board of Trustees of the Coal Mines Provident Fund Scheme. 14. We, therefore, have no hesitation in holding that in view of the fact that the Coal Mines Provident Fund Commissioner has been held by this Court to be a public officer, it was necessary to join the Union of India as a party in the suit in view of the provisions of Order XXVII Rule 5A of the Code of Civil Procedure. We, accordingly, see no reason to interfere with the judgment and order appealed against and the Appeal filed by the Coal Mines Provident Fund Commissioner is dismissed, though without any order as to costs. ............................................................J. (ALTAMAS KABIR) ............................................................J. (SURINDER SINGH NIJJAR) New Delhi .........................................................J. Dated: 04.01.2012 (J. CHELAMESWAR)