Order 21 Rules 94 and 95 of the Code of Civil Procedure (for short ‘CPC’)-When the auction is for such a large amount, running in crores of rupees, nobody can expect the auction purchaser to pay the amount in cash on the fall of the hammer. So far as the instant case is concerned, facts would reveal that the auction purchaser had paid Rs.2.40 crores, may not be in cash, but by way of drafts on 8.10.2010 and the balance amount i.e. 75 % of the bid maount was also paid on 23.10.2010, consequently, in our view, the auction purchaser had complied with the provisions of Order 21 Rules 84 and 85 CPC.=“immediately” which occurs in Order 21 Rule 84 CPC, as follows: “30. The term “immediately”, therefore, must be construed having regard to the aforementioned principles. The term has two meanings. One, indicating the relation of cause and effect and the other, the absence of time between two events. In the former sense, it means proximately, without intervention of anything, as opposed to “immediately.” In the latter sense, it means instantaneously. 31. The term “immediately”, is thus, required to be construed as meaning with all reasonable speed, considering the circumstances of the case. (See Halsbury’s Laws of England, 4th Edition, Vol. 23, para 1618, p. 1178).”- A Constitution Bench of this Court in Jammulu Ramulu (supra) had occasion to consider the scope of Order 21 Rule 92(2) and Rule 89 CPC. Overruling P. K. Unni (supra), this Court held as follows: “15. A plain reading of Order 21 Rule 92 CPC shows that the court could either dismiss an application or allow an application. Order 21 Rule 89 CPC prescribes no period either for making the application or for making the deposit. The Limitation Act also prescribes no period for making a deposit. However, Article 127 of the Limitation Act prescribes a period within which an application to set aside a sale should be made. Earlier, this was 30 days, now it has been enhanced to 60 days. Unless there was a period prescribed for making a deposit, the time to make the deposit would be the same as that for making the application. This is so because if an application is made beyond the period of limitation, then a deposit made at that time or after that period would be of no use. 16. Normally, when the legislature wishes to prescribe a period for making a deposit, it does so by using words to the effect “no deposit shall be made after … days” or “a deposit shall be made within … days” or “no application will be entertained unless a deposit is made within … days”. Order 21 Rule 92(2) CPC does not use any such expressions. The relevant portion of Order 21 Rule 92(2) CPC reads as follows: “92. (2) Where such application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within thirty days from the date of sale, … the court shall make an order setting aside the sale:” Thus Order 21 Rule 92(2) CPC is only taking away discretion of the court to refuse to set aside the sale where an application is made and allowed and the [pic]deposit has been made within 30 days from the date of sale. It is thus clear that Order 21 Rule 92(2) CPC is not prescribing any period of limitation within which a deposit has to be made. 17. Viewed in this context the intention of the legislature in extending the period under Article 127 of the Limitation Act may be seen. It is very clear from the Statement of Objects and Reasons, which have been set out hereinabove, that the period under Article 127 of the Limitation Act was extended from 30 days to 60 days in order to give more time to persons to make deposits. The legislature has noted that the period of 30 days from the date of sale was too short and often caused hardships because judgment-debtors usually failed to arrange for money within that period. The question then would be whether by merely amending Article 127 of the Limitation Act the legislature has achieved the object for which it increased the period of limitation to file an application to set aside sale.”

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO.  8652  OF 2012
               [Arising out of SLP (Civil) No. 34402 of 2011]

Ram Karan Gupta                                    .. Appellant
                                   Versus
J. S. Exim Ltd. and Ors.                                 .. Respondents

                               J U D G M E N T

K. S. Radhakrishnan, J.

1.    Leave granted.

2.    This matter arises in execution and
this appeal has been preferred  by
one of the judgment debtors challenging the common final judgment and  order
dated 11.11.2011 passed by the High Court of Delhi in C. M. (M) No. 1093  of
2011 and E.F.A. No. 15 of 2011.

3.    Decree holders and judgment  debtors  are  co-sharers  of  a  property
bearing No. 1-87, Ashok Vihar, Delhi (hereinafter referred to as  the  ‘suit
property’).  
Late Rameshwar Dass Gupta filed a suit  for  partition  of  the
suit property and 
after passing a preliminary decree,  a  final  decree  was
passed and 
the suit property was ordered to be sold in  public  auction  and
sale proceeds were directed to be distributed among the shareholders.

4.     Decree  holders  filed  execution  petition  and  vide  order   dated
20.11.2009,  the  auction  sale  was  scheduled  to  be  held  on  9.1.2010.
However,
objector/J.D.2 Shri Ram Karan Gupta  (appellant  herein)  moved  an
application seeking stay of auction sale scheduled to be  held  on  9.1.2010
and a joint application  was  moved  by  the  decree  holders  and  judgment
debtors, wherein it was disclosed that J.D.2  had  agreed  to  purchase  the
suit property, as such, the auction sale be  adjourned.
  Later  on,  J.D.2
failed to comply with the  terms  and  conditions  of  the  Compromise  and,
therefore, a fresh process for auction sale was issued and the auction  sale
was scheduled to be held on 4.7.2010.
Due to various reasons,  it  did  not
materialize.   Later, auction sale was scheduled to  be  held  on  8.10.2010
and the auction was completed and
the auction purchaser M/s J.S.  Exim  Ltd.
(1st respondent herein) was found to be the highest bidder for a bid  amount
of Rs.9.60 crores.   
The auction purchaser deposited Rs.2.40 crores  by  way
of 27 demand drafts of even date towards 25% of the bid amount.   
The  Court
Auctioneer placed on record the record of the auction  proceedings  held  on
8.10.2010.

5.    Later, the auction purchaser moved an application for  depositing  the
remaining 75% of the sale price/bid amount of  the  suit  property  and  the
application was allowed and 75% of the sale  amount  was  deposited  by  the
auction purchaser on 23.10.2010 in the State  Bank  of  India,  Tees  Hazari
Court, Delhi.

6.    The auction purchaser, later, moved  an  application  under  Order  21
Rules 94 and 95 of the  Code  of  Civil  Procedure  (for  short  ‘CPC’)  for
confirmation  of  sale.  

J.D.2,  the  appellant  herein,  then  sought  for
cancellation of the auction held  on  8.10.2010  stating  that  the  auction
purchaser had failed to deposit 25% of the bid amount on completion  of  the
auction sale proceedings.   Further,  it  was  also  pointed  out  that  the
auction purchaser had enclosed the drafts  dated  7.10.2010  issued  by  the
Indian Overseas Bank, Chennai,  but  the  said  bank  drafts  had  not  been
enclosed by the Court Auctioneer with her report.   It  was  also  contended
that the auction  was  vitiated  due  to  the  violation  of  the  mandatory
provisions of Order 21 Rule 84 and 85 CPC.

7.    The auction purchaser refuted  all  those  contentions  and  submitted
that 25% of the bid amount was  deposited  on  the  date  of  auction  after
conclusion of the auction sale proceeding and the remaining 75% of  the  bid
amount was deposited on 23.10.2010.  Further, it was pointed  out  that  the
auction purchaser had got prepared the demand drafts of  Rs.2.50  crores  in
the name of the Court Auctioneer. But, later on, it  was  disclosed  by  the
Court Auctioneer that the demand drafts should be issued in the name of  the
competent authority, consequently, the auction purchaser  got  prepared  the
said demand drafts on 8.10.2010 and  handed  over  the  same  to  the  Court
Auctioneer.  
Further, it was also pointed  out  that  the  words  occurring
“shall pay” and “immediately” do not mean that the 25%  of  the  bid  amount
should be paid at the fall of the hammer. 
 Further, it was also pointed  out
that the auction sale could be set aside only  on  the  ground  of  material
irregularity or fraud  that  had  resulted  in  substantial  injury  to  the
applicant.

8.    The Executing Court elaborately  considered  the  various  contentions
raised by the parties and perused the documents and took the view 
 that  the
auction purchaser had deposited 25% of the bid amount as mandated  by  Order
21 Rule 84 CPC.   Further, it was also held
 that the remaining  75%  of  the
bid amount was also deposited by the  auction  purchaser  on  23.10.2010  in
terms of Order  21  Rule  85  CPC.    
The  Court,  therefore,  rejected  the
objection  raised  by  the  appellant/judgment  debtor  and  confirmed   the
auction, vide its order dated 24.3.2011.

9.    The appellant/judgment debtor, aggrieved by the said order,  preferred
an appeal being E.F.A. No. 15 of 2011 and C.M. (M) No. 1093 of  2011  before
the High Court of Delhi.
 Before the  High  Court,  contention  was  raised
that the auction purchaser had not complied with the mandatory  requirements
of Order 21 Rules 84 and 85 CPC and that 25%  of  the  bid  amount  was  not
deposited on the fall of the  hammer  and,  consequently,  the  entire  sale
transaction was void and liable to be  set  aside.  
Further,  it  was  also
stated that since the appellant was one of the  family  members,  he  should
have been permitted to get the sale executed in his favour, since he  had  a
pre-emptive right and he was ready and willing  to  deposit  the  amount  of
Rs.9.60 crores, so as to avoid the sale.

10.   The High Court  considered  the  various  contentions  raised  by  the
parties and concurred with the views expressed by the Executing  Court  that
the auction purchaser had complied with Order 21 Rules 84 and 85  CPC.
The
High Court noticed that the auction purchaser had deposited 25% of  the  bid
amount as mandated by Order 21 Rule 84 CPC and that he  had  also  paid  the
remaining 75% of the bid amount within the statutory  period,  in  terms  of
Order 21 Rule 85 CPC.
The High Court, therefore, upheld the  order  of  the
trial Court  confirming  the  sale  and  directed  the  parties  to  execute
documents of title in favour of the auction  purchaser.   Aggrieved  by  the
same, this appeal has been preferred.

11.    Shri  Ranjit  Kumar,  learned  senior  counsel  appearing   for   the
appellant, submitted
 that the auction purchaser had not  complied  with  the
mandatory provisions of Order 21 Rules 84 and 85 CPC,  inasmuch  as  he  did
not deposit 25% of the bid amount immediately on the  fall  of  the  hammer.
It was pointed out that  25%  of  the  bid  amount  was  deposited  only  on
11.10.2010 and non-compliance of the above  mentioned  statutory  provisions
has vitiated the auction sale.
In support of his contentions, reliance  was
placed on the judgments of this Court in Manilal Mohanlal  Shah  and  Others
v. Sardar Sayed Ahmed Sayed Mahmad and another AIR 1954 SC  349  and  Balram
son of Bhasa Ram v. Ilam Singh and others AIR 1996 SC 2781.
Learned  senior
counsel submitted  that  the  appellant  had  preferred  an  application  on
1.12.2010 before the Executing Court to allow the appellant to  deposit  the
entire amount of the sale, after deduction of his  one-forth  share  in  the
property, and  handover  the  possession  to  him.
 Learned  senior  counsel
submitted that the application was filed before the  confirmation  of  sale,
but was not considered by  the  Executing  Court.  
Learned  senior  counsel
submitted that only if the application is allowed under Order 21 Rule  92(2)
CPC, the appellant could deposit the amount within the  time  stipulated  in
the said provision.
Learned senior counsel  submitted  that  the  Executing
Court has committed an error in confirming the sale before entertaining  the
application and  allowing  the  same,  so  that  the  appellant  could  have
deposited the entire amount.
 Learned senior counsel  submitted  that  even
now the appellant is willing to pay  the  entire  amount  deposited  by  the
auction purchaser including interest.
 Further, it was also  submitted  that
the appellant is willing even to pay Rs.1 crore more so  that  he  can  save
the property where he is  residing.
 Learned  senior  counsel  also  placed
reliance on a Constitution Bench judgment of this Court in Dadi  Jagannadham
v. Jammlu Ramulu and Others (2001) 7 SCC 71 and
pointed out  that  there  is
no strict time limit in depositing the amount and the  question  of  deposit
arises only after  the  application  is  allowed.
 Learned  senior  counsel
pointed out that rationale in P. K. Unni v. Nirmala  Industries  and  others
(1990) 2 SCC 378 and the views expressed in  that  judgment
that  Order  21
Rule 92(2) CPC prescribed a period of limitation, was found to be  incorrect
in Jammlu Ramulu (supra).
 Learned senior counsel also placed  reliance  on
M. Noohukan v. Bank  of  Travancore  and  another  (2008)  11  SCC  161  and
submitted that this Court, in the similar circumstances,  had  extended  the
time for depositing the amount.  
Learned  senior  counsel  submitted  that,
under such circumstances, the prayer for depositing the  amount,  as  stated
above, be allowed.

12.    Shri  C.  A.  Sundram,  learned  senior  counsel  appearing  for  the
respondent,  submitted  that  this  Court  shall  not  interfere  with   the
concurrent findings rendered by the Courts below.
 Learned  senior  counsel
submitted that the auction purchaser deposited 25%  of  the  bid  amount  on
8.10.2010 and further deposited the remaining amount i.e.  75%  of  the  bid
amount on 23.10.2010.
 Learned senior counsel pointed out that  the  mandate
of Order 21 Rules 84 and 85 CPC was complied with in letter and  spirit  and
the Court Auctioneer was satisfied that the entire  amount  had  been  paid.
Learned senior counsel submitted
 that the word  “immediately”  occurring  in
Order 21 Rule 84 CPC was expanded by this Court in Rosali V. v.  Talco  Bank
and others AIR 2007 SC 998.  
It was pointed out that, in the present  case,
27 drafts of Rs.2.40 corores had  been  paid  to  the  Court  Auctioneer  on
8.10.2010, which is reflected in the report of the  Court  Auctioneer  dated
8.10.2010.
The balance amount was also deposited in accordance  with  Order
21 Rule 85 CPC.
 Learned senior counsel submitted  that  there  is  no  bona
fide in the offer made by the appellant and, if, had  any  genuine  interest
for avoiding the sale, the amount offered should have been deposited  before
the confirmation of sale and within the time stipulated  in  Order  21  Rule
92(2) CPC.

13.   We are in full agreement with the order passed by the Executing  Court
as well as the High Court that the auction purchaser had  deposited  25%  of
the amount on 8.10.2010.  
 When the auction is  for  such  a  large  amount,
running in crores of rupees, nobody can expect the auction purchaser to  pay
the amount in cash on the fall of the hammer. 
So far as the instant case  is
concerned, facts would reveal that the auction purchaser  had  paid  Rs.2.40
crores, may not be in cash, but by  way  of  drafts  on  8.10.2010  and  the
balance amount i.e. 75 % of the bid maount  was  also  paid  on  23.10.2010,
consequently, in our view, the  auction  purchaser  had  complied  with  the
provisions of Order 21 Rules 84 and 85 CPC.

14.   We may, in this connection, refer to the judgment  of  this  Court  in
Talco Bank (supra), wherein this Court has extended the meaning of the  term
“immediately” which occurs in Order 21 Rule 84 CPC, as follows:
           “30.  The  term  “immediately”,  therefore,  must  be  construed
      having regard to the aforementioned  principles.   The  term  has  two
      meanings. One, indicating the relation of cause  and  effect  and  the
      other, the absence of time between two events. In the former sense, it
      means proximately, without intervention of  anything,  as  opposed  to
      “immediately.”  In the latter sense, it means instantaneously.


           31.   The term “immediately”, is thus, required to be  construed
      as meaning with all reasonable speed, considering the circumstances of
      the case.  (See Halsbury’s Laws of England, 4th Edition, Vol. 23, para
      1618, p. 1178).”


Learned senior counsel appearing for  the  appellant,  as  we  have  already
indicated, submitted
that  the  Executing  Court  should  have  allowed  his
application dated 1.12.2010 since he preferred that  application  within  60
days of the date of sale,  but  could  not  deposit  the  amount  since  the
application filed in terms of Order 21 Rule  92(2)  CPC  was  neither  dealt
with nor allowed.
Order 21 Rule 89 CPC, it may  be  noted,  gives  a  final
opportunity to the judgment debtor to save his property by setting the  sale
aside before the confirmation upon the  terms  of  satisfying  the  decretal
debt and of paying compensation to the auction purchaser.  
 Rules 89  to  92
of Order 21 deal with setting aside of sale.  When a  property  is  sold  in
execution of a decree and an application for setting aside the sale  can  be
made  under  those  provisions  by  the  persons  affected  on  the  grounds
mentioned  therein.  
 Such  an  application  has  to  be  made  within   the
prescribed period of limitation, the provisions  mentioned  therein  are  in
the nature of concession and those  provisions  must  be  strictly  complied
with before a sale is set aside before confirmation. 
On  setting  aside  the
sale under Order 21 Rule 89 CPC the property continues to  be  the  property
of the judgment debtor.
15.   This Court in Tribhovandas Purshottamdas Thakkar  v.  Ratilal  Motilal
Patel and others AIR 1968 SC 372 
held that the rule is intended to confer  a
right upon the judgment debtor, even after the property is sold, to  satisfy
the claim of the decree holder and to compensate the  auction  purchaser  by
paying him 5 per cent of the purchase-money.  
In Challamane  Huchha  Gowda
v. M. R. Tirumala and another (2004) 1 SCC 453,
this  Court  held  that  it
gives a final opportunity to put an end to the dispute, at the  instance  of
the judgment debtor before the sale is confirmed by the Executing Court  and
enables him to save his property.
Order  21  Rule  89  CPC  is,  therefore,
intended to (i) to save the judgment debtor from the threatened  deprivation
of his property, (ii) to satisfy the claim of the decree  holder  and  (iii)
to compensate the auction purchaser.
 Rule 89 of Order 21  CPC  also  applies
to a sale in execution of a decree for payment of  money  and  an  order  of
sale of property under the Partition Act, 1893 is a deemed decree under  the
Code and, therefore, an application for setting aside sale in  execution  of
such decree is maintainable.
 It also applies to a decree passed  in  terms
of an award in a Partition suit, so also to a sale in execution of  mortgage
decree.  
Order 21 Rule 92 CPC provides for confirmation of  sale,  as  also
setting aside the sale, which reads as follows:

           “92. Sale when to become absolute or be set aside.- (1) Where no
      application is made under Rule 89, Rule 90 or Rule 91, or  where  such
      application is made and disallowed, the  court  shall  make  an  Order
      confirming the sale, and thereupon the sale shall become absolute:


           Provided that, where any property is  sold  in  execution  of  a
      decree pending the final disposal of any claim to, or any objection to
      the attachment of, such property, the court  shall  not  confirm  such
      sale until the final disposal of such claim or objection.


           (2) Where such application is made and allowed,  and  where,  in
      the case of an application under Rule 89, the deposit required by that
      rule is made within sixty days from the date  of  sale,  or  in  cases
      where the amount deposited under Rule 89  is  found  to  be  deficient
      owing to any clerical or arithmetical  mistake  on  the  part  of  the
      depositor and such deficiency has been made good within such  time  as
      may be fixed by the court, the court shall make an Order setting aside
      the sale:


           Provided that no order  shall  be  made  unless  notice  of  the
      application has been given to all persons affected thereby:


           Provided further that the deposit under  this  sub-rule  may  be
      made within sixty days in all such cases where the  period  of  thirty
      days, within which the deposit had to be made, has not expired  before
      the commencement of the Code of Civil Procedure (Amendment) Act, 2002.



               (3) No suit to set aside an Order made under this rule  shall
      be brought by any person against whom such Order is made.


           (4) Where a third party challenges the  judgment-debtor’s  title
      by filing a suit against the auction-purchaser, the decree-holder  and
      the judgment-debtor shall be necessary parties to the suit.


           (5) If the suit referred to in  sub-rule  (4)  is  decreed,  the
      Court shall direct the  decree-holder  to  refund  the  money  to  the
      auction-purchaser, and where such an order  is  passed  the  execution
      proceeding in which the sale had been held  shall,  unless  the  Court
      otherwise directs, be revived at the  stage  at  which  the  sale  was
      ordered.

Sub-rule (1) of Rule 92 deals with cases where no application to  set  aside
the sale is made or such an application is  made  and  disallowed.   In  all
these cases, the Court shall make an order confirming  the  sale.   Sub-rule
(2) of Rule 92 covers those cases where an application for setting aside  is
made and allowed or in an application under Rule 89  requisite  deposit  has
been made, in all such cases, the Court is bound to set aside the sale.

16.   A Constitution Bench of this  Court  in  Jammulu  Ramulu  (supra)  had
occasion to consider the scope of Order 21  Rule  92(2)  and  Rule  89  CPC.
Overruling P. K. Unni (supra), this Court held as follows:

           “15. A plain reading of Order 21 Rule  92  CPC  shows  that  the
      court could either dismiss an application  or  allow  an  application.
      Order 21 Rule 89 CPC  prescribes  no  period  either  for  making  the
      application or  for  making  the  deposit.  The  Limitation  Act  also
      prescribes no period for making a deposit. However, Article 127 of the
      Limitation Act prescribes a period within which an application to  set
      aside a sale should be made. Earlier, this was 30  days,  now  it  has
      been enhanced to 60 days. Unless there was  a  period  prescribed  for
      making a deposit, the time to make the deposit would be  the  same  as
      that for making the application. This is so because if an  application
      is made beyond the period of limitation, then a deposit made  at  that
      time or after that period would be of no use.


           16. Normally, when the legislature wishes to prescribe a  period
      for making a deposit, it does so by using  words  to  the  effect  “no
      deposit shall be made after … days” or “a deposit shall be made within
      … days” or “no application will be entertained  unless  a  deposit  is
      made within … days”. Order 21 Rule 92(2) CPC does  not  use  any  such
      expressions. The relevant portion of Order 21 Rule 92(2) CPC reads  as
      follows:
                 “92. (2) Where such application is made  and  allowed,  and
           where, in the case of an application under Rule 89, the  deposit
           required by that rule is made within thirty days from  the  date
           of sale, … the court shall  make  an  order  setting  aside  the
           sale:”
      Thus Order 21 Rule 92(2) CPC is only taking  away  discretion  of  the
      court to refuse to set aside the sale where an application is made and
      allowed and the [pic]deposit has been made within  30  days  from  the
      date of sale. It is thus clear that Order 21 Rule  92(2)  CPC  is  not
      prescribing any period of limitation within which a deposit has to  be
      made.


           17. Viewed in this context the intention of the  legislature  in
      extending the period under Article 127 of the Limitation  Act  may  be
      seen. It is very clear from the  Statement  of  Objects  and  Reasons,
      which have been set out hereinabove, that the period under Article 127
      of the Limitation Act was extended from 30 days to 60 days in order to
      give more time to persons to make deposits. The legislature has  noted
      that the period of 30 days from the date of sale  was  too  short  and
      often caused hardships  because  judgment-debtors  usually  failed  to
      arrange for money within that  period.  The  question  then  would  be
      whether by merely amending Article  127  of  the  Limitation  Act  the
      legislature has achieved the object for which it increased the  period
      of limitation to file an application to set aside sale.”


The Constitution Bench held that all that Order 21 Rule 92(2)  CPC  provides
is that if the deposit is made within 30 days from the date of sale  and  an
application is filed then the court would have  no  discretion  but  to  set
aside the sale.  The Court held that that does not mean that if the  deposit
is made after 30 days the court could not  entertain  the  application.   If
the deposit is made beyond the period of 30 days, but within the  period  of
60 days, then it will be within the discretion of the court whether  or  not
to grant the application.

17.   Law  Commission  in  its  89th  report,  para  42.35,  page  219,  Law
Commission report 139th report paras 3.1 to 3.6 and 4.1  to  4.5  considered
the period of limitation of thirty days for depositing  the  amount  to  set
aside  sale  as  specified  in  sub-rule  (2)  of  Rule  92  and   suggested
enlargement of period of sixty days so as to be consistent with Section  127
of the Limitation Act.  Following that the second proviso  to  sub-rule  (2)
of Rule 92, as inserted by the Code  of  Civil  Procedure  (Amendment)  Act,
2002, clarified that the amendment would  also  apply  to  all  those  cases
where the period of thirty days within which the deposit was required to  be
made had not expired before the commencement of  the  Amendment  Act,  2002.
The amendment which came into force w.e.f. 01.07.2002 extends the period  of
deposit up to sixty days, which is in conformity with  Section  127  of  the
Limitation Act, as amended by the Code of Civil  Procedure  (Amendment)  Act
1976.

18.   In Challamane Huchha Gowda (supra), the Court  was  primarily  dealing
with the question as to whether a mode of application  has  been  prescribed
for making an application for setting aside the sale.  The Court noted  that
Order 21 Rule 89 CPC requires an application to be made  for  setting  aside
the sale, nothing is stated in the rule regarding the  mode  of  application
and then held that purshis contains an implicit  prayer  for  setting  aside
the sale and the absence of a formal application does  not  amount  to  non-
compliance with the provision.  The above view  expressed  by  certain  High
Courts was found favour by this Court in Tribhovandas Purshottamdas  Thakkar
(supra) and this Court held that Order 21 Rule 89 CPC does not provide  that
the application in a particular form shall be filed to set aside the sale.

19.   We notice, in this  case,
 there  was  no  reference  at  all  to  the
provisions of Order 21  Rule 89 in the application filed  by  the  appellant
on 1.12.2010, be that it may, even then the appellant had not complied  with
the mandatory requirements of depositing the amount.   
Clause  (a)  of  Sub-
rule (1) of Rule 89 of Order 21 requires the applicant to deposit  in  Court
5 per cent of the purchase money  for  payment  to  the  auction  purchaser.
Deposit of the requisite amount in the Court is a condition precedent  or  a
sine qua non to an application for setting aside the execution of  sale  and
such a amount must be paid within a period specified in the rule and if  the
deposit is made after the time limit, the  application  must  be  dismissed.
The deposit made under Rule 89 of Order 21 CPC should be  unconditional  and
unqualified and the decree holder or the auction purchaser  should  be  able
to get the amount at once.

20.   We have already indicated  that  the  rule  is  in  the  nature  of  a
concession shown to the judgment debtor, so he has to strictly  comply  with
the requirements thereof and a sale will not be set aside unless the  entire
amount specified in rub-rule (1) is deposited within 60 days from  the  date
of the sale and, if it is  beyond  60  days,  the  Court  cannot  allow  the
application.  
We have already found that the appellant-judgment  debtor  did
not pay  the  amount  within  the  stipulated  time  and  he  only  made  an
application on 1.12.2010 without depositing the amount and hence  the  Court
cannot entertain such an application and bound to confirm  the  sale  which,
in this case, the Court did on 23.10.2010.

21.   We, therefore, find no  error  in  the  judgment  and  orders  of  the
Executing Court as well as the High Court and the belated offer made by  the
appellant for depositing the amount now cannot be entertained and  the  same
is rejected.

22.   The appeal, therefore, lacks in merits  and  the  same  is  dismissed,
with no order as to costs.



                                                            ………………………………..J.
                                          (K.S. Radhakrishnan)







                                                           …………………………………..J.
                                             (Dipak Misra)
New Delhi,
December 3, 2012

Juvenile Justice (Care and Protection of Children) Act, 2000.” “Age determination inquiry” contemplated under Section 7A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year. 33. Once the court, following the abovementioned procedures, passes an order, that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in sub-rule (5) of Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of Rule 12. Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination.” 13. We are of the view that in a case where genuineness of the school leaving certificate has not been questioned, the Sessions Court and the High Court were not justified in placing reliance on certain statements made by Parkash Kaur, mother of the accused in the cross-examination. The Sessions Court also committed an error in placing reliance on the certificate issued by the village Chowkidar who was examined as RW2. When the law gives prime importance to the date of birth certificate issued by the school first attended, the genuineness of which is not disputed, there is no question of placing reliance on the certificate issued by the village Chowkidar. 14. We may indicate that all these legal aspects has already been dealt with in Ashwani Kumar Saxena case (supra), hence, further elucidation of the question raised does not arise. The issue raised, in our view, is fully covered by the abovementioned judgment. In such circumstances, we are inclined to allow this appeal and set aside the order passed by the Sessions Court dated 16.04.2011 and the impugned judgment and order dated 07.07.2011in Criminal Revision No. 1440 of 2011. We hold that the appellant was a juvenile on the date of the incident and has to be tried by the Juvenile Justice Board. The Sessions Court is directed to make over the files to the Juvenile Justice Board to proceed with the trial, so far as the appellant is concerned.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1971  OF 2012
               @ Special Leave Appeal (Crl.) No. 9343 of 2011

Jodhbir Singh                                            .. Appellant(s)
                                   Versus
State of Punjab                                           .. Respondent(s)

                               J U D G M E N T


K. S. Radhakrishnan, J.


1.    Leave granted.

2.    The appellant and one Sandeep Singh were apprehended  by  the  SP/Anti
Smuggling  Squad  on  26.09.2012  near  Gurdwara  Atari  Sahib  Sulthanwind,
Amritsar while they were waiting for a party to deliver the  consignment  of
2 kg Heroin on their Motor  Cycle  No.  PB-02-BC-1089.   FIR  No.  26  dated
26.09.2010 was registered by PS State Special Operation Cell under  Sections
21, 25, 29, 61, 85 of the  NDPS  Act.   An  application  was  filed  by  the
appellant before the Judge, Special Court, Amritsar  for  sending  the  case
against him to the Juvenile Justice Board for trial.

3.    The appellant stated before the Judge, Special  Court,  Amritsar  that
he was a juvenile on  the  date  of  the  incident  since  he  was  born  on
20.07.1996.  A certificate dated 19.10.2010 issued by  the  Government  High
School, Naushehra Cheema (Tarn Taran) was also produced in  support  of  his
contention that his date of  birth  was  20.07.1996.   The  application  was
opposed by the State stating that during interrogation,  he  had  stated  he
was born in the year 1991 and as such he was not a juvenile on the  date  of
the incident.  Further, reference was also made to  the  certificate  issued
by the Chowkidar of the village which showed that the date of birth  of  the
appellant was 05.07.1993.

4.    After hearing the counsel on either side at length  and  perusing  the
records, the Sessions Court  passed  the  following  order  which  reads  as
follows:

      “A perusal of the record has shown that as per the certificate  Ex.A1
      passing of 5th Class, issued  by  the  Education  Department,  Punjab
      shows the date of birth of the applicant-accused Jodhbir Singh to  be
      20.07.1996 AW1 Parkash Kaur,  mother  of  the  applicant-accused  has
      mentioned the date of birth of Jodhbir Singh to be  20.07.1996.   She
      has stated that the age of Jodhbir Singh is 14 ½ years.  However,  in
      her  cross  examination,  the   said   witness   Parkash   Kaur   had
      categorically mentioned the date of birth  of  Jodhbir  Singh  to  be
      20.07.1996 has feigned  for  ignorance  regarding  the  date  of  her
      marriage.  Regarding her elder son, she had stated that he  was  born
      on 15 Magh, but she could not tell year of birth of  her  eldest  son
      Gursahib Singh.  She has also not been able to tell the date of birth
      of Jodhbir Singh during the course of her  cross  examination  though
      she  had  specifically  told  the  date  during  the  course  of  her
      examination in chief.  Even she could not tell after how  many  years
      of her marriage Jodhbir Singh was  born.   This  shows  that  Parkash
      Kaur, mother of the applicant-accused  Jodhbir  Singh  is  not  aware
      about the date of birth of her son as well as his  age.   RW2  Jagjit
      Singh, Chokidar has stated that as per the record  of  his  Chowkidar
      register, the date of birth of  Jodhbir  Singh  was  5.7.1993.   Even
      here, in the document Ex.RW2/A there is cutting.  All this shows that
      the document Ex.A1 and the document Ex.RW2/A  are  contrary  to  each
      other not showing the real date of birth of the accused.  The  record
      of the criminal case bearing FIR No.26 dated  26.09.2010  shows  that
      during the course of interrogation, the  accused  had  not  disclosed
      himself to be a minor or juvenile.  Though his maternal uncle  Dalbir
      Singh also informed regarding the complicity of the  accused  in  the
      commission of the offence under Sections 21, 25, 29 of the NDPS  Act,
      but neither his maternal uncle nor his parents had  told  the  police
      that applicant-accused  Jodhbir  Singh  was  minor  at  the  time  of
      commission of the offence.   In  the  identification  certificate  of
      accused Jodhbir Singh, his age has been mentioned as 19/20 years.  In
      such like circumstances, the school certificate as well as the  entry
      in the register of the chowkidar  regarding  date  of  birth  of  the
      applicant-accused Jodhbir Singh does not seem to be true and that the
      said record seems to be maneuvered only to get undue benefit  of  the
      provision of Juvenile Justice (Care and Protection of Children)  Act,
      2000.”



5.    The appellant, aggrieved by the above order, filed  Criminal  Revision
No. 1440 of 2011 before the High Court of Punjab and Haryana at  Chandigarh.
 The High Court concurred with the views expressed  by  the  Sessions  Court
and heavily relied on the following circumstances to  dismiss  the  revision
petition on 07.07.2011.

        “(i)      The mother of the petitioner Parkash Kaur while  appearing
        as AW1 has not been able to tell the date of birth of the petitioner
        during the cross-examination.  She was not even able to  tell  after
        how many years of her marriage the petitioner was born.

        (ii)      The petitioner himself during the course of  interrogation
        had not disclosed himself to be minor or juvenile.

        (iii)     His maternal uncle Dalbir Singh had also not supplied  any
        information to the police regarding the age.

        (iv)      In the  identification  certificate,  the  petitioner  has
        given his age as 19/20 years.”




6.    Aggrieved by the said order, this appeal has been preferred.

7.    Mr. Siddharth Mittal, learned  counsel  appearing  for  the  appellant
submitted that the Sessions  Court  has  committed  a  grave  error  in  not
properly appreciating the scope of Section 7A of the Juvenile Justice  (Care
and Protection of Children) Act, 2000 (for short ‘the JJ Act’) and  Rule  12
of the Juvenile Justice Rules, 2007 (for short  ‘the  JJ  Rules’).   Learned
counsel submitted that the courts have committed a grave  error  in  placing
reliance on the certificate issued by the village Chowkidar as  against  the
certificate issued by the State Council for Education Research and  Training
Punjab, Chandigarh dated 05.04.2006 and  the  certificate  dated  19.10.2000
issued by  the  Government  High  School,  Naushehra  Cheema  (Tarn  Taran).
Learned  counsel  submitted  that  both  the   abovementioned   certificates
indicate that  the  date  of  birth  of  the  appellant  is  20.07.1996  and
therefore on the date of the incident i.e.26.09.2010, the  appellant  was  a
juvenile.  Considerable reliance was placed on judgment  of  this  Court  in
Ashwani Kumar Saxena v. State of M.P. [(2012) 9 SCC 750] in support  of  his
contention.

8.    Mr. Saurabh Ajay Gupta, learned counsel appearing for the  respondent-
State, submitted that there is no illegality in  the  order  passed  by  the
Sessions Court, which was confirmed by  the  High  Court.   Learned  counsel
submitted that since there is some conflict on the date of  birth  shown  in
the  school  register  and  that  of  the  certificate  issued  by   village
Chowkidar, the Sessions Court and the High Court were justified  in  placing
reliance on the certificate issued by village Chowkidar to reject the  claim
of juvenility.

9.    When the matter came  up  for  hearing,  we  passed  the  order  dated
29.08.2012 which reads as follows:

       “Learned counsel appearing for the  petitioner  placed  reliance  on
       certificate issued by the State Council for Education  Research  and
       Training, Punjab, Chandigarh dated 5.4.2006, where it is stated that
       the date of birth of the petitioner is 20.7.1996.  A photo  copy  of
       the same has been made available to the Court  as  well  as  to  the
       counsel appearing for the state Government.

       Learned counsel for the petitioner also placed reliance on a copy of
       certificate dated 19.10.2000 issued by the Government  High  School,
       Naushehra Cheema (Tarn Taran) which also shows date of birth of  the
       petitioner  as  20.07.1996  and  reference  was  also  made  to  the
       Admission and  Withdrawal  Register,  Govt.  High  School,  Naushera
       Cheema (Tarn Taran) issued by the Headmaster/Principal of the  Govt.
       High School, Naushera Cheema (Tarn Taran).

       Under such circumstances, we are inclined to give a direction to the
       State to examine the genuineness of  these  documents  and  file  an
       affidavit to that effect.”




10.   In pursuance of that order, an affidavit dated  14.11.2012  was  filed
by Dy. Superintendent of Police, State  Special  Operation  Cell,  Amritsar,
Punjab who examined the genuineness of the certificates referred to  in  our
order.  Relevant portion of the order reads as follows:

       “3.  That as per the directions, following  documents  furnished  by
       the petitioner have been examined to ascertain their genuineness.

         A) A Certificate issued by the State Council of Education Research
            and Training Punjab, Chandigarh dated 05.04.2006.

         B) A Certificate issued by Govt.  High  School,  Naushera  Cheema,
            Tarn Taran.

         C) A copy of admission  and  withdrawal  register  of  Govt.  High
            School Naushera Cheema.

       4.   That, Sh. Manjinderjit Singh  Head  Master  Govt.  High  School
       Nausherha Cheema, Tarn Taran has certified the  genuineness  of  the
       documents on the basis of the record maintained in the school.

       5.   That, the copy of the statement furnished by  Sh.  Manjinderjit
       Singh Head Master Govt. High School Nausherha Cheema, Tarn Taran  to
       this effect is attached as Annexure R-1.”




11.   We notice the genuineness of  the  certificate  issued  by  the  State
Council  of  Education  Research  and  Training  Punjab,  Chandigarh   dated
05.04.2006 and the certificate issued by Govt. High School Naushera  Cheema,
Tarn Taran and the admission and withdrawal register of Govt.  High  School,
Naushera Cheema has not been questioned.

12.   In Ashwani Kumar Saxena case (supra), this  Court  has  explained  how
“Age determination inquiry” has to be conducted under Section 7A of  the  JJ
Act read with Rule 12 of the JJ Rules.  Relevant  portion  of  the  same  is
extracted hereunder:

        “32.     “Age determination inquiry” contemplated under Section  7A
        of the Act read with Rule 12 of the 2007 Rules enables the court to
        seek evidence and  in  that  process,  the  court  can  obtain  the
        matriculation or equivalent certificates, if  available.   Only  in
        the absence of any matriculation or  equivalent  certificates,  the
        court needs to obtain the date of birth certificate from the school
        first attended other than a play school.  Only in  the  absence  of
        matriculation or  equivalent  certificate  or  the  date  of  birth
        certificate from the school first  attended,  the  court  needs  to
        obtain the birth certificate given by a corporation or a  municipal
        authority or a panchayat (not  an  affidavit  but  certificates  or
        documents).  The question of obtaining medical opinion from a  duly
        constituted Medical  Board  arises  only  if  the  above  mentioned
        documents are unavailable.  In case exact  assessment  of  the  age
        cannot be done, then the court, for reasons to be recorded, may  if
        considered necessary, give the benefit to the child or juvenile  by
        considering his or her age on lower side within the margin  of  one
        year.




         33.     Once the court, following the  abovementioned  procedures,
        passes an order, that order shall be the conclusive  proof  of  the
        age as regards such child or juvenile in conflict with law.  It has
        been made clear in sub-rule (5) of Rule 12 that no further  inquiry
        shall be conducted by the court or the Board  after  examining  and
        obtaining the certificate or  any  other  documentary  proof  after
        referring to sub-rule (3) of Rule 12.  Further, Section 49  of  the
        JJ Act also draws a presumption of the age of the juvenility on its
        determination.”




13.   We are of the view that in a case  where  genuineness  of  the  school
leaving certificate has not been questioned,  the  Sessions  Court  and  the
High Court were not justified in  placing  reliance  on  certain  statements
made by Parkash Kaur, mother of the accused in the  cross-examination.   The
Sessions  Court  also  committed  an  error  in  placing  reliance  on   the
certificate issued by the village Chowkidar who was examined as  RW2.   When
the law gives prime importance to the date of birth  certificate  issued  by
the school first attended, the genuineness of which is not  disputed,  there
is no question of placing reliance on the certificate issued by the  village
Chowkidar.

14.   We may indicate that all these legal aspects has  already  been  dealt
with in Ashwani Kumar Saxena case (supra),  hence,  further  elucidation  of
the question raised does not arise.  The  issue  raised,  in  our  view,  is
fully covered by the abovementioned judgment.   In  such  circumstances,  we
are inclined to allow this appeal and set aside  the  order  passed  by  the
Sessions Court dated 16.04.2011 and the impugned judgment  and  order  dated
07.07.2011in  Criminal  Revision  No.  1440  of  2011.   We  hold  that  the
appellant was a juvenile on the date of the incident and has to be tried  by
the Juvenile Justice Board.  The Sessions Court is  directed  to  make  over
the files to the Juvenile Justice Board to proceed with the  trial,  so  far
as the appellant is concerned.

                                        …………………………………..J.
                                        (K.S. Radhakrishnan)






                                        …………………………………..J.
                                        (Dipak Misra)


New Delhi,
December 3, 2012

There can be no question of ouster, if there is participation in the profits to any degree.=In the case of Mohaideen Abdul Kadir & Ors. V. Mohammad Mahaideen Umma & Ors. reported in ILR [1970] 2 Mad. 636 their Lordships held that no hard and fast rule can be laid down. But the following relevant factors may be taken into consideration : (i) exclusive possession and perception of profits for well over the period prescribed by the law of limitation ; (ii) dealings by the party in possession treating the properties as exclusively belonging to him; (iii) the means of the excluded co-sharer of knowing that his title has been denied by the co-owner in possession. There may be cases, where, owing to long lapse of time, it may not be possible for the co- owner in possession to adduce evidence as to when the ouster commenced and how it was brought home to the knowledge of the excluded co-owner. In such a case the law will presume ouster as an explanation of the long peaceful possession of the co-owner in possession. In order to maintain the person in such possession the law presumes a lawful origin of the possession. Therefore, no hard and fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer. That will depend upon facts of each case. Simply long possession is not a factor to oust a co-sharer but something more positive is required to be done. There must be a hostile open possession denial and repudiation of the rights of other co-owners and this denial or repudiation must brought home to the co-owners.

CASE NO.:
Appeal (civil)  4357-4358 of 2000

PETITIONER:
Govindammal

RESPONDENT:
R.Perumal Chettiar & Ors

DATE OF JUDGMENT: 19/10/2006

BENCH:
A.K.MATHUR & ALTAMAS KABIR

JUDGMENT:
J U D G M E N T


A.K.MATHUR,J.

These appeals are directed  against the judgment and order
dated 30.12.1998 passed by learned Single Judge of the Madras
High Court in Second Appeal No.2253 of 1986 and Second Appeal
Nos.145 & 146 of 1988.

Brief facts giving rise to the present appeals are that
the plaintiff filed a suit being O.S.No.409 of 1981 for partition and
separate possession  and also claimed for rendition of accounts.
 The
plaintiff is the second wife of Raju Naidu. 
Raju Naidu married 
Rajakanthammal as his first wife and she died in or about 1946 
leaving behind  the defendant Nos. 1 & 2  as their sons and one 
daughter by name Saraswathi. 
 After the death of his wife, Raju 
Naidu married second time to the plaintiff as the second wife. 
 There 
was no issue from the second wife.
Raju Naidu died intestate in 1954  
and
on his death 
the plaintiff and defendant Nos. 1 & 2 were the legal 
heirs to inherit  the properties of Raju Naidu.
 'B' schedule properties 
are the separate and self acquired properties of Raju Naidu. 
 It is
alleged that
the plaintiff and Defendant Nos.1 & 2 lived amicably for
sometime.
Afterwards,
the plaintiff started living separately and
Defendant Nos.1 & 2 were giving her share  of income from the 
properties. 
 She demanded partition of the properties.
 It was 
promised by both the sons of Raju Naidu and step sons of the plaintiff 
but without any result. 
 One year  before filing of the present suit, 
Defendant Nos.1 & 2 started acting  against the interest of the plaintiff 
and they stopped giving the income to the plaintiff.
 Then they
alienated  item Nos. 3 to 8 of the scheduled properties to Defendant 
No.3 and further to Defendant No.4  the entire 'B' & 'C' schedule 
properties  under the pretext of the decree in O.S.No.101 of 1967 and 
O.S.No.247 of 1970 against Defendant Nos.1 & 2. 
The plaintiff was
not a party to these two suits and therefore that decree was not
binding on her.
It is alleged that a notice was sent  for the first time  
for partition of the properties sometime in 1979  which was replied by 
the defendants. 
 It is alleged that  a reply was sent by the defendant
No.1  to the plaintiff   wherein it was stated that the allegations are
false and  item No.2 has been purchased recently  by the defendant
No.1 out of the sale proceeds got by him by selling item Nos.3 to 8 in
favour of Defendant No.3.  Item No.2 also belonged to the joint
family.
It was also alleged that at the time of marriage, Raju Naidu 
had already executed a registered settlement deed dated 17.4.1947  
and in that  38 cents were given to the plaintiff and the plaintiff 
remained in peaceful possession of the 'C' schedule properties.
Thereafter,
when  the suit was filed  the defendant No.1 filed a written
statement and in that it was alleged that the plaintiff does not have
any share  in the property and 'C' schedule property was already
settled in  her favour.
A panchayat was also convened and
arrangement was made that 'C' scheduled property would remain
with her  and she would not claim any share  in the property.
It is also
alleged that  Defendant No.1  maintained  the defendant No.2 and
their sister and gave her in marriage.
After the death of her husband,
she and her minor son are still maintained.
 It is also alleged that sale
deed in favour of defendant No.3 was executed by defendant No.1 to
meet the debts to the extent of Rs.40,000 by way of promissory notes
and simple mortgages.
As such, the suit filed by the plaintiff was
barred by law.
Defendant No.;2 also contested the suit and even
challenged the marriage of the plaintiff with Raju Naidu.
It is alleged 
that after the death of Raju Naidu only two sons became the sole 
owners by way of survivorship. 
 It is alleged that  he has sold
undivided half of the properties for valid consideration.
Defendant
No.3 was a purchaser  and he contested the suit and submitted that
the suit was not maintainable  without the prayer for cancellation of
the two sale deeds and he also took the plea of limitation.
Defendant
No.4 being another purchaser of the property, took the plea that the
plaintiff only lived with the deceased Raju Naidu for few months and
she left on her own and went to her parents' house.
 It was also
alleged that  his son Mahendran has purchased  Door No.8-A and 8-
B in Kutchery Road for a valid consideration  of Rs.26,000/- from
defendant No.2.
 It is also alleged that he has also filed a suit being 
OS  No.416 of 1981 for allotment of share.
So far as 'A' schedule properties are concerned, only 
partial relief has been given to plaintiff with regard to 'A' schedule 
properties. 
We are primarily concerned with 'B' scheduled properties. 
The trial court initially framed 10 issues  and 7 additional issues were
framed in OS 409 of 1981 and 11 issues were framed with regard to
OS 416 of 1981.
Both the suits were tried together  as there was
common evidence in both the suits.
Large number of documents
were filed by both the sides.
The trial court after hearing the parties,
dismissed OS No.409 of 1981 and passed a preliminary decree  for 
partition and separate possession of plaintiff's half share  in the suit 
'A' schedule property in OS No.416 of 1981.
Aggrieved against this
order defendant No.1 preferred an appeal being AS No.55 of 1984
and the plaintiff also preferred an appeal being AS No.244 of 1984
on the file of the District Judge.
The appeal of the plaintiff with regard 
to OSNo.409 of 1981 was allowed and
 the judgment and decree was
set aside and a preliminary decree was passed for partition and
separate possession of plaintiff's 1/3rd share  in the properties
mentioned in 'B' schedule and
further directed defendant Nos. 1 to 3
to render accounts in respect of items 3 to 8 of plaint 'B' schedule
properties  and
directed defendant Nos. 1 and 2  to render accounts
in respect of the income from items 1 and 2 of the plaint 'B' schedule
properties from the date of the  suit and
further directed Defendant
No.4 to render accounts in respect of the income from the portion of
item 1 of 'B' schedule property from the date of purchase.
  Defendant 
No.1's appeal  being AS No.55 of 1984 was also allowed  and 
the 
judgement and decree  in OS 416 of 1981 was modified to the effect 
that  the plaintiff was entitled to the share  of Thambaiyan 
the 2nd 
defendant in the plaint 'A' schedule property and 
that the suit for 
partition was dismissed in view of the suit for general partition in OS 
No.409 of 1981was decreed.
 Aggrieved against these two orders,
three second appeals were preferred before the High  Court. In
Second Appeal No.2253 of 1986 the following substantial questions
of law was framed.

"  Whether the plaintiff's claim was not 
barred by limitation by exclusion and ouster and 
defendants 1 and 2 in the suit had not acquired title 
to the suit properties by adverse possession ?"

In Second Appeal Nos. 145 and 146 of 1988, the following substantial
questions of law were framed.

" (1) Whether  the Lower Appellate Court is
right in negativing the claim of the defendants that
they had acquired title by adverse possession ?
(2) Whether  the Lower Appellate Court was 
right in overlooking that the plaintiff had been 
excluded even before the coming into force of Act 30 
of 1956 and had thereby  lost her right by exclusion 
and ouster ?
(3) Whether the Lower Appellate Court
was right in omitting to note the suit instituted 12
years after the issue of notice under Ex.B 3 dated
2.11.1955 admitting ouster  and dispossession is
barred by limitation and the relief of partition would
not be available ?"

  In fact,  the basic question for our consideration in the present
appeals  is
 whether the plaintiff is entitled to 1/3rd share in the 
properties or not ?  
In this connection, the question with regard to the
adverse possession which was specifically argued has to be dealt
with and
whether the plaintiff lost her right for 1/3rd share  in the 
properties of Raju Naidu because of adverse possession or not ?
 In
case, the plea of the defendants succeeds and that she has lost her
right to claim 1/3rd share in the properties of Raju Naidu because of
adverse possession then in that case,  nothing survives in the present
appeals before us.

Many pleas were taken like the  marriage of the plaintiff
with deceased Raju Naidu was not valid and  it was rejected outright.
The plain case is that the plaintiff filed a suit for separate possession
and rendition of accounts of the properties  being the wife of
deceased Raju Naidu.
The plea of the defendants was that  they are
the only legal heirs  of the deceased Raju Naidu  and they have dealt
with the properties subsequently by mortgaging the  same and they
have enjoyed the properties to the knowledge of the plaintiff openly
for more than the statutory period and whatever right she had stood
extinguished.
 In order to settle the issue, 38 cents of land was settled
in her favour way back in 1947 and a panchayat was also convened
and she felt satisfied and did not claim any right in 'B' schedule
properties from 1955.
 It was also pointed out that on 2.11.1955
through a counsel  the plaintiff got a notice issued demanding
partition and her share  but she did not take any steps.
Therefore,
they are enjoying the properties  hostile to the interest of the plaintiff.
Therefore, they took the plea of adverse possession also.

So far as 'B' schedule properties  is concerned, the
findings of the courts below are that the suit properties are  the self
acquired properties of Raju Naidu and  it is not ancestral property.
Therefore, the plaintiff was entitled to her 1/3rd share in all the
properties.
The plaintiff in order to substantiate her claim made oral
as well as documentary evidence.
 At the same time, the defendants
also led evidence to prove that the plaintiff's right in the properties
stood extinguished on account of adverse possession.

The defendants in order to oust the claim of the plaintiff
took definite plea of adverse possession hostile to the interest of the
plaintiff to her knowledge  and led evidence to show that a notice was
sent by the plaintiff on 2.11.1955 in which she claimed that she was
not given any income from the properties of Raju Naidu.
Though the 
plaintiff appeared in the witness box as P.W.1, she denied to have 
sent any such notice.  
It is alleged that the notice was sent through
the Advocate but no such advocate was produced by the defendants.
However, the defendants sent a reply to that notice.
But the original
notice alleged to have been sent by the plaintiff was produced as
Ex.B 3 but no advocate was produced to prove that notice.
 P.W.1 has
categorically denied to have sent any such notice and she also
deposed that after the death of her husband, Raju Naidu, she was
thrown out of the house.
Though after the death of her husband, for
some time she was given income from the properties but thereafter
the defendants stopped payment of the income arising out of the
properties.
She also admitted that some of the properties were
usufructuary mortgage.
After some time she came to know that
certain properties were being sold.
Therefore, she woke up  in 1979
and filed the present suit.
Unfortunately,  the plea of the defendants
succeeded  before the High Court  that the notice, Ex.B 3 was given
in 1955 and no suit was filed till 1979.
Therefore, the High Court took
the view that her right in the properties got extinguished because of
adverse possession as she gave notice in 1955 and did not take
possession of the properties till 1979.
Therefore, it was apparent that
the possession by Defendant No.3 was hostile to her interest.
We
regret to say that this finding arrived at  does not appear to be correct
one.
 In fact after filing of the suit  the notice, Ex.B 3  which she did not
pursue any further, her right cannot be extinguished.
Though   she
has denied issuance of such notice through Advocate but that is not
sufficient  to defeat the claim of the widow.
This was only an
infructuous circumstance that  when she was thrown  out of the
house she could not pursue her legal remedy by filing  the suit but
when she found that the properties were being sold by the step sons,
and it came to her knowledge, therefore, she woke up  to file the suit
for asserting her claim.
There is no denial  that  she was the legally
married wife of the deceased. This has been proved, established and
accepted by  all the three courts  despite the fact that the plea of
falsity of the marriage was raised by the step sons.
Once it is 
established  that she was the legally married wife of Raju Naidu she 
automatically she claims  her share in the property from the estate  of 
Raju Naidu by way of survivorship. 
Just because  a notice was issued
and she did not pursue the same  that does not extinguish  the claim
of the plaintiff  thereby giving a handle in the hands of the step sons
by way of adverse possession.
In order to prove adverse possession
something more is required.
Once it is accepted that she was the
legally married wife of Raju Naidu then her right to claim  partition and
share in the property  stands out and that cannot be defeated by  the
plea of ouster or adverse possession.
In order to oust by way of
adverse possession, one has to lead definite evidence to show that
to the hostile interest of the party that a person is holding possession
and how that can be proved  will depend on  facts of each case. In
the present case,
it is the widow who has been thrown out and she 
has been moving from pillar to post.  
The  relief cannot be denied to 
her  just because she sent notice claiming partition of the properties 
and she did not file any suit thereafter and the steps sons where 
holding the properties adversely  and hostile to her knowledge.  It 
was the joint property  of Raju Naidu  and it shall devolve by way of 
survivorship i.e. two sons and  his wife as the daughter has already 
given up her share in the property.
Therefore, in order to oust one of
the co-sharers  only on the basis of the so called notice cannot be
deemed to be sufficient to come to a conclusion of adverse
possession or  extinguishing her rights.
In this connection, our
attention has been invited  to an earliest decision in the case of Hardit 
Singh & Ors. V. Gurmukh Singh & Ors. [ AIR 1918 PC 1] wherein it
has been held as under :

" If by exclusive possession of joint estate is 
meant that 
one member of the joint family alone 
occupies it, 
that by itself affords no evidence of 
exclusion of other interested members of the family. 
Uninterrupted sole possession of such property, 
without  more , 
must be referred to the lawful title 
possessed by the joint holder to use  the joint estate, 
and cannot be regarded as an assertion of a right to 
hold it as separate, 
so as to assert  an adverse claim 
against other interested members.
 If possession may 
be either lawful or unlawful, 
in the absence of 
evidence, it must be assumed to be the former. 
The 
evidence of actual user is not sufficient to establish 
abandonment or exclusion."

Similarly, our attention was invited to a decision in the case of Varada 
Pillai & Anr. V. Jeevarathnammal  [ ILR Madras (Vol.43) 244]. In that
case, their Lordships quoted the earlier decision referring to
English
rule with regard to possession of several co-parceners,
 joint  tenants
or tenants-in-common with the possession of others so as to prevent
limitation affecting them.
In the case of Cully v. Deo [ (1840) 11 ad. & 
E.1008]  their Lordships observed as follows :

" Generally speaking, 
one tenant-in-  common 
cannot maintain an ejectment against another tenant-
in-common, 
because the possession of one tenant-
in-common is the possession of the other, and, 
to 
enable the party complaining to maintain an 
ejectment, 
there must be an ouster of the party 
complaining. 
But, where the claimant, tenant-in-
common, has not been in the participation of the 
rents and profits for a considerable length of time, 
and other circumstances concur, the Judge will direct 
the  jury to take into consideration whether they will 
presume  that there has been an ouster:.  
And , if 
the jury find an ouster, then the right of the lessor of 
the plaintiff to an undivided share will be decided 
exactly in the same way as if he had brought his 
ejectment for an entirety."

In the case of 
Mohaideen Abdul Kadir & Ors. V. Mohammad 
Mahaideen Umma & Ors. reported in ILR [1970] 2 Mad. 636 their
Lordships held that
 no hard  and fast rule can be laid down.  
But the 
following relevant factors  may be taken into consideration : 
(i) exclusive possession and perception of profits for well over  the 
period prescribed by the law of limitation ; 
(ii) dealings by the party in 
possession treating  the properties as exclusively belonging to him; 
(iii) the means of the excluded co-sharer of knowing that his title has 
been denied by the co-owner in possession. 
There may be cases, 
where, owing to long lapse of time, 
it may not be possible for the co-
owner in possession to adduce evidence 
as to when the ouster 
commenced and how it was brought home to  the knowledge of the 
excluded co-owner. 
In such a case  the law will presume ouster as an 
explanation of the long peaceful possession of the co-owner in 
possession. 
In order to maintain the person in such possession the 
law presumes  a lawful origin of the possession.   
Therefore, no hard 
and fast rule can be laid down from which it can be inferred that any 
co-sharer has ousted his co-sharer. 
That will depend upon facts of 
each case.  Simply long possession is not a factor to oust a co-sharer 
but something more  positive is required to be done.  
There must be a 
hostile open possession denial and repudiation of the rights of other 
co-owners and this denial or repudiation must brought home to the 
co-owners.  
Simply because a co-sharer gave notice claiming
partition of the suit properties  and possession  and did not pursue
the matter further, that will not be sufficient to show that the co-sharer
has lost his/her right. In the present case,  it is only when 'B' schedule
property was being sold by two brothers then alone the plaintiff woke
up  to realise that the step sons  were not interested to give her share
in the property and she rushed to file the suit. Therefore, by no
stretch of imagination it can be inferred in the present case that the
plaintiff  had lost her right to claim partition and share in the property.

In the case of  Vidya Devi alias Vidya vati (dead) by LRs v. 
Prem Prakash & Ors.  reported in (1995) 4 SCC 496 
the question
was
whether the plea of acquisition of title by adverse possession 
was available to the co-bhumidhar  or not.
In that context, their
Lordships held that 
when no period of limitation is fixed for filing a suit 
for partition by a co-bhumidhar against  his other co-bhumidhars in 
respect of a joint holding, 
the question of the other co-bhumidhar  
acquiring his title to such holding by adverse possession for over 12 
years can never arise.   
It was further observed that if that be so, 
such plea of perfection of title by adverse possession of a holding by 
a co-bhumidhar against his other co-bhumidhar as defence  in the 
latter's suit for partition can be of no legal consequence.


In the case of Mohammad Baqar & Ors. V. Naim-un-Nisa 
Bibi & Ors.  reported in AIR 1956 SC 548 it was observed
that under 
the law possession of one co-sharer is possession of all co-sharers, it 
cannot be adverse to them, unless there  is a denial of their right to 
their knowledge by the person in possession and exclusion and 
ouster following thereon for the statutory period. 
There can be no 
question  of ouster, if there is participation in the profits to any 
degree.

In the case of Md. Mohammad Ali (dead) by LRs v. 
Jagadish Kalita & Ors. reported in (2004) 1 SCC 271
this Court
examined a series of decisions  on the question of adverse
possession and after extracting  the legal propositions from various
decisions, their Lordships concluded that long and continuous
possession by itself, it is trite, would not constitute adverse
possession. Even non-participation in the rent and profits of the land
to a co-sharer does not amount to ouster so as to give title by
prescription. A co-sharer, as is well settled, becomes a constructive
trustee of other co-sharer and the right of a person  or his
predecessors-in-interest  is deemed to have been protected by the
trustees.

As against this, our attention was also invited to a
decision in the case of  T.P.R.Palania Pillai & Ors. V. Amjath  Ibrahim 
Rowther & Anr. reported in AIR 1942 Madras 622,
their Lordships
observed that
in order to constitute adverse possession, the 
possession must be adequate in continuity, in publicity and in extent 
to show that it is possession adverse to the competitor. 
 Therefore, in 
cases of adverse possession also their Lordships have said that the 
possession should be for longer period and it is known to the 
competitor that it is held adverse to his knowledge.  
Their Lordships 
further held that 
in cases of usufructuary mortgage granted by one of 
several co-sharers if a person remains in possession of the land and 
cultivates it  for years, the requirement of continuity, publicity and 
extent for adverse possession are fully complied with. 
But that is not
the case here.

In the case of Nirmal Chandra Das and Ors. V. Mohitosh 
Das  & Ors. reported in AIR 1936 Calcutta 106
their Lordships
observed that in order to succeed on the ground of ouster,
the person
setting up ouster is bound to show that he did set up an adverse or
independent title during the period which was beyond  the statutory
period of 12 years. Their Lordships further observed that there can be
no adverse possession by one co-sharer as against others until there
is an ouster or exclusion; and the possession of a co-sharer becomes
adverse to the other co-sharer from the moment there is ouster.
Therefore, what is ouster  and what is adverse to the interest of the
claimant depends upon each case. In this case, a plea was raised
that certain properties were usufructuary mortgage. But that was not
in a manner to show that  these properties are adverse to the interest
of the plaintiff.  It was only when 'B' schedule properties were sought
to be sold and it came to the knowledge of the plaintiff that her step
sons were not interested in partition of the property and giving her
share, she filed the suit in the year 1979.  Therefore, for the first time
in 1979 she came to know that adverse possession is being sought to
be established  and her interest in 'B' schedule properties is sought to
be sold by her step sons.  But in any case, just because she gave a
notice  and she did not pursue  the same, on that basis no adverse
inference can be drawn and she cannot be ousted on that count by
way of adverse possession.

As a result of our above discussion, we are opinion that
the view taken by the learned Single Judge of the High Court of
Madras in dismissing  the suit of the plaintiff ( O.S.No.409 of 1981)  is
not correct  and the said order is set aside.  Hence, this appeal is
allowed. The plaintiff is entitled to her 1/3rd share  in the 'B' schedule
properties  being the widow of Raju Naidu and she is also entitled to
rendition of accounts.

So far as O.S.No.416 of 1981 is concerned,  we need not go
into detail on the findings of fact recorded by the courts below.
However, we make it clear that Govindammal  being the second wife
of late Raju Naidu will have her share in the 'A' schedule properties
also. The appeal is  accordingly disposed of.  No order as to costs.

whether the Courts below were justified in holding the appellant Pramod Bhanudas Soundankar guilty of having committed the offence punishable under Section 412 IPC and not Section 411 thereof.=for the satisfaction of the ingredients expressed in Section 412 IPC, the accused could be held to be guilty only, if it could be further established, that the stolen property received by the appellant, was known to him, as having been procured through, the commission of a dacoity=The ingredient of Section 412 IPC, referred to in the foregoing paragraph, has an alternative. Even if the alternative can be established, the accused would be guilty of having committed the crime expressed in Section 412 IPC. It is apparent from a plain reading of Section 412 IPC, that a person receiving stolen goods, would be guilty of the offence under Section 412 IPC, if it can further be shown, that the recipient of the goods knew (or had reason to believe), that the person offering the goods, belonged to a gang of dacoits. It was the vehement contention of the learned counsel for the appellant, that the instant involvement of the appellant Pramod Bhanudas Soundankar is his first involvement in such a case, inasmuch as, he has never faced a criminal trial earlier, and has never been convicted for any criminal involvement prior to his instant conviction. According to learned counsel, the prosecution having not shown his previous relationship with any of the other 10 accused, prior to the incident under reference, there was no question of any presumption, that the appellant herein had known (or had reason to believe), that the offerer of the silver chips belonged to a gang of dacoits. 15. Having perused the conclusions drawn by the Trial Court as also the High Court with reference to the appellant Pramod Bhanudas Soundankar, it is not possible for us to conclude, that either of the Courts below had recorded any finding in respect of the other essential ingredients of the offence under Section 412 IPC. The evidence produced by the prosecution, that the appellant Pramod Bhanudas Soundankar had known (or had reason to believe), that four silver chips (weighing 1 kiolgram each) was stolen property, would be sufficient only to establish his guilt under Section 411 IPC. A perusal of the impugned judgments, does not reveal a finding recorded by either the Trial Court or the High Court, that the appellant was aware, that the silver chips presented to him by Shivaji Kale (accused n o.8) were procured by the commission of a dacoity. Even the alternative conclusion, namely, that the appellant knew (or had reason to believe) that Shivaji Kale (accused no.8) belonged to a gang of dacoits, was not recorded by the courts below. Even during the course of hearing before us, learned counsel for the State of Maharashtra, could not draw our attention to any evidence on the basis whereof, either of the aforesaid alternative ingredients of Section 412 IPC could be demonstrated. It is therefore clear, that the guilt of the appellant under Section 412 IPC cannot be stated to have been substantiated in the facts and circumstances of the present case. 16. For the reasons recorded hereinabove, we are satisfied, that the Trial Court, as also the High Court, were not justified in convicting the appellant under Section 412 IPC. We therefore, set aside the conviction of the appellant under Section 412 IPC. 17. The sentence imposed on the appellant herein, was based on the fact that he had been found guilty of offence under Section 412 IPC. Our determination, however exculpates the appellant from having committed the offence under Section 412 IPC. We, however, maintain the conviction of the appellant, under Section 411 IPC. The sentence of imprisonment, contemplated for the offence under Section 411 IPC, can extend upto three years. In the facts and circumstances of the case, we are satisfied that the ends of justice would be met, if the sentence of punishment inflicted on the appellant is reduced to one year rigorous imprisonment and fine of Rs.1000/-. In case of default, in payment of fine he shall suffer simple imprisonment for one month. Ordered accordingly. Partly allowed, as above.

                                                                “REPORTABLE”

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.1960_ OF 2012
              (Arising out of SLP (Criminal) No. 6174 of 2012)

Pramod Bhanudas Soundankar                   …. Appellant

                                   Versus

State of Maharashtra                               …. Respondent


                                  O R D E R

1.    Leave granted.
2.    Six persons wearing black clothes, entered the house of  Rameshchandra
Sawarmal  Bagdiaya,  situated  at  Akola  Road,  Hingoli,   on   the   night
intervening 17th and 18th July,.2009, at about 1  am,  after  breaking  open
the main gate.   At  the  time  of  the  break  in,  Rameshchandra  Sawarmal
Bagdiaya and his wife Kirandevi were at the  residence.   Having  threatened
Rameshchandra Sawarmal Bagdiaya and his wife, the assailants  demanded  keys
to an “almirah” (storage cabinet) in the premises.   Rameshchandra  Sawarmal
Bagdiaya informed them, that the keys were in  the  drawer  of  a  table  in
their room.  Having recovered  the  keys  from  the  drawer,  the  intruders
opened the “almirah”.  From the “almirah”, they took away  gold  and  silver
ornaments besides cash.  In addition, they took three gold finger-rings  and
a gold chain from the person of Rameshchandra Sawarmal Bagdiaya, and a  gold
“mangalsutra”  (wedding  chain)  and  gold  bangles  from  the   person   of
Kirandevi.
3.    From the statement made by Rameshchandra Sawarmal  Bagdiaya,  it  came
out, that the assailants collectively took  away  three  gold  finger-rings,
one “mangalsutra”, one gold locket, two  gold  bangles,  two  ear-tops,  one
gold bar weighing three  tolas  (30  grams),  one  ladies  finger-ring,  two
“patlyas” (thick bangles), a number of  silver  chips  weighing  1  kilogram
each, 150 silver coins and Rs.1,93,000/- cash.
4.    In the process of solving the crime, Vishwanath Gavali was  the  first
to be arrested by the investigating officer.  Vishwanath  Gavali,  disclosed
the names  of  some  others,  involved  in  the  incident.   Thereafter,  in
November, 2009, three accused Hanuman Kale, Ganesh Kale  and  Kathalu  alias
Sigret were arrested.  In January of the following year,  Khetrya  was  also
apprehended.  On information furnished  by  him,  Roshan  alias  Dhonya  and
Kiran,  were  arrested  in  February,  2010.   These  arrests  led  to   the
disclosure of the identity of the owner  of  the  car  used  in  the  crime.
Thereupon Shaikh Javed, the car owner was arrested.  Shivaji  Kale  was  the
last to be arrested from amongst the intruders.
5.    Even though Shivaji Kale (accused no. 8) had  disclosed  the  name  of
Sanjay alias Kaliya as one of their associates in the crime,  he  could  not
be arrested, as he was absconding.  He  was,  however,  arrested  after  the
submission of the chargesheet, whereupon  a  supplementary  chargesheet  was
filed implicating Sanjay alias Kaliya.
6.    The aforesaid ten accused were allegedly responsible for the  dacoity.
 One of them, Shivaji Kale (accused no. 8) disclosed, during the  course  of
investigation, that he had stolen four silver  chips  (weighing  1  kilogram
each) from the residence of Rameshchandra Sawarmal Bagdiaya,  and  had  sold
the same to Pramod Bhanudas Soundankar, a jeweller.  The four  silver  chips
stolen by the accused Shivaji Kale were recovered from the  shop  of  Pramod
Bhanudas Soundankar-appellant.   Pramod  Bhanudas  Soundankar-appellant  was
proceeded against (as  accused  no.  11)  for  dishonestly  having  received
stolen property (under Sections 411 and 412 of the Indian Penal  Code,  1860
(hereinafter referred to as  “the  IPC”),  knowing   (or  having  reason  to
believe) that it was stolen..
7.    The instant appeal has been filed by  the  aforesaid  Pramod  Bhanudas
Soundankar-appellant.   During  the  course   of   hearing,   the   solitary
contention advanced at the hands of the learned counsel  for  the  appellant
was, that the Trial Court, as also the High Court, had  seriously  erred  in
holding the appellant Pramod Bhanudas Soundankar guilty, under  Section  412
IPC.  It was the contention of the learned counsel for the  appellant,  that
the evidence produced by the prosecution  during  the  trial  of  the  case,
could at best, result in the conviction of the appellant under  Section  411
IPC.  In the aforesaid view of the matter, the sole  question  which  arises
for our consideration, in the present  appeal  is  confined  to  the  issue,
whether the Courts below were justified  in  holding  the  appellant  Pramod
Bhanudas Soundankar guilty of having committed the offence punishable  under
Section 412 IPC and not  Section 411 thereof.
8.    The Trial Court, while dealing with the case of the  appellant  Pramod
Bhanudas Soundankar, recorded the following observations:-

      “92.  So far as evidence against accused no. 11 Pramod  Soundankar  is
           concerned, it is not the case of the  prosecution  that  he  was
           involved in the dacoity.  However, muddemal articles are  seized
           as per the memorandum statement of accused no.  8  Shivaji  Kale
           from the shop of accused no. 11.  On reaching to  shop,  he  has
           handed  over  those  articles  to  the   police.    Accordingly,
           Panchnama is made.  There is nothing brought on  record  in  the
           evidence of PW-20 P.I. Rauf, an Investigating Officer that he is
           having any interest as against this accused to falsely  involved
           him in this crime.  Therefore, merely because the panch  witness
           on memorandum and seizure panchnamas  are  not  supporting,  the
           evidence of PW 20 P.I. Rauf, I.O.   On  memorandum  and  seizure
           panchanama and PW-4 Rameshchandra Bagdiaya,  complainant  as  to
           identity of the muddemal  property  I  hold  that  the  evidence
           brought on record is sufficient to hold that the property, which
           is seized from accused no. 11 Pramod Bhanudas Soundankar, is the
           property transferred from dacoity and involvement of accused no.
           8 Shivaji Kale in the offence  of  dacoity  and  the  nature  of
           property itself is such that  the  favour  silver  chips  having
           weight of 1 kg each from which it  can  be  inferred  that  this
           accused having knowledge about the same  has  purchased  it  and
           retained it.  Therefore, he is also liable for punishment  under
           Sections 412 and 411 of the Indian Penal Code.”

9.    During the course of the appellate proceedings before the High  Court,
the evidence with reference to the appellant Pramod Bhanudas Soundankar  was
discussed as under:-

      “29.  As regards the accused no. 11, it is to  be  noted  that  he  is
           jeweller by occupation.  Accused no. 8 Shivaji Kale was arrested
           on 2.2.2010 from Wapi, Gujarat.  According to  the  prosecution,
           the said accused made a statement that he has sold  four  silver
           chips to the present  appellant/accused.   Those  silver  chips,
           according to the PW-20 P.I.  Shaikh Abdul Rauf,  were  recovered
           from the present appellant.  Panch witness to the memorandum  of
           statement as  well  as  the  recovery  panchnama,  namely,  PW-2
           Nagorao and PW-3 Gajanan, both  of  them  have  turned  hostile,
           though employees of the complainant.

      30.   The learned Sessions  Judge  has  believed  the  straightforward
           testimony of the Investigating Officer  i.e.  Police  Inspector,
           who has given the chronological account of the events.

      31.   It was alternatively submitted on behalf of  the  accused,  that
           even if it is held that the present accused  have  received  the
           property from accused no. 8 Shivaji, yet it cannot be said  that
           he has knowledge that the property was a  stolen  property.   It
           may, however,  be  noted  that  this  appellant-accused  is  the
           jeweler by occupation and he has received four silver chips from
           an ordinary person.  In the circumstances, this very fact  shows
           that the present appellant had knowledge that the property  must
           not have been a normal  property.   In  the  circumstances,  the
           finding of the learned Sessions Judge in this regard also cannot
           be faulted with.”

10.   It was  the  vehement  contention  of  the  learned  counsel  for  the
appellant, that accused nos.  1  to  10  were  all  agricultural  labourers.
Keeping that in mind, when four silver chips  were  presented  for  sale  by
Shivaji Kale to the appellant Pramod Bhanudas Soundankar, it was  inevitable
for him to appreciate, that the said silver chips weighing 1  kilogram  each
could only have been stolen property. Such quantity of  silver  produced  by
an agricultural labour for sale was per se  sufficient  reason  to  believe,
that the same did not belong to the presenter.  This by itself according  to
the learned counsel for the appellant  though  sufficient  for  the  offence
under Section 411, is not  enough for establishing guilt under  Section  412
IPC.  It was submitted that from the evidence produced by  the  prosecution,
it  was  not  possible  to  infer,  that  Pramod  Bhanudas  Soundarkar  (the
appellant herein), had known that  Shivaji  Kala  had  acquired  the  silver
chips from a dacoity, or that he had knowledge that  Shivaji  Kale  belonged
to a gang of dacoits.  In the absence of such proof, it was submitted,  that
the offence under Section 412 IPC could not be  deemed  to  have  been  made
out..
11.   In order to appreciate the submission advanced at  the  hands  of  the
learned counsel for the appellant, it is  necessary  to  extract  hereunder,
Sections 411 and 412 IPC.  The aforesaid provisions are accordingly set  out
below:-
      “411. Dishonestly receiving stolen property –
           Whoever dishonestly receives or  retains  any  stolen  property,
           knowing or having reason  to  believe  the  same  to  be  stolen
           property,  shall  be  punished  with  imprisonment   of   either
           description for a term which may extend to three years, or  with
           fine, or with both.
      412.  Dishonestly receiving property stolen in  the  commission  of  a
           dacoity -

           Whoever dishonestly receives or retains any stolen property, the
           possession whereof he knows or has reason  to  believe  to  have
           been transferred by the commission of  dacoity,  or  dishonestly
           receives from a person, whom he knows or has reason  to  believe
           to belong or to have belonged to a  gang  of  dacoits,  property
           which he knows or has reason to believe  to  have  been  stolen,
           shall be punished with imprisonment for life, or  with  rigorous
           imprisonment for a term which may extend to ten years, and shall
           also be liable to fine.

12.    Having  given  our  thoughtful  consideration  to   the   facts   and
circumstances in the present case, we are of the view, that the  fundamental
ingredient, that the appellant had received the  goods  knowing  (or  having
reason to believe) them to be stolen, stood fully established.   We  say  so
because, it is not a matter of dispute that Shivaji  Kale  (accused  no.  8)
was an agricultural labourer.  For  an  agricultural  labourer,  to  present
four silver chips, weighing 1 kilogram each, at  the  shop  of  a  jeweller,
would clearly result in a grave suspicion that the same did  not  belong  to
him.  For a labourer, it would be unthinkable to own 4 kilograms of  silver.
 In the  background  of  the  aforesaid  factual  position,  that  when  the
appellant, a jeweller, received 4 kilograms of silver from  an  agricultural
labourer, it was obvious to him (the  appellant),  that  the  same  did  not
belong to Shivaji Kale (accused no.8). We are satisfied, that the  appellant
had sufficient cause to entertain a reasonable belief,  that  the  same  was
stolen property.  There can therefore be no doubt, that the Trial Court,  as
also the High Court, were fully justified  in  holding  that  the  appellant
Pramod Bhanudas Soundankar had  purchased  four  silver  chips  produced  by
Shivaji Kale (accused no. 8) believing, that the same were stolen  articles.
  Having  so  concluded,  it  is  clear,  that  the  most  fundamental   and
foundational ingredient of  Sections  411  and  412  IPC  stood  established
against the appellant.
13.    According  to  the  learned  counsel  for  the  appellant,  for   the
satisfaction of the ingredients expressed in Section 412  IPC,  the  accused
could be held to be guilty only, if it could be  further  established,  that
the stolen property received by the appellant, was known to him,  as  having
been procured through, the  commission of a dacoity.  According  to  learned
counsel, consideration at the hands of the Trial Court, as  also,  the  High
Court, with reference to the appellant herein (which have been extracted  in
paragraphs  7  and  8,  respectively)  does  not  establish,  the  aforesaid
ingredient of  Section  412  IPC.   As  such  it  was  submitted,  that  the
prosecution had remained unsuccessful in establishing  all  the  ingredients
of the crime under Section 412 IPC.

14.    The ingredient of Section 412  IPC,  referred  to  in  the  foregoing
paragraph, has an alternative.  Even if the alternative can be  established,
the accused  would be guilty of having  committed  the  crime  expressed  in
Section 412 IPC.  It is apparent from a plain reading of  Section  412  IPC,
that a person receiving stolen goods, would be guilty of  the offence  under
Section 412 IPC, if it can further be  shown,  that  the  recipient  of  the
goods knew (or had reason to believe), that the person offering  the  goods,
belonged to a gang of dacoits.   It  was  the  vehement  contention  of  the
learned counsel for the appellant,  that  the  instant  involvement  of  the
appellant Pramod Bhanudas Soundankar is his  first  involvement  in  such  a
case, inasmuch as, he has never faced a  criminal  trial  earlier,  and  has
never been convicted for  any criminal  involvement  prior  to  his  instant
conviction.   According to  learned  counsel,  the  prosecution  having  not
shown his previous relationship with any of the other 10 accused,  prior  to
the incident under reference, there was  no  question  of  any  presumption,
that the appellant herein had known (or had reason  to  believe),  that  the
offerer of the silver chips belonged to a gang of dacoits.
15.    Having perused the conclusions drawn by the Trial Court as  also  the
High Court with reference to the appellant Pramod  Bhanudas  Soundankar,  it
is not possible for us to conclude, that either  of  the  Courts  below  had
recorded any finding in respect of the other essential  ingredients  of  the
offence under Section 412 IPC.  The evidence produced  by  the  prosecution,
that the appellant Pramod Bhanudas Soundankar had known (or  had  reason  to
believe), that four silver chips  (weighing  1  kiolgram  each)  was  stolen
property, would be sufficient only to establish his guilt under Section  411
IPC.   A perusal of the  impugned  judgments,  does  not  reveal  a  finding
recorded by either the Trial Court or the High  Court,  that  the  appellant
was aware, that the silver chips presented to him by Shivaji  Kale  (accused
n o.8) were procured by the commission of a dacoity.  Even  the  alternative
conclusion, namely, that the appellant knew (or had reason to believe)  that
Shivaji Kale (accused no.8) belonged to a gang of dacoits, was not  recorded
by the courts below.  Even during the course of hearing before  us,  learned
counsel for the State of Maharashtra, could not draw our  attention  to  any
evidence  on  the  basis  whereof,  either  of  the  aforesaid   alternative
ingredients of Section 412 IPC  could  be  demonstrated.   It  is  therefore
clear, that the guilt of the appellant  under  Section  412  IPC  cannot  be
stated to have been substantiated in the  facts  and  circumstances  of  the
present case.
16.   For the reasons recorded  hereinabove,  we  are  satisfied,  that  the
Trial Court, as also the High Court, were not justified  in  convicting  the
appellant under Section 412 IPC.  We therefore, set aside the conviction  of
the appellant under Section 412 IPC.
17.   The sentence imposed on the appellant herein, was based  on  the  fact
that he had been found  guilty  of  offence  under  Section  412  IPC.   Our
determination, however exculpates the appellant from  having  committed  the
offence under Section 412 IPC.  We, however, maintain the conviction of  the
appellant,  under  Section  411  IPC.    The   sentence   of   imprisonment,
contemplated for the offence under Section 411 IPC, can  extend  upto  three
years. In the facts and circumstances of the case,  we  are  satisfied  that
the ends of justice would be met, if the sentence  of  punishment  inflicted
on the appellant is reduced to one year rigorous imprisonment  and  fine  of
Rs.1000/-.  In case of default, in payment of fine he  shall  suffer  simple
imprisonment for one month.  Ordered accordingly.
      Partly allowed, as above.

                                       ……………………………….J.
                                        (B.S. CHAUHAN)


                                        ……………………………….J.
                                        (JAGDISH SINGH KHEHAR)
New Delhi;
November 30, 2012
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