In Atma Ram Builders Private Limited v. A.K. Tuli and others[5], deprecating the conduct of the tenant after the first round of litigation was over by getting inducted another person, this Court expressed its anguish as under: - “4. It is deeply regrettable that in our country often litigations between the landlord and the tenant are fought up to the stage of the Supreme Court and when the tenant loses in this Court then he starts a second innings through someone claiming to be a co-tenant or as a sub-tenant or in some other capacity and in the second round of litigation the matter remains pending for years and the landlord cannot get possession despite the order of this Court. The time has come that this malpractice must now be stopped effectively.” In view of law laid down by this Court, as above, and considering the facts and circumstances of the present case, and conduct of respondents whereby persons in large number inducted unauthorisedly by them without any allotment order, Civil Appeal No. 3763 of 2007, filed by the landlord, deserves to be allowed, and Civil Appeal Nos. 5688-89 of 2007, filed by the respondents (contemnors before the single Judge of the High Court) are liable to be dismissed. We order accordingly. We further direct the Competent Authority (Additional District Magistrate, City, East, Lucknow) to execute the Form-D. However, keeping in mind that there are several occupants (inducted unauthorisedly without any allotment order), on humanitarian ground they are allowed three months’ time from today to vacate the premises voluntarily, whereafter they or anyone occupying in their place along with respondent Nos. 1 to 3 in Civil Appeal No. 3763 of 2007, shall be forcibly dispossessed within 48 hours in compliance of this order, as directed above. The District Magistrate and the Senior Superintendent of Police, Lucknow, are directed to provide every assistance in execution of the order of release, affirmed by the High Court in Writ Petition (R/C) No. 183 of 1991 on 26.5.1999. Needless to say that this Court has already dismissed Special Leave Petition (C) Nos. 24659-60 of 2002 on 10.12.2002, challenging the order passed in the writ petition by the High Court. We also clarify that the landlords are not allowed to let out the released building (in the existing condition), and they shall demolish the building for reconstruction for which the building has been released by the authority concerned.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3763 OF 2007

  Anil Kalra                                         … Appellant


                                   Versus

  J.D. Pandey and others                            …Respondents

                                    WITH

                      CIVIL APPEAL NOS. 5688-89 OF 2007







                               J U D G M E N T


Prafulla C. Pant, J.


The dispute in the present matter pertains to a hundred year  old  building,
which  is  covered  under  Uttar  Pradesh  Urban  Buildings  (Regulation  of
Letting, Rent and Eviction) Act, 1972  (for  short  UP  Act  13  of  1972”).
Section 13 of said Act placed restriction on landlord, tenant  and  also  on
any other person from occupying the building in any capacity, without  there
being an order of release in favour of landlord, or order  of  allotment  in
case of tenant.  The building in question is known as 7,  Dalibagh  situated
in Lucknow.  Originally said property was  owned  by  a  Barrister  Mohammad
Wasim and on his  migration  to  Pakistan,  vested  with  the  Custodian  of
Evacuee Property, and thereafter settled in favour of Rai  Bahadur  Lakshman
Das, a displaced person.  But it appears that physical possession could  not
be delivered to the allottee as the building was in  occupation  of  several
tenants.  It is pleaded that  the  appellant  Anil  Kalra,  along  with  his
brother, sister and two others, has stepped into the shoes of the  landlords
through Dr. Mulk Raj, Dwarika Das and Banarasi Das,  heirs  of  Rai  Bahadur
Lakshman Das by way of sale deeds executed in the years  1982-1983.   It  is
alleged by the appellant that after the tenants  vacated  the  premises,  an
application was moved under Section 16(1)(b)  of  UP  Act  13  of  1972  for
release of  the  building  for  demolition  and  reconstruction  before  the
Competent Authority (authorized Additional District Magistrate).

The Competent Authority called for a report  from  Rent  Control  Inspector,
who inspected the spot and reported on 14.11.1984 that the  Office  of  Cane
Commissioner (tenant on the part of  the  building)  was  in  the  midst  of
vacating the same.  He further reported that as  per  information  received,
Respondent No. 2 Mrigendra Pandey and  Respondent  No.  3  Nripendra  Pandey
(both sons of Dr. J.D. Pandey), under the banner  of  M/s.  Swargiya  Sanjay
Gandhi Sahkari  Avas  Samiti  Ltd,,  after  breaking  open  the  locks,  had
unauthorizedly occupied the building.  It was further reported by  the  Rent
Control Inspector that the Deputy Cane  Commissioner  had  apprehended  that
the part vacated by him was also likely to be occupied by said society,  and
a First Information Report was  lodged  to  that  effect  and  the  District
Magistrate,  Lucknow,  was  also  informed  about  it.    With   the   above
information, the Rent Control Inspector recommended that deemed  vacancy  be
declared in respect of the building under Section 12(1)(b)  of UP Act 13  of
1972, and further reported that there was a case in favour of the  landlord-
appellant for getting released the building for the  purpose  of  demolition
and  reconstruction.   (Co-landlords  also  joined  Anil  Kalra  by   moving
separate application before the  Competent  Authority  (Additional  District
Magistrate, City, Lucknow).  On perusal of the report of  the  Rent  Control
Inspector and after inviting objections of concerned  parties,  vacancy  was
declared.  Thereafter, vide order dated  30.12.1986  (on  application  dated
25.2.1986), the Competent Authority issued the  order  for  release  of  the
building under Section 16(1)(b) of UP Act  13  of  1972  in  favour  of  the
appellant and co-landlords.  When  after  issuance  of  Form-C  unauthorized
occupants failed to vacate the building, Form-D was issued.

The unauthorized occupants filed a  review  petition  before  the  Competent
Authority  (Additional  District  Magistrate,  City),  but  the   same   was
dismissed  with  the  finding  that  the  occupants  were  transferees  from
Swargiya Sanjay Gandhi Sahkari Avas Samiti  Ltd.,  which  has  no  title  or
authority to occupy the building.  On this a  Rent  Revision  was  filed  by
respondent Nos. 1 to 3 (Dr. J.D. Pandey and his two  sons  Mrigendra  Pandey
and Nripendra Pandey, both  advocates).   The  revision  was  decided  by  V
Additional District Judge, Lucknow, vide order dated 28.10.1991,  in  favour
of  said  respondents.   The  appellant  and  co-landlords  filed  the  Writ
Petition No. 183 (R/C) of 1991  before  the  High  Court  of  Judicature  at
Allahabad, Lucknow Bench, challenging the order  passed  by  the  revisional
court.  After hearing the parties, the writ  petition  was  allowed  by  the
High  Court,  vide  order  dated  26.5.1999  with  the  direction  that  the
proceedings for  delivery  of  possession  to  the  landlord  shall  be  re-
initiated from the stage they were  stayed.   The  application  for  recall,
filed by respondent Nos. 1 to 3, was dismissed on 4.7.2002.  That  round  of
litigation attained finality with the dismissal of  Special  Leave  Petition
(C) Nos. 24659-60 of 2002 on 10.12.2002, by this Court.

In the above circumstances, the appellant moved  application  for  execution
of Form-D before the Rent Control Officer (Additional  District  Magistrate,
City, East, Lucknow), and on 22.2,2003 said authority issued  direction  for
execution of Form-D.  It is alleged by the appellant that to  frustrate  the
release order, respondent  Nos.  1  to  3  offered  to  give  possession  of
thirteen rooms only,  and  got  the  eviction  proceedings  stalled  against
unauthorized occupants.  This gave cause to the appellant to  file  Contempt
Petition No. 265 of 2003 before the High Court.   In  said  proceeding  also
respondent Nos. 1 to 3 expressed willingness  to  hand  over  possession  of
thirteen rooms only and not the building.  The  single  Judge,  hearing  the
contempt petition, directed the Rent Control  Officer  (Additional  District
Magistrate, City) to comply the order of the High Court, passed in the  writ
petition, against which Special Leave Petition (C)  Nos.  24659-60  of  2002
had been dismissed.  Respondent Nos. 1 to 3 filed Contempt Appeal No. 51  of
2006 against the interim order dated 1.12.2006, passed by the Judge  hearing
the  contempt  petition.   The  contempt  appeal  was   dismissed   as   not
maintainable.  Thereafter,  the  respondents  filed  Special  Appeal  (Intra
Court Appeal) No. 923 of 2006 before the High Court.  The  appellant  raised
a preliminary objection that no Special Appeal is maintainable  against  the
order of the Judge hearing the contempt petition.  However, the  High  Court
rejected the preliminary objection.   Hence,  this  appeal  through  special
leave, before us.  Connected Civil Appeal Nos. 5688-89 of 2007 are filed  by
respondent Nos. 1 to 3 of the Civil Appeal No.  3763  of  2007  against  the
judgment and orders dated 1.12.2006 and 8.12.2006, passed by the High  Court
in Criminal Miscellaneous Case No. 265 of 2006 and Contempt  Appeal  No.  51
of 2006.

Mr. Pradeep Kant, learned senior counsel for the appellant,  submitted  that
respondent Nos. 1 to 3 cannot be allowed to  frustrate  the  orders  of  the
court passed in the first round of litigation, which attained finality  with
the dismissal of Special Leave Petition (C) Nos. 24659-60 of 2002.   On  the
other hand, Mr. Dinesh Kumar Garg, learned counsel for the  respondents  and
affected parties, submitted that the  landlords  are  not  entitled  to  the
release of more than thirteen rooms vacated by the Cane Commissioner.


However, the respondents failed  to  show  that  under  what  authority  the
building was being occupied by respondent  Nos.  1  to  3  and  let  out  to
various occupants in violation of Section 11 of  the  UP  Act  13  of  1972.
Section 11 reads as under: -
“11. Prohibition of letting without allotment order. – Save  as  hereinafter
provided, no person shall  let  any  building  except  in  pursuance  of  an
allotment order issued under Section 16.”

There is no  allotment  order  issued  in  favour  of  any  of  the  alleged
occupants under Section 16 of the UP Act 13 of 1972.  It is not  in  dispute
that the building is old and covered under sub-section (2) of Section  2  of
the  Uttar  Pradesh  Urban  Buildings  (Regulation  of  Letting,  Rent   and
Eviction) Act, 1972,  which  was  initially  applicable  to  ten  years  old
buildings as on 15.7.1972.  By UP Act 28 of  1976  words  “ten  years”  were
substituted by “twenty years”, and by UP Act No. 11 of 1988  “twenty  years”
were substituted with “forty years”.  As such, in any case the building  was
covered under the Act and not exempted under any of  the  clauses  mentioned
in Section 2 of the UP Act No. 13 of 1972.

The expression “District Magistrate” is defined in clause (c) of  Section  3
and includes an officer authorized by the District Magistrate  to  exercise,
perform and discharge all or any of his powers, functions and  duties  under
the Act.  Clause (b) of sub-Section (1) of Section 12 of UP Act  No.  13  of
1972 provides that a landlord or a tenant of a building shall be  deemed  to
have ceased to occupy the building or a part thereof if he  has  allowed  it
to be occupied by any person who is not a member of his family.  Section  13
of the Act provides that where a landlord  or  tenant  ceases  to  occupy  a
building or part thereof, no person shall occupy it in any capacity  on  his
behalf of otherwise than under  an  order  of  allotment  or  release  under
Section 16.  Clause (b) of sub-section (1) of Section 16 provides  that  the
District Magistrate may by an order release the whole or  any  part  of  the
vacant building in favour of the landlord.


In Firm  Ganpat  Ram  Rajkumar  v.  Kalu  Ram  and  others[1],  this  Court,
commenting on the conduct of the occupants on behalf of the firm, in a  case
under Haryana Urban (Control of Rent and Eviction) Act, 1973,  has  observed
as under: -
“5. In the  aforesaid  view  of  the  matter,  the  question  that  requires
consideration is how will this order of eviction passed by  the  High  Court
and confirmed by this Court by dismissing the special leave petition on  the
terms mentioned hereinbefore on 24-8-1987 is to be enforced or  implemented?
In our opinion, the said order must be implemented and cannot be allowed  to
be defeated by the dubious methods adopted by the partners of the said  firm
of Ganpat Ram Rajkumar. The whole conduct betrays a  calculated  attempt  to
defeat the order of this Court and to mislead this Court.  If  that  is  the
position, in our opinion, parties cannot be allowed to do so  and  get  away
by misleading this Court………..”

In Zahurul Islam v. Abul Kalam and others[2], after  a  decree  of  eviction
passed by the Competent Court,  a  miscellaneous  judicial  case  was  filed
before the Second Court of  the  Assistant  District  Judge,  Alipore,  West
Bengal  on  the  basis  of  forged  rent  receipts  to  get  the   execution
proceedings stalled.  Commenting on the conduct of the tenant, in said  case
this Court made following observations: -
“11. After considering the respective contentions  of  the  learned  counsel
for the parties and the affidavits filed by Respondent 6,  M/s  Hind  Barrel
Co. and Respondents 13 to 15, it  appears  to  us  that  in  the  facts  and
circumstances of the case, the petitioner is entitled to  a  direction  from
this Court that the decree should be executed immediately by  the  executing
court and delivery of the entirety of  the  suit  premises  covered  by  the
decree under execution,  should  be  delivered  to  the  decree-holder,  the
petitioner, Zahurul Islam, by the executing court by evicting Respondent  1,
Abul Kalam and the other respondents including Respondents 6 and  13  to  15
and any other person in possession of any portion of the disputed  premises,
if necessary, with the police help…………….”

In Gayatri Devi and others v. Shashi  Pal  Singh[3],  in  a  case  initiated
under Delhi  Rent  Control  Act  challenging  eviction  decree,  this  Court
expressed its concern in following words: -
“13. The history of this litigation shows nothing but  cussedness  and  lack
of bona fides on the part of the respondent. Apart  from  his  tenacity  and
determination to prevent the appellants from  enjoying  the  fruits  of  the
decree, there appears to be nothing commendable in the case. Even before  us
the same arguments of fraud,  and  that  the  appellants  were  not  legally
owners of the suit property, were pleaded.

            xxx              xxx             xxx

18. Considering that the respondent has deliberately delayed the  execution,
the executing court shall dispose of the execution proceedings  with  utmost
dispatch.”

In M. Meeramytheen and others  v.  K.  Parameswaran  Pillai  and  others[4],
considering the delay made by tenants in vacating the premises after  orders
passed under Kerala  Buildings  (Lease  and  Rent  Control)  Act,  1965,  by
getting inducted sub-tenant, this Court issued following directions: -
“14. The executing court will see that delivery of  possession  is  effected
within a period of fifteen days from the date of  filing  of  the  execution
petition  or  the  application  aforementioned.  In  case  for  delivery  of
possession any armed force is necessary, the same shall be  deputed  by  the
Superintendent of Police within forty-eight hours from the date  requisition
is received therefor. It is also directed that in case anybody  else,  other
than the tenants, is found in possession,  he  shall  also  be  dispossessed
from the premises in question.”

In  Atma  Ram  Builders  Private  Limited  v.  A.K.  Tuli   and   others[5],
deprecating the conduct of the tenant after the first  round  of  litigation
was over by getting  inducted  another  person,  this  Court  expressed  its
anguish as under: -
“4. It is deeply regrettable that in our country often  litigations  between
the landlord and the tenant are fought up to the stage of the Supreme  Court
and when the tenant loses in this Court then  he  starts  a  second  innings
through someone claiming to be a co-tenant or as a  sub-tenant  or  in  some
other capacity and in the second round  of  litigation  the  matter  remains
pending for years and the landlord cannot get possession despite  the  order
of this Court. The time has come that this malpractice must now  be  stopped
effectively.”

In view of law laid down by this Court, as above, and considering the  facts
and circumstances of the present case, and conduct  of  respondents  whereby
persons  in  large  number  inducted  unauthorisedly  by  them  without  any
allotment order, Civil Appeal No. 3763  of  2007,  filed  by  the  landlord,
deserves to be allowed, and Civil Appeal Nos. 5688-89 of 2007, filed by  the
respondents (contemnors before the single  Judge  of  the  High  Court)  are
liable to be dismissed.   We  order  accordingly.   We  further  direct  the
Competent Authority (Additional District Magistrate,  City,  East,  Lucknow)
to execute the Form-D.  However, keeping in  mind  that  there  are  several
occupants  (inducted  unauthorisedly  without  any  allotment   order),   on
humanitarian ground they are  allowed  three  months’  time  from  today  to
vacate the premises voluntarily, whereafter  they  or  anyone  occupying  in
their place along with respondent Nos. 1 to 3 in Civil Appeal  No.  3763  of
2007, shall be forcibly dispossessed within 48 hours in compliance  of  this
order,  as  directed  above.  The  District  Magistrate   and   the   Senior
Superintendent of Police, Lucknow, are directed to provide every  assistance
in execution of the order of release, affirmed by the  High  Court  in  Writ
Petition (R/C) No. 183 of 1991 on  26.5.1999.  Needless  to  say  that  this
Court has already dismissed Special Leave  Petition  (C)  Nos.  24659-60  of
2002 on 10.12.2002, challenging the order passed in  the  writ  petition  by
the High Court.  We also clarify that the landlords are not allowed  to  let
out the released building  (in  the  existing  condition),  and  they  shall
demolish the building for reconstruction for which  the  building  has  been
released by the authority concerned.

With the directions, as above, Civil Appeal No. 3763 of 2007 is allowed  and
Civil Appeal Nos. 5688-89 of 2007 stand dismissed.  There shall be no  order
as to costs.


                                                           ……………….....…………J.
                                                               [Dipak Misra]


New Delhi;                                .……………….……………J.
September 29, 2015.                       [Prafulla C. Pant]
-----------------------
[1]    1989 Supp (2) SCC 418

[2]    1995 Supp (1) SCC 464

[3]    (2005) 5 SCC 527

[4]    (2010) 15 SCC 359
[5]    (2011) 6 SCC 385

We find that the Special Judge, vide the order dated 2.9.2013, has given cogent reasons for not exercising his discretion to order a joint trial. He stated that the evidence in the main case has almost reached the end and as many as 146 witnesses in the main case and 71 witnesses in the second supplementary charge sheet have already been examined, clubbing the two cases together would result in the wastage of the effort already gone into and would lead to a failure of justice. The learned Judge concluded as follows:- In the end I may add that it is not obligatory on the Court to hold a joint trial and provisions of these sections are only enabling provisions. An accused cannot insist with ulterior purpose or otherwise that he be tried as co-accused with other accused, that too in a different case. It is only a discretionary power and Court may allow it in a particular case if the interest of justice so demands to prevent miscarriage of justice. In the instant case, neither the facts and allegations are common, nor evidence is common nor the accused were acting with a commonality of purpose and, as such, there is no ground for holding a joint trial. I may also add that holding a joint trial at this stage may lead to miscarriage of justice. 48) In my humble view, a Court may not deem it desirable to conduct a joint trial, even if conditions of these Sections are satisfied, though not satisfied in the instant case, that is: a) when joint trial would prolong the trial; b) cause unnecessary wastage of judicial time; and c) confuse or cause prejudice to the accused, who had taken part only in some minor offence. We find no infirmity in the impugned judgment. As a result, the appeal and the writ petitions are, therefore, dismissed.

                                                                  REPORTABLE








                        IN THE SUPREME COURT OF INDIA
                  CRIMINAL APPELLATE/ORIGINAL JURISDICTION


                      CRIMINAL APPEAL NO. 1273 OF 2015
               [ARISING OUT OF SLP (CRIMINAL) NO.2978 OF 2014)



ESSAR TELEHOLDINGS LTD.                … APPELLANT


                                   VERSUS


CENTRAL BUREAU OF INVESTIGATION   … RESPONDENT


                                    WITH

                   WRIT PETITION (CRIMINAL) NO.36 OF 2014

                   WRIT PETITION (CRIMINAL) NO.39 OF 2014



                        J U D G M E N T

R.F. Nariman, J.


Leave granted in SLP (Crl.) No.2978 of 2014.

2.    These matters arise as a sequel to  the  judgment  delivered  by  this
Court on 1.7.2013 by which three writ petitions filed by Essar  Teleholdings
Limited, Loop Telecom Limited and Vikash Saraf were dismissed by a  Division
Bench of this Court.
3.    The brief facts necessary to  appreciate  how  the  controversy  arose
before this Court are as follows.

4.    CBI registered an FIR RC No.DAI 2009 A 0045 dated 21.10.2009  alleging
offences  under  the  Prevention  of  Corruption  Act,  1988  and   criminal
conspiracy in respect of the grant of 122 UAS  licenses  in  the  year  2008
against various unknown Government officials, persons  and  companies.   The
gist of the offence was set out in the penultimate  paragraph  of  the  said
FIR, which is set out as follows:

“Thus, the  concerned  officials  of  Department  of  Telecommunications  in
criminal  conspiracy  with  private  persons/companies  by   abusing   their
official position granted Unified Access Service Licenses to a few  selected
companies at nominal rate by rejecting the applications  of  others  without
any valid reason thereby causing wrongful loss to the  Government  of  India
and a corresponding wrongful loss to private persons/companies estimated  to
be more than Rs.22,000 Crores.

The aforesaid facts disclose commission  of  offence  under  sections  120-B
IPC, r/w section 13(2) r/w  13  (1)(d)  of  PC  Act,  1988  against  certain
unknown officials of Department of Telecommunications, Government of  India,
unknown private persons/companies and others”



5.    On 16.12.2010, this Court passed  an  order  reported  in  Centre  for
Public Interest Litigation v. Union of India, (2011) 1  SCC  560,  directing
the CBI to investigate the said FIR.  On  10.2.2011,  while  monitoring  the
CBI investigation, this Court passed an order directing that no other  Court
shall pass any order which may in any manner impede the investigation  being
carried out by the CBI and Directorate of  Enforcement.   On  2.4.2011,  and
25.4.2011, CBI filed a chargesheet and  a  first  supplementary  chargesheet
against 12 accused persons for offences  committed  both  under  the  Indian
Penal Code and the Prevention of Corruption Act. It is  common  ground  that
none of the petitioners before us were  named  or  mentioned  in  these  two
chargesheets.

6.    The present case arises out  of  a  second  supplementary  chargesheet
dated 12.12.2011 naming  8  persons  as  accused,  alleging  offences  under
Section 120B read with Section 420 IPC.  It  is  relevant  to  mention  that
this second  supplementary  chargesheet  which  implicated  the  petitioners
before us did not contain any offences under the  Prevention  of  Corruption
Act.  The CBI mentioned in the said chargesheet that separate offences  came
to their notice during the investigation of FIR RC No.DAI 2009 A 0045, as  a
result of which the second supplementary chargesheet was being filed.   They
further went on to state that these charges are triable by a  Magistrate  of
the First Class but may be endorsed to any appropriate court as  deemed  fit
after which  process  may  be  issued  to  the  accused  persons  for  their
appearance and to face trial as per law.

7.    On 21.12.2011, the  Special  Judge  took  cognizance  of  this  second
supplementary chargesheet dated 12.12.2011 and stated that he was  satisfied
that there is enough incriminating material on  record  to  proceed  against
the accused persons.

8.    Meanwhile, pursuant to an  observation  made  in  this  Court’s  order
dated 10.2.2011, two important  things  happened.   First,  the  Delhi  High
Court passed an administrative order dated 15.3.2011  appointing  Shri  O.P.
Saini as Special Judge to undertake  trial  of  cases  in  relation  to  all
matters pertaining to the 2G Scam, and the Government of NCT of  Delhi  also
promulgated  a  notification  dated  28.3.2011  under  the   Prevention   of
Corruption Act nominating the self-same Shri O.P. Saini a Special  Judge  to
undertake trial of cases in relation to all matters  pertaining  to  the  2G
Scam. Three writ petitions were filed as has been stated above,  challenging
inter alia the order dated 21.12.2011  passed  by  the  Special  Judge,  CBI
taking  cognizance  of  the  matters  stated  in  the  second  supplementary
chargesheet against the petitioners before us.   The  prayers  contained  in
these writ petitions are set out hereunder:

a)  a Writ of  Certiorari  or  an  order  or  direction  in  the  nature  of
certiorari quashing the Administrative Order dated 15.03.2011 issued by  the
Respondent No. 1 in so far as it seeks to confer upon the Ld. Special  Judge
Shri O.P. Saini jurisdiction to inquire into and try all cases  arising  out
of 2G Spectrum scam, which  are  otherwise  exclusively  inquired  into  and
triable by a Magistrate  under  the  relevant  statutes  and  to  quash  all
consequential actions/orders passed thereupon;
b)   a Writ of Certiorari or any other order or direction in the  nature  of
certiorari quashing  the  Notification  bearing  No.  6/05/2011-Judl.  dated
28.03.2011 in so far as it seeks to confer upon the Ld. Special  Judge  Shri
O.P. Saini jurisdiction to inquire into and try all  cases  arising  out  of
the 2G Spectrum scam, including those which are not within the scope of  his
jurisdiction under the relevant  statutes  read  with  the  Constitution  of
India and to quash all consequential actions/orders thereupon;

c)  a writ to quash and set aside order dated 21.12.2011 passed by  the  Ld.
Special Judge Shri O.P. Saini taking cognizance  in  CC  No.  1(B)  of  2011
titled ‘CBI v Ravikant Ruia & Ors’ and all proceedings emanating therefrom;

d)  Pass such other further orders, which may be required  in  the  interest
of justice equity and good conscience.


9.    It will thus be seen that prayers (a) and (b) concern themselves  with
quashing the administrative order dated 15.3.2011 of the High Court and  the
notification dated 28.3.2011  of  the  Government  of  NCT  of  Delhi,  both
appointing and conferring jurisdiction on the Special Judge to enquire  into
and try all cases arising out of the 2G Scam.  Prayer  (c)  was  devoted  to
setting aside the order dated  21.12.2011  passed  by  the  learned  Special
Judge taking cognizance.

10.   In a detailed judgment, this  Court  set  out  the  arguments  of  the
petitioners as follows:
“The  learned  counsel  for  the   petitioner(s)   assailed   the   impugned
Administrative Order passed by the Delhi High Court dated 15-3-2011 and  the
Notification dated 28-3-2011 issued by the Government of  NCT  of  Delhi  on
the following grounds:

14.1. The impugned notification travels beyond the provisions of CrPC.  CrPC
mandates that offences under IPC ought to be tried as per its provisions.

14.2. It  has   been   held   by   this   Hon'ble   Court   in CBI v. Keshub
Mahindra [(2011) 6 SCC 216 : (2011) 2 SCC (Cri)  863]  that:  (SCC  p.  219,
para 11)

“11. No decision by any court, this Court not excluded, can  be  read  in  a
manner as to nullify the express provisions of an Act or the Code….”
                                                      (emphasis in original)

Thus, the Administrative Order and the  notification  are  contrary  to  the
well-settled provisions of law and ought to be set  aside  insofar  as  they
confer jurisdiction on a Special Judge to take cognizance and hold trial  of
matters not pertaining to the PC Act offences.

14.3. If the offence of Section 420 IPC,  which  ought  to  be  tried  by  a
Magistrate, is to be tried by a Court of  Session,  a  variety  of  valuable
rights of the petitioner would be jeopardised. This  would  be  contrary  to
the decision of the Constitution Bench of the Hon'ble Supreme Court  in A.R.
Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] ,  wherein  it
was acknowledged that the right to appeal is a valuable right and  the  loss
of such a right is violative of Article 14 of the  Constitution  of  India.”
[at para 14]

11.   After setting out Sections 194,  26,  220  and  223  of  the  Code  of
Criminal Procedure Code (in short “CrPC”)  and  Sections  3  and  4  of  the
Prevention of Corruption Act, this Court stated:
“From the aforesaid  second  charge-sheet  it  is  clear  that  the  offence
alleged to have been committed by the petitioners in the course of  2G  Scam
cases. For the said reason they have been made accused in the 2G Scam case.

Admittedly, the co-accused of 2G Scam case charged under the  provisions  of
the Prevention of Corruption Act can be tried only  by  the  Special  Judge.
The petitioners are co-accused in the said 2G Scam case. In this  background
Section 220 CrPC will apply and the petitioners though accused of  different
offences i.e. under Sections 420/120-B  IPC,  which  alleged  to  have  been
committed in the course of 2G Spectrum transactions, under Section 223  CrPC
they may be charged and can be tried together with the other  co-accused  of
2G Scam cases.” [at paras 24 and 25]

12.   This Court went on to consider some of the earlier judgments  of  this
Court with reference to the  validity  of  the  administrative  order  dated
15.3.2011 and the notification dated 28.3.2011 and then held:
“On the question of validity of the Notification dated 28-3-2011  issued  by
the NCT of Delhi and Administrative Order  dated  15-3-2011  passed  by  the
Delhi High Court, we hold as follows:


30.1. Under sub-section (1) of Section 3 of the PC Act the State  Government
may, by notification in  the  Official  Gazette,  appoint  as  many  Special
Judges as may be necessary for such area or areas or for such case or  group
of cases as may  be  specified  in  the  notification  to  try  any  offence
punishable under the PC Act. In the present case, as admittedly,  co-accused
have been charged under the provisions of  the  PC  Act,  and  such  offence
punishable  under  the  PC  Act,  the  NCT  of  Delhi  is  well  within  its
jurisdiction to issue notification(s) appointing  Special  Judge(s)  to  try
the 2G Scam case(s).

30.2. Articles 233 and 234 of the Constitution are attracted in cases  where
appointments of persons  to  be  Special  Judges  or  their  postings  to  a
particular Special Court are involved. The control  of  the  High  Court  is
comprehensive, exclusive and  effective  and  it  is  to  subserve  a  basic
feature of the Constitution i.e. independence of judiciary. (See High  Court
of Judicature for Rajasthan v. Ramesh Chand Paliwal [(1998) 3 SCC 72 :  1998
SCC (L&S) 786] and High Court of Orissa v. Sisir Kanta  Satapathy [(1999)  7
SCC 725 : 1999 SCC (L&S) 1373] .) The power to appoint or promote or post  a
District Judge of a State is vested with the Governor  of  the  State  under
Article 233 of the Constitution which can be exercised only in  consultation
with the High Court. Therefore, it is well within the  jurisdiction  of  the
High Court to nominate officer(s) of the rank  of  the  District  Judge  for
appointment and  posting  as  Special  Judge(s)  under  sub-section  (1)  of
Section 3 of the PC Act.

30.3. In  the  present  case,  the  petitioners  have  not  challenged   the
nomination made by the High Court of Delhi to the NCT of  Delhi.  They  have
challenged the letter dated 15-3-2011  written  by  the  Registrar  General,
High Court of Delhi, New Delhi to the District  Judge-I-cum-Sessions  Judge,
Tis Hazari Courts, Delhi and the District  Judge-IV-cum-Additional  Sessions
Judge, I/C, New Delhi District, Patiala House Courts, New Delhi whereby  the
High Court intimated the officers about nomination  of  Mr  O.P.  Saini,  an
officer of Delhi Higher Judicial Service  for  his  appointment  as  Special
Judge for 2G Scam cases.” [at para 30]

13.   In the last paragraph, namely, paragraph 35, this Court dismissed  the
writ petitions in the following terms:
“We find no merit in these writ petitions, they are  accordingly  dismissed.
The Special Court is expected to proceed with the trial on day-to-day  basis
to ensure early disposal of the  trial.  There  shall  be  no  order  as  to
costs.” [at para 35]


14.    Close  upon  the  heels  of  the  judgment  of  this   Court,   Essar
Teleholdings Ltd., one of the  petitioners  before  us,  by  an  application
dated 29.7.2013, sought for a joint trial, by praying as follows:-
Pass an order to give effect to the judgment of the  Hon’ble  Supreme  Court
dated 01.07.2013 passed in Writ Petition (Civil) No. 57  of  2012,  treating
the Accused in CC No. 1B of 2011 as ‘Co-accused’  with  the  Accused  in  CC
No.1 of 2011 and to pass all other consequential  orders,  in  this  regard;
and/or







Consider the matter afresh from the stage  of  the  receipt  of  the  report
under  Section  173(8)  CrPC,  and  frame  fresh  charges  and  also   issue
appropriate directions upon the Applicants joining the Trial  in  C.C.  No.1
of 2011, and/or



Issue appropriate directions to ensure that the proceedings i.e. CC No 1  of
2011 and CC No 1B of 2011 are  assimilated  into  one  Trial  and  for  this
purpose issue appropriate directions to rectify  the  situation  as  to  the
past, and for further proceedings, direct that the Trial being  C.C.  No.  1
of 2011 is conducted in conformity with Section 220 with 223 CrPC;and/or


Pass any other order(s) as this Hon’ble Court may deem  fit  and  proper  in
the interest of justice.


15.   The other two writ petitioners, whose petitions had been dismissed  by
this Court by the judgment dated 1.7.2013, namely, M/s Loop Telecom  Limited
and Mr. Vikash Saraf, both  filed  review  petitions  against  the  judgment
dated 1.7.2013, in which they raised the self-same grounds that were  argued
before this Court.  These review petitions were dismissed by this  Court  on
24.9.2013. It can be seen from this narration of  facts  that  the  judgment
dated 1.7.2013 has become final between all the parties to the lis.

16.   The immediate cause for filing of the present appeals  is  a  judgment
dated 2.9.2013 by which the Special Judge dismissed  the  application  filed
by Essar Teleholdings Ltd. asking for a joint trial.

17.   Shri Harish Salve,  learned  senior  counsel  appearing  for  all  the
petitioners, submitted that as a lot of  water  had  already  flowed  and  a
large number of witnesses have already been examined, the correct course  of
action in the present case  should  be  to  send  the  second  supplementary
chargesheet filed by the CBI to a Magistrate of the First Class to  try  the
offences under Section 120B read with Section 420 of  the  Penal  Code.  His
argument was that this Court, in the judgment dated 1.7.2013, had held  that
since the present petitioners were co-accused  in  the  on-going  trial,  it
must follow that either there be a joint trial, in  which  case  the  entire
proceeding has to start de novo, or as was  suggested  by  him,  the  second
supplementary  chargesheet  should  be  sent  for  trial  separately  to   a
Magistrate of the First Class.  According to learned counsel,  it  is  clear
that under the Prevention of Corruption Act, the Special Judge can only  try
offences that arise under the said Act and not  offences  that  arise  under
the Penal Code.  It is only Section 4(3) of the said Act  that  permits,  in
the circumstances mentioned therein, the trial of Penal Code offences  which
are that when trying any case, the Special Judge may  also  try  an  offence
other than  the  offence  specified  in  Section  3  of  the  Prevention  of
Corruption Act provided that  this  can  only  be  at  the  same  trial.  He
stressed the words “same trial” and said that it is clear that  short  of  a
Penal Code offence being linked to a Prevention of  Corruption  Act  offence
and provided they are tried together, no offence under the  Penal  Code  can
be tried by the Special Judge set up  under  the  Prevention  of  Corruption
Act.

18.   These submissions were countered by Shri Anand Grover, learned  senior
advocate appearing on behalf  of  the  respondents.   According  to  learned
counsel, this Court in the judgment  dated  1.7.2013  did  not  direct  that
there be a joint trial but only observed in passing that the  special  Judge
“may” try the present case along with the main case. He further argued  that
ultimately, since this Court dismissed the writ  petitions  filed  by  these
very petitioners, and stated that the Special Court is expected  to  proceed
with the trial on a day to day basis to ensure early disposal, it  is  clear
that ultimately no joint trial  was,  in  fact,  to  take  place  under  any
alleged direction of this Court. He further went on to submit  that  in  any
case the provisions of Sections 220 and 223 of the CrPC  vest  a  discretion
in the Court, which discretion  has  been  appropriately  exercised  by  the
learned Special Judge on the facts of the present case. He went on to  argue
that if there were to be a joint trial, all the  accused  would  necessarily
have to give their consent which is not the case here.  He also went  on  to
submit, by citing Harjinder Singh v. State of  Punjab,  (1985)  1  SCC  422,
that  the  expression  “same  trial”  occurring  in  section  4(3)  of   the
Prevention of Corruption Act could also mean that the present  case  may  be
tried immediately after the trial in the main case is over.

19.   Having heard learned counsel for both the parties, we are of the  view
that the learned senior advocate for the petitioners is attempting to  raise
submissions which have already been rejected by this Court by  its  judgment
dated 1.7.2013. His main submission, that in  the  fitness  of  things,  the
second supplementary chargesheet should be tried  by  a  Magistrate  of  the
First Class would be directly contrary to the finding  of  this  Court  that
the said second supplementary chargesheet  be  tried  only  by  the  learned
Special Judge. Quite apart from this, his  submission  is  also  beyond  the
prayer made in the application filed before  the  Special  Judge.   We  have
already extracted the said prayer in paragraph 13 above. It  is  clear  that
on a reading of the prayers in the said application, only a joint trial  was
asked for in pursuance of the judgment of  this  Court  dated  1.7.2013.  In
fact, on a reading of the application and  the  arguments  made  before  the
learned Special Judge, the petitioners’ main argument was that  this  Court,
in the order dated 1.7.2013, had in fact mandated a joint trial.   This  was
correctly turned down by the learned Special Judge, regard being had to  the
fact that this Court, in paragraph 25 of the judgment dated  1.7.2013,  only
stated that a discretion was vested with the  Special  Judge  which  he  may
well exercise given the facts of the case.

20.   Read in the backdrop of Sections 220 and  223,  it  is  clear  that  a
discretion is vested with the Court to order a  joint  trial.  In  fact,  in
Chandra Bhal v. State of U.P., (1971) 3 SCC 983, this Court stated:
“Turning to the provisions of the Code, Section  233  embodies  the  general
mandatory rule providing for a separate charge for  every  distinct  offence
and for separate trial for every such charge. The  broad  object  underlying
the general rule seems to be to give to the accused a notice of the  precise
accusation and to save him from being embarrassed  in  his  defence  by  the
confusion which is likely to  result  from  lumping  together  in  a  single
charge distinct offences and from combining several charges  at  one  trial.
There are, however, exceptions to this general rule and they  are  found  in
Sections 234, 235, 236 and 239. These exceptions embrace cases in which  one
trial for more than one offence is not considered  likely  to  embarrass  or
prejudice the accused in his defence. The matter of joinder of  charges  is,
however,  in  the  general  discretion  of  the  court  and  the   principle
consideration controlling the judicial exercise of  this  discretion  should
be to avoid embarrassment to the defence  by  joinder  of  charges.  On  the
appellant's argument the only provision requiring consideration  is  Section
235(1) which lays down that if in one series of acts so  connected  together
as to form the same transaction more offences than one are committed by  the
same person then he may be charged with and tried at  one  trial  for  every
such offence. This exception like the  other  exceptions  merely  permits  a
joint trial of more offences than one. It  neither  renders  a  joint  trial
imperative nor does it bar or prohibit separate trials. Sub-section  (2)  of
Section 403 of the Code also provides that a person acquitted  or  convicted
of any offence may be afterwards tried for any distinct offence for which  a
separate charge might have been made against him on the former  trial  under
Section 235(1). No legal objection to  the  appellant's  separate  trial  is
sustainable and his counsel has advisedly not seriously pressed  any  before
us.” [at para 5]


21.   The other contention of learned senior  counsel  for  the  petitioners
before us has already been answered by this  Court  by  upholding  both  the
administrative  order  dated  15.3.2011  and  the  NCT  notification   dated
28.3.2011.  This Court having  held  that  the  administrative  order  dated
15.3.2011 of the High court was valid, it is clear that even  a  Penal  Code
offence by itself – that is, such offence which is not to be  tried  with  a
Prevention of Corruption Act offence - would be within the  Special  Judge’s
jurisdiction inasmuch as the administrative order of the  High  Court  gives
power to the Special Court to decide  all  offences  pertaining  to  the  2G
Scam.  In fact, once this order is upheld,  the  learned  senior  advocate’s
argument based on Section 4(3) of the Prevention  of  Corruption  Act  pales
into insignificance.  This is for the reason  that  independent  of  Section
4(3) of the Prevention of Corruption  Act  and  of  the  notification  dated
28.3.2011, the Special Judge  has  been  vested  with  the  jurisdiction  to
undertake the trial of all cases in relation to all  matters  pertaining  to
the 2G  Scam  exclusively,  which  would  include  Penal  Code  offences  by
themselves, so long as they pertain to the 2G Scam. Shri Salve  cited  State
(through CBI, New Delhi) v. Jitender Kumar Singh, (2014)  11  SCC  724,  and
paragraph 38 in particular to submit that a Special Judge appointed  to  try
Prevention of Corruption Act cases, cannot try non Prevention of  Corruption
Act cases unless  there  is  a  causal  link  between  such  cases  and  the
Prevention of Corruption Act  cases,  in  which  case  they  must  be  tried
together. As has been held by us, once the challenge to  the  administrative
order dated 15.3.2011, is specifically rejected, the  offences  arising  out
of the second supplementary chargesheet,  being  offences  under  the  Penal
Code relatable to the 2G scam, can be tried separately only by  the  Special
Judge.

22.   We find that the Special Judge, vide the  order  dated  2.9.2013,  has
given cogent reasons for not exercising his  discretion  to  order  a  joint
trial. He stated that the evidence in the main case has almost  reached  the
end and as many as 146 witnesses in the main case and 71  witnesses  in  the
second supplementary charge sheet have already been  examined,  clubbing  the
two cases together would result in the wastage of the  effort  already  gone
into and would lead to a failure of justice.  The  learned  Judge  concluded
as follows:-
47)         In the end I may add that it is not obligatory on the  Court  to
hold a joint trial and  provisions  of  these  sections  are  only  enabling
provisions.  An accused cannot insist with  ulterior  purpose  or  otherwise
that he be tried as co-accused with other accused, that too in  a  different
case.  It is only a  discretionary  power  and  Court  may  allow  it  in  a
particular  case  if  the  interest  of  justice  so  demands   to   prevent
miscarriage of  justice.   In  the  instant  case,  neither  the  facts  and
allegations are common, nor evidence is common nor the accused  were  acting
with a commonality of purpose and, as such, there is no ground  for  holding
a joint trial.  I may also add that holding a joint trial at this stage  may
lead to miscarriage of justice.
48)   In my humble view, a Court may not deem  it  desirable  to  conduct  a
joint trial, even if conditions of these Sections are satisfied, though  not
satisfied in the instant case, that is:
a)  when joint trial would prolong the trial;
b)  cause unnecessary wastage of judicial time; and
c)  confuse or cause prejudice to the accused, who had taken  part  only  in
some minor offence.


23.   We find no infirmity in  the  impugned  judgment.  As  a  result,  the
appeal and the writ petitions are, therefore, dismissed.

                                       …………………….CJI.
                                       (H.L. Dattu)


                                       ………………….……J.

                                       (A.K. Sikri)





                                       …………………….…J.

                                       (R.F. Nariman)

New Delhi;

September 29, 2015.

NO NOTICE IS NECESSARY= as a municipal council is not a public officer, and no notice is necessary when a suit is filed against a municipality. Thus, the question of sufficiency of notice under Section 80 of the CPC does not arise at all. Further, the issuance of notice under Section 284(1) of the Karnataka Municipalities Act, 1964 also does not arise for the reason that the dispute between the parties in the suit in O.S. No. 39 of 1993 does not attract the above provision of the Act and therefore, we need not advert to and answer the above contention.ONCE THE PLAINTIFF PROVED HIS TITLE , BURDEN SHIFTS ON DEFENDANT TO PROVE HIS CASE = In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title.”=The deceased respondent no. 1 also stated in his evidence that he had alienated a further 3 acres 03 guntas in favour of Chaturbhuj Heda. Thus, out of his entire ancestral property, only an area of 5 acres and 22 guntas remained in his ownership. He produced before the learned Civil Judge the khasra patrak for the village for the year 1954-55 as Exh. P9. On the basis of the same, the learned judge rightly came to the conclusion on facts and evidence on record and held that the land in Sy. Nos. 249 and 250 was the ancestral property of the deceased respondent no.1. He further produced before the court the extract of the revision survey register as “Exh. P24” and a copy of the village map as “Exh. P28”. From a perusal of these two documents, the learned Civil Judge came to the correct conclusion that it was proved that the old Sy. Nos. 249 and 250 had become Sy. Nos. 179 to 184. The learned judge also took into consideration the documents marked as “Exh. P37” which was the plaint in the suit O.S. No. 130 of 1980 filed by Chaturbhuj Heda to get the records of revenue rectified. Sri Chaturbhuj had admitted in the plaint in that suit that there was an interchange in the Sy. Nos. 182 and 184 and that he was wrongly shown as the owner of the land in Sy. No. 184, when infact he was the owner of the land in Sy. No.182. Thus, the deceased respondent no.1 has established his title to the suit property. The learned Civil Judge further observed that the appellant Municipality has not produced any document to prove their title to the suit property. Even if it was their case that the suit property was also acquired by the state government, it should have produced the acquisition notifications under Sections 4 and 6 of the Land Acquisition Act of 1894 and award passed under Section 11 of the Act. The learned Civil Judge further held that since the appellant Municipality had denied the title to the deceased respondent no.1 and his ancestors over the suit property, there is no question of them having acquired adverse title over the same. Since the appellant Municipality had no title over the suit property, it did not have any right to confer better title upon the suit schedule property upon the other defendants in the suit in O.S. No. 39 of 1993. We find no merit in the claim of the appellant Municipality, as the reversal of the findings of fact on the relevant points answered by the High Court in exercise of its jurisdiction by recording valid and cogent reasons on the substantial questions are perfectly correct and there is no miscarriage of justice in the interference by the High Court in the judgment and order passed by it in the second appeals. Answer to Point No.3 In view of the reasons mentioned supra, we are of the view that no error has been committed by the High Court in setting aside the erroneous findings of the first appellate court in its judgment and order passed in the Regular Appeals and restoring the judgment and order passed by the learned Civil Judge in O.S. No. 39 of 1993. We accordingly dismiss the Civil Appeals.

                                                                  REPORTABLE

    IN THE SUPREME COURT OF INDIA                         CIVIL APPELLATE
                                JURISDICTION
           CIVIL APPEAL NOS. 8044-8048 OF 2015
                (Arising Out of SLP (C) Nos.21561-21565 of 2005)


THE CITY MUNICIPAL COUNCIL BHALKI,
BY ITS CHIEF OFFICER                 …………APPELLANT
                                     Vs.
GURAPPA (D) BY LRs & ANR.          …………RESPONDENTS

                                 J U D G M E N T


V. GOPALA GOWDA, J.



  Leave granted in the Special Leave Petitions.



The present appeals arise out of the  common  impugned  judgment  and  order
dated 15.07.2005 passed by the High  Court  of  Karnataka  at  Bangalore  in
Regular Second Appeal Nos. 1053, 1054, 1055, 1056 and 1057 of 2001,  whereby
the High Court set aside the judgment and order dated 22.09.2001  passed  by
the Additional District and Sessions Judge, Bidar in RA Nos. 9,  10,11,12  &
13 of 1997.



The facts which are required  to  appreciate  the  rival  legal  contentions
urged on behalf of the parties are stated in brief hereunder:



  The plaintiff-deceased respondent  no.1  herein  (since  died  during  the
pendency of these appeals, is being represented by his LRs  i.e.  respondent
Nos. 1a to 1g)  had filed a suit O.S. No. 255 of 1984 before the  Additional
Civil Judge (Sr. Divn.), Bidar against the Deputy  Commissioner,  Bidar  for
declaration that he is the owner of the land bearing Sy. No.  183  measuring
1 acre 13 guntas and Sy. No. 184  measuring  4  acres  9  guntas  which  are
arising out of the old Sy. Nos. 249 and 250 situate at  Balki  and  as  such
sought for a declaration that they are the owners of the said  property  and
the assignments of property, if any, created  by  the  defendants-appellants
as ineffective. The deceased respondent no.1 also sought for  correction  to
correct the revenue records in respect of the suit land. The  learned  Civil
Judge dismissed the said suit on  the  ground  that  the  plaintiff-deceased
respondent no.1:

“has filed the present suit against the Deputy Commissioner  and  the  Chief
Officer on some misconception of the fact. If wants to  obtain  a  effective
decree, he has to implead various persons who are in  actual  possession  of
various portion of  the  suit  land  and  seek  the  effective  relief  like
declaration of possession etc as  the  plaintiff  has  miserably  failed  to
prove his possession over the suit property……”

The land in old Sy. Nos. 249 and 250 of Kasba Balki previously  belonged  to
the ancestors of respondent  no.1  herein,  Gurappa  (since  deceased).  The
total extent of this land was 41 acres 18 guntas. Out of the above land,  20
acres 29 guntas was owned by the first cousin brother  of  Gurappa,  and  he
was the owner of the remaining 20 acres and 29 guntas.  Parts of it came  to
be acquired by the state government.  Ultimately,  the  deceased  respondent
no.1 retained ownership over 5 acres and  22  guntas  of  land.  During  the
revision of survey and resettlement of the lands in the  village,  the  land
in the said Sy. Nos. 249 and 250 was divided into six new Sy.  Nos.  179  to
184. It is the case of the legal heirs of the deceased respondent no.1  that
some discrepancies had crept in while preparing the new revenue records  and
that due to the wrong entries, the names of  the  owners  and  their  actual
possession did not tally with the survey numbers. The suit land measuring  4
acres and 9 guntas which belonged to the deceased respondent no.1 was  shown
in the name of one Chaturbhuj Heda and allotted Sy.  No.184.  Another  land,
which actually belonged to Chaturbhuj Heda was allotted Sy. No. 182  and  it
was shown in the name of the deceased respondent no.1. Chaturbhuj  Heda  got
his land  surveyed  and  the  Assistant  Director  of  Land  Records  (ADLR)
directed him to get his name entered in  the  RTC  of  Sy.  No.  182,  which
actually belonged to him. The revenue records of the suit schedule  property
of the deceased respondent no.1, however, remained uncorrected.
The deceased respondent No.1 thereafter filed Suit No.  39  of  1993  before
the Civil Judge, Sr. Div. at Basavakalyan,  herein  after  called  as  Civil
Judge, impleading several defendants, and prayed for grant of the decree  of
declaration of the title of the respondents to the suit  land,  recovery  of
possession of  the  suit  land  and  perpetual  injunction  restraining  the
defendants therein from constructing shops over the suit land.  The  learned
Civil Judge after examining the evidence  on  record  decreed  the  suit  in
favour of the deceased respondent no.1, and declared him  as  the  owner  of
the suit property. On the issue of the ownership of the suit  property,  the
learned Civil Judge held as under:

“PW1 has marked Ex P9 to show that Sy.No  249  and  250  are  his  ancestral
properties. Ex. P9 is Khasra Patrak. It is for the  year  1954-1955.  It  is
maintained as per  the  Hyderabad  Land  Revenue  Act  1917.  This  Act  was
repealed on 01.04.1964  and  Karnataka  Land  Revenue  Act  1954  came  into
effect. In view of Section 133 KLR Act, there is presumptive value  for  the
entries of the RoRs of  the  land………Ex.  P9  unequivocally  shows  that  the
plaintiff and Ghallappa were joint owners and joint possessors of  land  Sy.
Nos. 249 and 250 of Kasba Balki.”





   Further, the learned Civil Judge also  recorded  a  finding  of  fact  on
appreciation of evidence on record, that the old Sy. Nos. 249 and  250  were
divided into six new Sy. Nos. (179 to 184) during  the  revision  of  survey
and resettlement of land.

     The  learned  Civil  Judge  further  directed  the  defendant  nos.2-22
therein to put the deceased  respondent  no.1  in  possession  of  the  suit
property. On the issue of the wrong area being mentioned by  the  plaintiff-
deceased respondent no.1 in the earlier suit, the learned Civil  Judge  held
as under:
“Upon perusal of all the records and upon hearing argument what  appears  to
us is that 1) in his previous suit the plaintiff showed the  area  of  Sy.No
184 as 6 acres 35 guntas in his present suit he showed the area of  Sy.  No.
184 as 4 acres 09 guntas such error was due to the mistakes of  the  revenue
department. Inspite of notice under Ex. P30 D-1 kept mum.  Such  conduct  of
D1 was against the purpose of Section 80 CPC. The purpose of such notice  is
to give an opportunity to the government, reconsider the legal  position  to
make amends or to settle the claim without litigation. It was  his  duty  to
take steps for corrections of the entries of revenue records. He did not  do
so. Thereby the plaintiff was led to file the suit mentioning the  incorrect
area. It appears the plaintiff did what he could.  If  one  carefully  reads
Ex. P30 he will understand the pain, helpless and awkward  position  of  the
plaintiff. If D1 remained lethargic, if D1 did not do his  duty  inspite  of
notice, if the plaintiff filed a suit with incorrect available materials  of
revenue records, it appears, it would be unjust to  penalize  the  plaintiff
for such an error on his part. The plaintiff could not  have  undertaken  by
himself the detailed survey of the concerned  land.  The  plaintiff  himself
could have done any of this to set right  the  revenue  records.  Therefore,
one has to believe the plaint allegations, noted supra.”

The plea of the suit being barred by res judicata was  also  raised  in  the
suit proceedings by the defendants therein. The learned Civil Judge came  to
the conclusion on proper appreciation of facts and evidence on  record  that
the “lis” involved in the previous suit between the parties was not  finally
heard and decided, and was only ‘closed’ for non availability  of  necessary
and sufficient records and held as under:
“Therefore I am inclined to hold that the  properties  and  reliefs  in  the
suit are different also that the matter in this suit has not been heard  and
finally decided in all its perspectives in the previous suit (i.e O.S.  255/
84 C.J Bidar).”

Aggrieved, of the judgment and decree passed in the O.S. No. 39 of 1993  the
appellants herein filed Regular Appeal Nos. 9 of 1997, 10  of  1997,  11  of
1997, 12 of 1997 and 13 of 1997 before the Additional District and  Sessions
Judge at Bidar urging various grounds. The learned Additional  District  and
Sessions Judge by his judgment and order dated  22.09.2001,  set  aside  the
judgment and order of the Civil Judge, Bidar. Firstly, it was held that  the
suit filed by the deceased respondent no.1 herein was not  maintainable,  as
the same had been filed without issuing  notice  to  the  appellants  herein
under Section 80 of Code of Civil  Procedure  (hereinafter  referred  to  as
“CPC”) and Section 284(1) of  the  Karnataka  Municipalities  Act.   It  was
further held that the suit is also not maintainable as it is barred  by  res
judicata. The learned Additional District and Sessions judge  held  that  in
the instant case, the  earlier  suit  in  O.S.  No.  255  of  1984  was  not
dismissed on technical grounds, but  on  merits  after  framing  issues  and
taking into consideration the evidence of  both  the  parties.  The  learned
judge also came to the conclusion that the deceased respondent  no.1  herein
had not succeeded in proving his title to the suit land.



The deceased respondent no.1  then  preferred  Regular  Second  Appeal  Nos.
1053, 1054, 1055, 1056 and 1057 of 2001 before the High Court  of  Karnataka
by framing certain substantial questions of law. The  learned  single  judge
of the High Court set  aside  the  judgment  and  order  of  the  Additional
District and Sessions Judge in the first appeals dated  22.09.2001  referred
to supra. On the issue of dismissal of suit for want of notice, the  learned
single judge held that the dismissal of the suit on  the  technical  grounds
was bad in law. The learned single judge also restored the finding  of  fact
recorded by the learned Civil  Judge  in  O.S.  No.  39  of  1993  that  the
deceased respondent no.1 herein had  succeeded  in  proving  his  title  and
ownership over the suit property. Further, on the issue of res judicata,  it
was observed that to take the plea of res judicata, one of  the  ingredients
is that the litigating parties must be the same and that the subject  matter
of the suit also must be identical. The earlier suit was  dismissed  not  on
merits but for want of clarity and for want of necessary parties. Thus,  all
the substantial questions of law framed  were  answered  in  favour  of  the
deceased respondent no.1 herein. Aggrieved, the appellant  Municipality  has
filed these present appeals before us questioning  the  correctness  of  the
judgment of the learned single judge of the Karnataka High Court by  raising
various questions of law and urging grounds in support of the same.



We have heard the learned counsel appearing on behalf of both  the  parties.
On the basis of the factual evidence on record produced before  us  and  the
circumstances of the  case  and  also  in  the  light  of  the  rival  legal
contentions urged by the learned senior counsel for  both  the  parties,  we
have broadly framed the following points which  require  our  attention  and
consideration-



Whether the suit in O.S. No. 39 of 1993 filed before the Civil Judge,  Bidar
was barred by res judicata?



Whether the deceased respondent no.1 has  succeeded  in  proving  his  title
over the ownership of the suit property?



What order?


Answer to Point No.1
The deceased respondent no.1 had filed a suit  in  O.S.  No.  255  of  1984,
which was dismissed. Thereafter, he filed a suit in  O.S.  No.  39  of  1993
before the Civil Judge, Bidar, after  impleading  certain  other  defendants
therein and changing the description of the suit property.



Mr. Basava Prabhu S. Patil, learned senior counsel appearing  on  behalf  of
the appellant Municipality contends that  the earlier suit in O.S.  No.  255
of 1984 having been filed by the deceased respondent no.1 against  the  same
defendants;  in  respect  of  the  same  subject  matter,  with   the   same
allegations and having been decided by a court  of  competent  jurisdiction,
on merits after due consideration of  the  extensive  evidence  led  by  the
parties, attracts the bar of res judicata and the subsequent  suit  in  O.S.
No. 39 of 1993 was not maintainable. It is further contended that  the  suit
in O.S. No. 255 of 1984 was not dismissed  on  technical  grounds,  but  the
Trial Court gave a well reasoned order, passed after considering the  matter
on merits. The learned senior counsel contended that  the  Trial  Court  had
recorded a finding of fact that the land claimed by the deceased  respondent
no.1 was not created out of the land in Sy. Nos. 249 and  250.  The  learned
senior counsel further contends that the impleadment of respondent nos.3  to
22 herein in the subsequent suit O.S. No. 39  of  1993  was  not  enough  to
overcome the bar of res judicata, as they all  claimed  title  to  the  suit
land through the appellant Municipality. The learned senior counsel  further
contends that the Trial Court had not granted the liberty  to  the  deceased
respondent no.1 to file a fresh suit, and that since  the  matter  had  been
decided on merits, the subsequent suit brought on the same grounds  was  not
maintainable in law.



The learned senior counsel further contends  that  the  deceased  respondent
no.1 was barred from seeking relief  in  respect  of  Sy.  No.  183  in  the
subsequent suit in O.S. No. 39 of 1993 as it was hit by the bar of Order  II
Rule 2 of the CPC.



Mr. Shekhar Naphade, learned counsel appearing on  behalf  of  some  of  the
legal heirs of the deceased respondent no.1, on  the  other  hand  contended
that the bar of res judicata does not operate  on  the  subsequent  suit  in
O.S. No. 39 of 1993 by virtue of the judgment  and  order  dated  09.01.1986
passed in O.S. No. 255 of 1984 as the earlier suit  had  been  dismissed  on
the ground of non-joinder of necessary parties, and  the  said  order  could
not be said to operate as res judicata. He further contended that  the  suit
property and even the  parties  involved  in  the  two  original  suits  are
different. The learned senior  counsel  further  contended  that  the  Trial
Court in the order passed in O.S. No. 255 of 1984 has given liberty  to  the
deceased respondent no.1 to file a fresh suit, as  the  suit  was  dismissed
only on the ground that no effective relief  can  be  granted.  The  learned
counsel further contended that the bar of Order II Rule 2 of the CPC  cannot
operate against the heirs of the deceased respondent  no.1,  as  they  could
not identify the property due to the mismanaged revenue records,  and  thus,
they should not be made to suffer for the same. Mr. K Nagmohan Das,  learned
senior counsel appearing on behalf of some of the other legal heirs  of  the
deceased respondent no.1 argued that  the  bar  of  res  judicata  does  not
operate on the suit in O.S. No. 39 of 1993, as the earlier  suit  cannot  be
said to have been dismissed on merits. The learned senior  counsel  contends
that for the bar of res judicata to operate, there must have  been  a  final
adjudication on substantial issues between the  same  parties  on  the  same
subject matter, which was not done in the instant case.



We agree with  the  contentions  advanced  by  the  learned  senior  counsel
appearing on behalf of the legal heirs of the deceased respondent no.1.

 The principle of res judicata has been codified under Section 11 of CPC  in
the following terms:
“11. Res judicata— No Court shall try any suit or issue in which the  matter
directly and substantially in issue has been directly and  substantially  in
issue in a former suit between the same parties, or  between  parties  under
whom they or any of them claim, litigating under the same title, in a  Court
competent to try such subsequent suit or the suit in which  such  issue  has
been subsequently raised, and has been heard and  finally  decided  by  such
Court.”


The principle of res judicata is a need of any judicial system, that is,  to
give finality to the judicial decisions of the disputes between parties.  It
also aims to prevent multiplicity of proceedings between  the  same  parties
of the same subject matter of the lis.  An  issue  which  was  directly  and
substantially involved in a former suit between the same  parties,  and  has
been decided and has attained finality  cannot  be  re-agitated  before  the
courts again by instituting suit or proceeding by the same  parties  on  the
same subject matter of earlier lis. This court in  a  catena  of  cases  has
laid down the law relating  to  the  essential  elements  that  need  to  be
satisfied before a plea of res judicata can be raised by  a  party.  In  the
case of Sheodan Singh v. Daryao Kunwar[1] it was held as under:
“A plain reading of s. 11 shows that to constitute a  matter  res  judicata,
the following  conditions  must  be  satisfied,  namely  -  (i)  The  matter
directly and substantially in issue in the subsequent suit or issue must  be
the same matter which was directly and substantially in issue in the  former
suit; (ii) The former suit must have been a suit between  the  same  parties
or between parties under whom they or any of them claim; (iii)  The  parties
must have litigated under the same title in the former suit; (iv) The  court
which decided the  former  suit  must  be  a  court  competent  to  try  the
subsequent suit or the suit in which such issue is subsequently raised;  and
(v) The matter directly and substantially in issue in  the  subsequent  suit
must have been heard and finally decided by the Court in the first suit.”

The above legal principles laid down by this Court have been  reiterated  in
the case of Syed Mohd. Salie Labbai  &  Ors.  v.  Mohd.Hanifa  &  Ors[2]  as
under:

“…….it may be necessary to mention that before a plea of  res  judicata  can
be given effect, the following conditions must be proved-


(1) that the litigating parties must be the same;


(2) that the subject-matter of the suit also must be identical;


(3) that the matter must be finally decided between the parties; and

(4) that the suit must be decided by a court of competent jurisdiction.”


Thus, for the bar of res judicata to  operate  in  the  subsequent  original
suit proceedings, the litigating parties must be the same, and  the  subject
matter of the suit must also be identical. Further, it has  also  been  held
by this court in the case of Ram Gobinda v. Bhakta Bala[3] that for the  bar
of res judicata to operate in the subsequent original suit proceedings,  the
decision in the former suit must have been decided on  merits  on  the  same
substantial questions both on facts and in  law  that  would  arise  in  the
subsequent original suit.

         In the instant case, no doubt the Trial Court in the suit  in  O.S.
No. 255 of 1984 filed by the deceased respondent no.1 framed certain  issues
and even examined the documents produced by  the  parties.  The  fact  which
cannot be lost sight of is that ultimately the learned trial judge  came  to
the following conclusion:
“For all the reasons mentioned above, I come  to  the  conclusion  that  the
plaintiff has failed the present suit against the  Deputy  Commissioner  and
the chief officer on some mis-conception of fact. If he wants to  obtain  an
effective decree, he has to  implead  various  persons  who  are  in  actual
possession of various portions of the  suit  land  and  seek  the  effective
relief like declaration and possession etc as the  plaintiff  has  miserably
failed to prove his possession over the suit property……”

The prayer in suit in O.S. No. 255 of 1984 was for:
“declaration of title holding that the illegal and  unauthorized  assignment
if any created by defendant no.2 shall stand void ab  initio  and  issue  of
perpetual injunction in respect of land Sy.No. 184  measuring  06  acres  35
guntas, situated at Balki……”

Whereas, the prayer in the suit of O.S. No. 39 of  1993  instituted  by  the
deceased respondent no.1 reads as under:
“1) Declaration of plaintiff’s title to the suit land
2) Recovery of possession of the suit land
3) Perpetual injunction, restraining D3 to D22 from constructing shops  over
the suit land.
4) Correction of R.O.Rs”

Thus, it can be seen that neither the parties, nor the  subject  matter  was
the same in the earlier suit O.S. No. 255 of 1984 and O.S. No. 39  of  1993.
It also becomes crystal clear that the deceased respondent no.1  herein  has
availed the indirect liberty granted by the Additional Civil Judge  in  O.S.
No. 255 of 1984 that
“if he wants to obtain an  effective  decree,  he  has  to  implead  various
persons who are in actual possession of various portions of  the  suit  land
and seek the effective relief like declaration of possession etc”

Since neither the reliefs claimed in the two suits were identical,  nor  the
parties are the same and nor could the decision in the first  suit  said  to
have  been  on  merits,  it  cannot  be  held  in  the  singular  facts  and
circumstances that the suit in O.S.  No.  39  of  1993  was  barred  by  res
judicata as contended by the learned senior counsel  Mr.  Basava  Prabhu  S.
Patil.



At this stage, we also direct our attention to the contention raised by  Mr.
Basava Prabhu S. Patil, learned senior counsel appearing on  behalf  of  the
appellant Municipality that the  suit  in  O.S.  No.  39  of  1993  was  not
maintainable, as the notice was issued under Section 80 of CPC in suit  O.S.
No. 255 of  1984  could  not  be  said  to  be  sufficient  notice  for  the
institution of the suit in O.S. No. 39 of 1993. We  cannot  agree  with  the
said contention. The High Court  of  Karnataka  in  the  Second  Appeal  had
dismissed the contention on the ground that the notice issued  in  the  suit
O.S. 255 of 1984 can be said to  be  constructive  notice.  The  High  Court
considered that the object of the Section is  the  advance  of  justice  and
securing of public good.

         In our opinion, this issue does not arise at all,  as  a  municipal
council is not a public officer, and no notice is necessary when a  suit  is
filed against a municipality. Thus, the question of  sufficiency  of  notice
under Section 80 of the CPC does not arise at all. Further, the issuance  of
notice under Section 284(1) of the Karnataka Municipalities Act,  1964  also
does not arise for the reason that the dispute between the  parties  in  the
suit in O.S. No. 39 of 1993 does not attract the above provision of the  Act
and therefore, we need not advert to and answer the above contention.
Answer to Point no.2



Mr. Basava Prabhu S. Patil, the learned senior counsel appearing  on  behalf
of the appellant Municipality contends that the onus  of  proving  title  to
the suit property heavily rests on deceased respondent no.1,  and  that  the
mere failure on part on the appellant Municipality to  establish  its  title
to the suit schedule property does not entitle the deceased respondent  no.1
to obtain a decree of declaration, possession and consequential  reliefs  as
sought for in respect of the suit schedule property  in  the  original  suit
proceedings.

        The learned senior counsel further contends that  the  variation  in
the extent of land claimed by the  deceased  respondent  no.1  at  different
stages, that is, 6 acres and 35 guntas in the suit O.S. No. 255 of 1984  and
5 acres and 21 guntas in the suit  in  O.S.  No.  39  of  1993  without  any
explanation offered by the  deceased  respondent  no.1  for  such  variation
itself if indicative of the falsity of  the  claim  of  deceased  respondent
no.1. The learned senior counsel has further contended that the  entries  in
the revenue records in respect of the suit schedule property  stand  in  the
name of one Ghallappa and Chaturbhuj Heda and thus no presumption  from  the
RTC records as to the ownership of suit  property  the  deceased  respondent
no.1 or his legal heirs can be raised by them. The  learned  senior  counsel
contends that the learned Civil Judge and the High Court of  Karnataka  have
erred in coming to the conclusion that the  deceased  respondent  no.1,  has
succeeded in establishing his title over the suit property.
On the other hand, Mr. Shekhar Naphade, the  learned  counsel  appearing  on
behalf of some of the legal heirs of the respondent no.1 contends that  they
have succeeded in establishing  their  title  of  ownership  over  the  suit
property. He has further contended that the variations in the extent of  the
land have only crept in due to the mistake of  the  appellant  Municipality.
The onus was on the Municipality to maintain the  record  properly  and  the
same has not been done in the instant  case.  The  same  cannot  be  made  a
ground to disentitle the deceased respondent no.1, especially  in  light  of
the fact that the Civil Judge in O.S. No. 39 of  1993,  on  appreciation  of
evidence  on  record  recorded  the  finding  of  fact  that  the   deceased
respondent no.1 was the owner of the land bearing  Sy.  Nos.  249  and  250,
which has been proved by way of the khasra pahni patrak,  produced  as  Exh.
P9 before  it.  The  learned  Civil  Judge  further  examined  the  document
produced as “Exh. P28”, the map of land bearing  Sy.  Nos.  179  to  184  of
Balki village, and “Exh. P33”, copy of land revenue receipts in the name  of
the deceased respondent no.1 to show that the land revenue tax  is  paid  by
him in respect of land bearing Sy. Nos. 179, 182, 183  for  the  year  1983-
1984.



We are unable to agree with the  contentions  advanced  by  the  Mr.  Basava
Prabhu S. Patil learned senior counsel appearing on behalf of the  appellant
Municipality. The learned Civil Judge, Bidar decreed the suit  in  O.S.  No.
39 of 1993 in favour of the legal heirs of  the  deceased  respondent  no.1,
which judgment and order was restored by the Karnataka  High  Court  in  the
second appeal, after it was set aside  judgment  and  order  passed  in  the
first appeals. The learned senior counsel on behalf  of  the  Appellant  has
not brought to our attention, any evidence, which can lead  us  to  come  to
the conclusion that the learned Civil Judge, Bidar and the learned judge  of
the High Court of Karnataka have erred in decreeing the suit  in  favour  of
the deceased respondent no.1.



It is a settled position of law that in a suit for declaration of title  and
possession, the onus is upon the plaintiff to prove his title. Further,  not
only is the onus on the plaintiff, he must prove  his  title  independently,
and a decree in his favour cannot be awarded for the only  reason  that  the
defendant has not been able to prove his title, as held  by  this  Court  in
the case of Brahma Nand Puri v. Neki Puri[4] as under:

“………the plaintiff's suit being one for ejectment he has to succeed  or  fail
on the file that he establishes and if he cannot succeed on the strength  of
his  title  his  suit  must  fail  notwithstanding  that  the  defendant  in
possession has no title to the property………”



The same view has been reiterated by this Court in the more recent  case  of
R.V.E Venkatachala Gounder  v.  Arulmigu  Viswesaraswami  &  V.P.  Temple  &
Anr.[5] as under:

“In a suit for  recovery  of  possession  based  on  title  it  is  for  the
plaintiff to prove his title and satisfy the  Court  that  he,  in  law,  is
entitled to dispossess the defendant  from  his  possession  over  the  suit
property and for  the  possession  to  be  restored  with  him.  …………In  our
opinion, in a suit for possession based on  title  once  the  plaintiff  has
been able to create a high degree of probability so as to shift the onus  on
the defendant it is for the defendant to  discharge  his  onus  and  in  the
absence thereof the burden of proof lying on the plaintiff shall be held  to
have been discharged so as to amount to proof of the plaintiffs title.”



In our opinion, on perusal of the material evidence  on  record,  the  legal
heirs of the deceased respondent no.1 herein have succeeded in  establishing
their title to the suit property.

The deceased respondent no.1 herein established  before  the  learned  Civil
Judge and the High Court of Karnataka that he was the owner of 20 acres  and
29 guntas of land, which formed part of  Sy.  Nos.  249  and  250  of  Balki
village. Part of  this  land  was  acquired  by  the  state  government  for
development around the area, the details of which are as under:





|Tahsil office               |3 acres 30 guntas                         |
|Munsiff court               |3 acres 00 guntas                         |
|School                      |4 acres 12 guntas                         |
|Hospital                    |0 acres 30 guntas                         |
|Road                        |1 acres 05 guntas                         |






The deceased respondent no. 1 also  stated  in  his  evidence  that  he  had
alienated a further 3 acres 03 guntas in favour of  Chaturbhuj  Heda.  Thus,
out of his entire ancestral property, only an area of 5 acres and 22  guntas
remained in his ownership. He produced before the learned  Civil  Judge  the
khasra patrak for the village for the year 1954-55 as Exh. P9. On the  basis
of the same, the learned judge rightly came to the conclusion on  facts  and
evidence on record and held that the land in Sy. Nos. 249 and  250  was  the
ancestral property of the deceased  respondent  no.1.  He  further  produced
before the court the extract of the revision survey register as  “Exh.  P24”
and a copy of the village map as “Exh. P28”. From a  perusal  of  these  two
documents, the learned Civil Judge came to the correct  conclusion  that  it
was proved that the old Sy. Nos. 249 and 250 had  become  Sy.  Nos.  179  to
184. The learned judge also took into consideration the documents marked  as
“Exh. P37” which was the plaint in the suit O.S. No. 130 of  1980  filed  by
Chaturbhuj Heda to get the records of revenue rectified. Sri Chaturbhuj  had
admitted in the plaint in that suit that there was  an  interchange  in  the
Sy. Nos. 182 and 184 and that he was wrongly shown as the owner of the  land
in Sy. No. 184, when infact he was the owner of  the  land  in  Sy.  No.182.
Thus, the deceased respondent no.1 has established his  title  to  the  suit
property. The learned  Civil  Judge  further  observed  that  the  appellant
Municipality has not produced any document to prove their title to the  suit
property. Even if it  was  their  case  that  the  suit  property  was  also
acquired by the state government, it should have  produced  the  acquisition
notifications under Sections 4 and 6 of the Land  Acquisition  Act  of  1894
and award passed under Section 11  of  the  Act.  The  learned  Civil  Judge
further held that since the appellant Municipality had denied the  title  to
the deceased respondent no.1 and  his  ancestors  over  the  suit  property,
there is no question of them having acquired adverse title  over  the  same.
Since the appellant Municipality had no title over  the  suit  property,  it
did not have any right  to  confer  better  title  upon  the  suit  schedule
property upon the other defendants in the suit in O.S. No. 39  of  1993.  We
find no merit in the claim of the appellant Municipality,  as  the  reversal
of the findings of fact on the relevant points answered by  the  High  Court
in exercise of its jurisdiction by recording valid  and  cogent  reasons  on
the substantial questions are perfectly correct and there is no  miscarriage
of justice in the interference by the High Court in the judgment  and  order
passed by it in the second appeals.





Answer to Point No.3





In view of the reasons mentioned supra, we are of the  view  that  no  error
has been committed  by  the  High  Court  in  setting  aside  the  erroneous
findings of the first appellate court in its judgment and  order  passed  in
the Regular Appeals and restoring the  judgment  and  order  passed  by  the
learned Civil Judge in O.S. No. 39  of  1993.  We  accordingly  dismiss  the
Civil Appeals.

                              …………………………………………………J.
                          [V. GOPALA GOWDA]


                              …………………………………………………J.
                              [AMITAVA ROY]

New Delhi,
September 29, 2015
-----------------------
[1]    AIR 1966 SC 1332
[2]    AIR 1976 SC 1569
[3]    AIR 1971 SC 664
[4]    AIR 1965 SC 1506
[5]    (2003) 8 SCC 752

whether the parties had agreed on 7.5.2003 that the purchase of the shares by the present management will be made as per valuation to be determined. =The order of the learned Single Judge dated 17.3.2004 refers to the an earlier order dated 7.5.2003 which records that in course of hearing of application for winding up, the parties agreed that the shares of the company be valued so that the management could offer purchase of the shares of the petitioner (respondent herein). At the first instance the cost of valuation of shares was ordered to be borne by the respondent herein. On 17.3.2004 the Court noted that the Valuation Report declared the value of the shares as Rs.2,530/- per share and at that rate the respondent herein was agreeable to sell his three hundred shares. The company however offered to buy the shares at Rs.500/- per share. The Court found such variation in the stand of the company without any reason and hence it directed the company to purchase the shares as per Valuation Report. The Court also directed the appellant to bear 50% of the cost paid to the valuer by reimbursing the respondent herein for a sum of Rs.12,900/-. As noted earlier the above order was modified partly on 29.3.2004 by adding a default clause in case the company failed to make the required payment and further by order dated 20.4.2004 the time for payment was fixed as - on or before 1.6.2004. The Division Bench noted the aforesaid relevant facts and came to the view, and in our opinion rightly, that the case of the parties rested on the issue whether the parties had agreed on 7.5.2003 that the purchase of the shares by the present management will be made as per the valuation to be determined. The only submission advanced before the Division Bench was that the company or its management was not bound to offer for purchase of the shares at the rate determined by the Valuation Report. The Division Bench found such submission to be unacceptable in the light of the gist/substance of the order dated 7.5.2003. The Division Bench inferred that the learned Single Judge could not have forced the parties to reach to an agreement and nearly Rs.26,000/- spent for finding out valuation of the shares could not have been just for fun. The Division Bench dismissed the appeal with costs. On hearing the parties we find that the same contention which was raised by the appellant before the Division Bench has been reiterated. We also find no merit in the contentions. There is no infirmity factual or legal in the order of the Division Bench to warrant interference. The appeal is dismissed with cost of Rs.25,000/-.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2923 OF 2006

Bagri Synthetics Private Ltd.                       …..Appellant

      Versus

Hanuman Prasad Bagri                         ...Respondent



                               J U D G M E N T


SHIVA KIRTI SINGH, J.

Appellant is a company against whom a  winding  up  petition  filed  by  the
respondent under Sections 433, 434 and 439  of  the  Companies  Act  bearing
Company Petition No. 112 of 2002 is pending in the High Court  at  Calcutta.
The plea for winding up is based upon just and  equitable  grounds.  In  the
facts of the case, after hearing the parties  the  Court  ordered  that  the
shares of the company be valued by  an  approved  auditor  so  that  company
would settle the dispute by purchasing the three hundred shares held by  the
respondent in the company and bring the dispute to a quietus. The  Valuation
Report was submitted in January 2004. The  appellant  raised  objections  to
the report to which reply was filed by the respondent.  The  learned  Single
Judge on 17.3.2004 directed the appellant company to purchase the shares  of
the respondent as per Valuation  Report  in  respect  of  the  rate  of  the
shares. That order was partly modified on 29.3.2004 to provide that in  case
of default by the company, the respondents  shall  be  at  liberty  to  make
publication in “The Statesman” and “Anand Bazar  Patrika”.  By  yet  another
order dated 20.4.2004 learned  Single  Judge  fixed  1.6.2004  as  the  time
schedule by which the appellant company was required to pay the due  amount.
All the aforesaid three orders were challenged by the appellant  through  an
intra-court appeal before the Division Bench bearing Civil  Appeal  No.  266
of 2004. Ultimately that appeal was dismissed by an  order  dated  12.7.2004
and that order of the Division Bench is the subject matter  of  the  present
appeal.

The order of the learned Single Judge dated 17.3.2004 refers to  an  earlier
order dated 7.5.2003 which records that in course of hearing of  application
for winding up, the parties agreed that the shares of the company be  valued
so  that  the  management   could  offer  purchase  of  the  shares  of  the
petitioner (respondent herein). At the first instance the cost of  valuation
of shares was ordered to be borne by the  respondent  herein.  On  17.3.2004
the Court noted that the Valuation Report declared the value of  the  shares
as Rs.2,530/-  per  share  and  at  that  rate  the  respondent  herein  was
agreeable to sell his three hundred shares. The company however  offered  to
buy the shares at Rs.500/- per share. The Court found such variation in  the
stand of the company without any reason and hence it  directed  the  company
to purchase the shares as per Valuation Report. The Court also directed  the
appellant to bear 50% of the cost paid to  the  valuer  by  reimbursing  the
respondent herein for a sum of  Rs.12,900/-.  As  noted  earlier  the  above
order was modified partly on 29.3.2004 by adding a default  clause  in  case
the company failed to make the required payment and further by  order  dated
20.4.2004 the time for payment was fixed as - on  or  before  1.6.2004.  The
Division Bench noted the aforesaid relevant facts and came to the view,  and
in our opinion rightly, that the case of the parties  rested  on  the  issue
whether the parties had agreed on 7.5.2003 that the purchase of  the  shares
by the  present  management  will  be  made  as  per  the  valuation  to  be
determined. The only submission advanced before the Division Bench was  that
the company or its management was not bound to offer  for  purchase  of  the
shares at the rate determined by the Valuation Report.  The  Division  Bench
found such submission to be unacceptable in the light of the  gist/substance
of the order dated 7.5.2003. The Division Bench inferred  that  the  learned
Single Judge could not have forced the parties to reach to an agreement  and
nearly Rs.26,000/- spent for finding out valuation of the shares  could  not
have been just for fun. The Division Bench dismissed the appeal with costs.
On hearing the parties we find that the same contention which was raised  by
the appellant before the Division Bench has been reiterated.  We  also  find
no merit in the contentions. There is no infirmity factual or legal  in  the
order  of  the  Division  Bench  to  warrant  interference.  The  appeal  is
dismissed with cost of Rs.25,000/-.

             

                       …………………………………….J.
                       [VIKRAMAJIT SEN]



..…………………………………..J.
                             [SHIVA KIRTI SINGH]
New Delhi.
September 29, 2015.
-----------------------
4