defamation - vicarious liability = FACTS, ISSUE & RATIO DECIDENDI OF K.M. MATHEW’S CASE: “20. The provisions contained in the Act clearly go to show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than editor can also be held responsible for selecting the matter for publication in a newspaper.” - The extent of the applicability of the principle of vicarious liability in criminal law particularly in the context of the offences relating to defamation are neither discussed by the High Court in the judgment under appeal nor argued before us because the respondent neither appeared in person nor through any advocate. Therefore, we desist from examining the question in detail. But we are of the opinion that the question requires a serious examination in an appropriate case because the owner of a newspaper employs people to print, publish and sell the newspaper to make a financial gain out of the said activity. Each of the abovementioned activities is carried on by persons employed by the owner. Where defamatory matter is printed (in a newspaper or a book etc.) and sold or offered for sale, whether the owner thereof can be heard to say that he cannot be made vicariously liable for the defamatory material carried by his newspaper etc. requires a critical examination.

1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2059 OF 2017
(Arising out of Special Leave to Appeal (Crl.) No.1741 of 2017)
Mohammed Abdulla Khan … Appellant
Versus
Prakash K. … Respondent
J U D G M E N T
Chelameswar, J.
1. Leave granted.
2. The sole respondent is admittedly the owner of a Kannada
Daily Newspaper by name “Jaya Kirana” published from
Mangalore, Karnataka. On 16.12.2013, the said newspaper
carried a news item containing certain allegations against the
appellant herein. According to the appellant, the allegations are
highly defamatory in nature.
2
3. The appellant lodged a report with the Panambur Police,
Mangalore, Dakshina Kannada District on 17.12.2013 against
the respondent and another person who was editor of the
abovementioned newspaper. Police did not take any action.
Thereafter, the appellant filed a private complaint against the
respondent and the editor of the abovementioned newspaper
before the J.M.F.C.-II, Mangalore in PCR No.24/2014 which
eventually came to be numbered as CC No.1252 of 2014. The
learned Magistrate took cognizance of the matter on 15.04.2014
for the offences punishable under Section 500, 501 and 502 of
the Indian Penal Code, 1860.
4. Aggrieved by the order dated 15.04.2014, the respondent
carried the matter in Revision Petition No.219 of 2014 before the
Sessions Judge, Dakshina Kannada, Mangalore. By the order
dated 06.11.2015, the respondent’s revision was dismissed.
Respondent further carried the matter in Criminal Petition
No.8679 of 2015 to the Karnataka High Court invoking Section
482 of the Code of Criminal Procedure, 1973. By an order dated
23.11.2016, the said petition was allowed and the proceedings in
CC No.1252 of 2014, insofar as they pertained to the respondent,
were quashed.
3
5. Both in his revision as well as the petition under Section
482 Cr.P.C., the respondent urged various grounds which
according to him render the order dated 15.04.2014 illegal. The
details of those various grounds are not necessary for our
purpose.
6. The judgment under appeal is very cryptic. The first three
paragraphs of the judgment under appeal (running into a short
one and a half page) purport to take note of only one submission
of the respondent.
“Para 2. The learned Counsel for the petitioner would point out
that there can be no vicarious liability insofar as the criminal
law is concerned. The complainant’s allegation of the
defamatory material published in the newspaper against him,
even if it is established, can only be sustained against the editor
of the newspaper and not the owner of the newspaper. The
petitioner admittedly was the owner. The newspaper carries a
legend that the newspaper is edited and published on behalf of
the petitioner and there is no dispute in this regard.”
7. It appears from the judgment under appeal that the
appellant herein argued that in view of the law laid down in K.M.
Mathew v. K.A. Abraham, (2002) 6 SCC 670 the respondent’s
objection could not be sustained. High Court rejected the
submission of the appellant.
“Para 3. Though the learned Counsel for the respondent would
seek to contend that the question is no longer res integra and is
covered by a judgment of the Supreme Court in the case of K.M.
Mathew vs. K.A. Abraham, AIR 2002 SC 2989, it is however
noticed that the said decision was in respect of a managing
4
editor, resident editor or a chief editor of respective newspaper
publications, who were parties therein.”
The learned Judge recorded that the judgment in K M Mathew’s
case could be distinguished and, therefore, opined that the
respondent’s petition is required to be allowed.
“Para 3. … Therefore, at the outset, it can be said that the said
case could be distinguished from the case on hand, as, the
petitioner is not claiming as an editor, who had any role in the
publication of the newspaper. Therefore, it is a fit case where
the petition should be allowed.”
It is unfortunate that the High Court did not choose to give any
reason whatsoever for quashing the complaint except a grand
declaration that “it would lead to a miscarriage of justice”.
“Accordingly, though the criminal proceedings can go on against
the editor of the newspaper, the petitioner cannot be proceeded
with, as it would lead to a miscarriage of justice.”
Hence, the appeal.
8. Before us the appellant appeared in person. Inspite of the
service of notice, the respondent neither chose to appear in
person nor through a counsel. In view of the fact that a
substantial question of law is involved in the matter, we thought
it appropriate to request Shri M.N. Rao, learned Senior Advocate
to assist the Court in this matter.
5
9. Heard Shri M.N. Rao, learned Senior Advocate for the
appellant.
10. Section 499 IPC defines the offence of defamation. It
contains 10 exceptions and 4 explanations. The relevant portion
reads;
“Section 499. Defamation.— Whoever, by words either spoken or
intended to be read, or by signs or by visible representations,
makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such person, is
said, except in the cases hereinafter expected, to defame that
person.”
11. An analysis of the above reveals that to constitute an
offence of defamation it requires a person to make some
imputation concerning any other person;
(i) Such imputation must be made either
(a) With intention, or
(b) Knowledge, or
(c) Having a reason to believe
that such an imputation will harm the reputation of the person
against whom the imputation is made.
(ii) Imputation could be, by
(a) Words, either spoken or written, or
6
(b) By making signs, or
(c) Visible representations
(iii) Imputation could be either made or published.
The difference between making of an imputation and
publishing the same is:
If ‘X’ tells ‘Y’ that ‘Y’ is a criminal – ‘X’ makes an imputation.
If ‘X’ tells ‘Z’ that ‘Y’ is a criminal – ‘X’ publishes the
imputation.
The essence of publication in the context of Section 499 is
the communication of defamatory imputation to persons other
than the persons against whom the imputation is made.1
12. Committing any act which constitutes defamation under
Section 499 IPC is punishable offence under Section 500 IPC.
Printing or engraving any defamatory material is altogether a
different offence under Section 501 IPC. Offering for sale or
selling any such printed or engraved defamatory material is yet
another distinct offence under Section 502 IPC.
1
Khima Nand v. Emperor , (1937) 38 Cri LJ 806 (All); Amar Singh v. K.S. Badalia, (1965) 2 Cri LJ 693 (Pat)
7
13. If the content of any news item carried in a newspaper is
defamatory as defined under Section 499 IPC, the mere printing
of such material “knowing or having good reason to believe that
such matter is defamatory” itself constitutes a distinct offence
under Section 501 IPC. The sale or offering for sale of such
printed “substance containing defamatory matter” “knowing that
it contains such matter” is a distinct offence under Section 502
IPC.
14. Whether an accused (such as the respondent) against whom
a complaint is registered under various Sections of the IPC
(Sections 500, 501 & 502 IPC) could be convicted for any of those
offences depends upon the evidence regarding the existence of
the facts relevant to constitute those offences.
15. In the context of the facts of the present case, first of all, it
must be established that the matter printed and offered for sale
is defamatory within the meaning of the expression under Section
499 IPC. If so proved, the next step would be to examine the
question whether the accused committed the acts which
constitute the offence of which he is charged with the requisite
intention or knowledge etc. to make his acts culpable.
8
16. Answer to the question depends upon the facts. If the
respondent is the person who either made or published the
defamatory imputation, he would be liable for punishment under
Section 500 IPC. If he is the person who “printed” the matter
within the meaning of the expression under Section 501 IPC.
Similarly to constitute an offence under Section 502 IPC, it must
be established that the respondent is not only the owner of the
newspaper but also sold or offered the newspaper for sale.
17. We must make it clear that for the acts of printing or selling
or offering to sell need not only be the physical acts but include
the legal right to sell i.e. to transfer the title in the goods - the
newspaper. Those activities if carried on by people, who are
employed either directly or indirectly by the owner of the
newspaper, perhaps render all of them i.e., the owner, the
printer, or the person selling or offering for sale liable for the
offences under Sections 501 or 502 IPC, (as the case may be) if
the other elements indicated in those Sections are satisfied.
18. Whether the content of the appellant’s complaint constitutes
an offence punishable under any one or all or some of the
abovementioned sections was not examined by the High Court for
quashing the complaint against the respondent. So we need not
9
trouble ourselves to deal with that question. We presume for the
purpose of this appeal that the content of the appellant’s
complaint does disclose the facts necessary to establish the
commission of one or all of the offences mentioned above.
Whether there is sufficient evidence to establish the guilt of the
respondent for any one of the abovementioned three offences is a
matter that can be examined only after recording evidence at the
time of trial. That can never be a subject matter of a proceeding
under Section 482 Cr.P.C.
19. From the judgment under appeal, it appears that before the
High Court it was argued on behalf of the respondent that there
is no vicarious liability in criminal law and therefore the owner of
a newspaper cannot be prosecuted for the offences of defamation.
“2. The learned counsel for the petitioner would point out that
there can be no vicarious liability insofar as the criminal law is
concerned. The complainant’s allegation of the defamatory
material published in the newspaper against him, even if it is
established, can only be sustained against the editor of the
newspaper and not the owner of the newspaper. The petitioner
admittedly was the owner. The newspaper carries a legend that
the newspaper is edited and published on behalf of the petitioner
and there is no dispute in this regard.”
20. It appears from para 3 of the judgment that the appellant
herein submitted in response to the above extracted contention of
the respondent that the question is no longer res integra and is
10
covered by a judgment of this Court in K.M. Mathew v. K.A.
Abraham & Others.
2
The High Court rejected the submission holding:
“…….it is however noticed that the said decision was in respect
of a managing editor, resident editor or a chief editor of
respective newspaper publications, who were parties therein.
Therefore, at the outset, it can be said that the said case could
be distinguished from the case on hand, as, the petitioner is
not claiming as an editor, who had any role in the publication
of the newspaper. Therefore, it is a fit case where the petition
should be allowed.”
The High Court concluded that prosecution of the respondent
would lead to miscarriage of justice. A conclusion without any
discussion and without disclosing any principle which forms the
basis of the conclusion.
FACTS, ISSUE & RATIO DECIDENDI OF K.M. MATHEW’S CASE:
21. K.M. Mathew was the “Chief Editor” of a daily called
Malayalam Manorama. When he was sought to be prosecuted for
the offence of defamation, he approached the High Court under
Section 482 Cr.P.C. praying that the prosecution be quashed on
the ground that Section 7 of the Press and Registration of Books
Act, 1867 only permits the prosecution of the Editor but not the
Chief Editor. The High Court rejected the submission.
2
(2002) 6 SCC 670
11
22. Even before this Court, the same submission was made.
3
This Court rejected the submission holding:
“16. The contention of these appellants is not tenable. There
is no statutory immunity for the Chief Editor against any
prosecution for the alleged publication of any matter in the
newspaper over which these persons exercise control.”
It was further held that though the presumption under Section 7
of the Press and Registration of Books Act, 1867 is not applicable
to somebody whose name is printed in the newspaper as the
Chief Editor, the complainant can still allege and prove that
persons other than the Editor, if they are responsible for the
publication of the defamatory material.
“20. The provisions contained in the Act clearly go to show that
there could be a presumption against the Editor whose name is
printed in the newspaper to the effect that he is the Editor of
such publication and that he is responsible for selecting the
matter for publication. Though, a similar presumption cannot
be drawn against the Chief Editor, Resident Editor or Managing
Editor, nevertheless, the complainant can still allege and prove
that they had knowledge and they were responsible for the
publication of the defamatory news item. Even the presumption
under Section 7 is a rebuttable presumption and the same could
be proved otherwise. That by itself indicates that somebody
other than editor can also be held responsible for selecting the
matter for publication in a newspaper.”
23. K.M. Mathew’s case has nothing to do with the question of
vicarious liability. The argument in K.M. Mathew’s case was
that in view of Section 7 of the Press and Registration of Books
3
The contention of the appellants in these cases is that they had not been shown as Editors in these publications
and that their names were printed either as Chief Editor, Managing Editor or Resident Editor and not as “Editor”
and there cannot be any criminal prosecution against them for the alleged libellous publication of any matter in
that newspaper. [Para 15 of K.M. Mathew’s case]
12
Act, 1867 only the Editor of a newspaper could be prosecuted for
defamation. Such a submission was rejected holding that Section
7 does not create any immunity in favour of persons other than
the Editor of a newspaper. It only creates a rebuttable
presumption that the person whose name is shown as the editor
of the newspaper is responsible for the choice and publication of
the material in the newspaper. K.M. Mathew’s case made it
clear that if a complaint contains allegations (which if proved
would constitute defamation), person other than the one who is
declared to be the editor of the newspapers can be prosecuted if
they are alleged to be responsible for the publication of such
defamatory material.
The High Court, in our opinion, without examining the ratio
of K.M. Mathew’s case chose to conclude that the decision is
distinguishable. The judgment of the High Court is absolutely
unstructured leaving much to be desired.
24. Vicarious liability for a crime is altogether a different matter.
In England, at one point of time, the owner of a newspaper was
held to be vicariously liable for an offence of defamation (libel).
The history of law in this regard is succinctly stated by Lord
13
Cockburn in The Queen v. Holbrook.
4 Though there appears to
be some modification of the law subsequent to the enactment of
Lord Campbell’s Act i.e. the Libel Act 1843 (6&7 Vict C 96).
Lord Campbell’s Act did not apply to India. The Press and
Registration of Books Act (Act XXV of 1867) is made applicable to
British India and continues to be in force by virtue of the
declaration under Article 372 of the Constitution of India. There
are material differences between the scheme and tenor of both
the enactments. In Ramasami v. Lokanada, (1886) ILR 9 Mad
692, it was held:
“… But we cannot hold that the provisions of that Statute (Ed.
Lord Campbell’s Act) are applicable to this country, and we must
determine whether the accused is or is not guilty of defamation
with reference to the provisions of the Indian Penal Code. We
consider that it would be a sufficient answer to the charge in this
country if the accused showed that he entrusted in good faith the
temporary management of the newspaper to a competent person
during his absence, and that the libel was published without his
authority, knowledge or consent. As the Judge has, however,
misapprehended the effect of Act XXV of 1867, we shall set aside
the order of acquittal made by him and direct him to restore the
appeal to his file, to consider the evidence produced by the
accused and then to dispose of the appeal with reference to the
foregoing observations.”
and reiterated in Emperor v. Bodi Narayana Rao and G.
Harisarvothama Rao, (1909) ILR 32 Mad 338:
“Lord Campbell’s Act, of course, is not in force in India, and the
Criminal Law of England is not necessarily the same as the
Criminal Law of India as contained in the Indian Penal Code …”
4
L.R. 3 QBD 60
14
25. The extent of the applicability of the principle of vicarious
liability in criminal law particularly in the context of the offences
relating to defamation are neither discussed by the High Court in
the judgment under appeal nor argued before us because the
respondent neither appeared in person nor through any
advocate. Therefore, we desist from examining the question in
detail. But we are of the opinion that the question requires a
serious examination in an appropriate case because the owner of
a newspaper employs people to print, publish and sell the
newspaper to make a financial gain out of the said activity. Each
of the abovementioned activities is carried on by persons
employed by the owner.
26. Where defamatory matter is printed (in a newspaper or a
book etc.) and sold or offered for sale, whether the owner thereof
can be heard to say that he cannot be made vicariously liable for
the defamatory material carried by his newspaper etc. requires a
critical examination.
27. Each case requires a careful scrutiny of the various
questions indicated above. Neither prosecutions nor the power
15
under Section 482 CrPC can be either conducted or exercised
casually as was done in the case on hand.
28. The judgment under appeal cannot be sustained for the
reasons indicated above. The same is, therefore, set-aside and
the appeal is allowed. The trial court will now proceed with the
case in accordance with law.
….....................................J.
(J. CHELAMESWAR)
….....................................J.
(S. ABDUL NAZEER)
New Delhi
December 4, 2017

remanded - first appeal falls short of considerations =The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, - In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.670-671 OF 2011
C. Venkata Swamy ….Appellant(s)
VERSUS
H.N. Shivanna(D) by
L.R. & Anr. Etc. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. These appeals are filed by the plaintiff against
the final judgment and order dated 02.11.2006
passed by the High Court of Karnataka at Bangalore
in Regular First Appeal Nos.158 and 159 of 2005
whereby the High Court dismissed the appeals filed
by the appellant herein
2. The facts of the case lie in a narrow compass.
Even the issue arising in these appeals is a short
2
one. It would be clear from the facts mentioned
hereinbelow.
3. The appellant is plaintiff in O.S. No.
6640/1996 and defendant in O.S. No. 2150 of 1992
whereas the respondents are defendants in O.S. No.
6640/1996 and plaintiffs in O.S. No. 2150 of 1992
in the suits out of which these appeals arise.
4. The appellant filed a suit being O.S. No.
6640/1996 in the Court of City Civil Judge,
Bangalore against the respondents for a declaration
and permanent injunction in relation to the land
described in detail in the plaint (hereinafter referred
to as "suit land") whereas original respondent No.1
also filed a cross suit being O.S. No. 2150 of 1992
against the appellant in relation to the suit land.
5. Both the suits were clubbed together for their
disposal because both were between the same
parties and pertained to same subject matter.
6. Parties contested the suits and adduced
evidence. The Trial Court, by common
3
judgment/decree dated 04.12.2004 dismissed the
suit filed by the appellant, i.e., O.S. No. 6640/1996
and decreed the suit filed by respondent No.1, i.e.,
O.S. No. 2150/1992.
7. The plaintiff in O.S. 6640/1996 felt aggrieved
and filed two first appeals under Section 96 of the
Code of Civil Procedure, 1908 (hereinafter referred
to as “the Code”) before the High Court of
Karnataka. By impugned judgment/decree, the
Single Judge dismissed both the first appeals and
affirmed the judgment/decree of the Trial Court,
which has given rise to filing of the present appeals
by special leave by the plaintiff in O.S. No.
6640/1996 in this Court.
8. Heard Ms. Kiran Suri, learned senior counsel
for the appellant and Mr. Rajesh Mahale, learned
counsel for the respondents.
9. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are constrained to allow the appeals, set aside the
4
impugned judgment and remand the case to the
High Court for deciding both the first appeals afresh
on merits in accordance with law.
10. The need to remand the case to the High
Court has occasioned for the reason that the Single
Judge dismissed the appeals very cursorily and
without undertaking any appreciation of evidence,
dealing with various issues arising in the case and
discussing the arguments raised by the parties in
support of their case. In other words, the disposal of
the two first appeals could not be said to be in
conformity with the requirements of Section 96 read
with Order 41 Rule 31 of the Code.
11. It is a settled principle of law that a right to file
first appeal against the decree under Section 96 of
the Code is a valuable legal right of the litigant. The
jurisdiction of the first Appellate Court while hearing
the first appeal is very wide like that of the Trial
Court and it is open to the appellant to attack all
findings of fact or/and of law in first appeal. It is the
5
duty of the first Appellate Court to appreciate the
entire evidence and arrive at its own independent
conclusion, for reasons assigned, either of
affirmance or difference.
12. Similarly, the powers of the first Appellate
Court while deciding the first appeal are indeed well
defined by various judicial pronouncements of this
Court and are, therefore, no more res integra. It is
apposite to take note of the law on this issue.
13. As far back in 1969, the learned Judge – V.R.
Krishna Iyer, J (as His Lordship then was the judge
of Kerala High Court) while deciding the first appeal
under Section 96 of the Code in Kurian Chacko vs.
Varkey Ouseph, AIR 1969 Kerala 316, reminded
the first Appellate Court of its duty to decide the
first appeal. In his distinctive style of writing with
subtle power of expression, the learned judge held
as under:
“1. The plaintiff, unsuccessful in two
Courts, has come up here aggrieved by the
dismissal of his suit which was one for
declaration of title and recovery of
6
possession. The defendant disputed the
plaintiff's title to the property as also his
possession and claimed both in himself. The
learned Munsif, who tried the suit, recorded
findings against the plaintiff both on title and
possession. But, in appeal, the learned
Subordinate Judge disposed of the whole
matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact
ordinarily and therefore a litigant is entitled
to a full and fair and independent
consideration of the evidence at the appellate
stage. Anything less than this is unjust to
him and I have no doubt that in the present
case the learned Subordinate Judge has fallen
far short of what is expected of him as an
appellate Court. Although there is furious
contest between the counsel for the appellant
and for the respondent, they appear to agree
with me in this observation…..”
(Emphasis supplied)
14. This Court also in various cases reiterated the
aforesaid principle and laid down the powers of the
Appellate Court under Section 96 of the Code while
deciding the first appeal.
15. We consider it apposite to refer to some of the
decisions.
16. In Santosh Hazari vs. Purushottam Tiwari
(Deceased) by L.Rs. (2001) 3 SCC 179, this Court
held (at pages 188-189) as under:
“.……..the appellate court has jurisdiction to
reverse or affirm the findings of the trial
court. First appeal is a valuable right of the
7
parties and unless restricted by law, the
whole case is therein open for rehearing both
on questions of fact and law. The judgment of
the appellate court must, therefore, reflect
its conscious application of mind and record
findings supported by reasons, on all the
issues arising along with the contentions put
forth, and pressed by the parties for decision
of the appellate court……while reversing a
finding of fact the appellate court must come
into close quarters with the reasoning
assigned by the trial court and then assign its
own reasons for arriving at a different
finding. This would satisfy the court hearing
a further appeal that the first appellate court
had discharged the duty expected of
it…………”
17. The above view was followed by a three-Judge
Bench decision of this Court in Madhukar & Ors.
v. Sangram & Ors.,(2001) 4 SCC 756, wherein it
was reiterated that sitting as a Court of first appeal,
it is the duty of the High Court to deal with all the
issues and the evidence led by the parties before
recording its findings.
18. In H.K.N. Swami v. Irshad Basith,(2005) 10
SCC 243, this Court (at p. 244) stated as under:
(SCC para 3)
“3. The first appeal has to be decided on
facts as well as on law. In the first appeal
parties have the right to be heard both on
8
questions of law as also on facts and the first
appellate court is required to address itself to
all issues and decide the case by giving
reasons. Unfortunately, the High Court, in
the present case has not recorded any finding
either on facts or on law. Sitting as the first
appellate court it was the duty of the High
Court to deal with all the issues and the
evidence led by the parties before recording
the finding regarding title.”
19. Again in Jagannath v. Arulappa & Anr.,
(2005) 12 SCC 303, while considering the scope of
Section 96 of the Code, this Court (at pp. 303-04)
observed as follows:
“2. A court of first appeal can reappreciate
the entire evidence and come to a
different conclusion……...”
20. Again in B.V Nagesh & Anr. vs. H.V.
Sreenivasa Murthy, (2010) 13 SCC 530, this Court
taking note of all the earlier judgments of this Court
reiterated the aforementioned principle with these
words:
“3. How the regular first appeal is to be
disposed of by the appellate court/High Court
has been considered by this Court in various
decisions. Order 41 CPC deals with appeals
from original decrees. Among the various
rules, Rule 31 mandates that the judgment of
the appellate court shall state:
(a) the points for determination;
9
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is
reversed or varied, the relief to which the
appellant is entitled.
4. The appellate court has jurisdiction to
reverse or affirm the findings of the trial
court. The first appeal is a valuable right of
the parties and unless restricted by law, the
whole case is therein open for rehearing both
on questions of fact and law. The judgment of
the appellate court must, therefore, reflect
its conscious application of mind and record
findings supported by reasons, on all the
issues arising along with the contentions put
forth, and pressed by the parties for decision
of the appellate court. Sitting as a court of
first appeal, it was the duty of the High Court
to deal with all the issues and the evidence
led by the parties before recording its
findings. The first appeal is a valuable right
and the parties have a right to be heard both
on questions of law and on facts and the
judgment in the first appeal must address
itself to all the issues of law and fact and
decide it by giving reasons in support of the
findings. (Vide Santosh Hazari v.
Purushottam Tiwari, (2001) 3 SCC 179 at p.
188, para 15 and Madhukar v. Sangram,
(2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles,
on going through the impugned judgment, we
feel that the High Court has failed to
discharge the obligation placed on it as a first
appellate court. In our view, the judgment
under appeal is cryptic and none of the
relevant aspects have even been noticed. The
appeal has been decided in an unsatisfactory
manner. Our careful perusal of the judgment
in the regular first appeal shows that it falls
short of considerations which are expected
from the court of first appeal. Accordingly,
without going into the merits of the claim of
10
both parties, we set aside the impugned
judgment and decree of the High Court and
remand the regular first appeal to the High
Court for its fresh disposal in accordance
with law.”
21. The aforementioned cases were relied upon by
this Court while reiterating the same principle in
State Bank of India & Anr. vs. Emmsons
International Ltd. & Anr., (2011) 12 SCC 174 and
Union of India vs. K.V. Lakshman & Ors. (2016)
13 SCC 124.
22. In the light of foregoing discussion, we have no
option but to allow these appeals, set aside the
impugned judgment and remand the case to the
High Court for deciding the appeals afresh on merits
in accordance with law keeping in view our
observations made supra.
23. We, however, make it clear that we have
refrained from making any observation on merits of
the controversy having formed an opinion to remand
the case to the High Court. The High Court would,
therefore, decide the appeals uninfluenced by any of
11
the observations in accordance with law. Since the
appeals are quite old, we request the High Court to
ensure expeditious disposal of the appeals.
24. The appeals are accordingly allowed. Impugned
judgment is set aside with the aforesaid directions.
………...................................J.
[ABHAY MANOHAR SAPRE]
…...
……..................................J.
[NAVIN SINHA]
New Delhi;
December 04, 2017

The suit was for a declaration that the plaintiff (respondent) be declared as owner of the suit land and for permanent injunction restraining the defendants (appellants) from interfering in his possession over the suit land.-Once the defendants admitted these two material facts pleaded by the plaintiff then it was for the defendants to prove by leading cogent evidence as to how and on what basis they could claim to be the owner of the suit land. They failed to prove their ownership with the aid of any evidence.

1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.7089 OF 2010
Nanjegowda @ Gowda (D)
by LRs. & Anr. ….Appellant(s)
VERSUS
Ramegowda …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by the defendants against
the final judgment and order dated 18.07.2006
passed by the High Court of Karnataka at Bangalore
in Regular Second Appeal No.498 of 2001 whereby
the Single Judge of the High Court while exercising
jurisdiction under Section 100 of the Code of Civil
Procedure, 1908, allowed the appeal filed by the
plaintiff (respondent herein), reversed the order of
the First Appellate Court and confirmed the
2
judgment and decree passed by the Trial Court
holding that the respondent was entitled to a decree
of title to the suit land.
2) The facts of the case lie in a narrow compass.
Even the issue arising in the appeal is a short one.
It would be clear from the facts mentioned
hereinbelow.
3) The appellant Nos.1(a) to (d) are the legal
representatives of defendant No.1 - Shri Nanjegowda
- who died during the pendency of this litigation,
appellant No.2 is defendant No.2 whereas the
respondent is the plaintiff in the suit.
4) The dispute relates to an agricultural land
bearing Sy.No. 44/14 B measuring 0.09 Guntas and
Sy. No.44/14-D measuring 0.06 Guntas as detailed
in schedule to the plaint (hereinafter referred to as
“suit land”) situated at village Thondahalli, Bellur
Hubali (Karnataka).
5) The defendants (appellants) and the plaintiff
(respondent) are the members of one family. They
3
are first cousins from their father's side. The family
owned ancestral properties which included the suit
land in question and other properties also.
6) In the year 1991, the plaintiff (respondent)
filed a suit being O. S. No. 204 of 1991 in the Court
of the Munsif at Nagamangala against the
defendants (appellants). The suit was for a
declaration that the plaintiff (respondent) be
declared as owner of the suit land and for
permanent injunction restraining the defendants
(appellants) from interfering in his possession over
the suit land.
7) According to the plaintiff, there had been an
oral partition effected as far back in the year 1935
among the respective fathers of the plaintiff, the
predecessor-in-title of defendant No.1 and their real
uncles and pursuant thereto the suit land fell into
the share of the plaintiff’s father and on his death, it
was inherited by him.
4
8) It was alleged that all the family members
including the plaintiff, defendants and their
ancestors got their names recorded in the Revenue
Records in relation to their respective shares. It
was alleged that the said partition was fully acted
upon for the last many decades with no interference
by anyone among all the members of the family. It
was alleged that the defendants started asserting
their right, title and possession over the suit land to
the detriment of the interest of the plaintiff without
there being any basis whatsoever and hence the
plaintiff was compelled to file a suit to seek
declaration and injunction against the defendants
in relation to the suit land.
9) The defendants filed their written statement.
The defendants (appellants), in clear terms,
admitted the relationship between the defendants
(appellants) and the plaintiff (respondent) including
their ancestors as alleged by the plaintiff in the
plaint. The defendants also admitted the existence
5
and factum of oral partition effected among the
family members as alleged by the plaintiff. The
defendants, however, set up one Release Deed
executed by their grandfather in 1940 and claimed
share in the suit land on that basis. They also
relied on some mutation entries to claim share in
the suit land and also set up a plea of adverse
possession over the suit land and claimed that they
have become the owner of the suit land by virtue of
adverse possession on account of their long,
peaceful and continuous possession.
10) The Trial Court framed the issues. Parties
adduced their evidence. The Trial Court, by
judgment/decree dated 17.03.1997, decreed the
plaintiff’s suit. The Trial Court held that, the
plaintiff (respondent) is the owner of the suit land,
he is in possession of the suit land, he is entitled to
claim permanent injunction against the defendants
restraining them from interfering in his peaceful
possession, the defendants failed to prove their
6
adverse possession over the suit land and also they
were not able to prove their right, title and interest
and possession over the suit land, the alleged
Release-Deed did not relate to the suit land but it
pertained to other property of the family and lastly,
mutation entries, in the absence of any
documentary title over the suit land, were of no use.
11) The defendants (appellants) felt aggrieved and
filed an appeal being R.A. No. 46 of 1998 before the
Additional Civil Judge (Senior Division). By
judgment/decree dated 07.04.2001, the First
Appellate Court allowed the appeal, set aside the
judgment/decree of the Trial Court and dismissed
the plaintiff’s suit.
12) The plaintiff (respondent) felt aggrieved and
filed Second Appeal being R.S.A. No.498 of 2001.
By impugned judgment, the Single Judge allowed
the appeal and while setting aside of the
judgment/decree of the First Appellate Court
restored the judgment/decree of the Trial Court
7
and, in consequence, decreed the suit as was done
by the Trial Court.
13) The defendants (appellants) felt aggrieved and
have filed this appeal by way of special leave against
the impugned judgment of the High Court before
this Court.
14) Heard Mr. K.V. Mohan, learned counsel for the
appellants and Mr. Karunakar Mahalik, learned
counsel for the respondent.
15) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in the appeal.
16) In our considered opinion, the Trial Court as
also the High Court were justified in decreeing the
respondent's suit and we find no good ground to
interfere in any of the findings of fact recorded by
the two Courts below for the following reasons.
17) It is not in dispute that the defendants
(appellants) admitted the relationship between the
parties. It is also not in dispute, as was admitted by
8
the defendants (appellants), that the parties through
their ancestors had effected oral partition as far
back in 1935 and that the defendants’ ancestors
were also parties to such partition and the same
was implemented in letter and spirit by allotting to
each of the members of the family their respective
share and also by getting the names of owners in
Revenue Records.
18) Once the defendants admitted these two
material facts pleaded by the plaintiff then it was for
the defendants to prove by leading cogent evidence
as to how and on what basis they could claim to be
the owner of the suit land. They failed to prove their
ownership with the aid of any evidence.
19) In our opinion, the stand taken by the
defendants was wholly inconsistent. They first set
up a plea of adverse possession but it was rightly
held not proved. The defendants, however, did not
challenge this finding in the second appeal, which
became final. Even otherwise, the plea of adverse
9
possession was wholly misconceived and untenable.
It is a settled law that there can be no adverse
possession among the members of one family for
want of any animus among them over the land
belonging to their family.
20) The defendants then claimed that they became
owner on the strength of one Release Deed of 1940
but again it was held rightly that such Deed did not
relate to the suit land but relate to some other land.
The defendants then relied on some entries of
Revenue Records. It was again held rightly that
firstly, they were challenged in Revenue Courts and
secondly, no documentary evidence was adduced to
prove the title to the suit land independent to such
disputed entries.
21) In our considered opinion, the High Court,
therefore, was right in reversing the findings of the
lower Appellate Court, which were wholly perverse
and legally unsustainable as compared to the
findings of the Trial Court on all the material issues.
10
22) We find that the appeal does not involve any
law point. What is involved is pure question of fact
and hence the finding recorded by the High Court
warrants no interference by this Court. Even
otherwise, on examining the case of the defendants
(appellants) independently, we have found that they
have no case at all.
23) In our opinion, it is a clear case where the
plaintiff and the defendants being members of the
family got their share in the family properties
through an oral partition effected among their
ancestral members of family and on their deaths to
the surviving members by inheritance, i.e., the
plaintiff and defendants. So far as the suit land is
concerned, it fell into the share of plaintiff's
ancestors, which was evidenced by an oral partition
duly acted upon for a long time back in 1935 and
then on the plaintiff.
24) Learned counsel for the appellants
(defendants), however, took us through pleadings
11
and the evidence adduced by the parties with a view
to show that the findings of facts are not legally
sustainable.
25) In our view, we cannot entertain any of the
submissions of the learned counsel for the
appellants(defendants) in an appeal under Article
136 of the Constitution and nor can we appreciate
any oral evidence de novo in this appeal as all his
submissions were on facts/evidence. It is not
permissible in law to probe the evidence at this
stage. Moreover, in the light of what we have held
above, these submissions have no merit.
26) In view of foregoing discussion, we find no
merit in the appeal. It is accordingly dismissed.
………...................................J.
[ABHAY MANOHAR SAPRE]
…...
……..................................J.
[NAVIN SINHA]
New Delhi;
December 04, 2017

Campaign for Judicial Accountability and Reforms = lost it's accountability and filed this frivolous petition- independence of judiciary cannot be left at the mercy of the CBI or that of the police is a red herring. There cannot be any FIR even against the Civil Judge/Munsif without permission of the Chief Justice of the concerned court; and rightly, FIR has not been registered against any sitting Judge. Otherwise, on unfounded allegations, any honest Judge to the core, can be defamed, and reputation can be jeopardized. No Judge can be held responsible for what may, or has happened in the corridors, or for ‘who purports to sell whom’. The alleged actions of a retired Judge of a High Court, allegedly assuring and promising, a ‘favourable’ decision in the aforesaid circumstances of the case which was then pending before this Court, in the aforesaid circumstances and has assured favourable orders, begs the question, and we wonder, as to what favourable orders have been passed. As is apparent from the aforesaid narration of facts, there was no favourable order granted by this Court in favour of the medical college for the current academic session 2017-18, rather its inspection for considering confirmation of letter of permission for the next year 2018-19 had been ordered. The decision will be in the hands of the MCI. After decision has been rendered on 18.9.2017 by this Court, an FIR has been lodged and it appears that money was yet to be exchanged. The FIR dated 19.9.2017 reflects that Mr. B.P. Yadav, Justice Quddusi, Ms. Bhawana Pandey, and Mr. Sudhir Giri were likely to meet Mr. Biswanath Agarwala for getting favourable order at Delhi shortly; whereas this Court has already decided the mater on 18.9.2017. Thus it is a far fetched and too tenuous to even assume or allege that the matter was pending in this Court for which any bribe was to be delivered to anyone.- There is an averment made in the writ petition that it is against the highest judicial functionaries; that FIR has been recorded. We do not find reflection of any name of the Judge of this Court in the FIR….” The petition is not only wholly frivolous, but contemptuous, unwarranted, aims at scandalizing the highest judicial system of the country, without any reasonable basis and filed in an irresponsible manner, that too by a body of persons professing to espouse the cause of accountability. What an irony of fate, the petitioner has itself forgotten its accountability and filing of such petition may entail in ultimate debarment of such petitioners from filing so-called public interest litigation which in fact has caused more injury to cause of public than subserving it. - the present petition is gross abuse of the process of court. Accordingly, the writ petition is dismissed with cost of Rs. 25 (twenty five) lakhs to be deposited by the petitioner before the Registry of this Court within six weeks whereafter the said amount shall be transferred to Supreme Court Bar Association Advocates’ Welfare Fund.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 169 OF 2017
Campaign for Judicial
Accountability and Reforms .... Petitioner(s)
Versus
Union of India and Others .... Respondent(s)
O R D E R
1) By means of the present writ petition (public interest
litigation) (PIL), the petitioner, Campaign for Judicial
Accountability and Reforms, through its Secretary, has
approached this Court seeking a writ of mandamus or any
other writ or direction of similar nature to constitute a Special
Investigation Team (SIT) headed by a retired Chief Justice of
India to investigate in the matter of alleged conspiracy and
payment of bribes for procuring favourable order in a matter
pending before this Court and take consequential actions
thereafter along with a direction to the Central Bureau of
2
Investigation (CBI) to hand over all the materials/evidence
collected so far in the FIR bearing No. RC10(A)/2017-AC.III,
New Delhi to the SIT to be constituted by this Court.
2) We have heard Shri Prashant Bhushan, learned counsel
for the petitioner and Mr. K.K. Venugopal, learned Attorney
General appearing for the Union of India.
3) Shri Prashant Bhushan, referring to the FIR dated
19.09.2017 filed by the CBI, New Delhi submitted that in the
FIR names of various persons have been mentioned as
suspected accused along with other unknown public servants
and private persons. According to him, the aforesaid FIR has
been lodged regarding some criminal conspiracy for getting a
matter pending before this Court settled. He thus submitted
that one does not know how many public and private persons
are involved in it and the matter relates to huge gratification
for inducing public servants in a matter pending before this
Court. He, however, emphasized that the purpose of filing this
petition is not to name any Judge of this Court but to protect
the independence of the judiciary and in order to arrive at an
3
impartial investigation, this Court may appoint a SIT headed
by a retired Chief Justice of India.
4) Learned Attorney General for India, on the other hand,
submitted that the petitioner is abusing the process of court
and this very issue, in an identical writ petition, being No.
W.P. (Crl.) No. 176 of 2017 titled Kamini Jaiswal vs. Union
of India and Another has been considered and the writ
petition has been dismissed by this Court on 14.11.2017.
Therefore, the present writ petition is also liable to be
dismissed on this ground alone.
5) We have given our thoughtful consideration to the
various pleas raised by learned counsel for the parties and we
find that in Kamini Jaiswal (supra)¸ this Court had
considered the similar plea raised by Shri Prashant Bhushan
and had dealt in detail vide judgment and order dated
14.11.2017. For ready reference, the reliefs, the facts as also
the findings recorded by this Court in Kamini Jaiswal
(supra) in paragraph Nos. 4, 7, 8, 22 and 29 are reproduced
below:-
4
“4. In the writ petitions, a prayer has been made to
constitute a Special Investigation Team (SIT), headed by
retired Chief Justice of India, to investigate the offences
arising out of FIR being RC.10(A)/2017-AC. III dated
19.9.2017 recorded at New Delhi by the CBI and those
connected therewith and take consequential action
thereafter in accordance with law. A prayer was also made to
direct the CBI, to produce before this Court for its perusal
and, preserve and protect, all evidences/materials collected
so far and hand over all the materials/evidences collected so
far in the FIR to the SIT to be constituted by this Court.
7. On 19.9.2017, an FIR was registered against the following
persons in connection with the case :
(i) Shri I.M. Quddusi, retired Judge of the High Court
of Odisha.
(ii) Smt. Bhawana Pandey r/o GK. New Delhi (private
person)
(iii) Shri B.P. Yadav (private person)
(iv) Shri Palash Yadav (private person)
(v) Shri Sudhir Giri (Private person)
(vi) Shri Biswanath Agrawala, r/o HIG – 136, Phase 1,
Kanan Vihar, Bhubaneshwar, Odisha (Private person)
(vii) Other unknown public servants and private
persons.
8. It was alleged in the FIR, that Mr. B.P. Yadav had
requested Justice I.M. Quddusi and Smt. Bhawana Pandey
to get the matter settled in the apex Court through their
contacts. They engaged Mr. Biswanath Agarwala, a private
person and a resident of Bhubaneswar, Orissa for getting the
matter settled in the apex Court. Mr. Biswanath Agrawala
claimed that he would get the matter favourably settled. He
demanded huge gratification for inducing the public servants
by corrupt and illegal means. Further, that Mr. B.P. Yadav,
Mr. Palash Yadav, Justice I.M. Quddusi, Mrs. Bhawana
Pandey and Mr. Sudhir Giri were all likely to meet Mr.
Biswanath Agrawala for delivering the agreed illegal
gratification at Delhi shortly. The FIR was recorded on
19.9.2017 whereas this Court had already disposed of the
matter on 18.9.2017. It is averred in the petition that the
case discloses commission of offence punishable under
section 8 of the Prevention of Corruption Act, 1988 and
section 120B of the IPC against the named persons as well
5
as against the unknown public servants and private persons.
It is further averred in the petition that since the matter
involves persons placed at the highest echelons of power
including justice delivery system and in subsequent raids
made by the CBI it has recovered close to Rs.2 crores in
cash, the agency has seized Rs.1 crore which the Hawala
operator had handed over to an aide of the retired Judge I.M.
Quddusi.
22. The submissions so raised, and averments so made, in
this petition, and the entire scenario created by filing of two
successive petitions, are really disturbing a lot. The entire
judicial system has been unnecessarily brought into
disrepute for no good cause whatsoever. It passes
comprehension how it was, that the petitioner presumed,
that there is an FIR lodged against any public functionary.
There is an averment made in the writ petition that it is
against the highest judicial functionaries; that FIR has been
recorded. We do not find reflection of any name of the Judge
of this Court in the FIR. There is no question of registering
any FIR against any sitting Judge of the High Court or of this
Court as it is not permissible as per the law laid down by a
Constitution Bench of 5 Hon’ble Judges of this Court in the
case of K. Veeraswami v. Union of India (1991) 3 SCC 655
wherein this Court observed that in order to ensure the
independence of the judiciary the apprehension that the
Executive being largest litigant, it is likely to misuse the
power to prosecute the Judges. Any complaint against a
Judge and investigation by the CBI if given publicity, will
have a far reaching effect on the Judge and the litigant
public. The need, therefore, is of judicious use of action
taken under the Act. There cannot be registration of any FIR
against a High Court Judge or Chief Justice of the High
Court or the Supreme Court Judge without the consultation
of the Hon’ble Chief Justice of India and, in case there is an
allegation against Hon’ble Chief Justice of India, the decision
has to be taken by the Hon’ble President, in accordance with
the procedure prescribed in the said decision. Thus, the
instant petitions, as filed, are a misconceived venture
inasmuch, as the petition wrongly presupposes that
investigation involves higher judiciary, i.e. this Court’s
functionaries are under the scanner in the aforesaid case;
that independence of judiciary cannot be left at the mercy of
the CBI or that of the police is a red herring. There cannot be
any FIR even against the Civil Judge/Munsif without
6
permission of the Chief Justice of the concerned court; and
rightly, FIR has not been registered against any sitting
Judge. Otherwise, on unfounded allegations, any honest
Judge to the core, can be defamed, and reputation can be
jeopardized. No Judge can be held responsible for what may,
or has happened in the corridors, or for ‘who purports to sell
whom’. The alleged actions of a retired Judge of a High
Court, allegedly assuring and promising, a ‘favourable’
decision in the aforesaid circumstances of the case which
was then pending before this Court, in the aforesaid
circumstances and has assured favourable orders, begs the
question, and we wonder, as to what favourable orders have
been passed. As is apparent from the aforesaid narration of
facts, there was no favourable order granted by this Court in
favour of the medical college for the current academic
session 2017-18, rather its inspection for considering
confirmation of letter of permission for the next year 2018-19
had been ordered. The decision will be in the hands of the
MCI. After decision has been rendered on 18.9.2017 by this
Court, an FIR has been lodged and it appears that money
was yet to be exchanged. The FIR dated 19.9.2017 reflects
that Mr. B.P. Yadav, Justice Quddusi, Ms. Bhawana Pandey,
and Mr. Sudhir Giri were likely to meet Mr. Biswanath
Agarwala for getting favourable order at Delhi shortly;
whereas this Court has already decided the mater on
18.9.2017. Thus it is a far fetched and too tenuous to even
assume or allege that the matter was pending in this Court
for which any bribe was to be delivered to anyone.
29. ….. Ultimately after arguing at length, at the end, it was
submitted by the petitioner and her counsel that they were
not aiming at any individual. If that was not so, unfounded
allegations ought not to have been made against the system
and that too against the Hon’ble Chief Justice of this
country. In case majesty of our judicial system has to
survive, such kind of petitions should not have been
preferred that too against the settled proposition of law laid
down by this Court in the aforesaid decisions of this Court in
Dr. D C Saxena (supra) and K. Veeraswami (supra).”
6) The FIR which came for consideration in the case of
Kamini Jaiswal (supra) and in this case, is the same.
7
Further, we find that in Kamini Jaiswal (supra), this Court
had noted the circumstances under which similar petition,
that is, W.P. (Crl.) No. 176 of 2017 was filed by Advocate
Kamini Jaiswal on 09.11.2017, i.e., immediately on the next
day of the mentioning of the present petition on 08.11.2017.
The facts, the relief, the submissions being same which was in
Kamini Jaiswal (supra), we do not find any good ground to
entertain this petition as the matter had already been decided
by this Court vide judgment and order dated 14.11.2017
relevant portions of which have already been reproduced
above.
7) It is also relevant to mention here that this Court in
paragraph 22 in Kamini Jaiswal (supra) has raised its
concern about filing of the successive writ petitions in the
following words:
“22. The submissions so raised, and averments so made, in
this petition, and the entire scenario created by filing of two
successive petitions, are really disturbing a lot. The entire
judicial system has been unnecessarily brought into
disrepute for no good cause whatsoever. It passes
comprehension how it was, that the petitioner presumed,
that there is an FIR lodged against any public functionary.
There is an averment made in the writ petition that it is
against the highest judicial functionaries; that FIR has been
8
recorded. We do not find reflection of any name of the Judge
of this Court in the FIR….”
8) The petition is not only wholly frivolous, but
contemptuous, unwarranted, aims at scandalizing the highest
judicial system of the country, without any reasonable basis
and filed in an irresponsible manner, that too by a body of
persons professing to espouse the cause of accountability.
What an irony of fate, the petitioner has itself forgotten its
accountability and filing of such petition may entail in
ultimate debarment of such petitioners from filing so-called
public interest litigation which in fact has caused more injury
to cause of public than subserving it.
9) In view of the foregoing discussion, we are of the
considered opinion and we are constrained to say that the
present petition, in particular, the manner in which it has
been pursued without any remorse by questioning the decision
rendered on the subject matter by this Court including the
plea taken in the earlier petition as noted in paragraph 29 of
the said decision, is gross abuse of the process of court.
9
Therefore, it has to be dismissed with exemplary costs in order
to ensure that such attempt is not repeated in future.
1
0
10) Accordingly, the writ petition is dismissed with cost of Rs.
25 (twenty five) lakhs to be deposited by the petitioner before
the Registry of this Court within six weeks whereafter the said
amount shall be transferred to Supreme Court Bar Association
Advocates’ Welfare Fund.
...…………………………………J.
(R.K. AGRAWAL)
…………….………………………J.
(ARUN MISHRA)
…………….………………………J.
(A.M. KHANWILKAR)
NEW DELHI;
DECEMBER 1, 2017.

t is to be noted that the Division Bench has given liberty to respondent no. 4 to work out his remedy in a civil suit without even setting aside the findings of the learned Single Judge and the findings rendered in the judgments passed by the Civil Court and the High Court of Karnataka in a number of matters (mentioned supra). Thus, the said conclusion of the Division Bench of the High Court is not sustainable in law.

1
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. ___________ OF 2017
(Arising out of SLP (Civil) No. 33813 of 2011)
H. N. Jagannath & Ors. ...........Appellants
Versus
State of Karnataka & Ors. ........Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
1. The judgment dated 19.04.2011 passed by the High Court
of Karnataka at Bangalore in writ appeal no. 1575 of 2007
(LA-BDA) is called into question in this appeal. By the impugned
judgment, the Division Bench though did not interfere with the
Judgment passed by the learned Single Judge in writ petition no.
49357 of 2004 dated 15.03.2007, disposed of the Writ Appeal
observing that respondent no. 4 herein (appellant before the
Division Bench) should work out its remedy in the suit in
2
accordance with law and if a suit is filed, the said suit shall be
considered without being influenced by the observations made in
the course of the Judgment passed by the learned Single Judge.
Thus, the Division Bench virtually relegated the parties to the
civil court once again by granting permission to respondent no. 4
to approach the civil court.
2. This matter is a classic example as to how a litigant before
the Court takes disadvantage of the process of law and the court
by repeatedly tapping the doors of the courts for almost the same
relief, after losing legal battles on a number of occasions.
3. Records reveal that the Bangalore Development Authority
(hereinafter “BDA”) respondent no. 12 herein, issued notification
dated 16.11.1977 under Section 17(1) of BDA Act (almost similar
to Section 4(1) of the Land Acquisition Act, 1894) proposing to
acquire a vast extent of land in two villages, namely Leggere and
Jaraka Bande Kaval. The purpose of acquisition was to form a
residential layout called “Extension of Mahalakshmi Layout” (also
called Nandini Layout). An extent of 393 acres 25 guntas in
survey no. 1 of Jaraka Bande Kaval village out of the total extent
of 519 acres 37 guntas was also notified. The preliminary
notification included the land belonging to respondent no. 4
3
located in survey no. 1 of Jaraka Bande Kaval village measuring
25 acres 20 guntas. The preliminary notification was published
in the official gazette on 22.12.1977. The final declaration dated
30.08.1979 (gazetted on 20.09.1979) was issued under Section
19(1) of the BDA Act (almost similar to Section 6(1) of Land
Acquisition Act). On 04.06.1985, the Additional Land Acquisition
Officer passed an award in respect of the land measuring 127
acres 21 guntas in survey no. 1 of Jaraka Bande Kaval Village
including the land in dispute (the land belonging to respondent
no. 4) measuring 25 acres 20 guntas. It was noted by the
Additional Land Acquisition Officer that respondent no. 4 had
filed a petition before him in response to the notice issued under
Sections 9, 10 & 11 of the Land Acquisition Act. The award dated
04.06.1985 mentioned supra passed by the Additional Land
Officer was approved by the Government of Karnataka on
19.09.1986 and consequently the award amount was deposited
by BDA in the Court.
4. Respondent no. 4 herein had filed a suit for injunction in
respect of the disputed property (which was also acquired as
mentioned supra), before the 10th Additional City Civil Judge,
Bangalore in O.S. No. 10488 of 1985 against BDA on 28.06.1985.
4
The Trial Court passed an ex-parte order of injunction in favour
of respondent no. 4 on 20.06.1985. After passing the award, the
possession of the land in question was taken on 23.09.1986; a
panchanama was drawn evidencing taking of possession.
Subsequently the Trial Court by its order dated 01.10.1986
modified its earlier ex-parte interim order of injunction and
permitted BDA to form a road. On 31.10.1986, BDA handed over
possession to its engineering section for the formation of the
road. A notification under Section 16(2) of the Land Acquisition
Act was issued on 20.11.1987 disclosing the factum of taking of
possession of the land including the land in question.
Respondent no. 4 chose to withdraw the suit in O.S. No. 10488 of
1985 on 30.01.1989 without seeking any liberty to file afresh
suit. The Trial Court’s order reads thus:
“Memo filed not pressing the suit.
Suit dismissed. No costs.”
5. However, respondent no. 4 filed another suit for permanent
injunction against BDA for protecting its alleged possession,
before 13th Additional City Civil Court, Bangalore in O.S. No.
3551 of 1989. In the said suit also, the order of temporary
injunction was granted on 10.07.1989 in favour of respondent
5
no. 4 herein. However, the Trial Court by its order dated
08.03.1990 modified the order of temporary injunction earlier
granted, on an application filed by BDA and confined the order of
injunction only to existing structures. The civil court while
modifying the order of temporary injunction as mentioned above
has noted in paragraph 6 of its order that BDA has acquired the
property and has taken the possession of the property. It is also
observed that the title vests with BDA.
When the facts stood thus, respondent no. 4 filed writ
petition no. 17040 of 1991 (after a delay of 10 years from the date
of the final declaration) challenging the preliminary and final
acquisition notifications. The learned Single Judge by his order
dated 28.08.1991 dismissed the said writ petition on the ground
of delay and laches. Against such dismissal, the respondent no. 4
filed writ appeal no. 2798 of 1991 before the Division Bench of
the High Court, which also came to be dismissed on 25.11.1991.
Respondent no. 4 did not stop at that stage. It approached
the High Court once again by filing writ petition no. 31007 of
1992 praying for a direction to the State Government to consider
its representation for de-notification and for re-conveyance of the
land. The High Court by its order dated 09.12.1992 disposed of
6
the writ petition with the observation that the government will
hear and dispose of the representation of respondent no. 4 herein
in accordance with law. The State Government by its order dated
15.02.1993 rejected the representation of respondent no. 4.
Challenging such order of dismissal by the State Government,
respondent no. 4 filed writ petition no. 33996 of 1993 which also
came to be dismissed on 09.02.1996. Respondent no. 4 in the
meanwhile had approached the High Court of Karnataka by filing
writ petition 25719 of 1994 praying for a direction against BDA
not to form the road in the land in dispute. The said writ petition
came to be dismissed as withdrawn on 02.07.1996.
6. In the meanwhile, the State Government by its order dated
17.11.1994 had permitted respondent no. 4 to run a school
situated on the land in question. However, the government by its
order dated 29.04.1997 modified its earlier order dated
17.11.1994. Thereafter respondent no. 4 filed yet another writ
petition (5th writ petition before the High Court) being writ
petition no. 1071 of 1998 to implement the government order
dated 17.11.1994. On being objected to by BDA, the petition
came to be dismissed on 05.10.1999.
7
7. Respondent no. 4 filed yet another suit for injunction, i.e.
O.S. No. 16147 of 1999 (3rd suit). The said suit came to be
dismissed for default. Thereafter, the respondent no. 4 once
again approached the High Court of Karnataka by filing Writ
petition no. 49339 of 2004 (6th Writ Petition) for the following
reliefs.
a) The scheme formed by BDA for residential
layout lapsed under Section 27 of the BDA
Act.
b) Lay-out plan is illegal.
c) There was no vesting of land in BDA.
d) Allotment of sites to various allottees
including the appellants herein petitioners
was illegal.
The learned Single Judge of the High Court dismissed the writ
petition on 15.03.2007 by specifically noting that the possession
was taken by BDA, layout was formed, and sites are carved out
and distributed to the allottees who were put in possession of the
sites. The appellants herein are all allottees of the sites (who are
43 in number). The learned Single Judge also noticed that the
allottees have put up constructions and are residing in their
respective houses constructed on the sites allotted. The learned
Single Judge further noticed that the contentions taken and
8
reliefs prayed for by respondent no. 4 though they were available
for respondent no. 4 to be urged earlier, were not urged by it and
therefore, the said prayers are barred by Order 2 Rule 2 of C.P.C.
Respondent no. 4 filed writ appeal no. 1575 of 2007 before
the Division Bench questioning the judgment of dismissal by the
learned Single Judge in writ petition no. 49339 of 2004. The
Division Bench by its impugned judgment as mentioned supra,
though did not interfere in the order passed by the learned Single
Judge, proceeded to grant the liberty to respondent no. 4 to work
out its remedy in civil court once again. The Division Bench has
strangely observed that in case the suit is filed, the same is to be
considered without being influenced by the observations made by
the learned Single Judge. Thus, the Division Bench though did
not interfere in the order passed by the learned Single Judge, has
virtually ignored all the aforementioned facts, including
successive judgments made by the civil court as well as the High
Court of Karnataka in six writ petitions including the one in writ
petition 49339 of 2004, and has virtually kept open all the
questions including the question of title and possession, which
means that the Civil Court is directed to go into the validity of the
9
acquisition notification, award proceedings and the factum of
taking of possession by BDA pursuant to acquisition proceedings.
8. The learned Counsel Shri S. N. Bhat appearing on behalf of
the appellants/allottees of sites contends that the Division Bench
has erred in giving liberty to respondent no. 4 to file a civil suit
which would throw open a fresh round of litigation in respect of
the acquisition made as far back as 1977-79; the appellants and
other similar allottees have constructed houses on the plots and
have been residing therein for decades; the matter of acquisition
has attained finality and has come to a definite rest; the Division
Bench is not justified in reviving the dispute which had long been
given a legal quietus after a series of litigations. Lastly he
submits that it was not open for the Division Bench to unsettle
the settled state of affairs involving thousands of persons who are
purchasers of the plots.
9. The learned Counsel for respondent no. 4, per contra,
contended that the Division Bench is justified in granting liberty
to it to approach the civil court afresh inasmuch as the
possession of the property still remains with respondent no. 4;
respondent no. 4 is running an orphanage and a school for poor
children; since the possession of the property is not taken by
10
BDA, the disputed property is entitled to be held by respondent
no. 4 as the owner thereof. In other words, the argument in
favour of respondent no. 4 is that the disputed property in
question needs to be de-notified in favour of respondent no. 4 and
possession should continue in its favour and hence the Division
Bench is justified in granting permission to respondent no. 4 to
file a Civil Suit afresh by raising all the contentions as are
available in law.
10. It is not in dispute that the property in question along with
other properties was acquired by the BDA in accordance with law
by issuing notifications under Section 17(1) and 19(1) of the BDA
Act as far back as in the year 1977 and in the year 1979. The
BDA has formed and allotted the sites. Most of the allottees have
constructed houses and are residing peacefully. However,
respondent no. 4 still contends that possession has remained
with it and therefore the acquisition needs to be set aside and
that the land should be de-notified. As detailed supra,
respondent no. 4 has already approached the civil court thrice
and High Court on six occasions. Whenever the suits are
withdrawn, respondent no. 4 has not sought any liberty to
approach the civil court once again. Thus, it was not open for
11
respondent no. 4 to approach the civil court repeatedly for the
very reliefs. Consistently, the civil court on three occasions has
negatived the contention of the appellant.
11. Even when respondent no. 4 approached the High Court of
Karnataka by filing the writ petitions and writ appeals, it has
failed. Futile attempts have been made by respondent no. 4 only
to see that the allottees are harassed and to keep the litigation
pending. After the final notification, an award was passed and
compensation was deposited. Possession was taken and the
same was evidenced by the Panchanama prepared as far back as
23.09.1986. Notification under Section 16(2) of the Land
Acquisition Act was issued on 20.01.1987 disclosing the factum
of taking possession of the land in question. Attempt made by
respondent no. 4 for getting the disputed land de-notified has
also failed as far back as 15.01.1993, when the State Government
has rejected the representation of respondent no. 4 seeking
de-notification. The writ petition filed by respondent no. 4
challenging such order of dismissal of the representation was also
dismissed. Despite the same, respondent no. 4 is pursuing the
matter by filing writ petition after writ petition. It is a clear case
of abuse of process of law as well as the Court.
12
12. We do not find any reason to interfere in the finding of fact
rendered by the learned Single Judge that possession was taken
by BDA on 23.09.1986. There is nothing to be adjudicated
further in respect of the title or possession of the property. The
title as well as the possession of the property has vested with the
BDA for about more than 30 years prior to this day and sites were
formed and allotted to various persons including the appellant
herein. In the light of such voluminous records and having
regard to the fact that respondent no. 4 has been repeatedly
making futile attempts by approaching the courts of law by
raising frivolous contentions, the Division Bench ought not to
have granted liberty to respondent no. 4 to approach the civil
court once again for the very same relief, for which it has failed
earlier. In view of this, learned counsel for the appellant is
justified in contending that the Division Bench has completely
erred in reviving the dispute which had long been given a legal
quietus after a series of litigations. The Judgment of the Division
Bench, if allowed to stand, will unsettle the settled state of affairs
involving hundreds of allottees of sites who have constructed the
houses and are residing therein. The impugned judgment of the
Division Bench virtually sets at naught a number of judgments
13
rendered by the civil court as well as the High Court in the very
matter (and was given without any reason much less a valid
reason).
13. The Division Bench has erroneously conferred jurisdiction
upon the civil court to decide the validity of the acquisition. This
Court has repeatedly held in a number of judgments that, by
implication, the power of a civil court to take cognizance of such
cases under Section 9 of the CPC stands excluded and the civil
court has no jurisdiction to go into the question of validity under
Section 4 and declaration under Section 6 of the Land Acquisition
Act. It is only the High Court which will consider such matter
under Article 226 of the Constitution. So, the civil suit, per se is
not maintainable for adjudicating the validity or otherwise of the
acquisition notifications & proceedings arising therefrom. This
Court in the case of Bangalore Development Authority vs Brijesh
Reddy & Anr. [2013 (3) SCC 66] while considering the acquisition
notifications issued under BDA Act observed thus:
“It is clear that the Land Acquisition Act is a
complete code in itself and is meant to serve
public purpose. By necessary implication,
the power of the civil court to take
cognizance of the case under Section 9 CPC
stands excluded and a civil court has no
jurisdiction to go into the question of the
14
validity or legality of the notification under
Section 4, declaration under Section 6 and
subsequent proceedings except by the High
Court in a proceeding under Article 226 of
the Constitution. It is thus clear that the
civil court is devoid of jurisdiction to give
declaration or even bare injunction being
granted on the invalidity of the procedure
contemplated under the Act. The only right
available for the aggrieved person is to
approach the High Court under Article 26
and this Court under Article 136 with
self-imposed restrictions on their exercise of
extraordinary power.”
A similar view is taken by this Court in other cases. The
Judgments of this Court in Laxmi Chand & Ors. vs Gram
Panchayat, Kararia & Ors. [1996 (7) SCC 218], Shri Girish Vyas
vs State of Maharashtra [2012 (3) SCC 619], State of Bihar vs
Dhirendra Kumar & Ors. [1995 (4) SCC 229], Commissioner,
Bangalore Development Authority vs K. S. Narayan [206 (8) SCC
336] & Commissioner, Mutha Associates & Ors. vs State of
Maharashtra [2013 (14) SCC 304] considered the acquisition
proceedings relating to the lands which were acquired either
under the provisions of the BDA Act or under the Land
Acquisition Act. In all these judgments, similar question arose i.e.
as to whether the civil court had jurisdiction to decide the validity
of the acquisition notifications or not.
15
14. Having regard to the discussion made supra, in our
considered opinion, it is a clear case of contempt committed by
respondent no.4 by repeatedly approaching the courts of law for
almost the same relief which was negatived by the courts for
three decades. However, we decline to initiate contempt
proceedings and to impose heavy costs, under the peculiar facts
and circumstance of this case.
15. It is to be noted that the Division Bench has given liberty
to respondent no. 4 to work out his remedy in a civil suit without
even setting aside the findings of the learned Single Judge and
the findings rendered in the judgments passed by the Civil Court
and the High Court of Karnataka in a number of matters
(mentioned supra). In our opinion the Division Bench of the High
Court of Karnataka has in a casual manner relegated the parties
to the civil court to work out their remedies in the suit which is to
be instituted afresh by respondent no. 4. Thus, the said
conclusion of the Division Bench of the High Court is not
sustainable in law. Accordingly, the judgment and order dated
19.04.2011 passed by the Division Bench of the High Court of
Karnataka at Bangalore in writ appeal no. 1575 of 2007
16
(LA-BDA), and consequently the order dated 15.07.2011 (wherein
certain corrections are made subsequently) of the Division Bench
in Misc. Writ petition no. 7549 of 2011 are set aside. The
Judgment of the Learned Single Judge in the Writ Petition
Number 49357 of 2004 stands restored. Appeal is allowed.
.................................................J.
(ARUN MISHRA)
.................................................J.
(MOHAN M. SHANTANAGOUDAR)
New Delhi
December 06, 2017