Criminal Appeal No 316 of 1971
Appeal by Special Leave from the Judgment and Order dated the 17th September 1971 of the Patna High Court in Criminal Revision No 2488 of 1971 and Criminal Appeal No 317 of 1971
Appeal by Special Leave from the Judgment and Order dated the 7th October 1971 of the Patna High Court in Criminal Revision No 1491 of 1971 D Goburdhan and DP Sharma for the appellants in both the appeals
SC Agrawala and VJ Francis for respondents in both the appeals
The Judgment of the Court was delivered by SHINGHAL J
The point for consideration in these appeals by special leave is whether affidavits sworn or affirmed before magistrates who are not in seisin of the case under section 145 of the Code of Criminal Procedure hereinafter referred to as the Code could be read in evi dence under that section  The High Court has held such affidavits to be inadmissible in evidence in its impugned judgments dated September 17 1971 and October 7 1971 and that is why the present appeals by special leave have arisen at the instance of the aggrieved parties
It is not in controversy that in the absence of any specific provision to the contrary in the Code the affida vits have to be Sworn or affirmed in accordance with the provisions of the Oaths Act 1873
It is also not in con troversy that the Oaths Act of 1969 has no application to the controversy
Sub section 1 of section 145 of the Code provides inter alia that the Magistrate making an order under it shall require the parties concerned in the dispute to attend his court in person or by pleader and to put in such docu ments or to adduce by putting in affidavits the evidence of such persons as they rely upon in support of their claims
The affidavits contemplated by the sub section are therefore evidence for purposes of the proceedings before the Magistrate concerned even though the Evidence Act does not apply to them by virtue of the express provision of section 1 of that Act
Chapter XLVI of the Code deals with miscellaneous mat ters including the affidavits referred to in sections 539 539 A and 539 AA
Section 539 deals with courts and persons before whom affidavits and affirmations to be used before any High Court or any officer of such Court may be sworn and affirmed
Section 539 A relates to 176 affidavits in proof of conduct of public servants while section 539 AA relates to the authorities before whom affi davits to be used under section 510A or 539 A may be sworn or affirmed
An affidavit under section 145 is not however of a formal character because it is meant to prove or dis prove the competing claim of the parties as respects the fact of actual possession of the subject or dispute
There is thus no provision in the Code specifying the courts or persons before whom the affidavits referred to in section 145 have to be sworn and affirmed
This has therefore to be done according to the general provisions relating to affidavits
The definition of affidavit in section 33 of the Act X of 1897 only states that it shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing
But it is an essential characteristic of an affidavit that it should be made on oath or affirmation before a person having authority to administer the oath or affirmation It is here that section 4 of the Oaths Act comes into operation which provides as follows 4
The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law  a all Courts and persons having by law or consent of parties authority to receive evidence Then follow clause b and a proviso with which we are not concerned
It is therefore clear that all courts and persons having by law or consent of parties authority to receive evidence are authorised to administer oaths and affirmations but they can do so only where they are otherwise acting in the discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law So the court or person mentioned in clause a of section 4 of the Oaths Act can administer oath or affirmation to the deponent in an affidavit only if the court or person in acting in the discharge of the duties or in exercise of the powers im posed or conferred upon them respectively by law In the present cases the Magistrates concerned with the proceeding under section 145 of the Code were discharging the duties imposed and exercising the powers conferred by the Code and they alone could administer the oaths and affirmations to the persons who made the affidavits and not the magistrates who were not discharging any such duty or exercising any such power
As the affidavits in the cases before us were admittedly not sworn or affirmed before Magistrates who were dealing with the disputes under section 145 of the Code they were not proper affidavits and did not constitute evidence for purpose of section 145
A similar view 177 has been taken in Nandial Ghost vs Emperor1 Hemdan vs State Rajasthan and others2 Govind vs State and oth ers3 Krishna Chandra Naik vs Sk
Makbul and others4 Mahesh Thakur and others vs Lakshman Prasad Thakur and another5 and State Madhya Pradesh vs Triveni Prasad6 on which reliance has been placed by counsel for the respond ents
We have gone through Ahmad Din vs Abdul Selem7 which has been cited with approval in Shambhu Nath Chopra vs State8 on which reliance has been placed by counsel for the appellants
We find however that in Ahmad Din s case supra the Punjab High Court did not take proper notice of the requirement of section 4 of the Oaths Act that the courts and persons mentioned in clause a could administer oaths only in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law
 We have also examined the reasoning in Shambhu Nath Chopra s case supra but the Delhi High Court there went wrong in holding that the evidence on affidavits referred to in section 145 of the Code was of a formal character within the meaning of section 510A so as to attract section 539 AA
At the High Court has rightly held in the two impugned judgments that the affidavits were inadmissible in evidence as they were sworn before Magistrates who were never in seisin of the case we find no force in these appeals and they are hereby dismissed
PHP Appeals dis missed
1 AIR 1944 Cal
2 A1R 3 AIR 1969 All
4 AIR 1970 Orissa 209
5 1971 19 Bihar Law Journal 727
6 1971 XVI MPL J 1059a 7 AIR 8 AIR 1970 Delhi 210 13 1158SCI77 178 STATE OF KERALA vs MT JOSEPH November 25 1976 A N RAY CJ MH BEG AND JASWANT SINGH JJ Kerala Land Reforms Act 1963 Kerala Government Land Assignment Act 1960 Sec
8 Whether after a person ac quires title to Government land any further restrictions can be imposed
The Government of Travancore sanctioned a scheme for the reclamation of the Vimbana Lake upon terms and conditions contained in at document dated 4 10 1963
The document provided that one Joseph his father on payment of Rs 10  per acre which was to
be recovered in 10 equal instalments would be given possession of certain tracts of land which they undertook to reclaim
The said agreement was modified by an order dated 12 2 1941 and a fresh agreement was exe cuted in July 1941
The said agreement provided that till tie remittances of all amounts due to the Government by way of land value are paid the executant shall have no right of alienation in respect of the property in question and that till then the property shall remain with the Government as sole owner
It further provided that until the entire land value is paid by the executant and until the assignment of the land and issue of Patta is completed the executant undertook not to do any act which might reduce the value of tie property
Joseph complied with the conditions laid down in the agreement and acquired full ownership rights by fulfilling the said terms
In 1957 Joseph executed a deed of settlement of this land
Thereafter Kerala Land Reforms Act of 1963 was passed so that the State Land Board started proceedings for the surrender of the land
The question before the Land Board was whether the whole land should be treated as a single unit belonging to Joseph or whether it may be divided and treated as separate units of persons in whose favour Joseph made the settlement
If the children of Joseph had acquired rights under the settlement each of them could be treated as entitled to compensation for a separate unit
The State relied on section 8 of the Kerala Government Land Assignment Act 1960 which pro vides that all provisions restrictions conditions and limitations contained ha any Patta or other document evi dencing an assignment of Government land shall be valid and take effect according to their tenure any rule of law or usage to the contrary notwithstanding
Dismissing the appeal HELD Tie terms in the 1941 agreement operated as a restraint upon the alientation of the rights only so long as all the amounts due to the Government by way of land revenue were not paid up
Since in the present case the entire amount had been paid by 10 yearly instalments before the year 1957 and since the Government had effected the mutation in its record acting upon the settlement of 1957 in favour of the children of Joseph it could not be said that there was any patta or other documents containing any condition to which section 8 of the Act applied
The chil dren derived rights under the deed of settlement and there fore each of them is entitled to compensation for a sepa rate unit
180 C E CIVIL APPELLATE JURISDICTION Civil Appeal Nos
587 696  598 600 of 1976
Appeals by Special Leave from the Judgment and order dated 13th of July 1975 of the Kerala High Court in CRP Nos 1188 1227 1250 1272
1278 1279
 1284 1287 1309 1312 and 138673
179 MM Abdul Khader Adv
and KMK Nair for the Appellants
TS Krishnamoorthy Iyer and PK Pillai for RR
ex cepting R 8 in CA 58776
The Judgment of the Court was delivered by BEG J
These appeals by special leave raise the ques tion whether the Kerala High Court had correctly interpreted and applied Section 8 of the Kerala Govt
Land AsSignment Act 1960 hereinafter referred to as the Act  to the cases before us
This provision reads as follows 8
All provisions restrictions conditions and limitations over contained in any Patta or other document evidencing an assignment of Government land shah be valid and take effect according to their tenor any rule of law of usage to the contrary notwithstanding
The facts upon which the provision was sought to be applied are these On 23 October 1939 the Government of Travancore sanctioned a scheme for the reclamation of the Vimbang Lake upon terms and conditions which were set forth in a document dated 4 October 1939
The agreement provided that one M T Joseph and his father on payment of Rs 10 per acre which were to be recovered in ten equal instal ments would be given possession of certain tracts of land which they undertook to reclaim
For the first two years after what is called the Registry of the names of the two lessees no tax was to be levied
The Registry was liable to be cancelled if adequate progress was not made within these two years
It appears that the agreement was modified by an order dated 12 February 1941 and a fresh agreement was executed in July 1941 by MT Joseph now dead who entered into possession of Keyal land constructed the ring bunds at considerable expense and brought the very large tracts of and to be reclaimed under paddy cultivation
In June 1957 MT Joseph executed a deed of settlement of all this land after he had acquired full ownership rights by fulfilling the terms of the agreement
The Act which is sought to be now applied was then passed
After that the Kerala Land Reforms Act of 1963
was passed so that the State Land Board started proceedings for the surrender of these lands in accordance with the provisions of the Land Reforms Act
The only question now before us is whether by an appli cation of section 8 of the Act the whole land is to be treated as a single unit belonging to MT Joseph since dead on the dispositions made by MT Joseph under the deed of settlement executed by him on 15th June 1957 distributing the land among his children resulted in sepa rate units for the purposes of compensation for the land surrendered
If the children had acquired right under the deed of settlement each of them could be treated as entitled to compensation for a separate unit
If the deed was of no effect the mere fact that the children were in possession under an authority from their father could not change the  ownership of the land in the constructive possession of the father
We have been taken through the deed of agreement of July 1941 with the Government
which contains the follow ing term the effect of which has to be determined 180 Till the remittance of all amount due to
the Government by way tharavila land value etc
the executant shall have no right of alienation in respect of the schedule property and the property shall remain with the Government as sole owner
The executant shall remit the tax at the thirteenth thoram in the village office every year after the first two years of registry so long as no default is made in the payment of instalment and obtain receipt therefor
Until the entire tharavila land value under this agreement as stated above is paid by the executant and until the assignment of the land and issue of patta is completed the executant undertakes not to do any act which may reduce the value of the property and if as stated above due to any reason the property is recovered
from the executant he shall not put forward any claim for improvements etc
and the property shall be surrendered to Government
It is clear to us that this term in the agreement oper ated as a restraint upon the alienation of rights only so
long as
all the amounts due to the Government as Tharavila had not been paid up
The whole amount had to be paid up in ten yearly instalments
It has been paid up before 1957
Furthermore as the Kerala High Court found the settlement of land on 15th June 1957 had not merely been given effect to by a mutation in the relevant Government records but pattas had actually been given by the Government acting upon the settlement of 1957 in favour of the children of MT Joseph
Hence it could not be said that there was any patta of other document containing any condition to which Section 8 of the Act could apply
We find from the Judgment under appeal that several questions which have no real bearing on the rights of the parties were also argued
One of these questions was whether land could be acquired by adverse possession by the alienees of the allottees of the land from the Government under the scheme for its reclama tion
We fail to see how a question of adverse possession arises here when the Government itself recognises the rights of the children of MT Joseph in the pattas executed by it in their favour
The High Court recorded the following findings about the Government acting on the terms of the settlement of 15th June 1957 the correctness of which had not been challenged before us This settlement deed has been recognised by the Government mutation has been effected in the names of the children and pattas have also been issued to them
It has been further stated on behalf of the revision petitioners the heirs of the said Joseph and those who took under the settlement deed dated 1561957 that levy under the Kerala Rice and Paddy Procurement by Levy Order 1966 has been collected from each of the shares under the deed of 1957 that land tax has been imposed on each of the shares sepa rately and agricultural income tax collected on the income of the properties of each of the sharers
We do not think it is necessary to go into any other question
The High Court was of opinion that some facts had still to be as 181 certained when the case goes back to the Land Board for proceeding on the footing determined by the High Court
We think that we should make it clear that matters to
be still determined could not in view of our finding involve deter mination of any question of adverse possession of the claimants the children of MT Joseph
For the reasons given above we dismiss these appeals
We make no order as to costs
PHP Appeals dis missed


Summary:
Proceedings under section 1451 of the Criminal Proce dure Code 1898 were going on between the parties
The appellants filed affidavits before the Magistrate
The said affidavits were not sworn before the Magistrate who was in seisin of the case but were sworn before some other Magis trate
It was contended before the Magistrate by the re spondents that the said affidavits were not admissible in evidence
The High Court held those affidavits to be inad missible
Dismissing the appeal by special leave HELD 1 In the absence of any specific provision to the contrary in the Criminal Procedure Code the affidavits have to be sworn or affirmed in accordance with the provi sions of the Oaths Act 1873
Section 1451 of the Code provides that the Magistrate making an order under it shall require the parties concerned in the dispute to attend his court in person or by pleader and to put in such documents or to adduce by putting in affidavits the evidence of such persons as they rely upon in support of their claim
The affidavits contemplated by the sub section are therefore evidence for purposes of proceedings before the Magistrate concerned even though the Evidence Act does not apply to them
175G H 2 There is no provision in the Code specifying the courts before whom the affidavits referred to in section 145 have to be sworn and affirmed
The definition of affidavit in section 33 ofthe only states that it shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of swearing
Section 4 of the Oaths Act reads as under 4
The following Courts and persons are authorised to administer by themselves or by an officer empowered by them in this behalf oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law  a all Courts and persons having by law or consent of parties authority to receive evidence It is clear that all Courts and persons having by law or consent of parties authority to receive evidence are autho rised to
administer oaths and affirmations but they can do so only where they are otherwise acting in the discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law
In the present case the Magistrate concerned with the proceedings under section 145 of the Code was discharging the duties imposed and exercising the powers conferred by the Code and he alone could adminis ter the oaths and affirmations to the persons who made affidavits and not Magistrates who were not discharging any such duty or exercising any such power
176A H Nandial Ghose vs Emperor AIR 1944 Cal 283 Hemdan vs State of Rajasthan  Ors AIR 1966 Raj 5 Govind vs State and others AIR 1969 All 405 Krishna Chandra Naik vs Sk
Makbul and others AIR 1970 Orissa 309 Mahesh Thakur and others vs Lakshman Prasad Thakur and another 1971 19 Bihar Law Journal 727 and State of Madhya Pradesh vs Trivedi Prasad 1971 XVI HR Law journal 1059 approved
175 Ahmad Din vs Abdul Salem AIR and Shambhu Nath Chopra vs State AIR 1970 Delhi 210 over ruled