ivil Appeal No309 of 1955
Appeal from the judgment and order dated October 7 1953 of the Orissa High Court in OJC No 37 of 1952
CKDaphtary Solicitor General of India and BSen B M Patnik Advocate Orissa High Court with Special Permission of the Court and R H Dhebar for the appellants Nos 1 3 to 9 and 11 to 16 and the intervener
H Mahapatra and Gyan Chand Mathur for the respondent
December 6
The following Judgment of the Court was delivered by BHAGWATI J
This appeal with a certificate under articles 132 and 1331c of the Constitution arises out of a writ petition filed by the respondent in the High Court of Orissa under article 226 seeking to quash the proceedings taken by certain tenants of his private lands under the provisions of the Orissa Tenants  Protection Act 1948 Orissa III of 1948 hereinafter referred to as the 1948 Act
The respondent was the ruler of the erstwhile Khandapara State which merged with the Province of Orissa under the States  Merger Governor s Provinces Order 1949 with effect from August 1 1949
The respondent had on December 14 1947 entered into an agreement with the Governor General of India art 3 Whereof provided that 1069  The Raja shall be entitled to full ownership use and enjoyment of all private properties as distinct from State Properties belonging to him on the date of the agreement
 That article further provided that if any dispute arose as to whether any item of property was the private property of the Raja or State property it shall be referred to such officer with judicial experience as the Dominion Government might nominate and the decision of that officer shall be final and binding on both parties
The respondent claimed a number of properties and the matter was referred to the Adviser for Orissa States for determining whether all the items claimed by him could be regarded as his private pro perties
On June 10 1949 the Adviser communicated his decision that the respondent was entitled to 1643 acres as his Khamar lands and 29 and odd acres as lands settled with his tenants
The lands comprised in the present proceedings taken under the 1948 Act as aforesaid were declared to be the private properties of the respondent
On March 3 1950 the Orissa Legislature passed the Orissa Merged States  Laws Act 1950 Orissa IV of 1950 hereinafter referred to as  the 1950 Act 
Section 4 of that Act extended inter alia the 1948 Act to the areas merged in the absorbing Province of Orissa
Section 7 provided for the modification of tenancy laws in force in the merged States
The relevant provisions of that section so far as they are material for the purposes of this appeal may be set out herein  Notwithstanding anything contained in the tenancy laws of the merged States as continued in force by virtue of article 4 of the States Merger Governor s Provinces Order 1949 aall suits and
proceedings between landlord and tenant as such shall be instituted and tried in revenue courts
ExplanationIn this clause the expression  landlord shall mean a person immediately under whom a tenant holds land and the expression  tenant  shall mean a person who holds land under another 1070 person and is or but for a special contract would be liable to pay rent for that land to that person h when a person holds Khamar nij jote or any other private lands of a Ruler which has been recognised as such by the Provincial Government he shall not be liable to ejectment but shall be liable to pay such fair and equitable rent as may be fixed by any competent authority appointed in this behalf by the Revenue Commissioner or the Commissioner Northern Division as the case may be and thereupon he shall acquire right of occupancy in respect of such lands  On April 14 1951 the State Legislature passed the Orissa Tenants Protection Amendment Act 1951 Orissa XVII of 1951 whereby the date the  1st day of September 1947  wherever it was used in the 1950 Act was substituted by the I st day of August 1949 for the purposes of the merged States areas and it was further provided that in such areas where neither the Madras Estates Land Act 1908 nor the Orissa Tenancy Act 1913 was in force the special laws or customs prevailing therein shall be taken into consideration for the application of that Act
It appears that certain tenants who were in occupation of the private lands of the respondent were evicted by him during the year 1951 and other tenants were inducted by him and put in possession of the lands
The tenants who were thus evicted applied to the Revenue Officer some time in 1952 for being restored to possession of their tenancy lands under the provisions of the 1948 Act alleging that the respondent was their landlord and that he had unlawfully evicted them from their lands
These were numbered as OTP Act Cases Nos
21 to 25 of 1952 26 to 28 of 1952 29 to 32 of 1952 and 33 to 41 of 1952
Notice was issued to the respondent but it appears that be did not care to enter appearance before the Revenue Officer or to contest the applications
On the ex parte evidence of the Applicants the Revenue Officer directed restoration of possession to them holding that they 1071 were in possession of the lands as tenants on the 1st day of August 1949 and as such were entitled to the benefits conferred by the 1948 Act as amended in its application to the merged States
The respondent thereupon filed a writ petition under article 226 of the Constitution in the High Court seeking to quash the entire proceedings on the ground that in respect of the disputed lands he was not a  landlord  within the meaning of the 1948 Act
The petition as filed averred that the fundamental right conferred upon the respondent by article 19 of the Constitution was infringed that the provisions of the 1948 Act which were inconsistent with that article were void as being ultra vires the Constitution and the orders passed thereunder by the Revenue Officer were illegal and liable to be set aside
This petition was filed by the respondent on August 11 1952 A further petition was thereafter filed on February 26 1953 invoking article 3 of the said Agreement and it was contended that by the application of the provisions of the 1948 Act to the said private properties of the respondent the respondent was deprived of the  full ownership use and enjoyment  of the properties to which he was entitled under the said Agreement and that under article 363 of the Constitu tion no Court had jurisdiction to deal with any dispute arising out of any provisions of the said Agreement
The decision of the Revenue Officer was thus called in question and it was contended that he had no jurisdiction to decide the dispute as to whether the tenants had any right to the personal properties of the respondent and as such the proceedings were liable to be quashed as being without jurisdiction
The High Court accepted these contentions of the respondent and allowed the writ petition
It accordingly directed the issue of a writ declaring that the proceedings under the 1948 Act taken by the Revenue Officer were void as being without jurisdiction and that they should be quashed
The tenants then filed an application before the High Court asking for a certificate under articles 132 and 1072 1331c of the Constitution which was granted by the High Court
The State of Orissa asked for leave to intervene in the appeal which leave was granted by this Court and the learned Solicitor General has appeared before us in support of the appeal both on behalf of the tenants who are the appellants herein and the State of Orissa the Intervener
It may be noted at the outset that no question has been raised in regard to the vires of the 1950 Act which extended inter alia the 1948 Act to the areas merged in the absorbing Province of orissa
That being so section 7h of the 1950 Act in terms would apply to the appellants before us and they would not be liable to ejectment
The answer of the respondent however is that 1 the Revenue Court had by virtue of article 363 of the Constitution no jurisdiction in the disputes between the appellants and him arising out of the provisions of the said Agreement dated December 14 1947 2 that the full ownership use and enjoyment of the properties which was guaranteed to him under article 3 of the said Agreement was affected by the application of the provisions of the 1948 Act to the said lands and 3 that he was not a  landlord  and the appellants were not the  tenants  within the meaning of the terms as defined in the 1948 Act and that in any event these lands were not recognised as such by the Provincial Government which recognition was a condition precedent to the application of section 7h of the 1950 Act to these lands and that therefore the appellants were not entitled to the protection thereof
The first two contentions are inter related and can be disposed of together
The lands in question were declared to be the private properties of the respondent and he was guaranteed under article 3 of the said Agreement full ownership use and enjoyment thereof
Article 363 only ousted the jurisdiction of the courts in regard to the disputes arising out of any provisions of the Agreement entered into by the Rulers of Indian States with the Government of India
The dispute which had arisen between the appellants and the respondent in the present case could hardly be said to 1073 be a dispute arising out of any provisions of the said Agreement
The full Ownership use and enjoyment of the properties which were declared to be the private properties of the respondent was not sought to be affected by extending the 1948 Act to the merged State of Khandapara
The properties which had been declared to be the private properties of the respondent were not claimed as State properties but the whole legislation proceeded on the basis that the respondent was the owner of these properties wherein he had inducted tenants and what was sought to be done was to enact a measure for the protection of those tenants
A measure for the protection of the tenants inducted by the respondent could hardly be said to affect the full ownership use and enjoyment of these properties by the respondent
It no doubt imposed certain restrictions on the absolute rights which the respondent claimed in regard to the user and enjoyment of the said properties but these measures were imposed upon him in common with all the citizens of the Union and the justification for the same could be sought under cl 5 of article 19 of the Constitution
Similar contentions which had been raised on behalf of the erstwhile Rulers whose States had merged with the Provinces were answered by this Court in The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga 1 and in Visweshwar Rao vs The State of Madhya Pradesh 2
PatanjaliSastri C Jobserved in the former case at page 915 But a short and obvious answer is that there was no contravention of any guarantee or assurance given by the Government under the covenant of merger as the estates in question are sought to be acquired only as the  private property  of the Rulers and not otherwise
The compensation provided for such as it is is in recognition of their private proprietorship as in the case of any other owner
 Mahajan J as he then was observed in the latter case at page 1041   It is true that by the covenant of merger the  915
2  1041 I054
1074 properties of the petitioner became his private properties as distinguished from properties of the State but in respect of them he is in no better position than any other owner possessing private property
Article 362 does not prohibit the acquisition of properties declared as private properties by the covenant of merger and does not guarantee their perpetual existence
The guarantee contained in the article is of a limited extent only
It assures that the Rulers  properties declared as their private properties will not be claimed as State properties
The guarantee has no greater scope than this
That guarantee has been fully respected by the impugned statute as it treats those properties as their private properties and seeks to acquire them on that assumption
Moreover it seems to me that in view of the comprehensive language of article 363 this issue is not justiciable
 Das J as he then was also observed in that case at page 1054  The guarantee or assurance to which due regard is to be had is limited to personal rights privileges and dignities of the Ruler qua a Ruler
It does not extend to personal property which is different from personal rights
Further this article does not import any legal obligation but is an assurance only
All that the covenant does is to recognise the title of the Ruler as owner of certain properties
To say that the Ruler is the owner of certain properties is not to say that those properties shall in no circumstances be acquired by the State
The fact that his personal properties are sought to be acquired on payment of compensation clearly recognises his title just as the titles of other proprietors are recognised
 It is clear therefore that neither article 363 nor article 362 of the Constitution would avail the respondent and the courts would have jurisdiction to entertain the dispute between the appellants and him which arose out of his action in ejecting them from his private lands
The provisions of the said Agreement only protected his rights in the properties declared to be his private properties so that they could not be claimed at any time thereafter as State properties
The did not dispute his ownership over the same but proceeded on the basis that they were his private properties and sought to impose upon him certain obligations in order to protect the rights of the tenants whom he had inducted therein and there was no infringement of the guarantee or assurances which had been given to him under article 3 of the said Agreement
It could not also be urged that by imposing reasonable restrictions in the interests of the tenants on his right to acquire hold and dispose of properties under cl 5 of article 19 of the Constitution the 1948 Act affected his rights of full ownership use and enjoyment of those properties
If anything was done by extending the 1948 Act to the merged State of Khandapara it was done in the interests of the tenants and it was done for the protection of the tenants who were inducted by him and such restrictions did not affect the full ownership use and enjoyment of his private properties any more than they did in the case of other owners of lands
As a matter of fact under the terms of the 1950 Act which extended the 1948 Act to the merged State of Khandapara he was entitled to the payment by he tenants of such fair and equitable rent as may be fixed by any competent authority appointed in this behalf by the Revenue Commissioner or the Commissioner of the Northern Division as the case may be and so long as the tenants continued to pay such rent he was no worse off than were other proprietors of lands
The tenants would no doubt acquire rights of occupancy in respect of such lands but the acquisition of the occupancy rights by the tenants would not be calculated to affect his right to full ownership use and enjoyment of his lands because he would be entitled to eject the occupancy tenants also if the tenants used the lands comprised in their holdings in any manner which rendered them unfit for the purposes of the tenancy or committed a breach of conditions consistent with the provisions of the tenancy laws in force in the merged State concerned on breach whereof they were under the terms of the contract between themselves and the landlord liable to be ejected
As already stated I37 1076 these restrictions were for the protection of the tenants who were inducted on the lands by the erstwhile Rulers themselves and by the extension of the 1948 Act to the merged State of Khandapara the respondent was treated in the same manner as any other citizen of the Union
If at all there was any infringement of his rights to full ownership use and enjoyment of his properties that was also in accordance with the provisions of the Constitution itself and whatever may have been the guarantee or assurance given to him under the terms of the said Agreement it could not be absolute but would only be co extensive with the right to acquire hold and dispose of property which is guaranteed to all the citizens of the Union under article 191f of the Constitution
These contentions of the respondent therefore are of no avail
If then the provisions of the 1950 Act could be validly applied to the merged State of Khandapara in spite of article 3 of the said Agreement thus attracting the operation of the 1948 Act to his private lands it remains to consider whether the respondent was a landlord and the appellants were his tenants within the meaning of the terms as defined in that Act
The contention of the respondent in the first instance is that under the terms of section 2ii of the Orissa Tenants Protection Amendment Act 1951 Orissa XVII of 1951 which added sub section
5 to section I of the 1948 Act in such areas where neither the Madras Estates Lands Act 1908 nor the Orissa Tenancy Act 1913 was in force and the State of Khandapara was such an area the special laws or customs prevailing therein shall be taken into consideration for the application of that Act
It is urged that the relationship between the respondent and the tenants whom he had inducted on his private properties was governed by special laws and customs and that therefore the application of the Act was excluded 
It is however to be observed that no such contention was ever taken in the proceedings before the Revenue Officer or before the High Court and it was urged for the first time in the course of the arguments before us
The question is one of fact 1077 whether any such special laws or customs were prevailing in the merged State of Khandapara and we cannot allow the respondent to urge this contention for the first time before us
We shall therefore proceed on the basis that the 1948 Act was quite properly extended to the merged State of Khandapara
It is next contended that the definition of landlord and tenant given in section 2c and g of the 1948 Act did not apply to the relationship between the parties
The definitions of these terms are as under Section 2 c landlord means a person whether a proprietor sub proprietor tenure holder or raiyat or under raiyat either in the raiyatwari area or in the zamindari area or land holder or permanent undertenure holder whose land a person whether immediately or mediately cultivates as a tenant Section 2 g tenant means a person who under the system generally known as Bhag Sanja Kata or such similar expression cultivates the land of another person on condition of delivering to that person i either a share of the produce of such land or ii the estimated value of a portion of the cropraised on the land or iii a fixed quantity of produce irrespective of the yield from the land or iv produce or its estimated value partly in any one of the ways described above and partly in another but shall not include     It is urged that the tenants who were inducted by the respondent on these lands did not fulfil the terms of this definition and they were therefore not tenants and as a logical corollary to that the respondent could not be a landlord qua them
It is also contended that even though these lands were declared to be the private properties of the Respondent under the decision of the Adviser for the Orissa States that was a recognition of the lands as such by the Dominion Government and not by the Provincial Government which recognition was a condition precedent of the application of section 7h of the 1950 Act to these lands
Here 1078 also the respondent is confronted with this difficulty that these questions were not mooted either before the Revenue Officer or the High Court in the manner in which it was sought to be done before us
It was all along assumed that the appellants had been the tenants of the respondent but had been ejected by him in the year 1951 and other tenants were inducted in their place some time in 1952
The lands in question were also assumed to have been recognised as the private lands of the respondent by the Government without making any distinction between the Dominion Government and the Provincial Government as was sought to be done before us
Reliance was mainly placed by the respondent in the High Court on his plea that the jurisdiction of the Revenue Officer was barred under article 363 of the Constitution and it was nowhere urged that the appellants were not the tenants and be was not the landlord within the terms of the definitions contained in the 1948 Act or that in the absence of recognition of these private lands of his as such by the Provincial Government the condition precedent to the application of section 7b of the 1950 Act was not fulfilled and that section has no application at all to these lands
The determination of these questions also requires evidence in regard to the same and it would not be legitimate to allow these questions to be agitated for the first time at this late stage
The matter is however concluded by the provisions of section 7a of the 1950 Act
That section enacts a statutory extension of the definition of the terms landlord and tenant and provides that the expression Jandlord shall mean a person immediately under whom a tenant holds land and the expression tenant  shall mean a person who holds land under another person and is or but for a special contract would be liable to pay rent for that land to that person
Whatever may have been the definitions of the terms landlord and tenant in section 2c and g of the 1948 Act this definition contained in the explanation to section 7a of the 1950 Act makes the appellants the tenants and the respondents  a landlord  in regard to the lands in question
This statutory extension of the definition of the terms 1079 landlord  and  tenant  therefore is sufficient in our opinion to repel the last contention urged on behalf of the respondent before us
The respondent further contends that in spite of section 7 of the 1950 Act enacting that all suits and proceedings between landlord and tenant as such shall be instituted and tried in revenue courts the provisions of the 1948 Act in regard to the hierarchy of revenue courts and the procedure and the penalties provided therein are not attracted to the merged State of Khandapara
The contention is that the provisions contained in the 1950 Act are special provisions which eliminate the operation of the general provisions contained in the 1948 Act and in so far as nothing more is stated in regard to how the revenue courts are to act in the matter of the institution and trial of all suits and pro ceedings between landlord and tenant there is a lacuna and the revenue courts as envisaged by the 1948 Act have no jurisdiction to entertain the proceedings in question
The simple answer to this contention of the respondent is that both these Acts have to be read together
The 1950 Act is an Act to extend certain Acts and regulations to certain areas administered as part of the Province of Orissa
The merged State of Khandapara is one of such areas
By virtue of section 4 of this Act the 1948 Act is inter alia extended to the merged State of Khandapara and the provisions thereof are made applicable in that area
The other sections of this Act enact further provisions which are applicable to these merged States including the merged State of Khandapara and section 7 in particular enacts the modification of the tenancy laws in force in those merged States
These provisions are therefore supplementary to those contained in the 1948 Act and it follows that not only the provisions of the 1948 Act but also the provisions of the 1950 Act are applicable to the merged State of Khandapara
If both these Acts are thus read together as they should be there is no inconsistency between the provisions of these Acts and it is clear that the provisions of sub section
a and h of section 7 of the which applied to the dispute which arose between the appellants and the respondent read together with the relevant provisions in regard to the procedure penalties etc contained in the 1948 Act did give jurisdiction to the Revenue Officer to entertain the dispute between the parties
This contention of the respondent also therefore fails
We are therefore of opinion that the judgment of the High Court was clearly wrong and is liable to be set aside
We accordingly allow the appeal set aside the order made by the High Court and restore the orders passed by the Revenue Officer in the OTP Act Cases Nos
21 to 25 of 1952 26 to 28 of 1952 29 to 32 of 1952 and 33 to 41 of 1952
The respondent will pay the appellants  costs of this appeal as also of the writ petition in the High Court
The State of Orissa will of course bear and pay its own costs
Appeal allowed


Summary:
 The parties are decendants of a common ancestor who had two sons
These two branches of the family had joint properties both agricultural and residential
The agricultural land was partitioned in 1955 and the names of the respective parties were duly mutated in the revenue records
This was followed by a partition of their residential properties including the house ghers ghetwars etc
The factum of partition was embodied in the memorandum of partition Exh
B 12 dated August 3 1955 and bears the thumb impressions and signatures of the heads of the families and later confirmed in the settlement dated January 31 1971 Exh
P 1 written in the presence of a number of villagers
A dispute arose between the parties in February 1971 when the respondents were sought to be prevented by the appellants from raising a boundary wall to a plot of land that had fallen to their share
In proceedings under section  the Sub Divisional Magistrate held that the father of the appellants was in actual possession of the disputed piece of land
In revision the Sessions Judge agreed with the conclusion arrived at by the Magistrate
On further revision the High Court affirmed the findings reached by the courts below
In a suit for declaration brought by respondents a Single Judge of the High Court came to the conclusion that the disputed plot belonged to them and it had fallen to their share in the partition of 1955 and later confirmed in the settlement dated 31st January 1971
He construed the document Exh
p 12 to be a memorandum of family arrangement and not an instrument of partition requiring registration and therefore admissible in evidence under the proviso to section 49 of the Act for a collateral purpose of showing nature of possession
In a Letters Patent appeal a Division Bench of the High Court affirmed the reasoning and 1107 conclusion arrived at by the Single Judge
In the appeal by special leave it was contended for the appellants that the document Exh
P 12 does not contain any recital of a prior completed partition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties ie according to which partition by metes and bounds had to be effected
It therefore required registration under section 17 of the 
Dismissing the appeal  HELD 1
Partition unlike the sale or transfer which consists in its essence of a single act is a continuing state of facts
It does not require any formality and therefore if parties actually divide their estate and agree to hold in severalty there is an end of the matter
1115B C 2
If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others the formalities prescribed by law have to be complied with since the transferees derive their respective title through the transferor
If on the other hand the parties set up competing titles and the differences are resolved by the compromise there is no question of one deriving title from the other and therefore the arrangement does not fall within the mischief of section 17 read with section 49 of the as no interest in property is created or declared by the document for the first time
it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary
1116C E Sahu Madho Das  Ors
vs Pandit Mukand Ram  Anr   Khunni Lal vs Gobind Krishna Narain  Anr LR 1911 38 IA 87 and Lalla Oudh Behari Lall vs Mewa Koonwar at p 84 refereed to
In the instant case admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records
There was thus a disruption of joint status
All that remained was the partition of the ancestral residential house called rihaishi the smaller house called baithak and ghersghetwars
The document Exh
P 12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property
The parties set out competing claims to the properties and there 1108 was an adjustment of the rights of the parties
The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties
The opening words of the document are Today after discussion it has been mutually agreed and decided that   what follows is a list of properties allotted to the respective parties
From these words it is quite obvious that the document contains the recital of the past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated
It cannot therefore be construed to be an instrument of partition
1116F G 1114C D Section 171b of the lays down that a document for which registration is compulsory should by its own force operate or purport to operate to create or declare some rights in immovable property
Therefore a mere recital of what has already taken place could not be held to declare any right and there would be no necessity of registering such a document
1113H 1114A Rajangam Ayyar vs Rajangam Ayyar LR 1923 69 IA 123 and Nani Bai vs Gita Bai  referred to
A document though unregistered can however be looked into under the proviso to section 49 of the Act which allows documents which would otherwise be excluded to be used as evidence of any collateral transaction not required to be effected by a registered instrument for the limited purpose of establishing a severance in status though that severance would ultimately affect the nature of the possession held by the members of the separated family as co tenants
The document Exh
P 12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide
1116G H 1117A Varada Pillai vs Jeevarathnammal LR 1919 46 IA 285 referred to
In any view the document Exh
P 12 is a mere list of properties allotted to the shares of the parties
It merely contains the recital of past events
It is therefore admissible in evidence
1117B Narayan Sakharam Patil vs Cooperative Central Bank Malkapur  Ors ILR  Bageshwari Charan Singh vs Jagarnath Kuari LR 1932 59 IA 130 Subramanian vs Lutchman LR 1923 15 IA 77 Ganpat Gangaji Patil vs Namdeo Bhagwanji Patil  Ors ILR and Mulla s  8th Edn
54 57 referred to