Appeals Nos 118 119of 1956
Appeal from the judgment and decrees dated September 27 1951 of the Patna High Court in Appeal from Original Decrees Nos 252 and 254 of 1948 arising out of the judgment and decrees dated May 11 1948 of the Court of Subordinate Judge Dhanbad in Title Suits Nos 16 and 50 of 1945 respectively
1403 M C Setalvad Attorney General for India Kshitindra Nath Bhattacharya section N Andley J B Dadachanji and Rameshwar Nath for the appellant
N C Chatterjee section C Bannerjee and P R Chatterjee for respondents Nos 7 to 13
P K Chatterjee for respondents Nos
2 4 and 6 Minors
Gauri Dayal for respondent No 5 1958
February 25
The following Judgment of the Court was delivered by KAPUR J
In these two appeals brought by leave of the Patna High Court against a judgment and two decrees of that court a common and the sole question for decision is one of adverse possession
Two cross suits were  brought in the Court of the Subordinate Judge Dhanbad raising common questions of fact and law
The appellant and respondent Manilal Becharlal Sangvi were defendants in one Suit No 16 of 1945 and plaintiffs in the other Suit No 50 of 1945
Respondents Nos 1 3 were the plaintiffs in the former suit and defendants in the latter
The other respondents were defendants in the latter suit and were added as plaintiffs at the appellate stage under 0 1 r 10 Code of Civil Procedure in the appeal taken against the decision in the former suit
Both the suits were decreed against the appellant and respondent Manilal Bacharlal Sangvi who took two appeals to the High Court at Patna
Both these appeals were dismissed by one judgment dated September 27 1951 but two decrees were drawn up
Against this judgment and these decrees the appellant has brought two appeals to this Court which were consolidated and will be disposed of by this judgment
The facts necessary for the decision of these two appeals are that on November 26 1894 Gang Narayan Singh a zamindar and proprietor of pargana Katras granted to Ram Dayal Mazumdar a lease of the coal and coal mining rights in two plots of land one in mouza Katras and the other in mouza Bhupatdih
On November 6 1894 he granted a similar lease in plots 1404 contiguous to the plots in the lease mentioned above to Bhudar Nath Roy
In Suit No 32 of 1896 boundaries between these two sets of plots were fixed and this was shown in a map which was incorporated in the decree passed in that suit
On the death of Ram Dayal his sons Prafulla Kumud Sarat Sirish and Girish inherited the leasehold rights which they on October 19 1918 granted by means of a registered patta and kabulliat to Lalit Mohan Bose for a term of 999 years
One Bennett who along with one Bellwood had obtained a coal mining lease from Raja Sakti Narayan Singh of Katrasgarh on September 5 1917 trespassed on the northern portion of the land within the area leased to Lalit Mohan Bose and sank two inclines and two airshafts and dug out coal from this area
This gave rise to a dispute between the parties which was amicably settled and the area trespassed was returned to the possession of Lalit Mohan Bose
This fact was denied by the appellant and Manilal Becharlal Sengvi respondent in their written statement and in their plaint
Lalit Mohan Bose died in 1933 leaving a will of which the executors were his widow Radha Rani and his brother Nagendra Nath Bose
They leased out 17 bighas of land in possession of Lalit Mohan Bose to Keshabji Lalji in 1933
The remaining portion of the area leased to Lalit Mohan Bose was given on lease on March 15 1938 to Brojendra Nath Ghose and Vishwa Nath Prasad respondents and to Ram Chand Dubey but the possession thereof had been given to them in July 1937 and they the above two respondents and Ram Chandra Dubey carried on colliery business in the name and style of West Katras Colliery
On the death of Ram Chandra Dubey his estate was inherited by his sons and widow who on June 25 1944 sold their right title and interest to Nagendra Nath Bose
These three ie Brojendra Nath Ghose Vishwa Nath Prasad and Nagendra Nath Bose were the plaintiffs in Suit No 16 of 1945
As stated above Raja Sakti Narayan Singh leased an area of 256 bighas to Bennett and Bellwood on September 5 1917 and they assigned their rights to 1405 the New Katras Coal Company Limited
This Company worked the coal mine for some time but went into liquidation and in Execution Case No 293 of 1922 the right title and interest of the company were sold and purchased by Nanji Khengarji father in law
of Shrimati Kashi Bai appellant and by one Lira Raja
In August 1923 Nanji Khengarji and Lira Raja effected a partition the western portion of the leased coal field fell to the share of Nanji Khengarji and the eastern portion to Lira Raja
The former carried on the business in the name and style of Khengarji Trikoo  Co and the Colliery came to be known as Katras New Colliery
On the death of Nanji Khengarji in 1928 his son Ratilal Nanji inherited the estate and on his death in September 1933 the estate passed to the appellant reemati KashiBaiwidow of Ratilal
In December 1944 she Sreemati Kashi Bai entered into a partnership with Manilal Becharlal Sengvi respondent
On March 24 1945 Brojendra Natb
Ghose Vishwa Nath Prasad and Nagendra Nath Bose respondents Nos
1 3 as plaintiffs Nos
1 3 brought a suit Suit No 16 of 1945 against Sreemati Kashi Bai defendant No 1 now appellant and against Manilal Becharlal Sengvi defendant No 2 now respondent No 10 for fixation of the intermediate boundary and for possession of the area trespassed upon by the defendants and for compensation for coal illegally removed by the latter and also for an injunction
They alleged that the defendants had wrongfully taken possession of the area in dispute shown in the map attached to the plaint and had illegally removed coal from their mine
The defendants in their written statement of June 29 1945 denied the allegations made by the plaintiffs
They pleaded that the area in dispute was acquired by Nanji Khengarji and Lira Raja and had been worked by them and they had been in sole exclusive uninterrupted and undisturbed possession of the area openly to the knowledge of the plaintiffs in that suit and had therefore acquired title by adverse possession
The claim of ownership which they had set up as a result 1406 of acquisition from Bennett and Bellwood was negatived by the courts below and is no longer in dispute before us the sole point that survives being one of adverse possession
The cross suit No 50 of 1945 was brought by the defendants in Suit No 16 of 1945 ie Shrimati Kashi Bai appellant and Manilal Becharlal Sengvi respondent against the three plaintiffs of suit No 16 of 1945 respondents Nos
I to 3 and against heirs of Lalit Mohan Bose and against Purnendu Narayan Singh son of the original grantor Raja Sakti Narayan Singh
The allegations by the plaintiff in this suit  No 50 of 1945 were the same as their pleas as defendants in Suit No 16 of 1945
The two suits were tried together with common issues
The learned Subordinate Judge decreed Suit No 16 of 1945 and dismissed Suit No 50 of 1945 which were thus both decided in favour of respondents Nos
I to 3
He held that the land in suit was included in the area leased to respondents Nos
I to 3 ie Brojendra Nath Vishwa Nath Prasad and Nagendra Nath Bose and therefore the area in which two inclines of seam No 9 were situate formed part of the area leased to them and that encroachment by the appellant and Manilal Becharlal Sengvi respondent on the land in dispute was proved
As to adverse possession he held that the two inclines and airshafts had been sunk in 1917 by Bennett in seam No 9 that there had been no continuous working of the seam by Khengarji Trikoo  Co except from the year 1923 to 1926 and from 1931 to 1933 working was again begun in 1939 but how long it was continued had not been proved and that the working of this seam had restarted in 1944
He also found that the disputed area was confined to seam No 9
From these facts he was of the opinion that there was no dispossession of the respondents Nos 1 to 3 and no adverse possession had been established as against them
He further held that the working of a part of seam No 9 would not give to the trespasser the right to the entire seam even if continuous possession was proved
In regard to compensation the learned Subordinate Judge held that 1407 respondents Nos
I to 3 were entitled to it as from December 1944 and the amount would be determined by the appointment of a Commissioner in a subsequent proceeding
The High Court on appeal confirmed the findings of the trial Court and held that the land in dispute was part of the land leased to respondents Nos
I to 3 that the appellant and Manilal Becharlal Sangvi respondent had encroached upon the land in dispute that the working of the seam had not been continuous and it had only been worked for the periods mentioned above
The High Court also held that even if there was continuous possession and working of the mine no title by adverse possession could be acquired to the whole of the mine
In the High Court the validity of the lease in favour of the respondents Nos
I to 3 was raised because of section 107 of the Transfer of Property Act but as the question had not been raised or agitated in the trial Court the High Court allowed defendants 4 to 10 of Suit No 50 of 1945 to be added in the appeal arising out of Suit No 16 of 1945  for complete adjudication of the issues and to avoid multiplicity of proceedings 
This question is also no longer in dispute before us
The appellant has brought two appeals against the judgment and two decrees of the High Court of Patna
As the question of ownership of the land in dispute has been decided in favour of the respondents by both the courts below that question has not been raised before us and the controversy between the parties is confined solely to the question of adverse possession
On behalf of the appellant the learned AttorneyGeneral submitted that the carrying on of the mining operations in the area in dispute even though intermittent as found by the courts below could only lead to one inference that the possession of the area as well as of the mine was of the appellant and as she had prescribed for the requisite period of 12 years her possession had matured into ownership by adverse possession
In our opinion the operations carried on by the appellant were inconsistent with the continuous open and hostile possession or with the assertion of 1408 hostile title for the prescribed period of 12 years necessary to constitute adverse possession
It was contended that for the purpose of adverse possession in regard to a coal mine it was not necessary that it should have been worked for 12 years continuously and it was sufficient if the appellant had carried on mining operations for a period of 12 years even with long stoppages as in the instant case
But we are unable to accept this contention
Even though it may not be necessary for the purpose of establishing adverse possession over a coal mining area to carry on mining operation continuously for a period of 12 years continuous possession of the mining area and the mine would be a necessary ingredient to establish adverse possession
What has been proved by the appellant is that the two inclines opened by Bennett were worked in 1917 or 1918 by the predecessor in interest of the appellant there were no mining operations till 1923 when they were restarted and were continued till 1926
The operations ceased in 1926 and were recommenced in 1931 and carried on till 1933 when they ceased again till 1939 and whether they were carried on in 1939 or not is not quite clear but there were no operations from 1939 to 1944 when they were recommenced by the appellant During the period when there were no mining operations no kind of possession of the appellant has been proved and thus the presumption of law is not rebutted that during the period when the operations had ceased to be carried on the possession would revert to the true owner
Nageshuar Bux Roy vs Bengal Coal Co 1 which was relied upon by the learned Attorney General does not support his contention
In that case the company claiming adverse possession had placed facts which were consistent with the assertion of rights to minerals in the whole village to which the company claimed adverse possession
They openly sank pits at three different places two of them being 12 mile distant from the 3rd
The company selected the places where they were to dig up the pits at their own discretion 1 1930 LR 58 IA 29 1409 brought their plant or machinery on the ground and erected bungalows for their employees
There was no concealment on the part of the company and they behaved openly as persons in possession of not one pit but all mineral fields underlying the whole village and they throughout claimed to be entitled to sink pits anywhere in the village they chose
The company was under a bona fide belief that under their lease they were entitled to work the minerals anywhere in the area
In these circumstances the Privy Council held the suit to be barred by article 144 of the Limitation Act as the company had been in adverse possession of the minerals under the whole village for more than 12 years
It was pointed out by Lord Macmillan at p 35 possession is a question of fact and the extent of possession may be an inference of fact 
And at p 37 it was observed  Their Lordships are not at all disposed to negative or to weaken the principle that as a general rule where title is founded on an adverse possession the title will be limited to that area of which actual possession has been enjoyed
But the application of this general rule must depend upon the facts of the particular case
 The finding in favour of adverse possession in that case must be confined to the facts of that particular case
Another case relied upon by the learned AttorneyGeneral was Secretary of State for India vs Debendra Lal Khan1
There a zamindar claimed title to a fishery in a navigable river by adverse possession against the Crown
It was held that possession may be adequate in continuity so as to be adverse even though the proved acts of possession do not cover every moment of the period
That was a case dealing with fisheries
It is true that to establish adverse possession nature of possession may vary
In the instant case no such possession has been proved which taking into consideration the nature of possession and the nature of the object possessed would lead to the only inference that the appellant had perfected her 1 1933 LR 61 IA 78
1410 title by adverse possession
Intermittent working of the mine in the manner and for the period described above is wholly insufficient to establish possession which would constitute adverse possession or would lead to an inference of adverse possession and we are in agreement with the view expressed by the High Court and would therefore dismiss these appeals with costs
One set of costs between the two appeals except as to Court fees
Appeals dismissed


Summary:
At an election held on 23rd February 1986 for the post of Panchayat President the votes were counted on the 25th February 1986 and the first respondent was declared elected having secured 649 votes
The petitioner and the second respondent who were the other contestants were declared to have secured only 556 votes and X votes respectively and 55 votes were declared to be invalid votes
Two days after the results were declared ie on 27th February
1986 the petitioner sent telegrams and registered notices alleging irregularities in the counting of the votes and thereafter he filed an election petition under section 178 of the Tamil Nadu Panchayat Act 1958
The reliefs claimed in the petition were that the Election Tribunal should set aside the election of the first respondent as the President of the Panchayat order recounting of votes and a declaration that the petitioner has been duly elected
The first respondent opposed the election petition and filed a counter statement denying all the allegations contained in the election petition
The Tribunal after recording the evidence of the candidates and the Assistant Returning Officer came to the conclusion that the petitioner was entitled to ask for re count of votes and ordered recounting and called for the ballot papers
In the recount of votes it was found that there was no difference in the number of votes secured by the petitioner namely 556 votes but in so far as the first respondent was concerned he had secured only 528 votes as against the 649 votes he was originally held to have secured
The excess of 121 votes were found to be invalid votes and consequently the total number of invalid votes came to 126 sic as against 55 votes originally held to be invalid
There was no difference in the number of 8 votes secured by the third contestant
Based on these figures of the recounting the Tribunal declined to order re election and instead declared the petitioner to have been duly PG NO 950 PG NO 951 elected because the recount clearly proved that the petitioner has secured 28 votes more than the first respondent
Aggrieved by the aforesaid order of the Election Tribunal the first respondent filed a Civil Revision Petition in the High Court
A Single Judge allowed the revision petition holding that the Tribunal had erred in ordering a recount of the votes when the petitioner had not made out a prima facie case for an order of recount and observed that the secrecy of the ballot was sacrosanct and should not be violated unless a prima facie case of a complusive nature had been made out by the defeated candidates
The High Court set aside the order of the Tribunal and restored the election result in favour of the first respondent
Dismissing the Special Leave Petition HELD 1
The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice a Tribunal or Court should not order the recount of votes
957D E 2
The salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot he lightly or hastily broken unless there is prima facie genuine need for it
957D 3
The justification for an order for examination of ballot papers and recount of votes is not to be derived from high sight and by the result of the recount of votes
On the contrary the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made
957C D 4
An order or recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes
958C In the instant case the petitioner has neither made such averments in the petition nor adduced evidence of such a compulsive nature as could have made the Tribunal reach a PG NO 952 prima facie satisfaction that there was adequate justification for the secrecy of ballot being breached
957F Ram Sewak Yadav vs Russain Kamil Kidwai  Ors
  Dr Jagjit Singh vs Giani Kartar Singh 19671 SCJ 762 R Narayanan vs Sommalai  and N Gopal Reddy vs Bonala Krishnamurthy  Ors JT  referred to