evolawyer/inlegalbert-sc-ner-silver huggingface dataset:
A. ARUMUGAM CHETTIYAR v.

SMT. LOKANAYAKAMMA AND ANR.

FEBRUARY 13, 1996

[KULDIP SINGH AND S. SAGHIR AHMAD, JJ.)

Transfer of Property Act, 1882:

M01tgage-Jmplied sunender of light in the house as a tenant-Tenns C of moTtgage deed conclusive on swTender of tenant's rights-ConcwTent

findings of fact-Not inteifered with.

Shah Mathuradas Maganlal & Co. v. Nagappa Shankarappa Malaga & Ors, AIR (1976) 1565; Gambangi Appalaswamy Naidu & Ors. v. Bhra Venkataramanayya Patra, AIR (1984) SC 1728); Nand Lal & Ors. v. Sukh D Dev &Am:, [1987] Supp. SCC 87 andNemichand v. Onkar Lal, AIR (1991)

SC 2046, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 146 of 1995.

E From the Judgment and Order dated 14.2.94 of the Karnataka High

Court RF.A. No. 20 of 1988.

P .P. Singh for the Appellant.

P.R. Ramasesh for the Respondents.

The following order of the Court was delivered :

The appellant was put in possession of the house in dispute as a tenant in the year 1971. The landlord mortgaged the house with the tenant G by a .deed dated April 28, 1977. The question before the High Court was whether the mortgage - deed resulted in an implied surrender of the appellant's right in the house as a tenant. The trial Court and the High Court have concurrently found that the terms of the motgage, deed conclusively show that there was implied surrender of the tenant's rights. On the said findings the Courts below have directed the eviction of the H appellant.

A.A CHETTIYAR v. LOKANAYAKAMMA 611

It is not necessary for us to go into the question in detail as the A principles have been authoritatively settled by this Court in Shah Matlmradas Magan/al & Co. v. Nagappa Shankarappa Malaga & Ors., AIR

(1976) 1565, Gambangi Appalaswamy Naidu & Ors. v.

Bhra Venkataramanayya Patra, AIR (1984) SC 1728, Nand Lal & Ors. v. Sukh Dev & Anr., [1987] Supp. SCC 87 and in NemiChand v. Onkar Lal, AIR

(1991) SC 2046. The High Court on the basis of the law laid down by this B Court in the above mentioned judgments has come to the conclusion that the deed of mortgage in the present case indicates that there was surrender

of tenancy and the appellant was only (l mortgagee. We do not see any ground to interfere with the concurrent findings reached by the Courts below.

C ·

The Appeal is dismissed. No. costs.

G.N.

Appeal dismissed.
MUKHTIAR AHMED A v.

SMT. HUSAN BANO AND ORS.

FEBRUARY 14, 1996

(K. RAMASWAMY AND G.B. PATTANAIK, JJ.] B

Code of Civil procedure, 1908

Section 11-Res Judicata-Suit filed by co-sharer-Finding recorded that he was entitled to 1/5th share in the prope1ty and not 2/Jrd share-Sub- C sequent suit for declaration that he was entitled to 2/Jrd share-Finding in earlier suit operates as res judicata-Hence subsequent suit 1ightly dismissed by the High Court.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1812 of D 1978.

From the Judgment and Order dated 18.5.78 of the Allahabad High Court in Second Appeal No. 1341 of 1968.

R.K. Mehta for the Appellants.

Aseem Mehrotra and P.K. Jain for the Respondents.

The following Order of the Court was delivered :

The appellant had laid the suit for declaration of 2/3rd share of the F house in his favour, on the premise that he was a co-owner. It is not in dispute that on a previous occasion in a suit filed by the co-sharer, a finding was recorded that he was not entitled for 2/3rd share but to l/5th share.

The said decree became final. In view. of the matter, it operates as res judicata as against the co-owners. He cannot claim any share in the suit for G 2/3rd share. The High Court, therefore, was right in dismissing the suit. We do not think there is any legality in the finding recorded by the High Court.

The appeal is accordingly dismissed. No costs.

G.N.

Appeal dismissed. H 637
PUITU LAL (DEAD) BY LRS.

STATE OF U.P. AND ANR.

FEBRUARY 14, 1996

[K. RAMASWAMY ANDS. SAGHIR AHMAD, JJ.]

Land Acquisition Act, 1894/U.P. Encumbered Estate Act, 1955 :

Sections 4, 6, 16-Compensation paid for the land acquired-Acquisi- C tion made under the provisions of the U.P. Encumbered Estates Act, and possession taken by Govemment-Right, title and interest held by the land owner stood extinguished-Vested in the State free from all encumbrances-State becomes absolute owner and could file suit for possession.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2478 of

D 1977.

From the Judgment and Order dated 15.7.76 of the Allahabad High Court in F.C.A. No. 31 of 1965.

Raj Kumar Mehta for the Appellants.

T.N. Singh and R.B. Misra for the Respondents.

The following Order of the Court was delivered :

. This appeal by special foave arises from the judgment and decree of F the High Court of Judicature at Allahabad dated July 15, 1976 made in Civil First Appeal No. 11/65. The State filed the suit for recovery of possession of property from the respondents pursuant to the orders passed under Section 145 of the Cr. P.C. The civil court dismissed the suit but on appeal the High Court allowed the same.

G The admitted facts are that . the land originally belonged to Smt.

Kokilla. Notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, the 'Act') was published on April 15, 1928 and declaration under Section 6 was published on July 28, 1928 acquiring the land known as Phulwari for public purpose, namely, for construction of the quarters for H the constables of Police outpost Misrana. That acquisition has become 638

A I .

PUTllJLALv. STATE 639

final. Now, the High Court has recorded a finding of fact that compensa- A tion was paid to Smt. Kokila and, therefore, the land stood vested in the State under Section 16 of the Act free from all encumbrances.

The contention raised by the appellant is that the proceedings were taken under the U.P. Encumbered Estates Act, 1955 and the property was declared to be encumbered estate. As a consequence, the title of the B appellant's predecessor was upheld. He being the purchaser at an auction is entitled to the possession by virtue of his title. We find no force in the contention. Having acquired the land under the provisions of the Act and the possession having been taken thereunder the right, title and interest held by Smt. Kokila stood extinguished and vested in the State free from C all encumbrances. Consequently, the State is the absolute owner. The State being the owner, is entitled to file the suit for possession. The High Court, therefore, has rightly found that the appellants at this distance of time cannot question the correctness of the acquisition made in 1928.

The appeal is accordingly dismissed. No costs.

G.N.

Appeal dismissed.
UNION OF INDIA v.

RAM SUA SHARMA

FEBRUARY 15, 1996

[K. RAMASWAMY AND G.B. PATIANAIK, JJ.)

Service Law:

Date of Birth as entered in service recordS-:-Co1Tection of-Claim made C after 25 year~T1ibunal accepting the same and directing the Government to consider the con-ection-Held: The direc1ion is per se illegal.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3626 of 1996.

D From the Judgment and Order dated 23.12.94 of the Central Adll}inistrative Tribunal, Jabalpur, in O.A. No. 270 of 1994.

Ms. Niranjana Singh and Ms. Anil Katiyar for the Appellants.

T.G.N. Nair for the Respondents.

The following Order of the Court was delivered :

Leave granted.

The controversy raised in this appeal is no longer res integra. In a series of judgments, this Court has held that a court or tribunal at the F belated stage cannot entertain a claim for the correction of the date of birth duly entered in the service records. Admittedly, the respondent had joined the service on December 16, 1962. After 25 years he woke up and claimed that his correct date of birth is January 2, 1939 and not December 16, 1934.

That claim was accepted by the Tribunal and it directed the Government G to consider the correction. The direction is per se illegal.

The appeal is accordingly allowed. No costs.

G.N.

Appeal allowed.
J.L. JAIN A v.

UNION OF INDIA AND ORS.

FEBRUARY 15, 1996

[K. RAMASWAMY AND G.B. PAITANAIK, JJ.] B

SeTVice Law:

DepaJtmental Inquiry-Re-opening of-One time opportunity to be given to the employee-If the employee fails to participate in the enquiry and to conduct his case, he would foifeit his defence-Inquiry Officer to make C available all witnesses to be examined in proof of the charge-open to the employee to crossexamine them-{)pportunity for defence evidence to be given-Thereafter inquiry officer would be free to proceed according to mies and take appropriate action.

D CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3636 of 1996.

From the Judgment and Order dated 26.10.94 of the Central Administrative Tribunal, New Delhi in O.A. No. 1508 of 1992.

Anis Suhrawardy, Ms. Shomana Anis and Z.A. Khan for the appellant.

A.D.N. Rao and Arvind Kr. Sharma for the Respondents.

The following order pf the Court was delivered :

Leave granted.

We have heard the counsel on both sides.

The notice issued in this case itself indicates why the inquiry should G not be reopened; the inquiry officer should not give another opportunity to the appellant to participate in the inquiry. It was also stated that if the respondent is agreeable to reopen the matter, it would be confined to only one time opportunity to appellant and unless the appellant participates in the inquiry and conducts his case, he would forfeit his defence. In view of the notice and in view of the statement of the respondents in the counter- H 733

SUPREME COURT REPORTS

[1996] 2 S.C.R.

A affidavit that they are agreeable to give an opportunity, the impugned order is set aside and opportunity is directed to be given to the appellant to participate in the inquiry. The inquiry officer is directed fo issue notice to the appellant by registered post with acknowledgment due giving 30 days' time fixing a date on which date the appellant should appear and par- B ticipate in the inquiry. The inquiry officer is directed to make available all the witnesses sought to be examined in proof of the charge on that date and it would be open to the appellant to cross-examine those witnesses. If the appellant intends to adduce any defence evidence, inquiry officer is directed to give another date to the appellant to adduce the same on the adjourned day; the inquiry would be completed after examining those C witnesses. Thereafter, the inquiry officer would be free to proceed according to rules and take appropriate action.

The appeal is accordingly allowed. No costs.

G.N.

Appeal allowed.
UNION TERRITORY OF CHANDIGARH A v.

CHARANJIT KAUR

FEBRUARY 15, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] B

Constitution of India, 1950/Code of Oiminal Procedure, 1973:

A1t. 226/Sections 433, 482-Person convicted for charge of murder and sentenced to undergo implisonment for life-Application filed for premature C release-High Court directing release of the convict on the ground that State had not filed counter affidavit even after the case was adjourned on more than three occasions-Held : High Cowt had committed grave en-or of law in directing release of the convict on the lapse of the State in filing counteraffidavit.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 253 of 1996.

From the Judgment and order dated 1.6.95 of the Punjab & Haryana High Court in Crl. Misc. No. 5317/94 in Crl. Misc. No. 13555- B/93/in Crl. E Misc. No. 13022-M of 1991.

Ms. Kamini J aiswal for the Appellants.

Vishal Malik and M.S. Dhiya for the Respondent.

The following order of the Court was delivered : F

Leave granted.

This appeal by special leave arises from the order of the High Court of Punjab and Haryana made on January 1, 1995 in C.M. No. 6872/95. The admitted facts are that the respondent was convicted for an offence of G murder and sentenced to undergo imprisonment for life. Admittedly, she was convicted on June 2, 1984 for an offence committed on September 24,

1983. She has been in custody from September 19, 1983. An application has been filed in the High Court for her premature release. In the impugned order, the High Court has directed the release of the respondent H 735

SUPREME COURT REPORTS

[1996) 2 S.C.R.

A on the ground that the State had not filed the counter-affidavit, in spite of that fact that the case was adjourned on more than three occasions. The question is : whether the High Court has jurisdiction under Article 226 or under Section 482 of the Code of Criminal Procedure, 1973 (for short, the "Code") to release the prisoner.

B Section 433 of the Code empowers the Government, in an appropriate case, without the consent of the person sentenced, to commute the sentence and to prematurely release the convict. Clause (b) thereof provides for a sentence of imprisonment for life, for imprisonment for a term not exceeding 14 years or fine. Indisputably, she did not even com- C plete 14 years which is a minimum mandatory sentence required to be served under the Code. At best the Court, in an appropriate case, where the prisoner has served the mandatory minimum sentence, may only direct the appropriate Government to consider the commutation of the sentence and prematurely release a particular convict. They can do no further. The Government would consider such direction based upon the conduct of the D prisoner and other relevant circumstances and act upon it.

Thus conside1ed, we are of the view that the High Court had committed grave error of law in directing release of the convict on the lapse on the part of the appellant-State in filing the counter-affidavit.

E The appeal is accordingly allowed.

G.N.

Appeal allowed. -

.......
THE STATE OF PUNJAB

DARSHAN SINGH

FEBRUARY 15, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Service Law:

Misconduct-Removal from service-Bus conductor collected fares from passengers but had not issued tickets-In the order of removal previous punishments were indicated-Held : It does not mean that the previous punishments imposed on him were taken into account-Couns below wrongly proceeded on the assumption that the disciplinary authority took into consideration the previous conduct without any charge being framed in that behalf or that no opponunity was given in this behalf.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3776 of 1996.

From the Judgment and Order dated 14.1.93 of the Punjab & Haryana High Court in RS.A. No. 2541of1992.

Sanjay Bansal and G.K. Bansal for the Appellants.

The following Order of Court was delivered :

Leave granted.

On January 11, 1996, since the respondent had not appeared, the matter was heard ex-parte. However, the appellant was directed to produce copy of the order dismissing the respondent from service. That order has now been placed on record .• The respondent was removed from service by the proceedings of the General Manager of the appellant m May 26, 1989.

The respondent filed the Suit No. 450/97 questioning it for a declaration that the order of removal was illegal. The trial Court proceeded on the finding that the order of removal is based upon the previous conduct of the respondent which was not put in issue before he was removed from service. Therefore, the order is vitiated by error of law. That was upheld

by the appellate Court. The Second Appeal was dismissed summarily. Thus H 745

SUPREME COURT REPORTS

(1996] 2 S.C.R.

A this appeal is by special leave.

. The order of removal clearly indicates that the charge was framed on the basis that he committed misconduct in collecting fares from the passengers but had not issued the tickets to them. Evidence was adduced after giving reasonable opportunity and it was found that the defence of B the respondent was not proved. As a consequence, it was held in paragraph 5 that "in view of foregoing discussions, the charge of committing fraud to the tune of Rs. 7.50 ps. against Shri Darshan Singh, C. is established." In view of that finding, the respondent was removed from service.

While communicating the order, they have indicated the previous punish- C ments he had to his credit. That does not mean that they have taken into account those previous punishments imposed on him. The courts below, therefore, have wrongly proceeded on the assumption that the disciplinary authority had taken into consideration the previous conduct without any charge being framed in that behalf or that no opportunity was given to the

 respondent in this behalf.

The appeal is accordingly allowed. The suit stands dismissed. No costs.

G.N.

Appeal allowed.
J. JOSE DHANAPAUL A

S. THOMAS AND ORS.

FEBRUARY 16, 1996

[K. RAMASWAMY AND G.B. PATIANAIK JJ.) B

Se1vice Law:

Appointment-Annulled by the Tlibunal without that person being impleaded as a pmty-Order set aside as regards that person-Tribunal C committed grave e1ror of law-Practice and procedure.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3610 of 1996.

From the Judgment and order dated 15.6.93 of the Tamil Nadu D Administrative Tribunal, Madras in O.A. No. 2199 of 1992.

Dr. A.F. Julian and A. Mariarputham for the Appellant.

KR. Nagaraja for the Respondents.

The following Order of the Court was delivered :

Leave granted.

We have heard learned counsel on both sides.

It appears that the appointment of the first respondent was annulled by the proceedings dated December 1, 1995 in R.C. No. 727/93. Consequently, Shri Nagaraja, learned counsel for the first respondent states that

his client has lost interest in this matter since a fresh cause of action has arisen. He is not contesting the matter in this case since it would be open G to his client to take such action as is warranted under law.

It is not in dispute that the appellant was not a party to the impugned order dated June 15, 1993 made in O.A. No. 2199/92 by the Tamil Nadu Administrative Tribunal at Madras. Without being impleaded. as a party, appointment of Thomas was annulled by the impugned order. The H 757

SUPREME COURT REPORTS

[1996] 2 S.C.R.

A Tribunal, therefore, has committed grave error of law in upsetting his appointment when he was not made a party. The impugned order is set aside as regards the appellant.

The appeal is accordingly allowed. No costs.

B G.N.

Appeal allowed.
DR. GHANSHYAM JAISWAL A v.

KAMAL SINGH

FEBRUARY 16, 1996

[ K. RAMASWAMY AND G.B. PATTANAIK, JJ.) B

Code of Civil Procedure, 1908:

Sections 11, 47-Suit for ejection-Compromise entered into- Decree for eviction after recording compromise and evidenc~Possession not C delivered-Execution petition for possession-Objected to on the ground that the decree was vague and incapable of being executed-Held, pa1ty precluded by constmctive res judicata to raise plea regarding executability of the

decre~Libe1ty given to have the decree executed with the assistance of the Police.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3795 of 1996.

From the Judgment and Order dated 21.6.95 of the Madhya Pradesh High Court in C.R. No. 1252 of 1994.

AK. Chitale and Niraj Sharma for the Appellant.

The following Order of the Court was delivered :

Leave granted.

F Though the respondent has been served by dasti, he is not appearing either in person or through counsel. The facts are eloquent. In a suit for ejectment filed on April 5, 1984, the respondent had entered into a compromise on foot of which the decree for eviction was granted after recording the compromise and evidence. The respondent did not deliver the possession of the demised property in terms of the compromise decree. G Therefore, the appellant was constrained to lay execution for possession of the property. In the first round of litigation, the respondent had challenged under section 47 of the C.P.C. impugning the validity of the compromise decree which was turned down by the executing Court. The High Court dismissed W.P. No. 2849of1994 by order dated August 19, 1994. Against H 759

SUPREME COURT REPORTS

[1996] 2 S.C.R.

A the respondent laid another objection under Section 47 contending that the decree is vague and incapable of being executed. That was turned down by the executing Court on September 30, 1994. Against that, the respondent filed a revision in the High Court. The High Court in the impugned order allowed the revision by order dated June 21, 1995 in C.R. No. 1252/94 since

B the counsel for the appellant had reported no instructions.

The only question is : whether the respondent is entitled to raise the plea of vagueness? Having entered into the compromise and suffered a decree on foot of compromise and also having raised the plea of non-executability of the compromise decree and having become unsuccessful, he C is precluded by constructive res judicata, of might and ought in Explanation VI to Section 11, to raise any other plea of the executability of the decree. The High Court, therefore, was clearly in error in allowing the revision and setting aside the Execution application.

The appeal is accordingly allowed. The order of the High Court is D set aside. The appellant is at liberty to have the decree executed with the assistance of the police. No costs.

G.N.

Appeal allowed.
STATE OF RATASTHAN A v.

SEVA RAM AND ORS.

FEBRUARY 2, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] B

Constitution of India, 1950:

Art. 136-Grant of special leave-Matters covered by an earlier decision, remitting the matter to High Court-Accordingly in tlze present C matter also, order of High Cowt set aside and matter remitted to High Cowt for disposal along with pending appeals-If these appeals are already disposed of, the ratio therein would govern the present case.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3427 of D 1996.

From the Judgment and Order dated 12.1.94 of the Rajasthan High Court in D.B.C.S.A No. 568 of 1992.

Aruneshwar Gupta for the Appellants.

AP. Medh, Pallav Shishodia for the Respondents.

The following Order of the Court was delivered :

Mr. Medh, Advocate appears for respondent No. 1. Respondent F Nos. 2 and 3, though served, are not appearing either in person or through counsel.

Leave granted.

The controversy raised is covered by the order of this Court in C.A. G 3204/95 and batch dated 28.2.1995 wherein delay was condoned and matters were remitted to the High Court for disposal along with the pending appeals for decision on merits. Accordingly, we set aside the order of the High Court and remit this matter to the High Court for disposal along with the pending appeals, if not already disposed of. 81 H

SUPREME COURT REPORTS

 (1996) 2 S.C.R.

. . \ . . .

If they are disposed of, the ratio therein may gover~ the controversy in thi• appeal .

. Appeal i• di•posed of in above terms. No costs.

G.N.

Appeal disposed of.

. ' .