the only brother, would ask him to pay the income from the land. Even assuming that he spared some income not only from the suit lands, but the other properties of the family to a sister that cannot partake the conuct of a person in sparing the income from the lands towards the right of the other person. The circumstance that plaintiff No. 1 and his brother P.W2 were managing their lands at Karamchedu village and not cultivating or arranging for cultivation of the suit lands for a long time or perhaps at no time, is inconsistent with any gift of the lands to Rajamma. It is nobody's case that Rajamma had at any time evinced any interest in the management or cultivation of the suit lands. Therefore, if at all they were managed on her behalf, that must be by the first plaintiff either directly or through his brother P.W.2. Regarding the management of the lands also, the evidence of the plaintiffs is not consistent or probable. In the plaint, the plaintiffs came out with a theory that the property that was gifted to Rajamma was managed by defendant No. 1 subsequent to 1953 as she along with plaintiff No. 1 went to Madras and settled down there. But in the evidence plaintiff No. 1 came out with a different theory. According to him, his father cultivated the suit lands personally till 1941 and leased out them for some time and that he managed them up to 1953 and thereafter defendant No. 1 managed them. The conflict between the plea and proof cannot be accepted in law. Even then, he was not able to prove such a changed version. Admittedly, both plaintiff No. 1 and P.W.2 have got their lands at Karamchedu village and they personally cultivated them for some years and leased out them for some years and, as rightly pointed out by the learned Sub Judge, it is highly improbable that they would have allowed the suit lands to be looked


Yarlagadda Venkakka Choudary ... vs Daggubati Lakshminarayana ... on 31 March, 1995

the learned Sub Judge, it is highly improbable that they would have allowed the suit lands to be looked after by defendant No. 1 subsequent to 1953. Admittedly, P.W.2 remained in the Village although plaintiff No. 1 and his wife went to Madras and there was no difficulty to manage the lands by P.W.2. Plaintiff No. 1 and P.W.2 were not able to give the correct boundaries of the suit lands when tested in cross-examination. Their demeanour and expressions are rightly noted by the learned Sub Judge; as well versed persons in litigation and experienced they would not have failed to get the lands mutated in the name of Rajamma or paid the cyst if they had actually cultivated the lands of behalf of Rajamma. Thereby it is rightly concluded by the learned Sub Judge that plaintiff No. 1 or his brother could not have managed the suit lands till the year 1953 either by themselves or through their father till he died or get them cultivated. On the other hand it is found from the testimony of defendant No. 2 as D.W.I and D.Ws. 5 to 10 (which includes some of the defendants) and also the lease deeds - Exs.B-7, B8, B-26, to B-33 - most of the mare in the hand-writing of P.W.I himself- show that the suit lands were being cultivated through some of the defendants by defendant No. 1 and with the assistance of plaintiff No. 1 The testimony of the witnesses stated above, corroborates the testimony of defendant No. 2 in regard to the cultivation of the suit lands with the management of defendant No. 1. so, the whole theory of the plaintiffs about the management of the suit lands in various ways stated above appears to be improbable and not true.


20. Regarding the gift towards Pasupukunkuma to Rajamma by her father, the testimony of defendant No. 2 as D.W.I has no worth as he was not even contemplated in the destiny of earth who his father defendant No. 1 himself was 3 or 4 years and at the time of marriage of his sister Rajamma. There is the evidence of D.W.2 an old lady aged 76 years and also the mother-in-law of defendant No. 1 and a close relative of plaintiff No. 1 (said to be the grand son of the grand mother's younger sister of the witness has testified that she attended the marriage of Rajamma and he (Chowdaramma) did not give any land to her at the time of the marriage as Pasupukunkuma nor handed over any land to her. She has also testified that defendant No. 1 did not make any arrangement to give the land to Rajamma and the suit lands were never given to her by her father or defendant No. 1. She has also denied possession of either Rajamma or plaintiffs over the suit lands. She was also made to speak about the absence of any practice or custom in the family to give lands to daughters towards Pasupukumkuma at the time of marriage. She appears to be the daughter of a person owning Ac. 2,000.00 of land and 4 Agraharams and did not get anything for herself towards Pasupukumkuma nor she gave any lands to her three daughters at the time of their marriages. She has given some other instances of the marriages of Kamma families wherein no such practice was found. It was contended by Mr. Meharchand Noori, the learned Advocate for the plaintiffs that this witness is dose to the defendants that the plaintiff although she is a relative of both of them and her testimony cannot be relied upon in proof of such a theory. If her testimony


both of them and her testimony cannot be relied upon in proof of such a theory. If her testimony were to be judged by itself, the interestedness would have reduced the worth of her evidence, but in the light of the plaintiffs' own evidence as above with lot of improbabilities, the testimony of D.W.2 is sufficient to believe to the contra. As a whole, the learned Sub Judge with all application of mind and assessment of evidence before him with cogent and convincing reasons, has rightly come to the conclusion that the evidence of the plaintiffs is lacking to prove the gift of the suit lands to Rajamma towards Pasupukumkuma.


21. The trump card and the sheet anchor of the case of the plaintiffs appear to be Ex. A3 purporting to be a registered document dated 12-4-57 between Rajamma and defendant No. 1 regarding the event of gifting of suit lands towards Pasupukunkuma by her father and acknowledge by defendant No. 1 onl2-4-1957 along with his sons viz.,defendants2and3. Actually it is a certified copy of the original registered document titled as a gift deed and which was allowed as a secondary evidence on the ground that the original is lost, as per the testimony of plaintiff No. 1. It is in Telugu language and a translation of the same into English language has been got done through Mr. Sadasiva Reddy, a learned Advocate of this Court on 15-9-1994. It reads as follows:
 "Deed of conveyance for immovable property of the value of Rs. 20,000.00.
 This deed of conveyance of immovable property is executed on the 12th April, 1957 A.D. in favour of Rajamma, wife of Yarlagadda Venkanna Chowdary, Kamma, cultivation etc., resident of Karamchedu village in Chirala Subdivision, Guntur District by (1) Daggubati Chowdaramma's son Lakshminarayana and his undivided minor sons, (2) Chowdaramma and (3) Chennakesava Rao represented by their father the said Lakshminarayana, residents of the same village.


You happen to be the elder sister of Lakshminarayana who is one among us. Be it at the time of your marriage or thereafter, be it under the arrangement made by late Sri Chowdaramma who is your father as well as the father of Lakshminarayana amongst us or under the arrangement made by Lakshminarayana among us, out of love and affection for you we have already given to you the immovable property belonging to us which is shown in the schedule below towards your Pasupu Kumkuma. Since you wanted to have an appropriate deed, now this deed in executed in your favour. As the possession of the schedule property was given to you even before, you should pay the Government taxes for the said property and you and your successors should enjoy the property according to your will with absolute rights to gift and sell etc. This deed of conveyance is executed with our consent."


Both the sides have conceded the correctness of the translation. In fact Mr.Sadasiva Reddy, the Advocate did the Commission work by way of professional and expert service without any remuneration which deserves appreciation and compliments. The learned Advocate for the defendants made a very serious effort both in the trial court and in this court to demolish Ex.A-3 as a document not proved in accordance with law to remain as part of evidence, for appreciation or for acceptance. As a document intending to convey immovable property worth Rs. 20,000/- with the titled as a Gift deed, it required by law to be a registered instrument signed by or on behalf of the donor and attested by at least two witnesses by virtue of Section 123 of the T.P. Act. Whether or not the property passed under the document, it is covered by such a provision and therefore, the document is also covered by Section 68 of the Evidence Act whereby it could not be used as evidence until one attesting witness has been called for the purpose of proving its execution. But the proviso exempts such a proof by examining one of he attestors where unless its execution by the person by whom it purports to have been executed has specifically denied the execution. In this case in the written statement, defendant No. 1 specifically admitted the execution of the gift deed, When Ex.A-3 was presented for marking, it was not objected to on the ground that the attestor is not examined. In fact, its execution has been proved by defendants themselves by exmining one of the attestors D.W.8 who has testified in specific terms that defendant No. 1 executed the original of Ex.A-3 in favour of Rajamma in the year 1957. The view of the learned Sub Judge that there is no specific denial of the execution by defendants 4 and 5 appears to be correct. Although defendants 2 to 5 have filed two sets of written statements they have


to be correct. Although defendants 2 to 5 have filed two sets of written statements they have practically adopted the written statements of defendant No. 1. Defendant No. 2 did not specifically denied the execution of Ex.A-3 when he was in the witness box. Defendants 1 to 3 are parties to the document and therefore, the learned Sub Judge considered whether Ex.A-3 may be taken as proved as against defendants 4 and 5. The other defendants like defendants 4 and 5 have only denied the genuineness of Ex. A-3, but not the execution. Moreover the alienees are claiming the suit lands only through defendant No. 1. An attempt was made to read into the proviso to Section 68 of the Evidence Act that even where the execution is denied by the persons who are not parties to the document, the provision warrants the examination of one of the attesting witnesses to prove it. A careful reading into the provision cannot admit such an interpretation that even where a person who is not a party to the document denies the execution of the document required by law to be attested, Section 68 mandates the examination of one of the attesting witnesses for the purpose of proof. Such a view appears to be beyond the expressions in the proviso to Section 68 of the Evidence Act which in unambiguous terms clearly expect the examination of the attesting witnesses where the execution of the document is denied by the person by whom it purports to have been executed, (specifically denies it). It was also sought to be argued that execution of Ex. A-3 in the strict sense of the term, is not established except for a purpose. This Court is not able to make any such distinction in the nature of clear stand taken by the defendants in the written statements. Although Ex. A-3 is styled as a gift deed and has specifically mentioned in the plaint, it was not intended to be the true transaction under which the


and has specifically mentioned in the plaint, it was not intended to be the true transaction under which the gift was given to Rajamma, but it was executed by defendants 1 to 3 after a gap of 32 years either to evidence a past gift or to acknowledge such a gift as Rajamma insisted for such a document from defendant No. 1. Admittedly, no such gift was given, nor could be given by defendant No. 1 nor by defendants 2 and 3 who were not in existence at the relevant time to treat Ex.A3 as an acknowledgment of such a gift. In fact if we can properly understand the case of the plaintiffs, there was a gift towardas Pauspukumkuma by Chowdramma at the time of the marriage of Rajamma in the year 1925, but the document Ex.A-3 came into existence in the year 1957 as desired by her. Neither the pleadings, nor the evidence purported to contemplate any gift by defendants 1 to 3 in favour of Rajamma under Ex.A-3 as a first measure to transfer the suit lands in her name. Mr. Merchand Noori, the leraned Advocate for the plaintiffs appears to be totally not correct or justified in thinking that Ex.A-3 could be the gift deed upon which the plaintiffs could base the suit. It that time of argument is accepted, Ex.A-3 itself puts the plaintiffs out of Court. Plaintiff No. 1 himself did not testify that this wife got the gift under Ex.A-3. His clever way of answering questions in the cross-examination also did not make his basis of title on Ex.A-3. His following expressions reject the contention of the learned Advocate as above:


"....... About a month or two prior to the execution of Ex.A-3, D1 came to me and my wife and represented that his wife and his brother-in-law are demanding him to effect a partition of the family property to safeguard the interests of his minor sons as he is indulging in Manures and Film business. My wife advised him to effect partition and also to make suitable arrangements for his unmarried daughters, In that connection my wife requested him to execute gift deed in respect of the land already presented to her earlier so that disputes may not arise in future with his sons etc. Accordingly D-l executed the original of Ex.A-3."


In conclusion it was stated that Ex. A3 is a collateral document to evidence the alleged gift to Rajamma by way of Pasupukumkuma and may be an admission by defendants 1 to 3 if that gift is true and at any rate can never be an acknowledgement of a gift, since it was never made by any of them. Patently, Ex. A-3 is a unilateral document. Rajamma is not a party to the document. P.W.I has admitted that neither he nor Rajamma was present at the time of original of Ex.A-3. It is not their case that atleast they were present in the village Karam(sic)du when the original of Ex.A-3 came into existence. Admittedly, defendants 2 and 3 were minors at the relevant time. Therefore, the whole question is whether defendant No. 1 himself would have taken so much of interest to execute such a document in favour of his sister who was at Madras at the relevant time along with his minor sons only to create a circumstance against him and his children in regard to the joint family properties and get it registered by himself. At no stretch of imagin(sic) Ex. A3 can be taken to bind defendants 2 and 3 who were the members of the joint family and the coparceners to make an admission against themselves in regard to a gift said to have come into existence 32 years prior to the date of the document. Even the contents of the document are not consistent with the case of the plaintiff much less the realities. It is stated as if there was an agreement made by late Chowdramma both at the time of marriage or thereafter to give the immovable propery to Rajamma towards Pasupukumkuma including the arrangement made by defendant No. 1 to give the same to Rajamma for that purpose out of love and affection and that had already been given to her as detailed in the schedule.


purpose out of love and affection and that had already been given to her as detailed in the schedule. Mr, Harinath, the learned counsel for the defendants is totally right in saying that no such theory is found in the plaint. Defendant No. 1 was never in the picture at the time of the marriage or the alleged gift by late Chowdramma. Therefore, on facts themselves, Ex. A3 failed to support the case of the plaintiffs. There is not even a recital therein that the possession of the suit lands was delivered to Rajamma either at the time of her marriage or at any time subsequent thereto or that she was in possession of them by the time the document was executed on 12-4-57. There is only a vague expression that they were already given to her towards pasupukumkuma. There is a further expression that since the possession was already given to her even before she should pay the taxes for the lands to the Government. There is not even a whisper either in the plaint or in the testimony of plaintiff No. 1 and P.W2 that possession was handed over to Rajamma or that she had paid the tax to the suit lands at any time nor they have paid it on her behalf. The documentary evidence is also nil regarding the payment of such taxes. The testimony of plaintiff No. 1 does not mean that Rajamma herself evinced any interest to get a document from defendent No. 1 to support the gift and on the other hand, it is made to appeares if defendant No. 1 himself approached her pleading certain difficulties when she advised him to effect partition in the family by making suitable arrangements for the unmarried daughters and in that connection she requested him to execute gift deed in respect of the lands already presented to her, so that disputes my not arise in future with his sons. Such an expression is patently absent in the plaint wherein it is stated that Rajamma felt that it well be better


is patently absent in the plaint wherein it is stated that Rajamma felt that it well be better in the interest of all concerned to have a registered instrument evidencing gift and therefore, defendant No. 1 executed the gift deed. Furthermore, such versions are totally absent in Ex.A-3. The reason for bringing out such a document is mentioned therein, as Rajamma wanted to have an appropriate deed and therefore, he was executing the deed in her favour. Since Rajamma is not a party to the document, it is difficult to know the reasons for her to insist for such a document from defendant No. 1 particularly when she and her brothers were on cordial terms even till the date of Ex.A-3, and it is highly improbable mat suddenly she insisted for such a document or that defendant No. 1 oblighed for that voluntarily. None can visualise such a document to sprout suddenly without any back-ground that too, with very vague and bald expressions. Ex.A-3 is totally silent as to who was managing the suit lands as on the date of the document, who cultivated the lands and who collected the produce from them. A supporting or collateral document like Ex.A-3 if had come to avoid future problems, would not have failed either to make Rajamma a party or to express all the important circumstances as detailed above including dear reasons as to why such a document come into existence. The testimony of plaintiff No. 1 is also something different from what is mentioned in the plaint and Ex.A-3. He is emphatic that the suit lands were given to his wife who was aged 9 years at the time of her marriage with him. He is also emphatic that defendants 1 to 3 did not give the gift of the suit lands to his wife, but they only ratified the gift given by their father. That is again silent in the plaint and Ex.A-3. To the question whether his father-in-law promised to give the suit


plaint and Ex.A-3. To the question whether his father-in-law promised to give the suit properties to his wife he came up with an answer that the question did not arise as he actually gifted the suit properties and actually he was telling his mother and others that he would give Ac.60.00 to Ac.70.00 to his daughter as she is the only daughter and as he happened to be the nephew of his father. He even goes to the extent of saying that his father-in-law promised to give 1/3rd of his estate which may come to about Ac.70.00. to the question whether the recitals in Ex.A-3 are correct or not, plaintiff No. 1 tried to avoid it by saying that the total effect of the document is true, but he did not see the document. Therefore, it is doubtful whether the writings in Ex.A-3 represent the truth or the realities or whether it is worth the scroll or the paper upon which some thing is written. D.W.3 the attestor of Ex.A-3 is emphatic that the suit lands in Ex.A-3 regarding the gift etc., are not true and no land was delivered to Rajamma at any time and that she was never in possession and enjoyment of the suit land. He appears to be a person belonging to Daggubati family of defendants and also a relative of the plaintiffs and he was also cultivating a portion of the land of the defendants called Beeti chenu as a tenant and at the time of deposition, he was fairly an aged man of 57 years and there is no reason to reject his testimony. At any rate, that is sufficient to discredit the contents of Ex.A-3 and the testimony of Plaintiff No. 1.


22. A serious question is raised by Mr. Merchand Noori, the learned Advocate for the plaintiffs that defendant No. 1 having admitted the execution of Ex.A3, the burden of proving the contrary to the contents of the document should be heavily placed on him and other defendants for two reasons. Firstly, according to him defendants 1 to 3 who are parties to the document are hit by the rules of estoppel and secondly due to the prohibition under Sections 91 and | 92 of the Evidence Act. The first contention appears to have some force in so far as defendant No. 1 is concerned, but not defendants 2 and 3 who were minors at the time of execution of the document and the other defendants who are not parties to the document. Such an estoppel operates against defendant No. 1 by virtue of Sections 17 and 31 of the Indian Evidence Act. That may amount to an estoppel by admission in a document. But Section 31 contemplates that such admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provision and the law appears to be settled that such admission operating as estoppels are capable of explantion. That is what defendants 1 to 3 have done in this case. They have not only tried to explain the circumstances under which Ex. A3 came to be executed but also that it was not intended to be acted upon and that it was not actually acted upon.


23. Mr. Meharchand Noori, the learned Advocate has a serious grievance that the learned Sub Judge threw the entire burden on the plaintiffs in regard to Ex. A-3 when the execution of the same is admitted and when the burden of proving to the contrary to the contents of the document were heavily resting on the shoulders of the defendants. That is how, according to him, the learned Sub-Judge has drawn conclusions against the plaintiffs with illegal process deserving to be not worthy of acceptance. Mr. Harinath, the learned Advocate for the defendants contends to the contrary that in the nature of the defence taken by the defendants read with the conduct of plaintiff No. 1 in regard to Ex.A-3, the learned Sub Judge was totally justified in adopting such a process. The law in this regard appears to be not explored either by the trial Court or by the learned Advocates. It is true that defendants 1 to 3 being parties to Ex.A-3 are hit by the doctrine of estoppel and as already pointed out, their explanation has to be satisfactorily demonstrated and till then by virtue of Sections 101 to 103 and 106 of the Evidence Act, the burden should be heavily on the defendants to establish to the contrary. Since the terms of the contract between the parties have been reduced into writing as per Ex.A-3 which is also a registered document, nomally speaking, defendants 1 to 3 are debarred from producing any oral evidence contrary to the contents of Ex.A-3 in view of Section 92 of the Evidence Act. But if they are able to come within any of the provisos 1 to 6 of Section 92, then, they can be relieved of such a prohibition. Since it is pleaded that Ex.A-3 came into existence under certain circumstances at the instance of plaintiff No. 1 himself and with his advice to avoid certain anticipated land legislation regarding the ceiling of the holdings of agricultural


himself and with his advice to avoid certain anticipated land legislation regarding the ceiling of the holdings of agricultural lands and that it was not intended to be acted upon nor it was acted upon etc., the case clearly falls within proviso No. 1 to Section 92 of the Evidence Act wherein if such facts are proved they would invalidate Ex.A-3. Incidentally in the nature of the explanation given by defendants 1 to 3 in the written statements and the evidence through the testimony of D .W .2 and others and from the totality of the circumstances, the dominating position of plaintiff No. 1 in the family throughout and his undue influence to bring out certain documents including Ex.A3 during the relevant time and the good faith of the transactions under Ex. A3 has been question. The case thus attract Section 111 of the Evidence Act inasmuch as Section 16(3) of the Indian Contract Act. Section 111 of the Evidence Act may be usefully extracted and read as hereunder:


"Where there is a question as to the good faith of the a transaction between parties one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence"
 The implication of the evidence shows that plaintiff No. 1 was in a position of active confidence in relation to the" family of Chowdaramma including defendants 1 to 3 throughout. Specifically the dominant role played by plaintiff No. 1 in bringing out Ex. A-3 is alleged. Although, the name if Rajamma is made use of in Ex. A-3, ultimately it is sought to be used or misused for the benefit of plaintiff No. 1 thereby showing that allegedly he misused his position of active confidence with defendants 1 to 3. In other words, there is a serious question as to good faith of the transaction under Ex. A-3. Thus by virtue of Section 111 of the Evidence Act. The burden of proving good faith of the transaction would lie on the plaintiffs regarding Ex. A-3. since plaintiff No. 1 is said to be a person in the position of active confidence. It appears that:


"the principle is of universal application and must not be regarded as a technical rule of evidence and it applies to all the cases where influence is acquired and abused and to all other cases where persons stand in confidential relation and where predominating influence exists and to every case where confidence is reposed and betrayed." (Pages 995 and 996 of Sarkar on Evidence 13th Edn.) The principle on which the Court act in relieving against transactions on the ground of inequality of footing between the parties is not confined to cases where a fiduciary relation can be shown to exist, but extends to all the varieties of relations in which dominions may be exercised by one man over another. (Page 996 of Sarkar on Evidence supra). Section 16 of the Contract Act provides for the cases in which one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage and in Section 16(2)(a) of the Contract Act "standing in a fiduciary relation to the other" is given as an example of a person who is in a position to dominate the will of another. Section 16(3) of the Contract Act supplements Section 111 of the Evidence Act and they should be read together (Page 996 of Sarkar on Evidence supra). The law has gone to the extent of expressing that the Court will regard the matter with jealous suspicion, and will either set aside the instrument as conclusively void will throw upon the person benefitted the burden of establishing beyond all reasonable doubt the perfect fairness and honesty of the entire transaction (Taylor's Evidence Act Section 151, quoted at Page 996,997 of the Evidence Act supra). While dealing with the implications of Section 16(2) and (3) of the Contract Act, law is settled that "by Sub-section (2) of Section 16, a presumption of undue influence shall be deemed to arise if the conditions set out therein are


16, a presumption of undue influence shall be deemed to arise if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in Sub-section (3) is that a person who has obtained an advantage over another by dominating his will, may also remain in a position to suppress the requisite evidence in support of the plea of undue in fluence. (ladli Pd. v. Kamal Distillery Co.,-- of Sarkar on Evidence supra). Therefore, even assuming that the initial burden of proving contrary to Ex.A-3 rested on defendants 1 to 3, it must be taken to have been shifted to the plaintiffs to establish that it was a transaction which was not tainted by bad faith, undue influence or the intention to procure an advantage over defendants 1 to 3 misusing the dominating position it held by plaintiff No. 1 till and at the relevant time. In that context the burden of proof in regard to Ex.A-3 has been rightly placed on the plaintiffs to establish the good faith in the transaction. However, Mr. Meharchand Noori the learned Advocate for the plaintiffs argued in the alternative that all the legal implications are subject to the proof of the ingredients and the stipulations in the provisions by sufficient evidence and that stands to reason.


24. The learned Sub Judge has dealt with the evidence to come to the conclusion that althrough plaintiff No. 1 was holding the position of the active confidence in regard to the family of Chowdaramma and was dominating the will of defendants 1 to 3. The evidence and circumstances appear to be ample in this regard. As already pointed out when plaintiff No. 1 married Rajamma, defendant No. 1 was an infant aged three or four years, in the year 1925. When Chowdaramma died in the year 1938 defendant No. 1 was hardly aged 15 or 16 years. By then plaintiff No. 1 had already attained the age and the status in the family. Admittedly, he is a nephew of Chowdramma. Except defendant No. 1, there was no other adult male member in the family of Chowdaramma when he died. Plaintiff No. 1 who married the only daughter of Chowdaramma at that time was the only adult male member close to the family of Chowdaramma. It is not suggested to D.W.I or any other witness that the family could fall back on the assistance and the advice of any other person close to the family except plaintiff No. 1. On the other hand, the positive evidence in the case is that plaintiff No. 1 was prevailed upon or took lot of interest in the affairs of the family including the management and alienation of the family members, number of times. In Exs. P-1 to P-3 the registered sale deeds executed by the wife of Chowdramma and the mother of defendant No. 1 (obviously the mother-in-law of plaintiff No. 1), plaintiff No. 1 has figured as an indentifying witness. Plaintiff No. 1 is the scribe of the registered sale deed Ex.P-4 executed by the mother of fedendant No. 1 as


the registered sale deed Ex.P-4 executed by the mother of fedendant No. 1 as a guardian of minor defendant No. 1. He is also the scribe of the agreement of sale dated 10-12-1959 executed in favour of defendant No. 1. He has also either attested, indentified or scribed several documents concerning the family of Chowdaramma for a considerably long span of time. He has also either arranged for the cultivation of the family lands by himself or through his brother P.W. 2. Exs. B-2, B-7, B-8 and B-26 are such instances. Exs.B-7 is in his hand-writing. He has also shown concern in the lease deeds Exs.B-26 to B-30 under which lands of the family of Chowdaramma were leased out to several tenants. Plaintiff No. 1 could not escape the consequences of these . documents on him to demonstrate that he was a man of active confidence in the family of Chowdaramma for a very long itme and atleast till the date of Ex.A-3. It is also in the evidence that he did joint business withdefendant No. 1 from 1948 to 1954 and he inducted him into the partnership business in Shambu Films in the year 1956. Hesoldmotor car of defendant No. 1 under Ex.B-35 dated 16-8-57. He appears to be an expert in the sale and purchase of cars as his admission shows that he has sold hundreds of cars including the one under Ex. B-35. Admittedly, the relationship between plaintiff No. 1, Rajamma and defendant No. 1 was quite cordial during the year 1957 and in particular at the ,time of Ex.A-3. Therefore, even if we accept the evidence of plaintiff No. 1 that he either arranged


Therefore, even if we accept the evidence of plaintiff No. 1 that he either arranged for the cultivation of the suit lands through P.W2 or others it could be for no other reason except he being a man who stood to defendant No. 1 and others in a position of active confidence. Therefore, the burden of poving good faith of the transaction under Ex.A-3 was on him. The evidence and the circumstances of the case have totally shown that plaintiff No. 1 has failed to discharge such a burden to any extent. Affluent person by himself coming into the family of Chowdaramma as son-in-law and being a dose nephew of Chowdaramma who had been prevailed upon by the widow of Chowdramma and a minor brother-in-law defendant No. 1 to assist, advise and join in certain transactions and who diverted defendant No. 1 from the family occupation of agriculture to a film business in Madras, tried to take advantage of Ex.A-3 which was brought about in the year 1957 in the name of his wife Rajamma. The circumstances are very strong to hold that neither Rajamma nor defendants 1 to 3 were interested in Ex.A-3 and if at all any body who could have taken interest or lead in such a transaction, it must be plaintiff No. 1 and noneelse. As he did in the case of so many documents stated above, the probability that he was behind Ex.A-3 for all purpose cannot be ruled out. That it came out at the instance of Rajamma as alleged in the plaint and as stated by him and as is mentioned in Ex. A3, appears to be a total improbability. When nothing happened in regard to the suit lands till Rajamma died and till the parties were on cordial terms, if plaintiff No. 1 thought of the benefit under Ex.A-3 claiming to be legal heir of Rajamma, could never be a good faith if not


claiming to be legal heir of Rajamma, could never be a good faith if not an express bad faith. This appears to be a dear case of betrayal of such an active confidence reposed to in him by defendant No. 1 and the members of his family by practising bad faith and in effect exerting undue influence.


25. Then the question is whether Ex.A3 came out under the crcumstances set up by defendants 1 to 5 as a nominal document due to the anticipated land ceiling legislation and that it was not acted upon. If that is established, Ex.A3 could be styled either as bename or as nominal one not intended to be acted upon. The expressions 'benami/nominal' did not appear to have acquired a clear meaning for a long time or till some years back. The word 'benami' is an Indian word popularly called as benami system which is a subject of Hindu Law and commonly knowrras 'furzee' among Mohammedans and in fact it is a persian compound word, made up of 'be' which means 'without' and 'name' which means 'name'. It means literally 'without a name' and denotes a transaction effected by a person without using his own name but in the name of another. But many transactions originate in fraud and many of them which did not so originate are made use of for a fraudulent purpose more especially for the purpose of keeping out creditors who are told when they come to execute a decree, that the property belongs to the fictitious owner, and cannot be seized, (page No. 685 of Mulla's Hindu Law 15th Edn.). But that is a contextual expression used in law as above, but it appears to have acquired a meaning synonym to nominal' as benami transactions are synonymly used as nominal transactions. In Sree Meenaksi Mills Ltd., Madurai v. Commissioner of lncomeTax, Madras, the Supreme Court has approved the equation in the meaning of the true expressions as:


"The 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real. But the word benami' is also occasionally used perhaps not quite accurately to refer to the same transaction. The fundamental difference between these two classes of transaction is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee in the later there is none such the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the personnamed in the deed is the real transferee or to enquire into the question as to who paid the consideration for the transfer. But in the later class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be not who paid the consideration but whether any consideration was paid."


Therefore, in Ramarao v. State of Bombay, , it was held that the word 'nominal' shows that there was nothing of substance about the offer and endorsements and fomalities by which an attempt was made to give some semblance of regularity to what was done cannot cloak in legal guise that which was nothing better than a device to vest the appellant's property in Revenue Officer holding on behalf of Government". Both the dictionary meaning and the law dictionary meaning appear to ha vein substance, conceived the same idea in regard to such transactions. To read into the dictionary meaning, 'nominal' means, existing in the name only, nor real or actual and virtually nothing, (right column page 804 of Concise Oxford Dictionary, 1990 Edn.). Same meaning was accepted in Black's Law Dictionary 4th Edn of 1951 at page 1199, to mean, "existing in name only, not real or substantial, nor real or actual, merely named stating or given with reference to actual conditions". Such a theory in this case appears to enforce itself in all respects. There is no proof of gift towards Pasupukunkuma in fact. Neither Rajamma nor plaintiff No. 1 interested in her bestowed any attention or interest over the suit lands by way of such a gift. Rajamma was never in the picture either before or at the time when Ex. A-3 came into existence. If at all anybody could have taken interestin the document, it was plaintiff No. 1 who was actively in confidence assisting the family of defendant No. 1 or Chowdaramma since beginning to bring about so many documents. The contents of Ex.A3 failed to corroborate the conduct of the parties throughout. The so-called gift was never completed in law or fact as there is no proof of acceptance of gift by the donee or the delivery of possession to her either before or at the time of Ex.A-3. No revenue record


delivery of possession to her either before or at the time of Ex.A-3. No revenue record bear support to such a document particularly in regard to agricultural lands. The law appears to have laid down some tests to determine whether a transaction is benami or nominal. Although the initial burden to prove such a nature of the transaction is on the person who sets it up, the court lias to see all the surrounding circumstances. Broadly stated the testing circumstances are, the possession of the parties, their relationship the motive which could govern their action, custody of the title deeds and subsequent conduct of the parties. (Pages 3438 and 3440 of Fields Law of Evidence Vol. 1 IV 1987 11th Edn.). The law in this regard appears to have been succinctly laid down in P. Krishna Bhatta v. M. Ganapathi Bhatta, . So, such tests are to be applied atleast from the date of Ex. A3. The position of the parties and the relationship between them are well established to satisfy the initial tests that it was possible for hem and in particular plaintiff No. 1 to bring about such a document which can be called as benami or nominal. The motive is said to be the anticipated Land Ceiling Legislation popularly called as Kala Venkata Rao's Bill. Mr. Mehar Chand the learned Advocate for the defendants (sic. plaintiffs) has pointed out that originally 1957 Ordinance Nos was issued in this regard which was replaced by Act 10/1957 and further Act 10/1961. He has contended that the transaction in question came into existence not connecting the date of such Ordinance of the Act. Mr. Harinath, the learned Advocate for the defendants has contended that such documents need not coincide with such Legislation but the mind of land owners both before and after the law should be judged to examine whether they would bring about such transactions to avoid the law.


after the law should be judged to examine whether they would bring about such transactions to avoid the law. Admittedly such Legislation has fixed some ceiling limit of the holdings of the agricultural lands with certain legal consequences regarding the excess holdings. Mr. Harinath, the learned Advocate for the defendants has rightly pointed out that before any such law is contemplated both through political and other mehtods, the affected persons would be made to know about it and would obviously think of evading law by both leal and illegal methods. It may stretch for sufficient time both before and after the Legislation. Ex.A-3 is dated 12-4-1957. Patently it has come into existence within the close proximity of such a land Legislation, the learned Sub Judge has rightly pointed out that even the plaintiffs 1 and 2 who are brothers, managed to bring about a partition between them at the relevant time to get over from the effect of such a Legislation. Number of documents have come into existence in the family of defendants 1 to 5 themselves within the dose proximity of Ex.A-3. Ex.A-6 a registered partition deed came into being between defendant No. 1, his sons and Exs.A-7 to A-9 the registered gift deeds dated 29-7-57,19-7-57 and 19-7-57 respectively between defendant Nos. 1, 20,23 and 24 came into existence in such a close proximity and succession and it is the case of defendants 1 to 5 that those documents also were brought about at the instance of plaintiff No. 1 to a void the land Legislation. The manner in which plaintiff No. 1 has deposed and the admissions made by him shows that he is a man of experience, a man of tact and a man of ingenuitie. When he lent his hand in support of so many transactions for the family of defendants 1 to 5 throughout, his lending support


support of so many transactions for the family of defendants 1 to 5 throughout, his lending support to avoid the land legislation by means of such transactions cannot be ruled out. Although such circumstances cannot be established with certainity with positive evidence, the totality of the circumstances themselves may be sufficient to hold in the affirmative. The time may not be too long or the law may not be helpless to ignore such influences of Legislations to evade them by bringing out such transactions to go into the realm of judicial notice of the courts under Section 57 of the Evidence Act which require no proof by virtue of Section 56 of the Evidence Act. Judging the conduct of plaintiff No. 1 and others under such transactions, this court would be justified in judicially noticing that such transactions including Ex.A-3 must have been brought about to evade the expected land ceiling Legislation at the relevant time. Although such a circumstance may not be the only material to call a document nominal one, that would be a very strong corroborative circumstance to be judged in the light of other circumstances also.


26. The negative motive to avoid the contemplated land Legislation by means of Ex.A-3 if be a circumstance, a positive motive is pleaded by plaintiff No. 1 as to why Ex.A-3 came into existence. That was Rajamma's desire to have a document at that juncture although the gift was already given to him in the year 1925 itself to avoid future difficulties. The reason for such a brewing difficulty is never spelt out in the plaint. What is mentioned therein is that when the management of the suit lands was with defendant No. 1 who used to send income to Rajamma, she felt that it would be better to all the concerned, to have a registered instrument evidencing the gift. Why it was better in the interest of all concerned finds no elaboration. Although plaintiff No. 1, Rajamma, defendant No. 1 and others were in cordial terms at that time, how the interests of such persons was in stake, if no gift deed was brought out, is not explained. It is also in the evidence that plaintiff No. 1 came out with a theory that about a month or two prior to the execution of Ex.A-3, defendant No. 1 met him and his wife Rajamma, and represented that his wife and his brother-in-law are demanding him to effect partition of the family properties to safeguard the interests of the minor sons, as he is indulging in some manure and film business, his wife advised him to effect partition and to make arrangement for his unmarried daughters and in that connection Rajamma advised him to execute a gift deed so that disputes may not arise in future and according to them, the original of Ex.A-3 was executed. This appears to be an afterthought. Almost contemporaneously with Ex.A-3, Ex.A-6 the registered partition deed dated 27-7-1957 has also came into existence. The contents of these documents do not indicate the motive


has also came into existence. The contents of these documents do not indicate the motive behind the persons to bring about such documents. These documents were followed by other gift deeds - Exs.A-6 to A-9 between defendant No. 1 and defendants 22 and 23. Their contents also do not support such a version. The oral evidence in this case also do not confirm or corroborate the motive to bring about Exj.A-3 after a long time after the gift. The witnesses and defendant No. 1 although close to him are not made to admit such a theory in the cross-examination. Therefore, the motive was a test to bring about Ex.A-3, is tending more towards the probability of defendants case than that of the plaintiffs. The possession of the suit lands never went to either Rajamma or the plaintiffs even after Ex.A-3, despite the recital therein that the posession of the property was given to Rajamma. Not only such a recital is not supported by satisfactory evidence but also the positive evidence and the conduct of the parties reject such a theory. Even after Ex. A3, no revenue record mentions the name of Rajamma in regard to the suit lands till she died. Even after her death no such entry is attempted to be made in the revenue records by the plaintiffs. In support of the recitals in Ex. A-3 that Rajamma had to pay government taxes for the gifted properties, there is no evidence of payment of the same either by Rajamma or after her death by the plaintiffs till the suit was filed. On the other hand, admittedly, defendant No. 1 and the other defendants who purchased some portions of the suit lands are paying the land revenue. It is in the evidence consistently that defendants 6 to 16 have been in possession of the portions of the suit lands purchased by them under the registered sale deeds Exs.A-10 to A-13 and A-15. Admittedly,


sale deeds Exs.A-10 to A-13 and A-15. Admittedly, they have been in possession of such lands up till the date of the suit and thereafter. Atleast from the tested testimony of defendants viz., D.Ws. 11,13 to 16 and 17, the plaintiffs were not successsful in showing that Rajamma had come into possession at any time or she was dispossessed or that plaintiffs were in possession at any time of that they were dispossessed by defendant No. 1 or other defendants. Therefore, the evidence that defendant No. 1 was in possession of the suit lands throughout even after Ex. A-3 and he transferred the possession to the said defendants to continue till the date of the suit, supports one of the test of the theory that Ex. A-3 was not acted upon. Here only, we can conclude the circumstances of possession, that the theory of collection of the produce by Rajamma or the plaintiffs is totally wanting in proof.


27. Ex.A3 is a certified copy of the original deed. The original is not produced. Nothing is mentioned in the plaint as to what happened to the original deed. Even the written statement of defendant No. 1 is silent in this regard. However, it apperas to have been filed along with the plaint. Since the document was executed in favour of Rajamma, she being the beneficiary was expected to have it with her. In veiw of Ex.A-3 being an unilateral document would have thrown some light as to whether the document was given to Rajamma or it remained with defendant No. 1 In the deposition also plaintiff No. 1 did not say whether Rajamma came into possession of the original of Ex.A-3 at the time of the document or subsequently. But he only stated that he lost the original gift deed due to misplacement and therefore, he was filing Ex.A-3. It is only in the cross-examination in answer to the question whether the recital in Ex.A-3 gift deed are correct, he came out with an answer that the total effect of the document is true, he did not see the document, his wife kept it in the box and the contents of the document are correct. As rightly pointed out by the learned Sub Judge, both the sides have come with a version that the original of Ex.A-3 is lost. Defendant No. 1 is dead and defendant No. 2 who examined himself as D.W. 1 must have been a teenager as on the date of Ex.A-3 and could not have known much about the possession of the same. However, he being a party to the document was expected to say something about the custody of the document and has categorically stated that the original of Ex.A-3 has not been given to him or his wife and it was with his father. If we go by the recitals of Ex.A-3, with the conduct of plaintiff No.


If we go by the recitals of Ex.A-3, with the conduct of plaintiff No. 1 and other circumstances, it is possible to hold that the original of Ex.A-3 never remained with Rajamma or plaintiffs and it must have remained with defendant No. 1. Defendant No. 2 has testified that he saw the document in the year 1965-66 when he attended income-tax matters of his father at Bapatla and that document and other documents were kept in a bundle and they are all missing. Under the circumstances, the version of defendant No. 2 deserves greater weight than that of the plaintiffs. Plaintiff No. 1 being an experienced and shrewed person in active confidence with the family of defendant No. 1 and who must have been in the back-ground of Ex. A-3 for the reasons stated above, would not have failed to take custody of the original document at any time. Even the exchange of notices appears to have not brought out the theory that Ex.A-3 was with Rajamma and it was lost. Therefore, except marking of Ex.A-3 as secondary evidence on the ground that the original is lost, there is no proof that the custody of the original documents was with the beneficiary Rajamma or with the plaintiffs till the suit was filed. As a whole, the case of defendants has satisfied me test of want of custody of the documents (original of A-3) with Rajamma and plaintiffs to term it as nominal.


28. Several circumstances are depended upon by both the sides in regard to the question whether Ex. A3 was acted upon or not. The learned Sub Judge has referred to them in detail and has accepted the circumstances which are in favour or the defendants to hold that Ex. A3 was nominal and not acted upon. Such circumstances are based on evidence in the case. The circumstances in favour of the defendants are:
 "(1) The relationship between Rajamma and her family with defendant No. 1 was cordial at the time of Ex.A3 not to raise any suspicion in her mind insisting for a registered gift deed from defendant No. 1 regarding the suit lands.
 (2) Rajamma would not have left the suit properties with defendant No. 1 throughout for such a long time if he had any suspicion in her brother either regarding her rights or regarding his conduct in acting adverse to her interests and there was no reason for her to insist for a document.
 (3) Plaintiff No. 1 an experienced man in so many fields and also well versed in legal implications would not have failed to arrange for payment of cist by Rajamma regarding the suit lands or would not have allowed, lands to continue with defendant No. 1 and other defendants under the sale deeds even after Ex.A-3.
 (4) When his own brother P.W. 2 was in the village managing other lands including his, there was no reason for Rajamma or plaintiffs to allow defendant No. 1 to manage the suit lands on behalf of Rajamma or the plaintiffs.
 (5) The parties are very closely related to each other whereby the matters went on with more of confidence than agitating for the rights till they fell out due to certain litigations.


(6) Many documents consecutively followed Ex.A3 (like Exs.A-6 to A-9) between plaintiff No. 1 and his brother P.W2 although they were on good terms to support the probability that mere were serious attempts to evade the Land Ceiling Legislation which was expected to come out soon then.
 (7) Rajamma and plaintiffs never raised even their little finger in any manner to collect the produce from the suit lands at any time.
 (8) Plaintiff No. 1 was more interested in his business and other avocations at Madras after 1953 than thingking of suit lands either to have been belonging to his wife Rajamma or to succeed along with plaintiff No. 2 after Rajamma died.
 (9) Even defendant No. 1 remained in Madras from 1961 to 1969 in connection with his business and even then the suit lands were not managed by plaintiff No. 1 or his brother P.W2 although he was attending to other lands of plaintiff No. 1 in the village.
 (10) Suit items 1 and 2 were dry lands and were converted it no wet lands in about the year 1969. Suit items 1, 2 and 3 were included in the Lift Irrigation society of which one Daggubati Raghavaiah the brother-in-law of P.W.2 was the President till 1-9-1976. The lands were converted into wet lands under Dhanyalakshmi Lift Irrigation Scheme and Rajamma was not a member of Dhanyalakshmi Lift Irrigation Scheme at the relevant time, nor she took any interest in getting the lands converted into wet lands.


(11) On the other hand, Ex. B- 21 shows that defendant No. 1 was a member of the said Society and paid Rs. 2,000/- (under receipt Ex.B-21) and the lands were converted into wet lands.
 (12) The custody of the original of Ex.A-3 never went to Rajamma or plaintiffs, but remained with defendant No. 1.
 (13) All the taxes and land revenue are paid by defendant No. 1 to the suit lands throughout and plaintiffs and Rajamma have never paid them.
 (14) The relationship between plaintiffs and defendants No. 1 and defendant No. 2 became strained after litigation in Madras courts between plaintiff No. 1 and defendant No. 1 and others, and another suit between defendant No. 2 and plaintiff No. 1 and particularly after the suit of defendant No. 2 filed in August, 1971, the present suit having been filed on 17-9-1971 and after exchange of notices the present suit having been filed as a counter-blast.
 The circumstances in favour of the plaintiffs are:
 (1) Exs.A-7 to A-9 the gift deeds in the name of defendants 20, 22 and 23 came out within a short time after Ex. A3 towards Pasupukumkuma as in the case of Ex.A-3 which are said to have been acted upon.
 (2) Exs. A-6 the partition deed between defendant No. 1 and his sons dated 27-7-1957 which came into existence within a short time after Ex.A-3 patently omitted to include suit lands for the purpose of partition although they are said to be the joint family properties.
 (3) The cordial relationship between the parties at the relevant time.


(3) The cordial relationship between the parties at the relevant time.
 (4) Custody of original of Ex.A-3 not proved to be with defendant No. 1 (5) Defendant No. 1 in regard to loss after his business in Madras and in film-business incurring loss of Rs. 6,00,000/- to Rs. 7,00,000/- whereby one Vijaya Distributors obtained two decrees against him in the year 1967 and 1969 thereby somehow he was to cling on to the suit lands to overcome the financial crisis.
 (6) The income-tax return filed by plaintiff No. 1 for the year 1968-69 showing the income of Rajamma from her lands, to mean that, she got the lands under Ex.A3 (Exs.A4, A5, A16 and A17) (The learned Sub Judge has found these circumstances not proved by the plaintiffs and this court also feels that in the first place, such income of Rajamma may not be connected to the suit lands in the absence of evidence as above and particularly in view of plaintiff No. 1 having acquired properties in Madras and perhaps Rajamma might have had some income from some lands acquired in Madras. The learned Sub Judge has dealt with the matter in a detailed and perfect manner in this regard which cannot be lightly rejected in the absence of any other material or circumstances.)


29. Now considering the circumstances stated above both for and against the parties, the ample circumstances in favour of the defendants over-weigh the little or few circumstances in favour of the plaintiffs in regard to the question whether Ex. A3 was acted upon or not and this Court fully endorses the finding and the view of the learned Sub Judge that Ex.A3 was not acted upon. The totality of the circumstances thus bring home the nominal nature of Ex.A3 being not acted upon and having brought into being for a purpose other than what is mentioned therein and what the plaintiffs are canvassing. This Court appreciates the unexceptionable manner in which this matter was dealt with by the learned Sub Judge. The learned Sub Judge has rightly held that there is no evidence to accept the theory of plaintiff No. 1 and his wife Rajamma acquiescing their rights in the suit lands if any by representing to the alienee defendants that Ex.A3 is sham, nominal and that they have no title and therefore, they are estopped from questioning the alienations. In this regard, except the testimony of some of the defendants. There is no supporting material. No such recital is found in any of the sale deeds in favour. Similarly the finding of the learned Sub Judge regarding defendants 6 to 15 and 17 to 19 being the bona fide purchasers of the suit lands for value without notice of the alleged defect in the title of defendant No. 1,deserves to be confirmed. Strictly speaking when the plaintiffs have failed to prove the title to the suit lands and when it was very much with defendant No. 1 as the time of the sale transaction, such a contention covered by issue No. 5 may not arise. Therefore, the alienations in their favour would be valid and binding on defendant No. 1 and the plaintiffs under the circumstances. Thus the finding of the learned Sub Judge on Issues 1 to 6 are to be


circumstances. Thus the finding of the learned Sub Judge on Issues 1 to 6 are to be justifiably supported and confirmed.


30. Mr. Harinath, the learned Advocate for the defendants appears to be not right in contending that defendants have perfected their title to the suit lands by adverse possession. Strictly speaking this can never be a case of adverse possession to perfect the title on the part of the defendants. On the other hand, this is a square case wherein the parties have set up the rival titled to the suit lands. Nowhere the defendants have pleaded that the possession of the suit lands was lost either by Chowdaramma or by defendant No. 1 or by any other person. Similarly although the plaintiffs came out with a plea of possession of the suit lands with Rajamma under the gift since inception and although the suit is filed for possession of the lands, there is not even a whisper that either Rajamma or plaintiffs were dispossessed from them, any time by any one. That is how, the suit for possession is based on title. Whereas the defendants while denying title to the plaintiffs have categorically set up continuance of title with them. As rightly contended in the written statement, this is a case of loss of title by prescription. The legal and lucid distinction between the doctrines of 'adverse possession' and 'prescription' appears to be well established. 'Adverse possession' means :
 "The enjoyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued under an assertion or colour of right on the part of the possessor......
 The statute of limitation is the source of title by adverse possession....
 The adverse possession must be actual continued, visible, notorious, distinct and hostile."
 (Pages 152 and 153 of Bouvier's Law Dictionary Vol.1,3rd Revision 1914) Adverse possession' is:


"that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that persons's title.
 Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been hodling under the rightful owner's title viz., trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession."
 (Pages 50 ad 51 of T.M. Mukherjee's Law Lexicon Vol. 1, 1971 Edn.) A prescriptive title rests upon a different principle from that of a title arising under the statute of limitations. Prescription operates evidence of a grantande confers a positive title (Page 152 of Bouvier's Law Dictionary supra). The science of law as jurisprudence has a definite meaning and expression in regard to the two doctrines. To understand the same, we must read into:
 "Prescription may be defined as the effect of lapse of time in creating and destroying rights; it is the operation of time as vestitive fact. It is of two kinds viz., (1) positive or acquisitive prescription and (2) negatie or extinctive prescription. The former is the creation of a right, the latter is the destruction of one, by the lapse of time. An example of the former is the acquisition of a right of way by the de facto use of it for twenty years.....


Lapse of time therefore, has two opposite effects. In positive prescription it is a title of right, but in negative presciption it is a divestitive fact. Whether it shall operate in the one way or in the other depends on whether it is or is not accompanied by possession. Positive prescription is the investitive operation of lapse of time with possession, while negative prescription is the divestitive operation of lapse of time without posssession. Long possession creates rights, and long want of possession destroys them. If a person possesses an easement for twenty years without owning it, he begins at the end of that period to own as well as to posssesss it. Conversely, if a person owns land for twelve years without possessing it. he ceases on the termination of that period either to own or to possess it. In both forms of prescription, fact and right, possession and ownership, tend to coincidence. Ex facto oritur jus. If the root of fact is destroyed, the right growing out of it withers and dies in course of time. If the fact is resent, the right will in the fullness of time proceed from it."


(Pages 435 of Salmond on Jurisprudence, 12th Edn. by P.J.Fitzgerald) Therefore, sometimes it is said that adverse possession is the converse of right by prescription, and vice versa is also stated to be true. In this case, neither Rajamma nor plaintiffs came into possession of the suit lands at any time till the date of the suit. They never showed any semblance of possession over them either directly or constructively. Even assuming that they got title to the suit lands. They allowed the real owners to continue in possession as the insignia of the continuance of their title. Neither Chowdaramma nor defendant No. 1 or any other defendants either in mind or body, lost the possession over the suit lands. They continued their possession as owners. Therefore, Rajamma and the plaintiffs presuming that they own the suit lands for 12 years and more (in this case it is 46 years) without possessing them, they ceased on the termination of that period either to own them or to possess them. Therefore, this may be a negative prescription as divestitive operation of lapse of time to possession. A t any rate, this could be neither a case of prescription nor adverse posssession on the part of the defendants who and whose purchasers in title were the owners with title and possession and continued as such till to-day. Therefore, there was neither vestitive nor divestitive fact or law in their case.


31. Here only law of limitation operating on the present case can be examined and recorded. The suit is for possession based 6n title and therefore, it is govered by Article 65 of the Limitation Act, 1963. The period of limitation for such a suit is 12years when the possession of the defendants became adverse to the plaintiffs. Patently neither Rajamma nor plaintiffs were in possession of the suit lands within 12 years next before the suit. Strictly speaking, it ran to commence from the year 1925 when the gift is said to have been conferred on Rajamma towards Pasupukunkuma. Even assuming that it commenced from the date of Ex.A3 viz., 12-4-1957, the period of limitation ended on 12-4-1969. The cause of action for the suit mentioned in the plaint is the death of Rajamma in October, 1968. The date of suit is 17-9-1971. In all cases of bar of limitation in any manner including the prescription or adverse possession, the rule of tacking operates. (Pages 56 to 63 of Law of Adverse Possession by B.N. Guha and Pages 349 and 350 of Easements & Licences by Katiyar). By the time Rajamma died, there was a lapse of 11 years 6 months from the date of Ex.A-3. By the time the suit was filed there was a further lapse of time of about three years. Thus by adding the period of lapse of time till Rajamma died till the date of Ex.A-3 as tacking to the further period till the date of suit, it would be 14 years 5 months and 5 days. Thus the suit was hopelessly barred by limitation when it was filed by operation of the law of prescription read with Article 65 of the Limitation Act.


32. Having failed to establish their title to the suit properties, the plaintiffs cannot get the possession of the same. Obviously,' the defendants not being in wrongful possession throughout are not liable to pay any mesne profits to the plaintiffs. The rest of the contentions covered by Issues 10 and 11 regarding payment of court fee and mis-joinder and non-joinder of parties are not pressed. The plaintiffs are not entitled to get any relief in the suit and the learned Sub Judge has rightly dismissed the suit. This is not a case wherein the rule that costs follow the event can be excepted.
 33. In the result, the appeal is dismissed with costs of the defendants, (respondents) throughout.
 34. Before parting with the case, it may be said to the credit of the learned Sub Judge Mr. B. Eswara Reddy about the dealing with the matter in all meticulous details in a most satisfactory way leading to correct findings and the final result. He deserves all the appreciation from this Court. It is proper that a Certificate of appreciation should be issued to the learned Sub Judge and the Registry shall do so.


Oversea Mica Exports vs Secretary, Sales Tax Appellate ... on 18 September, 1969

JUDGMENT Madhava Reddi, J.

1. The only question that arises for consideration in this petition for the issue of a writ of certiorari is whether the Sales Tax Appellate Tribunal has jurisdiction to dismiss an appeal filed before it under Section 31 of the Andhra Pradesh General Sales Tax Act (hereinafter referred to as the Act) for default.

2. The petitioner herein was assessed to sales tax for the year 1956-57 by the Deputy Commercial Tax Officer, Gudur, on a turnover of Rs. 63,205.21. After an unsuccessful appeal to the Assistant Commissioner for Commercial Taxes, Guntur, he preferred a further appeal to the Sales Tax Appellate Tribunal on 6th March, 1968, under Section 21 of the Sales Tax Act. On 29th June, 1968, when the appeal was posted for hearing, as the appellant and his counsel were absent, the Tribunal dismissed the appeal for default. The petition for restoration of this appeal was also dismissed on 17th April, 1969. It is not necessary to deal with the several other contentions in this writ petition in the view we are taking on the main contention raised by the learned counsel for the petitioner.


3. Any dealer objecting to an order passed or proceeding recorded by any prescribed authority under Section 19 of the Act or by a Deputy Commissioner suo motu under Sub-section (4-C) of Section 14 or under Sub-section (2) of Section 20, may prefer an appeal to the Tribunal under Section 21 of the Act. The appeal has to be filed within sixty days from the date on which the order or proceeding is served on the dealer. The Appellate Tribunal is, however, given power to condone the delay in preferring the appeal on sufficient cause being shown. The memorandum of appeal is required to be in the prescribed form and accompanied by a fee not exceeding Rs. 100. The petitioner preferred an appeal in compliance with the provisions of Sub-sections (1), (3) and (6) of Section 21 of the Act. Sub-sections (4) and (5) of Section 21 lay down as to how the Tribunal should dispose of the appeal and also as to what the powers of the Appellate Tribunal are Sub-sections (4) and (5) of Section 21 read as follows :
Section 21. (4)(a) The Appellate Tribunal may, after giving both parties to the appeal, a reasonable opportunity of being heard-
(i) confirm, reduce, enhance or annul the assessment or the penalty or both; or

(ii) set aside the assessment or the penalty, or both, and direct the assessing authority to pass a fresh order after such further inquiry as may be directed; or

(iii) pass such other orders as it may think fit:
Provided that if the appeal involves a question of law, a decision on which is pending in any proceeding before the High Court or the Supreme Court, the Appellate Tribunal may defer the hearing of the appeal before it, till such proceeding is disposed of.


21. (5) Before passing any order under Sub-section (4), the Appellate Tribunal may make such inquiry as it deems fit or remand the case to the appellate authority against whose order the appeal was preferred or to the assessing authority concerned, for an inquiry and report on any specified point or points,

4. The Tribunal is given power Under-Sections 3 and 4 of the Act to make regulations consistent with the provisions of the Act and the rules made thereunder for regulating its procedure and the disposal of its business. These regulations are required to be published in the Andhra Pradesh Gazette. Section 3 of the Act so far as it is relevant for our present purpose reads as follows :
 Section 3. (1) The State Government shall appoint an Appellate Tribunal consisting of a Chairman and two other members to exercise the functions conferred on the Appellate Tribunal by or under this Act. The Chairman shall be a judicial officer not below the rank of a District Judge and of the other two members one shall be an officer of the State Government not below the rank of a Deputy Commissioner of Commercial Taxes, and the other shall be a Chartered Accountant, or a person possessing the degree of M.Com. or B.Com. (Hons.) of any recognised University in India for at least ten years.

(4) The Appellate Tribunal shall, with the previous sanction of the State Government make regulations consistent with the provisions of this Act and the rules made thereunder, for regulating its procedure and the disposal of its business.

(5) The regulations made under Sub-section (4) shall be published in the Andhra Pradesh Gazette.


5. In exercise of these powers the Tribunal has made regulations in Government Memorandum No. 34908-B/S/57-3, Revenue, dated 24th July, 1957. Under Clause 9 of the Regulations the power to dismiss an appeal for default and for readmission of appeal so dismissed is specially vested with the Tribunal in the following words :
9. (1) After the appeal has been registered, notice of the day fixed for hearing under regulation 8 in Form 'C shall be delivered or issued by registered post to the party.    The notice shall state that if he does not appear on the day so fixed or on any other day to which the hearing may be adjourned, the appeal will be dismissed for default or disposed of on merits, ex parte.

(2)   Where an appeal, application  or  petition has been dismissed for default or disposed of ex parte,  the appellant,  applicant or petitioner may apply to the Tribunal for readmission of the appeal, application or petition; and where it is shown  to  the satisfaction  of the   Tribunal that he was prevented by sufficient cause from appearing when the appeal, application, or petition was called   on   for   hearing,   the  Tribunal  may   readmit   the appeal, application or petition on such terms as it thinks fit;

(3)   An  application   for   readmission   of   an   appeal,   application or petition dismissed for default or disposed of ex parte, shall be made within thirty days from the date of communication of the order of dismissal.

6. In purported exercise of this power, the Tribunal has dismissed the appeal preferred by the petitioner and on taking the facts and circumstances of the case into consideration refused to readmit the appeal.


7. Mr. Dasaratharama Reddi, the learned counsel for the petitioner, argues that Section 21(4) of the Act does not empower the Tribunal to dismiss an appeal, duly filed by a dealer and admitted by the Tribunal, for default. It is enjoined to dispose of the same on merits. The regulation framed by the Tribunal in exercise of its power under Sub-section (4) of Section 3 cannot clothe the Tribunal with a power to dismiss the appeal for default. The regulation is inconsistent with the provisions of the Act. It is also contended that Section 3(4) vests jurisdiction in the Tribunal to make regulations only to regulate its procedure and the disposal of its business and that Clause 9 of the Regulation is beyond the scope of the authority vested in the Tribunal in this behalf. The Regulation, therefore, is ultra vires of the powers of the Tribunal as well as inconsistent with the Act and, therefore, the Tribunal has no jurisdiction to dismiss the appeal for default. In spite of the non-appearance of the appellant and his counsel on the date of the hearing of the appeal, the Tribunal ought to have disposed of the appeal on merits. We find ourselves in entire agreement with this contention.


8. A dealer under the Andhra Pradesh General Sales Tax Act is given a right of appeal before the Appellate Tribunal under Section 21 of the Act against certain orders of the prescribed authority made on appeal under Section 19 of the Act and also against certain orders of the Deputy Commissioner. The matter of assessment of tax on the turnover of a dealer under the Andhra Pradesh General Sales Tax Act is not limited in its effect to the dealer alone. It affects the revenues of the State. The assessment of the sales tax cannot, therefore, be equated to a lis between two private individuals. As it is a matter affecting the revenue of the State the authorities constituted under the Act, including the Tribunal, are clothed with certain statutory duties under the Act and in discharge of these duties even to act suo motu and revise the assessments. The Tribunal may on being seized with a matter when an appeal is filed, is empowered even to enhance the assessment and not merely to confirm or annul the same. It is against this background that we have to judge the powers of the Appellate Tribunal enumerated under Section 21(4) of the Act. Under Sub-Section (4) of Section 21, the Appellate Tribunal may not only confirm, reduce, enhance or annul the assessment or the penalty or both but may also set aside the assessment or the penalty or both and direct the assessing authority to pass a fresh order after further enquiry. In addition to these powers under Sub-Clause (iii) of Section 21(4)(a) the Tribunal is given power to pass such further orders as it may deem fit. A reading of Sub-clauses (i) and (ii) of Section 21(4)(a) discloses that the power vested in the Tribunal relates to the merits of the assessment order and on an examination of the merits of the order under appeal, it may confirm, reduce, enhance or annul the assessment or the penalty or direct a


appeal, it may confirm, reduce, enhance or annul the assessment or the penalty or direct a fresh assessment after further enquiry. Sub-clause (iii) occurring thereafter must, in the context, be read ejusdem generis with the other two clauses. If the other two clauses require the Tribunal to examine the merits of the assessment and pass the order enumerated therein, Sub-clause (iii) must likewise refer to the passing of such order as it may think fit on examination of the merits of the assessment order. An appeal before the Appellate Tribunal may raise questions of fact and law and any decision thereon may result in the reduction of the tax or enhancement of the same. But once an appeal is before the Tribunal, the Appellate Tribunal has jurisdiction even to enhance the tax, of course, after giving a reasonable opportunity to the appellant-assessee of being heard. No sooner than the appeal is before the Tribunal the assessee is exposed to even enhancement of the tax and that is a power which is specifically vested in the Tribunal under Sub-clause (ii) of Section 21(4)(a). In fact, it is the duty of the Tribunal on an examination of a memorandum of appeal filed before it to see if the facts of the case warrant any enhancement. As already pointed out, in disposing of an appeal, the authorities under the Act do not discharge the duty of disposing of a "Us" between two private parties. Just as they are required to see that the assessee is not burdened with an amount of tax not envisaged by the Act or on the facts of the case, they are also enjoined to see that the tax legally leviable under the Act does not escape assessment by any erroneous order of the Subordinate authorities. The Tribunal, in exercise of its appellate jurisdiction, cannot evade the discharge of the statutory duty by dismissing the appeal for default on the failure of the appellant and his counsel to appear before it. After preferring the appeal,


default on the failure of the appellant and his counsel to appear before it. After preferring the appeal, the appellant may realise that far from the tax imposed by the subordinate authorities being reduced on appeal, the Appellate Tribunal may enhance it and therefore may deliberately absent himself. By such deliberate absence of the appellant and his counsel, the Appellate Tribunal cannot be divested of its jurisdiction to enhance the tax. This necessarily implies that even in the absence of the appellant and his counsel, the Tribunal is required to examine the assessment of tax and penalty on merits, irrespective of the fact whether the appellant chooses to be present or not. If under Sub-clause (iii) the Tribunal could be said to have jurisdiction to dismiss an appeal for default of appearance of the appellant and his counsel then it would be rendering nugatory the power and duty, i.e., the power to enhance vested in the Appellate Tribunal under Sub-clause (ii) of Section 21(4) (a) of the Act. Viewed in the larger context of the duty of the Appellate Tribunal to safeguard the revenue realisable under the Act and the specific power vested in it to enhance the assessment, Sub-clause (iii) cannot be read so as to clothe the Tribunal with the power to dismiss the appeal for default.


9. A similar view has been taken by the Allahabad High Court in Hindustan Metal Works v. Sales Tax Officer [1964] 15 S.T.C. 116 in the following words:
 The intention of the Legislature in enacting Section 9 of the U.P. Sales Tax Act, 1948, is to make the appellate court under the Sales Tax Act a watch-dog in the general public interest and particularly on behalf of the public revenues in so far as taxes are gathered through the instrumentality of the Sales Tax Act. The intention that the appeal once filed by the assessee should be disposed of only on its merits is clear from the language used in Section 9 which rules out the possibility of the dismissal of an appeal for default.


10. The scope of Sub-clause (iii) of Section 21(4)(a) may also be viewed from another angle. The order of the Appellate Tribunal made under Section 21(4)(a) is not final. It is subject to a revision to the High Court as provided under Section 22 of the Act. Any dealer may prefer a revision to the High Court against an order of the Appellate Tribunal on the ground that the Appellate Tribunal has either decided erroneously or failed to decide any question of law. It must have been necessarily intended by this provision that whenever a question of law arises in an appeal pending before the Tribunal, the Tribunal must decide the same. Any failure to decide that question of law by dismissing the appeal for default would be liable to be revised by the High Court under Section 22 of the Act, for Section 22 does not make an exception in cases where the appellant or his counsel do not appear. Once the High Court finds that a question of law arose before the Tribunal and the Tribunal, for whatever reason it may be, fails to decide that question of law, as envisaged by Section 22, the High Court would have to necessarily exercise its revisional jurisdiction. It cannot be said that under Sub-clause (iii) of Section 21(4)(a) the Tribunal is vested with the jurisdiction to dismiss an appeal for default and it acts according to law in so dismissing the appeal for default and yet under Section 22 of the Act, the High Court should revise that order as the Tribunal has failed to decide a question of law for non-appearance of the appellant and his counsel. If the Tribunal has got the power to dismiss an appeal for default, then such dismissal cannot be erroneous and if it is not erroneous the revisional power of the High Court could not be invoked. If Sub-clause (iii) were to be read so as to mean that the Tribunal has the power to dismiss an


(iii) were to be read so as to mean that the Tribunal has the power to dismiss an appeal for default then the High Court in exercise of its revisional jurisdiction cannot interfere with such an order. But yet the question of law arising in an appeal before the Tribunal not having been decided by the Tribunal, the High Court would be required to interfere in revision with the order of assessment. Such could not be the intention of the Legislature. The provisions of Section 21(4) of the Act which deal with the powers of the Appellate Tribunal in disposing of an appeal and Section 22 of the Act which deals with the revisional power of the High Court in respect of the orders of the Tribunal, must be read harmoniously. So read, at least in such cases, where questions of law arise in an appeal before the Tribunal, the Tribunal must be deemed to have no power to dismiss the appeal for default of appearance of the appellant for, any failure to decide the questions of law arising in the appeal, even for non-appearance of the appellant, would render the order of the Tribunal liable to be set aside on revision. In view of the wording of Section 21(4) of the Act, we are of the opinion that the power to dismiss for default cannot be said to be vested in the Appellate Tribunal even in respect of appeals in which questions of fact arise. As already pointed out, the Tribunal once seized with the jurisdiction on the admission of an appeal may even enhance the assessment or penalty which could be done only on an examination of the merits of each case. The expression similar to the one contained in Sub-clause (iii) of Section 21(4)(a), namely, "pass such orders as it may think fit" also occurring in Section 33(4) of the Income-tax Act came up for consideration before their Lordships of the Supreme Court in the Commissioner of Income-tax, Madras v. Chenniappa


of the Supreme Court in the Commissioner of Income-tax, Madras v. Chenniappa [1969] 1 S.C.W.R. 680. Grover, J., speaking for the court observed as follows :


The scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it has to dispose of an appeal by making such orders as it thinks fit on the merits. It follows from the language of Section 33(4) and in particular the use of the word 'thereon' that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear Their Lordships referring in particular to the word "thereon" in Section 33(4) held that the words " 'pass such orders as the Tribunal thinks fit' include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by Section 31 of the Act. The provisions contained in Section 66 about making a reference on questions of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default, without making any order thereon in accordance with Section 33(4). The position becomes quite simple when it is remembered that the assessee or the Commissioner of Income-tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of Section 66. So far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under Section 33(4). It follows from all this that the Appellate Tribunal is


order under Section 33(4). It follows from all this that the Appellate Tribunal is bound to give a proper decision on questions of fact as well as law which can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant....Thus looking at the substantive provisions of the Act there is no escape from the conclusion that under Section 33(4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot short-circuit the same by dismissing it for default of appearance.


11. The decision in the above case applies with equal force to the case under consideration in the writ petition. Under the Andhra Pradesh General Sales Tax Act, 1957, a reference as is contemplated by Section 66 of the Income-tax Act is not provided; instead a dealer, as already pointed out, is given a right of revision against an order of the Tribunal where the Tribunal has decided the question erroneously or where there is a failure to decide a question of law arising. There is no revision against a question of fact. Evidently, the Act contemplates the Tribunal to be a final authority on questions of fact. The proper appreciation of a question of law, in very many cases, may not be possible unless there is a final decision on a question of fact by the Tribunal. Under Sub-section (9) of Section 21 the Tribunal's order is final subject to the provisions of Section 22. Unless it is held that the Tribunal is bound to give a decision on the merits both on questions of law and fact and that it cannot dismiss an appeal for default, as observed by the Supreme Court in the Commissioner of Income-tax, Madras v. Chenniappa Mudaliar [1969] 1 S.C.W.R. 680, the right of revision provided to a dealer before the High Court may be rendered nugatory and all that the High Court in such circumstances may have to do is to hold that the Tribunal ought not to have dismissed the appeal for default and ought not have failed to dispose of the questions of law arising before it and in that view, direct the Tribunal to dispose of the matter afresh.


12. The learned Government Pleader however contended that the decision in Commissioner of Income-tax, Madras v. Chenniappa Mudaliar [1969] 1 S.C.W.R. 680 turns upon the wording of Section 33(4) of the Income-tax Act and in particular on the word "thereon" occurring therein. However, in our opinion the absence of the word "thereon" in Section 21(4) does not make any difference. The power exercisable by the Appellate Tribunal under Section 21(4) of the Andhra Pradesh Sales Tax Act is with respect to the appeal filed under Section 21 and the powers of the Appellate Tribunal enumerated in the Sub-section are with reference to the said appeal. The Tribunal may pass such order as it thinks fit only on the appeal. In the context in which Sub-clause (3) occurs, we are of the view that the powers of the Appellate Tribunal in regard to the dismissal of an appeal under Section 21(4) of the Act are analogous to the powers of the Appellate Tribunal under the Income-tax Act and does not clothe it with the power to dismiss an appeal for default.


13. In this connection, the Government Pleader relied upon a Full Bench decision of this court in Palaniswami Chetty v. Salla Muthamma (1966) 2 An. W.R. 349 in which their Lordships were considering the question whether under Rule 22(8) framed under the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Rules, 1981, which reads as follows:
 The Controller or the appellate authority deciding the dispute shall record a brief note of the evidence of the parties and witnesses who attend, and upon the evidence so recorded, and after consideration of any documentary evidence produced by the parties, a decision shall be given in accordance with justice, equity and good conscience by the Controller or appellate authority. The decision given shall be reduced to writing. If any party duly summoned to attend does not attend, the dispute may be decided ex parte", the rent Controller is empowered to dismiss an appeal for default.


14. The decision to our mind cannot be of much assistance firstly because the proceedings under the said Act bears no analogy to the assessment proceedings and the appeals preferred under the Andhra Pradesh General Sales Tax Act. Under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the dispute is entirely between a landlord and a tenant. It is a "Us" between the two parties as regards their rights and obligations arising under the special enactment and the Rent Controller is called upon to adjudicate on the rights of the parties and the Rent Controller or the appellate authority is given power to give a decision in accordance with justice, equity and good conscience. On the construction of the provisions of the said rule and the enactment, their Lordships were of the view that the appellate authority had jurisdiction to dismiss a petition or appeal for default of appearance and they also held that such a decision is a decision on the appeal. Here we are concerned with the powers of the Appellate Tribunal under the Sales Tax Act which is enjoined to see that assessments are made in accordance with the provisions of the Act in the general interest of the public and in the interests of the public revenue. That apart the wording of the rules and the scheme, the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act under which they were framed, are totally different and the object sought to be achieved by them bear no analogy to the one sought to be achieved by the Andhra Pradesh Sales Tax Act.

15. We are, therefore, clearly of the view that Section 21(4) of the Act does not authorise the Appellate Tribunal to dismiss an appeal for default of appearance of the appellant; it must dispose of the appeal on merits irrespective of the fact whether the appellant appears on the date of hearing or not.


16. The learned Government Pleader sought to justify the power of the Tribunal to dismiss an appeal also on the ground that regulation 9(1) framed under Section 3(4) of the Act by the Tribunal, authorised the Tribunal to dismiss an appeal for default. It cannot be gainsaid that any rule or regulation framed in exercise of the power vested under the Act can neither contravene the provisions of the Act nor be inconsistent therewith. A power that is vested in the Tribunal can neither be abridged nor enlarged by a regulation framed thereunder, nor can a Tribunal be exonerated by a regulation from the performance of a duty required of it under the Act. The regulation cannot travel beyond the scope of the Act. If the power to dismiss an appeal for default cannot be found to be vested in the Appellate Tribunal under Section 21(4) of the Act, the Tribunal cannot be clothed with that power under the Regulation for any such vesting of power under the Regulation would be derogatory to and inconsistent with Section 21 of the Act and as such must be struck down. In Abdul Subhan Saheb & Sons v. Mysore Sales Tax Appellate Tribunal [1965] 16 S.T.C. 17 a Bench of the Mysore High Court considering regulation 8(2) of the Appellate Tribunal Regulations, 1957, which clothed the Appellate Tribunal under the Mysore Sales Tax Act with a similar power held:
 Regulation 8(2) of the Appellate Tribunal Regulations, 1957, to the extent it purports to empower the Appellate Tribunal to dismiss an appeal before it for default of appearance of the appellant or his Advocate is ultra vires of Section 22(4) of the Mysore Sales Tax Act, 1957.


17. Section 22(4) of the Mysore Sales Tax Act also authorised the Appellate Tribunal to pass such orders thereon (appeal) as it thinks fit. Manchanda, J., in Hindustan Metal Works v. Sales Tax Officer [1964] 15 S.T.C. 116 also held that Rule 68 of the U.P. Sales Tax Rules, 1948, which empowered the appellate authority to dismiss an appeal for default, is ultra vires of Section 9 of the U.P. Sales Tax Act. With regard to this decision, the learned Government Pleader argues that the appellate authority under the U.P. Sales Tax Act was not empowered to pass such orders as it thinks fit with regard to the appeal before it. A reading of the judgment in that case discloses that the conclusion was arrived at by the learned Judge on a consideration of the entire scheme of the Act and in particular the power vested in the appellate authority to enhance the tax once an appeal is filed before it. The reasoning of the said decision accords with our view expressed above. In the decision reported in the Commissioner of Income-tax, Madras v. Chenniappa Mudaliar [1969] 1 S.C.W.R. 680 the question whether Rule 24 of the Appellate Tribunal Rules, in so far as it enables the Tribunal to dismiss an appeal for default of appearance, was ultra vires the provisions of Section 33 of the Income-tax Act, 1922, came up for consideration. Having held that under Section 33(4) the Appellate Tribunal was enjoined to decide the appeal on merits and cannot short-circuit the same for dismissing it for default of appearance the Supreme Court further held as follows :-


it is true that the Tribunal's powers in dealing with appeals are of the widest amplitude and have, in some cases, been held similar to, and identical with, the powers of an appellate court under the Civil Procedure Code. Assuming that for the aforesaid reasons the Appellate Tribunal is competent to set aside an order dismissing an appeal for default in exercise of its inherent power there are serious difficulties in upholding the validity of Rule 24. It clearly comes into conflict with Sub-section (4) of Section 33 and in the event of repugnancy between the substantive provisions of the Act and a rule it is the rule which must give way to the provisions of the Act.


18. These observations of their Lordships of the Supreme Court apply with equal force to the Sales Tax Appellate Tribunal which under Section 3(4) of the Andhra Pradesh Sales Tax Act is authorised to make regulations for regulating its procedure and disposal of its business and is not vested with the power to frame rules for carrying out the purpose of the Act.

19. It was, therefore, contended that vesting power to dismiss an appeal for default is a matter regulating the procedure before a Tribunal and also a matter concerning the disposal of the business and that Clause 9 of the Regulation is within the ambit of Section 3(4) of the Act.


20. The learned Government Pleader, however, lastly contends that the power to dismiss an appeal for default is not inconsistent or derogatory to any provision of the Act. What he urges is that the Act is silent as to what the Tribunal should do when the appellant fails to appear. Where the Act is silent, the Tribunal in exercise of its powers to regulate its own procedure and the disposal of its business under Sub-section (4) of Section 3 may properly frame a regulation authorising the dismissal of an appeal for default. We arc unable to agree with this contention. Where a statute provides a right of appeal to a particular Tribunal constituted under the Act, which has no inherent jurisdiction, the power to make a particular order must be found within the four corners of the Act. The decision on an appeal is not a matter of procedure. The manner in which that decision should be arrived at and the steps that have to be adopted before that decision is rendered would be a matter of procedure but not the decision itself. While the Tribunal could regulate the procedure for the disposal of the appeals it could neither enlarge nor abridge the scope of the order which a Tribunal could make with regard to the final disposal of the appeal itself. The disposal of the appeal is not a matter of procedure but one which relates to the power of the Tribunal. In exercise of the authority vested under Section 3(4) of the Act, the Tribunal could not in the guise of regulating its procedure enlarge its powers and clothe itself with the power which it did not have under the Act. Much less could the power to dismiss for default be brought within the power of the Tribunal to frame regulations for the disposal of its business. What is envisaged by the use of the expression "disposal of its business" is to authorise the Tribunal to make regulations in regard to the place of hearing of appeals, the time of hearing the appeals, the order in which several appeals before it would be taken up and the


time of hearing the appeals, the order in which several appeals before it would be taken up and the like.