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C.K. Chandrasekhariah and anr. Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 786 of 1961
Judge
Reported inAIR1963Mys232
ActsMysore (Personal and Miscellaneous) Inams Abolition Act, 1954 - Sections 4 to 9, 9(A), 10, 32; Mysore (Personal and Miscellaneous) Inams Abolition Rules, 1956 - Rule 7; Mysore Land Revenue Code, 1888 - Sections 201; Oaths Act, 1873 - Sections 5 and 13
AppellantC.K. Chandrasekhariah and anr.
RespondentState of Mysore and ors.
Appellant AdvocateK.R. Gopivallabha Iyengar, Adv.
Respondent AdvocateS. Nabhirajiah, Adv. for Respondent 3
Excerpt:
- code of civil procedure, 1908. order 21 rule 37 to 40: [a.s. pachhapure, j] issue of warrant against the judgment debtor - procedure to be followed challenge to order of executing court directing the arrest of the judgment debtor without show cause notice - held, to issue warrant of arrest against the judgment debtor, the court has to adopt the procedure prescribed under the provision of order 21 rule 37 to 40 of c.p.c., it is necessary to note that, when the personal liability of an individual is to be taken away under an order directing the arrest, it is necessary in law to issue a show cause notice. there must be material to prove that the judgment debtor is avoiding the payment despite the fact that he has sufficient means to pay and then the court has to pass appropriate.....somnath iyer, j.1. three lands bearing survey nos. 43, 69 and 78 situate in the inam village of itkalapura in bangalore district which vested in the government under the provisions of the , 1954 form the subject-matter of this writ petition. after the inam village vested in the government under the provisions of section 3 of the act, the two petitioners who were the inamdars of that village made an application to the deputy commissioner functioning under the act, under section 9, for an order that they should be registered as the occupants of those three lands. a tahsildar made a report to the deputy commissioner in the matter under rule 7 of the mysore (personal and miscellaneous) inams abolition rules, 1956, and, on the basis of that report, the deputy commissioner declined to register.....
Judgment:

Somnath Iyer, J.

1. Three lands bearing survey Nos. 43, 69 and 78 situate in the inam village of Itkalapura in Bangalore District which vested in the Government under the provisions of the , 1954 form the subject-matter of this writ petition. After the inam village vested in the Government under the provisions of Section 3 of the Act, the two petitioners who were the inamdars of that village made an application to the Deputy Commissioner functioning under the Act, under Section 9, for an order that they should be registered as the occupants of those three lands. A Tahsildar made a report to the Deputy Commissioner in the matter under Rule 7 of the Mysore (Personal and Miscellaneous) Inams Abolition Rules, 1956, and, on the basis of that report, the Deputy Commissioner declined to register the petitioners as the occupants of those lands, but instead came to the conclusion that the 3rd respondent was a quasi-permanent tenant of two of those lands, and, a tenant of the third for the purposes of Section 9-A of the Act. From that decision of the Deputy Commissioner, an appeal was preferred to the Revenue Appellate Tribunal under Section 28 of the Act and that appeal was dismissed.

2. In this writ petition which is directed against those orders made by the Deputy Commissioner and the Revenue Appellate Tribunal, many submissions have been made before us. The first of them is that there has been no proper determination of the claim made by the petitioners by the Deputy Commissioner who did not, according to the petitioners, make an examination of the nature and history of the lands claimed by the petitioners. The second is that the Deputy Commissioner did not set out the reasons for the determination he made that the petitioner's claim cannot succeed. The third is that the Revenue Appellate Tribunal misread the evidence recorded in the case and misunderstood the law.

3. The claim made by the petitioners in the case for an order that they should be registered as the occupants of the lands was made under Section 9 of the Mysore (Personal and Miscellaneous) Inams Abolition Act. That section vested in every inamdar the right to be registered as an occupant of all lands other than those enumerated in clauses (i), (ii) and (iii) of sub-section (1) of that section. Section 10 of the Act empowers the Deputy Commissioner to examine the history and the nature of the land in respect of which a claim is made under any of the 7 sections referred to therein including Section 9, and, the provision under which the Tahsildar made an enquiry into the application presented by the petitioners was Rule 7 of the Rules. It should be mention- ed here that respondent 3 in his turn made a claim that he was a quasi-permanent tenant of all the three lands and therefore entitled to be registered as such, under the provisions of Section 6 of the Act. Although the Deputy Commissioner did not find that respondent 3 was a quasi-permanent tenant of survey No. 43, he came to the conclusion that he was a quasi-permanent tenant of survey Nos. 68 and 79 and a tenant of S. No. 43 and therefore entitled to be registered as such respectively, under the provisions of Sections 6 and 9-A of the Act.

The relevant portions of Rule 7 under which the Tahsildar made a report in this case on which the Deputy Commissioner acted, reads:

7. (1) 'For the purpose of deciding claims under Section 10, a kadim 'tenant, a permanent tenant, a quasi-permanent tenant, the holder of a minor inam or inamdar claiming to be registered as an occupant under Section 4, 5, 6, 7 or 9, as the case may be, or the holder of a minor inam claiming to be registered as holder under Section 8 or any person claiming to be continued as a tenant under Section 9-A shall within two months from the date of vesting apply to the Amildar.

(5) The notice of the date on which an enquiry will be held in respect of the application shall be served on the parties to the application, and shall be published by affixture on the notice board of the office of the Amildar. Service of the notice shall be effected by giving or tendering the notice to the person concerned or if it cannot be so effected by sending the notice to him by registered post.

(6) The Amildar shall hold an enquiry at the inam village or the village in which the inam is situated and shall make a report, to the Deputy Commissioner.

(7) On receipt of a report from the Amildar under sub-rule (6), the Deputy Commissioner shall examine the nature and history of the lands in question and decide in respect of which lands the claims of the applicants should be allowed.' That it was under the provisions of sub-rule (6) of Rule 7 that the Tahsildar in this case purported to make an enquiry is sufficiently plain. But it is submitted that the enquiry did not conform to the requirement of Section 32 of the Act which reads:

32. 'Enquiries by the Deputy Commissioner--

(1) The Deputy Commissioner may by general or special order authorise any officer not below the rank of an Amildar subordinate to him to hold enquiries on his behalf under this Act.

(2) In respect of every enquiry under this Act by the Deputy Commissioner or any officer authorised under sub-section (1), the provisions of the Land Revenue Code, relating to formal enquiry shall apply as if such enquiry is a formal enquiry under the said Code'.

4. Although it is clear that Section 10 of the Act does not enjoin a formal enquiry by the Deputy Commissioner, there can be little doubt that the examination of the history and nature of the land which the Deputy Commissioner is required to make under the provisions of that section involves the holding of a formal enquiry by some one as can be seen from the provisions of Rule 7 which provides for the holding of that enquiry, and, by Section 32 which says that every enquiry which is required to be held under the Act shall be a formal enquiry conducted in manner specified in the Mysore Land Revenue Code. What should however be noticed is that Rule 7 requires a formal enquiry should be made by an Amildar although the Act does not say so. What the Act says in its 10th section is that it is the duty of the Deputy Commissioner when a claim is made under Sections 4, 5, 6, 7, 8, 9 and 9-A of the Act, to examine the history and nature of the land which is the subject matter of the claim and to determine that claim according to law.

Although the Act did not state the procedure to be adopted by the Deputy Commissioner for the purpose of the determination to be made Under Section 10, that that procedure is what is prescribed by Rule 7 is more than clear. That rule, in my opinion, is what is clearly authorised by sub-section (1) of Section 38 of the Act which reads:

38. 'Power to make rules-- (1) The Government may, subject to the condition of previous publication, make rules to carry out the purposes of this Act''.

If the determination by the Deputy Commissioner of a claim made under Sections 4 to 9-A is one of the purposes of the Act and if Section 10 itself did not prescribe the procedure by which that determination should be made, it is clear that it was within the power of the Government to make rules to carry out that purpose of the Act. If for that purpose the Government made a rule authorising an enquiry to be held by the Amildar and for the preparation of a report which should form the basis of the determination to be made by the Deputy Commissioner under Section 10, there could be very little difficulty in coming to the conclusion that Rule 7 was a rule properly made under Section 38(1) of the Act and that the report of the enquiry made by an Amildar under Rule 7 should be the starting point for the examination of the history and nature of the land required to be made by Section 10.

In that view of the matter if the Tahsildar who made the enquiry in this case made an enquiry in conformity with the requirement of Rule 7, the report which the Tahsildar prepared after the completion of that enquiry would have been the material on the basis of which the Deputy Commissioner should have made the determination under Section 10 after an examination of the history and nature of the land to which the claim related.

5. That an Amildar referred to in Rule 7 who is now known as a Tahsildar could therefore make an enquiry under Rule 7 in respect of the application presented by the inamdars under Section 9 and by the tenant under Section 6 of the Act being abundantly clear, the question is whether as contended on behalf of the petitioners, that enquiry was not a formal enquiry enjoined by Section 32 and whether, even if that enquiry could be considered as a formal enquiry, it was not made in accordance with the provisions of the Land Revenue Code prescribing the procedure for the conduct of that enquiry? Although Rule 7 does not say that the enquiry to be made by the Amildar should be a formal enquiry, that that should be a formal enquiry is more than clear from Section 32 of the Act which reads:

32. 'Enquiries by the Deputy Commissioner --

(1) The Deputy Commissioner may by general or special order authorise any officer not below the rank of an Amildar subordinate to him to hold enquiries on his behalf under this Act.

(2) In respect of every enquiry under this Act by the Deputy Commissioner or any officer authorised under sub-section (1), the provisions of the Land Revenue Code, relating to formal enquiry shall apply as if such enquiry is a, formal enquiry under the said Code'.

Although it may not be possible to say that the enquiry made in this case was an enquiry made by the Deputy Commissioner or by an officer authorised by him to make the enquiry, it is I think clear that the provisions of Section 32 are equally applicable to an enquiry made by an Amildar under Rule 7 notwithstanding the fact that it was not made by the Deputy Commissioner himself or by a person authorised by the Deputy Commissioner to make that enquiry. It seems to me that the true construction to be placed on Section 32 is that even an enquiry which is directed by Rule 7 should be a formal enquiry and the reason why I come to that conclusion is that if an enquiry made by a Deputy Commissioner should be a formal enquiry if he made an enquiry under Section 10 himself, there would be small reason for thinking that if the Government made a rule that the Deputy Commissioner need not make an enquiry himself but that an Amildar could, the enquiry need not be a formal enquiry.

In my opinion, the enquiry by the Amildar under Rule 7 has to be treated as one of the enquiries to which Section 32 refers, and, that being so, although the expression 'formal enquiry' is not to be found in Rule 7, that enquiry should be a formal enquiry as enjoined by Section 32. Now, it is clear from sub-section (2) of that section that, that formal enquiry should be made in accordance with the provisions of the Mysore Land Revenue Code. The relevant provision of the Mysore Land Revenue Code is Section 201 which reads:

201. 'In all formal inquiries, the evidence shall be taken down in full, in writing, in Kanarese, by, or in the presence and hearing and under the personal superintendence and direction of, the officer making the investigation or inquiry, and shall be signed by him.

In cases in which the evidence is not taken down in full in writing by the officer making the inquiry, he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes, and such memorandum shall be written and signed by such officer with his own hand, and shall form part of the record.

If such officer is prevented from making a memorandum as above required, he shall record the reason of his inability to do so.

When the evidence is given in English, such officer may take it down in that language with his own hand, and an authenticated translation of the same in Kanarese shall be made and shall form part of the record'.

It is clear from the provisions of this section that in the formal inquiry which the Tahsildar made in this case it was his duty to take down evidence in full in writing in the Kannada language.

6. Although it is not disputed that some witnesses were examined during the enquiry conducted by the Tahsildar, and, that the evidence given by them was taken down by some one what is contended is that that evidence was not in every case taken down in the Kannada language, nor by the Tahsildar in his own hand and that therefore there has been a transgression of the provisions of the first paragraph of Section 201. It is also urged that since no oath or affirmation was administered before the witnesses commenced giving evidence, there has also been a transgression of the provisions of Section 5 of the Indian Oaths Act (Central Act X of 1873) which after its extension to the former State of Mysore under the Part B States Laws Act with effect from 1st April 1951, is continuing to be in force in the new State of Mysore after it was created. What is also urged is that the petitioners were not afforded the opportunity to cross-examine the witnesses who were examined on behalf of respondent 3. These are the infirmities which, according to the petitioners, vitiate the enquiry made by the Tahsildar.

7. In regard to the criticism that no oath or affirmation was administered to any of the witnesses whose evidence was recorded during the enquiry, it seems to me that there is very little that can be said against it. Sections 4 and 5 of the Indian Oaths Act fully support the submission made before us on behalf of the petitioners. Section 4 enumerates the courts and persons authorised to administer oaths and affirmations. The relevant part of Section 5 which is of equal materiality reads :

5. 'Oaths or affirmations to be made by witnesses:

Oaths or affirmations shall be made by the following persons : --

(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence; x x x '

Since the Amildar was a person who was authorised under Section 32 read with Rule 7 of the Mysore (Personal and Miscellaneous) Inams Abolition Rules, 1956 to receive evidence, he was one of the persons authorised to administer oaths and affirmations as provided by Section 4. Likewise for the same reason we should, in my opinion, say that the witnesses who gave evidence before the Tahsildar were witnesses who were under a duty to make an oath or affirmation under Section 5 (a)of the Indian Oaths Act.

Although Section 201 of the Mysore Land Revenue Code does not say that evidence taken by a person who makes a formal enquiry should be recorded only after the administration of the oath or affirmation of the person giving the evidence, there can be very little doubt that evidence can be recorded by the person making the formal enquiry only after the affirmation or oath was administered to the witness whose evidence is recorded. The Indian Oaths Act being a law made for the consolidation of the law relating to judicial oaths, affirmations and declarations and therefore being a law on the topic of evidence within the legislative field of the Legislature which made that law, that law would be the law governing the recording of evidence even in a formal enquiry made under the provisions of the Mysore Land Revenue Code. That being the position, the only method by which evidence could be recorded in a formal enquiry under Section 201 is that enjoined by Section 5 of the Indian Oaths Act.

8. Although at one stage Mr. Nabhirajiah made a submission that a person whose evidence is recorded under Section 201 was not a witness to whom an oath or affirmation must necessarily be administered under Section 5 of the Indian Oaths Act, he had to admit that the evidence recorded under Section 201 of Mysore Land Revenue Code is the evidence of no other than a witness to whom there is an express reference in Sections 196(1) and 200 of the Mysore Land Revenue Code. There can be, in my opinion, little doubt that a person whose evidence is recorded under Section 201, whether he voluntarily gives evidence or whether he is summoned to give evidence, is the evidence of a witness, and the evidence of a witness cannot but be recorded except in the manner prescribed by Section 5 of the Indian Oaths Act notwithstanding there being no express provision to that effect in the Mysore Land Revenue Code. That is also what, in my opinion, we should say notwithstanding the provisions of Section 196 (3) which reads :

'and all persons summoned to attend shall be bound to state the truth upon any subject respecting which they are examined or make statements, and to produce such documents and other things as may be required'.

9. This was therefore a case in which it was the duty of the Tahsildar, who had the authority to administer oaths and affirmations, to administer such oath or affirmation to the witness whose evidence he recorded in the enquiry he conducted under Rule 7 of the Mysore (Personal and Miscellaneous) Inam Abolition Rules, 1956. But, to say that, is not the same thing as saying that Mr. Gopi-vallabha Iyengar is right in contending that the evidence recorded in contravention of the Indian Oaths Act was not admissible in evidence or could not have been looked into by the Deputy Commissioner. The complete answer to the submission made by Mr. Gopivallabha lyengar is what is found in Section 13 of the Indian Oaths Act which reads :

13. 'Proceeding and evidence not invalidated by omission of oath or irregularity.

No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.'

As I understand this section, this section speaks of three matters. The first is the omission on the part of the Court or person recording the evidence to administer an oath or affirmation. The second is the substitution of an oath for affirmation or an affirmation for an oath. The third is an irregularity in the form in which either the oath or the affirmation as the case may be, is administered. Having referred to these three kinds of disobedience to the provisions of the Indian Oaths Act, what Section 13 of that Act. proceeds to state is that none of those acts of disobedience to the provisions of the Act can be depended upon in support of a contention that the evidence recorded in such disobedience is inadmissible in evidence. This case in which the Tahsildar neither administered an oath nor an affirmation is one which clearly falls within the first part of Section 13 which completely cures the defect in the recording of the evidence by the Tahsildar.

I do not find it possible to accede to a different kind of interpretation which I was asked to place upon the provisions of Section 13 by Mr. Gopivallabha Iyengar. He asked us to take the view that a case in which there was a complete omission on the part of the authority which recorded the evidence to administer an oath or affirmation, did not fall within the orbit of Section 13 and that only those cases which fell within the field of that section were cases in which there was an omission to administer the oath or affirmation in the form in which that oath or affirmation had to be administered. Support for that construction which Mr. Iyengar suggested was sought to be derived from the expression 'and no irregularity whatever in the form in which any one of them is administered' occurring in Section 13.

In a copy of the authorised publication by the former State of Mysore which he extended to that State the provisions of the Indian Oaths Act which Mr. Gopivallabha Iyengar produced before us, a comma is to be found in this expression after the expression 'no irregularity whatever', and on the basis of this punctuation mark, the argument advanced was that the words 'in the form in which any one of them is administered' not only govern cases in which an irregularity had been committed, but also cases in which there was an omission to administer an oath or affirmation or the substitution of an oath for an affirmation and an affirmation for an oath. But it is to be seen from the authorised publication of the Indian Oaths Act by the Central Government that the punctuation mark found in the Mysore publication is what does not exist, and that the only two punctuation marks in the relevant part of Section 13 are those which occur after the words 'No omission to take any oath or make any affirmation' and 'no substitution of any one for any other of them'.

In my opinion, the proper way to understand Section 13 is to read it as curing three kinds of disobedience to the provisions of the Act. The first of them is a disobedience in the form of the omission to administer either an oath or affirmation. The second is a disobedience by substituting an oath where an affirmation had to be administered. The third is a disobedience committed by the adoption of a wrong form of an oath or affirmation when such oath or affirmation is in fact administered and there has been no omission to administer it. Each one of these categories of disobedience is a distinct category by itself, and Mr. Iyengar is not right in asking us to say that the third category has some kind of association with the first two. I have no doubt that the third category refers only to cases in which there has been an administration of oath or affirmation but that oath or affirmation was not administered in the form prescribed for that purpose. Cases in which there has been a complete omission to administer an oath or affirmation are also cases falling within Section 13 and therefore cured by its provision.

10. That that is the true meaning of Section 13 is what is clear from a long line of cases out or which it would be necessary to refer only to two. The first of them is a pronouncement by their Lordships of the Privy Council in Mohamed Sugal Esa v. The King, AIR 1946 PC 3. What was decided in that case was that Section 13 had the effect of curing a defect arising out of a deliberate omission to administer an oath or affirmation on the part of a Court recording evidence, there being no reason to think that that section was applicable only to cases where the omission to administer the oath occurred per incuriam, that is, for want of care. The next case to be referred to is a decision of the former High Court of Mysore in Lakshminarayana Setty v. The Government of Mysore, 15 Mys LJ 217 in the year 1937 which as it were fully anticipated the view of their Lordships of the Privy Council, a decade before that pronouncement was made. In my opinion, we should uphold the submission made by Mr. Gopivallabha Iyengar that the Tahsildar could not have dispensed with the administration of an oath or affirmation when he recorded the evidence of witnesses in the enquiry which he made. We must, in my opinion, nevertheless, negative his submission that the omission to administer such oath or affirmation made the evidence recorded by him inadmissible.

11. But the fact that we can come to that conclusion does not mean that this writ petition cannot succeed. Mr. Iyengar has pointed out to us many other infirmities in the enquiry which did not stand cured. The first of them is that no evidence was recorded by the Tahsildar in his writing. What he did was to get the evidence recorded by some kind of an amanuensis. That he could not do that except in cases falling within second paragraph of Section 201 of the Mysore Land Revenue Code, is, I think, irrefutable. Now, paragraph 1 of that section requires the recording of the evidence in full and in writing in the Kannada language. Although that paragraph does not say that the recording of the evidence under that paragraph in that way has to be made by the officer who makes the enquiry, that that is how the evidence should be recorded is what is clear from the second paragraph of that section.

The opening words of that second paragraph are 'In cases in which the evidence is not taken down in full in writing by the officer making the inquiry'. Now the first paragraph of this section says that evidence shall be taken down in full and in the second paragraph there is something which at first sight appears to contradict what is stated in the first paragraph. What that second paragraph states is that in cases in which the evidence is not taken down in full in writing by the officer making the inquiry, he may make a memorandum of the substance of the evidence given by the witnesses. The question is whether the second paragraph which authorises the recording of the substance of the evidence of the witnesses is repugnant to the provisions of the first paragraph which directs the recording of the evidence in full. But when these two paragraphs of Section 201 are properly understood, it becomes clear that there is really no contradiction between those two paragraphs, and even if there is any such contradiction, that contradiction can be resolved in the following way: How, in my opinion, we should understand those two paragraphs I shall explain.

The requirement of the first paragraph is that in all cases in which evidence is recorded in a formal enquiry, that evidence shall be recorded in full and in writing and in the Kannada language. That that record must needs be made by whomsoever it is made, is, I think, the clear meaning of that paragraph. Although the first paragraph does not say that the recording of the evidence in full should be made by the officer holding the enquiry, that is I think the intendment of that paragraph. Paragraph 2 is an exception only in one respect to what is contained in paragraph 1. What it authorises is the recording of the evidence in full by some one deputed for that purpose by the officer making the enquiry in cases in which he is not able to record evidence himself, but enjoining at the same time the preparation of a memorandum by the officer making the enquiry, of the substance of the evidence recorded by that other person. In other words, in all cases in which a formal enquiry is made, the officer making the enquiry must himself record the evidence in full in his own writing. But in cases in which there are reasons why he cannot record the evidence himself in that way, it would be permissible for him to get the evidence recorded by some one else provided he himself makes a memorandum of the evidence given by the witness at such enquiry.

The requirement that he should make such memorandum has for its aim the elucidation of ambiguities or mistakes which may be contained either in the memorandum prepared by the officer or in the recording of the evidence by his surrogate. That that is the correct way of interpreting these two paragraphs of Section 201 is perfectly manifest from the third paragraph which dispenses with the preparation of a memorandum by the officer making the enquiry under the second paragraph in extraordinary cases. Although that expression is not to be found in that paragraph, what the third paragraph says is that if an officer is prevented from making the memorandum prescribed by the second paragraph he shall record the reason for his inability to do so. What emerges from the three paragraphs of Section 201 can therefore be briefly summarised.

(a) Evidence in a formal enquiry must be recorded in full in the writing of the person making the enquiry;

(b) If he cannot for any acceptable reason record evidence himself and in his own writing, he may get the recording of the evidence done by a person authorised by him;

(c) When the officer conducting the enquiry gets the evidence recorded by another, it is his duty to make a memorandum containing the substance of the evidence recorded in the enquiry;

(d) In exceptional cases, the preparation of the memorandum of substance of the evidence directed by paragraph 2 of Section 201 may be dispensed with for reasons to be recorded in writing;

(e) Whether a memorandum of the substance of the evidence is or is not made by the officer making the enquiry, what is indispensable is that either the officer making the enquiry or his deputy must record the evidence in writing in full in the Kannada language and in the presence of the officer making the enquiry.

12. There can be no doubt that in this case some of these requirements of Section 201 were disregarded. The first of them is that the Tahsildar who made the enquiry did not record the evidence in his own hand. The second is that when he deputed some one else to record the evidence, he did not make a memorandum of the substance of the evidence given by the witnesses as enjoined by paragraph 2 of Section 201. The third is he did not state that there were any reasons for dispensing with the preparation of that memorandum. The next is that not all the evidence recorded during the enquiry by the deputy of the Tahsildar, was recorded in the Kannada language, portions of which were recorded in the English language. Although it may be possible to take the view that the recording of some of the portions of the evidence in the English language did not amount to a disobedience of a mandatory part of Section 201, what cannot be defended is the omission on the part of the enquiring officer to record the evidence in his own writing when the recording of the evidence by his deputy was not accompanied by a preparation of a memorandum of the substance of the evidence given by the witnesses.

13. There is something more to be said about this enquiry. What the Tahsildar did when the evidence of the witnesses was recorded was to get that evidence recorded by some one without affording an opportunity to the adversary to cross-examine the witness. The result was that the evidence given by the petitioners' witnesses was not subjected to cross-examination by respondent 3 and that given on behalf of respondent 3 was not subjected to cross-examination on behalf of the petitioners. Although Section 201 does not state in so many words that when evidence is recorded under its provisions the adversary should be afforded the opportunity to cross-examine the witness giving such evidence, that that opportunity should be made available is, I think, what is plainly implicit in that section. If Section 201 authorises the recording of evidence, it means that evidence should be recorded in the way in which it is ordinarily recorded viz., that first there should be the examination-in-chief and then the cross-examination followed up by the re-examination, if any. Any other view would make the, enquiry enjoined by Rule 7 of the Mysore (Personal and Miscellaneous) Inams Abolition Rules, 1956 unmeaning and futile.

14. The discussion of the enquiry made by the Tahsildar so far has been of the manner of the enquiry by the Tahsildar. If it transpires as it undoubtedly does that that enquiry was not in accordance with law, it follows that the report trade by the Tahsildar which was not made after an enquiry as required by law, was not a report on the basis of which the Deputy Commissioner could have made any determination under Section 10 of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954. If as enjoined by Rule 7 of the Mysore (Personal and Miscellaneous) Inams Abolition Rules, 1956 the first step to be taken in the adjudication of a claim under Sections 4 to 9-A of the Act is the holding of a formal enquiry in accordance with the provisions of the Mysore Land Revenue Code and if that step has been disregarded in this case, everything else done by the Deputy Commissioner must necessarily fall to the ground.

15. There are also other reasons why we should come to the conclusion that neither the order made by the Deputy Commissioner nor that made by the Revenue Appellate Tribunal can be defended. The Deputy Commissioner, by what I consider to be an extremely perfunctory order, dismissed the claim made by the petitioners, and, recognised that made by respondent 3. The question which the Deputy Commissioner had to decide after an examination of the history and nature of the lands was whether as contended by the inamdars they were entitled to be registered as the occupants of the three lands, or, whether respondent 3 was entitled to be registered as claimed by him. For the adjudication which he had to make on that question, the Deputy Commissioner had to consider whether the claim of the inamdars to the lands was established or whether respondent 3 had established by production of sufficient evidence his contention that he was a quasi-permanent tenant.

In a case like this where the Deputy Commissioner is constituted a special tribunal for the adjudication of a claim arising under the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, the adjudication made by him should be as complete and full as an adjudication made by a Civil Court whose jurisdiction in regard to such adjudication under the Act is no longer exercisable. If the Deputy Commissioner to that extent takes the place of the Civil Court, he should make the investigation into the matter arising before him in the same careful and thorough way in which the civil Court would have made that investigation. His order should set out the pleadings of the parties, the issues arising out of those pleadings, the evidence produced on those issues and the reasons for the conclusions reached by the Deputy Commissioner. The Deputy Commissioner appears to have thought that all that was necessary for him to do was to merely refer to the report of the Tahsildar and express his own conclusions on the sustainability or otherwise of the claim made before him.

Indeed, in the order made by the Deputy Commissioner in this case, it is not possible to understand why the Deputy Commissioner came to the conclusion that the petitioners were not entitled to be registered as occupants, or, why respondent 3 was so entitled. There is no discussion of any of the questions which arose before him, nor is there any reference to the evidence produced during the enquiry conducted by the Tahsildar. What is found is an extremely brief and unintelligible statement that the petitioners have not established their case and that respondent 3 has. Surely, this is not a determination which is enjoined by Section 10 of the Act. A determination under that section should be a determination made in the same way as a civil Court would have made that determination if it had made it.

16. What the Tribunal did in the appeal preferred from the decision of the Deputy Commissioner is no better. What it did in the first instance was to entirely misunderstand the evidence in the case. In para 10 of its order, it made a statement that the petitioners had admitted the claim of respondent 3. Mr. Nabhairajiah appearing on behalf of respondent 3 had to admit that that was a clear misstatement. Mr. Gopivallabha Iyengar has pointed out to us that far from admitting the claim of respondent 3, that claim was repudiated in unmistakable language by the petitioners at every stage. The mistaken statement to the contrary made by the Tribunal is perhaps attributable to an imperfect understanding of a statement of the petitioners recorded at the bottom of the statement made by respondent 3 at the enquiry conducted by the Tahsildar, in which what the petitioners did was to concede the claim of respondent 3 in regard to lands other than those which the petitioners were claiming for themselves. What the Tribunal did was to misunderstand that part of the statement of the petitioners and to think that by that statement the petitioners conceded the claim even to the three lands which were claimed by them.

17. If this was the misunderstanding of the evidence in the case by the Tribunal, it is seen from para 26 of its order that it also misunderstood the law in the same measure. In that part of its order, the Tribunal thought that for the purpose of claiming protection of clause (iii) of Section 2 (14) of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954, it was necessary for the petitioners to produce a contract in writing that the land was put in possession of respondent 3 for raising a casuarina plantation. It is clear that the view taken by the Tribunal that clause (iii) of Section 2 (14) applied only to cases where there was an agreement in writing under which a person was put in possession of the land for raising a casuarina plantation reads into that clause words which are not contained therein.

18. This is therefore a case in which the impugned orders of the Deputy Commissioner and the Revenue Appellate Tribunal have to be quashed. An order is made accordingly. It is needless to add that the enquiry made by the Tahsildar in contravention of a statutory provision cannot also be allowed to remain outstanding. That enquiry is also quashed. But what the concerned Tahsildar should now do is to make a formal enquiry as enjoined by Rule 7 of the Mysore (Personal and Miscellaneous) Inams Abolition Rules, 1956 according to law into the claims made by the petitioners and respondent 3, and, then to forward the report made by him to the Deputy Commissioner. It would then be for the Deputy Commissioner to examine as indicated in this order, the history and nature of the lands and to make a proper determination under the provisions of Section 10 of the Act. Both parties have no objection to a direction being issued to the Tahsildar to permit both parties to produce all such evidence as they wish to produce before him. That direction is issued as prayed for.

19. Mr. Iyengar says that there are many other observations made by the Tribunal in its order the correctness of which is open to serious criticism. All that we should, in my opinion, say is that the Deputy Commissioner should now make his own determination under Section 10 on the merits of the case without depending to any extent whatsoever on anything which either he or the Tribunal said in the orders which have been quashed. All questions arising in this case are left open to be adjudicated upon by the Deputy Commissioner independently on their own merits.

20. In the circumstances, there will be no order as to costs.

Mir Iqbal Husain,, J.

21. I agree.


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