Holding

The cancellation of the patta granted to the appellant was illegal, the subsequent grant to the respondents was also invalid, and the suit for possession is maintainable; the appeal is not abated and the decree of the trial court is restored.

Summary

The Rajasthan Government’s Mandi Committee allotted two plots to Beharilal in 1953, issued a patta and delivered possession in 1954. After the patta was cancelled in 1956, the same plots were re‑allotted to Ram Gopal (husband of Bhuri Devi) and possession was handed over to him. Criminal proceedings under S. 145 Cr.P.C. were later terminated, and the High Court permitted Beharilal to file a civil suit for possession. The trial court and a single judge upheld that the cancellation of Beharilal’s patta was illegal and that he remained in possession; the Division Bench reversed, holding the patta void for non‑compliance with Article 299 of the Constitution. The Supreme Court examined (1) whether the appeal was abated by the death of the first respondent, (2) whether non‑execution of the patta per Article 299 voids the grant, (3) whether the non‑joinder of the Mandi Committee and Government vitiated the suit, and (4) whether the suit for possession was maintainable despite the six‑month limitation. It held that the appeal was not abated, that the patta, though not executed strictly per Article 299, was valid because it complied with the duly approved Rules, that the non‑joinder did not invalidate the suit, and that the suit was effectively a suit under S. 6 of the Specific Relief Act. Consequently, the cancellation of the patta was illegal, the grant to the respondents invalid, and the decree for possession in favour of the appellant was restored.

Issues considered

Whether the appeal abated due to the death of the first respondent without substitution of legal representatives.
Whether failure to execute the patta in conformity with Article 299(1) of the Constitution renders the grant void.
Whether the non‑joinder of the Mandi Committee and Government as parties vitiates the suit for possession.
Whether a suit for possession filed after the expiry of six months under Section 6 of the Specific Relief Act is maintainable given preceding criminal proceedings.
Whether a decree for possession can be granted in favour of the appellant.

Legislation cited

Code of Civil Procedure, 1908s. Order 22 Rule 1, s. Order I Rule 13, s. Section 145, s. Section 80
Code of Criminal Procedure, 1973s. Section 145
Constitution of Indias. Article 299
Specific Relief Act, 1963s. Section 6

Subjects

PattaArticle 299Mandi CommitteePossession suitSpecific Relief ActNon‑joinder of partiesAppeal abatementLand allotmentGovernment contractCivil Procedure Code

Judgment

BEHARILAL AND ANR. A
v.
SMT. BHURI DEVI AND ORS.

DECEMBER 5, 1996

[K. RAMASWAMY AND K. VENKATASWAMI, JJ.] B

Mandi Committee-Constitution for sale of agricultural
produc~Property acquired by Government-Plot allotted to appellants-On
payment of consideration by Appellants Patta alld possession granted to
him-Appellants raised constmction thereon-Subsequently Patta granted to C
him cancelled and allotment made to respondents-Held cancellation of patta
granted to appellants and allotment of same in favour respondent was bad ill
law.

Civil Procedure Code, 1908 :
D
Order 22-Rule <f-Appeal-Abatement of-Failure to bring legal rep-
resentatives oil record-Appeal against allotment of patta-Death of original
al/ottee-His estate represented by his widow and daughtel'-()n demise of
widow her daughter being already on record represented the estate of her
mother and father-Held in such circumstances appeal was not abated.
E
Order I Rule 13--Failure to implead necessary party-Appellant
granted patta of /and-Subsequently patta cancelled and granted in favour of
respondents-Suit filed by appellant-Omission to implead the Government
or Mandi Committee as a co-defendant-Held not vitiated by Order 1 Rule
13-Held suit need not be dismissed for non-joinder.
F
U.P. Awas Evam Vikas Parishad v. Gyan Devi [1995] 2 SCC 326,
referred to.

Constitution of India, 1950 : Alticle 299.

Land-Grant of patt<>-Failure to comply with provisions of Article G
299-Effect of-Agriculture Produce Committe~Al/otment of land
by-Rules made for grant of patta-Tehsi/dar and Chairman of Committee
authorised to grant patta-Grant ofpatta after receipt of consideratioit-Gran-
tee put in possession-Cancellation of patta-He/d invalid-Held though the
contract was not executed strictly in conformity with Article 299( 1) of the H
555
556 SUPREME COURT REPORTS [1996) SUPP. 9 S.C.R.
A Constitution but it was in conformity with the Rules approved by the
Rajpramukh-The co11tract was not voi(}-The possession delivered to the
appellant is valid in law.

Nair Service Society Ltd. v. Rev. Father K.C. Alexander & Ors., [1968)
3 SCR 163; Chatturbhuj Vithaldas Jasani v. Moreshwar, Parashram & Ors.,
B [1954] SCC 817; Mis. Davecos Gtllments Factory v. State of Rajastha11, AIR
(1971) SC 141; M. Mohamma v. Union of India, AIR (1982) Born. 443;
Union of India v. A.L. Rallia Ram, [1964) 3 SCR 164, referred to.

Krislmji Nilktlllt v. Secretary of State, AIR (1937) Born. 449; Secretary
C of State v. Bhagwandas, AIR (1938) Born. 168; Devi Prasad Sri Krish11a
Prasad Ltd. v. Secretary of State, AIR (1941) All. 377; Secretary of State v.
0. T. Sarin & Company !LR II Lah. 375; J.K. Gas Plant Mfg. Co. Ltd. v. The
J(j11g Emperor, .(1947) F.C.R. 141; 171e Collector of Masulipatllam v. Cavaly
Venkata Narrainapah 8 MIA 529, cited.

D Specific Relief Act, 1963 : Section 6.

Suit for possessiolt-Maintainability a11d limitation period for-Appel-
lant granted patta of land under rules-f'ossessio11 also delivered to
him-Cancel/atio11 of patta-<Jrant to respondent-Held appellant's suit was
E maintainable--Respondent initiated proceedi11gs u11der Section 145 Cr.
P.C.-Proceedings pe11ding for a lonq time-Thereafter revision dismissed by
High Court-High Court gave liberty to appellant to file suit-Suit filed
immediately after the proceedings came to a tem1inus-Held in substance suit
was one under Section 6.

F Practice and Procedure--Raisi11g fresh plea at the appellate stage-Per-
missibility of

Nirod Baran Banerjee v. Dy. Commissioner of Hazaribagh, [1980) 3
SCC 51; Pavani Sridhara Rao v. Government of A.P., AIR (1996) SC 1334,
G referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1320 of
1980.

From the Judgment and Order dated 28.3.80 of the Rajasthan High
H Court in D.B.C.S.A. No. 147 of 1969.
BEHARJLALv. BHURIDEVI 557

D.D. Thakur, S.K. Jain and A.P. Dhamija for the Appellants. A
B.R. Naik, K.B. Rohtagi and Ms. Aparna Rohtagi for the Respon-
dents.

The following Order of the Court was delivered :
B
This appeal by speciaI leave arises from the judgment of the Division
Bench of the Rajasthan High Court at Jaipur Bench, made on March 28,
1980 in LPA No. 147/69.

The undisputed facts are that the Government constituted a Mandi
Committee duly nominating the members, at Neem-ka-Thana for sale of C
agriculture produce. The property was acquired by the Government. Al-
lotments were made for construction of shops by traders. Plot Nos. A-1
and A-2 were allotted to the appellant on December 21, 1953 and on
payment of consideration the patta was granted on June 21, 1954 and
possession was delivered on the same day. The appellant also indisputably D
had raised construction on the plots. But in June 1956, the Committee
appears to have impeded to proceed with further construction on the
ground that one Jhutha Lal was carrying on construction. On that basis, on
October 6, 1956, the Patta was cancelled. On 7th October, 1956, Ram
Gopal Gajanand, the husband of Bhuri Devi, the first respondent herein,
made two successive applications. On the basis thereof, two plots came to E
be allotted to him on October 8, 1956 and possession also was given to him
by beat of drum. This led to the filing of proceedings under Section 145,
Cr. P.C. at the instance of Ram Gopal. Ultimately, proceedings under
Section 145 ended in a direction by the High Court in criminal revision to
lay the suit. Consequently, the appellant filed civil Suit No. 3/59 in the F
Court of Senior Civil Judge, Jaipur on January 15, 1959 for possession and
damages. The respondent-defendants filed the written statement on March
31, 1959 admitting the allotment of the land in favour of the appellant, but
justified that the same came to be cancelled according to the rules and
allotment was made in favour of Ram Gopal. The trial Court framed
necessary issues and recorded the finding that cancellation of patta in G
favour of the appellant and allotment of patta in favour of Ram Gopal was
bad in law. The appellant was in possession of the property. The Mandi
Committee was not justified in cancelling the grant of patta and allotting
the land to Rfun Gopal. On that basis, the Trial Court decreed the suit.
On appeal, the main point addressed was on the legality of the cancellation H
558 SUPREME COURT REPORTS [1996] SUPi:'. 9 S.C.R.
A of the patta granted in favour of the appellant and the grant of patta in
favour of Ram Gopal. The learned single Judge upheld the findings of the
Trial Court holding that the cancellation of patta granted in favour of the
appellant is bad in law and equally upheld the finding that the grant of
patta in favour of respondent was bad in law. In the Letters Patent Appeal,
B the only question argued by the learned counsel appearing for the respon-
dent before the Division Bench was as to the non-execution of the patta in
compliance of Article 299 of the Constitution. The Division Bench uphold-
ing the contention, set aside the judgment and decree of the Trial Court
and that of the first appellate Court and dismissed the suit. Thus, this
appeal by special leave.
c
Shri D.D. Thakur, learned senior counsel appearing for the appel-
lants, contends that in view of the finding recorded by the Trial Court as
upheld by the Single Judge that the appellant was in possession of the
property, he is entitled to the decree for possession. The suit based on
D possessory title is, therefore, valid in law. He contends that Rules made by
the Mandi Committee for allotment of the land were only approved by
Rajp~amukh; the Tehsildar was empowered nnder Rule 5 to grant patta in
favour of the allottee; the Tehsildar accordingly had granted the patta to
the appellant; therefore, the grant is valid in law, though it was not executed
in the manner contemplated by Article 299 of the Constitution. The appel-
E !ant having paid the consideration and was put in possession and also
having constructed shops upto plinth level, the non-compliance of execu-
tion of the deed in the letter and spirit of Article 299 does not take away
the right of the appellant to be in legal and valid possession of the property.
In support thereof, he placed reliance on Nair Service Society Ltd., v. Rev.
F Father K.C. Alexander & Ors., [1968] 3 SCR 163; Chatturbhuj Vithaldas
Jasani v. Moreshwar, Parashram & Ors., [1954] SCC 817; Mis. Davecos
Gannents Factory v. State of Rajasthan, AIR (1971) SC 141 and M. Moham-
ma v. Union of India, AIR (1982) Born. 443. He also contends that the
respondent had not pleaded invalidity of the patta violating Article 299 of
the Constitution. Therefore, the plea could not be permitted to be raised
G for the first time in the Letter Patents Appeal. In support thereof, he relied
upon the decision of this Court in Nirod Baran Baneljee v. Dy. Commis-
sioner of Hazaribagl~ [1980] 3 sec 5. He contends that the appellant had
constructed the shops; he was in possession and the finding that he is in
possession would aid his right to seek possession even if he was wrongfully
H dispossessed by the respondent who has no better title than the appellant.
BEHARILAL v. BHURIDEVI 559

Shri Bhim Rao Naik, learned senior ·counsel appearing for the A
respondent, resists the contentions. According to the learned counsel, afte•
the proceedings under Section 145 came to a terminus, the appellant filed
a writ petition in the High Court seeking to quash the cancellation of the
patta granted in favour of the appellant. The High Court while dismissing
the writ petition has given liberty to the appellant to avail of the remedy B
of filing a suit for challenging the cancellation of the patta; pursuant
thereto, notice under Section 80, CPC was given but the appellant did not
implead the Mandi Committee or the Government as co-defendant. There-
fore, the suit is bad for non-joinder of necessary parties. The appellant had
not pleaded nor sought declaration in the suit that the cancellation of the
patta granted in his favour is bad or that the grant of patta in favour of the C
respondent is invalid. In their absence, the suit is not based either on title
or on possession. Since he was not in possession and the suit was not filed
within six months from the date of dispossession under Section 6 of the
Specific Relief Act, 1963, the suit as such is not maintainable. He also
contends that without there being any attempt to seek a plea in the plaint D
for declaration of title, the fmdings recorded by the courts below on
invalidity of cancellation of appellants' patta or of the grant to the respon-
dent are not sustainable in law. He also contends that the appellant had
not objected in the High Court as to the invalidity of the patta being in
violation of Article 299 of the Constitution. Since it goes to the root of the
jurisdiction of the authorities, it could be raised at any time. In support E
thereof, he placed reliance on a judgment of this Court in Pavoni Sridh:1ra
Rao v. Government of A.P., (1996) SC 1334. He further contends that the
non-joinder or the necessary parties vitiates the decree for possession. In
support thereof, he placed reliance on UP. Awas Evam Vikas Parishad v.
Gyan Dev~ (1995] 2 SCC 326. Lastly, it is contended that since the proceed- F
ings were pending for a long time and this is the third round of litigation,
the parties may be directed to compromise each taking a plot and that the
claimants are prepared to pay over necessary expenditure incurred by the
appellants for raising the construction upto the plinth stage. He also
contends that Bhuri Devi, the first respondent died, pending appeal; her
legal representatives have not been brought on record and, therefore, the G
appeal is abated.

In view of the respective contention, the first question that arises for
consideration is : whether the appeal has abated on account of failure to
substitute the legal representatives of the !st respondent. It is seen that the H
560 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
A original allottee, Ram Gopal is represented by his widow, Bhuri Devi and
Kamla, the daughter. Kamla and Bhuri Devi are on record representing
his estate. Therefore, on the demise of Bhuri Devi, Kamla being already
on record, is representing the estate of her mother as well as her father
Ram Gopal. Under these circumstances, the appeal has not been abated
nor is there any need to bring separately the legal representatives of Bhuri
B Devi on record.

It is seen that the appellant was admittedly allotted the aforestated
two plots after receiving consideration, i.e., Nazarana by the Mandi Com-
mittee for construction of shops. It is true that in the plaint, no specific
C prayer was made seeking declaration of the invalidity of the cancellation
of patta granted to the appellant or invalidity of the patta granted in favour
of Ram Gopal. In fact, in the written statement these pleas were raised by
Ram Gopal, the respondent. On that basis, the issues came to be settled.
The Trial Court had gone into all the questions and recorded the finding
D against the respondents that grant of patta to Ram Gopal was invalid and
I
also cancellation and patta of the appellant was illegal. Before the learned
single Judge of the appellate Court, when the respondent carried the
matter against the decree of the Trial Court, the main concentration was
on those issues. Even the finding of possession of the appellant was neither
disputed nor directly addressed. Learned single Judge has gone in depth
E on those issues and held that the cancellation of the patta in favour of the
appellant is bad in law. Equally, it was held that the grant of the patta in
favour of the respondent was also not bona fide. Under these circumstan-
ces, the findings- recorded by the Trial Court that the appellant was in
possession and that he remained in possession were allowed to become
F final. As regard the fmdings as to the invalidity of the grant of patta in
favour of the respondent and cancellation of the patta of the appellant,
they were allowed to become final since these questions were not canvassed
before the Division Bench in the LPA. As stated earlier, the only question
was as to the invalidity of the patta not having been executed in compliance
with Article 299, on the basis of several judgment in that behalf. The
G Division Bench came to the conclusion that execution of the patta in
conformity with Article 299 of the Constitution is mandatory and the failure
of compliance thereof renders the grant of patta void. The correctness of
this proposition was not and could not be canvassed by Shri Thakur. But
he focussed the attention on the Rules made by the Committee as approved
H by the Rajpramukh and the grant made in furtherance thereof to the
I
BEHARILAL v. BHURIDEVI 561

respondent. Land was acquired by the Government of allotment to traders A
for construction of shops and Mandi Committee was duly constituted for
that purpose. It is seen that, admittedly, after the Rules were made by the
Mandi Committee, the same were submitted to the Government for the
approval. The Rajpramukh did give approval for the same. Thus, Rules
had legal sanction for allotment of the plots to the traders in accordance B
therewith. The allotment requires to be made by the Tehsildar and the
Chairman of the Committee and the Tehsildar under Rule 5 was em-
powered to grant the patta and deliver possession thereof. In fact, that
procedure was followed, allotment of two was made to the appellant by the
Committee and the Tehsildar granted patta. There was no vice or violation
of Rules. No vice or violation of Rules was pointed to the Division Bench C
nor even to us. These facts are also not in dispute. Thus, it would be clear
that the allotment made to the appellant was made in accord:111ce with
Rules for public purpose and the appellant was put in possession accord-
ingly. He, as a fact, started construction upto plinth level. The cancellation
was not valid as found by the Trial Court and the learned Single Judge. D

Under these circumstances, the question arise; whether the failure to
execute the patta in conformity with Article 299(1) of the Constitution
renders the grant thereof to the appellant void? It is seen that when the
Rules are made for grant of patta, the necessary implication is that the
grant must, of necessary be, in conformity with Article 299(1) of the E
Constitution as modulated or modified, as per the Rules made by the
Government. In view of the fmding recorded earlier that admittedly Teh-
sildar and Chairman of the Committee was authorised to grant patta, the
Tehsildar did grant patta and deliver possession in terms thereof after
receipt of the consideration and the Tehsildar put the appellant in posses- F
sion of the plots. Thereby, he became the absolute owner of the property.
It is seen that in a quick succession after the cancellation of patta on
October 4, 1956, Ram Gopal made two successive applications on October
7, 1956, on the same day the patta was granted to him and possession was
delivered on October 8, 1956. But the same was, admittedly, stayed by the
Collector in his proceedings on the even date. InD.G. Factory case (supra), G
the Inspector General of Police, Rajasthan had executed an agreement on
March 22, 1960 with the appellant therein. The said agreement was not in
conformity with Article 299(1) of the Constitution. The Inspector General
had duly been authorised to execute the agreement on behalf of the State.
But he did not express that he had executed it on behalf of the Government H
562 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
A but he signed in his capacity as Inspector General of Police, Rajasthan. On
those facts, this Court had held that the Inspector General, having duly
executed the contract, though it was not expressed to be on behalf or the
Governor and though it was not in full compliance with the requirement
of Article 299(12), it was in substance an agreement executed by the
B Rajpramukh. In' Union of India v. A.L. Ral/ia Ram, [1964] 3 SCR 164, the
tenders were accepted by the Chief Director of Purchases on behalf of the
Government. The question arose; whether it was in compliance of Section
175(3) of the Government of India Act, 1935 which is analogous to Art.
299(1). He has signed in his official designation, though he did not state
that he had ex.ecuted it .on behalf of the Governor General. The Court read
C into it and found that in the light of the applications undertaken, it would
be reasonable to hold that the contract was executed on behalf of the
Governor General. Thus, it would be clear that when the Rules, duly
approved by th~ Rajpramukh, authorised Mandi Committee represented
by the Chairman and the Tehsildar to allot the plots of land to the traders
D and did, in fact, in accordance with that Rules allotted the same after
receipt of the consideration and subsequent thereto, the Tehsildar, having
been authorised to deliver possession and did in fact deliver the possession,
.the execution of the grant of the patta who was in conformity with the Rules
arid in substance on behalf of the Governor. Thus, the grant of the patta
to the respondent was still-born. Under these circumstances, the Trial
E Court as well as the learned Single Judge rightly held that the cancellation
of patta of the appellant is bad in law and the grant of patta to the
respondent was not valid.

The next question is : whether the failure to irnplead the necessary
F parties, i.e., the Mandi Committee, renders the suit as invalid? Order 1
Rule 13, CPC envisages thus :

"13. Objections as to non-joinder or misjoim.ler. - All objections
on the ground of non-joinder or misjoinder of parties shall be taken
at the earliest possible opportunity and, in all cases where issues
G are settled, at or before such settlement, unless the gronnd of
objection has subsequently arisen, and any such objection not so
taken shall be deemed to have been waived."

Though the respondent has pleaded in the written statement the
H non-joinder of necessary parties and an issue was raised, the Trial Court
- BEHARILAL~ BHURIDEVI
had negatived it and the same was reiterated and argued before the learned
563
A
Single Judge. The learned Single Judge also has held that though the
Government may be a proper party to the suit, but since claim for posses-
sion is not being sought for against the Government or Mandi they are not
necessary parties. The decree for possession granted by Trial Court may
not bind the Government on that ground, However, the omission to im-
B
plead the Government or the Mandi Committee as a co-defendant is not
vitiated by Order 1, Rule 13, CPC. Therefore, the suit need not be
dismissed on the Ground of their non-joinder. As seen, these findings were
allowed to become final, since that aspect of the matter was not argued
before the Division Bench. The respondent waived that objection before
the Division Bench. Thus, it is not open to the appellants to raise that c
objection in this appeal. It is accordingly rejected.

The next question is : whether the dec•·ee for possession could be
granted in favour of the appellant. It is true that the suit was not filed within
six month under Section 6 of the Specific Relief Act. But, as seen earlier, D
the proceedings under Section 145 were initiated at the instance of the
respondent Ram Gopal and were pending for long time until the revision
was dismissed by the High Court giving liberty to the appellant to file the
suit for possession. Under these circumstances, the suit came to be filed
immediately after the proceedings came to a terminus, no doubt, after issue
of notice to the Government under Section 80 CPC and after expiry of 60
E
days time required under Section SQ CPC. Under these circumstances, it
must be concluded that in substance the suit is one under Section 6 of the
Specific Relief Act.

.F
This Court has elaborately considered in Nair Service Society's case .
as to when the suit for possession would lie. The society was granted patta
of 160 acres of land and thereafter the appellant-Society was granted
possession of the same. The respondent plaintiff filed the suit alleging that
the respondent was dispossessed of his 130 acres of suit land by the society G
and for recovery of the same. The Trial Court decreed the suit. But, on
appeal in the High Court, the Society applied, on the last day of the hearing
of the appeal, for amendment of its written statement. The High Court
rejected the application as belated and decreed the suit against the Society.
When the matter had come up to this Court, this Court elaborately con-
sidered the entire controversy and held thus : H
564 .SUPREME COURT REPORTS [1996) SUPP. 9 S.C.R.

A ·"No doubt there are a a few old cases in which this view was
expressed but they have since been either overruled or dissented
from. The uniform view of the court is that if S.9 of the Specific
Relief Act is utilised the plaintiff need not prove title and the title
of the defendant does not avail him. When, however,.the period
of 6 months has passed questions of title can be raised by ·the
B defendant and if he does so the plaintiff must establish a better
.title or fail. In other wbrds, the right is only restricted to possession
only in .a suit under S.9 of the Specific Relief Act but that does
not bar a suit on prior possession within 12 years and title need
not be proved unless the defendant can prove one. The present
c amended Article 64 and 65 bring out this difference. Article 64
· enables a suit within 12 years from dispossession, for possession
of immovable property based on possession and not on title, when
the plaintiff while in possession of the property has been dispos-
sessed. Article 65 is for possession of immovable property or any
interest therein based on title. The amendment is not remedial but
D
declaratory of the law. In our judgment the suit was competent."

A person in possession of land without other title has a devisable
interest, and the heir of his devisee can maintain ejectmeht against
a person who had entered upon the land cannot how title or
E possession in any one prior to the testator. No doubt, as stated by
Lord Machagthen in Perry V. Clisso/d, Doe v. Emard, (supra) lays
down the proposition that 'if a person having only a possessciry
title to land be supplanted in the possession by another who has
· himself no better title and afterwards brings an action to recover
F the land, he must fail in case he shows in the course ofthe
proceedings that the title on which he seeks to recover was merely
possessgry". Lord Machagthen observes further that it is difficult,
if not impossible to reconcile Asher V. Whitlock with Deo V.
Barnar! and then concludes :

G
The judgment of Cockburn, CJ., is clear on the point. The
rest of the Court concurred and it may be observed that one
of the members of the court in Asher v. Whitlock, (Lush, J.)
had been counsel for the successful party in Doe v. Barnard.
The conclusion at which the court arrived in Doe v. Barnard
H is hardly consistent with the views of such eminent authorities
BEHARILAL v. BHURIDEVI 565
on real property law as Mr. Preston and Mr. Joshua Williams. A
It is opposed to the opinions of modern text-writers of such
weight and authority as Professor Maitland and Holmes, J. ·
of the Supreme Court of the United State (see Articles by
Professor Maitland in the Law Quarterly Review Vols. 1, 2
and 4; Holmes, Common Law p. 244; Professor J.B. Ames in
3 Harv. Law Rev. 324 n.") B
The difference in the two cases and which made Asher V. White
prevails is indicated in that case by Mellor, J. thus :

In Doe v. Barnard the plaintiff did not rely on her own
possession merely, but showed a prior possession in her C
husband, with whom she was unconnected in point of title.
Here the first possessor is connected in title with the plaintiff;
for there can be no doubt that the testator's interest was
devisable."

On these findings it was held that the suit, as laid, was maintainable. D

In Chatturbhus Vithaldas Jasani's case, the question arose : whether
the violation of the execution of the contract in conformity with Article
299(1) of the Constitution renders the contract void or any consequential
rights would flow? On consideration thereof, this Court had held thus :
E
"The contention was that as these contracts were not expressed to
be made by the President they are void. Cases were cited to us
under the Government of India Acts of 1919 and 1935. Certain
sections in these Acts were said to be similar to Article 299. We
do not think that they are, but in any case the rulings under Section F
30(2) of the Government of India Act, 1915, as amended by the
Government of India Act of 1919 disclose as difference of opinion.
Thus, Krishnji Nilkant v. Secretary of State, AIR (1937) Born. 449
ruled that contracts with the Secretary of State must be by a deed
executed on behalf of the Secretary of State for India and in his G
name. They cannot be made by correspondence or orally. Secretary
of State v. Bhagwandas, AIR {1938) Born. 168 and Devi Prasad Sri
Krishna Prasad Ltd. v. Secretary of State, AIR (1941) All. 377 held
they could be made by correspondence. Secretary of State v. 0. T.
Sarin & Company, !LR II Lah. 375 took an intermediate view and
held that though contracts in the prescribed form could not be H
566 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
A enforced by either side, a claim for compensation under Section
70 of the Indian Contract Act would lie."

Following the above view, it was held that :

"None of these provisions is quite the same as article 299. For
B
example in article 166, as also in Section 40(1) of the Government
of India Act of 1935, there is a clause which says that "orders" and
"expressed" in the name of the Governor or Governor-General in
Council and "authenticated" in the manner prescribed shall be
called in question on the ground that it is not an "order" or
c 11
instrument 11 etc. 11 made" or 11executed" by the Governor or Gover·
nor-General in Council. It was held that the provisions had to be
read as a whole and when that was done it became evident that
the intention of the legislature and the Constitution was to dispense
with proof of the due "making" and "execution" when the form
prescribed was followed but not to invalidate orders and instru-
ments otherwise valid. Article 299(1) does not contain a similar
clause, so we are unable to apply the same reasoning here.

In our opinion, this is a type of contract to which section 2'.?0(3)
of the Indian Contract Act would apply. This view obviated the
E inconvenience and injustice is innocent persons which the Federal
Court felt in J.K Gas Plant Manufacturing Co., Ltd. v. The King
Emperor, (1947) F.C.R. 141 at 156, 157 and at the same time
protects Government. We feel that some reasonable meaning must
be attached to article 299(1). We do not think the provisions were
F inserted for the sake of mere form. We feel they are there to
safeguard Government against unauthorised contracts. If io fact a
contract is unauthorised or in excess of authority it is right that
Government should be safeguarded. On the other hand, an officer
enteriog ioto a contract on behalf of Government can always
safeguard himself by having recourse to the proper form. In be-
G tween is a large class of contracts, probably by far the greatest in
numbers, which though authorised, are for one reason or other not
in proper form. It is only right that an innocent contracting party
should not suffer because of this and if there is no other defect or
objection we have no doubt Government will always accept the
H responsibility. If not, its interests are safeguarded as we think the
BEHARIIAL~ BHURlDEVI 567
Constitution iotended that they should be." A
Ultimately, it was held at page 835 thus :

"In the present case, there can be no doubt that the Chairmao of
the Board of Administration acted on behalf of the Union Govern-
ment aod his authority to contract in that capacity was not ques- B
tioned. There can equally be no doubt that both sides acted in the
belief and on the assumption, which was also the fact, that the
goods were intended for Government purposes, namely, amenities
for the troops. The only flaw is that the contracts were not io
proper form and so, because of this purely technical defect, the c
priocipal could not have been sued. But that is just the kind of
case that Section 230(3) of the Indian Contract Act is designed to
meet. It would, in our opinion, be disastrous to hold that the
hundreds of Government officers who have daily to enter ioto a
variety of contracts, often of a petty nature, aod sometimes io ao
emergency, cannot contract orally or through correspondence aod D
that every petty contract must be effected by a ponderous legal
document couched in a particular form. It may be that Government
will not be bound by the contract io that case, but that is a very
different thiog from saying that the contracts as such are void aod
of no effect. It only means that principal cannot be sued; but we E
take it there would be nothiog to prevent ratification, especially if
that was for the benefit of Government. There is authority for the
view that when a Government officer acts io excess of authority
Government is bound if it ratifies the excess : see The Collector of
Masulipatnam v. Cava/y Venkata Narrainapah, 8 MIA 529 at 554.
We accordingly hold that the contracts in question here are not F
void simply because the Union Government could not have been
sued on them by reason of article 299(1)."

It was accordingly held that though the contract was not executed in
the form prescribed under Article 299(1), nonetheless the consequential G
benefits could be had under the contract sioce the Government was the
beneficiary aod restitution could be ordered under Section 70 of the
Contract Act. The same view was reiterated in D.G. Factory case.

It would, thus, be clear that though the contract was not executed
strictly in conformity with Article 299(1) of the Constitution but it is io H
568 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.

A conformity with the Rules approved by the Rajpramukh. The contract is
not void, though it was not executed in terms of Article 299(1). Here, we
may dispose of this case with an observation that initial allotment itself was
not tainted with fraud or illegal consideration or any such circumstances
which would render the allotment as having been made in fraud or abuse
B of power or with oblique consideration.

The allotment having been made after receipt of the consideration,
the patta came to be issued in favour of the appellant and possession was
accordingly delivered. Thereafter, he started construction of shops for
carrying the business. It is seen that the object of allotment is to regulate
C the sale or purchase of the agriculture produce in a systematic manner.
The Committee came to be constituted and directed to allot the lands as
per the Rules approved by the Government. It is not the case that allotment
was not made in conformity with the Rules. Under these circumstances, we
hold that though the contact was not executed strictly in conformity with
D Article 299(1) of the Constitution, as held earlier, it was done in fur-
therance of duly approved Rules to elongate public purpose, i.e., market
yard. Thereby, the possession delivered to the appellant is valid in law. In
view of the findings as accepted by the learned Single Judge, that the
cancellation of the patta granted to the appellant is invalid, the possession
E remains to be valid. Under these circumstance, he having come in posses-
sion lawfully into the property and started construction, cannot be unlaw-
fully dispossessed and no such procedure was adopted to dispossess him.
Therefore, this suit for possession was clearly maintainable.

It is true that a court may go into a question at any stage if it goes
F to the root of the matter to decide it validity. Therefore, there is no quarrel
on the proposition of law. But in this case, the failure to irnplead the
necessary parties does not go to the root of the matter; nor does the
execution of the contract in conformity with Article 299(1) of the Constitu-
tion render the grant of patta void. Under these circumstances, the respon-
G dent could not rightly raise that objection for the first time in the High
Court before the Letters Patent Bench. No doubt, this objection was raised
and we are not concluding this question on this technical ground alone, but ·
we are satisfied, on merits, that the cancellation of the patta to the
appellant was not valid in law. Equally, the grant of patta, as a conse-
H quence, to the respondent, also is not correct in law.
BEHARILAL v. BHURIDEVI 569
It is true that if proper and necessary parties, are not impleaded, no A
relief could be granted to a party by operation of Order I, Rule 13, CPC
as laid by this Court in paragraph 21 in Gain Devi's case (supra). As htld
earlier, this issue was raised and the learned Single Judge has upheld the
decree of the Trial Court. As stated earlier, the same question was not
argued before the Division Bench. Under these circumstances, we do not
B
find that the Division Bench was justified in upsetting the decree of the
Trial Court as confirmed by the learned Single Judge.

Though Shri Bhim Rao Naik has contended that an opportunity may
be given to compromise the matter seeking allotment of one plot each,
learned counsel for the appellant has stated that his client is not present C
in the Court to seek instruction; under these circumstances, they could not
make any statement in that behalf. In view of the fact that this issue was
raised at the fag end of the arguments, as last minute desperate attempt,
we cannot detain the judgment any further.

The appeal is accordingly allowed. The Judgment of the Division D
Bench stands set aside and that of the Trial Court as confirmed by the
learned Single Judge stands restored. No costs.

T.N.A. Appeal allowed.