05 December 1996
Supreme Court


Case number: C.A. No.-001320-001320 / 1980
Diary number: 62931 / 1980






DATE OF JUDGMENT:       05/12/1996




JUDGMENT:                          O R D E R      This appeal  by special  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  agriculture  produce.  The property was  acquired by  the Government.  Allotments  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 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 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 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 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 Ram Gopal. On  that basis,  the trial Court decreed the suit. On appeal, the  main point addressed was on the legality of the



cancellation 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, the  only question argued by the learned  counsel appearing for the respondent before the Division Bench  was as  to the non-execution on the patta in compliance of  Article 299 of the Constitution. The Division Bench upholding  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.      Shri D.D.  Thakur, learned senior counsel appearing for the  appellants,  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 possessory title  is, therefore,  valid in  law. He contends that Rules  made by the Mandi Committee for allotment of the land were  duly approved  by Rajpramukh;  the Tehsildar  was empowered under  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  appellant  having  paid  the consideration and  was put  in possession  and  also  having constructed shops  upto plinth  level, the non-compliance of execution 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. vs. Rev. Father  K.C. Alexander  &  Ors.  [(1968)  3  SCR  163], Chatturbhuj Vithaldas  Jasani vs. Moreshwar Parashram & Ors. [(1954) SCC 817], M/s. Davecos Garments Factory vs. State of Rajasthan [AIR  1971 SC  141] and  M. Mohamma  vs. Union  of India [AIR  1982  Bom.  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  for the  first time  in the Letter Patents  Appeal. In  support thereof,  he relied upon the decision  of this  Court in Nirod Baran Banerjee vs. Dy. Commissioner of  Hazaribagh [(1980)  3 SCC  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 dispossessed by  the respondent who has no better title than the appellant.      Shri Bhim  Rao Naik,  learned senior  counsel appearing for the  respondent, resists  the contentions.  According to the learned counsel, after 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 tot eh appellant to  avail of  the remedy  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. Therefore,  the suit  is bad  for  nonjoinder  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 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  for declaration  of title,  the   findings  recorded  by  the  courts  below  on invalidity of  cancellation of  appellants’ patta  or of the grant to  the respondent 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 thereof, he placed reliance on a  judgment of  this Court  in Pavanj  Sridhara  Rao  vs. Government of  A.P. (AIR  1996 SC 1334]. He further contends that the  non-joinder of  the necessary parties vitiates the decree  for   possession.  In  support  thereof,  he  placed reliance on  U.P. Awas  Evam Vikas  Parishad vs.  Gyan  Devi [(1995) 2  SCC 326],  Lastly, it is contended that since the proceedings 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 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 1st respondent. It is seen that the 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 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 Committee  for construction of shops. It is true that in the plaint, no specific 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  against the  respondents that grant of patta to Ram Gopal  was invalid and also cancellation of 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  findings  of possession  of   the  appellant  was  neither  disputed  nor directly addressed.  Learned single  Judge has gone in depth 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  circumstances,  the findings recorded  by the trial Court that the appellant was in possession  and  that  he  remained  in  possession  were



allowed to  become final.  As regards the findings 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 judgments in that behalf. The Division Bench  came to the conclusion that execution of the patta in  conformity with  Article 299 of the Constitution s 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 focused the  attention on the Rules made by the Committee as approved by the Rajpramukh and the grant made in furtherance thereof  to   the  respondent.  Land  was  acquired  by  the Government for  allotment to  traders  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  approval. The  Rajpramukh did  give approval for the  same. Thus,  Rules had legal sanction for allotment of the  plots to  the traders  in accordance  therewith. The allotment requires to be made by the Tehsildar and the Chair man of  the Committee  and the  Tehsildar under  Rule 5  was empowered to grant the patta and deliver possession thereof. In fact, that procedure was followed, allotment of two plots 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 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 accordance with Rules for public purpose and the appellant was  put in possession accordingly. 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.      Under these circumstances, the question arises; 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  necessity be, in conformity with Article 299(1) of the Constitution  as modulated or modified, as per the Rules made by  the Government.  In view  of the  finding  recorded earlier  that  admittedly  Tehsildar  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 possession 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 this proceedings on  the  even  date.  In  D.G.  Factory  case  (supra),  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 Governor  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 of 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 Rajpramukh. In Union of India vs. A.L. Rallia  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 executed it on behalf  of the  Governor General.  The Court read 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  the Rajpramukh, authorised  Mandi Committee  represented by  the Chairman and the Tehsildar to allot the plots of land to the traders 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 and in substance on behalf of the Governor. Thus, the grant of the patta of the respondent was still-born. Under  these circumstances,  the trial  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 implead the necessary  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 misjoinder. -- 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 are  settled, at  or  before      such settlement,  unless the ground      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  non-joinder of necessary parties and an issue was raised,  the trial  Court had  negatived it and the same was reiterated  and argued  before the learned 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  possession is  not being  sought for  against the Government or  Mand they  are  not  necessary  parties.  The decree for  possession granted  by the  trial Court  may not bind the  Government on the ground. However, the omission to implead 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 nonjoinder.  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 objection in this appeal. It is accordingly rejected.      The next question is; whether the decree for possession could be granted in favour of the appellant. It is true that



the suit  was not filed within six months under Section 6 of the  Specific   Relief  Act.   But,  as  seen  earlier,  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 days  time  required  under Section 80  CPC.  Under  these  circumstances,  it  must  be concluded that  in substance the suit is one under Section 6 of the Specific Relief Act.      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 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 considered  the  entire controversy and held thus:      "No doubt there are 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 courts 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 defendant  and if he      does   so    the   plaintiff   must      establish a  better title  or fail.      In other  words, 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 amended articles 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      dispossessed.  Article  65  is  for      possession of immovable property or      any  interest   therein  based   on      title.   The   amendment   is   not      remedial  but  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      devise   can   maintain   ejectment      against a  person who  had  entered      upon the  land cannot  how title or      possession in  any one prior to the      testator. No  doubt, as  stated  by      Lord   Machagthen   in   Perry   V.      Clissold, Doe  v.  Barnard  (supra)      lays down  the proposition that "If      a person  having only a  possessory      title to  land be supplanted in the      possession  by   another  who   has      himself   no   better   title   and      afterwards  brings   an  action  to      recover the  land, he  must fail in      case he  shows in the course of the      proceedings that the title on which      he  seeks  to  recover  was  merely      possessory".    Lord     Machagthen      observes   further   that   it   is      difficult,  if  not  impossible  to      reconcile Asher  V.  Whitlock  with      Doe V. Barnard and then concludes:           The  judgment   of   Cockburn,           C.J., 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     is    hardly           consistent with  the views  of           such  eminent  authorities  on           real  property   law  as   Mr.           Preston   and    Mr.    Joshua           Williams. 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           States   (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.")      The difference in the two cases and      which made  Asher v. White prevails      in  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  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.      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:      "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 30(2) of the      Government of  India Act,  1915, as      amended by  the Government of India      Act of  1919 disclose  a difference      of opinion.  Thus, Krishnji Nilkant      vs. Secretary  of State  [AIR  1937      Bom. 449] ruled that contracts with      the Secretary of State must be by a      deed  executed  on  behalf  of  the      Secretary of  State for  Indian and      in his name. They cannot be made by      correspondence or orally. Secretary      of State  v. Bhagwandas  [AIR  1938      Bom.  1981   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. O.I. Sarin &      Company [ILR  II Lah.  375] took an      intermediate  view  and  held  that      though contracts  in the prescribed      form  could   not  be  enforced  by      either   side,    a    claim    for      compensation under  Section  70  of      the Indian Contract Act would lie."      Following of  these above  view, it      was held that      "None of  these provisions is quite      the  same   as  article   299.  For      example in  article 166, as also in      Section 40(1)  of the Government of      Indian Act  of  1935,  there  is  a      clause which says that "orders" and      "expressed"  in  the  name  of  the      Governor  of   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 "instrument"      etc. "made"  or "executed"  by  the      Governor  or   Governor-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  instruments      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 230(3) of      the  Indian   Contract  Act   would      apply.  This   view  obviated   the      inconvenience   and    justice   to      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  29991). We do not think      the provisions  were  inserted  for      the sake of mere form. We feel they      are there  to safeguard  Government      against unauthorised  contracts. If      in fact  a contract is unauthorised      or in  excess of  authority  it  is      right  that  Government  should  be      safeguarded. On  the other hand, an      officer entering into a contract on      behalf  of  Government  can  always      safeguard   himself    by    having      recourse to  the  proper  form.  In      between  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  responsibility. If not,      its interests are safeguarded as we      think  the   Constitution  intended      that they should be."      Ultimately, it was held at page 835      thus;      "In the  present case, there can be      no doubt  that the  Chairman of the      Board of  Administration  acted  on      behalf of  the Union Government and      his authority  to contract  in that      capacity was  not questioned. 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      in proper  form and  so, because of      this purely  technical defect,  the      principal could not have been used.      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 into a variety      of  contracts,  often  of  a  petty      nature,   ad    sometimes   in   an      emergency, cannot  contract  orally      or through  correspondence and 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      in that  case, but  that is  a very      different thing  from  saying  that      the contracts  as such are void and      of no  effect. It  only means  that      the principal  cannot be  sued; but      we take  it there  would be nothing      to prevent ratification, especially      if that  was  for  the  benefit  of      Government. There  is authority for      the view  that  when  a  Government      officer acts in excess of authority      Government is  bound if it ratifies      the excess:  see The  Collector  of      Masulipatnam  vs.   Cavaly  Venkata      Narrainapah [8  MIA 529 at 554]. We      accordingly hold that the contracts      in  question   here  are  not  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 benefits  could be  had under the contract  since the  Government was  the beneficiary and 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 in  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 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 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  contract  was  not executed strictly  in conformity  with Article 299(1) of the Constitution, as held earlier, it was done in furtherance 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 remains to be  valid. Under  these circumstances,  he having come in possession  lawfully   into   the   property   and   started construction, cannot  be unlawfully dispossessed and no such procedure was adopted to dispossess him. Therefore, his suit for possession was clearly maintainable.      It is  true that  a court may go into a question at any stage if  it goes  to the  root of  the matter to decide its validity. Therefore,  there is no quarrel on the proposition of law.  But in  this  case,  the  failure  to  implead  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 Constitution render the grant of patta void. Under  these circumstances,  the respondent  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 consequence, to the respondent, also is not correct in law.      It is  true that  if proper  and necessary parties, are not impleaded,  no 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 held 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 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 in the Court to  seek instructions; 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 Bench  stands set aside and that of the trial Court as confirmed by the learned single Judge stands restored. No costs.