TMI Blog1976 (11) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1873. It is also not in controversy that the Oaths Act of 1969 has no application to the controversy. Sub-section (1) of section 145 of the Code provides, inter alia, that the Magistrate making an order under it shall require the parties concerned in the dispute to attend his court in person or by pleader and to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons as they rely upon in support of their claims. The affidavits contemplated by the sub-section are therefore evidence for purposes of the proceedings before the Magistrate concerned even though the Evidence Act does not apply to them by virtue of the express provision of section 1 of that Act. Chapter XLVI of the Code deals with miscellaneous matters including the affidavits referred to in sections 539, 539-A and 539-AA. Section 539 deals with courts and persons before whom affidavits and affirmations to be used before any High Court or any officer of such Court may be sworn and affirmed. Section 539-A relates to affidavits in proof of conduct of public servants, while section 539-AA relates to the authorities before whom affidavits to be used under section 510A or 539-A may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r exercising any such power. As the affidavits in the cases before us were admittedly not sworn or affirmed before Magistrates who were dealing with the disputes under section 145 of the Code, they were not proper affidavits and did not constitute evidence for purpose of section 145. A similar view has been taken in Nandial Ghost v. Emperor (1), Hemdan v. State Rajasthan and others (2), Govind v. State and others (3), Krishna Chandra Naik v. Sk. Makbul and others (4) Mahesh Thakur and others v. Lakshman Prasad Thakur and another (5) and State Madhya Pradesh v. Triveni Prasad(6) on which reliance has been placed by counsel for the respondents. We have gone through Ahmad Din v. Abdul Selem, (7) which has been cited with approval in Shambhu Nath Chopra v. State, (8) on which reliance. has been placed by counsel for the appellants. We find however that in Ahmad Din's case (supra) the Punjab High Court did not take proper notice of the requirement of section 4 of the Oaths Act that the courts and persons mentioned in clause (a) could administer oaths only in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law. We have also exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he land. The question before the Land Board was whether the whole land should be treated as a single unit belonging to Joseph or whether it may be divided and treated as separate units of persons in whose favour Joseph made the settlement. If the children of Joseph had acquired rights under the settlement each of them could be treated as entitled to compensation for a separate unit. The State relied on section 8 of the Kerala Government Land Assignment Act 1960 which provides that all provisions, restrictions conditions and limitations contained ha any Patta or other document evidencing an assignment of- Government land shall be valid and take effect according to their tenure, any rule of law or usage to the contrary notwithstanding. Dismissing the appeal, HELD: Tie terms in the 1941 agreement operated as a restraint upon the alientation of the rights only so long as all the amounts due to the Government by way of land revenue were not paid up. Since, in the present case the entire amount had been paid by 10 yearly instalments before the year 1957 and since the Government had effected the mutation in its record acting upon the settlement of 1957 in favour of the children of Jose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settlement of all this land, after he had acquired full ownership rights by fulfilling the terms of the agreement. The Act which is sought to be now applied was then passed. After that, the Kerala Land Reforms Act of 1963. was passed so that the, State Land Board started proceedings for the surrender of these lands in accordance with the provisions of the Land Reforms Act. The only question now before us is whether, by an application of section 8 of the Act, the whole land is to be treated as a single unit belonging to M.T. Joseph (since dead), on the dispositions made by M.T. Joseph, under the deed of settlement executed by him on 15th June, 1957, distributing the land among his children, resulted in separate units for the purposes of compensation for the land surrendered. If the children had acquired right under the deed of settlement each of them could be treated as entitled to compensation for a separate unit. If the deed was of no effect, the mere fact that the children were in possession, under an authority from their father could not change the' ownership of the land in the constructive possession of the father. We have been taken through the deed of agreement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 1957, the correctness of which had not been challenged before us: This settlement deed has been recognized by the Government mutation has been effected in the names of the children and pattas have also. been issued to them. It has been further stated on behalf of the revision petitioners (the heirs of the said Joseph and those who took under the settlement deed dated 15.6.1957) that levy under the Kerala Rice and Paddy (Procurement by Levy) Order, 1966, has been collected from each of the shares under the deed of 1957, that land tax has been imposed on each of the shares separately and agricultural income-tax collected on the income of the properties of each of the sharers . We do not think it is necessary to go into any other question. The High Court was of opinion that some facts had still to be ascertained when the case goes back to the Land Board for proceeding on the footing determined by the High Court. We think that we should make it clear that matters to. be still determined could not, in view of our finding, involve determination of any question of adverse possession of the claimants, the children of M.T. Joseph. For the reasons given above, we dismiss these a ..... 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