Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
PETITIONER:
MAHENDRA KUMAR & ANR.
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH & ORS.
DATE OF JUDGMENT04/05/1987
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
ERADI, V. BALAKRISHNA (J)
CITATION:
1987 AIR 1395 1987 SCR (3) 155
1987 SCC (3) 265 JT 1987 (2) 524
1987 SCALE (1)1257
ACT:
Indian Treasure--Trove Act, 1878---Ss. 8, 9, 13 and
14--Suit-Filing of--Determination of ownership of place
where treasure found-When arises--Filing of
counter-claim----Period of limitation.
Civil Procedure Code, 1908--Order VIII, Rule
6A(1)--Filing of counter--Claim after filing of written
statement--Whether maintainable.
HEADNOTE:
The predecessor-in-interest of the appellants, namely,
Babulal, purchased a house in the year 1947 from the sons of
one Mannulal. The appellants and the respondents No. 6 to 8
are the sons of the other three brothers of Mannulal. In the
year 1976 the respondents Nos. 2 to 5 started reconstructing
or renovating their house and in the course of digging the
plinth a treasure consisting of gold and silver ornaments
and currency notes was found. They intimated the discovery
of the treasure to the Collector, who issued a notification
under s. 5 of the Indian Treasure Trove Act, 1878. Respond-
ents Nos. 2 to 5, the appellants and the respondents Nos. 6
to 8 flied claims before the Collector. The Collector held
that the respondents Nos. 2 to 5, the finders of the treas-
ure, are the owners of the house from where the treasure was
found and permitted them under s. 8 to institute a suit to
establish their right before February 22, 1979.
The respondents Nos. 2 to 5 instituted a suit for decla-
ration of their title to the treasure without making the
other claimants before the Collector parties to the suit. On
an application filed under Order I, Rule 10 of the Code of
Civil Procedure by the appellants and respondents Nos. 6 to
8, the District Judge made them defendants in the suit.
Thereafter, they filed their written statement, denying the
claim 01’ the respondents Nos. 2 to 5 to the treasure and
claimed the title thereof to them.
After the filing of the written statement, the appel-
lants flied a counter-claim claiming title to the treasure.
The respondents Nos. 2 to 5
156
filed an application praying that the counter-claim should
be dismissed contending that it was barred by limitation as
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
prescribed in s. 14 of the Act and that it was also not
maintainable under Order VIII, Rule 6A(1) of the Code 01’
Civil Procedure. The District Judge dismissed the counter-
claim holding that it was barred by s. 14 of the Act. In the
Revision, the High Court upheld the order of the District
Judge and further held that the counter-claim having been
filed after the filing of the written statement, was not
maintainable under Order VIII, Rule 6A(1) of the Code of
Civil Procedure.
Allowing the Appeal to this Court,
HELD: 1. The order of the District Judge and the Judg-
ment of the High Court are set aside. The District Judge is
directed to proceed with the hearing of the suit and the
counter-claim in accordance with law. [164F-G]
2. Under the scheme of the Indian Treasure Trove Act,
1878 two kinds of suits can be filed at two stages, namely,
one under s. 8 and the other under s. 14. Section 8 provides
that if the Collector has reason to believe that the treas-
ure was hidden by any person appearing before the Collector
within one hundred years or by some other person under whom
such person claims, the Collector shall adjourn the hearing
for such period as he deems sufficient to allow the claimant
to institute a suit to establish his right to the treasure.
[161G-H; 162A]
3. On the other hand, the question of filing a suit
under s. 14 will not arise unless the Collector makes a
declaration under s. 9 that the treasure is ownerless. Such
a declaration under s. 9 will be made by the Collector if he
sees no reason to believe that the treasure was not hidden
within one hundred years or if no suit is instituted under
s. 8 within the period for which the hearing is adjourned by
the Collector or if the plaintiff’s claim is rejected.
[162B]
4. If no such contingencies as mentioned in s. 9 take
place, the Collector will have no jurisdiction to make a
declaration that the treasure is ownerless. If, however, any
of such contingencies happens and the Collector makes a
declaration under s. 9 and two or more persons have appeared
before the Collector each claiming the ownership of the
place where such treasure was found or the finder of the
treasure disputes the right of any person who has so ap-
peared and claimed, the Collector shall make an order under
s. 13 staying the proceedings with a view to the matter
being enquired into by a Civil Court.
157
5. The object of an enquiry as to the ownership of the
place by the Civil Court is necessary inasmuch as s. 10 of
the Act provides that when a declaration has been made in
respect of any treasure under s. 9, such treasure shall
either be delivered to the finder or be divided between him
and the owner of the place in which it has been round.
[162F]
6. A suit under s. 14 relates to the establishment of
the ownership of the place where the treasure was found for
the purpose of division of the treasure between the finder
and the owner of the place and that such a suit has to be
filed within one month from the date of such order to obtain
a decree declaring his right after the Collector had de-
clared the treasure to be ownerless under s. 9 after making
a claim before the Collector under s. 13. The words "such
order" in s. 14, refer to the order passed by the Collector
under s. 13. [163B]
7. Section 8 and s. 13 and s. 14 contemplate two differ-
ent situations. While under s. 8 the suit has to be filed
within the period during which the hearing stands adjourned,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
the suit under s. 14 has to be filed within one month of the
order of the Collector under s. 13 of the Act. [163C-D]
8. To hold that suits under s. 8 and s. 13 are both
governed by the limitation prescribed by s. 14, will be to
do violence to the provisions of the Act and the clear
intention of the Legislature as indicated in the provisions.
[163E]
9. In the instant case, as the respondents Nos. 2 to 5
have instituted the suit within the period during which the
hearing before the Collector stood adjourned under s. 8, the
question of making a declaration by the Collector under s. 9
of the Act does not arise and, consequently, there is no
scope for filing any suit under s. 14 of the Act. Thus s. 14
has no manner of application to a suit filed under s. 8 of
the Act. [163G-H; 164A]
10. Rule 6A(1) of Order VIII of Code of Civil Procedure
does not bar the filing of a counter-claim by the defendant
after he had filed the written statement. What is laid down
under Rule 6A(1) is that a counter-claim can be filed,
provided the cause of action had accrued to the defendant
before the defendant had delivered his defence or before the
time limited for delivering his defence has expired, whether
such counter-claim is in the nature of the claim for damages
or not. [164B-C]
11. The High Court has misread and misunderstood the
provision of Rule 6A(1) in holding that as the appellants
had filed the counter-
158
claim after the filing of the written statement, the coun-
ter-claim was not maintainable. Under Article 113 of the
Limitation Act, 1963, the period limitation of three years
from the date the right to sue accrues, has been provided
for any suit for which no period of limitation is provided
elsewhere in the Schedule. in the instant case, the
counter-claim has been filed by the appellants within three
years and as the cause of action for the counter-claim had
arisen before the filing of the written statement, the
counter-claim was, therefore quite maintainable. [164C-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4053 of
1985.
From the Judgment and Order dated 25.1.1985 of the
Madhya Pradesh High Court in Civil Revision No. 378 of 1984.
U.R. Lalit, S.S. Khanduja, Y.P. Dhingra and Mrs. Madhu
Kapoor for the Appellants.
T.C. Sharma and S.K. Gambhir for the Respondents.
The Judgment of the Court was delivered by
DUTT, J. This appeal by special leave is directed
against the judgment of the Madhya Pradesh High Court,
whereby the High Court affirmed the order of the District
Judge, Bhopal, dismissing the counter-claim by the appel-
lants on the ground that it was barred by section 14 of the
Indian Treasure-Trove Act, 1878, hereinafter referred to as
’the Act’. The High Court also held that the counter-claim
was not maintainable under sub-rule (1) of Rule 6A of Order
VIII of the Code of Civil Procedure, as the same was filed
by the appellants after the filing of the written statement.
The predecessor-in-interest of the appellants, namely,
Babulal, purchased a house in Bhopal in the year 1947 from
the sons of one Mannulal. The appellants and the respondents
Nos. 6 to 8 are the sons of the other three brothers of
Mannulal. In the year 1976, the respondents Nos. 2 to 5, who
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
were the heirs and legal representatives of the said Babu-
lal, started reconstructing or renovating the house and for
that purpose they commenced digging the plinth. In the
course of digging, a treasure consisting of gold and silver
ornaments and also Government currency notes amounting to
Rs.2,900 was found. The respondents Nos. 2 to 5 intimated
the discovery of the treasure to the Collector of the Dis-
trict, who issued a notification under section 5 of
159
the Act requiting all persons claiming the treasure,. or any
part thereof, to appear personally or by agent before him on
the day and place mentioned in the notification. Pursuant to
the said notification, the respondents Nos. 2 to 5, and the
appellants and the respondents Nos. 6 to 8 filed claims
before the Collector. It has been held by the Collector that
the respondents Nos. 2 to 5, the finders of the treasure,
are the owners of the house from where the treasure was
found during excavation undertaken by them with a view to
starting reconstruction, and he permitted them under section
8 of the Act to institute a suit in the Civil Court to
establish their right before February 22, 1979.
The respondents Nos. 2 to 5 instituted a suit being
Civil Suit No.1-A of 1979, in the Court of the District
Judge, Bhopal, for a declaration of their title to the
treasure found by them. The respondents Nos. 2 to 5 did not,
however, make the other claimants before the Collector
including the appellants, parties to the suit. The appel-
lants and the respondents Nos. 6 to 8 made an application
for their addition as parties to the suit under the provi-
sion of Order I, Rule 10 of the Code of Civil Procedure. The
learned District Judge allowed the said application and,
accordingly, they were made defendants in the suit.
Thereafter, the appellants and the respondents Nos. 6 to
8 filed their written statement, inter alia, denying the
claim of the respondents Nos. 2 to 5 to the treasure. They
claimed title to the treasure.
After the filing of the written statement, the appel-
lants filed a counter-claim claiming title to the treasure.
It is not necessary for us to state the basis of the claims
of the parties to the treasure. The respondents Nos. 2 to 5
filed an application praying that the counter-claim should
be dismissed contending that it was barred by limitation as
prescribed under section 14 of the Act and that it was also
not maintainable under Order VIII, Rule 6A(1) of the Code of
Civil Procedure. The learned District Judge came to the
finding that the counter-claim was barred by section 14 of
the Act and, in that view of the matter, dismissed the
counter-claim. Being aggrieved by the said order of the
learned District Judge, the appellants and the said respond-
ents Nos. 6 to 8 moved the High Court in revision against
the same. The High Court upheld the order of the learned
District Judge that the counterclaim was barred by limita-
tion as prescribed by section 14 of the Act.The High Court
further held that the counter-claim having been filed after
the filing of the written statement, it was not maintainable
under Order VIII, Rule 6A(1) of the Code of Civil Procedure.
Hence this appeal by special leave.
160
At this stage, it is necessary to refer to some of the
provisions of the Act. Section 4 of the Act provides, inter
alia, for the giving of notice by the finder of treasure to
the Collector containing the details of the treasure. The
treasure may be deposited in the nearest Government Treasury
or the finder may give the Collector such security as the
Collector thinks fit to produce the treasure at such time
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
and place, as he may, from time to time, require. Under
section 5, the Collector shall, after making such enquiry,
if any, as he thinks fit, issue a notification requiting the
claimants to the treasure to appear before him on a day and
at a place mentioned in the notification, such day not being
earlier than four days or later than six months, after the
date of the publication of such notification. Section 6
provides that any person having claimed any fight to such
treasure or any part thereof, as owner of the place in which
it was found or otherwise, and not appearing as required by
the notification issued under section 5, shall forfeit such
right. Sections 7, 8, 9, 13 and 14 which are relevant for
our purpose are extracted below:-
"S. 7 On the day notified under section 5, the
Collector shall cause the treasure to be
produced before him, and shall enquire as to
and determine
(a) the person by whom, the place in
which, and the circumstances under which, such
treasure was found; and
(b) as far as is possible, the person
by whom, and the circumstances under which,
such treasure was hidden.
S.8. If, upon an enquiry made under section 7,
the Collector sees reason to believe that the
treasure was hidden within one hundred years
before the date of the finding, by a person
appearing as required by the said notification
and claiming such treasure, or by some other
person under whom such person claims, the
Collector shall make an order adjourning the
hearing of the case for such period as he
deems sufficient, to allow of a suit being
instituted in the Civil Court by the claimant,
to establish his right.
S.9. If upon such enquiry the Collector sees
no reason to believe that the treasure was so
hidden; or
If, where a period is fixed under section 8,
no suit is
161
instituted as aforesaid within such period to
the knowledge of the Collector; or
if such suit is instituted within
such period, and the plaintiff’s claim is
finally rejected;
the Collector may declare the treasure to be
ownerless.
Any person aggrieved by a declaration
made under this section may appeal against the
same within two months from the date thereof
to the Chief Controlling Revenueauthority.
Subject to such appeal, every such
declaration shall be final and conclusive."
"S. 13. When a declaration has been made as
aforesaid in respect of any treasure, and two
or more persons have appeared as aforesaid and
each of them claimed as owner of the place
where such treasure was found, or the right of
any person who has so appeared and claimed is
disputed by the finder of such treasure, the
Collector shall retain such treasure and shall
make an order staying his proceedings with a
view to the matter being enquired into and
determined by a Civil Court.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
S. 14. Any person who has so appeared and
claimed may, within one month from the date of
such order, institute a suit in the Civil
Court to obtain a decree declaring his right
and in every such suit the finder of the
treasure and all persons disputing such claim
before the Collector shall be made
defendants."
Under the scheme of the Act, two kinds of suits can be
filed at two stages, namely, one under section 8 and the
other under section 14 of the Act. Section 8 provides that
if the Collector has reason to believe that the treasure was
hidden by any person appearing before the Collector within
one hundred years or by some other person under whom such
person claims, the Collector shall adjourn the hearing for
such period as he deems sufficient to allow the claimant to
institute a suit to establish his right to the treasure. So
under section 8, the suit has to be filed by the claimant
within the period for which the hearing
162
of the case is adjourned for the establishment of his right
to the treasure.
On the other hand, the question of filing a suit under
section 14 will not arise unless the Collector makes a
declaration under section 9 that the treasure is ownerless.
Such a declaration under section 9 will be made by the
Collector if he sees no reason to believe that the treasure
was not hidden within one hundred years or if no suit is
instituted under section 8 within the period for which the
hearing adjourned by the Collector or if the plaintiffs
claim is rejected. An appeal lies against a declaration by
the Collector to the Chief Controlling Revenue Authority and
subject to the appeal, such declaration shall be final and
conclusive. If, however, no such contingencies as mentioned
in section 9 take place, the Collector will have no juris-
diction to make a declaration that the treasure is owner-
less.
If however, any of such contingencies happens and the
Collector makes a declaration under section 9 and two or
more persons have appeared before the Collector each claim-
ing the ownership of the place where such treasure was found
or the finder of the treasure disputes the fight of any
person who has so appeared and claimed, the Collector shall
make an order under section 13 staying the proceedings with
a view to the matter being enquired into by a Civil Court.
It may be noticed here that the claim made under section 13
by the rival claimants relate to the ownership of the place
and not to the ownership of the treasure for, it has been
already noticed that the declaration by the Collector under
section 9 that the treasure is ownerless shall, subject to
the appeal to the Chief Controlling Revenue Authority, be
final and conclusive. The object of an enquiry as to the
ownership of the place by the Civil Court is necessary is as
much as section 10 of the Act provides inter alia that when
a declaration has been made in respect of any treasure under
section 9, such treasure shall either be delivered to the
finder or be divided between him and the owner of the place
in which it has been found.
Thus it is manifestly clear that if no declaration is
made under section 9, there is no question of filing a suit
under section 14 of the Act. While a suit under section 8
relates to the establishment of the right of the claimant to
the treasure, a suit under section 14 relates to the estab-
lishment of the ownership of the place where the treasure
was found for the purpose of division of the treasure be-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
tween the finder and the owner of the place.
Section 14 lays down that such a suit has to be filed within
one
163
month from the date of such order to obtain a decree declar-
ing his right.
It is manifestly clear from section 14 that the suit
referred to therein is a suit to be filed by a person for
the establishment of his right after the Collector had
declared the treasure to be ownerless under section 9 after
making a claim before the Collector under section 13. The
words "such order" in section 14, in our view, refer to the
order passed by the Collector under section 13. Further, the
placement of section 14 after section 13 of the Act points
only to the filing of the suit by a person after the Collec-
tor had made an order staying the proceedings under section
13. The suit contemplated by section 8 of the Act has to be
filed by the claimant within the period for which the hear-
ing of the case is adjourned. Such period for which the
hearing under section 8 is adjourned by the Collector, may
be more than a month. It is absurd to think that although
section 8 provides that the suit has to be filed within the
period for which the hearing is adjourned, yet it has to be
filed within one month under section 14. Section 8 and
sections 13 and 14 contemplate two different situations.
While under section 8 the suit has to be filed within the
period during which the hearing stands adourned, the suit
under section 14 has to be filed within one month of the
order of the Collector under section 13 of the Act. To hold
that suits under section 8 and section 13, are both governed
by.the limitation prescribed by section 14, will be to do
violence to the provisions of the Act and the clear inten-
tion of the Legislature as indicated in the provisions.
Another aspect in this regard may be considered. It may
be argued that as the Collector had not allowed the appel-
lants and the respondents Nos. 6 to 8 to file a counter-
claim or a suit, the suit was not maintainable. In our
opinion, the question of filing a counter-claim arises after
a suit is filed by the claimant under section 8. It may be
that there is no substantial difference between a counter-
claim and a suit, but nonetheless a defendant cannot be
prevented from filing a counter-claim under the Code of
Civil Procedure.
In the instant case, as the respondents Nos. 2 to 5 have
instituted the suit within the period during which the
hearing before the Collector stands adjourned under section
8, the question of making a declaration by the Collector
under section 9 of the Act does not arise and, consequently,
there is no scope for filing any suit under section 14 of
the Act for the establishment of the right to ownership of
the place where the treasure was found by the respondents
Nos. 2 to 5. Thus
164
section 14 has no manner of application to a suit filed
under section 8 of the Act.
The next point that remains to be considered is whether
Rule 6A(1) of Order VIII of the Code of Civil Procedure bars
the filing of a counter-claim after the filing of a written
statement. This point need not detain us long, for Rule
6A(1) does not, on the face of it, bar the filing of a
counter-claim by the defendant after he had filed the writ-
ten statement. What is laid down under Rule 6A(1) is that a
counter-claim can be filed, provided the cause of action had
accrued to the defendant before the defendant had delivered
his defence or before the time limited for delivering his
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
defence has expired, whether such counterclaim is in the
nature of a claim for damages or not. The High Court, in our
opinion, has misread and misunderstood the provision of Rule
6A(1) in holding that as the appellants had filed the coun-
ter-claim after the filing, of the written statement, the
counter-claim was not maintainable. The finding of the High
Court does not get any support from Rule 6A(1) of the Code
of Civil Procedure. As the cause of action for the counter-
claim had arisen before the filing of the written statement,
the counter-claim was, therefore, quite maintainable. Under
Article 113 of the Limitation Act, 1963, the period of
limitation of three years from the date the right to sue
accrues, has been provided for any suit for which no period
of limitation is provided elsewhere in the Schedule. It is
not disputed that a counter-claim, which is treated as a
suit under section 3(2)(b) of the Limitation Act has been
filed by the appellants within three years from the date of
accrual to them of the fight to sue. The learned District
Judge and the High Court were wrong in dismissing the coun-
ter-claim.
For the reasons aforesaid, the appeal is allowed. The
order of the learned District Judge and the judgment of the
High Court are set aside. The learned District Judge is
directed to proceed with the hearing of the suit and the
counter-claim in accordance with law. The appellants shall
pay court fee on the counter-claim, if not already paid,
within such time as may be fixed by the learned District
Judge.
A.P.J. Appeal
allowed.
165