JUDGMENT U.N. Bhachawat, J.- l. This is an appeal by the State of Madhya Pradesh against the judgment and decree of the Court of the District Judge, Shivpuri, dated 31st October 1975 in Civil Suit No. 1-A of 1974, whereby the plaintiff-respondent's suit for damages has been decreed against the defendant-appellant (for short, hereinafter referred to as 'the Government') for a sum of Rs. 6,80,700/-, payable with interest at the rate of 6 percent per annum from the date of the decree till realisation, with costs. 2. The plaintiff is a public limited Company, which was incorporated on 17th December 1942, (for short, hereinafter referred to as 'the Company'). The business of the Company has been to manufacture Katha and its by-products. For this the Company has been running a factory known as 'Katha mill' at Shivpuri. 3. Katha is manufactured from heart-wood of 'Khair' trees. One Diwan Daulatram "as the Managing Director of the Company. Since prior to the actual incorporation of the Company, the Company had started negotiations with the Government in the matter of obtaining exclusive right to take 'Khair' trees from the: reserved forests of districts Shivpuri, Sheopur and Guna of the quondam State or Gwalior, which now forms part of the present State of Madhya Pradesh. After prolonged negotiations, the Government agreed to grant the Company a lease of the reserved forests of these areas for twenty years for the exclusive extraction of Khair wood, sanction for which was accorded by Gwalior Darbar, the sovereign authority of the quondam State of Gwalior, on 3-5-1943. 4. The outlines of the agreement in this connection which received the assent of the Darbar of the quondam State of Gwalior (His Highness, the ruler) is Ext. D-21 which is equivalent to Ext. P-3-appendix 3. The term regarding the period of lease mentioned in this is "the period of this lease is fixed for 20 years." 5. The outlines of the agreement (Ext. D-21) were submitted to the Executive Council for favour of sanction. D-21 which is equivalent to Ext. P-3-appendix 3. The term regarding the period of lease mentioned in this is "the period of this lease is fixed for 20 years." 5. The outlines of the agreement (Ext. D-21) were submitted to the Executive Council for favour of sanction. The proceedings in this connection of the Executive Council as also of the Darbar's order which is exhibit D-22 on the record are set out hereinbelow :- "The Council respectfully submits that the lease may be granted on the terms and conditions laid down in the above note and the Draft agreement modified to the effect that the lease money in view of the length of period be fixed at Rs. 44,300/-per annum. Dated. 26-4-43. Sd./- illegible. DARBAR ORDER Guzarish of the council is approved. Sd/- J.M. Scindia. 3- 5-43." 6. The case of the plaintiff has been that after the sanction of the Darbar referred to hereinabove, on 3-5-1943", a formal agreement of lease (Ext. P-31). Incorporating the terms and conditions agreed to between the parties was drawn on 9-2-1947 and was signed by the plaintiff, but the period of 20 years of the lease granted had commenced from 3-5-1943 and was to terminate after the expiry of 20 years from this date on 2-5-1963. It would be useful here at this stage to set out hereinbelow the relevant allegations in this regard in the plaint, as the central point of controversy between the parties is about the rate of commencement of the lease :- “* * * (6) "That the Gwalior Darbar sanctioned the lease on 3-5-1943." * * (7) "That the Gwalior Darbar sanctioned the lease for twenty years and though the terms of the lease were agreed, the formal agreement 'was executed on 9-2-1947 and the plaintiff signed it on 9-2-1947." (8.) "That in the Gwalior State Samvat commenced from 1st July and ended on the 30th June next year." (9.) "That the period of lease mentioned in the above agreement is 20 years and described in the following terms: "The period for this lease is fixed for 20 years from Samvat 1999/2000 to 2018/2019 both inclusive." (10.) That as mentioned above the Gwalior Darbar sanctioned the forest lease on 3-5-1943, thereafter the plaintiff was allowed to start work under the lease. Thus the lease commenced from 3-5-1943 and It is to continue for 20 years terminating on 2-5-1963." * * * (12.) x "That prior to 3-5-1943 the date on which the lease was sanctioned by Gwalior Darbar the plaintiff did not either operate in the forest or act under the lease." (26) © "That the lease period as mentioned in the agreement is for 20 years. i.e., from 1999/2000 to 2018/2019 both inclusive. Therefore, it includes a portion of Samvat 2019 as well. (d) That the period can only be interpreted in light of Samvat which prevailed in Gwalior State when the parties came to agreement. (e) That in the Gwalior State-the Samvat commenced from 1st July and ended on 30th June next year. (f) That the plaintiff Company's lease commenced from 3-5-43 when Gwalior Darbar gave sanction. The first year of the lease is from 3-5-1943 to 2-5-1944. (g) That to express the 1st year of the lease period 3-5-43 to 2-5-44 two Gwalior Samvat numerals, i.e., 1999/2000 have been used. The plaintiff had no right to work the lease prior to the date of sanction." x x x (l) That the intention of the parties is to be gathered from the correspondence leading to the agreement where 20 years period is mentioned. Therefore, the lease is to commence from 3-5-1943 and therefrom the plaintiff is entitled to fell and extract 'Khair' wood from the forest under the lease for 20 years. X x x." 7. On the above averments as to the commencement and termination of the date of the lease, the Company contended that it was entitled to work the forest till 30-6-1963; the Government unauthorisedly did not allow it to work after June 1962, which resulted in damages to the Company to the tune of Rs. 6,80,700/-, and the Government is liable to pay the same. 8. Earlier to the present suit, there was a litigation between the parties which, in substance, related to the question of entitlement of the Government for the lease money of Samvat year 1999, the necessary details regarding which shall be stated hereinafter at an appropriate stage. At this stage, it would suffice to say that in that litigation the Company, inter alia contending that the Government was not entitled to the lease money for Samvat year 1999, filed a suit for restraining the Government from recovering that amount. At this stage, it would suffice to say that in that litigation the Company, inter alia contending that the Government was not entitled to the lease money for Samvat year 1999, filed a suit for restraining the Government from recovering that amount. The claim was resisted by the Government and, ultimately, the suit of the Company in that regard was dismissed. The matter had travelled upto this Court and was decided by this Court vide its judgment dated 5-5-1973 (Ext. P-37). The Company, relying on the aforesaid judgment (Ext. P-37) has, in the present suit, contended that in that judgment it was decided that in the lease of 20 years, Samvat year 1999 was not included; that judgment is res judicata between the parties and, as such conclusive between the parties and that the period of the lease was to end on 30th June 1963. 9. The Government has resisted the claim of the Company, inter alia contending that a formal assent of the Darbar was signed on 3-5-1943; the terms of the lease were finalised long before and in anticipation of the assent of the Darbar on the term, agreed the Company was allowed and, in fact, bad started the work in the year 1942 and had also worked and used all the forest produce assigned for Samvat year 1999; the period of 20years started from Samvat year 1999 and ended with Samvat year 2018; the interpretation of the lease period by joining two Samvat years, i.e. 1999-2000 to 2018-2019 is not correct; that it does not denote the financial years of Samvat of the quondam State of Gwalior; the State's Samvat year was always in singular figure and the Government never accepted the interpretation put by the Company and that is evident from the fact that the Government did not sign the document (Ext. P-31). It was further contended to the effect that the document (Ext. P-31) ""being unilateral and not having the assent of the Darbar, no suit on the basis of that document, or contract, as alleged, with regard to the commencement and termination of the period of the lease, is maintainable and the Government is not liable to pay any damages. P-31). It was further contended to the effect that the document (Ext. P-31) ""being unilateral and not having the assent of the Darbar, no suit on the basis of that document, or contract, as alleged, with regard to the commencement and termination of the period of the lease, is maintainable and the Government is not liable to pay any damages. The Government also denied the plea of res judicata contending that the matter with regard to the commencement and interpretation of the terms relating to that was not a subject matter of issue in the previous suit. The amount of damages claimed by the Company was also denied. 10. The points for determination that arise in the light of the arguments advanced by the learned counsel for the parties are these:- (i) Whether the alleged contract is not enforceable for (a) want of sanction of the Darbar, (b) having not been signed on behalf of the Government, and © having been signed on behalf of the Company by a person not so authorised; (ii) Whether Samvat year 1999 of the quondam State of Gwalior was included in the period of 20 years and, therefore, the contracted period, i.e., the so-called lease expired with the expiry of Samvat year 2018; (iii) whether the plea about inclusion of Samvat year 1999 is barred by res judicata in view of the decision of this Court in First Appeal No. 24 of 1966 decided on 5-5-1973 (Ext. P-37); and (iv) whether the Company has failed to prove the quantum of damages and is also not entitled to damages for its failure to aver and prove the non-existence of the means for avoiding the damages and, on the contrary, the Company's own evidence discloses that it had the means to avoid the damages. 11. We now proceed to decide the points ad seriatim. Point No. (i) (a):-It was contended on behalf of the company that the question of want of sanction of the Darbar cannot be permitted to be raised, as this point has not been raised in the written statement by the Government. It was argued that the Government denied the contract (Ext. P-31), which is the basis of the suit, and this denial cannot be treated to be a denial of the legality and enforceability of the contract. It was argued that the Government denied the contract (Ext. P-31), which is the basis of the suit, and this denial cannot be treated to be a denial of the legality and enforceability of the contract. The Government, it was argued, by merely denying the factum of the contract and not alleging its own enforceability on the ground of want of sanction of the Darbar, in law, must be held bound by its pleadings and is precluded from assailing the legality or validity of the contract on that ground. The learned counsel for the Company in support of his argument had relied on the decisions in Kalynapur Lime Works v. State of Bihar; AIR 1954 SC 165 ); Union of India v. Surjit Singh Atwal (1979 UJ (SC) 209 S. A. Husain v. Tayabba Begam ( AIR 1973 All. 54 ) and Tantooram Maghlla v. Chandrika Sukbiram (1960 MPJL 673). This question was combated by the learned counsel for the Company on merits also, with which we shah deal with later on at an appropriate stage. We first proceed to decide the preliminary question whether this point can be taken into consideration or not. 11.01. The argument of the learned counsel for the Government was that it is an admitted position that the alleged contract (Ext. P-31) does not have the sanction or approval of the Darbar. Whether the sanction was necessary or not is a pure question of law, which can be decided on the facts already on record and is a question which goes to the root of the case. 11.02. It is a common ground that a forest contract, like the instant one, in the quondam State of Gwalior could be granted only with the sanction of the Darbar. It is true that in the original written statement, no such specific plea was raised. In this Court an application for amending the written statement was moved, which has been allowed vide our order dated 28th October 1983 and by way of amendment it has been contended :- "It is further submitted that the alleged agreement dated 9-2-47 has not been executed by both the parties to the agreement, hence it did not become contract. Moreover, the alleged agreement is a unilateral document and that too not signed and executed by the Managing Director of the plaintiff Company. Moreover, the alleged agreement is a unilateral document and that too not signed and executed by the Managing Director of the plaintiff Company. Further more, the alleged agreement has not been executed according to the law then prevailed with due formalities, hence it is not admissible in evidence." (Emphasis supplied) The emphasized portion is comprehensive so as to include within its scope the plea of necessity of the sanction of the Darbar. At the relevant time, the Forest Act in force was 'Kanoon Jangalat, State Gwalior which had come into force from 1st of July, Samvat year 1969. Section 14 of this Act reads thus ;- ^^ƒ† jdcstkr fjtoZ’kqnk ij dksbZ u;k gd gkfly u gks ldsxk flok; blds fd fdlh dh fojklr ;k Bsds ls ;k [kkl lwjr es fdlh dks njckj vfy;k ls vrk gqvk gksA ^^ On a plain reading of this Section, it is transparently clear that no person can acquire any right in a reserved forest except the one that he acquires by way of inheritance or by a grant by the Darbar either by way of a contract or special grant. Thus, the sine qua non of a valid contract for acquiring any right in the forest under a contract is that, that contract should be with the sanction or the approval of the Darbar. No contract, except a contract entered into this manner, would be a valid and enforceable contract. 11.03. Order VIII Rule 2 of the Code of Civil Procedure does require that the defendant must raise by his pleas all matters which show that the suit is not maintainable, or that the transaction is either void or voidable in point of law; but it cannot be gainsaid that when the necessary facts are available in the plaint itself, it is not necessary for the defendant to particularise them in his defence and to state the legal effect of those facts. The Court are bound to take notice of any ground of illegality appearing on facts in a party's pleading or disclosed otherwise, though his opponent does not raise it in his pleadings. (See Smt. Surasaibalini Devi v. Phanindra Mohan Majumdar. The Court are bound to take notice of any ground of illegality appearing on facts in a party's pleading or disclosed otherwise, though his opponent does not raise it in his pleadings. (See Smt. Surasaibalini Devi v. Phanindra Mohan Majumdar. AIR 1965 SC 1364 The relevant observation in this respect in Smt. Surasaibaeini Debi's case (supra) from Ayyanger, J.'s judgment is as under:- "Where a contract or transaction ex facie is illegal there need be no pleading of the parties raising the issue of illegality and the Court is bound to take judicial notice of the nature of the contract or transaction and mould its relief according to the circumstances. The case before us is not, however, of that type. Even whether the contract is not ex facie legal "if the facts given in evidence clearly disclose the illegality the Court is bound to take notice of this fact even if not pleaded by the defendant." (Per Lindley, L. J. in Scott v. Brown), 1892-2 QB 724 at p. 729. The enunciation of the law on this point by Devlin, J in Edler v. Auerbach 1950-1 KB 359 at p. 371, though more elaborate and summarising the principles formulated by the House of Lords in North-Western Salt Co. Ltd. v. Electrolytic Alkali Co. Ltd. 1914 AC 461, does not contradict the statement by Lindley, L. J". Applying this legal position to the facts of the instant case, discussed hereinabove in par. 11.02, we do not find any impediment in considering the question whether the alleged contract (Ext.P-31) needed the sanction of the Darbar; is invalid for want of sanction of the Darbar and, as such, is unenforceable. The authorities relied on by the learned counsel for the Company, as we shall presently indicate, do not advance the contention of the learned counsel that this question cannot be gone into for want of a plea to that effect in the written statement of the defendant. We may here hasten to make it clear that in the instant case, as already discussed in par. 11.02 above, this plea is covered in the plea raised by the Government by way of amendment in the written statement, though we have examined and are examining this question even on the assumption that such a plea is not there. 11.04. We may here hasten to make it clear that in the instant case, as already discussed in par. 11.02 above, this plea is covered in the plea raised by the Government by way of amendment in the written statement, though we have examined and are examining this question even on the assumption that such a plea is not there. 11.04. In the case of Kalyanpur Lime Works (supra), their Lordships of the Supreme Court have refused to consider the plea of invalidity of the contract on the grounds that it was not in accordance with the provisions of section 30 of the Government of India Act, 1915, and that such a plea was not raised in the pleadings, for the reason that in the facts and circumstances of that case it involved an investigation of facts. The ratio of that case therefore, is that if for deciding a question of law relating to the unenforceability or invalidity of a contract investigation of certain facts is involved, that plea shall not be considered, unless it is raised in the pleadings. This would be apparent from the following observations extracted from that decision:- “It is urged on behalf of the plaintiff, and in our opinion rightly that the objection founded on section 30 involves investigation into the fact whether the draft leases bore the signature of the appropriate authority on behalf of the Government and the plaintiff had no opportunity to meet the point. It appears that the Lime Co., sent six copies of draft leases exhibits 22 and 22 (a) to defendant No.1. These leases are undoubtedly signed on behalf of the plaintiff but the signature of the Collector, who was competent to sign on behalf of the Government, is wanting. The Government produced two copies only but withheld the other four. It is contended that had the other four leases been produced, they would have shown that they bore the signature of the Collector on behalf of the Government. In its application to the trial Court on the 19th September, 1950, the Lime Co. did call for the leases from defendant No.1. The Court made an order on the same date, directing the defendant No. l's pleader to produce them on the date fixed. Another application was made by the Lime Co. In its application to the trial Court on the 19th September, 1950, the Lime Co. did call for the leases from defendant No.1. The Court made an order on the same date, directing the defendant No. l's pleader to produce them on the date fixed. Another application was made by the Lime Co. on the 14th November, 1950, drawing the attention of the Court that the papers had not been producted and praying that the defendant No.1 be reminded to produce them before the next hearing of the suit. The Court on the same day made the order in terms of the plaintiff's prayer. Yet another attempt was made by the plaintiff on the 20th November, 1950, by filing an application that urgent telegrams be sent to the Collector, Shahabad and other officers for producing these documents. The telegrams were sent but the documents were never produced. In view of these facts it seems to us clear that the High Court was not justified in allowing this question to be raised at the time of the arguments when the plaintiff had no opportunity to adduce evidence upon the question of facts whether the leases were signed on behalf of the Government. It is also clear that despite the best efforts of the plaintiff, the Government withheld the production of the other leases. Without going further into the matter, we shall rest our decision on the ground that the question ought not to have been allowed to be raised and we accordingly reject the plea founded on section 30 on this ground." (Emphasis supplied by us). To iterate, in the instant case, no facts other than the facts already on record are necessary to decide the question. 11.05. Similarly, in Surjit Singh Atwal's case(supra), the Supreme Court refused to consider the plea of the invalidity of the contract on the ground of the contract not being in compliance 'with the provisions of section 175 (3) of the Government of India Act, 1935, for the reason that the plea was neither raised in the written statement nor an 'issue was made holding that such a plea was a mixed plea of fact and law and in absence of such a plea, the plaintiff was deprived of raising an alternative claim which Was possible. The relevant observations in this regard are 'as under :- "x x x" "We do not, 'however, desire to go into 'the question as we are satisfied that the Appellate Court Was right in holding that the defendant was not entitled to raise the plea of illegality of the agreement, not having so pleaded in the written statement and not 'having raised any issue with regard to it. We agree with the learned Judges of the Calcutta High Court that to permit such a plea to be raised several years after the suit would greatly prejudice the plaintiff. If such a plea had been raised at the appropriate stage the plaintiff might have come out with a suitable answer, He might have had his 'own pleadings amended either by seeking to rest his cave on the original agreement or under section 65 or section 70 of the Indian Contract Act. We do not wish to speculate on the possible alternate caves which the plaintiff might have put forward had the plea been raised. We only wish to observe that the plea that the provision of section 175 (3) of the Govt. of India Act hail not been complied with is a mixed plea of fact and law. We further agree with the view expressed by the learned Judges of the Calcutta High Court that the illegality of a contract must be specifically pleaded as much as the denial of contract. Order VI Rule 8 provides that where a contract is alleged in any pleading, a bare denial in fact of the express contract alleged or of the matters of fact from which the same may be implied and not as a denial of the legality or sufficiency in law of such contract. Order VIII, rule 2 Civil Procedure Code prescribes that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law. In Kalyanpur Lime Works Ltd. v. State of Bihar and Anr. Order VIII, rule 2 Civil Procedure Code prescribes that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law. In Kalyanpur Lime Works Ltd. v. State of Bihar and Anr. ( 1954 SCR 958 ) the Supreme Court reversed the judgment of the High Court on the ground that the High Court was not justified in allowing to be raised at the time of argument the question whether there was a contravention of section 30 of the Government of India Act,1915." (Emphasis supplied by us) For three reasons, this case does not apply to the instant case: (i) in the instant case, the pleading of the Government (defendant, is there in the written statement, and the plaintiff did not, in answer to that, file any rejoinder; (ii) no further facts, except the facts which are already on record, are necessary to decide the question and, thus, the question is purely a question of law, and (iii) in the instant case, in the light of the nature of the suit, the question of raising an alternative plea under section 65 or section 70 of the Contract Act does not arise, as it is a suit for damages for not permitting the Company to work in the forest for one year, which period was allegedly included in the lease and for which, admittedly, the Government has not realised the lease money. 11.06 The decisions in the cases of S.A. Husain and Tantooram Meghwa (supra) need not be discussed, as they are based on the decision of their Lordships of the Supreme Court in Kalyanpur Lime Works' case (supra), which we have elaborately already discussed hereinabove. 11.07. As a sequel to the above discussion, we reiterate our holding in par. 11.03 and reject the preliminary objection raised in this appeal by the learned counsel for the Company regarding the allowability of the contention raised on behalf of the Government as to the unenforceability and invalidity of the alleged contract (Ext. P-31). 12. We now proceed to consider the effect of contention No. (i) (a). On plain reading of S. 14 of the 'Kanoon Jangalat', Gwalior State, which has been extracted hereinabove in par. P-31). 12. We now proceed to consider the effect of contention No. (i) (a). On plain reading of S. 14 of the 'Kanoon Jangalat', Gwalior State, which has been extracted hereinabove in par. 11.02, it is apparent that the requirement of the sanction of the 'Darbar for a forest contract is imperative and this legal position is not disputed also. What is contended on behalf of the Company is that for the' contract (Ext. P-31), in the light of the sanction accorded by the Darbar to Ext. D-21, no further sanction was necessary. The submission of the learned counsel for the Company had been that substantially there is no variation in the terms and conditions incorporated in Ext. D-21 and Ext. P-31. The term No.3 in Ext. P-31 : to quote "The period for this lease is fixed for 20 years from Samvat 1999/2000 to 2018/2019, both inclusive", is not that substantial which needed a fresh sanction of the Darbar. In his submission, since the period of 20 years was already agreed to and approved by the Darbar, the fixing of the date of commencement of this period of 20 years was only a ministerial work. 12.01. For a better appreciation of the point, it is advisable that the terms and conditions contained in Ext. D-21 'the outlines of the agreement' and that of the alleged contract (Ext. P-31) are placed in juxtaposition hereinbelow :- Exbibit D-21 Outlines of Agreement. "Whereas it is agreed upon between the Conservator of Forests on behalf of the Forests, Department, Gwalior Government, as one party including his successors in office or any officer acting on such behalf or appointed by Gwalior Government for such purpose and on behalf of the Gwalior Forest Products Limited Shivpuri, Gwalior State, hereinafter known as 'Katha Factory' for the purposes of this Agreement as the second party including their sucessors or any officer appointed by the 'Kathe Factory' on such behalf with intimation thereof to the Forest Department Gwalior Government, that Right and extend. 1. The Katha Factory is granted an exclusive right for manufacturing Katha from Khair trees in the reserved forests of the three district of Guna, Shivpuri and Sheopur, Gwalior Government, both by the reformed mechanical processes and the old crude system (the area for such purposes are detailed in clause No.3 of this Agreement). Allotment of annual conpes and felling rules: 2. Allotment of annual conpes and felling rules: 2. The prescriptions regardings the allotment of annual coupes and fellings in and on such areas are appended to this Agreement. The Katha Factory shall abide by such prescriptions. Classification of Khair producing forests: 3. The reserved forests which come under this Agreement are divided into two classes : (a) Accessible (b) Non- accessible. The Katha Factory shall manufacture Katha from the Khair wood available from accessible areas by mechanical and reformed processes and from non-accessible areas by crude method. However, with the previous sanction in writing from the Conservator of Forests, the Katha Factory may manufacture Katha by the crude method in some or a part of an accessible area or utilise the raw material from non-accessible areas for Katha manufacture under mechanical processes. The decision of the Conservator Forests shall be final in this matter. Wages to Labour: 4. The minimum Wages for the labour employed by the Katha factory for making Katha by crude Handi system shall be Rs.30/- a maund. Period of lease: 5. The period of this lease is fixed for 20 years. Payment of lease money ; 6. The lease money shall be paid as follows ; 1/2 of the lease money 1st October every years. 1/2 of the lelse money 1st March every year. Felling of Khair trees only: 7. The Katha factory shall fell and extract Khair trees only from the above-mentioned forests of Guna, Shivpuri and Sheopur districts. Reserved trees: 8. Khair trees shall be a reserved tree in fuel coupes. Employees: 9. The Katha Factory shall have to employ experienced staff to supervise felling under the advice of the Conservator of Forests and shall not employ person or persons as may be considered undesirable by the Forest Department. Departmental instructions and Forest Law. 10. All department instructions and Forest laws shall be applicable to the Katha Factory. No right of transfer: 11. The Katha factory shall have no right to sell or transfer this lease or right wholly or in part without the previous sanction of the Gwalior Government. Responsibility of the Katha Factory: 12. The Katha Factory shall be responsible for all acts of their servants. No loss of forest revenue or lease value. 13. No right of transfer: 11. The Katha factory shall have no right to sell or transfer this lease or right wholly or in part without the previous sanction of the Gwalior Government. Responsibility of the Katha Factory: 12. The Katha Factory shall be responsible for all acts of their servants. No loss of forest revenue or lease value. 13. If the Katha Factory dissolves, they shall pay all Government dues and lease value to the end of that particular year to avoid loss of Government forest revenue. Penalty for breach of rules: 14. The Katha Factory shall pay and defray all charges and cost in case of violation of working plan rules to allow needful departmental action in right time. Powers of the Conservator of Forests: 15. The Conservator of Forests shall be the final authority to deal with all matters regarding this lease. Government right for Khair trees: 16. In cases of emergency the Gwalior Government will have a right of extracting Khair trees free of any charge for of the purposes of other than Katha, fuel or charcoal. 17. The company will have no right over the dead wood of Khair areas and shall not remove such material from the coupes to the factory sites. Left felled material: 18. All felled material left in the annual coupes after the expiry of the extraction period shall vest in the Government. The responsibility of paying the lease money : 19. The Katha Factory shall be bound to pay the annual lease money whether they work the annual coupes or not. 20. Incase of violation of any of the above terms of the agreement the Forest Department will have a right to stop or suspend the fellings and realise the penalty if deemed fit. Exhibit P-31 Agreement Bond. "Whereas it is agreed upon between the Conservator of Forests on behalf of the Forest Department, Gwalior Government as one party including his successors in office or any officer acting on such behalf or appointed by the Gwalior Government for such purposes and the Gwalior Forest Products Ltd., Shivpuri, Gwalior State through its Managing Director Diwan' Daulat Ram hereinafter known as Katha Factory for the purposes of this agreement as the second party including their assigns, successors or nominee or nominees deputed or appointed by the Company on such behalf with intimation thereof to the Forest Department Gwalior Government that: 1. The Katha Factory is granted and accepts an exclusive right of manufacturing Katha from Khair trees in the Reserve Forests of three districts of Guna, Sheopur and Shiv puri, Gwalior State, both by reformed and mechanical processes and the old system subject to the provision of clause 13 of this agreement. 2. For the manufacture of Katha by the reformed mechanical system the Katha Factory shah put up a plant at the allotted site at Shivpuri and agrees not to shift it to any other district without the written sanction of the Conservator of Forests, Gwalior Government. 3. The period for this lease is fixed for 20 years from Samvat 1999/2000 to 2018/2019, both inclusive. The lease money shall be Rs. 44,300/- per annum and it shall be payable in two instalments as follows: Rs. 22,150/- .... before 1st October every year. Rs. 22,150/- ….. before 1st March every year. The Katha Factory accepts to pay these premiums before the due date. 5. Whether for any" reason or reasons the Katha" Factory mayor may not avail of this right, i.e., it may work the allotted annual coupe or not 'it would be binding upon the Katha Factory to make payments of the premium in time. After the expiry of the above dates the rules and regulations for charging the interest will be applicable. 6. In' case the Factory is dissolved before the agreed term of 20 years it shall be liable to pay the full lease money to the end of the year of its dissolution 'The lease money shall be a charge-on the property and the assets of the Company and shall have a priority over all of her dues of the Company. 7. The Katha Factory shall have no right to transfer this lease wholly or in part without the previous written permission of the Gwalior Government. 8. The Katha Factory shall fell and extract trees only from the abovementioned Reserve Forests of Guna, Sheopur and Shivpuri districts subject to the clause l3 of the agreement and-in accordance with the rules laid down by the Department which are appended herewith in appendix No.2. 9. The Katha Factory shall have to employ experienced and well conversant staff to supervise fellings and shall not employ person or persons as may be considered undesirable by the Forest Department. The Factory shall always be responsible for all acts of its servants. 10. 9. The Katha Factory shall have to employ experienced and well conversant staff to supervise fellings and shall not employ person or persons as may be considered undesirable by the Forest Department. The Factory shall always be responsible for all acts of its servants. 10. The factory shall abide by all 'he rules laid down. Departmental instructions, Forest laws in vogue at present or may be promulgated in future. Rules laid down for exploitation of Khair forests given in the appendix No.2 shall form the part of this agreement and will be binding on the Factory. 11. Every year coupes shall be allotted in the month of June before the close of the current year for the next year's working. The Katha Factory shall carry out fellings and extractions in and from that area and follow the prescriptions of the Working Plans. 12. The case of breach of Forest rules, instructions, laws, the Factory shall have to bear the penalties provided under the law and rules and shall pay and defray all charges and costs levid by the Department. 13. Reserve Forests which within the purview of this agreement are divided into two classes ;(a) Accessible (b) non-accessible. The Katha Factory shall manufacture Katha from the Khair wood available from accessible areas by mechanical and reformed processes and from non-accessible areas by the crude method. However, with the previous sanction in writing from the Conservator of Forests, the Katha Factory may manufacture Katha by crude method in some or a part of an accessible area or utilise the raw material from non-accessible areas for Katha manufacture under mechanical processes. A list of the above areas is appended to as appendix No.1. The decision of the Conservator of Forests shall be final in this matter. 14. The minimum wages for the labour employed by the Katha Factory making Katha by crude Handi system shall not be less than Rs. 30/- a maund. 15. The Khair tree will be a Reserve tree for the Katha Factory in the fuel coupes unless it has lost its Katha value and is deemed as such by the Kahta Factory. 16. The Katha Factory will have no right over the dead Khair below 9" girth found in the Khair areas which is unfit for Katha manufacture and shall neither fell nor remove such material from the coupes. 17. 16. The Katha Factory will have no right over the dead Khair below 9" girth found in the Khair areas which is unfit for Katha manufacture and shall neither fell nor remove such material from the coupes. 17. In case the Katha Factory is found using dead Khair wood from the Khair area as fuel it will amount to illicit felling. 18. In case of an emergency the Gwalior Government will have a right of extracting Khair trees free from any charge for the use of the people residing in these localities and for Government use for purpose other than Katha manufacture. 19. In case of violation of any of these terms of the agreement the Forest Department will have a right to stop & suspend the fellings and realise the penalty as it may deem fit. 20. The Conservator of Forests shall be the final authority to deal with all the matters regarding the lease and his decision shall be final and binding on both the parties. x x." x x.", On a comparative study of the two, it is obtainable that there is a variance either by modification or by addition of the terms, which is indicated by asterisks. 12.02. From section 14 of the Jangalat Act, Gwalior State, as already stated hereinabove, it is imperative that the sanction/approval of the Darbar is a sine qua non for the validity of a forest contract. Term No. 15 in Ext. D-21, which, admittedly, has the approval of the Darbar, provides: "The Conservator of Forests shall be the final authority to deal with all matters regarding this lease." On a very liberal construction of the term, it may be construed to mean that the Conservator of Forests \\as duly authorised by the Darbar to execute the contract on behalf of the Darbar, and had he executed the contract, it would have been the best evidence of the sanction of the Darbar. In the instant case, neither it is pleaded by the Company nor-as is apparent from the document (Ext. P-31) itself-it is executed by the Conservator of Forests. In the instant case, neither it is pleaded by the Company nor-as is apparent from the document (Ext. P-31) itself-it is executed by the Conservator of Forests. In this respect, a decision of the Supreme Court in M/s Timber Kashmir Pvt. Ltd. v. The Conservator of Forests AIR 1977 SC 151 occurs to our mind, wherein it has been held :- "When there is any question to be decided as to whether the Government had sanctioned the leases, its actions, apart from the execution of leaser, could be considered. But, once there has been a valid execution of leases by duly authorised officers, the documents would be the best evidence of sanction also. That was one of the objects of prescribing a formal mode of execution of instruments on behalf of the Government apart from the need to protect its interests against mala fide and other unauthorised acts of its servants or agents." A question that arises is whether section 14 of Jangalat Act could be read so as to mean that the sanction/approval of the Darbar or of a person authorised by the Darbar should be by executing a document, or can it be oral. The quondam State of Gwalior was quite a big State. The provision in section 14 of the Jangalat Act about the sanction of the Darbar was obviously made with the object of protecting the interest of the State against malafide and unauthorised acts of its servants or agents, and that object could be attained with certainty by a written consent/approval; otherwise, the scope for committing a fraud would be left. To demonstrate this point, we prefer to give an illustration below :- "A question arises, as has arisen in the instant case, after a long lapse of time regarding a forest contract as to whether it had the sanction/approval of the Darbar and at the time when this question has arisen, the Darbar, whose sanction was alleged, is no more. To demonstrate this point, we prefer to give an illustration below :- "A question arises, as has arisen in the instant case, after a long lapse of time regarding a forest contract as to whether it had the sanction/approval of the Darbar and at the time when this question has arisen, the Darbar, whose sanction was alleged, is no more. The matter, if left to be decided on oral evidence, may result in a fraud; a private individual, interested in the contract, may lead evidence, which may not be true: since the matter has to be decided on the basis of evidence and there is no scientific instrument, like an X-ray, to probe into and find out what the real truth is, the possibility of coming to a conclusion of the sanction on the basis of untrue evidence cannot be ruled out, which, in turn, will jeopardise the public interect." It is, therefore, implicit in the provision of section 14 of the Jangalat Act, that the sanction/approval of the Darbar should be in writing; the authorisation to accord the sanction/approval by the Darbar on his behalf to an officer should also be in writing and the sanction/approval of that authorised officer should further be in writing. "It is not the words of the law, but the internal sence of it that makes the law; the letter of the law is the body of the law; the sense and reason of the law is the soul." (See Plowden (reporter), Commentaries on Reports, Vol. II, Eyston v Studd (1574). p. 465). From the following undisputed facts, it is further apparent that it was intended that the contract in question should be in writing and executed by or on behalf of the Darbar : (1) The form of the document (Ext. D-21) : to quote- "Whereas it is agreed upon between the Conservator of Forests on behalf on the Forest Department, Gwalior Government, as one party x x x x and on behalf of the Gwalior Forest Products Ltd., Shivpuri x x x x as the second party x x x." which has been approved by the Darbar vide Ext. D-22, unequivocally goes to show that the contract document should be bilateral, in writing and executed by both the parties; (2) the form of Ext. P-31 itself; (3) the letter (Ext. D-22, unequivocally goes to show that the contract document should be bilateral, in writing and executed by both the parties; (2) the form of Ext. P-31 itself; (3) the letter (Ext. D-1) dated 27-2-1947 written by the Managing Director of the Company to the Conservator of Forests, the relevant part whereof is “x x and also return one copy duly signed and witnesses by you x x x." and (4) the letter (Ext.D-2) dated 18-6-1947 written by the Managing Director of the Company to the Conservator of Forests, the relevant portion whereof reads: “x x x The agreement for 20 years between the Company and the Gwalior Government as finalised by the Government was required to be signed by us and which we duly singed four months ago has not yet been signed by you. We are surprised to learn this fact at our yesterday's conference. We request you to sign the agreement and give us a signed copy for our record. x x x” In this view of the matter, the provision of S. 14 of the Jangalat Act, on the doctrine of pari materia, can well be equated with Art. 299 of the Constitution. The provisions of Article 299 (1) of the Constitution are mandatory in character and the contravention thereof nullifies the contracts and makes them void. There is no question of estoppel or ratification in such a case. The reason is that the provisions of Art. 299 (1) of the Constitution have not been enacted for the sake of mere form but they have been enacted for safeguarding the Government against unauthorised contracts. The provisions are embodied in the Constitution on the ground of public policy on the ground of protection of general public and these formalities cannot be waived or dispensed with. That is the reason why the plea of estoppel or ratification cannot be permitted in such a case. The provisions are embodied in the Constitution on the ground of public policy on the ground of protection of general public and these formalities cannot be waived or dispensed with. That is the reason why the plea of estoppel or ratification cannot be permitted in such a case. [See Bhikruj Jaipuria v. Union of India, AIR, 1962 SC 113; State of West Bengal v. M/s B. K. Mondal and Sons, AIR 1962 SC 770; State of Bihar v. M/s Karan Chand Thapar and Brothers Ltd., AIR 1962 SC 110 ; Union of India v. A.L. Rallia Ram; New Marine Coal v; The Union of India, AIR 1964 SC 152 ; State of Madhya Pradesh v. Ratanalal, 1968 JLJ 1025= 1968 MPLJ 815 (SC); K.P. Chowdhry v. State of Madhya Pradesh and others, 1966 JLJ 1012= 1966 MPLJ 1057, (SC) and Mulamchand V. State of Madhya Pradesh, AIR 1968 SC 1218 . ] 12.03. The upshot of the above discussion is that since that contract (Ext. P-31) lacks the sanction/approval of the Darbar and has also not been executed by the Conservator of Forests, the person authorised by the Darbar vide Exhibit D-21 ,it is invalid and, hence, unenforceable. The agreement of the learned counsel that the incorporation of the term about the date of the commencement of the contract lease in Ext. P-31, which was not in Exhibit D-21, is not a substantial term and is only a ministerial work, is devoid of substance. The date of commencement is a substantial term of the contracts more so when this being an admitted position that the year of the erstwhile Gwalior State was according to the Samvat and was always in singular and not that part of one Samvat year and part of another Samvat Year formed one year. Therefore, the deviation from this recognition of the Samval Year of the Slate and incorporation of the Samvat year, in Ext. P-31, 1999/2000 and 2018/2019 was of a substantial character which could never be done without the sanction of the Darbar. We may hasten to state here, lest it be misunderstood, that we are not expressing any opinion herein as to the meaning or the effect of writing Samvat year 1999/2000 to 2018/2019 in clause 3 of Exhibit P 31. It shall be dealt hereinafter at an appropriate stage. 13. We may hasten to state here, lest it be misunderstood, that we are not expressing any opinion herein as to the meaning or the effect of writing Samvat year 1999/2000 to 2018/2019 in clause 3 of Exhibit P 31. It shall be dealt hereinafter at an appropriate stage. 13. We now advert to consider contention No. (I) (b) For the party of the reasons given in par. 12.02 that according to the approval of Exhibit D-21 by the Darbar, the contract document had to be bilateral, it was so intended by the parties and it was necessary that Ext. P-31 ought to have been executed on behalf of the Government also. A plethora of authorities was cited by the learned counsel for the Company, viz., (i) Manindranath Dinda v. Amiya Pal Choudhury, AIR 1951 Cal. 361; (ii) Dinanath Kundu v. Janakinath Roy & c., AIR 1928 Cal. 392; (iii) I.L.R. XXXIXCal. 1016; (iv) Syed Ajam Sahib v. Madura Sree Meenatchi Sundareswral Devasthanom. ILR 35 Mad. 95; (v)Girish Chandra Dass v. Kunjalbihari Malo, ILR 35 Ca1. 683; (vi) Ambalavana Pandaram v. Vaguran & c., ILR 19 Mad. 52; (vii) Mt. Parbati v. Sarup Singh, AIR 1928 All. 313; (viii) Narsingh Partab Bahadur Singh v. Mamman Jan, AIR 1929 Oudh 311; (ix) Ram Raghuvir Lal v. United Refineries (Burma) Ltd. & c., AIR 1935 All. 411 & (X) Baburam v. Inam Ullah, AIR 1933 PC 143. We do not deem it necessary to discuss the above decisions at length; to which reference was made in the arguments, for the simple reason that no perusal of these dicisions, we find that they are wholly inapplicable to the facts and the point involved in the instant case. In the instant case, in the light of section 14 of the Jangalat Act and the approval of the form of the contract document by the Darbar, a bilateral contract document executed by both the parties was a must. In this view of the matter, Ex. P-31 cannot be regarded as a valid document of contract/lease or an enforceable contract. The learned counsel for the Company argued that even if the contract/lease document Ex. P-31 is held to be invalid, this invalidity is of no consequence, as the Government had represented that Ex. P-31, was a valid document of contract, binding on the parties acted on it and took benefit thereunder. The learned counsel for the Company argued that even if the contract/lease document Ex. P-31 is held to be invalid, this invalidity is of no consequence, as the Government had represented that Ex. P-31, was a valid document of contract, binding on the parties acted on it and took benefit thereunder. To support this argument, the learned counsel referred to paragraph 19 & 23 of the written statement of the Government (Ex. P-33) in the previous suit and also to paragraph 5 of the statement of K.N. Mishra (D.W. l) & submitted that in that suit, the Government, for its defence, relied on Ex. P-31 and had produced this document in its evidence. It was further submitted that the claim of the Company in that suit, that it was not liable to pay the lease money for Samvat Year 1999 was dismissed, and therefore, now to permit the Government to resile from Ex P-31 would tantamount to permitting the perpetration of legal fraud. He submitted that in the interest of justice, and for promoting honesty and good faith, the plea of the Government should be rejected. The learned counsel relied on the decisions of the Supreme Court in Collector Bombay v. Municipal Corporation of the City of Bombay and others AIR 1951 SC 469 & Union of India v. Anglo Afghan Agencies AIR 1968 SC 718 . The argument of the learned counsel for the Company, though attractive, is devoid of substance. It is significant to note that the Company had in its plaint (Ex.P-32) in the previous suit, referring to the negotiations for 20 years' lease, alleged that vide appendix III (Ex. P-3: Ex. D-21 in the present suit) Government had made an offer about that lease, the method of working which was contained in appendices I and II (Ex.P-l and Ex. P-II in the present suit). It had further averred that ultimately the agreement of that lease was finalised by the Conservator of Forests in 1947 vide Ex. P-32, which was signed for and on behalf of the Company. It was further alleged that the Company was ready to begin the working of the forest in the year 1942 that is, Samvat Year 1999, but due to delay in grant of official permission-which was given in May, 1943-the work of extracting wood and manufacturing Kattha was commenced in the year 1943, that is, Samvat Year 2000. It was further alleged that the Company was ready to begin the working of the forest in the year 1942 that is, Samvat Year 1999, but due to delay in grant of official permission-which was given in May, 1943-the work of extracting wood and manufacturing Kattha was commenced in the year 1943, that is, Samvat Year 2000. Thus, since the Company, for no fault of it-rather on account of the fault of the Government-was unable to work the forest in Samvat Year 1999, it was not liable to pay the lease money for Samvat Year 1999. The Government had, in its written statement (Ex. P-33), pleaded that Appendix III was not a mere offer, but a contract duly signed by both parties; it denied Appendix I to be a part of the contract. It of course admitted that Ex. P-31 was signed on behalf of the Company. While pleading this, inter alia, it had also pleaded in paragraphs 19 and 23 that as per clauses 19 and 20 of appendix III, which are equivalent to clauses 5 and 19 respectively of Ex. P-31, the Company was liable to pay the lease money irrespective of the fact whether it worked the forest or Dot during the year, and also penalty for encroachments. The Company had referred to Ex. E-31 as embodying the agreement. The Government did not admit it, the Government had relied on Ex. D-21 as a duly executed contract between the parties and referring to its (Ex. D-21) terms, which were relevant by way of its defence to the claim of the Company-though not so specifically stated-it is obvious, had without prejudice to its contention, pleaded that those very terms existed in Ex. P-31' also. In this setting of the facts, it cannot be held that the Government made any representation to the Company regarding the validity or enforceability of Ex. P-31 or in any other manner, that the Company had acted on the representation, muchless, to its prejudice and so, the Company is entitled to claim that the Government was bound by all the terms of Ex. P-31, even though it is not executed on behalf of the Government. P-31 or in any other manner, that the Company had acted on the representation, muchless, to its prejudice and so, the Company is entitled to claim that the Government was bound by all the terms of Ex. P-31, even though it is not executed on behalf of the Government. Therefore, the observation of the Supreme Court in 'Anglo Afghan Agencies' case (supra) :- "................that even though the case does not fall within the terms of section 115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution." cannot be pressed into service. Similarly, the decision in Collector of Bombay's case (supra), also does not apply to the present case. We would like to discuss that case a little. The facts of that case were like this: The Government of Bombay vide a resolution, dated 19-12-1865, resolved to grant a market site to the Municipal Corporation, free of rent pursuant to which possession of the site was made over to the then Municipal Commissioner, but no formal grant was executed as required by statute 22 and 23 vic. C. 41. The Municipal Commissioner had the site filled up and levelled at the expense of Corporation. The plans were approved by the Government and the market buildings were erected by the Corporation at considerable expense, and the Corporation continued in possession of the land and building without paying any rent to the Government according to the aforesaid resolution of the Government. On 18-3-1938, the Collector of Bombay informed the Municipal Commissioner that it was proposed to assess the land occupied by the Crawford Market under section 8, Bombay City Land Revenue Act, XI (II) of 1976, and on 31st of January, 1940, the Collector assessed the land. This led to the litigation between the parties and the matter travelled upto the Supreme Court. The holdings of the Supreme Court, as capsulised in the head-notes are set out below:- "Held: (1) that by reason of the non-compliance with the statutory formalities the Government Resolution of 1865 was not an effectual grant passing title in the land to the Corporation and was not an enforceable contract. The holdings of the Supreme Court, as capsulised in the head-notes are set out below:- "Held: (1) that by reason of the non-compliance with the statutory formalities the Government Resolution of 1865 was not an effectual grant passing title in the land to the Corporation and was not an enforceable contract. (2) Per Kania, C.J., (Das and Bose, Patanjali Sastri, JJ. contra) - The position of the Corporation and its predecessor-in-title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land' in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor-in-title of the Corporation took possession of the land under the invalid grant. This possession had continued openly, as of right and uninterruptedly for over 70 years and the Corporation had acquired limited title to it and its predecessor-in-title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity, free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent was just as much an integral part or an inseverable incident of the title so acquired as was the obligation to hold the land for the purpose of a market and for no other purpose. There was no question of acquisition by adverse possession of the Government's prerogative right to levy assessment. The right acquired included a part of it, an immunity from payment of rent which necessarily constituted a right in limitation of the Government's right to assess in excess of the specific limit established and preserved by the Government Resolution within the meaning of S.8 of the Bombay Act II (2) of 1876. Per Chandra Sekhara Aiyar, J.-Though the grant was invalid, the Corporation had now acquired a title by adverse possession to the site. Before a right could be said to be acquired or lost by adverse possession, it must have been the subject of possession by a man without title as against the person with the rightful title. Per Chandra Sekhara Aiyar, J.-Though the grant was invalid, the Corporation had now acquired a title by adverse possession to the site. Before a right could be said to be acquired or lost by adverse possession, it must have been the subject of possession by a man without title as against the person with the rightful title. Right to levy assessment is a prerogative right of the Government and it is hard to conceive of a case where it could be said to be lost by adverse possession. True there can be adverse possession of a limited right like that of a mortgage or a lessee or even a permanent tenant, but still a right must have been enjoyed by a possessor adversely to the claim of the true owner. No right to levy assessment was exercised in this case before March, 1938 and the denial was only afterwards. When the Architectural Improvement Committee proposed to levy a nominal rent, the Government stated that no rent need be charged, as the markets to be built were for the benefit of the whole community. This was a representation made by the Government when the site was given and possession was taken. The accident that the grant was invalid did not wipe out the existence of the representation of the fact that it was acted upon by the Corporation. If the resolution could be read as meaning that the grant was of rent-free land, the case would come strictly within the doctrine of estoppel enunciated in S. 115, Evidence Act. But even otherwise, that is, if there was merely the holding out of a promise that no rent will be charged in the future, the Government must be deemed in the circumstance of this case to have bound themselves to fulfil it. Courts must do justice by the promotion of honesty and good faith, as far as it 'lies in their power. The decision of the Privy Council in AIR (18) 1931 PC 79, was not applicable to the facts of the case as the doctrine of part-performance was not being invoked to clothe a person with title which he could not acquire except by the pursuit of or in conformity with certain legal forms. The decision of the Privy Council in AIR (18) 1931 PC 79, was not applicable to the facts of the case as the doctrine of part-performance was not being invoked to clothe a person with title which he could not acquire except by the pursuit of or in conformity with certain legal forms. Here the Corporation became the full and absolute owner of the site on the lapse of 60 years from the date of the grant." It was the holding by Chandra Sekhara Aiyar, J. that the learned counsel for the Company had relied and contended that the Government was estopped from challenging the validity of Ex. P-31 and that even if estoppel did not apply, on the grounds of morality and honesty, the Government should be held to be bound by EX.P-31 and the terms contained therein. This argument of the learned Counsel does not hold good. The observation or the holding by Chandra Sekhara Aiyar, J., about estoppel etc. was based on the facts of that case, whereas the facts of the instant case are quite distinguishable. It would not be out of place here that there is no question of dishonesty or injustice on the part of the Government, or the Company working to its detriment on the representation of Government. The Company utilised the forest area for the period it had paid to the Government. 14. We now turn to the consideration of contention (i) (c). This contention is stated merely to be rejected. There is ample material on record to show that the Company had ratified the act of the person who had signed Ex. P-31 on behalf of the Company even if his act of signing on behalf of the Company was without authority. Such a course is permissible in view of section 196 of the Contract Act. 15. We now digressing from the discussion of the contention enumerated in paragraph 10 in their chronological order, turn to the consideration of contention No. (iii) prior to contention No. (ii) for the sake of convenience. 15.01. Such a course is permissible in view of section 196 of the Contract Act. 15. We now digressing from the discussion of the contention enumerated in paragraph 10 in their chronological order, turn to the consideration of contention No. (iii) prior to contention No. (ii) for the sake of convenience. 15.01. It was argued by the learned counsel for the Government that the question as to whether the contract/lease of 20 years commenced from the start of Samvat Year 1999 and terminated on the expiry of Samvat Year 2018 of the quondam State of Gwalior was neither directly and substantially in issue, nor was necessary for deciding the question that was involved in the previous suit. As such, any observation made regarding the exclusion of the Samvat Year 1999 from the period of 20 years, in Ex. P-37 (the decision in the previous suit) is irrelevant and Section 11 of the Code of Civil Procedure cannot be brought into play. The counter argument of the learned counsel for the Company, in main, was that the point was directly and substantially in issue and in the alternative, the argument was that by virtue of explanation IV to section 11 of the Code, the point would be deemed to be directly and substantially in issue as looking to the nature of the rival claims in that suit, the Government could and ought to have raised the plea that Samvat Year 1999 was included in the 20 years' period of the lease/contract, which period terminated on the expiry of Samvat Year 2018. 15.02. The previous suit was filed on 9-3-1954. The plaint in that suit is Ex.P-32. The written statement is Ex. P-33 and the issues are Ex. P-34. That suit bad travelled upto this Court and was finally decided vide this Court's judgment dated 5th May, 1973, (Ex. P-37). The controversy in the present suit is whether the contract/lease of the Company commenced from the start of Samvat Year 1999 and expired with the expiration of Samvat Year 2018, or it commenced during a part of Samvat Year 1999, that is from 3-5-1943 and expired in May. 1963, that is, during the Samvat Year 2019. The previous suit was filed by the Company for declaration and injunction that it was not liable to pay a sum of Rs. 1963, that is, during the Samvat Year 2019. The previous suit was filed by the Company for declaration and injunction that it was not liable to pay a sum of Rs. 7,62,750.96, which was being recovered by the Government and, therefore, the Government should be restrained from recovering that amount. 15.03. The aforesaid amount was composed of various items; one of them was a sum of Rs. 44,300/-, which the Government was claiming as a lease-money for the year 1948. The Company challenged the entitlement of the Government to this amount, contending that in February, 1947, the Company was made to pay Rs. 44,500/- as lease money for the Samvat Year 1999, which the Company paid under protest; the Government was not entitled to any lease money for the Samvat Year 1999 as during that year, for no fault of it, but for the fault of the Government, the Company was unable to work in the forest blocks allotted to it for Samvat Year 1999. However, the Government unauthorisedly appropriated that amount towards the lease-money for that year. Therefore, on readjustment of that amount towards the payment of the lease-money, no lease-money was due against the Company for the year 1948. The Government, in counter, had contended that the Company was liable to pay the lease money for the Samvat Year 1999, irrespective of the fact whether it partially or fully utilised the forest blocks that were allotted for that Samvat year, and that the Company did utilise the forest blocks that were allotted for that Samvat Year. From this, it is evident that the controversy between the Parties in the previous suit was limited to the entitlement of the Government for the lease-money for Samvat Year 1999 and neither the interpretation of the term/clause 3 in Ex. P-31, nor whether Samvat Year 1999 was wholly or partly included in the period of 20 years was a matter in issue. 15.04. The governing expression in section 11 of the Code of Civil Procedure is .............. 'the matter directly and substantially in issue has been directly and substantially in issue in a former suit' and explanation IV to this section says 'any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 'the matter directly and substantially in issue has been directly and substantially in issue in a former suit' and explanation IV to this section says 'any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. In the Code of Civil Procedure by Mulla, 14th Edition, Vol. I, at page 81, the author, on a survey of the various decisions, has said: "It is not enough to constitute a matter res judicata that it was in issue in the former suit. It is further necessary that it must have been in issue directly and substantially. A matter cannot be said to have been "directly and substantially" in issue in a suit unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the other (i). It is not enough that the mater was alleged by one party (j). The word "substantial" means of importance and value. A matter is substantially in issue if it is of importance and value for the decision of the main proceeding (k). At the same time it is not necessary to constitute a matter "directly and substantially" in issue that a distinct issue should have been raised upon it; it is sufficient if the matter was in issue in substance (1). [(i) Lonakutty v. Thomman, AIR 1976 SC 1645 ; (j) Sheo Ratan v. Sheo Sahai, (1884) 6 All. 358, 362; (k) Mangu Ramdas v. M. Venkataratnan, 1973 A.A.P. 256; Basti Ram v. Ved Prakash, 1974 A. P. & H. 152; Hanumant Rao v. Amrutnamma, 1970 A.A.P. 221; (l) Soorjomonee v. Suddanund, (1873), 12 Beng. L.R. 304, 315, sup. Vol. I.A. 212; Lilabati v. Vishun Chobey, (1907) 6 C.L.J. 621.] The said author under the caption "Matter Constructively In Issue: Explanation IV" says: "The Plea of res judicata applies, except in special cases, not only' to points on which the Court was actually required by the parties to form an opinion and to pronounce judgment, but to every point which properly belonged to the subject of the litigation' and which the parties exercising reasonable diligence might have brought forward at the time (t). The principle underlying Explanation IV is that res judicata is not confined to issues which the Court actually asked to decide but covers issues of facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them (u). . [(t) Mohar Rai v. State of Bihar, 1968 SC 1281 ; (u) State of U.P. v. Nawab Hussain, (1977) 3 SCR 428 .] 15.05. From the above discussion, it is clear that to apply the bar of res judicata, the matter should in fact or fictionally be directly and substantially in issue. The fiction would apply in respect of only that matter, which might and ought to have been made a ground of attack or defence in the former suit, but which has not been alleged as a ground of attack or defence. The words "might and ought" are very significant. These words reveal that a matter which has no relevance or was not necessary to be raised as a ground of defence would not be covered within the ken of Explanation IV. It was neither necessary in the previous. suit to decide as to whether Samvat Year 1999 was included in 20 years' lease/contract, or as to what was the meaning of clause/term No.3 in Ex. P-31 regarding the commencement and termination of period of 20 years, nor it was necessary for the Government, for the sake of its defence, to have raised the plea that Samvat Year 1999 was included in the lease for 20 years, because the relevant controversy in the previous suit was whether the Company had utilised the forest blocks allotted for Samvat year 1999, and was it liable to pay the lease-money for that year even if it had not utilised. It is obvious that the question of inclusion of Samvat Year 1999 in 20 years' period, alleging Government's interpretation about the date of commencement of the lease/contract, was wholly irrelevant and unnecessary. It is obvious that the question of inclusion of Samvat Year 1999 in 20 years' period, alleging Government's interpretation about the date of commencement of the lease/contract, was wholly irrelevant and unnecessary. To put it differently, the question of inclusion of Samvat Year 1999 in the 20 years' period or the commencement of 20 years' period of the lease/contract from Samvat Year 1999 was not of importance and value for the decision of the question in that suit which is relevant for deciding the point at hand in the instant suit. 15.06 The relevant part of the judgment (Ex.P-37) in the previous suit, on the basis whereof the trial Court has, in the impugned judgment, held that it operates as res judicata and on which the counsel for the Company has placed reliance is :- "The words "twenty years for Samvat 1999 as well" do not mean that Samvat 1999 is included within twenty years. These words mean that the Company will be paying the settled amount for twenty years and also for Samvat year 1999." This observation is per incuriam, inasmuch as it was not at all necessary for deciding the point that was at issue. This would be apparent from the following relevant extract of the judgment (Ex.P-37) : "6. The company's stand in the suit is that it was not liable to pay any lease money for Samvat 1999, that the amount of Rs. 44,300/- paid by it under protest for this year was not appropriated by the Forest Department, and that the Company could insist that the said amount paid by it under protest be appropriated towards the instalments due for the year 1948. The stand of the defendant State of this point is that the Company was liable to pay lease money for Samvat as the State suffered a loss by fore-bearing to auction the 'Khair' forests in that area and the Company undertook to pay the same by its letter Ex. D-2, and that the payment made under protest by the Company was appropriated towards the Company's liability for Samvat 1999 and there can be no question of any adjustment of that amount towards the liability for the year 1948. 7. We may here mention that the administrative year in the Gwalior State commenced from 1st July and ended on 30th June. 7. We may here mention that the administrative year in the Gwalior State commenced from 1st July and ended on 30th June. The season for felling 'Khair' trees in the forests started from 15th October and lasted upto 15th April. The extraction of the felled material could be done upto 15th May. This information is available from Clause 8 of Appendix 1 (Ex. P-2). It will be seen that in October, 1942, the Forest Department was auctioning the 'Khair' forests for Samvat 1999 and the persons who would have taken the leases in that area could have felled the 'Khair' trees from 15th October 1942 to 15th April 1943. As a result of the request of the Company and the promise Contained in Ex. D-2, the State stopped the auctions of the forests for Samvat 1999. We have already quoted the relevant passages from the Company's letter Ex. D-2. In that letter the Company's Managing Director clearly said that "I shall pay the settled annual amount for 20 years for Samvat 1999 as well. With this guarantee, I request you to please cancel 'Khair' auctions for Samvat 1999." The Company clearly undertook to pay the same amount as lease money for Samvat 1999 which was to be settled for the lease for twenty years which was pending approval before His Highness, Gwalior. The words "twenty years for Samvat 1999 as well" do not mean that Samvat 1999 is included within twenty years. These words mean that the Company will be paying the settled amount for twenty years and also for Samvat 1999. On this assurance, the Company requested the Forest Department to cancel the 'Khair' auctions for Samvat 1999. This request was granted and there were no further auctions of the 'Khair' trees in Samvat 1999. The Forest Department acted upon the proposal contained in the letter Ex. D-2 and a contract came into existence between the parties and the Company became liable to pay lease money (as subsequently settled under the lease) also for Samvat 1999, For bearance to sell the 'Khair' forests by the Government was the consideration to support "the promise for payment of lease money for Samvat 1999. 8. D-2 and a contract came into existence between the parties and the Company became liable to pay lease money (as subsequently settled under the lease) also for Samvat 1999, For bearance to sell the 'Khair' forests by the Government was the consideration to support "the promise for payment of lease money for Samvat 1999. 8. Learned counsel for the Company argued that the Company did not work the forests in Samvat 1999 as its lease commenced only after the sanction of His Highness on 3rd May 1943, and; therefore, there can be no liability to pay any lease money for that' year. There is no substance in this argument. The contract that arose between the Company and the State for payment of lease money for Samvat 1999 was not conditional on, the Company getting opportunity to work the forests in, that year. There is nothing like that in the Company's letter Ex. D-2. The consideration for promise to pay lease money 'for Samvat 1999 was not that the Company should be allowed to actually work in that year, but that the State should desist in granting leases to other persons in that year. 'On the assurance of the Company to pay for Samvat 1999, the Government cancelled further auctions of the forests. Therefore, even if the Company did not work the forests in Samvat 1999 it cannot be said that it is not liable to pay the lease money for that year as promised in its letter Ex. D-l. Moreover. it is clear that the potentialities of the forests, which would have been destroyed by granting leases to other persons in Samvat 1999, were fully utilised by the Company. That is clearly proved from the statement of the Managing Director of the Company Shri Daulatram (P.W. 2), (Paragraph 65). From the statement of Daulat Ram, it is also clear that even in Sam vat 1999 the Company was allowed to work one block. It is further clear from his statement that subsequently the Company got the permission for working all the blocks which it could have worked in Samvat 1999. It is thus clear that the trees which could have been cut in Samvat 1999 were later cut and removed by the Company and it is not correct to say that the Company was made to pay the lease money for Samvat 1999 without deriving any benefit. It is thus clear that the trees which could have been cut in Samvat 1999 were later cut and removed by the Company and it is not correct to say that the Company was made to pay the lease money for Samvat 1999 without deriving any benefit. We are, therefore, of opinion that the stand of the defendant-State was right that the Company was liable to pay Rs. 44,300/- for Samvat 1999." 15.07. Learned counsel for the Company bad submitted that in paragraphs 4 and 9 of the plaint (Ex. P-32) in the previous suit, the Company had averred about the contract/lease (Ex. P-31) of which Ex. P-l (Appendix 1) is a part; the Government did not traverse it in its written statement (Ex. P-33) except regarding Ex. P-l. The learned counsel had further submitted what issues No. 1 and 2 in the previous suit which rest thus: Issue No.1: "KYA PARISHISTHA KRAMANK 1 ANUBANDHA KA BHAG HAl?" Issue No.2: "KY A WADI KI JIMME SAMVAT 1999 KI LEASE MONEY KI DONON KISHTON KA DHAN Rs. 44,300/- PRATIV ADI KA BAJIB LENA HAI ?" cover the point which is at issue in the present suit. This argument of the learned counsel for the Company is devoid of substance. These issue cannot be treated to include within its ken the decision of the question whether Samvat Year 1999 was included in the period of 20 years, or whether the lease/contract in question commenced from Samvat 1999. What to talk of 'directly and substantially' but even indirectly and collaterally. Learned counsel had placed reliance on the following decisions in support of this point: (1) Mithoolal Girdharilal v. Babu Jainarainlal & Co., AIR 1941 Nagpur 346 ; (2) Zingu Deorao Umale & others v. Mahadeo Parashramji and Co., AIR 1948 Nag. 358; (3) Vithal Yeshwant Jather v. Shikandarkhan Makhtumkhan Sardesai, AIR 1965 SC 385; (4) Bhavani Amma & Co. v. Narayana Acharya & Co. AIR 1963Mys. 120; and, (5) Annamalai Chettiar v. Lakshmanan Chettiar, AIR 1939 Mad. 433 . These decisions do not advance the contention of the learned counsel for the Company, as we shall briefly indicate hereinafter. 15.08. (1) Re. v. Narayana Acharya & Co. AIR 1963Mys. 120; and, (5) Annamalai Chettiar v. Lakshmanan Chettiar, AIR 1939 Mad. 433 . These decisions do not advance the contention of the learned counsel for the Company, as we shall briefly indicate hereinafter. 15.08. (1) Re. Mithoolal Girdharilal's case (supra): The learned counsel has placed reliance on the following excerpt in this decision: "Moreover a judgment by consent and facts admitted are just as effective for the purposes of res judicata as a judgment passed on contest or facts which were in dispute: vide 63 Cal. 550' (1) where at P. 555 we find the following observation: "On this authority it becomes absolutely clear that the consent order is as effective as an order passed on contest, not only with reference to the conclusions arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded. When we say 'every step in the reasoning" we mean the finding on the essential facts on which the judgment or the ultimate conclusion was founded. In other words the finding which it was necessary to arrive at for the purposes of sustaining the judgment in the particular case will operate as estoppel by judgment.” Similarly a question which is decided by necessary implication operates as res jndicata. In the previous suit before the Court could say whether the award was binding or not it had to be presumed that the award existed: See, 24 C.W.N. 223 (2) which follows a Privy Council decision in 18 W.R. 182 (3) in observing that- "it may also be pointed out that where a question is decided by necessary implication, the decision would operate as res judicata. In 4 Cal. 190 (4) Sir B. Peacock in delivering the judgment of their Lordships of the Privy Council observed at P. 199. “ ............ nemo debt bis vexari proeadem ca usa. This law has been laid down by a series of cases in this country with which the profession is familiar. It probably has never been better laid down than in the case, which was referred to, in (1736) 55 (3) At. “ ............ nemo debt bis vexari proeadem ca usa. This law has been laid down by a series of cases in this country with which the profession is familiar. It probably has never been better laid down than in the case, which was referred to, in (1736) 55 (3) At. 626 (5) in which Lord Hardwicke held that where a question was decided in effect, though not in express terms, between the parties to the suit, they could not raise the same question as between themselves in any other suit in any other form; and that decision has been followed by a long course of decisions.......” [(1) Secretary of State v. Ateendranath Das, ('36) 63 Cal. 550; (2) Apurba Krishna Roy v. Shyama Charan Paramanik, AIR 1920 Cal. 253; (3) Pahalwan Singh v. Maharaja Muheshwar Buksh Singh Bahadur, 12 BLR 391 (PC); 18 W.R. 182; (4) Doorga Persad Singh v. Doorga Kunwari, ('79) 4 Cal190; (5) Gregory v. Molesworth, (1736-55) 3 Atk 626.] The very reading of these excerpts indicate that this decision is not applicable to the fact of the present case. We have in par.13 of this judgment said that nowhere the Government has admitted the document (Ex P-31): what it had pleaded in the written statement (Ex. P-33) of the previous suit was that this document was executed by the Company. The learned counsel in order to show that Ex. P-31 was the document relied upon by Government and was made the basis of its defence in that suit, referred to that part of the statement of K.N. Mishra (D.W. 1) (para 5) wherein he has stated that Ex. P-31 was an agreement between the Company and the Government, and he had produced that agreement in the previous suit along with the documents (Ex.P-1 and P-2), but that very witness his stated just above in that very paragraph that looking at Ex. P-31, he finds that it does not bear the signature of anyone on behalf of the Government and. therefore. it was not an agreement entered between the Government and the Company. This apart, this admission does not advance either the contention of the learned counsel for the Company that the Government had taken advantage under the document (Ex. P-31), as we have already discussed hereinabove in per 13, or the contention of res judicata regarding the point which is at issue. (2) Re. This apart, this admission does not advance either the contention of the learned counsel for the Company that the Government had taken advantage under the document (Ex. P-31), as we have already discussed hereinabove in per 13, or the contention of res judicata regarding the point which is at issue. (2) Re. Zihgu Deorao Umale's case (supra) - In this case, the learned counsel relied on the observation made in paragraphs 18, 19 and 20 of the decision, wherein it has been held that :- "the doctrine of res judicata applies not only to the actual decision in the case but also to the facts and grounds for that judgment pleaded by the parties. Anything which is admitted and which is fundamental to the decision of the earlier suit is also part of the res judicata created by the judgment." In the instant case, the term regarding the commencement or the inclusion of Samvat Year 1999 in the 20 years' period was not at all fundamental to the decision of the previous suit, nor that was a matter at issue in that suit. Thus, this authority also does not in any manner support the contention of the Company. (3) Re. Vithal Yeswant Jathar's Case (supra)-This authority lays down that :- "Where the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point, each of which by itself would be sufficient for the ultimate decision, the decision on each of these points operates as res judicata between the parties.” There is no dispute about this principle, laid down by the Supreme Court, but it does not lay down that any per incuriam observation made in a previous case would also have the effect of res judicata. (4) Re. Bhavani Amma's case (supra):- This decision lays down that"- What operates as res iudicata is not only the decision but the grounds also on which the decision is based. Where a judgment has been superseded by the decree and judgment made in the appeal the former judgment cannot be pleaded in bar of res judicata." . In the instant case, the decision in the previous suit was based on Exhibit D-2, which is Ex. P-8 in the instant case, and not on Ex. Where a judgment has been superseded by the decree and judgment made in the appeal the former judgment cannot be pleaded in bar of res judicata." . In the instant case, the decision in the previous suit was based on Exhibit D-2, which is Ex. P-8 in the instant case, and not on Ex. P-31; therefore, this decision also does not in any manner advance the contention of the learned counsel for the Company. (5) Re. Annamalai Chettiar's case (supra).- Reliance was placed on Head-note (b) of this decision. We are unable to understand as to how this case is applicable to the point in controversy in the instant case. For the parity of the reasons mentioned while dealing with the case of Vithal Yeswant Jathar's case (supra), we are of the opinion that this decision also does not advance the contention of the learned counsel for the Company. 15.09. In the result, we are of the view that the judgment in the previous suit (Ex. P-37) does not operate as res judicata. 16. We now turn to consider contention No. (ii). viz., Whether Samvat Year 1999 of the quondam State of Gwalior was included in the period of 20 years and, therefore, the contracted period, i.e., the so-called lease, expired, with the expiry of Samvat Year 2018. The term/clause No.3 in Exhibit P-31 in this regard, to reiterate, is: "The period for this lease is fixed for 20 years from Samvat 1999/2000 to 2018/2019, both inclusive." Now, so far as the period of 20 years is concerned, it is certain and there is no dispute. The only dispute is about the date of commencement and termination of the lease-contract. The term quoted hereinabove, does not mention the exact dates of commencement and termination of the period' of 20 years. It cannot, therefore, be gain said that to that extent, the term is vague and uncertain. Section 29 of the Contract Act says: "Agreements, the meaning of which is not certain or capable of being made, certain, are void." . Both parties, as it appears, proceeded in the Court below on the ground that the two dates are capable of being made certain, as each advanced its rival interpretation of the term in question. The Company has, in the plaint; (Par.26 (L) averred that the intention of the parties, as gathered from the correspondence, leading to the Agreement (Ex. Both parties, as it appears, proceeded in the Court below on the ground that the two dates are capable of being made certain, as each advanced its rival interpretation of the term in question. The Company has, in the plaint; (Par.26 (L) averred that the intention of the parties, as gathered from the correspondence, leading to the Agreement (Ex. P-31), was that the period of 20 years was to commence from 3-5-1943. It is an undisputed principle that when construing a contract, be it in writing or by word of mouth, what is being considered is the intention of parties who have agreed together on the terms that shall bind them, that is, to determine the consensus ad idem. According to the learned counsel for the Government, the intention of the parties, as is obtainable from the correspondence, was that Samvat Year 1999 was included in 20 years period; the period, therefore, commenced from Samvat Year 1999 and expired with the expiration of Samvat Year 2018, The learned counsel for the Company in his argument in counter, contended that while construing a document, one has to go by the outward expression of its intention-as conveyed by the words set out in writing and, therefore, in the term in question, it having been written "Samvat 1999/2000 to 2018/2019", it is clear that it was part of Samvat Year 1999 and part of Samvat Year 2000, which made up the first year of the lease; therefore, the only thing to be determined is as to which are those parts of Samvat Year 1999 and Sam vat Year 2000, and it cannot be construed, travelling beyond the document, whether Samvat Years 2000 and 2019 were to be completely excluded and whether the intention of the parties was that it should from Samvat Year 1999 to Year 2018. He further submitted that, the case of the Government, as pleaded in its written statement, is not that both parties intended that Sam vat Years 2000 and 2019 should not be included in the period of 20 years, the mention of 'Samvat years 2000 and 2019' in Clause 3 is contrary to the intention of parties, and that the parties had intended to mention 'Samvat years 1999 to 2018'. According to him what the Government has pleaded is that it had never accepted the term regarding commencement and termination of 20 years period as mentioned in Clause 3. He argued that such a plea is not admissible, it being a plea for a rectification of the document on the basis of unilateral mistake, i.e. of the Government. 16.01. Before we proceed to dwell upon the rival arguments, it would be advisable to extract hereinbelow the relevant excerpt from the written statement of the Government. "9. .... The interpretation of lease period by joining two Samvats that is 19-9-2000 to 2018-2019 does not denote the financial years or Samvats of the then Gwalior State. Gwalior State is always in singular figure that is the period beginning from 1st July, 1942, Upto 30th June makes on Samvat that is Samvat 1999, In this way the Gwalior State Samvat starts in particular English calendar year and ends in the middle of next calendar year. Therefore, the calculation of twenty years period by joining two Samvat i.e. 1999-2000 to 2018-2019 is quite unnatural and wrong. It exceeds twenty years for which the plaintiff's Company is not entitled in any way. This type of interpretation was never accepted by the defendant and the period of twenty years was always to be calculated from Samvat 1999 to 2018 which ended on 30th June 1962." "10. That the para 10 is not admitted. The plaintiffs started their works in anticipation of formal signature with the sanction of Conservator of Forests on the forest-lease to the plaintiff for 20 years; the portion allotted for working for Samvat 1999 was worked and utilised by the plaintiff's completely, As it was a long lease period, no contracts were given in Samvat 1999 at the exclusion of plaintiff and in this way plaintiff's company worked continuously since Samvat 1999 to 201 without any intervention of other contractor" The plaintiff's company was bound to pay lease money as calculated for Samvat 1999 to 2019 without any intervention of other contractor". The plaintiff' Company was bound to pay lease money as calculated for Sam vat 1999 also. Whether he works or not or works for few days because the main purpose was to utilise the forest produce allotted for twenty years. Lease period and the plaintiff Company has fully utilised the forest produce year marked for Samvat 1999. The plaintiff' Company was bound to pay lease money as calculated for Sam vat 1999 also. Whether he works or not or works for few days because the main purpose was to utilise the forest produce allotted for twenty years. Lease period and the plaintiff Company has fully utilised the forest produce year marked for Samvat 1999. Therefore, the interpretation is misleading and not bona fide and also against the principles of natural justice" "11. .... The agreement referred by the plaintiff In this was not accepted by the defendant and not binding.". "12. That the para 12 is not admitted. The felling and extraction period begins from October and continues till 20th June. The plaintiff's Company started their work before 3-5-43 under the agreement signed before formal sanction and worked for Samvat 1999 under 20 years lease. " "26 (f) The Durbar sanctioned only was accorded on 3-5-43 and the plaintiffs had started work earlier in anticipation of sanction and had worked used all the forest produce assigned for Samvat 1999. Therefore, the calculation from 3-5-43 to 3-5-44 is not correct and legal. " "26 (g) Not admitted and also not correct lease period is to be counted for Samvat 1999 to 2018 and the plaintiffs are estopped to say otherwise because they have expressed in the letters and correspondence worked for the whole Samvat 1999 and exploited the forest and got the benefits by using forest produce reserved for Samvat 1999. Therefore, now they are not entitled to go back and deny the advantage they had already taken. Their conduct is quite apparent. Therefore, by their conduct and acts they are estopped to say like this." 16.02. The author of the Book 'Transfer of Property Act' by Mulla, 6th Edition at page 645, in his commentary on Section 105 under the caption "Commencement" says: "Commencement.- The commencement of a lease must be certain in the first instance, or capable of being ascertained with certainty afterwards, so that both the time when it begins and the time when it ends, is fixed. Section 110 enacts that if the day of commencement is not stated the lease begins from the day of execution. Section 110 enacts that if the day of commencement is not stated the lease begins from the day of execution. But this does not apply to an executory agreement of lease, and such an agreement is void for uncertainty if the commencement of the term is not mentioned or if there are no materials for ascertaining it (q). However, if possession is taken under such an agreement the term will commence from the date of entry. (r)." [(q) Marshall v. Berridge (1881) 19 Ch. D. 233, 239; (r) Deo d. Cornwal v. Mathews (1851) 11 C. B. 675.] From the above, as well as from the language of Section 29 of the Contract Act, it is very clear that if the date of commencement is neither mentioned, nor there is material for ascertaining it, the contract would be void for uncertainty. In this view of the legal position; this being undisputed that no certain date is mentioned in the term No.3, in question, the matter is writ large to be decided on the basis of the total material on the record for scrutinising and determining the intention of the parties, and as such, in the peculiar facts and circumstances of the case, the parties cannot be confined to the plea raised in the respective pleading about the construction of the document. It is in this background that it has to be determined whether the mention of Samvat Year 2000 and 2019 is a surplusage or \\ith a purpose. At this stage, we would like to set out hereinbelow an excerpt from the book, “the Discipline of Law" by Lord Denning, 1979 edition, which deals with the matter of looking for help' in the construction of contract, from 'Negotiation and subsequent Conduct": "Over the years there has been much controversy on the extent to which the Court can go beyond this letter of the contract-so as to ascertain the meaning. The common lawyers held that no evidence could be adduced to add to, vary, or contradict a written document. So they looked at the words used by the parties and interpreted them in their grammatical meaning without recourse to outside aids at all. That was natural enough when the parties could not give evidence themselves. The common lawyers held that no evidence could be adduced to add to, vary, or contradict a written document. So they looked at the words used by the parties and interpreted them in their grammatical meaning without recourse to outside aids at all. That was natural enough when the parties could not give evidence themselves. But once it is realised that words are imperfect instruments to express the meaning on intent of the parties, there is a strong case for bringing in extrinsic aids - so as to clear up uncertainties or ambiguities in the written word. Two aids have come much under discussion. One is the correspondence and negotiations leading upto contract. The other is the subsequent conduct of the parties after they have made the contract. On both heads I have often expressed the view that these aids are admissible. But the current opinion of the House of Lords is that neither of these aids is admissible. Negotiations are excluded by Frenn v. Simmonds.(1971) 1 WLR 1381 Subsequent conduct is excluded by Wickman Tools v. Schuler.(1974) AC 235. Those rulings are entirely acceptable when the words used in the contract are clear: but not so acceptable when the meaning is not clear. So ways are emerging in which the effect of those cases is being discounted. One way that has been successfully pursued is to ask for the contract to be rectified on the ground that the written contract did not represent real intention of the parties. By that means the negotiations can be given in evidence and, once in evidence, do influence the result. In many a case the Courts have decided in favour of the party who seeks rectification-but have done it on the ground of construction - saying that there is no need in the circumstances to decide on rectification: but, in truth, being inuufluenced on coastruction by the evidence given about the negotiations. That is, I fancy, what happened in the leading case of Shipley v. Bradford Corporation. (1976) 1 CH 375. That is, I fancy, what happened in the leading case of Shipley v. Bradford Corporation. (1976) 1 CH 375. Another way which has recently emerged is the doctrine of the 'factual matrix' as explained by Lord Wilberforce in Reardon Smith v. Hansen (1976) 1 WLR 989 when he said: "What the Court must do is to place itself in thought in the same factual matrix in which the parties were." In order to ascertain the factual matrix I ask: What better material is there than to look at the correspondence which discloses the circumstances in which the parties contracted? So far as subsequent conduct is concerned the Court always looks at the happenings, after the contract, leading up to the breach that is alleged. It is difficult for any Judge to put this evidence out of his mind when construing the contract. If the words are not clear, he will be unwilling to treat conduct as a breach, when the parties themselves did not consider it to be so." [Underlining by us.-] The underlined portion has been approved and adopted by the Supreme Court in Bhim Singhji v. Union of India, (A.I.R. 1981 S.C. 234. Para 1) 16.03. Now we shall like to spotlight the few facts which are beyond the pale of dispute: (a) The Company was formally incorporated on 17-12-1942; (b) The negotiations for the contract in question had started prior to the incorporation of the Company, that is, since before 11-9-1942, as is evident from letter Ex. P-4, dated 11-9-1942; (c) No contract in the matter on forest in the erstwhile State of Gwalior could be granted except with the approval/sanction of the Durbar; (d) The area of forest blocks for the Samvat Year 1999 allegedly under a contract distinct from Ex. P-31 was not different than the area mentioned in Ex. P-31 for that Sam vat year; (e) The administration/financial year in Gwalior State was according to one singular Samvat Year, which commenced according to the corresponding English date from 1st July and ended on 30th June; (f) The season for felling 'Khair' trees in the forest started from 15th October and lasted upto 15th April. The extraction of the felled material could be done up to 15th May. The extraction of the felled material could be done up to 15th May. According to working plan, the blocks allotted for a particular Samvat Year had to be worked out in that year and then they bad to be banded over to the Department within a fortnight; all the material lying in the forest after the expiry of the extraction period was to vest with the Government. The fellings in the Coupe had to strictly adhere to the year and the Company could not be permitted to carryon felling into the coupes of the previous year. 16.04. It is beyond dispute that as held in the previous suit Ex. P-37, the Company had worked the forest blocks allotted for Samvat Year 1999 - some in the same year and some in the subsequent year: "From the statement of Daulatram, it is also clear that even in Samvat 1999 the Company was allowed to work one block. It is further clear from his statement that subsequently the Company at the permission for working all the blocks which it could have worked in Samvat 1999." In face of this finding, if the contract for the Samvat Year 1999 is taken to be distinct from Ex. P-31 and the interpretation of term No.3 in Ex. P-3l as canvassed by the learned counsel for the Company, that first year in the 20 years' period was composed partly of the Samvat Year 1999 and partly of the of the Samvat Year 2000. is accepted it would mean that the same blocks of the forest which were allotted for the Samvat Year 1999 were to be utilised twice under the two distinct contracts between the same parties. It is a matter of common sense that once the allotted trees are cut, then those trees will not be available for being re-cut, in the same year. Thus, the holding that the contract for Samvat Year 1999 was distinct from the contract of 20 years would be preposterous and would detract from the efficacy of the term No.3 in Ex. P-31 and would have the effect of effacing the mention of Samvat Year 1999, which is unreasonable for the further reason to follow. 16.05. Thus, the holding that the contract for Samvat Year 1999 was distinct from the contract of 20 years would be preposterous and would detract from the efficacy of the term No.3 in Ex. P-31 and would have the effect of effacing the mention of Samvat Year 1999, which is unreasonable for the further reason to follow. 16.05. It being an accepted position that there could be no contract in respect of the forest in question, except with the approval/sanction of the Durbar, there could not be a distinct contract for the Samvat Year 1999 without the sanction/approval of the Darbar. It is the Company's own case that the sanction/approval of the Durbar was for the contract evidenced by the document Ex. P-31, and neither it is alleged, nor proved, nor there is any material to indicate or to hold that there was the approval/sanction of the Durbar for a contract for the Sam vat Year 1999-distinct from the period of 20 years, mentioned in Ex. P-31. Therefore, the only reasonable conclusion can be that the Samvat Year 1999 was included in the period of 20 years; it was in anticipation of the ex post facto sanction that accepting the request of the Company which was made vide Ex. P-8, the Department allowed the Company to work the forest blocks that were allotted for Samvat Year, 1999-in Samvat 1999 and those which could not be worked in that year were permitted to be worked in the subsequent year, that is, Samvat Year 2000, which could not be worked by the Company in view of the working plan referred to in para 16.03 (f). It is, therefore, obvious that because of this special permission in deviation of the working plan that Samvat Year 2000 was added along with Samvat Year 1999 in Ex. P-31, and for mathematical accuracy of a period of 20 years, in the expiration year Samvat Year 2019 was added along with Samvat Year 2018. 16.06. The upshot of the foregoing discussion is that if the date of commencement of the 20 years' period can reasonably be determined, it is Samvat Year 1999. In other words, the period of 20 years commenced from Samvat Year 1999 and ended with the expiry of Samvat Year 2018. If the argument of the learned counsel for the Company is accepted that no material beyond the document Ex. In other words, the period of 20 years commenced from Samvat Year 1999 and ended with the expiry of Samvat Year 2018. If the argument of the learned counsel for the Company is accepted that no material beyond the document Ex. P-31 has to be looked into for interpreting clause 3 of Ex. P-31, then in that event, it is not possible to ascertain the date of commencement and expiry of the 20 years' period and, therefore, the contract would be void. The learned counsel for the Company had placed reliance in support of the interpretation canvassed by him on the letter Ex. P-51, and it was contended that along with this covering letter (Ex. P-51) of the Conservator of Forests to the Managing Director of the Company the draft agreement (Ex. P51-A) was sent, and since in this draft agreement also, identical term as in Ex. P-31, regarding the commencement and termination of 20 years' period was mentioned, it has to be held that the first year of the 20 years was composed partly of the Sam vat Year 1999 and part of the Samvat Year 2000. This argument has to be rejected for two reasons: (i) for the parity of reasons already given hereinabove in the preceding paragraph and (ii) it was only a draft which was yet to be finalised, which is apparent from "I am sending herewith the final draft agreement, which, I am sure, will satisfy you... we have in any case to base the agreement on the draft submitted to the counsel. . . in anticipation of your approval, I am sending a copy of this draft to the Hon'ble the Law Minister for scrutiny." The learned counsel for the Company has also relying on the contents of letter Ex. P-8, " I shall pay the settled annual amount for 20 years for Samvat Year 1999 as well" argued that as held in Ex. P-37, this expression means that the contract for the Samvat Year 1999 had no connection with the period of 20 years. His argument was that the words 'as well' is expressive enough to show that Samvat Year 1999 was not included within the period of 20 years. On a complete reading of the letter Ex. P-37, this expression means that the contract for the Samvat Year 1999 had no connection with the period of 20 years. His argument was that the words 'as well' is expressive enough to show that Samvat Year 1999 was not included within the period of 20 years. On a complete reading of the letter Ex. P-8, In the context of the undisputed facts, already enumerated in paragraph 16.03, the use of the words 'as well' may be a bad English and it cannot be held to convey a meaning that Samvat Year 1999 was distinct from the period of 20 years, nor the Government understood it to mean like this, as would be evident from letter Ex. P-15, dated 21-4-1945. 16.07. In the light of the view, we have taken regarding contentions No.(i), (ii) and (iii) as enumerated in paragraph 10 of this Judgment, the suit of the Company deserves to be dismissed and, therefore, we do not deem it necessary to go into the question of quantum of damages. 16.08. In the result, the appeal merits to be allowed. It is accordingly allowed. The Judgment and decree of the trial Court are set aside and the suit of the Company-plaintiff-respondent herein, is dismissed. In the circumstances of the case we direct the parties to bear the costs as incurred.