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CASE NO.:

Appeal (civil) 3861 of 2001

PETITIONER:

Draupadi Devi & Ors.

RESPONDENT:

Union of India & Ors.

DATE OF JUDGMENT: 09/09/2004

BENCH:

K.G. Balakrishnan & B.N. Srikrishna

JUDGMENT:

J U D G M E N T

with

Civil Appeal No. 3862 of 2001

SRIKRISHNA, J.

Civil Appeal No. 3862 of 2001 :

This appeal by special leave impugns the judgment dated 8.12.2000

rendered by the Division Bench of the Delhi High Court in an appeal

RFA (OS) No. 19 of 1989. The Division Bench overturned the decree

granted by the learned Single Judge and dismissed the suit of the original

plaintiff. Legal representatives of the original plaintiff are appellants before

us while the three defendants in the suit ( Union of India, State of Punjab

and Sukhjit Singh) are respectively the respondents before us. For the sake

of convenience, we shall refer to the parties as arrayed in the suit.

Facts :

The plaintiff instituted a suit in 1960 before the Civil Court at Delhi

which ultimately came to be transferred to the Original Side of the Delhi

High Court and was disposed of by a learned Single Judge. The suit was for

declaration of title to the property being land and building situated at 3,

Mansingh Road, New Delhi.

By an indenture of lease dated 13.7.1921, Khan Bahadur Abdul

Hamid, the then Chief Minister of Kapurthala State, had been granted a

perpetual lease of the plot of land situate at 3, Mansingh Road, New Delhi.

He raised a construction thereupon called 'Kapurthala House'. It is this land

together with the structures thereupon which is the subject matter of the suit

and shall henceforth be referred to as 'the suit property'.

Khan Bahadur Abdul Hamid sold the house to Jagatjit Singh, the then

Maharaja of Kapurthala, by a registered sale deed dated 19.1.1935. The

records of the Land and Development Office were mutated and Maharaja

Jagatjit Singh was recorded as the owner of the suit property.

The title to the suit property was claimed by the plaintiff on the

ground that the plaintiff had purchased the suit property by a registered sale

deed dated 10.1.1950 for a consideration of Rs. 1.50 lacs from Maharaja

Paramjit Singh, son of late Maharaja Jagatjit Singh, erstwhile Ruler of

Kapurthala State, who was the rightful owner thereof and in whose name the

property stood mutated in the official records of the Government at the

material time.

Kapurthala was a Sovereign State (1928\0261948) till its merger in

'Patiala and East Punjab States Union' (hereinafter referred to as 'PEPSU')

and subsequent merger of PEPSU into the Dominion of India.

It is the case of the plaintiff that Maharaja of Kapurthala, Jagatjit

Singh, owned properties extensively, some of which were owned by

Kapurthala State, (also referred to as 'Kapurthala Darbar') while some

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others were owned by him in his personal capacity purchased out of the

personal funds of the Maharaja.

The plaintiff claimed that the suit property was one such property

which had been bought by Maharaja Jagatjit Singh out of his personal funds

and, hence, it was the personal property of the said Maharaja.

The plaintiff pleaded that on 1.3.1937 Lt. Col. C.P. Fisher, the then

Prime Minister of Kapurthala State, had prepared an aide memoire in

respect of the financial arrangements pertaining to bifurcation of Oudh estate

income and rest of the Kapurthala State income and other matters. There is

no dispute that in this aide memoire Lt. Col. Fisher had listed out the

properties held by the Kapurthala State and the private properties of the

Maharaja separately. It is also common ground that the suit property was

described as State property in this aide memoire prepared by Lt. Col. Fisher.

The plaintiff alleged that on 1.1.1940 the then Maharaja of Kapurthala

State in his capacity as a Sovereign Ruler of the State had issued a

'command' under the signature of Tika Raja, (heir apparent), President State

Council, commanding that in future all the houses in Mussoorie and

Kapurthala House in New Delhi would be considered as his personal and

private property and that the aide memoire dated 1.3.1937 shall be

inoperative and ineffectual so far as the said properties were concerned.

Maharaja Jagatjit Singh died sometime in 1940 and all his properties

including the suit property passed on to his eldest son Paramjit Singh, who

became the Maharaja of Kapurthala and was recognised as such by the

Government of India. The plaintiff claimed that by a duly registered deed of

conveyance dated 10.1.1950 Maharaja Paramjit Singh had sold and

conveyed the suit property jointly to the plaintiff and one Dewan Jarmani

Dass for a consideration of Rs. 1.50 lacs. It is also the plaintiff's case that,

subsequently, Dewan Jarmani Dass, who had been shown as vendee only

for the purpose of 'convenience', conveyed all his right, title and interest in

the suit property to the plaintiff by a duly registered indenture of transfer

dated 21.2.1951. Thus, the plaintiff claimed that he had full title to the suit

property and sought the declaration and reliefs as indicated.

If history had not overtaken him, the plaintiff perhaps would have had

no problem for successful culmination of his suit. Historical developments

left their impact on the aforesaid transaction the plaintiff had with the

Maharaja of Kapurthala and for that reason they need careful notice.

The Independence Act was enacted in 1947 and all the independent

Sovereign Rulers of the States in India were successfully persuaded to sign

instruments of accession. As recorded in the 'White Paper on Indian States'

published by the Government of India in 1948 (of which judicial notice has

been taken by this Court in several cases), the strategy adopted by the

Government of India immediately before independence was to persuade

individual States to sign instruments of accession for accession of the States

to the Dominion of India on three subjects, namely, defence; external affairs

and communication.

The accession of the Indian States to the Dominion of India was the

first phase of the process of fitting them into the constitutional structure of

India. The second phase which rapidly followed, involved a process of two-

fold integration, the consolidation of States into sizeable administrative

units, and their democratisation .

Where there were small States, they were persuaded to form Unions

of States on the basis of full transfer of power from the Rulers to the people.

These Unions were to be headed by a Rajpramukh as the constitutional head

of the State who was to be elected by the Council of Rulers .

Pursuant to this strategy, the Rulers of all individual States were

persuaded to enter into an instrument of accession dated 16.8.1947 with the

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Government of India. This was then followed by covenants between

different Rulers by which the Unions of States was brought into existence,

which were to be finally merged into the Dominion of India.

As far as the present appeal is concerned, it is significant that the

States of Kapurthala, Jind, Nabha, Faridkot, Malerkotla and the States of

Nalagarh and Kalsia came together and entered into a covenant on 5.5.1948.

The Division Bench has reproduced the full text of the covenant executed on

5.5.1948 by the Seven Rulers including the Maharaja of Kapurthala by

which the erstwhile seven States merged into a Union of States. The

general effect of the said covenant was that the covenanting States agreed to

unite and integrate their territories in one State with a common executive,

legislature and judiciary by the name of 'Patiala and East Punjab States

Union' (PEPSU) which was referred to in the covenant as 'the Union'.

Articles VI and XII of the said covenant provided as under:

"ARTICLE VI

(1) The Ruler of each covenanting State shall, as

soon as may be practicable, and in any event not later

than the 20th of August, 1948, make over the

administration of his State to the Raj Pramukh and

thereupon -

(a) all rights, authority and jurisdiction belonging

to the Ruler which appertain, or are incidental

to the Government of the Covenanting States

shall vest in the Union and shall hereafter be

exercisable only as provided by this covenant

or by the Constitution to be framed thereunder;

(b) all duties and obligations of the Ruler

pertaining or incidental to the Government of

the Covenanting State shall devolve on the

Union and shall be discharged by it;

(c) all the assets and liabilities of the Covenanting

State shall be the assets and liabilities of the

Union, and

(d) the military forces, if any, of the Covenanting

State shall become the military forces of the

Union.

ARTICLE XII :

(1) The Ruler of each Covenanting State shall be

entitled to the full ownership, use and

enjoyment of all private properties (as distinct

from State properties) belonging to him on the

date of his making over the administration of

that State to the Raj Pramukh.

(2) He shall furnish to the Raj Pramukh before the

20th day of September, 1948, an inventory of

all the immovable properties, securities and

cash balances held by him as such private

property.

(3) If any dispute arises as to whether any item of

property is the private property of the Ruler or

State property, it shall be referred to such

person as the Government of India may

nominate in consultation with the Raj Pramukh

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and the decision of that person shall be final

and binding on all parties concerned.

Provided that no such dispute shall be so

referable after the 31st of December, 1948."

The organisation of the different organs constituting the

administration of the PEPSU was indicated in the covenant. There were

also an elected Raj Pramukh and an Up-Raj Pramukh who were to be

appointed in the manner indicated in the covenant for carrying out the

administration of the PEPSU. There were several other details with regard

to the Union of PEPSU and for privy purses to be paid to each of the

erstwhile Rulers. To this covenant, the Government of India in the Ministry

of States was a party and the Government of India declared: "The

Government of India hereby concur in the above Covenant and guarantee

all its provisions." The said covenant was signed on behalf of the

Government of India by V.P. Menon, then Secretary to the Government of

India in the Ministry of States.

The White Paper on Indian States further records that on 15.7.1948

the Patiala and East Punjab States Union was inaugurated. Soon thereafter,

the second step of integration took place.

Then followed correspondence between the Maharaja of Kapurthala

and the Government of India on the issue of fixing his privy purse as well as

bifurcation and recognition of the properties owned by him into State and

private properties.

The Maharaja of Kapurthala kept pleading with the Government of

India that he had ruled the State of Kapurthala as a model Ruler; that in

recognition of his signal services to the British Government he had been

granted the estates in Oudh income from which he was gracious enough to

divert to the State treasury of Kapurthala as Kapurthala income was very

low; that his personal income from Oudh estates and the State income of

Kapurthala were merged till 1937 and that it was only as the result of the

efforts of Col. Fisher that a bifurcation was made with the Oudh estates

being earmarked as personal income of the Maharaja. The Maharaja,

therefore, pleaded with the Government of India that some of the immovable

properties purchased by him outside Kapurthala State such as in Mussoorie

and Delhi be permitted to be retained by him as his private properties and

that the Government of India should declare them to be so.

The White Paper on Indian States indicates that the case of each Ruler

was considered individually and a decision was taken in each case

depending on the facts and circumstances pertaining thereto. Paragraph 157

in Part VII of the White Paper on Indian States places on record the manner

in which the Government of India solved this complex problem of

distinguishing between private properties and State properties owned by the

Rulers. The State properties were merged finally into the Dominion of India

while certain properties recognised as private properties were permitted to

be retained under the full ownership of the erstwhile Rulers. Para 157 of the

White Paper on Indian States reads as follows:

"157. In the past the Rulers made no distinction between

private and State property; they could freely use for

personal purposes any property owned their respective

States. With the integration of States it became necessary

to define and demarcate clearly the private property of the

Ruler. The settlement was a difficult and delicate task

calling for detailed and patient examination of each case.

As conditions and customs differed from State to State,

there were to precedents to guide and no clear principles

to follow. Each case, therefore, had to be decided on its

merit. The Government of India were anxious that the

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new order in States should be ushered in in an atmosphere

free from any controversies or bitterness arising from any

unhappy legacy of the past. A rigid and legalistic

approach would have detracted from the spirit of good-

will and accommodation in which the political

complexion of the States had been so radically altered.

By and large the inventories were settled by discussion

between the representatives of the Ministry of States, the

Rulers concerned and the representatives of the

Governments of the Province or the Union as the case

may be. The procedure generally adopted was that after

the inventories had been received and scrutinised by the

Provincial or the Union Government concerned and after

the accounts of the States taken over had been examined,

the inventories were discussed across the table and settled

in a spirit of give and take. In all discussions with the

Rulers of the States forming Unions, the Rajpramukhs

were associated; the private properties of Rajpramukhs

were settled by the Government of India in informal

consultation with the Premiers of the Unions. This

method made it possible to settle these properties on an

equitable basis within a remarkably short period and

without recourse even in a single case to arbitration. The

settlements thus made are final as between the States and

the Rulers concerned."

Although, generally, user was the criterion for distinguishing State

property from private property, there was no such hard and fast rule, and

depending on the facts and circumstances of each case appropriate decision

was taken by settlement with the Ruler concerned. This process was

obviously a long one stretching from 20.9.1948 (the last date for furnishing

to the Raj Pramukh the inventory of all the immovable properties, securities

and cash balances held by the Rulers as private property) till the actual date

of the decision. Article XII of the covenant of accession provided that if

there was a dispute as to whether any item of private property of the Ruler

or State property, it would be decided by a nominee of the Government of

India appointed in consultation with the Raj Pramukh and the decision shall

be final and binding on all parties concerned, provided that no such dispute

was referable after 31.12.1948. According to the recitals in the White

Paper, in all cases the decision jointly taken by the Government of India

after discussion with the Ruler concerned and the Raj Pramukh was

accepted by the Ruler and no case was referred for arbitration as provided

under Article XII of the covenant.

The correspondence between Maharaja of Kapurthala, Jagatjit Singh,

his son Paramjit Singh (Tika Raja) with the Government of India which has

been extensively quoted in the judgments of the learned Single Judge and

the Division Bench bears out what is stated in the White Paper. The tenor of

the letters written by the Maharaja to the Government of India does not

indicate that the Maharaja was raising a dispute with regard to the

immovable properties outside Kapurthala State. On the contrary, the tenor

of the correspondence emanating from the Maharaja suggests that, having

agreed to the decision taken in the meeting with the Government of India's

representatives he was attempting to prevail upon the Government of India

to declare some of the properties as his personal properties for reasons

which he advanced. It is interesting to notice that at no point did the

Maharaja of Kapurthala take up the stand that the properties owned outside

the Kapurthala State, particularly the suit property in Delhi, was beyond the

purview of the covenant and was his exclusive personal property.

During the ongoing process of identification and bifurcation of the

immovable properties into State and personal properties, Maharaja Jagatjit

Singh attempted to sell some land. On coming to know of the move of the

Maharaja, on 19.3.1949 a telegram (Ex.D2W4/1) was sent by the Raj

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Pramukh to Maharaja Jagatjit Singh calling upon him to refrain from doing

so when the process of identification of properties was going on.

While the discussions with the Government of India for identification

and classification of immovable properties held by the Maharaja of

Kapurthala were still going on, it appears that Dewan Jarmani Dass, then

Chief Minister of Kapurthala State, prevailed upon the Maharaja to quietly

sell the property jointly to him and the original plaintiff, late R.M. Seksaria.

Although, the Division Bench of the High Court has made scathing remarks

that Dewan Jarmani Dass had acted clandestinely and malafide in order to

grab the property even before the decision of the Government on the nature

of the property, it is unnecessary for us to pronounce on these facets of the

matter for the decision on legal issues does not turn upon these findings.

The Government of India was not aware of the sale and conveyance

of the suit property to Dewan Jarmani Dass and the plaintiff, till or about

6.3.1950. It is only thereafter that a discussion took place on 7.3.1950

between the representatives of the Government of India headed by V.P.

Menon, Secretary, Ministry of States and the Maharaja of Kapurthala. The

minutes which were recorded on 11.3.1950, with reference to the suit

property, state:

"The sale of Kapurthala House in Delhi should be

revoked. The vendee should be asked to refund the

consideration money to His Highness. This decision was

communicated to Dewan Jarmani Dass by Secretary."

On 14.3.1950, Paramjit Singh, who had by then become the Maharaja

of Kapurthala State, wrote to V.P. Menon, Secretary, Ministry of States in

which he referred to the previous talk on the issue and said:

"Since my talk I find that present owner of the House

i.e. M/s Jarmani Dass and Seksaria Brothers are not

prepared to voluntarily rescind or cancel the sale

deed of Kapurthala House in their favour."

He further stated:

"That my secretary, Shanti Sagar Mahendra, had been

authorised to pay the amount of Rs. 1.50 lacs to M/s

Jarmani Dass and Seksaria Brothers and get back the

Kapurthala House at New Delhi if they so agree and have

the sale deed registered in his own name. In case this is

not possible I request you to please be good enough as to

see that Kapurthala House, New Delhi, is declared my

personal and private property and I am not made to return

the money." (emphasis ours)

This does not at all sound like any assertion of title to the suit property, but

more like an imploration to the Government of India to declare the property

as private property so that Maharaja was not required to refund the money

which he had taken from M/s Dewan Jarmani Dass and Seksaria Brothers.

The determination of the issue as to whether the suit property was the

private property of the Ruler of Kapurthala State recognised as such by the

Government of India or whether it was the State property of Kapurthala

State, which merged into the PEPSU and thereafter transferred by the

Government of India to the State of Punjab (Defendant No. 2), is crucial and

decides the fate of the present litigation. It is crucial because the plaintiff

claims title from the Maharaja of Kapurthala; if the Maharaja's title to the

suit property was good, then the plaintiff has good title; conversely, if the

Maharaja had no title to the suit property as on the date of the conveyance

dated 10.1.1950, then the plaintiff gets no title and, therefore, his suit must

fail. Nemo dat quoad non habet.

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The Commands of 1940 and 1948:

The plaintiff attempted to prove his title by showing that the Maharaja

had a good title because the suit property was the private property of the

Maharaja bought from his personal funds and not the State property of

Kapurthala purchased from State funds. Despite the allocation made by the

aide memoire on 1.3.1937 prepared by Col. Fisher, the plaintiff's case is that

by reason of the subsequent command of the Maharaja dated 1.1.1940 the

classification made by the aide memoire was overridden and the property

remained as personal property of the Maharaja. Consequently, under the

covenant it was bound to be recognised as personal property which was

guaranteed under the covenant. Since the suit property was the personal

property of the Maharaja, the Maharaja had good title which had passed to

the plaintiff, is the line of argument of the plaintiff. A number of legal

arguments in support and voluminous documents have been placed on

record. The Division Bench of the High Court meticulously considered

everyone of the documents on record and totally disbelieved the case of the

plaintiff as to the existence of this alleged command of the Maharaja dated

1.1.1940 and another alleged command dated 11.8.1948 declaring the suit

property as his private property. There is serious controversy as to whether

the said documents were ever issued, whether the said documents were

proved on record, and if so, what the legal consequences would be. We may

add here that, apart from these two disputed documents, the only other

document in which there is any reference to the command of 1940 (without

indicating the specific date) is a letter dated 11.4.1950 written by Dewan

Jarmani Dass to V.P. Menon which appears to have been written: "in order

to clear my position and to clear some misunderstanding" as to the sale of the

said property to Dewan Jarmani Dass. In this letter, it is stated that Maharaja

of Kapurthala in 1940 passed an order in unequivocal terms that 'Kapurthala

House' should be considered as his personal property. Hence, Dewan

Jarmani Dass said this should be treated as personal property of the Maharaja

and, consequently, his own rights should remain protected.

Having carefully perused the documents placed on record, and

considered the arguments of the learned counsel, we are inclined to agree

with the findings of the Division Bench about both these documents. As to

the command of 1940, it has been held proved by the learned Single Judge

only on the basis of adverse inference and secondary evidence. The Division

Bench has correctly pointed out the circumstances under which secondary

evidence could have been let in did not exist at all. The inconsistency in the

pleadings as to the particulars of the documents led to the resulting confusion

in the defendants admitting possession and denying possession in succession.

One thing, however, strikes us that in the entire correspondence, which the

Maharaja contemporaneously had up to the sale of the suit property, there

was no reference to this command at all. While it may not be possible to

agree with the positive conclusion drawn by the Division Bench that this

command was fabricated and clandestinely inserted by the plaintiff in the

records of the Archives Department, we too agree that these documents have

not been proved in accordance with law.

The Division Bench of the High Court rightly points out that the aide

memoire prepared by Lt. Col. Fisher on 1.3.1937 indubitably declared that

House in Delhi was a "State House". This document was signed by Col.

Fisher in his capacity as Prime Minister as also by the Ruler of Kapurthala.

There is no dispute about this document, or that it had been signed by the

Ruler of Kapurthala. In other words, as early as 1.3.1937, the Maharaja of

Kapurthala accepted that the House in Delhi (the suit property) was State

property. It would appear that in order to help the plaintiff in his suit, the

third defendant, who is the grand son and successor of the Maharaja, and the

plaintiff, introduced the theory that the Maharaja by his Commands dated

1.2.1940 and 11.8.1948 had nullified the effect of Lt. Col. Fisher's aide

memoire dated 1.3.1937.

The fact that there was no reference whatsoever to these documents in

any of the contemporaneous correspondence between the Ruler of

Kapurthala and the Government of India lends credence to the dubitable

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nature of these two documents. In fact, at no point of time did the Maharaja

put forward a claim with the Government of India that the suit property had

ceased to be State property and become his private property by reason of his

aforesaid commands or otherwise. As we have already noticed, the tone and

tenor of the correspondence between the Maharaja and the Government of

India during the material period was abjectly supplicant and demonstrated

only an anxiety on his part to protect his privy purse and to bargain for

certain concessions from the Government. Never was there an assertion of

rightful title to the suit property, his efforts being directed towards wresting

greater concessions. The Division Bench has rightly analysed the evidence

on record and came to the finding that till 1934, the income from Oudh

estates and Kapurthala State were treated as one consolidated account. It was

only on the advice of the Lt. Col. Fisher that the accounts were separately

maintained after 1936. Even in the Note dated 28.5.1948 (Vol. 9 page 17)

sent by the Maharaja and the Tika Raja, President of State Council to V.P.

Menon, Secretary, Ministry of States, it is pointed out that the income from

Oudh estates were merged in the income of Kapurthala State upto 1934, and

it was bifurcated only on the recommendation of Lt. Col. Fisher. The reason

for this is explained thus:

"This step was taken only with the idea of earmarking the

income of the Oudh estates for my Civil List. As it has

been my desire for some time to amalgamate once again

the income of my Oudh estates with the revenue of my

State, I am pleased to order that steps should be taken

with regard to the amalgamation of the Oudh estates with

the Kapurthala State."

Thereafter, the Maharaja pleads his case that he should be granted

Rs. 25 lacs to be transferred to his household account out of the State

Reserve Fund.

On 4.6.1948, the Ministry of States wrote to the Maharaja that

transferring such a large amount would invite serious public criticism and

would not be acceptable to the Government. Discussions followed

thereafter. The Maharaja took the advice of Chaudhary Niamat Ullah, a

retired Judge of the Allahabad High Court, and addressed a note dated

24.8.1948 to the Chief Minister of Kapurthala. Even in the memorandum the

plea made was with regard to injustice that was likely to result: "if my privy

purse is determined solely on the basis of the revenue of the Kapurthala State

Property". The aide memoire prepared by the Maharaja in July, 1948 (Ex.

D2/5) also reiterates this.

In view of this clear evidence, the Division Bench was justified in its

finding that the Maharaja of Kapurthala had clearly admitted that the income

from Oudh estates formed an integral part of State of Kapurthala and all

along maintained in his correspondence with the Government of India that

the nature of the suit property could not be decided merely from the source

of income aspect.

Article 363 of the Constitution of India / Act of State:

For the appellants, it was contended that the source of income was not

really the index of the nature of the property, namely, whether it was State

property or private property of the Maharaja, but that the principle adopted at

the time of accession was the principle of user of the property.

The learned counsel for the appellants urged that the evidence on

record shows that the suit property in Delhi had been personally used by the

Maharaja all along and at no point of time was it used for State purposes.

Hence, he contended that this property was the private property of the

Maharaja.

Even assuming that the learned counsel for the appellants may be right

in his contention that applying the test of user the suit property was liable to

be determined to be the private property of the Maharaja, the question that

arises is: Did the Government of India recognise the suit property as the

private property of the Maharaja? If they did not, could a suit be maintained

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for a declaration that the suit property was the private property of the

Maharaja? Answering this question, the Division Bench holds that the suit

was not maintainable and barred by reason of Article 363 of the Constitution

of India.

The learned counsel for the State of Punjab and the Union of India

contended that the suit of the plaintiff was clearly barred and the court had

no jurisdiction to entertain the suit by reason of Article 363 of the

Constitution of India. Article 363 reads thus:

"363. Bar to interference by courts in disputes

arising out of certain treaties, agreements, etc.\027

(1) Notwithstanding anything in this Constitution but

subject to the provisions of article 143, neither the

Supreme Court nor any other court shall have

jurisdiction in any dispute arising out of any provision of

a treaty, agreement, covenant, engagement, sanad or

other similar instrument which was entered into or

executed before the commencement of this Constitution

by any Ruler of an Indian State and to which the

Government of the Dominion of India or any of its

predecessor Governments was a party and which has or

has been continued in operation after such

commencement, or in any dispute in respect of any right

accruing under or any liability or obligation arising out

of any of the provisions of this Constitution relating to

any such treaty, agreement, covenant, engagement,

sanad or other similar instrument.

(2) In this article-

(a) "Indian State" means any territory recognised before

the commencement of this Constitution by His Majesty

or the Government of the Dominion of India as being

such a State; and

(b) "Ruler" includes the Prince, Chief or other person

recognised before such commencement by His Majesty

or the Government of the Dominion of India as the Ruler

of any Indian State."

Counsel for the State of Punjab contended that the act of accession of

Kapurthala State to the Dominion of India, which was brought about by an

instrument of accession dated 16.8.1947 resulting in the Union of PEPSU

coming into being on 15.7.1948 as well as the execution of the covenant

dated 5.5.1948 between the Maharaja and the Government of India, were

acts of the State. They were the resultants of exercising political power

which could not be questioned in the municipal courts. Learned counsel

placed heavy reliance on the judgment of the Constitution Bench of Seven

learned Judges of this Court in State of Gujarat v. Vora Fiddali

Badruddin Mithibarwala .

In Vora Fiddali (supra) a Constitution Bench of this Court had

examined whether the Government of India was bound to recognise and

implement the rights created by a "Tharao" of the Ruler of the erstwhile

Sant State granting special rights with regard to certain forests after the

Maharaja of Sant State had by an instrument of merger agreement dated

19.3.1948 acceded to the Dominion of India, the Government of India,

having refused to recognise any rights flowing under the grants made under

the 'Tharao' of the erstwhile Ruler. The Constitution Bench approved of the

following dicta of Lord Dunedin in Vaje Singhji Jorwar Singh v.

Secretary of State for India :

"When a territory is acquired by a sovereign state for the

first time that is an act of State. It matters not how the

acquisition has been brought about. It may be by

conquest, it may be by cession following on treaty, it may

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be by occupation of territory hitherto unoccupied by a

recognised ruler. In all cases the result is the same. Any

inhabitant of the territory can make good in the municipal

courts established by the new sovereign only such rights

as that sovereign has through his officers, recognised.

Such rights as he had under the rule of predecessors avail

him nothing. Nay more, even if in a treaty of cession it is

stipulated that certain inhabitants could enjoy certain

rights, that does not give a title to those inhabitants to

enforce these stipulations in the municipal courts. The

right to enforce remains only with the high contracting

parties."

It also expressly disagreed with the ratio of an earlier judgement of this

Court in Virendra Singh & Ors. v. The State of Uttar Pradesh that such

grants were merely voidable and continue to bind the parties till they were

expressly revoked by the new Sovereign. The majority judgment in Vora

Fiddali (supra) rendered by Hidayatullah, J. succinctly sets forth the concept

of 'Act of State' in the following words:

"To begin with, this Court has interpreted the integration

of Indian States with the Dominion of India as an Act of

State and has applied the law relating to an Act of State

as laid down by the Privy Council in a long series of

cases beginning with Secretary of State in Council for

India v. Kamachee Boye Saheba and ending with

Secretary of State v. Sardar Rustam Khan and

Other . The cases on this point need not be cited.

Reference may be made to M/s Dalmia Dadri Cement

Co. Ltd. v. Commissioner of Income-tax , The State

of Saurashtra v. Menon Haji Ismali Haji , Jaganath

Agarwala v. State of Orissa , and State of

Saurashtra v. Jamadar Mohamed Abdulla and

Others . In these cases of this Court, it has been laid

down that the essence of an Act of State is an arbitrary

exercise of sovereign power on principles which are

paramount to the Municipal Law, against an alien and the

exercise of the power is neither intended nor purports to

be legally founded. A defence that the injury is by an Act

of State does not seek justification for the Act by

reference to any law, but questions the jurisdiction of the

court to decide upon the legality or justice of the action.

The Act of State comes to an end only when the new

sovereign recognises either expressly or impliedly the

rights of the aliens. It does not come to an end by any

action of subordinate officers who have no authority to

bind the new sovereign. Till recognition, either express

or implied, is granted by the new sovereign, the Act of

State continues."

The decision also holds that merely because the issue of recognition of the

new rights was pending with the Government, it cannot be postulated that

the act of State had come to an end. The act of State could only come to an

end if the Government recognises the rights which were granted by the

erstwhile Ruler. The Government may take time to consider; and delay does

not mitigate against the act of State. [See, Jaganath Agarwala v. State of

Orissa (supra)].

Vora Fiddali (supra) also holds that although the distinction between

legislative, executive and judicial acts of an absolute Ruler (such as the

Indian Rulers were) was apt to disappear when the source of authority was

the sovereign, this would be true only in so far as the subjects of the Ruler

were concerned, since they were bound to obey not only laws but any orders

of the Ruler, whether executive or judicial. "For them there did not exist any

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difference because each emanation of the will of the sovereign required

equal obedience from them. But it does not mean that the Ruler acted

legislatively all the time and never judicially or executively. If this was the

meaning of the observations of this Court then in Phalke's case, it would

not have been necessary to insist that in determining whether there was a

law which bound the succeeding sovereign, the character, content and

purpose of the declared will must be independently considered." Applying

the test, the majority came to the conclusion that the "Tharao" was not "law

in force" which continued to operate by reason of Article 372 of the

Constitution of India. It was also held that the municipal courts in India

could not pronounce upon the dispute arising under the agreement or

touching the agreement as the subject was outside the jurisdiction by reason

of Article 363 of the Constitution of India.

The rule that cession of territory by one State to another is an act of

State and the subjects of the former State may enforce only those rights

which the new sovereign recognises has been accepted by this Court. [See

in this connection: M/s Dalmia Dadri Cement Co. Ltd. V. The

Commissioner of Income-tax (supra); Jagannath Agarwala v. State of

Orissa (supra); Promod Chandra Deb and Others v. The State of

Orissa and Others and The State of Saurashtra v. Jamadar

Mohamad Abdulla and Others (supra).]

Applying the law as laid down in Vora Fiddali (supra) it appears to

us that the contention of the State of Punjab and the Union of India must be

upheld. The Maharaja of Kapurthala was an independent sovereign Ruler.

To merge or not to merge with the Dominion of India was a political

decision taken by him and the instrument of accession dated 16.8.1947 was,

without doubt, an act of State. So was the covenant dated 5.5.1948. By the

covenant all rights, authority and jurisdiction of the erstwhile Rulers were

vested in the Patiala and East Punjab States Union and all assets and

liabilities of the covenanting States became the assets and liabilities of the

Union, PEPSU. It is only Article XII which ensured certain rights to the

Ruler with regard to full ownership, use and enjoyment of all private

properties (as distinct from State properties) belonging to him on the date of

his making over the administration of the State to the Raj Pramukh.

Consequently, he was also required to furnish to the Raj Pramukh, before

the deadline, an inventory of all the immovable properties, securities and

cash balances held by him as such private property. This was obviously

done so that the Government of India could ascertain the correctness of the

claim. No doubt, clause (3) of Article XII provides that a dispute arising as

to whether any item of property was the private property of the Ruler or

State property was referable to a nominee of the Government of India and

such nominee's decision would be final and binding on all the parties

concerned, provided that such dispute was to be referred by the deadline of

31.12.1948. Interpreting this clause, the learned Single Judge took the view

that under the treaty the Government of India could not unilaterally refuse to

recognise any property as private property of the Ruler, and, if it did, it was

obliged to refer it to the person contemplated by clause (3). Failure to do so

would imply recognition of the claim as to private property. In our view, this

reasoning of the learned Single Judge was erroneous on two counts. In the

first place, this interpretation ignores the true nature of the covenant. The

covenant is a political document resulting from an act of State. Once the

Government of India decides to take over all the properties of the Ruler,

except the properties which it recognises as private properties, there is no

question of implied recognition of any property as private property. On the

other hand, this clause of the covenant merely means that, if the Ruler of the

covenanting State claimed property to be his private property and the

Government of India did not agree, it was open to the Ruler to have this

issue decided in the manner contemplated by clause (3). Clause (3) of

Article XII does not mean that the Government was obliged to refer to the

dispute upon its failure to recognise it as private property. Secondly, the

dispute as to whether a particular property was or was not recognised as

private property of the Ruler was itself a dispute arising out of the terms of

the covenant and, therefore, not adjudicable by municipal courts as being

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beyond the jurisdiction of the municipal courts by reason of Article 363 of

the Constitution of India.

Although, Vora Fiddali (supra) was a case which dealt with the

recognition of the rights of the subjects of an erstwhile Ruler after accession

of the Ruler to the Dominion of India, the principles laid down in Vora

Fiddali would apply with greater vigour to the rights claimed by the Ruler

himself.

We are of the view that after the Government of India took over all

the properties of the Ruler of the Kapurthala State, by an act of State,

assuring him by the covenant only that he would be entitled to the full

ownership, use and enjoyment of all private properties. A procedure was

prescribed for recognition of such private properties. The evidence on record

does not suggest that at any point of time the Ruler of Kapurthala had

disputed the power of the Government of India to decide the issue as to

whether the suit property was the property of the State of Kapurthala or

private property of the Ruler. On the contrary, the correspondence placed

on record suggests that at all points of time the Ruler of Kapurthala accepted

the position that the Government of India had the right to decide the nature

of the property and was merely pleading that the suit property be declared as

his private property. Finally, in any event, we are of the view that the issue

as to whether the Government of India was obliged to recognise the private

property of the Ruler of Kapurthala, and whether, under the terms of the

covenant (Article XII of the covenant), the Ruler of Kapurthala was entitled

to have it thus recognised, are disputes which are clearly barred by

Article 363 and the court had no jurisdiction to decide the said issues.

Lex Situs:

The appellants contend that the decision that the suit property could

not be recognised as private property was taken only in 1951 i.e. after the

coming into force of the Constitution of India. By that time, the Maharaja

had acceded to the Union (PEPSU) which was succeeded by the State of

Punjab as a State under the Constitution. Appellants contend that by the

decision taken in 1951 the right to property which was held by a citizen of

the country could not have been taken away by a mere executive act without

the backing of a valid legislative enactment. According to the appellants,

the lex situs would govern the issue. In other words, the law as applicable in

Delhi would have governed the issue whether the Ruler of Kapurthala had a

right to the property under the laws as applicable in Delhi. The Ruler of

Kapurthala had purchased the property by a registered sale deed from Khan

Bahadur Abdul Hamid; thus, he was the true owner of the property and his

ownership rights could not have been extinguished except by a law validly

made under the Indian Constitution. Allied to this argument is also a

subsidiary argument that there cannot be an act of State as against a citizen

or a friendly alien. Reliance was sought to be placed on the judgment of the

House of Lords in Johnstone v. Pedlar and of this Court in The State of

Saurashtra v. Memom Haji Ismail Haji and H.H. Maharajadhiraja

Madhav Rao Scindia etc. v. Union of India and another .

Some recapitulation of contemporaneous facts is in order to

appreciate the merits of this argument.

After the instrument of accession was executed by the Maharaja on

16.8.1947, he executed the covenant on 5.5.1948, and he forwarded the list

of his private property by way of an aide memoire and handed it over on

15.7.1948 to the Raj Pramukh. Logically, this would have been the first

occasion for the Maharaja of Kapurthala to lay claim to the suit property as

his private property. Interestingly, there is no reference made to the suit

property or any other property as private property in this aide memoire. The

only anxiety appears to be to get the privy purse fixed which was a big

amount to be paid regularly by the Government of India.

On 16.7.1948 (Ex. D.2/6) the Maharaja addressed a letter to the Raj

Pramukh in which he refers to the copy of the aide memoire already handed

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over. Even in this letter, nothing is said about the nature of the property in

Delhi. The emphasise is purely on ensuring that a large amount of privy

purse fixed.

On 25.8.1948 (Ex.D.2/7), one more letter was addressed by the

Maharaja of Kapurthala to the Raj Pramukh. In this letter, there was a

detailed list of "private properties situated in and outside the Kapurthala

State in accordance with Article XII(2) of the covenant. There is also

reference to the aide memoire personally handed over at Patiala on

15.7.1948. The list refers to several palaces and buildings within Kapurthala

State, and in Mussoorie. For the first time, there is reference to the suit

property as 'Kapurthala House' situated at 3, Mansingh Road. The issue of

recognition of private property was still very much under process for the Raj

Pramukh wrote back to the Maharaja of Kapurthala on 3.9.1948 (Ex. D.2./8)

requesting him to furnish a list of jewellery, silver ware etc. as per inventory

in the stock registers of the Toshekhana at Kapurthala as it would "help

greatly in the settlement of claims of your private property."

On 22.9.1948 (Ex.D.2/9) there is a letter written by the Maharaja to

the Raj Pramukh with regard to certain animals and articles which he

wanted to be recognised as private property.

On 12.1.1949 (LC/D Vol.6 page 1539) there is a reference made to

"other properties outside the Kapurthala State belonging to me personally"

with a promise that their list would be forwarded for consideration.

At that time, a number of Rulers had acceded to the Government of

India and the White Paper says that their cases were to be considered one by

one individually. Consequently, there was bound to be some time lag in

taking a decision on the claim to private properties made by the Rulers.

While the claim was being processed, on 1.2.1949 (Ex. D2W1/3), the

Finance Secretary, Govt. of PEPSU wrote to N.M. Buch, Joint Secretary,

Government of India to point out that the order passed in 1937 by the

Maharaja clearly bifurcated the division of the properties into the house hold

and State and that this was contrary to the claim he was putting forward. He

also invited attention to the fact that while Mussoorie property was being

divided half and half, the Delhi house necessarily was to be the official

property of the State and that, though the question had been settled, the

Maharaja had raised the issue again.

By letter dated 11.4.1949 (Ex.D.2./10) the Raj Pramukh informed the

Maharaja:

"The question about Kapurthala House in New Delhi will

be settled separately on the same basis as is applied in the

case of houses owned by other Covenanting States, and I

shall be writing to Your Highness further about it."

During this process the Maharaja of Kapurthala sold the suit property

jointly to the plaintiff and Dewan Jarmani Dass on 10.1.1950.

There was a meeting convened on 25.1.1950 between the Raj

Pramukh, the Maharaja of Kapurthala, M.R. Bhide and the Private Secretary

to the Raj Pramukh. Even the minutes ( Ex. D.2/11) recorded of this meeting

do not disclose that the Maharaja had informed M.R. Bhide about the sale of

the property on that day.

When the Government of India came to know of the sale of the suit

property, a meeting was arranged on 7.2.1950 in Kapurthala between V.P.

Menon, Secretary, Ministry of States, M.R. Bhide, Regional Commissioner,

PEPSU, Sardar Hari Sharma, Deputy Secretary of States and the Maharaja

of Kapurthala. The minutes of this meeting, insofar as they pertain to the

suit property, make interesting reading. They read as under (Para 3):

"The sale of Kapurthala House in Delhi should be

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revoked. The vendee should be asked to refund the

consideration money to His Highness. This decision was

communicated to Dewan Jarmanidass by Secretary."

On 14..3.1950 (Ex.PX-13), the Maharaja wrote to V.P. Menon,

Secretary, Ministry of States requesting him to declare the suit property as

his personal property.

On 26.2.1951 a meeting was held between the representatives of the

Government of India and the Maharaja. The minutes were recorded on

1.3.1951 (Ex. D.2W2/2). The material portion of the minutes reads as under:

"Delhi House : His Highness was informed that in the

basis of the information received on him, the house could

not be treated as private property. The intention of the

Government of India, therefore, was to treat the house as

State Property."

Finally, by letter dated 4/5.5.1951 (Ex.P.6/3), the Government of

India informed the Maharaja:

"It has now been decided that Kapurthala House, No. 3,

Man Singh Road, New Delhi, will be State property and

not the private property of Your Highness. We have

informed the PEPSU Government of this decision."

In the light of these developments, it is clear that the act of State

continued from the date when the instrument of accession was signed i.e.

16.8.1947 to the date on which the final decision of the Government of India

was conveyed to the Maharaja. The fact that time was taken in conveying

the decision, or the fact that the Constitution of India had come into force in

the interregnum, do not change the character of the act of the Government of

India in refusing to recognise the suit property as the private property of the

Maharaja of Kapurthala. Agarwala (supra) holds that an act of State need

not be a prompt decision, but could stretch over a period of time. Vora

Fiddali (supra) states that the act of State would continue till the new

sovereign recognises the rights. In this case, however, the act of State

terminated with the final decision of non-recognition being conveyed. What

the Government of India did in the year 1951 was not referable to anything

flowing from the Constitution, but, action albeit delayed, referable to the

instrument of accession and the covenant signed by the Maharaja. Any

dispute with regard to what the covenant guarantees, or whether the act of

the Government of India was justified under the covenant is, beyond the

pale of jurisdiction of the court by reason of Article 363 of the Constitution

of India. The Division Bench of the High Court was, therefore, justified in

making a finding that the suit was barred by Article 363 and was liable to

fail.

Now, we may dispose of the subsidiary argument of Mr. Vellapally,

learned senior advocate, based on the Doctrine of Lex Situs. Vora Fiddali

(supra) is an authority for the proposition that the act of State would

continue till there is recognition (or non-recognition). In our view, all the

rights available to the erstwhile Ruler and his subjects are of no avail till

there is recognition of such rights. The argument of lex situs could have

perhaps prevailed, if the Government of India at any point of time had

recognised the suit property as the private property of Maharaja of

Kapurthala, and, after the coming into force of the Constitution, attempted

to take it away otherwise then by a Constitutionally valid legislative

enactment. On the facts, however, we find that no such recognition was

granted. Merely because the decision not to recognise was conveyed to the

plaintiff in the year 1951, the act of the Union of India did not cease to be an

act of State, nor does it fall outside the protective umbrella of Article 363 of

the Constitution of India. The contention of the learned counsel of the

appellants that the plaintiff claimed title to the property through the

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registered sale deed in his favour under the law applicable in Delhi would be

of no avail. As we have said earlier, if the Maharaja had no title to the

property, the plaintiff can hardly get anything more.

Another interesting sideline in the argument was introduced by the

learned counsel for the appellants that an act of State could never occur with

reference to property that was not in the ceded territory. It is not necessary

for us to examine this argument as the facts on hand are clearly against the

argument. There is not doubt, whatsoever, that the Maharaja of Kapurthala

held properties outside the territory of Kapurthala, say, for example, in

Mussoorie and Delhi. Even with regard to these properties, the Government

took a decision as to their character and whether they could be recognised as

private property of the Ruler. As to Delhi property, the Government of India

decided that it would be treated as State property and in the case of

Mussoorie property, half of it to be treated as State property and half of it to

be treated as private property of the Maharaja of Kapurthala. Further, we

find that Article VI of the Covenant dated 5.5.1948 vests "all" the assets and

liabilities of the covenanting States in the Union of PEPSU and makes

exception only with regard to private properties as contemplated by Article

XII. There is no reference whatsoever therein to the situs of the property.

The covenant, therefore, drew a distinction only between State property and

private property of the Ruler irrespective of where the property was situated.

In our view, any further dispute with regard to the interpretation of this

clause of the covenant would again be beyond the jurisdiction of the court

by reason of Article 363 of the Constitution of India.

In the result, we uphold the findings of the Division Bench of the

High Court that the suit was not maintainable.

Article 77 of the Constitution of India:

The contention based on Article 77 of the Constitution of India, urged

by the learned counsel for the appellants, also does not have merit. The

contention is that all orders and other instruments made and executed in the

name of the President are required to be authenticated in the manner as

specified in Article 77. That the order, if any, of the Government of India,

not to recognise the suit property as the private property of the Maharaja,

was not executed in this manner and, therefore, is invalid. The judgment of

this Court in State of Rajasthan and anr. v. Sripal Jain and L.G.

Chaudhari v. The Secretary, L.S.G. Dept., Govt. of Bihar and Ors.

were pressed into service in support.

In our view, the argument based on Article 77 is irrelevant. Even

assuming that the appellants are right in the contention that the decision not

to recognise the suit property as private property of the Maharaja of

Kapurthala, was required to be and not taken in the manner contemplated by

Article 77, it would only mean that there was no decision. In our judgment,

the plaintiff cannot succeed by merely showing that the Government of

India had failed to arrive at a decision on the issue. He must further show

that the Government of India had recognised the suit property as private

property of the Ruler of Kapurthala as that could be the only foundation for

his title. There is also another reason why we are not impressed with this

argument. If the act of recognition or non-recognition of the suit property as

private property is relatable to the instrument of accession made in 1947 and

the covenant executed in 1948, the decision would also relate back to the

date of the covenant, and on that date Article 77 of the Constitution was not

in existence. Hence, it would be incorrect to judge the validity of that

decision relatable to the covenant executed in 1948 by the Constitution of

India, which came into existence much later.

Article 372 of the Constitution of India:

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The appellants, relying on the judgment in Vishnu Pratap Singh v.

State of Madhya Pradesh & Ors. , contend that the Ruler of Kapurthala

was an absolute sovereign, who could by his command change the character

of the property from State property to private property, which he did by his

commands of 1940 and 1948; that these commands had the force of law and

continued to operate as 'existing law' by reason of Article 372 of the

Constitution of India; and they could only be revoked by a law validly

made by Parliament and not by an executive act.

The argument, undoubtedly, allures at first blush; but, it fails when

scrutinized. In the first place, Vishnu Pratap Singh (supra) relied on and is

based on the ratio of Virendra Singh (supra). Vora Fiddali, a decision of

Seven learned Judges, expressly overruled the principle laid down in

Virendra Singh (supra). Consequently, Vishnu Pratap Singh (supra)

cannot be said to be good law. In any event, the test laid down in Vora

Fiddali, if applied to the commands in question (even assuming they have

been proved), is answered negatively. The learned Single Judge was correct

in saying that 1948 command did not amount to law. Even assuming the two

commands of 1940 and 1948 were proved, they would not amount to law,

by applying the test laid down in Vora Fiddali (supra).

Learned counsel for the appellants placed strong reliance on the

judgment in State of Punjab & Ors. v. Brigadier Sukhjit Singh which,

incidentally, is the case of the third defendant himself pertaining to

Kapurthala State. Strong reliance is placed on the observations in Paragraph

11 of the judgment:

"Now it is beyond doubt that the ruler of an Indian State

was in the position of a sovereign and his command was

the law. His Farman had the strength and potency of a

law made by an elected legislature and his acts,

administrative or executive, were sovereign in character."

This judgment would be binding inter parties as far as what it decides. If it is

cited as a precedent on a proposition of law, we are afraid that this judgment

runs counter to what had been laid down by the majority judgment in Vora

Fiddali (supra) and, what is more, strangely, does not refer to Vora Fiddali.

In the teeth of Vora Fiddali, we are unable to accept the cited judgment as

reflecting the correct position of law.

Limitation:

That brings us to the issue of limitation. The learned Single Judge

held that the plea of limitation not having been taken in the pleadings

defendants Nos. 1 and 2 should not be allowed to raise the said plea.

We may notice here that under the Code of Civil Procedure, Order

VII Rule 1(e) requires a plaint to state "the facts constituting the cause of

action and when it arose". The plaintiff was bound to plead in the plaint

when the cause of action arose. If he did not, then irrespective of what the

defendants may plead in the written statement, the court would be bound by

the mandate of Section 3 of the Limitation Act, 1908 to dismiss the suit, if it

found that on the plaintiff's own pleading his suit is barred by limitation. In

the instant case, the plaint does not plead clearly as to when the cause of

action arose. In the absence of such pleadings, the defendants pleaded

nothing on the issue. However, when the facts were ascertained by evidence,

it was clear that the decision of the Government of India not to recognise the

suit property as private property of the Maharaja was taken some time in the

year 1951, whether in March or May. Dewan Jarmanidass, the plaintiff and

the Maharaja were very much aware of this decision. Yet, the suit was filed

only on 11.5.1960.

The Division Bench was, therefore, right in applying Article 120 of

the Limitation Act, 1908 under which the period of limitation for a suit for

which no specific period is provided in the Schedule was six years from the

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date when the right to sue accrues. The suit was, therefore, clearly barred by

limitation and by virtue of Section 3 of the Limitation Act, 1908, the court

was mandated to dismiss it.

As rightly pointed out by the Division Bench, the learned Single

Judge ought to have permitted the plea to be raised on the basis of the facts

which came to light. The Division Bench has correctly appreciated the plea

of limitation, in the facts and circumstances of the case, and rightly came to

the conclusion that the suit of the plaintiff was liable to be dismissed on the

ground of limitation. We agree with the conclusion of the Division Bench

on this issue.

Alternative Relief:

The last issue which needs consideration relates to the alternative

relief prayed for by the plaintiff in Paragraph 16 of the plaint. The plaintiff

pleaded that in case the court came to the conclusion that the Maharaja

Paramjit Singh had no authority to sell the immovable property to the

plaintiff and Dewan Jarmani Dass and/or that the plaintiff and the said

Dewan Jarmani Dass did not acquire any title to the suit property by virtue

of the Indenture of Conveyance dated 10.1.1950, then the plaintiff was

entitled to a sum of Rs. 4 lacs as damages from the third defendant

(Sukhjit Singh, the then Maharaja of Kapurthala), for "breach of the

covenant of title contained in the said indenture of conveyance" as a result

of which the plaintiff would be deprived of the whole of the suit property by

reason of the said defect found in the title of the Maharaja Paramjit Singh.

It was pleaded that the third defendant was the sole heir of late Maharaja

Paramjit Singh and had inherited all his properties and was, thus, bound and

liable to keep the plaintiff harmless and indemnified against "all losses,

damages costs and expenses which the plaintiff might sustain or incur by

reason of the plaintiff being deprived of the suit property." The plaintiff

alleged that he had sustained damages in the sum of Rs. 4 lacs "as per

particulars hereto annexed and marked as Ex. J." and claimed the said

amount from defendant No. 3. Interestingly, there is no annexure \026 'Ex.J.'

to the original plaint on record. The third defendant by his written statement

while traversing the allegations on this issue maintained that he was not

liable to keep the plaintiff indemnified against such losses. He also denied

that the plaintiff had lost a sum of Rs. 4 lacs as alleged in his annexure-

Ex.J., the particulars of which he also denied having been supplied to him.

A replication to the written statement of Defendant No. 3 was made by the

plaintiff in which it is repeated that the third defendant was bound and liable

to keep the plaintiff indemnified against any loss, damage, costs etc.

suffered as a result of deprivation of the suit property. The plaintiff

reiterated that the third defendant was liable for the claim in the suit and that

"the particulars of the claim of 4 lakhs are on the court file as Annexure 'J'

and the Defendant No. 3 ought to have inspected the court file". After

anxiously wading through the mass of documents filed in the trial court, we

are unable to locate any such annexure \026'J' in the plaint. It is not known as

to how the plaintiff arrived at the estimate of the alleged damages claimed

by him from third defendant as an alternative relief (vide prayer clause (e) in

the plaint).

Not only there is no pleading on the issue, but we find that there is no

evidence, whatsoever, let in by the plaintiff on this alternative relief

claimed. All the witnesses examined by the plaintiff were with reference to

the title of the plaintiff. Not a single of the plaintiff's witnesses has said a

word about this alternative claim for damages in the sum of Rs. 4 lacs.

Apart therefrom, when the third defendant was examined, not a single

question seems to have been addressed to him in cross examination with

regard to this alternative claim of damages in the sum of Rs. 4 lacs.

Issues 9, 10 and 13 framed by the learned Single Judge pertained to

this claim. The learned Single Judge disposed of this claim by observing:

"It has been stated by defendant No. 3, in his evidence,

that he is the only legal heir of his father Maharaja

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Paramjit Singh and he had succeeded to the estate left

behind by him. But in view of the fact that I have held

that the father of defendant No. 3 was the owner of the

property in dispute and had the authority to sell the same,

therefore the question of defendant No. 3 becoming liable

to re-compensate the plaintiff with any amount does not

arise. The issues are decided accordingly."

The Division Bench dealt with this issue and observed (vide Paragraph 595):

"The learned Single Judge took the view that third

defendant was not liable to recompensate the plaintiff. It

was not brought to the notice of the learned Judge that

the plaintiff did not press his claim against defendant No.

3 at the time of the trial."

Although, in the written submissions filed before the High Court as

well as in the appeal before this Court, submissions have been made with

regard to the alternative relief, no arguments were addressed before us on

this issue when the oral submissions were made by the counsel on both

sides. Despite looking for it, we are unable to locate anything on record

which expressly suggests that this claim had been expressly given up by the

plaintiff during the trial. We are unable to find out the basis on which the

Division Bench arrived at this conclusion. This fact, however, does not carry

the case of the plaintiff any further. The burden of establishing that the

plaintiff had sustained damages and the measure of damages was squarely

on the plaintiff. The plaintiff has singularly failed to discharge this onus

both by lack of pleadings and lack of evidence. In the circumstances, this

alternative relief claimed by the plaintiff must fail.

In the result, we find no reason to interfere with the impugned

judgment of the Division Bench of the High Court. The appeal is liable to be

and is dismissed.

In the facts and circumstances of the case, however, there shall be no

order as to costs.

Civil Appeal No. 3861 of 2001:

The facts, insofar as they are relevant for disposal of this appeal are as

under:

On 10.1.1950, the late Maharaja Paramjit Singh, ex-Ruler of

Kapurthala State purported to sell and convey the suit property to Dewan

Jarmani Dass and R.M. Seksaria by a registered sale deed for the

consideration of Rs. 1.50 lacs.

We have already held, by our judgment delivered today in Civil

Appeal No. 3862 of 2001, that Maharaja Paramjit Singh had no title to the

suit property which he could convey to the plaintiff. After purporting to sell

the suit property to M/s Dewan Jarmani Dass and R.M. Seksaria, the

petitioners put them in possession.

On 29.3.1950, the Government of India, in exercise of its power

under Section 3 of the Delhi Premises (Requisition and Acquisition) Act,

1947, issued a notice of requisition to R.M. Seksaria. This was objected to

by R.M. Seksaria, but ultimately an order of acquisition of the suit properlty

was passed on 17.6.1950.

On 4.12.1950, pursuant to the said order of requisition the Estate

Officer took possession of the suit property.

On 21.2.1951, a deed of transfer was signed between Dewan Jarmani

Dass and R.M. Seksaria by which Dewan Jarmani Dass conveyed,

transferred his undivided share, rights, title and interest in the property to

R.M. Seksaria. There was correspondence between R.M. Seksaria and the

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Estate Officer with regard to disposal of the furniture, fittings drapery etc. in

the suit property.

On 14.3.1952, the Delhi Premises (Requisition and Acquisition) Act,

1947 was repealed by the Requisitioning and Acquisitioning of Immovable

Property Act, 1952. Section 24 of the new Act made a deeming provision

under which the properties requisitioned under the repealed Act were

deemed to have been requisitioned under the new Act.

On 11.5.1960, R.M. Seksaria (the plaintiff) filed a suit in the Delhi

High Court for declaration of his title to the suit property.

The Government of India had taken a decision that the suit property

had been refused to be recognised as the private property of the late

Maharaja of Kapurthala. It took the stand that the suit property was State

property and devolved upon PEPSU, and thereafter, on its successor, State

of Punjab. In the meanwhile, the Government of India had allowed the State

of Punjab to use the property.

By 10.3.1987 the requisitioning of the property came to an end. By

this time, however, there was a suit for declaration of title of the property.

The State of Punjab and the Government of India denied that R.M. Seksaria

had derived any title to the suit property, and, therefore, refused to hand it

back to R.M. Seksaria, despite the requisitioning order having come to an

end.

On 18.5.1987, R.M. Seksaria filed a writ petition, CWP No. 1612/87

in the High Court of Delhi for a direction to the Union of India, the Director

of Estate, Ministry of Urban Development and the State of Punjab to give

vacant possession of the suit property to the petitioners. This writ petition

was heard along with the first appeal RFA (OS) No. 19 of 1989 filed by the

State of Punjab and Union of India impugning the decree in favour of the

plaintiff which had been made by the learned Single Judge. When the writ

petition was taken up for hearing, the learned counsel appearing for the

petitioners and the present civil appeal fairly submitted to the court that, if

the court accepted the case of the plaintiff, then the petitioners would be

entitled to the reliefs prayed for in the writ petition. By its judgment dated

8.12.2000, the Division Bench of the High Court dismissed the writ petition

by observing thus in Paragraph 4:

"In the light of the findings rendered by us in RFA(OS)

19/89 the plaintiff has no right at all in the suit property,

the petitioners as legal representatives of the plaintiff in

the suit, have absolutely no right to pray for the issuance

of writ of mandamus and other reliefs."

This decision of the Division Bench can hardly be faulted. We see no

reason to interfere. In the result, this appeal is also dismissed.

No order as to costs.