Regular Second Appeal No. 2877 of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2877 of 1996 Date of Decision: 23.9.2009 *** State of Punjab through Collector, Sangrur. .. Appellant VS. Satbir Singh & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. B.S. Sra, Addl. A.G. Punjab for the appellants. Mr. S.D. Sharma, Sr. Advocate with Ms. Bindu Goel, Advocate for the respondents. *** ARVIND KUMAR, J. State of Punjab-appellant has preferred the instant regular second appeal laying challenge to the judgments and decrees passed by the Courts below, decreeing the suit of plaintiffs for declaration and injunction. Let us first have the facts of the case. Satbir Singh-plaintiff No.1 filed a suit through his power of attorney, against the State of Punjab and sought declaration and he is owner in possession of the suit properties, detailed and described in the plaint and the Government be restrained from interfering in his possession thereof. Further, possession of 2 kanals of land was sought, claiming that the same has been illegally occupied by the Forest Department. It was the case of the plaintiff that earlier his predecessors were Rulers of Jind State and after amalgamation of Jind State in erstwhile Patiala and East Punjab States Union (PEPSU), Maharaja Rajbir Singh, the father of the plaintiff surrendered his sovereign rights, but included the suit properties including Mubarik Kotha, Polo Ground, Kathikhana, Kutakhana, Regular Second Appeal No. 2877 of 1996 2 Jimkhana land as a part of his private properties, for which jamabandi for the year 1953-54 was entered in the name of Maharaja Rajbir Singh as owner thereof. Even during the surplus and consolidation proceedings, the Government issued notices to the predecessors of plaintiff treating them as owners and also deducted some land out of the suit land for common purposes. It was further case of the plaintiff that Maharaja Rajbir Singh, during his lifetime initially gifted the land of Jimkhana in favour of his two other minor sons Amarbir singh and Bharatbir and mutation thereof was sanctioned bearing No.2386 in favour of the donees. However, out of the gifted land, 34 bighas 3 biswas of land was sold in favour of Bishan Singh and others vide sale deed dated 30.6.1958 and accordingly the land was mutated in favour of the predecessors vide mutation No.2465 dated 2.12.1958. After the death of Maharaja Rajbir Singh, suit properties were mutated in the name of plaintiff Maharaja Satbir Singh vide mutation No. 2669 dated 10.3.1962 pursuant to a succession certificate issued by the President of India dated 1.12.1959. Consequently, the plaintiff came into the possession of the suit land received by him in lieu of the land taken during consolidation of holding proceedings and he installed tube-wells in the suit land and constructed houses thereon. According to the plaintiff during surplus proceedings, the Government never raised any objection qua his title over the suit properties and even the sale made by plaintiff regarding some part of Mehal Mubarik in favour of Ruldu Ram and others were never questioned by the State Government. It is further the case of the plaintiff that Assistant Collector IInd Grade, Sangrur without notice to the plaintiff sanctioned mutation No.3969 dated 25.8.1967 on the directions of Collector, Sangrur and entered the suit properties in the name of Provincial Government. Although the said mutation was set aside by the Collector vide order dated 17.6.1968, but that order was reviewed by the successor of his office vide order dated 28.7.1970 and the appeal of the plaintiff against the said order was dismissed. It has further been alleged in the suit that the Government took Regular Second Appeal No. 2877 of 1996 3 physical possession of the land measuring 192 kanals 8 marlas and constructive possession of the remaining land vide report dated 19.9.1970 and too without notice to the plaintiff. Constrained with the circumstances the plaintiff approached this Court by way of filing a writ petition, which was accepted on 23.8.1971 and order dated 14.9.1970 was quashed and the possession was reverted back to the plaintiff on 13.12.1971. According to the plaintiff irrespective of these facts, the mutation for the year 1979-80 was entered in favour of the Provincial Government as owner while the plaintiff was shown as in cultivating possession thereof. It is apposite to mention here that for the ejectment of Bishan Singh and Ors., who purchased the Jimkhana land from the father of the plaintiff, on behalf of his minor sons, Tehsildar Sangrur filed an application under the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 seeking their ejectment from the suit land, which led Bishan Singh and others to file a civil suit against the State of Punjab, which was decreed in favour of the plaintiffs therein vide judgment and decree dated 12.10.1978 holding that Maharaja Rajbir Singh was owner of the suit properties and gift and consequent sale made by Maharaja Rajbir Singh was valid transaction and the State Government had no right to interest therein. The said judgment hold good even up to this Court and the RSA of the State was dismissed on 23.2.1981. According to the plaintiff despite issuance of notice under Section 80 CPC, State Government did not carry out necessary corrections in the column of ownership, rather the Forest Department constructed a building upon the land measuring 2 kanals by illegally encroaching upon the same. Hence, the suit was filed. In the written statement filed by defendant-State various preliminary objections as to the maintainability of the suit, jurisdiction of civil court being barred etc. were taken. On merits, it was their case that the suit properties were never included in the list of private properties furnished by Maharaja Rajbir Singh while leaving the rule of Jind State on 20.8.1947 and left to the Government. Even in the succession certificate granted by the President of India, the properties were not shown in the list of properties retained by Maharaja Rajbir Singh. It has further been pleaded that the entry in the column of ownership in the jamabandi for the year 1953-54 was made Regular Second Appeal No. 2877 of 1996 4 due to some clerical mistake which was accordingly rectified on 25.8.1967. Thus, it was pleaded that the plaintiffs are in unauthorized occupation of the suit properties whereas the same vested with the State Government. The defendant admitted the execution of gift deed and sale deed executed by Late Maharaja Rajbir Singh, but according to them the same were not binding upon them since he was not owner and competent to effect the said transactions. It has also been pleaded that in the orders passed by this Court in the writ petition preferred by the plaintiff, it was directed to take back the possession in due course and accordingly the Government took the necessary steps for restoration of possession in accordance with law. Defendant No.2 Iqbal Singh claimed his adverse possession over the land measuring 14 kanals while defendant No.3 filed written statement admitting the claim of the plaintiff. It is apposite to mention here that the persons who purchased the land out of the suit properties from plaintiff Satbir Singh were impleaded as plaintiffs No.2 to 17 in the main suit. On the basis of pleadings of the parties, number of issues were settled by the learned trial Court and both the parties led voluminous evidence in support thereof. The learned trial Court vide judgment and decree dated 2.1.1993 concluded that the plaintiffs are the owners in possession of the suit properties and the sales made by plaintiff No.1 Satbir Singh during pendency of suit in favour of remaining plaintiffs are legal and valid. It was also held that no notice was issued to the plaintiff prior to the change made in the revenue record in favour of the Provincial Government and hence order dated 20.4.1967 was held illegal. While reaching to the conclusion that plaintiff is owner in possession of the suit properties, the learned trial Court also took into consideration the judgment passed in another round of litigation between the vendees of Maharaja Rajbir Singh and the State Government, wherein while turning down similar defence of the defendant- State in that suit, the gift made by Maharaja Rajbir Singh as also the subsequent sale in their favour was held to be legal, and Maharaja Rajbir Singh was held owner of the suit properties and accordingly, it was held that the defence of the defendant-State is hit by principles of resjudicata. It has also been concluded that the defendant State has encroached upon part of Regular Second Appeal No. 2877 of 1996 5 the suit properties to the extent of 2 kanals, which belongs to the plaintiff No.1 and consequently, they were directed to hand over the vacant possession thereof after removing the encroachment made thereupon. The appeal filed by the appellant-State was dismissed by the learned first appellate Court below. Hence this Regular Second Appeal. I have heard learned counsel for the parties and have gone through the paper book carefully. Having heard learned counsel for the parties, this Court is of the considered view that the instant appeal raises following substantial question of law:- 1. Whether the suit is barred by the provisions of Article 363 of the Constitution of India and the matter being an act of the State, the adjudication thereof is beyond the scope of the Civil Court? For the adjudication of the question of law, formulated above, let us first have a glance over the provisions of Article 363 of the Constitution of India, which reads as under:- “Bar to interference by courts in disputes arising out of certain treaties, agreements, etc. (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. Regular Second Appeal No. 2877 of 1996 6 (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. A bare reading of the aforesaid provisions make it clear that the jurisdiction of the Courts is barred in a dispute arising out of the provisions of covenant entered between the Ruler and the Government. To say that the jurisdiction of the civil court is barred in the instant case in the light of provisions contained in Article 363, it has to be seen that the dispute arisen amongst the parties in the instant case has a nexus with the covenant entered into between the Ruler of Jind and the State Government. Both the parties are staking their respective claims on the suit properties. According to the plaintiff, the suit properties are their private properties which his ancestor retained after leaving their sovereign rights in respect of other properties while according to the appellant-defendant, the suit properties were Riyat to the Maharaja from the Government and hence the plaintiff has no right, title or interest therein. It is apt to mention here that provisions of Article 363 do not bar the suit inasmuch as the dispute does not arise out of any of the provisions of covenant, treaties, agreement or enactment etc. because in the instant case the plaintiff is not claiming right to the property on the basis of covenant. A perusal of record shows that the appellant never questioned the title of the plaintiff and prior to him of his predecessor in respect of the suit properties. Even in the jamabandi for the year 1953-54 the Ruler was recorded to be the owner in possession of the property and this position remained even after merger of Jind State into PEPSU and continued upto 20.4.1967 when the Collector passed an order and put the State Government into the column of ownership. The list of private properties produced by the appellant was found to be not reliable, rather from their own showing the Regular Second Appeal No. 2877 of 1996 7 suit properties were a class apart and were neither declared to be the private properties of the Ruler under the covenant nor the same were taken over by the Rajpramukh of PEPSU as State properties. That apart, they failed to point out any Article in the covenant of merger dealing with grant/ retention of any property to the Ruler as Riyat. Both the Courts below concurrently held the properties in dispute as private properties of the Ruler. Thus, it cannot be said that the properties in dispute were part of the covenant of merger and thus, were beyond the purview of merger. In the facts and circumstances of the case, it can he safely held that the provisions of Article 363 have no applicability and thereby bar the jurisdiction of the Civil Court. In the light of discussion above, the question of law framed above is answered against the appellant. The instant appeal stands dismissed, leaving the parties to bear their own costs. (ARVIND KUMAR) JUDGE September 23,2009 Jiten