ivil Appeal No. 2966 of 1979.
From the Judgment and Order dated 31.12.
1977 of the High Court of Himachal Pradesh in R.F.A. No. 7 of 1970.
F.S. Nariman, V.A. Bobde, S.D. Mudaliar and C.K. Rat naparkhi for the Appellant.
K.G. Bhagat, Naresh K. Sharma for the Respondents.
473 The Judgment of the Court was delivered by AHMADI, J.
This appeal by special leave is directed against the judgment of the Division Bench of the High Court of Himachal Pradesh in Regular First Appeal No. 7 of 1970 arising out of Suit NO. 11 of 1987.
The appellant original plaintiff is the second son of late Raja Padam Singh, the ex ruler of Bushahr State.
He filed a suit on 18th November, 1964 principally against the Union of India and the Govern ment of the Union Territory of Himachal Pradesh for a decla ration of his proprietary rights in about 1720 acres of forest land situate in Khatas Nos. 1 & 2, Khataunis Nos.1 to 25 comprising 106 plots, both measured and unmeasured, bearing Khasra Nos. 1, 2, 6, 23, 30, 34, 44, 108,218,222,309,341,409,479,606,433,241,732/280, 736/394 and 728/402 of Chak Addu, tehsil Rampur, in the present district of Mahasu in Himachal Pradesh.
He traced his title to the said lands to a Patta executed by his father on 14th Maghar 1999, Bikrami, i.e. 28th November 1942 A.D., and to the Order No. 5158 of even date directing corresponding mutation changes.
In the said suit Choudhary Gopal Singh & Co., a forest contractor, was added as proforma defendant No. 3 but no relief was claimed against the said party.
The said suit was filed on 18th November, 1964 in the Court of the Senior Sub Judge, Mahasu, but on the upward revision of the suit valuation for the purposes of court fees and jurisdiction the plaint was presented the High Court of Delhi, Himachal Bench, Shimla, and was re numbered as Suit No. 11 of 1967.
The said suit was tried on the original side of the High Court by Jagjit Singh, J. who by his judgment and order dated 6th April, 1970 substantially decreed the suit, in that, he upheld the appellant plaintiff 's claim of owner ship in respect of Khatas Nos. 1 & 2, Khataunis Nos.
1 to 25 comprising 106 plots bearing khasra Nos. 1, 2, 6, 23, 30, 34, 44, 108, 2 18,222,309, 341,409,606, 4 and 33 situate in Chak Addu without prejudice to the application, if any, of Section 27 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953.
The contesting defend ants Nos. 1 and 2 preferred an appeal, being Regular First Appeal No. 7 of 1970, before the Division Bench of the High Court which came to be allowed on 31st December, 1977.
The Division Bench came to the conclusion that the grant made by the erstwhile ruler was in respect of revenue yielding lands only admeasuring about 263.4 bighas and not in respect of the forest lands.
It, however, took the view that after the execution of the lease deed dated 25th September, 1942, Exh.D 1, in favour of the Government of Punjab, the Raja had no subsisting right in the forest lands in question which he could transfer by way of a grant.
In that view of the matter the appeal was allowed and the suit of the 474 plaintiff was dismissed in toto with costs throughout.
Feeling aggrieved by the said judgment and decree, the original plaintiff has preferred this appeal by special leave under Article 136 of the Constitution.
For the sake of convenience we will refer to the parties by their original position and description in the suit.
We now proceed to set out the relevant facts.
The Raja of Rampur Bushahr had sought the aid of the British Government in the management of his forests with a view to preserving, conserving and protecting the same from large scale illicit and indiscriminate cutting of trees.
Pursuant to this request an agreement dated 20th June, 1864 was executed between the said Raja and the British Govern ment whereunder a fixed royalty was agreed to be paid to the former.
By a subsequent agreement dated 1st August, 1871, the Raja granted his rights in waif and windfall timber to the British Government in consideration of certain payments agreed upon under the said agreement.
The terms of both these agreements were revised in 1877 whereby the British Government agreed to pay a fixed annual sum to the Raja on a fifty years ' lease renewable at the will of the British Government.
This arrangement was further revised in 1929 w.e.f.
1st November, 1928 for a period of twenty five years on agreed terms as to payments, etc.
During the subsistence of the said agreement, the parties executed yet another agreement of lease dated 25th September, 1942, Exh.
D 1, for a term of fifty years w.e.f.
1st April, 1941 superseding all previous agreements.
Under clause (II) thereof, the term 'forest ' was defined to mean and include (a) demarcated forests; (b) forests reserved for the use of the Raja; and (c) undemarcated forests.
Demarcated forests were those which were defined and stated as demarcated forests in the forest settlements of Bushahr State whereas undemarcated forests included (a) all tracts of land bearing tree growth or from which the trees were felled and which paid no land revenue as cultivated land to the Bushahr State; and (b) such other tracts of land, cultivated or uncultivated, as with the previous sanction of the Raja were from time to time included in the existing undemarcated forests or were declared to be undemarcated forests.
By clause (III) of the said document, the Raja granted to the Punjab Government 'the entire and sole control of the whole of the forests of Bushahr excepting those reserved for the use of the Raja '.
The Raja was to receive an annual payment of Rs. 1 lakh to be paid in two equal half yearly installments of Rs.50,000 on 30th April and 3 1st of October of each year.
In addition to the said amount of Rs. 1 lakh he was to receive payment of the whole net surplus on the working of the forests included in the lease.
Thus, according to clause (III) of the lease 475 agreement the Raja granted to the Punjab Government the entire and sole control of the forests of Bushahr, excepting those reserved for his use under clause (II) thereof.
Under Section 1 of the Indian Independence Act, 1947, as from 15th August, 1947, two independent Dominions of India and Pakistan came to be set up.
By virtue of section 4 the Province of the Punjab as constituted under the Government of India Act, 1935, ceased to exist and the same was recon stituted into two new Provinces of West Punjab and East Punjab.
In section 7(1) were set out the consequences of the setting up of the two Dominions, Paragraph (b) whereof said that 'the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of passing of this Act between His Majesty and the rulers of Indian States '.
The plaintiff 's father Raja Padam Singh having died in April 1947, his eider son Tikka Vir Bhadra Singh born to his first wife Shanta Devi succeeded to the Gaddi under the rule of primogeniture but since he was a minor a council for the administration of Bushahr State was set up to mind the affairs of the State.
On 15th April, 1948 an agreement of merger was signed whereby the Raja of Bu shahr ceded to the Dominion of India 'full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State '.
A centrally administered unit of Himachal Pradesh came into being on that day.
The agree ment of lease dated 25th September, 1942 was formally termi nated by mutual agreement between the East Punjab Government and the Himachal Pradesh Administration on 1st April, 1949.
While the forests of Bushahr were under the control and management of the Government of Punjab, Raja Padam Singh, the plaintiff 's father, executed a document on 14th Maghar 1999.
Bikrami (i.e. 28th November, 1942) whereby he bestowed upon the plaintiff and his mother Rani Sahiba Katochi land admeasuring about 1720 acres.
This original document called the Patta was admittedly lost during the minority of the plaintiff, vide statement of counsel for defendants Nos. 1 and 2 dated 29th May, 1969.
However, the factum of the grant cannot be disputed as it has been referred to in the subse quent two grants executed by the plaintiff 's father on 29th Phagun 1999, Bikrami (i.e. 11th March, 1943 Exh.
P 2) and 24th Maghar 2003, Bikrami (i.e. 10th December, 1946 Exh.
These two subsequent grants Exh.
P 1 and Exh.
P 2 have been proved through the evidence of the scribe ' PW 1 Thakur Chet Ram.
By the execution of the third grant dated 24th Maghar 2003, Bikrami, the half share granted to the Rani Sahiba Katochi under the first grant of 14th Maghar 1999, 476 Bikrami, was transferred to the plaintiff with the Rani Sahiba 's consent.
Thus, the plaintiff became the sole gran tee of the entire area of 1720 acres but as he was a minor his interest was looked after initially by his father who expired in April 1947 and thereafter by his mother Rani Sahiba Katochi as his natural guardian.
After the execution of the first grant of patta the plaintiff 's father made an Order No. 5158 of even date directing his revenue officers to effect consequential changes in the mutation.
P 6 is a copy of the mutation entry which contains the following endorsement: "According to Shri Sarkar 's order No. 5158 dated 14.7.99 (equivalent to 28th November, 1942), the mutation, granting permanent ownership, without condition, of khata khatauni Nos.
1/1 to 20 and 2/21 to 25, plots 106, measuring 263.4 (219.7 plus 43.17) and part of uncultivated Jagir the reve nue and swai of which has been remitted is sanctioned in favour of Rani Sahiba Katochi and Rajkumar Rajinder Singh Sahib in equal shares in its present form.
" The mutation entry Exh.
P 6 does not mention the khasra numbers of the 106 plots.
Khata khatauni No. 1/1 to 20 comprise 82 plots showing an area admeasuring 219.7 bighas as cultivated and 200.8 bighas as uncultivated whereas khata khatauni No. 2/21 to 25 comprise 24 plots showing an area admeasuring 5.6 bighas as cultivated and 38.11 bighas as uncultivated.
The mutation entry, besides mentioning the area of 263.4 bighas, also speaks of 'part of uncultivated Jagir the revenue and swai of which has been remitted '.
Even according to the Division Bench of the High Court it is not in dispute that the measurement of 106 plots is much more than 263.4 bighas.
This stands corroborated by the note of Mr. Raina, the then Conservator of Forests, Shimla Circle dated 24th July, 1960 which discloses that the disputed plots over which the plaintiff has made a claim admeasure about 1819 acres.
By the second grant of 29th Phagun 1999, Bikrami, the plaintiff 's father granted certain additional land, namely, Basa Sharotkhala Pargana Bhatoligarh, jointly to the plaintiff and his mother Rani Sahiba Katochi.
This grant refers to the first grant of 14th Maghar 1999, Bikra mi.
The third grant of 24th Maghar 2003, Bikrami, was exe cuted by the plaintiff 's father with a view to making the plaintiff the sole beneficiary under the first two grants by deleting the name of Rani Sahiba Katochi as a joint grantee with her consent.
There is no dispute that under the afore said three grants taken together the properties mentioned therein were bestowed upon the plaintiff exclusively and the Rani Sahiba Katochi had no share therein, nor did she, at any 477 time, make a claim thereto.
After the execution of the third grant an order No. 258 dated 3rd December, 1946, Exh.
P 14, was made by the plaintiff 's father directing that all the lands and 'bases ' granted under the Patta of 24th Maghar 2003, Bikrami, exclusively to the plaintiff should be shown in his sole name in the records by deleting the name of Rani Sahiba Katochi therefrom.
On the death of the plaintiffs father in April 1947, the Political Agent, Punjab Hill States, Shimla, wrote a letter Exh.
P 50 dated 9th August, 1947 expressing dissatisfaction with the non implementation of the Patta and directed speedy implementation thereof.
In paragraph 3 of the said letter it was stated as under: "There is only one point for decision and that is the valid ity of the patta dated 19th December, 1946 granted by the late Raja Padam Singh.
The Committee have not questioned this and I, therefore, take it to be the true will of the late ruler.
The provision of the Patta are quite clear and reasonable, so 1 order the division of the private property, both movable and immovable, in accordance with its terms, that is to say the possession of the immovable property of the late Ruler specified in the Patta shall at once be mutuated in favour of Rajkumar Rajinder Singh and given in trust to Rani Sahiba katochi on behalf of her minor son . . ".
The grant was ultimately given effect to be the mutation entry No.2299 dated 17/18 12 2003, Bikrami, Exh.
Unfortunately, the plaintiff 's mother who acted as his guardian after the death of her husband in April 1947 also passed away shortly thereafter on 22nd July, 1949 necessi tating the Court of Wards to step in since the plaintiff was still a minor.
While the plaintiff 's estate was under the Superintendence of the Court of Wards a list of his Jagirs was prepared.
This list Exh.
P 18, which is in respect of tehsil Ramput, describes the disputed khasra Nos. 341, 108,222, 34, 479,606 and 4 as unmeasured and forest lands.
On the plaintiff attaining majority his estate was released w.e.f.
1st April, 1956 from the Superintendence of the Court of Wards under the Financial Commissioner 's notification dated 24th March, 1956.
Owing to the existence of certain pillars of the forest department within the areas belonging to the plaintiff, the plaintiff made a representation Exh.
P 25 for the removal of the said pillars from his lands.
As a result of this representation, joint demarcation reports dated 24th June 1958, Exh.
P 5, and 9th December, 1958, Exh.
P 8, were made which disclosed that the dispute related to the boundary in compartment 8 b only but no final decision could be taken 478 as some difference of opinion persisted between the officers of the forest department in this behalf.
The plaintiff thereafter made a further representation dated 11th August, 1959, Exh.
D 2, claiming compensation for the trees cut by the forest department during his minority when the estate was under the Superintendence of the Court of Wards.
As a sequel to this representation Mr. Raina, the Conservator of Forests, wrote a letter dated 27th May, 1960 marked secret, Exh. D 3/4, wherin he stated that the first class forest compartments 10A (Part, 10B (Part), 9A, 9B, 9C and 8C were the property of the forest department and the question of demarcation of these forests did not arise.
He further pointed out that if the possession of these compartments is transferred to the plaintiff the department will have to undergo a loss of Rs. 18.75 lakhs.
Lastly, he warned that if the plaintiff 's claim is accepted numerous such claims will be made by the villagers because of similar entries in the revenue records.
He thought that this was a test case.
He followed this up by his note dated 24th July, 1960, Exh.
D 3/6, wherein he reiterated that except for 263.4 bighas of revenue yielding land the claim of the plaintiff in respect of the remaining 1719 acres was fantastic.
He strongly urged that the plaintiff 's claim should be rejected outright and he and his contractor, defendant No. 3, should not be al lowed to lift the timber of the trees which he was permitted to cut from khasra Nos. 341,606, 222 and 34 under the letter No. Ft/43 124/VI dated 29th February, 1959.
Thereafter the Divisional Forest Officer by his letter No. C II 37/810 dated 25th May, 1960 informed the plaintiff and defendant No. 3 that the timber felled in compartment 9C should not be removed and no further felling of trees should take place in compartments 8C, 9A, 9B and 10A (Part) and lOB (Part) in khasra No. 341.
By a subsequent letter No. CII 37/1181 dated 2nd August, 1960 the plaintiff was informed that the trees felled in compartments 9B and 9C were Government property and could be removed on payment of Rs.3,05,811.70.
An amount of Rs.3,36,000 was later deposited pending finalisation of the dispute.
Certain statutory developments which took place in the meantime may now be noticed.
On 25th February, 1952 the Government of Himachal Pradesh issued a Notification under Section 29 of the declaring that the provisions of Chapter IV of the said enactment shall apply to all forest lands and waste lands in Himachal Pradesh which are the property of the Government or over which the Government has proprietor rights or to the whole or any part of the produce of which the Government is entitled.
This enactment deals with (i) Reserved Forests, (ii) Village Forests and (iii) Protected 479 Forests.
Chapter II comprising Sections 3 to 27 deals with Reserved Forests, Chapter III which consists of a single section 28 refers to Village Forests and Chapter IV compris ing Sections 29 to 34 conncerns Protected Forests.
Section 29(1) empowers the State Government to apply the provisions of Chapter IV to any forest land or waste land which is not included in the Reserved Forests but which is the property of the Government, or over which the Government has proprie tory rights, or to the whole or any part of the forest produce of which the Government is entitled.
According to sub section (2) such forest land and/or waste land comprised in any such notification shall be called a 'protected for est '.
Section 32 empowers the State Government to make rules to regulate the matters catalogued in clauses (a) to (1) thereof in respect of protected forests, which, inter alia, include the cutting, sawing, conversion and removal of trees and timber and collection, manufacture and removal of forest produce from protected forests; the granting of licences to persons felling or removing trees or timber or other forest produce from such forest for the purposes of trade; the payments, if any, to be made by such licencees in respect of such tree, timber or forest produce, etc.
Section 33 pre scribes the penalty for the contravention of the rules.
After the issuance of the Notification Exh.
DW 1/1 under Section 29, the State Government framed the rules under Section 32, Exh.
DW 1/2, of even date.
Under these rules 'First Class Protected Forests ' mean and include those forests which are defined and stated as demarcated forests in the Forests Settlement of Bushahr State viz., Forest Settlement Report of Sutlej Valley and Forest Settlement Report of Rupi, Pabar and Giri Valleys prepared in 1921 and 1911, respectively. 'Second Class Protected Forests ' mean the undemarcated forests or areas other than the demarcated forests and include all tracts of land bearing tree growth or from which the trees have been felled which pay no land revenue as cultivated land.
The Himachal Pradesh Private Forests Act, 1954, (Act No. VI of 1955) came into force from 28th June, 1956.
Section 2 thereof in terms states that the Act shall not apply to any land which is a reserved or protected forest under the .
Section 4 empowers the State Gov ernment to prohibit by notification the cutting, felling, gridling, lopping, burning, stripping off the bark or leaves or otherwise damaging any tree or counterfeiting or defacing marks on trees or timber in such private forests as may be specified.
Under Section 5, after the section 4 notification is issued, the Forest Officer is required within a period of one year from the date of publication of such notification, to demarcate the limit of such forest in accordance 480 with the revenue records and erect such number of boundary pillars at such points of the line of demarcation as may be necessary at Government expense.
Once the notification is issued under Section 4, Section 6 restrains the landlord and all other persons from cutting, collecting, or removing trees, timber or other produce in or from the notified forests in contravention of the provisions made in or under the Act.
Section 11, however, authorises a Forest Officer on the application of the landlord or owner to grant a licence for the felling of trees for such purposes and with such conditions as he may deem proper.
Sub section (3) of that section permits the owner to exercise the option of selling the trees either through the Forest Department or direct to any contractor.
In the latter event the owner must pay 15% fees on the price of the trees calculated in accordance with the prescribed principles.
Section 16 makes a contract entered into by the owner with any person conferring on such person the right to cut, collect or remove trees, timber or fuel from the private forests void unless the owner has first obtained a licence in this behalf under Section 11.
By notification dated 10th June, 1959, Exh.
P 21 published in the Himachal Pradesh Government Gazette dated 25th June, 1959, the plaintiff 's forests in Khasra Numbers 1, 2, 3,218, 606, 149, 263 and 166 situate in Village Addu were declared 'private forests ' under Section 4 of the said statute.
By a similar notification dated 17th September, 1959, Exh.
P 22, published in the Himachal Pradesh Government Gazette dated 26th September, 1959, Khasra Numbers 34, 309, 108, 479, 307, 207 and 3 17 situate in Village Addu were also notified as private forests of the plaintiff under the same provision.
The expression 'Private Forests ' as defined by Section 3(13) of the Act means a forest which is not the property of the Government or over which the State has no proprietary fights or to the whole or any part of the forest produce of which the State is not entitled.
Subsequently, by Corrigendum Exh.
P 29 dated 28th July, 1960, the State Government deleted Khasra Numbers 1, 2, 3, 2 18, 6, 44, 606, 149, 263 and '166 of Village Addu from the notification of 10th June, 1959 and Khasra Numbers 34, 309, 108,479,307,207 and 370 of Village Addu from the notification dated 17th September, 1959 on the ground that they were erroneously notified as they in fact belonged to the Himachal Pradesh Administration.
After the said enactment came into force w.e.f.
28th June, 1956 and before the notifications under Section 4 thereof were issued, the plaintiff had by his application dated 21st May, 1957 applied for permission, presumably under Section 11 of the Act, to fell trees from Khasra Numbers 1, 222 & 606 of Village Addu.
The said permission 481 was granted by Exh.
P 20 and the plaintiff also paid the fee as demanded by Exh.
P 23 dated 23rd August, 1957.
By another application dated 16th February, 1959 the plaintiff sought permission to sell trees from khasra Numbers 34, 222, 34 1, 606 of Khewat No. 1, Khatauni No. 2 which was granted by the Chief Conservator of Forests by his letter Exh.
P 28 dated 19th February, 1959.
By the said letter the plaintiff was informed that the Divisional Forest Officer had been in structed to mark the trees in the said areas silviculturally and to allow him to sell and remove the same through his contractor (defendant No. 3).
However, the attitude of the Government underwent a change after Mr. Raina 's secret letter of 27th May, 1960 and his note dated 24th July, 1960.
The State Government issued a corrigendum dated 28th July, 1960 amending the earlier notifications issued under Section 4; restrained the plaintiff and his agent defendant No. 3, from cutting and lifting the trees from the forest area and compelled deposit of Rs.3,36,000 for removing the trees and was also required to execute a bond.
The plaintiff, there fore, filed the suit which has given rise to this appeal to assert his rights.
The learned Trial Judge on a close scrutiny of the oral and documentary evidence placed on record came to the con clusion that (i) the plaintiff 's father, who in internal matters had sovereign powers, had bestowed the lands in dispute as a perpetual and unconditional grant on the plain tiff and the mere fact that in the mutation entry the area was shown to be 263.4 bighas did not imply that the grant was limited to that much land only.
He held that (ii) in the State of Bushahr only cultivated land was generally measured and forest lands remained unmeasured and, therefore, the area of only revenue yielding cultivated land was mentioned in the mutation entry but that did not mean that the grant was confined to that area only.
He also held that the subse quent grant of 25.10.2003 Bikrami was executed by the plain tiff 's father with the concurrence of Rani Saheba Katochi, with a view to conferring exclusive proprietary rights in the entire grant on the plaintiff.
Further according to the learned Trial Judge, the evidence, considered as a whole, fully established that (iii) the grant was not repudiated but was given effect to by the Political Agent, Shimla, as well as by the revenue authorities of Bushahr State and was recognised by the Dominion of India at the time of the State 's merger.
He found that in the statement of the Zamin dars of Village Addu, Exh.
P 26, it was specifically admit ted that the forest comprised Khasra Nos. 34, 141, 222 and 606 Khewat No. 1, Khatauni No. 2 and was 'owned ' and was 'in possession ' of the plaintiff.
(iv) Assuming that the lands in dispute formed part of forests leased to the Government of Punjab, 482 the learned Judge held that the Raja was not precluded from making the grant and the grants made in favour of the plain tiff were perfectly legal and valid.
After the lease was terminated by mutual consent of the Governments of Himachal Pradesh and East Punjab, the Himachal Pradesh Administration treated the plaintiff as the owner and permitted him various acts as owner and person in possession.
Notifications were issued under Section 4 of the Himachal Pradesh Private Forest Act, 1954 declaring the disputed lands as private forests.
He held that the notification issued under Section 29 of the had no application.
According to him, except for an area of 11 biswas occupied by roads of the Forest Department, the plaintiff was in possession of the remaining forest lands.
The learned Trial Judge, there fore, held that the suit was neither barred by limitation nor on account of Section 34 of .
The other technical objections to the maintainability of the suit were spurned and the learned Trial Judge decreed the suit as stated earlier On appeal the Division Bench of the High Court came to the conclusion that when the plaintiff 's father executed the first grant in favour of the plaintiff he was aware that he had renewed the lease in respect of the forest lands for a period of fifty years and, therefore, he could not have intended to make an absolute grant in respect of the forest lands covered under the lease to the plaintiff.
According to the Division Bench after the execution of the agreement of lease dated 25th September, 1942, (v) the plaintiff 's father had no surviving or subsisting right in the lands covered under the lease and, therefore, the grant in respect of the forest lands was of no consequence and did not confer any right, title or interest in the plaintiff.
At the most the grant could take effect in respect of revenue yielding cultivated land admeasuring 263.4 bighas.
In support of this finding the Division Bench points out (1) that the grant Exh.
P 1 dated 10th December, 1946 refers to the lands by Basa and not Khasra which reveals that reference is only to revenue yielding area in the occupation of tenants; (2) that clause 2 of Exh.
P 2 shows that the intention of the grantor was to secure an annual income of Rs.9,000 for his son which could only be from the revenue yielding lands as the forest lands were already placed at the disposal of the Government of Punjab and (3) that the recital in Exh.
P 2 regarding handing over of the Basajat could be in respect of revenue yielding area only as the forests were already in the pos session of the Punjab Government.
The 'Division Bench also held that the notification under Section 29 of the Indian Forests Act was validly issued and so long as it held the field, no notification could be issued under Section 4 of the Himachal Pradesh Private Forest Act, 1954 and 483 the same were, therefore, rightly corrected by deleting the Khasra Numbers claimed by the plaintiff from the notified forest area.
It, therefore, held that the said two notifica tions issued under Section 1 had no efficacy in law and the permissions granted under Section 11 of the said law can be of no avail to the plaintiff.
As regards the plaintiff 's contention based on the surrender of the lease in 1949, the Division Bench concluded that the exchange of letters Exh.
DW 1/3A dated 25th April, 1949 by Himachal Pradesh Govern ment and Exh.
DW 1/ 3B dated 5/9th May, 1949 by the East Punjab Government revealed that an arrangement was worked out whereunder the East Punjab Government transferred the management and administration of the disputed forests to the Himachal Pradsh Government on certain terms and conditions and there was no completed surrender of the lease.
Adopting this approach, the Division Bench reversed the findings recorded by the learned Trial Judge and dismissed the plain tiff 's suit in toto with costs throughout.
It is against the said Judgment and decree that the plaintiff has moved this Court.
From the above resume of facts and findings recorded by The Courts below, the questions which arise for our determi nation and on which counsel for the rival sides addressed us may be formulated as under: 1.
Whether, by the execution of the Agreements of Lease from time to time beginning with the Agreement of 20th June, 1864 and ending with the Agreement of 25th September, 1942, the erstwhile Rulers of Bushahr State, including the plain tiff 's father, had been divested of their rights, title and interests in the forest lands leased thereunder? 2.
If no, whether the plaintiff 's father was competent to make grants in respect of such forest lands under the Pattas of (i) 14 Maghar 1999 Bikrami (i.e. 28th November, 1942): (ii) 29th Phagun 1999 Bikrami (i.e. 11th March, 1943): and (iii) 24th Maghar 2003 Bikrami (i.e. 10th December, 1946)? 3.
If yes, was the grant confined to the revenue yielding lands admeasuring about 263.4 bighas only or extended to the other unmeasured forest lands also as claimed by the plain tiff? 484 4.
Was the State Government competent to issue the Notifica tion under Section 29 of the ? If yes, what is its effect on the plaintiff 's claim in the suit? and 5.
Was the State Government competent to issue Notifications under Section 4 of the Himachal Pradesh Private Forest Act, 1954? If yes, was the State Government justified in issuing the subsequent Corrigendum of 28th July, 1960? What is the effect of these statutory developments on the plaintiff 's claim? In order to appreciate the circumstances in which the erstwhile Ruler of Bushahr State entered into an agreement with the British Government in 1864, it would be advanta geous to notice a few facts mentioned in H.M. Glover 's Forest Settlement Report of 11th February, 1921.
In Vol. 1, Chapter II of this Report which concerns Bushahr State, the history of Bushahr forests prior to 1850 is set out.
It reveals that at that time large matured trees were plenti ful.
However, there was large scale destruction of these trees due to frequent fires, shifting of cultivation and felling of trees by traders.
The Report mentions: "Every forest cleared by traders was subject to frequent fires either caused by carelessness or by villagers who fired the debris and what was left of the standing crops in order to clear the ground for cultivation; there can be no question that if the Government had not assumed control, the forest would have practically disappeared from all the more accessible slopes.
" It further reveals that the Raja found it difficult to deal with the traders who indulged in destroying the forests by indiscriminate felling of trees and was anxious to protect them.
With this in view he eventually concluded an agreement of lease in 1864 with the British Government whereunder the latter agreed to protect and conserve the forests and pay a fixed royalty for each tree felled.
In 1877 the lease was revised, the British Government agreeing to pay a fixed annual lumpsum.
The lease was renewed in 1928 on revised terms as to payment for a further period of 25 years but before the expiry of that period another agreement of lease Exh.
D 1 was concluded between the Raja and the Government of Punjab on 25th September, 1942.
Clause III of the docu ment recites as under: ' 485 "III.
In consideration of the following payments, the Raja hereby grants to the Punjab Government the entire and sole control of the whole of the forests of Bushahr excepting those reserved for the use of the Raja as defined in Clause II and subject to the definitions and rules prescribed in the Schedule and Appendices attached to this agreement" It becomes clear from the aforesaid clause in the lease deed that the Raja granted 'the entire and sole control ' of the whole forest of Bushahr to the Punjab Government excepting the fights specifically reserved unto him.
This entire and sole control was granted to enable the Punjab Government 'to make more definite provisions for the conservancy of the forests '.
Clause IX of the agreement makes this clear when it says that the whole cost of conserving the forests in cluded in the lease together will all costs of felling and transporting timber for use of the Punjab Government and of maintaining the necessary establishment in such forests shall be borne by the Punjab Government unless otherwise provided for in the lease.
From this clause also it can be seen that the emphasis was on the need to conserve the forests.
The Rules framed in the Schedule to the lease reinforce this view.
Under paragraph 1 of the Schedule (a) breaking up land for cultivation; (b) setting fire to grass tracts in the vicinity of forest or negligently permitting the fire to extend to forests; (c) setting fire to grass, trees, bushwood or stumps; (d) cutting out slabs, torches, etc., from the steam of standing trees, barking and tapping for resin, or otherwise injuring trees; (e) felling or lopping trees; (f) selling timber; and (g) removing dead leaves and surface soil, is prohibited unless expressly permitted by the Divisional Forest Officer.
Even the Raja is not permitted to fell trees and/or remove converted timber from the leased area excepting the specified quantity re quired for State purposes, vide paragraph 5 of the Schedule.
It, therefore, seems clear to us that the paramount object of the lease was to conserve the forests of Bushahr State.
But, by concluding the lease agreement with the Punjab Government, the erstwhile Ruler did not convey all his fights, title and interests in the leased forest lands to that Government.
All that he did was to transfer the control and management of the forests to the Punjab Government with a view to preserving and conserving the forests.
He retained his proprietary interest in the forest lands, subject of course to the limitations concerning the management of the leased area and the fight to the usufruct therefrom.
Had it been the intention of the Raja to divest himself of all his interests in the forests lands there was no need to provide the duration of the lease on the 486 expiry whereof (unless the renewal clause was invoked) the Raja would have a right of re entry.
The lease also provided that in addition to the two half yearly installments of Rs.50,000 each, the Raja was to receive payment of the "Whole net surplus on the working of the forests included in the lease".
This is also consistent only with the position that the Raja retained his proprietory interests in the forest lands.
We, therefore, find it difficult to agree with the Division Bench that by concluding the agreements of lease from time to time the former Rulers of Bushahr State including the plaintiff 's father had divested themselves of all their rights in the leased forests.
We are of the opin ion that the plaintiff 's father had a surviving and subsist ing right in the forest lands which were the subject matter of the lease dated 25th September, 1942 and was competent to grant the same to the plaintiff or anyone else, albeit subject to the terms of the lease.
The first patta was executed by the plaintiff 's father on 14th Maghar 1999 Bikrami whereby he bestowed certain lands jointly on the plaintiff and his mother.
The original patta is admittedly not traced.
The plaintiff 's father had by his order No. 5158 of even date directed corresponding mutation entries to be made in the relevant records.
The endorsement found in the copy of the mutation entry Exh.
P 6 extracted earlier bears testimony to this fact.
This entry shows that the Raja had granted permanent ownership, without condition, of Khata Khatauni Nos.
1/1 to 20 and 2/21 to 25, comprising 106 plots, admeasuring 263.4 bighas and 'part of uncultivated Jagir ' the revenue and swai of which was remit ted.
Therefore, the doubt regarding the making of the grant of 14th Maghar 1999 Bikrami stands repelled.
The existence of this grant is further fortified by the mention thereof in the subsequent two grants dated 29th Phagun 1999 Bikrami and 24th Maghar 2003 Bikrami.
There can, therefore, be no doubt regarding the execution of the patta of 14th Maghar 1999 Bikrami.
The next question is regarding the identity of land granted to the plaintiff under the said grants.
The entry Exh.
P 6 mentions the Khata Khatauni numbers and the total number of the plots but does not mention the khasra numbers.
Secondly, its area is stated to be 263.4 bighas and 'part of uncultivated Jagir '.
The fact that these lands are situated in Chak Addu is not disputed Says Glover 's Report: "For administrative purposes the village and its outlying hamlets have been formed into a 'Chak ', which forms the unit of the land revenue assessment.
" Since the patta in respect of the first grant is admittedly not 487 available, we have to look to evidence aliunde the grant of identify the property settled on the plaintiff.
We have already referred to the Raja 's order No. 5158 on the basis whereof the entry Exh.
P 6 was made.
The plaintiffs witness PW7 Thakur Sen Negi has deposed that in Khewat 2, Khatauni 21, Khasra Nos. 6, 34, 101, 222, 341, 479 and 4 are unmeas ured.
P 15, P 18, P 33, P 38 and D 4, which are en tries from the Jamabandi also show that Khasra Nos. 6, 34, 108, 222, 341, 479, 606 and 4 of khatauni No. 21 are unmeas ured 'Banjar Kadeem '.
This expression according to Glover 's report means "land, recorded as the property of the Zamin dar, that has lain waste since the 1889 settlement and pays on land revenue until recultivated.
When included in 'Chaks ' in demarcated forests it has almost invariably been acquired or exchanged.
" The Division Bench has, after an elaborate examination of the oral as well as the documentary evidence, particularly Exhs.
P 15, P 17, P 18, P 33, P 34, P 36 and P 38, and the notification Exh.
P 22 declaring certain areas as private forests, come to the conclusion that land de scribed as Banjar Kadeem could include forest lands, thereby repelling the submission made by the plaintiff 's counsel to the contrary.
We cannot, therefore, countenance the submis sion made by the learned counsel for the contesting defend ants that the expression Banjar Kadeem does not include forests.
If it were so, the whole controversy based on the submission that the Raja was divested of his rights in respect of the forest lands covered by the agreement of lease and was not competent to make a grant thereof would have ended in favour of the plaintiff.
We, however, do not consider it necessary to examine the correctness or other wise of this finding of the Division Bench, since we propose to proceed on the assumption that the disputed lands form part of the leased area.
But the question still survives whether in addition to the cultivated lands measuring about 263.4 Bighas the plain tiffs father had made a grant in favour of the plaintiff in respect of the disputed forest lands.
We may now examine if the subsequent two grants throw any light on this point.
The second grant Exh.
P 2 was executed on 29th Phagun 1999 Bikrami.
In this document the Jagir granted to the plaintiff under the first Patta has been described as comprising several 'Basas '.
By the second grant one more Basa Sharotk hola pargana Bhatoligarh was granted in perpetuity.
The land revenue and other cesses in respect of these basas were remitted for ever.
The annual income of the Jagir thus grant ed was Rs.9,000 and in addition thereto the State agreed to pay Rs.9,000 in cash as Jagir money, besides agreeing to bear the expense of the plaintiff 's education and marriage.
The third document Exh.
P 1 was executed on 24th Maghar 2003 Bikrami 488 This document also describes the grant made under the first Patta by different Basas.
It further recites that 'the possession of Basa granted to you has already been given and entries have already been made in your favour and you will realise the income from this Jagir . . '.
The argument that as the actual possession of the forests was with the Punjab Government the same could not have been transferred to the plaintiff overlooks the fact in such cases symbolic and dejure possession is transferred to make the grant complete.
Therefore, the above recital in the document is consistent with the grant.
It is, therefore, clear that certain Basas situate in Basajats were given to the plain tiff as his Jagir.
The dispute in the present case mainly concerns a few Khasra numbers of Basa Kotadhar Ghori Samat Pargana Baghi Mastgarh comprising 106 plots.
What then is a Basa? In paragraph 41 of the Assessment Report of Rohru Tehsil of Bushahr State, Exh. D 7, prepared by Mr. Emerson, Manager of Bushahr State, it is stated as under: "The State lands in which the Raja enjoys both superior and inferior rights of ownership are of several descriptions: Firstly, there are the Crown estates or Basas, comprising of some of the most fertile area which former Rulers reserved for their own enjoyment or for the support of their rela tives and dependents.
These were formerly cultivated by bethus, under the supervision of a number of officials who were supposed either to remit the produce to the Headquar ters or to arrange for its loan on extravagant rates of interests to zamindars At present they are leased to con tractors for fixed periods on cash or grain rents, the former predominating.
" According to PW 11 S.R. Jhingta, the power of attorney of the plaintiff, basa land included cultivated forests and grazing lands.
PW3 Roop Singh Negi described basa lands as Banjar lands, arable lands, cultivated lands and forest lands.
PW 10 Sagar Singh produced pattas to show that two basas containing forests were granted by the Raja to his father.
The Division Bench refused to place reliance on the oral testimony of the aforesaid witnesses in view of the aforequoted authoritative definition.
But this definition is not exhaustive and does not specifically rule out the inclu sion of forest lands.
If by the grant the Raja intended to grant only the revenue yielding area of 263.4 bighas there was no need to mention 'and part of the uncultivated Jagir ' in 489 Exh.
It is an admitted fact that the total area of the basa comprising 106 plots is much more than 263.4 bighas.
That means that it includes besides the cultivated area of 263.4 bighas certain unmeasured area also.
The revenue of the cultivated area of 263.4 bighas is a paltry Rs.58 8 3.
It is not shown that the total revenue of cultivated lands in all the basas constituting the grant works out to Rs.9,000 per year.
Besides, if the grant is confined to 263:4 bighas only, the words 'and part of the cultivated Jagir ' are rendered redundant.
Next the concerned Khasra numbers have been described as Banzar Kadeem which includes forests as held by the Division Bench.
All the entries namely Exh.
P 15, P 33, P 36 and P 38 describe the con cerned Khasra numbers as unmeasured.
If the 106 plots in Exh.
P 6 admeasure more than 263.4 bighas, it follows that they also include unmeasured lands referred to as 'part of the uncultivated Jagir '.
Reference to uncultivated Jagir implies existence of land other than cultivated revenue yielding land which may include forests.
According to Punjab Settlement Manual (Fourth Edition) uncultivated land is classified as Banzar Jagir, Banzar Kadeem and Gair Mumkeen.
The Division Bench points out that the definition in the Manual is not to be rigidly construed and would include forest lands which may not be cultivated but may have the potential for cultivation, if forests are removed.
In other words lands covered by forests may be highly fertile and may be reserved by the Ruler for his own use or for the use of his relatives and dependents.
This supports the statement of PW11 S.R. Jhingta that in Tehsil Rampur forests and grass lands were entered as Banzar Kadeem.
This discussion leads us to the conclusion that a Chak comprises Basas, a Basa comprises both cultivated and uncultivated lands, unculti vated land includes Banzar Kadeem which in turn includes unmeasured forests.
The recent revenue Settlement of 1979 80 shows that the disputed Khasra Numbers 34, 222, 34 1 and 606 comprise of 422 plots admeasuring 789 84 85 Hectares out of which 711 2750 Hectares form part of the forests.
It is pertinent to note that the same is shown in the ownership of the plaintiff.
The relevant revenue records of the Bushahr State right from 1915 16 show the disputed Khasra Numbers as unmeasured.
The list of the plaintiffs Jagir prepared by the revenue authorities after the death of his mother also describes the said Khasra numbers as unmeasured forests.
It is also neces sary to remember that the plaintiff was denied the ownership of Khasra Numbers 241, 732/280, 736/394 and 728/402 admeas uring about 11 biswas as they formed part of the forest road.
These four plots though measured did not yield reve nue.
If the Raja desired to grant only revenue yielding lands to the plaintiff he would 490 not have included these four numbers in the grant.
There is, therefore, intrinsic evidence to show that the grant was not limited to only the revenue yielding area of 263.4 bighas.
The subsequent conduct of the parties, as we shall presently show, also lends support to this view.
On the plaintiff attaining majority his estate was released from the Superintendence of the Court of Wards w.e.f.
1st April, 1956.
The list in respect of his movable and immovable properties was prepared before the properties were handed over to the plaintiff.
This list dated 31st January, 1956 shows the total landed estate comprised of 1864 acres.
In 1958 59 the plaintiff had planted 3000 Deod har and Kail trees which was highly appreciated by the Deputy Commissioner, Vide Exh.
Some land was acquired by the State Government for its P.W.D. and the plaintiff was paid Rs. 11,000 as compensation.
The plaintiff had also made applications for permission to fell trees from the disputed khasras which were granted, vide Exhs.
P 20, P 23 and P 28.
Indisputably trees had been felled pursuant to the permis sion so granted.
Next Exhs.
P 41 and P 42 show that the plaintiff sold some part of khasra No. 341 on 16th April, 1960 and 25th June, 1960 to third parties and corresponding changes in mutation were made.
He had also donated some land from the same khasra for a school.
These are acts of owner ship which have not been repudiated.
The disputed Khasra numbers were also the subject matter of two notifications issued under section 4 of the Himachal Pradesh Private Forest Act, 1954, whereby they were notified as 'private forests '.
All this conduct on the part of the defendants 1 and 2 goes to show that they treated the disputed Khasra Numbers as the Jagir of the plaintiff.
It was only in 1960 after Mr. Raina 's secret letter and his subsequent note that the defendants disputed the plaintiff 's ownership in the said Khasra numbers and issued the corrigendum Exh.
P 29 withdrawing the aforesaid two notifications as it was rea lised that it would result in a substantial loss of Rs. 18.75 lakhs.
Till the doubt was raised by Mr. Raina, the State Government throughout treated the disputed Khasra numbers as forming part of the plaintiff 's Jagir.
this conduct evidence lends support to the view that the disputed Khasra numbers were bestowed on the plaintiff under the first Jagir of 14th Maghar 1999 Bikrami.
Counsel for the defendants, however, contended that it was not open to the Court in view of the prohibition con tained in Section 92 of the Evidence Act to take into ac count the subsequent facts and circumstances to determine the extent of the grant under the Patta of 14th Maghar 1999 Bikrami.
He submitted that where a claim is based on a written document, the terms of the document must be inter preted 491 without the aid of extrinsic evidence.
It is true that ordinarily the intention of the parties to a document must be gathered from the language in which the relevant terms and conditions are couched and no oral evidence can be permitted with a view to varying or contradicting the terms of the document.
To put it differently, if the terms of the document are clear and unambiguous, extrinsic evidence to ascertain the true intention of the parties is inadmissible because Section 92 mandates that in such a case the inten tion must be gathered from the language employed in the document.
But if the language employed is ambiguous and admits of a variety of meanings, it is settled law that the 6th proviso to the section can be invoked ;which permits tendering of extrinsic evidence as to acts, conduct and surrounding circumstances to enable the Court to ascertain the real intention of the parties.
In such a case such oral evidence may guide the Court in unraveling the true reten tion of the parties.
The object of admissibility of such evidence in such circumstances under the 6th proviso is to assist the Court to get to the real intention of the parties and thereby overcome the difficulty caused by the ambiguity.
In such a case the subsequent conduct of the parties fur nishes evidence to clear the blurred area and to ascertain the true intention of the author of the document.
If any authority is needed in support of this proposition reference may be made to the case to Abdulla Ahmed vs Animendra Kissen Mitter, ; At page 46 we find the following passage: "The evidence of conduct of the parties in this situation as to how they understood the words to mean can be considered in determining the true effect of the contract made between the parties.
Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning.
Evidence of the acts done under it is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of instrument (Vide para 343 of Hailsham Edn. of Halsbury, Vol. 10, p. 274)".
In the present case the Patta of 14 Maghar 1999 Bikrami is admittedly lost.
Reliance was, therefore, placed on Exh.
P 6 which incorporates the order No. 5158 of even date.
The entry in Exh.
P 6 mentions the Khata Khatauni of the 106 plots granted to the plaintiff and the area thereof is shown to be 263.4 bighas and part of the uncultivated jagir Since a doubt arose whether the disputed Khasra numbers formed part of the uncultivated Jagir referred to in Exh .P 6, the parties led oral as well as documentary evidence with a view to enabling the Court to 492 ascertain the extent of the Jajir granted to the plaintiff.
Since the words 'part of the uncultivated Jagir ' were ambi gous extrinsic evidence aliunde the grant became necessary to explain the coverage of those words.
We, therefore, do not see any merit in the objection.
We may now consider the effect of the notification issued under section 29 of the .
Sub section (1) of section 29 permits the State Government to issue a notification declaring the application of the provisions of Chapter IV to any forest land which is not included in a reserved forest but which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government is 'entitled '.
The forest land com prised in any such notification is called a 'protected forest '.
Sub section (3) of section 29 reads as under: "No such notification shall be made unless the nature and extent of the fights of Government and of private persons in or over the forest land or waste land comprised therein have been inquired into and recorded at a survey or settlement, or in such manner as the State Government thinks sufficient.
Every such record shall be presumed to be correct until the contrary is proved.
" The proviso to that sub section, however, permits the State Government to issue a notification before completion of such inquiry and record in the event of urgency.
The Division Bench was, therefore, not fight in presuming that an inquiry of the type contemplated by subsection (3) of Section 29 must have preceded the notification.
The possibility of the application of the urgency clause cannot be ruled out.
The inquiry is contemplated to determine the nature and extent of the rights of the Government and of private persons in or over the forest land.
Based on the findings of the inquiry the record is to be prepared.
The learned Trial Judge has observed that 'after the grant no right of the Government in the land in suit was recorded in the Forest Settlement or land revenue settlement or the land revenue records '.
Under sub section (3) such a record shall be presumed to be cor rect until the contrary is proved.
The presumption, there fore, attaches to the record prepared in pursuance of the inquiry.
In the present case, no such record evidencing the fight of the Government in the forest land or forest produce is shown to have been made.
Therefore, the question, of presumption of correctness of record never arose and the plaintiff was not obliged to dislodge the same.
The evidence on the contrary shows that the disputed lands were entered in the revenue records as the 493 private property of the plaintiff.
That should be so because where the land in question forms part of a permanently settled grant, it is ordinarily the private property of the grantee.
That is why by the subsequent notifications issued under section 4 of the Himachal Pradesh Private Forest Act, 1954, the disputed forests were notified as private forests of the plaintiff.
The plaintiff, therefore, sought permis sion, presumably under section 11 of the said Act, for cutting and felling trees situate in his private forests.
If the notification issued under section 29 held the field, the State Government could not have issued the subsequent noti fications under section 4 of the State Act, in view of section 2(b) thereof which in terms states that 'this Act shall not apply to any land which is a reserved or protected forest under the '.
But before the State Government can invoke section 29(1), it must be shown that the requirements of that provision are satisfied.
From the various documents placed on record it is quite clear that the disputed forests did not belong to the Government nor did the Government have any proprietary rights thereon.
But the Division Bench has held that the Government was entitled to the whole or part of the forest produce under the agreement of lease dated 25th September, 1942.
The agreement of lease merely permitted the Government to manage the forests as the Raja found it difficult to prevent the indiscriminate cutting and felling of trees.
To preserve and conserve his forests, the Raja sought the aid of the British Government from time to time.
Under the last agreement of lease, the Raja granted the sole control of the forests to the Punjab Government without transferring or conveying his proprietary interests therein.
The Punjab Government was liable to account for the usufruct as the Raja was entitled to the whole net surplus determined triennially after de ducting from the total revenue from the forests the total expenditure incurred by the Punjab Government over the same period.
Therefore, the Government was not 'entitled ' to the whole or any part of the produce in its own right dehors the lease.
The word 'entitled ' in the context must take colour from the preceding words and must be understood to mean that the Government must have an independent claim or right to the forest produce and not merely a right to collect and deal with the same subject to an obligation to account for the same to the owner.
The word 'entitled ' is used in the sense of the Government having a right or claim to the usufruct in its own right and not as the agent of another.
After we attained independence, the erstwhile ruler of Bushahr State ceded to the Dominion of India whereupon the properties belonging to the State as distinguished from private property devolved on the 494 Himachal Pradesh Administration.
As discussed earlier, the record shows the disputed khasra numbers as the private property of the plaintiff.
The plaintiff exercised proprie tary rights thereon till 1960 when doubts were raised by Raina, who feared that if the plaintiffs claim is conceded the State will have to suffer a loss of Rs. 18.75 lakhs approximately.
Since the Raja exercised supreme fights in internal matters he was entitled to make a grant in respect of property over which he exercised ownership fights as a ruler.
Therefore, once the disputed property was granted to the plaintiff, the latter became the owner thereof.
The suzerainty of the British Crown over the Indian States lapsed as from the appointed day, i.e. 15th August, 1947, by virtue of section 7(1)(b) of the Indian Independence Act, 1947, and with it lapsed (i) all agreements in force between His Majesty and the rulers of Indian States and (ii) all obligations of His Majesty towards the Indian States.
After the merger of the Bushahr State, a separate administrative unit was constituted by the Central Government for Himachal Pradesh.
It appears from the letter Exh.
DW 1/3A dated 25th April, 1949 that the lease agreement was mutually terminated and the management of the forests was taken over by Himachal Pradesh Administration from the East Punjab Government w.e.f.
1st April, 1949 on the stated terms.
The said terms were accepted by the East Punjab government by the Chief Secretary 's letter dated 5/9th May, 1949, Exh.
D 1/3B.
At the date of merger the forests belonging to the State of Bushahr devolved on the Himachal Pradesh Administration except the private forests.
The need to continue the lease for a few private forests was perhaps not felt.
On the termination of the lease the private property reverted to the owners.
However, so far as the plaintiffs forests were concerned they continued under the State 's management since he was a minor.
But on that account the State was not 'ent itled ' to the forests produce from such private forests.
Therefore, the notification issued under section 29 could have no application to such private forests.
The State Government was, therefore, competent to issue the two noti fications under section 4 of the Himachal Pradesh Private Forest Act, 1954, and it was not justified in annulling them on the erroneous premise that the said lands belonged to the State Government.
The Division Bench, therefore, ought not to have reversed the trial court on this point.
In the result this appeal must succeed.
We allow the appeal and set aside the judgment and decree of the Division Bench of the High Court.
We would have been inclined to restore the decree of the Trial Court but counsel for the appellant plaintiff made a statement at the bar that in view of the provisions of the Himachal Pradesh Ceiling on 495 .
Land Holdings Act, 1972, the question of granting such a declaration does not survive.
He, however, submitted that the State Government should be directed to refund the amount of Rs.3,36 lakhs with interest which was deposited by defendant No. 3 in the Treasury under an agreement dated 19th August, 1961, entered into with the President of India through the Secretary, Forest Department.
Clause (VI) thereof provides that in the event the appellant plaintiff succeeds in establishing his title to the trees in question, the said amount would be refunded subject to a deduction of 15% towards royalty.
However, defendant No. 3 filed a suit against the appellant for the recovery of the said amount which suit ended in a compromise decree whereunder the appellant plaintiff paid the 3rd defendant Rs.2.51 lakhs in full and final satisfac tion of his claim reserving unto him the right to recover the deposited amount from the State Bank.
We, therefore, told that the plaintiff appellant is entitled to the refund of Rs.3.36 lakhs with interest at 9% per annum subject to deduction of royalty calculated at 15% The appellant plaintiff has also claimed refund of Rs.4.60 lakhs with interest lying in fixed deposits with the State Bank of India, Shimla in the name of the Registrar of the High Court.
The Division Bench of the High Court by its order dated 14th December, 1970 directed that the trees included in the Local Commissioner 's report dated 7th Decem ber, 1980 be sold by public auction and the sale proceeds be deposited in the State Bank of India, Shimla till the dis posal of the appeal.
Accordingly, the sale proceeds were deposited out of which the appellant plaintiff was permitted to withdraw a sum of Rs.2.60 lakhs after furnishing surety.
The balance of Rs.4.60 lakhs is lying in fixed deposits and the appellant plaintiff is entitled to the refund thereof.
We, therefore, direct that the said amount together with interest accrued thereon shall be refunded to the appellant plaintiff The appellant plaintiff also made a claim in respect of the value of the trees cut and sold by the Forest Department during the year 1951 52 when the appellant was a minor.
The estimated value of these trees is stated to be Rs. 1.50 lakhs.
However, no claim was made in respect thereof in the suit filed by the appellant plaintiff which has given rise to this appeal.
If the appellant plaintiff was entitled to the said amount he ought to have claimed the same in the suit filed in 1964.
We, therefore, do not entertain this claim.
496 The appellant plaintiff has also claimed a refund with interest of the market value of trees totalling 10,505 cut and sold by the Forest Department during the period from 1980 to 1985 notwithstanding the order of this Court dated 17th October, 1979.
However, in view of the fact that Hima chal Pradesh Ceiling on Land Holdings Act, 1972 has since intervened we do not entertain this claim in the present proceedings.
The refusal to entertain this claim will not debar the plaintiff from seeking any relief that is avail able to him under the 1972 Act.
In the ultimate, we direct the State Government to refund Rs.3.36 lakhs with interest at 9% per annum thereon to the appellantplaintiff after deducting royalty at 15%.
We also direct refund of the amount of Rs.4.60 lakhs with interest accrued thereon lying in fixed deposits in the State Bank of India, Shimla under the High Court 's order dated 14th December, 1972.
We grant three months time to comply with above directions.
The appeal is allowed accord ingly but we make no order as to costs.
In view of the above, the CMP will also stand disposed of accordingly.
R.S.S. Appeal allowed.


Summary:
The plaintiff/appellant is the second son of late Raja Padam Singh, the ex ruler of Bushahr State in Himachal Pradesh.
The erstwhile Ruler of Bushahr had sought the aid of the British Government in the management of his forests with a view to preserving, conserving and protecting the same from large scale illicit and indiscriminate cutting of trees.
Pursuant to this request, an agreement of lease dated 20th June, 1864 was executed between the said Raja and the British Government.
The terms of this agreement were revised in 1877 and again 1928.
Before the expiry of its extended term, another agreement of lease was executed between Raja Padam Singh and the Government of Punjab on 25th September, 1942 superseding all previous agreements.
By clause (III) of this agreement the Raja granted to the Punjab Government the entire and sole control of the forests of Bushahr excepting those reserved for his use under clause (II) thereof.
The Raja was to receive in lieu thereof an annual payment of Rs.1 lakh, and further payment of the whole net surplus on the working of the forests included in the lease.
Raja Padam Singh executed a document on 28th November, 1942 whereby be bestowed upon the plaintiff and his mother land admeasuring about 1720 acres, both measured and unmeas ured.
The original document, called the Patta, was admitted ly lost during the minority of the appellant.
The patta had, however, been referred to in the subsequent two grants executed by the Raja on 11th March 1943 and lOth December 1946.
After the execution of the first grant or patta the 470 plaintiff 's father had made an Order No. 5158 directing corresponding mutation changes.
The mutation entry, besides mentioning the area of 263.4 bighas, also speaks of 'part of uncultivated 'Jagir '.
Subsequently, in September, 1959, the plaintiff 's forests were notified as 'private Forests ' under section 4 of the Himachal Pradesh Private Forests Act, 1954.
But in July, 1960 the State Government annulled the notifi cations on the ground that they were erroneously issued and that the lands in fact belonged to the Himachal Pradesh Administration.
The plaintiff filed a suit on 18th November, 1964 for a declaration his proprietary rights in about 1720 acres of forest land, both measured and unmeasured.
The learned Single Judge substantially decreed the suit.
The learned single Judge held that (i) the plaintiff 's father, who in internal matters had sovereign powers, had bestowed the lands in dispute as a perpetual and uncondi tional grant on the plaintiff; (ii) the mere fact that in the mutation entry the areas was shown to be 263.4 bighas did not imply that the grant was limited to that much land only; (iii) in the State of Bushahr only cultivated land was generally measured and forest lands remained unmeasured, and, therefore, the area of only revenue yielding cultivated land was mentioned in the mutation entry; (iv) the evidence, considered as a whole, fully established that the grant was not rependiated but was given effect to by the Political Agent, Simla, as well as by the revenue authorities of Bushahr State and was also recognised by the Dominion of India at the time of the State 's merger; (v) even assuming that the lands in dispute formed part of forests leased to the Government of Punjab, the Raja was not precluded from making the grant and the grants made in favour of the plain tiff were perfectly legal and valid; (vi) after the lease was terminated on 11th April, 1949, the Himachal Pradesh Administration treated the plaintiff as the owner and per mitted him various acts as owner and person in possession; (vii) notifications were issued under Section 4 of the Himachal Pradesh Act, 1954 declaring the disputed land as private forests; and (viii) the notification issued under section 29 of the had no application to such lands.
The Division Bench, allowing the State appeal, inter alia took the view that after the execution of the lease deed dated 25th September, 1942 in favour of the Government of Punjab, the Raja had no surviving or subsisting right in the forest lands in question which he could transfer by way of a grant; at the most the grant made by the erstwhile ruler could take effect in respect of revenue yielding lands only, admeasuring 471 about 263.5 bighas, and not in respect of the forest lands; and that the notification under section 29 of the was validly issued and so long as it held the field, no notification could be issued under section 4 of the Himachal Pradesh Private Forests Act, 1954.
Allowing the appeal, this Court, HELD: (1) The plaintiff 's father had a surviving and subsisting right in the forest lands which the subject matter of the lease dated 25th September, 1942 and was competent to grant the same to the plaintiff or anyone else, albeit subject to the terms of the lease.
[486C] (2) The paramount object of the lease was to conserve the forests of Bushahr State.
By concluding the lease agree ment with the Punjab Government, the Raja did not convey all his rights, title and interest in the leased forest lands to the Government.
All that he did was to transfer the control and management of the forests to the Punjab Government with a view to preserving and conserving the forests.
He however retained his proprietary interest in the forest lands.
Had it been the intention of the Raja to divest himself of all his interests in the forest lands, there was no need to provide the duration of the lease on the expiry whereof (unless the renewal clause was invoked) the Raja would have a right of re entry.
[485G H; 486A] (3) The lease provided that in addition to the two half yearly installments of Rs.50,000 each, the Raja was to receive payment of "whole net surplus" on the working of the forests included in the lease.
This was consistent only with the position that the Raja retained his proprietary inter ests in the forest lands.
[486A B] (4) If the terms of the document are clear and unambigu ous, extrinsic evidence to ascertain the true intention of the parties is inadmissible because section 92 of the Evi dence Act mandates that in such a case the intention must be gathered from the language employed in the document.
But if the language employed is ambiguous and admits of a variety of meanings, it is settled law that the 6th proviso to the section can be invoked which permits tendering of extrinsic evidence as to acts, conduct and surrounding circumstances to enable the Court to ascertain the real intention of the parties.
[491B C] In such a case the subsequent conduct of the parties furnished evidence to clear the blurred area and to ascer tain the true intention of the author of the document.
[491D] 472 Abdulla Ahmed vs Animendra Kissen Mitter, ; , referred to.
Since the words 'part of the uncultivated Jagir ' were ambiguous, extrinsic evidence allunde the grant became necessary to explain the coverage of those words.
[492A] (6) There is intrinsic evidence to show that the grant was not limited to only the revenue yielding area of 263.4 bighas.
If by the grant the Raja intended to grant only the revenue yielding area of 263.4 bighas, there was no need to mention 'and part of uncultivated Jagir ' and these words would be rendered redundant.
The subsequent conduct of the parties lends support to this view.
[488H; 489A] (7) From the various documents placed on record it is quite clear that the disputed forests did not belong to the Government nor did the Government have any proprietary rights therein.
The Government was also not 'entitled ' to the whole or any part of the produce in its own right dehors the lease.
[493C] (8) The word 'entitled ' in the context of section 29 of the must take colour from the preceding words and must be understood to mean that the Government must have an independent claim or right to collect and deal with the same subject to an obligation to account for the same to the owner.
On that account the State was not 'enti tled ' to the forests produce from such private lands.
There fore, the notification issued under section 29 could have uo application to such private forests.
The State Government was, therefore, competent to issue the two notifications under section 4 of the Himachal Pradesh Private Forest Act, 1954 and it was not justified in annulling them on the erroneous premise that the said lands belonged to the State Government.
[493F; 494F G]