dedol-hf/india-case-legal-rag huggingface dataset:
in  the Permanent Settlement of the zamindar and under  that
Settlement  the  ghatwal  had to pay rent  to  the  zamindar
raises  a  presumption  that the ghatwali was  in  some  way
connected with the zamindar, but it must be recognized  that
the  permanent settlement of the land "would not affect  the
nature  of the tenancy upon which the lands were  held,  nor
can  it convert the services which were public into  private
services  under the zamindar": [vide Raja Nilmoni  Singh  v.
Bakranath Singh(2)].  There are several reported cases which
furnish  instances  in which the properties of  persons  who
were  Government ghatwals were included in the zamindary  of
other  persons, but  where no clear evidence is  forthcoming
as to the true character of the ghatwali, the fact that  the
tenure is included within a zamindary and is covered by  the
jama assessed upon it should turn the scale in favour of the
party  who  alleges that it is a tenure which  is  dependent
upon  the zamindary. In this case, the  presumption  arising
under the Permanent Settlement is reinforced by the entry in
the Record of Rights which shows that the tenure in question
is istemrari mokrari held  under the zamindar.
(1) 6 Moore's I.A. 101.             (2) 9 I.A. 104.
546
    The learned counsel for the appellant relied upon exhib-
its  N  and  N-1 and certain rent receipts  granted  by  the
zamindar to show the appellant's independent title, but,  in
our opinion, these documents do not help him much. Exhibit N
is  a notice issued to an ancestor of the appellant in  1859
by an official whose signature on the document is not  legi-
ble.   It  refers  to a report the  sub-inspector  of  thana
Chakai  stating  that "the sautars (bad characters)  are  in
their  places of residence and no riots or disturbances  are
taking  place ", and directs the ghatwali to prepare a  list
of the sautars of his ilaqa and file it before the  officer-
in-charge of the thana. Exhibit N-1 is a similar notice, but
it  is incomplete and bears no indication as to  who  issued
it.   It recites a report of a police sub-inspector  stating
that  owing  to failure of crops there were  burglaries  and
thefts and recommends that the zamindars of the ilaqa should
be  directed  to "look after the occurrences and  keep  eyes
over  the bad characters and mischief makers so that  occur-
rences  may be stopped." These documents do not  necessarily
show that the appellant is a Government ghatwal.  It was not
unusual in old days to issue notices like those referred to,
to the zamindars of the ilaqa, as exhibit N-1 itself  shows,
and  the  mere fact that the person to whom the  notice  was
issued was described as a ghatwal does not show that he  was
addressed in the capacity of a Government ghatwal and not as
a zamindari ghatwal.
    The next item of evidence upon which the appellant tried
to  rely  consists of certain rent receipts  and  road  cess
receipts,  but these also do not help him, seeing that  they
contain,  among  other things, a statement that  the  tenure
with regard to which the receipts were granted,  appertained
to the proprietary zamindary of Gidhaur.
This brief review of the evidence is sufficient to show that
the  appellant  has not been able by  clear  and  conclusive
evidence to rebut the presumption arising from the Record of
Rights  and the record of the Permanent Settlement,  and  he
has  failed to establish his claim that the tenure in  ques-
tion is Government ghatwali. It
547
may  be  incidentally mentioned that in  the  mortgage  suit
which  preceded this litigation, there was no allegation  by
way  of  defence that the ghatwali was  not  alienable,  and
though the point was raised in the execution proceedings  it
was  decided  against the appellant by the  court  of  first
instance  and  was  abandoned on appeal.  In  these  circum-
stances, we see no reason to disturb the concurrent  finding
of  the courts below which have dealt with the  matter  with
great care.
    Passing  now to the second point raised in this  appeal,
we  find  that  there are concurrent findings  of  both  the
courts  below against the defendants on the plea of  adverse
possession.  In arriving at this finding, the  courts  below
have  fully discussed the evidence and given cogent  reasons
in  support  of  their conclusions. This  court  is  usually
reluctant  to  reinvestigate matters which have  been  fully
investigated  by  the courts below and on  which  there  are
concurrent findings.  In the present case, the appellant has
failed to show to us any exceptional circumstances to induce
us  to depart from the sound and well established  practice,
and  in  this view the findings of the court below  must  be
accepted.
    It  was however contended that in any event  the  plain-
tiff's  suit is barred under article 142 of  the  Limitation
Act  inasmuch as it was incumbent on the plaintiff to  prove
that he had been in possession of the disputed lands,  espe-
cially those mentioned in schedule II of the plaint,  within
12  years of the suit, but he had failed to do so.   In  our
opinion,  this plea must be negatived.  The trial  judge  in
his judgment came to a very clear finding in these words
    "The story of possession and dispossession as put  forth
in  the plaint must be believed, because, as I have  already
said  there is overwhelming evidence in this case  to  prove
the possession of the plaintiff over the surface as well  as
the subsoil."
    The finding of the Subordinate Judge does not appear  to
have  been challenged before the High Court, and  though  no
less than 16 reasons have been given in
548
the  statement of case filed in this court on behalf of  the
appellant, it has not been stated that there is no  evidence
to show that the plaintiff was in possession of the disputed
land or the land mentioned in schedule II within 12 years of
the suit.
    Thus  both the points urged in this appeal  fail.  There
can  be  no doubt that the entire tenure has passed  to  the
plaintiff  by  the sale, but, apart from this  fact,  it  is
well-settled that a zamindar is presumed to be the owner  of
the  underground rights in the tenancies created by  him  in
the absence of evidence that he ever parted with them:  [See
Hari  Narayan  Singh v. Sriram Chakravarthi  (1)  and  Durga
Prasad Singh v. Braja Nath Bose(2)].
    The  result  is that this appeal fails, and it  is  dis-
missed with costs.
                                Appeal dismissed.
Agent for the appellant: R.R. Biswas.
Agent for the respondent: R.C. Prasad.
PETITIONER:
STATE OF SERAIKELLA
        Vs.
RESPONDENT:
UNION OF INDIA AND ANOTHER(Suit No. 1 of 1950)STATE OF DHENK
DATE OF JUDGMENT:
06/04/1951
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION:
 1951 AIR  253            1951 SCR  474
 CITATOR INFO :
 R          1955 SC 540  (11)
 RF         1957 SC 540  (79)
 RF         1970 SC1446  (13)
RF         1971 SC 530  (232,317,364,367,370,373)
ACT:
    Constitution  of India, Arts. 363 (1),  374  (2)--Indian
States--Accession    to   India   under    Instruments    of
Accession--Orders  treating  States  as  having  merged   in
India--Suit to declare orders ultra
475
vires    and    enforce   rights   under    Instrument    of
Accession--Suits filed in Federal Court before 26th  January
1950--Jurisdiction of Supreme Court to try such suits--Scope
of Arts. 363 (1) and 374(2)
HEADNOTE:
Article  374 (2) of the Constitution of  India  provides
that  all  suits,  appeals and proceedings  pending  in  the
Federal Court at the commencement of this Constitution shall
stand  removed  to the Supreme Court and the  Supreme  Court
shall  have  jurisdiction to hear and  determine  the  same.
Article  363 (1) provides that notwithstanding  anything  in
this  Constitution, neither the Supreme Court nor any  other
Court shall have jurisdiction in any dispute arising out  of
any  provision of a treaty, agreement or similar  instrument
entered  into  or executed before the commencement  of  this
Constitution by any Ruler of an Indian State.
    Certain  States  had acceded to the  Dominion  of  India
under  Instruments of Accession in August 1947.   They  were
treated  as having merged in the Province of Bihar and  were
administered as a part of that Province under Orders  issued
under  the Extra Provincial Jurisdiction Act, 1947,  and  s.
290-A  of the Government of India Act,  1935 (as amended  by
the  Constituent Assembly Act of  1949).  The States  insti-
tuted  suits in the Federal Court of India before  the  26th
January,  1950,  for a declaration that the  various  Orders
under which the States came to be administered as a part  of
Bihar  and the laws under which those Orders were made  were
ultra  vires and void and the Province of Bihar had  accord-
ingly  no  authority to carry on the administration  of  the
States.  The suits stood transferred to the Supreme Court of
India under Art. 374 (2) of the new Constitution:
    Held,  per KANIA C.J., PATANJALI SASTRI J. and  BOSE  J.
(MAHAJAN  J. dissenting).--That even though the suits   were
instituted  before the new Constitution came into force  and
under Art. 374 (2) they stood removed to the Supreme  Court,
nevertheless  the  jurisdiction of the Supreme  Court  under
Art. 874 (2) was controlled by Art. 363 (1) of the Constitu-
tion  in  view of the opening words of  the  latter  namely,
"notwithstanding  anything  in this Constitution".   As  the
suits  were really to enforce the plaintiff's  rights  under
their  Instruments of Accession and the dispute between  the
parties  really arose out of those instruments,  under  Art.
363  (1) the Supreme Court bad no jurisdiction to  hear  the
suits.  This view (lid not involve giving any  retrospective
effect  to  Art. 361 (3).  MAHAJAN J.  (contra.)--Art.  363.
takes  away  the jurisdiction of the Supreme  Court  on  the
subjects  mentioned therein if suits about them were  insti-
tuted  after the 26th January, 1950, or disputes  concerning
them arise alter that date, while Art. 874 (12) empowers the
Supreme Court to hear and determine suits which were pending
in  the Federal Court on the 26th January, 1950,  and  which
that court was competent to hear and determine.  There is no
conflict between
476
these  articles, and the Supreme Court had  jurisdiction  to
hear the suit.
    DAS J.--As the plaintiff States, by virtue of the States
Merger (Governor's Provinces) Order, 1949, were  immediately
before the commencement of the new Constitution being admin-
istered as if they formed part of the Provinces of Bihar  or
Orissa.  the  territories of Bihar and Orissa  included  the
territories  of  the plaintiff States under Art.  1  of  the
Constitution read with the third paragraph of Part A of  the
First  Schedule.   These States consequently  ceased  to  be
States so far as the new Constitution is concerned, they had
no legal existence as acceding States, and could not  there-
fore  be recognised as such States by Courts, as Courts  are
bound  by the Constitution and cannot question the  validity
of  any  of  its provisions.  The suits  must  therefore  be
regarded as having abated.
JUDGMENT:
ORIGINAL JURISDICTION.  Suits Nos. 1 to 7 of 1950.
The facts are stated in detail in the judgment of KANIA C.J.
  N.C.  Chatterjee (A. N. Roy Choudhury, with him)  for  the
plaintiffs in suits Nos. 1, 3, and 6.
    Dr.  N.C. Sen Gupta (A. N. Roy Choudhury, with him)  for
the plaintiffs in suits Nos. 2, 4, 5, and 7.
    M.C. Setalvad, Attorney-General for India (G. N.  Joshi,
with him) for the defendants in all the suits.
    1951.  April 6. The following judgments  were  delivered
:--
    KANIA C.J.--This is a suit filed on the 15th of January,
1950,  under the Original Jurisdiction of the Federal  Court
as it was functioning before the Constitution of India  came
into  force on the 26th January, 1950.  The State of  Serai-
kella  was a State in Orissa and its Ruler was  Raja  Aditya
Pratap  Singh Deo. On the 16th August, 1947,  the  plaintiff
State  acceded  to  the Dominion of India by  virtue  of  an
Instrument  of Accession executed by its Ruler and  accepted
by  the  Governor-General of India under section  6  of  the
Government  of India Act, 1935.  After reciting  that  under
the Indian Independence Act, 1947, the Dominion of India was
set up and that under the Government of India Act, 1935,  as
adapted, it provided that an Indian State may accede to  the
Dominion of India
477
by  an Instrument of Accession, the Instrument  stated  that
the  Raja acceded to the Dominion of India and that  he  ac-
cepted  that  the matters specified in the Schedule  to  the
Instrument were the matters with respect to which the Domin-
ion  Legislature  may make laws for the  State.   The  three
principal  heads mentioned in the Schedule to that   Instru-
ment   were  Defence, External Affairs  and  Communications,
with  'partiCulars detailed under each of those heads.   The
Instrument expressly provides that by executing the same the
Ruler shall not be deemed to be committed to the  acceptance
of any future Constitution of India or to fetter his discre-
tion to enter into arrangements with the Government of India
under  any  such future Constitution. It  further  expressly
provides that nothing in the Instrument affects the continu-
ance  of the sovereignty in and over the State, or  save  as
provided  by  or under the Instrument, the exercise  of  any
powers, authority and rights so far enjoyed by him as  Ruler
of the State or the validity of any law then in force in the
State.  It also provides that the terms of the Instrument of
Accession  are  not  to be varied by any  amendment  of  the
Government  of India Act or of the Indian Independence  Act,
1947,  unless  such amendment is accepted by the Ruler or by
an Instrument supplementary to the said Instrument.  It  was
denied in the plaint that any such supplementary  instrument
was executed by the Ruler and no amendment of the  aforesaid
Acts  has  been accepted by him or the  plaintiff  State.  A
Standstill  Agreement was also executed by the  Ruler  under
which  it  was  agreed that matters of  common  concern  and
specified  in the Schedule to the Agreement  would  continue
between  the Dominion of India and the said State until  new
agreements were made in that behalf.
   On  the 15th December, 1947, an agreement is  alleged  to
have been entered into between the Governor General of India
and  the Ruler of the plaintiff State. By that document  the
Raja  ceded  to the Dominion Government full  and  exclusive
authority,  jurisdiction and powers for and in  relation  to
the governance of
478
the  State and agreed to transfer the administration of  the
State  to  the Dominion Government on the  1st  of  January,
1948. Article 2 contained a provision for the Privy Purse of
the Raja and it is contended by the plaintiff that when  the
Raja signed the document the figure in this clause had  been
left  blank.   Under  article 3 of that  agreement,  it  was
provided that the Raja would be entitled to the full  owner-
ship, use and enjoyment of all private properties  belonging
to  him on the date of the agreement and that by the 1st  of
January, 1948, the Raja will furnish to the Dominion Govern-
ment  an inventory of all immoveable properties,  securities
and cash held by him as such private property. Under article
4,  the  personal  privileges enjoyed by the  Raja  and  the
members of his family mentioned therein had to continue.
On the 24th of December, 1947, an Act to provide for the
exercise  of  certain extra-provincial jurisdiction  of  the
Central  Government (Act XLVII of 1947) was  passed.   Under
section  3  of  that Act it was provided that  it  shall  be
lawful for the Central Government to exercise  extra-provin-
cial  jurisdiction in such manner as it thinks fit  and  the
Central  Government  may delegate any such  jurisdiction  as
aforesaid to any officer or authority in such manner and  to
such  extent as it thinks fit.  Under section 4 it was  pro-
vided that the Central Government may by notification in the
official Gazette make such orders as may seem to it  expedi-
ent  for  the  effective exercise  of  any  extra-provincial
jurisdiction of the Central Government. A notification under
section  4 of that Act was thereafter issued by the  Central
Government delegating, under section 3, the powers contained
in  that Act to the Province of Orissa. On the 18th of  May,
1948,  that  notification was cancelled and  the  powers  in
respect of the two specified States including the  plaintiff
State  were delegated to the Province of Bihar. On the  same
day  the  Government of Bihar passed an  order  called  "The
Seraikella  and Kharaswan States Order"  providing  for  the
administration  of  the two States. On the 5th  of  January,
1949, the Legislative Assembly of India,
479
which  was  also functioning as  the  Constituent  Assembly,
passed  the  Constituent Assembly Act I of  1949  and  added
section  290-A  to the Government of India Act,  1935.  That
section runs as follows :--
    "Administration  of certain Acceding States as  a  Chief
Commissioner's Province or as part of a Governor's or  Chief
Commissioner's Province'-
(1) Where full and exclusive authority, jurisdiction and
powers  for and in relation to the Government of any  Indian
State or of any group of such States are for the time  being
exercisable by the Dominion Government, the Governor-General
may by Order direct
    (a)  that  the  State or the group of  States  shall  be
administered in all respects as if the Stale or the group of
States were a Chief Commissioner's Province; or
    (b)  that  the  State or the group of  States  shall  be
administered in all respects as if the State or the group of
States formed part of a Governor's or a Chief Commissioner's
Province specified in the Order:
    Provided that if any Order made under clause (b) of this
sub-section  affects  a Governor's Province,  the  Governor-
General shall before making such Order, ascertain the  views
of the Government of that Province both with respect to  the
proposal  to make the Order and with respect to  the  provi-
sions to be inserted therein.
(2) Upon the issue of an Order under clause (a) of  sub-
section (1) of this section, all the provisions of this  Act
applicable  to  the Chief Commissioner's Province  of  Delhi
shall  apply to the State or the group of States in  respect
of which the Order is made.
    (3)  The Governor-General may in making an  Order  under
sub-section  (1)  of this section  give  such  supplemental,
incidental  and consequential directions  (including  direc-
tions  as_ to representation in the Legislature) as  he  may
deem necessary.
    (4) In this section, reference to a State shall  include
reference to a part of a State."
    On the 27th of July, 1949, the Governor-General of India
promulgated an Order called the States Merger
480
(Governors'  Provinces) Order of 1949.  The result  of  that
was  that the plaintiff State is claimed to have  merged  in
the Province of Bihar.
    The  plaintiff  State contends that  the  Government  of
Orissa wrongfully and illegally purported to administer  the
plaintiff State by virtue of the Notification of the 23rd of
December, 1947, under Act XLVII of 1947. It is claimed  that
the  Act  was and is ultra vires and of no  effect  and  not
binding  on the plaintiff State.  The alleged  agreement  of
the 15th of December, 1947, is contended to be void for want
of consideration and is inoperative.  Indeed it is contended
that as the figure was left blank there was no agreement  at
all.   It is contended that on the 18th May,  1948,  without
the  consent  and  approval of the plaintiff  State  or  its
Ruler,  the Province of Bihar wrongfully and illegally  took
over  the administration of the State and passed the  Serai-
kella and Kharsawan Administration Order, 1948. In paragraph
10 of the plaint it is contended that the Dominion of  India
had  no authority to go beyond the Instrument of  Accession,
had no authority to delegate powers to the Province of Bihar
to administer the plaintiff State and the said Order, in any
event,  is  illegal and inoperative as it  went  beyond  the
ambit  of  the Extra Provincial Jurisdiction Act,  1947.  As
regards the Order issued by the Governor-General on the 27th
of  July, 1949, it is contended that he had no authority  or
power to promulgate the Order and the State Merger Order  of
1949  purporting  to be passed under section  290-A  of  the
Government  of India Act, 1935, is also void. The  enactment
of the Constituent Assembly Act I of 1949 is contended to be
ultra  vires and illegal. That Act is further challenged  on
the  ground  that it was enacted without the assent  of  the
Governor  General of India.  It is contended in  the  plaint
that  the defendants, viz. the Union of India and the  State
of  Bihar, deny and are interested in denying the  existence
or  entity  of  the plaintiff State  and  in  disputing  the
rights, privileges, powers and prerogatives of its Ruler  as
well  as the right to the private properties as set  out  in
the annexure.  The States Merger Order of
481
1949 is contended to be an abuse of power and authority  and
a fraud on the Government of India Act, 1935, and the Indian
Independence Act, 1947.  It is contended that the Government
of  India  or the Constituent Assembly had no  authority  to
pass any legislation on a matter not specified in the Sched-
ule  to the Instrument of Accession. In paragraph 19 of  the
plaint it is contended that the dispute between the  parties
comprised  and involved questions on which the existence  or
extent of legal rights depends and the plaintiff State is  a
party to the same. These disputes concern the interpretation
of  the  Government of India Act, 1935, and/or of  an  order
made  thereunder  and/or the interpretation  of  the  Indian
Independence Act and/or an order made thereunder and/or  the
extent of authority vested in the Dominion by virtue of  the
Instrument of Accession of the plaintiff State. The  prayers
are:  (a)Interpretation  of the relevant provisions  of  the
Government of India Act, 1935, the Indian Independence  Act,
1047, and the States Merger Order, 1040. (b) For a  declara-
tion that the Dominion Government had no authority to assume
any  power or jurisdiction beyond the matters  specified  in
the Instrument of Accession and had no authority to delegate
any power in relation to the plaintiff State to the  Provin-
cial  Government  of Bihar. (c) For a declaration  that  Act
XLVII  of  1947,  the Constituent Assembly Act  I  of  1949,
section  290-A  of  the Government of India  Act,  1935,  as
adapted, and the States Merger Order, 1949, are ultra vires,
illegal and inoperative in so far as they are made  applica-
ble  to  the plaintiff State and Orders made  thereunder  as
also actions taken or purported to be taken thereunder;  (d)
For a declaration that the Province of Bihar had no authori-
ty  or  jurisdiction to carry on the administration  of  the
plaintiff State and that the alleged merger was illegal  and
unauthorized; (e) For a declaration as to the rights of  the
parties and as to the extent of the authority of the  Domin-
ion of India over and in respect of the plaintiff State; (f)
For  a  declaration that the plaintiff  State  retained  its
entity  and territorial integrity, that  its  administration
should
482
in any event be carried on in the name of its Ruler and that
his rights and privileges as set out in annexure 'C' and his
private  properties as set out in annexure 'D' remain  unaf-
fected; and (g) For a declaration that the Province of Bihar
had  no authority or jurisdiction over the  plaintiff  State
and  that it should not interfere in any way with the  State
or the sovereignty of its Ruler.
    Six  other suits by other States of the  former  Eastern
Agency were filed also before the Constitution of India came
into force on the 26th of January, 1950, on the same  lines,
except  that  in four of them the agreement similar  to  the