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CASE NO.: Appeal (civil)  3861 of 2001

PETITIONER: Draupadi Devi & Ors.                                             

RESPONDENT: Union of India & Ors.                                            

DATE OF JUDGMENT: 09/09/2004

BENCH: K.G. Balakrishnan & B.N. Srikrishna

JUDGMENT: J U D G M E N T with Civil Appeal No. 3862 of 2001

SRIKRISHNA, J. Civil Appeal No. 3862 of  2001 :

       This appeal by special leave impugns the judgment dated 8.12.2000  rendered by the Division Bench of the Delhi High Court in an appeal        RFA (OS) No. 19 of 1989.  The Division Bench overturned the decree  granted by the learned Single Judge and dismissed the suit of the original  plaintiff. Legal representatives of the original plaintiff are appellants before  us while the three defendants in the suit ( Union of India, State of Punjab  and Sukhjit Singh) are respectively the respondents before us.  For the sake  of convenience, we shall refer to the parties as arrayed in the suit.

Facts :         The plaintiff instituted a suit in 1960 before the Civil Court at Delhi  which ultimately came to be transferred to the Original Side of the Delhi  High Court and was disposed of by a learned Single Judge. The suit was for  declaration of title to the property being land and building situated at 3,  Mansingh Road, New Delhi.   

By an indenture of lease dated 13.7.1921, Khan Bahadur Abdul  Hamid, the then Chief Minister of Kapurthala State,  had been granted a  perpetual lease of the plot of land situate at 3, Mansingh Road, New Delhi.  He raised a construction thereupon called ’Kapurthala House’.  It is this land  together with the structures thereupon  which is the subject matter of the suit  and shall henceforth be referred to as ’the suit property’.

       Khan Bahadur Abdul Hamid sold the house to Jagatjit Singh, the then  Maharaja of Kapurthala, by a registered sale deed dated 19.1.1935.  The  records of the Land and Development Office were mutated and Maharaja  Jagatjit Singh was recorded as the owner of the suit property.

The title to the suit property was claimed by the plaintiff on the  ground that the plaintiff had purchased the suit property by a registered sale  deed dated 10.1.1950 for a consideration of Rs. 1.50 lacs from Maharaja  Paramjit Singh, son of late Maharaja Jagatjit Singh, erstwhile Ruler of  Kapurthala State, who was the rightful owner thereof and in whose name the  property stood mutated in the official records of the Government at the  material time. Kapurthala was a Sovereign State (1928\0261948) till its merger in  ’Patiala and East Punjab States Union’ (hereinafter referred to as ’PEPSU’)   and subsequent merger of PEPSU into the Dominion of India.  

       It is the case of the plaintiff that Maharaja of Kapurthala, Jagatjit  Singh, owned properties extensively, some of which were owned by  Kapurthala State, (also referred to as ’Kapurthala Darbar’) while some

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

The plaintiff claimed that the suit property was one such property  which had been bought by Maharaja Jagatjit Singh out of his personal funds  and, hence, it was the personal property of the said Maharaja.

       The plaintiff pleaded that on 1.3.1937 Lt. Col. C.P. Fisher, the then  Prime Minister of Kapurthala State, had prepared an aide memoire  in  respect of the financial arrangements pertaining to bifurcation of Oudh estate  income and rest of the Kapurthala State income and other matters.  There is  no dispute that in this aide memoire Lt. Col. Fisher had listed out the  properties held by the Kapurthala State and the private properties of the  Maharaja separately. It is also common ground that the suit property was  described as State property in this aide memoire prepared by  Lt. Col. Fisher.   

The plaintiff alleged that on 1.1.1940 the then Maharaja of Kapurthala  State in his capacity as a Sovereign Ruler of the State had issued a  ’command’ under the signature of Tika Raja, (heir apparent), President State  Council, commanding that in future all the houses in Mussoorie and  Kapurthala House in New Delhi would be considered as his personal and  private property and that the aide memoire dated 1.3.1937 shall be  inoperative and ineffectual so far as the said properties were concerned.

       Maharaja Jagatjit Singh died sometime in 1940 and all his properties  including the suit property passed on to his eldest son Paramjit Singh, who  became the Maharaja of Kapurthala and was recognised as such by the  Government of India. The plaintiff claimed that by a duly registered deed of  conveyance dated 10.1.1950 Maharaja Paramjit Singh had sold and  conveyed the suit property jointly to the plaintiff and one Dewan Jarmani  Dass for a consideration of Rs. 1.50 lacs.  It is also the plaintiff’s case that,  subsequently, Dewan Jarmani Dass,  who had been shown as vendee only  for the purpose of ’convenience’, conveyed all his right, title and interest in  the suit property to the plaintiff by a duly registered indenture of transfer  dated 21.2.1951. Thus, the plaintiff claimed that he had full title to the suit  property and sought the declaration and reliefs as indicated.

       If history had not overtaken him, the plaintiff perhaps would have had  no problem for successful culmination of his suit.  Historical developments  left their impact on the aforesaid transaction the plaintiff had with the  Maharaja of Kapurthala and for that reason they need careful notice.   

The Independence Act was enacted in 1947 and all the independent  Sovereign Rulers of the States in India were successfully persuaded to sign  instruments of accession. As recorded in the ’White Paper on Indian States’  published by the Government of India in 1948 (of which judicial notice has  been taken by this Court in several cases), the strategy adopted by the  Government of India immediately before independence was to persuade  individual States to sign instruments of accession for accession of the States  to the Dominion of India on three subjects, namely, defence; external affairs  and communication.   

 The accession of the Indian States to the Dominion of India was the  first phase of the process of fitting them into the constitutional structure of  India.  The second phase which rapidly followed, involved a process of two- fold integration, the consolidation of States into sizeable administrative  units, and their democratisation .  

Where there were small States, they were persuaded to form Unions  of States on the basis of full transfer of power from the Rulers to the people.   These Unions were to be headed by a Rajpramukh as the constitutional head  of the State who was to be elected by the Council of Rulers .  

Pursuant to this strategy, the Rulers of all individual States were  persuaded to enter into an instrument of accession dated 16.8.1947 with the

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Government of India. This was then followed by covenants between  different Rulers by which the Unions of States was brought into existence,  which were to be finally merged into the Dominion of India. As far as the present appeal is concerned, it is significant that the  States of Kapurthala, Jind, Nabha, Faridkot, Malerkotla and the States of  Nalagarh and Kalsia came together and entered into a covenant on 5.5.1948.   The Division Bench has reproduced the full text of the covenant executed on  5.5.1948 by the Seven Rulers including the Maharaja of Kapurthala by  which the erstwhile seven States merged into a Union of  States.  The  general effect of the said covenant was that the covenanting States agreed to  unite and integrate their territories in one State with  a common executive,  legislature and judiciary by the name of ’Patiala and East Punjab States  Union’ (PEPSU) which was referred to in the covenant as ’the Union’.   Articles VI and XII of the said covenant provided as under:

"ARTICLE VI

(1)     The Ruler of each covenanting State shall, as  soon as may be practicable, and in any event not later  than the 20th of August, 1948, make over the  administration of his State to the Raj Pramukh and  thereupon -

(a)     all rights, authority and jurisdiction belonging  to the Ruler which appertain, or are incidental  to the Government of the Covenanting States  shall vest in the Union and shall hereafter be  exercisable only as provided by this covenant  or by the Constitution to be framed thereunder;

(b)      all duties and obligations of the Ruler  pertaining or incidental to the Government of  the Covenanting State shall devolve on the  Union and shall be discharged by it;

(c)     all the assets and liabilities of the Covenanting  State shall be the assets and liabilities of the  Union, and  

(d)     the military forces, if any, of the Covenanting  State shall become the military forces of the  Union.

ARTICLE XII :

(1)     The Ruler of each Covenanting State shall be  entitled to the full ownership, use and  enjoyment of all private properties (as distinct  from State properties) belonging to him on the  date of his making over the administration of  that State to the Raj Pramukh.

(2)     He shall furnish to the Raj Pramukh before the  20th day of September, 1948, an inventory of  all the immovable properties, securities and  cash balances held by him as such private  property.

(3)     If any dispute arises as to whether any item of  property is the private property of the Ruler or  State property, it shall be referred to such  person as the Government of India may  nominate in consultation with the Raj Pramukh

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and the decision of that person shall be final  and binding on all parties concerned.

               Provided that no such dispute shall be so  referable after the     31st of December, 1948."

       The organisation of the different organs constituting the  administration of the PEPSU was indicated  in the covenant. There were  also an elected Raj Pramukh and an Up-Raj Pramukh who were to be  appointed in the manner indicated in the covenant for carrying out the  administration of the  PEPSU. There were several other details with regard  to the Union of PEPSU and for privy purses to be paid to each of the  erstwhile Rulers. To this covenant, the Government of India in the Ministry  of States was a party and the Government of India declared: "The  Government of India hereby concur in the above Covenant and guarantee  all its provisions." The said covenant was signed on behalf of the  Government of India by V.P. Menon, then Secretary to the Government of  India in the Ministry of States.

The White Paper on Indian States further records that on 15.7.1948  the Patiala and East Punjab States Union was inaugurated.  Soon thereafter,  the second step of integration took place.

Then followed correspondence between the Maharaja of Kapurthala  and the Government of India on the issue of fixing his privy purse as well as  bifurcation and recognition of the properties owned by him into State and  private properties. The Maharaja of Kapurthala kept pleading with the Government of  India that he had ruled the State of Kapurthala as a model Ruler; that in  recognition of his signal services to the British Government he had been  granted the estates in Oudh income from which he was gracious enough to  divert to the State treasury of Kapurthala as Kapurthala income was very  low; that his personal income from Oudh estates and the State income of  Kapurthala were merged till 1937 and that it was only as the result of the  efforts of Col. Fisher that a bifurcation was made with the Oudh estates  being earmarked as personal income of the Maharaja.  The Maharaja,  therefore, pleaded with the Government of India that some of the immovable  properties purchased by him outside Kapurthala State such as in Mussoorie  and Delhi be permitted to be retained by him as his private properties and  that the Government of India should declare them to be so.  

The White Paper on Indian States indicates that the case of each Ruler  was considered individually and a decision was taken in each  case  depending on the facts and circumstances pertaining thereto.  Paragraph 157  in Part VII of the White Paper on Indian States places on record the manner  in which the Government of India solved this complex problem of  distinguishing between private properties and State properties owned by the  Rulers. The State properties were merged finally into the Dominion of India  while certain properties recognised as private properties were permitted to  be retained under the full ownership of the erstwhile Rulers.  Para 157 of the  White Paper on Indian States reads as follows:  

"157.  In the past the Rulers made no distinction between  private and State property; they could freely use for  personal purposes any property owned their respective  States.  With the integration of States it became necessary  to define and demarcate clearly the private property of the  Ruler.  The settlement was a difficult and delicate task  calling for detailed and patient examination of each case.   As conditions and customs differed from State to State,  there were to precedents to guide and no clear principles  to follow.  Each case, therefore, had to be decided on its  merit.  The Government of India were anxious that the

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new order in States should be ushered in in an atmosphere  free from any controversies or bitterness arising from any  unhappy legacy of the past.  A rigid and legalistic  approach would have detracted from the spirit of good- will and accommodation in which the political  complexion of the States had been so radically altered.   By and large the inventories were settled by discussion  between the representatives of the Ministry of States, the  Rulers concerned and the representatives of the  Governments of the Province or the Union as the case  may be.  The procedure generally adopted was that after  the inventories had been received and scrutinised by the  Provincial or the Union Government concerned and after  the accounts of the States taken over had been examined,  the inventories were discussed across the table and settled  in a spirit of give and take.  In all discussions with the  Rulers of the States forming Unions, the Rajpramukhs  were associated; the private properties of Rajpramukhs  were settled by the Government of India in informal  consultation with the Premiers of the Unions.  This  method made it possible to settle these properties on an  equitable basis within a remarkably short period and  without recourse even in a single case to arbitration.  The  settlements thus made are final as between the States and  the Rulers concerned."

       Although, generally, user was the criterion for distinguishing State  property from private property, there was no such hard and fast rule,  and  depending on the facts and circumstances of  each case appropriate decision  was taken by settlement with the Ruler concerned. This process was  obviously a long one stretching from 20.9.1948 (the last date for furnishing  to the Raj Pramukh the inventory of all the immovable properties, securities  and cash balances held by the Rulers as private property) till the actual date  of the decision.  Article XII of the covenant of accession provided that if  there was a dispute as to whether any item of private property of the Ruler  or State property, it would be decided by a nominee of the Government of  India  appointed in consultation with the Raj Pramukh and the decision shall  be final and binding on all parties concerned, provided that no such dispute  was referable after 31.12.1948.  According to the recitals in the White  Paper, in all cases the decision jointly taken by the Government of India  after discussion with the Ruler concerned and the Raj Pramukh was  accepted by the Ruler and no case was referred for arbitration as provided  under Article XII of the covenant.

       The correspondence between Maharaja of Kapurthala, Jagatjit Singh,  his son Paramjit Singh (Tika Raja) with the Government of India which has  been extensively quoted in the judgments of the learned Single Judge and  the Division Bench bears out what is stated in the White Paper. The tenor of  the letters written by the Maharaja to the Government of India does not  indicate that the Maharaja was raising a dispute with regard to the  immovable properties outside Kapurthala State.  On the contrary, the tenor  of the correspondence emanating from the Maharaja suggests that, having  agreed to the decision taken in the meeting with the Government of India’s  representatives he was attempting to prevail upon the Government of India  to declare some of the properties as his personal properties for reasons  which he advanced.  It is interesting to notice that at no point did the  Maharaja of Kapurthala take up the stand that the properties owned outside  the Kapurthala State, particularly the suit  property in Delhi, was beyond the  purview of the covenant and was his exclusive personal property.  

During the ongoing process of identification and bifurcation of the  immovable properties into State and personal properties, Maharaja Jagatjit  Singh attempted to sell some land. On coming to know of the move of the  Maharaja, on 19.3.1949 a telegram (Ex.D2W4/1) was sent by the Raj

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Pramukh to Maharaja Jagatjit Singh calling upon him to refrain from doing  so when the process of identification of properties was going on.

While the discussions with the Government of India for identification  and classification of immovable properties held by the Maharaja of  Kapurthala were still going on, it appears that Dewan Jarmani Dass, then  Chief Minister of Kapurthala State, prevailed upon the Maharaja to quietly  sell the property jointly to him and the original plaintiff, late R.M. Seksaria.  Although, the Division Bench of the High Court has made scathing remarks  that Dewan Jarmani Dass had acted clandestinely and malafide  in order to  grab  the property even before the decision of the Government on the nature  of the property, it is unnecessary for us to pronounce on these facets of the  matter for the decision on legal issues does not turn upon these findings.    

 The Government of India was not aware of the sale and conveyance  of the suit property to Dewan Jarmani Dass and the plaintiff, till or about  6.3.1950.  It is only thereafter that a discussion took place on 7.3.1950  between the representatives of the Government of India headed by V.P.  Menon, Secretary, Ministry of States and the Maharaja of Kapurthala. The  minutes which were recorded on 11.3.1950, with reference to the suit  property, state:  

"The sale of Kapurthala House in Delhi should be  revoked.  The vendee should   be asked to refund the  consideration money to His Highness.  This decision was  communicated to Dewan Jarmani Dass by Secretary."

        On 14.3.1950, Paramjit Singh, who had by then become the Maharaja  of Kapurthala State, wrote to V.P. Menon, Secretary, Ministry of States in  which he referred to the previous talk on the issue and said:  "Since my talk I find that present owner of the House  i.e. M/s Jarmani Dass and Seksaria Brothers are not  prepared to voluntarily rescind or cancel the sale  deed of Kapurthala House in their favour."  

He further stated:

"That my secretary, Shanti Sagar Mahendra, had been  authorised to pay the amount of Rs. 1.50 lacs to M/s  Jarmani Dass and Seksaria Brothers and get back the  Kapurthala House at New Delhi if they so agree and have  the sale deed registered in his own name. In case this is  not possible I request you to please be good enough as to  see that Kapurthala House, New Delhi, is declared my  personal and private property and I am not made to return  the money."                                               (emphasis ours)  

This does not at all sound like any assertion of title to the suit property, but  more like an imploration to the Government of India to declare the property  as private property so that Maharaja was not required to refund the money  which he had taken from M/s Dewan Jarmani Dass and Seksaria Brothers.

       The determination of the issue as to whether the suit property was the  private property of the Ruler of  Kapurthala State recognised as such by the  Government of India or whether it was the State property of Kapurthala  State, which merged into the PEPSU and thereafter transferred by the  Government of India to the State of Punjab (Defendant No. 2), is crucial and  decides the fate of the present litigation.  It is crucial because the plaintiff  claims title from the Maharaja of Kapurthala; if the Maharaja’s title to the  suit property was good, then the plaintiff has good title; conversely, if the  Maharaja had no title to the suit property as on the date of the conveyance  dated 10.1.1950, then the plaintiff gets no title and, therefore, his suit must  fail. Nemo dat quoad non habet.

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The Commands of 1940 and 1948:         The plaintiff attempted to prove his title by showing that the Maharaja  had a good title because the suit property was the private property of the  Maharaja bought from his personal funds and not the State property of  Kapurthala purchased from State funds.  Despite the allocation made by the  aide memoire on 1.3.1937 prepared by Col. Fisher, the plaintiff’s case is that  by reason of the subsequent command of the Maharaja dated 1.1.1940 the  classification made by the aide memoire was overridden and the property  remained as personal property of the Maharaja. Consequently, under the  covenant it was bound to be recognised as personal property which was  guaranteed under the covenant. Since the suit property was the personal  property of the Maharaja, the Maharaja had good title which had passed to  the plaintiff, is the line of argument of the plaintiff.  A number of legal  arguments in support and voluminous documents have been placed on  record.  The Division Bench of the High Court meticulously considered  everyone of the documents on record and totally disbelieved the case of the  plaintiff as to the existence of this alleged command of the Maharaja dated  1.1.1940 and another alleged command dated 11.8.1948 declaring the suit  property as his private property. There is  serious controversy as to whether  the said documents were ever issued,  whether the said documents were  proved on record, and if so, what  the legal  consequences would be. We may   add here that, apart from these two disputed documents, the only other  document in which there is any reference to the command of 1940 (without  indicating the specific date) is a letter dated 11.4.1950 written by Dewan  Jarmani Dass  to V.P. Menon which appears to have been written: "in order  to clear my position and to clear some misunderstanding" as to the sale of the  said property to Dewan Jarmani Dass. In this letter, it is stated that Maharaja  of Kapurthala in 1940 passed an order in unequivocal terms that ’Kapurthala  House’ should be considered as his personal property. Hence, Dewan  Jarmani Dass said this should be treated as personal property of the Maharaja  and, consequently, his own rights should remain protected.   

Having carefully perused the documents placed on record, and  considered the arguments of the learned counsel, we are inclined to agree  with the findings of the Division Bench about both these documents.  As to  the command of 1940, it has been held proved by the learned Single Judge  only on the basis of adverse inference and secondary evidence.  The Division  Bench has correctly pointed out the circumstances under which secondary  evidence could have been let in did not exist at all. The inconsistency in the  pleadings as to the particulars of the documents led to the resulting confusion  in the defendants admitting possession and denying possession in succession.   One thing, however, strikes us that in the entire correspondence, which the  Maharaja contemporaneously had up to the sale of the suit property, there  was no reference to this command at all. While it may not be possible to  agree with the positive conclusion drawn by the Division Bench that this  command was fabricated and  clandestinely inserted by the plaintiff in the  records of the Archives Department, we too agree that these documents have  not been  proved in accordance with law.

The Division Bench of the High Court rightly points out that  the aide  memoire prepared by Lt. Col. Fisher on 1.3.1937 indubitably declared that  House in Delhi was a "State House".  This document was signed by   Col.  Fisher in his capacity as Prime Minister as also by the Ruler of Kapurthala.   There is no dispute about this document, or that it had been signed by the  Ruler of Kapurthala.  In other words, as early as 1.3.1937, the Maharaja of  Kapurthala accepted that the House in Delhi (the suit property) was State  property.  It would appear that in order to help the plaintiff in his suit, the  third defendant, who is the grand son and successor of the Maharaja, and the  plaintiff, introduced the theory that the Maharaja by his Commands dated  1.2.1940 and 11.8.1948 had nullified the effect of Lt. Col. Fisher’s aide  memoire  dated 1.3.1937.

The fact that there was no reference whatsoever to these documents in  any of the contemporaneous correspondence between the Ruler of  Kapurthala and the Government of India lends credence to the dubitable

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nature of these two documents.  In fact, at no point of time did the Maharaja  put forward a claim with the Government of India that the suit property had  ceased to be State property and become his private property by reason of his  aforesaid commands or otherwise.  As we have already noticed, the tone and  tenor of the correspondence between the Maharaja and the Government of  India during the material period was abjectly supplicant and demonstrated  only an anxiety on his part to protect his privy purse and to bargain for  certain concessions from the Government. Never was there an assertion of  rightful title to the suit property,  his efforts being directed towards wresting  greater concessions. The Division Bench has rightly analysed the evidence  on record and came to the finding that till 1934, the income from Oudh  estates and Kapurthala State were treated as one consolidated account. It was  only on the advice of the Lt. Col. Fisher that the accounts were separately  maintained after 1936.  Even in the Note dated 28.5.1948 (Vol. 9 page 17)  sent by the Maharaja and the Tika Raja, President of State Council to V.P.  Menon, Secretary, Ministry of States, it is pointed out that the income from  Oudh estates were merged in the income of Kapurthala State upto 1934, and  it was bifurcated only on the recommendation of Lt. Col. Fisher. The reason  for this is explained thus:   "This step was taken only with the idea of earmarking the  income of the Oudh estates for my Civil List. As it has  been my desire for some time to amalgamate once again  the income of my Oudh estates with the revenue of  my  State,  I am pleased to order that steps should be taken  with regard to the amalgamation of the Oudh estates with  the Kapurthala State."  

Thereafter, the Maharaja pleads his case that he should be granted                Rs. 25 lacs to be transferred to his household account out of the State  Reserve Fund.  

On 4.6.1948, the Ministry of States wrote to the Maharaja that  transferring such a large amount would invite serious public criticism and  would not be acceptable to the Government.  Discussions followed  thereafter.  The Maharaja took the advice of  Chaudhary Niamat Ullah, a  retired Judge of the Allahabad High Court, and addressed a note dated  24.8.1948 to the Chief Minister of Kapurthala.  Even in the memorandum the  plea made was with regard to injustice that was likely to result: "if my privy  purse is determined solely on the basis of the revenue of the Kapurthala State  Property". The aide memoire prepared by the Maharaja in July, 1948 (Ex.  D2/5) also reiterates this.   

In view of this clear evidence, the Division Bench was justified in its  finding that the Maharaja of Kapurthala had clearly admitted that the income  from Oudh estates formed an integral part of State of Kapurthala and all  along  maintained in his correspondence with the Government of India that  the nature of the suit property could not be decided merely from the source  of income aspect.   Article 363 of the Constitution of India / Act of State: For the appellants, it was contended that the source of income was not  really the index of the nature of the property, namely, whether it was  State  property or private property of the Maharaja, but that the principle adopted at  the time of accession was the principle of user of the property.  

The learned counsel for the appellants urged that the evidence on  record shows that the suit property in Delhi had been personally used by the  Maharaja all along and at no point of time was it used for State purposes.   Hence, he contended that this property was the private property of the  Maharaja.

Even assuming that the learned counsel for the appellants may be right  in his contention that applying the test of user the suit property was liable to  be determined to be the private property of the Maharaja, the question that  arises is: Did the Government of India recognise the suit property as the  private property of the Maharaja? If they did not, could a suit be maintained

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for a declaration that the suit property was the private property of the  Maharaja?  Answering this question, the Division Bench holds that the suit  was not maintainable and barred by reason of Article 363 of the Constitution  of India. The learned counsel for the State of Punjab and the Union of India   contended that the suit of the plaintiff was clearly barred and the court had  no jurisdiction to entertain the suit by reason of Article 363 of the  Constitution of India.  Article 363 reads thus:

"363.  Bar to interference by courts in disputes  arising out of certain treaties, agreements, etc.\027      (1) Notwithstanding anything in this Constitution but  subject to the provisions of article 143, neither the  Supreme Court nor any other court shall have  jurisdiction in any dispute arising out of any provision of  a treaty, agreement, covenant, engagement, sanad or  other similar instrument which was entered into or  executed before the commencement of this Constitution  by any Ruler of an Indian State and to which the  Government of the Dominion of India or any of its  predecessor Governments was a party and which has or  has been continued in operation after such  commencement, or in any dispute in respect of any right  accruing under or any liability or obligation arising out  of any of the provisions of this Constitution relating to  any such treaty, agreement, covenant, engagement,  sanad or other similar instrument.

(2)  In this article-

(a)  "Indian State" means any territory recognised before  the commencement of this Constitution by His Majesty  or the Government of the Dominion of India as being  such a State; and  

(b) "Ruler" includes the Prince, Chief or other person  recognised before such commencement by His Majesty  or the Government of the Dominion of India as the Ruler  of any Indian State."

       Counsel for the State of Punjab contended that the act of accession of  Kapurthala State to the Dominion of India, which was brought about by an  instrument of accession dated 16.8.1947 resulting in the Union of PEPSU  coming into being on 15.7.1948 as well as the execution of the covenant  dated 5.5.1948 between the Maharaja and the Government of India, were  acts of the State.  They were the resultants of exercising political power  which could not be questioned in the municipal courts.  Learned counsel  placed heavy reliance on the judgment of the Constitution Bench of Seven  learned Judges of this Court in State of Gujarat  v.  Vora Fiddali  Badruddin Mithibarwala .   

       In Vora Fiddali (supra) a Constitution Bench of this Court had  examined whether the Government of India was bound to recognise and  implement the rights created by a  "Tharao"    of  the Ruler of the erstwhile  Sant State granting special rights with regard to certain forests after the  Maharaja of Sant State had by an instrument of merger agreement dated  19.3.1948 acceded to the Dominion of India, the Government of India,  having refused to recognise any rights flowing under the grants made under  the ’Tharao’ of the erstwhile Ruler.  The Constitution Bench approved of the  following dicta of Lord Dunedin in Vaje Singhji Jorwar Singh  v.   Secretary of State for India : "When a territory is acquired by a sovereign state for the  first time that is an act of State.  It matters not how the  acquisition has been brought about.  It may be by  conquest, it may be by cession following on treaty, it may

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be by occupation of territory hitherto unoccupied by a  recognised ruler.  In all cases the result is the same.  Any  inhabitant of the territory can make good in the municipal  courts established by the new sovereign only such rights  as that sovereign has through his officers, recognised.   Such rights as he had under the rule of predecessors avail  him nothing.  Nay more, even if in a treaty of cession it is  stipulated that certain inhabitants could enjoy certain  rights, that does not give a title to those inhabitants to  enforce these stipulations in the municipal courts.  The  right to enforce remains only with the high contracting  parties."

It also expressly disagreed with the ratio of an earlier judgement of this  Court in Virendra Singh & Ors.  v.  The State of Uttar Pradesh  that such  grants were merely voidable and continue to bind the parties till they were  expressly revoked by the new Sovereign. The majority judgment in Vora  Fiddali (supra) rendered by Hidayatullah, J. succinctly sets forth the concept  of  ’Act of State’ in the following words:  "To begin with, this Court has interpreted the integration  of Indian States with the Dominion of India as an Act of  State and has applied the law relating to an Act of State  as laid down by the Privy Council in a long series of  cases beginning with Secretary of State in Council for  India  v.  Kamachee Boye Saheba  and ending with  Secretary of State  v.  Sardar Rustam Khan and  Other . The cases on this point need not be cited.   Reference may be made to M/s Dalmia Dadri Cement  Co. Ltd.  v.  Commissioner of Income-tax , The State  of Saurashtra  v.  Menon Haji Ismali Haji , Jaganath  Agarwala  v.  State of Orissa , and State of  Saurashtra  v.  Jamadar Mohamed Abdulla and  Others .  In these cases of this Court, it has been laid  down that the essence of an Act of State is an arbitrary  exercise of sovereign power on principles which are  paramount to the Municipal Law, against an alien and the  exercise of the power is neither intended nor purports to  be legally founded.  A defence that the injury is by an Act  of State does not seek justification for the Act by  reference to any law, but questions the jurisdiction of the  court to decide upon the legality or justice of the action.   The Act of State comes to an end only when the new  sovereign recognises either expressly or impliedly the  rights of the aliens.  It does not come to an end by any  action of subordinate officers who have no authority to  bind the new sovereign.  Till recognition, either express  or implied, is granted by the new sovereign, the Act of  State continues."   

The decision also holds that merely because the issue of recognition of the  new  rights  was pending with the  Government, it cannot be  postulated that  the act of State had come to an end.  The act of State could only come to an  end if the Government recognises the rights which were granted by the  erstwhile Ruler. The Government may take time to consider; and delay does  not mitigate against the act of State. [See, Jaganath Agarwala  v.  State of  Orissa (supra)].                  Vora Fiddali  (supra) also holds that although the distinction between  legislative, executive and judicial acts of an absolute Ruler (such as the  Indian Rulers were) was apt to disappear when the source of authority was  the sovereign, this would be true only in so far as the subjects of the Ruler  were concerned, since they were bound to obey not only laws but any orders  of the Ruler, whether executive or judicial. "For them there did not exist any

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difference because each emanation of the will of the sovereign required  equal obedience from them.  But it does not mean that the Ruler acted  legislatively all the time and never judicially or executively.  If this was the  meaning of the observations of this Court then in Phalke’s  case, it would  not have been necessary to insist that in determining whether there was a  law which bound the succeeding sovereign, the character, content and  purpose of the declared will must be independently considered." Applying  the test, the majority came to the conclusion that the "Tharao" was not  "law  in force" which continued to operate by reason of Article 372 of the  Constitution of India.  It was also held that the municipal courts in India  could not pronounce upon the dispute arising under the agreement or  touching the agreement as the subject was outside the jurisdiction by reason  of Article 363 of the Constitution of India.

       The rule that cession of territory by one State to another is an act of  State and the subjects of the former State may enforce only those rights  which the new sovereign recognises has been accepted by this Court.  [See  in this connection: M/s Dalmia Dadri Cement Co. Ltd.  V.  The  Commissioner of Income-tax (supra); Jagannath Agarwala v.  State of  Orissa (supra); Promod Chandra Deb and Others  v.  The State of  Orissa and Others  and The State of Saurashtra  v.  Jamadar  Mohamad Abdulla and Others (supra).]

       Applying the law as laid down in Vora Fiddali (supra) it appears to   us that the contention of the State of Punjab and the Union of India must be  upheld.   The Maharaja of  Kapurthala  was an independent sovereign Ruler.  To merge or not to merge with the Dominion of India was a political  decision taken by him and the instrument of accession dated 16.8.1947 was,  without doubt,  an act of State.  So was the covenant dated 5.5.1948.  By the  covenant all rights, authority and jurisdiction of the erstwhile Rulers were  vested in the Patiala and East Punjab States Union and all assets and  liabilities of the covenanting States became the assets and liabilities of the  Union, PEPSU.  It is only Article XII which ensured certain rights to the  Ruler with regard to full ownership, use and enjoyment of all private  properties (as distinct from State properties) belonging to him on the date of  his making over the administration of the State to the Raj Pramukh.   Consequently, he was also required to furnish to the Raj Pramukh, before  the deadline, an inventory of all the immovable properties, securities and  cash balances held by him as such private property.  This was obviously  done so that the Government of India could ascertain the correctness of the  claim.  No doubt, clause (3) of Article XII provides that a dispute arising as  to whether any item of property was the private property of the Ruler or  State property was referable to a nominee of the Government of India and  such nominee’s decision would be final and binding on all the parties  concerned, provided that such dispute was to be referred by the deadline of  31.12.1948. Interpreting this clause, the learned Single Judge took the view  that under the treaty the Government of India could not unilaterally refuse to  recognise any property as private property of the Ruler, and, if it did, it was  obliged to refer it to the person contemplated by clause (3). Failure to do so  would imply recognition of the claim as to private property. In our view, this  reasoning of the learned Single Judge was erroneous on two counts.  In the  first place, this interpretation ignores the true nature of the covenant.  The  covenant is a political document resulting from an act of State.  Once the  Government of India decides to take over all the properties of the Ruler,  except the properties which it recognises as private properties, there is no  question of implied recognition of any property as private property.  On the  other hand, this clause of the covenant merely means that, if the Ruler of the  covenanting State claimed property to be his private property and the  Government of India did not agree, it was open to the Ruler to have this  issue decided in the manner contemplated by clause (3).  Clause (3) of  Article XII does not mean that the Government was obliged to refer to the  dispute upon its failure to recognise it as private property. Secondly, the  dispute as to whether a particular property was or was not recognised as  private property of the Ruler was itself a dispute arising out of the terms of  the covenant and, therefore, not adjudicable by municipal courts as being

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beyond the jurisdiction of the municipal courts by reason of Article 363 of  the Constitution of India.  

Although, Vora Fiddali (supra) was a case which dealt with the  recognition of the rights of the subjects of an erstwhile Ruler after accession  of the Ruler to the Dominion of India, the principles laid down in Vora  Fiddali would apply with  greater vigour to the rights claimed by the Ruler  himself.  

We are of the view that after the Government of India took over all  the properties of the Ruler of the Kapurthala State, by an act of State,  assuring him by the covenant only that he would be entitled to the full  ownership, use and enjoyment of all private properties.  A procedure was  prescribed for recognition of such private properties. The evidence on record  does not suggest that at any point of time the Ruler of Kapurthala had  disputed the power of the Government of India to decide the issue as to  whether the suit property was the property of the State of Kapurthala or  private property of the Ruler.  On the contrary, the correspondence placed  on record suggests that at all points of time the Ruler of Kapurthala accepted  the position that the Government of India had the right to decide the nature  of the property and was merely pleading that the suit property be declared as  his private property. Finally, in any event, we are of the view that the issue  as to whether the Government of India was obliged to recognise the private  property of the Ruler of Kapurthala, and whether, under the terms of the  covenant (Article XII of the covenant), the Ruler of Kapurthala was entitled  to have it thus recognised, are disputes which are clearly barred by        Article 363 and the court had no jurisdiction to decide the said issues.

Lex Situs:         The appellants contend that the decision that the suit property could  not be recognised as private property was taken only in 1951 i.e. after the  coming into force of the Constitution of India.  By that time, the Maharaja  had acceded to the Union (PEPSU)  which was succeeded by the State of  Punjab as a State under the Constitution.  Appellants contend that by the  decision taken in 1951 the right to property which was held by a citizen of  the country could not have been taken away by a mere executive act without  the backing of a valid legislative enactment.  According to the appellants,  the lex situs would govern the issue.  In other words, the law as applicable in  Delhi would have governed the issue whether the Ruler of Kapurthala had a  right to the property under the laws as applicable in Delhi. The Ruler of  Kapurthala had purchased the property by a registered sale deed from Khan  Bahadur Abdul Hamid; thus, he was the true owner of the property and his  ownership rights could not have been extinguished except by a law validly  made under the Indian Constitution.  Allied to this argument is also a  subsidiary argument that there cannot be an act of State as against a citizen  or a friendly alien.  Reliance was sought to be placed on the judgment of the  House of Lords in Johnstone  v.  Pedlar  and of this Court in The State of  Saurashtra  v.  Memom Haji Ismail Haji  and H.H. Maharajadhiraja  Madhav Rao Scindia etc.  v.  Union of India and another .

       Some recapitulation of contemporaneous facts is in order to  appreciate the merits of this argument.   

After the instrument of accession was executed by the Maharaja on  16.8.1947, he executed the covenant on 5.5.1948, and he forwarded the list  of his private property by way of an aide memoire and handed it over on  15.7.1948 to the Raj Pramukh. Logically, this would have been the first  occasion for the Maharaja of Kapurthala to lay claim to the suit property as  his private property.  Interestingly, there is no reference made to the suit  property or any other property as private property in this aide memoire. The  only anxiety appears to be to get the privy purse fixed which was a big  amount to be paid regularly  by the Government of India.   

On 16.7.1948 (Ex. D.2/6) the Maharaja addressed a letter to the Raj  Pramukh in which he refers to the copy of the aide memoire already handed

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over.  Even in this letter, nothing is said about the nature of the property in  Delhi.  The emphasise is purely on ensuring that a large amount of privy  purse fixed.  

On 25.8.1948 (Ex.D.2/7), one more letter was addressed by the  Maharaja of Kapurthala to the Raj Pramukh.  In this letter, there was a  detailed list of "private properties situated in and outside the Kapurthala  State in accordance with Article XII(2) of the covenant.  There is also  reference to the aide memoire personally handed over at Patiala on  15.7.1948. The list refers to several palaces and buildings within Kapurthala  State, and in Mussoorie.  For the first time, there is reference to the suit  property as ’Kapurthala House’ situated at 3, Mansingh Road. The issue of  recognition of private property was still very much under process for the Raj  Pramukh wrote back to the Maharaja of Kapurthala on 3.9.1948 (Ex. D.2./8)  requesting him to furnish a list of jewellery, silver ware etc. as per inventory  in the stock registers of the Toshekhana at Kapurthala as it would "help  greatly in the settlement of claims of your private property."  

On 22.9.1948 (Ex.D.2/9) there is a letter written by the Maharaja to  the Raj Pramukh with regard to certain animals and articles which he  wanted to be recognised as private property.   

On 12.1.1949 (LC/D Vol.6 page 1539) there is a reference made to  "other properties outside the Kapurthala State belonging to me personally"   with a promise that their list would be forwarded for consideration.  

At that time, a number of Rulers had acceded to the Government of  India and the White Paper says that their cases were to be considered one by  one individually.  Consequently, there was bound to be some time lag in  taking a decision on the claim to private properties made by the Rulers.  

While the claim was being processed, on 1.2.1949 (Ex. D2W1/3), the  Finance Secretary, Govt. of PEPSU wrote to N.M. Buch, Joint Secretary,  Government of India to point out that the order passed in 1937 by the  Maharaja clearly bifurcated the division of the properties into the house hold  and State and that this was contrary to the claim he was putting forward. He  also invited attention to the fact that while Mussoorie property was being  divided half and half, the Delhi house necessarily was to be the official  property of the State and that, though the question had been settled, the  Maharaja had raised the issue again.  

By letter dated 11.4.1949 (Ex.D.2./10) the Raj Pramukh informed the  Maharaja:  "The question about Kapurthala House in New Delhi will  be settled separately on the same basis as is applied in the  case of houses owned by other Covenanting States, and I  shall be writing to Your Highness further about it."  

During this process the Maharaja of Kapurthala sold the suit property  jointly to the plaintiff and Dewan Jarmani Dass on 10.1.1950.  

There was a meeting convened on 25.1.1950 between the Raj  Pramukh, the Maharaja of Kapurthala, M.R. Bhide and the Private Secretary  to the Raj Pramukh. Even the minutes ( Ex. D.2/11) recorded of this meeting   do not disclose that the Maharaja had informed M.R. Bhide about the sale of  the property on that day.   

When the Government of India came to know of the sale of the suit  property, a meeting was arranged on 7.2.1950 in Kapurthala between V.P.  Menon, Secretary, Ministry of States, M.R. Bhide, Regional Commissioner,  PEPSU, Sardar Hari Sharma, Deputy Secretary of States and the Maharaja  of Kapurthala. The minutes of this meeting, insofar as they pertain to the  suit property, make interesting reading. They read as under (Para 3): "The sale of Kapurthala House in Delhi should be

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revoked. The vendee should be asked to refund the  consideration money to His Highness. This decision was  communicated to Dewan Jarmanidass by Secretary."

       On 14..3.1950 (Ex.PX-13), the Maharaja wrote to V.P. Menon,  Secretary, Ministry of States requesting him to declare the suit property as  his personal property.

       On 26.2.1951 a meeting was held between the representatives of the  Government of India and the Maharaja.  The minutes were recorded on  1.3.1951 (Ex. D.2W2/2). The material portion of the minutes reads as under: "Delhi House : His Highness was informed that in the  basis of the information received on him, the house could  not be treated as private property.  The intention of the  Government of India, therefore, was to treat the house as  State Property."

                Finally, by letter dated 4/5.5.1951 (Ex.P.6/3), the Government of  India informed the Maharaja:  "It has now been decided that Kapurthala House, No. 3,  Man Singh Road, New Delhi, will be State property and  not the private property of Your Highness.  We have  informed the PEPSU Government of this decision."

       In the light of these developments, it is clear that the act of State  continued from the date when the instrument of accession was signed i.e.  16.8.1947 to the date on which the final decision of the Government of India  was conveyed to the Maharaja.  The fact that  time was taken in conveying  the decision, or the fact that the Constitution of India had come into force in  the interregnum, do not change the character of the act of the Government of  India  in refusing to recognise the suit property as the private property of the  Maharaja of Kapurthala.  Agarwala (supra) holds that an act of State need  not be a prompt decision, but could stretch over a period of time. Vora  Fiddali (supra) states that the act of State would continue till the new  sovereign recognises the rights.  In this case, however, the act of State  terminated with the final decision of non-recognition being conveyed.  What  the Government of India did in the year 1951 was not referable to  anything  flowing from the Constitution, but, action albeit delayed, referable to the  instrument of accession and the covenant signed by the Maharaja.  Any  dispute with regard to what the covenant guarantees, or whether the act of  the Government of India was justified under the covenant is, beyond the  pale of jurisdiction of the court by reason of Article 363 of the Constitution  of India. The Division Bench of the High Court was, therefore, justified in  making a finding that the suit was barred by Article 363 and was liable to  fail.

       Now, we may dispose of the subsidiary argument of Mr. Vellapally,  learned senior advocate, based on the Doctrine of Lex Situs.  Vora Fiddali  (supra) is an authority for the proposition that the act of State would  continue till there is recognition (or non-recognition).  In our view, all the  rights available to the erstwhile Ruler and his subjects are of no avail till  there is recognition of such rights.  The argument of lex situs could have  perhaps prevailed, if the Government of India at any point of time had  recognised the suit property as the private property of Maharaja of  Kapurthala, and, after the coming into force of the Constitution, attempted  to take it away otherwise then by a Constitutionally valid legislative  enactment.  On the facts, however, we find that no such recognition was  granted. Merely because the decision not to recognise was conveyed to the  plaintiff in the year 1951, the act of the Union of India did not cease to be an  act of State, nor does it fall outside the protective umbrella of Article 363 of  the Constitution of India.  The contention of the learned counsel of the  appellants that the plaintiff claimed title to the property through the

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registered sale deed in his favour under the law applicable in Delhi would be  of no avail. As we have said earlier, if the Maharaja had no title to the  property, the plaintiff can hardly get anything more.           Another interesting sideline in the argument was introduced by the  learned counsel for the appellants that an act of State could never occur with  reference to property that was not in the ceded territory. It is not necessary  for us to examine this argument as the facts on hand are clearly against the  argument.  There is not doubt, whatsoever, that the Maharaja of Kapurthala  held properties outside the territory of Kapurthala, say, for example, in  Mussoorie and Delhi. Even with regard to these properties, the Government  took a decision as to their character and whether they could be recognised as  private property of the Ruler. As to Delhi property, the Government of India  decided that it would be treated as State property and in the case of  Mussoorie property, half of it to be treated as State property and half of it to  be treated as private property of the Maharaja of Kapurthala.  Further, we  find that Article VI of the Covenant dated 5.5.1948 vests "all" the assets and  liabilities of the covenanting States in the Union of PEPSU and makes  exception only with regard to private properties as contemplated by Article  XII.  There is no reference whatsoever therein to the situs of the property.   The covenant, therefore, drew a distinction only between State property and  private property of the Ruler irrespective of where the property was situated.   In our view, any further dispute with regard to the interpretation of this  clause of the covenant would again be beyond the jurisdiction of the court  by reason of Article 363 of the Constitution of India.

       In the result, we uphold the findings of the Division Bench of the  High Court that the suit was not maintainable.

Article 77 of the Constitution of India:         The contention based on Article 77 of the Constitution of India, urged  by the learned counsel for the appellants, also does not have merit. The  contention is that all orders and other instruments made and executed in the  name of the President are required to be authenticated in the manner as  specified in Article 77.  That the order, if any, of the Government of India,  not to recognise the suit property as the private property of the Maharaja,  was not executed in this manner and, therefore, is invalid.  The judgment of  this Court in State of Rajasthan and anr.  v.  Sripal Jain   and L.G.  Chaudhari  v.  The Secretary, L.S.G. Dept., Govt. of Bihar and Ors.   were pressed into service in support.   

In our view, the argument based on Article 77 is irrelevant.  Even  assuming that the appellants are right in the contention that the decision not  to recognise the suit property as private property of the Maharaja of  Kapurthala, was required to be and not taken in the manner contemplated by      Article 77, it would only mean that there was no decision. In our judgment,  the plaintiff cannot succeed by merely showing that the Government of  India had failed to arrive at a decision on the issue. He must further show  that the Government of India had recognised the suit property as private  property of the Ruler of Kapurthala as that could be the only foundation for  his title. There is also another reason why we are not impressed with this  argument. If the act of recognition or non-recognition of the suit property as  private property is relatable to the instrument of accession made in 1947 and  the covenant executed in 1948, the decision would also relate back to the  date of the covenant, and on that date Article 77 of the Constitution was not  in existence.  Hence, it would be incorrect to judge the validity of that  decision relatable to the covenant executed in 1948 by the Constitution of  India, which came into existence much later.

Article 372 of the Constitution of India:

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       The appellants, relying on the judgment in Vishnu Pratap Singh  v.   State of Madhya Pradesh & Ors. ,   contend that the Ruler of Kapurthala  was an absolute sovereign, who could by his command change the character  of the property from State property to private property, which he did by his  commands of 1940 and 1948; that these commands had the force of law and  continued to operate as ’existing law’ by reason of Article 372 of the  Constitution of India;  and they could only be revoked by a law validly  made by Parliament and not by an executive act.   

The argument, undoubtedly, allures at first blush; but, it fails when  scrutinized. In the first place, Vishnu Pratap Singh (supra) relied on and is  based on the ratio of  Virendra Singh (supra).  Vora Fiddali, a decision of  Seven learned Judges, expressly overruled the principle laid down in  Virendra Singh (supra). Consequently, Vishnu Pratap Singh (supra)  cannot be said to be  good law.  In any event, the test laid down in Vora  Fiddali, if applied to the commands in question (even assuming they have  been proved), is answered negatively.  The learned Single Judge was correct  in saying that 1948 command did not amount to law. Even assuming the two  commands of 1940 and 1948 were proved, they would not amount to law,  by applying the test laid down in Vora Fiddali (supra).

       Learned counsel for the appellants placed strong reliance on the  judgment in State of Punjab & Ors.  v.  Brigadier Sukhjit Singh   which,  incidentally, is the case of the third defendant himself pertaining to  Kapurthala State.  Strong reliance is placed on the observations in Paragraph  11 of the judgment:  "Now it is beyond doubt that the ruler of an Indian State  was in the position of a sovereign and his command was  the law. His Farman had the strength and potency of a  law made by an elected legislature and his acts,  administrative or executive, were sovereign in character."  

This judgment would be binding inter parties as far as what it decides. If it is  cited as a precedent on a proposition of law, we are afraid that this judgment  runs counter to what had been laid down by the majority judgment in Vora  Fiddali (supra) and, what is more, strangely, does not refer to Vora Fiddali.  In the teeth of Vora Fiddali, we are unable to accept  the cited judgment as  reflecting the correct position of law.    

Limitation:

       That brings us to the issue of limitation.  The learned Single Judge  held that the plea of limitation not having been taken in the pleadings  defendants Nos. 1 and 2 should not be allowed to raise the said plea.  

We may notice here that under the Code of Civil Procedure, Order  VII Rule 1(e) requires a plaint to state  "the facts constituting the cause of  action and when it arose". The plaintiff was bound to plead in the plaint  when the cause of action arose.  If he did not, then irrespective of what the  defendants may plead in the written statement, the court would be bound by  the mandate of Section 3 of the Limitation Act, 1908 to dismiss the suit, if it  found that on the plaintiff’s own pleading his suit is barred by limitation.   In  the instant case, the plaint does not plead clearly as to when the cause of  action arose. In the absence of such pleadings, the defendants pleaded  nothing on the issue. However, when the facts were ascertained by evidence,  it was clear that the decision of the Government of India not to recognise the  suit property as private property of the Maharaja was taken some time in the  year 1951, whether in March or May.  Dewan Jarmanidass, the plaintiff and  the Maharaja were very much aware of this decision. Yet, the suit was filed  only on 11.5.1960.          The Division Bench was, therefore, right in applying Article 120 of  the Limitation Act, 1908 under which the period of limitation for a suit for  which no specific period is provided in the Schedule was six years from the

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date when the right to sue accrues.  The suit was, therefore, clearly barred by  limitation and by virtue of Section 3 of the Limitation Act, 1908, the court  was mandated to dismiss it.

       As rightly pointed out by the Division Bench, the learned Single  Judge ought to have permitted the plea to be raised on the basis of the facts  which came to light.  The Division Bench has correctly appreciated the plea  of limitation, in the facts and circumstances of the case, and rightly came to  the conclusion that the suit of the plaintiff was liable to be dismissed on the  ground of limitation.  We agree with the conclusion of the Division Bench  on this issue.

Alternative Relief:         The last issue which needs consideration relates to the alternative  relief prayed for by the plaintiff in Paragraph 16 of the plaint. The plaintiff   pleaded that in case the court came to the conclusion that the Maharaja  Paramjit Singh had no authority to sell the immovable property to the  plaintiff and Dewan Jarmani Dass and/or that the plaintiff and the said  Dewan Jarmani Dass did not acquire any title to the suit property by virtue  of the Indenture of Conveyance dated 10.1.1950, then the plaintiff was  entitled to a sum of Rs. 4 lacs as damages from the third defendant      (Sukhjit Singh, the then Maharaja of Kapurthala), for "breach of  the  covenant of title contained in the said indenture of conveyance" as a result  of which the plaintiff would be deprived of the whole of the suit property by  reason of the said defect found in the title of the Maharaja Paramjit Singh.   It was pleaded that the third defendant was the sole heir of late Maharaja  Paramjit Singh and had inherited all his properties and was, thus, bound and  liable to keep the plaintiff harmless and indemnified against "all losses,  damages costs and expenses which the plaintiff might sustain or incur by  reason of the plaintiff being deprived of the suit property." The plaintiff  alleged that he had sustained damages in the sum of Rs. 4 lacs "as per  particulars hereto annexed and marked as Ex. J."  and claimed the said  amount from defendant No. 3.  Interestingly, there is no annexure \026 ’Ex.J.’   to the original plaint on record.  The third defendant by his written statement  while traversing the allegations on this issue maintained that he was not  liable to keep the plaintiff indemnified   against such losses. He also denied  that the plaintiff had lost a sum of Rs. 4 lacs as alleged in his annexure-  Ex.J., the particulars of which he also denied having been supplied to him.   A replication to the written statement of Defendant No. 3 was made by the  plaintiff in which it is repeated that the third defendant was bound and liable  to keep the plaintiff indemnified against any loss, damage, costs etc.  suffered as a result of deprivation of the suit property. The plaintiff  reiterated that the third defendant was liable for the claim in the suit and that  "the particulars of the claim of 4 lakhs are on the court file as Annexure ’J’  and the Defendant No. 3 ought to have inspected the court file".  After  anxiously wading  through the mass of documents filed in the trial court, we  are unable to locate any such annexure \026’J’ in the plaint.  It is not known as  to how the plaintiff arrived at the estimate of the alleged damages claimed  by him from third defendant as an alternative relief (vide prayer clause (e) in  the plaint).

       Not only there is no pleading on the issue, but we find that there is no  evidence, whatsoever, let in by the plaintiff on this alternative relief  claimed. All the witnesses examined by the plaintiff were with reference to  the title of the plaintiff. Not a single of the plaintiff’s witnesses has said a  word about this alternative claim for damages in the sum of Rs. 4 lacs.   Apart therefrom, when  the third defendant was examined, not a single  question seems to have been addressed to him in cross examination with  regard to this alternative claim of damages in the sum of Rs. 4 lacs.

Issues 9, 10 and 13 framed by the learned Single Judge pertained to  this claim. The learned Single Judge disposed of this claim by observing:

"It has been stated by defendant No. 3, in his evidence,  that he is the only legal heir of his father Maharaja

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Paramjit Singh and he had succeeded to the estate left  behind by him.  But in view of the fact that I have held  that the father of defendant No. 3 was the owner of the  property in dispute and had the authority to sell the same,  therefore the question of defendant No. 3 becoming liable  to re-compensate the plaintiff with any amount does not  arise. The issues are decided accordingly."

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

"The learned Single Judge took the view that third  defendant was not liable to recompensate the plaintiff. It  was not brought to the notice of the learned Judge that  the plaintiff did not press his claim against defendant No.  3 at the time of the trial."

       Although, in the written submissions filed before the High Court as  well as in the appeal before this Court, submissions have been made with  regard to the alternative relief, no arguments were addressed before us on  this issue when the oral submissions were made by the counsel on both  sides.  Despite looking for it, we are unable to locate anything on record  which expressly suggests that this claim had been expressly given up by the  plaintiff during the trial.  We are unable to find out the basis on which the  Division Bench arrived at this conclusion. This fact, however, does not carry  the case of the plaintiff any further. The burden of establishing that the  plaintiff had sustained damages and the measure of damages was squarely   on the plaintiff. The plaintiff has singularly failed to discharge this onus  both by lack of pleadings and lack of evidence.  In the circumstances, this  alternative relief claimed by the plaintiff must fail.

       In the result, we find no reason to interfere with the impugned  judgment of the Division Bench of the High Court. The appeal is liable to be  and is dismissed.

In the facts and circumstances of the case, however, there shall be no  order as to costs.

Civil Appeal No. 3861 of 2001:         The facts, insofar as they are relevant for disposal of this appeal are as  under:         On 10.1.1950, the late Maharaja Paramjit Singh, ex-Ruler of  Kapurthala State purported to sell and convey the suit property to Dewan  Jarmani Dass and R.M. Seksaria by a registered sale deed for the  consideration of Rs. 1.50 lacs.

       We have already held, by our judgment delivered today in Civil  Appeal No. 3862 of 2001, that Maharaja Paramjit Singh had no title to the  suit property which he could convey to the plaintiff.  After purporting to sell  the suit property to M/s Dewan Jarmani Dass and R.M. Seksaria, the  petitioners put them in possession.   

On 29.3.1950, the Government of India, in exercise of its power  under Section 3 of the Delhi Premises (Requisition and Acquisition) Act,  1947, issued a notice of requisition to R.M. Seksaria.  This was objected to  by R.M. Seksaria, but ultimately an order of acquisition of the suit properlty  was passed on 17.6.1950.                   On 4.12.1950, pursuant to the said order of requisition the Estate  Officer took possession of the suit property.

On 21.2.1951, a deed of transfer was signed between Dewan Jarmani  Dass and R.M. Seksaria by which Dewan Jarmani Dass conveyed,  transferred his undivided share, rights, title and interest in the property to  R.M. Seksaria. There was correspondence between R.M. Seksaria and the

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

       On 14.3.1952, the Delhi Premises (Requisition and Acquisition) Act,  1947 was repealed by the Requisitioning and Acquisitioning of Immovable  Property Act, 1952.  Section 24 of the new Act made a deeming provision  under which the properties requisitioned under the repealed Act were  deemed to have been requisitioned under the new Act.  

       On 11.5.1960, R.M. Seksaria (the plaintiff) filed a suit in the Delhi  High Court for declaration of his title to the suit property.   

       The Government of India had taken a decision that the suit property  had been refused to be recognised as the private property of the late  Maharaja of Kapurthala. It took the stand that the suit property was State  property and  devolved upon PEPSU, and thereafter, on its successor, State  of Punjab.  In the meanwhile, the Government of India had allowed the State  of Punjab to use the property.   

By 10.3.1987 the requisitioning of the property came to an end.  By  this time, however, there was a suit for declaration of title of the property.   The State of Punjab and the Government of India denied that R.M. Seksaria  had derived any title to the suit property, and, therefore, refused to hand it   back to R.M. Seksaria, despite the requisitioning order having come to an  end.   

       On 18.5.1987,  R.M. Seksaria filed a writ petition, CWP No. 1612/87  in the High Court of Delhi for a direction to the Union of India, the Director  of Estate, Ministry of Urban Development and the State of Punjab to give  vacant possession of the suit property to the petitioners. This writ petition  was heard along with the first appeal RFA (OS) No. 19 of  1989 filed by the  State of Punjab and Union of India impugning the decree in favour of the  plaintiff which had been made by the learned Single Judge.  When the writ  petition was taken up for hearing, the learned counsel appearing for the  petitioners and the present civil appeal fairly submitted to the court that, if  the court accepted the case of the plaintiff, then the petitioners would be  entitled to the reliefs prayed for in the writ petition.  By its judgment dated  8.12.2000, the Division Bench of the High Court dismissed the writ petition  by observing thus in Paragraph 4:

"In the light of the findings rendered by us in RFA(OS)  19/89 the plaintiff has no right at all in the suit property,  the petitioners as legal representatives of the plaintiff in  the suit, have absolutely no right to pray for the issuance  of writ of mandamus and other reliefs."

This decision of the Division Bench can hardly be faulted. We see no  reason to interfere.  In the result, this appeal is also dismissed.

       No order as to costs.