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PETITIONER: RAJ KUMAR RAJINDER SINGH

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH AND OTHERS

DATE OF JUDGMENT20/07/1990

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) RANGNATHAN, S.

CITATION:  1990 AIR 1833            1990 SCR  (3) 469  1990 SCC  (4) 320        JT 1990 (3)   215  1990 SCALE  (2)95

ACT:     Himachal Pradesh Private Forest Act, 1954: Section 2(b), 4 and 11--State Government--Whether entitled to issue  noti- fication declaring private land as forest land.     Indian  Forest Act, 1927--Section 29:  Applicability  to ’private forests’.     Indian  Evidence Act: Section 92: Claim based  on  docu- ment-Whether oral evidence permissible to guide the Court in regard to intention of parties.

HEADNOTE:     The  plaintiff/appellant is the second son of late  Raja Padam  Singh,  the  ex-ruler of Bushahr  State  in  Himachal Pradesh.  The erstwhile Ruler of Bushahr had sought the  aid of  the British Government in the management of his  forests with  a  view to preserving, conserving and  protecting  the same from large-scale illicit and indiscriminate cutting  of trees. Pursuant to this request, an agreement of lease dated 20th  June, 1864 was executed between the said Raja and  the British Government. The terms of this agreement were revised in  1877 and again 1928. Before the expiry of  its  extended term,  another agreement of lease was executed between  Raja Padam Singh and the Government of Punjab on 25th  September, 1942 superseding all previous agreements. By clause (III) of this agreement the Raja granted to the Punjab Government the entire and sole control of the forests of Bushahr  excepting those  reserved for his use under clause (II)  thereof.  The Raja  was  to receive in lieu thereof an annual  payment  of Rs.1  lakh, and further payment of the whole net surplus  on the working of the forests included in the lease.     Raja  Padam Singh executed a document on 28th  November, 1942  whereby be bestowed upon the plaintiff and his  mother land admeasuring about 1720 acres, both measured and unmeas- ured. The original document, called the Patta, was admitted- ly lost during the minority of the appellant. The patta had, however,  been  referred  to in the  subsequent  two  grants executed  by the Raja on 11th March 1943 and  lOth  December 1946. After the execution of the first grant or patta the 470 plaintiff’s  father  had made an Order  No.  5158  directing corresponding mutation changes. The mutation entry,  besides

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mentioning the area of 263.4 bighas, also speaks of ’part of uncultivated ’Jagir’. Subsequently, in September, 1959,  the plaintiff’s forests were notified as ’private Forests’ under section 4 of the Himachal Pradesh Private Forests Act, 1954. But in July, 1960 the State Government annulled the  notifi- cations on the ground that they were erroneously issued  and that  the  lands in fact belonged to  the  Himachal  Pradesh Administration.     The plaintiff filed a suit on 18th November, 1964 for  a declaration  his proprietary rights in about 1720  acres  of forest  land,  both  measured and  unmeasured.  The  learned Single Judge substantially decreed the suit.     The  learned single Judge held that (i) the  plaintiff’s father,  who in internal matters had sovereign  powers,  had bestowed  the lands in dispute as a perpetual  and  uncondi- tional  grant on the plaintiff; (ii) the mere fact  that  in the  mutation entry the areas was shown to be  263.4  bighas did  not imply that the grant was limited to that much  land only; (iii) in the State of Bushahr only cultivated land was generally  measured  and forest lands  remained  unmeasured, and, therefore, the area of only revenue yielding cultivated land was mentioned in the mutation entry; (iv) the evidence, considered as a whole, fully established that the grant  was not  rependiated  but was given effect to by  the  Political Agent,  Simla,  as  well as by the  revenue  authorities  of Bushahr  State  and was also recognised by the  Dominion  of India  at the time of the State’s merger; (v) even  assuming that  the lands in dispute formed part of forests leased  to the  Government of Punjab, the Raja was not  precluded  from making the grant and the grants made in favour of the plain- tiff  were perfectly legal and valid; (vi) after  the  lease was  terminated  on 11th April, 1949, the  Himachal  Pradesh Administration  treated the plaintiff as the owner and  per- mitted  him various acts as owner and person in  possession; (vii)  notifications  were  issued under Section  4  of  the Himachal  Pradesh Act, 1954 declaring the disputed  land  as private  forests; and (viii) the notification  issued  under section 29 of the Indian Forest Act, 1927 had no application to such lands.     The  Division  Bench, allowing the State  appeal,  inter alia  took  the view that after the execution of  the  lease deed dated 25th September, 1942 in favour of the  Government of Punjab, the Raja had no surviving or subsisting right  in the forest lands in question which he could transfer by  way of  a  grant; at the most the grant made  by  the  erstwhile ruler could take effect in respect of revenue yielding lands only, admeasuring 471 about 263.5 bighas, and not in respect of the forest  lands; and  that  the notification under section 29 of  the  Indian Forest  Act  was validly issued and so long as it  held  the field,  no notification could be issued under section  4  of the Himachal Pradesh Private Forests Act, 1954. Allowing the appeal, this Court,     HELD:  (1)  The plaintiff’s father had a  surviving  and subsisting  right  in  the forest lands  which  the  subject matter  of  the  lease dated 25th September,  1942  and  was competent to grant the same to the plaintiff or anyone else, albeit subject to the terms of the lease. [486C]     (2)  The paramount object of the lease was  to  conserve the forests of Bushahr State. By concluding the lease agree- ment with the Punjab Government, the Raja did not convey all his rights, title and interest in the leased forest lands to the Government. All that he did was to transfer the  control and management of the forests to the Punjab Government  with

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a view to preserving and conserving the forests. He  however retained  his proprietary interest in the forest lands.  Had it  been the intention of the Raja to divest himself of  all his  interests  in the forest lands, there was  no  need  to provide  the  duration of the lease on  the  expiry  whereof (unless the renewal clause was invoked) the Raja would  have a right of re-entry. [485G-H; 486A]     (3)  The  lease  provided that in addition  to  the  two half-yearly installments of Rs.50,000 each, the Raja was  to receive payment of "whole net surplus" on the working of the forests included in the lease. This was consistent only with the  position that the Raja retained his proprietary  inter- ests in the forest lands. [486A-B]     (4) If the terms of the document are clear and unambigu- ous,  extrinsic evidence to ascertain the true intention  of the  parties is inadmissible because section 92 of the  Evi- dence Act mandates that in such a case the intention must be gathered from the language employed in the document. But  if the  language employed is ambiguous and admits of a  variety of  meanings, it is settled law that the 6th proviso to  the section can be invoked which permits tendering of  extrinsic evidence  as to acts, conduct and surrounding  circumstances to  enable the Court to ascertain the real intention of  the parties. [491B-C]     In  such  a case the subsequent conduct of  the  parties furnished  evidence to clear the blurred area and to  ascer- tain  the  true  intention of the author  of  the  document. [491D] 472     Abdulla Ahmed v. Animendra Kissen Mitter, [1950] SCR 30, referred to.       Since the words ’part of the uncultivated Jagir’  were ambiguous,  extrinsic  evidence  allunde  the  grant  became necessary to explain the coverage of those words. [492A]     (6)  There is intrinsic evidence to show that the  grant was  not limited to only the revenue yielding area of  263.4 bighas. If by the grant the Raja intended to grant only  the revenue yielding area of 263.4 bighas, there was no need  to mention  ’and  part of uncultivated Jagir’ and  these  words would  be rendered redundant. The subsequent conduct of  the parties lends support to this view. [488H; 489A]     (7)  From the various documents placed on record  it  is quite clear that the disputed forests did not belong to  the Government  nor  did  the Government  have  any  proprietary rights  therein. The Government was also not  ’entitled’  to the whole or any part of the produce in its own right dehors the lease. [493C]     (8) The word ’entitled’ in the context of section 29  of the  Indian Forest Act must take colour from  the  preceding words  and  must be understood to mean that  the  Government must have an independent claim or right to collect and  deal with  the same subject to an obligation to account  for  the same to the owner. On that account the State was not  ’enti- tled’ to the forests produce from such private lands. There- fore, the notification issued under section 29 could have uo application  to such private forests. The  State  Government was,  therefore,  competent to issue the  two  notifications under section 4 of the Himachal Pradesh Private Forest  Act, 1954  and  it  was not justified in annulling  them  on  the erroneous premise that the said lands belonged to the  State Government. [493F; 494F-G]

JUDGMENT:

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   CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2966  of 1979.     From  the  Judgment and Order dated 31.12. 1977  of  the High Court of Himachal Pradesh in R.F.A. No. 7 of 1970.     F.S.  Nariman, V.A. Bobde, S.D. Mudaliar and  C.K.  Rat- naparkhi for the Appellant. K.G. Bhagat, Naresh K. Sharma for the Respondents. 473 The Judgment of the Court was delivered by     AHMADI,  J.  This appeal by special  leave  is  directed against the judgment of the Division Bench of the High Court of  Himachal Pradesh in Regular First Appeal No. 7  of  1970 arising out of Suit NO. 11 of 1987. The  appellant--original plaintiff--is  the second son of late Raja Padam Singh,  the ex-ruler of Bushahr State. He filed a suit on 18th November, 1964 principally against the Union of India and the  Govern- ment of the Union Territory of Himachal Pradesh for a decla- ration  of  his proprietary rights in about  1720  acres  of forest land situate in Khatas Nos. 1 & 2, Khataunis Nos.1 to 25  comprising  106  plots, both  measured  and  unmeasured, bearing   Khasra   Nos.   1,  2,  6,   23,   30,   34,   44, 108,218,222,309,341,409,479,606,433,241,732/280, 736/394 and 728/402 of Chak Addu, tehsil Rampur, in the present district of  Mahasu in Himachal Pradesh. He traced his title  to  the said lands to a Patta executed by his father on 14th  Maghar 1999,  Bikrami,  i.e. 28th November 1942 A.D.,  and  to  the Order No. 5158 of even date directing corresponding mutation changes.  In  the said suit Choudhary Gopal Singh &  Co.,  a forest contractor, was added as proforma defendant No. 3 but no relief was claimed against the said party. The said  suit was filed on 18th November, 1964 in the Court of the  Senior Sub-Judge,  Mahasu, but on the upward revision of  the  suit valuation  for the purposes of court fees  and  jurisdiction the plaint was presented   the High Court of Delhi, Himachal Bench,  Shimla, and was re-numbered as Suit No. 11 of  1967. The  said  suit was tried on the original side of  the  High Court  by  Jagjit Singh, J. who by his  judgment  and  order dated  6th  April, 1970 substantially decreed the  suit,  in that,  he upheld the appellant--plaintiff’s claim of  owner- ship in respect of Khatas Nos. 1 & 2, Khataunis Nos. 1 to 25 comprising  106 plots bearing khasra Nos. 1, 2, 6,  23,  30, 34, 44, 108, 2 18,222,309, 341,409,606, 4 and 33 situate  in Chak  Addu without prejudice to the application, if any,  of Section  27 of the Himachal Pradesh Abolition of Big  Landed Estates  and Land Reforms Act, 1953. The contesting  defend- ants  Nos. 1 and 2 preferred an appeal, being Regular  First Appeal No. 7 of 1970, before the Division Bench of the  High Court  which came to be allowed on 31st December, 1977.  The Division Bench came to the conclusion that the grant made by the erstwhile ruler was in respect of revenue yielding lands only  admeasuring about 263.4 bighas and not in  respect  of the forest lands. It, however, took the view that after  the execution  of  the lease-deed dated  25th  September,  1942, Exh.D-1, in favour of the Government of Punjab, the Raja had no subsisting right in the forest lands in question which he could transfer by way of a grant. In that view of the matter the appeal was allowed and the suit of the 474 plaintiff  was  dismissed  in toto  with  costs  throughout. Feeling  aggrieved  by  the said judgment  and  decree,  the original  plaintiff  has preferred this  appeal  by  special leave under Article 136 of the Constitution. For the sake of convenience  we will refer to the parties by their  original position and description in the suit. We now proceed to  set out the relevant facts.

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   The  Raja of Rampur--Bushahr had sought the aid  of  the British  Government in the management of his forests with  a view to preserving, conserving and protecting the same  from large-scale  illicit  and indiscriminate cutting  of  trees. Pursuant to this request an agreement dated 20th June,  1864 was  executed between the said Raja and the British  Govern- ment whereunder a fixed royalty was agreed to be paid to the former.  By a subsequent agreement dated 1st  August,  1871, the  Raja granted his rights in waif and windfall timber  to the British Government in consideration of certain  payments agreed  upon  under the said agreement. The  terms  of  both these  agreements were revised in 1877 whereby  the  British Government agreed to pay a fixed annual sum to the Raja on a fifty  years’  lease renewable at the will  of  the  British Government.  This  arrangement was further revised  in  1929 w.e.f. 1st November, 1928 for a period of twenty five  years on agreed terms as to payments, etc. During the  subsistence of  the  said agreement, the parties  executed  yet  another agreement of lease dated 25th September, 1942, Exh. D-1, for a term of fifty years w.e.f. 1st April, 1941 superseding all previous  agreements.  Under clause (II) thereof,  the  term ’forest’  was  defined to mean and  include  (a)  demarcated forests;  (b) forests reserved for the use of the Raja;  and (c)  undemarcated  forests. Demarcated  forests  were  those which  were defined and stated as demarcated forests in  the forest  settlements  of Bushahr State  whereas  undemarcated forests included (a) all tracts of land bearing tree  growth or  from which the trees were felled and which paid no  land revenue  as  cultivated land to the Bushahr State;  and  (b) such  other tracts of land, cultivated or  uncultivated,  as with  the  previous sanction of the Raja were from  time  to time  included in the existing undemarcated forests or  were declared to be undemarcated forests. By clause (III) of  the said  document,  the Raja granted to the  Punjab  Government ’the entire and sole control of the whole of the forests  of Bushahr  excepting those reserved for the use of the  Raja’. The  Raja was to receive an annual payment of Rs. 1 lakh  to be  paid in two equal half-yearly installments of  Rs.50,000 on 30th April and 3 1st of October of each year. In addition to  the said amount of Rs. 1 lakh he was to receive  payment of  the  whole  net surplus on the working  of  the  forests included  in the lease. Thus, according to clause  (III)  of the lease 475 agreement  the  Raja granted to the  Punjab  Government  the entire and sole control of the forests of Bushahr, excepting those reserved for his use under clause (II) thereof.     Under Section 1 of the Indian Independence Act, 1947, as from  15th August, 1947, two independent Dominions of  India and  Pakistan came to be set up. By virtue of section 4  the Province  of the Punjab as constituted under the  Government of India Act, 1935, ceased to exist and the same was  recon- stituted  into  two new Provinces of West  Punjab  and  East Punjab. In section 7(1) were set out the consequences of the setting up of the two Dominions, Paragraph (b) whereof  said that  ’the suzerainty of His Majesty over the Indian  States lapses, and with it, all treaties and agreements in force at the date of passing of this Act between His Majesty and  the rulers of Indian States’. The plaintiff’s father Raja  Padam Singh  having  died in April 1947, his eider son  Tikka  Vir Bhadra Singh born to his first wife Shanta Devi succeeded to the Gaddi under the rule of primogeniture but since he was a minor a council for the administration of Bushahr State  was set up to mind the affairs of the State. On 15th April, 1948 an  agreement of merger was signed whereby the Raja  of  Bu-

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shahr  ceded  to the Dominion of India ’full  and  exclusive authority,  jurisdiction and powers for and in  relation  to the governance of the State’. A centrally administered  unit of Himachal Pradesh came into being on that day. The  agree- ment of lease dated 25th September, 1942 was formally termi- nated by mutual agreement between the East Punjab Government and the Himachal Pradesh Administration on 1st April, 1949.     While the forests of Bushahr were under the control  and management  of the Government of Punjab, Raja  Padam  Singh, the  plaintiff’s father, executed a document on 14th  Maghar 1999. Bikrami (i.e. 28th November, 1942) whereby he bestowed upon  the plaintiff and his mother Rani Sahiba Katochi  land admeasuring about 1720 acres. This original document  called the  Patta  was admittedly lost during the minority  of  the plaintiff,  vide statement of counsel for defendants Nos.  1 and 2 dated 29th May, 1969. However, the factum of the grant cannot be disputed as it has been referred to in the  subse- quent two grants executed by the plaintiff’s father on  29th Phagun  1999, Bikrami (i.e. 11th March, 1943--Exh. P-2)  and 24th  Maghar 2003, Bikrami (i.e. 10th  December,  1946--Exh. P-1). These two subsequent grants Exh. P-1 and Exh. P-2 have been proved through the evidence of the scribe’ PW 1  Thakur Chet  Ram.  By the execution of the third grant  dated  24th Maghar  2003,  Bikrami, the half share granted to  the  Rani Sahiba Katochi under the first grant of 14th Maghar 1999, 476 Bikrami,  was  transferred to the plaintiff  with  the  Rani Sahiba’s consent. Thus, the plaintiff became the sole  gran- tee  of the entire area of 1720 acres but as he was a  minor his  interest was looked after initially by his  father  who expired  in  April 1947 and thereafter by  his  mother  Rani Sahiba Katochi as his natural guardian. After the  execution of  the first grant of patta the plaintiff’s father made  an Order  No. 5158 of even date directing his revenue  officers to effect consequential changes in the mutation. Exh. P-6 is a  copy of the mutation entry which contains  the  following endorsement: "According  to  Shri Sarkar’s order No. 5158  dated  14.7.99 (equivalent to 28th November, 1942), the mutation,  granting permanent  ownership, without condition, of  khata  khatauni Nos.  1/1 to 20 and 2/21 to 25, plots 106,  measuring  263.4 (219.7 plus 43.17) and part of uncultivated Jagir the  reve- nue  and  swai of which has been remitted is  sanctioned  in favour  of Rani Sahiba Katochi and Rajkumar  Rajinder  Singh Sahib in equal shares in its present form." The  mutation  entry Exh. P-6 does not  mention  the  khasra numbers  of  the  106 plots. Khata khatauni No.  1/1  to  20 comprise  82 plots showing an area admeasuring 219.7  bighas as cultivated and 200.8 bighas as uncultivated whereas khata khatauni  No. 2/21 to 25 comprise 24 plots showing  an  area admeasuring  5.6  bighas as cultivated and 38.11  bighas  as uncultivated.  The  mutation entry, besides  mentioning  the area  of 263.4 bighas, also speaks of ’part of  uncultivated Jagir the revenue and swai of which has been remitted’. Even according to the Division Bench of the High Court it is  not in  dispute that the measurement of 106 plots is  much  more than  263.4 bighas. This stands corroborated by the note  of Mr.  Raina, the then Conservator of Forests,  Shimla  Circle dated  24th  July, 1960 which discloses  that  the  disputed plots  over which the plaintiff has made a  claim  admeasure about  1819 acres. By the second grant of 29th Phagun  1999, Bikrami,  the plaintiff’s father granted certain  additional land, namely, Basa Sharotkhala Pargana Bhatoligarh,  jointly to  the plaintiff and his mother Rani Sahiba  Katochi.  This grant refers to the first grant of 14th Maghar 1999,  Bikra-

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mi.  The third grant of 24th Maghar 2003, Bikrami, was  exe- cuted  by the plaintiff’s father with a view to  making  the plaintiff the sole beneficiary under the first two grants by deleting the name of Rani Sahiba Katochi as a joint  grantee with her consent. There is no dispute that under the  afore- said  three grants taken together the  properties  mentioned therein were bestowed upon the plaintiff exclusively and the Rani  Sahiba Katochi had no share therein, nor did  she,  at any 477 time, make a claim thereto. After the execution of the third grant an order No. 258 dated 3rd December, 1946, Exh. P- 14, was  made by the plaintiff’s father directing that  all  the lands  and  ’bases’ granted under the Patta of  24th  Maghar 2003, Bikrami, exclusively to the plaintiff should be  shown in his sole name in the records by deleting the name of Rani Sahiba  Katochi  therefrom. On the death of  the  plaintiffs father  in  April  1947, the Political  Agent,  Punjab  Hill States,  Shimla, wrote a letter Exh. P-50 dated 9th  August, 1947 expressing dissatisfaction with the  non-implementation of the Patta and directed speedy implementation thereof.  In paragraph 3 of the said letter it was stated as under: "There is only one point for decision and that is the valid- ity  of the patta dated 19th December, 1946 granted  by  the late  Raja  Padam Singh. The Committee have  not  questioned this  and I, therefore, take it to be the true will  of  the late  ruler. The provision of the Patta are quite clear  and reasonable, so 1 order the division of the private property, both  movable and immovable, in accordance with  its  terms, that  is to say the possession of the immovable property  of the  late  Ruler  specified in the Patta shall  at  once  be mutuated  in favour of Rajkumar Rajinder Singh and given  in trust  to  Rani  Sahiba  katochi  on  behalf  of  her  minor son  .....  ". The  grant  was ultimately given effect to be  the  mutation entry  No.2299  dated  17/18-12-2003,  Bikrami,  Exh.  P-13. Unfortunately,  the  plaintiff’s  mother who  acted  as  his guardian  after the death of her husband in April 1947  also passed  away shortly thereafter on 22nd July, 1949  necessi- tating the Court of Wards to step-in since the plaintiff was still  a minor. While the plaintiff’s estate was  under  the Superintendence  of the Court of Wards a list of his  Jagirs was  prepared. This list Exh. P-18, which is in  respect  of tehsil  Ramput,  describes  the disputed  khasra  Nos.  341, 108,222,  34, 479,606 and 4 as unmeasured and forest  lands. On the plaintiff attaining majority his estate was  released w.e.f. 1st April, 1956 from the Superintendence of the Court of  Wards  under the Financial  Commissioner’s  notification dated  24th March, 1956. Owing to the existence  of  certain pillars of the forest department within the areas  belonging to  the plaintiff, the plaintiff made a representation  Exh. P-25 for the removal of the said pillars from his lands.  As a  result of this representation, joint demarcation  reports dated 24th June 1958, Exh. P-5, and 9th December, 1958, Exh. P-8,  were made which disclosed that the dispute related  to the  boundary in compartment 8-b only but no final  decision could be taken 478 as some difference of opinion persisted between the officers of  the  forest  department in this  behalf.  The  plaintiff thereafter made a further representation dated 11th  August, 1959,  Exh. D-2, claiming compensation for the trees cut  by the  forest department during his minority when  the  estate was  under the Superintendence of the Court of Wards.  As  a sequel to this representation Mr. Raina, the Conservator  of

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Forests, wrote a letter dated 27th May, 1960 marked  secret, Exh.  D-3/4,  wherin he stated that the first  class  forest compartments  10A (Part, 10B (Part), 9A, 9B, 9C and 8C  were the  property of the forest department and the  question  of demarcation  of  these  forests did not  arise.  He  further pointed out that if the possession of these compartments  is transferred  to  the plaintiff the department will  have  to undergo a loss of Rs. 18.75 lakhs. Lastly, he warned that if the plaintiff’s claim is accepted numerous such claims  will be  made by the villagers because of similar entries in  the revenue  records. He thought that this was a test  case.  He followed this up by his note dated 24th July, 1960, Exh.  D- 3/6,  wherein he reiterated that except for 263.4 bighas  of revenue yielding land the claim of the plaintiff in  respect of the remaining 1719 acres was fantastic. He strongly urged that  the plaintiff’s claim should be rejected outright  and he  and his contractor, defendant No. 3, should not  be  al- lowed to lift the timber of the trees which he was permitted to cut from khasra Nos. 341,606, 222 and 34 under the letter No.  Ft/43-124/VI dated 29th February, 1959. Thereafter  the Divisional  Forest  Officer by his  letter  No.  C-II-37/810 dated  25th May, 1960 informed the plaintiff  and  defendant No. 3 that the timber felled in compartment 9C should not be removed and no further felling of trees should take place in compartments  8C,  9A, 9B and 10A (Part) and lOB  (Part)  in khasra No. 341. By a subsequent letter No. CII-37/1181 dated 2nd  August, 1960 the plaintiff was informed that the  trees felled  in compartments 9B and 9C were  Government  property and could be removed on payment of Rs.3,05,811.70. An amount of  Rs.3,36,000 was later deposited pending finalisation  of the dispute.     Certain  statutory developments which took place in  the meantime  may  now be noticed. On 25th  February,  1952  the Government  of Himachal Pradesh issued a Notification  under Section 29 of the Indian Forest Act, 1927 declaring that the provisions  of Chapter IV of the said enactment shall  apply to  all  forest lands and waste lands  in  Himachal  Pradesh which  are the property of the Government or over which  the Government has proprietor rights or to the whole or any part of  the  produce of which the Government is  entitled.  This enactment  deals  with (i) Reserved  Forests,  (ii)  Village Forests and (iii) Protected 479 Forests.  Chapter II comprising Sections 3 to 27 deals  with Reserved  Forests,  Chapter III which consists of  a  single section 28 refers to Village Forests and Chapter IV compris- ing  Sections 29 to 34 conncerns Protected Forests.  Section 29(1) empowers the State Government to apply the  provisions of Chapter IV to any forest land or waste land which is  not included  in the Reserved Forests but which is the  property of the Government, or over which the Government has proprie- tory  rights,  or  to the whole or any part  of  the  forest produce  of which the Government is entitled.  According  to sub-section (2) such forest land and/or waste land comprised in  any such notification shall be called a ’protected  for- est’. Section 32 empowers the State Government to make rules to  regulate  the matters catalogued in clauses (a)  to  (1) thereof in respect of protected forests, which, inter  alia, include the cutting, sawing, conversion and removal of trees and timber and collection, manufacture and removal of forest produce from protected forests; the granting of licences  to persons felling or removing trees or timber or other  forest produce  from  such forest for the purposes  of  trade;  the payments, if any, to be made by such licencees in respect of such  tree, timber or forest produce, etc. Section  33  pre-

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scribes  the  penalty for the contravention  of  the  rules. After  the  issuance of the Notification Exh.  DW-1/1  under Section  29,  the State Government framed  the  rules  under Section  32, Exh. DW- 1/2, of even date. Under  these  rules ’First  Class  Protected  Forests’ mean  and  include  those forests  which are defined and stated as demarcated  forests in  the  Forests Settlement of Bushahr  State  viz.,  Forest Settlement  Report  of Sutlej Valley and  Forest  Settlement Report of Rupi, Pabar and Giri Valleys prepared in 1921  and 1911,  respectively. ’Second Class Protected  Forests’  mean the undemarcated forests or areas other than the  demarcated forests  and include all tracts of land bearing tree  growth or  from which the trees have been felled which pay no  land revenue as cultivated land.     The Himachal Pradesh Private Forests Act, 1954, (Act No. VI of 1955) came into force from 28th June, 1956. Section  2 thereof in terms states that the Act shall not apply to  any land  which  is  a reserved or protected  forest  under  the Indian  Forest Act, 1927. Section 4 empowers the State  Gov- ernment  to prohibit by notification the  cutting,  felling, gridling, lopping, burning, stripping off the bark or leaves or otherwise damaging any tree or counterfeiting or defacing marks  on trees or timber in such private forests as may  be specified. Under Section 5, after the section 4 notification is issued, the Forest Officer is required within a period of one year from the date of publication of such  notification, to demarcate the limit of such forest in accordance 480 with  the revenue records and erect such number of  boundary pillars at such points of the line of demarcation as may  be necessary  at Government expense. Once the  notification  is issued under Section 4, Section 6 restrains the landlord and all  other  persons from cutting,  collecting,  or  removing trees,  timber  or  other produce in or  from  the  notified forests in contravention of the provisions made in or  under the Act. Section 11, however, authorises a Forest Officer on the application of the landlord or owner to grant a  licence for  the  felling of trees for such purposes and  with  such conditions  as he may deem proper. Sub-section (3)  of  that section permits the owner to exercise the option of  selling the trees either through the Forest Department or direct  to any  contractor. In the latter event the owner must pay  15% fees on the price of the trees calculated in accordance with the  prescribed  principles.  Section 16  makes  a  contract entered into by the owner with any person conferring on such person the right to cut, collect or remove trees, timber  or fuel  from  the private forests void unless  the  owner  has first obtained a licence in this behalf under Section 11. By notification  dated 10th June, 1959, Exh. P-21 published  in the  Himachal  Pradesh Government Gazette dated  25th  June, 1959, the plaintiff’s forests in Khasra Numbers 1, 2, 3,218, 606, 149, 263 and 166 situate in Village Addu were  declared ’private forests’ under Section 4 of the said statute. By  a similar notification dated 17th September, 1959, Exh.  P-22, published  in the Himachal Pradesh Government Gazette  dated 26th September, 1959, Khasra Numbers 34, 309, 108, 479, 307, 207  and 3 17 situate in Village Addu were also notified  as private  forests of the plaintiff under the same  provision. The expression ’Private Forests’ as defined by Section 3(13) of  the Act means a forest which is not the property of  the Government or over which the State has no proprietary fights or  to the whole or any part of the forest-produce of  which the State is not entitled. Subsequently, by Corrigendum Exh. P-29  dated  28th July, 1960, the State  Government  deleted Khasra Numbers 1, 2, 3, 2 18, 6, 44, 606, 149, 263 and  ’166

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of Village Addu from the notification of 10th June, 1959 and Khasra  Numbers 34, 309, 108,479,307,207 and 370 of  Village Addu from the notification dated 17th September, 1959 on the ground  that they were erroneously notified as they in  fact belonged to the Himachal Pradesh Administration.     After  the  said enactment came into force  w.e.f.  28th June,  1956  and before the notifications  under  Section  4 thereof  were issued, the plaintiff had by  his  application dated  21st  May, 1957 applied  for  permission,  presumably under  Section  11  of the Act, to fell  trees  from  Khasra Numbers 1, 222 & 606 of Village Addu. The said permission 481 was granted by Exh. P-20 and the plaintiff also paid the fee as demanded by Exh. P-23 dated 23rd August, 1957. By another application  dated 16th February, 1959 the plaintiff  sought permission to sell trees from khasra Numbers 34, 222, 34  1, 606 of Khewat No. 1, Khatauni No. 2 which was granted by the Chief  Conservator of Forests by his letter Exh. P-28  dated 19th  February, 1959. By the said letter the  plaintiff  was informed  that  the Divisional Forest Officer had  been  in- structed to mark the trees in the said areas silviculturally and  to  allow him to sell and remove the same  through  his contractor  (defendant No. 3). However, the attitude of  the Government  underwent  a  change after  Mr.  Raina’s  secret letter of 27th May, 1960 and his note dated 24th July, 1960. The  State Government issued a corrigendum dated 28th  July, 1960 amending the earlier notifications issued under Section 4;  restrained the plaintiff and his agent defendant No.  3, from cutting and lifting the trees from the forest area  and compelled deposit of Rs.3,36,000 for removing the trees  and was  also required to execute a bond. The plaintiff,  there- fore, filed the suit which has given rise to this appeal  to assert his rights.     The learned Trial Judge on a close scrutiny of the  oral and  documentary evidence placed on record came to the  con- clusion  that  (i) the plaintiff’s father, who  in  internal matters  had  sovereign powers, had bestowed  the  lands  in dispute as a perpetual and unconditional grant on the plain- tiff  and the mere fact that in the mutation entry the  area was  shown to be 263.4 bighas did not imply that  the  grant was limited to that much land only. He held that (ii) in the State of Bushahr only cultivated land was generally measured and  forest  lands remained unmeasured and,  therefore,  the area of only revenue yielding cultivated land was  mentioned in  the mutation entry but that did not mean that the  grant was confined to that area only. He also held that the subse- quent grant of 25.10.2003 Bikrami was executed by the plain- tiff’s  father with the concurrence of Rani Saheba  Katochi, with  a view to conferring exclusive proprietary  rights  in the entire grant on the plaintiff. Further according to  the learned  Trial Judge, the evidence, considered as  a  whole, fully  established that (iii) the grant was  not  repudiated but  was given effect to by the Political Agent, Shimla,  as well as by the revenue authorities of Bushahr State and  was recognised  by  the  Dominion of India at the  time  of  the State’s merger. He found that in the statement of the Zamin- dars of Village Addu, Exh. P-26, it was specifically  admit- ted  that the forest comprised Khasra Nos. 34, 141, 222  and 606 Khewat No. 1, Khatauni No. 2 and was ’owned’ and was ’in possession’  of the plaintiff. (iv) Assuming that the  lands in  dispute formed part of forests leased to the  Government of Punjab, 482 the learned Judge held that the Raja was not precluded  from making the grant and the grants made in favour of the plain-

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tiff  were  perfectly legal and valid. After the  lease  was terminated by mutual consent of the Governments of  Himachal Pradesh and East Punjab, the Himachal Pradesh Administration treated the plaintiff as the owner and permitted him various acts  as owner and person in possession. Notifications  were issued  under  Section  4 of the  Himachal  Pradesh  Private Forest  Act,  1954 declaring the disputed lands  as  private forests. He held that the notification issued under  Section 29 of the Indian Forest Act had no application. According to him,  except for an area of 11 biswas occupied by  roads  of the  Forest Department, the plaintiff was in  possession  of the remaining forest lands. The learned Trial Judge,  there- fore,  held that the suit was neither barred  by  limitation nor  on account of Section 34 of Specific Relief Act,  1963. The other technical objections to the maintainability of the suit  were spurned and the learned Trial Judge  decreed  the suit as stated earlier-     On  appeal the Division Bench of the High Court came  to the conclusion that when the plaintiff’s father executed the first grant in favour of the plaintiff he was aware that  he had  renewed the lease in respect of the forest lands for  a period  of  fifty years and, therefore, he  could  not  have intended to make an absolute grant in respect of the  forest lands covered under the lease to the plaintiff. According to the  Division Bench after the execution of the agreement  of lease dated 25th September, 1942, (v) the plaintiff’s father had  no surviving or subsisting right in the  lands  covered under the lease and, therefore, the grant in respect of  the forest  lands was of no consequence and did not  confer  any right,  title or interest in the plaintiff. At the most  the grant  could  take  effect in respect  of  revenue  yielding cultivated land admeasuring 263.4 bighas. In support of this finding  the  Division Bench points out (1) that  the  grant Exh.  P-1 dated 10th December, 1946 refers to the  lands  by Basa and not Khasra which reveals that reference is only  to revenue yielding area in the occupation of tenants; (2) that clause 2 of Exh. P-2 shows that the intention of the grantor was to secure an annual income of Rs.9,000 for his son which could only be from the revenue yielding lands as the  forest lands were already placed at the disposal of the  Government of  Punjab  and (3) that the recital in Exh.  P-2  regarding handing  over of the Basajat could be in respect of  revenue yielding  area only as the forests were already in the  pos- session  of the Punjab Government. The ’Division Bench  also held  that the notification under Section 29 of  the  Indian Forests  Act was validly issued and so long as it  held  the field,  no notification could be issued under Section  4  of the Himachal Pradesh Private Forest Act, 1954 and 483 the same were, therefore, rightly corrected by deleting  the Khasra  Numbers claimed by the plaintiff from  the  notified forest area. It, therefore, held that the said two notifica- tions issued under Section 1 had no efficacy in law and  the permissions granted under Section 11 of the said law can  be of  no  avail to the plaintiff. As regards  the  plaintiff’s contention based on the surrender of the lease in 1949,  the Division  Bench concluded that the exchange of letters  Exh. DW-1/3A  dated 25th April, 1949 by Himachal Pradesh  Govern- ment  and Exh. DW- 1/ 3B dated 5/9th May, 1949 by  the  East Punjab  Government revealed that an arrangement  was  worked out  whereunder the East Punjab Government  transferred  the management and administration of the disputed forests to the Himachal  Pradsh Government on certain terms and  conditions and there was no completed surrender of the lease.  Adopting this  approach,  the Division Bench  reversed  the  findings

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recorded by the learned Trial Judge and dismissed the plain- tiff’s suit in toto with costs throughout. It is against the said  Judgment and decree that the plaintiff has moved  this Court.     From the above resume of facts and findings recorded  by The Courts below, the questions which arise for our determi- nation and on which counsel for the rival sides addressed us may be formulated as under: 1. Whether, by the execution of the Agreements of Lease from time  to  time beginning with the Agreement  of  20th  June, 1864 and ending with the Agreement of 25th September,  1942, the erstwhile Rulers of Bushahr State, including the  plain- tiff’s father, had been divested of their rights, title and interests in the forest lands leased thereunder? 2.  If no, whether the plaintiff’s father was  competent  to make grants in respect of such forest lands under the Pattas of  (i) 14 Maghar 1999 Bikrami (i.e. 28th  November,  1942): (ii)  29th Phagun 1999 Bikrami (i.e. 11th March, 1943):  and (iii) 24th Maghar 2003 Bikrami (i.e.  10th December, 1946)? 3.  If yes, was the grant confined to the  revenue  yielding lands admeasuring about 263.4 bighas only or extended to the other unmeasured forest lands also as claimed by the  plain- tiff? 484 4. Was the State Government competent to issue the Notifica- tion  under  Section 29 of the Indian Forest Act,  1927?  If yes,  what  is its effect on the plaintiff’s  claim  in  the suit? and 5. Was the State Government competent to issue Notifications under Section 4 of the Himachal Pradesh Private Forest  Act, 1954? If yes, was the State Government justified in  issuing the  subsequent Corrigendum of 28th July, 1960? What is  the effect  of these statutory developments on  the  plaintiff’s claim?     In  order to appreciate the circumstances in  which  the erstwhile  Ruler of Bushahr State entered into an  agreement with  the British Government in 1864, it would  be  advanta- geous  to  notice  a few facts mentioned  in  H.M.  Glover’s Forest Settlement Report of 11th February, 1921. In Vol.  1, Chapter II of this Report which concerns Bushahr State,  the history  of  Bushahr forests prior to 1850 is  set  out.  It reveals  that at that time large matured trees were  plenti- ful.  However,  there was large scale destruction  of  these trees  due  to frequent fires, shifting of  cultivation  and felling of trees by traders. The Report mentions: "Every  forest  cleared by traders was subject  to  frequent fires  either  caused by carelessness or  by  villagers  who fired the debris and what was left of the standing crops  in order  to clear the ground for cultivation; there can be  no question that if the Government had not assumed control, the forest would have practically disappeared from all the  more accessible slopes." It further reveals that the Raja found it difficult to  deal with  the traders who indulged in destroying the forests  by indiscriminate  felling of trees and was anxious to  protect them. With this in view he eventually concluded an agreement of lease in 1864 with the British Government whereunder  the latter agreed to protect and conserve the forests and pay  a fixed  royalty for each tree felled. In 1877 the  lease  was revised,  the  British Government agreeing to  pay  a  fixed annual  lumpsum.  The lease was renewed in 1928  on  revised terms  as  to payment for a further period of 25  years  but before the expiry of that period another agreement of  lease Exh.  D-1 was concluded between the Raja and the  Government

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of  Punjab on 25th September, 1942. Clause III of the  docu- ment recites as under: ’ 485 "III.  In consideration of the following payments, the  Raja hereby  grants to the Punjab Government the entire and  sole control  of  the whole of the forests of  Bushahr  excepting those reserved for the use of the Raja as defined in  Clause II  and subject to the definitions and rules  prescribed  in the  Schedule  and Appendices  attached to this agreement" It becomes clear from the aforesaid clause in the lease deed that  the Raja granted ’the entire and sole control’ of  the whole  forest of Bushahr to the Punjab Government  excepting the  fights specifically reserved unto him. This entire  and sole control was granted to enable the Punjab Government ’to make  more  definite provisions for the conservancy  of  the forests’.  Clause IX of the agreement makes this clear  when it  says that the whole cost of conserving the  forests  in- cluded  in the lease together will all costs of felling  and transporting timber for use of the Punjab Government and  of maintaining  the  necessary establishment  in  such  forests shall  be  borne by the Punjab Government  unless  otherwise provided  for in the lease. From this clause also it can  be seen  that  the  emphasis was on the need  to  conserve  the forests.  The  Rules  framed in the Schedule  to  the  lease reinforce  this view. Under paragraph 1 of the Schedule  (a) breaking up land for cultivation; (b) setting fire to  grass tracts  in the vicinity of forest or negligently  permitting the  fire to extend to forests; (c) setting fire  to  grass, trees,  bushwood or stumps; (d) cutting out slabs,  torches, etc., from the steam of standing trees, barking and  tapping for  resin,  or  otherwise injuring trees;  (e)  felling  or lopping  trees;  (f) selling timber; and (g)  removing  dead leaves  and  surface soil, is  prohibited  unless  expressly permitted by the Divisional Forest Officer. Even the Raja is not  permitted to fell trees and/or remove converted  timber from  the leased area excepting the specified  quantity  re- quired for State purposes, vide paragraph 5 of the Schedule. It,  therefore, seems clear to us that the paramount  object of  the lease was to conserve the forests of Bushahr  State. But,  by  concluding  the lease agreement  with  the  Punjab Government,  the  erstwhile  Ruler did not  convey  all  his fights,  title and interests in the leased forest  lands  to that Government. All that he did was to transfer the control and management of the forests to the Punjab Government  with a view to preserving and conserving the forests. He retained his  proprietary  interest in the forest lands,  subject  of course  to the limitations concerning the management of  the leased area and the fight to the usufruct therefrom. Had  it been the intention of the Raja to divest himself of all  his interests in the forests lands there was no need to  provide the duration of the lease on the 486 expiry  whereof (unless the renewal clause was invoked)  the Raja would have a right of re-entry. The lease also provided that  in  addition to the two  half-yearly  installments  of Rs.50,000  each,  the  Raja was to receive  payment  of  the "Whole net surplus on the working of the forests included in the  lease". This is also consistent only with the  position that  the  Raja retained his proprietory  interests  in  the forest lands. We, therefore, find it difficult to agree with the  Division  Bench that by concluding  the  agreements  of lease  from time to time the former Rulers of Bushahr  State including the plaintiff’s father had divested themselves  of all their rights in the leased forests. We are of the  opin- ion that the plaintiff’s father had a surviving and subsist-

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ing right in the forest lands which were the  subject-matter of the lease dated 25th September, 1942 and was competent to grant  the  same  to the plaintiff  or  anyone-else,  albeit subject to the terms of the lease.     The  first patta was executed by the plaintiff’s  father on  14th  Maghar 1999 Bikrami whereby  he  bestowed  certain lands jointly on the plaintiff and his mother. The  original patta  is admittedly not traced. The plaintiff’s father  had by  his order No. 5158 of even date  directed  corresponding mutation  entries  to be made in the relevant  records.  The endorsement found in the copy of the mutation entry Exh. P-6 extracted  earlier bears testimony to this fact. This  entry shows that the Raja had granted permanent ownership, without condition, of Khata Khatauni Nos. 1/1 to 20 and 2/21 to  25, comprising 106 plots, admeasuring 263.4 bighas and ’part  of uncultivated Jagir’ the revenue and swai of which was remit- ted. Therefore, the doubt regarding the making of the  grant of  14th Maghar 1999 Bikrami stands repelled. The  existence of this grant is further fortified by the mention thereof in the subsequent two grants dated 29th Phagun 1999 Bikrami and 24th Maghar 2003 Bikrami. There can, therefore, be no  doubt regarding  the  execution of the patta of 14th  Maghar  1999 Bikrami.     The  next  question is regarding the  identity  of  land granted  to the plaintiff under the said grants.  The  entry Exh.  P-6 mentions the Khata Khatauni numbers and the  total number of the plots but does not mention the khasra numbers. Secondly, its area is stated to be 263.4 bighas and ’part of uncultivated Jagir’. The fact that these lands are  situated in  Chak  Addu is not disputed Says  Glover’s  Report:  "For administrative purposes the village and its outlying hamlets have been formed into a ’Chak’, which forms the unit of  the land revenue assessment." Since the patta in respect of the first grant is  admittedly not 487 available, we have to look to evidence aliunde the grant  of identify  the  property settled on the  plaintiff.  We  have already  referred to the Raja’s order No. 5158 on the  basis whereof the entry Exh. P-6 was made. The plaintiffs  witness PW7  Thakur Sen Negi has deposed that in Khewat 2,  Khatauni 21, Khasra Nos. 6, 34, 101, 222, 341, 479 and 4 are  unmeas- ured.  Exhs. P-15, P-18, P-33, P-38 and D-4, which  are  en- tries  from the Jamabandi also show that Khasra Nos. 6,  34, 108, 222, 341, 479, 606 and 4 of khatauni No. 21 are unmeas- ured ’Banjar Kadeem’. This expression according to  Glover’s report  means "land, recorded as the property of the  Zamin- dar, that has lain waste since the 1889 settlement and  pays on land revenue until recultivated. When included in ’Chaks’ in demarcated forests it has almost invariably been acquired or  exchanged." The Division Bench has, after  an  elaborate examination of the oral as well as the documentary evidence, particularly  Exhs. P-15, P-17, P-18, P-33, P-34,  P-36  and P-38, and the notification Exh. P-22 declaring certain areas as  private  forests, come to the conclusion that  land  de- scribed as Banjar Kadeem could include forest lands, thereby repelling the submission made by the plaintiff’s counsel  to the contrary. We cannot, therefore, countenance the  submis- sion made by the learned counsel for the contesting  defend- ants  that  the expression Banjar Kadeem  does  not  include forests.  If it were so, the whole controversy based on  the submission  that  the  Raja was divested of  his  rights  in respect  of  the forest lands covered by  the  agreement  of lease  and was not competent to make a grant  thereof  would have  ended in favour of the plaintiff. We, however, do  not

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consider  it necessary to examine the correctness or  other- wise of this finding of the Division Bench, since we propose to  proceed on the assumption that the disputed  lands  form part of the leased area.     But  the question still survives whether in addition  to the cultivated lands measuring about 263.4 Bighas the plain- tiffs father had made a grant in favour of the plaintiff  in respect of the disputed forest lands. We may now examine  if the subsequent two grants throw any light on this point. The second  grant  Exh.  P-2 was executed on  29th  Phagun  1999 Bikrami. In this document the Jagir granted to the plaintiff under  the  first  Patta has been  described  as  comprising several ’Basas’. By the second grant one more Basa  Sharotk- hola pargana Bhatoligarh was granted in perpetuity. The land revenue  and  other cesses in respect of  these  basas  were remitted for ever.The annual income of the Jagir thus grant- ed was Rs.9,000 and in addition thereto the State agreed  to pay  Rs.9,000  in cash as Jagir-money, besides  agreeing  to bear the expense of the plaintiff’s education and  marriage. The third document Exh. P-1 was executed on 24th Maghar 2003 Bikrami 488 This document also describes the grant made under the  first Patta  by  different  Basas. It further  recites  that  ’the possession of Basa granted to you has already been given and entries  have already been made in your favour and you  will realise  the income from this Jagir  .....  ’. The  argument that  as the actual possession of the forests was  with  the Punjab  Government the same could not have been  transferred to  the plaintiff overlooks the fact in such cases  symbolic and  dejure  possession  is transferred to  make  the  grant complete.  Therefore, the above recital in the  document  is consistent  with  the grant. It is,  therefore,  clear  that certain  Basas situate in Basajats were given to the  plain- tiff  as his Jagir. The dispute in the present  case  mainly concerns  a few Khasra numbers of Basa Kotadhar Ghori  Samat Pargana Baghi Mastgarh comprising 106 plots.     What  then is a Basa? In paragraph 41 of the  Assessment Report of Rohru Tehsil of Bushahr State, Exh. D-7,  prepared by  Mr. Emerson, Manager of Bushahr State, it is  stated  as under: "The State lands in which the Raja enjoys both superior  and inferior rights of ownership are of several descriptions: Firstly, there are the Crown estates or Basas, comprising of some  of the most fertile area which former Rulers  reserved for  their own enjoyment or for the support of  their  rela- tives  and  dependents. These were  formerly  cultivated  by bethus,  under the supervision of a number of officials  who were  supposed either to remit the produce to the  Headquar- ters  or  to arrange for its loan on  extravagant  rates  of interests  to zamindars At present they are leased  to  con- tractors  for  fixed  periods on cash or  grain  rents,  the former predominating." According  to PW 11 S.R. Jhingta, the power of  attorney  of the  plaintiff,  basa land included cultivated  forests  and grazing  lands. PW3 Roop Singh Negi described basa lands  as Banjar  lands,  arable lands, cultivated  lands  and  forest lands.  PW 10 Sagar Singh produced pattas to show  that  two basas  containing  forests were granted by the Raja  to  his father. The Division Bench refused to place reliance on  the oral  testimony  of the aforesaid witnesses in view  of  the aforequoted authoritative definition. But this definition is not exhaustive and does not specifically rule out the inclu- sion  of forest lands. If by the grant the Raja intended  to grant  only the revenue yielding area of 263.4 bighas  there

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was no need to mention ’and part of the uncultivated  Jagir’ in 489 Exh. P-6. It is an admitted fact that the total area of  the basa  comprising 106 plots is much more than  263.4  bighas. That  means that it includes besides the cultivated area  of 263.4  bighas certain unmeasured area also. The  revenue  of the cultivated area of 263.4 bighas is a paltry Rs.58--8--3. It  is not shown that the total revenue of cultivated  lands in  all  the  basas  constituting the  grant  works  out  to Rs.9,000  per  year. Besides, if the grant  is  confined  to 263:4  bighas  only, the words ’and part of  the  cultivated Jagir’  are  rendered redundant. Next-the  concerned  Khasra numbers have been described as Banzar Kadeem which  includes forests  as  held  by the Division Bench.  All  the  entries namely  Exh.  P- 15, P-33, P-36 and P-38 describe  the  con- cerned  Khasra  numbers as unmeasured. If the 106  plots  in Exh.  P-6 admeasure more than 263.4 bighas, it follows  that they  also include unmeasured lands referred to as ’part  of the  uncultivated  Jagir’. Reference to  uncultivated  Jagir implies  existence  of land other  than  cultivated  revenue yielding land which may include forests. According to Punjab Settlement  Manual  (Fourth Edition)  uncultivated  land  is classified as Banzar Jagir, Banzar Kadeem and Gair  Mumkeen. The  Division  Bench points out that the definition  in  the Manual  is  not to be rigidly construed  and  would  include forest  lands which may not be cultivated but may  have  the potential for cultivation, if forests are removed. In  other words lands covered by forests may be highly fertile and may be  reserved by the Ruler for his own use or for the use  of his relatives and dependents. This supports the statement of PW11  S.R. Jhingta that in Tehsil Rampur forests  and  grass lands  were entered as Banzar Kadeem. This discussion  leads us  to  the conclusion that a Chak comprises Basas,  a  Basa comprises  both cultivated and uncultivated lands,  unculti- vated  land  includes Banzar Kadeem which in  turn  includes unmeasured forests. The recent revenue Settlement of 1979-80 shows that the disputed Khasra Numbers 34, 222, 34 1 and 606 comprise of 422 plots admeasuring 789-84-85 Hectares out  of which  711-2750  Hectares form part of the  forests.  It  is pertinent to note that the same is shown in the ownership of the plaintiff.     The relevant revenue records of the Bushahr State  right from 1915-16 show the disputed Khasra Numbers as unmeasured. The  list  of the plaintiffs Jagir prepared by  the  revenue authorities after the death of his mother also describes the said Khasra numbers as unmeasured forests. It is also neces- sary to remember that the plaintiff was denied the ownership of Khasra Numbers 241, 732/280, 736/394 and 728/402  admeas- uring  about  11 biswas as they formed part  of  the  forest road.  These four plots though measured did not yield  reve- nue.  If  the Raja desired to grant  only  revenue  yielding lands to the plaintiff he would 490 not have included these four numbers in the grant. There is, therefore, intrinsic evidence to show that the grant was not limited  to only the revenue yielding area of 263.4  bighas. The subsequent conduct of the parties, as we shall presently show, also lends support to this view.     On  the  plaintiff  attaining majority  his  estate  was released  from  the Superintendence of the  Court  of  Wards w.e.f.  1st April, 1956. The list in respect of his  movable and immovable properties was prepared before the  properties were  handed-over  to the plaintiff. This  list  dated  31st January,  1956  shows the total landed estate  comprised  of

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1864 acres. In 1958-59 the plaintiff had planted 3000  Deod- har  and  Kail  trees which was highly  appreciated  by  the Deputy Commissioner, Vide Exh. P-11. Some land was  acquired by the State Government for its P.W.D. and the plaintiff was paid Rs. 11,000 as compensation. The plaintiff had also made applications for permission to fell trees from the  disputed khasras which were granted, vide Exhs. P-20, P-23 and  P-28. Indisputably  trees had been felled pursuant to the  permis- sion  so  granted. Next Exhs. P-41 and P-42  show  that  the plaintiff  sold some part of khasra No. 341 on  16th  April, 1960 and 25th June, 1960 to third parties and  corresponding changes in mutation were made. He had also donated some land from the same khasra for a school. These are acts of  owner- ship  which  have not been repudiated. The  disputed  Khasra numbers  were also the subject matter of  two  notifications issued  under  section  4 of the  Himachal  Pradesh  Private Forest  Act,  1954, whereby they were notified  as  ’private forests’.  All this conduct on the part of the defendants  1 and  2  goes to show that they treated the  disputed  Khasra Numbers  as the Jagir of the plaintiff. It was only in  1960 after Mr. Raina’s secret letter and his subsequent note that the  defendants  disputed the plaintiff’s ownership  in  the said  Khasra  numbers and issued the corrigendum  Exh.  P-29 withdrawing  the aforesaid two notifications as it was  rea- lised  that  it would result in a substantial  loss  of  Rs. 18.75  lakhs.  Till the doubt was raised by Mr.  Raina,  the State  Government  throughout treated  the  disputed  Khasra numbers  as  forming  part of the  plaintiff’s  Jagir.  this conduct evidence lends support to the view that the disputed Khasra  numbers  were bestowed on the  plaintiff  under  the first Jagir of 14th Maghar 1999 Bikrami.     Counsel  for the defendants, however, contended that  it was  not open to the Court in view of the  prohibition  con- tained  in Section 92 of the Evidence Act to take  into  ac- count  the subsequent facts and circumstances  to  determine the extent of the grant under the Patta of 14th Maghar  1999 Bikrami.  He  submitted  that where a claim is  based  on  a written  document, the terms of the document must be  inter- preted 491 without  the  aid  of extrinsic evidence. It  is  true  that ordinarily  the intention of the parties to a document  must be  gathered from the language in which the  relevant  terms and  conditions  are  couched and no oral  evidence  can  be permitted with a view to varying or contradicting the  terms of the document. To put it differently, if the terms of  the document  are clear and unambiguous, extrinsic  evidence  to ascertain the true intention of the parties is  inadmissible because  Section 92 mandates that in such a case the  inten- tion  must  be gathered from the language  employed  in  the document.  But  if the language employed  is  ambiguous  and admits of a variety of meanings, it is settled law that  the 6th  proviso  to the section can be invoked  ;which  permits tendering  of  extrinsic evidence as to  acts,  conduct  and surrounding  circumstances to enable the Court to  ascertain the real intention of the parties. In such a case such  oral evidence  may guide the Court in unraveling the true  reten- tion  of  the parties. The object of admissibility  of  such evidence  in such circumstances under the 6th proviso is  to assist the Court to get to the real intention of the parties and thereby overcome the difficulty caused by the ambiguity. In  such a case the subsequent conduct of the  parties  fur- nishes  evidence to clear the blurred area and to  ascertain the  true  intention of the author of the document.  If  any authority is needed in support of this proposition reference

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may be made to the case to Abdulla Ahmed v. Animendra Kissen Mitter,  [1950]  SCR 30. At page 46 we  find  the  following passage: "The evidence of conduct of the parties in this situation as to  how they understood the words to mean can be  considered in determining the true effect of the contract made  between the  parties. Extrinsic evidence to determine the effect  of an instrument is permissible where there remains a doubt  as to its true meaning. Evidence of the acts done under it is a guide  to  the intention of the parties in such a  case  and particularly  when acts are done shortly after the  date  of instrument (Vide para 343 of Hailsham Edn. of Halsbury, Vol. 10, p. 274)". In  the present case the Patta of 14 Maghar 1999 Bikrami  is admittedly lost. Reliance was, therefore, placed on Exh. P-6 which  incorporates  the order No. 5158 of  even  date.  The entry  in  Exh. P-6 mentions the Khata Khatauni of  the  106 plots granted to the plaintiff and the area thereof is shown to be 263.4 bighas and part of the uncultivated jagir  Since a  doubt  arose whether the disputed Khasra  numbers  formed part of the uncultivated Jagir referred to in Exh-.P-6,  the parties led oral as well as documentary evidence with a view to enabling the Court to 492 ascertain the extent of the Jajir granted to the  plaintiff. Since the words ’part of the uncultivated Jagir’ were  ambi- gous  extrinsic evidence aliunde the grant became  necessary to  explain the coverage of those words. We,  therefore,  do not see any merit in the objection.     We  may  now  consider the effect  of  the  notification issued  under  section 29 of the Indian  Forest  Act,  1927. Sub-section  (1) of section 29 permits the State  Government to  issue  a notification declaring the application  of  the provisions  of  Chapter IV to any forest land which  is  not included  in a reserved forest but which is the property  of Government,  or  over which the Government  has  proprietary rights, or to the whole or any part of the forest produce of which  the  Government is ’entitled’. The forest  land  com- prised  in  any  such notification is  called  a  ’protected forest’. Sub-section (3) of section 29 reads as under: "No  such notification shall be made unless the  nature  and extent of the fights of Government and of private persons in or over the forest-land or waste-land comprised therein have been  inquired into and recorded at a survey or  settlement, or in such manner as the State Government thinks sufficient. Every such record shall be presumed to be correct until  the contrary is proved." The proviso to that sub-section, however, permits the  State Government to issue a notification before completion of such inquiry  and  record in the event of urgency.  The  Division Bench was, therefore, not fight in presuming that an inquiry of  the  type contemplated by subsection (3) of  Section  29 must have preceded the notification. The possibility of  the application  of the urgency clause cannot be ruled out.  The inquiry  is contemplated to determine the nature and  extent of the rights of the Government and of private persons in or over  the forest land. Based on the findings of the  inquiry the  record is to be prepared. The learned Trial  Judge  has observed that ’after the grant no right of the Government in the  land in suit was recorded in the Forest  Settlement  or land revenue settlement or the land revenue records’.  Under sub-section  (3) such a record shall be presumed to be  cor- rect  until the contrary is proved. The presumption,  there- fore,  attaches to the record prepared in pursuance  of  the inquiry. In the present case, no such record evidencing  the

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fight of the Government in the forest land or forest produce is  shown  to have been made. Therefore,  the  question,  of presumption  of  correctness of record never arose  and  the plaintiff was not obliged to dislodge the same. The evidence on  the contrary shows that the disputed lands were  entered in the revenue records as the 493 private property of the plaintiff. That should be so because where  the  land  in question forms part  of  a  permanently settled grant, it is ordinarily the private property of  the grantee. That is why by the subsequent notifications  issued under section 4 of the Himachal Pradesh Private Forest  Act, 1954, the disputed forests were notified as private  forests of  the plaintiff. The plaintiff, therefore, sought  permis- sion,  presumably  under  section 11 of the  said  Act,  for cutting and felling trees situate in his private forests. If the notification issued under section 29 held the field, the State Government could not have issued the subsequent  noti- fications  under  section  4 of the State Act,  in  view  of section  2(b) thereof which in terms states that  ’this  Act shall not apply to any land which is a reserved or protected forest  under the Indian Forest Act, 1927’. But  before  the State Government can invoke section 29(1), it must be  shown that the requirements of that provision are satisfied.  From the  various  documents placed on record it is  quite  clear that  the disputed forests did not belong to the  Government nor did the Government have any proprietary rights  thereon. But  the  Division Bench has held that  the  Government  was entitled  to the whole or part of the forest  produce  under the  agreement  of  lease dated 25th  September,  1942.  The agreement of lease merely permitted the Government to manage the  forests as the Raja found it difficult to  prevent  the indiscriminate cutting and felling of trees. To preserve and conserve his forests, the Raja sought the aid of the British Government  from time to time. Under the last  agreement  of lease,  the Raja granted the sole control of the forests  to the Punjab Government without transferring or conveying  his proprietary  interests  therein. The Punjab  Government  was liable to account for the usufruct as the Raja was  entitled to  the whole net surplus determined triennially  after  de- ducting  from the total revenue from the forests  the  total expenditure incurred by the Punjab Government over the  same period. Therefore, the Government was not ’entitled’ to  the whole or any part of the produce in its own right dehors the lease.  The word ’entitled’ in the context must take  colour from the preceding words and must be understood to mean that the  Government must have an independent claim or  right  to the  forest  produce and not merely a right to  collect  and deal  with the same subject to an obligation to account  for the  same to the owner. The word ’entitled’ is used  in  the sense  of  the  Government having a right or  claim  to  the usufruct in its own right and not as the agent of another.     After  we attained independence, the erstwhile ruler  of Bushahr  State ceded to the Dominion of India whereupon  the properties  belonging  to the State  as  distinguished  from private property devolved on the 494 Himachal  Pradesh Administration. As discussed earlier,  the record  shows  the disputed khasra numbers  as  the  private property of the plaintiff. The plaintiff exercised  proprie- tary  rights  thereon till 1960 when doubts were  raised  by Raina,  who feared that if the plaintiffs claim is  conceded the  State  will have to suffer a loss of  Rs.  18.75  lakhs approximately.  Since the Raja exercised supreme  fights  in internal matters he was entitled to make a grant in  respect

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of  property over which he exercised ownership fights  as  a ruler. Therefore, once the disputed property was granted  to the  plaintiff,  the latter became the  owner  thereof.  The suzerainty  of  the  British Crown over  the  Indian  States lapsed as from the appointed day, i.e. 15th August, 1947, by virtue  of section 7(1)(b) of the Indian  Independence  Act, 1947, and with it lapsed (i) all agreements in force between His  Majesty  and the rulers of Indian States and  (ii)  all obligations of His Majesty towards the Indian States.  After the  merger of the Bushahr State, a separate  administrative unit was constituted by the Central Government for  Himachal Pradesh. It appears from the letter Exh. DW-1/3A dated  25th April, 1949 that the lease agreement was mutually terminated and the management of the forests was taken over by Himachal Pradesh  Administration  from  the  East  Punjab  Government w.e.f.  1st April, 1949 on the stated terms. The said  terms were  accepted  by the East Punjab government by  the  Chief Secretary’s  letter dated 5/9th May, 1949, Exh. D- 1/3B.  At the  date  of merger the forests belonging to the  State  of Bushahr  devolved  on the  Himachal  Pradesh  Administration except  the private forests. The need to continue the  lease for  a  few  private forests was perhaps not  felt.  On  the termination  of the lease the private property  reverted  to the  owners. However, so far as the plaintiffs forests  were concerned they continued under the State’s management  since he was a minor. But on that account the State was not  ’ent- itled’  to  the forests produce from such  private  forests. Therefore,  the notification issued under section  29  could have  no  application  to such private  forests.  The  State Government was, therefore, competent to issue the two  noti- fications  under section 4 of the Himachal  Pradesh  Private Forest Act, 1954, and it was not justified in annulling them on the erroneous premise that the said lands belonged to the State  Government. The Division Bench, therefore, ought  not to have reversed the trial court on this point.     In  the  result this appeal must succeed. We  allow  the appeal and set aside the judgment and decree of the Division Bench  of  the High Court. We would have  been  inclined  to restore  the decree of the Trial Court but counsel  for  the appellant-plaintiff made a statement at the bar that in view of the provisions of the Himachal Pradesh Ceiling on 495 .. Land  Holdings  Act, 1972, the question of granting  such  a declaration does not survive.     He, however, submitted that the State Government  should be  directed  to  refund the amount of  Rs.3,36  lakhs  with interest  which  was  deposited by defendant No.  3  in  the Treasury under an agreement dated 19th August, 1961, entered into  with  the President of India  through  the  Secretary, Forest Department. Clause (VI) thereof provides that in  the event  the appellant-plaintiff succeeds in establishing  his title  to  the trees in question, the said amount  would  be refunded  subject  to a deduction of  15%  towards  royalty. However, defendant No. 3 filed a suit against the  appellant for  the recovery of the said amount which suit ended  in  a compromise  decree whereunder the  appellant-plaintiff  paid the 3rd defendant Rs.2.51 lakhs in full and final  satisfac- tion  of his claim reserving unto him the right  to  recover the  deposited  amount from the State Bank.  We,  therefore, told that the plaintiff-appellant is entitled to the  refund of  Rs.3.36 lakhs with interest at 9% per annum  subject  to deduction of royalty calculated at 15%     The  appellant-plaintiff  has  also  claimed  refund  of Rs.4.60 lakhs with interest lying in fixed deposits with the

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State Bank of India, Shimla in the name of the Registrar  of the High Court. The Division Bench of the High Court by  its order  dated  14th December, 1970 directed  that  the  trees included in the Local Commissioner’s report dated 7th Decem- ber, 1980 be sold by public auction and the sale proceeds be deposited  in the State Bank of India, Shimla till the  dis- posal  of  the appeal. Accordingly, the sale  proceeds  were deposited out of which the appellant-plaintiff was permitted to withdraw a sum of Rs.2.60 lakhs after furnishing  surety. The balance of Rs.4.60 lakhs is lying in fixed deposits  and the  appellant-plaintiff is entitled to the refund  thereof. We,  therefore,  direct that the said amount  together  with interest accrued thereon shall be refunded to the appellant- plaintiff     The appellant-plaintiff also made a claim in respect  of the value of the trees cut and sold by the Forest Department during the year 1951-52 when the appellant was a minor.  The estimated  value  of these trees is stated to  be  Rs.  1.50 lakhs. However, no claim was made in respect thereof in  the suit  filed by the appellant-plaintiff which has given  rise to  this appeal. If the appellant-plaintiff was entitled  to the  said  amount he ought to have claimed the same  in  the suit  filed  in 1964. We, therefore, do not  entertain  this claim. 496     The  appellant-plaintiff has also claimed a refund  with interest  of the market value of trees totalling 10,505  cut and  sold  by the Forest Department during the  period  from 1980  to 1985 notwithstanding the order of this Court  dated 17th October, 1979. However, in view of the fact that  Hima- chal  Pradesh Ceiling on Land Holdings Act, 1972  has  since intervened  we  do not entertain this claim in  the  present proceedings.  The refusal to entertain this claim  will  not debar  the plaintiff from seeking any relief that is  avail- able to him under the 1972 Act.     In  the  ultimate,  we direct the  State  Government  to refund  Rs.3.36 lakhs with interest at 9% per annum  thereon to the appellantplaintiff after deducting royalty at 15%. We also  direct  refund  of the amount of  Rs.4.60  lakhs  with interest  accrued  thereon lying in fixed  deposits  in  the State  Bank  of India, Shimla under the High  Court’s  order dated  14th  December, 1972. We grant three months  time  to comply with above directions. The appeal is allowed  accord- ingly but we make no order as to costs.     In  view of the above, the CMP will also stand  disposed of accordingly. R.S.S.                                                Appeal allowed. 497