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PETITIONER: STATE OF PUNJAB AND ORS.

       Vs.

RESPONDENT: BRIGADIER SUKHJIT SINGH

DATE OF JUDGMENT11/06/1993

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. AGRAWAL, S.C. (J)

CITATION:  1993 SCR  (3) 944        1993 SCC  (3) 459  JT 1993 (3)   748        1993 SCALE  (3)25

ACT: % Constitution of India, 1950: Article 13- Farman issued by a Ruler of an erstwhile  Indian State--Sovereign  will could be expressed in any manner  and it becomes binding as law. Transfer of Property Act, Title  to  property-Merger  of States-  Erstwhile  Ruler  of Indian   State-Not  enlisting  particular   property   while declaring  his private properties-But issuing a Farman  that the property would vest with each succeeding heir  apparent- Effect of Title-Whether could be claimed by State. Easements Act, 1882: Sections 52, 60, 61 & 62-Licence-Payment of licence fee  not essential for subsistence of-Revocation of  licence-Occupier State to vacate-Orders of lower courts-confirmed. Limitation Act, 1963: Article  65-Adverse possession-Licensee continuing  as  such for  long--Permissive possession-Whether becomes hostile  by long lapse of time so as to claim adverse possession. Specific Relief Act, 1963: S.   39-Suit  for eviction-Property, occupied by  State  and claiming  title  thereof-Plaintiff descendent  of  erstwhile Ruler  who  issued Farman-Property neither personal  nor  of State-To be succeeded by heir apparent-Mandatory  Injunction issued  by  Courts  below-  Confirmed-State  to  vacate  the premises.

HEADNOTE: The building in dispute viz. a double storeyed building  has been in the 945 occupation  of  the  State  Public  Works  Department.   The plaintiff-respondent  filed a suit claiming that he was  the owner  of the building and that the possession by the  State was permissive in character and in the nature of a  licence, and even after he had terminated the same, the State had not vacated   the  building.   He  therefore  sought   mandatory injunction requiring the State to vacate the premises and to keep its hands off from the other properties in the  complex known  as  Jallowkhana Complex owned and possessed  by  him. The  State disputed the claim on the ground that  since  the

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erstwhile  Ruler  of  Kapurthala  State,  the  ancestor   of plaintiff, did not enlist the Jallowkhana Complex as part of his private properties at the time of merger of States,  the entire complex was owned by the State. The  trial  court partially decreed the  suit  holding  that except  the  double storeyed budding in  occupation  of  the State, the remnants in the Jallowkhana complex was owned and possessed  by  the plaintiff-respondent.  It took  the  view that  the  State  had become the owner of  the  said  double storeyed  building  by  lapse of time;  that  there  was  no licence since admittedly no licence fee had ever been  paid. In respect of the other portions of the property, the  trial court found that the State had the right of easement. Cross  appeals came to be filed before the  District  Court. The  appeal  of  the State was dismissed  and  that  of  the plaintiff-respondent  was  allowed resulting  in  the,  suit being decreed in entirety.  The second appeals filed by  the State were dismissed by the High Court.  Hence these appeals by the State. Dismissing the appeals, this court HELD:     1. Jallowkhana complex is one integrated property. Whatever  is composed thereof is Jallowkhana.  There  cannot be  two owners to such property.  The property  must  remain with  the heir-apparent.  The State cannot partially  be  an heir-apparent.   On  the  other  hand  when  the   plaintiff respondent  terms  the  State as a licensee,  it  cannot  be negatived on the mere plea that no licence fee was agreed to be  paid.   Payment  of  licence fee  is  not  an  essential attribute  for the subsistence of a licence.  The mere  fact that the licence is of long duration dating back to the year 1925,  as suggested by some of the plaintiffs witnesses,  or of  1947  as said by the witnesses of the State,  is  of  no consequence. (952-H, 953-A,B) 2.   Permissive  possession, however long, cannot by  itself be  said to have become hostile by a "long lapse  of  time", more so, on property, the nature and 946 character of which is unique and singular, having attributes of being impersonal.  Such status of the property rules  out the objection regarding adverse possession for which even an issue was not claimed in the Courts below keeping apart  the pleadings. (953-B-C) 3.1. 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.   The  Farman  has necessarily to be imported with those attributes.  (951-G-H, 952-A) 3.2. Creating  such kind of a special estate undeniably  was within the competence of the ruler.  His creative  dimension and  imaginative  skill need not have conformed to  any  set standards  or patterns known to jurisprudence or  law.   His sovereign   will  could  have  been  expressed  in   various innovations.   And this is an instance in which he  put  his sentiment,  attached to the complex, at a pedestal at  which it was neither to be treated as State property nor  personal property  either for him or in the hands of  the  succeeding heirsapparent  in the line of primogeniture.  Its  ownership and possession in the hands of each succeeding heir-apparent was  devised  as  purposive,  for  perpetually  keeping  its integrity and the name of the dynasty alive, the jallowkhana structure symbolising such continuance by its special status and reverence. (952-E,G) 4.   Tide to the double storeyed building in question  could

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not  be  divested from the plaintiff due to the  unique  and singular character of the property, it having attributes  of being  impersonal,  as also by mere lapse of  time,  or  (in account  of non-payment of any licence fee or rent.   On  an adverse  possession, for which there is no plea as  well  as the property in dispute being an integral part of a complex, to  which complex the claim of the State to it--.  ownership has  failed,  and finally the ruler on merger of  his  State need  not have claimed this to be his personal  property  to maintain  the suit and seek relief.  Thus the State  has  no tide  to  the  disputed property and  hence  must  obey  the mandatory injunction issued by the lower appellate court  as confirmed  by  the  High Court.   The  mandatory  injunction granted  by  the lower appellate court is so  weakly  worded that it is capable of being evaded totally, and in any event for  a very long time to the point of negating it.   In  any case  the  injunction  has  to  be  carried  out  within   a reasonable  time.   The mandatory injunction issued  by  the lower appellate court should be carried out in its entirety, latest by the end of three years, if not earlier, and on the breach of which the law may take its own course. (953-C-G) 947

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1007-08  of 1992. From  the Judgment and Order dated 15.3.1991 of  the  Punjab and Haryana High Court in R.S.A. No. 1719 & 1720 of 1989. Kapil  Sibal,  Ranbir Singh Yadav and G.K.  Bansal  for  the Appellants. D.D.   Thakur.   Anil  Mittal  and  Manoj  Swarup  for   the Respondent. The Judgement of the Court was delivered by PUNCHHI,  J. These two appeals at the instance of the  State of  Punjab,  are  directed against a common  judgment  of  a learned  Single Judge of the Punjab and Haryana High  Court, passed  in Regular Second Appeal Nos. 1719 and 1720 of  1989 and are limited in scope to the determination of title to  a double  storeyed  building situated in a  complex  known  as Jallowkhana  in the town of Kapurthala.  These appeals  have arisen in the following manner. The respondent herein is Brigadier Sukhjit Singh.  He is the son of Maharaja Paramjit Singh and the grand-son of  Maharja Jagajit Singh in the order of primogeniture succession.  The ancestory of Maharaja Jagajit Singh is traced to Baba  Jassa Singh  Ahluwalia,  the founder of Kapurthala State  and  the Ahluwalia  dynasty.   It is common ground that  there  is  a complex known as Jallowkhana at Kapurthala which encompasses two  historic  havelis, which in the context  mean  palaces, going by the names Haveli Baba Jassa Singh and Nihal  Mahal. Besides  these two havelis, there are open spaces and  other structures  in the complex and the disputed one is a  double storeyed  building presently in the occupation of  state  of Punjab through its Public Works Department.  The  plaintiff- respondent  claiming that since the possession of the  State of  Punjab  thereon was permissive in character and  in  the nature  of a licence, and despite his terminating  the  same the  State of Punjab had not vacated the disputed  building, he  sought  relief by way of suit for  mandatory  injunction requiring the State of Punjab to vacate the premises, and to keep its hands off from the other properties in the  complex over which the plaintiff-respondent was owner in possession. The State of Punjab on the other hand disputed the ownership

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of the plaintiff to the Jallowkhana complex and claimed that the  building in dispute belonged to the government and  was being  maintained  by the Public Works Department  at  state expense since 1947.  The possession of plaintiff towards any part of the 948 buildings was denied.  It was pleaded that when the princely states  in  this part of the country merged with  the  State known  as the Patiala and Fast Punjab State Unions  (PEPSU), the  rulers of the merging States were required  to  declare their private properties, but the ruler of Kapurthala State. however,  while declaring his private. properties,  did  not enlist  the  Jallowkhana  complex as  part  of  his  private properties.  On that analysis it was claimed that the entire jallowkhana complex was owned by the State. Since  there  were  various pleas on both  sides  on  locus, jurisdiction.  limitation, estoppal and  maintainability,  a number  of  issues  were  Struck on  the  pleadings  of  the parties,  but  we are not concerned with them any  more  for they  stand settled one way Or the other so as to steer  the suit to its conclusion on title to the properties. The  trial  court  on its part partially  decreed  the  suit holding  that  except  the  double  storeyed  building,   in occupation  of  the  State of Punjab, the  remnants  in  the Jallowkhana   complex  was  owned  and  possessed   by   the plaintiff-respondent.   It took the view that the  State  of Punjab  had  become the owner of the  said  double  storeyed building  by  lapse of time.  It viewed that  there  was  no licence since admittedly no licence fee had ever been  paid. Grounding  its conclusion solely on that basis it held  that even  though  the  common entrance to  the  double  storeyed building  as  well as to the palaces known  as  Haveli  Baba Jassa  Singh and Nihal Mahal through the deori was owned  by the  plaintiff-respondent  still the State of Punjab  had  a right of passage through it as easement.  Similarly it  held that  tile  open courtyard in front of the  double  storeyed building  as indicated in the plan. was in the ownership  of the  plaintiff  but the defendant-State had an  easement  of passage over it.  The court however did notice the fact that the State of Punjab had never pleaded alternatively any such easements  and yet had no hesitation in the  ,rant  thereof. In the result the State of Punjab succeeded in quelling  the claim  of ownership of the plaintiff to the double  storeyed building  and it was held to be tile property of  the  State "because  of  lapse  of time", and  other  portions  of  the property  as  aforementioned were found to be  subjected  to easements,  its spelled out earlier.  The remaining part  of the complex including the two havelis were held to be in the ownership and possession of the plaintiff-respondent. Two  cross  appeals were filed before  the  District  Judge, Kapurthala.  The appeal of the State of Punjab was dismissed but  the  cross  appeal  of  the  plaintiff  respondent  was allowed.   The plaintiff-respondent succeeded in having  the suit  decreed in entirety.  The findings of the trial  court on  the questioned issues nos. 5 and 8 were reversed  and  a mandatory injunction was issued calling, upon the defendant- State  to  hand over the possession of the  double  storeyed building, in 949 dispute   to   tile  plaintiff,  ,is  well   as   affirming, restraining the State from interfering in the possession  of the plaintiff of properties in other part of the Jallowkhana complex.    Obedience  to  tile  mandatory  injunction   was conditioned in terms that since the Government offices  were functioning  in the double storeyed building since long  the

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same  may be vacated by the Government as and when  suitable accommodation  is made available for such offices, and  till then  the plaintiff and the State Government were  suggested to  mutually settle reasonable rent to be paid by the  State Government  for  use  and  occupation  till  the  Government vacated it. Two  separate  second  appeals were filed by  the  State  of Punjab  in the High Court but those were dismissed by  means of the common judgement under appeal.  At the outset  notice in  the  special leave petitions was issued  by  this  Court limited to the question of the double storeyed building.  In the  mean  time parties were permitted  to  tile  additional documents  as existing on the trial court file,  which  were filed.   Leave  was  then granted limited  to  the  property referred to in the notice.  During the course of the hearing of the appeal, it was felt that a report be called for  from the  Sub-Judge Kapurthala as to whether the Deorhi,  through which  was  the common entrance. was in  possession  of  the State Government and whether it needed repairs.  He was also required to report whether the deori is the main entrance to the double storeyed building in dispute or whether the  main entrance  to the said building was from another route.   The Sub-Judge  has  reported that the Deorhi in question  is  in possession  of Brigadier Sukhjit Singh-respondent and it  is beyond repairs.  He has further intimated that presently the Deorhi  is  not  the main entrance to  the  double  storeyed building,  but on site a distinct 16 ft. wide path has  been provided  as main entrance to the double storeyed  building. The  additional documents in the form of photographs of  the deori  and the site plan Ex.R-7 showing its location  go  to show  that the entrance to the Deorhi is blocked by  closing its  gate and knitted by barbed wire, and the main  entrance to the double storeyed building shifted perpendicularly from across direction.  This is the fact situation. The  case in the courts below has proceeded on  the  footing that  the  double storeyed building is part  of  Jallowkhana complex.    Besides,  not  only  does  the   afore-depiction establish,  it has also been found otherwise by  the  courts below  that the double storeyed building was and is part  of the  Jallowkhana complex.  It is in the Jallowkhana  complex that  the  two historic havelis, namely  Haveli  Baba  Jassa Singh  and  Nihal  Mahal  are situated  and  for  all  these buildings there was a common entrance through a Deorhi which has  now  fell in dis-use and that now  a  separate  passage stands  provided  at  site  to  reach  the  double  storeyed building which is perpendicularly cross to the passage  from the deori.  It is also clear that the claim of the plaintiff that  the  double storeyed building in  occupation  of’  the State of 950 Punjab was part and parcel of the jallowkhana complex stands established  and that the court-., except the  trial  court, have  held  it  to be in tile ownership  of  the  plaintiff- respondent:   hut  the  trial  court  has  field  that   the plaintiff-respondent   had   lost  ownership  due   to   the occupation  of  the  State of Punjab "because  of  lapse  of time".   The title to the Jallowkhana complex comprising  of the  two  historic  havelies  and  other  open  places   and structures, excluding the double storeyed building has  been put  beyond dispute and the plaintiff-respondent is held  to be the owner thereof and conversely tile State has been held to  he  not its owner.  This is the effect  of  the  limited leave  granted.   Thus the limited question  on  which  this appeal  survives is should the double storeyed  building  he retrieved  from  that complex and held to he  owned  by  the

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State as held by the trial court’? Mr.  Kapil Sibal learned Senior Advocate for the  appellant- State  contended that firstly the double  storeyed  building was not part of the Jallowkhana complex, secondly even if it was so. the State of Punjab had become its owner by  adverse possession, and thirdly the same was not the property of the plaintiff-respondent since it is not included in the list of personal  properties  of the Ruler at the  time  of  merger. Much  argument  before (lie courts  below  and  particularly before  the High Court was centered around the  construction of  a  Farman of the ruler of the State made  on  28th  Magh Samvat 1981, equivalent approximately to 13th February  1925 A.D. It’s original in Urdu in English Alphabets followed by, its English translation is given hereafter                         URDU VERSION "Nakal Az Asal mashmoola misal no. 1020 confidential  record Kapurthala State. Minjanib  Jagatjit  Singh  Maharaj  Kapurthala.   Apne   sab pisaraan  ko  apni Oudh (wagia subajat mutahida)  ki  jaidad bataur  hiba hissa rasadi de chuka hoonuske baad  yeh  hukam sadar kiyajaata hai keh mere baad Tikka Sahib Raja  Paramjit Singh  bataur haqooq wali ahad meri tamam jaidad bakaya  har kisam  ka wahid maalik banega.  Aur isi tareh se yeh  laazam hoga keh har aanewala wali ahad ahluwalia khandan ki rawayat ke madenazar Ahluwalia khaandan ki tawarikhi hawelian  waqia Kapurthala, BabaJassa Singh Haveli aur Nihal Mahal  mausooma bataur Jallowkhana ka bhi maalik wa kaabiz reh kar is imarat ki tawarikhi haisiyat aur ehtaram ko kaim rakhega jo  imarat wabasta  hain, taake Ahluwalia missal ka chirag  ta-doam  is imarat  mein  roshan  reheh.  Aur is imarat  ki  malkiat  wa kaubaziyat  bhi  meri deegar jaidao se ilahida  tassawar  ki jakar  bahaq har anewala wali ahad ke haq men mansoob  hogi. Lihaza tehrir hiza bataur yaad-daasht ke likh kar rakh 951 di  hai  ki  indul haajit kaam awe.  Fakat  tehrir  28  Magh Samvat 1981. Daskhat Beharoofd Urdu (Jagatjit Singh) Maharaja  Kapurthala Bamai Mohar"                     ENGLISH TRANSLATION "Copy  of the original on file no. 1020.Confidential  Record Kapurthala State. On  the part of Maharaja Jagatjit Singh Kapurthala.  To  all my  sons  I have already gifted. in  accordance  with  their respective shares, my properties in Oudh (situate in  United Provinces),  After that it is ordained that after  me  Tikka Sahib  (heir apparent) Raja Paramjit Singh by his  right  of primogeniture  would  become  the sole owner  of  my  entire remaining  properties.   In  the same  manner  it  would  be obligatory on each succeeding heir apparent, keeping in view the  traditions of the Ahluwalia family, to be  also  owning and  possessing  the historic havelis of  Ahluwalia  dynasty situated  at Kapurthala, Haveli Baba Jassa Singh  and  Nihal Mahal,  known  as  Jallowkhana,  maintaining  its   historic character and respect which is connected to this  structure, so that the lamp of the Ahluwalia dynesty is kept alight  in this  structure  perpetually.   Further  the  ownership  and possession  of this structure be also treated separate  from my  other properties, and this shall vest in favour of  each succeeding  heir apparent.  Therefore, this writing is  made and kept for record to be put to use whenever necessary. Date  of  ordaining 28th Magh Samvat  1981  (13-2-1925  A.D. approximately) Signature  in  Urdu Jagatjit Singh Maharaja  Kapurthala  and Seal." We have done the exercise to translate the Farman ourselves,

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for we found that the translations done by the courts  below at  various  points,  were not happily  worded.   Urdu,  for decades, was once the official language in that part of  the country  and  had remained court language,  even  after  the independence, till State languages took over.  We thought it appropriate  to  put the matter in  the  right  perspective, since the Farman had to here adasa whole and then construed, to meet the challenge of Mr. Sibal. 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 law made  by  an elected   legislature  and  his  acts,   administrative   or executive,  were sovereign in character.  The  Farman  above referred to has 952 necessarily to be imported with those attributes.  When read as a whole it reveals three important factors:               (1)The  historic havelis namely,  Haveli  Baba               jassa   Singh  and  Nihal  Mahal,  which   had               commonly  come to be known as Jallowkhana  was               not  those  buildings  alone  but  the  entire               structure or complex containing those palaces.               appurtenances, and open spaces as part of  its               fortification, otherwise Jallowkhana would not               have  been referred to in singular,  when  the               palaces were referred to in plural.               (2)the  complex  as an  integrated  whole  was               ordained to be neither State property nor  the               personal   property   of  the   Ruler.    It’s               ownership and possession in the hands of  each               succeeding heir apparent by primogeniture  was               demised perpetually so as to keep the name  of               the  Ahluwalia  dynasty  perpetuated  in   the               Jallowkhana  as such.  It is in  the  singular               sense  that it was ordained that its  historic               character  and  respect to  the  fortification               shall  be maintained to keep the family  flame               alight, and               (3)the  structure known as Jallowkhana was  to               have a separate and special proprietary status               in  as  much as it was thenceforth  to  remain               neither the separate property of the ruler nor               that of the State but a property settled on  a               titleholder for keeping the family name  alive               perpetually and vesting it in each  succeeding               heir  apparent by the rule  of  primogeniture.               It  was in the nature of an impersonal  estate               as  opposed  to private  property  or  private               estate. Now  creating such kind of a special estate  undeniably  was within the Competence of the ruler.  His creative  dimension and  imaginative  skill need not have conformed to  any  set standards  or patterns known to jurisprudence or  law.   His sovereign   will  could  have  been  expressed  in   various innovations.   And this is an instance in which he  put  his sentiment,  attached to the complex, at a pedestal at  which it was neither to be treated as State property nor  personal property  either for him or in the hands of  the  succeeding heirs apparent in the line of primogeniture. It’s  ownership and possession in the hands of each succeeding heir apparent was  devised  as  purposive,  for  perpetually  keeping  its integrity and the name of the Ahluwalia  dynasty alive,  the Jallowkhana  structure symbolising such continuance  by  its special status and reverence. Once  it is held that Jallowkhana complex is one  integrated

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property, the argument of Mr. Sibal to the contrary is of no substance.   Whatever is composed thereof is Jallowk ban  a. There  cannot be two owners to such property.  The  property must  remain  with the heir apparent.  The State  of  Punjab cannot partially be an heir 953 apparent.   On the other hand when the  plaintiff-respondent terms the State of Punjab as a licensee, his plea cannot  be negatived on the mere plea that no licence fee was agreed to be  paid.   Payment  of  licence fee  is  not  an  essential attribute  for  the subsistence of a licence.The  mere  fact that the licence is of long duration dating back to the year 1925, as suggested by some of the plaintiff’s witnesses,  or of  1947  as said by the witnesses of the State,  is  of  no consequence.  Permissive possession, however long cannot  by itself  be said to have become hostile by a "Iong  lapse  of time",  more  so, on property, the nature and  character  of which  is  unique and singular, having attributes  of  being impersonal.   Such  status  of the property  rules  out  the second  objection of Mr. Sibal regarding adverse  possession for which even an issue was not claimed in the courts  below keeping  apart the pleadings.  Thirdly for the ruler  having not  listed  Jallowkhana  complex as part  of  his  personal properties at the time of merger, is for the reason that  it was  not his personal property.  Thus not agreeing with  Mr. Sibal  we  go on to hold that title to the  double  storeyed building  in  question  could  not  be  divested  from   the plaintiff  due to the unique and singular character  of  the property, it having attributes of being impersonal, as  also by  mere lapse of time, or on account of non-payment of  any licence  fee  or rent, or on adverse possession,  for  which there  is no plea, as well as the property in dispute  being an integral part of a complex, to which complex the claim of the State to its ownership has failed, and finally hold that the ruler on merger of his State need not have claimed  this to be his personal property to maintain the instant suit and seek  relief.  This determination leads us to hold that  the State  of Punjab has no title to the disputed  property  and hence must obey the mandatory injunction issued by the lower appellate  court  as  confirmed  by  the  High  Court.   We, however,  go  on to observe that  the  mandatory  injunction granted  by  the lower appellate court is so  weakly  worded that it is capable of being evaded totally, and in any event for  a very long time to the point of negating it.   In  any case  the  injunction  has  to  be  carried  out  within   a reasonable  time.   Thus, in order to  do  complete  justice between  the  parties,  we  have thought it  fit  to  fix  a reasonable  time  for  its  obedience.   Let  the  mandatory injunction  issued by the lower appellate court  be  carried out  in its entirety, latest by the end of three  years,  if not earlier, and on the breach of which the law may take its own course. With  these  observations, we dismiss the appeals.   In  the circumstances, the parties shall bear their own costs. G.N.                                    Appeals dismissed. 954