Mineketan Das and Others vs The State of Orissa

Narasimham, C.J.—This is an appeal by the Plaintiffs against the judgment of the Subordinate Judge of Mayurbhanj dismissing their suit for recovery of possession of three villages namely Sharagada, Polasia and Rajaloka in the district of Mayurbhanj and for other consequential reliefs.

The first Plaintiff Minaketan Das is the son of one Balabhadra Das and the other Plaintiffs are either the sons or the grandsons of Minaketan. Balabhadra Das was said to have rendered outstanding service to the Ruler of Mayurbhanj State in the last century, in recognition of which the then Ruler of the State granted to him on Lakhraj tenure the entire villagers of Polasia and Sharagada and a portion of Village Rajaloka, by three Sanads. Balabhadra Das and his sons thus remained in peaceful possession of the aforesaid villages. But, after the death of Balabhadra Das misunderstandings arose between his sons and the Ruler, in consequence of which the Ruler on the 5th August 1937 passed an order known as Lakhraj Control Order (which came into force on the 7th August 1937) by which he took power to himself o confiscate any Lakhraj grant if there was absence of good behaviour and loyalty on the part of the Lakhraj holders in their relations with the State. The order of confiscation in this case was issued on the very day the aforesaid Order came into force, viz, the 7th, August, 1937. Plaintiff No. 1 alleged that as soon as he became aware of the order of confiscation, he made a representation to the Maharaja asking him to release the Nijjoti and Nijchas lands of the aforesaid villages (as given in the schedule to the plaint) saying that these did not form part of the original Lakhraj grant. The State released them for the year 1939-40 but subsequently resumed the Nijjote and Nijchas lands also sometime in 1941 and thus remained in wrongful possession of the three villages. Subsequently, the State authorities let out the lands on Sanja basis to various other tenants, but the Plaintiff''s family was totally excluded from possession of any part of the disputed property. After the merger of Mayurbhanj State with Orissa, the State of Orissa continued to remain in possession of these properties and the Plaintiffs, after giving notice u/s 80 CPC brought the present suit on 3rd August, 1949. In the original plaint the main relief claimed was for a declaration that the Lakhraj Control Order of 1937 was invalid, that the order of resumption and confiscation passed on the basis of that Order was equally invalid, that the Plaintiffs'' title to their share of the three villages was unaffected by the same, and that they were entitled to possession and also for mesne profits.

The trial court dismissed the suit holding that the Lakhraj Control Order was intravires, that, in any case, the Plaintiffs could have no cause of action against the State of Orissa even if any unlawful action was taken against them by the former Ruler of Mayurbhanj when he had full sovereign powers in the State.

The appeal was first heard by a Bench of this Court consisting of Panigrahi, C.J. and Mohapatra. J., by their order dated 16th February, 1954, remanded the suit to the trial court for findings on the following fresh issues:

(i) Where the (sic) and (sic) lands claimed by the Plaintiffs in mouzas Sargada and Palasia were covered by the Lakhraj grants in respect of those villages.

(ii) What was the subject-matter of the grants.

(iii) Where the Plaintiffs were entitled to occupancy rights in the anabadi plots and, if so, whether those rights have been extinguished by the order of resumption dated the 7th August, 1937.

(iv) Whether the Plaintiffs excavated the tanks and raised fruit orchards on anabadi plots, and whether these improvements were also liable to be resumed by the State.

The necessity for such remand arose mainly because the Plaintiffs contention all along was that the grant was of the revenue of the villages only, and not of the lands, that the Plaintiffs'' ancestor was an occupancy ryot prior to the date of the grant, and that subsequently also they purchased several occupancy holdings. They therefore urged that the order of resumption would affect only the collection of revenue as that alone was the subject-matter of the grant, and that their rights to the Nijjote and Nijchas lands in the villages remained unaffected, They also claimed occupancy rights in respect of their Anabadi plots and also claimed compensation or other reliefs in respect of the tanks said to have been evcavated by them at considerable expense and for the orchards raised by them.

After remand the learned Subordinate Judge, permitted additional evidence to be adduced by the parties and gave his findings as follows:

(i) The Lakhraj grant was only of the rental assessed in the villages and not of the lands in those villages and consequently the Nijjote and Nijchas lands in possession of the Lakhrajdars could not be resumed and confiscated by the State.

(ii) As regards the tanks, the Plaintiffs cannot claim any right.

(iii) As regards the fruit orchards which are said to be situated in plot Nos. 268 and 271 of mouza Shargada the State was not justified in ordering confiscation without a proper enquiry under Nayabadi proceedings and without paying the costs of improvement,

(iv) The Plaintiffs had occupancy rights in plot No. 269 of mouza Shargada, but plot No. 270 of that village was not the subject-matter of the litigation and should be deleted from the plaint.

The above findings were received in this Court on the 20th August 1954 and notice was served on the parties to file their objections, if any. The State of Orissa did not file any objections then. But at the time of the hearing of this appeal-after an interval of four years a petition was filed by the learned Advocate General, on behalf of the State of Orissa, for permission to file an objection to the aforesaid findings, with a prayer for condoning the delay. I am not satisfied with the reasons for this shocking delay of four years in filing objections to the findings. The prayer of the Advocate General must therefore be rejected.

But notwithstanding the rejection of the objection petition filed by the Advocate General, the Court is bound to examine the correctness of the findings and it is open to it either to accept or reject them. See Subbayya v. Rami Reddi ILR Mad. 344, Umed Alii v. Salima Bibi ILR All 383, and Mukhtara Vs. Sardara, . We therefore gave full opportunities to counsel for both sides to make their submissions on the correctness or otherwise of the findings and, having heard them fully we are satisfied that the findings are unassailable.

There was clear evidence to show that the original grantee Balabhadra Das had occupancy rights prior to the date of the grant. The certified copies of the San ads show that the grantee was entitled to 10 as. 8 pies. share of the rent assessed on the cultivated lands of the villages. Subsequently in Lakhraj Suit No. 79 of 1883 the rights conferred on Balabhadra Das by virtue of the Sanads were carefully enquired into, and it was decided by the highest authorities in the State that only the rent of the lands in the village had been granted to him. In the subsequent Settlements in the State also the same decision was confirmed. It is unnecessary to describe in detail the various items of evidence on which the learned lower court came to its finding. I have no hesitation in affirming the same.

At the time of the hearing of this appeal, Mr. H. Mohapatra, on behalf of the Appellant-Plaintiffs filed a petition stating that his clients would not press their claim for restoration of the Lakhraj tenure which had been confiscated by the Ruler by his order dated the 7th August 1937 and that his claim would be limited only to the Nijjote and Nijchas lands in the aforesaid three villages and also to the tanks which they claimed to have renovated and the orchards which they claimed to have raised. It is therefore unnecessary to examine the validity or otherwise of the Lakhraj Control Order and the order of resumption passed on the 7th August 1937. Accepting the findings of the lower court as correct, I would have decreed the Plaintiffs'' claim in respect of the Nijjote and Nijchas lands of the village and would have rejected his claim in respect of the tanks. As regards the orchards also I would have accepted the findings of the learned Subordinate Judge to the effect that these should not have been confiscated without a proper enquiry under Nayabadi proceedings and without payment of the costs of improvement. Similarly the Plaintiffs'' right to posses plot No. 269 of that village as occupancy tenants would have been decreed.

But in my opinion the entire suit must fail on the question of maintainability. The admitted facts are that the order of confiscation and dispossession of the Plaintiffs took place in 1937 and 1941, at the instance of the then sovereign of the State. Though the Plaintiffs made representations to the Sovereign, they did not pursue the matter by filing a suit against him in the law courts of the State. We are no evidence as to whether, under the laws in force in Mayurbhanj State at that time, a suit would have laid against its Ruler for recovery of possession of property unlawfully seized from a subject by him. But it is admitted that no regular suit for recovery of possession of those properties was filed so long as the Ruler was the sovereign of the State.

All the Orissa States except Mayurbhanj merged with the Province of Orissa on the 1st January 1948. The Ruler of Mayurbhanj also signed an Instrument of Merger on the 17th October 1948, and the Government of India took over the administration of that State temporarily on the 9th November 1948 and appointed a Chief Commissioner to administer the same. But on the 1st January 1949 the State merged with the Province of Orissa. Soon after merger, the Government of Orissa, as the delegated authority of the Central Government, and exercising powers u/s 4 of the Extra Provincial Jurisdiction Act, 1947 passed an order known as the Administration of Mayurbhanj State Order, 1949, applying the several laws then in force in British India to Mayurbhanj State and making detailed provisions for the governance of the State. Subsequently, the said order was replaced by the States Merger (Governors Provinces) Order 1949, and Mayurbhanj became a district in the State of Orissa.

The main constitutional question for decision is whether the State of Orissa, as the succeeding sovereign of the Ruler of Mayurbhanj, is liable to be sued for an unlawful act of dispossession committed by the Ruler of Mayurbhanj when he was the sovereign of that State, The law on this subject is well settled by a series of Privy Council decisions which have been reiterated in some of the recent decisions of the Supreme Court. The lower court rightly relied on Nayak Vaiesinghi v. Secretary of State AIR 1924 P.C. 216, where, after citing Secretary of State v. Kamache Boye Sahiba 7 M.I.A. 476, Cook v. Sprigg 1899 App. Call 572, and Sacretary of State v. Bai Rajbai AIR 1915 P.C. 59, their Lordships laid down, in unmistakable terms, that when a territory is acquired by a new sovereign, either by conquest, or by cession following a treaty or by, any other means "any inhabitant of the territory can only make good in the municipal courts established by the new sovereign such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing". This principle was reiterated in the Khan of Kalat''s cases (5), where it was pointed out that even if a subject held a valid grant from the previous Ruler he cannot enforce any claim based on that grant horn the succeeding Ruler, unless the latter had recognized the grant when he took over sovereignty. Such recognition, may be either, express or implied. But without such recognition the subject can have no claim against the new State. Their Lordships of the Supreme Court also in Virendra Singh and Others Vs. The State of Uttar Pradesh, , Raja Rajinder Chand Vs. Sukhi, and D.D. Cement Co. v. I.T. Commissioner AIR 1953 S.C. 816, have reiterated the same view. Doubtless, in the last decision, as well as in Virendra Singh and Others Vs. The State of Uttar Pradesh, , Bose, J. pointed out the sharp divergence of inter national judicial opinion about the rights subject against new State where there was a transfer of sovereignty. The English view (which has been reiterated in the aforesaid Privy Council decisions) is that, as against the new State, there can be no right except that which is recognised by that State; whereas the American view put forward by Chief Justice John Marshall in V.S. v. Percheman 32 U.S. 51, is that even after the transfer of sovereignty the rights of property, of the subjects, remained unaffected, unless there was a change in the law. So far as rights inter se amongst the subjects are concerned this proposition may be correct, but so far as claims by subjects against the new Sovereign are concerned the aforesaid view of the Privy Council which has been reiterated by their Lordships of the Supreme Court must be taken as binding on us. Hence, the Plaintiffs will not be entitled to bring the suit unless it can be shown that after merger of Mayurbhanj with Orissa, the Government of Orissa as the delegated authority of the Central Government either expressly or impliedly recognised the right of a subject of that State to sue them for any unlawful act committed by the Ruler of Mayurbhanj before the merger.

For this purpose one must carefully scrutinise the provisions of the Administration of Mayurbhanj State Order 1949 by which the Government proclaimed to the subjects of that State that they intended to govern the State in accordance with the provisions of that Order. The laws in force in British India were applied with minor modifications and paragraph 9 of that Order contained detailed provisions for settlement of pecuniary claims against the State or the Ruler of the State in his capacity as the Ruler. A summary procedure was prescribed for that purpose and a special machinery was also created. But as regards claims to immovable property against the Ruler no provision was made in the said Order. The implication is obvious. The new Sovereign was willing to investigate any pecuniary claims against the former Ruler and settle them after proper enquiry, but as regards claims to immovable property the new sovereign was not willing even to entertain any such claims. Doubtless paragraph 13 of the Order which dealt with transitory provisions contained the following clause:

(c) All appeals, revisions, petitions and other proceedings that were pending before any civil, criminal or revenue court on the 1st December 1948 shall be heard and disposed of by the appropriate civil, criminal or revenue courts constituted or continued by, or under this order and exercising jurisdiction which, as far as may be, corresponds to the jurisdiction of the Court before which such appeals and petitions were filed and such proceedings were commenced.

By virtue of this clause if the Plaintiff had filed a suit against the State of Mayurbhanj prior to the merger and if that suit was pending on the 31st December, 1948, either in the trial court, ''or before a court of revision or appeal, the Courts constituted under the aforesaid Order were bound to dispose of the same in accordance with law as applied in the State by virtue of paragraph 4 of that Order. But it is admitted that no civil suit had been filed by the Plaintiffs against the Ruler prior to the 1st January, 1949 and therefore no such suit can be said to have been ''pending'' in respect of the disputed property.

It was however contended that a revenue proceeding must be deemed to have been pending inasmuch as the order-sheet dated 9th December, 939 in Roj case No. 126 of 1937-38 shows that orders were passed up to the 6th September, 1948, but a scrutiny of the order-sheet shows that so far as the dispute between the Plaintiffs and the Ruler was concerned no revenue case was pending after the 9th December, 1939.

On that date, on receipt of the order of the Ruler the Nijjhote and Nijchas lands of the Plaintiffs were returned to them. The next order is dated the 7th May 1946 and it deals with the settlement of the disputed lands with others Sanja tenants. All subsequent orders upto the 6th September 1948 deal with the dispute between the State and those Sanja tenants and they have nothing to do with the Plaintiffs family. The orders subsequent to the 6th September 1948 were not exhibited in the case and it cannot therefore be said that any revenue proceeding between the Plaintiffs and the Ruler remained pending on 31st December 1948. Moreover even if such a proceeding be deemed to have been pending, the only right saved by Clause (c) of paragraph 13 of the Order was the right to continue that proceeding in accordance with the law as laid down in the Order. No independent right to file a fresh suit under the Code of Civil Procedure, after the merger, was conferred.

At the time of the hearing of this appeal Mr. H. Mohapatra on behalf of the Plaintiffs filed a petition for taking additional evidence under Order 41 Rule 27 Civil Procedure Court, and enclosed, along with that petition copies of certain orders passed in Roj Case No. 334 of 1948-49 in the Court of the C.R.O. (Chief Revenue Officer) of Mayurbhanj State. No explanation was given as to why this order-sheet was not exhibited either during the original trial, or when the suit was reheard, after remand, by the Subordinate Judge. The learned Advocate General opposed the admission of additional evidence at this stage. But apart from the objections raised by him, I am not satisfied that this additional evidence, even if admitted, would improve the Plaintiffs case in any way. The order-sheet only shows that on the 27th September 948, the Plaintiffs made a prayer for the return of the properties confiscated by the State and the Sadar Kanungo, after a careful examination of the relevant records submitted a report dated the 2nd November. 1948 to the Chief Revenue Officer. That Officer submitted the papers to the Chief Commissioner on the 12th November 1948. But by that time the Ruler of Mayurbhanj had signed the Merger Agreement and the State was taken over by the Government of India on the 9th November 1948 and a Chief Commissioner was appointed. The Plaintiffs have not filed a copy of the actual order passed by the Chief Commissioner on the note of the Chief Revenue Officer of Mayurbhanj dated the 12th November 1948, nor have the Plaintiffs in their application for letting in additional evidence under Order 41 Rule 27 CPC stated on affidavit, that the Chief Commissioner did not finally dispose of the matter or else that he kept it pending, to be dealt with by the Government of Orissa when they took over the administration of Mayurbhanj from 1st January 1949. In may opinion, therefore the copy of the order-sheet in Roj Case No. 334 of 1948-49 filed by the Plaintiff at the appellate stage does not show that any revenue case in respect of the present dispute remained pending on the 31st December 1948, in any court within the former State of Mayurbhanj. Even if such a proceeding was pending on that date, the only right which the Plaintiffs can have is to see that it is disposed of by the Revenue Court corresponding to the Court which exercised jurisdiction prior to that date. They cannot get an independent right of a fresh suit against the present Government.

Mr. H. Mohapatra then raised an ingenious argument based on paragraph 11 of the Administration of Mayurbhanj State order which may now be noticed. That Order conferred special rights on occupancy tenants holding lands in Mayurbhanj State so as to bring their conditions of tenancy to the same level as that prevailing in North Orissa, so far as unrestricted right of transfer, right over the trees, protection from enhancement of rent and other incidental matters are concerned. In the Explanation to the said paragraph the expression ''Occupancy tenants'' was defined as follows:

An "Occupancy tenant'' means a tenant or ryot having occupancy rights in his holding under the tenancy laws continued in force in the State under sub-paragraph (b) of paragraph 4.

Mr. Mohapatra contended that so far as Nijjhote and Nijchas lands are concerned, the Plaintiffs became ''occupancy tenants as soon as the tenure was resumed in 1939 and though they were unlawfully and forcibly dispossessed from those lands from 1941, they should, in law, be deemed to have continued as occupancy tenants of the same on the 1st January 1949, when the said Order came into force. This argument does not appeal to me. We have no idea as to what were the tenancy laws in force in Mayurbhanj State during the years 1937 to 1941. It cannot be said with certainty therefore that the Plaintiffs were occupancy tenants in respect of the Nijjhote and Nijchas lands at the time of their final eviction from those lands in 1941. Even if we assume that they had occupancy rights in those lands they will not be occupancy tenants for the purpose of paragraph 11 of the aforesaid Order because they were not in possession as tenants on the date on which the said order came into effect (viz. 1st January 1949). That Order covers only those persons who were holding lands as occupancy tenants on that day it cannot have any application to those persons who had been evicted from their lands long before that date. The right of such evicted persons to be restored to possession would depend upon the tenancy laws in force on the date of their eviction and the Plaintiffs should have applied to the proper revenue courts in the State of Mayurbhanj for restoration prior to its merger with Orissa.

In my opinion, therefore the suit is clearly not maintainable. Even if it be assumed that the Plaintiffs had a right to sue the Ruler in the Civil Court that right of suit was not recognised, either expressly or impliedly by the new Sovereign which took over the Administration of the State after the merger, Virendra Singh and Others Vs. The State of Uttar Pradesh, , is clearly distinguishable because there the cause of action arose on account of the unlawful action of the State Government, in revoking the grants of the previous Ruler on the 29th August 1952 nearly 4 year after the merger and more than two years after the commencement of the Constitution. If the order of revocation of the grants had been made at the time of the merger there would have been no right of suit against the Hew Sovereign as was held in Khan of Kalat''s case AIR 1941 P.C. 64. The present case is in the other extreme in as much as the Ruler himself had revoked the grant while he was still exercising the full powers of a Sovereign, and the Plaintiff-Appellants did not bring any suit against him in the law courts challenging the legality of such revocation.

The appeal is therefore dismissed, but there will be no order for costs of this Court.

Das, J.

I agree.

Appeal dismissed.