- (1.)BY this judgment dated January 21, 1961 the Civil Judge of Sirohi has allowed the appeal of defendant Chainmal and dismissed the suit of the plaintiffs, and that has given rise to the present second appeal.
(2.)EVEN though the suit in the present case was instituted on July 22, 1958, the parties have been fighting for their respective claims for a period of over 20 years. The reason is that while the plaintiffs have made the claim that their father Jalamchand purchased the suit land bearing survey No. 1990, and the other piece of land bearing survey No. 1939, in Sirohi town, from Samarthmal, father of defendants Lakhpatraj, Dalpatraj and Sajjanraj by sale-deed Ex. 1 dated July 22, 1946, and took possession thereunder, defendant Chainmal has been resisting the claim to the suit land (No. 1990) on the ground that it belonged to his ancestor Dhanna Ramji under "sanad" Ex. A5 dated July 25,1897. The dispute arose because after purchasing the land from Samarthmal, Jalamchand filed an application the same day for the issue of a "sanad" in accordance with the provisions of the Sirohi State Building Sites Sanad Rules, 1935. A notice inviting objections was therefore issued in the State Gazette dated August 1, 1946, by the concerned Tehsildar, and Chainmal filed an objection that he was the owner of survey No. 1990 and so its "sanad" should not be issued to Jalamchand. The Tehsildar rejected the objection and Chainmal preferred an appeal to the Revenue Commissioner who remanded the case for further enquiry. The Tehsildar then made an order on June 23, 1952 asking the plaintiffs to have the controversy decided by a civil court. On appeal, the Collector confirmed the order of the Tehsildar and so the matter was taken to the Additional Commissioner. He allowed the appeal, framed certain points for determination and remitted the case for a fresh decision by the Tehsildar. On December 31, 1954 the Tehsildar made order Ex. 9 directing the issue of the "sanad" to Jalamchand as he took the view that Chainmal's "sanad" Ex. A. 5 had ceased to be operative because of the issue of a "sanad" in favour of Samarathmal on August 18, 1916. Chainmal filed an appeal to the Collector, but it was dismissed on March 25, 1958. The plaintiffs, however, instituted the present suit for possession on July 22, 1958 because, according to them, defendant Chainmal encroached on a portion of the land covered by survey No. 1990 on May 24, 1952. In the meantime, Chainmal preferred an appeal to the Additional Commissioner against the aforesaid decision of the Collector, but it was dismissed on April 30, 1964. This is how the plaintiffs have succeeded in obtaining a "sanad" for the suit plot of land on March 31, 1964, but have filed the suit for possession on account of the alleged encroachment. These facts are not in dispute.
Chainmal took the defence that the suit land belonged to him, because his ancestor Dhanna Ramji held a valid "sanad" (Ex. A5) for it dated July 25, 1897. He also claimed that he was all along in possession of the land and that, at any rate he acquired a right to the property by adverse possession. It is not nece-ssary to refer to the other pleas. Defendant Lakhpatraj, and Sajjanraj, the sons of Samrathmal, pleaded mainly that their father Samarthmal made a valid sale of the land in favour of Jalamchand because he held "sanad" Ex. 2 dated August 18, 1916. They also pleaded that their father had delivered the possession of the property to Jalamchand at the time of the sale.

The trial court framed a number of issues, but it will be enough to- mention that it reached the conclusion that the sale of the land by Samarthmal to Jalamchand was valid and that Samarthmal also delivered its possession to Jalam Chand. On this basic finding the trial court held that the possession of defendant Chainmal was wrongful, and decreed the suit against him. Chainmal therefore preferred an appeal which has been decided by the impugned judgment of the learned Civil Judge of Sirohi dated January 21, 1961 and as that learned Judge has allowed the appeal and dismissed the suit, the plaintiffs have filed this second appeal.

It may be mentioned that although several issues were framed in the trial court, the learned counsel for the parties are in agreement in this court that the fate of the case will depend entirely on the finding on the question whether Samarthmal was the owner of the suit land and validly sold it to Jalamchand, father of the plaintiffs. In other words, the only question for decision is whether Samarthmal's "sanad" Ex. 2 dated August 18, 1916 was valid inspite of the existence of the earlier "sanad" Ex. A. 5, dated July 25, 1897 in favour of Dhanna Ramji. The learned counsel also agree that the learned Judge of the lower appellate court did not appreciate the full significance of Samarthmal's "sanad" Ex. 2 and Chainmal's title deed Ex A. 5, and that this Court may therefore examine the question of their relative validity afresh as a question of law.

In this connection it has been argued by Mr. Rastogi, learned counsel for the plaintiffs-appellants, that Samartmal's "sanad" Ex. 2 having been issued by H. H. the Maharaja of Sirohi, who was the sovereign, under his own signature, on 18-8-1916, it had the effect of cancelling the earlier "sanad" Ex. A. 5 dated 25-7-1897 in favour of Bhansa Ramaji through whom defendant Chainmal claims his title to the property. Learned counsel has, in this connection, argued that the narration in "sanad" Ex. 2 that the suit land was 'khalasa' is of considerable importance and that as the sovereign issued a "sanad" for the 'khalsa' land in favour of Samarthmal, it should be held that the sovereign had so exercised his sovereign will as to make the land the property of the State and to pass its full title to Samarthmal. Thus the learned counsel has argued that in his capacity as the sovereign, His Highness the Maharaja of Sirohi had the fullest control and authority over all his subjects and their property within his state, and that when in exercise of his sovereign will he asserted that the suit land was his own property, and gave it away to Samarthmal, his act or order to that effect was final and could not be challenged in his time. To support his argument, the learned counsel has placed reliance on Gurdwara Sahib Siri Tej Bahadur Gaja vs. Piyara Singh (1), Subrao vs. Bhupal Dasharath Katte (2), and Director of Endowments, Government of Hyderabad vs. Akram Ali (3 ). On the other hand, it has been argued by Mr. C. L. Agarwal, learned counsel for respondent Chainmal that in issuing "sanad" Ex. 2 His Highness the Maharaja of Sirohi did not exercise his sovereign will, but that it merely evidenced a contract of sale between him and Samarthmal as the transaction was of such a nature as to require the consensus of the minds of the two parties, viz. , the Maharaja of Sirohi and Samarathmal inasmuch as the Maharaja made the sale because Samarathmal gave a bid at the auction for the purchase of the land. The learned counsel has tried to support his argument by reference to the decisions in Maharaja Shree Umaid Mills Ltd. vs. Union of India (4) and Bengal Nagpur Cotton Mills Ltd. vs. Board of Rev. M. P. (5 ).

In order to decide the competing claims for validity of "sanads" exhibits A5 and 2, it is necessary to examine them closely. Ex. A. 5, as has been stated, is a "sanad" in favour of Dhanna Ramaji dated July 25, 1897. It has been signed by His Highness the Maharaja of Sirohi and states that because Dhanna Ramaji had purchased plot No. 1990 from Kothari Dana for Rs. 178/-, a "sanad" was being issued to him to evidence the purchase. For the purpose of examining the validity of this document, I have proceeded on the assumption that defendant Chainmal is a descendant of Dhanna Ramaji, although Chainmal's claim to that effect has been strongly opposed by the learned counsel for the plaintiffs-appellants. It is, however, not disputed that Dhanna Ramaji died issueless in Samvat 1957, some three years after obtaining "sanad" Ex. A. 5, and that his widow Smt. Sappu died in Samvat 1988 without taking anyone in adoption. It is also not disputed that Smt. Kesi, who is said to be the widow of Dhanna Ramaji's brother, obtained a succession "parwana" Ex. A2 in her favour on February 1, 1935, but she or Sappu did not obtain any fresh "sanad" in respect of land No. 1990. Smt Kesi adopted defendant Chainmal and Ex. A3 dated September 3, 1942, is said to be the "parwana" of the State Government to that effect. Chain Mal also did not, it is admitted, obtain any fresh "sanad" in respect of the suit land, so that he has relied entirely on "sanad" Ex. A. 5 in favour of Dhannaramaji.

As against this, there is the "sanad" Ex. 2 dated August 18, 1916. It has also been issued by His Highness the Maharaja of Sirohi under his own signature and contains a statement to the effect that the two pieces of land Nos. 1989 and 1990 referred to in it were the property of the State (Khalsa ). Then it has again been repeated in the "sanad" that that State property was given by the Maharaja to Samarathmal, who had purchased it in the auction.

It has not been disputed that the then Maharaja of Sirohi was an absolute sovereign, who exercised uncontrolled sovereign powers in the internal or domestic affairs of the State including the rights of its citizens, in the same way as the Nizam of Hyderabad or the Maharaja of Gwalior or the Maharaja of Udaipur. Their Lordships of the Supreme Court have held in a number of cases that such a ruler was a sovereign so far as the internal or domestic affairs of his State were concerned and that all his orders in that capacity were final and binding. I may in this connection refer to the decision in Director of Endowments, Government of Hyderabad vs. Akram Ali (3), where their Lordships have held that the Nizam was an absolute sovereign regarding all the domestic matters at the time, that his word was law and that he had the power to confiscate the property of his subjects. Reference may also be made to the decision of their Lordships of the Supreme Court in Madhaorao Phalke vs. State of Madhya Bharat (6), in which, while considering the effect of an order of the Maharaja of Gwalior, their Lordships held that all his orders, however issued, would have the force of law and would govern and regulate the affairs of the State including the rights of its citizens. In this connection their Lordships further observed that the distinction between executive orders and legislative commands is likely to be merely academic where the Ruler is the source of all power. So also, in Trilkayat Shri Govindlalji Maharaj etc. vs. State of Rajasthan (7) their Lordships made the observation that in the case of an absolute Ruler like the Maharaja of Udaipur, it is difficult to make any distinction between an executive order or a legislative command issued by him, because any order of such a Ruler has the force of law and governed the rights of the parties affected thereby. Reference may in this connection also the made to the decision in Raj Kumar. Narsingh Pratap Singh Deo vs. The State of Orissa (8) where again their Lordships made the following observation: - "it is true that the legislative, executive and judicial powers are a!l vested in an absolute monarch; he is the source or fountain of all these powers and any order made by him would be binding within the territory under his rule without examining the question as to whether it is legislative, executive or judicial;. . . . . . . . "

It would thus appear that as His Highness the Maharaja of Sirohi was an absolute monarch in his internal or demostic affairs, his orders were binding on his subjects and were final with regard to their property in the State. It is therefore a matter of great significance that His Highness made an assertion in "sanad" Ex. 2 that the two pieces of land Nos. 1989 and 1990 were 'khalsa' lands, and this assertion of the absolute monarch was sufficient to extinguish the rights, if any, of any of his subjects in those lands. The fact that His Highness made such an assertion at two places in the document (Ex. 2), was therefore sufficient to extinguish the claim of the descendants of Dhanna Ramaji or, for the matter of that, of any one else in the suit land. Then there is the further fact that His Highness treated that land as his own property by upholding its public auction as State property. To this extent document Ex. 2 shows that His Highness unilaterally and categorically exercised his sovereign will and acted on it, and I have no doubt that this was quite sufficient to extinguish the right of any earlier holder of the land even if it had not been extinguished by any specific earlier order, for when His Highness made that assertion or treated the land as his own, it was not open to any of his subjects to challenge the sovereign's will.

It is true that a case where an absolute monarch enters into a contract with his subject rests on a different footing, the reason being that such a case requires the consensus of minds of the two parties and there is really no question of the exercise of the sovereign will. This is why a distinction has been made by their Lordships of the Supreme Court in Maharaja Shree Umaid Mills Ltd. vs. Union of India (4) and Bengal Cotton Mills Ltd. vs. Board of Revenue, Madhya Pradesh (5) where the order of the sovereign was held to be contractual in nature. In the case of document Ex. 2, however, it is obvious that in making the assertion that the suit land was state property, the Maharaja of Sirohi did not act for the benefit of any purchaser, for the assertion was of a general nature, and it was far reaching in its operation and effect inasmuch as it bound all the subjects of the Ruler including the descendants of Dhanna Ramaji. It is futile, therefore, to argue that the whole of the document (Ex. 2) was of a contractual nature, and it seems to me that only that part of it which evidenced the sale to Samarathmal was a contractual document and it would of course not be binding on those who were not contracting parties to it. But so far as the assertion that the suit land was the property of the State is concerned, the order was undoubtedly made in the exercise of the sovereign will of the Ruler and as it was binding on all the subjects of the State, it undoubtedly had the effect of making the land the property of the State even if some one of His Highness' subjects held an earlier "sanad" for it. Besides, as has been stated, His Highness treated the property as State property in approving its sale by auction. All this had the effect of cancelling or setting at naught the earlier "sanad" Ex. A. 5 of 1897. It is nobody's case that His Highness made any other order in regard to the suit land thereafter or that the assertion regarding the State's ownership was recalled or modified, and defendant Chainmal cannot therefore make any use of "sanad" Ex. A. 5 which really lost all its value and ceased to evidence the title of the successors of Dhanna Ramaji, if any.

On the other hand it appears from Chainmal's own statement that he did not raise any objection when the house, which stood on the suit land, was demolished by the Municipality, and he was so little interested in the land that he has not been able to show who built a wall on it in 1940 or 1941. This conduct of the defendant goes to show, further, that he was conscious of the fact that he had lost any possible claim on or title to the suit land on account of what His Highness had stated in "sanad" Ex. 2. It may also be mentioned that even though "sanad" Ex. 2 was issued as far back as 1916 after a public auction, no evidence has been led to show that any objection was raised then, or thereafter, by any of Dhanna Ramaji's successors. In fact, as would appear from Ex. A. 6, when defendant Chainmal was questioned about his possession over the suit land as far back as October 10, 1946, he had to admit that he had no knowledge about it. He would not have been so ignorant if the land had continued to be his property, or that of his adoptive mother as the heir of Dhanna Ramaji.

So when it has not been shown that His Highness's assertion or expression of sovereign will to treat the suit land as 'khalsa' was ever reconsidered, abrogated or annulled by him or his successors, it is only fair and reasonable to conclude that the title of any one else in the property was extinguished, at any rate, on August 18, 1916 when His Highness expressed his will and treated the land as 'khalsa' land. It must, therefore, be held that "sanad" Ex. A. 5 ceased to be operative from that date and "sanad" Ex. 2 vested its title in Samarathmal. As it is not disputed that Jalamchand, father of the plaintiffs, purchased the land from Samarathmal under document Ex. 1 dated July 22, 1946, the plaintiffs are undoubtedly its owners and they must, therefore, succeed in their claim in the suit.

(3.)AS the learned counsel for the parties have agreed that the fate of the case would depend on the decision in regard to the validity of the two "sanads", and as it has been held that "sanad" Ex. 2 is the only legal document of title, the appeal is allowed, the impugned judgment and decree of the lower appellate court are set aside and the decree of the trial court restored. The cross-objection fails and is dismissed. In the circumstances of the case, the parties are left to bear their own costs throughout. .