- (1.) 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 1967. 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 Nov., 1964 principally against the Union of India and the Government of the Union Territory of Himachal Pradesh for a declaration of his proprietary rights in about 1720 acres of forest land situate in Khatas Nos. 1and 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 and Co., a forest contractor, was added as pro forma defendant No. 3 but no relief was claimed against the said party. 'The said suit was filed on l8th 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 to the High Court of Delhi, Himachal Bench, Shimla and was renumbered 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 ownership in respect of Khatas Nos. 1and 2, Khataunis Nos. 1to 25 comprising 106 plots bearing Khasra Nos. 1, 2, 6, 23, 30, 34, 44, 108, 218, 222, 309, 341, 409, 606, 4 and 33 situate in Chak Addu without prejudice to the application, if any, of Sec. 27 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. The contesting defendants Nos. 1and 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, Exhibit 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 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 Art. 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. 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 Government 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. 1 st 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 Sept., 1942, Exh. D-1, for a term of fifty years w.e.f. 1 st 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 traces 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 instalments of Rs. 50,000/- on 30th April and 31 st 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 agreement the Raja granted to the Punjab Government the entire and sole control of the forests of Bushahr, exepting those reserved for his use under clause (II) thereof.
(2.) 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 Sec. 4 the Province of the Punjab as constituted under the Government of India. Act, 1935, ceased to exist and the same was reconstituted into two new Provinces of West Punjab and East Punjab. In S. 7(l) 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 plaintiffs father Raja Padam. Singh having died in April, 1947, his elder 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 Bushahr 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 agreement of lease dated 25th Sept., 1942 was Formality terminated by mutual agreement between the East Punjab Government and the Himachal Pradesh Administration on 1 st April, 1949.
(3.) 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 Nov. 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 facturn of the grant cannot be disputed as it has been referred to in the subsequent two grants executed by the plaintiff's father on 29th Phagun 1999, Bikrami (i.e. 11 th March, 1943 - Exh. P-2) and 24th Maghar 2003, Bikrami (i.e. 10th December, 1946 - Exhibit P- 1). These two -subsequent grants Exhibit 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, Bikrami, was transferred to the plaintiff with the Rani Sahiba's consent. Thus, the plaintiff became the sole grantee 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 or 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 revenue 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 Nos. 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 Nos. 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 plaintiffs 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, Bikrami. The third grant of 24th Maghar 2003, Bikrami, was executed by the plaintiffs 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 aforesaid 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 time, make a claim thereto. After the execution of the third grant an order No. 258 dated 3rd December, 1946, Exhibit P- 14, was made by the plaintiff's father directing that all the lands and 'basas' 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 plaintiff's 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 validity of the patta dt. 10th Dec., 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 I 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 mutated 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 by 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 necessitating 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 Rampur, 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 tinder 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 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 Forests, wrote a letter dated 27th May, 1960 marked secret, Exh. D-3/4, wherein 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 allowed 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 /Vl dated 29th February, 1959. Thereafter the Divisional Forest Officer by his letter No. C-11-37/810 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 10B (Part) in Khasra No. 341. By a subsequent letter No. C11-37/ 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.;