H.R.KRISHNAN,J. - (1.) IN this appeal from the concurrent decisions dismissing his suit, the Plaintiff's basic contention is that: In the erstwhile Jaora State, the Chief Minister, officially described as the Madarul. Muham, was competent at the relevant time under the Ruler's firman to exercise all his powers; however, any officiating or incharge Chief Minister could not pass such orders or exercise the powers of the Ruler. Accordingly, the order passed by the Chief Minister -in -charge one Naiyar Huseen, on 7 -10 -1944 holding that the principal on the mortgage held by the Plaintiff on the suit lands had been satisfied out of the income and that the lands should in accordance with a circular having the effect of law, be returned to the mortgagee -Defendant, was bad for want of jurisdiction, and is therefore fit to be set aside by the civil Court, in a suit filed after the Jaora State had been abolished and the State of Madhya Bharat had come into existence.
(2.) A complete answer to this contention is in the fact that the order of Naiyar Hussen, incharge Chief Minister, was taken up in appeal or memorial to the permanent Chief Minister who upheld it by his order dated 29 -4 -1945, so that whether or not Naiyar Hussen as Chief Minister -in -charge, could exercise all the powers of the Ruler, the same order had been passed by the permanent Chief Minister himself who undoubtedly and admittedly, could exercise these powers. Stated thus, the position is simple and there was a case for the return of the plaint. However, the Plaintiff did not mention this in his plaint and brought the suit just as if the order of Naiyar Hussen was the final order and has involved himself into the trouble and expense inevitable in litigation, trying to open matters settled in the regime of the erstwhile Jaora Durbar. The relevant facts are the following: In the erstwhile Jaora State, there was an "Inam" called "shujauta inam" of which the Inamdar was Khushalsingh, father of the Defendant -Respondent Rupsingh. In his time, he had mortgaged certain areas which are the subject -matter of the suit, to one Nanda Sutar, who, in his turn, transferred or assigned the mortgage in 1909 to the father of the present Plaintiff -Appellant. It had been described as a mortgage with possession, though, the Plaintiff contends that for a larger part of the period, the mortgagee the Inamdar Khushalsingh or Rupsingh, as the case may be, had been in possession. In 1912 itself, there seems to have been some dispute and the Chief Secretary disposing of a revenue appeal ordered that the land should be restored to the mortgagee's that is, the Plaintiff's or his father's possession. It is not clear how long the Plaintiff was in possession on the strength of this order; but we hear that again in 1935, there was a change in the rules at that time and the powers of the Political Agent to hear revenue appeals had been withdrawn but certain pending appeals were reopened. Because of this or some other reason, the matter was reopened and it was ordered in 1941 that the land should be left or given in the possession of the Plaintiff mortgagee. By that time, both Khumchand mortgagee and Khushalsingh mortgagor had died and their respective sons, the parties to this suit, had taken their places. Anyway, in 1941 it was decided by the Chief Minister Madar -ul -Muham that the mortgagee should continue in possession.
(3.) IT may be noted that the Chief Minister at that time was for all administrative, legislative and judicial purposes, the Ruler himself and whatever order he passed in such matters was final, he happening to be the highest executive and judicial authority at the same time. This power he derived from a firmam or proclamation made by the Ruler on the 25th January, 1941, published in extraordinary Gazette of that date. It is to the effect that for reasons of health His Highness the Nawab was empowering his Chief Minister, Madar -ul -Muham Saheb, to exercise all his powers in relation to all things arising in revenue Courts and executive affairs. It is also of interest to note that nobody was empowered as persona designata, but the power goes to the office of the Chief Minister.;