Passey, J. - (1.) THIS is a' revision by the Plaintiffs against the decree of the District Judge, Barnala, affirming that of the trial Sub Judge dismissing their suit for redemption of a house in Barnala which they village had been mortgaged on 2 -1 -1943 Bk. for 150/ - to Gurdit Singh, by Prema Ram and shibu Ram. Out of the Plaintiffs Jot Ram is the son of Prema Ram and Dhani Ram that of Shibu Ram. The mortgagee Gurdit Singh having died, he was represented in the suit by his sons Sucha Singh, Tara Singh and Sukha Singh. Nazool proceedings in respect of the house in question had been hanging fire since 12 -10 -1945 Bk. and they took a distinct shape on 1 -2 -1987 when the Revenue Minister of the erstwhile Patiala State made an order that an enquiry be set up to decide if the house was State property. On 12 -6 -1996 the Nazim Barnala made an order declaring the house to its have escheated to the State. On 10 -12 -2002 the table Plaintiffs brought the present suit for redemption arraying the sons of Gurdit Singh and the State as Defendants. They claimed that in their presence the State could not become the owner of the house and that the order of the Nazim dated 12 -6 -1996 could not affect their right to redeem it The State 1954 Pepsu/5 & 6 objected to the tenability of the suit on the ground according to the Law in force when the Nazim made his order, no suit could be brought against it. It was also contended that as the house had become State property by virtue of the order of the Nazim, no suit could be instituted to recover such property. The question naturally arose if the Plaintiffs could sue the State for recovery from it of property that had been declared to be State property by a competent authority. The issue having been decided against them by both the Courts below, the Plaintiffs have now come up in revision.
(2.) IT was conceded by Shri Dalip Chand that formerly according to the Law extant in the Patiala State no suit could be brought against the State at all; but that Law, he urged, had been modified by Farman Shahi No. 3 of 2 -1 -1941 which withdrew the bar on such suits. It was also contended by him that the order of the Nazim dated 12 -6 -1996 was not made in the proper exercise of his jurisdiction and that since the Plaintiffs were no party to the Nazool proceedings, it could not have any adverse effect on their equity of redemption, It has to be mentioned here that the jurisdiction of the Nazim to declare the house to be State property was not impugned in the plaint nor in the grounds of appeal in the lower appellate Court. Even in the grounds of revision in this Court no such plea has been taken. under Clause (e) of Section 114 of the Evidence Act a presumption can be raised legitimately that the Nazim performed his official acts in a regular manner and in compliance with the law and procedure. Besides on a reference to the Law of Escheat as it obtained in the Patiala State from time to time, who are satisfied that the Nazim was the only authority competent to hold whether certain property should escheat to the State or not and further that in the matter of Nazool the jurisdiction of civil Courts was expressly barred. The earliest rule having the force of Law concerning Nazool is to be found in the Settlement Commissioner's Robakar dated 13th Besakh 1959 laying down the conditions under which heirless estates were to escheat to the State, and the procedure to be followed in Nazool proceedings. The Robakar also specified the officers who could deal with such matters. Next came the Hidayat of the Revenue Secretary to the Ijlas -i -Khas giving more elaborately the procedure to be adopted in the decision of Nazool cases by Nazins. It re -iterated that the Nazims were to have the power to decide if a particular property was State property or not but added that in cases where an order of release was warranted, the Nazims were to submit them to the Revenue Secretary through the Commissioner. Instructions as to how the enquiries in Nazool cases were to be conducted were also repeated in that Hidayat. On 13th Bhadon 1972 by a circular of the Finance Secretary to the Ijlas -i -Khas, the jurisdiction to try such disputes was exclusively vested in the officers of the Revenue Department and the jurisdiction of the civil Courts to hear them was unequivocally taken away. It was further made specifically clear in that circular that no suit would lie against an adjudication by the Revenue authorities in a Nazool case. The Revenue Secretary to the Ijlas -i -Khas issued Anr. circular on 17 -2 -1921/7th Phagan, 1977 Bk. repeating the procedure to be followed in determining Nazool disputes and conferring a right of appeal upon a party aggrieved by a Nazool order. It is not denied by Shri Dalip Chand that a suit against the order of the Nazim declaring a property to have escheated, could not and had never been brought in a civil Court in the erstwhile Patiala State. He, however, relies upon the Farman -i -Shahi No". 3 of 1940 of His Highness the Maharaja of Patiala issued on 2 -1 -1940. By that Farman the right of His Highness' subjects to institute suits against the State in certain cases was recognised. The Farman stated that not with standing any Hidayat or Rule of procedure to the contrary, suits by private individuals against the State, or any State Officer in respect of any act purporting to be done by such State Officer in his official capacity shall be maintainable subject, however, to the reservation that no suit shall be instituted by any private individual against the State or any State Officer in respect of any act which may have been done or intended to have been done in good faith, or, which may have been done in pursuance of the provisions of any enactment, Hidayat, Ijlas -i -Khas order, or rules and regulations framed by a competent authority or in respect of which remedy may be available to such individual through the executive authority and, especially in respect of the causes of action arising with reference to: (1) An "Act of State". (2) State property, Jagirs and other grants. (3) Right to the offices connected with religious or charitable institutions under State control. (4) Dismissal from State service. It will be seen that according to this Farman even, no suit can be instituted by any private individual against the State in respect of State property, when that individual had a remedy available to him through an executive authority. An appeal against the order of the Nazim in such cases could lie to the Commissioner and a revision could further be taken to the highest Revenue authority. That relief was never invoked by the Plaintiffs The house in dispute had been declared to be Nazool by the Nazim in exercise of his jurisdiction duly conferred upon him by the Nazool Law of the State. The house having become State property, no suit for its recovery or for avoiding the order of the Nazim, could lie even under Farman -I -Shahi No. 3 of 1 -1 -1940.
(3.) SHRI Dalip Chand next tried to argue that in this case which was one for redemption, the State was not a necessary party; because it was neither the mortgagor nor the mortgagee, and that the mistakes made by the Plaintiffs in making it a party should not stand in their way to re -deem the house from the sons of Gurdit Singh mortgagee. The argument would have had force if the rights of the State had not been called in question in the trial Court and the lower appellate Court. The suit has been dismissed because of the State having become the owner of the house and because of the fact that the order of its officer (Nazim) dated 12 -6 -1996 could not be challenged in a civil suit. It is now much too late to raise the plea that the State is not a necessary party and to ask that it should be struck off the list of Defendants and the suit re -mended for determining the Plaintiffs' claim against the representatives of Gurdit Singh.;