Teja Singh, J. - (1.) THIS regular second appeal has arisen out of a suit for possession of land brought by Surja and Ganeshi of village Dolana. They alleged that the suit property belonged jointly to one Ganga Ram and them, Ganga Ram had half the share .in the land and the other half belonged to the Plaintiffs in equal shares. For some reason or the other the Plaintiffs father left the village and made over the land to some one else with the request that he should look after it on his behalf. After the death of their father the plain tiffs also remained out of the village and the land continued to be in possession of the person who was managing it on their father's behalf. In or about the year 1985 the State authorities started fazool proceedings about the land and on 23 -8 -1992 the land was mutated in the name of the state on the ground that it had become escheat. The Plaintiffs maintained that the entire escheat proceedings were illegal and the order sanctioning the mutation did not affect their right because no notice was ever given to them. They further maintained that Ganga Ram having died and the Plaintiffs being his only reversioners left there were entitled to his share also The State opposed suit. It pleaded firstly that the land having the declared to have become escheat by an order of the, Collector no suit in respect of it could be entertained by a civil Court. Secondly, it pleaded that the Plaintiffs had no right to Ganga Ram's share because they were not his reversioners and that the suit was barred by time. The trial Sub -judge framed only a preliminary issue namely, whether the suit was not maintainable in a civil Court. It found the issue against the Plaintiffs and dismissed their suit. The Plaintiffs appealed to the District Judge but failed there also. Hence this second appeal.
(2.) BEFORE proceeding further I cannot help observing that had the trial Sub -Judge taken the parties' statements before framing the preliminary issue and tried to clear all the points upon which there was dispute between them the probability is that not only he would not have decided the preliminary issue against the Plaintiffs but he would have disposed of the case on merits and the parties would have been saved the bother and expense of all these protracted proceedings and the remand order which we are now constrained to make. I am also of the view that while deciding the preliminary issue in the manner that the Sub -Judge did, and this remark applies also to . the learned District Judge, he did not carefully read the Bobkar and the Farman -I -Shahi upon Which he relied. The law relating to Nazool proceedings has been recently referred to and discussed by this Bench in Joti Ram v. The State of Pepsu', AIR 1954 Pepsu 33 (A) and it is not necessary to recapitulate it here. All that is necessary to mention is that the Nazool law was first enforced in the erstwhile Patiala State by means of the Settlement Commissioner's Robkar dated 13th Besakh 1985 and that it applied only to those cases where a person owning property died without leaving any heirs. It was held by the Bench in the above mentioned case that the only person who could decide whether or not certain property has escheated to the State was the Nazim and since it was open to the party aggrieved from the Nazim's order to appeal to higher revenue authorities, Jurisdiction of civil Courts in the matter of Nazool was expressly barred. We also pointed out that if there existed any scope of doubt in this matter it was set at rest by a circular of the Finance Secretary of the Ijlas -i -Khas issued on the 13th Bhadon 1972 Samvat which invested the revenue Courts with the exclusive jurisdiction to try all Nazool cases and took away the jurisdiction of civil Courts. The Appellants' counsel does not question the correctness of the view taken by us fin the above case. What he urges is that since e suit property in this case belonged to the Appellants and Ganga Ram and it was not a case of an estate left by an heirless proprietor, the proceedings were without jurisdiction and the Collector had no power or right under the Nazool law to declare that the property had become escheat. He further argues that because the escheat proceedings including the order of the Collector were vitiated by the inherent want of jurisdiction the persons who started or decided them, they were void and as such the civil Court could not take any notice of them.
(3.) IN my judgment these contentions are well founded. The copy of the chithha shajra nasab and haqooq malkan of village Dolana (Ex. R/I) shows that the Nazool proceedings in this case were started in compliance with the order of the ab Tehsildar. The order was to the effect that it appeared to the Naib Tehsildar that some of the owners of the village including Ganeshl, Surja, Mst. Biran widow of Kahna and Ganga Ram had been absent from the village for 69 years that they did not appear to have any heir within the fifth degree, and that the Patwari should make a report with regard to them. On this the Patwari made a report on the 5th Besakh 1986 that he had come to know from the badar tasdeeq of the village that the estate of Ganeshi, Surja, Biraa and Ganga Ram was liable to be escheated to the State. On this report the law was set in motion and notices were issued to certain persons. As no one appeared to contest the proceedings the Naib Tehsildar Narnaul by his order dated 9th Poh 1990 made the following recommendation: Rattan Lai is absent (it is not known who Rattan Lai was and what concern - he had with the land). He has not produced any proof, nor have the owners of the land cared to attend the Court in spite of notice to them and produce any evidence. In these circumstances when no one has attended the Court nor has any evidence been produced, I consider that the land mentioned in the Fard Intikhab and which relates to (i.e. belongs to) Ganeshi Lal Surja, Biran and Ganga Ram, is liable to be escheated. The Naib Tehsildar submitted this recommendation to the Tehsildar who in his turn forwarded it to the Nazim of the District. The final order made by the Nazim on 25th Poh 1990 reads as follows: We concur with the Tehsildar report. Accordingly the land is declared. to be Nazool property. This should be entered in the register of Nazool property and the record of the case should be submitted to the Ministry. The Tehsildar should be directed to take possession of the land and start proceedings for giving the land on lease or for auctioning it. The Collector's order was later approved by the Revenue Minister. All this shows that the property was declared to be escheat merely because the Plaintiffs and Ganga Ram who were the owners according to the entries in the revenue papers were absentees from the village, but if we turn to the several circulars and Hadayats which dealt with the Nazool law there can be no doubt that such a procedure was not legal. As I have pointed out above the property could escheat to the State only if the owner of it had died without leaving any heir or a reversioners within the degree recognised by law and not otherwise. If an owner leaves the village and goes away and his property is taken possession of either by some other person or by the State, he may lose his title because of the adverse possession, but the Nazool law can have no application to a case of that kind. This means that the whole procedure adopted in this case beginning from the Naib Tehsildar's order and the Patwari s report of 5th Besakh 1986 made in obedience to that order, and ending with the Collector's order of 25th Poh 1990 declaring the property to be escheat was without jurisdiction. It was urged by the counsel for the State that even if the Collector's order was illegal it could only be set aside by the higher revenue authorities and it could not be made the subject matter of the civil suit. This argument is not sound. When an authority is given a certain power by a particular law, it must exercise that power within the four corners of that law and if it travels beyond the law and does some thing which the law does not authorise him to do, the order made by him is void and the civil Court can ignore it. As regards the provision of law that the order of the Collector declaring the property to be escheat cannot be questioned by a civil Court or that no civil suit lies in respect of such a property, it applies only to those orders which the Collector had jurisdiction to make in proper proceedings. When, as in this case, the entire proceedings were vitiated by want of jurisdiction, the Collector's Order was in fact no order in law and accordingly the Plaintiffs suit that they were the owners of the suit property not -withstanding the Collector's order, was not barred.;