Sharma - (1.) THIS is the plaintiff's appeal against the appellate judgment & decree of the learned Dist. Judge, Alwar, and arises under the following circumstances: -
(2.) BUDHALAL plaintiff filed a suit in the court of the Munsif Alwar for a declaration that the sale deed dated 24th January, 1946 executed by the Government of Alwar in favour of Bhonralal defendant, No. 2, for a sum of Rs. 100/- be declared void and ineffective as against the plaintiff. The sale deed related to the property marked in the sketch attached to the plaint with red colour and numbered 1, 2 & 3 in red pencil. The plaintiff's case is that the property sold had belonged to one Giyasi Ram, Giyasi Ram died heirless and his property was escheated to Alwar Durbar and came into possession of the Nazool Department of Alwar State. The ground floor of plot No. 1 was sold to the plaintiff through patta dated 19th March, 1913. The first floor over the plots Nos. 2 & 3 had been mortgaged by Giyasi Ram in favour of Jivraj & Kherati through patta dated the 17th March, 1875. Jivraj and Kherati died leaving Mst. Gulab, defendant No. 3, pro forma, as their heir The Alwar Government on the 24th January 1946, in contravention of the Nazool Rubs, sold the ground floor No. 1 and the building standing on the plots Nos. 2 & 3 to Bhonrelal, defendant No. 2. The plaintiff, therefore, had a right to have the sale deed declared void against him because the property was sold by private negotiations to Bhonrelal who was not the only person, whom the said property was suitable. The defendants Nos. 1 & 2, who were principal respondents, raised several objections. One of their objections was that the property was suitable for defendant No. 2. Another and more important objection was that the plaintiff had no right to sue. The learned Munsif Alwar dismissed the suit on the ground that the plaintiff had no right to sue. On appeal, the learned Distt. Judge Alwar upheld the decree of the first court on the same ground. The plaintiff has now come in second appeal. It was argued on behalf of the plaintiff-appellant that the lower courts were wrong in holding that sec. 42 of he Specific Relief Act did not apply to the suit like the present and that under the said section the plaintiff had no right to bring the suit. It was contended that the plaintiff had a legal character in as much as he was one of the persons interested in purchasing the property. It was further argued that the property was suitable only to the plaintiff and it could not be sold by private negotiations to the defendant No. 2. It was further argued that sec. 42 of the Specific Relief Act is not comprehensive, so far as the declaratory suits are concerned and that suits can be brought, even apart from the provision of sec. 42. Rulings of certain High Courts were cited in support of the latter view. They are 1933 Alld. 488 (Shri Krishna Chandra vs. Mahavir Prasad & others), I.L.R. 22 Mad. 270 P.C. {Robert Fitcher vs. The Secretary of State for India in Council & Robert Pitcher vs. The Robert C. Orr. & others), and A.I.R. 1916 Madras 1061 (Muchirazia Ramchand Rao vs. Secretary of State). On behalf of the respondent No. 1, the Government Advocate appeared. On his behalf, as also on behalf of the respondent No. 2, it was argued that the real question in the case was whether the plaintiff had a right to sue. A declaration may be sought only by a person who has a right to sue for declaration. The plaintiff has not proved what right he had to bring the suit. The suit was, therefore, rightly dismissed by both the courts below. I have considered the arguments adduced on behalf of both the parties. It was held by the various High Courts, whose rulings have been cited on behalf of the appellant and which I have quoted above, that sec. 42 is not exhaustive so as to exclude all other forms of declaratory suits. In A.I.R. 1933 Alld. 488, the suit was brought by a minor through a guardian for declaration that a partition decree passed against him was not valid as he was not effectively represented by his guardian who was very negligent and careless and did not properly look after his case. In I.L.R. 22, Madras 270 the suit was for cancellation of separate registration of a certain village belonging to the plaintiff. In A.I.R. 1916, Madras 1061, the suit was brought by a person holding a Vakalatnama from a party under Sec. 24 of the Madras Villages Court's Act, as he was denied the right of appearing and pleading before the Village Court; he brought the suit to have that right declared. It was held that even apart from sec. 42 the plaintiff had a right to sue. In all these cases, therefore, the plaintiff had a right to sue for the declaration sought for. In the first case the plaintiff wanted to have the decree declared void which was passed against him. In the second case the plaintiff wanted to have the separate registration of a village belonging to him cancelled. In the third case a person holding a Vakalat-nama, who was debarred from appearing in village court, brought a suit for declaration that he was entitled to appear. Thus in all the three cases, the plaintiff had a right to sue. These rulings are not an authority for the proposition that even a person, who has no right to bring a suit for declaration can bring a suit therefor. The plaintiff appellant has relied upon A.I.R. 1942, Cal. 325 (Noorjahan Begum vs. Ugtiscanke); 1013 Madras 470 (Mokrola Pilcharyja vs. Beyaava-rapu Venkata Krishnayyu & others), A.I.R. 1944 Madras 240 (I.M. Lal vs. Secretary of State, ) to show that he has legal character to bring the present suit. In the first case the suit was brought for a declaration that the plaintiff's marriage stands dissolved on account of certain event. In the second case, the plaintiff brought a suit for specific performance of the agreement. The plaintiff also brought another suit for declaration that the sale deed of the property after the agreement in his favour was a mere nominal transaction. It was held that under sec. 42, Specific Relief Act, the plaintiff could bring a suit not only when he had a right in the property which is the subject matter of the suit. A suit could be brought even by a person who was entitled to any legal character or any right as to any property. In the third case, the suit was brought by a dismissed member of the Indian Civil Service for a declaration that he was still in the Indian Civil Service. It is, therefore clear that in all the three cases, the plaintiff had a right to sue either because he had a legal character or he had a right to any property. With this background 1 I have to see whether the plaintiff in the present suit had a right to sue. For this an examination of Rulers 10 and 15 of the Nazool rules of Alwar State is necessary. Rule 10 provides that the Nazool property may be sold in auction or by private negotiation. Rule 15 provides for sale by private negotiations and runs as follows : - "Sales by private negotiations may be conducted in case of special plots of land situated adjacent to a private property and not suitable for any individual other than the owner of such property, for not less than the upset price." The plaintiff contends that the property could have been sold by private negotiations only to an owner of an adjacent property, when it was not suitable for any individual other than such owner. The property was not suitable only to the defendant No. 2. It should, therefore, not have been sold to him by private negotiation. On behalf of the respondents, it has been contended that first of all the defendant No. 2 had a property adjacent to the property in suit, as would appear from the boundaries of the property. The property could, therefore, be sold to him by private negotiations. Even supposing that the property was suitable for any other individual also, the plaintiff could not bring a suit for the declaration that the sale deed executed in favour of the defendant No. 2 is void and ineffective. It was urged that the plaintiff could bring a suit only if he had any right in the property which would invalidate its transfer by the Nazool Department, or he had any right of pre-emption. According to sect 9 of the Alwar Pre-emption Act no suit for pre-emption can lie against a sale of the Govt. property. The declaration prayed for was, therefore, rightly refused. There is no doubt that the plaintiff does not claim any right or interest in the property. There is also no doubt that he has no right of pre-emption. The plaintiff has failed to show that he has any right to bring the present suit. The plaintiff has also failed to prove that he has any legal character to bring the present suit. It may be that the property was not sold strictly in accordance with the provisions of the Nazool Rules, but for that it is only the higher authorities who could have either accepted or cancelled the sale. When he comes to a civil court with a suit he has to show that he has a right to bring the suit. Merely because sec. 15 says that the Nazool property could be sold by private negotiations, in cases of special plots of land situated adjacent to any private property and not suitable for any individual other than the owner of such property, or because sec. to says that the Nazool Department on its own initiative or on the application of any intending purchaser may submit a proposal for the sale by auction or by private negotiation of any Nazool property for sanction of His Highness' Government, the plaintiff can not claim any right in the property or any legal character to have sale deed set aside. Sec. 15 does not prohibit the sale of a Nazool property by private negotiation, except under the conditions mentioned in it. It only says that the Nazool property could be sold by private negotiations also in certain circumstances. It cannot give a right of a suit to an owner of an adjacent property to whom he property was suitable to have the sale set aside by a suit in a civil court. Moreover sec. 15 provides for the sale by private negotiation of special plots only and it has not been proved that the property in suit constituted special plots. The plaintiff has consequently failed to show that sec. 15 applied to the property in suit. Reliance was placed upon sec. 10 and it was pressed that it was mandatory that the sale should have been by auction. I do not find any such thing in the section. It gives the Nazool Department an option either to submit a proposal for sale by auction or by private negotiations of any Nazool property for sanction of His Highness' Government. I do not think that the plaintiff was entitled to bring the suit. The appeal is dismissed with costs to the contesting respondents. ;