- (1.) SHYAMLAL This revision, which has, however, been wrongly designated as a second appeal, arises out of proceedings conducted before the Collector Jodhpur under the Marwar Escheat of Property Ordinance, 1921. The facts of the case extend over a century and reveal numerous interesting episodes of this immensely protracted litigation. The main facts are not the subject of any controversy and may briefly be summarised thus: - A haveli and a nohra situated in the City of Jodhpur originally belonged to one Laxmichand. The haveli was covered by a patta but no patta, however, existed in case of the nohra. The owner of the property went to Nagore for participation in some marriage ceremony and on return it was found that the property had been taken possession of by the staff of Maharaj Shri Takhat Singhji's Maharaniji Sabib who came from Ahmednagar. This event took place in Svt. 1901 corresponding roughly to 1844 A. D. Numerous protests were raised against this forceful and illegal dispossession to the authorities of the former Jodhpur State and after various vicissitudes of fortune it was decided in 1902 A. D. by the then Ruler of Jodhpur State that possession should be returned to the rightful owner. Maharaj Shri Fateh Singhji who claimed succession to this property did not comply with the decision of the Ruler referred to above and kept on making representations. In 1925 A. D. it appears that the partience of the Jodhpur Ruler was completely exhausted by the recalcitrant and defiant attitude of Maharaj Shri Fateh Singh when it was ordered that immediate effect be given to the 1901 order. On 12. 7. 1930 possession of the property was restored to Harak Chand as Laxmi Chand had died in the meanwhile. Maharaj Fateh Singh could not reconcile himself with this State of affairs and kept on agitating the question. The death of Laxmichand provided him with a fresh weapon against his adversary as he protested that Harak Chand was not the original successor to Laxmichand. On one of such representations a note was submitted by the office on 28th August, 1930, whereon the following order was passed: - H. H. 's ORDER "the property may be kept under Durbar's possession until further orders. Patta proceedings will be stopped. The Maharaj cannot be given copies but he may be allowed to inspect the record. Sd/- H. Single, Member of Council-in-Waiting In compliance with this order possession was taken back from Harak Chand on 8. 9. 1930 by the City Kotwal on behalf of the Government. It appears that for almost a decade there was a complete full and it was in 1940 that the Government Advocate, acting under the instructions of the then Government of Jodhpur State initiated proceedings under the Marwar Escheat of Property Ordinance, 1921, on the ground that Harak Chand had died issueless. Claims were lodged not only by Shri Chand but also by Maharaj Shri Amar Singh, Birad Raj and Madho Singh. The claims of all these persons excepting that of Shri Chand, were rejected in due course. Some of these decisions were challenged in appeal as well but met with no success. Shri Chand's claim was entertained and as a result of the enquiry conducted by the Assistant Collector, Jodhpur, the Collector Jodhpur, on the case being submitted to him, ordered that the haveli along with the mesne profits be handed over to Shri Chand and the claim for nohra be dismissed which may continue to be in the possession of the Tehsildar. An appeal was filed against this decision by Maharaj Shri Amar Singh before the Additional Commissioner, Jodhpur, which was rejected on 3rd May, 1952 and hence this revision.
(2.) WE have heard the parties at a great length and has gone through the voluminous record as well very carefully. It was found that the file in which proceedings under the Escheat Ordinance commenced in 1940 was not available. The Collector Jodhpur expressed his inability to produce the same and we have no option left to us but to decide the case on the available material. The importance of this record lies in the fact that it would have revealed as to how the proceedings commenced and what steps were taken for putting the property under possession of the escheat court. These points, in the absence of the original record will, therefore, have to be determined on the basis of the material that is contained in the judgment of the lower courts which had an occasion to examine that file. The main contention raised by the learned counsel appearing on behalf of the applicant is that the Escheat court had no jurisdiction to direct that Shri Chand opposite party be placed in possession of the haveli. The Escheat court, according to him, should have directed the determination of the escheat proceedings and allowed the property to remain in possession of the Tehsildar the rival claimants being instructed to fight out their respective titles in a civil court and the ultimate disposition of the property being carried out in accordance with that adjudication. On behalf of the opposite party our attention has been drawn to the various provisions of the Escheat Ordinance and it has been argued that the decision given by the escheat court was well within its jurisdiction. We have bestowed our careful consideration upon the point and would like to set out at length the reasons that have led us to our findings. The Marwar Escheat of Property Ordinance, 1921 came into force in the whole of the former Jodhpur State excepting shamlat are of Sambhar with effect from 1st January, 1922 Sec. 9 of this Ordinance relates to preliminary enquiry. The relevant portion runs as follows: - "on receiving information that a person owning property has died leaving no heirs entitled under this Ordinance to inherit, or on receiving a report or on the facts coming otherwise to his knowledge, the hakim shall, if he is not satisfied that the information in his possession is prima facie true or credible, make or cause to be made such preliminary inquiry into its truth as the circumstances of the case may require or is feasible. If, whether as a result of such preliminary inquiry or not, the hakim is satisfied that the information in his possession is prima facie true, he shall institute formal proceedings for the disposal of property preparing a record in the manner laid down for the trial of civil suits and appending thereto a fly leaf and an order sheet. " These proceedings commenced in 1940 on a report of the Government Advocate acting under instructions of the Marwar Government. The possession of the property was admittedly with Government as it had been taken back from Harak Chand in 1930. Sec. 10 of the Ordinance deals with the question of possession of property liable to escheat. It stands as follows: - "on instituting formal proceedings under this Ordinance the hakim, shall proceed and if the property is not in possession of any person or is in the possession of some person who does not put forward any claim to it, he shall take possession of it in such manner as is best suited to circumstances, either by depositing the property in the malkhana, or by handing it over to the safe custody of some third person, or by appointing a receiver under the rules in force for the appointment of receivers in the Civil Courts, or by issuing an injunction to the person in possession of it declaring how it should be dealt with pending the proceedings taken by him, as in the case of live-stock by placing it, if necessary in the cattle pound. A reference to sec. 10 quoted above will, therefore, show that if the property is not in possession of any person or is in the possession of some person who does not put forward any claim to it the Escheat Court is bound to take possession of it in such a manner as is best suited to circumstances. These provisions are mandatory. They confer a very wide discretion in the matter of deciding the mode of acquiring possession. It has been observed by the Collector that the property has all along been in the possession of the Tehsildar and it is no wonder that the Escheat Court thought it best to maintain that possession in tact. The powers of the Escheat Court in dealing with the property are governed by sec. 27 of the Ordinance which lays down that: - "if there is more than one claimant to the property the hakim or Superintendent shall not decide between the rival claimants. Their duty is limited to deciding the validity of any claim in relation to the Darbar, and if the Darbar's claim of escheat is found by them untenable as against those of the claimants, the proceedings shall be closed, the property released and if not in the possession of any one, handed over to the party possessing prima facie the best claim or if the parties so desire to a third party willing to receive it and the rival claimants referred to the Civil Courts. " This section authorises Escheat Court to hand over the possession of the property to the party possessing prima facie the best claim. It has not been denied by the applicant that the claim of the opposite party answers this description, His contention is that as the property was in possession of some one this power could not have been exercised. This argument is untenable not only with reference to the express phraseology of the section itself but also in the context of the events of the case. As stated above the possession of the property was taken back by the Government in 1930 until further orders. For full ten years nothing was done in the matter and ultimately the Government decided to have the matter referred to the Escheat Court under the Escheat Ordinance, 1921. This clearly amounts to presentation of the controversy to the jurisdiction of the Escheat Court and implies willingness on the part of the Government to abide completely by the verdict of that court. It is extremely significant to observe that the Government including not only the Government of former Jodhpur State, but also its successor Government, never claimed to retain possession over the property. It is only the applicant who suggests that the Government should retain its possession as was decided in 1930. The Government had no desire to continue this state of affairs. No appeal was preferred by the Government against the decision of the Collector nor has the decision of the Additional Commissioner been challenged in revision by the Government. The applicant certainly can not be allowed to state what should or should not be done by the Government. It is open to the Government to take any attitude in this dispute and if the attitude taken by the Government is such as is unpalatable to the applicant, it is not within our jurisdiction, not we consider it expedient, to force the Govt, to adopt an attitude which they have found to be untenable. The manner in which the proceedings were initiated in the Escheat court at the instance of the Government and by the Government Advocate leave no room to doubt that the Government, after a period often years decided to wash their hands off the matter by referring the case to the Escheat Court. They have clearly abided by its verdict. It was open to the Government to challenge that verdict, on merits or otherwise but it is certainly not open to the applicant to act on behalf of the Government without any lawful authority. On a careful consideration of the facts we find that the order of the lower courts is completely intra vires and is justified by the material on record. There is thus no substance in this revision which is hereby rejected. K. S. Ranawat - The facts of the case have been stated by my learned colleague but they need further clarification. The grand father of the non-applicant filed a suit for possession of a haveli and a nohra situated in the town of Jodhpur in the court of Kotwal City Jodhpur. The Kotwal after enquiries submitted the papers to the Ijlas-i-khas, Raj. Marwar with recommendations in favour of the applicant. It is important to note here that the robkar containing the recommendations of the Kotwal states the parties as "plaintiff" and "defendant" and the subject matter as "suit". The Ijlas Khas also upheld that the possession of haweli and nohra in question shall remain with the applicant. The Ijlas Khas also has announced its decision by a robkar under the heading 'civil side' indi-cating thereby that its decision is on the civil side. The opposite party submitted a petition against this order of the Ijlas Khas to His Highness, the then Ruler of the covenanting State of Jodhpur. His Highness interfered with the order of the Ijlase Khas and passed orders in favour of the opposite party on 11. 12. 1901. Compliance of this order of His Highness, however, could not be made till 12. 7. 1930, when the applicant surrendered possession of the haveli and nohra. But in the meantime Harak Chand died on 7. 5. 30 leaving no issue. On 17. 7. 30 Shri Chand submitted an application that he was the rightful heir of the deceased Harak Chand and that possession of the property in question may be delivered to him. Enquiries were made by the City Kotwal, statements of witnesses were recorded and a will alleged to have been written by Harak Chand was also examined. The Kotwal reported that Shri Chand was the heir of the deceased Harak Chand. Consequently orders of the possession of the disputed property were passed in Shri Chand's favour and he was put in possession thereof. But very soon thereafter a review petition was submitted on behalf of the applicant to His Highness who thereon passed the following order on 28th August, 1930: - "the property may be kept under Durbar's possession until further orders. Patta proceedings will be stopped. The Maharaja can not be given copies but he may be allowed to inspect the record. " On 30. 8. 30, the above order of His Highness was conveyed to the Vice President of the State Council. On 10. 9. 34, the City Kotwal reported compliance of the above order. Since then the possession of the haveli and nohra remained under Kotwali. On 29. 8. 40 i. e. 10 years after this, the lavaldi proceedings in respect of the property in question again started on the report of the Government Advocate of the State. The case remained pending for a long time and at last on 2. 2. 50 the Assistant Collector Jodhpur made recommendations to the Collector Jodhpur the Shri Chand is the nephew and heir of the deceased Harak Chand and that out of the property in question haveli only along with the mesne profits accruing thereon be handed over to him. The Collector also agreed with these recommendations and passed orders accordingly on 3. 7. 50. An appeal was filed against this order by the applicant to the Additional Commissioner, Jodhpur, but it was rejected and hence this second appeal has come before us which has been treated by the Board as a revision application. The fact that Shri Chand is the nephew and heir of the deceased Harak Chand has not been disputed by the applicant. As a matter of fact this point was enquired into by the Kotwal, Jodhpur, before the possession of this property was delivered to the non-applicant on 26. 7. 30 as discussed above, and apparently there was no need of further enquiry on the point. The Marwar Escheat of Property Act had come into force as early as 1921. According to this Act, the Kotwal Jodhpur, was the Officer who could take cognizance of such cases. Thus the enquiry conducted by the Kotwal was quite in order and sufficient for the purpose. The papers should have been returned with the above observations by the subordinate Revenue Courts. Any how since enquiries have been made in this regard which also reveal no different result, no useful purpose would be served for pressing this point. But the validity of the order of the lower courts ordering possession of the haveli along with the mesne profits accruing thereon to the non-applicant, requires careful examination. It is true that in escheat proceedings a Collector can pass orders about possession of the property under enquiry provided the deceased person had undisputed and absolute title over the property. In the present case, the deceased Harak, Chand had filed a suit for possession of the property in question and the suit is still pending and has not been finally disposed of. The last order in the suit dated 28. 8. 30, which states that the property in question shall remain in the possession of the State despite the fact that Shri Chand had been admitted as heir of Harak Chand by that court, still stands. Thus it leaves no room to doubt that the property in question did not vest in Harak Chand and as such the Revenue Courts were not competent to pass orders of its possession in favour of the heir of the deceased in a lawaldi proceeding. It is only that court in which the suit for possession of the property in question is pending which is competent to pass orders about its possession. Thus it is obvious that the subordinate revenue courts erred in passing orders about possession and mesne profits of the haveli under dispute. I, therefore, hold that the order of the lower-courts, inasmuch as it pertains to the delivery of possession to the opposite party of the haveli along with the mesne profits accruing thereon be set aside and that the case be returned to the Government of Rajasthan with the recommendations that Shri Chand is the heir of the deceased Harak Chand and that it will be for the court where the suit is pending to pass necessary orders under Sec. 4 of the Rajasthan Appeals and Petitions (Discontinuance) Ordinance, 1949, for further proceedings in the suit. Since I do not share the views of my learned colleague and we are divided in opinion as to the decision in the case it is hereby referred to the Chairman, Board of Revenue, for decision under Sec. 16 (2) of the Rajasthan Board of Revenue Ordinance, 1949. Roop Narain Sharma - This case has been referred to me for opinion under Sec. 16 (2) of the Rajasthan Board of Revenue Ordinance, 1949 , as a difference of opinion has arisen between the learned members of the Bench, who heard this revision. The main point for decision is whether in the present case the Collector, Jodhpur acting under the Marwar Escheat of property Ordinance, 1921, had jurisdiction to order release of the property in dispute in favour of the opposite party. I have heard the counsel for the parties and have also examined the record in detail. The facts of the case have been stated at length in the judgments written out by the learned members. Some salient facts which have a direct hearing on the point in issue may however, be summarised below.
(3.) IN 1901 it Was ordered by the then Ruler of the Jodhpur State that possession of the property in dispute (House and nohra) should be returned by the applicant's ancestor, Maharaj Fateh Singh, to Laxmichand, ancestor of the opposite party. This order was not complied with for about 23 years. On a representation by Maharaj Fateh, Singh, the case was again put up in full Council and on 9th January, 1925, another order was passed by the Council of the former Jodhpur State presided over by the then Ruler that the question of restoring haveli and nohra to the original owner by the plaintiff was finally decided by His Highness the late Maharaja Shri Sardar Singhji Sahib Bahadur in 1901 and it can not therefore be re-opened now and that the said order may be forthwith given effect to'. This order was again not complied with and Maharaj Fateh Singh submitted a review petition to His Highness requesting for reconsideration of the previous orders. This petition was rejected and an intimation was sent to Maharaj Fateh Singh by the His Highness' Private Secretary, vide his D. O. No. 9845, dated 9/1lth March, 1925 that "his Highness attaches the greatest importance to the principles involved and does not feel inclined to reopen a case in which final orders have been passed by a ruler enjoying full powers. His Highness feels that if such cases are reopened now they will be again open to revision at a favourable opportunity and finality will never be reached". Not satisfied with this order, Maharaj Fateh Singh submitted a second review application on the same lines as the first. After full consideration it was again rejected by His Highness as per D. O. dated 24. 6. 25 addressed from Ijlase Khas to Drake Broakman,revenue Minister Jodhpur, and D. O. No. 4650 dated 15. 7. 25 addressed by the latter to Maharaj Fatehsingh. IN these latters it was observed that "his Highness feels strongly the unwisdom of interfering with the orders passed by his predecessors in the enjoyment of full powers and is unwilling to make an exception in this case. The orders passed by His Highness in Council must, therefore, stand". It appears that even this decision of His Highness failed to obtain compliance of his orders of 1925 and Laxmichand died in the meantime. IN June, 1920, the Member-in-Waiting, Jodhpur, wrote a letter to Maharaj Fatehsingh, No. 101-C of 23. 6. 30, that His Highness views with displeasure the way in which you have flouted his orders inasmuch as haveli and nohra have not been made over to Bhandari Harakchand (son of Laxmi Chand)for over a year has now lapsed. I am desired to make it plain to you that it is futile your having to attempt to reopen the question on its merits once again for it has been considered in all its bearing already, and finally warn you to comply with His Highness' orders. . . . . . . . . and in the event of your failing to avail yourself of this opportunity, His Highness will have no alternative but to place one of your patta villages under attachment. " This threat of attachment at patta village had its desired effect and the kamdar of Maharaj Fatehsingh intimated by his letterd/12. 7. 30 addressed to the Member-in-Waiting that possession of the property in dispute had been relinquished by the Maharaj but since Harak Chand had died issueless either the Kotwal or some other person may be asked to take charge of the property. It appears that the property was taken over by the Kotwal and later handed it over to the opposite party Shrichand after satisfying that he had been legally adopted by Harak Chand (deceased) who had also bequeathed his property to him by means of a will. About a fortnight after this Maharaj Fatehsingh sought an interview with His Highness and submitted a written representation alleging that Harak Chand had died issueless and the Kotwal had without holding proper enquiry handed over possession of house and nohra to Shrichand who was selling the nohra to the Oswal community and repairing the haveli. He prayed that "the record be sent for and perused by His Highness and untill such time the property under dispute may be kept under Darbar's possession, that patta proceedings in respect of the nohra which has been recently purchased by the Oswals may be stopped, that repairs to the haveli may also be stopped etc. etc. " On this report the record was ordered to be summoned in Mahkma Khas and His Highness ordered in August 1930 that in the meantime the property may be kept under Darbar's possession until further orders. The property was therefore taken back from Shrichand. Both parties still continued to pour in their representations in the Mahkma Khas but to no avail. The record sent for by His Highness' order was however examined and it appears from an undated note by the Revenue Minister State Council, Jodhpur, recorded after hearing both parties that since it was alleged by Maharaj Fatehsingh that Shri Chand's adoption was not lawful as his father had gone away in adoption to some other line and Harak Chand's will was not genuine, "the best course seems to be to institute a lavaldi case during the course of which Shrichand Oswal School and other applicants may have a chance to establish their various allegations". This note appears to have been written sometime in 1932. It is not apparent from the record as to what action was taken in the matter from 1932 to 1940 as the papers relating to this period are reported to be not available. However, it is borne out by record that in 1940 lavaldi proceedings in respect of the property in dispute were instituted in the court of Cotwal Jodhpur by the Government Advocate under instructions of the Government. These proceedings were carried on till after the formation of Rajasthan and the case was finally decided by the Collector of Jodhpur on 3. 7. 50. By this order he held that Shrichand was the adopted son of Harak Chand and the rightful claimant of the property and as such the property should not escheat to Government but should be restored to Shrichand. On an appeal by Maharaj Fatehsingh this decision of the Collector was confirmed by the Additional Commissioner. The main contention of the applicant is that since his review petition in respect of which the property had been ordered to be kept under attachment with the Kotwal was still undecided, the Collector had no authority to order restoration of the property which was not in his possession. As against this the counsel for the opposite party contended that no review petition of the opposite party was pending and that His Highness had passed clear orders on 28. 10. 33 vide Gazette notification No. 695 of 23. 10. 33, that no case which had been decided by a previous ruler and reviewed during his reign or the reign of his successor would be reopened. A copy of this notification was also produced before me which reads as under: - "i have on occasions in the past received representations seeking a review of cases which have been decided by my illustrious predecessors after full consideration. Ordinarily these have dealt with particular issue and not with question of general principle. It is hereby laid down that no case of this nature will be reopened which has been decided by a previous Rule and which has been reviewed either during his reign or the reign of his successor or in connection with which no applica-tion for review has hitherto been made unless it can be established that unavoidable circumstanced prevented an application for revision being submitted e. g. in the case of a thikana in the Court of Wards owing to the minority of a Thakur. Questions of general principle, however, may arise in the course of time which in the interest of my Govt. or of my people necessitate a revision of past policy and precedent. Such cases, if and when they arise, will be dealt with on their merits. Sd/- Umaid Singh Maharaja. There can be no doubt that by the aforesaid order, His Highness refused to reopen cases which had been decided by a previous ruler and had been reviewed either during his reign or that of his successor. As stated above, two of Maharaj Fatehsingh's review petitions were rejected by His Highness' orders dated 11. 3. 25 and he was repeatedly informed that His Highness was not prepared to reopen the case and all his attempts in that direction were futile. Finally, His Highness decided by his orders dated 23. 10. 33 that in no circumstances such cases would be reopened and this finally disposed of all petitions against orders of previous rulers which had already been reviewed earlier. No review petition of the applicant was therefore pending at the time the case was referred to the Escheat Court. It was only on a personal representation made by the applicant to His Highness in 1930 that possession of the property was ordered to be kept with the Kotwal The substance of this representation was that Shrichand's adoption to Harakchand was not a fact and that Harakchand's will bequeathing the property to Shrichand was not genuine. It is also clear that in order to obtain an adjudication on these points the Revenue Member, after hearing the parties, proposed to refer the matter to the Escheat Court and escheat proceeding were started on the application of the Government Advocate acting under instructions of the Government. This the Government decided to obtain a formal adjudication of the Escheat Court in respect of the points raised by Maharaj Fateh Singh, viz whether the property should be restored, to Shrichand as the legal heir of Harakchand or it should escheat to the Government. The Government thus gave their implied consent to abide by that decision, and the applicant's interest was not directly involved in the escheat proceedings. Sec. 10 of the Marwar Escheat of Property Ord. 1921 authorises a Collector to dispose of the property in such manner as he may deem fit. Sec. 27 of the same Ord. further lays down that if the Darbar's claim of escheat is found by him untenable as against those of the claimants the proceedings shall be closed, the property released and if not in possession of any one, handed over to the party possessing prima facie the best claim. This leaves no room to doubt that the escheat court is vested with the powers of final disposal of the property under escheat proceedings in such manner as it deems fit. As possession over the property had been taken over by the Government pending decision of the point whether Shri Chand was the legal heir of Harak Chand or not, it was open to the escheat court to order its release to the opposite party on his title to the property having been established before that court. It may be observed here that the matter referred to the escheat Court was entirely between the Government and the opposite party and the title of the applicant was not involved in those proceeding as his claim to the property had been finally decided and in his representations the applicant himself did not claim any title to the property and only pressed that it should escheat to Government. As observed by my learned colleague, Shri Shyam Lal, he had under the circumstance no valid ground to come in appeal or revision against the order of the escheat court (Collector ). If, therefore, the Government or the successor of the Kotwal who was entrusted with the custody of the property were aggrieved by the order of the escheat court or had any objection to the release of the property on the basis of any other independent title, it was open to them either to file an appeal against the order of the escheat court to make an objection at the time of the execution proceedings. No such step was ever taken by the Government. Looking to the facts and circumstances of the case as stated above, I feel that substantial justice has been done in the case by the lower courts and there is no force in this revision. In the result, I agree with the views of my learned colleague, Shri Shyam Lal. The revision application is hereby rejected. . ;