- (1.) THIS is an appeal by the plaintiffs Azimkhan and Nazirkhan who having died during the course of this appeal are represented by Noor Mohamed and others and arises out of a suit for declaration and injunction.
(2.) THE Suit relates to certain agricultural land situate in the city of Udaipur. THE history of this land may shortly be stated as follows. Major Calf who was designated as Resident at Udaipur purchased 4 bighas of land from one Chatra and dedicated it to the mosque of Alipur situate in the city of Udaipur. This land was, however, utilized for the residency garden. So Major Calf used his good offices to secure another 4 odd bighas of land belonging to one Ghasiram and this land was granted to the mosque under a Tamba Patra dated Jeth Vadi 11, Smt. 1892 in the name of Faquir Kutubshah on the express condition that the Faquir will look after the mosque and defray the expenses for the maintenance of the mosque out of the income of the land. In Smt. 1935, the then Mutvallies of the mosque namely Jamalshah and others made a usufructuary mortgage of this land in favour of Hasankhan, father of the plaintiffs for Rs. 1055/ -. A further mortgage was made in Smt. 1947, and yet another in Smt. 1948 in favour of Hasan Khan. Later the Mutvallies of the mosque filed a suit for redemption of the land, and this was decreed vide the judgment of the Mehdraj Sabha dated the 27th July, 1895, Ex. P-6, it having been provided that the mortgagers shall pay to the mortgagees the mortgage money as well as the amount spent by the mortgagees on the improvements of the land. This money was not paid, and the mortgagees continued to remain in possession. On Baisakh Vadi 13, 1954, Jamalshah and others Mutvallies sold the land in favour of the plaintiff; mortgagees in lieu of the mortgage money plus a further amount of Rs. 751/ -. THE plaintiffs accordingly continued in possession of the land in dispute right upto 1955 A. D. when they were dispossessed thereof by the State during the pendency of this appeal. Earlier, towards the end of 1946, the Revenue Minister of the former State of Udaipur put up a note to His Highness the Maharana that the Mutvallies of the mosque had made certain mortgages with respect to this land and had also sold the same and that at this was illegal. THE Revenue Minister, therefore, recommended that 4 bighas and 4 biswas of the total muafi land measuring 5 bighas and 1 biswas which was under possession of the plaintiffs be resorted to the mosque and the plaintiffs be ejected therefrom and the 17 biswas should be resumed or escheated to the State. It was further proposed that the entire land to be made over to the mosque, be acquired and so far as the mosque was concerned, a cash compensation of Rs. 35/- per annum which was the estimated income of the land be allotted to the mosque out of the 'dharma Sabha' budget. His Highness the Maharana sanctioned these proposals on the 1st January, 1947, (See Ex. P-3 ). THEreupon the plaintiffs Azimkhan and Nazirkhan sons of Hasankhan filed this suit for a declaration and injunction on the 7th May, 1948. THE plaint is a most ill drafted one but its gist clearly is that the order by which the land in dispute had been ordered to be made Khalsa was illegal and inoperative, and, therefore, the plaintiffs sought a declaration to that effect and also some kind of an injunction which was stated to enure till the decision of the suit but was intended and has been taken to be a prayer for permanent injunction restraining the State from interfering with the possession of the plaintiffs. Be that as it may, the suit was resisted by the State. The main pleas in defence were that the land with respect to which the declaration of title was sought was a muafi land and that it was inalienable according to the law in force in that State and that as the land had been alienated by the Mutvallies of the mosque contrary to the law, it had rightly been resumed by the Maharana and that the resumption was validly made and could not be questioned by a civil court. The trial court dismissed the suit by its judgment, dated the 27th February, 1947. On appeal the learned District Judge by his judgment, dated the 15th October, 1951, directed some fresh evidence to be taken and called for a report on such evidence which was submitted on the 26th November, 1952, Eventually the District Judge also affirmed the judgment of the trial court on the 19th January, 1953. The present appeal has been filed from the aforesaid judgment and decree. The principal contention raised by learned counsel for the appellants is that the order of His Highness the Maharana of Udaipur acquiring the land was illegal and of no effect. It has also been contended that the mortgages and sale made in respect of the land in dispute by the Mutvallies of the mosque were perfidy valid and, therefore, the State had no authority to interfere with the plaintiffs' rights over it. Learned counsel places strong reliance on a decision of a Bench of this Court in Neelkanth Mali vs. The State of Rajastkan (1 ). There the plaintiff sued for a declaration of his title to a certain plot of land situate in the city of Udaipur and also asked for a permanent injunction restraining the State from dispossessing him from the property in dispute. The plaintiff-filed the suit on the allegation that the defendant was trying to dispossess him on the basis of an order which was passed in Smt. 1999, for the acquisition of the land for construction of a certain school. The plaintiff, however, continued to remain in possession until July, 1947, when the Ruler of Mewar granted a bapi of the said land in favour of Mehta Jagannathsingh, and the plaintiff was ordered to hand over possession of the land to the grantee. This suit was resisted by the State on the ground that the order of His Highness the Maharana which was passed in 1942 acquiring the land for the construction of the school was a complete acquisition and that all that was done later in 1947, was in consequence of the order of the Ruler which had already become final and could not be reopened on account of anything that had happened subsequent thereto. The Bench held that the order of the Ruler merely amounted to the declaration of an intention to acquire the land and that it never vested in the State because possession was never taken. On this view of the matter, it was further held that as the land had not vested in the State at any time, the State could not sell it or give it in Bapi Patta to Mehta Jagannath Singh. It was also ordered that as the plaintiff had been dispossessed during the pendency of the litigation, he should be put back in possession so that the status quo ante be restored. Now there can be no doubt that if the case cited above has any application to the case before me, the appellants are entitled to succeed. Before proceeding further, it may be mentioned that the plaintiffs had filed a suit for declaration and injunction only in the present case because they were in possession of land at the time the suit was brought. They continued in such possession till about the end of 1953 by which time the appeal had already been filed in this Court. But before an injunction could be served on the State restraining it from interfering with the plaintiffs appellants' possession, it appears that the State had already dispossessed the appellants from the land. In view of this dispossession, the learned Government Advocate raised the contention in the court that the plaintiffs should amend their plaint so as to incorporate therein a prayer for possession of the land in dispute. Consequently, on the 10th August, 1956, learned counsel made an application for amendment of the plaint under O. 6, r. 17, C. P. C. in which he sought the permission of this court to amend the plaint. When this matter came before me for decision during the course of arguments, in this appeal, I formed the opinion that a prayer for the amendment of the plaint was scarcely necessary inasmuch as the plaintiffs had been dispossessed of the suit land during the course of the litigation and that if this Court as a result of the hearing of the appeal came to the conclusion that the order of 1947 passed by the State was illegal, it should be perfectly possible for the Court to order restoration of possession to the appellants without any amendment of the plaint in that connection. Neelkanth's case, which I have referred to above seems to me to be a clear authority for the restoration of such possession in case it is called for and I may also cite Ramdayal vs. Maji Devdiji (2) as an authority for the principle that it is open to this Court in exceptional cases to award suitable relief which might be made necessary on account of develop-ments occurring subsequent to the institution of the suit. I am, therefore, clearly of opinion that is would be an entirely unnecessary protraction of this litigation to insist on an amendment of the plaint in connection which the relief which it was not necessary for the plaintiffs to ask for at the date of the suit and which can be granted to them without a prayer for amendment owing to subsequent developments if such relief is called for. Having disposed of this preliminary matter, the main question that arises for decision in this case is whether the order of His Highness the Maha-rana of Udaipur, dated the 1st January, 1947, is an order of acquisition. or it is something else. I may repeat that if it is an order of acquisition, the decision of the Bench of this Court in Neelkanth's case would clearly apply and such an order of acquisition merely amounting to a declaration of an intention to acquire must needs be struck down. Having given my very careful consideration to this aspect of the case, I have have however, come to the conclusion that the present case is of a different character. I have read the proposals of the Revenue Minister of the former Udaipur State which were sanction by His Highness the Maharana in January, 1947, and it clearly seems to me that the essence of that order is that the Mutvallies of the mosque had alienated the muafi land and such alienation was illegal. I may pause here for a moment and invite attention to the Muafi Rules which were in force in the former State of Udaipur. These rules were brought into force on the 12th September, 1946. Rule 4 gives the various forms of muafi which were recognized in the former State of Udaipur and one of these were termed as Dev-asthani which is a kind of muafi with which we are concerned in the present case. Devasthani Muafi has been defined in that very rule as a grant made to a temple or any other place of worship for the maintenance of the worship or for other purposes connected with temple or the place of worship. Rule 22 then provides that an alienation of such land shall be illegal whatever be the nature of the alienation and the time when it was made. The rule further provides that if the alienee is in possession, the muafi will be given back to the Devasthan. Provision has also been made in this rule for imposing a penalty upon the alienor, and finally it has also been provided that if the alienation has been made for any consideration that will not be a charge on the bhog or khadam rights whatever. Now, having regard to the history of the land in dispute which has already been described above, there is no gainsaying the position that the land in dispute was granted in muafi to the mosque. It is again clear that this muafi falls under the category of Devasthan muafis defined in rule 4 of the Muafi Rules. The language of rule 4, to my mind, is clearly retrospective inasmuch as it provides that no matter what the nature of the alienation is or when it was made, such an alienation would be illegal and if the alienee is in possession of such land, then it shall be restored to the Devasthan. Now, it clearly appears to me that when the Revenue Minister made his recommendations to His Highness the Maharana in connection with the land in dispute, he had obviously rule 22 of the Muafi Rules in his view, and that is why he recommended that the sale of the muafi land was illegal and, therefore, the mortgagees should be ejected and the muafi should be handed over to the Panchas of the mosque for its maintenance. The muafi to be restored to the mosque according to the sanad measured 4 bighas and 4 biswas. The alienees had 17 biswas more in their possession and the recommendation with respect to this part of the land was that it should escheat to the State. The Revenue Minister again repeated in the last para of his recommendations that the mortgage of the muafi land was illegal and, therefore, the mortgagees should be ejected forthwith. It is true that thereafter the Revenue Minister further proceeded to recommend that the whole of this area to be made over to the mosque may be acquired for certain reasons, into which it is not neces-sary to go for the purposes of the present appeal, and a further recommendation was made that an amount of Rs. 35/- equal to the annual income of the muafi land may be provided in the budget of the Dharam Sabha to be spent for the mosque. These proposals were sanctioned by His Highness the Maharana. A correct analysis of the above order, to my mind, clearly shows that so far as the appellants are concerned, the position taken up by the Revenue Minister and approved by His Highness the Maharana was that the mortgages and the sale made by the mutvallies of the mosque in favour of the ancestors of the appellants were illegal and, therefore, the land was to be resumed and the alienees ejected and it was ordered accordingly. The second part of the order of course is that after the mortgagees were so ejected and the land became restored to the mosque, the land was to be acquired by the State and instead of the actual corpus of the land being handed over to the mosque, all that need be done was to pay or allot an annual amount of Rs. 35/- to it. I am of opinion that so far as the appellants are concerned, the order is one of resumption and not of acquisition. The acquisition part of the order pertains rightly and properly to the mosque, and it may be open to it to question the order of acquisition on the authority of Neelkanth's case; but I have no manner of doubt that it is not open to the appellants to question the order of acquisition for that order does not really affect them in the circumstances of the case. The part of the order which affects them is the order of resumption, and so far as that aspect of the case is concerned. I have already referred to the Muafi Rules which were in force in the former State of Udaipur according to which alienation of Devasthani Muafi appears to have been forbidden at all times and in any shape or manner whatsoever and where such an alienation came to the notice of the State, it was open to the State to hold it to be illegal and restore the muafi to the Devasthan concerned. I find it impossible to hold under the circumstances that the order of resumption was, in any way, illegal. On this view of the matter, it clearly follows that Neelkanth's case has no application to the case before me. There the Bench was concerned not with the resumption of any muafi land but with a case of pure and simple acquisition of certain agricultural land. Consequently, the ratio of the decision in Neelkanth's case is not applicable to this case, and the case mutt be decided on the principles applicable to the alienation of muafi lands and the consequences pertaining thereto. Judged by this test, 1 am clearly of opinion that the presents suit is not well founded. Learned counsel for the appellants then raised the contention that even though the order of the Ruler was one of resumption, this order has not been given effect to for all these years and that it could not receive operation now. I am unable to accept this argument. The order of resumption was and became complete and final as soon as it was passed and required nothing more to perfect it. Merely because the State took time to enforce it, I am unable to held that that order became illegal or was deprived of its due force. The order of resumption, unlike an order amounting to a mere declaration to acquire private land for public purposes, did not require anything more to perfect it, and all that the State has done or was required to do subsequently is to carry out that order. I concede that the ruler of the former Mewar State also passed an order of acquisition with respect to this very land which was to take effect simultaneously with the restoration of the land to the mosque and the mosque was merely left to receive an annual compensation of Rs. 35/-from the State out of the Dharam Sabha Budget. But clearly that is a matter which has no concern with the plaintiffs appellants. They stood thrown out of the picture owing to the order of resumption, which order was perfectly valid and became complete and final as soon as it was passed, and they cannot be heard to attack the order of resumption merely because the further order of acquisition may appear to be questionable. That is a matter between the mosque and the State, and I am not concerned with that in the present liti-gation. This suit cannot therefore succeed. In view of this conclusion it is unnecessary to deal with the other points arising in the case. For the reasons mentioned above, I hold that this appeal is without any force and it must be dismissed; but having regard to the circumstances of. the case, I would leave both parties to bear their own costs in this Court. . ;