MAHARAJA PRATAP SINGH BABADUR Vs. THAKUR MANMOHAN DEY

JUDGEMENT

(1.) The facts that gave rise to this appeal may be briefly stated. In the plaint there are three Schedules A, B and C. We are concerned in this appeal only with Schedules A and C and nothing, therefore, need be said in regard to Schedule B. The lands described in Schedules A and C were situate in Rohini Ghatwali Estate. When that Estate was in the management of the Court of Wards, on March 25, 1973, the then Deputy Commissioner, Santhal Pargana, on behalf of the Court of Wards representing the said Estate executed a lease in perpetuity in respect of the A Schedule property in favour of Maharaja Sir Jai Mangal Singh Bahadur, the predecessor-in-interest of the 2nd defendant for the purpose of erecting dwelling houses thereon. The 2nd defendant and his ancestors had been in possession of the said property since the date of the said lease. The lands described in Schedule C annexed to the plaint were not covered by the said lease, but it is alleged that the 2nd defendant and his ancestors had been in possession of the same. The plaintiff, who is the present Ghatwal of the Rohini Ghatwali Estate, after attaining majority on October 17, 1949, filed Title Suit No. 37 of 1952 on the file of the Court of the Subordinate Judge, Deoghar, for recovery of possession of the said lands on the ground, inter alia, that they formed part of his Estate and that the lease executed by the Deputy Commissioner in respect of the A Schedule lands was void, as it was not countersigned by the Commissioner, Bhagalpore, and that the 2nd defendant had no title to the C Schedule lands. To that suit the Member, Board of Revenue, Bihar, was made the 1st defendant and Maharaja Pratap Singh, the successsor-in-interest of the lessee, being a minor represented by the Collector of Monghyr, as representing the Court of Wards, as the 2nd defendant. The 2nd defendant contended that the suit was barred by limitation.

(2.) The learned Subordinate Judge held that the lease executed on behalf of the Court of Wards, not having been sanctioned by the Board of Revenue, became void as soon as the superintendence of the Court of Wards was removed from the Ghatwali Estate. So far as the lands mentioned in Schedule C were concerned, he came to the conclusion that they were outside the scope of the lease of 1873 and, therefore, the plaintiff was entitled to get possession thereof. He held that the suit was not barred by limitation. In the result he decreed the suit of the plaintiff for possession of A and C Schedule lands. Against the said decree the 2nd defendant filed an appeal to the High Court at Patna.

(3.) The said appeal was heard by a Division Bench of the High Court. It held that the validity of the lease of 1873 should be judged on the provisions of the Bengal Ghatwali Lands Act, 1859 (Act V of 1859) and not on those of Court of Wards Act, 1870, (Act IV of 1870) and so judged the lease was void, as it was not executed by the Court of Wards as provided thereunder. It also held that even if Act IV of 1870 applied, the lease would be void inasmuch as no sanction of the Board of Revenue was obtained under S. 9 of the said Act. In regard to the C Schedule properties it accepted the finding of the learned Subordinate Judge that it was not the subject-matter of the said lease. But it further held that the suit was not barred by limitation. In the result, the decree of the first Court was confirmed; but in the circumstances of the case, no order for costs was made. Hence the present appeal.