BALAK RAM Vs. SITA RAM

JUDGEMENT

(1.) This is a second appeal by three of the nine plaintiffs, the rest being im-pleaded as 'pro forma" respondents. The suit related to land, 52 bighas and 5 biswas in area, of which the last male holders were Sitlu and Haria, and the last female holder Mst. Sakki, the widow of the former. On her death, it was taken by escheat by the former Jubbal State. The plaintiff's case was that out of the said land 47 bighas were granted, after the escheat, to defendants 2 to 7 by the Raja. The trial Court found that grants were made only to defendants 2 (Sita Ram), 4 (Kan-thu) and 6 (Mandas, who died during the pendency of the suit in the trial Court and was substituted by Sher Singh). The correctness of this finding was conceded in this Court, so that the grants in favour of only these 3 defendants are now in question. The grants made to these defendants were separate and of spe-cine areas. Claiming to be reversioners to the estates of the last male holders on the death of Mst. Sakki, the plaintiffs contended that under the law prevalent in the former State of Jubbal, as contained in paragraph 10 of the State Wajib-ul-arz, the grants Should have been made to them and not to the defendants, who were strangers residing in another village. They therefore prayed for a declaration that the grants were illegal, and for possession on payment of nazarana. Besides the said six defendants, the State of Himachal Pradesh was also impleaded as defendant as successor to the former Jubbal State.

(2.) The suit was contested by all the defendants. The trial Court found in favour of the plaintiffs that, though not within 5 degrees, they were collaterals of the last male holders, toeing descended from the common ancestor ;Nakta. It further held that as the plaintiffs were not collaterals within 5 degrees, the land had rightly escheated to the Jubbal State under paragraph 10 of the Wajib-ul-arz. On an interpretation of the same paragraph of the Wajib-ul-arz, it further held however that it was discretionary with the Raja to make the grants to whomsoever he pleased and therefore he was not bound to grant the land to the plaintiffs, and that the grants were made by the Raja in exercise of sovereign powers which could not be questioned in a Court of law. On a plea raised by a defendant other than the State of Himachal Pradesh, the trial Court further held that the suit was bad for want of a proper notice under Section 80 Civil P. C. In the result, that Court dismissed the suit.

(3.) On an appeal by the plaintiffs, who are the appellants in this Court, the learned District Judge upheld the findings of the trial Court except on the question of notice under Section 80, Civil P. C. About the notice he held it was debatable whether, in the absence of an objection by the State, it was open to any other defendant to raise the plea, and that, in any case, the objection will be deemed to have been waived by the particular defendant who raised it. It appears that defendant No. 4 (Kanthu) was not made a respondent when the appeal was filed in the lower appellate Court, and a subsequent application to implead Mm was rejected. The appeal was dismissed.