MAHARAJ AMAR SINGHJI Vs. SHRI CHAND

JUDGEMENT

(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.

(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.