JAIKRIT SINGH Vs. SOHAN RAJ

JUDGEMENT

(1.) THIS reference has been made by the District Magistrate, Jodhpur for setting aside an order passed by the Additional District Magistrate, Jodhpur on 6th April, 1957 in Criminal Original Case No. 1 of 1954 proceedings under sec. 145 of the Code of Criminal Procedure.

(2.) THE dispute between the parties relates to bungalow No. 17 which is situated in the precincts of Ratanada Palace Jodhpur. It is common ground between the parties that the said bungalow belonged to the late His Highness Maharaja Hanwant Singhji, the then ruler of Jodhpur State till the 13th of January, 1948, when he was blessed with a son who has succeeded to his properties. One Mr. G. H. Godwin was officer-in-charge the "state Aviation" and the said bungalow was given to him for his residence. Even after the merger of the former State of Jodhpur in the State of Rajasthan, Mr. Godwin continued to remain in the personal service of the late His Highness Maharaja Hanwant Singhji. Maharaja Hanwant Singhji expired on 26th of 1952. THEreafter, Mr. Godwin's services were terminated and he left for England in October, 1952. Nearly 2 years thereafter, an occurrence is said to have taken place on 14. 10. 1954 and the present case arises out of the same.

(3.) IT may be remarked that this passage occurs in Chapter XIII, where the learned author has brought out of the distinction between possession in fact and possession in law. IT is true that the possession of a servant of his master's property on his behalf is the master and the servant, themselves, about the possession of the property, then the word possession will have to be interpreted in the sense of actual physical possession. The term 'possession' connotes an intricate and subtle legal conception, which changes with circumstances. Sec. 145 Cr. P. C. deals with disputes about actual physical possession and, therefore, it cannot be said that in no case its provisions can be invoked, if the dispute is between a master and a servant. In the present case, party No. 2 has not brought on record any document to show under what conditions, Bungalow No. 17 was given to Mr. Godwin for his residence. In the absence of any documentary evidence, it cannot be said that his occupation of the building was merely that of a licensee. IT is not denied even by learned counsel for party No. 2 that Mr. Godwin's occupation of the building was not like that of a Chowkidar, who is deputed only to keep a watch over the building. His position was also not that of a lodger only. IT is common ground between the parties that he was officer-in-charge of State Aviation, when he was given that building for his residence. If that building was given to him for his residence free of rent as one of the conditions of his service, i. e. if the rent free residence was a part of his emoluments, then he would be a tenant within the meaning of sec. 105 of the Transfer of Property Act, according to which a lease of immovable property is a transfer of a right to enjoy such property made for a certain time, express or implied, not only in consideration of money, but also in consideration of service. In William Hughes vs. Chatham, Overseers - 5 Man & G. Vol. 54 (16) the master rope-maker in a royal dock-yard was given house in the dock-yard for his residence, of which he had the exclusive use, without paying rent, as part remuneration for his services. The house was stated to belong to the lords of the admiralty. IT was held that if the master rope-maker had not that house, he would have an allowance for that house in addition to his salary and, therefore, he occupied the house as a tenant. IT is conceded by learned counsel for party No. 2 himself that if there is a dispute between a landlord and a tenant over the possession of an immoveable property, the provisions of sec. 145 Cr. P. C. can certainly be invoked. I need not go further into this question, because, in the present case it has been vehemently urged by party No. 1 and not without justification, that his or Mr. Godwin's possession was not that of a mere servant, atleast after the year 1951. IT has been vehemently urged by learned counsel for party No. 1 that from the date of the birth of the present Maharaja of Jodhpur, i. e. 13th of January, 1943, Mr. Godwin's possession over the building was that of a donee in his own right, since the property in dispute was given away to Mr. Godwin as a gift on account of his service and the birth of Maharajkumar. Learned counsel for party No. 2 has urged with equal vehemence that the gift may be in contemplation of the late Maharaja of Jodhpur, but there was no complete gift because no registered document was executed in favour of Mr. Godwin, nor any 'patta' was given to him. This brings for consideration the next point which has been referred to by learned District Magistrate. IT appears from his report that he is also of the view that there was no gift in favour of Mr. Godwin, because no registered document was executed as required by sec. 123 of the Transfer of Property Act. IT is true that according to sec. 123 of the Transfer of Property Act, the transfer must be effected by a registered instrument,signed by or on behalf of the donor and attested by atleast two witnesses in order to make a valid gift. IT is however,urged by learned counsel for party No. l that the Transfer of Property Act came into force in Marwar in March, 1949, that the oral gift was made on 13. 1. 1948, when the said Act was not in force and, therefore, a registered document was not necessary. Learned counsel for party No. 2 has stoutly denied the existence of an oral gift on 13. 1. 1948. Learned counsel for party No. 1 has urged that this denial on the part of party No. 2 is wrong in view of the language of Ex. A-2. Ex. A-2 purports to be a letter written by Mr. Godwin to the Financial Advisor to His Highness on 10. 5. 51. In that letter, he had written that H. H. the Maharajasahib Bahadur was graciously pleased on the occasion of the birth of Shri Maharaj Kumar Sahib to present him with a bungalow, which he was occupying on the date, but he had not received the patta or the transfer documents inspite of the reminders and, therefore, the Financial Adviser was requested to "ascertain if necessary, from His Highness and have steps taken for the grant of the patta to him. " On this document, there is a note to the effect that the said letter be submitted for confirmation and that the property will have to be transferred through proper channels and necessary steps will be taken after His Highness has confirmed. The copy on record does not bear the signatures of any officer on this note,but below it there appears the following words "approved - Sd/- Hanwant Singh". According to party No. 1, these signatures were that of the late Maharaja of Jodhpur. IT is urged that when His Highness approved the above note, it meant that the bunglow was really gifted away on the occasion of the birth of Shri Maharajkumar Sahib. On the other hand, learned counsel for the party No. 2 has urged that even if the note Ex. A-2 be taken to bear the signatures of Maharaja. Hanwant Singhji,it only shows that he had under contemplation the gift of the bungalow to Mr. Godwin but that gift could not be completed so long as the transfer was not made through proper channels according to the note itself. I have given due consideration to this argument and I think that it would neither be safe nor proper to decide in this case the question, whether there was a completed gilt and whether it was valid or not, because this Court is not called upon to decide these questions in criminal proceedings. IT would be for a civil court to decide these matters, if and when a civil action is brought by one of the parties. The Financial Adviser or the Household Comptroller who are the members of the Advisory Committee have not been examined by either parties in this case and so long as all those circumstances under which His Highness the then Maharaja is said to have spoken to Mr. Godwin on 13-1-48 are not brought on record, it cannot be said whether there was only a promise for gift on that day or whether a gift was actually and finally made. IT has also not been brought on record as to what formalities were necessary for making a valid irrevocable gift by the Ruler to his subjects on such occasions. This floes not, however mean that Ex. A. 2 and Ex. A. 3 are of no importance in the present case, because they do tend to show that rightly or wrongly, Mr. Godwin was under an impression that the Ruler had given away the bungalow, he was occupying, as a gift to him. This is why, he moved the Financial Adviser to get patta or transfer documents. There is a further note dated 14-5-51, on this very document, which purports to be written by Financial Adviser to the effect that His Highness was pleased to approve the transfer of the bungalow to Colonel Godwin. He went on to say that after this this bungalow will be Col. Godwin's private property with full rights of disposal,sale,etc. IT is not clear as to what the Financial Adviser meant by "after this". In other words, it is ambigous, whether he meant to say "after this date" or"after the transfer of the bungalow through proper channels". Party No. l has also produced another document, Ex. A-7, which purports to be signed by three members of the Advisory Committee and says that Mr. Godwin was permitted to sell the property subject to certain conditions regarding the closure of the gates in the compound. IT is urged by learned council for party No. 2 that the members of the Advisory Committee were not authorised to write this letter and to permit Mr. Godwin to sell away the property. IT would suffice to say that this Court cannot decide in the present case, whether the Advisory Committee had any authority to write such a letter, but these documents certainly show that Mr. Godwin had set up a title adverse to that of the present Maharaja, long before he departed from this country. My attention has also been drawn to Ex. A-21 dated 27th of October, 1952. IT purports to be written by Shri Ramgopal. Comptroller of Household, Jodhpur, to Shri Meghraj Bhansali, Advocate. IT appears from the statement of Thakur Jaikrit Singhji, Administrator, His Highness' properties, Jodhpur, a member of party No. 2, that this was written by Shri Ramgopal at his direction. IT shows that Mr. Godwin had endorsed to the Comptroller of Household, a copy of his letter to Mr. Meghraj dated 19th October, 1952. IT was asserted in this letter that the bungalow was private property of His Highness, but it was suggested that until Mr. Godwin establishes his title in a competent civil court, it would be better to lease out the bungalow on rent. Shri Meghraj was also asked to send a list of the furniture, which was in the bungalow. I may also refer to Ex. A-4, in which Shri Ramgopal had written to Mr. Godwin on 22-10-1952 that the furniture was separate from the bungalow and as such,he was asked to return the same to the Palace Ferrashkhana. These documents make it quite clear that the Household Comptroller and the Administrator, His Highness' Properties, Jodhpur knew full well that Shri Godwin had set up a title adverse to that of the present Maharaja. He claimed the bungalow as his own and the Comptroller, Household wanted him to return the furniture and he had also requested Shri Meghraj, Advocate to let out the bungalow on rent, so long as Mr. Godwin did not establish his claim in a civil court. This was the position in October, 1952. For two years after that date, i. e. till 14-10-1934, party No. 1 again continued to be in possession of the disputed property. Having allowed party No. 1 to remain in possession of the property for more than 2 years, inspite of its claiming adverse title to the property, it was not open to party No. 2 in law to throw out party No. 1 out of the possession of the property by use of force and without having due recourse to law.