JUDGMENT Sunil Ambwani, J.
1. The second appeal was admitted on 1.5.1975 before the enforcement of CPC (Amendment) Act, 1976, Section 35 (w.e.f. 1.2.1977).
2. During the pendency of the appeal Smt. Farooqi Begum, the original defendant- appellant died. Nawabzadi Nanhi Begum filed a substitution application as her heir and legal representative. While the application was pending, she also died on which Shri Jafar Ali Khan and Shri Swaley Ali Khan both sons of Nawabzadi Nanhi Begum and Sahzada Mohd. Ahmad Khan filed an application for substituting them as her heirs and legal representatives. Both these applications were allowed on 28.7.2000.
3. This appeal was thrice dismissed for want of prosecution between the year 2003 and 2004. It was restored on each occasion.
4. Heard Shri Ravi Kant, Senior Advocate assisted by Shri M.K. Pandey for the defendant-appellants and the Standing Counsel for the State of U.P., the plaintiff-respondent.
5. The State of U.P. filed O.S. No. 1 of 1964 on 8.1.1964 against Smt. Farooqi Begum, widow of Late H.H. Nawab Hamid Ali Khan resident of Bagh Chadarwala, Rampur, U.P., the defendant, with the allegation that the grove in dispute (82 bighas with 109 mango trees and 25 other trees) known as Bagh Chadarwala at Rampur belongs to the State. Before the merger of the Rampur State, the grove was given as rent free grant to the defendant by her husband H.H. Nawab Hamid Ali Khan, like other Muafiat (rent free grant) given by him to his wives. The Nawab died in 1930. His successor resumed all the Muafiats including the Muafi of the present grove. On the merger of the Rampur State the possession of the grove was handed over to the State. Since thereafter the State was selling its 'Bahar' (the proceeds of the grove). The defendant on the basis of a entry in the papers of Patwari began to interfere in the possession of the State since 1959 and started claiming its ownership, The State took steps to get the name of the defendant expunged from the records. The application was dismissed by the Revenue Court on the ground that long standing entries could not be summarily struck of. The State of U.P. prayed for declaration that it is the owner of the grove; permanent injunction restraining the defendant from interfering in its possession and Rs. 5000/- as damages and pendente lite and future mesne profit at the rate of Rs. 1000/- per year. The State also prayed for possession if it was found out of possession.
6. Smt. Farooqi Begum, the defendant contested this suit on the ground that the grant by the Nawab was a rent free grant. It was absolute and unconditional grant, which could not be resumed. The Court has no jurisdiction to try the suit, which is also barred by time and is overvalued. She also pleaded that the suit was barred by Section 42 of the Specific Relief Act and Order 21 Rule 103 CPC. The damages claimed arc highly excessive. She alleged to be in continuous possession since 1924. The grant was never resumed and was never forfeited. She also pleaded estoppel as the plaintiff had not raised any objection, when the defendant's suit against one Laddan Khan was decreed for possession.
7. The Trial Court framed the following issues to be decided in the suit:
(1) Whether the grant in favour of the defendant was resumed in 1930 as alleged in para No. 3 of the plaintiff?
(2) Whether the plaintiffs predecessor, the Rampur State entered into possession of the grove in suit after resuming the grant?
(3) Whether the suit is within time?
(4) Whether the suit has been over-valued?
(5) Whether this Court jurisdiction to try this suit?
(6) Whether the suit is barred by Order 21 Rule 103 CPC?
(7) Whether the suit is barred by Section 42 of Specific Relief Act?
(8) What the correct amount of damages, if any recoverable from the defendant?
(9) Whether the defendant acquires Bhumidhari rights in the grove in suit on enforcement of the U.P. Zamindari Abolition and Land Reforms Act in this area, and is not liable to ejectment?
(10) To what relief, if any, is the plaintiff entitled.
(11) Whether the property in suit was revenue free grant (Muafi Lekhraj) of the defendant?
(12) Whether the grove in suit was gifted to the defendant absolutely on 17.4.1924 by the then ruler of Rampur State through Sanad Muafi without imposing any restriction or condition for its resumption?
(13) Whether the grant in any case was not resumable under the law by the successors of the grantor and the right to resume if any, has been lost before 1930.
(14) Is the suit batted by estoppel?
8. Shri P. Narayan, the then District Judge, Rampur decided issue Nos. 4, 5, 6 and 7 on 12.12.1964. On issue No. 6 he held that the State was not a party to the earlier suit, and so the question of application of Order 21 Rule 103 CPC does not arise. On issue No. 7 he held that the plaintiff has claimed defendant's ejectment in the alternative and thus the suit is not haired by Section 42 of the Specific Relief Act. On issue No. 4 he held that the plaintiff has claimed defendant's ejectment from 20 bighas of plot No. 532 and 10 biswa of plot No. 554/600 alleging that the area was occupied by mango grove. The land in grove was valued at Rs. 16720/- and damages at Rs. 1000/- per year. Rs. 5000/- was claimed towards past damages for declaration and injunction. The suit was valued at Rs. 16720/- and Court fees of 1/5 of the valuation was paid, and that ad valorem Court fees was paid on damages. The District Judge held that valuation of declaration and injunction was superfluous and that the valuation for ejectment covers these reliefs as well. The future damages were for uncertained amount.
9. A map was prepared by the Commissioner after local inspection. The parties led evidence on the issue of valuation in which local Lekhpal Mohan Lal was examined us PW-1 and the defendant examined her son in law Mohd. Ahmad as DW-1. He stated that the land is sandy unlike the land sold by Captain Ahmad Shah, which was agricultural land. The 3/4th price was treated as fair estimate and 82 bighas at Rs. 60 per bigha was valued at Rs. 4920/- and with 109 mango trees valued at Rs. 50/- by Patwari, by weight of wood, and was estimated to be Rs. 25/- per trees. Thus total valuation of Rs. 7750/- with an addition of Rs. 50007- for past damages, the suit valued at Rs. 56160/- was treated to be grossly overvalued. Since the plaintiff claimed to be in possession in suit and prayed for permanent injunction, the District Judge found on issue No. 5 that on the defendant's claim, to be in possession for more than 30 years i.e. prior to the enforcement of the Zamindari Abolition and Land Reforms Act, 1950, the jurisdiction for ejectment of trespasser of a grove land was with the Civil Court.
10. The suit was then tried and decreed by the District Judge, which had pecuniary jurisdiction to try the suit for possession and for recovery of Rs. 1000/- as damages for mesne profit for the period from the date of the suit, and also pendente lite and future damages at the rate of Rs. 200/- per year.
11. An appeal filed against the judgment before the High Court was transferred to the District Judge. The suit was remanded for fresh trial by the order dated 8.9.1971, after allowing the amendment application of the defendant by which she took up the plea that the land was given as revenue free grant and was not resumable. The suit was subsequently transferred in the Court of Civil Judge, who heard and decreed the suit on 1.5.1973.
12. The Civil Judge held that the suit is not barred by estoppel as there was no occasion to the State to have raised any objection and nothing was shown that the State had any information about the suit filed by the defendant against Laddan Khan and decreed in the year 1953. On issue No. 11 as to whether the property in suit was revenue free grant (muafi lekhraj) of the defendant, the Trial Court observed that the defendant changed her version by amendment in the written statement She had earlier pleaded that the land was rent free grant, By amendment she took a stand that the land was revenue free grant. In the Sanad Muafi (Ex.A-15) the words are that "Bagh Hazoor Pasand Farooqi Begin Sahiter Ko Ata Kiya Jala Hai". The Trial Court found that though the stand was changed in the written statement that the land was revenue free grant, the defendant did not state in her statement that the land was given as revenue free grant. It was held that the fact whether it was revenue free grant or rent free grant is immaterial as the granter continues to be the owner in both the cases, It was then held that since the land was a grove, which is generally rented out on some rent and not on payment or exemption of revenue, the Bagh was taken as a rent free grant and not revenue free grant.
13. On issue No. 12 and 13 as to whether the grove was gifted to the defendant absolutely on 17.4.1924 by the then ruler of the Rampur State without imposing any restrictions or condition for its resumption and whether the grant was not resumable under the law by the successors of the granter and the right to resumption was lost before 1930, it was held that the grant was not a gift made by the erstwhile ruler. It was a grant for property in suit, which could be resumed by the granter or his successor.
14. On the main issue as to whether the grant was resumed as alleged in para 3 by the plaintiff, the Trial Court held, relying upon the entries in the revenue records, that the grant was in fact resumed in 1930. The parties agreed that the entire record of erstwhile Rampur State was burnt in fire by the agitators in August, 1947. The original order of resumption could not, therefore, be produced. These findings were based on two documents namely:
(i) Register Muafiat (Ex.2), which refers to an order of resumption in the entries made in the register of Aaraziat and the certified copy of the Register Muafiat, which referred to an entry dated 9.7.1930 in respect of "Bagh Chadar Wala" after which there was an entry in respect of "Bagh Hazoor Pasand" and then a remark "Baghabad Sadar" with an entry of resumption, which reads as follows :
Bakukun 9 July, 1930 Ke Yeh Bagh Chadarwala Shamil Hata Shamil Deegha Baghat Hua. Babukin Mazkoor Bala Ke Jndraj Kiya Jai.
(ii) The certified copy of the list of "Muafiat" prepared by Munshi Gopi Nath, Sarishtedar Sadar in reply to the query made by the then Ruler, Nawab Raza Ali Khan was produced in which the entry of this land (Ex.A-4) is as follows:
Yeh Bagh Shamil Khalsa Ho Chuka.
The entry is in respect of "Bagh Hazoor Pasand" which was rent free grant of Farooqi Sahiba. The Trial Court did not accept the submissions that since the revenue entry is in blue ink and there are no pages in the register, the register may be treated as a forged document. It was found that hundreds of grants are entered in the register of which many entries were in blue ink. The witness Roop Kishore, PW-2 was in the service of erstwhile Rampur State from 1926, and had clearly stated that when the Nawab Raza Ali Khan succeeded, he resumed all the grants made earlier in favour of the Begums of Nawab Hamid Ali Khan.
15. In respect of possession, while recording finding on issue No. 2 the Trial Court found that the entries of possession in khasras are only w.e.f. 1959. The defendant did not file any khasra (record of possession) to show that she was also in possession during the period from 1930 to 1959. The document of delivery of possession in an exparte decree between Farooqui Begum v. Laddan Khan was not treated to be the document of possession. On the other hand there was sufficient evidence on record to show that the proceeds of the grove were auctioned by the Superintendent, Government Gardens, Rampur. Shri Shakir Ali, PW-3, a clerk of the Government Gardens, Rampur and Shri Tara Shankar Gupta, PW-4 proved the receipts of auction. The State also produced an application in original dated 19,7.1954 (Ex.21) by which the defendant alleged that there was a grove in her name given to her by her husband Late H.H. Nawab Hamid Ali Khan and that after merger of the Rampur State the Government Gardens, Rampur had taken possession over the grove. She had requested the Gardens Department to vacate the garden so that she may have full possession over the same. The plaintiff proved her signatures on the application by oral evidence of Ahakir Ali Khan, PW-3, who is well acquainted with the signature and writing of Smt. Farooqi Begum. The witness was the son of the step sister of the defendant. The trial Court found that no reason was given as to why he will speak lie, to prove the document.
16. With regard to limitation the Trial Court held on issue No. 3 that the defendant had taken possession in 1959, and that the suit was filed within 12 years from 1952 i.e. 8.1.1964. Under the old Limitation Act the limitation for filing a suit by the Government under Article 149, was 60 years.
17. The defendant filed Civil Appeal No. 73 of 1973. The appeal was dismissed with costs on 6.3.1975 with the following findings:
(a) The issue of estoppel was not pressed by the counsel for the appellant.
(b) The suit was filed before the enforcement of Rampur Tenancy Act. Liven if the defendant was in possession prior to enforcement of Zamindari Abolition Act, the suit could be filed in the Civil Court. In the present case the defendant entered into possession after the enforcement of the Zamindari Abolition Act. The plaintiff is a State and shall not be deemed to be Bhumidhar for filing a suit in the Revenue Court. The suit as such was cognizable by the Civil Court.
(c) The grant was by the Ruler and there were no limitation on the right of the Ruler. At the time of the grant there was no distinction of the two types, namely 'revenue free grant' or 'rent free grant'. It was initially pleaded that it was rent free grant. Subsequently by amendment it was pleaded that it was revenue free grant. The defendant, however, did not lead any evidence to support the assertion.
(d) There were no limitation on the right of the ruler. He could resume the grant given by him. It was not a case of private individual, who may have made a gift limiting his right to take back his property. Even if some conditions were mentioned in the grant the successor of the ruler could take it back. The right of the ruler was without any limitation. The question whether it was grant by Mohammedan to his wife or by revenue free grant or absolute grant is not material as the ruler could revoke the grant whatever its nature without any limitation and if he had revoked the grant, the previous grams become ineffective.
(e) The grant was resumed in 1930. The suit was filed in 1964. The State could have filed the suit within 60 years under the old Limitation Act and under the new Limitation Act within 30 years and five more years in excess where the limitation was reduced. Even if the defendant was in illegal possession since 1930, the suit was maintainable within 35 years and was filed in 1964. The suit was as such within time.
(f) The entry in the register 'Muafiat' prepared by Munshi Gopi Nath pursuant to order dated 9.7.1930 including 'Bagh Chadar Wala' in the State gardens and the entry in respect of disputed property as 'Bagharah Sadar' means that the same entry is to be read in respect of the disputed property. These two entries show that the grove was resumed by Shri Raza Ali Khan on 09.7.1930. The original order of resumption was not filed but the original register was produced and inspected by the District Judge, The two entries were found to be correct.
(g) There was an incident of fire in record room in 1947 and thus the original order could not be filed. The entries in 'List of Muafiat', and 'Register Muafiat' were challenged by the defendant to be forged. These entries were, however, proved by the keeper of the record and that the fact that the page numbers were not given and the entry was in blue ink did not establish that the entries were forged. The fact that the revenue papers were not correct, did not support the defendant as Roop Kishore had also deposed that all the grants of the wives were resumed.
(h) There was no evidence to show that the defendant continued in possession on the basis of the entries. The entries in the revenue records in the name of defendant appellant are only from the year when she took over the possession in 1959. An application with the signature appended thereto proved by the statement of Shakir Ali established her assertion of title and allegation that the Superintendent Government Gardens had taken over possession.
18. The Appellate Court thus found that the defendant was not in continuous possession. The State was in possession in the year 1954 when she filed the application and subsequently the defendant appellant reentered into possession in 1959, on the basis of the entries, which existed in the revenue record in her favour. The Civil Appeal was dismissed.
19. Shri Ravi Kant, the counsel for the appellant submitted that the grant in present case by the Nawab of Rampur to his wife Smt. Farooqi Begum was a 'revenue free grant' and not 'rent free grant'. The granter was ruler himself, who exercised his sovereign power. The revenue free grant as against the rent free grant is a permanent grant, which cannot be resumed. He further submitted that in fact the grant was not resumed and that the defendant continued to be in possession, which was so recorded in the revenue records. Shri Ravi Kant submitted that a grant by Mohammedan in favour of his wife is gift, which could not be revoked. He relied upon the Privy Council Judgment in Maharaja Kumar Gopal Saran Narain Singh v. Sita Devi AIR 1932 Privy Council 34 in which Sir George Lowndes, interpreting the deed dated 18.7.1917 executed by husband in favour of his wife creating a perpetual annuity of Rs. 15,000/- upon specified immovable properties held that the deed was not a contract at all. It was in form and substance a gift for which no consideration was necessary. The annuities were stopped on which Sita Devi, an Australian by birth and an actress by profession and a divorcee of one Stillwell, an American, who married her in Capetown on 11.6.1903 claimed the property. The Privy Council held that the divorce was obtained by fraud and marriage was in dispute, however, the reference to Sita Devi in the deed was merely descriptive as the grant was not intended to be dependent upon validity of the marriage. Brushing aside the argument that 'dum casta' condition must be applied to annuities the Privy Council held that it was a gift, and thus the decree passed by the High Court was correct. This judgment has no application in the present case in which it was admitted by the defendant that her husband, the Nawab of Rampur had granted her the grove as a 'rent free grant' and not by way of gift.
20. Relying upon Sakharam Narayanbhat v. Poornanand Saraswati Swami AIR 1933 Bombay 377 and Lakhamgouda Basavprabhu Sardesai v. Baswantrao and Ors. AIR 1931 Privy Council 157 Shri Ravi Kant submits that where land granted is burdened with service, it is not ordinarily resumable by the grantor, but where the grant is that of an office to which is the enjoyment of the land is annexed as remuneration of that office then the grant may be resumed on the failure of the holder of the land to perform the duties of the office. The grant in both these cases were burdened with service. Whereas in Sakharam Narayanbhat the grant was with a condition that grantee shall offer prayers to the deity and perform ceremonies to enjoy the land from generation to generation; in Lakhamgouda's case, it was held by Privy Council that the grant was for services as "Shiledar" in respect of which the land was granted. The grantee was 13 years old and thus the intention was to provide maintenance and not just to remunerate him for service. The grant as such was non-transferable and non heritable grant, conditioned to be resumable on cessation of service. It was a grant of land not resumable but intended to be heritable, transferable and permanent.
21. In State of U.P. and Ors. v. Lalji Tandon the Supreme Court distinguished perpetual lease and the lease giving right to a new lease consequent upon action for renewal contained in lease deed, to be construed properly and in its real context. It was held in this case that in India, the law does not prohibit a perpetual lease but clear and unambiguous language would be required to infer such a lease. This judgment also has no relevance to the present case, as there is clear difference between lease and grant with condition attached to it.
22. In the present case the land is a grove, in respect of which rent is paid and not revenue, and this fact was clearly understood by the defendant when she filed the written statement and referred to the land as 'rent free grant' and not 'revenue free grant'. A rent free grant given by the Nawab, who was the ruler of the Rampur State with sovereign rights to his wives did not absolutely transfer the properties in their favour. The grant was in the nature of 'Muafi', which has condition attached to the grant namely that the 'Muafidar' will not be required to pay rent. The ruler and the person succeeding him had a right to revoke the grant as it was a conditional transfer of property, of which the ruler continued to be the owner,
23. Shri Ravi Kant next submitted that unless the order of revocation was produced or its loss was proved, the secondary evidence in the nature of Muafi register for the list of muafidars was not admissible in evidence. He relied upon the judgment in Mst. Sardaran and Ors. v. Sunderlal Balden Prasad and Ors. , Sitar Das v. Sant Ram and Ors. Hira Lal v. Ram Prasad and Ors. AIR (36) 1949 677 which have interpreted Section 65(c) of the Evidence Act that unless it is proved that the original is destroyed or lost, the secondary evidence shall not be given.
24. In the present case both the parties had agreed before the Trial Court that the original records were put to fire in August, 1947 and thus the secondary evidence namely the 'Muafi Register' and 'List of Muafidars' were produced. The appellant, had proved the fact that the original records were destroyed and were thus entitled to produce the secondary evidence to establish that the grant in favour of the defendant were revoked.
25. In Mohasin Ali v. State of M.P. . a grant of pension and residential house made by Nawab Sir Hamid Ali Khan, the then ruler of Bhopal State by a 'firman', dated October 25, 1934 to Sir Liyakat Ali, in appreciation of long and distinguished services, including 'Inayat atta', of a residential house in which he was living as issueless and widow less, till he died, was called in question by his father's sister's son. He claimed that by the firman the Nawab had gifted absolutely the residential house to Sir Liyakat Ali with heritable interest and that the State Government could not have dispossessed him in May, 1947. The Supreme Court interpreting the crucial sentence in the firman, which read : - "Aur Aapka Sakoonti Makan Waqya Bara Mahal Sahjahanabad Aapko Inayat Ataa Kiya Jata Hai", held that grant belongs to the category of disposition, which under the English Common Law are known as "Crown grants". In England contrary to the ordinarily rule applicable to grant of a subject, grants by the crown arc generally construed most favourably for crown. The rule in case of royal grant is that by general words it will not pass prerogative rights by implication. If the intention of the sovereign is obvious from the document, it must take effect without seeking extrinsic aid. If the grant is for valuable consideration, it must be construed strictly in favour of the grantee, for the honour of the sovereign, and where two constructions are possible, one valid and the other void, that which is valid ought to be proved for the honour of the sovereign. Where, however, two interpretations may be given to the grant, both of which are good, that which is most favourable to the crown, as in many cases is preferred (Halsbury's Laws of England IIIrd Edition. Vol.7 Para 669 and 670 at page 314 and 316).
26. In State of Gujarat v. Bora Biddali Budruddin Mithi Bar Wala , the Supreme Court considered the rights over properties created prior to integration of the former Indian States with the Union and the necessity of their recognition by new sovereign. In this case the ruler of the former Indian State of Sant Ram Pur (also called Sant State), which ceded the territory of State to Government of India by agreement dated 19.3.1948 by which Government of Bombay took over the administration of the ceded territory, provided in the Letter of Guarantee dated 1.10.1948 vide Clause 7, that no order passed or action taken by the ruler before the date of making offer the administration of the Indian Government would be questioned unless the order was passed or action taken after 1.4.1948 was considered by the Government of India to be palpably unjust or unreasonable. The Tharao made by the ruler in favour of the holders of certain villages in respect of authorized land were not accepted by the Government of Bombay. In High Court the plaintiff succeeded on the ground that Tharao being a law protected by Article 72 of the Constitution could not be abrogated by the Executive Act of the State Government. The Supreme Court by majority judgment held that Tharao could not be treated as a law. It was a grant and as grant it was not open to the new sovereign not to recognize it. The rule that cession of territory by one state to another is an act of State and the subject of the former State may enforce only those rights, which the new sovereign recognizes, has been explained in Privy Council decision in Wajesin Ji v. Secretary of State AIR 1924 PC 216. The change of sovereignty does not affect the title of erstwhile citizen of the ceding State to their property. The cession of territory, is kept understood to be cession of the property belonging to its inhabitants.
27. The Supreme Court found that these rules of interpretation have been applied to sovereign crown grant in India as well. (Raja Rajendra Chandra v. Sukhi ; Gulabdas Jagjeevandas v. Collector of Surat (1878) 6 Ind. Ap. 54 (P), Seikh Sultan Sami v. Seikh Ajmuddin (1892) 20 Ind. Ap. 50 (PC). In Azizunissa v. Tasadduq Husain Khan (1901) 28 Ind. Ap. 64 (PC) and Ram Narain Singh v. Ram Saran Lal AIR 1918 PC 203). The Supreme Court thus held that the grant coupled with pension was only for the life time of Sir Liyakat Ali. The benefits granted under the 'firman' were cognate benefits, arising out of the same occasion and made with the same object in view viz., to enable the grantee to live comfortably in retirement. In absence of pleading or issue the Supreme Court did not agree with the submissions that the grant in question was a 'Hiba' made in accordance with Mohammedan Law by one Muslim to another. It was a grant made by absolute ruler to his subject, who had rendered long and meritorious service. The reference to Muslim law was found to be misconceived. It was argued, which is relevant to the present case, that if it is assumed that house was given to Sir Liyakat Ali absolutely then also the grant came to an end, on resumption of house by Government of Bhopal in 1947, and thereafter, the grant continued to be nonest because after the merger of State of Bhopal it was not recognized by Government of India or by the new government of Madhya Pradesh after Bhopal became part of that State on 1.11.1951. Rather the new government after the disappearance of Bhopal State from the scene repudiated the grant. Thus the claim of plaintiff was not enforceable.
28. In the present case, the grant and the order by which the grant was resumed by the subsequent ruler before the State merged with the Union have not been produced as they were burnt and lost. The Court had to rely only on the entries in the records maintained by the Rulers of the Rampur State. The principles, however, in respect of grant, stated in the decisions cited as above arc applicable. The grant with muafi, of the rent to be paid by grantee to the ruler was not gift of the property as understood in Mohammedan law. It was grant of the nature of Crown Grant, which could be resumed by the Ruler or subsequent Rulers. The Courts below on the evidence produced before it concluded that the land was resumed by the subsequent ruler in the year 1930 and that on the merger of the State of Rampur, thereafter, it was taken over of the State. The grant was not in existence. Some entries, however, erroneously continued, taking benefit of which, the defendant re-entered into the possession and was then sought to be evicted by the State Government, which was till then managing the grove and auctioning its produce.
29. Learned Counsel for the appellant has not challenged the findings that the grove resumed by the succeeding Nawab in 1930 and was transferred to the State on the merger of the Rampur State with the Union and that the defendant taking advantage of some of the entries in the revenue record obtained possession in 1959. No other ground was pressed.
30. The appeal is consequently dismissed with costs quantified at Rs. 10,000/- to be paid by the appellant to the State, for defending the appeal.