Rewa Shankar v. Narasinghji Maharaj

1. These two second appeals, by plaintiffs, arise out of a suit for possession of lands in villages Kanaur and Bajhar, Tehsil Kasumpti, and for mesne profits. The suit was decreed by the trial Court (Senior Sub-ordinate Judge, Mahasu), but was dismissed in appeal by the learned District Judge. Hence, these two second appeals. Regular Second Appeal No. 10 of 1954 arises out of Civil Appeal No. 57/51 of the Court of the District Judge, Mahasu, whereby the decree for possession passed by the trial Court was set aside, while Regular Second Appeal No. 11 of 1954 arises cut of Civil Appeal No. 71/51, whereby the decree of the trial Court, awarding a sum of Rs. 2,353/- as mesne profits was set aside. Since both the second appeals were inter-connected, they were heard together. This judgment will dispose of both of them.

2. Parties, with the exception of respondent No. 1, Thakur Narsinghji Maharaj through Raja Dalip Singh of Dhami, are descendants of a common ancestor, named Mannu. The plaintiffs' case was that the ancestors of themselves and defendants 2 to 10 had settled in village Kanaur several years ago. They acquired 40 bighas and 15 biswas of land in village Kanaur and 120 bighas and 2 biswas of land in Bajhar.

3. In the year 1978 B., there was a partition between Kundan (father of the plaintiffs) and the descendants of Ram Das (Kundan's paternal uncle). Half of the lands fell to the share of Kundan and it remained in his possession uptil his death; after that, the plaintiffs continued in possession of their share till 1996 B., when they were forcibly dispossessed by defendants 2 to 10 in collusion with the Raja Sahib of Dhami.

4. Mutation was also, erroneously, effected over the entire land (shares of both branches) in the name of Thakur Narsinghji Maharaj, defendant No. 1. Defendants 2 to 10 were, however, shown in possession. Consequently, the plaintiffs prayed that they be put in possession of their share and also awarded mesne profits.

5. This suit was resisted by defendant No. 1 on various grounds. In the first place, it was contended that the action was not triable by a Civil Court. Secondly, that the Raja Sahib of Dhami could not be sued without the permission of the Governor-General of India. Thirdly, the lands in suit belonged to the Ruler of Dhami State and had been dedicated to Sri Narsinghji Maharaj, who was the family deity of the ruling family of Dhami State.

6. The Ruler had permitted the ancestors of the parties to remain in possession of the suit land on condition that they performed Puja at the temple of Narsinghji Maharaj. Further, the partition proceedings of 1978 B. were admitted, but it was contended that the nature of the parties' possession was unaffected. There was no question of the plaintiffs having been forcibly dispossessed.

7. In point of fact, they neglected to do Puja at the temple and left Dhami State. Consequently, defendants 2 to 10 remained in possession with the permission of the darbar. On 30th Phagun, 2003 B., the Ruler granted a Patta in their favour, whereby, on their undertaking to do Puja regularly for the deity, they were permitted to take the yield of the land. Under these circumstances, it was contended that the plaintiffs were not entitled to any relief.

8. The remaining defendants, while supporting the written-statement of defendant No. 1, further pleaded that the present suit was barred by reason of the decision in a prior suit No. 66 of 1996 B. filed by them against the present plaintiffs. In that suit, the Court held that the land in suit belonged to Thakur Narsinghji Maharaj and the present plaintiffs were in possession as mere Pujaris.

9. The factum of partition in 1978 B. was admitted. They denied that the plaintiffs had been forcibly dispossessed. Since the plaintiffs failed to perform Puja, the defendants were put in possession of the entire land. They denied that there had been any collusion between them and the Raja of Dhami. They also relied upon the Patta granted to them by the Ruler on 30th Phagun, 2003 B.

10. The trial Court framed the necessary issues, arising out of the pleadings of the parties. It held that the sanction of the Governor-General under Section 86 of the CPC, was not necessary. It further held that the suit was not barred by the principles of res judicata. It also held that the suit was triable by a Civil Court.

11. On merits, it held that the plaintiffs were the owners of the suit lands and their rights could not he taken away by the Patta executed by the Ruler on 30th Phagun, 2003 B. In the result, the plaintiffs were granted a decree for possession of the land in suit. A preliminary decree, directing an inquiry into the quantum of mesne profits, was also passed. Subsequently, a final decree for Rs. 2,353/- was passed in favour of the plaintiffs.

12. Appeals were taken, by the defendants, to the District Judge of Mahasu. He differed from the findings of the trial Court on all material points, i.e he held that the suit was barred by the provisions of Section 86 of the CPC, as well as by the principles of res judicata.

13. On merits, he came to the conclusion that the plaintiffs' title had not been established and, lastly, that the Patta executed by the Ruler in favour of the defendants on 30th Phagun, 2003 B. could not be questioned by the plaintiffs. In the result, he non-suited the plaintiffs in toto, i.e he held that they were not entitled, either to a decree for possession of the land, or to a decree for mesne profits.

14. It is against these decisions that the two second appeals have been preferred to this Court. All the points, which were urged in the lower appellate Court, were urged here in addition to some new pleas. I shall refer to them seriatim.

15. Learned counsel for the respondents raised a preliminary objection to the effect that in arguing these appeals, the appellants should confine themselves strictly to the provisions of Section 100 of the CPC, i.e it was not open to the appellants to go into facts. Mr. R.P Khosla elaborated his argument by referring to the Himachal Pradesh (Application of Laws) Order, 1948, which came into force on 25-12-1948.

16. Under paragraph 7 of that Order, unless otherwise specially provided in the schedule to that Order, all such laws in force in Himachal Pradesh, which corresponded to the enactments enumerated in the schedule and which were continued in force by S. 5 of the Himachal Pradesh (Administration) Order, 1948, would cease to have effect. My attention was also drawn to entry to the Schedule, which runs as follows:

“1908 Code of Civil Procedure V of 1908 (1) Omit sub-sections (2) and (3) of Section 1. (2) Omit Section 115.”

17. My attention was also invited to the provisions of the Merged States (Laws) Act, 1949. Under S. 3 of that Act, Acts, Ordinances and Regulations specified in the Schedule, were extended to all new provinces. S. 5 provided for the repeal of all Acts, Ordinances and Regulations corresponding to similar Acts, Ordinances and Regulations specified in the Schedule if they had been in force in the new provinces or merged States immediately before the commencement of the Act.

18. One of the enactments, referred to in the Schedule, is Code of Civil Procedure, 1908. The Himachal Pradesh (Courts) Order, 1948, came into force on 15-8-1948. Under paragraph 32 of that Order, a second appeal would lie to this Court from an appellate decree of the District Court on any ground, which would be a good ground of appeal, if the decree had been passed in an original suit. Mr. Khosla urged that the provisions of paragraph 32, Himachal Pradesh (Courts) Order stood repealed by the provisions of the Himachal Pradesh (Application of Laws) Order and the Merged States (Laws) Act, 1949, referred to above.

19. The learned counsel for the appellants, on the other hand, argued that the Himachal Pradesh (Courts) Order is a special provision relating to only a few of the matters covered by the Code of Civil Procedure and extending only to the State of Himachal Pradesh. The Code of Civil Procedure, on the other hand, is a general enactment relating to the procedure to be followed by civil Courts throughout India, with the exception of some territories.

20. Consequently, it was urged that the provisions of the Himachal Pradesh (Courts) Order would override those of the general law. Reliance was placed, in this connection, on an earlier ruling of this Courts reported in Kewal Ram v. Bhagwan Das, AIR 1951 Him Pra 61 (A), where my learned predecessor pointed out that:

“The Code of Civil Procedure is a general enactment relating to the procedure of the Courts of civil judicature extending to the whole of India, except Part B States and the scheduled districts, while the Himachal Pradesh (Courts) Order is a special provision relating to only a few of the matters covered by the Code of Civil Procedure and extending to only the State of Himachal Pradesh.

That being so, the rule that a general Act is to be construed as not repealing in particular one, that is, one directed towards a special object or a special class of objects, is applicable.”

“Hence, Section 115 of the CPC, enforced in the State of Himachal Pradesh by Section 5 of the Merged States (Laws) Act, 1949, cannot be taken to have repealed paragraph 35 of the Himachal Pradesh (Courts) Order, 1948.”

21. I am in full agreement with the view of my learned predecessor. On the same analogy, I would say that Section 100 of the CPC, cannot be deemed to have repealed paragraph 32, Himachal Pradesh (Courts) Order. I, therefore, overrule this preliminary objection.

22. The first contention of the learned counsel for the appellants was that the appeal preferred by the defendants to the District Judge (Appeal 57 of 51) was not properly stamped. He pointed out that, for purposes of court-fee, that appeal had been valued at Rs. 329/3/6 (ten times the land revenue) plus Re. 1/- on the preliminary decree for mesne-profits. Learned counsel pointed out that the words “plus Re. 1/- on the preliminary decree” had been subsequently added in ink.

23. He further claimed that, in point of fact, the additional court-fee on this sum of Re. 1/- had not been paid. Learned counsel contended that a decree passed by the trial Court on 30-7-1951 was a ‘composite’ decree, i.e a final decree as regards the relief of possession and a preliminary decree as regards the relief for mesne profits.

24. It was, therefore, argued that the defendants-should have paid the same amount of court-fee on their memorandum of appeal against this decree, as was paid by the plaintiffs on their plaint. Learned counsel, therefore, submitted that the appeal to the District Judge was, under the circumstances, directed only against the possession part of the decree.

25. He, therefore, argued that under Section 97 of the CPC, the defendants were precluded from disputing the final decree passed by way of mesne profits. He cited the following authorities:

(a) Brahmayya v. Lakshminarasimham, ILR 16 Mad 310 (B). There, a Division Bench of that High Court held that:

“A memorandum of appeal, from a decree directing ejectment and awarding mesne profits, is chargeable with court-fees calculated both on the land and on the mesne profits.”

(b) Manik Chand Ram v. Mt. Bibi Najiban, AIR 1919 Pat 471 (C). There, the facts were:

“A suit for recovery of possession of land and mesne profits, which was valued at the value of the land plus the amount of antecedent mesne profits, was decreed, in its entirety, but the Court did not ascertain the amount of mesne profits. The defendant appealed, challenging the whole decree.”

26. Roe, J. held that:

“The appeal must be valued at the same valuation as the suit and must bear the same court-fee stamp.”

27. Learned counsel for the respondents urged that this question was of academic interest only, since an appeal against the final decree, passed by way of mesne profits, was also before the District Judge and both the appeals had been disposed of simultaneously. Alternately, Mr. Khosla argued that the learned District Judge had been requested to make good the deficiency in court-fee, if any, under Section 28 of the Court-fees Act.

28. Such a request does appear to have been made in that Court, vide remark of the learned District judge at page 3 of his judgment. I was, therefore, requested to infer that there was no negligence on the part of the defendants. My attention was further drawn to the fact that the District Judge held clearly that no court-fee was payable on the appeal I so far as it went against the preliminary decree.

29. Admittedly, full court-fee was paid on the final decree. Reliance was placed by Mr. Khosla on Kandunni Nair v. Raman Nair, AIR 1930 Mad 597 (D), (which has been referred to in extenso by the learned District Judge). Mr. Khosla further pointed out that in ILR 16 Mad 310 (B), the appeal was from a decree directing ejectment and awarding mesne profits. In the present case, no mesne profits were awarded.

30. Only an inquiry was directed as to the quantum of mesne profits payable by the defendants. Therefore, the above ruling will not be applicable to the facts of this case. Similarly, in AIR 1919 Pat 471 (C), the facts were that the suit was valued at Rs. 2,594/7/-, consisting Rs. 380/- on account of relief of possession and Rs. 2,214/7/- representing antecedent mesne profits.

31. Under those circumstances, Roe, J., held that the appeal must be valued in the same way as the suit. Here, as Mr. Khosla pointed out, the amount of mesne profits had not been determined, either by the plaintiffs or by the Court. Only a preliminary decree directing an inquiry was passed.

32. Under these circumstances, I concur with the view of the learned District Judge that the dictum laid down by their Lordships of the Madras High Court in AIR 1930 Mad 597 (D) would be fully applicable here and the court-fee paid on Civil Appeal No. 57/13 of 1951 was sufficient. The bar of Section 97 of the CPC, does not, under the circumstances, operate here. This plea, therefore, fails.

33. Learned counsel for the appellants urged that Mr. Shankar Nath held no power from defendant No. 1, either in the trial Court, or in the Court of first appeal. My attention was invited to paper No. 56 of the trial Court, which is a memorandum of appearance filed by Mr. Shankar Nath, on behalf of the Raja Sahib of Dhami.

34. Learned counsel invited my attention to the provisions of Order 3, Rule 4, whereby no pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing. Learned counsel further pointed out that under O. 41, R. 1, every appeal shall be preferred in the form of a memorandum, signed by the appellant or his pleader, and presented to the Court or to such officer as it appoints in this behalf.

35. It does not appear that this point was taken before the learned District Judge. Learned counsel for the appellants, however, contends that under O. 41, R. 2, this ground may be taken with the leave of the Court.

36. Learned counsel for the respondents, however, pointed out that there were about 30 hearings in the trial Court and 18 hearings in the lower appellate Court. No objection was raised anywhere to the effect that Lala Shankar Nath held no power from defendant No. 1.

37. My attention was further drawn to the fact that in Note 3 to ground 17 in the memorandum of appeal to the District Judge, it was stated that “the Vakalatnama of the counsel, signed by the appellants, is in the file of the suit.” Learned counsel for the respondents urged that an objection to the validity of the power of attorney must be taken at a very early stage in the trial Court.

38. If it is not taken, it must be deemed to have been waived. It was further urged that the defect, if any, in the authority of Lala Shankar Nath was only an irregularity which will not affect the merits of the case within the meaning of S. 99 and would not be a ground for interference in appeal.

39. It is noteworthy that it is nobody's case that Lala Shankar Nath was not authorized by defendant no. 1, through Raja Sahib of Dhami, to appear and plead for him in the trial Court and in the Court of first appeal. Therefore, the defect, if any, in his power would not, in my opinion, affect the merits of the decision by the learned District Judge.

40. In the next place, it was, vehemently, urged by the learned counsel for the appellants that the lower appellate Court has erred in holding that the previous consent of the Governor-General-in-council was necessary for the institution of the suit. Mr. Rup Chand Chaudhary argued that the suit was not directed against the Ruler of the Dhami and no relief was claimed against him.

41. In the alternative, it was urged that if, for any reason, the provisions of S. 86 were held applicable to the suit, then the suit could have been continued against the deity through the remaining defendants. My attention was drawn, in this connection, to an application, purporting to be under O. 1, R. 10 and Section 151 of the CPC, made by the plaintiffs on 5-12-1953 to the learned District Judge, wherein a prayer was made that, if necessary, the suit to be proceeded with against Sri Narsinghji Maharaj, defendant no. 1, through the remaining defendants.

42. Though no separate order was passed on this application, nevertheless, it appears from the judgment of the learned District Judge that he was of the opinion that the course proposed by the plaintiffs could not be adopted. Learned counsel for the appellants cited K. Narayana Moothad v. The Cochin Sirkar, ILR 39 Mad 661 : (AIR 1916 Mad 835) (E), which was a Letters Patent Appeal against the decision of Tyabji, J., in Narayanan Moothad v. Cochin Sircar, ILR 38 Mad 635 : (AIR 1916 Mad 308) (F).

43. These two decisions have been referred to by the learned District Judge in the course of his judgment. The view of the Division Bench, which disposed of the Letters Patent Appeal, was that a suit against the Raja of Cochin was not maintainable without the consent of the Local Government under Section 86 of the CPC, in spite of the fact that the Raja was impleaded, as a defendant, in the capacity of a trustee of a temple.

44. I agree with the observation of the District Judge that this ruling does not help the appellants. It is noteworthy — as has been pointed out by the District Judge — that the plaint contained a definite allegation that the Raja of Dhami got the suit land entered in the name of the deity in the revenue papers in collusion with the remaining defendants.

45. It was further stated that he took the step, because the Governor of the Punjab, on a representation made by the plaintiffs, had set aside the Raja's order, imposing a penalty of Rs. 72/- on the plaintiffs for the non-performance of Puja. Learned counsel for the respondents pointed out that Sri Narsinghji Maharaj was the family deity of the Raja of Dhami and in view of the direct allegations made against the Raja, referred to above, sanction of the Governor-General-in-Council under Section 86 of the CPC, was a condition precedent to the institution of the suit.

46. Mr. Khosla cited, inter alia, Gaekwar Baroda State Rly v. Hafiz Habib-ul-Haq, AIR 1938 PC 165 (G). There, the facts were that a suit had been filed against the Baroda State Railway, through its Manager and Engineer-in-Chief. Reversing the decree of the High Court of Allahabad, their Lordships held that:

“The Baroda State Railway is owned and managed by His Highness the Maharaja of Baroda through his men and is not a corporation. Hence, a suit as framed against “the Gaekwar Baroda State Railway through the Manager and Engineer-in-Chief” is not maintainable. Such suit is, in reality, though not in form, against H.H the Maharaja Gaekwar of Baroda and must, therefore, comply with the provisions of Ss. 86 and 87.”

47. My attention was also invited to Patiala Darbar…(Applicant); v. Narain Das Gulab Singh…(Opposite Party).*, AIR 1944 Lah 302 (H). There,.the facts were that a suit had been filed against the Bank of Patiala. A Division Bench of the Lahore High Court held:

“The Patiala State Bank is owned by His Highness the Maharaja of Patiala and, therefore, a suit cannot be instituted against the Bank, without the consent of the Crown Representative.”

48. It is noteworthy that in the plaint, defendant no. 1, has been described in the following terms: “Thakur Narsinghji Maharaj marfat Sri Raja Dalip Singh Dhami trustee Thakur Narsinghji.” In view of what has been said above, I concur with the view of the lower appellate Court that the suit, in question, was not maintainable without the permission of the Central Government under Section 86 of the CPC.

49. The next point urged by the learned counsel for the appellants was that the lower appellate Court has erred in holding that the suit, out of which this second appeal has arisen, was barred by the principles of res judicata.

50. In holding that the suit was not so barred, the trial Court expressed its opinion that the decision in the previous suit, namely, suit No. 66 of 1993 B., decided by Mian Gopal Singh on 4-10-1993 B., was a decision of a revenue Court and, therefore, could not operate as res judicata in a civil proceeding, involving determination of title.

51. The trial Court was, apparently, influenced by the fact that the plaint in that suit bore the heading “In the Court of the Munsif, Magistrate first class and Revenue Officer, Dhami State”. Similarly, the summonses issued by that Court bore the heading “In the Court of the Munsif, Magistrate and Revenue Officer, Dhami State”.

52. Mian Gopal Singh signed the summonses and beneath his signature his designation was entered as “Magistrate first class.” Again, the copy of the judgment, Ex. P. O, bore the heading “Miscellaneous Revenue.” Learned counsel for the appellants further pointed out that the suit was described as one for the correction of the entries in the revenue papers.

53. The learned District Judge has pointed out; and, in my opinion, quite rightly, that some confusion was created because Mian Gopal Singh exercised the powers of a Munsif, of a Magistrate and of a Revenue Officer. I entirely agree with the learned, counsel for the respondents that in judging whether I the previous suit was a civil or a revenue proceeding, I we have to be guided not by the heading or the labels used, but by the substance.

54. A perusal of the plaint in that suit leaves no room for doubt that the suit was of a civil nature. The question of title had been specifically raised therein. It was distinctly alleged therein that the land in question had formerly been granted to the parties in lieu of Puja and as the defendants (Rewa Shankar and Ram Datt, the present plaintiffs) had failed to perform Puja, the then plaintiffs (who are-defendants here) were entitled to be declared as sole Pujaris of the temple and put in possession of the land in suit.

55. Obviously, these reliefs could not have been granted by a revenue Court. The judgment of Mian Gopal Singh dated 4-10-1993 B. also was that of a civil Court, since it directed that the lands, in question, be entered in the name of Sri Narsinghji Maharaj and possession be delivered to the plaintiffs, as Pujaris. The next sentence in the judgment is important.

56. It says that “the Revenue Department be asked to make over possession to the plaintiffs.” If, as I am asked to hold, the judgment was that of a Revenue Court, there was no question of Mian Gopal Singh (himself a revenue Officer) asking the Revenue Department to take necessary action. I, therefore, concur with the view of the lower appellate Court that Mian Gopal Singh's judgment dated 4-10-1993 B. was that of a Civil Court and not that of a Revenue Court.

57. In this connection, learned counsel for the appellants pointed out that the suit decided by Mian Gopal Singh was valued at Rs. 390/-, while the suit, out of which this second appeal has arisen, was valued, for purposes of jurisdiction, at Rs. 1,658/-. I was, therefore, requested to hold that the present guilt was not triable by Mian Gopal Singh.

58. It is common ground that the land involved in the two suits is identical. As regards the difference in valuation, it cannot be said that Mian Gopal Singh had no pecuniary jurisdiction to try the suit then. The learned District Judge has suggested one possible explanation and that is that the subject-matter of the suit being land, the rules, governing the calculation of its jurisdictional value, might have been different in Dhami State in 1993 B, as compared to the rules now in force in this State.

59. Further, it was urged on behalf of the appellants that the parties in the two suits are not identical. It was pointed out that Sri Narsinghji Maharaj was not a defendant in the previous suit. Learned counsel for the respondents, on the other hand, submitted that the deity was represented in the previous suit by defendants 1 and 2 (Rewa Shankar and Ram Datt).

60. The District Judge has also remarked that the right of the deity to the land had been specifically urged by the plaintiffs in the previous suit. Relief was sought in that suit on the ground that the parties held the land in suit in lieu of rendering services (i.e Puja) to the deity. It can, therefore, be said with justification that the right, claimed by the then plaintiffs, was through the deity.

61. The finding in the previous suit was against the present plaintiffs. Mr. R.P Khosla pointed out that the principles of res judicata are much wider than the terms of section 11 of the CPC. He contended that, under the circumstances of this case, the principles of res judicata may be invoked, even apart from the provisions of S. 11. Reliance was placed, in this connection, on

(a) Balakotayya v. Nagayya, AIR 1946 Mad 509 (I), where a Division Bench of that High Court held that:

“It is undoubtedly the law that the doctrine of res judicata is not confined to decisions in a suit and that the doctrine applies even to decisions rendered in proceedings, which are not suits.”

(b) Bholanath Chatterji v. Monmotha Nath Dutta, 45 Cal WN 420 (J), where a learned Judge of that High Court held that:

“If the argument of learned counsel for appellants be accepted, it would lead to the following impossible state of affairs. A brings a suit against B for the declaration of his title to certain land. He fails in the suit. He then brings a suit against B and makes C a party to the suit and claims the identical relief against B and C.

C has no interest whatsoever in the land. If what the learned counsel says is correct, then Section 11 of the CPC would have no application and B would be liable to be harassed by A a second time simply because C, who has no interest in the property, is added as a party.

In this way it would be possible for A to institute suits interminably for a declaration of his title and to harass B for ever. Obviously, such an argument must be unsound.”

62. While dealing with the plea of res judicata, learned counsel for the appellants further urged that the judgment of Mian Gopal Singh dated 4-10-1993 B. was a “foreign judgment” within the meaning of Section 2(6) of the CPC. Consequently, it was urged that the provisions of S. 11 would not be attracted. Learned counsel for the respondents, on the other hand, pointed out that Dhami State merged into Himachal Pradesh and the territory of that State is now an integral part of this State.

63. Consequently, the decisions of former Courts of Dhami State cannot be deemed to be “foreign-judgments”. It is noteworthy that the trial Court (Senior Sub-ordinate Judge, Mahasu) is the successor not only of the civil Courts of first instance of the erstwhile State of Dhami, but also of all such Courts which formerly existed in the princely States now forming part of district Mahasu, Himachal Pradesh. I am unable, therefore, to accept this argument.

64. That brings me to the merits of the appeal. Learned counsel for the appellants invited my attention to Ex. P. E, which is an extract from the Jamabandi of 1973 B. There, while Sri Rana Sahib Bahadur is entered as superior owner in column 3, Kundan and descendants of Ram Das were entered as owners in column No. 5 in equal shares. Learned counsel pointed out that there is no reference to the deity in Ex. P.E

65. My attention was also invited to Ex. P. A, which is a copy of the plaint filed by Kundan on 19-1-1978 B. in the Court of the Members of the-Council, Dhami State. The prayer made therein was-that Kundan's share of half be partitioned in villages Bajhar and Kanaur. Ex. P. B, copy of the order of the Members of the Council dated 11-9-1978 B, shows that the partition was sanctioned.

66. My attention was also invited to mutations, Exs. P.D and P.C These show that after the death of Kundan some time in 1979 B., mutation was sanctioned in favour of his sons, i.e Rewa Shankar and Ram Datt. Learned counsel emphasized that mutation was effected in favour of Kundan's sons-and not any chelas. My attention was also invited to the fact that the names of the two plaintiffs were entered in column No. 5 as owners in the Jamabandi of 1984 of village Kanaur, (Ex. P. G) in Ex. P. H, extract of Jamabandi of village Kanaur for 1988 B., Ex. P. I extract of Jamabandi of villages Kanaur and Bajhar for the year 1992 B. and Ex. P. J extract from Khasra Girdawari of village Bajhar for 1992 to 1996 B.

67. Learned counsel for the respondents, on the other hand, invited my attention to Exs. P.W 14.D and P.W 14.E, which are copies of extracts from the mutation register of villages Bajhar and Kanaur. In column 4 of these extracts, Rewa Shankar and Ram Datt have been entered as owners, vide the previous Jamabandi entries. The mutation order directs diat, following the decision given in suit No. 66 of 1993, Sri Narsinghji Maharaj be entered as owner, while Sudama and others were to be entered in the cultivator's column.

68. He pointed out that in Exs. P. G, P. H and P. I, relied upon by the appellants, Sri Rana Sahib Bahadur had been entered as superior owner in column No. 3, while Rewa Shankar and Ram Datt had been entered in column 5 as inferior owners, “Adna Maliks.” In Bhupendra Krishna v. Abdur Rahaman, AIR 1935 Cal 710 (K), cited by learned; counsel for the respondents and referred to by the learned District Judge, a learned Judge of that High Court, held that:

“When there is a conflict between old Record of Rights and a recent Record of Rights, the recent record is to be presumed to be correct unless it is proved by evidence to be incorrect.”

69. The trial Court did not attach any importance to the subsequent entries in view of his conclusion that the plaintiffs were not bound by the decision in suit No. 66 of 1993 B. I have already given my reasons for concurring with the learned District Judge that the decision in suit No. 66 of 1993 B. would bind the present plaintiffs and would operate as res judicata.

70. It is not easy to understand why the trial Court considered that the decision in suit No. 66 of 1993 B. was not “binding” on the plaintiffs. Ex. D.W 7/1.A, copy of the order dated 7th Sawan, 1957 B. of the Dhami Darbar entered in the Chumadi Bahi, shows that Kundan had undertaken to perform Puja at the temple of the Thakurs in the Chaugan. He was permitted to perform Puja through a substitute till Jeth 1958 B.

71. Kundan was further to come once every 8 or 10 days and perform Puja personally. Kundan was also directed to settle in the State along with his family. In the event of default, he was to be ejected from the lands granted to him. I concur with the view of the District Judge that the entry was duly proved by Hari Saran (D.W 7) and the document, being more than 30 years old and having been produced from proper custody, must be presumed to have been executed by Kundan under Section 90 of the Evidence Act.

72. Doubt was expressed by the learned counsel for the appellants as to whether this entry relates to the temple in suit. Rewa Shankar admitted, in the course of his statement dated 6-7-1951, that he held only the land in suit in Dhami and no other land. Consequently, I am obliged to infer that the land referred to in Ex. D.W 7/1.A is the same land which is in dispute now and had been granted to Kundan for performing Puja.

73. The performance of Puja was, obviously, the primary condition for the grant of the land, otherwise there would have been no question of Kundan's providing a substitute’ for performing Puja. Learned counsel for the appellants pointed out that it was strange that no Nazrana had been charged. The obvious answer, as remarked by the District Judge, is that Nazrana was not charged because the land was attached to the temple and Puja had to be performed by the grantees.

74. Much was made of the fact that the plaintiffs had got their share partitioned in 1978 B., vide Exs. P. A and P.B It was contended that unless the plaintiffs were full owners, they would not have been entitled to partition.

75. I have already referred to the fact that, while the plaintiffs were entered as “Adna Maliks” in column No. 5, in Exs. P. G, P. H and P. I Rana Sahib was entered as superior owner in column No. 3. Consequently, the mere fact that partition was effected in favour of the plaintiffs would not have the effect of improving their status. It is significant that in Ex. P. A (Application for partition dated 19-1-1978 B.), Kundan had described himself as well as Gauri Datt and others as “adna maliks” i.e inferior proprietors.

76. My attention was invited to Ex. P.S which is a copy of the Rana Dalip Singh's order dated 10-7-1990, whereby the plaintiffs were directed to perform Puja regularly and in default to pay Rs. 10/- p.m Learned counsel for the appellants argued that this was an illegal order and on a sum of Rs. 72/- being realized from the plaintiffs in pursuance of this order, the plaintiffs submitted a Memorial to the Governor of the Punjab, which was allowed and a refund was ordered, vide letter from the Superintendent, Simla Hill States dated 24-1-1936, Ex. P.M Raja Dalip Singh, who was examined on commission, stated that the compensation had been levied by him in the exercise of his executive powers.

77. According to him, the Political Department directed the refund of this amount on the ground that it should not have been recovered in an executive manner, but only following a decree of a civil Court. Suit No. 66 of 1993 B. was filed after the refund had been ordered by the Political Department. Therefore, it is immaterial whether the Political Department had suggested that the issue be referred to the Civil Court or not.

78. The fact remains that following the decision of suit No. 66 of 1993 B., the names of Rewe Shankar and Ram Datt were removed from the revenue records in consequence of their failure to perform Puja, which was the essential condition of the grant. The order of Raja Sahib, Ex. P.S does not help the plaintiffs, nor does it show that they held the land in question as full proprietors, i.e without conditions.

79. There remains Patta Ex. D. VV. 14.U, which was granted by Sri Raja Dalip Singh to the defendants on 30th Phagun, 2000 B. The trial Court refused to rely upon it, as, in its opinion, it is a mere recital of the previous history of the land in suit and did not have the effect of dedicating the land to Sri Narsinghji Maharaj.

80. Further, the trial Court was of the view that it had been signed by Rana Dalip Singh not as a Ruler of the State, but as the trustee of the deity. I concur with the learned District Judge that the reasoning of the trial Court was faulty. The opening sentence of the Patta shows that the Raja Dalip Singh granted this Patta in his capacity as the Ruler of the State.

81. It is noteworthy that at the time the Patta was granted, the Raja had full powers of a ruling prince and the grant could not be questioned in any Municipal Court. The seal of Dhami State was affixed at the foot of the Patta.

82. A perusal of the body of the Patta also shows that, after reciting the previous history of the land, the Ruler had conferred upon the defendants the right to hold the land in future also, provided they continued to perform Puja to the deity. I fail to see how, under the circumstances, the defendants could be ejected at the instance of the plaintiffs.

83. In view of all that has been said above, it follows that the plaintiffs had no title to the land in suit and, consequently, they were not entitled to a decree for possession in respect thereof. It follows; as a necessary corollary that they were not entitled to recover mesne profits in respect of that land from, the defendants. I am of the opinion, therefore, that the learned District Judge was, under the circumstances, justified in non-suiting plaintiffs in toto, i.e by setting aside the decrees passed by the trial Court for possession and mesne profits. These two appeals must, accordingly, fail.

84. I dismiss both the appeals with costs. This judgment will be read in both the appeals.

V.B.B

85. Appeals dismissed.