STATE OF PUNJAB AND ORS. v. BRIGADIER SUKHJIT SINGH

The Judgment of the Court was delivered by c PUNCHHI,J. These two appeals at the instance of the State of Punjab, are directed against a common judgment of a learned Single Judge of the Punjab and Haryana High Court, passed in Regular Second Appeal Nos. 1719 and 1720 of 1989 and are limited in scope to the determination of title to a double storeyed building situated in a complex known as Jallowkhana in the town of Kapurthala. D These appeals have arisen in the following manner.

The respondent herein is Brigadier Sukhjit Singh. He is the son ofMaharaja Paramjit Singh and the grand-son of Maharaja Jagatjit Singh in the order of primogeniture succession. The ancestory ofMaharaja Jagatjit Singh is traced to Baba Jassa Singh Ahluwalia, the founder of Kapurthala State and· the Ahluwalia E dynasty. It is conunon ground that there is a complex known as Jallowkhana at Kapurtllala which encompasses two hiswric ha\'elis, which in the context mean palaces. going by the names Haveli Baba J ~issa Singh and Nihal Mahal. Besides these two havelis, there are open spaces and other structures in the complex and the disputed one is a double storeyed building presently in the occupation of State or Punjab through its Public Works Department. The plaintiff-respondent claim- F r__, ing that since the possession of the State of Punjab thereon was pemu~:,.n.: in character and in the nature of a licence, and despite his terminating the same the State of Punjab had not vacated the disputed building, he sought relief by way of suit for mandatory injunction requiring the State of Punjab to vacate the premises, and to keep its hands off from the other properties in the complex over which the G plaintiff-respondent was owner in possession. _... The State of Punjab on the other hand disputed the ownership of the plaintiff to the Jallowkhana complex and claimed that the building in dispute belonged to the government and was being maintained by the Public Works Department at state expense since 1947. The possession of plaintiif·towards any part of the H

., / . I ,.;.2~ '-.' SVPRE~tE COURT REPORTS [1993] 3 S.C.R.

...... .' .. \ ,, .' . - '-· --·~-- ~ -----~ .... - A . buildings was denied. It was pleaded that Vv'hen the princely states in this part of lhe co~ntry mc~g-ed :~ith:-- the Staie knov.·n as the Patial:i and East Pllnjab State Unions (PEPSU). ·the rulers of the merging States were required to· declare their private properties. but the ruler of Kapurtltala Stare. however, while declaring his private properties. did notenlistlhe.Jallow~hana complex as part of his private properties. On that analysis it was claimed that the entire Jallowkhana complex Il \ . was owned by the State. ·.... ' .... ,., .. Since thefe' \\;ere various pleas On both sides on locus. jurisdiction. limita- tion~·es·t~ppaJ and maintai~ability~ a number of issues were struck on the pleadings uf the parties. but \VC arc not concerned \vith them any inore for they stand settled C one_,vay or the other so a-, to steer the suit tn its conclusion on title to the properties.

The trial court on its part partially decreed the suit holding that except the double stOreycd building in occupation of the State of Punjab. the remnants-in the Jallo\\'khana complex \vas O\vncd and possessed b}r the plaintiff-rcspondc~t. It took the vic'v that the State-of Punjah had b~come the O\\'OCr of the said douhlc fl storcyed buildl.ng by lapse of time.- It vic\\·cd that there \Vas no lii.::cncc since admittedly no licence fee had ever been paid. Grounding its concJusinn solely t1n that basis it held that even though the conunon entrance to the double storcycd building as well as to the palaces knov.·n as llavcli Baba Jassa Singh and Nihal ~tahal through the dcori \vas owned by the plaintiff-respondent. stilJ the Stat~ of Punjab had a right of passage through it a-; easement. Similarly it held that the o~n E courtyard in front of the double storeycd building a-; indicated in the plan. wa'\- in the O\\lk."fshii} of the plaintiff but the defendant-State had an casen1cnt of passage over it. The court ho,vevcr did notice the fact that the State of Punjab had never pleaded alternatively _any such ea~ements and yet had no hesitation in the grant thereof. In the result, the $tale of Punjab succeeded in quelling the claim of: F ownership of the plaintiff to the double storeyed building and it was held to be the _property of the State ""bcCausc of lapse of time··. andotherpOrti,Jris of the property a-; aforen~cntioncd \ycre found to be subjected to' casements. as spelled out earlier. Th~ -~cmaining pans of thC complex including the t\vo havelis were held to ~c in the ownership and possession of the plaintiff-respondent. ,

G ·Two cross appeals were tiled before the District Judge, Kapurthala. The appeal o_f the State of Punjab was dismissed but the cross appeal of the plaintiff- rcspondent \Vas alll1\\'ed The plaintiff~respondent .succecdcd in having the suit decreed in ciltirety. The findi~gs of the trial court ori the questioned iss~es nos. 5 an_d 8 were reversed and a mandatory injunction 'Yas issued calling upon the defcndant-Statc 1,1 hand over the possession of the double storeycd building in -

~.....- ST.-\ TE OF l'l'NJAB ,._BRIG. SUKHJIT SINGH [PLTNCHHI. J.] 949

ctispute lll the plaintiff, as well as artirming restraining the State from interfering in the possession of the plaintiff or properties in other part of the Jallowkhana complex. Obedience to the mandatory injunction was conditioned in terms that since the government oftices wen! functioning in the double storeyed building since long, the same may be vacated by the government as and when suitable accommodation is made available fur such offices. and till then the plaintiff and the State Government were suggested to mutually settle reasonable rent to be paid by the State GO\-ernmerit for use and occupation till the government vacated it.

Two separate second appeals were filed by the State ·of Punjab in the High Court but those were dismissed by means of the common judgment under appeal. At the outset notice in the special leave petitions was issued by this Court limited to the question of the double storeyed building. In the mean time parties were c permitted to file addititmal documents as existing on the trial court file, which were ... filed. Leave was then granted limited to the property referred to in the notice. During the course of the hearing of the appeal. it was felt that a report be called for from the Sub-Judge. Kapurthala as to whether the Deorhi, through which was the common entrance. was in possession of the State Government and whether it needed repairs. He was also required to report whether the deori is the main entrance to the double storcyed building in dispute .or whether the main entrance to the said building was from another route. The Sub-Judge has reported that the Deorhi in ·question is in possession of Brigadier Sukhjit Singh-respondent and it is bey1md repairs. He has further intimated that prest:ntly the Deorhi is not the main entranct: to the double storeyed building but on site a distinct 16 ft. wide path has been provided as main entrance to the double storeyed building. The additional documents in the form of photographs of the deori and the site plan Ex.R-7 showing its location go to show that the entrance to the Deorhi is blocked by closing its gate and knitted by barbed wire, and the main entrance to the double stnreyed building shifted perpendicularly from a cross direction. This is the fact situation. F

1 The case in the courts below has proceeded on the footing that the double storeycd building is part of Jallowkhana complex. Besides, not only does the afore-depiction estab1'sh, it has also been found otherwise by the courts below that the double storeyed building was and is part of the Jallowkhana complex. It is in G the Jallowkhana complex that the two historic havelis, namely Haveli Baba Jassa Singh and Nihal Mahal are situated and for all these buildings there was a common entrance through a Deorhi which has now fell in dis-use and that now a st:parate passage stands provided at site to reach the double storeyed building which is perpendicularly cross to the passage from the deori. It is also clear that the claim 1)f the plaintiff that the double storeyed building in occupation of the State of ff

950 SPPREtvtE COl.'RT REPORTS 11 'Jf!~ I 3 S.CR.

A Punjab was part and parcel of the .I allowkhana cnmplex stands es ta hi ishcd and that the Cl!Urls bclmv. except the trial court. have held it to be in the ownership l)f the plaintiff-respnm1cnt: hut the trial court has held that the plaintiff-respondent had lost ownership due to the occupation of the State of Punjab "'because of lapse of time ... The title to the .lallowkhana complex comprising of the two hist11ric havclies and other open places and structures. excluding the duuhle storeyed B building. has been put beyond dispute and the plaintiff-respondent is held tn be the O\vner therePf and cotwersely the State has been held to be llllt its O\vner. This is the effect or the limited leave granted. Thus the limited question Oil which this appeal survh·cs is shnuld the double storcycd building be retric\'ed fmm that complex and held to he owned by the State as held by the trial court'! c Mr. Kapil Sibal learned Senior Advocate for the appellant-State Cl1ntended that tirstly the double storeyed building was not part of the .Jallowkhana wmplex. secondly C\'en if it was so. the State of Punjab had become its owner by adverse possessinn. and thirdly the same was not the property of the plaintiff-respundcnt since it is not included in the list of personal properties of the Ruler at the time l)f n merger. Much argument before the courts below and particularly before the High Court was centered around the construction of a Farman of the ruler of the State made on 28th Magh Samvat 1981. equivalent approximately to 13th February 1925 AD. Ifs original in Urdu in English Alphabets followed by its English translation is given hereafter:

E URDU VERSION

··Nakai Az Asal mashmoola misal no. 1020 confidential rec1)rd Kapurthala State.

Minjanib Jagatjit Singh Maharaj Kapurthala. Apne sab pisaraan ko apni F Oudh (wagia subajat mutahida) ki jaidad bataur hiba hissa rasadi de chuka hoon- uske baad yeh hukam sadar kiyajaatahai keh mere baad TikkaSahib Raja Paramjit Singh bataur haqonq wali ahad meri. tamam jaidad bakaya har .kisam ka wahid maalik banega. Aur isi tareh se yeh laazam hoga keh har aanewala wali ahad ahluwalia khandan ki rawayat ke madenazar Ahluwalia khaandan ki tawarikhi hawclian waqia Kapurthala. Baba.Tassa Singh Haveli aur Nihal Mahal mausOl)ma bataur J allowkhana ka bhi maalik wa kaabiz reh kar is imarat ki tawarikhi haisi yat aur ehtaram ko kaim rakhega, jo imarat wabasta hain. taake Ahluwalia missal ka chirag ta-doamis imarat mein roshan rehch. Auris imarat ki malkiat wa kaabaziyat hhi meri deegar jaidao se ilahida tassawar ki jakar.bahaq har anewala wali ahad ke haq men mansoob hogi. Lihaza tehrir hiza bataur yaad-daasht kc likh kar.rakh

STATE OF PUNJAB'" BRIG. SUKHJIT SIJ\'.GH (PUNCHHI. J.] 951

di hai ki indul haajil kaam awe. Fakat tehrir 28 Magh Samvat 1981. A

Daskhat Beharoofd Urdu (Jagatjit Singh) Maharaja Kapurthala - Bamai Mohar"

ENGLISH TRANSLATION B ··copy of the original on file no. 1020. Conficlential Record Kapurthala State.

On the part of Maharaja Jagatjit Singh Kapurthala. To all my sons I have already gifted. in accordance with their respective shares, my properties in Oudh (situate in United Provinces), After that it is ordained that after me Tikka Sahib (heir apparent) Raja Paramjit Singh by his right of primogeniture would become c the sole owner of my entire remaining properties. In the same manner it would be .... obligatory on each succeeding heir apparent, keeping in view the traditions of the Ahluwalia family, to be also owning and possessing the historic havelis of Ahluwalia dynasty situated at Kapurthala, Haveli Baba Jassa Singh and Nihal Mahal, known as Jallowkhana, maintaining its historic character and respect D . which is connected to this structure; so that the lamp of the Ahluwalia dynesty is kept alight in this structure perpetually. Further the ownership and possession of this structure be also treated separate from my other properties, and this shall vest in favour of each succeeding heir apparent. Therefore, this writing is made and kept for record to be put to use whenever necessary. · E '· Date of ordaining 28th Magh Samvat 1981 ( 13-2-1925 A.O. approximately)

Signature in Urdu Jagatjit Singh Maharaj a Kapurthala and Seal."

We have done the exercise to translate the Farman ourselves, for we found F that the translations done by the courts below at various points, were not happily worded. Urdu, for decades, was once the official language in that part of the country and had remained court language, even after the independence, till State languages took over. We thought it appropriate to put the matter in the right perspective, since the Farman had to be read as a whole and then construed, to meet the challenge of Mr. Sibal. G

Now it is beyond doubt that the ruler of an Indian State was in the position of a sovereign. and his command was the law. His Farman had the strength and potency of law made by an elected legislature and his acts, administrative or executive, were sovereign in character. The Farman above referred to has H

952 SUPREME COURT REPORTS [199~) 3 S.C.R.

A necessarily to be imported with those attributes. When read as a whole it reveals three important facwrs:

(I) The historic havelis namely, Haveli Babajassa Singh and Nihal Mahal, which had commonly come to be known as Jallowkhana was not those buildings alone but the entire structure or complex containing those palaces, B appurtenances, and open spaces as part of its fortification, otherwise Jallowkhana would not have been referred to in singular, when the palaces were referred to in plural.

(2) the c1)mplex as an integrated whole was ordained to be neither State property nor the personal property of the Ruler. It's ownership and posses- c sion in the hands of each succeeding heir apparent by primogeniture was demised perpetually so as to keep the name of the Ahluwalia dynasty perpetuated in the fallowkhana as such. It is in the singular sense that it was .... ordained that its historic character and respect to the fortification shall be maintained to keep the family flame alight; and

D (3) the structure known as Jallowkhana was to have a separate and special proprictory status in as much as it was thenceforth to remain neither the separate property of the ruler nor that of the State but a property settled on a titleholder for keeping the family name alive perpetually and vesting it in each succeeding heir apparent by the rule of primogeniture. It was in the nature of an impersonal estate as opposed to private property or private estate.

Now creating such kin.ct of a special estate undeniably was within the cnmpetence of the ruler. His creative dimension and imaginative skill need not - have conformed to any set standards or patterns known to jurisprudence or law. His sovereign will could have been expressed in various innovations. And this is an instance in which he put his sentiment, attached to the complex, at a pedestal at which it wa~ neither to be treated as State property nor personal property either for him or in the hands of the succeeding heirs apparent in the line of primogeniture. It· s ownership and possession in the hands of each succeeding heir apparent was • -

G devised as purposive, for perpetually keeping its integrity and the name of the Ahluwalia dynasty alive, the Jallowkhana structure symbolising such continuance by its special status and reverence. ... Once it is held that Jallowkhana complex is one integrated property, the argument of Mr. Sibal to the contrary is of no substance. Whatever is composed thereof is Jallowkhana. There cannot be two owners to such property. The property H must remain with the heir apparent. The State of Punjab cannot partially be an heir

STATE OF PUNJAB v. BRIG. SUKHJIT SINGH [PUNCHHI, .I.I. 953

- ·.r apparent. On the other hand when the plaintiff-respondent terms the State of A Punjab as a licensee, his plea cannot be negatived on the mere plea that no licence fee was agreed to· be paid. Payment of licence fee is not an essential attribute for the subsistence of a licence. The mere fact that the licence is of long duration dating back to the year 1925, as suggested by some of the plaintiffs witnesses, orof 1947 as said by the witnesses of the State, is of no consequence. Permissive possession, however long, cannot by itself be said to have become hostile by a "long lapse of B time··, more so, on property, the nature and character of which is unique and singular, having attributes of being impersonal. Such status of the property rules out the second objection of Mr. Sibal regarding adverse possession for which even an issue was not claimed in the courts below keeping apart the pleadings. Thirdly for the ruler having not listed Jallowkhana complex as part of his personal properties at the time of merger, is for the reason that it was not his personal c property. Thus not agreeing with Mr. Sibal we go on to hold that title to the double storeyed building in question could not be divested from the plaintiff due to the unique and singular character of the property, it having attributes of being impersonal, as also by mere lapse of time, or on account of non-payment of any licence fee or rent or on adverse possession, for which there is no plea, as well as D the property in dispute being an integral part of a complex, to which complex the claim of the State to its ownership has failed, and finally hold that the ruler on merger of his State need not have claimed this to be his personal property to maintain the instant suit and seek relief. This determination leads us to hold that the State of Punjab has no title to the disputed property and hence must obey the mandatory injunction issued by the lower appellate court as confirmed by the High E Court. We, however, go on to observe that the mandatory injunction granted by the lower appellate court is so weakly worded that it is capable of being evaded totally,

- and in any event for a very long time to the point of negating it. In any case the injunction has to be carried out within a reasonable time. Thus, in order to do complete justice between the parties, we have thought it fit to fix a reasonable time for its obedience. Let the mandatory injunction issued by the lower appellate court F be carried out in its entirety, latest by the end of three years, if not earlier, and on the breach of which the law may take its own course.

With these observations, we dismiss the appeals. In the circumstances, the parties shall bear their own costs. G

G.N. Appeals dismissea. ·- .,.