Supreme Court of India
RAJ KUMAR RAJINDER SINGHversusSTATE OF HIMACHAL PRADESH AND OTHERS
- Citation
- 1990 INSC 209
- Decided
- 20 July 1990
- Disposal
- Appeal(s) allowed
- Bench
- S RANGANATHAN
Holding
The Raja retained a subsisting proprietary interest in the forest lands despite the lease, was competent to grant those lands to the plaintiff, the grant covered both cultivated and forest lands, rendering the Section 29 notification inapplicable and the Section 4 notifications valid.
Summary
The appellant, the second son of the former Raja of Bushahr, claimed ownership of about 1,720 acres of forest land based on a 1942 patta and subsequent grants by his father, the Raja. The State argued that the 1942 lease of the forests to the Punjab Government divested the Raja of any right to grant those lands and that the State’s notification under Section 29 of the Indian Forest Act barred the plaintiff’s claim, while the later notifications under the Himachal Pradesh Private Forests Act were invalid. The Supreme Court held that the lease transferred only control and management of the forests, not the Raja’s underlying proprietary interest, which remained and could be lawfully granted to the plaintiff. The grant covered both the measured cultivated area and the unmeasured forest area, making the State’s Section 29 notification inapplicable, whereas the notifications under Section 4 of the Himachal Pradesh Private Forests Act were valid. Consequently, the appeal was allowed, setting aside the High Court’s decision and directing refunds of amounts paid by the plaintiff.
Issues considered
- Whether the series of lease agreements from 1864 to 1942 divested the erstwhile rulers of Bushahr of all rights, title and interest in the forest lands.
- If not, whether the plaintiff’s father was competent to make grants of the forest lands under the patta dated 14 Maghar 1999 Bikrami (28 Nov 1942) and the subsequent grants of 11 Mar 1943 and 10 Dec 1946.
- Whether the grant was limited to the revenue‑yielding 263.4 bighas or extended to the unmeasured forest lands.
- Whether the State Government was competent to issue a notification under Section 29 of the Indian Forest Act, 1927 and its effect on the plaintiff’s claim.
- Whether the State Government was competent to issue notifications under Section 4 of the Himachal Pradesh Private Forests Act, 1954 and the validity of the 28 July 1960 corrigendum.
Legislation cited
- Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953s. 27
- Himachal Pradesh Ceiling on Land Holdings Act, 1972
- Himachal Pradesh Private Forests Act, 1954s. 11, s. 2(b), s. 4
- Indian Evidence Act, 1872s. 92
- Indian Forest Act, 1927s. 29
- Indian Independence Act, 1947s. 7(1)(b)
- Specific Relief Act, 1963s. 34
Subjects
private forestlease agreementforest lawIndian Forest ActHimachal Pradesh Private Forests Actextrinsic evidenceprincely state propertynotificationproprietary rightsland grant
Judgment
RAJ KUMAR RAJINDER SINGH
A
v.
STATE OF HIMACHAL PRADESH AND OTHERS
JULY 20, 1990
[S. RANGANA1'HAN AND A.M. AHMADI, JJ.] B
Himachal Pradesh Private Forest Act, 19S4: Section 2(b), 4 and
11-State Government-Whether entitled to issue notification declaring
private land as forest land.
Indian Forest Act, 1927-Section 29: Applicability to 'private
forests'.
c
Indian Evidence Act: Section 92: Glaim based on document-
4 Whether oral evidence permissible to guide the Court in regardto inten-
tion of parties.
D
The plaintiff /appellant is the second son of late Raja Padam
Singh, the ex-ruler of Bushabr State in Himachal Pradesh. The erst-
while Ruler of Bushabr had sought the aid of the British Government in
the management of his forests with a view to preserving, conserving and
protecting the same from large-scale illicit and indiscriminate cutting of
tr~s. Pursuant to this request, an agreement of lease dated 20th June, E
186<! was executed between the said Raja and the British Government.
TJte terms of this agreement were revised in 1877 and again 1928.
Before the expiry of its extended term, anot,her agreement of lease was
executed between Raja Padam Singh and the Government of Punjab on
25th September, 1942 superseding all previous agreements. By clause
(Ill) of this agreement the Raja granted to the Punjab Government the F
entire and sole control of the forests of Bushahr excepting those
reserved for his use under clause (II) thereof. The Raja was to receive in
lieu thereof an annual payment of Rs. I lakh, and further payment of
the whole net surplus on the working of the forests included in the lease.
Raja Padam Singh executed a document on 28th November, 1942 G
whereby be bestowed upon the plaintiff and his mother land admeasur-
ing about 1720 acres, both measured and unmeasured. The original
document, called the Patta, was admittedly lost during the minority of
the appellant. The patta had, however, been referred to in the subse-
quent two grants executed by the Raja on lltb March 1943 and 10th
December 1946. After the execution of the first grant or patta tbe H
469
470 SUPREME COURT REPORTS [1990) 3 S.C.R.
plaintiff's father had made an Order No. 5158 directing corresponding
A
mutation changes. The mutation entry, besides mentioning the area of
263.4 bighas, also speaks of 'part of uncultivated 'Jago"'. Subsequently,
in September, 1959, the plaintiff's forests were notified as 'private
forests' under section 4 of the Himachal Pradesh Private Forests Act,
1954. But in July, 1960 the State Government annulled the notifications
B on the ground that they were erroneously issued and that the lands in
fact belonged to the Himachal Pradesh Administration.
The plaintiff tiled a suit on 18th November, 1964 for a declaration
of his proprietory rights in about 1720 acres of forest land, both
measured and unmeasured. The learned Single Judge substantially
decreed the suit.
c
The learned single Judge held that (i) the plaintiff's father, who in
internal matters had sovereign powers, had bestowed the lands in dis-
pute as a perpetual and unconditional grant on the plaintiff; (ii) the
mere fact that in the mutation entry the areas was shown to be 263.4
D bighas did not imply that the grant was limited to that much land only;
(iii) in the State of Bnshahr only cultivated land was generally measured
and forest lands remained unmeasured, and, therefore, the area of only
revenue yielding cultivated land was mentioned in the mutation entry;
(iv) the evidence, considered as a whole, fully established that the grant
was not rependiated but was given effect to by the Political Agent,
E Simla, as well as by the revenue authorities of Bushahr State and was
also recognised by the Dominion of India at the time of the State's
merger; (v) even assuming that the lands In dispute formed part of
forests leased to the Government of Punjab, the Raja was not precluded
from making the grant and the grants made in favour of the plaintiff
were perfectly legal and valid; (vi) after the lease was terminated on
F I Ith April, 1949, the Himachal Pradesh Administration treated the
plaintiff as the owner and permitted him various acts as owne_rc and person
in possession; (vii) notifications were issued under Section 4 of the
Himachal Pradesh Act, 1954 declaring the disputed land as private
forests; and (viii) the notification issued under section 29 of the Indian
Forest Act, 1927 had no application to such lands.
G
The Division Bench, allowing the State appeal, inter alia took the
view that after the execution of the lease deed dated 25th September,
1942 in favour of the Government of Punjab, the Raja had no surviving
or subsisting right in the forest lands in question which be could trans-
fer by way of a grant; at the most the grant made by the erstwhile mler
H could take effect in respect of revenue yielding lands only, admeasuring
R.R. SINGH v. STATE OF H.P. 471
about 263.5 bighas, and not in respect of the forest lands; and that the
A
"· notification under section 29 of the Indian Forest Act was validly issued
and so long as it held the field, no notification could be issued under
section 4 of the Himachal Pradesh Private Forests Act, 1954.
Allowing the appeal, this Court,
B
HELD: (1) The plaintiff's father had a surviving and subsisting
.. . right in the forest lands which the subject matter of the lease dated 25th
September, 1942 and was competent to grant the same to the plaintiff or
anyone else, albeit subject to the terms of the lease. [486CJ
- (2) The paramount object of the lease was to conserve the forests
of Bushahr State. By concluding the lease agreement with th~ ,.Punjab c
Government, the Raja did not convey all his rights, title and inftrest in
.:-.. the leased forest lands to the Government. All that he did was to trans-
fer the control and management of the forests to the Punjab Govern-
ment with a view to preserving and conserving the forests. He however
retained his proprietory interest in the forest lands. Had it been the o
intention of the Raja to divest himself of all his interests in the forest
lands, there was no need to provide the duration of the lease on the
expiry whereof (unless the renewal clause was invoked) the Raja would
have a right of re-entry. [48SG-H; 486A]
(3) The lease provided that in addition to the two half-yearly E
instalments of Rs.50,000 each, the Raja was to receive payment of
"whole net surplus" on the working of the forests included in the lease.
This was consistent only with the position that the Raja retained his
proprietory interests in the forest lands. [486A-B]
(4) If the terms of the document are clear and unambiguous, F
.. > extrinsic evidence to ascertain the true intention of the parties is inad-
missible heca1L..e section 92 of the Evidence Act mandates that in such a
case the intention must be gathered from the language employed in the
document. But if the language employed is ambiguous and admits of a
variety of meanings, it is settled law that the 6th proviso to the section
can be invoked which permits tendering of extrinsic evidence as to acts, G
conduct and surrounding circumstances to enable the Court to ascer-
tain the real intention of the parties. [49IB-C]
In such a case the subsequent conduct of the parties furnished
evidence to clear the blurred area and to ascertain the true intention of
the author of the document. I49 ID I lo!
472 SUPREME COURT REPORTS [1990] 3 S.C.R.
Abdulla Ahmed v. Animendra Kissen Mitter, [1950] SCR 30,
A
referred to. ,,,
(5) Since the words 'part of the uncultivated Jagir' were amhigu-
ous, extrinsic evidence aHunde the grant became necessary to explain
the coverage of those words. [492A]
B
(6) There is intrinsic evidence to show that the grant was not ')o._
limited to only the revenue yielding area of 263.4 bighas. If l>y the grant
the Raja intended to grant only the revenue yieldin_g_ area of 263 .4 ~
blghas; there was no need to mention 'and part of uncultivated Jagir'
and these words would be rendered redundant. The subsequent conduct
of the parties lends support to this view. l 488H; 489Al
c
(7) From the various documents placed on record it is quite clear
that the disputed forests did not belong to the Government nor did the
,..;
Government have any proprietory rights therein. The Government was
also not 'entitled' to the wh_ole or any part of the produce in Its own
D right dehors the lease. [493C]
(8) The word 'entitled' in the context of section 29 of the Indian
Fores! Act must take colour from the preceding words and must be
understood to mean that the Government must have an independent
claim or right to collect and deal with the same subject to an obllgation
E to account for the same to the owner. On that account the State was not
'entitled' to the forests eroduce from such private lands. Therefore, the
notification issued under section 29 could have no application to such
private forests. The State Government was, therefore, competent to
issue the two notific11tlons under section 4 of the Himachal Pradesh
-
Private Forest Act, 1954 and it was not justified in ammlling them on
F the erroneous premise that the said lands belonged to the State
Government. [493F; 494F-G]
{
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2966
of 1979.
G From the Judgment and Order dated 31.12.1977 of the High
Court ofHimachai Pradesh in R.F.A. No. 7 of 1970.
F.S. Nariman, V.A. Bobde, S.D. Mudaliar and C.K. Ratna-
parkhi for the Appellant.
H K.G. Bhagat, Naresh K. Sharma for the Respondents.
R.R. SINGH v. STATE OF H.P. {AHMADI, J.J 473
The Judgment of the Court was delivered by
A
AHMADI, J. This appeal by special leave is directed against the
judgment of the Division Bench of the High Court of Himachal
Pradesh in Regular First Appeal No. 7 of 1970 arising out of Suit No.
11 of 1987. The appellant-original plaintiff-is the second son of late
Raja Padam Singh, the ex-ruler of Bushahr State. He filed a suit on B
18th November, 1964 principally against the Union of India and the
Government of the Union Territory of Himachal Pradesh for a decla-
ration of his proprietory rights in about 1720 acres of forest land
situate in Khatas Nos. 1 & 2, Khataunis Nos. 1 to 25 comprising 106
plots, both measured and unmeasured, bearing Khasra Nos. 1, 2, 6,
23,30,34,44, 108,218,222,309,341,409,479,606,433,241, 732/280,
736/394 and 728/402 of Chak Addu, tehsil Rampur, in the present c
district of Mahasu in Himachal Pradesh. He traced his title to the said
lands to a Patta executed by his father on 14th Maghar 1999, Bikrami,
..._ i.e. 28th November 1942A.D., and to the Order No. 5158of even date
directing corresponding mutation changes. In the said suit Choudhary
Go pal Singh & Co., a forest contractor, was added as proforma D
defendant No. 3 but no relief was claimed against the said party. The
said suit was filed on 18th November, 1964 in the Court of the Senior
Sub-Judge, Mahasu, but on the upward revisim1 of the suit valuation
for the purposes of court fees and jurisdiction the plaint was presented
to the High Court of Delhi, Himachal Bench, Shimla, and was
re-numbered as Suit No. 11 of 1967. The said suit was tried on the
original side of the High Court by Jagjit Singh, J. who by his judgment
and order dated 6th April, 1970 substantially decreed the suit, in that,
he upheld the appellant-plaintiff's claim of ownership in respect of
Khatas Nos. 1 & 2, Khataunis Nos. 1 to 25 comprising 106 plots bear-
-
ing khasra Nos. 1, 2, 6, ~3, 30, 34, 44, 108, 218, 222, 309, 341, 409, 606,
4 and 33 situate in Chak'Addu without prejudice to the application, if F
) any, of Section 27 of the Himachal Pradesh Abolition of Big Landed
Estates and Land Reforms Act, 1953. The contesting defendants Nos.
1 and 2 preferred an appeal, being Regular First Appeal No. 7 of 1970,
before the Division Bench of the High Court which came to be allowed
on 31st December, 1977. The Division Bench came to the conclusion
that the grant made by the erstwhile ruler was in respect of revenue G
yielding lands only admeasuring about 263.4 bighas and not in respect
of the forest lands. It, however, took the view that after the execution
of the lease-deed dated 25th September, 1942, Exh.D-1, in favour of
the Government of Punjab, the Raja had no subsisting right in the
forest lands in question which,he could transfer by way of a grant. In
that view of the matter the appeal was allowed and the suit of lhe B
474 SUPREME COURT REPORTS I 1990] 3 S.C.R.
plaintiff was dismissed in toto with costs throughout. Feeling aggrieved
A
by the said judgment and decree, the original plaintiff has preferred
this appeal by special leave under Article 136 of the Constitution. For
the sake of convenience we will refer to the parties by their original
position and description in the suit. We now proceed to set out the
relevant facts.
B
The Raja of Rampur-Bushahr had sought the aid of the Birtish
Government in the management of his forests with a view to preserv-
ing, conserving and protecting the same from large-scale illicit and
indiscriminate cutting of trees. Pursuant to this request an agreement
dated 20th June, 1864 was executed between the said Raja and the
British Government whereunder a fixed royalty was agreed to be paid
c to the former. By a subsequent agreement dated 1st August, 1871, the
Raja granied his rights in waif and windfall timber to the British
Government in consideration of certain payments agreed upon under
the said agreement. The terms of both these agreements were revised
in 1877 whereby the British Government agreed to pay a fixed annual
D sum to the Raja on a fifty years' lease renewable at the will of the
British Government. This arrangement was further revised in 1929
w.e.f. 1st November, 1928 for a period of twenty five years on agreed
terms as to payments, etc. During the subsistence of the said agree-
ment, the parties executed yet another agreement of lease dated 25th
September, 1942, Exh. D-1, for a term of fifty years w.e.f. 1st April,
E 1941 superseding all previous agreements. Under clause (II) thereof,
the term 'forest' was defined to mean and include (a) demarcated
forests; (b) forests reserved for the use of the Raja; and (c) unde-
marcated forests. Demarcated forests were those which were defined
and stated as demarcated forests in the forest settlements of Bushahr
State whereas undemarcated forests included (a) all tracts of land
r bearing tree growth or from which the trees were felled and which paid
no land revenue as cultivated land to the Bushahr State; and (b) such
other tracts of land, cultivated or uncultivated, as with the previous
sanction of the Raja were from time to time included in the existing
(
-
undemarcated forests or were declared to be undemarcated forests. By
clause (III) of the said document, the Raja granted to the Punjab
G Government 'the entire and sole control of the whole of the forests of
Bushahr excepting those reserved for the use of the Raja'. The Raja
was to receive an annual payment of Rs.1 lakh to be paid in two equal
half-yearly instalments of Rs.50,000 on 30th Apn1and31st of October
of each year. In addition to the said amount of .Rs.1 lakh he was to
receive payment of the whole net surplus on the working of the forests
-
H included in the lease. Thus, according to clause (III) of the lease
K.R. SINGH v. STATE OF H.P. [AHMADI, J.] 475
agreement the Raja granted to the Punjab Government the entire and
sole control of the forests of Bushahr, excepting those reserved for his /.
\ use under clause (II) thereof.
Under Section 1 of the Indian Independence Act, 1947, as from
15th August, 1947, two independent Dominions of lndia and Pakistan
came to be set up. By virtue of section 4 the Province of the Punjab B
______c,(
as constituted under the Government of India Act, 1935, ceased to
exist and the same was reconstituted into two new Provinces of West
~
Punjab and East Punjab. In section 7(1) were set out the consequences
of the setting up of the two Dominions, Paragraph (b) whereof said
that 'the suzerainty of His Majesty over the Indian States lapses, and
with it, all treaties and agreements in force at the date of passing of this
- Act between His Majesty and the rulers of Indian States'. The c
.. plaintiff's father Raja Padam Singh having died in April 1947, his elder
son Tikka Vir Bhadra Singh born to his first wife Shanta Devi
succeeded to the Gaddi under the rule of primogeniture but since he
was a minor a council for the administration of Bushahr State was set
up to mind the affairs of the State. On 15th April, 1948 an agreement D
of merger was signed whereby the ·Raja of Bushahr ceded to the Domi-
nion of India 'full and exclusive authority, jurisdiction and powers for
and in relation to the governance of the State'. A centrally adminis-
tered unit of Himachal Pradesh came into being on that day. The
agreement of lease dated 25th September, 1942 was formally ter-
'""~·
minated by mutual agreement between the East Punjab Government E
and the Himachal Pradesh Administration on 1st April, 1949.
While the forests of Bushahr were under the control and man-
""!;...
.., agement of the Government of Punjab, Raja Padam Singh, the
plaintiff's father, executed a document on 14th Maghar 1999. Bikrami
(i.e. 28th November, 1942) whereby he bestowed upon the plaintiff F
and his mother Rani Sahiba Katochi land admeasuring about 1720
) acres. This original document called the Patta was admittedly lost
during the minority of the plaintiff, vide statement of counsel for
defendants Nos. 1 and 2 dated 29th May, 1969. However, the factum
of the grant cannot be disputed as it has been referred to in the subse-
quent two grants executed by the plaintiff's father on 29th Phagun G
1999, Bikrami (i.e. 11th March, 1943-Exh. P-2) and 24th Maghar
2003, Bikrami (i.e. 10th December, 1946-Exh. P-1). These two sub-
.. sequent grants Exh. P-1 and Exh. P-2 have been proved through the
evidence of the scribe· PW 1 Thakur Chet Ram. By the execution of the
third grant dated 24th Maghar 2003, Bikrami, the half share granted to
the Rani Sahiba Katochi nuder the first grant of 14th Maghar 1999, H
476 SUPREME COURT REPORTS [ 1990] 3 S.C.R .
Bikrami, was transferred to the plaintiff with the Rani Sahiba's con-
A sent. Thus, the plaintiff became the sole grantee of the entire ar~a of
1720 acres but as he was a minor his interest was looked after initially
by his father who expired in April 1947 and thereafter by his mother
Rani Sahiba Katochi as his natural guardian. After the execution of
the first grant of patta the plaintiff's father made an Order No. 5158 of
B even date directing his revenue officers to effect consequential changes
in the mutation. Exh. P-6 is a copy of the mutation entry which con- \_.
tains the following endorsement:
"According to Shri Sarkar's order No. 5158 dated 14.7.99
(equivalent to 28th November, 1942), the mutation, grant-
ing permanent ownership, without condition, of khata
c khatauni Nos. 1/1to20 and 2/21to25, plots 106, measuring
263.4 (219. 7 plus 43.17) and part of uncultivated Jagir the
revenue and swai of which has been remitted is sanctioned
in favour of Rani Sahiba Katochi and Rajkumar Rajinder
Singh Sahib in equal shares in its present form."
D
The mutation entry Exh. P-6 does not mention the khasra numbers of
the !06 plots. Khata khatauni No. 1/1 to 20 comprise 82 plots showing
an area admeasuring 219.7 bighas as cultivated and 200.8 bighas as
uncultivated whereas khata khatauni No. 2/21 to 25 comprise 24 plots
showing an area admeasuring 5.6 bighas as cultivated and 38.11 bighas
E as uncultivated. The mutation entry, besides mentioning the area of
263.4 bighas, also speaks of 'part of uncultivated Jagir the revenue ancf
swai of which has been remitted'. Even according to the Division
~Bench of the High Court it is not in dispute that the measurement of
106 plots is much more than 263.4 bighas. This stands corroborated by
the note of Mr. Raina, the then Conservator of Forests, Shimla Circle
F dated 24th July, 1960 which discloses that the disputed pli>ts over
which the plaintiff has made a claim admeasure about 1819 acres. By
the second grant of 29th Phagun 1999, Bikrami, the plaintiff's father
granted certain additional land, namely, Basa Sharotkhala Pargana
Bhatoligarh, jointly to the plaintiff and his mother Rani Sahiba
Katochi. This grant refers to the first grant of 14th Maghar 1999,
G Bikrami. The third grant of 24th Maghar 2003, Bikrami, was executed
by the plaintiff's father with a view to making the plaintiff the sole
beneficiary under the first two grants by deleting the name of Rani
Sahiba Katochi as a joint grantee with her consent. There is no dispute
that under the aforesaid three grants taken together the properties
mentioned therein were bestowed upon the plaintiff exclusively and
H the Rani Sahiba Katochi had no share therein, nor did she, at any
R.R. SINGH v. STAIB OF H.P. [AHMADI, J.) 477
time, make a claiin thereto. After the execution of the third grant an
'\ order No. 258 dated 3rd December, 1946, Exh. P-14, was made by the A
plaintiff's father directing that all the lands and 'bases' granted under
the Patta of 24th Maghar 2003, Bikrami, exclusively to the plaintiff
shm)id ne shown in his sole name in the records by deleting the name
of Rani Sahiba Katochi therefrom. On the death of the plaintiff's
father in April 1947, the Political Agent, Punjab Hill States, Shimla, B
wrote a letter Exh. P-50 dated 9th August, 1947 expressing dissatisfac-
tion with the non-implementation of the Patta and directed speedy
-< implementation thereof. In paragraph 3 of the said letter it was stated
as under:
"There is only one point for decision and that is the validity
of the patta dated 19th December, 1946 granted by the late c
Raja Padam Singh. The Committee have not questioned
this and I, therefore, take it to be the true will of the late
ruler. The provision of the Patta are quite clear and reason-
able, so I order the division of the private property, both
movable and immovable, in accordance with its terms, that D
is to say the possession of the immovable property of the
late Ruler specified in the Patta shall at once be mutuated
in favour of Rajkumar Rajinder Singh and given in trust to
Rani Sahiba katochi on behalf of her minor son ..... ".
r---·
The grant was ultimately given effect to be the mutation entry No. E
2299 dated 17/18-12-2003, Bikrami, Exh. P-13. Unfortunately, the
plaintiff's mother who acted as his guardian after the death of her
husband in April 1947 also passed away shortly thereafter on 22nd
I July, 1949 necessitating the Court of Wards to step-in since the
plaintiff was still a minor. While the plaintiff's estate was under_ the
Superintendence of the Court of Wards a list of his Jagirs was pre-
- ) pared. This list Exh. P-18, which is in respect of tehsil Rampur,
F
describes the disputed khasra Nos. 341, 108, 222, 34, 479, 606 and 4 as
unmeasured and forest lands. On the plaintiff attaining majority his
estate was released w .e.f. 1st April, 1956 from the Superintendence of
the Court of Wards under the Financial Commissioner's notification
dated 24th March, 1956. Owing to the existence of certain pillars of the G
forest department within the areas belonging to the plaintiff, the
plaintiff made a representation Exh. P-25 for the removal of the said
pillars from his lands. As a result of this representation, joint demarca-
tion reports dated 24th June 1958, Exh. P-5, and 9th December, 1958,
Exh. P-8, were made which disclosed that the dispute related to the
boundary in compartment 8-b only but no final decision could be taken H
4'.78 SUPREME COURT REPORTS (1990) 3 S:C:R.
as some difference of opinion persisted between the officers of the ·
A forest department in this behalf. The plaintiff thereafter made a ~
further representation dated 11th August, 1959, Exh. D-2, claiming
compensation for the trees cut by the forest department during his
minority when the estate was under the Superintendence of the Court
of Wards. As a sequel to this representation Mr. Raina, the
B Conservator of Forests, wrote a letter dated 27th May, 1960 marked
secret, Exh. D-3/4, wherin l)e stated that the first class forest compart-
ments !UA (Part, lOB (Part), 9A, 9B, 9C and 8C were the property of
the forest department and the question of demarcation of these forests ,_.
did not arise. He further pointed out that if the possession of these
compartments is transferred to the plaintiff the department will have
to undergo a loss of Rs.18. 75 lakhs. Lastly, he warned that if the
c plaintiff's claim is accepted numerous such claims will be made by the
villagers because of similar entries in the revenue records. He thought
that this was a test case. He followed this up by his note dated 24th •
July, 1960, Exh. D-3/6, wherein he reiterated that except for 263.4
bighas of revenue yielding land the claim of the plaintiff in respect of
D the remaining 1719 acres was fantastic. He strongly urged that the
plaintiff's claim should be rejected outright and he and his contractor,
defendant No. 3, should not be allowed to lift the timber of the trees
which he was permitted to cut from khasra Nos. 341, 606, 222 and 34
under the letter No. Ft/43-124NI dated 29th February, 1959. There-
after the Divisional Forest Officer by his letter No. C-11-37/810 dated
E 25th May, 1960 informed the plaintiff and defendant No. 3 that the
timber felled in compartment 9C should not be removed and no
further felling of trees should take place in compartments 8C, 9A, 9B
and lOA (Part) and lOB (Part) in khasra No. 341. By a subsequent
letter No. CII-37/1181 dated 2nd August, 1960 the plaintiff was
informed that the trees felled in compartments 9B and 9C were
F Government property and could be removed on payment of
Rs.3,05,811.70. An amount of Rs.3,36,000 was later deposited pend- { ...
ing finalisation of the dispute.
Certain statutory developments which took place in the medll-
time-maynow be noticed. On 25th February, 1952 the Government of
G Himachal Pradesh issued a Notification under Section 29 of the Indian
Forest Act, 1927 declaring that the provisions of Chapter IV of the
said enactment shall apply to all forest lands and waste lands in Himac-
hal Pradesh which are the property of the Government or over which >r
the Government has proprietary rights or to the whole or any part of
the produce of which the Government is entitled. This enactment deals
H with (i) Reserved Forests, (ii) Village Forests and (iii) Protected
R.R. SINGH v. STAIB OF H.P. [AHMADI,-J.] 479
Forests. Chapter II comprising Sections 3 to 27 deals with Reserved
A
'- Forests, Chapter III which consists of a single section 28 refers to
Village Forests and Chapter IV comprising Sections 29 to 34 conncerns
Protected Forests. Section 29(1) empowers the State Governmenc to
apply the provisions of Chapter IV to 'any forest land or waste land
which is not included in the Reserved Forests but which is the property
of the Government, or over which the Government has proprietory B
rights, or to the whole or any part of the forest produce of which 'the
._. Government is entitled. According to sub-section (2) such forest land
and/or waste land comprised in any such notification shall be called a
'protected forest'. Section 32 empowers the State Government to
make rules to regulate the ·matters catalogued in clauses (a} to (1)
thereof in respect of protected forests, which, inter alia, include the
cutting, sawing, conversion and removal of trees and timber and col- c
lection, manufaciure and removal of forest produce from protected
4. forests; the granting of licences to personsfelling or removing trees or
timber or other forest pro~W:e-from such forest for the purposes of
trade; the payments, if any, to be made by Stich licencees in respect of
such tree, timber or forest produce, etc. Section 33 prescribes the D
penalty for the contravention of the rules. After the issuance of the
Notification Exh. DW-1/1 under Section 29, the State Government
framed the rules under Section 32, Exh. DW-1/2, of even date. Under
these rules 'First Class Protected Forests' mean and include those
;------>· forests which are defined and stated as demarcated forests in the
Forests Settlement of Bushahr State viz., Forest Settlement Report of E
Sutlej Valley and Forest Settlement Report of Rupi, Pabar and Girl
Valleys prepared in 1921 and 1911, respectively. 'Second Class Pro-
tected Forests' mean the undemarcated forests or areas other than the
demarcated forests and include all tracts of land bearing tree growth or
from which the trees have been felled which pay no land revenue as
cultivated land. F
The Himachal Pradesh Private Forests Act, 1954, (Act No. VI of
1955) came into force from 28th June, 1956. Section 2 thereof in terms
states that the Act shall not apply to any land which is a reserved or
protected forest under the Indian Forest Act, 1927. Section 4 empow-
ers the State Government to prohibit by notification the cutting, fel- G
ling, gridling, lopping, burning, stripping off the bark or leaves or
otherwise damaging any tree or counterfeiting or defacing marks on
trees or timber in such private forests as may be specified. Under
Section 5, after the section 4 notification is issued, the Forest Officer is
required within a period of one year from the date of publication of
such notification, to demarcate the limit of such forest in accordance H
480 SUPREME COURT REPORTS [1990] 3 S.C.R.
with the revenue records ancl erect such number of boundary pillars uC
such points of the line of demarcation as may be necessary at Govern- /
ment expense. Once the notification-is issued under Section 4, Section
6 restrains the landlord and all other persons from cutting, collecting,
or removing trees, timber or other produce in or from the notified
forests in contravention of the provisions made in or under the Act.
B Section 11, however, au\horises a Forest Officer on the application of ')
the landlord or owner to grant a licence for the felling-of tret-s for such
purposes and with such contitions as he may deem proper. Snb-section .,_
(3) of that section permits the owner to exercise the option of selling
the trees either through the Forest Department or direct to any con-
tractor. In the latter event the owner must pay 15% fees on the price of
the trees calculated in accordance with the prescribed principle>. Sec-
c tion 16 makes a contract entered into by the owner with any person
conferring on such person the right to cut, collect or remove trees,
timber or fuel from the private forests void unless the owner has first .>
obtained a licence in this behalf under Sectionll. By notification dated
10th June, 1959, Exh. P-21 published in the Himachal Pradesh
D Government Gazette dated 25th June, 1959, the plaintiff's forests in
Khasra Numbers 1, 2, 3, 218, 606, 149, 263 and 166 situate in Village
Addu were declared 'private forests' under Section 4 of the said
statute. By a similar notification dated 17th September, 1959, Exh.
P-22, published in the Himachal Pradesh Government Gazette dated
26th September, 1959, Khasra Numbers 34, 309, 108, 479, 307, 207 __
E and 317 situate in Village Addu were also notified as private forests of
the plaintiff under the same provision. The expression 'Private
Forests' as defined by Section 3( 13) of the Act means a forest which is
not the property of the Government or over which the State has no
proprietary rights or to the whole or any part of the forest-produce of
which the State is not entitled. Subsequently, by Corrigendum Exh.
'F P-29 dated 28th July, 1960, the State Government deleted Khasra
Numbers 1, 2, 3, 218, 6, 44, 606, 149, 263 and '166 of Village Addu
from the notification of 10th June, 1959 and Khasra Numbers 34, 309,
108, 479, 307, 207 and 370 of Village Addu from the notification dated
17th September, 1959 on the ground that they were erroneously
notified as they in fact belonged to tlie Himachal Pradesh
G Administration.
After the said enactment came into force w.e.f. 28th June, 1956
and before the notifications under Section 4 thereof were issued, the
plaintiff had by his application dated 21st May, 1957 applied for
permission, presumably under Section 11 of the Act, to fell trees from
H Khasra Numbers 1, 222 & 606 of Village Addu. The said permission
R.R. SINGH v. STATE OF H.P. [AHMADI, J.] 481
was granted by Exh. P-20 and the plaintiff also paid the fee as
A
\ demanded by Exh. P-23 dated 23rd August, 1957. By another applica-
tion dated 16th February, 1959 the plaintiff sought permission to sell
trees from khasra Numbers 34, 222, 341, 606ofKhewat No. 1, Khatauni
No. 2 which was granted by the Chief Conservator of Forests by his
letter Exh. P-28 dat.ed 19th 'February, 1959. By the said letter the
plaintiff was informed that the Divisional Forest Officer had been B
instructed to mark the trees in the said areas silviculturally and
to allow him to sell and remove the same through his contractor (de-
~ fendant No. 3). However, the attitude of the Government underwent a
change after Mr. Raina's secret letter of 27th May, 1960 and his note
dated 24th July, 1960. The State Government issued a corrigendum
dated 28th July, 1960 amending the earlier notifications issued under
Section 4; restrained the plaintiff and his agent defendant No. 3, from c
cutting and lifting the trees from the forest area and compelled deposit
of Rs.3,36,000 for removing the trees and was also required to execute
a bond. The plaintiff, therefore, filed the suit which has given rise to
this appeal to assert his rights.
0
The learned Trial Judge on a close scrutiny of the oral and
documentary evidence placed on record came to the conclusion that (i)
the plaintiff's father, who in internal matters had sovereign powers,
had bestowed the lands in dispute as a perpetual and unconditional
grant on the plaintiff and the mere fact that in the mutation entry the
area was shown to be 263.4 bighas did not iinply that the grant was E
limited to that much land only. He held that (ii) in the Stae ofBushahr
only cultivated land was generally measured and forest lands remained
unmeasured and, therefore, the area of only revenue yielding culti-
vated land was mentioned in the mutation entry but that did not mean
that the grant was confined to that area only. He also held that the
subsequent grant of 25.10.2003 Bikrami was executed by the plaintiff's F
father with the concurrence of Rani Saheba Katochi, with a view to
conferring exclusive ·proprietory rights in the entire grant on the
plaintiff. Further according to the learned Trial Judge, the evidence,
considered as a whole, fully established that (iii) the grant was not
repudiated but was given effect to by the Political Agent, Shimla, as
well as by the revenue authorities of Bushahr State and was recognised G
by the Dominion of.India at the time of the State's merger. He found
that in the statement of the Zamindars of Village Addu, Exh. P-26, it
was specifically admitted that the forest comprised Khasra Nos. 34,
141, 222 and 606 Khewat No. 1, Khatauni No. 2 and was 'owned' and
was 'in possession' of the plaintiff. (iv) Assuming that the lands in
dispute formed part of forests leased to the Government of Punjab, H
482 SUPREME COURT REPORTS 11990) 3 S.C.R.
the learned Judge held that the Raja was not precluded from makmg
A
the grant and the grants made in favour of the plaintiff were perfectly
legal and valid. After the lease was terminated by mutual consent of
I
the Governments of Himachal Pradesh and East Punjab, the Himachal
Pradesh Administration treated the plaintiff as the owner and per-
mitted him various acts as owner and Jferson in possession. Notifica-
B tions were issued under Section 4 of the Himachal Pradesh Private
Forest Act, 1954 declaring the disputed lands as privte forests. He held ~-
that the notification issued under Section 29 of the Indian Forest Act
had no application. According to him, except for an area of 11 biswas
occupied by roads of the Forest Department, the plaintiff was in
possession of the remaining forest lands. The learned Trial Judge,
therefore, held that the suit was neither barred by limitation nor on
c account of Section 34 of Specific Relief Act, 1963. The other technical
objections to the maintainability of the suit were spumed and the
learned Trial Judge decreed the suit as stated earlier.
On appeal the Division Bench of the High Court came to the
D conclusion that when the plaintiff's father executed the first grant in
favour of the plaintiff he was aware that he had renewed the lease in
respect of the forest lands for a period of fifty years and, therefore, he
could not have intended to make an absolute grant in respect of the
forest lands covered under the lease to the plaintiff. According to the
Division Bench after the execution of the agreement of lease dated
E 25th September, 1942, (v) the plaintiffs father had no surviving or
subsisting right in the lands covered under the lease and, therefore, the
grant in respect of the forest lands was of no cnsequence and did not
confer any right, title or interest in the plaintiff. At the most the grant
could take effect in respect of revenue yeilding cultivated land ad-
measuring 263.4 bighas. In supprot of this finding the Division Bench
F points out (1) that the grant Exh. P-1 dated 10th December, 1946
refers to the lands by Basa and not Khasra which reveals that reference
is only to revenue yielding area in the occupation of tenants; (2) that
cluase 2 of Exh. P-2 shows that the intention of the grantor was to
secure an annual income of Rs.9,000 for his son which could only be
from the revenue yielding lands as the forest lands were already placed
G at the disposal of the Government of Punjab and (3) that the recital in
Exh. P-2 regarding handing over of tl:e Basajat could be in respect of
revenue yeilding area only as the forests were already in the possession
of the Punjab Government. The bivision Bench also held that the
notification under Section 29 of the Indian Forests Act was validly
issued and so long as it held the field, no notification could be issued
H under Section 4 of the Himachal Pradesh Private Forest Act, 1954 and
R.R. SINGH v. STATE OF H.P. [AHMADI, J.} 483
. the same were, therefore, rightly correCted by deleting the Khasra A
Numbers claimed by the plaintiff from the notified forest area. It,
therefore, held that the said two notifications issued under Section 4
had no efficacy in law and the permissions granted under Section 11 of
the said law can be of no avail to the plaintiff. As regards the plaintiff's
contention based on the surrender of the lease in 1949, the Division
B
Bench concluded that the exchange of letters Exh. DW-1/3A dated
25th April, 1949 by Himachal Pradesh Government and Exh. DW-1/
3B dated 5/9th May, 1949 by the East Punjab Government revealed
that an arrangement was worked out whereunder the East Pun jab
Government transferred the management and administration of the
. disputed forests to the Himachal Pradsh Government on certain terms
-
.
and conditions and there was no completed surrender of the lease.
Adopting this approach, the Division Bench reversed the findings
c
recorded by the learned Trial Judge and dismissed the plaintiff's suit in
4
toto with costs throughout. It is against the said Judgment and decree
that the plaintiff has moved this Court.
D
From the above resume of facts and findings recorded by the
Courts below, the questions which arise for our determination and on
which counsel for the rival sides addressed us may be formulated as
under:
1. Whether, by the execution of the Agreements of Lease
E
from time to time beginning with the Agreement of 20th
June, 1864 and ending with the Agreement of 25th
September, 1942, the erstwhile Rulers of Bushahr State,
including the plaintiff's father, had been divested of all
their rights, title and interests in the forest lands leased
thereunder?
F
2. If no, whether the plaintiffs father was competent to
make grants in respect of such forest lards under the Pattas
of (i) 14 Maghar 1999 Bikrami (i.e. 28th November, 1942);
(ii) 29th Phagun 1999 Bikrami (i.e. 11th March, 1943); and
(iii) 24th Maghar 2003 Bikrami (i.e. 10th December,
1946)? G
3. If yes, was the grant confined to the revenue yielding
lands admeasuring about 263.4 bighas only or extended to
the other unmeasured forest lands also as claimed by the
p1airitiff? H
484 SUPREME COURT REPORTS (1990] 3 S.C.R.
4. Was the State Government competent to issue the
A Notification under Section 29 of the Indian Forest Act, (
1927? If yes, what is its effect on the plaintiff's claim in
the suit? and
5. Was the State Government competent to issue Notifica-
B tions under Section 4 of the Himachal Pradesh Private
Forest Act, 1954? If yes, was the State Government justi-
fied in issuing the subsequent Corrigendum of 28th July,
1960? What is the effect of these statutory developments on
the plaintiff's claim?
Jn order to appreciate the circumstances in which the erstwhile
c Ruller of Bushahr State entered into an agreement with the British
Government in 1864, it woulJ be advantageous to notice a few facts
mentioned in H.M. Glover's Forest Settlement Report of 11th
February, 1921. In Vol. 1, Chapter II of this Report which concerns
Bushahr State, the history of Bushahr forests prior to 1850 is set out.
D It reveals that at that time large matured trees were pleantiful. How-
ever, there was large scale destruction of these trees due to frequent
fires, shifting of cultivation and felling of trees by traders. The Report
mentions:
"Every forest cleared by traders was subject to frequent
E fires either caused by carelessness or by villagers who fired
the debris and what was left of the standing crops in order
to clear the ground for cultivation; there can be no question
that if the Government had not assumed control, the forest
would have practically disappeared from all the more ac-
cessible slopes."
It further reveals that the Raja found it difficult to deal with the
traders who indulged in destroying the forests by indiscriminate felling
of trees and was anxious to protect them. With this in view he eventu-
ally concluded an agreement of lease in 1864 with the British Govern-
ment whereunder the latter agreed to protect and conserve the forests
G and pay a fixed royalty for each tree felled. In 1877 the lease was
revised, the British Government agreeing to pay a fixed annual lump-
sum. The lease was renewed in 1928 on revised terms as to payment for
a further period of 25 years but before the expiry of that period an-
other agreement of lease Exh. D-1 was concluded between the Raja
and the Government of Punjab on 25th September, 1942. Clause III of
the document recites as under:
R.R. SINGH v. STATE OF H.P. (AHMADI, J.] 485
"III. In consideration of the following payments, the Raja
\ A
hereby grants to the Punjab Government the entire and
sole control of the whole of the forests of Bushahr except-
ing those reserved for the use of the Raja as defined in
Clause II and subject to the definiti.ons and rules prescribed
in the Schedule and Appendices attached to this
agreement " B
It becomes clear from tlie aforesaid clause in the lease deed that the
Raja granted 'the entire and sole control' of the whole forest of
Bushahr to the Punjab Government excepting the rights specifically
reserved unto him. This entire and sole control was granted to .enable
the Pun jab Government 'to make more definite provisions for the
conservancy of the forests'. Clause IX of the agreeme_nt makes this c
clear when it says that the whole cost of conserving the forests included
in the lease together will all costs of felling and transporting timber for
use of the Punjab Government and of maintaining the necessary
establishment in such forests shall be borne by the Punjab Govern-
ment unless otherwise provided for in the lease. From this clause also D
it can be seen that the emphasis was on the need to conserve the
forests. The Rules framed in the Schedule to the lease reinforce this
view. Under paragraph 1 of the Schedule (a) breaking up land for
cultivation; (b) setting fire to grass tracts in the vicinity of forest or
negligently permitting the fire to extend to forests; (c) setting fire to
grass, trees, bushwood or stumps; (d) cutting out slabs, torches, etc., E
from the steam of standing trees, barking and tapping for resin, or
otherwise injuring trees; (e) felling or lopping trees; (f) selling timber;
f and (g) removing dead leaves and surface soil, is prohibited unless
expressly permitted by the Divisional Forest Officer. Even the Raja.is
not permitted to fell trees and/or remove converted timber from the
leased area excepting the specified quantity required for State pur- F
poses, vide pargraph 5 of the Schedule. It, therefore, seems clear to
us that the paramount object of the lease was to conserve the forests
of Bushahr State. But, by concluding the lease agreement with the
Punjab Government, the erstwhile Ruler did not convey all his rights,
title and interests in the leased forest lands to that Government. All
that he did was to transfer the control and management of the forests G
to the Punjab Government with a view to preserving and conserving
the forests. He retained his proprietory interest in the forest lands,
subject of course to the limitations concerning the.management.ofthe
leased area and the right to the usufruct therefrom. Had it been the
of
intention of the Raja to divest himself all his interests.in the forests
lands there was no need to provide the duration of the lease on the
486 SUPREME COURT REPORTS [ 1990] 3 -S.C.R.
expiry whereof (unless the renewal clause was invoked) the Raja !
A
would have a right of re-entry. The lease also provided that in addi-
tion to the two half-yearly instalments of Rs.50,000 each, the Raja was
to receive payment of the "Whole net surplus on the working of the
forests included in the lease". This is also consistent only with the
position that the Raja retained his proprietory interests in the forest
R lands. We, therefore, find it difficult to agree with the Division Bench ~~
that by concluding the agreements of lease from time to time the
former Rulers of Bushahr State including the plaintiffs father had ""
divested themselves of all their rights in the leased forests. We are of
the opinion that the plaintiff's father had a surviving and subsisting
right in the forest lands which were the subject-matter of the lease
dated 25th September, 1942 and was competent to grant the same to
c the plaintiff or anyone-else, albeit subject to the terms of the lease.
The first patta was executed by the plaintiff's father on 14th
Maghar 1999 Bikrami whereby he bestowed certain lands jointly on
the plaintiff and ·his mother. The original patta is admittedly not
D traced. The plaintiffs father had by his order No. 5158 of even date
directed corresponding mutation entries to be made in the relevant
records. The endorsement found in the copy of the mutation entry
Exh. P-6 extracted earlier bears testimony to tl1is fact. This entry
shows that the Raja had granted permanent ownership, without condi-
tion, of Khata Khatauni Nos. 1/1to20 and 2/21 to 25, comprising 106
E plots, admeasuring 263.4 bighas and 'part of uncultivated Jagir' the
revenue and swai of which was remitted. Therefore, the doubt regard-
ing the making of the grant of 14th Maghar 1999 Bikrami stands re-
pelled. The existence of this grant is further fortified by the mention '
thereof in the subsequent two grants dated 29th Phagun 1999 Bikrami
and 24th Maghar 2003 Bikrami. There can, therefore, be no doubt
F regarding the execution of the patta of 14th Maghar 1999 Bikrami.
The next question is regarding the identity of land granted to the
plaintiff under the said grants. The entry Exh. P-6 mentions the
Khata Khatauni numbers and the total number of the plots but does
not mention the khasra numbers. Secondly, its area is stated to be
G 263 .4 bighas and 'part of uncultivated Jagir'. The fact that these
lands are situated in Chak Addu is not disputed Says Glover's Report:
"For administrative purposes the village and its outlying hamlets have >r
been formed into a 'Chak', which forms the unit of the land revenue
assessment."
H Since the patta in respect of the first grant is admittedly not
R.R. SINGH v. STATE OF H.P. [AHMADI, J.] 487
'- available, we have to look to evidence aliunde tbe grant of identify A
the ·property settled on tbe plaintiff. We have already referred to the
Raja's order No. 5158 on the basis whereof tbe entry Exh. P-6 was
made. The plaintiff's witness PW"7 Thakur Sen Negi has deposed that
in Khewat 2, Khatauni 21, Khasra Nos. 6, 34, 101, 222, 341, 479 and 4
are unmeasured. Exhs. P-15, P-18, P-33, P-38 and D-4, which are
~· entries from the Jamabandi also show that Khasra Nos. 6, 34, 108, 222, B
341, 479, 606 and 4 of khatauni No. 21 are unmeasured 'Banjar
~ Kadeem'. This expression according to Glover's report means "land,
recorded as the property of the Zamindar, that has lain waste since the
1889 settlement and pays on land revenue until recultivated. When
included in 'Chaks' in demarcated forests it has almost invariably been
acquired or exchanged." The Division Bench has, after an elaborate
examination of the oral as well as tbe documentary evidence, particu-
c
'°"'· larly Exhs. P-15, P-17, P-18, P-33, P-34, P-36 and P-38, and tbe notifi-
cation Exh. P-22 declaring certain areas as private forests, come to tbe
conclusion that land described as Ball jar Kadeem could include forest
lands, thereby repelling the submission made by the plaintiff's counsel
to the contrary. We cannot, therefore, countenance the submission D
made by the learned counsel for the ·contesting defendants that the
expression Ban jar Kadeem does not include forests. If it were so, the
whole controversy based on tbe submission that the Raja was divested
of his rights in respect of tbe forest lands covered by the agreement of
- lease and was not competent to make a grant thereof would have
ended in favour of tbe plaintiff. We, however, do not consider it neces- E
sary to examine the correctness or otberwise of this finding of the
Division Bench, since we propose to proceed on the assumption !bat
f the disputed lands form part of the leased area.
But the question still survives whetber in addition to tbe culti-
. ). vated lands measuring about 263.4 Bighas tbe plaintiff's fatber had F
made a grant in favour of the plaintiff in respect of tbe disputed forest
lands. We may now examine if tbe subsequent two grants !brow any
light on this point. The second grant Exh. P-2 v.:as executed on 29th
Phagun 1999 Bikiami. In this document tbe Jagir granted to the plain-
tiff under the first Patta has been described as comprising several
'Basas'. By the second grant one more Basa Sharotkhola pargana G
Bhatoligarh was granted in perpetuity. The land revenue and other
cesses in respect of these basas were remitted for ever. The annual
income of tbe Jagir thus granted was Rs.9,000 and in addition tbereto
the State agreed to pay Rs.9,000 in cash as Jagir-money, besides agree·
ing to bear the expense of the plaintiff's education and marriage. The
third document Exh. P-1 was executedon 24th Maghar 2003 Bikrami H
488 SUPREME COURT REPORTS [1990] 3 S.C.R.
This 11ocument also describes the grant made under the first Patta by /
A different Basas. It further recites that 'the possession of Basa granted
to you has already been given and entries have already been made in
your favour and you will realise the income from this Jagir .... .'.The
argument that as the actual possession of the forests was with the
Punjab Government the same could not have been transferred to the
E plaintiff overlooks the fact in such cases symbolic and dejure posses- .__
sion is transferred to make the grant complete. Therefore, the above
recital in the document is consistent with the grant. It is, therefore, "'
clear that certain Basas situate in Basajats were given to the plaintiff
as his Jagir. The dispute in the present case mainly concerns a few
Khasra numbers of Basa Kotadhar Ghori Samat Pargana Baghi
Mastgarh comprising 106 plots.
c
What then is a Basa? In paragraph 41 of the Assessment Report
of Rohru Tehsil of Bushahr State, Exh. D-7, prepared by Mr. ""
Emerson, Manager of Bushahr State, it is stated as under:
D "The State lands in which the Raja enjoys both superior
and inferior rights of ownership are of several descriptions:
Firstly, there are the Crown estates or Basas, comprising of
some of the most fertile area which former Rulers reserved
for their own enjoyment or for the support of their relatives ~
E and dependents. These were formerly cultivated by bethus,
under the supervision of a number of officials who were
supposed either to remit the produce to the Headquarters
or to arrange for its loan on extravagant rates of interests to •
zamindars At present they are leased to contractors for
fixed periods on cash or grain rents, the former
F predominating." -{
According to PWll S.R. Jhingta, the power of attorney of the plain-
tiff, basa land included cultivated forests and grazing lands. PW3 Roop
Singh Negi described basa lands as Banjar lands, arable lands, culti-
vated lands and forest lands. PWlO Sagar Singh produced pattas to
G show that two basas containing forests were granted by the Raja to
his father. The Division Bench refused to place reliance on the oral
testimony of the aforesaid witnesses in view of the aforequoted y
authoritative definition. But this definition is not exhaustive and does
not specifically rule out the inclusion of forest lands. If by the grant the
Raja intended to grant only the revenue yielding area of 263.4 bighas
H there was no need to mention 'and part of the uncultivated Jagir' in
R.R. SINGH v. STATE OF H.P. {AHMADI, J.{ 489
Exh. P·o. It is an admitted fact that the total area of the basa compris·
\ A
ing .106 plots is much more than 263.4 bighas. That means that it
includes besides the cultivated area of 263.4 bighas certain un,
measured area also. The revenue of the cultivated area of 263.4 bighas
is a paltry Rs.58--8-3. It is not shown that the total revenue of
cultivated lands in all the basas constituting the grant works out to
Rs.9,000 per year. Besides, if the grant is confined to 263'.4 bighas B
only, the words 'and part of the cultivated Jagir' are rendered
redundant. Next·the con'i:emed Khasra numbers have been described
as Banzar Kadeem which includes forests as held by the Division
Bench. All the entries namely Exh. P-15, P-33, P-36 and P-38 describe
the concerned Khasra nembers as unm~asured. If the 106 plots in Exh.
P-6 admeasure more than 263.4 bighas, it follows that they also include
unmeasured lands referred to as 'part of the uncultivated Jagir'. Refer·
c
ence to uncultivated Jagir implies existence of land other than culti·
....... vated revenue yielding land which may include forests. According to
Punjab Settlement Manual (Fourth Edition) uncultivated land is
classified as Banzar Jagir, Banzar Kadeem and Gair Mumkeen.-The
Division Bench points out that the definition in the Manual is not to be, D
rigidly construed and would include forest lands which may not be
cultivated but may have the potential for cultivation, if forests are
removed. In other words lands covered by forests may be highly fertile
and may be reserved by the Ruler for his own use or for the use of his
--- relatives and dependents. This supports the statement of PWll S.R.
Jhingta that in Tehsil Rampur forests and grass lands were entered as
Banzar Kadeem. This discussion leads us to the conclusion that a Chak
E
comprises Hasas, a Basa comprises both cultivated and uncultivated
.., lands, uncultivated land includes Banzar Kadeem which in turn in·
eludes unmeasured forests. The recent revenue Settlement of 1979-80
shows that the disputed Khasra Numbers 34, 222, 341 and 606 com·
i'· prise of 422 plots admeasuring 789-84-85 Hectares out of which 711·27·
50 Hectares form part of the forests. It is pertinent to note that the
same is shown in the ownership of the plaintiff.
F
The relevant revenue records of the Bushahr State right from
1915-16 show the disputed Khasra Numbers as unmeasured. The list of
the plaintiffs Jagir prepared by the revenue authorities after the death G
of .his mother also describes the said Khasra numbers as unmeasured
forests. It is also necessary to remember that the plaintiff was denied
""' the ownership of Kha.sra Numbers 241, 732/280, 736/394 and 728/402
admeasuring about 11 biswas as they formed part of the forest road.
These four plots though measured did not yield revenue. If the Raja
desired to grant only revenue yielding lands to the plaintiff he would H
490 SUPREME COURT REPORTS l1990) 3 S.C.R.
not have included these four numbers in the grant. There is, therefore,
A
intrinsic evidence to show that the grant was not limited to only the
revenue yielding area of 263.4 bighas. The subsequent conduct of the
parties, as we shall presently show, also lends support to this view.
On the plaintiff attaining majority his estate was released from
B the Superintendence of the Court of Wards w .e.f. 1st April, 1956. The
list in respect of his movable and immovable properties was prepared
before the properties were handed-over to tile plaintiff. This list dated
31st January, 1956 shows the total landed estate comprised of 1864
acres. In 1958-59 the plaintiff had planted 3000 Deodhar and Kail trees
which was highly appreciated by the Deputy Commissioner, Vide Exh.
P-11. Some land was acquired by the State Government for its P.W.D.
c and the plaintiff was paid Rs.11,000 as compensation. The plaintiff
had also made applications for permission to fell trees from the dis-
puted khasras which were granted, vide Exhs. P-20, P-23 and P-28.
Indisputably trees had been felled pursuant to the permission so
granted. Next Exhs. P-41 and P-42 show that the plaintiff sold some
D part of khasra No. 341 on 16th April, 1960 and 25th June, 1960 to third
parties and corresponding changes in mutation were made. He had
also donated some land from the same khasra for a school. These are
acts of ownership which have not been repudiated. The disputed
Khasra numbers were also the subject matter of two notifications
issued under section 4 of the Himachal Pradesh Private Forest Act,
E 1954, whereby they were notified as 'private forests'. All this conduct
on the part of the defendants 1 and 2 goes to show that they treated the
disputed Khasra Numbers as the Jagir of the plaintiff. It was only in
1960 after Mr. Raina's secret letter and his subsequent note that the
defendants disputed the plaintiff's ownership in the said Khasra
numbers and issued the corrigendum Exh. P-29 withdrawing the afore-
F said two notifications as it was realised that it would result in a substan-
tial loss of Rs.18.75 lakhs. Till the doubt was raised by Mr. Raina, the
State Government throughout treated the disputed Khasra numbers as
forming part of the plaintiff's Jagir. this conduct evidence lends sup-
port to the view that the disputed Khasra numbers were bestowed on
the plaintiff under the first J agir of 14th Maghar 1999 Bikrami.
G
Counsel for the defendants, however, contended that it was not
open to the Court in view of the prohibition contained in Section 92 of
the Evidence Act to take into account the subsequent facts and circum-
stances to determine the extent of the grant under the Patta of 14th
Maghar 1999 Bikrami. He submitted that where a claim is based on a
H written document, the terms of the document must be interpreted
R.R. SINGH v. STATE OF H.P. (AHMADI, J I 491
without the aid of extrinsic evidence. It is true that ordinarily the
A
intention of the parties to a document m·1st be gathered from the
language in which the relevant terms and conditions are couched and
no oral evidence can be permitted with a view to varying or contradict-
ing the terms of the document. To put it differently, if the terms of the
document are clear and unambiguous, extrinsic evidence to ascertain
the true intention of the parties is inadmissible because Section 92 B
mandates that in such a case the intention must be gathered from the
language employed in the document. But if the language employed is
ambiguous and admits of a variety of meanings, it is settled law that
the 6th proviso to the section can be invoked which permits tendering
of extrinsic evidence as to acts, conduct and surrounding circumst-
ances to enable the Court to ascertain the real intention of the parties.
In such a case such oral evidence may guide the Court in unravelling
c
the true mtention of the parties. The object of admissibility of such
evidence in such circumstances under the 6th proviso is to assist tbe
Court to get to the real intention of the parties and thereby overcome
the difficulty caused by the ambiguity. In such a case the subsequent
conduct of the parties furnishes evidence to clear the blurred area and D
to ascertain the true intention of the author of the document. If any
authority is needed in support of this proposition"reference may be
made to the case to Abdulla Ahmed v. Animendra Kissen Mitter, [1950]
SCR 30. At page 46 we find the following passage:
"The evidence of conduct of the parties in this situation as to E
how they understood the words to mean can be considered
in determining tbe !("tie effect of the contract made between
the parties. Extrinsic evidence to determine the effect of an
instrument is permissible where there remains a doubt as to
its. true meaning. Evidence of the acts done under it is a
) guide tu the intention of the parties in such a case and F
particularly when acts are done shortly after the date of
instrument (Vide para 343 of Hailsham Edn. of Halsbury,
Vol. 10, p. 274)".
In the present case the Patta of 14 Maghar 1999 Bikrami is admittedly
lost. Reliance was, therefore, placed on Exh. P-6 which incorporates G
the order No. 5158 of even date. The entry in Exh. P-6 mentions the
Khata Khatauni of the 106 plots granted to the plaintiff and tbe area
thereof is shown to be 263.4 bighas and part of the uncultivated jagir
Since a doubt arose whether tbe disputed Khasra numbers formed part
of the uncultivated Jagir referred to in Exh-.P-6, the parties led oral as
well as documentary evidence with a view to enabling tlie Court to R
492 SUPREME COURT REPORTS [ 1990] 3 S.C.R.
ascertain the extent of the Jajir granted to the plaintiff. Since the
A
words 'part of the uncultivated Jagir' were ambigous extrinsic evidence !
aliunde the grant became necessary to explain the coverage of those
words. We, therefore, do not see any merit in the objection.
We may now consider the effect of the notification issued under
B section 29 of the Indian Forest Act, 1927. Sub-section (I) of section 29
permits the State Government to issue a notification declaring the
application of the provisions of Chapter IV to any forest land which is
not incl1!_ded in a reserved forest but which is the property of Govern-
ment, or over which the Government has proprietory rights, or to the
whole or any part of the forest produce of which the Government is
'entitled'. The forest land comprised in any such notification is called a
c 'protected forest'. Sub-section (3) of section 29 reads as under:
"No such notification shall be made unless the nature and
extent of the rights of Government and of private persons
in or over the forest-land or waste-land comprised therein
D have been inquired into and recorded at a survey or settle-
ment, or in such manner as the State Government thinks
sufficient. Every such record shall be presumed to be
correct until the contrary is proved."
The proviso to that sub-section, however, permits the State Govern-
E men! to issue a notification before completion of such inquiry and
record in the event of urgency. The Division Bench was, therefore, not
right in presuming that an inquiry of the type contemplated by sub-
section (3) of Section 29 must have preceded the notification. The
possibility of the application of the urgency clause cannot be ruled out.
The inquiry is contemplated to determine the nature and extent of the
F rights of the Government and of private persons in or over the forest
land. Based on the findings of the inquiry the record is to be prepared.
The learned Trial Judge has observed that 'after the grant no right of
the Government in the land in suit was recorded in the Forest Settle-
ment or land revenue settlement or the land revenue records'. Under
sub-section (3) such a record shall be presumed to be correct until the
G contrary is proved. The presumption, therefore, attaches to the record
prepared in pursuance of the inquiry. In the present case, no such
record evidencing the right of the Government in the forest land or ~
forest produce is shown to have been made. Therefore, the question·of
presumption of correctness of record never arose and the plaintiff was
not obliged to dislodge the same. The evidence on the contrary show~
H that the disputed lands were entered in the revenue records as the
R.R. SINGH v. STATE OF H.P. [AHMADI, J.] 493
private property of the plaintiff. That should be so because where the
\ land in question forms part of a permanently settled grant, it is ordi-· A
narily the private property of the grantee. That is why by the subse-
quent notifications issued under section 4 of the Himachal Pradesh
Private Forest Act, 1954, the disputed forests were notified as private
forests of the plaintiff. The plaintiff, therefore, sought permission,
presumably under section 11 of the said Act, for cutting and felling B
• .._,i trees situate in his private forests. If the notification issued under
section 29 held the field, the State Government could not have issued
"' the subsequent notifications under section 4 of the State Act, in view
of section 2(b) thereof which in terms states that 'this Act shall not
apply to any land which is a reserved or protected forest under the
Indian Forest Act, 1927'. But before the State Government can invoke
section 29( 1), it must be shown that the requirements of that provi- c
sion are satisfied. From the various documents placed on record it is
""' quite clear that the disputed forests did not belong to the Governmenl
nor did the Government have any proprietory rights thereon. But the
Division Bench has held that the Government was entitled to the
whole or part of the forest produce under the agreement of lease dated D
25th September, 1942. The agreement of lease merely permitted the
Government to manage the forests as the Raja found it difficult to
prevent the indiscriminate cutting and felling of trees. To preserve and
conserve his forests, the Raja sought the aid of the British Govern-
ment from time to time. Under the last agreement of lease, the Raja
granted the sole control of the forests to the Punjab Government E
without transferring or conveying his proprietory interests therein.
The Punjab Government was liable to account for the usufruct as the
Raja was entitled to the whole net surplus determined triennially after
deducting from the total revenue from the forests the total expenditure
incurred by the Punjab Government over the same period. Therefore,
the Government was not 'entitled' to the whole or any part of the F
produce in its own right dehors the lease. The word 'entitled' in the
context must take colour from the preceding words and must be under-
stood to mean that the Government must have an independent claim
or right to the forest produce and not merely a right to collect and deal
with the same subject to an obligation to account for the same to the
owner. The word 'entitled' is used in the sense of the Government G
having a right or claim to the usufruct in its own right and not as the
agent of another.
After we attained independence, the erstwhile ruler of Bushahr
State ceded to the Dominion of India whereupon the properties belong-
ing to the State as distinguished from private property devolved on the H
494 SUPREME COURT REPORTS [1990] 3 S.C.R.
Himachal Pradesh Administration. As discussed earlier, the record
A
shows the disputed khasra numbers as the private property of the !
plaintiff. The plaintiff exercised proprietary rights thereon till 1960
when doubts were raised by Raina, who feared that if the plaintiff's
claim is conceded the State will have to suffer a loss of Rs.18. 75 lakhs
approximately. Since the Raja exercised supreme rights in internal
B matters he was entitled to make a grant in respect of property over
which he exercised ownership rights as a ruler. Therefore, once the
disputed property was granted to the plaintiff, the latter became the
owner thereof. The suzerainty of the British Crown over the Indian
States lapsed as from the appointed day, i.e. 15th August, 1947, by
virtue of section 7(1)(b) of the Indian Independence Act, 1947, and
with it lapsed (i) all agreements in force between His Majesty and the
C rulers of Indian States and (ii) all obligations of His Majesty towards
the Indian States. After the merger of the Bushahr State, a separate
administrative unit was constituted by the Central Government for
Himachal Pradesh. It appears from the letter Exh. DW-1/3A dated
25th April, 1949 that the lease agreement was mutually terminated and
o the management of the forests was taken over by Himac:hal Pradesh
Administration from the East Punjab Government w.e.f. 1st April,
1949 on the stated terms. The said terms were accepted by the East
Punjab government by the Chief Secretary's letter dated 5/9th May,
1949, Exh. D-1/3B. At the date of merger the forests belonging to the
State of Bushahr devolved on the Himachal Pradesh Administration
E except the private forests. The need to continue the lease for a few
private forests was perhaps not felt. On the termination of the lease
the private property reverted to the owners. However, so far as the
plaintiff's forests were concerned they continued under the State's
management since he was a minor. But on that account the State was
not 'entitled' to the forests produce from such private forests. There-
F fore, the notification issued under section 29 could have no application
to such private forests. The State Government was, therefore, compe-
tent to issue the two notifications under section 4 of the Himachal
Pradesh Private Forest Act, 1954, and it was not justified in annulling
them on the erroneous premise that the said lands belonged to the
State Government. The Division Bench, therefore, ought not to have
G reversed the trial court on this point.
In the result this appeal must succeed. We allow the appeal and
set aside the judgment and decree of the Division Bench of the High
Court. We would have been inclined to restore the decree of the Trial
Court but counsel for the appellant-plaintiff made a statement at the
H bar that in view of the provisions of the Himachal Pradesh Ceiling on
R.R. SINGH v. STATE OF H.P. !AHMADI, J.] 495
Land Holdings Act, 1972, the question of granting such a declaration
A
\ does not survive.
He, however, submitted that the State Government should be
directed to refund the amount of Rs.3,36 lakhs with interest which was
• deposited by defendant No. 3 in the Treasury under an agreement
dated 19th August, 1961, entered into with the President of India B
through the Secretary, Forest Department. Clause (VI) thereof pro-
vides that in the event the appellant-plaintiff succeeds in establishing
...., his title to the trees in question, the said amount would be refunded
subject to a deduction of 15% towards royalty. However, defendant
No. 3 filed a suit against the appellant for the recoveryof the said
amount which ~uit ended in a compromise decree whereunder the
appellant-plaintiff paid the 3rd defendant Rs.2.51 lakhs in full and c
final satisfaction of his claim reserving unto him the right to recover
.... the deposited amount from the State Bank. We, therefore, told that
the plaintiff-appellant is entitled to the refund of Rs.3.36 lakhs with
interest at 9% per annum subject to deduction of royalty calculated at
15% D
The appellant-plaintiff has also claimed refund of Rs.4.60 lakhs
with interest lying in fixed deposits with the State Bank of India,
Shimla in the name of the Registrar of the High Court. The Division
Bench of the High Court by its order dated 14th December, 1910
directed that the trees included in the Local Commissioner's report E
dated 7th December, 1980 be sold by public auction and the sale
proceeds be deposited in the State Bank of India, Shimla till the dis-
posal of the appeal. Accordingly, the sale proceeds were deposited out
of which the appellant-plaintiff was permitted to withdraw a sum of
Rs.2.60 lakhs after furnishing surety. The balance of Rs.4.60 lakhs is
lying in fixed deposits and the appellant-plaintiff is entitled to the F
') refund thereof. We, therefore, direct that the said amount together
with interest accrued thereon shall be refunded to the appellant-
plaintiff
The appellant-plaintiff also made a claim in respect of the value
of the trees cut and sold by the Forest Department during the year G
1951-52 when the appellant was a minor'. The estimated value of these
trees is stated to be Rs.1.50 Jakhs. However, no claim was made in
respect thereof in the suit filed by the appellant-plaintiff which has
given rise to this appeal. If the appellant-plaintiff was entitled to the
said amount he ought to have claimed the same in the suit filed in 1964.
We, therefore, do not entertain this claim. H
496 · SUPREME COURT REPORTS [1990) J S.C.R.
A The appellant-plaintiff has also claimed a refund with interest of
the market value of trees totalling 10,505 cut and sold by the Forest !
Department during the period from 1980 to 1985 notwithstanding the
order of this Court dated 17th October, 1979. However, in view of the
fact that Himachal Pradesh Ceiling on Land Holdings Act, 1972 has
B since intervened we do not entertain this claim in the present proceed-
ings. The refusal to entertain this claim will not debar the plaintiff
from seeking any relief that is available to him under the 1972 Act.
y
In the ultimate, we direct the State Government to refund
Rs.3.36 lakhs with interest at 9% per annum thereon to the appellant-
plaintiff after deducting royalty at 15%. We also direct refund of the
C amount of Rs.4.60 lakhs with interest accrued thereon lying in fixed
deposits in the State Bank of India, Shimla under the High Court's
order dated 14th December, 1972. We grant three months time to
comply with above directions. The appeal is allowed ac.cordingly but ,,,.
we make no order as to costs.
D In view of the above, the CMP will also stand disposed of
accordingly.
R.S.S. Appeal allowed.
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