TMI Blog1985 (4) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... his reason the case has been handed over to Mr. Garg when a panel lawyer is in fact, within a short space of time Mr. Khan, prepared the case and assisted the court to the utmost satisfaction and raised number of technical pleas. I think it proper to express my appreciation for Mr. Khan and would like that in future at least he should see that proper assistance is given by his colleagues to the court and the cases of the State Government do not go in default for not putting the case properly. 2. This appeal has been directed against the judgment and decree passed dated 13th November, 1972, passed by the learned District Judge, Alwar, dismissing the suit of the plaintiff-appellant. The plaintiff-appellant has filed a suit against the State of Rajasthan for compensation for the use and occupation of the disputed property. It is an admitted position that the final inventory of the property of His Highness of Alwar was prepared. Ex. A/5 relates to the disputed property. Under the covenant the disputed property was considered as private property with some conditions. The relevant portion runs as under: Vinay Vilas Place with Garden, the Ancestral. The Vinay Vilas Plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the College, From the above evidence the admitted position is (1) that the disputed property is being occupied by Raj Rish College since 1930 and the College was being run by erstwhile Alwar State prior to its integration in the UOI. The Building is still occupied by the College; (2) There is no documentary evidence on record either in favour of the plaintiff or the defendant No. 1 to show that the property was given gratuitously or ungratuitously. The case of the plaintiff hinges on the interpretation of covenent Ex. 5. (3) At the time when the integration of the Alwar State was complete with the Union of India, a final list of inventory was prepared and the State Ministry informed about the same to His Highness, Alwar. A copy of such final list is A-5 on record. In such list, the disputed property has been given at S. No. 2 and the decision of the state Ministry about the same has been mentioned in the same list, which runs as under: Ancestral. The Vinay Vilas Palace Building will however remain in the possessions and use of the State so long as it is required by Government for educaiion purposes. During this period the Building will be maintained by the State and the Gar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited my attention to para 2 of the above case and submitted that 12th October, 1963, Col. His Highnees Maharaja Sawai Tejsinghji of Alwar filed civil suit No. 5 of 1963 in the Court of District Judge, Alwar for a declaration that the properties detailed in paragraph No. 4 of the plaint were the private properties of the plaintiff and the defendant No. 2, the State of Rajasthan, be ejected therefrom, or, in the alternative ordered to pay rent at ₹ 1000/- p.m. It will not be out of place to mention that in the aforesaid case the property was City Palace including adjoining building, the details of which are as under: ---------------------------------------------------------------------------------------------------- Description nf property Decision of the States Ministry ----------------------------------------------------------------------------------------------------- City Palace including Ancestral. The portion of the build- adjoining building ing at present in use by the State for administrative purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that even in a case like the City Palace building where there is a condition that the property should be released in favour of the erstwhile ruler. The provisions of Article 363 of the Constitution of India have been applied. Mr. Khan has submitted before me that an appeal was preferred by His Highness Maharaja Shri Tejsinghji of Alwar against the Union of India and another. His appeal has been dismissed by the Supreme Court in Sawai Tej Singhji v. Union of India . Their Lordships of the Supreme Court held that Article 363 of the Constitution bars the jurisdiction of all courts in any dispute arising out of any agreement which was entered into or executed before ? he commencement of the Constitution by any Ruler of an Indian State to which the Government of India was party. Their Lordships further held that the operation of the article is not limited to any Parent Covenant and every agreement whether it is primary or one entered into in pursuance of the provisions of a preceding agreement would fall within the ambit of the article. 11. Mr. R.M. Lodha, counsel for the appellant, has submitted before me that Article 363 does not apply in the facts and circumstances of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 80, CPC was served on the State of Rajasthan on 15th November, 19o9. In para 3 of the notice it has been mentioned that the State of Rajasthan has been in use and occupation of the property for a number of years. It has failed to settle the rent and execute the rent deed of the premises despite several representations and reminders. No representation has been produced on record and there is nothing on record to show that when the representations, if any, were made. It is an admitted position that the Maharaja of Alwar executed the sale-deed on 10th October, 1960 in favour of Her Highness of the State of Alwar. The Covenant had been entered into in the year 1949 and, for 11 years the property remained with His Highness as owner of the property. There is no allegation that His Highness ever demanded the rent or compensation for use of occupation of the suit property. There is no reference also in the sale-deed Ex. 2 that Maharaniji will be entitled to get compensation from the State of Rajasthan. Thus, the past conduct shows that the matter has been agitated at a very late stage, may be after 2t years and, no compensation has been claimed by the plaintiff, or the predecessor-in-tit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not running this college in his personal capacity, but was running the College as a Ruler of the erstwhile State and the expenses for the same were borne by the State. Section 70 of the Contract Act runs as under: Where a person lawfully does anything for another person, or delivers anything to him not intending to do so gratuitously and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of or restore, the thing so done or delivered. 18. The first ingredient of Section 70 of the Contract Act is that a person lawfully does anything for another person whether what has been done by a person has been done for another within Section 70 of the Contract Act is always a question of fact. The test is, whether the person who is acting holds such a position in relation to the other as to raise expressly or by a reasonable implication an inference that by the act done for the other person he could be entitled to look for consideration for it from the other person for whom it was done. It is an admitted position that the Covenant was entered into by the Union of India with the erstwhile ruler of Alwar State. The former State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the said case, their Lordships were considering the case of the purchaser in an auction sale. The property vests in the auction purchaser and the sale becomes absolute from the time it was sold. Vesting of property is made to relate back to the date of sale. The plaintiff in the instant case has put up the case that under the terms of the Covenant Ex. A/5, the defendants were allowed to continue in occupation so long as it is required by the defendant. In the instant case, the plaintiff has not come with the case that he has allowed the State of Rajasthan to continue in occupation for the use as educational institution. In the instant case, there is no privity of contract between the parties and whatever was a contract or a covenant it was with the Union of India and the ex-ruler of the erstwhile State of Alwar. Their Lordships were considering the provisions of Section 70 of the Contract Act and, have considered the written statement filed by the defendant in the said case reported in Bhagavada v. PS. Soma Iyer (supra). In para 4 of the written statement in the said case, the defence was that they had only asked for some thing and, that was granted by the plaintiff. Their Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self, like ownership, is indivisible but the right to possesion is not exclusive for by way of example, one in possession of a chattel at the will of the owner has a right to possession as against all the owner, whereas the latter has a right to possession against every one. Under Section 17 the word delivery has been used with the clear intention that it must be an absolute delivery, not a contingent delivery. , That means, the delivery must be a delivery of a nature creating a right in favour of the person to make the property delivered and the person who delivers the property loses the right. In the instant case, it is an admitted position that the College was being run by the erstwhile State of Alwar since 1930 and the property was in possession of the erstwhile Alwar State since 1930 and the erstwhile State of Alwar was running, managing and controlling the educational institution. 20. In Bhikhraj v. The State of Bihar , their Lordship of the Patna High Court were considering the provisions of Section 70. Their Lordship held that a thing may be delivered in pursuance of a contract and if will have to be governed by the terms of that contract. Mere delivery of a thing irre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will allow the State to use and accommodate the property so long as it is required for the purpose of educational institution. The educational institution has been running since 1930. So the word delivery as used in Section 70 cannot into play in the instant case as no delivery was effected. In fact, the continuance of the possession is there and it was allowed to continue even under the covenant. Thus, this ingredient of delivery is missing and for this reason also Section 70 of the Contract Act will not apply. 22. The second ingredient, in doing the said thing or delivering the said thing, he must not intend to act gratuitously has not been established by the plaintiff to the satisfaction of the Court. The Court below has rightly held so. From a perusal of the covenant, which was entered into by way of settlement, there is no reference of compensation or rent to be paid to the plaintiff or his predecessor. When a settlement takes place, if the intention is otherwise, it is always mentioned in specific terms in the covenant or the agreement. From a perusal of the covenant it can safely be said that it was done gratuitously and the State Government was allowed to run the edu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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