Patna High Court
Balaram Singh Deo vs Madhu Sudan Singh Deo And Ors. on 27 October, 1965
Equivalent citations: AIR1966PAT355, AIR 1966 PATNA 355, ILR 46 PAT 883 1966 BLJR 3, 1966 BLJR 3
JUDGMENT Narasimham, C.J.
1. This is an application under Articles 226 and 227 of the Constitution against the judgment of Misra, J. sitting as an appellate Court under Section 27 of the Bihar Land Reforms Act, dismissing the petitioner's appeal against the order of the Compensation Officer apportioning the compensation payable in respect of various tenures within the former State of Seraikella which were taken over by the Government under the provisions of the said Act. The petitioner's case was that he and respondents Nos. 1 to 3 were junior members of the Seraikella Raj family and that their ancestor was given khorposh grant (maintenance grant) by the then Raja of Seraikella in accordance with the custom prevailing in the State for the maintenance of junior members of the Raj family. The petitioner further alleged that by virtue of a special custom the khorposh grant of the junior member of the Seraikella Raj family was also governed by the rule of lineal primogeniture and that the petitioner as a male descendant of the eldest line was entitled to the whole of the compensation payable for the acquisition of the tenures by Government of Bihar. The learned Compensation Officer, however, held, on the evidence adduced before him, that the petitioner was only entitled to two-fifths share and that the remaining three-fifth share should be divided equally amongst the three respondents who are also descended from the original common ancestor, though they belong to a younger branch. In coming to this decision he relied on some evidence, especially the khatian, adduced before him.
2. On appeal before Misra, J., on behalf of the petitioner an application was made for admitting as additional evidence under O. 41. R. 27, of the Code of Civil Procedure, several documents, the most important of which was the judgment of the Maharaja of Seraikella (Annexure C) in P. H. No. 131 of 1938-39, disposed of on the 28th December 1939. In that judgment the ruler of Seraikella. sitting as a Court in a dispute between some of the maintenance holders (khorposhdars) of the State, held that the khorposh properties in the State were impartible by custom and that they also descended by the rule of primogeniture. It is true that the judgment was not between the parties in the present dispute or their predecessors in interest, but it might be a valuable piece of evidence as regards the custom of impartibility prevailing in respect of khorposh grants in Seraikella State prior to its merger on the 1st January 1948. The learned Judge, however, refused to allow additional evidence to be taken at the appellate stage, observing that "no sufficient cause has been made out for admitting the documents in question."
3. It is now well settled that the power of certiorari against a judicial or quasi judicial order can be exercised only when there is an error of law apparent on the face of the record. I am leaving out of consideration jurisdictional grounds which obviously have no application here. We are unable to find any error of law apparent on the face of the record in the judgment of Misra, J. Merely because he refused to exercise his discretion to admit additional evidence under Order 41, Rule 27, Code of Civil Procedure, it cannot bo said that there is any error of law apparent on the face of the record. The question ultimately depends on whether he was satisfied with the explanation given for not adducing this valuable document before the Compensation Officer at the earliest stage and whether he thought that this document was necessary with a view to enable him to pronounce judgment or for any other substantial cause
4. Mr. Sinha was fully aware of this difficulty, but he tried to get out of it by a very ingenious argument. He urged that prior to merger the ruler of Seraikella State was a sovereign in whom was combined the executive, legislative and judicial powers within his State. According to Mr. Sinha. the judgment of the ruler in P. Rule No 131 of 1938-39 (Annexure C) must, in the eye of law, be deemed to be the law in force in Seraikella State and as that law along with the other laws in force in the State was continued in force by virtue of the Administration of Orissa States Order, 1948, it became the law of the land and the learned Judge was bound to take judicial notice of the same. Hence it was urged that an error of law apparent on the face of the record was committed by the learned Judge.
5. This argument is, however, not acceptable. It is now a matter of history that all the former Native States, known as Orissa Foundary States, entered into the well known merger agreement with the Government of India and surrendered their sovereignty with effect from the 1st January 1948. From that date the Seraikella State was administered by the then Province of Orissa as the delegated authority of the Central Government exercising its powers under the provisions of the Extra Provincial Jurisdiction Act. An order, known as the Administration of Orissa States Order, 1948, was made for the purpose of the governance of the former States which merged in the Province of Orissa, including Seraikella. It is true that subsequently Seraikella was handed over for the purpose of administration to the Province of Bihar, and later on merged with the State of Bihar. But this does not affect the legal position under discussion here. Mr. Sinha is also right in saying that by virtue of the provisions of the aforesaid Order, all laws in force, whether based on statute or custom, in the former State of Seraikella, were continued in force after the 1st January 1948. But the more difficult question to decide is whether a judgment delivered by the ruler sitting as a Court in a dispute between parties on the 28th December 1939, can be said to be the law prevailing in Seraikella State prior to its merger. It is true that at that time the ruler combined in himself executive, legislative and judicial powers, and it may be sometime difficult to decide whether an order passed by him was in exercise of his legislates power or executive power. This point has been discussed in Narsing Pratap Singh Deo v. State of Orissa, AIR 1964 SC 1793, where the previous decisions on the subject have also been noticed, and it is unnecessary to repeat the principles laid down by their Lordships in that judgment. But so far as the exercise of judicial power by the ruler is concerned, there has never been any difficulty. The document in question (Annexure C) is registered as a regular case, and the ruler who was sitting as a presiding officer describes himself as "Court of the Seraikella State". The contents of the document (Annexure C) is also in the form of a regular judgment passed in a dispute between the parties who approached the ruler for a decision. I may quote the following passage in Annexure C:--
"Now after the death of Gokul Chandra Singh Deo in 1938 when a dispute arose between the eldest branch Sachidanand Singh and others with their uncles Ram Narayan Singh and others about their claims in respect of the income and khorposh villages both parties have approached me for a decision and settlement and they have agreed that they would abide by my decision. Therefore I made the decision as follows:--"
His order cannot by any stretch of imagination, be called an order in exercise of his legislative power. As, pointed out in the aforesaid Supreme Court judgment, the order does not contain any command which has to be obeyed by the citizens of the State (see p. 1799), but it is in the nature of a decision given because the parties approached him and agreed to abide by his decision. I must, therefore, reject the extreme contention of Mr. Sinha that this was the law in force in Seraikella State prior to merger, which was continued in force by virtue of the said Administration of Orissa States Order. It will be merely in the nature of judgment not inter partes which would undoubtedly be admissible under Section 18 of the Evidence Act before the Compensation Officer in support of the plea of special custom of impartibility raised by the petitioner. But as it was not adduced at the appropriate stage, the appellate authority, namely. Misra, J., was entitled to consider whether he should permit it to be adduced as additional evidence under Order 41," Rule 27, Code of Civil Procedure and to reject the prayer if he was satisfied that no sufficient cause was made out. This Court cannot obviously interfere with this order in exercise of its extraordinary jurisdiction under Articles 226 and 227.
6. For these reasons the application is dismissed with costs. As respondent No. 1 and 2 alone entered appearance through Mr. Bhabananda Mukherji, the entire cost of this application shall be payable to them. Hearing fee assessed at Rs. 100.