Judgement

M. HIDAYATULLAH J.: This appeal with a certificate from the former High Court of Saurashtra under Art. 133 of the Constitution read with Ss. 109 and 110 of the Code of Civil Procedure, has been brought against the judgement of that Court dated 19.2.1953, in Civil First Appeal No. 16 of 1952.

2. The appellant is the State of Saurashtra, which stood substituted for the State of Junagadh, against which the suit was originally filed. The respondent, Memon Haji Ismail Haji Valimahomed of Junagadh, (hereinafter referred to as the respondent), brought this suit originally against two defendants, the State of Junagadh and one Jamadar Abu Umar Bin Abdulla Abu Panch (hereafter referred to as Abu Panch), for a declaration that the Secretariat Order No. R/3289 dated 18.10.1948, was "Illegal, unjust and against all canons of natural justice"" He also asked for an alternative relief that the second defendant do return to him a sum of Rs. 30,000 plus Rs. 541-2-0, being the consideration and expenses of a transfer of immovable property resumed under the said order. The suit was decreed by the Civil Judge, to whom after integration the case was transferred, and the decree was confirmed by the High Court by the judgement under appeal. It may be pointed out that during the course of this suit, a third defendant, namely, the Mamlatdar, Viswadar was also impleaded, because the property of Abu Panch had passed into the management of the Saurashtra Government under what is described in the case as the Gharkhod Ordinance. It may further be pointed out that the two defendants other than the State of Saurashtra were discharged from the suit, and it, proceeded only against the State of Saurashtra for the relief of declaration above described.

3. The fats of the case are as follows: One Ameer Ismail Khokhar Kayam Khokhar purchased a plot of land in Junagadh town from the State of Junagadh, and built a house on it. A Rukka was issued to him on 2-12-1939, which is plaintiff s Exhibit No. 34. In the year 1941, the Nawab of Junagadh purchased the property from Khokhar, though the document by which this purchase took place has not been produced in the case. On 17-11-1941, the Nawab gave this property by gift to Abu Panch. Abu Panch in his turn sold on 24-11-1943, the property to the respondent for Rs. 30,000. In the original gift deed (described in plaintiff s Exhibit dated 18-5-1942) there does not appear to have been any mention of a power to transfer the property. Indeed, in the said document of 18-5-1942, it was stated that the house was given for the "use and enjoyment" of Abu Panch. Subsequently, on 12-2-1944, the Nawab ordered certain amendments in the Palace Order by making it possible or Abu Panch to sell the house. It was stated as follows:

".........you are hereby granted from the date of gift i.e. 17-11-1941 the title to sell the house as defined in this Rukka and as per directions received".

4. It appears that this additional Shera was issued to validate the sale which had been effected by Abu Panch earlier. However, the matters stood thus when after Independence the affairs of Junagadh State fell into a chaos, and at the invitation of the State Council the Government of India ordered the Regional Commissioner, Western India and Gujarat State Region to assume charge of the administration of the State on behalf of the Government of India. The Regional Commissioner on 9-11-1947, issued a Proclamation which was published in the Dastural Amal Sarkar Junagadh of 10-11-1947, stating that he had assumed charge of the administration of the Junagadh State at 1800 hours under the orders of the Government of India. The Proclamation which is brief, may be quoted here.

"I.N.M. Buch, Barrister-at-law O.B. E., I.C.S., Regional Commissioner, Western India and Gujarat States Region have this day assumed charge of the administration of the Junagadh State at 1800 hours under the orders of the Government of India, at the request of the Junagadh State Counci