Judgement

VENKATARAMIAH, J. :- The question for consideration in this case is whether the hereditary right of the respondents to recover a sum of Rs. 3,500/- per annum under an agreement dated 10-8-1914 entered into between the predecessor-in-interest of the respondents and the former princely State of Junagadh came to an end by virtue of provisions contained in the Gujarat Surviving Alienations Abolition Act, 1963 (hereinafter referred to as the Act).

2. There was one Darbar Harsurvala of Mandavad in the former princely State of Junagadh. He had a hereditary right to collect certain quantities of grass, fire-wood and timber from the Gir Forest in the State of Junagadh and that right was recognised by a declaratory decree made by the Rajasthanik Court of Kathiawar in the year 1884. On the death of Harsurvala the said right was being enjoyed by his son Jiva Vala till the year 1914. On 10th August, 1914 an agreement was entered into between Jiva Vala and the State of Junagadh under which the State of Junagadh agreed to pay every year (commencing with 1st September of the preceding year and ending with the 31st August of the succeeding year) in the month of January a sum of Rs. 3,500/- to Jiva Vala and after him to the heirs claiming under him in lieu of the right to collect grass, fire-wood and timber which was being exercised by Jiva Vala. Accordingly, Jiva Vala was receiving the sum of Rs. 3,500/- every year and on his death his son Kalubhai was receiving the said sum every year from the State of Junagadh and on the State of Junagadh becoming part of the Union of India from the Saurashtra State, then from the State of Bombay in which Saurashtra State was merged and thereafter from the State of Gujarat which came to be established under the Bombay Reorganisation Act, 1960 till his death. After his death Respondent No. 1 Kamlaben, the wife of Kalubhai and the other respondents, who were children of Kalubhai were receiving the amount due to them till the year 1964. However, in January, 1965 the Mamlatdar of Visavadar issued notice under the orders of the Collector, Junagadh to the respondents stating that the right to receive the said amount had come to an end on the coming into force of the Act, i.e., the Gujarat Surviving Alienations Abolition Act, 1963, which had come into force on 1st October, 1963 and threatening the respondents that measures such as attachment etc. would be taken if the amount paid for the year 1-9-1963 to 31-8-1964 was not refunded by them to the State Government. Thereupon the respondents instituted the suit before the Court of the Civil Judge, Junagadh out of which this appeal arises for a declaration that they continued to enjoy the right to receive the sum of Rs. 3,500/- per annum hereditarily and for an injunction restraining the appellants, the State of Gujarat and the Collector of Junagadh from taking any action to recover the amount which had already been paid to them. The Trial Court dismissed the suit. Aggrieved by the judgment and decree of the Trial Court, the respondents filed an appeal before the District Judge, Junagadh in Civil Regular Appeal No. 135 of 1966. The District Judge allowed the appeal holding that the right to receive the amount had not come to an end on the coming into force of the Act. The decree passed by the learned District Judge was confirmed by the High Court of Gujarat in Second Appeal No. 93 of 1968 vide its judgment dated 10-10-1972. The appellants have filed this appeal by special leave against the judgment of the High Court.

3. There is no dispute about the facts involved in this case. The right of Harsurvala to take grass, fire-wood and timber from the Gir Forest belonging to the State of Junagadh had been declared in a decree (Exhibit 21) passed by the Rajasthanik Court on April 14, 1884. By a further agreement dated 10th August, 1914 (Exhibit 24) which had been arrived at between Jiva Vala, descendant of Harsurvala and the State of Junagadh, the State of Junagadh h