Judgement

Appeal (No. 50 of 1939), by special leave, from a judgment and decree of the Additional Judicial Commissioner in Baluchistan (November 6 and 19, 1936, respectively).

In 1880 one Mir Dur Mohammad Khan, the predecessor in title of the present respondents, obtained from the then Khan of Kalat a grant (sanad) of a large tract of waste land situated in the Nasirabad Tahsil of his State. The land was declared to have been "given" to the grantee for Rs. 40,000, and the grant was made in contemplation of the excavation by the grantee of an extension of the Desert Canal. The grantee duly paid the price, and he and his heirs were in possession of the land when, on February 17, 1903, the then Khan executed an agreement, called a "Treaty," whereby he made over and ceded in perpetuity to the British Government the entire management of the Nasirabad Niabat absolutely, and with all the rights and privileges, state or personal, as well as full and exclusive revenue, civil and criminal jurisdiction and all other powers of administration, including all rights to levy dues and tolls. The British Government took early steps to arrange for the revenue administration, and a record of rights was prepared by the responsible executive officer, Mr. W. W. Smart, of the territory in question, and entirely waste lands were entered therein as "Government unoccupied lands." Those lands in fact comprised lands covered by the sanad of 1880, and the respondents, thirteen in number, thereupon instituted on September 14-15, 1936, in the Court of the District Judge, Sibi, the proceedings out of which this appeal arose, claiming a declaration of their title, and possession, an injunction restraining the defendant (appellant), the Secretary of State for India in Council, from encroaching on their land, and correction of the record of rights.

The appellant pleaded (inter alia) that, by the treaty of 1903, Nasirabad was ceded to the British Government by the Khan of Kalat, a Sovereign State ; that the acquisition of territory was an act of state ; that any pre-existing rights which the respondents might have derived from the Khan were irrelevant, and the British Government was not bound to recognize them ; and that the municipal courts had no jurisdiction to try or determine the matter.

The terms of the Treaty of 1903 are set out fully in the judgment of the Judicial Committee.

On June 22, 1936, the Judicial Commissioner in Baluchistan transferred the case from the file of the District Judge, Sibi, to his own file, and directed that it should be disposed of by the Additional Judicial Commissioner.

The Additional Judicial Commissioner (Mr. Rangi Lal) held (inter alia) that the treaty was nothing more than a lease pure and simple, and could not by any means be said to be an act of state on the part of the British Government; that if the position of the British Government was that of a lessee, its rejection of the respondents claims could not be an act of state. He was of opinion that the case was of a simple nature, and that the respondents were suing as vendees to enforce their rights under a sale, against the representative of their vendor (the Khan). He held that under the sanad the respondents had acquired indefeasible rights in the land in suit, and could enforce them in the Kalat courts, and, after the Treaty of 1903, in the British courts. In the result, he decreed the suit, with costs.

The Secretary of State for India in Council appealed.

1941. Mar. 18, 19. J. M. Tucker K.C. and J. M. Pringle for the appellant. The case raises a question of some importance as to the rights of the British Indian Government under the Treaty of 1903. The land in suit is still in a Native State, outside British India, and the sovereignty of that State is in the Khan of Kalat, but, by virtue of the treaty, full jurisdiction is exercised over the territory in question by the British Government. The appellants contention is that the grant to Mir Pur Mohammad Khan in 1880 by