State of Rajasthan v. Gangadhar — 1966 DIGILAW 69 (RAJ)

SHINGHAL, J.— Both the courts below having allowed the claim of plaintiff Gangadhar for the recovery of Rs. 2,399/1-, with costs, against the State of Rajasthan, the defendant preferred this second appeal. 2. One Zorawarmal was found to have been murdered in his house in Churu, in the former Bikaner State, during the night between Decemberl3 and Decemberl4, 1948. He had no issue and used to live alone in his house. The police sealed all his property. Subsequently, the police reached the conclusion that Zorawarmal had died heirless and that his property had escheated to the State. They therefore prepared a detailed inventory (Ex. 2) on the 23rd, 24th and 25th January, 1949, in the presence of motbirs, making it quite clear that the property had been seized because of escheat. It consisted of a large number of articles including jewellery and utensils. All these were placed in four rooms of Zorawarmals house, which were locked and sealed. The keys of the locks were placed in the malkhana of the police station. The concerned Sub-Inspector of Police then submitted his report Ex. A.2 on March 1, 1949, to the Tehsildar of Churu requesting him to take over the escheated property and to take further necessary proceedings. Rival claimants approached the Tehsildar with their competing claims for Zorawarmals property and the Tehsildar directed them to have them adjudged by a civil court. In the meantime, he allowed the property to remain in police custody. Ultimately, the Civil Judge of Churu, who tried the suit regarding the claims of Zorawarmals heirs, held on March 27, 1912,. that Gangadhar, the present plaintiff, was entitled to inherit Zorwarmals property. That judgment was upheld by this Court on November 1, 1954. Armed with the Courts decree, Gangadhar approached the Collector of Churu for the delivery of the property to him. The Collector made an order on March 16, 1955, directing the police to deliver the property to Gangadhar. It was accordingly handed over to him, except for some gold and silver ornaments and utensils. The plaintiff made various applications for the return of these remaining articles also, but without success. According to him the articles were of the value of Rs. 2,396/9/- and adding Rs. 2/8/- on account of incidental expenses, he instituted the present suit for the recovery of Rs. 2,396/1/- on November 19, 1955, against the Rajasthan State. The plaintiff made various applications for the return of these remaining articles also, but without success. According to him the articles were of the value of Rs. 2,396/9/- and adding Rs. 2/8/- on account of incidental expenses, he instituted the present suit for the recovery of Rs. 2,396/1/- on November 19, 1955, against the Rajasthan State. All these facts are not in dispute and were admitted in the defendants written statement. It was however pleaded in defence that the article were not worth Rs. 2386/9/-and that the defendant was not liable because they had been stolen inspite of all care and attention. 3. The Civil Judge of Churu, who tried the suit, held that the value of the articles was rightly claimed by the plaintiff to be Rs. 2,396/9/- and that they were not stolen. He therefore decreed the suit on February 5, 1958 repelling the contention that the State was not vicariously liable in tort. The State preferred its first appeal to the District Judge of Bikaner, who upheld the findings of fact of the trial court. He took the view that the State was liable because the property had been entrusted to it, as also in tort. 4. Mr. R.A. Gupta, learned counsel for the defendant - appellant, tried to raise an argument that this was a case of a bailment within the meaning of sec. 148 of the Contract Act and that the States liability, as the keeper of the missing goods, was no more than that prescribed by secs. 151 and 152, and as the goods were stolen inspite of proper care and attention, the State was not liable for their value. The learned counsel, however, realised that the plaintiff was not a party to the delivery of the goods to be State, and that, on the other hand, the articles were seized by the police under a Municipal law. They were withheld from the plaintiff inspite of his repeated demands. So there was no question of a contractual or quasicontractual relationship between the parties. The learned counsel therefore based his arguments on the assumption that the plaintiffs claim was by way of an action in tort and not by way of a bailment or entrustment of property. Mr. Bhandari, learned counsel for the plaintiff-respondent, also conceded that it is. this aspect of the matter which requires consideration in this appeal. 5. Mr. The learned counsel therefore based his arguments on the assumption that the plaintiffs claim was by way of an action in tort and not by way of a bailment or entrustment of property. Mr. Bhandari, learned counsel for the plaintiff-respondent, also conceded that it is. this aspect of the matter which requires consideration in this appeal. 5. Mr. Gupta has argued that the concurrent findings of the two courts below that the silver and gold articles were not lost on account of a theft in Zorawarmals house, is not correct. The learned counsel has pointed out that the very fact that first information report Ex. A. 1 was registered by the police regarding the theft shows that a theft was really committed and that the contrary finding is perverse. The argument is quite futile because the learned District Judge has noted in his judgment that there was "no dispute that there is no evidence on the record to show that the articles were stolen away from the house of Zorawarmal." It is not therefore open to the State, after having once made a concession in the lower appellate court, to turn round and reagitate the plea of theft in this Court. It may be men-tioned that the property of Zorawarmal was seized by January 25, 1949 and remained in the custody of the State upto March 16, 1955. The first information report (Ex. Al) about the alleged theft was made as late as July 4, 1955, after the plaintiff had given a notice under sec. 80 of the Code of Civil Procedure or the recovery of the remaining articles or their value. The mere fact that the report was registered, cannot, therefore, lead to the conclusion that a theft had really taken place. All the evidence bearing on the point has been duly considered by the learned Judge of the lower appellate court and it has not been shown how his finding could be said to be vitiated by any substantial error. 6. What has been urged is that the defendant wanted to examine one Pra-bhusingh in order to prove that the seals were found to be broken at the time of the delivery of the articles to the plaintiff, but that sufficient opportunity was not given for the purpose. 6. What has been urged is that the defendant wanted to examine one Pra-bhusingh in order to prove that the seals were found to be broken at the time of the delivery of the articles to the plaintiff, but that sufficient opportunity was not given for the purpose. No such argument was, however, raised in the lower appellate court, so that it is obvious that the defendant did not feel aggrieved because of the non-production of Prabhusingh and the point was waived for that reason. It cannot therefore be allowed to be raised for the first time in this Court. 7. As has been stated, the plaintiff has brought his action in tort for trespass to his chattels. That is actionable per se. The question arises as to what exactly is the nature of his claim? Mr. Bhandari has argued, and rightly so, that the plaintiff claims in detinue one of the four actions which protect property interests in chattels, the other 3 being trespass, conversion and replevin. The reason is that where a man deprives another of his property, he is guilty of what is known as trespass de bonis asportatis when he takes it wrongfully, of detinue when he wrongfully detains the property, and of conversions when he wrongfully disposes it off. Trespass de bonis asportatis is wrongful ab initio, while in detinue the possession of the property is acquired rightfully but is retained wrongfully. In the case of conversion, however, the defendant neither takes wrongfully nor detains the property, but he acts in such a manner that the property is lost to the true owner. His remedy lies by means of an action for trover. Conversion really may be said to include instances of these modes of trespass. Replevin is of limited use, for it is a claim for immediate and provisional possession of chattels pending the result of a long range action based on title, and it is allowable when chattels have been taken by a trespass e.g. in the case of unlawful distress. This remedy is therefore temporary and is not quite common. 8. It would thus appear that Mr. This remedy is therefore temporary and is not quite common. 8. It would thus appear that Mr. Bhandari is quite right when he contends that the plaintiffs action is in detinue, because his chattels, it is conceded, were acquired rightfully even after the civil court had decided that he was entitled to their return and an order for return had been made by the Collector. Moreover, detinue is available not only when there is actual detention of chattels i.e. refusal to deliver while they are in the possession and control of the defendant, but also when the defendant is unable, by his own default, to make the delivery. It does not really matter whether his default lies in wilful or wrongful disposition or in negligent loss of the property. It is detinue all the same. Since the plaintiff claimed specific restitution of the chattels, and the defendant has not raised the plea that it is their own and since the defendants initial acquisition has been shown to be lawful, detinue seem to be the only proper remedy available to the plaintiff. 9. What then must the plaintiff prove for an action in detinue ? He has to prove not only that he is entitled to immediate possession, but also that the defendant has detained them even after the demand for restoration. Since, however, the plaintiff was never in possession himself, he must also show that he is entitled to possession because of his perfect title. 10. The plaintiff has proved that the property belonged to Zorawarmal and that it was seized by the police soon after his death. He has also proved, on the basis of a decree of this Court in his favour, to which reference Has been made earlier, that he is entitled to Zorawarmals property as his nearest heir. These facts have not been disputed and they are sufficient to make out a perfect title in favour of the plaintiff for recovery of the chattels in question, and he is no doubt entitled to their immediate possession. The Collector made an order in his favour on March 16, 1955, for delivery of the entire property to him. It would not therefore matter that he was not in possession earlier, at the time when the chattels were seized by the police. The Collector made an order in his favour on March 16, 1955, for delivery of the entire property to him. It would not therefore matter that he was not in possession earlier, at the time when the chattels were seized by the police. The plaintiff has also succeeded in proving that the suit property was kept by the defendant in its custody after seizure and it has now expressed its inability to redeliver it even after the plaintiffs demand. Thus when the plaintiff has proved that he has not been able to get back the possession of the chattels due to the facts which can be reasonably explained only by attributing a breach of duty to the defendant, he has done what he could to prove his case and it is for the defendant to prove the contrary. 11. This raises the question of the nature of defence open to a defendant in an action in detinue. It would be no defence for it to plead that it has not got the possession of the chattels, as it has been proved that they were in its possession after they were initially seized in January, 1949, under memorandum Ex.2. It would equally be futile for the defendant to plead that it has lost the goods carelessly, for such a defence is not recognised in answer to an action of this nature. It would however be a good defence to prove that the possession had been lost without any default on the part of the defendant and it is this defence which has been taken in the present case, the defendant having pleaded that the chattels had been stolen. This was the subject-matter of issue No. 2. 12. It would be recalled, however, that there is a concurrent finding of fact that there was no theft at all and I have no reason to disturb that finding. The defence that possession of the chattels was lost without default of the defendant, must be proved affirmatively, as has been held in Coldman vs. Hill (1) and Houghland vs. R.R. Low (Luxury Coaches) Ltd.(2). Since this has not been done, the defence is worthless and has rightly been rejected. 13. Faced with such a situation, Mr. The defence that possession of the chattels was lost without default of the defendant, must be proved affirmatively, as has been held in Coldman vs. Hill (1) and Houghland vs. R.R. Low (Luxury Coaches) Ltd.(2). Since this has not been done, the defence is worthless and has rightly been rejected. 13. Faced with such a situation, Mr. Gupta has argued that the seizure of the goods was made in exercise of the sovereign functions of the State and that the State is not liable in tort for that reason. The argument has been supported by reference to M/s. Kasturi Lal Ralia Ram Jain vs. The State of Uttar Pradesh (3). No such plea was however taken in the written statement and it was not the subject -matter of an issue between the parties. The point could not therefore be tried. It can however be made as a pure question of law, but then the burden of proving it would lie on the State, which has to show that it is immune from liability. 14. Mr. Gupta has not been able to refer to any law of the former Bikaner State, or of its successor State, under which such an immunity could be claimed. His reference to Kasturi Lals case (3) is not material because that case relates to the State of Uttar Pradesh, the liability of which was the same as that of the so called former British Indian Province of the United Provinces. The criterion of liability in such a case was laid down by the High Court of Calcutta as far back as 1961 in the well known case of the Peninsular & Oriental Steam Navigation Co. vs. Secy. of State for India in-Council(4) on the basis of a distinction between acts committed by the servants employed by the State where such acts were referable to the exercise of the sovereign powers delegated to public servants, and acts committed by public servants which were not referable to the delegation of such powers, it being held that the Secretary of State in Council would be liable for damages occasioned by the negligence of servants in the service of Government if the negligence was such as would render an ordinary employer liable. This decision of Peacock C.J. has held the field all through by virtue of the Government of India Acts of 1858, 1915 and 1935. This decision of Peacock C.J. has held the field all through by virtue of the Government of India Acts of 1858, 1915 and 1935. Their Lordships of the Supreme Court have appreciated the clarity and precision with which the distinction was emphasised by Chief Justice Peacock and have recognised it as a classic statement on the subject. The distinction between acts committed by the servants employed by the State where the acts were referable to the exercise of sovereign powers delegated to the public servants and acts committed by public servants which were not referable to the delegation of any sovereign powers, was made because of the provisions of sec. 65 of the Government of India Act, 1858, which was carried over in the subsequent Acts. It provided that "all persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary of State-in-Council of India as they could have done against the said Company; and the property and effects hereby vested in Her Majesty for the purposes of the Government of India; or acquired for the said purposes, shall be subject and liable to the same judgments and executions as they would while vested in the said company have been liable to in respects of debts and liability lawfully contracted and incurred by the Company (i.e. the East India Company). The protection was therefore of a qualified and a special nature to the extent permitted by the statute, for the sovereign could not be sued in his own courts without his consent. The liability of the Government of India as well as the states which are successors of the former British Indian Provinces is therefore on quite a different footing by virtue of Art. 330 of the Constitution. 15. In the case of the Indian States, or the so called Indian India, as it then was, the provisions of sec. 65 of the Government of India Act, 1898, and the subsequent Acts, were not available and it was open to the rulers of those States to decide whether they would be liable to civil action in their own courts. We are concerned here with the former State of Bikaner. There the Bikaner State Code of Civil Procedure, 1920, was admittedly in force. Secs. 71 and 72 of that Code provided as follows : "71. We are concerned here with the former State of Bikaner. There the Bikaner State Code of Civil Procedure, 1920, was admittedly in force. Secs. 71 and 72 of that Code provided as follows : "71. Suits by or against the Government shall be instituted by or against the State Council. 78. No suit shall be instituted against the State Council or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of the State Council or public officer stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left." It is obvious from these provisions that the Bikaner State had consented to the filing of civil suits against it, without any reservation, except that it provided for the issue of a prior notice of two months. That State was therefore clearly liable in tort also. The United State of Rajasthan, which came into existence on April 7, 1949, was equally liable by virtue of sec. 3 of the Rajasthan Administration Ordinance, 1949 (Ordinance No. 1 of 1949), which continued all the existing laws of the covenanting States. There was thus no reservation of any kind regarding the States liability for civil action and by virtue of Art. 300 of the Constitution the same liability was carried over on the commencement of the Constitution. This point has been elaborately dealt with in two Bench decisions of this Court—State of Rajasthan vs. Rikhab Chand Dhariwal(5) and State of Rajasthan vs. Shri Chiranjilal and Shri Chiranji Lal vs. The State of Rajasthan(6) decided on December 7, 1965. The point arose for consideration at the hands of their Lordships of the Supreme Court in State of Rajasthan vs. Mst. Vidhyawati(7) and they made it quite clear that the rule applicable to the liability of the Government of India was not attracted in the case of the State of Rajasthan. That case related to Udaipur. The point arose for consideration at the hands of their Lordships of the Supreme Court in State of Rajasthan vs. Mst. Vidhyawati(7) and they made it quite clear that the rule applicable to the liability of the Government of India was not attracted in the case of the State of Rajasthan. That case related to Udaipur. and in the absence of any provision showing that the State of Rajasthan was not liable by any rule of positive enactment or otherwise, their Lordships held that that State was vicariously liable and upheld the decree in an action in tort. It is therefore beyond doubt that it is not open to the appellant State to claim immunity from an action in tort on the authority of the Peninsular and Oriental Steam Navigation Co. vs. Secretary of State for India-in-Council(4) or Kasturi Lals case(3). 16. However, an ingenuous argument has been made by Mr. Gupta that the maxim "respondent superior" does not apply in the case of a Government servant who purports to act under a statutory power, for he does not act in that capacity as an ordinary agent of the State. The learned counsel has pointed out that the seizure of Zorawarmals chattels was made under the provisions of sec. 23 of the Bikaner Police Act, 1922, for, according to that section, it was the duty of every police officer to take charge of all unclaimed property, and to furnish an inventory thereof to the Nazim of the District. Further, that section directed that the police officers would be guided as to the disposal of such property by such orders as they were to receive from the Nazim. According to Mr. Gupta, the seizure of the goods under memorandum Ex. 2 was made in pursuance of this requirement of the statute and that the Rajasthan State could not therefore be held to be vicariously responsible as laid down by this Court in Rikhabchand Dhariwals case(5). 17. This argument cannot really be allowed to be raised for the first time in this Court because there was no such plea at any earlier stage, so that the respondent did not get an opportunity of showing that the police officers did not make the seizure under sec. 23 of the Bikaner Police Act, 1952. 17. This argument cannot really be allowed to be raised for the first time in this Court because there was no such plea at any earlier stage, so that the respondent did not get an opportunity of showing that the police officers did not make the seizure under sec. 23 of the Bikaner Police Act, 1952. Under that section the police officer had to furnish an inventory of the seized property to the Nazim of the District, who was a higher officer than the Tehsildar, and to dispose of the property according to the Nazims order. But it is beyond dispute that the police, in the present case, made a report to the Tehsildar and the papers were never sent on to Nazim. It was therefore necessary for the defendant to allege and prove the facts which could form the basis of the present argument of Mr. Gupta as it does not relate to a pure question of law and raises a mixed question of law and fact : Ganapathi Bhatta vs. State of Madras now State of Mysore and another (8). 18. Even otherwise, the argument is of no avail in the peculiar circumstances of this case. As has been stated, it is not disputed that the property was seized by way of escheat and so the seizure was beneficial to the State. Moreover the property was in the States custody. The State has not taken the plea that it was lest, or misappropriated or otherwise wasted by one of its employees who should have been sued individually. Its only defence was that the chattels were stolen inspite of all care and attention. That defence has not been proved to be correct. So it was for the State to show what the true facts were and what really prevented it from delivering the property to the plaintiff. Far from setting up any such defence, the State has not even taken the plea that any of its officers was responsible for the loss and that in doing so he acted in the exercise of some statutory authority. The argument of Mr. Gupta cannot therefore avail the appellant. 19. It must therefore be held that it has been proved that the chattels in question were taken in the possession of the defendant State rightfully and that the State is unable, by its own default, to make the delivery. The argument of Mr. Gupta cannot therefore avail the appellant. 19. It must therefore be held that it has been proved that the chattels in question were taken in the possession of the defendant State rightfully and that the State is unable, by its own default, to make the delivery. Whether its default consists in a wilful act of wrongful disposition or mere negligence leading to the loss or destruction of the property, the defendant is, all the same, liable to return the goods or their value. The plaintiff is satisfied with a decree for the value of the goods and there is no dispute about the price. The appeal therefore fails and is dismissed with costs.