P.N. Shinghal, J.
1. Both the courts below having allowed the claim of plaintiff Gangadhar for the recovery of Rs. 2,390/1/-, with costs, against the State of Rajasthan, the defendant has 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 December 13 and December 14, 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 bad escheated to the Slate. They therefore prepared a detailed inventory (Ex. 2) on the 23rd 24th and 25th January. 1949, in the presence of 'motvirs', making it quite clear that the property bad 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 Zorawarmal's 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 Tahsildar of Churu requesting him to take over the escheated property and to lake further necessary proceedings.
Rival claimants approached the Tehsildar with their competing claims for Zorawarmal's properly and the Tahsildar 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 Zorawarmal's heirs held on March, 27, 1952 that Gangadhar the present plaintiff was entitled to inherit Zorawarmal's property. That judgment was upheld by this Court on November 1, 1954. Armed with the Court's 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, hut 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. 2,399/1/- on November 19. 1955, against the Rajasthan State. All these facts are not in dispute and were admitted in the defendant's written statement. It was however pleaded in defence that the article were not worth Rs. 2396/9/- and that the defendant was not liable because they had been stolen in spite 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 Rupees 2,396/9/- and that they were not stolen. He therefore decreed the suit on February 5, 1958 repelling the contention that the Stale was not vicariously liable in tort. The Stale 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 Section 148 of the Contract Act and that the State's liability, as the keeper of the missing goods, was no more than that prescribed by Sections 151 and 152, and as the goods were stolen in spite 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 the Stale, and that, on the other hand, the articles were seized by the police under a municipal law. They were withheld from the plaintiff in spite of his repeated demands. So there was no question of a contractual or quasi-contractual relationship between the parties. The learned counsel therefore based his arguments on the assumption that the plaintiff's 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 mailer 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 Zorawarmal's 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 life 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 Stale, after having once made a concession in the lower appellate court, to turn round and reagitale the plea of theft in this Court.
It may be mentioned that the properly of Zorawarmal was seized by January 25, 1949 and remained in the custody of the Stale upto March 16, 1955. The first information report (Ex. A1) about the alleged theft was made as late as July 4, 1955, after the plaintiff had given a notice under Section 80 of the Code of Civil Procedure for 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 Prabhusingh 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 if 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 fort 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 three being trespass, conversion and replevin. The reason is that where a man deprives another of his properly, he is guilty of what is known as trespass de bonis asportatis when he takes it wrongfully, of detinue when he wrongfully detains the properly, and of conversion when he wrongfully disposes it of. Trespass de bonis asporlatis 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 properly, 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 chatties 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. Bhandari is quite right when he contends that the plaintiff's action is in detinue, because his chattels, it is conceded, were acquired rightfully but were retained wrongfully 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 defendant's initial acquisition has been shown to be lawful, detinue seems 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 period title.
10. The plaintiff has proved that the properly 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 Zorawarmal's properly 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 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 plaintiff's demand. Thus when the plaintiff has proved that he has not been able to gel back the possession of the chattels due to the facts which can be reasonably explained only by attributing a breach of duly 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. R 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 v. Hill, (1919) 1 KB 443 and Houghland v. R. R. Low (Luxury Coaches) Ltd., (1962) 1 QB 694. 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 function of the State and that the Stale is not liable in tort for that reason, The argument has been supported by reference to Kasturi Lal Ralia Ram v. State of Uttar Pradesh, AIR 1965 SC 1039 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 Kusturi Lal's case, AIR 1965 SC 1039 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 1861 in the well known case of the Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India-in-Council, (1868-69) 5 Bom HC App 1 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. 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 Section 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 he 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 those States which are successors of the former British Indian Provinces is therefore on quite a different fooling by virtue of Article 300 of the Constitution
15. In the case of the Indian States, or the so-called Indian India, as it then was, the provisions of Section 65 of the Government of India Act, 1858, 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. Sections 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.
72. 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 lit the office of the State Council or public officer staling 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 Section 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 State's liability for civil action and by virtue of Article 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 v. Rikhabchand Dhariwal, ILR (1960) 10 Raj 784: (AIR 1961 Raj 64) and State of Rajasthan v. Chiranjilal,, First Appeals Nos. 8 and 10 of 1957, D/. 7-12-1965 (Raj). The point arose for consideration at the hands of their Lordships of the Supreme Court in State of Rajasthan v. Mst. Vidhyawati. AIR 1962 SC 938 and they made it quite clear that the rule applicable to the liabilily 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 (1868-69) 5 Bom HC App 1 or Kasiuri Lal's ease. AIR 1965 SC 1039.
16. However, an ingenious 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 Zorawarmal's chattels was made under the provisions of Section 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 properly 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 Dhariwal's case. ILR (1960) 10 Raj 784: (AIR (901 Raj 64).
17. This argument cannot really be allowed to be raised for the first lime in this Court because there was no such plea at any earlier stage, so that the respondent did not gel an opportunity of showing that the police officers did not make the seizure under Section 23 of the Bikaner Police Act, 1922. 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 Nazim's 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 the 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 Bhatia v. State of Madras, AIR 1960 Mys 222.
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 properly was seized by way of escheat and so the seizure was beneficial to the State Moreover the property was in the State's custody. The State has not taken the plea that it was lost, 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 in spite 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 properly 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 hasbeen proved that the chattels in question weretaken in the possession of the defendant State rightfully and that the State is unable, by itsown default, to make the delivery. Whetherits default consists in a wilful act of wrongful disposition or mere negligence leading tothe loss or destruction of the properly, the defendant is all the same, liable in detinue toreturn the goods or their value. The plaintiffis satisfied with a decree for the value of thegoods and there is now no dispute about theprice. The appeal therefore fails and is dismissed with costs.