(1.) THIS appeal arises out of a suit which was filed by the plaintiff-respondent thakur Bharatsingh for recovery of Rs. 13,472. 50 paise against the defendant-appellant. Bharatsingh died during the pendency of the appeal and his legal representatives have been substituted in his place. The suit was based on the facts that the plaintiff was a Guzaredar of the defendant who held a jagir known as mangalgarh jagir. The plaintiff was in possession and enjoyment of income of a part of the village Ankia of the jagir in lieu of Guzara until the abolition of the jagir. In order to induce the Jagirdars to voluntarily surrender their jagirs, the government of the erstwhile State of Bhopal, where the jagir was situated, offered to pay Mansab or cash annuity to a Jagirdar in the event of his voluntarily surrendering the jagir and applying for conversion of the same into Mansab. The defendant took advantage of this offer and surrendered his lagir to the State. By an order of the State Government dated 12th August, 1953 he was granted mansab or cash annuity of Rs. 21,507/11/-per year payable in two equal six monthly instalments during his life. The plaintiff being a Guzaredar of the jagir, became entitled to receive out of the Mansab payable to the Jagirdar such amount for maintenance as may be fixed by the Jagir Commissioner under Section 10 read with Section 45-A of the Bhopal Abolition of Jagirs and Land Reforms Act, 1953. On an application made by the plaintiff, the Jagir Commissioner by his order dated 8th March, 1954 fixed the maintenance allowance payable under Section 10 at Rs. 2,129/8/- per year in two equal six monthly instalments out of the Mansab received by the defendant from the State. In spite of this order, the defendant did not pay the maintenance allowance, although he had received from 1st April, 1954 upto the date of the suit eleven six monthly instalments of his Mansab. The plaintiff, therefore, claimed that he be granted a decree for recovery of the arrears of maintenance allowance amounting to Rs. 13,472. 50 paise. The defendant in answer to the suit denied that the plaintiff was a Guzaredar. He also contended that the order of the Jagir Commissioner fixing the maintenance allowance was without jurisdiction, was not based on any law, had no legal force and was a nullity. A further plea was raised that the suit was barred by limitation. The second Additional District Judge, Bhopal, who tried the suit, held on all the points in favour of the plaintiff and decreed the entire suit. Aggrieved from that decree the defendant has come up in appeal to this Court.
(2.) THE first contention of the learned counsel for the appellant is that the order of the Jagir Commissioner was a nullity and no suit could be based on it. The learned counsel points out three infirmities in the order of the Jagir Commissioner in support of this contention. It is first submitted that on a true construction. Section 10 of the Act applies only to persons who were receiving maintenance allowance in cash from the income of the Jagirs and the Jagir Commissioner misconstrued the section and applied it to the plaintiff who on his own admission was not receiving any maintenance allowance in cash but was in possession of a jagir village for purposes of his maintenance. The second defect pointed out is that the plaintiff was not in fact a Guzare-dar or a person entitled to receive maintenance allowance in cash or otherwise under any law, rule or custom and the Jagir Commissioner wrongly found this fact in favour of the plaintiff. Lastly it is said that the Jagir commissioner did not take into consideration the various matters mentioned in clauses (i) to (iv) of Section 10 and Clauses (a) to (g) of Rule 21 (1), which he was bound to take into consideration before fixing the maintenance allowance. According to the learned counsel, by reason of these three infirmities the order of the Jagir Commissioner though purporting to be under Section 10 was in reality not an order under that Section and was a nullity. The learned counsel for the respondents in answer submits that the order of the Jagir Commissioner was immune from challenge in the Civil Court and he relies for this submission on section 39 of the Act. He also disputes the existence of the infirmities pointed out by the learned counsel for the appellant in the order.
(3.) TO appreciate the rival contentions, it is necessary first to advert to the relevant provisions of the Bhopal Abolition of Jagirs and Land Reforms Act, 1953. The Act as originally enacted did not apply to Jagirs converted into Mansab. By Bhopal Act no. 11 of 1954, Section 45-A was inserted in the Act had the effect of applying certain provisions of the Act with necessary modifications to Jagirdars whose Jagir lands were converted into Mansab. Section 10 which provides for fixation of maintenance payable out of Mansab to a person who was entitled to receive maintenance allowance from the income of the Jagir and which is the main section under consideration in this case, reads as follows:
"section 10. Amount of Maintenance.-- Any person who, under any law, rules or any custom having the force of law, is entitled to receive a maintenance allowance out of the income of any Jagir, shall be entitled to receive, out of the Mansab payable to the Jagirdar, such amount for maintenance annually, as the Jagir Commissioner may fix after taking into consideration- (i) the amount of maintenance allowance which that person used to receive from the jagirdar before the date of conversion into Man-sab; (ii) The net income of the jagirdar from the Jagir at the time of fixing the said maintenance allowance; (iii) the net amount of Mansab payableto the iagirdar; and (iv) such other matters as may be prescribed. " (N. B. The section is quoted as amended by Section 45-A.)Section 11, which follows Section 10, makes provision for payment to a co-sharer a share out of Mansab payable to a iagirdar in proportion to the share that the cosharer was receiving from the jagir income before its conversion into Mansab. Provision for allotment of Khud-Kasht land finds place in Chapter IV. Sections 19 to 22 in this Chapter deal with allotment of Khud-Kasht land for personal cultivation of the jagirdar. Section 23, which is also in this Chapter, deals with khud-Kasht land granted by a jagirdar to a person in lieu of maintenance and such land if in personal cultivation of such person is to be allotted to him. The section reads as follows:
"section 23. Khud-Kasht allotted in lieu of maintenance allowance.-- Any khud-kasht land granted by a jagirdar to a person in lieu of maintenance allowance payable from the jagir lands which is under the personal cultivation of such person on the date immediately preceding the date of conversion into Mansab, shall be deemed to be settled on such person as an occupant on payment of land revenue at the village rate. " (N. B. The section is quoted as amended by Section 45-A.)Chapter V of the Act deals with miscellaneous matters. Sections 25 to 27 provide for appeals, but an order of the Jagir Commissioner under Section 10 is not made appealable. Section 29 confers upon the officers, holding inquiries under the Act, powers of a Civil Court under the Code of Civil Procedure, 1908 relating to (a)proof of facts by affidavits; (b) enforcing attendance of any person and his examination on oath; (c) production of documents: and (d) issuing of commissions. As laid down in Section 43, the Jagir Commissioner and other officers holding an inquiry under the Act are required to follow, as far as may be, the procedure applicable to proceedings under the Bhopal State Land Revenue Act, 1932 and have the same powers in relation to proceedings before them which a revenue Officer has in relation to original proceedings under the said Act. Bar of jurisdiction of Civil Courts is enacted in Section 39, which is as under:
"section 39. Bar of Jurisdiction of Civil Courts.- (1) Save as otherwise provided in this Act no Civil or Revenue Court shall have jurisdictions to settle, decide, or deal with any question which is, by or under this Act, required to be settled, decided or dealt with by the State Government, the Tahsildar, the Collector, the Jagir commissioner or the Revenue Commissioner. (2) Except as otherwise provided in this Act, no order of the State government, a Tahsildar, a Collector, the Jagir Commissioner or the revenue Commissioner under this Act shall be called in question in any court," under the powers conferred by Section 46 and other sections, the State government has framed Rules known as the Bhopal Abolition of Jagirs and Land reforms Rules, 1953. Rule, 21 of these rules is relatable to Section 10 of the Act and reads as follows: "21. (1) The Jagir Commissioner in fixing the amount of maintenance under Section 10 of the Act shall, in addition to the matters specified in that section, also take into consideration the following matters, namely:- (a) the relationship of the person claim-ins maintenance allowance, to the Jagirdars; (b) the terms and conditions, if any, mentioned in the Sanad or Iqrarnama about the maintenance allowance payable to any person; (c) any orders of the Ruler or the Government or a Court of law regarding the payment of maintenance allowance out of the income of the Jagirdar: (d) the prevailing prices of essential commodities as defined in clause 3 (1) of the Bhopal Essential Supplies Temporary powers Act of 1946; (e) the income of the Jagirdar from khudkasht and other sources; (f) area of land in and out of the Jagir held by the person claiming maintenance allowance; and (g) the minimum requirements of the person entitled to a maintenance allowance out of the income of the jagir concerned and the minimum requirements of the Jagirdar and the members of his family. (2) The amount of maintenance allowance shall be payable out of the instalments of compensation payable to the Jagirdar for such period only as the payment of instalments of compensation continues. Ordinarily the amount of maintenance allowance payable to a person fixed under this rule will bear the same proportion to the annual instalment payable to the Jagirdar, as the amount of maintenance allowance which that person used to receive from the Jagirdar before the date of resumption, bears to the Sanadi income of the jagir. ";