SARJOO PROSAD, C. J. - (1.)THIS application under Article 226 of the Constitution has been presented to obtain a writ of the certiorari quashing the order of the Board of Revenue dated 28th July, 1960.
(2.)THE brief facts ate that Mst. Gaindi, the respondent No. 3, filed a suit against the petitioners in the Court of the Sub Divisional Officer of Bharatpur on roth October, 1955, in which she prayed for a declaration that she was in cultivating possession of the disputed lands and also for an injunction restraining the defendants from interfering with her possession. THE lands in suit cover an area of 31 bighas and 5 biswas and are comprised in various khasras. THE defendants-petitioners who contested that suit claimed that they had tenancy rights in the land and as such they could not be dispossessed. THE learned Sub-Divisional Officer by his judgment dated nth November, 1954, dismissed the suit; but on appeal the Additional Commissioner, Jaipur, by his judgment dated 31st July, 1956, decreed the same. It Was held by the latter that the plaintiff was entitled to get possession of the land and that the defendants had no tenancy rights therein. Against that decision the petitioners carried an appeal to the Board of Revenue and the said Board by its judgment dated 28th July, 1960, eventually dismissed the appeal and upheld the order of the Additional Commissioner decreeing the plaintiff's suit.
It may be stated at this stage that during the pendency of the appeal before the Board of Revenue, the Rajasthan Zamindari and Biswedari Abolition Act, 1959 (Act No. 8 of 1959 - hereinafter called the Act) came into force. This was on the 1st of November, 1959 and by virtue of a Notification issued on the authority of the Act the proprietary or the Biswedari rights in the land vested in the State Government. It was accordingly represented to the Board by the parties that by operation of sec. 5 of the said Act, the hearing of the appeal should be stayed and the appeal should be held to have abated. The petitioners' counsel took time to argue the matter and the case was fixed for disposal on the 20th of July, 1960. On that date it is stated by the petitioners that arguments were heard and judgment was reserved; but according to the submission of the petitioners the Board of Revenue without deciding about the application of sec. 5 of the Act dismissed the appeal on merits by the order in question. Accordingly the petitioners have moved this Court; and the main ground on which the order of the Board of Revenue is sought to be quashed is that sec. 5 of the Act applied to the case and under R. 5 of the Rules framed thereunder not only the appeal but the entire suit abated, and in any case the Board of Revenue had no jurisdiction to decide the matter without making the State Government in whom the property had vested a party to the suit or proceeding.

Mr. Yadav for the petitioners has drawn our attention to the relevant provisions of the Act. The Act sought to abolish Zamindari and Biswedari estates in Rajasthan and provided that the estates held by the Zamindars and Biswedars in the State should be acquired by the State Government. As already stated earlier, the Act came into force by virtue of a Notification made by the State Government on the 1st of November, 1959. Section 4 of the Act provides that as soon as may be, after the commencement of the Act, the State Govt. may, by Notification in the Official Gazette, appoint a date for the abolition and acquisition of Zam-indari and Biswedari estates specified in the Notification and for their vesting in the State Government. In this case, a Notification as contemplated by sub-sec. (1) of sec. 4 was issued on the 3rd of November, 1959, by virtue of which the vesting of the estate took place on the 15th day of November, 1959. The consequence of vesting is provided for by sec. 5 of the Act. This section says that after the issue of the above Notification the right, title or interest of the Zamindar or Biswedar vested in the State Government. Cl. (1) of sub-sec. (2) of the section, which is particularly relevant for the purposes of this case, provides: "subject to any rules made in this behalf, all suits and proceedings relating to such estate pending in any court, civil or revenue, at the date of vesting, and all proceedings consequent upon any decree or order passed in any such suit or proceeding before such date shall be stayed. " Cl. (1) was subsequently amended by Act 35 of 1960 on the 26th of September, 1960. This amendment came into force after the passing of the order of the Board of Revenue, and, therefore, the amendment is not material unless we hold that sec. 5 of the Act applied and in consequence the order of the Board of Revenue had to be quashed and the case remanded for disposal according to the law as it stands at present. It may be mentioned in passing that the effect of the amendment is that in such a proceeding the Government should be made a party before any further action can be taken in the matter.

Mr. Yadav contendes that in view of the said provision, the Board of Revenue had no further jurisdiction to proceed with the hearing of the appeal as the entire suit or proceed-ingliad abated. In particular reliance has been placed by the learned counsel on R. 5 of the Rules framed under the Act in question, which specifically enjoins that - "every suit or proceeding whether pending in the court of first instance or in appeal or on revision, stayed under clause (1) of sub-sec. (2) of sec. 5 of the Act shall be abated by the court or the authority before which it may be pending after giving notice to the parties and giving them an opportunity of being heard. " If the Act and the Rules apply, there can be no doubt that the contention of Mr. Yadav is well-founded, but the question is whether the suit in question realates to a dispute as to Zamindari or Biswedari interest between the claimants. Our attention has been drawn to the recitals in the plaint and attempt has been made to show that the plaintiff claimed to recover possession of the disputed land on the basis that she was the proprietor of the land and as such entitled to evict the defendants who claimed tenancy right therein. Reference has been made to the nature of the claim which is to the following effect: - "that since 2010 Samwat the 31 bighas and 4 biswas of land is the Kasht of the plaintiff and the defendants have no tenancy rights therein, and, therefore, the defendants have no right to interfere with the possession or cultivation of the plaintiff. " In paragraph 1 of the plaint the recital further is that the disputed land is the ''milkiyat Maqbooza" of the plaintiff. Stress has been laid by the learned counsel upon this description in the plaint. The recitals in the plaint taken as a whole do not support the contention of the petitioners. The mere use of the word "milkiyat maqbooza" does not necessarily connote that the interest referred to is the Zamindari or Biswedari interest. The words may only mean what they say, namely the possessory title of the plaintiff. We have examined the judgment of the learned Additional Commissioner as also the judgment of the Board of Revenue and ' we feel satisfied that on the case of the parties sec. 5 would have no application to the case in question. As stated by the Additional Commissioner it is an admitted fact that the plaintiff Mst. Gaindi had gifted away the disputed land to her daughter's sons by a deed of gift dated 20th of may, 1945, and on the basis thereof mutation had been effected in favour of Nannu and Roop Singh by order dated 6th November, 1951. Thus the Zamindari or Biswedari interest stood transferred to her grandsons; but her case was that inspite of the gift she continued to cultivate the disputed land. She further said that at first she cultivated it in Sajedari of Girdhar, but when Girdhar surrendered or gave up cultivation of the land, Mst. Gaindi cultivated it herself and was in actual possession of the disputed land. The defendants who are the heirs of Girdhar| claimed on the contrary that they had acquired tenancy rights under the plaintiff and, therefore] they could not be evicted therefrom. It appears, therefore, that the case as tried by the courts below was on the footing that the plaintiff had possessory title to the disputed land of which she claimed to be in cultivation, while the defendants claimed to be the tenants of the land in question. In a suit of this nature the proprietary interest was not in question at all. The proprietary interest had already been gifted away on the both parties to the daugter's sons of the plaintiff who had been duly mutated. The Additional Commissioner as well as the Board of Revenue on the facts held that the plaintiff was in cultivating possession and the defendants had failed to establish their tenancy. The Board of Revenue observes as follows: - "it is true that the respondent had gifted away her property to her daughter's sons and that she also got mutation recorded in their names. It is however clear from the statement of the plaintiff and her witnesses and the admission made by Gorkhi defendant that inspite of this gift she remained in possession of the land and continued to cultivate it herself or admit 'sajidas as and when required in Samwat 2010 and 2011 and 2012. The fact that Gorkhi was admitted by her is not denied by the defendant appellants Nos. 1, and 3. In fact they claimed tenancy, if any, from their father who has since died. This leads to the inevitable conclusion that the plaintiff inspite of having gifted the property to her daughter's sons continued to cultivate the same herself. The proprietary rights of the plaintiff alone were in fact gifted where as the cultivatory rights were kept reserved in herself. There is nothing in law which could prevent her from doing so or would have otherwise abrogated the gift. " Mr. Yadav, however, relies upon certain observations made in the later part of the judgment where the Board says that the respondent who was the full proprietor of the land had by a registered instrument duly signed and attested made a gift of the same and if she was in possession of the land and cultivated it "the same shall be regarded as having been done on behalf of the donee". This was only a part of the reasoning of the Board of Revenue and not in substance the finding of the Board, because later on the Board again points out that even after making the gift the respondent continued to cultivate the land and, therefore, she was justified in instituting the suit against the defendants. Then the Board examined the evidence in the case and held that Girdhar had surrendered in favour of the plaintiff who was thereafter in cultivation of the entire area. In view of these findings we are unable to hold that sec. 5 of the Act applied to the case at all, and that there was any error of jurisdiction on the part of the Board of Revenue in not applying the provisions of that section. In our opinion, there is no error of jurisdiction or error apparent on the face of the record which would justify our interference by a writ. We accordingly reject this application. No one appears for the respondents and, therefore, there will be no order as to costs. .

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