Decided on May 23,1967

UNTIED SINGH Respondents


- (1.)RAJA Pratapsingh appellant has filed this appeal u/s. 39 of the Jagirs Act, 1952 against the order of the Jagir Commissioner, RAJAsthan Jaipur dt. 12-11-1963. The facts of this case are not in dispute. Briefly the facts are that the village Ugarpura was the jagir of Lichhana Thikana. In Smt. 1855 this village Ugarpura was given on Ijara to Thikana Kuchaman on an annual payment of Rs. 701/- in 'jhadsai' equivalent to Rs. 401/- into kaldar. The amal ki chithi continued to be held by the jagirdars of Lichana Umed Singh and the other respondents. When the jagir of Kuchaman was resumed, the appellant as the holder of this jagir also claimed compensation of the village Ugarpura held by him in ijara. This claim of the appellant was contested u/s 37 of the Jagir Act by the respondents claiming right, title and interest in the village Ugarpura, alleging that they were the jagirdars of the land of the village and the appellant, Thakur of Kuchaman was merely an ijaredar. They should be paid the compensation.
(2.)THE Jagir Commissioner after inquiring into this matter and hearing both the parties came to the conclusion that the ijara of the village Ugarpura was never recognised by the rulers of Jodhpur State. THE agreement of the ijara was only between the two scheduled jagirs which came to an end on the date of resumption. For all purposes the jagirdar of Lichana was the recognised jagirdar of village
Ugarpura and he alone is entitled to the payment of compensation. Aggrieved by this decision Pratapsingh, the Thakur of Kuchaman the present appellant has come in appeal before us. The counsel for the appellant raised two contentions. First was that there was no over-whelming evidence to show that the village Ugarpura remained in possession of the appellant jagirdar for more than 150 years who enjoyed the collection of rent and only paid a small amount of Rs 401/- in kaldar annually to the Lichana Thakur. This was an ijara Istmarar one of the tenures of a jagir as described in the first schedule item 42 of the Jagir Act, 1952.

The second contention was that this ijara Istmarar operated as a sub-grant u/s 2 sub-sec. 2 (g) of the Jagir Act as the Hukamnama fee was paid by the sub-grantee to Thakur of Kuchaman at the time of succession of Lichana Thikana.

The counsel for the respondent countered these contentions by replying that the title of the jagirdar of Kuchaman flows from the ijara document to the village Ugarpura which they received from Thikana Lichana in which purely a ijara or a lease was given to the Thikana Kuchaman and there was no intention of creating an interest of a perpetual nature. The legal ownership of the village Ugarpura remained with the Thikana Lichana.

The reply to the second contention was that an agreement for Ijara entered into between the parties cannot be treated as a sub-grant as the two types of transactions are poles asunder.

We have considered the arguments advanced from both sides and perused the record. As stated above the facts in this case are not much in dispute. The village Ugarpura originally belonged and was possessed and held by the scheduled jagir-dars of Thikana Lichana. They alone gave an ijara of the village Ugarpura to thikana Kuchaman a century and a half back and agreed to receive an annual payment of the ijara money in return for the Thakur of Kuchaman to collect and appropriate the rents of this village for themselves. Thus it can safely be stated that Thakur of Kuchaman did not receive the village Ugarpura by way of a grant from the Sovereign Ruler of Jodhpur. The question that remains to be decided is whether the assignment of the village Ugarpura by Thikana Lichana to Thikana Kuchaman by way of Ijara could be construed a sub grant or it could be termed as an 'ijara' istmarar. As far as the question of sub-grant is concerned, no convincing reasons were given by the counsel for the appellant for treating this transaction of ijara as a sub-grant. The term "sub-grant" is no where defined in the Jagir Act nor in the Tenancy Act. In sec. 2 sub-sec. (g) of the Jagir Act, 1952, jagirdar has been defined as a person recognised as jagirdar under any existing jagir law and includes grantee of a jagir land from a jagirdar. Therefore, before a sub-grantee could be recognised as a jagirdar he must show that there was a grant of an interest in land in the nature of a jagir to him by the parent jagirdar. There is no iota of evidence on this count on the record. The Jagirdar of Lichana has only conveyed an ijara in favour of the Jagirdar of Kuchaman namely to collect rents from the tenants and in return pay an annual rent to the Lichana Thikana. This arrangement was accepted by the Thikana Kuchaman. There is no doubt that this arrangement lasted long. The counsel for the appellant drew our attention to the judgment of the Court Sardaran in 1923 A. D. in which recovery of the ijara amount was made from Thikana Kuchaman. The decree shows that the suit for possession of the ijara village was disallowed. The reasons for disallowing a suit for possession are however not found as no copy of the judgment was produced on behalf of the appellants. Merely, because the decree for possession of the village Ugarpura was refused does not mean that the Thikana Lichana lost all rights to regain the possession of the village Ugarpura and that it became a permanent part of the jagir of Thiakana Kuchaman. This judgment of the Court Sardaran therefore does not support the case of the appellant. Thus there is no substance in the argument of the counsel for the appellant that the ijara of village Ugarpura operated as a sub-grant in the absence of any specific grant.

The second contention of the counsel for the appellant was that on this ijara of the village Ugrapura in favour of Thikana Kuchman could be considered as a jagir land held on any of the tenures specified in the fisrt schedule. Our attention was drawn to the fact that in the first schedule item 42 "ijara Istmarar" exists, which is one of the tenures which is considered as a jagir land. In this connection, the counsel cited A. I. R. 1955 Supreme Court page 504, in the case of Amarsingh vs. the State of Rajasthan. He urged that as there was no certain duration of the ijara was fixed it must be considered as a permanent lease and therefore it was in the nature of an Istmarar. He particularly drew our attention to the portion of the judgment in the case of Thikana Khandel Civil Writ petition No. 392 of 1954 reported in A. I. R. 1955 Supreme Court page 604/537 para 19. In this case Their Lordships laid down that the Thikana Khandela was given an ijara by the former Jaipur State. This grant of ijara was not a grant for services rendered or to be rendered. The grantees were only to enjoy the income from the lands and pay a fixed annual amount to Darbar. The estate had some of the incidents of the jagir tenure attached to it such as in matters of succession it was to be governed by Matmi Rules. Their lordships therefore held that all this do not affect the characteristics of the estate and therefore, they held this type of estate do not fall within the definition of the jagir and the Notification of the Government resuming this property was therefore unauthorised. Even at that time the contention of Mr. Pathak the Advocate on behalf of the Government that this Ijara may be treated as an Istmarari tenure was not accepted as the Khandela tenure was not an Istmarari tenure because the essential features of the Istmarari tenure were that the lands are assessed to nominal quit rent in perpetuity. The assessment for Thikana Khandela was not nominal, but substantial. Further it was not a permanently assessed. The question is whether the tenure in question before us created by Thikana in favour of Thikana Kuchaman is an istmarari tenure or not. The payment of Rs. 701/- or Rs. 401/- in Kaldar annually by Kuchaman to Lichana Thikana cannot in our opinion be considered as a nominal quit rent. Further there are no words in the patta to indicate that the tenure was intended to be permanent, or perpetuity.

We therefore, hold that this ijara in favour of Thikana Kuchaman was not an Istmarar tenure. The case of Raila Sangramsingh vs. the State of Rajasthan decided by the High Court of Rajasthan in writ No. 499/1962 on 24-8-1964 was also brought to our notice. The facts of this case differ from the present one. In the Raila's case which was a village originally granted by the Mughal Emperors to the Shrine of Dargah in Ajmer. In turn the Dargah created an ijara istmarar in favour of the Deogarh Thikana. After the lapse of the Sovereign Mughal power the village passed into the territory of the Maharana of Udaipur and an attempt was made by the Dargah to terminate the ijara in favour of Deogarh and take over the control of the village Raila. The Sovereign Rulers of Udaipur turned down this request and made arrangements that the village Raila would remain with Thikana Deogarh in the ijara Istmarar and the Dargah would only be entitled to an annuity. Thus the title of ijara istmararship on the Thikana of Deogarh was conferred by the Sovereign power of the Udaipur State in that case subject to the payment of annuity to the Dargah. In the present case no such intervention of the sovereign ruler of Jodhpur took place conferring on the Thakur of Kuchaman the status of a ijara istmarar subject to the payment of rent annually by the Thikana Kuchaman. Therefore, the original agreement for the management of Ugarpura village between the parties continued unchanged. Therefore, we cannot hold that Thikana Kuchaman acquired istmarari rights over the village in question merely because they happened to continue in long possession. It is not the long possession that gives permanency; but the parties to the contract must be clear in their mind that they were making the arrangements permanent i. e. for ever and not for a definite period. The interest, as the counsel for the respondent rightly stated was terminable and revertable to the person creating the ijara. Ijara means lease granted for collection of rent. Therefore in our opinion the actual transaction that took place between the Thikana of Lichana and Kuchaman was only to create an ijara and not an ijara Istmarar or even an istmarari interest. The ijara in our opinion cannot fall within the definition of a jagir land so as to give the appellant a right to receive payment of compensation. The counsel for the respondent however in support further stated that the provisions of the Marwar Land Revenue Act only certified and consolidated the old laws and therefore the ijara of Ugarpura village by Lichana to Thikana Kuchaman cannot be treated as a permanent alienation of the estate. The counsel for the appellant tried to meet this argument by saying that the provisions of the Marwar Land Revenue Act could not be given retrospective effect. This argument cannot be accepted unless the appellant could establish that before the enactment of the Marwar Land Revenue Act, the Jagirs in the Marwar State were freely alienable or a permanent Istmarari interest could be created out of jagir estates. No such case has been made out by the counsel for the appellant. In fact the principle of inalienability of a jagir is an accepted principle and there are no exceptions to this rule. Thus we are clearly of the opinion that the ijara created by Thikana Lichana did not result into an istmarari estate so as to convert this estate into a jagir land so as to enable the appellant holding this estate to claim compensation for the resumption of this village. The legal ownership of this village therefore remains with Thikana Lichana and they alone are entitled to the payment of its compensation.

We, therefore, see no reason to interfere with the order passed by the Jagir Commissioner. The appeal of the appellant is accordingly rejected. .

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