- (1.) THIS revision has been filed by 17 petitioners Shri Nanuram etc. all residents of Lachipura against an appellate order of the Commissioner, Udaipur dated 29. 6. 59 whereby he rejected the appeal against an order of the Collector, Chittorgarh, dated 3. 9. 1959. We have heard the counsel for the parties and examined the record carefully.
(2.) THE facts of the case are very simple. In village Barada there is a plot No. (9) measuring 204 Bighas THE village was settled in Samvat year 2008 and the entire area of this plot was entered in the settlement record as Charnot Mehfooz. At that time the village was in the Jagir. It appears the Jagirdar raised no objection thereto. Subsequently, it appears, the Jagirdar issued pattas in respect of a portion of this field measuring 74 Bighas. THEse Pattas were in the names of the minor sons of the Jagirdar and a few other persons. On the strength of the Pattas a mutation in revenue records was claimed. THE Teh-sildar in the first instance refused mutation on the ground that the land in dispute was Charnot Mehfooz and therefore no cultivatory rights could be granted therein. On appeal, the Collector remanded the case to the Tehsildar for fresh decision whereupon the Tehsildar allowed mutation. From this order the present petitioners went in appeal before the learned Collector and it appears that the learned Collector by his order dated 3. 9. 1959 set aside the order of the Tehsildar holding that the land in dispute was Charnot Mehfooz and could not be released or allotted for cultivation. For the time being the matter appears to have rested at that stage. But sometime after the Gram Panchayat at the instance of the Patta holders from the Jagirdar applied to the Collector that the area measuring 74 Bighas having been brought in cultivation fresh area bringing the total upto 204 Bighas may be reserved for village Charnot. THE learned Collector thereupon by his order dated 5. 12. 1959, allowed the 74 Bighas from Khasra No. 9 to be excluded from Charnot Mehfooz and in lieu thereof permitted the area of some other plots measuring 82 Bighas 92 Biswas to be included in the village Charnot. In ordering this arrangement, the learned Collector as he says in his judgment, has been influenced by a common recommendation of the Sub Divisional Officer as well as the Gram Panchayat. THEre is no doubt that there was a common recommendation of Sub Divisional Officer as well as the Gram Panchayat. But there were also the Collector's own orders dated 3. 9. 1959,wherein he had clearly stated that the area in dispute haying been recorded as Mehfooz Charnot at the time of a settlement could not be released for cultivation. However, there was art appeal from this order before the learned Commissioner, and the learned Commissioner taking the view of the matter that the Collector was competent to sanction this arrangement dismissed the appeal. We are constrained to remark at the very outset that both the learned Collector and the learned Commissioner are seriously in error in approaching the case in its proper perspective. The complaint from the very beginning was that 74 Bighas of Khasra No. 9 were recorded as Mehfooz Charnot in settlement and the Jagirdar had no right to issue Pattas in respect of this area. The learned Commissioner appears to have viewed the case as one falling under Sec. 92 of the Rajasthan Land Revenue Act because he thought that the dispute related to the Collector's power of ear-marking the fresh area of 82 Bighas for Charnot and not to exclusion of 74 Bighas already recorded as Charnot Mehfooz. He thus failed to appreciate the real controversy in the matter and his conclusion therefore was erroneous and unmaintainable. In this connection a reference might be made to the Government of Rajasthan Rules made under the Rajasthan Tenancy Act, 1955 Chapter II. In this Chapter, rules have been made to give effect to the provisions of clause 20 of Sec. 5 and the Rule 3 read as follows: - "land recorded as Gochar Bhoomi in the village papers or in the settlement record shall continue jo be shown as such. " Sub-rule 2 of the rule 4 is also relevant which reads as follows: - "in cases where the village Birs of Jagirdars are used exclusively for the grazing of village cattle and no grass is cut out of it, it shall be recorded as "ghair Mumkin Char agah" and excluded from assessment. " The combined effect of both these rules is that this disputed area of 74 Bighas must have continued to be shown in the settlement record and the record of rights as Gochar Bhoomi and must have been excluded from assessment. These take away all jurisdiction from Revenue Courts to exclude areas recorded Charagah and release them for cultivation i. e. bring them under assessment. We have therefore, no hesitation in saying that the learned Commissioner in upholding the order of Collector is so far as it related to the exclusion of 74 Bighas from village Charagah acted without jurisdiction. As regards the learned Collector we cannot help expressing our surprise that having come to a right conclusion on 3. 9. 59, he should have changed his mind on 5. 12. 59 hardly within three months of his first proper and correct order. We, therefore accept this revision, set aside the orders of the courts below and direct that the 74 Bighas of Khasra No. 9 shall continue to be recorded in the Settlement record and shown in the records of rights Gochar Bhoomi and will not be released for cultivation. .;