- (1.) THIS is one of the few unfortunate cases which was instituted on 27. 3. 1939 but could not be finally disposed of for one reason or the other. The brief facts are as follows: -
(2.) THE Jagirdar of Thikana Bisalpur who is respondent before us in this second appeal filed a suit against the appellants in the court of the Assistant Revenue Officer Bali with the allegations that the suit-land which was once held by one Sadul Singh in Chhutbhai Bunt of the Thikana reverted to the Thikana by escheat on account of the heirless death of the said Chhutbhai, by an order of the then Chief Court of the Jodhpur State dated 2. 3. 1914 and put in possession of the Thikana some time on or about 27. 8. 1917. THE Thikana had ever since remained in possession of the said land. In Svt. 1989 Jawahar Singh the father of the present appellants Peerdan Singh, Mangal Singh, Shambhu Singh and Hira Singh, was given this land by the Thikana with the stipulation that he would construct a well for supplying drinking water to the cattle of the village and if any portion of this land were to be cultivated, the Thikana would be entitled to recover rent according to the prevailing practice from the said Jawahar Singh. This well was constructed and it was named as Shiv Sagar. THE land was cultivated in Svt. 1992 and on demand no rent was paid to the Thikana. A suit was accordingly filed for recovery of arrears of rent at the rate of one fifth of the produce worth Rs. 222/-and it was also prayed that the appellant-defendant be ejected from the land. THE appellant-defedants denied the terms on which the land was given to them and claimed that the land in question belonged to them in their own rights as sub-grantee of the Thikana over which they had constructed a well and cultivated the Jao and appropriated the profits to themselves. As regards the decision of the Chief Court of the former Jodhpur State, it was pointed out that it did not concern the land in dispute. THE trial court struck four issues which for purposes of further discussion of the points involved in this appeal may with advantage be translated as below : - Issue No. 1 : - Whether the defendants constructed a well (Shiv Sagar) in Svt. 1989 in the land belonging to the plaintiff by his permission on the condition that it will be used for drinking purposes by the village cattle and in the event of cultivation of the land under which rent shall be paid according to the custom prevailing in the village. Issue No. 2 : - Whether the defendants had been cultivating the land since 1992 and whether the plaintiff was entitled to recover arrears of rent amounting to Rs. 222/- for the period of four years. Issue No. 3 : - Whether in the event of the defendants' refusal the pay the arrears of rent, the plaintiff was entitled to eject the defendants and recover possession over the well known as Shiv Sagar. Issue No. 4 : - To what relief the plaintiff was entitled. THE oral and documentary evidence of the parties was recorded by the trial court. It will be unnecessary to state here the dilatory tactics-adopted by the both parties which kept this case pending all along. When the evidence of the parties had been almost completed, an application was put up on 15. 12. 56 on behalf of the defendant-appellants in which they stated that as the Thikana has since been resumed under the Rajasthan Land Reforms and Resumption of Jagirs Act, the plaintiff had no locus-standi to prosecute the present suit in terms of section 22 of the Act and that the right, title and interest of the parties could now be examined only by the Jagir Commissioner according to the provisions of section 47 of the Act. It was also pleaded that no revenue court was competent with the the trial of the suit as it was so barred. Arguments were heard on this application and the trial court observed that as one of the main questions to be decided in the suit, was whether the well Shiv Sagar stood resumed to the Government or not, provisions of section 46 of the Act were attracted and the Jagir Commissioner alone was competent to try and dispose of the dispute. Accordingly the suits was dismissed. An appeal was filed by the plaintiff before the learned Additional Commissioner Jodhpur who after examining the provisions of section 22 of the Rajasthan Land Reforms and Resumption of Jagir Act 1952 held that its sub-sec. 2 does not bar the recovery of arrears of rent or revenue by a Jagirdar from a tenant for a period prior to the commencement of the agricultural year in which the date of resumption fell. It also observed that as the land was given by the Thikana to appellant under an agreement that if they cultivated it they would pay 'hasil' according to the custom of the village the relationship of a landlord and a tenant was established. It further observed that if the appellant claimed that this land belongs to them and not to respondent, this question can be decided by the lower court. The appeal was, in the result, allowed and the case was remanded to the lower court for further proceedings according to law. The defendant has come in second appeal before us against the aforesaid appellate decision of the learned Additional Commissioner. The main contention of the learned counsel for the appellant is that the parties have been claiming this land in their Jagir and Sub-grant respectively, and this question, after the resumption of the Thikana, could only be decided by the Jagir Commissioner in terms of sec. 37 of the Rajasthan Land Reforms and Resumption of Jagirs Act. Shri Mehta's submission, therefore, is that the present litigation involves a serious question of title relating to certain land which is claimed by the parties in their Jagir for which the parties have already filed their claim for compensation etc. before the Jagir Commissioner under the Land Reforms and Resumption of Jagirs Act, and as the question of title has not so far been decided by a competent authority, the provisions of sec. 37 of the Act are attracted and no Civil or Revenue Court had jurisdiction at this date to decide the question of title which is required to be decided by the Jagir Commissioner under the said Act. It was urged that in this view, the suit should either be dismissed or kept pending until the question of title is decided by the Jagir Commissioner. In support of this contention he relied on RLW 1958 page 580. The learned counsel for the respondent, however, repelled this contention and urged that as he had filed the present suit against the appellant for their ejectment as trespasser and recovery of rent, it was exclusively triable by a revenue court and the present application was filed by the appellant simply to oust the jurisdiction of a revenue court and to prolong the litigation which is already pending for the last 20 years in a mala fide manner. We have given our anxious thought to this controversy, A plain reading of the pleadings undoubtedly shows that the present litigation related to certain land which is claimed by the appellant as their sub-grant but which, on the other hand, is claimed by the respondent Jagirdar as part and parcel of the Jagir. The Jagir of the. respondent has admittedly been resumed under the Jagir Resumption Act and question of compensation is as stated at the bar before the Jagir Commissioner. Further the question whether this land belongs to the Jagirdar respondent or the appellant has not been conclusively decided by a competent court. The decision of the Chief Court of the former Jodhpur State, as it reads, does not throw any light whether the present suit-land was held to be in the Jagir of the plaintiff-respondent or in that of the appellant. This being so, it is difficult to see how the application of sec. 37 of the Jagir Resumption Act can be resisted or avoided in the present case. The learned counsel for the respondent was indeed unable to point out any circumstances which might lead to a different view in the matter. On the authority of RLW 1958 page 580, we, therefore, hold that neither the Civil Court nor a Revenue Court had authority to decide the issue of title involved in the present case and the proper authority to decide it now is the Jagir Commissioner in accordance with the provisions of sec. 37 of the Jagir Resumption Act. This would, however, raise another issue namely whether the present suit of the plaintiff shall stand dismissed or that it shall await the decision of the Jagir Commissioner regarding the title of the parties. An answer to it may be rather unfortunate for the parties but in the circumstances of the case it is inevitable that the present suit shall be kept pending in the court of the Assistant Collector concerned who will then proceed with the trial of the case according to the decision of the Jagir Commissioner. If it is decided in favour of the plaintiff then the suit subject to the provisions of sec. 22 of the Rajasthan Land Reforms and Resumption of Jagirs Act could be decreed to the extent permissible under the law. In case, however, if the plaintiff-respondent lose their case on the question of title other questions which are dependent on it may not arise for decision at all. For these reasons we dismiss this appeal and direct that the parties should in the first instance get their title determined by the Jagir Commissioner and until this issue is decided, the suit shall remain pending with the Assistant Collector who will then proceed with the trial of the suit and dispose it of in the manner as indicated above. .;