- (1.) THIS is an appeal against the order of Deputy Collector, Jagir, Churu dated 17. 2. 61 by which he has held the respondent Bhoor Singh to be the heir, u/s. 38 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (hereinafter referred to as the Act) of the deceased Smt. Phool Kanwar.
(2.) THE appellants claim to have better title to the heirship of deceased jagirdar Phool Kanwar on the basis of the genealogical tree and assail the impugned order on the ground that the enquiry in the prescribed manner as envisaged u/s. 38 of the Act was not held by the Dy. Collector. We have examined the record. It appears thereby that the respondent Bhoor Singh made an application that Musammat Phool Kanwar had died and it was he who attended on her and performed the necessary ceremonies after her death and, therefore, he was entitled to be declared to be the heir. THE learned Deputy Collector only recorded the statement of the respondent, which too it appears was recorded not by himself but somebody in the office and which was not even attested and verified to have been read over and admitted to be correct by the learned Deputy Collector himself. THEreafter, he issued a notice inviting objections to the declaration of Bhoor Singh as the heir of the deceased Mst. Phool Kanwar, which was got published only in the Rajasthan Gazette and not proclaimed or made known to all parties interested in any other manner. No objection was preferred in response to the notice. THE learned Dy. Collector, therefore, after lapse of some more time, which was perhaps due to remissness on the part of his office, granted a succession certificate to the respondent Bhoor Singh. THE only reason stated in the order is that no claim had been preferred in response to the notice and, therefore, the respondent was recognised as heir u/s. 38 of the Act. Now, when a Jagirdar to whom compensation is payable under the Act dies before full payment thereof to him, the compensation payable has to be paid "to the person or persons found by the Collector upon enquiry in the prescribed manner to be the heir or heirs of the deceased Jagirdar according to his personal law. " This provision is subject to the proviso that in cases in which the question of such succession or heirship is in dispute the Collector is to direct the claimants to have their respective title adjudicated upon by a competent civil court. The manner of enquiry is prescribed in the Rajasthan Land Reforms and Resumption of Jagirs Rules, 1954. Rule 42 A deals with the enquiry into such cases of succession. Vide sub-Rule (1) the Collector having jurisdiction over the places where the deceased Jagirdar usually resided shall issue a notice calling upon all persons claiming to be the heir or heirs of the deceased Jagirdar to appear and prove their claims before the Collector on a date and at time and place to be specified in the notice. Vide sub-Rule (2) the notice shall be served on all persons appearing to be entitled to payment of whole or any part of the unpaid compensation that was payable to the deceased Jagirdar, and shall also be published in the Rajasthan Gazette. Vide sub-Rule (3) the Collector shall hear such persons as may appear before him on the date and at the time fixed for hearing or on such other date on which the hearing may be adjourned from time to time and then determine person or persons entitled to payment of the compensation payable subject to the proviso that where the succession or heirship according to the personal law of the deceased Jagirdar be in dispute the claimants shall be directed to have their respective title adjudicated upon by a competent civil court and in such cases the payment shall be made in accordance with such adjudications. The Collector, which term includes vide Rule 45 A also a Dy. Collector Jagir, is thus first to issue a notice calling upon all persons claiming to be the heir of the deceased Jagirdar to appear and prove their claims. Notice so issued has to be served on all persons appearing to be entitled to the payment of the compensation payable. It is, besides, to be published in the Rajasthan Gazette as well. Thus the publication of the notice in the Rajasthan Gazette is not the only thing that a Collector is required to do in order to make an enquiry as prescribed by Sec. 38 read with Rule 42a. The publication is over and above the normal course of the service of the notice upon all persons claiming to be the heir or heirs of the deceased Jagirdar as well as the persons appearing to be entitled to payment of the amount of compensation. Rule 46 lays down the mode in which the notices issued under the Act or Rules are to be served. They are to be served in the manner provided by law for the service of summon on defendants in revenue suits unless expressly provided to the contrary in the Act or Rules, which is not the case with the notice under reference. The notices to be served on the defendants in the revenue suit are to be served on the persons specified as defendants either personally on them of through substituted service as laid down by law, and failing that by publication in a newspaper or gazette. The publication in the Gazette is, therefore, not the only mode. The notices are to be served even otherwise. Now, where a defendant is known, a notice may be directed to be served upon him in the manner required by law. But where the person on whom the service is required to be done is not at all known, the only thing that can be done is to make an attempt to find out the person on whom notice is to be served. Vide Sub-Rule (2) of Rule 42a referred to above the notice is necessary to be served on the person appearing to be entitled to payment. But where the persons themselves are to be searched and found out such a notice shall have to be pasted upon the house in which the deceased might be residing last, in some conspicuous part of the village in which he was residing, on the notice board of the office of the Officer issuing such a notice, on the notice board of the Tehsil and the Panchayat concerned, and if necessary even by means of proclamation by beat of drum. Then alone, it can be assured that all persons claiming to be the heir have been conveyed that they are required to appear and prove their claim before the Collector on the date and time fixed. Without doing so, a mere publication of such a notice in the Gazette, which, it cannot be decide, is not available to everyone residing in the village, it cannot be held that a notice has been issued to call upon all persons claiming to be the heir to prefer their claims or prove the same. This has got to be done even when it be known that such and such person or persons are entitled to the payment of the compensation payable in order to assure that no other person who may be so entitled is left out from being heard. In the present case we find that the learned Dy, Collector has not even cared to issue such a notice. The notice published by him in the Gazette even is only to the effect that the respondent Bhoor Singh has made a claim to be the heir of the deceased Must. Phool Kanwar and that any person having any objection there to should prefer his objection within 30 days of the publication thereof. This alone is certainly not sufficient to meet the requirement of law as discussed above. Besides, Sec. 38 and Rule 42a require the Collector to make an enquiry to find out as to who is the heir of the deceased Jagirdar according to his personal law. This enquiry would certainly need that the person coming forward with such a claim should be asked to prove it. Atleast he should give out the genealogical pedigree as well as the manner in which he is related to the deceased and the basis of his claim for the payment of compensation due. The learned Dy. Collector has not cared to do this also in the present case The order of the learned Dy. Collector cannot, therefore, be upheld, and deserves to be set aside. We, therefore, accept the appeal and and remand the case for enquiring and deciding afresh in accordance with law in the light of the observations made above. .;