- (1.) THIS appeal has been preferred by the Jagirdar under Sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act 1952 (hereinafter referred to as the Act) against the order of the Addl. Jagir Commissioner, Rajasthan, Jaipur, dated 23. 12. 61. The items questioned relate to rental income, income from grazing, income from Customs & Excise, income from sale of land and tribute.
(2.) SO far as the rental income goes the objection is regarding the rent of the lands alleged to have remained under occupation during the basic year but not entered m the Revenue Records of the subsequent years because of the same having been surrendered at the time or. the announcement of the new settlement introduced in the Jagir. The learned Addl. Jagir Commissioner has taken into consideration the rental income of all such lands as were satisfactorily proved to have remained under occupation and charged rent for during the basic year, leaving out the cases of lands not so proved. It is contended on behalf of the appellant that he had produced copies of the orders of the Asstt. Settlement Officer passed in year 1955. one year after the basic year, on the basis whereof it should be calculated that those lands did remain under the occupation of the persons concerned and were charged rent for. We have, however, gone through the copies of those orders along with the learned counsel for the appellant and we fail to find anything therein to enable us conclude that the lands under dispute did remain under the occupation of the cultivators concerned and were charged rent for joining the basic year. Only because the Parcha Khatauni prepared for them in the settlement were ordered to be struck of in 1955 i. e. Svt. year 2012, it could not be presumed that they continued to remain in occupation uptill that time and during the basic year Svt. 2011 also. It is a common knowledge that the Parcha Khatauni at the time of settlement are prepared on the basis of the Khasra Girdawari and Tasdik carried on about two to three years earlier. They, therefore, denote only the possession during such years and not during the year of the distribution of the Parcha themselves or during the year immediately preceding it. There is, therefore, no force in this contention. The appellant could be allowed rental income vide Clause 2 (a) of the Second Schedule of the Act only for the land occupied during the basic year. Sec. 6 (3) (a) of the Act also supports it. As for the claim regarding the income from compensation from customs and excise, the learned Addl. Commissioner Jagir has rejected it on the ground that the Act does not prescribe for the inclusion of any customs compensation in the gross income and that the receipt of any excise compensation had not proved. So far as the claim for compensation on account of customs is concerned the observation of the learned Addl. Jagir Commissioner cannot be questioned. Clause 6 of the Second Schedule of the Act is quite clear in this behalf. The compensation for customs duties is to be paid in addition to the compensation payable in accordance with clause 5 thereof which is to be calculated on the basis of the net income calculated as per provisions of clauses 2, 3 and 4. Such a compensation for the customs duties is to be paid separately by the Government subject to the proviso that it shall be reduced in the same proportion in which the customs duties levied by the Government are reduced. As for the income from excise, however, vide clause 2 (h) the amount of compensation paid in cash by the Govt. to the Jagirdar for taking over the excise administration etc. is to be calculated on the basis of an average income of three years preceding the basic year towards the gross income of the Jagirdar. The learned Addl. Jagir Commissioner was, therefore, bound to make an enquiry into this income. He had rejected this claim with the observation that it had not been proved. No case has been made out on behalf of the appellant to show that the receipt of income under this head had been proved by him. Nor is it the case of the appellant that the Govt. in the Excise Deptt. was not at all referred to by the learned Addl. Jagir Commissioner in this behalf. The contention is, therefore, untenable. Now for the income from grazing fees. The claim is only regarding the village Daija. The learned Addl. Jagir Commissioner has allowed the claim verified from the books of accounts and the evidence produced by the appellant. No mistake or error in determining the same has been established by the learned counsel for the appellant here and, therefore, this contention too cannot be considered. The income from the sale of land is the real bone of contention of the present case. The Jagirdar had claimed Rs. 37644/-/9 averaging to Rs. 1586. 46 np. in this behalf. The learned Addl. Jagir Commissioner has allowed all the income claimed for the period falling before 5. 3. 49 as well as the income accruing during the period the Jagir remained under the management of the Court of Wards. He has, however, disallowed the income from sale of lands on and from 5. 3. 49 onward where the prices of sale exceeded Rs. 100/- on the ground that the Transfer of Property Act had come into force in the Jagir concerned from that date and the deeds were not registered thereby not effecting a valid sale. The total sum so disallowed amounts to Rs. 6286/6/- the average where of would come only to about Rs. 300/-or so. The learned counsel for the appellant has contended in this behalf that the sales had been made in accordance with the provisions of the Marwar Patta Ordinance in 1921 and Pattas were granted to the purchasers which themselves were sufficient to create valid sales and the transactions therefore did not require to be evidenced by a registered sale deed. In support of this contention he has referred us to Jutha Vs. Bhoma D. B. Civil Appeal No. 33/38/39 decided on 4th April, 1939 by the Chief Court of former Jodhpur State reported as 1939 M. L. R. Civil 266. In that case the Jagirdar had sold a piece of land by auction to certain person. Before the issuing of the Patta however another person offered higher price therefor. The Jagirdar sold away a portion of the land to the latter at the higher price. The former brought a suit to enforce the sale in his favour. It was contended on behalf of the latter that vide Sec. 54 of the Transfer of Property Act the sale in favour of the respondent could not be taken to have been completed in the absence of a registered sale deed. It was in that context that the Chief Court was pleased to observe: - "the Transfer of Property Act is not in force in Marwar so that the statutory provisions of that Act embodied in section 54 as to the modes of transfer of property cannot be enforced and an oral sale can be recognised as valid. The Patta which is issued by the Thikana is not a sale deed. It is only a Sanad evidencing the sale of land by Thikanas. In case of Thikana land sold by public auction according to the principles of Patta Ordinance as in case of Khalsa land, it is not necessary to execute a registered sale deed in favour of the purchaser. In this case, the sale was complete as soon as the plaintiff's bid was accepted, the property was knocked down to him and the purchase money was realised from him. When the sale was thus complete and the title to the property had consequently passed to the plaintiff, it was not open to the Thikana to sell the same land to Jutha. " On this basis it is contended on behalf of the appellant that when the land had been sold in accordance with the principles of Patta Ordinance it was not necessary to execute a registered sale deed in favour of the purchaser. This observation is to be read with the opening sentence thereof "the Transfer of. . . . . . . . . . . . . . . . . . . . . . . . cannot be enforced. . . . . . . . . . . . can be recognised as valid. " At the relevant period in dispute in the present case the Transfer of Property Act had come into force. What would have been the decision under the changed circumstances is, therefore, anybody's guess. It was only in the context of the recognition of the validity of oral sales under the then prevailing circumstances that the Chief Court was pleased to observe that when a sale had been made in accordance with the principles of the Patta Ordinance it was not necessary to execute any registered sale deed. The rulings relied upon by the learned counsel for the appellant does not, therefore, apply on all fours to the present case. Sec. 54 of the Transfer of Property Act made it obligatory that no sale of any immovable property of the value of Rs. 100/- and upwards could be valid except through a registered instrument. With the coming into force of this Act therefore there could not be any valid sale if the sale price was Rs. 100/- or more if no sale deed was executed and got registered. Vide Clause 2 (f) of the Second Schedule of the Act it is only the income from sale of land which could be calculated towards the gross income of a Jagir resumed. Unless the sale was complete in law the income could not be so calculated in whatever manner it might be evidenced otherwise. An attempt has been made at this stage to urge that the Patta could be treated as a sale deed and even if it was unregistered it could be looked into for purposes collateral in which was included also the finding out of the price received by the Jagirdar from the purchaser of the land. Even otherwise it has been urged that Patta itself though unregistered could be taken to be evidence of knowing the price paid for the sale. It is only under the proviso to sec. 49 of the Indian Registration Act that it can be possible. It says "that an unregistered document effecting an immovable property can be treated as an evidence of any collateral transaction not required to be effected by registered instrument. " The sale of land was undisputedly required to be effected by registered instrument at the relevant period as already discussed. It is the sale price which is to be calculated for the purpose of awarding compensation to the appellant. The amount claimed by him could be called to be the price of sale only when there was a valid sale. In case it was not a sale, no amount acquired by the appellant could be calculated towards his gross income. There was, therefore, no collateral transaction which could be evidenced by the Patta produced by the appellant. Now about the tribute. A sum of Rs. 1708. 25 np. has been deducted out of the gross income of the Jagirdar appellant. It is not disputed on his behalf that the tribute payable by him was not this amount. What is contended is that as the tribute had been fixed on incomes which are not allowed to be calculated as gross income vide clause 2 of the Second Schedule of the Act, the tribute should also be proportionately reduced for the purposes of deductions ; vide Clause 4 (i) thereof. This contention is, however, clearly untenable. For arriving at the net income of the Jagirdar it is the amount that the Jagirdar would have been liable to pay to the Govt. as tribute had the Act not been passed which is to be deducted out of his gross income. It is undisputedly Rs. 1708. 25 np. which he would have been liable to pay during the basic year had the Act not been passed. In the result the appeal fails and it is hereby ordered accordingly. .;