- (1.) THIS is an appeal under sec. 25 of the Rajasthan Biswedari and Zamindari Act, 1959 (hereinafter referred to as the Act) against the order of the Revenue Appellate Authority, Jaipur dated 30. 4. 1962.
(2.) THE brief facts of the case are that the appellant Shri Misrilal, on the enforcement of the Act and as a consequence of the abolition of the Biswedari and Zamin-dari, made an application for the declaration of the disputed land, admittedly an agricultural land not under the Khudkasht of the appellant himself, as his private property under sec. 6 of the Act. Such an application was triable by the Collector of the district himself. He could, however, delegate such powers to the Sub-Divisional Officer in terms of sec. 36 (2) thereof. He did confer such powers on the Sub-Divisional Officer vide Notification No. Rev. 1-k-174d. 12th Nov. , 1954. That Notification purported to confer powers under sec. 6 read with Rules, 6,7, and 8 of the Rules made under the Act and not under sec. 9 also with which we shall deal shortly. This application was decided by the learned Sub Divisional Officer acting as the Collector under the delegated powers in favour of the appellant and the case remained there, no appeal having been preferred against that order. After about a year thereof the Municipality of Pushkar came forward with the petition on which the present proceedings have arisen alleging that the Sub Divisional Officer had exercised only the powers delegated to him but that there was a genuine dispute about the land which could be decided only by the Collector under sec. 9 of the Act. It was also contended before the learned Collector to whom this application was submitted that the powers delegated were only under sec. 6 of the Act and Rules, 6,7, and 8 referred to above and not under sec. 9 also and, therefore the Sub Divisional Officer could not have passed any order under sec. 9 regarding the dispute over this land and that, therefore, the learned Collector should pass necessary orders under this provision of law. This application was contested vehemently on behalf of the appellant who completely denied all the facts and contended that full powers had been delegated to the Sub-Divisional Officer for deciding all such cases and that the matter was res-judicata in view of the decision of the Sub Divisional Officer passed under the powers delegated to him. At the time of the hearing, objection seems to have been pressed on behalf of the appellant that the power delegated were under sec. 9 of the Act also and not under sec. 6 alone and that it could only be the provisions of Rule 45 of the Rules made under the Act which would apply for the trial of such cases. THE learned Collector upheld the latter objection but did not touch the order and he ordered that the case be put up for the framing of issues on the next date. An appeal was preferred against this order to the Revenue Appellate Authority presumably under the provisions of sec. 24 of the Act. It was rejected. THE learned Revenue Appellate Authority has discussed the case in an elaborate judgment and held that the powers delegated vide Notification referred to above could by only those relating to sec. 6 of the Act and not under sec. 9 thereof as well. Hence this second appeal. It has been very vehemently contended on behalf of the appellant here that sec. 6 of the Act did not contain any powers, but provided only the description of the properties which could be declared to be private property of a Biswedar or Zamindar as a result of the abolition of his estate and that it was sec. 9 alone which contained the powers of deciding the dispute regarding the matters dealt with by sec. 6 and therefore the powers delegated under sec. 6 shall be deemed to cover automatically the powers under sec. 9 as well. No authority has been cited in this behalf. This has on the other hand been repelled on behalf of the respondents, Municipality Pushkar, as well as the State Government, with the assertion that even though sec. 6 dealt with only the description of the properties which could be declared to be private property of the zamindar or Biswedar concerned, that did not affect the exercising of the powers of declaring them so. The reason advanced is that the provisions of the exercising of such powers had been made in Rules 7 and 8 of the Rules made under the Act. Rule 7 deals with the filing of the list. Rule 8 describes the mode of dealing with such a list by publishing it for inviting objections. It does not, however, anywhere say what would be done if no objections were received in response to such publication. Sub-rule (4) of Rule 8 which deals with the disposal of such applications says only that in case objections were received the case will be heard and decided after making necessary enquiries. The mode of making enquiry and hearing the case is prescribed by Rule 45, which lays down that the contested cases shall be tried in accordance with the trial of suits by the revenue courts and the uncontested cases will be heard and determined in accordance with the procedure laid down for the trial of applications by the revenue courts. Thus, even though the application for the declaration of any property described in sec. 6 of the Act has to be determined on receipt of objections from any quarter whatsoever vide sub-Rule (4) of Rule 8, the enquiry has to be made in accordance with the provisions of Rule 45. With this position in law, the distinction between the provisions of sec. 6 and sec. 9 so far as the delegation of the powers by Collector to the Sub Divisional Officer goes becomes insignificant. The reason is that sec. 9 only says that "if any dispute arises" it shall be decided in the manner prescribed thereby. Naturally when an objection is preferred in response to the publication of the application received it would become a dispute so far as that objection goes. A dispute could thus arise even in the course of normal proceedings under Rules 7 and 8. And it was not necessary that the dispute should arise in a separate proceeding. Rather, it should arise only during the proceedings of Rule 7 and 8, and not long after the same, nor separately from the objections raised while dealing with application under the provisions of those Rules. The distinction sought to be made out between the delegation of the powers under sec. 6 and the reservation of powers under sec. 9, therefore, is neither proper nor relevant; and it cannot be held that while delegating the powers of sec. 6 which Rules 7 and 8 the powers of sec. 9 have not been delegated to the Sub-Divisional Officer. It is a position not contested even by the Municipality of Pushkar while making the application. It reads that the Sub Divisional Officer had passed the order under the "delegated" powers. What it contends is only that he has committed certain mistakes in dealing with the application. It is being urged only with reference thereto that as there was a dispute, it could be decided now under sec. 9 of the Act in accordance with Rule 45 of the Rules only by the Collector. A very pertinent point has, however been urged by Shri Kudal on behalf of the appellant that it was never the case of respondent, Municipality Pushkar on whose application the present proceedings arose that the powers delegated were only one under sec. 6 and not under sec. 9 of the Act and, therefore, any decision by the learned Courts in this respect was in variance with the pleadings of the respondent himself, which was improper in law. There is force in this contention. Certainly the Courts could not be allowed to make a new case for a party when it had not been pleaded. No proof could be allowed to be in variance with the pleadings nor could any decision be so. It is, therefore, held that the learned lower appellate court has acted contrary to the provisions of law while entering into the distinction of the delegation of powers under sec. 6 and 9. There is, however, another very important side of the case, which too could not be ignored. It has been put very definitely and positively to the learned counsel for the appellant for reply and arguments. It had also been raised by the Teh-sildar by way of objection to the application of the appellant published by the learned Sub Divisional Officer. It is that the land in dispute being agricultural land, it did not fall under the category of the properties described by sec. 6 of the Act. The learned counsel for the appellant does concede that the land in dispute was not covered by any of the descriptions under that section. He, however, urges against it that it is again making out entirely a new case for the respondents in the second appeal which could not be allowed to be done. The force of the argument that no new case could be made out for a party could not be disputed or denied. But as stated earlier, in the present case the contention raised in the written statement by the appellant is that the case is res judicata because of the previous orders of the Sub Divisional Officer. The powers of the Court to examine this contention at any stage of the proceedings whatsoever could not be questioned. When the land under dispute does not at all fall in the categories mentioned in sec. 6 of the Act even though the previous order might be treated to have been passed under sec. 9 thereof the order could not be treated to have been passed competently. In other words, the order deserved to be treated to have been passed without jurisdiction by an authority not competent to do so. The order of the learned Sub-Divisional Officer relied on by the appellant also very clearly said that the land in dispute was an agricultural land. It only appears to have escaped the notice of the Sub Divisional Officer that the agricultural land was not the property to which sec. 6 of the Act could apply. That order under the circumstances could only be treated to be a nullity having no force whatsoever; and if and when it was so, any fresh application regarding the private property could always be entertained and decided. Whether the application in the form it has been presented on behalf of the respondent Municipality shall also proceed or not could also be always examined by the Collector who was the only authority for the disposing of all disputes under the Act. The learned Collector, Ajmer, has fixed the case only for necessary issues. One of the issues could only have been whether the matter was res judicata. It could have covered all the points to be decided in accordance with law. It could not, therefore, be said that the learned Collector was proceeding unauthorisedly or contrary to the provisions of law. An appeal under sec. 24 of "the Act, therefore, against that order did not deserve to be accepted; and it shall be treated to have been rightly rejected by the Revenue Appellate Authority even though the reasons advanced by him might be different and not quite proper in the law under the peculiar circumstances of the case. For these very reasons, the appeal here will also not succeed. The learned Government Advocate, and indirectly to certain extent the learned counsel for the Municipality also, have submitted that the appeal under sec. 24 could not lie at the stage it had been preferred by the appellant and that therefore the learned Revenue Appellate Authority should be treated to have entertained the appeal unauthorisedly and that on this ground this appeal under sec. 25 of the Act here should be accepted and the order of the learned Revenue Appellate Authority directed to be set aside and the case remanded to the learned Collector, Ajmer for proceeding in accordance with law. The argument may appear to be plausible. But in reality it will not be found to be so. The appellant wanted the application preferred against him by the Municipality Pushkar to be dismissed. Instead of being dismissed, it was ordered to be proceeded with. He being aggrieved thereby had every right therefore to prefer an appeal under sec. 24 of the Act. The learned Revenue Appellate Authority could not, therefore, be called to have wrongly entertained the appeal, and on this ground alone this appeal cannot be directed to be accepted. In result, the appeal is found to have no force although for reasons not exactly those taken by the learned Revenue Appellate Authority as discussed in detail above; and it is therefore, hereby rejected. . ;