- (1.) THIS is an appeal preferred under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (hereinafter referred to as the Act) by the State Government against an order of the Additional Jagir Commissioner, Jaipur dated 1. 5. 1961, by which he has declared a house "navaji-ki-Haveli" along with shops situated in Chora (Rasta, Jaipur City at the junction of Gopalji-ka-Rasta (referred to hereafter, for the sake of brevity, as "the property") to be the private property of the respondent Jagirdar of Dangerthal under sec. 23 (2) of the Act.
(2.) THE contention on behalf of the State Government is that the property is a State Inam grant governed by the Crown (Government) Grants Act which has been made applicable to the State of Rajasthan before the enforcement of the Constitution of India by a Notification dated 25th Jan. 1950 adopting certain Central laws without any adaptation or adjustment; the property is, therefore, not affected by the provisions of the Transfer of Properties Act; vide Jaipur Matmi Rules, 1945 the property is subject to the Matmi proceedings; the Matmi has never been sanctioned in favour of the respondent; and therefore the respondent could not have any claim thereto. THE operation of sec. 23 of the Act to the property too has been contested on the grounds that neither did it fall in any of the categories mentioned in sub-sec. (1) thereof nor was it in possession of the respondent, the same having been transferred to a third party. It has therefore been urged that the impugned order had been passed without jurisdiction. On behalf of the respondent, however, it has been submitted that (1) the property was not subject to Matmi proceedings, (2) even if it was so subject, there were provisions in the Jaipur Matmi Rules which would enable the grant of the Matmi in favour of the respondent, (3) an absence of Matmi proceedings alone will not therefore make the property liable to be reverted to the State and (4) therefore the respondent was entitled to have it declared to be his private property under sec. 23 of the Act. The transfer of the property to a third party has not been denied, but it has been alleged that only a part thereof and not the whole of it, and that also after the resumption of the jagir and not before it, had been so transferred. It has, however, been conceded that the transfer had been so made long before the order being impugned in this appeal was passed and that on the relevant date of the order at least the property was not in the actual possession of the respondent. The factum of the property being not in actual possession alone, it has been however urged, could not in any way affect the title of the respondent thereto. Further it has been contended that the grant of the property having been made quite independently of, and much earlier than, the grant of the jagir of Dangerthal it could not be taken to have been resumed along with that jagir. On this basis, however, it has been conceded that Sec. 23 of the Act will not come into operation so far as the property was concerned and, therefore, the impugned order of the learned Additional Jagir Commissioner could not be upheld. In other words what was being contended on behalf of the respondent was not that the judgment being impugned in this appeal was proper and could be upheld, but that the property being a house-property situated in the City of Jaipur, even though it was a Jagir grant Matmi whereof had not been sanctioned in his favour, had neither been resumed, nor did it need be resumed, nor was there any necessity of making any declaration under sec. 23 of the Act relating thereto, and that for this reason the order of the Additional Jagir Commissioner could be set aside but not on the ground that the Addl. Jagir Commissioner had no jurisdiction in the matter. The learned Advocate General has also urged at one stage that the property could not be taken to have been resumed as yet under the Act, because of its being a grant independent of the Jagir of Dangerthal and that, therefore also the provisions of sec. 23 of the Act could not apply to it. This argument has been advanced by him independently of other arguments described earlier and in addition to the one that the Matmi of the property having never been sanctioned in favour of the respondent, he could not have any locus standi to claim any declaration about property under the provisions of the Act and, therefore, the order passed by the Additional Jagir Commissioner was without any jurisdiction. The other learned Advocate appearing on behalf of the State Government, Sri Ramesh Chandra Swami, has, however, urged that the property too should be taken to have been resumed under the Act along with the Jagir of Dangerthal itself and that the want of jurisdiction in the learned Addl. Jagir Commissioner to make any declaration about this property under sec. 23 of the Act was only because of the absence of Matmi in the name of the respondent and not for any other reason. Thus, there emerge the following points for determination in this case (l) whether the property has been resumed under the Act or not; (2) Whether the absence of the sanction of Matmi in favour of the respondent (which is not contested by the respondent but on the other hand admitted) takes away the jurisdiction of the learned Additional Jagir Commissioner under sec. 23 of the Act or not; and (3) Whether the property is of the kind mentioned in sec. 23 (1) of the Act or not. We take the first point first : The resumption of the jagirs under the Act is made under sec. 21 thereof. It lays down that the jagirs can be resumed according to any classification adopted by the State. It can be taken judicial notice of that the jagirs in the State of Rajasthan have been resumed on the classification of being "settled" and in slabs of different income groups. This is a position not disputed by both the parties also. The jagir of Dangerthal has also admittedly been resumed as "settled,' and in the income group in which it falls. It is also conceded on behalf of the parties that the property shall be taken to have been resumed along with the jagir of Dangerthal in the income group concerned if the inclusion of this Jagir also with the Jagir of Dangerthal does not vary the total income of the Jagir so as to make it fall outside the income group in which it has been resumed by the State Government. It is further an agreed position between the parties that the inclusion of the property with the Jagir of Dangerthal for the purpose of resumption does not go to affect the income of the Jagir so as to make it fall outside the slab of the group into which it has been resumed by the State Government. The property shall, therefore, be taken to have been resumed along with the Jagir of Dangerthal. Consequently, it cannot be held that the property has not been resumed as yet under the Act. It is again an agreed position between the parties, as would be evident by the bare reading of the deed of the grant thereof as Jagir, that the property was granted as an Inam-grant by way of "meharbangi" (which may be translated as 'kindness or favour') by the Ruler of the former State of Jaipur for residential purposes¼tks jgcks djtks½- The grant was made in Smt. year 1888. That this grant is covered by the provisions of Grown (Government) Grants Act adopted by the State of Rajasthan is also not in dispute. Sec. 3 thereof very clearly lays down that it will be governed by the terms of the deed of grant notwithstanding anything to the contrary in any other enactment or rule. That such an Inam-grant is also subject to the proceedings of Matmi under the former Jaipur State Matmi Rules, 1954, is also not being disputed. That no Matmi has as yet been sanctioned in favour of the respondent in respect of this property is also not in dispute, and is on the other hand conceded on behalf of the respondent. Now, it is to be seen what is the effect thereof on the respondent's claim under Sec. 23 of the Act. It is only in favour of a Jagirdar (so far as is relevant for the purposes of the present case) that a declaration can be made in respect of any property described in Sec. 23 (1) of the Act that "it shall continue to belong and be held by him". Obviously, the respondent could not be treated to be the Jagirdar of the property until and unless the Matmi is sanctioned in accordance with the Jaipur State Matmi Rules in his favour. This position cannot be repelled by the arguments advanced on behalf of the respondent that the Matmi could have been sanctioned in his favour under the relevant provisions of the Jaipur State Matmi Rules. No recognition could be taken of what could have been done. It is only what has been actually recognised and what has been actually done that can be taken cognizance of for the purpose of the Act. The respondent can be treated to be the Jagirdar of the property, so far as the application of the provisions of the Act goes, only if he has been so recognised by the competent authority under the Jaipur State: Matmi Rules by way of the sanction of Matmi in his favour. When it is not so, no order can be passed in favour of the respondent under Sec. 23 of the Act. The simple reason is that this section only lays down a provision to mitigate the consequences of the resumption of Jagir laid down by the preceding Sec. 22. That section goes to vest as a consequence of resumption the properties mentioned in Sub-Sec. (1) Clause (a) thereof in the State Government. This Sec. 23 lays down that notwithstanding those provisions the Khud Kasht lands, the open enclosures employed for domestic or agricultural purposes for a period of six years or more, the private buildings, the wells, the trees, etc. standing on such house-sites or enclosures, etc. , shall continue to belong to and be held by the Jagirdar or any other person concerned. In the present case the property is a Jagir being an Inam-grant, the status whereof cannot change under the provisions of the Crown (Government) Grants Act referred to above under any circumstances whatsoever. The respondent should therefore be a Jagirdar thereof before he be entitled to invoke the jurisdiction of the Jagir Commissioner under Sec. 23 of the Act. As the respondent has not been recognised admittedly to be a Jagirdar under any regular Matmi under the relevant Rules, he could not be held to be entitled to invoke the jurisdiction of the Jagir Commissioner under this provision of law, and consequently the Jagir Commissioner under this provision of law and for that matter the Additional Jagir Commissioner could not also be held competent to exercise jurisdiction about this property in favour of or against the respondent. The decision of the Addl. Jagir Commissioner in this behalf is, therefore, without jurisdiction. Now, about the third point : Sec. 23 is the relevant provision in the Act which lays down to which kind of properties it would apply. They are : (a) Khudkasht lands of a Jagirdar; (b) (i) all open enclosures used for agricultural or domestic purposes and in his continuous possession (which include possession of any predecessor-in-inter-est) for (six) years immediately before the date of resumption; (ii ). . . . . . . . . (iii) all private buildings, places of worship, and wells situated in, and trees standing on lands, included in such enclosures or houses sites, as are specified in clause (l) (x) above, or land appertaining to such buildings or places of worship; (iv) all groves (and fruit trees) wherever situate, belonging to or held by the Jagirdar or any other person; (c) all (xx) private wells and buildings belonging to or held by the Jagirdar or any other person; (d) all tanks in the personal occupation of the Jagirdar and not used for irrigating the lands of any tenant in the jagir land". Obviously, the property falls under none of these categories. Neither is it a Khudkasht land, nor is it an open enclosure used for agricultural or domestic purposes, nor is it any private building, etc. situated on such a house-site or enclosure. It does not fall in the categories given under sub-clause (c) and (d) either. No declaration, therefore, could have been made by the Addl. Jagir Commissioner in this behalf. His order being impugned in this appeal therefore appears to have been passed without any jurisdiction on this reason as well. At one stage of the hearing a question also arose under Sec. 23 of the Act whether the order could be passed in the manner it has been done by the learned Additional Jagir Commissioner, i. e. whether he could say that the property was recognised to be the private property of the Jagirdar. It has been urged by the learned Advocate General that the only order that could be passed under this section was whether the property under dispute was of the nature described by Sec. 23 (1) or not and no more. We would like to observe here that the provision in Sec. 23 (1) is that the property described therein "shall continue to belong to and be held by the jagirdar". The order shall also, therefore, have to be passed only in these terms, i. e. , whether the property being claimed shall so continue to belong to and be held by the Jagirdar or not. It is obvious therefore that neither was the property of the nature described in Sec. 23 (1) of the Act nor was the respondent entitled in the absence of any Matmi sanctioned in his favour to apply for getting any declaration under that section. Thus even though the property has been resumed under the Act, the respondent could not claim any order in his favour under the provisions of Sec. 23 of the Act; nor could the Jagir Commissioner or Addl. Jagir Commissioner pass any order in his favour. In result, the order of the Addl. Jagir Commissioner being impugned in this appeal is found to have been passed without jurisdiction, and deserves to be set aside. Accordingly, we accept this appeal, set aside the order of the learned Additional Jagir Commissioner and direct that the application of the respondent under Sec. 23 of the Act in respect of the property shall stand dismissed. . ;