- (1.) THIS is an appeal under sec. 39 of the Rajasthan Land Reforms and Jagir Resumption Act, 1952, against the orders of the learned Jagir Commissioner. Jaipur dated 3. 12. 62 in case No. 27/27/ Pp/jc/uip under sec. 23 of the Act.
(2.) WE have heard the counsel for the parties and have also examined the record. The learned Govt. counsel has objected to the Beer lands named 'sat Mayara Wala' and the Beer Land situated in village Kabita to be the personal property of the respondent jagirdar under sec. 23. He alleged that since these lands had not been shown to be the Khudkasht land of the respondent jagirdar they could not be declared under sec. 23. He explained that the only sub-clause which will govern the 'beers' mentioned is Sub-clause (a) of sec. 23 namely Khudkasht lands and in the absence of the lands being declared as Khudkasht lands in accordance with the definition in sec. 2, sub-sec. (i) the learned Jagir Commissioner could not have declared them to be the personal property of the jagirdar. The learned counsel for the Jagirdar replied that no objections had been placed on behalf of the Govt. before the Jagir Commissioner and that even the Devasthan Department had admitted that the 'beer' lands were being utilised for grazing and consequently the declaration by the learned Jagir Commissioner was in accordance with the law. The counsel for the Jagirdar also argued that this item was covered by sec. 23 sub-section (b), sub-sec. (i), namely, "open enclosures used for agricultural or for domestic purposes. " We regret we cannot agree with the arguments advanced by the learned counsel for the Jagirdar. There is nothing on record to show that these lands are open enclosures. Beer lands are not generally enclosed. Therefore, obviously these lands are not covered by sub-sec. (b) sub-sec. (i) of sec. 23 and the only sub-clause which will cover this matter is sub-clause (a), namely Khudkasht lands of the jagirdar. The objection of the learned Govt. Counsel is valid in regard to the declaration of these lands as personal property since these lands did not come under the definition of Khudkasht lands in sec. 2 sub-sec. (i) of the Act. We, therefore, accept the State appeal and set aside the orders of the learned Jagir Commissioner in respect of these 'beer' lands. A cross objection was also filed on behalf of the Jagirdar in which the refusal of the learned Jagir Commissioner to declare the following houses situated in Udaipur as the personal property under sec. 23 has been challenged, namely - 1. Mandir Gokalchand Maji. 2. Nohara outside Mandir. 3. 6 buildings outside the Mandir. 4. 3 shops below the Mandir. The learned Jagir Commissioner has refused to include them in the list as these properties were not situated within the Jagir lands of the jagirdar. The learned counsel for the Jagirdar argued that in sec. 23 there is no restriction anywhere that the properties mentioned therein should be situated within the Jagir lands and that therefore the decision of the learned Jagir Commissioner was not in accordance with the provisions of the law. This objection was replied to by the learned Govt. Counsel who explained that sec. 21, 22 and 23 must be read together, According to him sec. 21 deals with the resumption of jagir lands and sec. 22 dealt with the consequences of resumption and sec. 23 was an exception to sec. 22 and therefore automatically by implication the provisions of sec. 23 applied to the jagir lands of the jagirdar. We find that there is considerable force in the argument of the learned Government Advocate. The entire Act deals with the resumption of jagirs and allied matters. Sec. 21 refers to the resumption of any class of Jagir lands. Sec. 22 deals with the consequences of resumption. Therefore, it is clear that the provisions of sec. 23 which is an exception to sec. 22 as stated in the Section itself, namely ''notwithstanding anything contained in the last preceding section" also applied only to the jagir lands. The question of the houses situated outside the jagir lands will have to be considered separately. If they form part of the jagir of the respondent which has been resumed and in respect of which the proceedings for declaration under sec. 23 have started they will have to be treated on a different footing. They form part of the Jagir lands of this jagir. If, on the other hand, those houses have been granted by means of a separate grant, the question will have to be examined whether the provisions of the Resumption Act of 1952 will apply. This will mainly depend upon the terms of the grant. If these buildings do not form part of any jagir grant, but have been created out of the income of the jagir and are not included in the grant, the position will again be different. We notice that these aspects have not been examined by the lower court, nor has the jagirdar submitted any material with respect to these houses to establish the nature of their grant. We, therefore, cannot say that this aspect of the matter has been properly examined, nor was the counsel for the jagirdar in a position to elucidate the nature of the grant relating to these houses. We, therefore, consider it necessary that these matters should be further examined before a decision can be given. We accordingly remand the case to the learned Jagir Commissioner with the direction that he should examine the nature of the grant of the properties situated in Udaipur which have been claimed by the respondent jagirdar to be his personal property and then give a decision thereon in accordance with the law. In the result the State appeal is accepted and the orders of the learned Jagir Commissioner in respect of the 'beer' lands is set aside, while in regard to cross objections of the jagirdar respondent pertaining to the house properties in Udaipur the matter should be reexamined by the learned Jagir Commissioner after holding fresh enquiry and dispose of the claims in accordance with the law. . ;