- (1.) THIS is an appeal under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (hereinafter referred to as the Act) against the orders of the learned Jagir Commissioner Jaipur, dated 14. 2. 1961 determining the compensation of respondent in claim No. F. (6) JG/tnj/53.
(2.) THE brief facts of the case are that the compensation claimed by the jagirdar was determined on 19. 8. 60 at Rs. 3,22,198,28 np. THE jagirdar submitted a review application on 16. 11. 60 in respect of certain items and on that application, after hearing the parties namely the jagirdar and the Govt. Advocate, the learned Jagir Commissioner by his order dated 14. 2. 61 which is under appeal modified the award in respect of some of the items raised in the review application and rejected the rest. THE final award dated 19. 8. 60 was accordingly revised and the claim for compensation redetermined at Rs. 1613195-60 np. out of which a sum of Rs. 5,41,748-06 was deducted, leaving a net compensation of Rs. 10,72,447-54 np. payable to the jagirdar. THE present appeal has been filed against the reviewed final award. We have heard the counsel for the parties and have also carefully examined the record. In the appeal memo, dated 6. 4. 61 filed by the Government Advocate a number of objections have been raised which we shall deal ad seriatim. The first objection pertains to an income of Rs. 6,805. 80 np. allowed in the final award as income from Khasra Rental income. It was alleged that the respondent had changed the revenue records which were self prepared by the jagirdar and had shown Banjar land into Barani and Barani land into Chhani and thus the income was manipulated which was also against the Settlement records of Smt. 2008. On a review application being filed by the respondent this income has been further increased by Rs. 50. 61 np. The learned Government Advocate contested the allowing of this income which he argued was not based on the provisions of sec. 6 of the Act. Under sec. 6 the rental income from the jagir lands in a village shall, where the village is a settled village, be the total of the rents assessed on the jagir lands as entered in the revenue records of the village. He contended that the additional amount of Rs. 6851-41 np. allowed by the Jagir Commissioner was not the rent assessed on the jagir land as entered in the revenue records of the village. The learned counsel for the respondent replied that Thikana Uniara was a jurisdictional Thikana which exercised powers of revenue collection and maintained the record of such collection on the lines of full sovereign States such as Jaipur with a complete paraphernalia of revenue staff beginning from Tehsildars etc. , that the rental income allowed by the Jagir Commissioner was the income actually received in the basic year and was even received in the present day after the resumption of the Thikana by the Govt. of Rajasthan, that the learned Government Advocate has not challenged the accrual of the income, but his objection was to the excess income realised by the jagirdar. He argued that the settlement of Uniara Thikana had taken place in St. 1998 which was for a period of 10 years and the settlement had expired in St. 2008 when a revised settlement took place, that the cultivators by mutual agreement accepted the increased rates and rents were paid accordingly to the Jagirdar and which were being realised even after resumption and at present by the Government of Rajasthan. He, therefore, contended that the revised rates wherever such revision had taken place were the rates duly entered in the revenue records and that the objection of the Government Advocate was without force. We have carefully considered the arguments of both the counsel. It is admitted that the jurisdictional Thikana of Uniara by virtue of its special position in the former State of Jaipur as in the case of Sikar and Khetri was enjoying special powers running its own administration more or less on the lines of the State Government. The record of the Thikana is even now being followed and acted upon by the Government of Rajasthan. The learned Government Advocate did not deny the claim of the Thikana that the rents realised in St. year 2009 which was the basic year before the Thikana was resumed in St. 2010 were even now being realised by the Rajasthan Government. The learned Government Advocate also did not deny that the income allowed had actually been received in the Thikana as has been duly verified by the different Revenue Officers. The jagirdar's counsel had stated that there was a change in the classification of soil and rent on the expiry of the settlement of St. 2008 which was reached by mutual agreement and which had been acted upon from that year onwards and which accounted for the increase in the rent. We, therefore, consider that the learned Jagir Commissioner was fully justified in allowing this income which had been duly verified by the Tehsildars concerned and we over-rule the objections of the learned Government Advocate to this item. The second objection was in respect of the income from forest. It was argued by the Government Advocate that the forest department had reported that there was unsystematic cutting of forest and that after resumption the State was getting only Rs. 4,000/- from the forest. It was also alleged that the learned lower court did not take into consideration the provisions of the Rajasthan Removal of Trees Ordinance and the income for sale of green trees had been included under this head. The learned counsel for the jagirdar replied that the reason advanced by the learned Govt. Advocate was not sustainable. The question whether there was systematic cutting of forest and what the income from forest was after resumption could not be a consideration in determining the income from forest and the argument about green trees was for the first time raised but no definite item was pointed out. The learned Government Advocate conceded that this objection was not strong enough to be pressed. We consider that the objections have no force. The actual accrual of income was not contested. The objections about the alleged unsystematic cutting of forest are entirely alien to the consideration of the admissibility of the income claimed by the jagirdar. The arguments regarding the applicability of the provisions of the Rajasthan Removal of Trees Ordinance and the validity of the income from cutting of green trees alleged to have been included were not pressed and no details were cited. We, therefore, do not see any reasons to accept the contentions of the Govt. Advocate in regard to this income as they have neither been substantiated nor are relevant. The next two items objected were (1) Grazing Rs. 6958. 33 np. (2) Income from non-agricultural uses of land Rs. 27,097. 98 np. Since the arguments in respect of these two incomes are the same, we shall deal with them together. In respect of the income under grazing the learned Government Advocate alleged that this income was allowed without ascertaining whether it accrued from unoccupied land or not and that the learned Jagir Commissioner had erred in allowing it and the respondent had failed to discharge the burden of proof in this regard which lay heavily on him. The Government Advocate questioned the remark of the Jagir Commissioner that the Government's Legal Adviser had not shown any instance of the grazing income claimed from occupied land and argued that it was a duty cast upon the Jagir Commissioner himself to have recorded a finding after the enquiry that the income claimed under grazing had accrued from unoccupied land. As regards the income from non-agricultural uses of land it was contended that the original demand under this head was further increased by a supplementary demand after more than 2-1/2 years and the learned Jagir Commissioner erred in law in allowing this income in the absence of sufficient legal and corroborative evidence. The learned Government Advocate elaborated his objections by stating that there was no finding by the learned Jagir Commissioner about the books of accounts of the jagirdar under sec. 34 of the Evidence Act and that even if there was such a finding no corroboration by statements of witnesses as envisaged under sec. 34 was made. He pointedly emphasized that under sec. 34 such statement of account shall not alone be sufficient evidence to charge any person with liability. Although he did not contest that the account books of the jagirdar were regularly kept in the ordinary course of business, the fact in itself was not sufficient to saddle the State with liability to pay compensation without independent corroborative evidence. There was neither any statement of the scribe of the account books nor of any of the persons who had made payments to the Thikana on various accounts under which the compensation was claimed by Thikana. Under sec. 102 of the Evidence Act the burden of proof lay on that person who would fail if no evidence was given on either side and accordingly it was the duty of the respondent to have established the claim in accordance with the law. He also referred to the commentary in Woodroffe and Ameer Ali's Law of Evidence in India 10th Edition and quoted the following extract from page 553 of Vol 3 of that edition - "whether the transactions sued upon are numerous and extend over some length of time, it is hardly reasonable to expect independent evidence to be given to prove each and every particular transaction. In such case the genuineness of the account books, if they are regularly kept in the course of business will be the determining, factor. But mere proof of the correctness of the entries in the account books will not be enough. There must be some evidence to corroborate those entries. Such corroboration will be best afforded by the evidence of the persons in whose presence transactions took place. He cannot possibly have independent recollection of the various transactions, and he may, as provided in sec. 169, Evidence Act, refresh his memory by referring to the account books. But it is not necessary for him to prove that "such and such articles valued at such and such (amount were supplied on such and such dates. If he proves the entries written by him and states that the transactions referred to in those entries actually took place in his presence or to his knowledge, the effect will substantially be the same. " The Government Advocate cited the ruling of this Board also in RRD 1959 page 179 in support of his contentions about corroboration of books of account. The Government Advocate also contended that the provisions of sub-sec. (3) of sec. 31 as well as sec. 22a of the Act had not been complied with which provide for documents relied upon by the jagirdar being submitted along with the statement of claim and the delivery of records after resumption. All these objections were also raised before the Jagir Commissioner. The learned counsel for the jagirdar replied that the account books had been maintained by the Thikana regularly in the ordinary course of business which had not been contested by the learned Government Advocate. As regards corroborative evidence it was argued that the account books of the jagirdar were maintained on the lines of the accounts of the former State of Jaipur and, therefore, there was no reason to question the entries therein and no further corroborative evidence was called for. It was argued that the provisions of sec. 34 of the Evidence Act were not directly relevant as they pertain to account books of non-Government business as is clear from the rulings given under that Section in the edition cited by the Government Advocate. In the present case the Thikana accounts had never been questioned and were now being acted upon by the Rajasthan Government and therefore no corroborative evidence was necessary. It would be impossible to produce all the persons who had made payments to the Thikana but if the Jagir Commissioner had so directed, any number could have been produced. He, however, was fully satisfied as the original court about the accrual of the incomes claimed after thorough investigation and there was no justification for agitating the matter again. As regards the grazing income it was argued that all the income claimed had been duly entered in the account books. Not a single item of such income having accrued from occupied land was shown from the records by the Government Legal Adviser before the Jagir Commissioner. Therefore, the objection was a general one not based on any fact and the provisions of secs. 31 (3) and 22-A did not afford any valid ground for contesting the documents produced by the Jagirdar. The Jagirdar's counsel added that in regard to grazing dues all receipts and Tehsil and Central Khardas had been produced. Nobody had come forward to deny the receipts. The rates for grazing had been fixed in the Settlement Record and nothing in excess had been charged. The total area of this Thikana according to the Settlement Record Was 36,8793 bighas and 93,865 bighas were given as sub-grants. Out of the balance of about 2,75,000 bighas, the cultivable area came to 98,488 bighas, part and occupied Banjar 8,470 bighas, waste Banjar and Charagan 89,965 bighas and hills 42,135 bighas. Therefore, he argued that keeping in view the vast unoccupied area available, the amount allowed cannot be considered excessive.
(3.) AS regards corroboration he contended that corroboration was possible not only by statements of witnesses but also by circumstances, i. e. the area available and the subsequent recoveries made by the State after resumption. The Government Advocate replied that the income derived subsequent to resumption was no criterion as has been held by the Board in several cases. The entire question thus centers round the question whether the sole testimony of the account books is sufficient evidence to charge the State with liability to pay compensation without further independent corroboration. As we have already observed in respect of other items, the account books kept by Thikana Uniara are more or less on the lines of the account books kept by the former State of Jaipur. The Government Advocate could not show anything wrong with the account books to doubt their veracity or to hold that they were not kept regularly in the ordinary course of business even though they were submitted later after resumption. He did not deny that the amounts claimed had been entered in the account books. Therefore, we feel that the standard adopted for accepting the evidence of account books of non-Government agency should not in fairness be applied to the account books of this Thikana. The mere fact that the statements of a few persons were not considered necessary to be taken by the Jagir Commissioner in admitting the incomes claimed under these heads should not deprive the Jagirdar of the incomes claimed which are duly entered in the account books. The original court after full investigation, as is clear from the judgment, had satisfied itself that the account books constituted sufficient evidence of the income having, accrued and consequently allowed such income. The legal adviser who represented the Government before the Jagir Commissioner did not produce any evidence which contradicted the entries in the account books. It would, therefore, be a sheer waste of time and hardship to the party (respondent) if, merely because of not recording statements of witnesses, either the entire income is disallowed or the case is remanded for fresh enquiry. Doubtless, it would have been easily possible for the Jagirdar of Thikana of this size to produce witnesses to corroborate some, of the entries. On the other hand, it should have been also possible for the Government to produce witnesses who might have deposed against the entries in the account books. We consider that the ordinary standard should not be applied in dealing with the account books of such Thikanas which were so to speak States with well settled machinery for administration. The learned Government Advocate even argued that he would contest the accounts of the present Government of Rajasthan. Such an argument of course cannot be admitted. In the same manner we consider that keeping in view the peculiar circumstances and the special characteristics of administration of such jurisdictional Thikanas, the books of accounts kept by them have to be relied upon unless the contrary can be shown. During the entire proceedings before the Jagir Commissioner as also before us in appeal, beyond objections of a general character, the counsel on behalf of the Government has not been able to specify any particular objection in respect of any of the entries of the account books. As such, we do not accept as valid the objections of the Government counsel in allowing these incomes to the Jagirdar. In regard to the particular objection that the income under grazing was allowed without a definite finding whether such income was derived from unoccupied land or not, as the learned Jagir Commissioner stated, the Govt. counsel had not produced any evidence in support of his contention. He could have asked for time and produced witnesses in support of his contention. However we have satisfied ourselves from the record as to whether the income from grazing has been shown have to been recovered from occupied or unoccupied land. A few test entries were checked and the relevant entries are given in the extracts appended to this judgment. From these extracts it will be seen that the grazing income has been shown in the books to have been realised from "jungle" or hills "dungar". In the face of such clear entry in the account books and in the absence of any specific evidence to the contrary produced by the Government Advocate we do not see any reason to hold that grazing income from occupied area has been allowed. We can only conclude that objection has been made on a general basis without any concrete instance being on record. In our view, therefore, all the items which have been objected to by the Government Advocate had been properly allowed by the Jagir Commissioner after due enquiry and examination and we do not see any reason to set aside his findings in respect of these items under appeal. After we heard the objections contained in the memorandum of appeal filed by the Government Advocate on 6. 4. 61 we were requested to give consideration to another application submitted by the Government Advocate on 16. 8. 1961. This was an application under O. 41, Rule 2 of the Civil Procedure Code containing an "additional plea" regarding a sum of Rs. 5,49,234. 77 np. about which a certificate in Form No. 10 had been issued by the Collector, Tonk for effecting deductions from compensation amount payable to the jagirdar. The Government Advocate conceded that this plea was not taken in the original memorandum of appeal and that the plea was purely legal and went to the root of the case and did not require any additional evidence of proof and had been discussed by the learned lower court. It was, therefore, prayed that this additional plea may be allowed to be taken up and argued. This application was contested by the counsel for the Jagirdar. It was argued that it dealt with a matter which was not covered by any of the matters contained in the original memo of appeal dated 6. 4. 61, and that it introduced a fresh objection. Since such a fresh objection had been filed after the period of limitation it could not be entertained and should be rejected. This application was consequently argued at length by both the counsel. The learned Government counsel referred to O. 41, R. 2, of the Civil Procedure Code which provided that "the appellant shall not except by leave of the court, urge or be heard in support of any ground of objection not set-forth in the memo of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule; Provided that the court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground". The learned Government counsel, therefore, requested that the court may grant leave for raising the objection contained in his application dated 16. 8. 61, of which the opposite party had sufficient notice as it had been submitted on 16. 8. 61. Alternatively he also referred to R. 33, of O. 41, which provides - "the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or party may not have filed any appeal or objections; Provided that the Appellate Court shall not make any order under sec. 35. A in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. " ;