- (1.) THIS is a defendant's second appeal arising out of a suit for possession of a house site from the defendant.
(2.) THE plaintiff came forward with the case that he was the Jagirdar of village Sadas in Tehsil Gangrar,district Chittorgarh. THE jagir of Sadas was resumed on 1-7-54. THE plaintiff submitted a list of his personal properties to the Jagir Commissioner and the latter declared the disputed plot along with some other items of property to be his personal property. It was alleged that the defendants had taken unlawful possession of this plot with the connivance of the Gram Panchayat of Sadas. THE plaintiff, therefore, prayed that the plot be declared to be of his ownership and its possession be restored to him. He also claimed Rs. 72/-as mesne profits at the rate of Rs. 21-per month, The defendant denied that the plot was the property of the plaintiff. He stated that the plot belonged to the Gram Panchyat which put the plot to an auction sale and the defendant had purchased it at that auction. The defendant further pleaded that he had no knowledge of any decision of the Jagir Commissioner declaring the plot to be the personal property of the plaintiff. The learned Civil Judge, Chittorgarh, before whom the suit was filed, framed the following issues : (1) Whether the disputed plot of land belonged to the plaintiff? (2) Whether defendants took illegal possession on 10-2-55 of the disputed plot ? (8) Whether the suit was barred by limitation ? (4) Whether the judgment of previous suit No. 66/61 operated as res judicata in this suit ? (5) Whether this suit was barred by the principle of estoppel as the plaintiff did not file any objection in time in the Gram Panchayat ? (6) Whether the defendants purchased the disputed land in good faith and bona fide in public auction ? (7) Whether the suit was not maintainable as the Gram Panchayat has not been made a party ? (8) Whether defendants were entitled to special costs Rs. 300/- ? (9) Relief? Having recorded the evidence of the parties, the learned Civil Judge came to the conclusion that the plaintiff had not been successful in proving that the plot belonged to him. He further found that the plot was put to public auction by the Gram Panchayat and the defendants had purchased it for Rs. 185/- and he was put in possession of the plot by the Gram Panchayat vide the Patta Ex. A/1 dated 10-10-55. The learned Judge consequently dismissed the suit. Aggrieved by the decree of the learned Civil Judge the plaintiff went up in appeal to the court of the learned District Judge, Partabgarh. The learned Judge on considering the evidence led in the case held that the plot belonged to the plaintiff. He went on to say that the plaintiff was the ex Jagirdar and consequent to the resumption of his jagir the jagir land vested in the State subject to other provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, hereinafter to be referred as the "act". The learned Judge also found that the Jagir Commissioner had declared the properties in list Ex. 1 which included the property in dispute at item No. 8 to be the personal property of the ex-Jagirdar by his order dated 6-11-58 (Ex. 4) and consequently the plaintiff was its owner. The essentials of the reasonings of the learned Judge are contained in the following passage: " In order to prove issue No. 1 the plaintiff produced Ex. 1 list of personal property and Ex. 2 copy of the order of Jagir Commissioner dated 6-11-1958, whereby the plaintiff's personal property has been recognised. It seems the learned Civil Judge did not give due weight to these two documents. The learned counsel for the respondent submitted that the order of the Jagir Commissioner was made at the back of the respondents and that as the respondents were not party to those proceedings, they were not bound by the decision of the Jagir Commissioner. In my opinion there is no force in this argument. The Rajasthan Resumption of Jagirs and Reformation of Land Act is a special law. It makes provisions for resumption of certain Jagirs and for declaring the personal property of the Jagirdars. It gives certain exclusive powers to the Jagir Commissioner under sec. 37 of that Act. The list of the personal property is prepared and sanctioned as required by sec. 23 of that Act. Those proceedings are essentially between the Jagirdar on the one hand and the State on the other hand. Matters covered by sec. 37 of that Act cannot be questioned in a Civil Court. Under these circumstances it is clear that the order of the Jagir Commissioner cannot be challenged in this suit. It is, therefore, prima facie proved that the land in dispute belongs to the plaintiff. " Thus, according to the learned District Judge, as the plot in dispute had been recognised by the Jagir Commissioner to be the property of the plaintiff and as the Act under which the Jagir Commissioner passed the order declaring the property to be the personal property of the ex-Jagirdar was especial law and it conferred exclusive jurisdiction to the Jagir Commissioner in the matter, the civil court was, not competent to question the validity of the order. In the result, the learned Judge allowed the appeal and decreed the plaintiff's suit. It is in these circumstances that the defendants have come in appeal to this Court. Learned counsel for the appellants has contended that the property in dispute was an open village site and was consequently subject to resumption and was resumed according to law and in the circumstances the same could not have been included in the private property of the ex-Jagirdar. Learned counsel also questioned the correctness of the view taken by the learned District Judge regarding the effect of sec. 37 of the Act. Learned counsel maintains that sec. 37 was wholly inapplicable to the present matter and any property which did not fulfil the requirements of of sec. 23 (2) of the Act could not have at all been declared to be the property of the Jagirdar. Thus, according to learned counsel, the order of the Jagir Commissioner being without jurisdiction could be challenged by the defendant in the present proceedings in a civil court. Apart from this, learned counsel submitted that the defendant or the Gram Panchayat were not party to the proceedings before the Jagir Commissioner and as the plot in question had already been auctioned by the Gram Panchayat and the defendant put in possession thereof having paid the amount of Rs. 185/- it was absolutely necessary for the Jagir Commissioner to have afforded an opportunity to the Gram Panchayat and the defendant to have their say before passing any order declaring the property to be that of the plaintiff and this, according to learned counsel violated the principles of natural justice so as to render the order of the Jagir Commissioner altogether null and void. Learned counsel for the respondent, on the other hand, has supported the reasoning of the learned District Judge. Learned counsel further submitted that from the evidence led by the plaintiff it was established that the plot was in the possession of the plaintiff and was being used by him for agricultural and domestic purposes. The plaintiff used to tether his cattle there and also he used to stock fodder on the plot. The learned counsel submitted that according to the plaintiff the plot had been enclosed by constructing walls around it, as has been pleaded in the plaint, and thus the Jagir Commissioner, according to learned counsel, was competent to declare the property to be that of the plaintiff ex-Jagirdar. The question that thus falls to be considered is whether the order of the Jagir Commissioner Ex. 4 could, in the circumstances, prevail over the order of the Gram Panchayat granting Patta to the defendant. While considering the question it will be seen whether the civil court could in the circumstances examine the validity of the order of the Jagir Commissioner. It will be convenient at this stage to refer to the relevant provisions of the Act. The term "jagir land" has been defined to mean any land in which or in relation to which the Jagirdar has rights in respect of land revenue or any other kind of revenue and includes any land on any of the tenures specified in the first schedule. The schedule refers to all kinds of tenures that were found in Rajasthan in the various covenanting States. The definition of the term ''jagir land" thus covers not only agricultural lands but also house sites which were included in the Jagir. On the issuing of a notification under sec. 21 and from the appointed date the Jagir land indicated in the notification would vest in the State Government. The consequences of such resumption are stated in sec. 22 of the Act. It inter alia, provides that save as otherwise provided in this Act as from the appointed date on the resumption of any Jagir lands notwithstanding anything contained in any existing Jagir law the right, title and interest of the Jagirdar and of every other person claiming through him in his Jagir land including forests, fisheries, wells, tanks, ponds, water channels, ferries, pathways, village sites, hats, bazars and mela grounds and mines and minerals whether being worked or not, shall stand resumed to the Government free from all encumbrances. Village sites are thus clearly included in the lands that stand resumed to the State. There is, however, see. 23 which is in the nature of an exception or a proviso to sec. 22. I may read this section in full : " S. 23. Private lands, buildings, wells, house sites and enclosures (1) Notwithstanding anything contained in the last preceding section (a) Khudkasht lands of a Jagirdar; (b) (i) alll open enclosures used for agricultural or domestic purpose and in his conti-nuous possession (which includes possession of any predecessor-in-interest) for six years immediately before the date of resumption; (ii) x x x x x (iii) all private buildings, places of worship, and wells situated in, and trees standing on lands, included in such enclosures or house-sites, as are specified in cl. (i) 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 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 irrigation the lands of any tenant in the jagir land ; shall continue to be held by such jagirdar or other person; Provided that nothing contained in Cl. (d) shall affect the rights of the jagirdar in any portion of a tank which may be in the personal cultivation of the jagirdar. (2) If any question arises whether any proparty is of the nature referred to in sub-sec. (1), it shall be referred to the Jagir Commissioner, who may, after holding the prescribed enquiry, make such order thereon as he deems fit. " According to this Section it is only the properties of the category described in sub-sec. (1) that may continue to be held by the ex-Jagirdar notwithstanding the resumption. Further sub-sec. (2) creates the forum which has to decide the questions whether any property is of the nature referred to in sub-sec. (1 ). It is the Jagir Commissioner who is to hold the prescribed inquiry and then pass on order as he may deem fit whether any property is of the nature referred to in sub-sec. (1 ). Since the learned District Judge has relied on sec. 37 of the Act, I may read that section as well : S. 37. Question of title (1) If in the course of a proceeding under this Act any question relating to title, right or interest in any jagir land, other than a question as to any Khudkasht land or the correctness or otherwise of any entry relating thereto in settlement records or as to any boundary, map, field book, record of rights or annual register or as to any Wazib-ul-arz or Dasturganwai or any other settlement paper lawfully prepared or as to the correctness or otherwise of any entry made therein or a question referred to in sec. 3 of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1965, arises and the question so arising has not already been determined by a competent authority, the Jagir Commissioner shall proceed to make an inquiry into the merits of the question so arising and pass such orders thereon as he deems fit. (2) Every question referred to in sec. 3 of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955 shall be inquired into and decided by a revenue officer or court declared by the provisions of the said Act competent to do so. (3) Every other question excluded by sub-sec. (1) from the jurisdiction of the Jagir Commissioner shall be inquired into and decided by a revenue officer or court competent to do so under the provisions of the Rajasthan Land Revenue Act, 1956 or the the Rules made thereunder. (4) If any such question as is referred to in sub-sec. (2) and (3) arises in the course of a proceeding under this Act, the Jagir Commissioner shall refer it for inquiry and decision of the court competent to do so and shall be bound by, and act according to such decision. "
(3.) NOW regarding the private lands, buildings, wells and house sites and enclosures which continue to remain with the Jagirdar there is sec. 23. Sec. 37 clearly relates to questions of title or right or interest in any Jagir land and if such a question has not been determined by a competent authority the Jagir Commissioner shall proceed to make an inquiry into the merits of the question and then pass such order as he deems fit. The two sections have to be read in harmony so that the effect of one is not destroyed by the other. Therefore, what is covered by sec. 23 of the Act shall be taken to be outside the purview of sec. 37. Attention of the learned District Judge was not directed to sec. 23 of the Act and it was perhaps for that reason that he held that sec. 37 would govern the matter. Then I may refer to sec. 46 which creates a bar against the adjudication of such a question by a civil or a revenue court. The section reads : " S. 46. Bar of jurisdiction (1) Save as otherwise provided in this Act, no Civil or Revenue Court shall have jurisdiction in respect of any matter which is required to be settled, decided or tion in any dealt with by any officer or authority under this Act. (2) no order made by any such officer or authority under this Act shall be called in quescourt. " Now, if the Jagir Commissioner has acted with jurisdiction then the civil courts will undoubtedly be barred from entertaining any question regarding the validity of the order passed by him. Learned counsel for the appellants contends that the order of the Jagir Commissioner is void as against the appellants for two reasons firstly, because the appellant who had purchased the house site from the Gram Panchayat at a public auction was not afforded any opportunity by the Jagir Commissioner to have his say against the inclusion of this very property as the personal property of the Jagirdar. It was next submitted that in the list of private properties that has been brought on record in the present case it has not been mentioned that the house site was an enclosure and not an open one and further there was no averment that it was being used for agricultural or for domestic purposes or that the same had been in continuous possession of the Jagirdar or his predecessor for 6 years immediately before the date of resumption. In other words, the house site should have been in possession of the ex-Jagirdar or his predecessor atleast from 1948, if not from before. Thus, according to learned counsel, the necessary condition for the Jagir Commissioner to exercise his jurisdiction under sec. 23 (2) of the Act being wanting the Jagir Commissioner had committed an error of jurisdiction in declaring the house site to be the property of the ex Jagirdar. Learned counsel points out that even from the documents that are available on record it can be inferred that the Jagir Commissioner was in full know of the fact that the house site had been sold by the Gram Panchayat and the Tehsildar had even reported that the Jagirdar was not in possession of the house site in dispute. Not only so, the Jagirdar had even gone in appeal before the Tehsil Panchayat against the decision of the Gram Panchayat and had lost that appeal. Before proceeding further I may advert to the relevant documents. Ex. A/1 is the Patta granted by the Gram Panchayat to the defendant. It is dated 13-1-56. Ex. A/2 is the sale proclamation which shows that the land was to he auctioned on 20-4-55 and the persons who had claims, if any, on the land were invited to file their objections. Ex. 1 is the list of private properties submitted by the plaintiff before the Jagir Commissioner. It is undated and in item No. 2, the site in dispute has been described as follows : *** Ex. 3 is a report of the Tehsildar Gangrar. It appears therefrom that the guardian of the plaintiff who was then minor had made an application before the Jagir Commissioner on 17-2-55 that the Gram Panchayat Sadas was disposing of certain house sites inspite of the fact that the Jagirdar had applied for inclusion of such house sites in his private property under sec. 23 of the Act. On this the Tehsildar had also taken a reply from the Gram Panchayat. The Gram Panchayat had taken the position that the items 1 to 3 were in the possession of the Thikana (Jagirdar ). The Jagirdar was also in possession of item No. 4. Regarding itmes Nos. 6, 7, 10, 11, 12 and 13 it was stated that the Jagirdar was not in possession thereof. About items Nos. 5, 8 and 9 (we are concerned with item No. 8), the Gram Panchayat reported that the Thikana was not in possession of these plots and the Jagirdar had filed an objection before the Gram Panchayat. but had not adduced any evidence to substantiate his objection and after the objection was dismissed the plots were sold at an auction. Thereafter the Thikana had gone in appeal to the Tehsil Panchayat and the appeal had been dismissed. Thus, according to the Gram Panchayat the Jagirdar's claim with respect to these items of house sites was not correct. Having narrated this the Tehsildar recommended that these items may be declared the private property of the ex-Jagirdar. This report was sent to the Deputy Collector Jagir, Chittorgarh who forwarded the same to the Jagir Commissioner and it was thereafter that the Jagir Commissioner passed the order Ex. 4. ;