- (1.) THESE are two cross appeals by both the parties against an appellate order of the Additional Commissioner, Jaipur, dated 25.11.53 in a lumberdari case.
(2.) THE brief facts of the case are that there was one Narain lumberdar of village Sakat, Tehsil Rajgarh, District Alwar. This Narain died in 1948 and the question of succession to lumberdari arose. THE Collector after enquiry found that the last lumberdar Narain was not living in the village and Ganglia was acting as his sarbarakar. He, therefore, holding that Sujia the grand son of Narain Meena who had claimed lumberdari was not residing in the village and was not likely to perform the duties or a lumberdar properly, appointed Ganglia as lumberdar. On an appeal to the Additional Commissioner, the order was modified to the extent that Ganglia was appointed as lumberdar on a temporary basis for a period of one year on condition that if Sujia returned to the village and settled down there permanently within a month from the date of the Additional Commissioner's order and applied to the Collector after six months of the order for being appointed as lumberdar and satisfied the Collector that he had in fact returned permanently to the village also and redeemed his property he be appointed as lumberdar in place of the deceased Narain without any further enquiry. THE Additional Commissioner also laid down a condition that Sujia if appointed as lumberdar shall not take a substitute or sarbarakar. Both the parties have now come against this order in second appeal before us. We have heard the counsel for the parties and have examined the record of the case as well. The counsel for Sujia argued that the condition laid down by the Additional Commissioner in his order for Sujia's return to the village was not justified and his client should have been appointed as lumberdar straight away. We have no hesitation in saying that there is no substance in this argument. It is a fact that the applicant Sujia is the nearest descendant of the last lumberdar. being his grand son and has prior claim to succeed him. It is clear from the order of the Collector that the claim of Sujia to his appointment as lumberdar was dismissed mainly on the ground that he did not live in the village and was permanently residing in a village in Jaipur District far away from Sakat Sec. 209 of the Alwar Revenue Code which governs such cases of succession to lumberdari clearly lays down that "the Collector may refuse to appoint as lumberdar a person claiming as an heir on any ground on which a lumberdar can be dismissed under sec. 27 of the Code". Sec. 27 which deals with the dismissal of lumberdar contains a provision to the effect that if "owing to age, or mental incapacity or absence from the State, he is unable to discharge his duties of his office" a lumberdar may be dismissed. Since Sujia is not living in the village and has not even returned to the village inspite of the order of the Additional Commissioner which was passed in November, 1953, as is evident from the affidavit filed by the opposite party, we consider that the order passed by the Collector in over-looking his claim for lumberdari was justified. His appeal, is, therefore, dismissed. As regards the cross appeal by Ganglia, it is admitted that he was only a sarbarakar of Narain and has no claim by inheritance to the lumberdari of Narain. According to sec. 209 the nearest eligible heir according to the rule of primogeniture, shall be appointed unless on some special title to succession some one else is distinctly proved. It is not clear from the record whether there is any other collateral heir of the deceased Narain who may be entitled to appointment as lumberdar by virtue of Sec. 209 of Alwar Revenue Code. The question of appointment of a permanent lumberdar from any other family should only arise when the claims of all persons in the family have been already considered under the above section Ganglia, therefore, has no claim before the claims of all possible heirs are first exhausted. We would, therefore, partly accept the appeal and modify the order of the Additional Commissioner so as to up-hold his order for appointment of Ganglia for one year only and remand the case for the appointment of a permanent lumberdar to the Collector, Alwar, for fresh decision in the light of the observations made above.;