- (1.) THIS appeal against an appellate order of the Additional Commissioner, Jodhpur, dated 26.7.1954 arises out of a suit filed by the appellant for recovery of possession of his share of the grant against the respondent. The suit was decreed by the S.D.O. but was rejected in first appeal by the lower appellate courts
(2.) WE have, heard the learned counsel appearing for the parties and have gone through the record as well. The facts of the case have been set out at length in the judgment of the learned Additional Commissioner and hence need not be repeated here. The only question involved in this second appeal before us relates to the interpretation of sec. 7 of Chapter IX of the Rules and Regulations for the jagirdars of the Sirohi State, 1923. This section runs as follows: - "Escheat: Failure of heir - 7. If there is no lineal descendant in the male line existent of the 'original grantee' of the jagir or the hukamnama panti, such jagir or hukamnama panti shall escheat to the State, similarly if there is no lineal descendant in the male line of the 'original grantee' of a chhutbhais' panti, such panti shall escheat to the nearest headman of the family within the jagir." In the present case the grant was created by Chiman Singh Patvi in Svt. 1950 in favour of his four chhutbhais Guman Singh, Jamat Singh, Umed Singh and Sheonath Singh. The original deed of grant has been produced in the case and has been reproduced by the S.D.O, in his judgment dated 6.2.1951. A reference to this deed makes it perfectly clear that the grant was made jointly in favour of the four brothers. It has been argued on behalf of the respondent that in Svt. 1972 there was a partition between the grantees and that it should be deemed to have put an end to the joint nature of the grant. Reliance is placed in this connection on Exhibit P. 2, which is a document executed in Svt. 1972 regarding repayment of loans to certain creditors. In the first place, the arrange-ment that was made in Svt. 1972 regarding the repayment of loans does not amount to a petition. Secondly, even if it be held that the grantees who were alive at that time arranged amongst themselves to enjoy the, grant in separate shares, it will hardly have any bearing upon interpretation of sec. 7 reproduced above. It is an admitted fact that no hukamnama was issued in respect of these pantis and as such they do not come under the category of hukamnama panti as defined in sec. 5 of Chapter I of the Rules. The grant is, therefore, to be treated as a chhutbhai panti (sec. 6 Chapter I of the Rules). The word 'Original grantee' has also been defined in rule 8 Chapter I as follows: - "The original grantee of a jagir shall be considered to be that ancestor of the jagirdar named in separate decision of agreement who acquired the jagir whether as a direct grant from the State or otherwise provided that the present jagirdar is a lineal descendant in the male line of such ancestor." As pointed out above the original grantees in the present case would be all four brothers Guman Singh, Jamat Singh, Umaid Singh and Sheonath Singh, whose names appear in the deed of grant of Svt. 1950. As the plaintiff is a son of the original grantee, Sheonath Singh, this grant cannot escheat to the patvi who is the respondent before us. The learned Additional Commissioner has given no valid or cogent reasons for his decision but has based it merely on conjectures as to what is generally done by a jagirdar while making sub-grants in favour of his chhutbhais. In the face of clear rules on the subject we can not allow these surmises to prevail. The judgment of the lower appellate court is, therefore, clearly wrong and untenable. We would, therefore, allow this appeal, set aside the order of the learned Additional Commissioner and restore that of the S.D.O.;