- (1.) THIS is an appeal against an order of the Additional Commissioner, Udaipur, dated 16. 10. 1954 in a case relating to entries in the revenue papers.
(2.) WE have heard the parties and have examined the record as well. Put briefly the facts of the case are that in 1939 the entry in respect of the land in dispute in the Record of Rights stood in the name of Hiralal as kharamdar tenant with Pyarelal as a mortgagee in possession. On Asadh badi 13, Svt. 1995 (roughly corresponding to 18th June, 1939), Namedar of Niyobat Bhawana of the former Mewar State submitted a report to his officer that Pyarelal mortgagee was not regular in payment of rents and that the land was being cultivated by some tenants under him, hence steps be taken either to ensure regular payments of rents by Pyarelal or the actual tenant's names be entered in the papers. Eventually this report after many journeys to and fro reached the Hakim Devasthan who passed the following order on 30. 12. 1939. "returned in original with the remarks that Beni Ram's khata is under mortgage with Pyarelal who does not pay rent regularly at the appointed time, nor does he attend to written requests. Under these circumstances it is unnecessary to retain his entry as mortgagee and it is proper to put the mortgagor back into possession. However, the point at issue at present relates only to regular recovery of rent. So instead of the name of the mortgagee the name of Kanhaiyalal Brahmin, Bera Bhil, Kalu Brahmin, Lal Bhil, be entered as shikmi-kashtkar and rents to be realised from them. Pyarelal be informed from there, The Naib Hakim Bhawana felt some doubts as regards the actual implications of this order. He was not clear as to whether the mortgagee's name would dis-appear from the records or that the mortgagor would be put back in possession and hence he made a reference to the Devasthan Officer on 19. 1. 1940. The Devasthan Officer returned the papers on 15. 2. 1940 with the observations that the mortgagees were likely to raise objections which would be considered as and when raised. The order given previously be carried out. Steps were taken to carry out changes in the papers which appear to have been done on 18. 4. 1941 and Pyarelal was informed on 26 10-1941 Pyarelal presented an application to the Mahakma Devasthan taking serious objections to the order passed against him. His objections were that he was mortgagee in possession of the land in dispute and could not be deprived of the land in this summary manner, that he had advanced a loan of Rs. 2300/- on the security of the mortgage, and that the tents were never in arrears. This report was forwarded to the Naib Hakim with the remarks that the order against which objections were taken by Pyarelal was passed by the Devasthan Department against his recommendation; and that it was certainly open to grave objections. He also went to the length or suggesting that the entries should be restored in favour of the mortgagee. The Devasthan Department ultimately referred the matter to the mahkma mal on 7. 2. 1942. The learned Revenue Commissioner demanded a report from his Head Clerk regarding amal dramas. His reports was to the effect that an appeal should have been filed against the order of Devasthan Department or a suit for redemption of mortgage should be brought against the bapidars. The Devasthan Department was directed to take action accordingly. When the papers reached the Naib Hakim, objections were raised as regards the procedure suggested by the Revenue Commissioner. Hence the matter was referred again to him. The Head Clerk was again required to make a report and the papers were returned to the Devasthan Department, Devasthan Department ultimately filed the papers on 13. 8. 1942. There is nothing on the record to suggest that Pyarelal was ever informed of the date of final decision in his case. On 22. 1. 1947 Pyarelal submitted a fresh application to the Revenue Commissioner, who demanded a report from the Devasthan Department. On 6. 11. 1947 the following order was passed by the learned Revenue Commissioner of the former Udaipur unit : "the record be returned under sec. 25 Quanun Mal with the direction that the mortgagee would not be dispossessed and that he should be put back in possession in accordance with the entries in the Record of Rights. As for realisation of arrears of rent steps should be taken in accordance with the procedure prescribed in the law. " It appears that this order was complied with and Pyarelal was put back in possession. Nahar Mal filed an appeal against this order before the Appeal Board of the former Mewar unit, which set aside the decision of the Revenue Commissioner and directed that Nahar Mal should be allowed an opportunity to present his case and the same should be decided after that. The Divisional Commissioner Udaipur got this case as a legacy from the past and made a refernce to the Board. The Revenue Commissioner was authorised to hear the case in accordance with the law. The Revenue Commissioner heard it as an appeal and set aside the order of the Devasthan and directed that the name of the mortgagee should continue in the Record of Rights and he should be put back in possession. Naharmal has come up in appeal before us against this decision. The learned counsel appearing for the appellant has argued that the lower court had jurisdiction to treat the review petition as an appeal and that no appeal could have been filed without a certified copy of the order, that matter was within the jurisdiction of a civil court as it involved a question of proprietary right, that the lower court had no authority to cancel the sale deed executed in his favour by Hiralal Kharamdar and that the order of the Dharmarth Department was final and could not have been set aside. It was replied on behalf of the respondents that the Devasthan Department had no jurisdiction to change entries in the Record of Rights, that the Dharmarth Department could not direct redemption of the mortgage in an arbitrary and despotic manner, that the lower court was fully justified in restoring possession to the respondent as he was deprived of it thorough wrongful means. The learned counsel has not been able to show us any law or rule or notification of the former Mewar State whereby the Devasthan Department was authorised to make changes in the Record of Rights prepared during the settlement operations. Quanun bandobast (jagir and muafi) 1935 of the former Mewar State clearly lays down that "no changes in the Record of Rights can be made without the sanction of the Settlement Department (Sec. 6 ). " Quanun Mal Mewar, 1947, contains an elaborate procedure for the correction of entries in the record of Rights and annual papers. The Devasthan Department is nowhere authorised to order such change. The order of the Devasthan Department is thus clearly untenable. Redemption of mortgage and re-delivery of possession from the mortgagee to the mortgagor cannot obviously be done in a summary manner resorted to by the Devasthan Department in this case. The order dated 30. 12. 1939 if strictly interpreted would simply mean that the sub-tenant names should appear in the record. There are no clear indications in it that the mortgage should stand redeemed and that possession should be re-delivered to the mortgagor. As is clear from these papers the mortgagor was nowhere in the picture and he never expressed any request for being given back possession over the mortgaged property. Some over-enthusiastic officer of the Devasthan Department appears to have taken into his head to deprive the mortgagee of the possession on the pretext of the rent being in arrears. As soon as the mortgagee came to know of this move he raised objections to it and surprisingly enough without deciding them in accordance with the law they were consigned to records. Sec. 50 of the Quanun Mal Mewar lays down that "a kharamdar khatedar or mustakil shikmi who is deprived of his possession otherwise than in execution of an order of civil court or revenue court can be put back in possession within one year by an order of the Deputy Collector, and the order so passed in favour of the tenant shall be final subject to a decision of a competent court. " As pointed out above Pyarelal presented his application on 26. 10. 1941 to the Devasthan Department which reached the Revenue Commissioner a number of times but was always returned without being enquired into properly. When nothing could be achieved for a number of years Pyarelal submitted a fresh application before the Revenue Commissoner on 23. 1. 47. The Revenue Commissioner after examining the entire circumstances of the case came to the conclusion that Pyarelal had been deprived wrongfully of his possession, that the entries in the Revenue Record were changed illegally and irregularly and that if any arrears of rent existed they should have been realised in accordance with the law. Naharmal can hardly have any legal entity distinct from Hiralal. He alleges to have purchased the land from Hiralal. Naharmal cannot have a better title or right to occupy the land than Hiralal who obtained possession from Pyarelal wrongfully and without any resort to law. What is more important is the fact that Pyarelal had raised objection to his deprivation of possession as early as 26. 10. 1941 and before any final decision could be taken in the matter Hiralal is alleged to have effected transfer of the land by sale in favour of Naharmal. This transfer can hardly be effective against the rights and interests of Pyarelal. To conclude, therefore, we hold that the manner in which the Dharmarth Department acted in the case was completely illegal and improper. The learned Additional Commissioner, was therefore, justified in setting aside the same and passing an order whthin the circumstances demanded in the interest of justice and fair play. There is no substance in this appeal which is hereby rejected. . ;