- (1.) THESE two plaintiffs' second appeals came originally for hearing before a learned single Judge who has referred them to a Division Bench as important and compli-cated questions of law arise for decision therein.
(2.) APPEAL No, 251 of 1953 arises out of suit No. 53 of 1951 filed by Goswami Vithalnath of Kankroli, plaintiff, and is directed against the judgments and decree of the Civil Judge, Udaipur, in appeals Nos. 61 and 62 of 1953 by which he allowed the defendant's appeal and set aside the decree of the Munsiff and dismissed the plaintiff's suit for recovery of what is called 'jhumpi Bhara' and also dismissed the plaintiff's cross appeal for the amount of arrears of Jhumpi Bhara disallowed by the trial court. Appeal No. 19 of 1954 arises out of suit No. 118 of 1951 filed by Goswami Govindlal of Nathdwara and is directed against the appellate judgment and decree of the Civil Judge, Udaipur (in appeal No. 32 of 1953) dismissing the plaintiff's appeal against the decree of the trial court by which it partly decreed his claim for Rs 5/- as Jhumpi Bhara but dismissed the rest of his suit. The defendant in both the suits was one Kalu who is the respondent before us. In both appeals certain common questions of law relating to the abolition or otherwise of Jhumpi Bhara by virtue of the United State of Rajasthan Abolition of Lagats Ordinance (No. XIII) of 1948 ( (hereinafter referred to as Lagats Abolition Ordinance) mainly arise for determination and, therefore, we propose to decide both appeals by a common judgment. We think it proper to give a few salient facts of the two cases in order to be able to appreciate the legal questions which have arisen for determination. As to suit No. of 1951, the facts are these. The plaintiff Goswami Vithalnath is the manager of the temple of Mathuranathji in Kankroli and the jagir granted to the temple is known as Chhota Bhandar Goswami Vithalnath's case is that in village Gopalpura, of the patta of Chhota Bhandar, there are 8 shops and 2 Hatdas (open spaces used for shops) situated in the Bazar and that Bohra Bakshnath an ancestor of the defendant Kalu used to pay for these a sum of Rs. 58/8/-annually as Jhumpi Bhara in two six monthly instalments of Rs. 29/4/ -. After Bakshnath's death the defendant has likewise been in possession of the shops and hatdas in question and had been paying Jhumpi Bhara for them until sometime in Svt. 2002. The plaintiff's case is that thereafter the defendant defaulted in payment of Jhumpi Bhara for part of Svt. 2002 and for Svt. 2003 to Chet of Svt. 2005 and a sum of Rs. 179/15/6 was outstanding against the latter upto Chet Vadi 15 Svt. 2005 (corresponding to the 29th March, 1949),. The plaintiff, therefore, brought the present suit on the 4th April, 1949, in the court of the Munsiff, Nathdwara, for recovery of Rs. 179/15/6 accordingly. We may point out at this place that references to dates in Samvat years in these cases is in accordance with the Gujrati system. As to suit No. 118 of 1951, the case of Goswami Govindlal of Nathdwara is that he is the jagirdar of thikana Nathdwara and that a certain house situate in mohalla Telipura of village Nathdwara was leased to Bohra Bakshnath ancestor of the defendant on Rs. 62/- per annum. After the death of Bakshnath this house came into the possession of the defendant Kalu who continued to pay rent for it regularly up to Svt. 1995. The plaintiff's case is that in Svt. 1996, the defendant made an application Ex. P-2 in the thikana that the house in question had not been taken by him or by his ancestor Bohra Bakshnath on rent but that they had been paying a sum of Rs. 62/- per annum as 'jhumpi' for it and, therefore, he prayed for a receipt being granted to him for the payments made, as Jhumpi Bhara, and not as rent. Later in Svt. 1997 the defendant again made an application (Ex. P-l) that he was prepared to pay a Nazrana of Rs. 201 for the house in question and therefore, his request for being given a receipt for Jhumpi Bhara be accepted. The plaintiff acceded to this prayer and accordingly the defendant continued to pay, and the plaintiff accepted, Jhumpi Bharat the rate of Rs. 62/- per annum up to Svt. 2004 Asoj Vadi 15 (corresponding to the 1st of Nov. , 1948) but thereafter the defendant Kalu ceased to make any further payments. It is alleged that a sum of Rs. 162/12/- fell due against the defendant as Jhumpi Bhara from Svt. 2005 Kati Sudi 1 (corresponding to the 2nd November, 1948) to Svt. 2007 Baisakh Sudi 15 (corresponding to the 21st May1951) at the rate of Rs. 62/- per annum and the plaintiff filed this suit for the recovery of this amount on the 28th May, 1951, in the court of the Munsiff, Nathdwara. It may be mentioned that in para 3 of the plaint, the amount of Jhumpi Bhara settled between the parties is stated to be Rs, 72/-, but this is obviously a mistake for Rs. 62/- reading the plaint as a whole. In his plaint in this case, the plaintiff also stated that the expression Jhumpi or Jhumpi Bhara connoted a sort of permanent ground rent and any person who took property on Jhumpi Bhara was entitled to make improvements on the property as well as to alienate it and could not be ejected so long as he continued to pay Jhumpi Bhara. The suggestion was that an ordinary tenant was liable out to ejectment from the property rented out to him, that the rent could also be increased or decreased and that the tenant was not entitled to make improvements on the property or to alienate it, but a person who held the property on Jhumpi Bhara held the property on a sort of permanent tenure and his right was both transferable and he-riable and he was immune from ejectment so long as he continued to pay Jhumpi Bhara. The defendant resisted both suits and raised a number of pleas. We do not propose to mention these pleas in detail for the purposes of the present appeals because the controversy before us has centered round one plea only. That plea is that Jhumpi Bhara was a Lagat and that all Lagats had been abolished by the Lagats Abolition Ordinance, and therefore, the plaintiff's suit for recovery of the said Lagat was not maintainable. The learned Munsiff found in suit No. 53, of 1921 that the defendant had been paying a Jhumpi Bhara amounting to Rs. 58/8-annually to the plaintiff in respect of the eight shops and two Hatdas situate in the Bazar of village Gopalpura and that a sum of Rs. 146/4/'- was outstanding against the defendant by way of Jhumpi Bhara up to Svt. 2005 Chait Vadi 15 (Corresponding to the 29th March 1949) on that computation. The Munsiff further held that Jhumpi Bhara was a Lagat and that as such it stood abolished by virtue of the Lagats Abolition Ordinance of 1958, and, therefore, was not recoverable after the said ordinance came into force on the 24th June, 1948. Consequently the Munsiff decreed the plaintiff's suit for a sum of Rs. 102/- only as amount due up to the date the Lagats Abolition ordinance came into operation From that, judgment, both parties went in appeal the learned Civil Judge who held that according to sec. 4 of the Lagats Abolition Ordinance; all Lagats became unrecoverable after the coming into force of the Ordinance whether they related to the period before the coming into force of the Ordinance or otherwise. The learned Civil Judge appears to have assumed in his judgment that Jhumpi Bhara was a Lagat and that it fell within the ambit of the Lagats Abolition Ordinance. In this view of the matter, the learned Civil-Judge dismissed the plaintiff's suit in toto and allowed the defendant's appeal and consequently the plaintiff has filed appeal No. 251 of 1953. So far as suit No. 118 of 1951 (by Goswami Govindlal of Nathdwara) is concerned, the Munsiff held on his view that Jhumpi Bhara was a Lagat that the plaintiff was entitled to recover Jhumpi Bhara up to the 24th June, 1948 only (on which date the Lagats Abolition Ordinance came into operation) and awarded a decree for a sum of Rs. 5/- only in favour of the plaintiff for 25 days at the rate of Rs. 62/- per annum under the impression that the cause of action for arrears in this case had arisen on the 29th May, 1948. This impression was, however, quite wrong as the plaintiff's claim for recovery of Jhumpi Bhara arose in this case for the first time on Svt. 2004 Asoj Vadi 15 Gujrati which corresponds to the 2nd Nov. . 1948 (and this is admitted before us by learned counsel for the plaintiff respondent) after the Lagats Abolition Ordinance came into force and, therefore, on his reasoning the Munsiff should have dismissed this suit. Be that as it may, the defendant was obviously content with this decree as the amount involved was too small and he probably did not consider it worthwhile to contest it any further, but the plaintiff went in appeal to the Civil Judge and the latter dismissed this appeal on the same reasoning, namely, that Jhumpi Bhara was a Lagats and that it was hit by the Lagats Abolition Ordinance. The plaintiff has come up in second appeal from that decree to this Court. Having regard to the arguments raised before us, the only question for determination in these appeals is whether the view of the courts below that Jhumpi Bhara is a Lagat and that it is hit by the Lagats Abolition Ordinance of 1948 enacted by the former State of Rajasthan is correct. The first question to consider is what is Jhumpi Bhara. It was strenuously contended before us on behalf of the plaintiffs that Jhumpi Bhara was in the nature of ground rent. The argument was that the defendant had been given, or permitted to remain in, possession of the suit properties on payment of certain Nazarana which was in the nature of premium of lease money and in addition thereto there was ground rent which was payable annually, and that there was nothing objectionable about this and such a system whereby the landlord charged a ground rent in addition to premium for the properties given on lease was neither unusual nor objectionable in law and was indeed permitted by the Transfer of Property Act. On the other hand, it was equally strenuously argued on behalf of the defendant respondent that Jhumpi Bhara was nothing but a Lagat and that it was a cess or tax exacted by a jagirdar from his subjects and fell squarely within the ambit of the Lagat Abolition Ordinance and was struck down by it and was therefore, unrecoverable. This brings us to a consideration of the Lagats Abolition Ordinance, and before we say anything further as to what Jhumpi Bhara is or is not, we propose to address ourselves to the question whether Jhumpi Bhora is a lagat within the meaning of the said Ordinance,
(3.) THE Lagats Abolition Ordinance consists of nine sections in all, and if we may say, without any dis-respect, is an unhappily worded piece of legislation. This Ordinance was obviously intended to abolish all lagats in the whole of the former State of Rajasthan which consisted of as many as ten States and yet the formers of this Ordinance failed to give any definition of the term legat in the Ordinance. For aught we know, there might well have been different lagats in different princely States, and for a proper application of the Ordinance, it was both desirable and necessary that the term lagat should have been defined by the Ordinance. Fortunately for the area from which this litigation arises the definition of the word lagat is to be found in Kanun Maal Mswati (Act. No. 5 of 1947), and it was argued before us that we should apply this definition to the Lagats Abolition ordinance in so far as the former State of Mewar is concerned, from which part of Rajasthan these cases come. We may point out in this connection that when the former State of Rajasthan came to be formed, an Ordinance was issued named as the United-State of Rajasthan Administration Ordinance (No. I) of 1948 By sec. 3 of the Ordinance, it was provided that all laws, Ordinances, Acts, Rules etc. having the force of law in any covenanting State shall continue to remain in force until repealed or amended by a competent authority or unless otherwise provided by any law. THE Kanun Maal Mewar was not abolished at all relevant times for the purposes of, the present litigation and therefore, we consider that we are not unjustified in looking to the Kanun Maal Mewar for the definition of the term lagat so far as the former State of Mewar is concerned. THE term lagat according to the definition given in sec. 8 of this enactment may be rendered as a levy not included in the Maal Hasil and which is payable according to the Kanun-Maal Mewar or the rules made thereunder or in accordance with the village custom by an agriculturist or by any other person. That Maal Hasil has been defined in clause (1) of sec. 4 as lagam which is paid annually to the State or the Jagirdar by a tenant in lieu of his enjoyment or possession of agricultural land. Reading the two definitions together, one thing is clear that the term lagat means something apart from land revenue or rent payable by an agriculturist in respect of the land held by him to the jagirdar or the State. It is common knowledge that the State as well as the jagirdar used to charge extra levies from their Riyaya. The definition of lagat, though it may be more or less satisfactory in case of an agriculturist, does not give us much assistance so far as the lagats imposed on non-agriculturists are concerned. We may take the opportunity of pointing oat in passing that where a similar question should arise relating to the abolition of a so-called lagat in any other covenanting State forming part of what was the former Rajasthan and the question is whether a particular charge falls within the definition of lagat as used in the Lagats Abolition Ordinance, then it should, unless it directly falls within the classes of lagats named in the Ordinance itself, be determined with reference to the definition of the term lagat in the laws of the State because such laws have been kept alive as in the case of the former State of Mewar by the United State of Rajasthan Administration Ordinance, 1949, for the other covenanting States also. Be that as it may, let us now analyse the Lagats Abolition Ordinance. The preamble says that the Ordinance was made to provide for the abolition of lagats but as we have already pointed out above, the word "lagat" has not been defined in the Ordinance itself Sec. 1 provides for short title, extent and commencement of the Ordinance. Then follow secs. 2 and 3 which aim at abolishing lagats payable by agriculturists in settled or unsettled areas respectively. These sections run as follows - (2) No lagat connected with the occupation or enjoyment of land or rights therein shall be payable by or recoverable from any person paying land revenue in any area in the United State of Rajasthan in which a revenue settlement has been made at the date of the commencement of this Ordinance or is made hereafter. (3) No lagats such as aforesaid shall be payable by, or recoverable from any person paying land revenue in any area other than one covered by sec. 2, except Sukhar Banta, Bighodi and Rokad payable as land charges on the scales in force at the commencement of this Ordinance. These sections to our mind are imperfectly worded. Literally interpreted; they are apt to mean that once an agriculturist pays land-revenue for some land, no lagats can at all be levied against him for any other land of which he may be in possession but for which he may not be paying any land-revenue to the State or to the jagirdar. This does not appear to us to be the true or the probable intention of the legislature in enacting these sections and we are disposed to consider that the real intention of the framers of the Ordinance in enacting these sanctions was that no agriculturist was to be called upon to pay lagats for the land for which he in fact pays land revenue - and that he was not to be exempt from payment of any lagats as to other lands held by him say in the abadi which do not carry with them the obligation to pay any land-revenue. In other wards, what we desire to point out here is that as the sections are worded, they do not clearly bring out the connection or nexus between the land and the payment of land revenue with respect to it, and, in our view, it is only where such a connection exists that the levy of any lagats has been prohibited under these sections. Any how, we are not concerned directly with these sections so far as the present appeals are concerned. The next sec. No. 4 is relevant for our purposes. It runs as follows - (4) All lagats payable by persons not paying land revenue or by the residents of a village engaged in any trade, business, industry or labour and enjoying water, grazing, lakdi or other amenity in the village are hereby abolished and shall cease to be recoverable. But before we deal with this section, we think it convenient to deal with secs. 5, 6 and 7 which provide that all lagats charged in connection with festivals, celebrations or special occasions such as death, birth, marriage and the like and the lagats known as 'mapa viswa' and 'charai' and 'cinti' (these latter in so far as they are charged in respect of animals for grazing in the common village grazing ground) and in respect of fruit bearing trees standing on lands in possession of agriculturists shall be abolished. Sec. 8 provides for exceptions and enacts that the provisions of the Ordinance may be declared to be inapplicable by the State in the whole or any part of its territory, and sec. 9 lays down that nothing in this Ordinance shall apply to any cesses or lagats payable by any Jagirdar, Muafidar or Bhomia as such to the State or any lagat or cess payable by any grantee from a Jagirdar, Muafidar or Bhomia as such to the Jagirdar, Muafidar or Bhomia. By this section, all lagats payable to the State by any Jagirdar, Muafidar or Bhomia in his capacity as such jagir-holder were kept in tact, and it was also provided that the lagats payable to a Jagirdar, Muafidar or Bhomia by his grantees would also be saved from the operation of the Act. The term "grantee" in sec. 9 has again not been defined in the Ordinance and is capable of bearing more meanings than one; but it seems to us that the proper meaning which it bears in the context of the section is that the word 'grantee' means sub-proprietors of the Jagirdar, Muafidar or Bhomia as the case may be, and not other persons such as lessees or licensees, deriving their title from the holders last-mentioned. Having given a brief resume of the other sections, we now come back to sec. 4 which we have already quoted in extenso above This is the section which applies to non-agriculturists, that is, to the type of persons like the defendant. In the first place, this section deals with persons (1) not paying land revenue or to (2) residents of a village engaged in any trade, business, industry or labour We may describe these persons compendiously in one term as non-agriculturists. Then sec 4 contemplates that such persons may be paying or called upon to pay lagats in connection with enjoyment of water grazing, lakdi or other amenities in the village and the section finally says that such lagats are abolished and shall case to de recoverable. We are bound to say that the wording of the section is neither apt nor clear obviously it was not intended to abolish all taxes or cesses payable by non-agriculturists in a village and we cannot impute such a meaning to this provision because the imputation of such construction would, to our mind, be preposterous. Giving every word in the section its intended meaning it seems to us that what the framers of this pieceof legislation wanted to abolish was certain harassing exactions which were made by the jagirdars from their people in connection with the enjoyment of water, grazing, fuel or other similar facilities out of common village resources for which in common justice or fairness; he has not entitled to levy any charge whatever. We are persuaded to say so because we are not at all sure whether it was the intention behind ,his enactment to prevent a jagirdar from levying a certain charge where, let us say, he allowed grazing facilities to certain persons in his own grazing area or allowed fire-wood to be cut from land which was his own in lieu of the facilities so offered. The case before us, however, is not of this type, and, therefore, we have no desire to pursue the matter further, and we may have to took at the section from that angle if and when a case of this class arises. But leaving that aspect of the case out of consi-deration,the question which arises for decision is whether the so-called lagat in the present case,namely,jhumpi Bhara, fairly falls within the four walls of this section. The Jhumpi Bharu is of course being charged by the jagirdar in the present cases from a person who is not paying land revenue and who is a trader; but can it be said that Jhumpi Bhara is being charged for enjoying water, grazing or lakdi facilities ? The answer is clearly in the negative. So far as the "other amenity" mentioned in the section is concerned, we are of opinion that it must be interpreted ejus-dem generis The charged of Jhumi Bhara which according to the plaintiffs is in the nature of rent for occupation of residential land, apart from lease money, does not and cannot, in our opinion, be considered to fall within the ambit of other amenities envisaged in the section. It is said that Jhumbi Bhara is a tax; but even if it is so, and on which point we express no opinion at this stage, we are disposed to think that it would not be hit by the terms of sec. 4 of the Ordinance because such a charge is obviously not made by the jagirdar from the defendant for enjoyment of water, grazing, lakdi or other similar amenities. In these cases, and it is only lagats charged in connection with such amenities which stand abolished under this section. We may straightaway mention at this place that if Jhumpi Bhara is a tax and it is sought to be realised by the jagirdar after the Constitution came in to force on the 26th January, 1950, different considerations would obviously arise and such a tax could not be recovered unless it is supported by the authority of law. Apart from that, however for the reasons we have already mentioned above, we have no hesitation in saying that Jhumpi Bhara, whether it is a lagat in the sense of being a tax or whether it is rent is not covered by sec. 4 of the Lagats Abolition Ordinance or by any other sections, thereof, and consequently, it is not hit by anything contained in it. The only other question which we feel called upon to determine and with which we started at the very beginning of our judgment is what when is the precise nature of Jhumpi Bhara in the case before us. In this connection it was brought to our notice that according to the settlement record relating to Thikana Nathdwara, a copy of which has been brought on this record, Ex. D-l, Jhumpi Bhara was not land-revenue or rent but was a Lagat. This document in the first instance mentions certain levies which have been included in Maal Hasil (i. e. , land revenue or rent, and these terms appears to us to be used indistinguishable in the Kanun Maal Mewar of 1947) and in its second part mentions certain other charges which are said to be chargeable over and above the Maal Hasil. In this second category, entry No. 7 relates to Jhumpi Bhara. It is, therefore, argued on behalf of the defendant: respondent that it is a Lagat within the meaning of the Lagat Abolition Ordinance read with sec. 8 of the Kanun Maal Mewar. We may mention in this connection that it appears to us to be rather striking that whereas against almost all the items which are mentioned in this second category, the rate, at which the charge is to be lieved, is mentioned, no such rate is mentioned against Jhumpi Bhara. The reason for this to our mind, is not far a seek and that reason is that the Jhumpi Bhara is not a tax or can and has no fixed rate of levy but was to be charged in accordance with the agreement between the land-lord and the lessees. In the present case, therefore, Jhumpi Bhara does not appear to us to be anything in the nature of a tax. This is not to say, however that it might not be a tax or Lagat in any particular case Whether it is something in the nature of ground rent or a tax, pure and simple, is a question which will arise for determination in each case depending on its own facts. Let us look in this connection at Ex. P-9 in Vithalanath's case. This document is dated Kati Sudi 5, Svt. 1964, and mentions that a shop was being given by Thikana-Nathdwara to Bohra Bakshnath (the bounda-rise whereof are described in the document, and it is admittedly one of the suit shops), for which the latter was paying a sum of Rs. 351/-in cash as Bhet Nazarana and a further sum of Rs. 5/- Saliana or annuity as Jhumpi Bhara. It is further mentioned in the document that accordingly a patta was being granted to Bohra Bakshnath and that he would be free to make such repairs and improvements on the shop as necessity may arise and that no other kind of Khechal would be done to him, that is, he would not be required to pay any thing beyond Rs. 5/- for the shop held by him and his possession would not be disturbed so long as he paid this amount. We have given this document our careful consideration and feel persuaded to hold that the transaction which it embodies is that of a lease on payment of a premium and subject to an annual charge at a fixed rate which is in the nature of ground rent, and that it would be stretching too far to say that this is a cess or a tax. We may also in this connection draw attention to sec. 100 of the Kanun Maal Mewar and sec. 118 thereof by the combined operation of which it is perfectly clear that a jagirdar in the former State of Mewar possessed the right to grant Pattas to residents in the Abadi of his jagir village on what is called Bapi Hak or Kacha Hak, and among other conditions, it was left open to the jagirdar to give such Pattas on certain terms which may be agreed to between the jagirdar and the other party. We have no doubt that, a lessee on payment of premium and an annual ground rent is clearly covered by clause (4) of sub-sec. (2) of sec. 100. We may also invite attention to sec. 105 of the Transfer of Property Act in this connection according to which a landlord may grant a lease of immovable property for a certain time or in perpetuity, and for such lease he may charge either premium or rent or both premium and rent. As an example of this kind of lease, we would refer to Janki Nath vs. Dina Nath (l) In this state of the general law of the land, we find it extremely difficult to hold that such a transaction would be hit by the Lagats Abolition Ordinance on the ground that the ground-rent charged in such cases is a Lagat within the meaning of that Ordinance and is illegal. ;