MODI, J. - (1.) THIS is a writ application by Thakur Devraj Singh ex-Jagirdar of jagir Dangarthal situated in the former State of Jaipur under Arts. 226 and 227 of the Constitution against order of the Board of Revenue dated the 28th-l 1-1962. reversing the order of the Additional Jagir Commissioner dated the 1. 5. 1961, as having been passed without jurisdiction, in a proceeding u/s. 23 of the Rajasthan Land Reforms and Resumption of Jagirs Act No. VI of 1952 (hereinafter called the Act ).
(2.) THE dispute relates to certain immovable property which is described in the writ application as a Haveli with Nohra known as Nanaji-ki-Haveli which is situate on Chaura Rasta in the city of Jaipur. It is admitted that the aforesaid property was received by Thakur Kalyan Singh, grand father of the petitioner, from H. H. Maharaja Sawai Madho Singh of Jaipur under a Sanad dated Sawan Sudi 3, Smt. '1945 (corresponding to sometime in 1888 AD) (Ex. 1 ). According to the petitioner, this grant came to be made to Thakur Kalyan Singh before any jagir was as such granted to him, although we do not know the exact date when the jagir of Dangarthal was actually granted, and was, therefore, an absolute gift to the grantee. While according to the respondent State, as it appears from the contentions raised on its behalf before the tribunals below (and we say so because it has not chosen to file any reply to the petitioner's writ application in this Court), it was an Inam grant made to Thakur Kalyan Singh. Be that as it may, the jagir of Dangarthal was resumed under the Act sometime around 1954. THEreafter, the petitioner preferred an application before the Jagir Commissioner u/s. 23 of the Act for a declaration that the Haveli and Nohra in question be declared to be his private property within the meaning of that section. THE Additional Jagir Commissioner made an enquiry into the matter, and by his order dated the 1. 5. 1961, declared the said property to be the private property of the petitioner. He, however, added a rider that it would be permissible to the State to initiate proceedings for the resumption of this property in accordance with law, presumably under the Matmi Rules of the Jaipur State, 1945. Against this order, the State went in appeal to the Board of Revenue. THE learned members of the Board by their judgment dated the 28th November, 1962 set aside the order of the Additional Jagir Commissioner and held that the latter had no jurisdiction to deal with the matter raised by the petitioner before him under sec 23 of the Act. THEreafter, the petitioner applied for a review of the above mentioned order to the Board which was dismissed on the 12th June, 1963. Consequently, the petitioner has come up with the present writ petition with a prayer that the orders of the Board dated the 28th November, 1962, and the 12th June, 1963, be quashed and the judgment of the Additional Jagir Commissioner dated the 1st May, 1961, be restored. Now, before we deal with the findings arrived at by the Board, we consider it necessary to analyse the order of the Additional Jagir Commissioner in the light of the contentions raised by the parties before him. The petitioner's case was that the property in question having been granted to his grand father some eighty years ago by the then Ruler of Jaipur, it was an absolute gift to his ancestors, and that it could not be held to be either a jagir or even a State grant within the meaning of the Jaipur Matmi Rules of 1945. It was also contended that the petitioner had acquired full rights of ownership with respect to this property by long and undisturbed possession and so there was no good reason in law why it should not be declared to be his private property within the meaning of sec. 23 of the Act. The principal objection raised by the State to this prayer was that this was a State grant within the meaning of the Rules of 1945, and further that according to R. 5 thereof it was incumbent upon the petitioner to have obtained Matmi with respect thereto, and as the petitioner had not got the mutation effected in his favour under the said Rules, it was resumable on account of this infirmity, and so the petitioner's application should be dismissed, and the declaration prayed for by the petitioner refused. The Additional Jagir Commissioner held that the grant, with which we are concerned in this case, was covered by the definition of the expression "state Grant" as given in R. 4 of the Rules, and, therefore, there was no escape from the position that the Matmi Rules applied, and, according to those Rules, the petitioner should have obtained Matmi in his favour at the relevant time. He then went on to consider the effect of such failure and was of the opinion that the penalty as prescribed for non-disclosure of any property for purposes of Matmi was "by way of resumption of the said grant by the State " He further held, however, that although it was open to the State to initiate proceedings for such resumption under the Rules. , no such proceedings had actually been taken, and that it was not for him to commence any such proceedings under the Act. He, therefore, clearly came to the conclusion that unless the said grant was actually resumed by the State in accordance with law the same must be held to be the private property of the Jagirdar in view of the nature and length of his possession with respect to it, and consequently he granted the declaration prayed for. We pause here for a moment and should like to point out, firstly, that it was never the case of the State before the Additional Jagir Commissioner that he had no jurisdiction to deal with the case on any ground whatsoever, and, secondly, it does not appear to us to have been the case of the State before that officer that the property in question had actually been resumed under the Act, and all that was submitted was that it was resumable, under the Matmi Rules of 145. This brings us to the stage of the appeal before the Board of Revenue. The memorandum of appeal filed by the State is dated the 18th July, 1961. Apart from the first ground, which is a general one, the following three other grounds were taken and as these grounds are taken very briefly, we may as well reproduce them in the very words in which they were taken. "1. That the property at Jaipur was subject to the Jaipur Matmi Rules. The respondent had no absolute interest in the property. 2. That the learned lower Court erred in law in not correctly following the procedure laid down for determination of the personal property. 3. That as the respondent could at best have a life interest in the property, this properly could not be permanently alienated by the respondent. " No other ground was taken and the prayer made was "that this appeal may kindly be allowed and the property known as 'nanaji Ki Haveli' at Jaipur be not declared to be the personal property of the respondent' or in the alternative, this be declared that the property shall be subject to permanent alienation. "we confess that we have not at all been able to comprehend what was meant by the learned counsel appearing for the State by his alternative prayer set out above. Now, before we address ourselves to the points taken before the Board of revenue and its findings thereon, we may state by way of clearing the ground that it seems to have been admitted between the parties before the Board that a part of the property in question had been alienated by the petitioner or someone of his ancestors in favour of certain third parties and that this had obviously been allowed to be done without any objection by the respondent. The principal contentions argued on behalf of the State before the Board were : (1) That the grant of the property in question was or was in the nature of an Inam grant by the then Ruler to Thakur Kalyan Singh, grand-father of the petitioner; (2) That this this grant was governed by the Matmi Rules of the Jaipur State. 1945, and as no Matmi had been sanctioned in favour of the petitioner, he had no right to the property in question; (3) That sec. 23 of the Act was not attracted into application in this case because the property in dispute did not fall within any of the categories mentioned thereunder and also because it had been transferred to third parties, and it was further contended on this score that the Additional Jagir Commissioner had no jurisdiction to pass any order under sec. 23 of the Act. On the point of jurisdiction, it may further be pointed out that the learned Advocate-General who appeared for the Mate and Shri Rameshchandra Swami, who was another counsel appearing for the Mate before the Board, elaborated an argument, which appears to us to be not a little self-contradictory. The learned Advocate-General submitted that as the grant in question was independent of the jagir of Dangarthal, the provisions of sec. 23 of the Act could not apply thereto and, therefore, the petitioner, who was the respondent before the Board, argued the learned Advocate-General, had no locus standi to claim any declaration under the provisions of the Act, and consequently the order passed by the Additional Jagir Commissioner was without any jurisdiction whatsoever. On the other hand, Shri Swami argued that the property in question should be taken to have been resumed under the Act along with the jagir of Dangarthal itself, but as the petitioner had failed to obtain any Matmi in his favour under the Rules of 1945, he was not entitled to get the benefit of sec. 23 of the Act. On these contentions, the learned Members of the Board thought that three points arose for determination before them (1) Whether the property in question had been resumed under the Act or not; (2) whether in the absence of the sanction of a Matmi in favour of the petitioner, the Additional Jagir Commissioner had no jurisdiction to take cognizance of this case and dispose of it under sec. 23 of the Act; and (3) lastly, whether the property in dispute fell within any of the categories mentioned in sec. 23 (1) of the Act. The findings of the learned Members of the Board on the aforementioned three points were these. They held on the first question that the property shall be taken to have been resumed along with the jagir of Dangarthal and that it could not be properly held that it had not been resumed under the Act as yet. On the second point, their finding was that the grant in question being in the nature of an Inam grant by the then Ruler of Jaipur in favour of the petitioner's grand-father Kalyan Singh, was subject to the Jaipur Matmi Rules of 1945 and that as no Matmi had until then been sanctioned in favour of the petitioner with respect to this property, the latter could not be treated to be the Jagirdar thereof until and unless Matmi was sanctioned in his favour in accordance with the said Rules and, therefore, the Additional Jagir Commissioner had no jurisdiction to deal with him under sec. 23 of the Act and declare the said property to be a private property of his within the meaning of that section. On the last point, the learned Members of the Board held that the property did not fall within any of the categories mentioned in sec. 23 (1) of the Act. Having arrived at these findings, this is how they summed up the whole case. "thus even though the property has been resumed under the Act, the respondent could not claim any order in his favour under the provisions of sec. 23 of the Act, nor could the Jagir Commissioner or Addl. Jagir Commissioner pass any order in his favour. In result, the order of the Addl. Jagir Commissioner being impugned in this appeal is found to have been passed without jurisdiction, and deserves to be set aside. " We need not deal at length with the order passed by the Chairman of the Revenue Board (Shri M. U. Menon) on the review application filed by the petitioner against the above order as it was passed in limine and substantially reiterated the same findings. It is against these orders that the petitioner has preferred the present writ application. This has been opposed by the learned Deputy Government Advocate appearing on behalf of the State although it is very much to be regretted that the State has not chosen to file a written reply in a case of this importance. The principal grounds taken by the petitioner in his writ application before us may be briefly summarised somewhat as follows : - (1) That the learned Members of the Board had fallen into a manifest and a palpable error of law apparent on the face of the record when they allowed the appeal of the State on grounds which had not been taken by it in the grounds of appeal filed before it, and in this connection it was particularly urged that the plea of the Additional Jagir Commissioner having no jurisdiction to deal with this matter had never been taken in the grounds of appeal, nor was the further plea taken with any reasonable specificness that the property in question did not fall within the four walls of sec. 23 of the Act. (2) That the finding of the Board that the property in question was part and parcel of the jagir land of the petitioner or his ancestors and that it was resumed or must be taken to have been resumed under the Act is vitiated by an apparent error on the very face of the proceedings, principally because the plea that the property had been so resumed by the State was essentially a plea of fact and had never been taken on behalf of the State either before the Additional Jagir Commissioner or before the Board even in the grounds of appeal before it and therefore the Board had exceeded its jurisdiction in basing its decision on this foundation. (3) That the Jaipur Matmi Rules, 1945 did not apply to this case, and that even if they did, the view taken by the Board that the failure on the part of the petitioner to obtain Matmi in his favour deprived the Additional Jagir Commissioner of jurisdiction to deal with the petitioner's application under sec. 23 of the Act is manifestly and palpably wrong and amounts to a serious error of law resulting in miscarriage of justice. (4) That on the material which is on the record and having regard to the nature of the property in question and the long standing possession of the petitioner over it, the property in question clearly falls within the four walls of clause (c) of section 23 (1) of the Act, and the Additional Jagir Commissioner was perfectly competent in law to grant the declaration prayed for by him within the meaning of that section. Having heard learned counsel for the parties at considerable length and having perused the entire relevant record which is before us, we have come to the conclusion that this petition has force and must be allowed. We now proceed to state our reasons for the conclusion to which we have come. We have given in the foregoing part of the judgment the respective contentions of the parties in some detail to show what the precise nature of the dispute between them was. Put tersely, the case of the petitioner was that the property in question which was of a residential nature and was situate in the city of Jaipur, had nothing to do with the grant of the jagir of Dangarthal which came to be granted by the then Ruler of Jaipur a few years after the former had been granted to his grand-father Kalyan Singh, and, after the jagir of Dangarthal had been resumed in 1954, he applied to the Additional Jagir Commissioner for a declaration that the said property be declared to be his private property under sec. 23 of the Act. His case further was that he and his ancestors had held long and undisturbed possession over this property for a period of eighty years or so, and it was common ground between the parties that at least a part of this property was alienated by the petitioner or some one of his ancestors in favour of certain third parties and indeed this seems to have been allowed to be done without let or hindrance by the State. The sole objection on which the petitioner's application was resisted on behalf of the State before the Additional Jagir Commissioner, who took cognizance of this case, was that the particular grant was covered by the Jaipur Matmi Rules, 1945 as it was a State grant within the meaning of those Rules and that it was incumbent upon the petitioner to have obtained a Matmi or mutation in his favour with respect to the property in question thereunder, and as he had tailed to do so, this grant was resumable under the Rules, and the petitioner was not entitled to get the benefit of sec. 23 of the Act with respect to this property and that it should not be declared to be his private property in such circumstances. This plea was repelled by the Additional Jagir Commissioner by his order dated the 1st May, 1961 and he granted the declaration prayed for because, as held by him, the property in question had never been resumed by the State and the petitioner and his ancestors had possession extending to something like eighty years over this property and had been enjoying full rights of ownership over it which reasons, in his opinion, were sufficient to hold that the petitioner was entitled to the relief claimed by him under sec. 23, namely, that it was his private property and that the same shall continue to belong to or be held by him. As we have already pointed out, the Additional Jagir Commissioner added a rider in the operative part of his order to the effect that the order passed by him would not stand in the way of the Government initiating proceedings for the resumption of this land" if so permitted by law.
(3.) NOW, when the matter was taken before the Board of Revenue, the ground was no doubt taken that the property in question was subject to the Matmi Rules of 1945, but no specific ground was at all taken that the Additional Jagir Commissioner had no jurisdiction to deal with the petitioner's application under sec. 23 of the Act or that the property in question was not covered by sec. 23 (1) of the Act and, therefore, also the Additional Jagir Commissioner had no jurisdiction in the matter. In these circumstances, a serious question of law arose and arises whether the learned Members of the Board were justified in law in allowing the State, who was the appellant before it, to make out an entirely new case before it and argue that the Additional Jagir Commissioner had no jurisdiction to ideal with the case at all for any of the reasons mentioned above, nor does it appear to us to have been urged before the Board that the question of jurisdiction, which was sought to be raised on behalf of the State before it, was a question relating to a patent lack of jurisdiction and therefore it should have been allowed to be raised as such. We may further make it clear that learned Deputy Government Advocate, appearing for the State has not been able to satisfy us even now that this was a case of such lack of jurisdiction. At the best, what might be said for the State would be that it is a mixed question of fact and law and as such that question could not properly have been allowed to be raised for the first time on appeal and without a specific ground having been taken in regard to it. By sec. 39 (3) of the Act, it is enjoined that the authority hearing the appeal shall follow the same procedure as is prescrib-ed for the hearing of appeals made to it under the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955), and sec. 208 of the latter Act makes the provisions of the Code of Civil Procedure applicable to suits and proceedings under the Tenancy Act subject to certain modifications which are not material for our purposes. Order 41, rule 1 of the Code of Civil Procedure lays down that the memorandum of appeal shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and rule 2 of this order further lays down that the appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the grounds of appeal, though it has been further laid down that the appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of the appeal or taken by leave of the Court under this rule. It has, however, been held in cases falling under this rule that the power given to the appellate court under this rule does not extend to the making out of a new case for either party and to grant relief on that basis. (See Kedar Nath Motani vs. Prahlad Rai (l) ). It was held in this case that it was not open to a Court in appeal to consider media concludendi not pleaded by a party and. to give judgment on their basis. Now, what the Board appears to have done in this case, with all respect, is to have allowed to be argued before it that the property in question had been resumed by the State under the Act although even there, as we have already pointed out, the stand taken by the learned Advocate-General appearing on behalf of the State was that as the grant in question was wholly independent of the jagir of Dangarthal, the property in question could not have been resumed under the Act while the other learned counsel Shri Ramesh Chandra Swami, also appearing for the State, argued that the property should be taken to have been resumed under the Act along with the jagir of Dangarthal itself. And it deserved to be further remembered in this connection that it was never the contention of the State before the Additional Jagir Commissioner that the said property had been resumed as a matter of fact by the State at any time, whether under the Act or otherwise, and all that was argued was that the same was resumable because the petitioner had failed to obtain Matmi in his favour with respect to it under the Matmi Rules. Now, as we look at the matter, the question whether the property in dispute had, as a matter of fact, been resumed by the State or not, is essentially and substantially a question of pure fact, and if the State intended to obtain a judgment by placing reliance on a fact like this, it was its bounden duty to plead that at the proper stage, which it entirely failed to do and, therefore, we have no hesitation in coming to the conclusion that the learned Members of the Board fell into a grave error of law when they allowed that plea to be raised by the State. Not only that. They further accepted that plea and came to a categorical finding that the property shall, therefore, be taken to have been resumed along with the jagir of Dangarthal. Consequently, it cannot be held that the property has not been resumed as yet under the Act. " In so holding, we are disposed to think that the Board made out an entirely new case for the State without any proper foundation having been laid for the same by it by appropriate facts being alleged and proved in support thereof. For ourselves, we are entirely unable to hold on the material which has been placed on this record or which was before the Additional Jagir Commissioner or the Board of Revenue that the property in question was ever resumed under the Act, nor do we consider it necessary, under the circumstances, to make any considered pronouncement on the further question whether the property in dispute is part and parcel of his jagir land within the meaning of sec. 2 (h) of the Act which could have been so resumed for the simple reason that it was not the State's positive case at any stage that the said property was ever so resumed; though if we were to hazard an opinion on this aspect of the case we would be inclined to say that as at present advised we are extremely doubtful of the correctness of the position adopted by the Board in this behalf. This is not the only error, in our opinion, from which the judgment of the Board suffers, and this brings us to a still more glaring one, which is that even on the Board's own finding that the property in question must be taken to have been resumed along with the jagir of Dangarthal under the Act, it still went on to hold that the petitioner could not be accepted to be a Jagirdar with respect to it and, therefore, any application under sec. 23 in that connection could not be made by him in law, with the result that the Additional Jagir Commissioner had and would have no jurisdiction to deal with such an application. This further finding of the Board, with utmost respect, appears to us to be largely self-contradictory, the reason being that the moment it is held that the property in question was resumed along with the jagir of Dangarthal, or, in other words, as part and parcel thereof or as the property of one and the same Jagirdar, whichever way one may put it, (for that would make no difference to the essential position in law) the petitioner's right to make an application under sec. 23 of the Act for a declaration with respect to a property which was so resumed under the Act that it was his private property would in our considered judgment become irresistible according to the provision contained in that section. We would quote sec. 23 here in extenso : 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) all open enclosures used for agricultural or domestic purposes and in his continuous possession (which including possession of any predecessor-in-interest) for six shall continue to belong to or be held by such years immediately before the date of resumption; (ii ). . . . . . . . . (iii) all private buildings, places of worship, and wells situated in, and trees standing on lands, included in such enclosures or housesites, as are specified in cl. (1) 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 irrigating the lands of any tenant in the jagir land; shall continue to belong to or be held by such jagirdar or other person: Jagirdar or other person : Provided that nothing contained in clause (d) shall affect the rights of the Jagirdar in any personal cultivation of the Jagirdar. (2) If any question arises whether any property 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. " The language of this section is highly significant. In the first place, it clearly lays down that this section will have force notwithstanding anything contained in sec. 22, and broadly speaking, vests the right, title and interest of a Jagirdar and any other person claiming through him in his jagir lands (which expression is defined in sec. 2 (h)) in the State as from the date" of resumption, free from all encumbrances; and, in particular, it vests his like right in buildings used for schools and hospitals not situated within residential compounds also in the State. Sec. 22 deals with the consequences of resumption of a jagir. Secondly, it mentions the various kinds of properties, including belongings to or held by the Jagirdar or any other person, and lays down that these shall continue to belong or be held by such Jagirdar. Thirdly, it lays down that if any question arises whether any property is of the nature referred to in sub-sec. (1), it must be referred to the Jagir Commissioner, who may, after holding the prescribed enquiry, make such order in such matters as he deems fit. The relevant rules for the making of an enquiry are contained in rules 22 to 28 of the Rajasthan Land Reforms and Resumption of Jagirs Rules, 1954. Now, the language of sec. 23 is comprehensive inasmuch as it not only embraces private buildings of a Jagirdar such as may be situated in his open enclosures used for agricultural or domestic purposes and which may have been in his continuous possession for six years prior to the date of resumption but all other private buildings also, which may belong to him, or, for that matter, to any other person, or which may be held by him or such other person in his possession. . . . . . . . . . . . . . . . . and, it has been clearly laid down with respect to these properties as well as other falling within the ambit of this section that they shall continue or belong to or be held by the Jagirdar or other person. If, therefore, any question should arise, and it is not for us to say how it may arise (for the ways in which it may arise would be diverse) with respect to any property of the Jagirdar as to whether it is of the nature referred to in sub-sec. (1), that is, whether it is a private building belonging to or held by the Jagirdar, then we have no doubt that the Jagir Commissioner shall be the competent person to hold an enquiry into that matter and make such order on it as he may consider appropriate. On the plain language of sec. 23, therefore, and on the findings of the learned Members of the Board themselves that the property in question was resumed by the State under the Act, we entirely fail to understand that the Jagir Commissioner would or could have no jurisdiction to decide a controversy of the kind raised in the present case. So far as we conceive, he undoubtedly had and has that jurisdiction, and to say that he would not have legal competence to decide a question of that type because the petitioner not having obtained Matmi with respect to that property in his favour under the Matmi Rules, could not be accepted to be a Jagirdar with respect to it would be to read something into sec. 23 and graft an exception therein which is not there. If we might put the same thing in slightly different language, the section would then have to be read as subject to the requirement of a Matmi or mutation having been obtained in favour of the Jagirdar where such a mutation may be necessary according to the law in force in a particular area. Speaking for ourselves, we have no hesitation in saying that we have no business to introduce any such exception in the plain wording of sec. 23 which, among other things, clearly lays down that notwithstanding anything contained in sec. 2?, all private (as contradistinguished from public) buildings which belong to a Jagirdar or which are held by him, shall continue to belong to him or shall be held by him as before. . and no resumption shall take effect with respect to these. It will be seen that sec. 22 is a clear exception to sec. 22, and, in our opinion, it would be a mistake to hold that properties which may fall within any of the categories specified in sec. 23 could at all be resumed under sec. 22 or should be taken to have been resumed thereunder. On the plain language of this section, such properties could not be resumed and must continue to belong to or be held by the Jagirdar concerned subject to this that if a dispute arises whether the property in question falls within the ambit, of Sec. 23 (1) or not, the matter must be referred to the Jagir Commissioner, who then must hold an enquiry and decide it finally one way or the other. Before proceeding further, we should like to make it clear even at the cost of some repetition that clause (c) of sec. 23 (1) embraces within its scope not only private buildings to which the expropriated Jagirdar has title, but also to those to which he may or may not have title in the strict sense of the word but which are possessed by him in his own right for a sufficiently long time and which may thus be held by him within the meaning of this provision. We say so because the two phrases qualifying "buildings", occurring therein namely, "belonging to" and "held by the Jagirdar or any other person"are joined together by the conjunction "or" and not "and" so that the two parts of the clause so juxtaposed are obviously disjunctive and cannot be read as conjunctive. Of course, the nature and length of possession such as should bring a property within the benefit of this clause must depend on the facts and circumstances of each case, and it is impossible to lay down any hard and fast rules in this connection. ;