- (1.) THIS appeal by the plaintiff is directed against the judgment and decree of the District Judge, Kota dated 22-12-1964 dismissing his suit for possession of a building and for recovery of Rs 15,000/- as mesne profits thereof.
(2.) THE suit out of which this appeal arises, was brought by the appellant Bhagwatisingh, as plaintiff, on 4 5 1959 for declaration of title to and for possesion of the building known as Dharamshala situated in front of the Railway Station, Sumerganj Mandi, Indergarh, against the respondent-defendants, the State of Rajasthan and the Gram Panchayat Sumerganj Mandi. THE plaintiff alleged that the building was his private property under sec. 23 (l) (c) of the Rajasthan Land Reforms and Resumption of Jagirs Act 1952 (which will hereinafter be referred to as "the Act" ). His case was that the building was constructed during the minority of his father Maharaja Sumersingh by the Kamdar of the Court of Wards with the sanction of the Kota Durbar out of the income of the Thikana. THE Court of Wards wanted to construct the building as it would become a source of income to the Thikana. THE building comprised of a row of 10 shops with 30 kotharis on the ground-floor and an encomping ground, with a rest house on the first floor for the convenience of the travelling public. It, therefore, served the purpose of a custom's out post, a shopping centre, warehouse as well as that of a rest house. By an agreement dated 28-4-1948 executed between the Maharaja of Kota and Maharaja of Kotri Indergarh, Maharaja Sumersingh handed over the administration of the Kotri Indergarh to the Kota Durbar, in lieu of the Thikana being recognised as a Jagir of the Kota Durbar. Prior to this, the Kotri Indergarh had a much higher status than that of a Thikana, but as a result of the agreement, the status of Maharaja Indergarh was redeemed to that of a Jagirdar. With the formation of the State of Rajasthan on 8-4-1949, there began a tussle between the public and the administration to secure the control and management of the Dharamshala, The State Government in the Local Self Govt. Department directed the Municipal Committee Indergarh to take possession of the building from the Manager, Court of Wards. This was objected to by the Jagirdar, but despite his objection, the Municipal Committee took over possession in August, 1950. Before any decision could be taken, the Jagirdar died and as the plaintiff who was his adopted son was till a minor, the Court of Wards resumed management of the Jagir. In 1952, under the orders of the State Government in the Local Self Government Department, the Municipal Committee handed over possession of the Dharamshala to the Gram Panchayat, Sumerganj Mandi on 6-8 1952 and since then, the Gram Panchayat has been in possession and management of the building. The plaintiff complains that there was no law under which the property could vest in the Municipal Committee or the Gram Panchayat and that the State Government had no authority to direct the taking of its possession and accordingly, claims relief of possession against the State Government and the Gram Panchayat, Sumerganj Mandi and mesne profits of Rs. 15,900/ -. at the rate of Rs. 200/- per month w. e. f, January, 1953. The plaintiff's claim was resisted by the State Government as well as the Gram Panchayat. They denied that the plaintiff was entitled to any of the reliefs claimed as the Dharamshala was not his private property. They have however, nowhere pleaded that the property vested in the State of Rajasthan. The learned District Judge has dismissed the plaintiff's suit on the ground that the Dharamshala which was a public trust was not the private pro-perty of the plaintiff. The point in controversy between the parties in the appeal is whether or not the Dharamshala was the private property of the plaintiff and, therefore, he was entitled to retain the same under sec. 23 (l) (c) of the Act. Sec. 23 (2) of the Act provides that if any question arises whether any property is in 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 orders thereon as he deems fit. The terms of the sec. are clear and explicit and admit of no other construction. This view also accords with the decision of the Supreme Court in Daljeet Singh vs. Thakur Shivnathsingh (l ). The Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 and the Rules 1954 framed thereunder provide for a complete machinery for the adjudication of such claims. Rule 21 provides for the manner of taking over of charge of the resumed Jagirs. Rule 22 provides for the submission of the lists of personal properties by Jagirdars. Rules 23 to 28 provide for an enquiry by the Jagir Commissioner regarding personal properties. Under Rule 26 (1), the State is represented by the Collector or any other officer as the Collector may by order in writing appoint in that behalf. Rule 26 (2) provides that any inhabitant of the locality may contest the claim of the Jagirdar In view of these provisions, the learned trial Judge, who originally tried the suit, by his order dated 25 4 1960, rightly made a reference to the Jagir Commissioner. The reference was later-on with drawn by his successor vide his order dated 15-12-1962 on the ground that there was no provision in the Act for making any reference by a civil court to a Jagir Commissioner. This Court, however, by its order, dated 30-8-1971 directed the Jagir Commissioner to record his finding as to the nature of the property. The Jagir Commissioner, by his order dated 16 9-1972, held that the Dharamshala could not be treated as a "private building" within the meaning of sec. 23 (1) (c) of the Act, as it had been constructed out of the income of the Thikana for public use and had through-out been treated as public property. He, however, held that the Dharamshala would not vest in the State Govt. , but would continue to be used for the benefit of the public as hitherto for. As regards the dispute regarding its management, he held that the dispute was beyond his scope of enquiry under sec. 23 (2 ). Both the State Government as well as the Gram Panchayat filed appeals before the Board of Revenue against the order of the Jagir Commissioner. In appeal, the Board of Revenue upheld the view taken by the Jagir Commissioner that the property would not vest in the State Government, but set aside his directions in regard to the future use and management of the property. In dealing with the question whether the property vests in the state Government or not, the Board of Revenue observed : "the counsel for the respondent, on the other hand, has urged that the order of the Sower court in so far as it relates to the nature of the property is correct but the court has erred in giving directions in regards to its future use etc. as it had no jurisdiction to decide the intorse rights of the parties. He has also drawn our attention to the decision in a case between the respondent and the State Govt. decided by the Board which is reported in 1976 RRD 168 in which there was a dispute in respect of a similar property located at Indergarh and the Board had held that it was the private property of the Jagirdar. The learned counsel for the appellants have not been able to show that the previous judgment is incorrect. We have, therefore, no hesitation in holding that the learned Jagir Commissioner has correctly held that the property will not vest in the State Government. " This passage is susceptible of no other construction than that the Dharamshala was the private property of the Jagirdar. Under sec. 39 (4) of the Act, the decision of the Board of Revenue is final. The jurisdiction of the civil court is barred under sec. 46 (1), and under sub-sec. (2) thereof, the order of the Board of Revenue cannot be called in question in any court It must, accordingly, be held that the plaintiff was entitled to retain the Dharamshala under sec. 23 (l) (c) of the Act.
(3.) THE learned Additional Government Advocate, however, vehemently argued that the opening words of the passage quoted above, really show that the finding of the Jagir Commissioner that the Dharamshala was not the private property of the plaintiff was, in fact, not challenged in appeal. We are afraid, the contention cannot be accepted. THE Board of Revenue has observed that the counsel for the plaintiff accepted the finding of the Jagir commissioner in so far as it related to the nature of the property. This could only mean that the plaintiff accepted that the property was a Dharamshala i. e. put to public use. It was nowhere conceded that the Dharamshala was not the private property of the plaintiff. On the contrary, the counsel appearing for the plaintiff relied on the decision of the Board of Revenue in State vs. Bhagwatisingh (2) where there was a dispute in respect of a similar property i. e another Dharamshala, located at Indergarh and in that case, the Board there held that it was the private property of the plaintiff THE question whether the Dharamshala was or was not the private property of the plaintiff was very much in issue before the Board of Revenue and we are bound by the finding reached by the Board. We are fortified in the view that the Dharamshala is saved u/s 23 (1) (c) of the Act by the following observations of the Division Bench in Thakur Devraj Singh vs. The State of Rajasthan (3) : ". . . . . notwithstanding anything contained in s. 22, all private (as contradistinguished from public) buildings which belong to a Jagirdar or which are held, by him, shall con- tinue 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 s. 23 is a clear exception to s 22, and, in our opinion, it would be a mistake to hold that properties which may fall within any of the categories specified in s. 22 could at all be 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 s. 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. " We may in that connection also advert to the two letters which have a material bearing. When in 1950 the Minister for Local Self Govt. directed that the building should be handed over to the Municipal Committee, Indergarh the Jagir Commissioner by his latter dated 4-6-1950 suggested that the matter may be considered by the Government and the Thikana should not be deprived of its property and in making that recommendation, he stated : "maharaj Sumersinghji Estate Indergarh (in Kota) constructed a Guest-house at Indergarh Station, which is at three miles distance from the town, for his personel use. There are a few rooms in the first floor of the building, which were made for his personal use. In the ground floor, there are shops on the main road and about 30 Kotries inside, these Kotries were used by the following of the Maharaj, whenever he visited the place, otherwise people coming from outside were also permitted to stay there for a night's rest. On the formation of Rajasthan this building was taken in possession by the Local Municipality which was objected to by the late Maharaj, but before any decision could be taken, the Maharaj died all of a sudden. The Estate is now under the management of the Court of Wards. The management having taken up, the case regarding return of the building to the Estate, the Collector after due enquiry ordered that the building be handed over to the Thikana. It seems, a representation from tae Municipality waited on the Minister for Local Self Government and he has ordered that the building should not be handed over to the Manager. I have to request to you that the Nonminister for Local Self Government be requested to reconsider his decision. The Jagir Ordinance does not permit of taking away such building from the states. Government has particularly to be more considerate in this matter, as the Estate is under the management of the Government of itself due to the minority of the new Maharaj. As far as my information goes even inns or sarai of other Estates are under the possession of the Jagirdars. While this is a case of resthouse made exclusively for the use of the Jagirdar and his family. I would, therefoie, suggest that the matter may be reconsidered that the Thikana Indergarh should not be deprived of their property. " When the Minister for Local-self Government directed in 1952 that the property be transferred from Municipal Committee to the Gram Panchayat, the Commissioner Kota, by his letter dated 9-4-1953 addressed to the Secretary to the Board of Revenue (exhibit-5) drew the attention of the Board of Revenue to the fact that the Dharamshala was the private property of the plaintiff and requested that the Dharamshala should be handed over to the Thikana, and stated: "the Collector, Kota, on being informed of the above orders reports that the said Dharamshala, situated on Indergarh Station is property of the Thikana Indergarh which is under Court of Wards, The building is worth Rs. 40,000/- and annual rent of shops aggregating to Rs. 2,000/- is relating by the Thikana. The transfer of Dharamshala building to Gram Panchayat would mean a loss of Rs. 2,060/- p. a. to the Thikana which accrues to it by way of rent. As the building has not been constructed from public construction nor handed over to public at the time of mergar, it cannot be regarded as a public property until the building is not given to the public by the Thikana. The Gram Panchayat has no right to lay its claim over the private property of a Thikana. " ;