- (1.) THIS second appeal against the appellate decree of the Additional Commissioner, Jaipur dated 23-9 55 has been filed by the plaintiff whose suit for ejectment of a trespasser was decreed by the trial court but was dismissed by the tower appellate court on the ground that the decree for possession has obviously ceased to be executable owing to the land having been resumed by the Government.
(2.) WE have heard the learned counsel for the parties and have examined the record as well On 20. 8. 48, Kamdar of Thikana Peepla which was under the Court of Wards management brought a suit against Hanuman Singh defendant in the court of the Nazim Sambhar for ejectment and recovery of possession It was averred in the plaint that the defendant being a Chhut Bhaiya of the Thikana was allotted two wells and 250 bighas of land by a rope chain for his maintenance; that taking advantage of the minority of the Thukur, the defendant wrongfully took into his possession 86 bighas of extra land in 1944; that the matter went up before the Revenue Minister of the former Jaipur State who directed the plaintiff to bring a regular action; that the defendant refused to vacate possession and hence a decree for ejectment and mesne profits be passed against him. The defendant in his written statement adopted a rather evasive attitude and also pleaded that he held a patta in respect of the land in dispute and that the same had never been in the possession of the plaintiff within 12 years prior to the institution of the suit as it had been in continuous possession since long. A number of issues on points of law and fact were framed by the trial court and after recording the evidence of the parties the suit was decreed an 21. 4. 50. The defendant went up in appeal before the learned Additional Commissior. It appears that the consequences of the enforcement of the Rajasthan Land Reforms & Resumption of Jagirs Act (herein after referred as the Act were not argued before the trial court though the enforcement had taken place in 1952 as there is no reference whatsoever in the judgment of the trial court to the Act. The learned additional Commissioner has not referred to the Act in express terms in his judgment but presumably he had the provisions of the Act in the mind while observing that the land having been resumed by the Government the decree was no longer capable of execution. The learned Additional Commissioner has reversed the decree of the trial court on this ground alone The learned counsel appearing for the appellant has argued before us that the lower appellate court was not justified in rejecting the suit only on the ground that the appellant could not seek execution of the decree as the Jagir land had been resumed by the Government. It has been argued that the appellant is legally entitled to receive compensation in lieu of his Jagir and the amount of compensation would be affected by the amount of income enjoyed by him from the land in dispute. According to him the changed context could be made the basis of a modified relief as may be appropriate even though it involved a deviation from the relief claimed originally in the plaint. It was replied by the respondent's counsel that the appellant ceased to have any relationship with the Jagir land which is vested in the Government and hence the suit must fail on this ground, A number of decisions were cited before us by the parties and as valuable guidance can be obtained from them, we will examine them closely. We would first take up the cases cited by the appellant's counsel. In AIR 1954 Allahabad 434 (Vikram Singh vs. Sumnehra) the plaintiff claimed that he was the Sirdar of the land in dispute, that the defendants were mere non-occupancy tenants whom he no longer desired to continue and that he therefore asked them to quit and that on their failing to do so they should be ejected. The defence was that the defendants were hereditary tenants and as the plaintiff was not the land-holder he had no right to eject them. The trial court decreed the suits (there were three suits) on 8. 2. 46. The defendants filed appeals which were allowed on 21. 2. 47. Second appeals were filed in the High Court and U. P. Zamindari Abolition and Land Reforms Act was enforced in 1951. This Act conferred some rights upon the defendants whereby they were entitled to retain possession by virtue of having become Adhivasis of the land in depute. It was held that the provisions of the U. P. Zamindari Abolition and Land Reforms Act, will not affect the rights of the parties to pending proceedings. It has been argued on the strength of this decision that the Act should not be allowed to govern this case. The learned counsel for the respondent has however pointed out that this decision was examined by a Full Bench of the Allahabad High Court subsequently in AIR 1955 Allahabad 432 and was dissented from. Hence it cannot be held to have laid down the law correctly. In this Full Bench case, the petitioner who was the tenant-in-chief of a certain plot of land filed a suit under sec. 180 U. P. Tenancy Act for the ejectment of the 3:d respondent on the ground that he was trespasser. On 11. 5. 51 the petitioner obtained a decree and thereafor in execution of his decree he recovered possession. The third respondent appealed but before his appeal could be heard a vesting order to take effect from 1. 7. 52 was made under sec. 4 U. P. Zamindari Abolition & Land Reforms Act which came into force on 26. 1. 51 Under sec 20 of this Act those persons who on the date immediately preceding the date of vesting were inter alia recorded as occupants of any land (other than grove land etc.) were to be called Adhivasis and were subject to the provisions of the Act entitled to retain possession. The Third respondent was so recorded as occupant of the plot in suit and on 9-5 53 the Commissioner allowed his appeal on the ground that he having become an adhivasi was entitled to continue in possession. The petitioner filed a second appeal before the U. P. Board which was also dismissed on 28. 8. 53. The petitioner thereupon filed a petition in the Allahabad High Court under Art. 226 of the Constitution. His contention was that Sec. 20 of the U. P. Z. A. & L. R. Act had no application to a pending suit and Vikram Singh's case (referred to above) was relied on in this connection. The Bench which heard the petition was of the opinion that the decision in Vikram Singh's case needed reconsideration and hence the following two questions were referred to a Full Bench - (1) Would Sec. 20 affect the rights of the parties to the suit even though the suit had been filed prior to coming into force of Sec. 20? (2) Whether the provisions of the U. P. Land Tenures Legal Proceedings Removal of Difficulties Order, 1952 would make any difference to applying the provisions of sec. 20 to pending suits or appeals? After discussing the various provisions of law on the subject and relevant case law as well, the Hon'ble Chief Justice who delivered the judgment of the court was pleased to observe that notwithstanding contained in the U. P. Land Tenures Legal Proceedings Removal of Difficulties Order, 1952, a suit appeal or other legal proceeding under sec. 180 U. P. Tenancy Act pending on 30. 6. 52 will be decided with reference to any right which may have accrued to either party in the land in dispute under the U. P. Zamindari Abolition & Land Reforms Act. We may also refer to three cases cited by the appellant's counsel reported in A. I. R. 1956 Madhya Bharat pages 139, 181 and 193 respectively. In the first case which was decided by a single Judge the question involved was rather different. The defendants in these cases applied for amendment of their pleadings in view of the Madhya Bharat Jagirs Act which was enacted subsequent to the filing of the suit. The trial court rejected this request but the High Court was pleased to allow the same with the observation that the court can take into consideration subsequent events and mould a relief and decide matters in view of those events. It his been argued by the appellant's counsel that in the present case the court can grant a relief co-related to the amount of compensation. In the second case (A I R. 1954 M. B. , 181) the decree-holders obtained a preliminary mortgage decree on 31. 8. 55 against Syed Hasan Gani and 8 others for Rs. 6805/8/6 together with interest at 12% per month with future interest as well in respect of some amount. This decree was ordered to be made final on 12. 1. 53 and actual decree was drawn upon 29. 1. 53. On 1. 4. 53 the decree holders applied for execution but instead of usual prayer for sale of the property described in the final decree, they applied for attachment of the compensation money in respect of the mortgaged property in the hands of the Claims Officers of Gird a by reason of notification issued under M. B. Z. A. Act, 1951, the mortgaged property being a Zamindari property had vested in the Government. It was contended in that case on behalf of the judgment debtors that the mortgaged property ceased to exist for the purposes of realisation of the decretal amount out of the same and a decree as against that property was against a non-existing property and hence invalid. Their Lordships after going through the case law on the point held that the final decree was not invalid but was executable and that X was open for the decree holder to obtain realisation of his dues out of the compensation money. This decision is hardly applicable to the present case as the facts are entirely different. In the third case (AIR 1954 M. B. , 193) which is also Full Bench decision, a suit was brought for redemption by the mortgagor against the mortgagee and the question was whether the same could be continued after the vesting of the mortgagors rights in the State. It war observed that although the mortgagors rights in the Zamindari property have vested free from all encumbrances by reason of the provisions of Sec. 3 (l) M. B. Z. A. , he may yet be entitled on payment of mortgage money to the mortgagee the mortgage deed and all documents relating to the mortgaged property and he can still claim an acknowledgment in writing from the mortgagee that any right in derogation of his interest transferred to him had been extinguished Moreover under certain contingencies a proprietor may be entitled to possession of a property even under that Act as his khudkasht. Hence the mortgagors right to continue the suit for redemption cannot be taken away unless the law specifically provides for the same. The appellant's counsel, relying on this case has argued that the present case being for ejectment of a trespasser would hardly make any difference as the ratio decidendi of the Madhya Bharat decision would be applicable to this case as well. According to him the appellant would be entitled to have compensation in respect of the income of this land as well and may be successful in having the land allotted as his khudkasht under the provisions of the Act. The respondent's counsel has cited AIR 1953 Nagpur 361 before us. This is also a Full Bench decision. The question raised in that case was more or less similar to that involved in the case before us. The landlords had obtained decrees for possession against the transferees of abadi sites and appeals were filed by the transferees before the High Court. It was argued on their behalf that the landlord had cease to exist that the State having acquired his right had come in his place and that, therefore, the land-holder had no longer any right to eject the transferee. The minority view, which was dissented from by the majority of the learned Judges, was expressed by Hidayat Ullah J. in the following words - "a long track of decisions has settled that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action. . . . . . . . . No doubt courts can sometimes must take notice of subsequent events but that is done merely inter-parties to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right and title of the plaintiff;'* A number of authorities was examined by the learned Judge and the following were quoted from a judgment of Mukerji and Beach-Croft JJ. "the defendants are consequently restricted to the contention that although the title of the plaintiffs to the land at the date suit may be established, relief should not be granted to them by way of recovery of possession and that such relief can legitimately be awarded only to persons who have succeeded to the interest of the plaintiffs -For this proposition no authority has been cited On the other hand, the argument tested from the point of the principle as well as convenience, seems obviously unreasonable. " The other two learned judges of the Full Bench- - Mudholkar J. and Sinha C. J. took a different view. It was pointed out by Mudholkar J. that after passing of M. P. Abolition of Proprietary Rights Act, the rights which were exercisable by Lambardars by reason of their holding these capacities can no longer be exercised by them. It may be that the cause of action for enforcing these rights arose long before the Act came into force but where those rights had not matured into vested rights because final decree in respect of those rights had not been passed, they cannot be enforced. The suit and appeals of the landlords for pre-emption or possession of abadi sites or grass land which were pending when the proprietary rights in villages were liable to be dismissed The pre emption decrees obtained by the landlords are no longer executable because the persons seeking to enforce them have lost their proprietary interest. This view was based upon an examination of the provisions of sec. 3 (1), 4 and 7 M. P. A. P. R. Act Sec. 3 (1) of this Act provides that save as otherwise provided in that Act on and from a date to be specified by a notification by the State Government of proprietary rights in ah estate. Mahal etc in the area specified in the notification vesting in a proprietor of such estate, Mahal etc. or in a person having interest in such proprietary right through the proprietor shall pass from such proprietor or such other person to and vest in the State for purposes of the suit free from all encumberances. As against this provision sec. 22 of the the Rajasthan Land Reforms & Resumption of Jagirs Act may be examined. As laid down in Sub-sec. (l) (a) and (b) as from the date of resumption of any jagir lands notwithstanding anything contained in any jagir law applicable thereto the right, title and interest of the jagirdar and of every other person claiming through him in his jagir lands, including forests, trees, fisheries, wells, tanks, ponds, water channels ferries, path ways, village sites, hats, bazars, and mela grounds and mines and minerals where being worked or not shall stand resumed to the Government free from al1 encumbrances and all rights, title and interests created in or over the Jagir by the jagirdar or his predecessor in interest shall as against the Government cease and determine. In the Madhya Bharat Act sub-sec. (2) of sec. 4 provides that the proprietor shall continue to retain the possession of his home-stead, home farm land and in the Central Provinces also of land brought under cultivation by him after the agricultural year 1948 49 but before the date of vesting. These provisions may be compared with those contained in sec. 23 of the Rajasthan Act. The Jagirdar can no longer institute suit for evicting unauthorised occupants as their powers have come to end Sec 183 of the Rajasthan Tenancy Act, 1955 lays down that a trespasser if he has taken or retained possesion of any land without lawful authority shall be liable to ejectment on the issue of a notice by the Tehsildar in the case of land held directly from the State Government Sec. 91 of the Rajasthan Land Revenue Act also provides for removal of unauthorised encroachment. Any person who occupies or continues to occupy any land without lawful authority shall be regarded as a trespasser and may be summarily evicted therefrom by the Tehsildar at any time of his own motion or upon the application of a local authority at whose disposal such land has been placed The detailed procedure to be adopted by the Tehsildar in such a proceeding has also been laid down in this connection. These provisions, therefore, make it clear that the right to secure eviction of trespassers upon Government land now vests not in the Jagirdar but in others. The State does not claim the proprietary interests either through or under the out-going proprietor. As observed by Sinha C J. the State as the ultimate owner of all property situated within its boundaries naturally becomes the owner of all property in villages except those interests which have been recognised by the State as still vesting in or held by individuals in their rights as cultivators or as house-holders by virtue of being inhabitants of the village or as having acquired by purchase or otherwise house sites or buildings on house sites. In view of these considerations the provisions of O. 20, R. 10 C. P. C. are out of way. Sec. 23 of the Rajasthan Act does not save to the out-going Jagirdars any decrees which they may have obtained after the resumption of their Jagirs. They have been divested of their rights excepting those mentioned in sec. 23 notwithstanding anything contained in any existing Jagir law. It was argued by the appellant's counsel that although it would not be open to his client to recover possession in execution of the decree yet the decree can be so modified as to determine the amount of compensation. The question of compensation and Khudkasht is not to be determined by any suit but only in accordance with the provisions contained in Chapters IV, VI and VII of the Rajasthan L. R. and R. J Act, Matters dealt with in the Rajasthan L R. and R. J. Act have been placed outside the jurisdiction of civil or revenue Courts. (Sec. 46) To conclude therefore, we Lould that the lower appellate court came to a correct conclusion in the case. The appeal is hereby rejected. . ;