- (1.) THIS appeal under sec. 66 (2) of the Ajmer Abolition of Intermediaries & Land Reforms Act, 1955, (hereinafter to be refferred as the Act) against the order of the Collector dated 29. 5. 56 in a case under sec. 7 of the Act was presented before the Chief Commissioner of the former State of Ajmer on 4. 7. 56 and has come up before us under sec. 15 of the Rajasthan Adaptation of Laws (on State & Concurrent Subjects) Order, 1956.
(2.) WE have heard the learned counsel for the parties and have examined the records as well. The Deputy Manager Court of Wards, Ajmer on behalf of the wards put up a list of properties in A1, Form 4 claiming them to be private and personal property of the intermediary under sec. 7 of the Act. Four items were included in this list. Items Nos. 1 and 2 - a Kutcheri and a Kacha house have been declared as the private and personal property of the intermediary by the lower court and hence they are beyond the scope of this appeal. Items Nos. 3 and 4 - land measuring 1660. 36 and 244. 36 acres in khata Nos. 6 and 54 of the settlement khewat - were held to have vested in the State Government free from all encumbrances and hence were not declared as private and personal property of the intermediary. It is the validity of this finding which has been challenged before us in this appeal. The main contention raised on behalf of the appellants before us is that in respect of items Nos. 3 and 4 of the list, the appellants occupy a double status, that of a Jagirdar and a biswedar ; that the Act abolishes the rights of an intermediary but not those of a biswedar ', and hence these properties should be held to be the private and personal property. The learned Government Advocate who was present on the first hearing but had to be absent on the subsequent hearing because of his illness, replied that the appellants had failed to establish their biswedari rights in respect of these properties and hence the finding of the lower court Was thoroughly sound The question as to whether the appellants have not been able to prove that they have any biswedari rights in khata Nos. 6 and 54 stands relegated to a subsidiary position in view of the provisions contained in sec. 6 of the Act. But as considerable emphasis was laid on behalf of the appellants before us, we would also examine the finding arrived at by the lower court on this fact. The term biswedar though used in the Act in different places has not been defined in it Clause XXIII of sec. 2 of the Act lays down that all other words and expressions used in the Act but not defined therein but defined in the Ajmer Tenancy and Land Records Act or the Ajmer Land & Revenue Regulation, 1877 shall have the meanings respectively assigned to them in the said Act or Regulation In the Ajmer Tenancy Act, biswedar' has been defined as "any person who is recorded as plot proprietor in the settlement khewat of 1874 and is continuously so recorded since, or who, but for an error or omission, would have been so continuously recorded" The appellants have produced certified copies of Record of Rights prepared in decennial settlement and therein khata No. 37, which is alleged to correspond to khata No. 6 of the present day - a point on which we express our inability to form any final opinion for want of a conversion chart - has been shown as being in the Milkiyat of Raja Balwant Singh and others. In the Bees-sala settlement khata No 24 is also shown in the Milkiyat of Bijai Singh son of Balwant Singh etc. In the thirty-years settlement the khata No 4 which is alleged to relate to this khata is entered in the jagirdari and biswedari of Raja Bijai Singh and others. The entry as regards khata No. 54 is 'shamlat deh hasb rasad khewat jagitdaran;' in settlement record of 1315 and 1349 F. The appellants who are the jagirdars of Gungwana and Ootra, Magra were classified as being in the first grade in the report of the Committee on Jagir Estates dated 16. 5. 1874. The Committee recognised two grades of Jagirdars among individual grantees. The first category comprised those to whom the property descends by right of primogeniture and those, who were in possession of not less than half a village. The second category was of those who had a share in a village or in its revenue less than half. Nine Jagirdars were included in the first grade and Raja Balwant Singh of this Jagir was placed at item No. 4. The origin of this jagir as set out in paras 34 to 36 along with the recommendations of the Committee may be quoted in extenso. "34 Rae Singh, the ancestor of this family, had five sons, three of whom inherited. Bir Singh got a share in Karkeri equivalent to Rs. 60,000 and Sawunt Singh and Bahadur Singh divided the rest of the property equally. Sawunt Singh took up his abode at Rupnagar Bahadur Singh, the ancestor to the present Maharaja at Kishengarh The eldest son of Sawunt Singh, Sardar Singh died childless, but he enjoined that Ameer Singh son of Bir Singh should succeed him. On the death of Sardar Singh, Bahadur Singh refused to recognise the adoption of Ameer Singh, and took possession of Rupnagar. With the help of the Maharaja of jodhpur, however, Bir Singh and Ameer Singh obtained Rupnagar. Bahadur Singh then applied to Holkar and by the bribe it is stated of a lac of rupees, procured the expulsion of Ameer Singh from Rupnagar and of Bir Singh from all his property, with the exception of Ralaota to which he had succeeded on the mother's side. Bir Singh joined the Maharattas, and distinguished himself in the battle of Panipat, where he was killed. Madhojee Scindia in recognition of their father's worth, gave six villages in Jagir to Ameer Singh and Sooruj Singh Sarana, Mugree Ararka, Gungwana, Ootra and Magra. By a subsequent arrangement, Ameer Singh obtained the first three. Sooruj Singh obtained Gungwana, Ootra and Magra. Ameer Singh took service in Jeypoor and Scindia confiscated his villages which have since been khalsa. 35. Sooruj Singh had three sons: to the eldest Jaswant Singh he gave Ralaota, to Arjun Singh and Sher Singh he gave Gungwana, Ootra and Mugra. The younger son of Arjan Singh, Jeth Singh was adopted by Jaswant Singh of Ralaota. When his son Durjan Sal was born, Jeth Singh attempted to recover his share in Ajmere, but on the subject coming under arbitration his claim was negatived, and he now holds Ralaota only. "36. The following Genealogical Table shows the present sharers in the Jagir : - Sooruj Singh Arjun Singh Sher Singh Balwant Singh Sadool Singh Sheonath Singh Bakhtavar Singh Guman Singh Aman Singh Sawunt Singh Gulab Singh of these the Committee propose to consider Balwant Singh, who takes half the revenue of the three villages of the Jagir of the 1st class, and to entail his property in his eldest son, the other half of the property to be divided as at present among the sons of Sadul Singh and their heirs according to ancestral shares. " The Committee has also thrown considerable light upon the question as to how the jagirdars came to be regarded as owners by the Settlement Officer in 1872. Para 67 of the report may be quoted as below : - "67. The tenure of Jagir Estates, as between the Jagirdars and the cultivators, was judicially declared by the Settlement Officer, on the 13th August, 1872 This declaration, if not disputed within three years becomes final The principle adopted in the declaration was that those who had expended money in the improvement of land were owners of the land so improved ; the Jagirdar was declared owner of unimproved land and waste. " It could thus be seen that as between the Jagirdars and the persons cultivating the land, the Settlement Officer decided that the Jagirdars shall be the landlords or proprietors of all waste and uncultivated lands as well as in all cultivated lands dependant alone on the rainfall, excepting where the cultivators were located previous to the grant. In lands protected by wells or other irrigation works the cultivator was declared to be the full proprietor subject of course to the payment of the usual assessment either in cash or kind to the Jagirdar. In other words, in a Jagir the cultivator of an irrigated piece of land was declared to be the proprietor thereof while in case of dry or uncultivated land the Jagirdar was declared the owner But it does not and cannot mean that the Jagir tenure was terminated or substituted by a biswedari tenure. The jagir tenure continued and the tights of the Jagirdars in such lands were recognised as being those of owners. Sec. 6 (1) (a) of the Act lays down that from the date of vesting of any estate, the consequences set out in this clause shall ensue in respect of such estate notwithstanding any thing contained in any Sanad, contract, grant or other document or in any law, rule, regulation, or order for the time being in force. One of such consequences is that the right, title and interest of the intermediary and of every other person not being a biswedar claiming through him in the estate including waste or uncultivated or unoccupied lands, Beeds, etc. shall cease and be vested in the State Government free from all encumbrances. It has been argued on behalf of the appellants that this provision protects the biswedari rights of an intermediary. This is evidently untenable. The language evidently shows that the right, title and interest of the intermediary and of every other person claiming through him, excepting a biswedar in the estate shall cease. A biswedar to be within the exception in this sub-clause should be one who claims through the intermediary but is entirely different from him. The words 'of every other person' clearly signify the intention of the Legislature. The right, title and interest of the intermediary in the estate including waste, uncultivated or unoccupied lands shall cease and be vested in the State Government. The biswedari or milkiyat rights or title of the intermediary in the estate are evidently included within the term "the right, title or interest of the intermediary. " If the intention was to protect such rights of the intermediaries, it could have been clearly laid down in the Act itself. Sec. 7 of the Act provides that notwithstanding anything contained in Sec. 6, the intermediary shall continue to remain in possession of such khudkasht or mj jot land as is in his personal cultivation on the date of vesting. Exemptions in respect of open enclosures used for agricultural or domestic purposes continuously for a period of 12 years, open house sites purchased for valuable consideration, private building and places of worship, groves and orchards, trees, private wells and buildings in occupied land allotted to the intermediary have also been provided in this section. If the Legislature had intended to allow the intermediary to continue in possession of land of which he was regarded as the Malik or proprietor, there was nothing to prevent it from making an explicit provision in this section. As pointed out above, sec. 6 (1) (a) expressly mentions the rights of the intermediary in waste or uncultivated or unoccupied lands, Beeds, forests, etc. and in view of this clarification it was essential that an exception be made in favour of milkiyat khata lands of an intermediary. But no such exception has been laid down in sec. 7 of the Act Sec. 6 of the Act terminates all the rights, title and interest of the intermediary in the estate and this is wide enough to include those rights as well which were recognised by the Settlement Officer in 1872. The appellants have failed to show us any provision in secs. 6 and 7 of the Act as may remove their milkiyat rights from the purview of sec. 6 or may include it within the ambit of sec. 7 of the Act. It was further argued that sec. 36 of the Act leads support to the appellant's contention. This section runs as below : - "36. Biswedar : Every person holding land as a biswedar in Jagir land shall as from the date of vesting hold such land directly from the State Government on the same terms and conditions which are applicable to land held by a khewatdar. " Much need not be said on the point. The section occurs in Chapter VI of the Act dealing with 'management of land in Estates' acquired under this Act and while coming to biswedars it lays down that persons holding lands as biswedars in any Jagir land shall as from the date of vesting hold such land directly from the State Government on the same terms and conditions which are applicable to land held by a khewatdar. This obviously has no application to intermediaries, even though they may be declared as owners in respect of some pieces of land within the estate. The provisions of this chapter would come into operation only after the acquisition of the estates within the Act and as far as acquisition itself is concerned that is a matter to be governed by the earlier provisions of the Act. Evidently the provisions contained in secs 6 and 7 of the act are not governed by sec. 36 of the Act as these provisions occure in differing contexts which cannot be mixed up together. To conclude therefore, we hold that the ownership or milkiyat rights declared in favour of the appellants, during the settlement operations of 1872 AD and which were continued to be recognised during the subsequent settlement operations must cease and vest in the State Government as they are clearly included within the terms of sec. 6 (1) (a) of the Act and have not been excluded from its purview by sec. 7 of the Act. It was also argued that the lower court inspected the site and found a cluster of trees on the land and hence it should have been held to be a grove. Grove has been defined in the Act as "any specific piece of land having trees planted thereon in such numbers that they preclude or when fully grown will preclude the land from being used primarily for any other purpose. " No evidence whatsoever was led by the appellants to show that the trees were planted on the land. Looking to the nature of the trees they generally appear to be of wild growth. The decision of the lower court on the point, therefore, is not open to any challenge. The result is that there is no substance in this appeal and we hereby reject the same. . ;