- (1.) THIS appeal has been filed under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act (hereinafter referred to as the Act) by the Jagirdar Sardargarh against a decision of the Jagir Commissioner Rajasthan, dated 15. 5. 1957 in a case under sec. 23 (2) of the Act.
(2.) WE have heard the learned counsel for the parties and have examined the record as well. The first and foremost contention raised by the learned counsel for the appellant before us is that the case was not referred to the Jagir Commissioner within the meaning of sec. 23 (2) of the Act and hence he had no jurisdiction to pass any order in the case. Reliance has been placed in this connection upon Rule 22 (3) Of therules framed under the Act. As much stress was laid by Shri Jivan Singh Chordia upon this aspect of the case we may refer to this matter in some detail. Chapter V of the Rules relates to the resumption of Jagir lands. Rule 21 deals with taking over charge of resumed Jagir, It is provided therein that on the date finally appointed for resumption of a Jagir under sec. 21 the Collector shall inform the Jagirdar of the resumption of his Jagir and request him to hand over charge of his Revenue Records and school and Hospital buildings. If the Jagirdar does not agree to hand the charge the Collector may take over charge by proclaiming the Same through beat of drum. Rule 22 relates to submission of list of personal properties by a Jagirdar. It lays down that the Jagirdar shall submit to the officer taking over such charge a list of properties which he claims under sub-sec. (1) of sec. 23 of the Act to be his private and personal properties. If such officer is of opinion that any item of property specified in the list submitted to him is not the property which the Jagirdar is entitled to hold he shall record the reasons for such opinion and refer the matter to the Jagir Commissioner under sub-sec. (2) of sec. 23 of the Act. In the present case it is evident that the Jagirdar submitted no list of personal property at the time of the resumption of bis Jagir or at the time when the charge of the Jagir was taken over by the Collector, (The Jagir was resumed on 23. 8. 1954 and a list of the (1) personal properties is alleged to have been presented by the Jagirdar on 8. 9. 1956 ). The contention is that the Collector made no reference as laid down in the aforesaid Rules and hence the Jagir Commissioner cannot have any jurisdiction to decide the dispute. Evidently this argument is a fallacious one. Sec. 23 (2) lays down that if any question arises whether any property is of the nature referred to in sub-sec. it shall be referred to the Jagir Commissioner who may after holding the prescribed enquiry make such order thereon as he decors fit. To appreciate the true nature of the contents of this section we may refer to section 46 of the Act. It provides that no civil or revenue court shall have jurisdiction in respect of any matter which is required to be settled, decided or dealt with by any officer or authority under this Act. Hence if any question arises as to whether any property is of the nature referred to in sec. 13 (1) or not it shall be referred to the Jagir Commissioner who alone can decide the same. Rule 23 (3) no doubt relates to an instance where this question can arise and evidently this Rule will have reference to that category of instances alone, i. e. where the officer taking over charge of the Jagir entertains doubt as regards the nature of any item of property specified in the list. In that case he is directed by the Rule to make a reference to the Jagir Commissioner. Evidently there may be cases of other nature also where the question can arise and naturally there can be no question of a reference being made under Rule 22 (3) to the Jagir Commissioner. It can be referred to the Jagir Commissioner in any other manner. The Rules 22 and 23 relate to one type of cases and there is nothing in the Rules or in the Act that may raise an inference that this is the only or exclusive manner of reference. To give effect to the clear intentions of the section it must be held that wherever any question of the nature laid down in sec. 23 (1) of the Act arises it may be referred to the Jagir Commissioner. The present case provides an instance of this type. The cultivators who were getting irrigation facilities from Manohar Sagar Tank made some representations to the Government as regards their rights and the dispute arose in that connection and not upon a list of private properties submitted by the Jagirdar as the list was no doubt submitted by him but was long after the dispute arose. The objection is therefore, overruled. In view of the order that we are making in the case it is not necessary to discuss the merits at this stage. We many briefly refer to the manner in which the proceedings were conducted in this case. The Jagir Commissioner by his letter No. 8014/j. C. dated 25. 10. 1956 desired the S. D. O. Udaipur to hold an enquiry into this affair under sec. 23 (2) of the Act. It may be observed here that through an earlier letter this enquiry was entrusted to the S. D. O. Raj Samand but he could not proceed with it because of his illness. The S. D. O. Udaipur after ascertaining that no progress was made in the enquiry pending before the S. D. O. Raj Samand ordered on 4. 12. 1956 that notices to the Revenue Secretary, Collector and the public concerned be issued in accordance with the prescribed procedure and the Jagirdar be informed to put up his objections and that the case be fixed for 15. 2. 1957. On this date the State Government was represented by a jagir Inspector which was evidently against the provisions of R. 26 (1) of the Rules framed under the Act. On behalf of the Jagirdar a request for adjournment was put up on the ground that on that very day he had to attend a case in the court of the S. D. O. Raj Samand of which notices had been received by him much earlier. The notice was also produced along with the request for adjournment. It appears that this request was not put in by an Advocate having a Vakalatnama and hence the same was rejected. Four witnesses were examined on behalf of the tenants and the Jagir Inspector produced some copies of Revenue Record. One witness appears to have produced some receipts, the original of which do not exist on record and only their copies are to be found on it. Thereafter the case was adjourned for a decision to 18. 3. 1957. In the meanwhile on 6. 3. 1957 the Jagirdar put up an application for setting aside the ex-parte decree on the ground already mentioned and an affidavit was also filed along with this application. This application report was directed to be put up on the day of judgment. On 18. 3. 57 the S. D. O. was out on tour hence the case was adjourned to 15. 4. 1957. On this date the Jagirdar's request for setting aside the ex-perti order was rejected. A report was drawn up by the S. D. O. to the Jagir Commissioner wherein it was stated that Manohar Sagar tank was not covered by the provisions of sec. 23 (1) of the Act. When this reached the office of the learned Jagir Commissioner a note was put up before him by the clerk concerned, and 8th May was fixed for bearing. The file of the Jagir Commissioner's office does not contain separate and consecutive order-sheets attached at the commencement of the file. We have, however, looked into the note sheets and find that on 8. 5. 1954 the parties concerned could not be informed and hence the case was adjourned to 15th May. The order of the learned Jagir Commissioner which forms the subject-matter of this appeal, however, says that the case was heard on 9th May when some objections were raised by the Jagir's counsel. On 15. 5. 1957 the learned Jagir Commissioner delivered the judgment which forms the subject matter of the appeal. Rule 28 lays down that the mode of enquiry regarding personal properties shall be the same as that of the trial of a suit by a revenue court. Rule 45 also lays down a similar provision that all enquiries under the Act unless otherwise specifically provided be conducted in the manner provided by law for the trial of the revenue suit. In the present case we find that none of the parties was ever required to put up its pleadings. Naturally no issues were framed in the case. The Jagirdar was not allowed an adequate opportunity to put up his case or to lead his evidence. The documentary evidence which exists on record has not been admitted properly. The originals do not exist and it is not clear under what circumstances they were not placed on record. Neither it is clear if all the receipts are admitted by the opposite party or not and if not how do not stand proved legally in the case. The first hearing in the case was fixed for 5. 12. 1957. It cannot be denied that the ground on which the adjournment was sought was perfectly reasonable and that there was no intention to protract the proceedings on the part of the Jagirdar. On 6th March, 1957 an application was put to set aside the ex-parte order and before the Jagirdar could know the fate of that application the S. D. O. gave bis decision in the case. Even if the learned S. D. O. did not consider it proper to set aside the ex-parte proceedings there was no reason why the Jagirdar should hot have been allowed to participate in the proceedings at the stage when he appeared in the lower court. The learned Commissioner also did not consider this aspect of the case. We have gone through the objections raised by the Jagirdar which exist on record. They relate to the refusal of the trial court to give an opportunity to lead his evidence or to allow him proper opportunity to put up bis case. Before the Jagir Commissioner a list of the documents which the Jagirdar wanted to produce in the case, was also submitted. On going through this list we find that it contains some judgments of various tribunals as well which have a bearing upon the present case. The question as to whether the document does or does not possess any probation a! force is a question for subsequent consideration. The first item is that the party should be allowed fair and legal chance of producing evidence for consideration before the court. Where this is not allowed the trial cannot be regarded as proper or legal. This is what has exactly happened in the case. In the trial court the jagirdar wanted an adjournment on proper ground and the same was refused. We wanted to participate in the proceedings to lead his evidence and this request was also turned down for no convincing reasons. The request was repeated before the Jagir Commissioner as well but met with a similar fate. Ordinarily failure to strike proper issues or any other irregularity would not vitiate the trial. But where there has been absence of all procedure it must be held that the irregularity has affected the decision on merits. In the present case the procedure followed in both the courts vitiates the trial completely and hence any adjudication on merits would made above. We further direct that Manohar Sagar tank shall and remain, pending the decision of the enquiry, in the possession of the Government, but the right of the Jagirdar in any portion of tank which may be in the personal cultivation of the Jagirdar shall not be affected thereby. The Government shall, through the Collector, make suitable arrangements as regards the period, manner and extent of dewatering the tank to safeguard the aforesaid rights along with similar rights of other persons as well. .;