N.P.GUPTA, J. - (1.) THIS appeal by the unsuccessful plaintiffs, whose suit was dismissed by the learned trial Court as well as the learned single Judge. The appellants now are the legal representatives of the original plaintiff. Likewise some of the respondents are also legal representatives of the original defendants.
(2.) FOR the present brief facts may be recapitulated, being, that the plaintiff filed the present suit for declaration and possession on 18-1-1955, alleging inter alia, that the plaintiff being Jagirdar of village Surpura, and had two younger brothers, being Bakhat Singh and Ranjit Singh defendant. Out of them Bakhat Singh moved application before the Chief Minister for maintenance, and he was awarded Rs. 40/- per month for maintenance, and Rs. 1500/- for constructing residential house, and that Ranjit Singh was also started being paid Rs. 40/- per month, and when he was offered Rs. 1500/- for construction of house in April, 1946, he declined to receive the same, on one ground or the other. However, thereupon he was allowed to continue to live in the Haveli till the amount payable to him for the cost of construction of the house is determined. According to the plaintiff, application was moved in 1946 to Chief Minister, who determined Rs. 3000/- as the cost in 1949. but the order was not passed, because former Jodhpur State was integrated in united State of Rajasthan. However, Rajasthan Government accepted the recommendations of the consultative committee, and on -6-1950 ordered Rs. 3000/- to be paid to the defendant Ranjit Singh, and directed that he be dispossessed. This amount was accordingly offered, but the defendant refused to receive. The plaintiff's further case is, that during this interregnum period, the defendant submitted an objection on 1-7-1946 in the Patta Court, where the file was pending for preparation of Patta in the name of plaintiff, for adding his name also in the Patta. This litigation ultimately travelled to the Board of Revenue, which by order dated 4-10-1954 ordered that name of defendant Ranjit Singh be also added in the Patta. This order of the Board of Revenue is a subject - matter of challenge in the suit. 3. The plaintiff's further case is that according to Patvi custom, the Haveli devolves by primogeniture, and younger brothers (THAATHVI) have no right, to which effect Jodhpur Darbar had issued an order, in the nature of general order on 23-8-1898. Thus the plaintiff claims, that since he is ready to pay that amount, the defendant is liable to be dispossessed from the property in his occupation. Inter alia on these averments it is prayed, that the order of the Board of Revenue dated 4-10-1954, directing addition of name of respondent be set aside, and the Haveli be entered in the name of plaintiff only, and the apartments prescribed in para 7 of the plaint be got vacated from the defendant, and possession be delivered to the plaintiff.
(3.) THE written statement was filed by the defendant on 17-3-1955. It was contended therein, that the original Jagirdar was Rao Raja Jai Singh, and on his death three brothers Fateh Singh, Bakhat Singh and Ranjit Singh became Jagirdar, and not the plaintiff alone. The other pleadings were denied. It was pleaded that Rs. 40/- is not being received by way of maintenance, but only by way of pocket money. Then, it was pleaded that Rs. 1500/- were of course offered but then the amount was not accepted, being much inadequate. It was also pleaded that the defendant is living in the property as grandson of late Shri Kalyan Singh, who had purchased the property, and defendant has equal right as that of the plaintiff. The existence of old custom about rights of younger brother in the Haveli was denied. Then it was pleaded, that the plaintiff did threaten to dispossess the defendant through police force, whereupon the defendant had to file suit in the Court of Munsiff Magistrate for injunction, and on receipt of summons the Collector himself stopped the proceeding to dispossess the defendant, and therefore, the suit was withdrawn and the defendant is continuing in possession. Passing of the order by the Board of Revenue directing inclusion of the name of the defendant was admitted. The rule of primogeniture qua the Haveli was denied, being concoctionand contrary to principles of justice, and Indian Constitution. Regarding the order of Jodhpur Darbar date 23-8-1898, it was pleaded to be not applicable, secondly it was not a general order, thirdly that order stands repealed by Marwar Patta Act, and in any case does not have a binding effect on the defendant. The defendant claimed to be in possession as co - owner (Mustaraka), and a bona fide owner. Consequently the plaintiff's right to dispossess the defendant was denied. Various other objections were also taken.;