- (1.) THIS appeal under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act (hereinafter referred to as the Act) has been filed against the final award determined by the Deputy Collector Jagir, Churu on 20 8-58 under sec. 32 of the Act.
(2.) WE have heard the learned counsel for the parties and have examined the record as well. The validity of the decision of the lower court was challenged before us on the following grounds: (1) Interest on the amount of compensation at 2-1/2% per annum from the date of resumption was not granted to the appellant. (2) A clerical mistake appearing on 6th page of the judgment under appeal should be rectified. (3) Rs. 223. 25 N. P. disallowed by the lower court as Dhuvan should be allowed. (4) Rs. 508/- for grazing fees should be allowed. (5) Rs. 294. 19 for Gol Bhunga should be allowed. (6) Rs 393 31 N. P. for income from sale proceeds of the produce of land should be allowed. (7) The rent charged by the appellant for Makbuja Thikana land should be allowed after verification from the settlement record (8) The income from service tenure should be allowed after verification from the settlement records. At the outset the learned counsel for the appellant made it clear that he was mot going to press points No. 3, 6 and 8 and hence nothing need be said about them in this judgment. As for points No. 1 and 2, the learned Government Advocate has frankly conceded that the stand taken by the appellant is correct. Sec. 26 (2) lays down that compensation payable under this section shall be due as from the date of resumption and shall carry interest at the rate of 2-1/2% per annum from that date upto the date of payment. The printed form of the award also contains a condition to this effect and the appellant appears to have been influenced by the fact that the judgment itself did not contain any reference to it The award which has however, been drawn in accordance with this judgment contains a condition as to the payment of interest and hence nothing further need be said on the point. As regards the clerical mistake, it is clear that the total on page 6 of the judgment under appeal of Rs. 1197. 62 and 33. 19 comes to 1230. 81 as calculated by the lower court The appeal on the point therefore deserves to be allowed and the mistake should be rectified. As regards point No. 4 of the contention of the learned counsel for the appellant is that a sum of Rs. 508/-actually accrued to the appellant in the basic year and as such there ought to be no question of working out any average of the income of the past 3 years as para 2 (c) of the second Schedule of the Act lays down that where grazing fees are prescribed by the Government income shall be calculated on the basis of the prescribed scale of fees. To appreciate this argument it would be necessary to examine both clauses (b) and (c) together. Clause (b) lays down that income from forests calculated on the basis of average yield for 3 years preceding the basic year shall be one of the items to be included in the computation of the gross income of a Jagirdar Clause (c) lays down that income from grazing fees calculated on the same basis as the forest income shall be another item in this computation with the exception that where grazing fees are prescribed by the Government income shall be calculated on the basis of the prescribed scale of fees Obviously the provision as it exists refers to the adoption of income which ought to be the basis on arriving at the gross income. As is evident from clause (b) two processes are involved in arriving at the income under this clause. The first is to determine the various incomes that actually accrued during the 3 years prior to the basic year. The second is to strike the average of all those 3 figures combined The exception given in clause (c) has reference to one process only, viz. , the calculation of the income part and it is provided therein that irrespective of whatever income that may have actually accrued to the Jagirdar the income that shall be taken into consideration for purposes of this clause only that income which is arrived at in accordance with the grazing fees prescribed shall be by the Government. There is nothing in this provision relevant to the other part, i. e. the striking of the average income. We therefore, hold that the contention raised by the learned counsel is untenable. Point No. 5 relating to income claimed from Gol Bhunga was disallowed by the lower court merely on the ground of a circular letter issued by the Jagir Commissioner. The learned counsel for the respondent has frankly conceded his inability to support this decision and has stated that if this is the only ground for disallowing this claim, it is ineffective and the claim should be allowed. The appeal on the point, therefore, deserves to be allowed. As regards point No. 7, the lower court disallowed it on the technical ground that no claim was preferred on account of income from Khudkasht land. Evidently there has been some confusion on this point in the trial of the case. The original claim as it appears was for Rs. 1368/2/ -. As has been explained before us today and was explained before the trial court through an application dated 11. 6. 58 this claim was in respect of all the land that was occupied by tenants whether it was Khudkasht or not. In other words, the Khudkasht land was let out to tenants and the income derived from them was included in this claim. But as the Khudkasht land was not assessed to revenue a deduction was made on that account. After that deduction the appellant raised this point through the application referred to above but the lower court did not proceed further with the examination of the point on the ground that no claim was preferred on account of Khudkasht land. This may be said of the claim in form only but not in substance as it was made clearly by the appellant that the claim which he put forth was for the entire land which included his Khudkasht land also which was let out to tenants. This portion of the claim should not have been rejected summarily in the way in which it was done by the trial court but should have been subjected to an investigation in accordance with the provisions contained in sec. 6 (3) (a) (i) and (ii) of the Act, The learned Government Advocate has agreed with this view. The result is that the appeal is allowed in part, the judgment of the lower court is set aside to the extent it relates to points numbers 2, 5 and 7 discussed above and the case be remanded to the lower court with the direction that these" points be tried and determined afresh in the light of the observations made above in accordance with law. The final award be determined thereafter due regard being had to the provisions of sec. 26 of the Act. . ;