- (1.) THIS is an appeal under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act (hereinafter referred to as 'the Act') against a decision of the Jagir Commissioner dated 25.1.58 in a case under sec. 37 of the Act. The circumstances that give rise to this appeal may be briefly stated thus: -
(2.) THE respondents instituted a suit on 23rd October, 1939 in the District Court Jodhpur of the former Jodhpur State against the appellant with the allegations that 16 Halvas of land had been given to their ancestor Patel by Rao Jodhaji founder of the former Jodhpur State in village named Patasar and Hemasar (the latter is also known as Bagnawas). This grant was alleged to have been reinforced by Maharaja Ajit Singh of Jodhpur under a copper plate inscription granted to the respondents ancestor Kana in Svt. 1947. It was stated in the plaint that 11 Halvas were situated in village Patasar and 5 Halvas in village Bagnawas. Boundaries of these land were also given in the plaint. It was further alleged that the appellant-Jagirdar of Bagnawas obstructed the tenants of the respondents from carrying on agricultural operations in the afore said land from cutting pala and grass whereupon the respondents instituted a suit in court of the Judical Superintendent Mallani for the relief of a permanent injunction only. As the respondents had been deprived of their possession unlawfully by the Jagirdar during the pendency of that suit a permission was sought by them to amend their plaint so as to include the relief of possession also. This application was somehow dismissed THEreupon the present suit was instituted for a declaration that the plaintiffs were Dolidars with respect to 16 Halvas of land spec-fled in the plaint, for recovery of possession of such portions of their Doli land of which the appellant has taken unlawful possession, for ejectment of the appellant therefrom and for a sum of Rs. 1800/- as mesne profits from 1933 to 1938 A.D. at the rate of Rs. 300/- per year along with further mesne profits from the date of the suit till the delivery of possession. This litigation has highly chequered career. A preliminary objection was raised by the appellant in 1940 as to the competence of the Civil Court to entertain the suit. This question was decided by Revenue and Judicial Ministers of the State of Jodhpur who held that the suit was triable by a Civil Court. Accordingly the trial proceeded and after the entire evidence was recorded the case came to be fixed for judgment for the 23rd October, 1943. For reasons which need not be gone into at this stage the case could not be decided even after the lapse of a decade after the aforesaid date. The Jagir of the appellant was resumed the meanwhile and the State was also added as a party in this suit Shri Sukhdeo Mirda Senior Civil Judge, Jodhpur was nominated to decide the case and on 15th October, 1956 an application was presented that the suit was triable exclusively by a Revenue Court inasmuch as it was covered by item No. 23 of Schedule III of the Rajasthan Tenancy Act and that that the Civil Court had no jurisdiction to dispose of it. The learned Special Judge by his order 16th October, 1956 held that the suit was triable by a Revenue Court. The respondents applied for a review before the learned Judge but met with no success. Hence they went up in revision before the High Court of Judicature for Rajasthan (Civil Revision No. 49 of 1957 decided on 19th September, 1957). Modi, J. who delivered the judgment of the High Court, held that by virtue of the provisions contained in secs. 37, 46, and 47 of the Act and regard being had to the earlier decisions of the High Court in D.B. Civil Miscellaneous Writ Application No.11 of 1955. (Rajvi Abhey Singh vs. the State of Rajasthan and others) and D.B. Civil Regular First Appeal No. 3 of 1953 (Prabhulal vs. Ratan Singh and others), it was clear that the case was covered by sec.37 of the Act. The learned Judge was, therefore, pleased to observe that "neither a Civil Court nor a Revenue Court has authority to decide the question of title involved in the present case and the proper authority to decide it at this date is Jagir Commissioner in accordance with sec. 37 of the Jagir Resumption Act. The result is somewhat unfortunate, inasmuch as it may mean a further protraction of this old standing dispute between the parties, but this cannot be helped in the circumstances of this case". The revision was allowed by the High Court and the case was directed to be withdrawn from the Revenue Court to the Court of the Senior Civil Judge, Jodhpur where it was to remain pending until the Jagir Commissioner had decided the question of title. The entire record of the case was directed to be sent to the Jagir Commissioner for deciding the question of title in accordance with law. A date was fixed by the High Court for appearance of the parties before the Jagir Commissioner as a speedy disposal of the case was considered essential the High Court. It was further made clear by the High Court that after the Jagir Commissioner has decided the question of title it would be for the Senior Civil Judge to consider afresh the question of the grant of the further reliefs claimed by the respondents in their plaint in the light of the circumstances then arising. As for the question as to whether the suit would be within the jurisdiction of a Revenue or a Civil Court after the decision of the question of title by the Jagir Commissioner it was left undecided and the High Court observed that it would be for the Civil Court to consider this question afresh after the decision of the question of title by the Jagir Commissioner. As would be evident from above when the the case reached the Jagir Commissioner the entire evidence of the parties, documentary and oral had been recorded. An objection was raised before him by the appellant that the evidence so recorded was inadmissible and that fresh proceedings should be conducted by the Jagir Commissioner. This contention was replied. After hearing the arguments of the parties the Jagir Commissioner decided the case on 25.1.58 and held that the respondents were entitled to the Doli land in dispute. Hence this appeal by the Jagirdar appellant. Shri Amritraj appearing for the appellant has assailed the validity of the decision of the Jagir Commissioner on a lumber of grounds. It has been contended that the High Court could not have transferred the case from court of the Senior Civil Judge, Jodhpur to that of the Jagir Commissioner, that the Jagir Commissioner could not have acted upon the record prepared by the Civil Court but should have recorded the entire evidence afresh and that alone could have provided a valid basis for its decision. It has also been argued that the decision suffers from vagueness as regards the area and identity of the Doli land. It has also been argued that the entries in the Revenue Record which are entirely in favour of the Jagirdar were also overlooked. It was further argued that even if it be held that there was Doli land of the respondents then also no relief could be available to them as the same had been encroached upon long ago by the appellant and as such the respondents cannot be deemed to be having a subsisting title in that land. Lastly, it was contended that the evidence led by the respondents was inadequate to establish the existence of Doli land as alleged by them. It was replied on behalf of the respondents that the decision of the High Court was perfectly competent and in the face of that the Jagir Commissioner had no option but to proceed with the stage at which it was received. The allegations of vagueness in the identity and area of land have also been denied by a reference to the boundaries of the land given in the plaint. As regards subsistence of the title it has been argued that the encroachments by the appellant were all after the year 1933 and as such no question of any bar of limitation could possibly arise in the case. In this connection a reference was also made to an observations of Modi J. in the decision of the revision which is as follows: - "The main question raised by the petitioners is one of title and once that question is decided there should be no difficulty as to possession as it rests with the State and could be made over to petitioners in the event of their success". As for the probative force of the evidence it was argued that documents spread over a number of years long before the commencement of this litigation that have been produced in the case leave no room to doubt that the respondents were the grantees of Doli land and as such the question of title was rightly decided in their favour by the Jagir Commissioner. All objection raised by the appellant, barring those relating to the merits of the case and the evidentiary value or admissibility of the evidence shall be disposed of first. The present case went up in revision before the High Court as the Civil Court had held that the case was triable by a Revenue Court. In the exercise of its revisional jurisdiction the High Court held that the question of title that was involved for determination in the case was within the jurisdiction of the Jagir Commissioner alone to the entire exclusion of the jurisdiction of a Civil or a Revenue Court. It, therefore, directed that the case should be transferred to the Jagir Commissioner for a decision on that point. The decision of the High Court on the point of jurisdiction is of binding authority for the Board and all the Court subordinate to the Board including the Jagir Commissioner. Sec. 243 of the Rajasthan Tenancy Act and sec. 8 of the Rajasthan Land Revenue Act may be referred to in this connection. Sec. 39 of the Act provides that in deciding an appeal under this section the authority hearing appeal shall follow the same Procedure as is prescribed for the hearing of appeals made to it under the Rajasthan Revenue Courts Procedure and Jurisdiction Act, 1951, which now stands repealed by the Rajasthan Tenancy and Land Revenue Acts. We, therefore, feel no hesitation in observing that the Jagir Commissioner was perfectly justified in acting upon the evidence recorded by the Civil Court which was competent to record the same at the time when it was so recorded. If the appellant felt himself aggrieved by the direction of the High Court it was open to him to take such steps as were available to him under the law to seek a reversal of that decision No such step however taken in the behalf by the appellant. The decision as long as it stands has to be followed in its entirely not only by the Jagir Commissioner but by the Board as well. The order of the High Court made it perfectly clear that the entire record of the case shall be sent to the Jagir Commissioner for deciding the question of title in accordance with law. This direction, by implication, left no room to doubt that the record as is stood at the time when it was received by the Jagir Commissioner was to be utilised by him for decision of the question of title in accordance with law. Having disposed of the aforesaid objections we would now examine the fact of the evidence led in the case. A number of documents have been referred to in the connection by the learned Jagir Commissioner which may be briefly referred to as below - 1. Ex. P. 1, 'Tambapatra' Svt. 1764. 2. Ex. P. 2, receipt of survey expenses of Svt, 1946. 3. Ex. P. 3, parwana issued by the Dewan of the Jodhpur State in Svt. 1881. This parwana finds a mention in the judgment of the Ijlas Khas, Jodhpur dated 15 Feb., 1901 which has been marked as Ex. P. 21 in this case. 4. Ex. P. 4, 5, 6, 7, 18 and 19 relating to hypothecation of the Doli land in Patasar and Bagnawas villages. 5. Ex. P. 8,9, 10, 11, 12, 13, 14 and 16 relating to mortgages created in favour of Babudan by the ancestors of the respondents in the Doli land. One of these relating to sale of the land. 6. Ex. P. 21, 28 and 24, judgments of the various courts of the former Jodhpur State in case which were started inter se among the respondents regarding their share in the Doli land. 7. Ex. P. 23, a judgment in a criminal case. 8. Ex. P. 30, a copy the plaint instituted by the appellant against one Foju Khan for recovery of possession of land measuring 662 Bighas and 4 Biswas which was admittedly rejected by the Court. The appellant contested the claim of the respondents on the grounds that there was no Doli l?nd in the village and that possession of the respondents if any was in the capacity of the tenants of the Jagirdar. However, in the course of the argument before us, it was suggested that even if there was Doli land of the respondents it had long ago been encroached upon by the Jagirdar with the result that the nemely of the respondents had become time barred in that behalf. Various objections were raised by the appellant's counsel with regard to the documentary evidence referred to above. We may ignore the 'Tambapatra' on the ground that its issue was not certified by the Daftar Dewani Hajuri of the former Jodhpur Stale, though it was replied that at the time of issue of the 'Tambapatra' this Daftar was not in existence. We are not prepared to accept this contention. Ordinarily, we would accept a 'Tambapatra' issued by the State to be having some entry in the Daftar Dewani Hajuri and in the absence of such a corroboration we do not take this 'Tambapatra' into consideration. As regards Ex P. 18 which is executed on a stamp paper in Svt. 1955 and which gives the boundaries of Doli land, it has been argued that is does not bear the signatures of the executants and that a reference is made in to British Currency which was not made legal tender in that part of the country in Svt. 1955 Both these contentions are without any force. One of the executants was examined in the case alongwith the person in whose favour the document was executed and from whose lawful custody it was produced in the case. The absence of signatures may be due to oversight and does not suggest any fabrication. If there had been any intention to forge and document, it was very easy to fill in the gap subsequently. The very fact that signatures of the executants are conspicuous by their absence strongly shows that there bad been no subsequent tampering of the document which exists in the State it was at the time of execution. As for British Currency it may not have been made legal tender in Jodhpur State, but looking to the fact that the mortgagees were residents of a salt manufacturing area Pachpadra which was administered directly by British Currency. There is thus no inconsistency in the document. It would be not necessary for us to examine minutely every document that has been examined in the rase. We would confine our attention to the scrutiny of the most important ones only. In this category we would include first Ex. P. 2 which is a receipt issued by the Kamdar of the appellant in favour of the ancestors of the respondents shewing that charges of survey operations were received by them in full which were carried out in the Doli land Evidence was led in the case to show that the executant of this receipt Shri Sanwaldas Joshi was the Kamdar of the Thin-kana. The learned counsel for the appellant frankly stated before us that no evidence was led on his behalf to rebut the evidence led by the respondents and that the irresistible inference was that Shri Sanwaldas Joshi had occupied the position of a Kamdar of Thikana. This receipt was issued in Svt. 1946 i.e. half a century prior to the institution of this suit. It could thus be safely assumed that this receipt reflects a correct state of affairs as was obtaining then and that the Doli which is being claimed by the respondents was definitely in existence there. The learned counsel for the appellant has not been able to show us any reason for discrediting this document except a feeble contention that it does not give the boundaries or the areas of the Doli land. The important question is the existence of the Doli land itself and as its existence was being denied by the Thikana it was for the Thikana to show that under the circumstances of the case it was Doli land other than that in dispute. This respondents had by production of this receipt successfully established that there was a Doli land as early as Svt. 1946 which was surveyed by the Thikana itself. We would have expected the Thikana, in the interest of justice and fair play, to produce the record of the survey operations. In the absence of such a step it would be difficult to hold that the receipt is devoid of any value as argued by the appellant's counsel. Next we would refer to the documents relating to criminal and civil litigation between the appellant and Foju Khan who was examined as a witness in the case (P. W. 10). He, claiming himself to be tenant of the respondents instituted criminal proceeding u/s. 145 Cr.P.C. against the Thikana and the same were decided in favour of Foju Khan. The Thikana instituted a case under sec.404,352 I.P.C. and that was dismissed. Thereafter the Thikana instituted civil suit against Foju Khan for recovery of possession of land measuring 662 Bighas and 4 Biswas on 26 6-39 on the ground that it was his jagir land. Foju Khan contested this claim with the allegation that the land was Doli of the respondents. The appellant eventually lost his suit. An attempt was made on behalf of the appellant to show in the present litigation that the area involved in the previous litigation was much less. This attempt is however. not worthy of any serious consideration for the statements of Ranjit Karan D.W. 65 and Mohan Karan D. W. 66 are perfectly clear on the point. The learned counsel for the appellant has not been able to state anything substantial against the probative force of this judgment except that the Thikana could not arrange for a proper conduct of this litigation and hence no adverse inference should be drawn against it. The untenability of such a suggestion is too evident to need any express comment. We may also refer to some litigation which took place among the respondents themselves regarding the right of the various co-sharers in the Doli land. We would have not made any specific mention of this litigation but for the fact that Sanwal Das Joshi, the Kamdar of the Thikana was examined in this litigation as well and he testified to the Doli land of the respondents in the village. Ex. P. 21, 23 and 24 may be referred to in this connection. The Jagir villages are said to have remained under the Court of Wards also for a long time. No receipts for the recovery of rent or land revenue from these disputed Doli lands have been produced. If the disputed land had not been Doli but had been a land belonging to Jagirdar, rent must have been realised therefrom. This absence of any receipt in the record of Court of wards tends to substantiate the claim of the respondents that the disputed land was Doli belonging to them and not included in the Jagir of the appellant. As for the area of the disputed land, the respondents have given it in para No. 1 of their plaint to be 16 Halvas equal to 5607 Bighas and 4 Biswas. In para No 2 of the plaint details of this land have been village wise with complete boundaries. In village Patasar the land is said to be situated in one Chak consisting of 4127 Bighas and 19 Biswas. In village Bagnawas it is said to be situated in two different Chaks comprising 1249 Bighas and 15B Biswas and 229 Bighas and 10 Biswas respectively. In the previous litigation that took place between the respondents inter se the extent of the Doli land has been described as being 15 Halvas. There is nothing on the record to indicate the extent that is indicated by the term Halva. The learned counsel for the parties had however unanimously stated before us that one Halva is equal to 4 Halas and one Hal is equal to 100 Bighas. Thus one Halva would mean 400 Bighas By applying this measurement the land in dispute would be even less than 15 Halvas. No evidence whatsoever was led by the appellant to rebut the case of the respondents on the point. It can therefore be safely presumed that the land mentioned in the plaint is included within the Doli. The result, therefore, is that there is no substance in this appeal, which is hereby rejected. ;