- (1.) THIS appeal under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (hereinafter referred to as the Act) has been filed against an order of the Deputy Collector Jagir, Jodhpur dated 28. 2. 59 whereby the claim for compensation and rehabilitation grant of the respondent was finally determined under sec. 32 (2) of the Act.
(2.) WE have heard the learned counsel for the parties and have examined the record as well. The learned Government Advocate has challenged the propriety of the lower courts* decision in respect of 3 items on two grounds only. WE shall deal with each of them separately. The first contention is that income from grazing and from non-agricultural uses of land - Rs. 83-42 np. and Rs. 35067 np. respectively have been allowed merely on the basis of the entries in the account books of the respondent without any corroborative evidence being produced in support of them. It has been replied on behalf of the respondent that the Legal Adviser appearing for the Government had admitted the veracity of the respondent's claim on these items and that the statement of the Jagirdar provides complete corroboration of the entries in the account books. A perusal of the record shows that on 2. 9. 58 the Legal Adviser objected to these items and demanded a production of the account books of the respondent. Subsequently on 21. 2. 59 after seeing the account books the Legal Adviser objected to the inclusion of Rs. 264 on account of hides and bones. No other objections were raised and hence this item was dealt with accordingly by the. lower court. As for income from grazing charges the Legal Adviser withdrew his objection after seeing the account books and in these circumstances no question of leading any corroborative evidence could possibly be deemed to have arisen in the case. The other contention relates to income from sale of land. The learned counsel appearing for the respondent have clearly stated before us that the income claimed under this head consisted of premiums realised from tenants for admitting them to land. It was argued in this connection that sec. 52 of the Marwar Tenancy Act prohibited a landlord from taking a premium for the admission of a tenant to a holding. But as the Act came into force in 1949 and was not given retrospective effect it cannot be allowed to govern the transactions that were earlier to it in point of time. A reference was also made to the provisions contained in Secs. 191 to 198 of the Land Revenue Act but this reference too would not be fully applicable to the present case for the reason that this Act also came into force in 1949. Leaving aside these points, however, the most important point to be examined in this connection is that sec. 2 (f) of the Second Schedule of the Act lays down that income from sale of culturable or abadi land calculated on the basis of average income during the last 20 years preceding the basic year shall be included within the gross income of a Jagirdar. The term "sale" is important in this connection. This word as defined in the Transfer of Property Act means a transfer of owner-ship in exchange for a price paid or promised or part paid and part promised. A valid sale, therefore, would mean a transfer of ownership and unless there has been a change in ownership the transaction cannot be deemed to be a sale. In the present case what took place was merely an admission of certain persons as tenants of the land in dispute and collection of premiums from the tenants as admitted. The ownership continued to vest in the respondent who as owner thereof continued to realise rents from the tenants. There was thus no transfer of ownership and consequently no sale. The decision of the lower court, therefore, in so far as it relates to an allowance of the income (sale of culturable land) amounting to Rs. 350-67 is clearly untenable in law. The result is that we allow this appeal in part only and direct that the decision of the lower court shall be so amended as to exclude Rs. 350-67 on account of sale of culturable land from the final award which shall however stand confirmed in other respects. In other words, the total income of the respondent for purposes of compensation and rehabilitation grant shall be Rs. 1777/- only and not Rs. 2127-67 as decided by the lower court. .;