- (1.) THIS appeal under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act, has been filed against the order of the Jagir Commissioner, dated 19.12.55 in a case under sec. 27 of the Act, whereby the appellants Shrimati Parwati and Shri Ramcharan Singh were held uneligible to receive maintenance.
(2.) WE have heard the learned counsel for the parties and have examined the record as well. The learned Jagir Commissioner has disposed of the case by reference to a decision of the Board in Budh Singh vs. Mehta Chandu Singh, reported in R.R.D 1957 page 201. It was observed therein that the Jagir Commissioner had no jurisdiction to determine the maintenance of the reason that he was not in receipt of any allowance at the time of the resumption of the grant. The implication of these observations were examined by the Board in Hanuman Singh vs. Amur Singh decided on 18th June, 1958 1959 RLW, 29 (RS.) WE may refer to para 9 of the judgment which runs as below: - "It was also argued before us that as the appellants had not actually received any maintenance during the past, they should not be held eligible to the same as decided by the Board in Budh Singh vs. Mehta Chandu Singh, case No 4/Bikaner 1956 decided on 23.3.57 to which one of us was a party. That case can be easily distinguished from the present one. In that case the question of maintenance was never raised or decided by any competent authority prior to the resumption of the Jagir and it was on this basis that it was held that no maintenance could be allowed under the provisions of the Act. In the present case it is clear that the appellants had been adjudged eligible to a maintenance allowance first by the Mehkma Council of the Bikaner State and subsequently by the Ruler of the Bikaner State in 1948. The fact that no payments were actually made would not detract from the value of this decision as otherwise it would amount to placing a premium of deliberate non-payment by the Thikana. In the present case it appears that non-payment was to some extent due to the non-completion of survey proceeding in the Thikana Thus to our minds there is a clear distinction in a case where maintenance allowance has been adjudged to be paid by a competent authority but has not been actually paid and where the question of maintenance allowance was neither raised before nor decided by any competent authority prior to the resumption of the Jagir. The contention raised before us is untenable." The facts of this case are to some extent similar to the present one. It has been alleged before us that the appellant were receiving maintenance allowance from 1929 to 1940 though the contention of the respondent is that the Thikana during this period was under the Court of Wards management and that the appellants somehow succeeded in securing an order for payment of maintenance allowance. After the year 1940 there had been numerous disputes between the parties on the point. The appellants claimed for maintenance allowance which was allowed to the by then Revenue Officers but it appears that it was never beneficial to them and that at one stage civil litigation was also resorted to, wherein no decision was taken as to the eligibility of the appellants to receive maintenance; the only point decided being with regard to the jurisdiction of the Revenue Court on the point. The learned Jagir Commissioner, therefore, followed a decision of the Board which was inapplicable and ignored that which was fully applicable to the present case. The decision of the learned Jagir Commissioner, therefore, deserves to be set aside as it is based on incorrect law. It has also been observed by the learned lower court that Shrimati Par-wati did not claim maintenance under Form No. 11. This by itself should not be fatal for this is a mere irregularity which may be corrected at any stage of the proceedings. As the case has to be remanded for further trial, we may discuss the relevant law for the guidance of the lower court. Sec. 27 of the Act lays down that any person, who under any existing Jagir law is entitled to receive a maintenance allowance shall be entitled to receive out of the compensation and rehabilitation grant, such amount for maintenance as the Jagir Commissioner may determine. The first question to be determined therefore is as to whether the claimant is entitled to receive an allowance under any existing Jagir law which has been defined as meaning any Act; Ordinance Regulation, Rule, Order, Resolution, Notification or by law relating to Jagirs or Jagirdars and includes any custom or usage relating to such Jagirs or Jagirdars prevailing at the commencement of this Act, (Sec. 2 (d) of the Act). It has been argued before us on behalf of the appellants that the Hitkarni Committee Rules issued by the former Jaipur State required the Thikanedars to maintain the widows and other dependents. Passwans and their children are allowed to be included within the category of dependents. It has also been argued that in a number of cases the Jaipur State Government decided that the Jagirdars were bound to maintain their Passwans. It has been replied on behalf of the respondent that Smt. Parwati cannot claim the status of a Passwan as she was never conferred that position and that Ramcharan Singh being a major can have no claim for maintenance. These are important points on which would depend the legitimate decision in the case. Evidently the attention of the parties was never diverted to prove or disprove these points for the obvious reasons that the case was disposed of by the learned lower court on a preliminary point. There is thus no material on which a decision can be given in the case. The trial in such cases has to be in accordance with the procedure laid down in Rule 45 i.e. in the manner provided by law for the trial of a suit in a Revenue Court. This evidently needs the framing of necessary issues, grant of adequate opportunity to the parties to lead their evidence upon them and a considered decision of the court based on an examination of the evidence on record. All these elements are lacking in the present case. We have therefore no other option but to allow this appeal set aside the order of the lower court and remand the case back to it with the direction that it should be heard and determined afresh in accordance with law in the light of the observations made above.;