- (1.) THIS is an appeal against the order of the Jagir Commissioner, Rajasthan Jaipur, dated 1. 7. 58 declaring certain land situated in village Chapara, Tehsil Ladnu as personal property of the Jagirdar, respondent.
(2.) WE have heard the learned counsel for the parties and examined the record. The learned counsel for the appellants has challenged the order of the learned Jagir Commissioner inter alia on the ground that the same has been passed without having been given any hearing to them. The learned counsel for the Jagirdar respondent has tried to meet this argument on the ground that his case had originally been enquired into under the orders of the Jagir Commissioner by sub divisional Officer, Didwana and again heard by the Additional Jagir Commissioner, I who had both given full opportunity of being heard to the appellants and that the learned Jagir Commissioner had only, so to say, confirmed the order of the learned Additional Jagir Commissioner and given an opportunity to the Government Advocate of raising objection, if any, and had not passed any new order and so it can be deemed that the appellants had been given a full opportunity of being heard and the order under appeal had been passed after giving full opportunity to them. There is, however, no substance in this contention of the learned counsel for the respondent. The appeal before us is that against the order of the learned Jagir Commissioner and not of the Additional Jagir Commis-sionar. The final order in this case would therefore be deemed to have been passed by the Jagir Commissioner and not by the Additional Jagir Commissioner, even though it might be assumed for the sake of argument that the learned Additional Jagir Commissioner had jurisdiction under law to pass such an order. It is a well recognised and most elementary principle of natural justice that a party must be given a hearing before any orders are passed against him. The learned Jagir Commissioner has failed in this case to observe this elementary principle of natural justice. The learned Government Advocate has raised another important point which has been supported even by the learned counsel for the appellant. It is that the enquiry has not been made in accordance with the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act 1952 (hereinafter referred to as "the Act") and the rules made thereunder. There is a great substance in this argument. Sec. 23 (1) of the Act lays down that properties would be declared as to continue to belong to or to be held by the Jagirdar as private land, etc. Sub-sec. 2 provides that if any question arises whether any property is of the nature referred to in sub-sec. (1), it shall be referred to the Jagir Commissioner, who may, after holding the prescribed enquiry, make such order thereon as he deems fit. Khudkasht lands of a Jagirdar have been described as property of this nature under sub-clause (a) of sub-sec. (1) Rule 22 framed under the Act lays down procedure for the submission of the list of personal properties of the Jagirdar and entitles the officer taking over charge of Jagir to refer to the Jagir Commissioner under sub-sec. 2 of sec. 23 of the Act all matters in which in his opinion any item of the property included in the list submitted by the Jagirdar under rule 22 (1) is not the property which the Jagirdar is entitled to hold under sub-sec. 1 of sec. 23 of the Act, through the Tehsildar, if he is an officer below the rank of a Tehslidar, and direct otherwise. A copy of such list is required to be affixed on the Notice Board of the Tehsil concerned, and the Municipal Board and Village Panchayat concerned have also got to be informed so that they may see the list and submit their objections, if any, to the Tehsildar within the specified time. Rule 23 prescribes how an enquiry in the matter of the personal property shall be held by the Jagir Commissioner. It lays down that upon receipt of reference under Rule 22, or where he decides to review the list on his own motion, the Jagir Commissioner shall appoint a date for holding an inquiry into the matter. Such date shall not be less than two months from the date of the order and a public notice thereof shall be issued within a week of such an order. The Jagir Commissioner is also authorised to entrust the enquiry to any officer not below the rank of the Assistant Jagir Commissioner or Sub-divisional Officer, if he does not want to hold the enquiry himself. In this case the Jagir Commissioner has himself decided to enquire into the list and has entrusted the enquiry to the Sub-divisional Officer, Didwana. Under Rule 24 of the Act, notice required to be given under Rule 23 is to be served on the Jagirdar concerned, the Revenue Secretary to the Government and the Collector of the District in which the property in dispute is situated in the manner provided for the service of summons on a defendant in a suit under the Code of Civil Procedure Gopies of notice are also required to be sent to the Tehsildar having jurisdiction where the property under disputed be situated for being proclaimed by beat of drums to the inhabitants of the locality concerned as well as exhibited at some conspicuous place in such locality and being posted there after on the Notice Board of the Tehsil. Rule 26 of the Act prescribes the persons entitled to contest at such enquiry and sub-rule 2 thereof lays down that the State shall be represented at such enquiry by the Collector or any other officer not below the rank of Naib-Tehsildar as the Collector may by order in writing appoint in that behalf. The inhabitants of the locality in which the property in dispute is situated if any are in manner interested therein may also contest the claim of the Jagirdar. Rule 28 enjoins that the Jagir Commissioner or the Officer holding the inquiry shall allow the Jagirdar, the State and the inhabitants of the locality desiring to contest the claim of the Jagirdar reasonable opportunity to prove or disprove their respective contentions and that the inquiry shall be held in the manner provided for the trial of a suit by a Revenue Court. There is nothing on the record to show that such a procedure as has been clearly prescribed by law for enquiry in such matters has been followed by the learned Jagir Commissioner or any of the Officer, who held enquiry under his orders. The learned counsel for the Jagirdar respondent has tried to meet this objection by referring to sec. 227 of the Rajasthan Tenancy Act, which lays down that no decree or order shall be reversed or substantially varied nor shall any case be remanded in appeal, on account of any misjoinder of parties or causes of action or any error or irregularity in any proceeding not affecting the merits of the case. Relying on this provision of law, it has been argued that as previsions of the Rajasthan Tenancy Act are applicable for hearing of the appeals under the Act this case should not be remanded only because of the Government having of not been made a party to these proceedings in accordance with the prescribed procedure. Sec. 227 of the Rajasthan Tenancy Act applies when there has not been caused any error or irregularity affecting the merits of the case due to defects enumerated therein. Declaring personal property under sec. 23 of the Act is a matter in which the State is as much interested as any other private party or the Jagirdar. The interest of the State being linked in such matters a decision on an enquiry without the Government having been made a party would certainly affect the decision of the case on merits The Government must therefore be made a party in the way prescribed and unless it is shown that it has been done, the enquiry cannot be called to have been held as prescribed by law. It has also been contended on behalf of the Jagirdar respondent that the Legal Adviser for the Government had been sent for by the Jagir Commissioner and heard before passing the impugned orders and he had stated clearly that he had no objection to the declaration of the disputed property as the personal property of the Jagirdar and so this should be taken as consent, and objection should not be allowed to be raised against it. The learned Government Advocate has rightly contended that under sec. 13 of the Evidence Act, no amount of consent or failure to raise any objection to any matter can be taken to estop a party from raising any objection about jurisdiction, and if any party has failed to raise any objection it may operate as an estoppel against him only so far as a question of fact is concerned but not on any point of law involved. When the case has been enquired into and has been conducted without following the manner prescribed by law, it cannot be stated to have been decided legally. There is yet another material point is this matter from which the decision of the learned Jagir Commissioner suffers very much. Sec. 23 (i) (a) of the Act. lays down that Khudkasht land of the Jagirdar is capable of being recognised as his personal property. ' Khudkasht" has been defined in sec. 2 (i) of the Act as meaning any land "cultivated personally" by the Jagirdar and including any land recorded as Khudkasht Sir or Hawala in Settlement Records, and any land allotted to a Jagirdar as Khudkasht under Chapter IV of the Act. Sec. 2 (k) defines that the "land cultivated personally" with its grammatical variations and cognate expressions means land cultivated on one's own account (i) by one's own labour; (ii) by the labour of any member of one's family; or (iii) by servants on wages payable in case or in kind (but not by way of share in crops) or by hired labour under one's personal supervision, ect. There is nothing on the record to show that the land under dispute had been found to be "khudkasht" in accordance with the definitions referred to above. It is also not clear from the order of learned Jagir Commissioner whether he is holding this land to be the Khudkasht of the Jagirdar respondent on account of entries in the Settlement record or on account of its being a land cultivated personally be him. A land cultivated by a Jagirdar alone cannot be his Khudkasht unless it is found that to be land cultivated personally by him or recorded as such in the Settlement Record an allotted to him as such. A clear finding on this basis was required to be given before recognising the disputed land as Khudkasht and consequently personal property of the Jagirdar. To conclude, therefore, the order of the learned Jagir Commissioner suffers from more than one defect as pointed out in details above and deserves to be set aside because of the same. We, therefore, accept this appeal, set aside the order of the learned Jagir Commissioner and remand the case back to him for re-enquiry and re-determination in the light of observations made above in accordance with the provisions of law.;