- (1.) THIS case has come up before me as there was a difference of opinion between the two learned Members who heard this appeal filed by Shri Sitaram Bhandar Trust u/s 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, against the orders of the Jagir Commissioner dated 3-9-1964.
(2.) THE facts of the case are that Thakur Kalyansinghji of Nawalgarh dedicated 401 bighas of land to the temple of Sitaramji constructed by Seth Baldeodasji Jagal Kishoreji, Birla of Pilani in Smt. 1974. He charged a premium of Rs. 6701/-and issued a Sanad in favour of the Birlas, subject to the stipulation which was made in the patta that the rent drived from the land is to be used for the bhog of the Thakurji. THE appellants were given the right to construct wells and houses on the land. THEy were to pay no rent to the grantor. THEreafter this land was sought to be resumed under the Rajasthan Land Reforms & Resumption of Jagirs Act. THE appellants contested the resumption of this land under the Jagir Act on the ground that the land was purchased by them for a consideration and was no longer jagir land and could not be resumed under the Jagir Act. THE Jagir Commissioner by the order under appeal held that the land that was sold to the Birlas was resumable, as the jagirdars could not sell the culturable land in their jagir villages. THEy could only transfer tenancy rights. THE character of the land sold retained its jagir nature. It was contended by the learned counsel for the appellants that the land was Zarkharid from the Nawalgarh estate by the Birlas in the long past and any of the subsequent circulars of the Jaipur State putting restrictions on the alienation of the jagir lands could not have retrospective effect and could not prevent the appellants from acquiring full proprietary rights. The appellants were the purchasers of the proprietary rights of the land and it no longer remained a jagir land The ruling given by the Special Board in the case of Shri Rawatmal v/s Th. Malsingh (1957 RRD 43) was based on the order of the Jaipur Government of 1925 and could not affect the transaction entered into between the Thakur of Nawalgarh and the appellants a long time ago. The counsel, therefore, urged that this land could not be resumed. The reply of the Government Advocate was that the land was initially given for the maintenance of the temple by a deed and the income of the land was to be used for the temple. It was, therefore, in the nature of a sub-grant and could not operate as a sale. The learned Member Shri Gajendra Singh, who wrote the first judgment found that the transaction entered into between the appellants and the ex-jagirdar of Nawalgarh is a very old one and dates back to Smt. 1974, Thus, the rule laid down in Rawatmal v/s Th. Malsingh (1957 RRD 43) based on the Jaipur Standing Order dated 7-11-25 was not applicable. He observed that the question for determination was, what right, title and interest the ex-jagirdar of Nawalgarh had in the estate and what title was sought to be conveyed through the grant deed conveying 401 bighas of land. He argued that a jagirdar holds land by way of grant from the sovereign ruler. The characteristic of a jagir grant according to the well settled Jagir laws is that it is resumable at will by the sovereign ruler. It is a subject matter of re grant on each succession. The estate is inalienable. He observed that all these characteristics of the jagir have received the recognition and judicial scrutiny in the case decided by their lordships of the Supreme Court in Virendrasingh & others v/s State of Uttar Pradesh (AIR 1954 SC 447 ). The Board of Revenue have also given consideration to this fact in the larger Bench appeal No. 34 of Bhiiwara of 1958 in the case of Maharaj Hamirsingh v/s State of Rajasthan (1960 RRD 117 ). In this view of the matter it was held by Shri Gajendra Singh that the deed of grant in favour of the appellants could have only operated by way of conferring khatedari rights in the agricultural lands. Quoting the maxim of law that one cannot transfer a better title than what one has, he observed that the ex-jagirdar could not grant the better title of a proprietary interest in favour of the appellants because he had none with him. However, there was an exception to this general jagir law of transfer of jagir property. In all jagirs sales of land for the limited purpose of residence in abadi area had been recognised to confer full proprietary rights on the vendee by the vendor. Therefore, he held that to the extent this land had been used for abadi purposes, it could be considered to have passed full proprietary right to the appellants, but if the land remained agricultural, then irrespective of the fact that no rent was charged by the ex-jagirdar, the transfer only operated by way of sub-grant in spite of the fact that a premium was charged from the appellants. He next took up the question of the jurisdiction of the Jagir Commissioner and observed that it was not within the jurisdiction of the Jagir Commissioner to decide whether the land of the appellants was resumable or not. He held that the land resumed by the State under the powers conferred on the Government by sec. 21 of the Rajasthan Land Reforms & Resumption of Jagirs Act, and no subordinate authority could adjudicate upon the question of resumption. He, therefore, felt inclined to accept the appeal and to hold that the order passed by the Jagir Commissioner wa3 without jurisdiction and illegal and to direct that as the land formed part of the former estate of Nawalgarh, it stood resumed on the date the ex-estate of Nawalgarh was resumed except where it operated as a sub-grant. In that event, it. would stand resumed on the date when such religious jagirs were resumed by the Government. Shri R. K. Chaturvedy, however, proposed to differ with Shri Gajendra Singh. Firstly, he took up the question of the jurisdiction of the jagir Commissioner and observed that u/s 37, if in the course of a proceeding under the Rajasthan Land Reforms & Resumption of Jagirs Act, any question relating to title, right or interest in any jagir land arises and the question so arising has not already been determined by a competent authority, the Jagir Commissioner shall proceed to make an enquiry into the merits of the question so arising and pass such orders thereon as he deems fit. Agreeing with Shri Gajendra Singh that the question for determination was about the right, title and interest in the land, Shri R. K. Chaturvedy came to the conclusion that the Jagir Commissioner was perfectly right in making enquiries into the right, title and interest of the appellants in the land in the instant case and therefore, he had not acted without jurisdiction. So far as the question of jurisdiction is concerned, I am inclined to agree with Shri R. K. Chaturvedy, as the question for determination relates to the right, title and interest of the contesting parties in the land which is sought to be resumed by virtue of the Notification u/s 21. The matter evidently lies in the jurisdiction of the Jagir Commissioner in terms of section 37 of the Rajasthan Land Reforms & Resumption of Jagirs Act. As regards the marits of the case, however, relying on the authority of Rawatmal v/s Th. Malsingh (1957 RRD 43), Shri R. K. Chaturvedy held that the land which had been sold free of rent, became permanently alienated to the purchaser. Referring to the case of Maharaj Hamirsingh v/s State of Rajasthan (1960 RRD 177) Shri R. K. Chaturvedy observed that the point for decision in that case was whether under the provisions of sec. 109 of Kanun Mal Mewar, a jagirdar of the former Udaipur State, was authorised to sell culturable land in his jagir area and if not whether the income derived by means of giving Bapi patta could be regarded as an income from sale of culturable land for purposes of the determination of compensation payable to a jagirdar. He observed that in the instant case the point is whether the transfer of land for consideration was a sale and what rights and title and interest devolved on the purchaser. Noting that the areas of Shekhawati and Udaipurwati were governed under special laws and notifications and the jagirdars of Shekhawati and Udaipurwati were making sales of agricultural lands as well as abadi lands, which were used by the purchasers either for construction of residential or charitable buildings or for other purposes such as grazing cattle etc. , he held that such transactions could not be considered as sub-grants or sub-jagirs as it was neither intended to create such jagirs nor actually any jagirs were conferred on the purchasers. For these reasons, he proposed to hold that the land given by Thakur Kalyansingh of Nawalgarh comprising of 401 bighas for valuable consideration amounting to Rs. 6701/- could not be considered as a sub-grant of jagir and could not, therefore, be resumed as it did not fall within the ambit of the Rajasthan Land Reforms and Resumption of Jagirs Act. As a result, he was inclined to accept the appeal and set aside the order of the Jagir Commissioner, whereby the Jagir Commissioner had held that what had been purchased by the appellants was only a tenancy right, but the land continued to be jagir land because no sale of jagir land was permissible by any existing jagir land and it was, therefore, resumable. When the case came up before me, the learned counsel for the appellants sought to place reliance on the judgment of the Rajasthan High Court dated 28-8-1969 in Sanwatsingh v/s State of Rajasthan D. B. Civil Writ Petition No. 547 of 1961 whereby four other writ applications (Thakur Narainsingh v/s State, D. B. Civil Writ Petition No. 355 of 1962; Rawal Jaitsingh v/s State D. B. Civil writ Petition No. 66/1963; Banshidhar v/s State DB Civil writ Petition No. 344/1963; and Rao Manoharsingh of Bedla v/s State DB Civil writ Petition No. 710/1966) were also decided. One of the questions which came up for determination in these writ petitions related to the income from the sale of culturable land, which had been disallowed by the Board of Revenue on the authority of Maharaj Hamirsingh v/s State of Rajasthan, referred to above. The Board had also rejected the claim for compensation for income from the sale of abadi land for Rs. 100/- and above on the ground that the sale deeds had not been registered. In doing so, they had followed the Full Bench Decision in State of Rajasthan v/s Chhagansingh (1964 RLW (RS) 61 ). Having considered both these decisions, the learned Judges came to the conclusion that both the above decisions were erroneous on the face of them and held that the jagirdar was entitled to include in his gross income all the income from sale of cultural and abadi land, whether a registered instrument was executed in respect of it or not and despite the fact that it was not an out right sale of all the right, title and interest of the jagirdar in that land. Referring to the alienation of jagir land, however, it was observed by the learned Judges that alienation of jagir land was prohibited and the legislature could not have intended to grant compensation for the permanent alienation of part of jagir land. There could thus be no sale of any part of jagir within the meaning of sec. 54 of the Transfer of Property Act. Disposing of the Civil Writ Petition No. 344 of 1963, their Lordships categorically held that an ex-muafidar was entitled to the inclusion of the income from the sale of culturable land in his gross income for purposes of calculating compensation. He sold khadam rights in land which were tenancy rights, under the Mewar Kanun Mal. They, therefore, allowed this writ petition, set aside the judgment of the Board of Revenue and directed it to pass an order that income from the sale of culturable land shall be included in the gross income of the jagirdar as provided under clause 2 (f) of the Second Schedule. On the basis of this authority, it is argued by the learned counsel for the appellant that the view taken by Shri Gajendra Singh in respect of sale of the culturable land on the authority of the case of Maharaj Hamirsingh v/s State, is erroneous and that the view taken by Shri R. K. Chaturvedy that the transaction amounted to a sale of land by way of permanent alienation, should prevail. This contention appears to be reasonable in view of the aforesaid Rajasthan High Court authority. As the above narration will show that Shri Gajendra Singh had relied on the case of Maharaj Hamir Singh v/s State in holding that the deed of grant in favour of the appellants could have only operated by way of conferring khatedari rights in the agricultural lands as the jagirdar could not transfer a better title than what he had and. therefore, the transfer could only be operated by way of sub-grant, inspite of the fact that a premium was charged from the appellants. While holding that alienation of a jagir land was prohibited and there could thus be no gale of Jagir land, their lordships came to the conclusion that the jagirdar was entitled to include in his gross income all the income from the sale of agricultural and abadi lands, whether a registered instrument was executed in this respect in or not and despite the fact that it was not an out right sale of all the rights, title and interest of the jagirdar in that land. As regards the sale of abadi land, they held that it was not an out right sale of all the rights, title and interest but the sale of a lesser estate than that possessed by the jagirdar. Nonetheless, he placed the sale of abadi land on the same pedestal as the sale of culturable land under the authority of the Full Bench judgment in the case of Maharaj Hamirsingh v/s The State, and the same having been held by them to be erroneous on the face of it, as stated above, this authority, has since ceased to be a good authority in the light of the aforesaid Rajasthan High Court judgment.
(3.) IT goes without saying that the parcels of land sold for abadi purposes to individual vendors are not resumable under Jagir Law. On the same analogy, the parcels of culturable land also similarly sold cannot be held to be resumable under the Jagir law. On this interpretation and for the reason given by Shri R. K. Chaturvedy in his judgment, I feel inclined to support his view and hold that the land given by Thakur Kalyansingh of Nawalgarh comprising of 401 bighas for a valuable consideration amounting to Rs. 6701/- cannot be considered as a sub-grant of sub-jagirdar and cannot be, therefore, resumed as it does not fall within the ambit of the Rajasthan Land Reforms and Resumption of Jagirs Act. As a result, I would accept this appeal and set aside the impugned order. .;