STATE OF GUJARAT Vs. AMBALAL MANGALDAS PATEL

JUDGEMENT

(1.) * * * *

(2.) The next question is whether the river bed of river Banas has vested in the Government under the provisions of the Jagirs Abolition Act. In order to decide this question it will be necessary to scrutinize the various provisions of the Jagirs Abolition Act. The definition clauses are to be found in sec.2 of the Act. The words Jagir village are defined as a village or part of a village held as Jagir as defined in clause (vi). The word Jagir is defined in clause (vi) as meaning the grant by or recognition as a grant by the ruling authority for the time being before the merger of a village a group of villages or a portion of a village whether such grant is of the soil or an assignment of land revenue of both and includes villages groups of portions of villages. Jagir villages are of two kinds proprietary and non proprietary. It is admitted that the village in this case is a proprietary Jagir village. By sec.13 of the Jagirs Abolition Act all Jagirs are deemed to have been abolished and all rights of the Jagirdars subsisting on the said date in respect of a Jagir village as incidents on Jagir are also deemed to have been extinguished. Such rights of the Jagirdar would include the right to recover rent or assessment of land or to levy or recover any kind of tax cess fee charge or any half and the right of reversion or lapse. Having abolished the Jagirs and all rights on the Jagirdars as incidents of Jagir sec. 4 proceeds to make provision that all Jagir villages shall be liable to the payment of land revenue in accordance with the provisions of the Code and the rules made thereunder and the provisions of the Code and the rules relating to unalienated lands shall apply to such villages. After extinguishing the rights of the Jagirdars in Jagir villages sec. 5 proceeds to confer upon them certain rights as occupants of the land. Clause (a) of sub-sec. (1) of sec. 5 relates to Gharkhed lands that is lands which are cultivated personally by the Jagirdar. Clause (b) of sub-sec. (1) of sec. 5 refers to lands other than Gharkhed lands which are either in the actual possession of the Jagirdar or are in possession of a person other than a permanent holder holding through or from the Jagirdar. In respect of these two categories of land under the provisions of sec. 5 Jagirdar becomes an occupant of the land and is held primarily liable to pay to the Government the land revenue in respect of such lands. Clause (c) of sub-sec. (1) of sec. 5 then refers to Jiwai land held by a cadet of the Jagirdars family and the cadet is made the occupant of the land in case of such land as is in possession of the cadet and cultivated by him personally or is in the possession of a person other than a permanent holder holding through or from the cadet. Clause (d) of sub-sec. (1) of sec. 5 deals with permanent holders of land and such permanent holders are themselves made occupants of the lands. Therefore sec. 5 confers certain rights of occupant on the Ex-Jagirdars or on the permanent holders of the land only in respect of those properties which are designated or described in sec. 5 of the Act. The first proviso to sec. 5 entitles a person who not being a permanent holder holds actual possession of land from the Jagirdar to become an occupant of the land by paying six times the assessment of the land to the Jagirdar. I may add that the plaintiff in this case claims to be entitled to be an occupant of the land under this first proviso to sec. 5. I am not concerned with the further provisions sub-secs. 1A and 1B because they are not applicable to the facts of this case. Sub-sec. (1) of sec. 5 of applies to a proprietary Jagir village; sub-sec. (2) of sec. 5 applies to a non-proprietary Jagir village and similar arrangement is made in the case of a nonproprietary Jagir village with certain changes which are necessitated by the change in the nature of the Jagir. Similar provision in the case of a life time Jiwai Jagir village is made in sec. 6. Sec. 7 refers to payment of assessment in case of lands which are not surveyed and settled. Then comes sec. 8 and I would quote the relevant portion of it as follows :-

(3.) The argument which found favour with the learned District Judge and which was adopted by Mr. Barot before me is that this river bed land which belonged to the Jagirdar before the Jagirs Abolition Act came into force was in actual possession of the plaintiff who derived title to hold it through the Jagirdar and therefore this land was covered by sec. 5(1)(b) of the Jagirs Abolition Act and therefore the Jagirdar became the occupant of this land; the further argument is that the plaintiff became entitled to became an occupant thereof on payment of six times the assessment to the Jagirdar. On this basis Mr. Barot urged that the Government has no right to the land; therefore the Government cannot threaten to evict him from the land. Mr. Barot advanced this contention irrespective of the question whether the plaintiff has in fact become the occupant of the land by paying the requisite amount to the Jagirdar or not. Mr. Barot urged that even if he has not paid the occupancy price to the Jagirdar still the Jagirdar would continue to be the occupant of the land and therefore the Government who has no right to the possession of the land cannot threaten to evict him from the land. This argument as I stated above has been accepted by the learned District Judge.