RAO BHUPENDRA SINGH Vs. GOPAL KUNWAR UMATH

JUDGEMENT

(1.) THIS appeal arises out of a suit which was filed by the plaintiff-respondent thakur Bharatsingh for recovery of Rs. 13,472. 50 paise against the defendant-appellant. Bharatsingh died during the pendency of the appeal and his legal representatives have been substituted in his place. The suit was based on the facts that the plaintiff was a Guzaredar of the defendant who held a jagir known as mangalgarh jagir. The plaintiff was in possession and enjoyment of income of a part of the village Ankia of the jagir in lieu of Guzara until the abolition of the jagir. In order to induce the Jagirdars to voluntarily surrender their jagirs, the government of the erstwhile State of Bhopal, where the jagir was situated, offered to pay Mansab or cash annuity to a Jagirdar in the event of his voluntarily surrendering the jagir and applying for conversion of the same into Mansab. The defendant took advantage of this offer and surrendered his lagir to the State. By an order of the State Government dated 12th August, 1953 he was granted mansab or cash annuity of Rs. 21,507/11/-per year payable in two equal six monthly instalments during his life. The plaintiff being a Guzaredar of the jagir, became entitled to receive out of the Mansab payable to the Jagirdar such amount for maintenance as may be fixed by the Jagir Commissioner under Section 10 read with Section 45-A of the Bhopal Abolition of Jagirs and Land Reforms Act, 1953. On an application made by the plaintiff, the Jagir Commissioner by his order dated 8th March, 1954 fixed the maintenance allowance payable under Section 10 at Rs. 2,129/8/- per year in two equal six monthly instalments out of the Mansab received by the defendant from the State. In spite of this order, the defendant did not pay the maintenance allowance, although he had received from 1st April, 1954 upto the date of the suit eleven six monthly instalments of his Mansab. The plaintiff, therefore, claimed that he be granted a decree for recovery of the arrears of maintenance allowance amounting to Rs. 13,472. 50 paise. The defendant in answer to the suit denied that the plaintiff was a Guzaredar. He also contended that the order of the Jagir Commissioner fixing the maintenance allowance was without jurisdiction, was not based on any law, had no legal force and was a nullity. A further plea was raised that the suit was barred by limitation. The second Additional District Judge, Bhopal, who tried the suit, held on all the points in favour of the plaintiff and decreed the entire suit. Aggrieved from that decree the defendant has come up in appeal to this Court.

(2.) THE first contention of the learned counsel for the appellant is that the order of the Jagir Commissioner was a nullity and no suit could be based on it. The learned counsel points out three infirmities in the order of the Jagir Commissioner in support of this contention. It is first submitted that on a true construction. Section 10 of the Act applies only to persons who were receiving maintenance allowance in cash from the income of the Jagirs and the Jagir Commissioner misconstrued the section and applied it to the plaintiff who on his own admission was not receiving any maintenance allowance in cash but was in possession of a jagir village for purposes of his maintenance. The second defect pointed out is that the plaintiff was not in fact a Guzare-dar or a person entitled to receive maintenance allowance in cash or otherwise under any law, rule or custom and the Jagir Commissioner wrongly found this fact in favour of the plaintiff. Lastly it is said that the Jagir commissioner did not take into consideration the various matters mentioned in clauses (i) to (iv) of Section 10 and Clauses (a) to (g) of Rule 21 (1), which he was bound to take into consideration before fixing the maintenance allowance. According to the learned counsel, by reason of these three infirmities the order of the Jagir Commissioner though purporting to be under Section 10 was in reality not an order under that Section and was a nullity. The learned counsel for the respondents in answer submits that the order of the Jagir Commissioner was immune from challenge in the Civil Court and he relies for this submission on section 39 of the Act. He also disputes the existence of the infirmities pointed out by the learned counsel for the appellant in the order.

(3.) TO appreciate the rival contentions, it is necessary first to advert to the relevant provisions of the Bhopal Abolition of Jagirs and Land Reforms Act, 1953. The Act as originally enacted did not apply to Jagirs converted into Mansab. By Bhopal Act no. 11 of 1954, Section 45-A was inserted in the Act had the effect of applying certain provisions of the Act with necessary modifications to Jagirdars whose Jagir lands were converted into Mansab. Section 10 which provides for fixation of maintenance payable out of Mansab to a person who was entitled to receive maintenance allowance from the income of the Jagir and which is the main section under consideration in this case, reads as follows: