SULTAN MOHAMMAD Vs. KAMARUDDIN

JUDGEMENT

(1.) THIS is an appeal under Sec. 30 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, against an order of Deputy Collector, Jagir, Tonk dated 24. 5. 60, by which he has rejected the claim of the appellant for the Jagir of Aminpura and Nawabpura, Tehsil Tonk. Bahadur Khan and Hurmat Khan were two real brothers. Appellant is the grand-son of Bahadur Khan. Some of the respondents are the grand-sons of Hurmat Khan. There was one more Jamadar Janbaj. The other respondents are his descendants. The contention of the appellant is that the Jagir was granted by the Nawab of Tonk to Bahadur Khan alone? that it was leased out by him to Hurmat Khan; that the latter stopped paying lease amount to Bahadur Khan and that, therefore, he started litigation against Hurmat Khan, which was continued by his son as well as grand son, the present appellant. As against it, the respondents plead that the original Jagir was only Nawabpura village, which was granted to both Bahadur Khan and Hurmat: Khan; that Bahadur Khan helded the "kalas" (the Blacks) in the year 1857, therefore, his share was confiscated by the State and was thereafter granted to Usuf and Amin Jamadar descendants of Janbaj Jamadar, who inhabitated a separate village within the boundary of Nawabpura itself by the name of the Aminpura and that the remaining part of Nawabpura continued to remain in possession of Hurmat Khan and his descenr-dents. The learned Deputy Collector found that the Jagir was granted to Bahadur Khan alone but that the possession thereafter passed along in the life-time of Bahadur Khan himself to Hurmat Khan and that half the share in possession of Hurmat Khan and the other half passed on to the possession of Jamadars. It has been further found by him that how this possession was transferred was not satisfactorily proved. He further observed that as both the villages Nawabpura and Aminpura had been continuing to be in possession of the respondents for more than 70 years and that they had been resumed from their possession; that in Settlement Record also the villages had been entered as Jagir of the respondents ; that in Smt. year 1923, 1932 as well as 1938 when the appellants and his ancestors submitted 'arj Dasht' to the then Rulers of Tonk, they were always decided in favour of the respondents and against the appellants. On the basis of the above findings and observations the learned Deputy Collector laid down that in his opinion also the respondents alone were entitled to get the compensation and rehabilitation for the resumption of these Jagirs. Further however, he has observed that when the title of both these Jagirs had been settled in the time of the former Tonk State itself, there did not remain anything further to be decided by him under sec. 37 of the Rajasthan Land Reforms and Resumption of Jagirs Act (hereinafter referred to as the Act ). Hence this appeal. The contention on behalf of the appellant is that evidence neither tendered nor proved in accordance with law has been taken into consideration in favour of the respondents and that whatever evidence had been produced by the appellant has not at all been discussed by the learned Deputy Collector. It has also been urged that it has been wrongly held that the claim to the right, title and interest in this Jagir had been already decided by the Rulers of the former Tonk State and, therefore, by a competent authority debarring the learned Deputy Collector from exercising his jurisdiction any further in this matter. Further, it has been urged that the learned Deputy Collector has not been pleased even to specifically refer to the evidence produced by the respondents or the decision or orders of the former Tonk State which he recorded as having finally decided the claim to right, title and interest in this Jagir, which could be examined by this Board in appeal to ensure whether that finding was correct or not. So far as the last contention goes, the learned counsel for the respondents also has been frank enough to concede, and rightly so, that there is no specific reference to any decision of former State of Tonk and that to that extent it was really difficult to examine in this appeal whether it has been rightly held that the case had been decided by a competent authority so as to debar the Deputy Collector Jagir from exercising his jurisdiction under sec. 37 of the Act. Regarding other contentions raised on behalf of the appellant, the learned counsel for the respondent has said that the evidence produced on behalf of his clients had been tendered in evidence by them and that the same was recorded in the order sheet dated 15. 2. 55. He has not been, however, able to have this fact verified from the record. As regards the contention that the evidence produced on behalf of the appellant has not been at all discussed, the learned counsel for the respondents has not made any specific reply.

(2.) NOW, a careful reading of the judgment being impugned in this appeal goes very clearly to establish that the learned Deputy Collector has nowhere described specifically the evidence produced by the parties. Only a general observation has been made that certain documents had been produced and certain orders on Arz Dasht had been referred. The evidence of the appellant has not been discussed. In the absence of specific reference to the documents relied upon by the learned Deputy Collector it becomes very difficult for us to examine the correctness or otherwise of the inference drawn by the learned Deputy Collector therefrom. He has held that the matter had been already decided by a competent authority and, therefore, there was no necessity of deciding the claims to title under sec. 37 of the Act. It is not the necessity or otherwise that was to be settled and disposed of by the learned Deputy Collector. It was the claim to the right, title and interest in this Jagir raised on behalf of the appellant and contested by the respondents that had to be decided by the learned Deputy Collector under sec. 37, which vested this jurisdiction in him and him alone. The only bar to the exercise of this jurisdiction by him was the previous determination of this question by a competent authority. For that purpose he had first to determine as to when and how and by judgment or order of what date and what authority the question before him had been determined and then further he was required to decide whether that authority was a competent authority to determine that question or not. Having decided these questions in favour of the respondents alone, he could have said that he had not been left with any jurisdiction to determine the question himself. If the question posed in this lis was found not to have been already determined by a competent authority, the learned Deputy Collector had no option but to make an enquiry into the merits of the question raised before him and pass necessary orders thereon. This could not have been left on the necessity or expediency of doing so or otherwise. If the question was already found to have been determined, he had to reject the claim of the appellant with that finding. But if it was found not to have been already so determined, he had to make an enquiry into the claim and counter-claim raised by the parties and decide the same on merits. Even when he found that the claim and the counter-claim of the parties had already been determined by a competent authority, it was very necessary for him to mention in this judgment specifically the order or judgment so found by him to have been already determined the same. That alone could have enabled the Board sitting in appeal over his order to examine the correctness, legality or propriety of his order. As observed earlier, and as conceded by the learned counsel for the respondents too, the learned Deputy Collector has nowhere done so. On the otherhand, he has only decided that there was no "necessity" of determining the claims of the parties under sec. 37. He could not have avoided the exercising of his jurisdiction with such an observation. j