THE STATE OF RAJASTHAN Vs. DUNGAR SINGH

JUDGEMENT

(1.) This is a civil regular first appeal by the defendant State in a suit for possession and mesne profits and alternatively for mortgage money. The plaintiff Dungar Singh has also filed a cross-objection. We propose to deal with both these matters by a single judgment.

(2.) The material facts leading up to this appeal may be shortly stated as follows. The ancestors of defendant Bhanwarlal (who having died is now represented by his son Shankerlal in this appeal) was the Muafidars of half village Khedilia, Tehsil Khamner. By mortgage-deeds Exs. 1, 2 and 3 dated Smt. 1948 Asoj Vadi 3, Smt. 1957, Sawan Sudi 2 and Smt. 1958, Sawan Vadi 2 respectively, they mortgaged with possession their half share of village Khedilia with the ancestors of the plaintiff' Dungar Singh. The total mortgage money amounted to Rs. 17,121/2/3 and the mortgage was usufructuary. Plaintiff Dungar Singh and his ancestors continued to remain in possession of the mortgaged property some time until the and of 1939 or the beginning of 1940 when they were dispossessed in pursuance of a certain law which was known as Mewar-ke-Karzdar Jagirdron-ka-Kanoon Smt. 1994 (hereinafter called the Act of 1994). This law was obviously enacted to help the indebted Jagirdars of State of Mewar as it then was, and was more or less in the nature of an Act for the establishment of a Court of Wards which usually looks after the estate of minor Jagirdars or those who have been declared unfit to manage their estates on account of any physical or mental infirmity. It is common ground between the parties that defendant Bhawani Lal applied to the State that his Jagir be taken under its direct management under the Act of Smt. 1994 with the result that the plaintiff was dispossessed of his mortgage security. On the 15th Dec., 1947 the plaintiff served a notice on the Chief Secretary of the Mewar State complaining that the possession of the State over village Khedilia half which was under his usufructuary mortgage and of which he had been dispossessed- was wrongful, and, therefore, he prayed for restoration of his possession and for mesne profits but in vain. Consequently he instituted the suit out of which the present appeal arises, on the 28th Aug., 1948. By this time, the Mewar State had become a part of a Union of States which for facility of reference may be described as the first United State of Rajasthan. In the suit that was so brought, the. plaintiff impleaded the Superintendent, Court of Wards, as defendant No. 1 and the aforesaid Bhawanilal as defendant No. 2. Defendants Nos. 3 to 5 were really in the position of plaintiffs being the descendants of the original mortgagees and had been impleaded as defendants only because they had not joined the suit. By a later amendment of the plaint, the second United State of Rajasthan which was the pre-Part B Constitution State of Rajasthan and into which the first United State of Rajasthan including the Mewar State had integrated was also impleaded as defendant No. 6.

(3.) The suit was resisted by the Superintendent, Court of Wards, who filed a written statement raising a number of defences which we propose to mention presently. The State of Rajasthan also filed a written statement; but for reasons into which we consider it unnecessary to go for the purposes of the present appeal, it was not allowed to join the suit from the earliest stage but was allowed to take part in it from a subsequent stage for which state of things, reference may be made to the decision of this Court in S. B. Revision No. 20 of 1952, dated the 12th Jan., 1956. Defendant Bhawanilal allowed the suit to proceed ex parte against himself and obviously did not defend it.