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1963 DIGILAW 92 (RAJ)

State of Rajasthan v. Bhanwar Singh

1963-04-24

M.U.MENON, Z.S.JHALA

body1963
This case arises out of an appeal preferred on behalf of the Government under sec. 39 of the Rajasthan Land Reforms and Resumption of Jagirs Act against the order of the Addl. Commissioner Jagir dated 30th April, 1962 in the claim of Shri Bhanwar Singh, Jagirdar of village Dodiali, District Jalore. This appeal by the Government was preferred on 21.7.62 and another appeal against the same order has been preferred by Shri Bhanwar Singh on 8.8.1962. As both the appeals are against the same order and in respect of the same claimant and the claim we shall decide these two appeals by one single judgment. The facts stated briefly are that the present appellant, Shri Bhanwar Singh, is the real son of Jhujhar Singh Jagirdar of village Dodiali, who had filed the claim on 31st May, 1957. Shri Jhujhar Singh died on 17.5.58 and his son the present appellant Shri Bhanwar Singh, was certified to be the real successor to the estate of the deceased. The original claim of the Jagirdar included the following incomes :— 1. Rental income ... ... ... Rs. 6,942/9/9 2. Income of forest ... ... ... Rs. 901/- 3. Income from grazing fees ... ... ... Rs. 1,234/ 4. Income from non-agricultural uses of land ... ... ... Rs. 1,607/2/6 5. Sale of land ... ... ... Rs. 700/2/- Total Rs. 11,384/14/3 A provisional award amounting to Rs.. 5,382.45 nP. was allowed against which objections were raised by the Jagirdar claiming the income on account of rent, grazing fees and non-agricultural uses of land besides the deductions in the provisional award on account of dues under sub-sec. 1 of sec. 22. As many as four issues were struck but the Jagirdar did not appear nor produce any evidence and accordingly the income allowed in respect, of the rental income was confirmed. Subsequently a review petition was presented and the same was admitted, thereby giving the jagirdar an opportunity to adduce further evidence. We shall now proceed with the disposal or these various incomes in the limit of the cross appeals and the arguments. So far as the rental income is concerned, there is no appeal by either side a d therefore we need not go into this aspect at all. So far as the second claim of granting fees and the income from non-agricultural uses of land is concerned, the Addl. So far as the rental income is concerned, there is no appeal by either side a d therefore we need not go into this aspect at all. So far as the second claim of granting fees and the income from non-agricultural uses of land is concerned, the Addl. Jagir Commissioner has allowed Rs. 334/- and Rs. 1228. 33 nP. respectively as against the claim of the jagirdar as given below— Grazing fees ... ... Rs. 3,702/- Non-agricultural uses of land ... ... Rs. 7,524/7/6 The contention of the Government Advocate against this award is that the learned lower Court erred in placing reliance on the account books which were not maintained in the normal course of business and were of suspicious nature. Further that the original testimony produced by the Jagirdar was not of a reliable character and hence both these incomes should have been completely disallowed. As against this Shri Lekhraj, counsel for the Jagirdar, argued before us that the learned lower Court did not take into consideration the facts incorporated in the Jagirdars claim and the actual income arising therefrom. It was incumbent on the lower Court to have included this income while framing the issue. His account books and the oral evidence were rejected on fallacious grounds and the written explanation submitted by him was not looked into by the Court. We shall now proceed to examine this aspect in all its details. It appears the Jagirdar produced two Rokar Bahis one from the years 2001 to 2014 in respect of village Bodiali and certain other villages and the other for the St. years 2002 to 2012 for villages Dayalpura and Nadri. One Shri Meghraj Kamdar who is said to be the scribe of these Rokars was produced in evidence. The learned lower Court as we find examined this document and came to the conclusion that there was a vast difference between the entries made in the original claim as compared to the entries made in the account books. The evidence of the witnesses has also been discussed and detailed reasonings have been given point wise both about the account books and the oral witnesses. We would, therefore at this stage not like to go into this aspect of the case, but would restrict ourselves to the preliminary objection raised by Shri Lekhraj on behalf of the appellant. The evidence of the witnesses has also been discussed and detailed reasonings have been given point wise both about the account books and the oral witnesses. We would, therefore at this stage not like to go into this aspect of the case, but would restrict ourselves to the preliminary objection raised by Shri Lekhraj on behalf of the appellant. It was contended before us that the appellant was never informed about the issues framed nor were these issues framed before him. Had he known that the presiding officer had framed some issues it would have been easy for him to have led evidence accordingly. In the absence of any such opportunity having been given the framing of the issues and the being of the judgment should not go against him. To examine this point it would be relevant to go into the record. We find from the file No. F. (30)JG/JLO that the case came up for hearing before the learned Addl. Jagir Commissioner on 27.9.60. The Jagirdar was absent despite notice and the claim was, therefore, finalised on the basis of rental income. It was on the next, date i.e. 14.10.1960 that the Jagirdars application for setting aside the ex-parte decree was allowed. This application of the Jagirdar is available on page 53 of the file and is dated 5.10.1960. It is also accompanied by an affidavit. Next date fixed was 5.12.1960 and on this date the following order was passed:— ^^fely isk gqbZ&ljdkjh odhy vuqifLFkr&tkxhjnkj ds odhy dks lquk&izkFkZuk i= tkxhjnkj Revive ds fy;s Admit fd;k tkdj budks kgknr isk fd;s tkus dh fgnk;r nh xbZ nwljh iskh rk- 12-1-61 j[kh tkosA^^ On the next date i.e. 25.1.61 when parties were present the evidence of two witnesses of the Jagirdar was recorded. From this as also the subsequent order sheets right up to the date of the judgment, we do not find that any issues were framed by the learned Addl. Jagir Commissioner till the date he decided the case i.e. on 30th April, 1962. Notwithstanding this there is a mention in the impugned judgment about the framing of the issues. It would be relevant to reproduce the same: — "He also objected to the deduction in the provisional award on account of dues under sec. 22(1) of the Act. He claimed the income as entered by the Jagirdar in his claim. Notwithstanding this there is a mention in the impugned judgment about the framing of the issues. It would be relevant to reproduce the same: — "He also objected to the deduction in the provisional award on account of dues under sec. 22(1) of the Act. He claimed the income as entered by the Jagirdar in his claim. The following issues were framed thereon:— 1. Whether the Jagirdar is entitled to compensation on the rental in-. come of Rs. 6,942/- 2. Whether the Jagirdar is entitled to compensation on income amount- ing to Rs. 1,385/12/8 on account of grazing fees. 3. Whether the Jagirdar is entitled to compensation on the amount of Rs. 641/8/- on account of non-agricultural uses of land and so on." The issues find a mention in the judgment. There is however nothing on record to show that even the framing of any such issues was announced. As such the jagirdar had no occasion to see what were the issues framed by the court on the basis of which he had to adduce evidence. This we find had been a major omission and it would now be appropriate to direct that once again issue should be framed on the basis of the claim of the Jagirdar and he should be given an opportunity to lead his evidence both oral and documentary. Coming to the next point of the appeal of the Jagirdar contained in issue No. 4 it was argued by the counsel that the deductions have been made without looking into the record and that a sum of Rs. 387/- was deposited towards the arrears about which the Tehsildar had given him an acknowledgement of his having deposited the amount in the treasury. The Government Advocate also concedes that if the Jagirdar could prove to the satisfaction of the lower court that a part of the amount was already deposited in a Government treasury, no deduction should be made for the same amount from the compensation. We would, therefore like that the learned Addl. Jagir Commissioner may once again examine whether the Jagirdar had made any payment against the arrears or the amount recoverable under Subsection (1) of Section 22. In the end we accept the appeal of the Jagirdar to the extent that the learned Addl. We would, therefore like that the learned Addl. Jagir Commissioner may once again examine whether the Jagirdar had made any payment against the arrears or the amount recoverable under Subsection (1) of Section 22. In the end we accept the appeal of the Jagirdar to the extent that the learned Addl. Jagir Commissioner will reframe the issues in the presence of the Jagirdar and give him an opportunity of adducing his evidence thereon; and secondly if any amount has already been deposited by the Jagirdar the same should be allowed and there should be no double deductions from the compensation amount. The appeal of the State Government is therefore dismissed. Thus the appeal of the Jagirdar is partially accepted to the extent laid down above and the case is remanded to the Addl. Jagir Commissioner for re-deciding the same according to law and as per our observations made above.