IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SPECIAL APPEAL CIVIL No. 49 of 1986 RR NARPAT SINGH & OTHERS V/S YUV RAJ SINGH & OTHERS Date of Judgment : 30th October, 2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE MRS. MEENA V. GOMBER,J. REPORTABLE Mr. LR MEHTA and Mr. RAMIT MEHTA, for the appellant / petitioner Mr. VIKAS BALIA for Mr. MANISH SHISODIA, for the respondent BY THE COURT : (Per Hon'ble Gupta, J.) This appeal by the unsuccessful plaintiffs, whose suit was dismissed by the learned trial court as well as the learned Single Judge. The appellants now are the legal representatives of the original plaintiff. Likewise some of the respondents are also legal representatives of the original defendants. For the present brief facts may be recapitulated, being, that the plaintiff filed the present suit for declaration and possession on 18.1.1955, alleging interalia, that the plaintiff being Jagirdar of village Surpura, and had two younger brothers, being Bakhat Singh and Ranjit Singh defendant. Out of them Bakhat Singh moved application before the Chief Minister for maintenance, and he was awarded Rs. 2 40/- per month for maintenance, and Rs. 1500/- for constructing residential house, and that Ranjit Singh was also started being paid Rs. 40/- per month, and when he was offered Rs. 1500/- for construction of house in April, 1946, he declined to receive the same, on one ground or the other. However, thereupon he was allowed to continue to live in the Haveli till the amount payable to him for the cost of construction of the house is determined. According to the plaintiff, application was moved in 1946 to Chief Minister, who determined Rs. 3000/- as the cost in 1949, but the order was not passed, because former Jodhpur State was integrated in united State of Rajasthan. However, Rajasthan Government accepted the recommendations of the consultative committee, and on 3.6.1950 ordered Rs. 3000/- to be paid to the defendant Ranjit Singh, and directed that he be dispossessed. This amount was accordingly offered, but the defendant refused to receive. The plaintiff's further case is, that during this interregnum period, the defendant submitted an objection on 1.7.1946 in the Patta Court, where the file was pending for preparation of Patta in the name of plaintiff, for adding his name also in the Patta. This litigation ultimately travelled to the Board of Revenue, which by order dt. 4.10.1954 ordered that name of defendant Ranjit Singh be also added in the Patta. This order of the Board of Revenue is a subject matter of challenge in the suit. The plaintiff's further case is, that according to Patvi custom, the Haveli devolves by primogeniture, and younger brothers (THAATHVI) have no right, to which effect Jodhpur Darbar had issued an order, in the nature of general order on 23.8.1898. Thus the plaintiff claims, that since he 3 is ready to pay that amount, the defendant is liable to be dispossessed from the property in his occupation. Interalia on these averments it is prayed, that the order of the Board of Revenue dt. 4.10.1954, directing addition of name of respondent be set aside, and the Haveli be entered in the name of plaintiff only, and the apartments prescribed in para-7 of the plaint be got vacated from the defendant, and possession be delivered to the plaintiff. The written statement was filed by the defendant on 17.3.1955. It was contended therein, that the original Jagirdar was Rao Raja Jai Singh, and on his death three brothers Fateh Singh, Bakhat Singh and Ranjit Singh became Jagirdar, and not the plaintiff alone. The other pleadings were denied. It was pleaded that Rs. 40/- is not being received by way of maintenance, but only by way of pocket money. Then, it was pleaded that Rs. 1500/- were of course offered but then the amount was not accepted, being much inadequate. It was also pleaded that the defendant is living in the property as grand son of late Shri Kalyan Singh, who had purchased the property, and defendant has equal right as that of the plaintiff. The existence of old custom about rights of younger brother in the Haveli was denied. Then it was pleaded, that the plaintiff did threaten to dispossess the defendant through police force, whereupon the defendant had to file suit in the Court of Munsiff Magistrate for injunction, and on receipt of summons the Collector himself stopped the proceeding to dispossess the defendant, and therefore, the suit was withdrawn, and the defendant is continuing in possession. Passing of the order by the Board of Revenue directing inclusion of the name of the defendant was admitted. 4 The rule of primogeniture qua the Haveli was denied, being concoction and contrary to principles of justice, and Indian Constitution. Regarding the order of Jodhpur Darbar dt. 23.8.1898, it was pleaded to be not applicable, secondly it was not a general order, thirdly that order stands repealed by Marwar Patta Act, and in any case does not have a binding effect on the defendant. The defendant claimed to be in possession as co-owner (Mustaraka), and a bonafide owner. Consequently the plaintiff's right to dispossess the defendant was denied. Various other objections were also taken. Then, a rejoinder was filed by the plaintiff, reiterating the earlier pleadings. However, in addition it was pleaded, that Haveli is impartible estate, forming the part of Jagir. It was pleaded that Kalyan Singh, the grand father of Rao Raja Fateh Singh was son of ruler of Jodhpur State, being Takhat singh, and proceedings were taken for his adoption at that time. During his minority this Haveli was purchased by widow of Rajsingh Ji, being Sodi Ji, in the name of Kalyan Singh, and paid the amount out of Jagir funds. However, the adoption was not approved by the ruler, the Haveli was given to Rao Raja Kalyan Singh in Samvat Year 1934, together with Jagir villages, and this fact finds mention in the letter relating to Paldi Khichiyan, and thus it was received as a state grant by Rao Raja Kalyan Singh, and was received by Jai Singh and Fateh Singh by inheritance. On this basis it was pleaded, that except plaintiff no-body else has any right, title or interest in the Haveli, and the objections raised by the defendant are wrong. It may be noticed here, that in this suit statements 5 were recorded under O. 10 Rule 1, and in that sequence on the side of the plaintiff his counsel Shri Nath Raj Kalla appeared, and deposed that the property in question was purchased by the grand father of the plaintiff from out of income of Jagir, and the plaintiff was to pay Rekh-Chakari, and that he cannot say as to whether there is any grant of Patta of Jagir, or not. On the side of the defendant Ranjit Singh himself was examined, who has deposed that he is the real younger brother of the plaintiff, and according to the family custom the eldest brother becomes owner of Thikana, and younger brother gets maintenance, he has received Rs. 40/- per month as pocket money. He has also deposed that family custom is that Jagir properties are succeeded by Thikana, and the younger brothers are given residential house according to the requirements, and in addition other allowances like Goda Puran are also given according to capacity, and accordingly he is equal owner of the Haveli, Jagir consists of four villages which are with the eldest brother being the plaintiff. This suit was originally decreed by the learned trial court on 3.12.1958, and it was directed that the order of the Board of Revenue dt. 4.10.1954 shall not effect plaintiff's title over the Haveli, and the plaintiff is entitled to dispossess the defendants on payment of Rs. 3,000/-, and to the cost of the suit. Against this judgment, an appeal was filed before this Court being S.B. Regular First Appeal No. 45/59. During pendency of the appeal, leave was granted to amend the plaint, which resulted into framing of additional issues, and therefore, vide judgment dt. 19.9.1969 the matter was remanded 6 to the learned trial court for deciding the matter afresh. The additionally framed issues were, firstly as to whether the Haveli was a state grant, hence is impartible, and secondly whether the Haveli in dispute was a part and parcel of the Jagir property and is an impartible estate, and is subject to the rule of primogeniture. The learned trial court after remand dismissed the suit, vide judgment and decree dt. 2.6.1973, by deciding these additionally framed issues against the plaintiff, holding that no oral evidence would be available about forfeiture of grant, and fresh grant. However, the learned counsel for the plaintiff relied upon Ex. 11 to support the pleading, that the Haveli was granted to Rao Raja Kalyan Singh as a state grant, which was not accepted by the learned trial court. In the opinion of learned trial court there was nothing on record to prove, that the Haveli which stood in the name of Rao Raja Kalyan Singh, which was purchased by Sodiji, ever vested in the Jodhpur state, and in Ex. 11 no specific mention has been made to this Haveli. The precise recitals of the documents were reproduced in the judgment, and it was found to be utterly insufficient to prove, that this Haveli was granted to Raoraja Kalyan Singh by way of Jagir. Then, the submission of the plaintiff about the property having been purchased for Kalyan Singh by Sodiji during his minority was considered to be conclusively showing that this was the personal property of Kalyan Singh. Then, the judgment cited by the plaintiff, in the case of Mirza Raja P.V.G.R.M.S. Bahadur Vs. P.V.G. Rajkumar, reported in AIR 1964 SC-118 was considered, and it was found to be not applicable to the facts, as there is no 7 evidence to show, that Raoraja Kalyan Singh ever treated this Haveli as part of the Jagir, and it would be difficult to infer any intention on his part to treat the Haveli as a part of the Jagir, in the circumstances of the case. It was also found, that there is no evidence about the conduct of Jai Singh, on the record of the case, and also that it was only Raoraja Kalyan Singh who was entitled to blend his self acquired property with the State Jagir and not his successors, because in the absence of such blending, the succession to such a property would be under the ordinary rules of Hindu succession. Thus it was found, that on the death of father of Fateh Singh the property did not devolve on Raoraja Fateh Singh alone, and that the succession to the Haveli would be governed by the Hindu rule of succession, as was prevalent on the death of Jai Singh (sic Kalyan Singh), and any subsequent conduct on the part of Raoraja Jai Singh would not blend the property with the Jagir, and could not defeat the rights of Raoraja Ranjit Singh the defendant. Thus, the suit was dismissed. At this stage we may refer to the other issues being the issues nos. 1 to 5, being; (1) Whether according to family custom and also the Indian Constitution, the defendant can claim equality with the plaintiff in the property in dispute and is entitled to an equal share with him?, (2) Is the defendant living in the building in his possession with the permission of the plaintiff and is the plaintiff entitled to dispossess him?, (3) Are Bakhat Singh and the sons of the defendant necessary parties to the suit? (4) Is the court-fee insufficient? And (5) about the relief. 8 In our view, the newly framed issues no. 6 and 7 cover crux of the matter, and therefore, neither the learned Single Judge has dilated on other issues, nor findings and conclusions on other issues were assailed before us, nor we need to go into that. Aggrieved of the decree of the learned trial court, the plaintiff filed appeal before this Court being S.B. Civil Appeal No. 169/73, which came to be dismissed by the learned Single Judge vide judgment dt. 6.3.1986. We may observe that in the judgment there is some confusion, rather misquoting about genealogy, as to whether Kalyan Singh was son of Jai Singh, or Jai Singh was son of Kalyan Singh. The learned Single Judge noticed that Raoraja Kalyan Singh was the only son of Jai Singh, and no evidence was led that Kalyan Singh ever treated this Haveli as a part of Jagir, even prior to that, no material was placed as to how Jai Singh dealt with this property, and that it was only Rao Raja Kalyan Singh who could blend this part of property of the State Jagir as his self acquired property, and in absence of such blending by Raoraja Kalyan Singh, it is not in dispute that succession to such a property would be according to succession as envisaged by Hindu Law, or for that matter by the Hindu Succession Act. In the opinion of the learned Single Judge it inevitably follows, therefore, that Kalyan Singh received this property by succession under Hindu Law. After the death of Jai Singh the property devolved on Raoraja Fateh Singh alone, as Jai Singh was governed by the law of succession by the Hindu Law, Raoraja Fateh Singh could not blend the property with Jagir, though argument was raised of blending on behalf of the plaintiff before the learned District Judge, and it was also 9 raised before the learned Single Judge, on the basis of Mirza Raja's case, but then it was found, that this was never pleaded in the plaint, and no other foundation in that regard was laid, therefore, there is no justification to hold so against the defendants. Thus it was found, that the issues no. 6 and 7 were correctly decided, and the suit was rightly dismissed. Arguing the appeal it was contended by the learned counsel for the appellant, that since the adoption of Kalyan Singh was not approved, Jagir was resumed from Sodiji, who was wife of Raj Singh, and was looking after Jagir, and had adopted Kalyan Singh, and on that very day Jagir along with Haveli was granted afresh to Kalyan Singh, and Ex.-11 is sought to be relied upon in that regard. It was pleaded that on death of Kalyan Singh, Jai Singh succeeded him, who had three sons being the plaintiff, defendant, and third being Bakhat Singh. Learned counsel referred to us various documents, like Ex. 11, Ex. 13, Ex. 15, Ex. 1A, Ex.2, 14, and Ex. 9. Learned counsel submitted that if Ex. 9 is read along with Ex. 11, 12, 13, and 14, it shows the grant of Haveli, and that the order Ex. 2 if read with the order dt. 3.6.1950, still read with the statement of the defendant recorded under O. 1 Rule 10, wherein he admitted to be receiving Rs. 40/- per month, he stands bound to comply with the order dt. 3.6.1950, casting obligation on him to vacate the premises on receiving Rs. 3000/-. It was also submitted by the learned counsel, by relying upon the judgment of this Court in Jalam Singh Vs. Smt. Narain Kanwar reported in 1984 WLN (UC)-137 para-13, and 10 Daljeet Singh Vs. Thakur Sheonath Singh reported in 1969 WLN (3)(SC)-70 para-9, and Section 23(1)(c) of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 that the Haveli is part of Jagir, as the Jagirdars were also supposed to; be available in Jodhpur, they were to have their cavalries here to serve State Army, and for that purpose Havelis were granted by Jodhpur State, and therefore, it was part of Jagir, and was covered by rule of primogeniture. On the other hand Mr. Balia submitted, that the question as to whether Haveli is a state grant is primarily a question of fact, and on the face of pleadings of the parties, specially those contained in para-6A of the rejoinder, wherein even the plaintiff had pleaded, that the Haveli was purchased by Sodi Ji, in the name of Kalyan Singh, while the defendant has pleaded that the Haveli was purchased by Kalyan Singh, and in the statement under O. 10 Rule 1 also the counsel for the plaintiff had clearly admitted that the Haveli was purchased by Kalyan Singh out of funds provided by the State, but then, from this, in the submission of the learned counsel, the Haveli cannot be said to be part of Jagir, so as to be covered by rule of primogeniture, and obviously when the Haveli was purchased, whether by Sodiji, or by Kalyan Singh, it could not be, and has not been established, to have been granted by Jodhpur State to Kalyan Singh, as a state grant, and is a part of Jagir, so as to attract the rule of primogeniture, for succession. Learned counsel relied upon various judgments, including those in Mahendrasinghji Vs. Ishwarsinghji reported in AIR 1952 Bombay-243, Thakur Hari Singh Vs. Commissioner of 11 Income Tax reported in AIR 1968 Rajasthan-5, Pushavathi Vijayaram Vs. Vishweshwar Rajapathi Raj reported in AIR 1955 Madras-219, and also relied upon Mirza Raja Pushpavathi Vs. P. Visweshwar reported in AIR 1954 SC-118, to contend, that from these judgments it is established, that the status of property, acquired by Jagirdar, even from out of Jagir income, is that of his personal property, and ipso facto does not become Jagir property, so as to be subject to the rule of primogeniture. However, in such case it is open to the Jagirdar, by his act/conduct to treat such property to be Jagir property, or to blend it with Jagir. Of course, in which event it would become part of Jagir, and shall be subject to rule of primogeniture. With this, it was contended, that in the present case, since this is never the plaintiff's case, that Kalyan Singh ever treated, by his act, or conduct, the Haveli to be part of his Jagir, or that he ever blended it with his Jagir, rather the highest case of the plaintiff is, that the Haveli was purchased by the income out of Jagir income, but then on the face of these judgments, such purchased property also bears the character of personal property of Jagirdar, and is not subject to rule of primogeniture. In that view of the matter, in the submission of the learned counsel for the defendant, the impugned judgments do not require any interference in the appellate jurisdiction of this Court. We have heard learned counsel for the parties, and have gone through the record closely and carefully. Before proceeding to discuss the merits of record, we may consider the various judgments cited at the bar. In 12 that sequence we first of all take up the judgment in Jalam Singh's case. This is a judgment rendered by a learned Single Judge, and holds that Jagir was impartible, and junior members could not claim partition. Reliance was placed by the learned counsel for the appellant on para-13 of this judgment, which precisely relates to impartibility of Haveli. A bare perusal of the facts shows, that in that case Sajjan Singh was Jagirdar, which was a scheduled Jagir under the Marwar Land Revenue Act. Sajjan Singh died in July, 1952 leaving behind three sons Bhim Singh, Takhat Singh and Jalam Singh. Bhim Singh was the eldest, and according to the rule of primogeniture, applicable to the scheduled Jagirs his succession was sanctioned by the Rajpramukh. Bhim Singh also died on 20.5.1961, leaving behind two daughters Kumari Rajendra Kanwar and Pushpendra Kanwar. The plaintiff Jalam Singh claimed that the property left by Sajjan Singh was joint Hindu family property, and Bhim Singh was only the Karta of the family, consequently Jalam Singh and his brother Takhat Singh were also entitled to equal shares in that property with Bhim Singh, and therefore, the suit was filed for partition. The properties included the immovable property situated at Sanderao, as also a Haveli at Jodhpur. It is in this background, that regarding Haveli it was held by the learned Single Judge, that strictly speaking, the Haveli which is situated at Jodhpur, cannot be deemed to be part of the Jagir and to this extent, the learned Single Judge agreed with the learned Addl. District Judge. Then it was observed, that the term 'Jagir' has been defined under section 2(h) of the Rajasthan Land Reforms and Resumption of Jagirs Act, and the Haveli certainly does not fall within that definition as held by the learned Addl. District Judge. With this learned Single 13 Judge on his own proceeded to hold, by observing, that “all the same it does appear that the parties have always treated this Haveli as a part of the Jagir and they impressed this Haveli with the stamp of impartibility”. The learned Judge further went on to observe that “it is well known that Jagirdars of the erstwhile Jodhpur State had to render services to the State and for that purpose they had to stay at the State Capital i.e. Jodhpur and had to maintain the staff and other necessary cavalry etc. and for the purpose, they used to have their own residential accommodation known by the name of the jagir itself. In these circumstances, if Shri Sajjan Singh also purchased the Haveli at Jodhpur, it was a Haveli for the purpose of the Jagir itself”. From entire reading of the judgment, we are constrained to observe, that these observations of the learned Judge, which are relied upon by the learned counsel for the appellant, as laying down the law, to say the least, are based on no material whatever on record, and are pure out come of either conjecture, or assumption of the learned Single Judge, or might be the reflection of personal feelings, impression, or knowledge of the learned Single Judge. We are afraid in the above background, the above observations cannot be taken to be laying down any legal position, so as to be followed by us as a precedent for deciding the present appeal. Now, we come to Daljeet Singh's case. This again is a case which is clearly distinguishable on facts, inasmuch as in that case the plaintiff filed a suit for possession against the younger brother, like the one in the present case, and the case of the plaintiff was, that Kanota house was built by 14 Zorawar Singh, the common ancestor of the parties, out of the cash grants made by the ruler of the erstwhile State of Jaipur. After the death of Zorawar Singh, the Jagir, along with this house devolved on his eldest son Narayan Singh, and after the death of Narayan Singh his eldest son Amar Singh became the owner of the Thikana. Amar Singh died issueless in the year 1942, and after his death the plaintiff Sheonath Singh succeeded, and thus became owner of the house in dispute, along with the Jagir of Thikana Kanota. The plaintiff's case further is, that during lifetime of Amar Singh the defendant remained in possession of a part of the Kanota House, in which he used to live with the permission of Amar Singh, Amar Singh in his lifetime had given to the defendant a house known as Tikamsinghwala House, and asked the defendant to vacate the Kanota House, occupied by him but he did not give possession of the house, therefore, the suit was filed. The suit was contested on the ground, that Kanota House did not form part of the impartible estate of the Thikana Kanota, but it was self acquired property of Zorawarsingh and hence as the grandson of Zorawar Singh he had a right to own the property occupied by him. On the above facts, Hon'ble the Supreme Court held, that of course there was no specific issue framed by the learned trial court, with regard to