Kan Singh, J.
1. This is a defendant's second appeal arising out of a house site from the defendant.
2. The plaintiff came forward with the case that he was the Jagirdar of village Sadas in Tehsil Gangrar, district Chhittorgarh The Jagir of Sadas was resumed on 1-7-54 The plaintiff submitted a list of his personal properties to the Jagir Commissioner and the latter declared the disputed plot along with some other items of property to be his personal property. It was alleged that the defendants had taken unlawful possession of this plot with the connivance of the Gram Panchayat of Sadaa. The plaintiff, therefore, prayed that the plot be declared to be of his ownership and its possession be restored to him. He also claimed Rs. 72/- as mesne profits at the rate of Rs. 2/- per month.
3. The defendant denied that the plot was the property of the plaintiff. He stated that the plot belonged to the Gram Panchayat which put the plot to the auction sale and the defendant had purchased it at that auction. The defendant further pleaded that be had no knowledge of any decision of the Jagir Commissioner declaring the plot to be the personal property of the plaintiff.
4. The learned Civil Judge, Chittorgarh, before whom the suit was filed, framed the following issues:
1. Whether the disputed plot of land belonged to the plaintiff?
2. Whether defendants took illegal possession on 10-2-55 of the disputed plot?
3. Whether the suit was barred by limitation?
4. Whether the judgment of previous suit No. 66/61 operated as res judicata in this suit?
5. Whether this suit was barred by the principle of estoppel as the plaintiff did not file any objection in time in the Gram Panchayat?
6. Whether the defendants purchased the disputed land in good faith and bonafide in public auction?
7. Whether the suit was not maintainable as the Gram Panchayat has not been made a party?
8. Whether defendants were entitled to a special costs Rs. 300/-?
9. Relief?
5. Having recorded the evidence of the parties, the learned Civil Judge came to the conclusion that the plaintiff had not been successful in proving that the plot belonged to him He further found that the plot was put to public auction by the Gram Panchayat and the defendants had purchased it for Rs. 185/- and he was put in possession of the plot by the Gram Panchayat vide the Patta Ex. 4/1 dated 10-10-55. The learned Judge consequently dismissed the suit.
6. Aggrieved by the decree of the learned Civil Judge the plaintiff went up in appeal to the court of the learned District Judge, Partabgarh. The learned Judge on considering the evidence led in the case held that the plot belonged to the plaintiff. He went on to say that the plaintiff was the exJagirdar and consequent to the resumption of his jagir the jagir land vested in the State subject to other provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, hereinafter to be referred as the 'Act'. The learned Judge also found that the Jagir Commissioner had declared the properties in list Ex. 1 which included the property in dispute at item No. 8 to be the personal property of the ex-Jagirdar by his order dated 6-11-68 (Ex. 4) and consequently the plaintiff was its owner. The essentials of the reasonings of the learned Judge are contained in the following passage:
In order to prove issue No. 1 the plaintiff has produced Ex. 1 list of personal property and Ex. 2 copy of the order of Jagir Commissioner dated 6 11-1958, whereby the plaintiff's personal property has been recognised. It seems the learned Civil Judge did not give due weight to these two documents.
The learned Counsel for the respondent submitted that the order of Jagir Commissioner was made at the back of the respondents and that as the respondents were not party to those proceedings, they were not bound by the decision of the Jagir Commissioner.
In my opinion there is no force in this argument. The Rajasthan Land Reforms and Resumption of Jagir Act is a special law. It makes provisions for resumption of certain Jagirs and for declaring the personal property of the Jagirdars. It gives certain exclusive powers to the Jagir Commissioner under Section 37 of that Act. The list of the personal property is prepared and sanctioned as required by Section 231 of that Act. Those proceedings are essentially between the Jagirdar on the one hand and the State on the other hand. Matters covered by Section 37 of that Act cannot be questioned in a Civil Court. Under these circumstances it is clear that the order of the Jagir Commissioner cannot be challenged in this suit. It is, therefore, prima facie proved that the land in dispute belongs to the plaintiff.
Thus, according to the learned District Judge, as the plot in dispute had been recognised by the Jagir Commissioner to be the property of the plaintiff and as the Act uncle' which the Jagir Commissioner passed the order declaring the property to be the personal property of the ex-Jagirdar was a special law and it conferred exclusive jurisdiction on the Jagir Commissioner in the matter, the civil court was, not competent to question the validity of the order. In the result, the learned Judge allowed the appeal and decreed the plaintiff's suit.
7. It is in these circumstances that the defendants have come in appeal to this Court.
8. Learned Counsel for the appellants has contended that the property in dispute was an open village site and was consequently subject to resumption and was resumed according to law and in circumstances the same could not have been included in the private property of the ex-Jagirdar. Learned Counsel also questioned the correctness of the view taken by the learned District Judge regarding the effect of Section 37 of the Act. Learned Counsel maintains that Section 37 was wholly inapplicable to the present matter & any property which did not fulfil the requirements of Section 23(2) of the Act could not have at all been declared to be the personal property of the Jagirdar. Thus, according to learned Counsel, the order of the Jagir Commissioner being without jurisdiction could be challenged by the defendant in the present proceedings in a civil court Apart from this, learned Counsel submitted that the defendant or the Gram Panchayat were not party to the proceedings before the Jagir Commissioner and as the plot in question had already been auctioned by the Gram Panchayat and the defendant put in possession thereof having paid the amount of Rs. 185/. it was absolutely necessary for the Jagir Commissioner to have afforded an opportunity to the Gram Panchayat and the defendant to have their say before passing any order declaring the property to be that of the plaintiff and this, according to learned Counsel violated the principles of natural justice so as to render the order of the Jagir Commissioner altogether null and void.
9. Learned Counsel for the respondent, on the other hand, has supported the reasoning of the learned District Judge. Learned Counsel further submitted that from the evidence led by the plaintiff it was established that the plot was in possession of the plaintiff and was being used by him for agricultural and domestic purposes The plaintiff used to tether his cattle there and also he used to stock fodder on the plot. Then learned Counsel submitted that according to the plaintiff the plot had been enclosed by constructing walls around it, as has been pleaded in the plaint, and thus the Jagir Commissioner, according to learned Counsel, was competent to declare the property to be that of the plaintiff ex-Jagirdar.
10. The question that thus falls to be considered is whether the order of the Jagir Commissioner Ex. 4 could, in the circumstances, prevail over the order of the Gram Panchayat granting Patta to the defendant.
11. While considering the question it will be seen whether the civil court could in the circumstances examine the validity of the order of the Jagir Commissioner. It will be convenient at this stage to refer to the relevant provisions of the Act.
12. The term 'Jagir land' has been defined to mean any land in which or in relation to which the Jagirdar has rights in respect of land revenue or any other kind of revenue and includes any land held on any of the tenures specified in the first schedule. The Schedule refers to all kinds of tenures that were found in Rajasthan in the various covenanting States. The definition of the term 'Jagir land' thus covers not only agricultural lands but also house sites which were included in the Jagir. On the issuing of a notification under Section 21 and from the appointed date the Jagir land indicated in the notification would vest in the State Government. The consequences of such resumption are stated in Section 22 of the Act. It, inter alia, provides that save as otherwise provided in this Act as from the appointed date on the resumption of any Jagir lands notwithstanding anything contained in any existing Jagir Law the right, title and interest of the Jagirdar and of every other person claiming through him in his Jagir land including! forests, fisheries, wells, tanks, ponds, water channels, ferries, pathways, village sites, huts, bazars and mela grounds and mines and minerals whether being worked or not, shall stand resumed to the Government free from all encumbrances. Village sites are thus clearly included in the lands that stand resumed to the State. There is, however, Section 23 which is in the nature of an exception or a proviso to Section 22, I may read this section in full:
Section 23 Private lands, buildings, wells, house sites and enclosures.--(1) Notwithstanding anything contained in the last preceding section.
(a) Khudkasht lands of a Jagirdar;
(b) (i) all open enclosures used for agricultural or domestic purpose and in his continuous possession (which including possession of any predecessor-in-interest) for six years immediately before the date of resumption;
(ii) xx xx xx
(iii) all private buildings, places of worship, and wells situated in and trees standing on lands, included in such enclosures or house-sites, as are specified in Clause (i) above, or land appertaining to such buildings or places of worship;
(vi) all groves and fruit trees wherever situate, belonging to or held by the jagirdar or any other person;
(c) all private wells and buildings belonging to or held by the jagirdar or any other person;
(d) all tanks in the personal occupation of the Jagirdar and not used for irrigating the lands of any tenant in the jagir land; shall continue to be held by such jagirdar or other person;
Provided that nothing contained in Clause (d) shall affect the the rights of the jagirdar in any portion of a tank which may be in the personal cultivation of the jagirdar;
(2) If any question arises whether any property is of the nature referred to in Sub-section (1), it shall be referred to the Jagir Commissioner, who may, after holding the prescribed enquiry, make such order thereon as he deems fit.
According to this section it is only the properties of the category described in Sub-section (1) that may continue to be held by the ex-Jagirdar notwithstanding the resumption. Further Sub-section (2) creates the forum which has to decide the questions whether any property is of the nature referred to in Sub-section (1). It is the Jagir Commissioner who is to hold the prescribed inquiry and then pass an order as he may deem fit whether any property is of the nature referred to in Sub-section (1). Since the learned District Judge has relied on Section 37 of the Act, I may read that section as well:
Section 37- Question of title.--(1) If in the course of a proceeding under this Act any question relating to title, right or interest in any jagir land, other than a question as to any Khudkasht land or the correctness or otherwise of any entry relating thereto insettlement records or as to any boundary map, field book, record of rights or annual register or as to any Wazib-ul-arz or Dasturganwai or any other settlement paper lawfully prepared or as to correctness or otherwise of any entry made therein or a question referred to in Section 3 of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955, arises and question so arising has not already been determined by a competent authority, the Jagir Commissioner shall proceed to make an inquiry into the merits of the question so arising and pass such orders thereon as he deems fit
(2) Every question referred to in Section 3 of the Rajasthan Jagir Decisions and Proceedings (Validation) Act 1955 shall be inquired into and decided by a revenue officer or court declared by the provisions of the said Act competent to do so
(3) Every other question excluded by Sub-section (1) from the jurisdiction of the Jagir Commissioner shall be inquired into and decided by a revenue officer or court competent to do so under the provisions of the Rajasthan Land Revenue Act, 1956 or the Rules made thereunder.
(4) If any such question as is referred to in Sub-section (2) and (3) arises in the course of a proceeding under this Act, the Jagir Commissioner shall refer it for inquiry and decision of the court competent to do so and shall be bound by, and act according to such decision.
13. Now regarding the private lands, building, wells and house sites and enclosures which continue to remain with the Jagirdar there is Section 23, Section 37 clearly relates to question of title or right or interest in any Jagir land and if such a question has not been determined by a competent authority the Jagir Commissioner shall proceed to make an inquiry into the merits of the question and then pats such order as be deems fit. The two sections have to he read in harmony so that the effect of one is not destroyed by the other. Therefore, what is covered by Section 23 of the Act shall be taken to be outside the purview of Section 37. Attention of the learned District Judge was not directed to Section 23 of the Act and it was perhaps for that reason he held that Section 37 would govern the matter. Then I may refer to Section 46 which creates a bar against the adjudication of such a question by a civil or a revenue court. The section reads:
Section 46. Bar of jurisdiction.--Save as otherwise provided in this Act, no Civil or Revenue Court shall have jurisdiction in respect of any matter which is required to be settled, decded or dealt with by any officer or authority under this Act.
(2) No order made by any such officer or authority under that Act shall be called in question in any Court.
14. Now, if the Jagir Commissioner has acted with jurisdiction then the civil courts will undoubtedly be barred from entertaining any question regarding the validity of the order passed by him. Learned Counsel for the appellants contends that the order of the Jagir Commissioner is void as against the appellants for two reasons firstly, because the appellant who had purchased the house site from the Gram Panchayat at a public auction was not afforded any opportunity by the Jagir Commissioner to have his say against the inclusion of this very property of the Jagirdar. It was next submitted that in the list of private properties that has been brought on record in the present case it has not been mentioned that the house site was an enclosure & not an open one and further there was no averment that it was being used for agricultural or for domestic purposes or that the same had been in continuous possession of the Jagirdar or his predecessor for six years immediately before the date of resumption, In other words, the house site should have been in possession of the ex-Jagirdar or his predecessor atleast from 1948, if not from before Thus, according to learned Counsel, the necessary condition for the Jagir Commissioner to exercise his jurisdiction under Section 23 (2) of the Act being wanting the Jagir Commissioner has committed an error of jurisdiction in declaring the house site to be the property of the ex-Jagirdar. Learned Counsel points out that even from the documents that are available on record it can be inferred that the Jagir Commissioner was in full know of the fact that the house site had been sold by the Gram Panchayat and the Tehsildar had even reported that the Jagirdar was not in possession of the house site in dispute. Not only So the Jagirdar had even gone in appeal before the Tehsil Panchayat against the decision of the Gram Panchayat and had lost that appeal.
15. Before proceeding further I may advert to the relevant documents. Ex. A/1 is the Patta granted by the Gram Panchayat to the defendant. It is dated 12-1-56. Ex. A/2 is the sale proclamation which shows that the land was to be auctioned on 20-4-55 and the persons who had claims, if any, on the land were invited to file their objections. Ex. 1 is the list of private properties submitted by the plaintiff before the Jagir Commissioner. It is undated and in item No. 8, the site in dispute has been described as follows:
rkfy;k A mRrj es o iwoZ es jkLrk nf{k.k es cSjkxh ukuwjke ukFkwflag dk edku if'pe es ekyh dk [ksr A
Ex. 2 is the order of the Jagir Commissioner and it is dated 6-11-58. I may lead this order in full:
jktLFkku ljdkj
dk;kZy; tkxhj deh'kuj jktLFkku ] t;iqjA
dzekad 13763 tk@,M@d@58 fnukad 6&11&68tkxhjnkj fBdkuk lkMkl Jh dY;k.k flag th }kjk dysDVj egksn; tkxhj fpRrkSMx< A
fo'k;% futh lEifRr dk Lohd`fr i=
vkidh tkxhj iqu% xzg.k gksus tkus jktLFkku lwph lq/kkj ,oa tkxhj iqu% xzg.k dh /kkjk 23 ds vuqlkj vius futh lEifRr dh iwthZ tfj;s fnukad fuy dh dysDVj lkgc ---------------ds ikl izLrqr dh Fkh AfuEufyf[kr lEifRr vkidks futh lEifRr dh x.kuk es vkrh gS Avr% bl lEifRr dh ekU;rk /kkjk 23@2 ds vuqlkj nh tkrh gS rFkk vkidks lwfpr fd;k tkrk gS A
1& lwph ,d ftles 13 vkbZVEl gS edkukr rfy;s A
2& lwph ,d [kqnkdk'r ftles 52 jdcs gS {ks=Qy 482 A
g0 vaxzsth
tkxhj deh'ku
jktLFkku t;iqj A
Ex. 3 is a report of the Tehsildar Gangrar. It appears therefrom that the guardian of the plaintiff who was then minor had made an application before the Jagir Commissioner on 17-2-55 that the Gram Panchayat Sadas was disposing of certain house sites inspite of the fact that Jagirdar had applied for inclusion of such house site in his private property under Section 23 of the Act. On this the Tehsildar had made an inquiry and had also taken a reply from the Gram Panchayat. The Gram Panchayat had taken the position that the items. 1 to 3 were in the possession of the Thikana (Jdgirdar). The Jagirdar was also in possession of item No. 4. Regarding items Nos. 6, 7, 10, 11, 12 and 13 it was stated that the Jagirdar was not in possession thereof. About items Nos. 5, 8 and 9 (we are concerned with item No. 8), the Gram Panchayat reported that the Thikana was not in possession of these plots and the Jagirdar had filed an objection before the Gram Panchayat, but had not adduced any evidence to substantiate his objection and after the objection was dismissed the plots were sold at an auction. Thereafter the Thikana had gone in appeal to the Tehsil Panchayat and the appeal had been dismissed. Thus, according to the Gram Panchayat the Jagirdar's claim with respect to these items of house sites was not correct. Having narrated this the TehsiJdar recommended that these items may be declared the private property of the ex-Jagirdar. This report was sent to the Deputy Collector Jagir, Chittorgarh who forwarded the same to the Jagir Commissioner and it was thereafter that the Jagir Commissioner passed the order Ex. 4. Thus, it is evident that before the Jagir Commissioner had passed any order declaring the property in dispute to be the private property of the Jagirdar, the Panchayat had already sold the same by a public auction and the defendant being the highest bidder at the public auction was given a patta of this property for Rs. 185/-. It further appears that when the defendant apprehended that he would be dispossessed by the ex-Jagirdar, he filed a suit against the plaintiff ex-Jagirdar for restraining him from interfering with his possession. The suit was decreed by the learned Civil Judge, Chittorgarh on 29-7-61. The ex-Jagirdar went up in appeal to the court of the District Judge, Partabgarh, but the appeal was dismissed. There is thus no doubt that it was the defendant who was in possession of the disputed plot having been inducted by the Gram Panchayat in pursuance of the Patta granted by it. It is in this context that the question has to be considered whether the validity of the order of the Jagir Commissioner could be examined by the civil court. If the order of the Jagir Commissioner is found to be void then I should think the civil court will not be precluded from examining it & pronouncing its invalidity. As to when an order is void or voidable is not always an easy question to answer. Recently there has been much discussion over this question in the Modern Law Review and I may refer to 1968 Modern Law Review Vol. 31. It has been observed that many of the rules of English administrative law are based on the analogy of rules governing judicial decisions and in particular, the question whether a defect in an administrative act renders that act void or voidable is unusually answered by applying the corresponding rules applicable to defects in judicial decisions. There was first the traditional rule laid down by Coke in the Marshalsea, a judgment is void if only made without jurisdiction, other defects merely render the judgment voidable. As was explained in Marshalsea's case the voidable judgment is by definition open to direct attack, but it is not open to collateral attack; only a void judgment may be impugned in collateral as well as direct proceedings. But, as the author has explained the Courts have not applied these rules in a consistent manner. He has noticed that breach of the rules of natural justice will render a decision void. According to the author the explanation is that the word 'void' has often been loosely used as a synonym for 'defective', thus including the concept of voidable. He pointed out that the terminology has become more precise in modern cases. Then he has pointed out several cases in which the effect of breach of the rule had been noticed.
16. It has been pointed out in Garner's Administrative Law (Second Edition) at page 115, that there is the ground of substantive ultra vires and where an administrative agency has exceeded its statutory powers it will be acting ultra vires in so far as it may purport to step out side or exceed those powers and any such purported exercise of power will therefcre be void. It has been pointed out that any ground on which judicial review may the justified can logically be classified as the branch of the ultra vires doctrine After referring to several cases the author pointed out that the principle of substantive ultra vires has been stated by some writers as 'jurisdictional facts'. The author goes on to observe that if a statute confers powers on an administrative body in certain defined factual situations and if one of the essential elements of those factual situations is absent in the particular case clearly the body will be without jurisdiction and any decisions taken in purported exercise thereof will be ultra vires. He has referred to a case White and Collins v. Minister of Health [1939] 2 KB 838. In that cast the local authority was found to have statutory powers to acquire compulsorily any land that did not form part of 'a private park'. An order was made and confirmed by the Minister but the validity of the order was questioned in the High Court on the ground that the land which was the subject of the order was in fact part of a park. It was, therefore, held that the court was entitled to investigate this question and review confirmation of the order by the Minister when he had decided that the land did not form part of the park; on the facts the court accepted the argument of the objector and quashed the order as being ultra vires. Then the author has pointed out what is known as the procedural ultra vires. He has observed that as administrative agencies are subject to the substantive rule of ultra vires so they must exercise those powers that the legislature may have given them in the manner and in accordance with the procedure (if any) that may have been specified by the legislature. By way of illustration he has pointed out that where a local authority were required to serve a notice as a preliminary to the taking of slum clearance action in relation to a particular house and the notice did not give particulars of the recipient's right to appeal to the courts as required by the statute the notice was held to be void and the whole of the subsequent proceedings ultra vires. There is another well known principle i.e. where the order is passed in violation of the principles of natural justice an order may be pronounced to be void. The two well known principles are audi alteram partem (hear both sides) and nemo judex suo pat (no one can be judge in his own case). It has been pointed cut that whereas the violation of the second principle may lender the order only voidable, the violation of the first would render the order null and void.
17. Ridge v. Baldwin and Ors. 1964 AC 40 is the case which authoritatively lays down that violation of the principles of natural justice audi alteram partem would render the decision void. Their Lordships had gone on to hold that the decision of the Watch Committee to dismiss the Chief Constable for misconduct being in violation of the principles of natural justice was altogether null and void. This case thus authoritatively establishes that violation of the principles of natural justice will render an order not only voidable but altogether void. Where a decision is altogether void it can be questioned even in a collateral proceedings On other hand, if it is merely voidable then it has to be questioned by way of appeal or certiorari, as the case may be. As I have observed, it is not an easy matter always to say whether an order is void, voidable or a nullity. These concepts are yet imprecise though several cases afford guidance for determining the true character of an order or decision. Sometimes it may be very easy to say on which side of the line Order or decision would fall. For example, if an order is passed by an authority who is not empowered to pass such an order it will be altogether a nullity on account of inherent lack of jurisdiction. At other times an order may be passed in disregard of certain principles of natural justice or rules of procedure and it may not be easy to demarcate the lines clearly. I need not, however, dwell on this general question anymore because the principles I have been able to extract are sufficient for dealing with the case in hand.
18. Now the clear effect of Section 22 was that all jagir lands including house sites vested in the State Government free from all encumbrances subject only to the other provisions of the Act, As long as the property is not shown to have come within the category of such properties as have been enumerated in Section 23 of the Act it will be deemed to have vested in the Government. The Panchayat had sold the house site by a public auction in the year 1955 and as appears from the report of the Tehsildar Ex. 3, the Jagirdar had filed an objection before the Gram Panchayat which was dismissed. He had gone in appeal before the Tehsil Panchayat, but without any success. The property in question came to be declared his personal property three years after in the year 1958 vide order Ex. 2. The defendant had been put in possession of that house site. If in that situation the Jagir Commissioner had to pass any order declaring that house site that had already been sold by the Gram Panchayat to the defendant then I should think it was necessary for the Jagir Commissioner to have given a notice to the defendant giving him an opportunity to have his say in the matter as to why the property be not included in the personal property of the ex Jagirdar. This was the minimum requirement of the principles of natural justice as the order of the Jagir Commissioner would undoubtedly be affecting the right, title and interest of the defendant in the property which he had obtained by virtue of the patta granted by the Gram Panchayat. In other words, where an administrative agency has to pass an order affecting the legal rights of a citizen then it is expected of it that it would afford an opportunity of hearing to the concerned citizen. Hearing may not be by word of mouth or by the ear but the opportunity to have his say in the matter has to be allowed. The defendant should have been apprised of the material on the basis of which the Jagir Commissioner was inclined to hold the property to be of the ex-Jagirdar as his private property so that the defendant could have attempted to convince him that the property was not such as would be covered by Section 23 of the Act. Prima facie the list Ex. 1 does not indicate that the so-called plot of land was an enclosure or that it was being used for agricultural or domestic purposes. It is the character of the property that will furnish the jurisdictional facts for the Jagir Commissioner to declare the particular property to be the personal property of the ex-Jagirdar. It is not that the section vests unguided power in the Jagir Commissioner to declare any property claimed by the Jagirdar to be his personal property. What kind of properties can be held to be the personal properties have been clearly defined and prima facie the property has to fulfil the requirements of Sub-section (1) of Section 23 of the Act. Therefore, in the present case it is not satisfactorily established that the Jagir Commissioner could have declared the property in dispute to be the private property of the ex-Jagirdar. Learned Counsel for the respondent contended that the question has not been raised by the defendant in the trial court in so many words and further there was no issue on the point as to how the Jagir Commissioner exercised his powers.
19. Now, in para 1 of the written statement the defendant has averred:
nkos dh ble ua0 1 es oknh dh tkxhj tIr gksuk Lohdkj gS cdk;k Lohdkj ugh gS A oknh iwjs xkao dk tkxhjnkj Hkh ugh Fkk A izfroknhx.k dks oknh dh ilZuy izkiVhZ ds ckjs es dksbZ tkudkjh ugh gS A izfroknhx.k ds lqgd es dksbZ ,slk Qklyk ugh gqvk gS fd Qrk 2 tk;nkn oknh dh futh gS A
20. In reply para 2 he has averred that the plaintiff had no house site of the kind claimed by him and the house site in question belonged to the Gram Panchayat and the same had been purchased by the defendant at a public auction Then the same thing has been repeated in para-3 of the written statement. In para-4 he has referred to the previous litigation which culminated in a decree of injunction against the ex-Jagirdar and in favour of the defendant. In para-10 the defendant had averred that there were auction proceedings in the Tehsil regarding this very plot and the plaintiff had filed an objection there, but it was dismissed Thus, in para-1 of the written statement the plea has been raised that the private property was not declared in the presence of the defendant and he had no knowledge of it. It is true, in so many words it has not been stated that principles of natural justice were violated by the Jagir Commissioner, but to my mind, para-1 of the written statement should be taken to cover this plea. It is true, there is no plea in so many words that the Jagir Commissioner could not have declared the property to be the personal property of the ex-Jagirdar, but in both the courts it was argued that the order of the Jagir Commissioner afforded a complete title to the plaintiff and it was also argued that the provisions of the Act conferred immunity on such an order. So much so that the learned District Judge has based his judgment solely on the applicability of Section 37 of the Act and held that it was not open to the Court to go against the order of the Jagir Commissioner. In such a situation, therefore, the defendant is entitled to show that the order on which reliance was placed by the lower appellate court did not ex facie fulfil the requirements of Section 23 of the Act which was far from the mind of the learned District Judge in dealing with the question.
21. As I have already observed, Section 37 was not applicable to the case and the case fell within the ambit of Section 23 thereof. The material that is available on record does not show that the Jagir Commissioner had not dealt with the question in the manner he should have done. I have quoted the order of the Jagir Commissioner Ex. 2 in extensor. It leaves many gaps. It does not state the date on which the list was sent. It also leaves something blank after reference and the order does not contain any reasons whatsoever for holding the property shown in the list to be the personal property of the Jagirdar. As I have already referred to Ex. 1 it does not show whether the plot was enclosed or that it had been used for agricultural or domestic purposes. The property was purchased for an amount of Rs. 185/- and even if one were to make allowance for the subsequent rise in prices of land it would not on any account be more than Rs. 1000/- in value. Even if something is lacking I am not inclined to send the case back for trying some additional issues in such a petty matter. After all the defendant had purchased the property at a public auction and for value he cannot be said to have any prior notice that the property belonged to the plaintiff and the Panchayat could not have sold the same. By that date the property had not been declared to be that of the plaintiff. This consideration also dissuades me from sending the case back and the matter has to be disposed of on the material that is already on record. From the record that is available and also from the tenor of the order passed by the Jagir Commissioner I am unable to reach the conclusion that the Jagir Commissioner had complied with the conditions on the existence of which he could exercise his jurisdiction under Section 23 of the Act namely, that the property has to be of the kind mentioned in Sub-section (1) of Section 23 of the Act and not otherwise. The decree of the learned District Judge has, in the circumstances, to be set aside.
22. In the result, I allow this appeal, set aside the judgment and decree of the learned District Judge and restore that of the learned Civil Judge dismissing the plaintiff's suit. In the circumstances of the case the parties are left to bear their own costs.
23. Learned Counsel for the respondent prays for leave to appeal tinder Section 18 of the Rajasthan High Court Ordinance, 1949, but in view of the party nature of the case I am not inclined to grant the leave which is hereby refused.