C.M. Lodha, J.
1. The suit out of which this appeal arises was instituted by the plaintiff Kishan Singh for possession of a plot of land situated in village Sedariya on the ground that the land in question was owned and possessed by the plaintiff and that in November 1959 the possession of the same was given by the plaintiff to the defendant in exchange for a house described in para No. 2 of the plaint, and that the plaintiff paid Rs. 500/- over and above to the defendant, but the defendant returned the amount of Rs. 500/- and refused to hand over possession, of the house belonging to him. In the written statement filed by the defendant, he denied the plaintiff's ownership and possession over the plot in dispute at any point of time and pleaded that the plot in question had been owned and possessed by him since generations and that the story of exchange set up by the plaintiff was all a myth.
2. After recording the evidence produced by the parties the Civil Judge. Partabgarh by his judgment dated 29-4-1964 dismissed the plaintiff's suit. His judgment and decree were upheld by the District Judge, Partabgarh on appeal by the plaintiff. Consequently, the plaintiff has come in second appeal to this Court.
3 The only ground on which the plaintiff's claim has been negatived by the learned District Judge is that there is no proof that the plaintiff had included the plot in question in the list of his personal properties filed by him under Section 23 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (which will hereinafter be called 'the Act'). He held that before the Act came into force the plaintiff-appellant was undoubtedly the owner of the plot in question and was also in possession of the same, but he ceased to be the owner of the suit property after resumption of his Jagir and consequently had no right left in it in November, 1959.
4. Learned counsel for the appellant has urged that the finding of the lower court that the plaintiff had lost all his right to the Taliya' in question on account of his failure to file a list of his private property by including the same therein is erroneous in law.
The plaintiff, It may be noted is an erstwhile Jagirdar of village Sedariya. Tehsil Partabgarh and his Jagir was resumed under the Act. He has adduced no proof to show that he had filed a list of his personal property under Section 23 of the Act and had included therein the plot hi question. However, both the courts below have come to a concurrent finding that so long as the Jagir was not resumed the plaintiff was the owner of the plot and was also in possession of it. The question then arises whether the plaintiff ceased to be the owner of the plot in question as he did not file a list of his private properties including therein the plot in question under Section 23 of the Act. Here I may also state that the plot in question is an open enclosure used for domestic purposes in the 'Abadi' area of the village. Section 23 of the Act provides inter alia that all open enclosures used for domestic purposes and in continuous possession of the Jagirdar shall continue to belong to or be held by such Jagirdar.
5. Rule 22 of the Rajasthan Land Reforms and Resumption of Jagirs Rules, 1954 (which will hereinafter be called 'the Rules') makes provision for submitting a list of all personal properties by Jagirdars. It is provided therein that the Jagirdar shall submit to the officers taking over charge of his Jagir a list of the properties which he claims as his private and personal properties under Sub-section (1) of Section 23 of the Act. Rules 23 to 28 provide the procedure to be followed by the Jagir Commissioner in connection with the enquiry in the matter of personal properties. It may be observed that there is no provision either in the Act or the Rules providing penalty for failure on the part of the Jagirdar to submit a list of personal properties. Consequently, I fail to understand how the right, title and interest of the Jagirdar in his personal properties can be extinguished merely on account of failure on his part to submit a list of the properties as provided in Rule 22. None of the two courts below has referred to any provision of law by which the plaintiff may be deemed to have lost his rights to the property in question merely because he failed to show that he had filed a list of his personal properties including the plot' in question under Rule 22 of the Rules. Section 23 of the Act clearly provides that the types of properties mentioned therein in the possession of the Jagirdar shall continue to belong to or be held by such Jagirdar. In this view of the matter there is in my opinion no room for argument that on account of the failure on the part of the Jagirdar to submit a list of his personal properties, all his private lands, buildings, wells, houses, sites and enclosures shall be deemed to have vested in the State along with the Jagir even though Section 23 of the Act provides in unmistakable terms that the said private properties of the Jagirdar shall continue to belong to him. Learned counsel for the respondent was not able to point out anything contrary to the view which I have taken- Consequently. I set aside the finding of the learned District Judge in this respect.
6. The learned District Judge has stopped short after giving his finding on this point and without dealing with the other matters arising in the case has upheld that decree of dismissal of the suit by the trial court solely on this ground. The trial court has held that the story of exchange set out in the plaint has not been substantiated. Assuming for the sake of argument that the story of exchange as put up by the plaintiff is not substantiated, a question still arises whether the plaintiff having proved his ownership and possession over the plot in question upto November 1959, is his suit still liable to be dismissed In my opinion, not. An issue was framed on the question of limitation and a finding has been recorded in favour of the plaintiff by the trial court. It has not been argued before me that that finding is wrong even though the learned District Judge did not address himself to the question of limitation at all. The defendant is proved to have come into possession of the plot in question in November 1959, and the present suit has been instituted in 1962. Thus the suit is clearly within limitation. In these circumstances even if the theory of exchange alleged by the plaintiff is not accepted, the plaintiff is, in my opinion, entitled to succeed on the ground that he is the owner of the plot in question, and was in possession of the same upto November 1959 when the defendant took possession of it. In this view of the matter, irrespective of the question whether the defendant's possession is permissive or as that of a trespasser the plaintiff is entitled to a decree for possession of the property in dispute. In the facts and circumstances of the case, therefore, I have thought it fit to decide the case finally here instead of remanding it to the first appellate court for decision on other points.
7. The result is that I allow this appeal, set aside the judgments and decrees of the courts below and decree the plaintiff's suit for possession of the plot of land in dispute with costs throughout.
8. Learned counsel for the respondent prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. The leave is refused.