1. This is an appeal by Thakur Akhey Singh against the judgment and decree of a Division Bench of the High Court of- the former State of Jodhpur. It has come before us for hearing under the provisions of Ordinance No. XL of 1949 & Ordinance No. XII of 1950. The appellant is the representative-in-interest of the defendant in the suit.
2. The suit was filed by Mutha Sumer Chandji, who is now represented in this appeal by his successors Mahaveer Chand and Shanti Chand. The case of the plaintiff was that Durjan Singhji, the father of the original defendant Sanwat Singh, had executed a registered deed of lease on Besakh Sudi 10, Smt. 1997 corresponding to 6th of May, 1941, in favour of the plaintiff. By this deed, Durjain Singhji pleased out two villages, namely, Lavera Chhota, and Kajnau Bari, to the plaintiff for a period of 24 years. The plaintiff came in possession of the villages in July 1941, but the Thikana was taken under the Court of Wards in February, 1942, and therefore, the plaintiff was dispossessed from these villages. Later the Thikana was released from the Court of Wards and came in the possession of the Jagirdar. Thereafter, the present suit was filed on the 23rd of November, 1943 and it was prayed that the plaintiff be put in possession of the two villages. In the alternative, it was prayed that in case it was found that the plaintiff was not entitled to possession of the two villages, a decree for Rs. 35,000/- be passed in his favour according to the terms of the deed of lease, and a charge of the decree should be created on the two villages.
3. The suit was resisted by the defendant on a number of grounds and eventually the Additional District Judge, Jodhpur gave a decree for Rs. 18,006/- to the plaintiff and dismissed the suit for possession. Thereupon, there was an appeal to the High Court of the former State of Jodhpur by the defendant. That appeal was allowed and the decree of the District Judge was set aside and the suit was decreed in the plaintiff's favour by putting him in possession of the two villages for a period of 23 years and 3 months in accordance with the terms of the deed of lease. The present appeal is against this decree.
4. The contention on behalf of the appellant is that this was a suit for specific performance and it was the duty of the plaintiff to allege specifically in the plaint that he was prepared to perform his part of the contract, and inasmuch as he did not do so, the suit is liable to be dismissed. It was further urged that this was a contract for the non-performance of which compensation in money was an adequate relief and the act agreed to be done was such that pecuniary compensation for its non-performance would afford adequate relief and could easily be had. Finally, it was urged that there was no legal necessity for entering into a contract of this nature and that in any case the Jagirdar was not competent to make a lease which would inure beyond his life-time.
5. So far as the first two points are concerned, we are of opinion that they do not arise in this case. It is, in our opinion, incorrect to call this a suit for specific performance of a contract. It is clearly proved on the evidence that the lessee came into possession of the two villages soon after the lease was executed and remained in possession for a few months when he was dispossessed by the Court of Wards which had taken over the Thikana, Therefore, the contract in this case was performed and the lessee was dispossessed because of certain provisions of the law in the former State of Jodhpur relating to Court of Wards. The present suit was filed after the Thikana was released from the Court of Wards and had come back into the possession of the Jagirdar, and the Jagirdar (the lessor) had failed to return the possession to the lessee. This is, therefore, a suit based on the title of the plaintiff which he derives from the lease in his favour. One of the terms in the lease specifically provides that if the possession of the lessee is disturbed, the term of the lease would be extended and the lessee would be entitled to remain in possession for a full period of 24 years and can recover possession through court. The suit has been filed in accordance with this term in the lease and is not suit for specific performance of the contract which had, in fact, been performed by Durjan Singhji when the lessee was put in possession soon after the lease had been executed. There is, therefore, no force in the first two points raised on behalf of the appellant, and it is not necessary to consider the case law that was cited in support of those two points.
6. Now we come to the other two points raised on behalf of the appellant, namely, that there was no legal necessity for the lease, and that in any case the Jagirdar was not entitled to execute a lease which would inure after his death. The two points are allied and may be taken together. The term 'legal necessity' is well known in law and applies to cases of alienations by kartas in joint Hindu families. We have, therefore, to see what the nature of the Jagirdari Law is, in order to decide whether any question of legal necessity arises at all in this case. The law relating to land revenue etc. was consolidated by Act No. XL of 1949, and Chapter X thereof deals with Jagirdari lands. We are referring to this Act because, though it came into force in 1949, learned counsel are agreed that the law even at the time when the lease was executed was the same. The Jagir in question is a scheduled Jagir and under Section 182 of the Act, succession to it is governed by the rule of primogeniture. By Section 183, the grant is confined to the life-time of the holder and no person is entitled to succeed to such Jagir until his succession is recognized and the grant is renewed in his favour by His Highness. Section 184 provides that subject to His Highness' pleasure, the grant of a Scheduled Jagir, on the death of the holder, shall be renewed in favour of the person entitled to succeed him in accordance with the provisions of this Act. Section 191 provides that no Jagir shall be transferable except to the extent provided in this Act. Section 192 permits the Jagirdar to grant a lease or 'ijara' of the estate or any part thereof, provided the period of such lease does not exceed 24 years. Section 195 permits the holder of a Scheduled Jagir to assign a part of the Jagir to a lineal male descendant of his own or of the previous holder who does not succeed to the Jagir, provided that the part so assigned shall be a reasonable share necessary for maintenance of the assignee. These provisions of the law clearly show that the Jagir was not joint family property and the sons of Jagirdar had no interest in it by birth. Under these circumstances, we are of opinion that the doctrine of 'legal necessity' does not apply to this case and it is not necessary therefore, to consider whether in fact there was any legal necessity for making the lease in dispute.
7. The next question then is whether a Jagirdar is competent to execute a lease which would inure after his life-time. In this connection, reference may be made to Section 192 of the Marwar Land Revenue Act of 1949 (Apt, No. XL of 1949) which permits the Jagirdar to grant a lease of the estate or any part thereof for a maximum period of 24 years. Learned counsel urges that as under Section 183, all grants of the Scheduled Jagirs are for the life-time of the holder, the Jagirdar cannot create a lease which will inure after his death. There is, however, no prohibition in the Act against such leases provided they are not to extend for more than 24 years. If the intention was that a lease, whatever may be its term, would come to an end when the lessor dies, it would have been very easy to provide for it by adding a proviso to Section 192. This view is enforced by a reference to 'Bhoglawa' Rules of 1914 which appear in Marwar Gazette dated 17th October, 1914 at page 17. Reference may be made to Rule 8, which says that no Jagirdar would be permitted to mortgage his land for more than 20 years and it would be a condition of the mortgage that after the period of 20 years is over, the land would revert to the mortgagor or his heir free of all encumbrance. This rule was amended in 1915 and the amendment appears in the Marwar Gazette of 2nd October, 1915 at page 14, By this amendment, all kinds of transfers of usufructuary nature were forbidden beyond a term of 24 years, and it was provided that after the period of 24 years was over, the land would revert to the mortgagor or 'to his heirs' and the encumbrance would be wiped out. This rule, therefore, makes it obvious that the Jagirdar could make a mortgage for a period of 24 years as the maximum, and if he died within this period the mortgage would remain valid after his death for the stipulated period and his heirs would get back the property thereafter. The law is admitted to be the same for leases. It follows, therefore, that a lease like the one in dispute would remain valid after the death of the lessor if such death takes place within the term of the lease. It must, therefore, be held that the lease did not come to an end at the death of the lessor, namely, Durjan Singhji.
8. We now come to the last question, namely, whether the High Court was right in giving a decree for possession to the respondents for 23 years and 3 months. The contention onbehalf of the respondents is that there was a term in the lease which provided that if the possession of the lessee was disturbed, the term of the lease would be extended and the lessee would be entitled to remain in possession for the full period of 24 years. On the other hand, learned counsel for appellant contends that this term being against the law could not extend the period beyond 24 years from the date of the lease. We have already held that the lessee came into possession and the period of lease began to run. The law in Marwar with respect to Jagirs as we have already mentioned, is that no Jagir is 'transferable except to the extent provided'. (See Section 191 of the Marwar Land Revenue Act, 1949, Act No. XL of 1949). Further, the law also provides that a Jagirdar may grant a lease or 'ijara' and the period of such lease shall not exceed twenty-four years. (See Section 192).
9. The lessee having been put in possession in this case soon after the lease was executed, the lease began to run. The fact that the lessee's possession was disturbed and he re-mained out of possession for a number of years would not interrupt the running of the period of the lease, though the lessee may have a right to claim damages for the period during which his quiet enjoyment was disturbed and claim possession of the property for the remaining period of the lease. If we were to allow the lessee to add the period during which he remained out of possession to the period mentioned in the lease, it would mean that we would be indirectly allowing the lease to run for a term of more than 24 years which is expressly forbidden by the law. We are, therefore of opinion, that even though there is a term in the lease to this effect, that term cannot be enforced so as to extend the period of the lease beyond twenty-four years. In this view of the matter, the High Court was not right in granting a decree for possession for the period of 23 years and 3 months to the respondents. It should have only granted a decree for possession for the remaining period of the lease. The decree of the High Court, therefore, will have to be amended accordingly.
10. We, therefore, partly allow the appealand reduce the period for which the HighCourt has granted possession to the period oftwenty-four years in all, beginning from thedate of the lease, namely, the 6th of May, 1941,In other respects, the appeal is dismissed. Asthe appeal has, for all practical purposes, failed, we allow the respondents the costs of theappeal. Costs of the two courts below will beas directed by the High Court.