A.P. Sen, J.
1. This appeal by the plaintiff is directed against the judgment and decree of the District Judge, Kota dated 22.12.1964 dismissing his suit for possession of a building and for recovery of Rs. 15,000/- as mesne profits thereof.
2. The suit out of which this appeal arises was brought by the appellant Bhagwati Singh, as plaintiff, on 4-5-1959 for declaration of title to and for possession of the building known as Dharamshala situated in front of the Railway Station, Sumerganj Mandi, Indergarh, against the respondents defendants, the State of Rajasthan and the Gram Panchayat Sumerganj Mandi. The plaintiff alleged that the building was his private property under Section 23(1)(c) of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (which will hereinafter be referred to as 'the Act'). His case was that the building was constructed during the minority of his father Maharaja Sumersingh by the Kamdar of the Court of Wards with the sanction of the Kota Darbar out of the income of the Thikana. Toe Court of Wards wanted to construct the building as it would become a source of income to the Thikana. The building comprised of a row of 10 shops with 30 kotharis on the ground-floor and an encamping ground, with a rest house on the first floor for the convenience of the travelling public. It, therefore, served the purple of a custom's outpost, a shopping centre, warehouse as well as that of a rest house.
3. By an agreement dated 28.4.1948 executed between the Maharao of Kota and Maharaji of Kotri Indergarh, Maharaja Sumer singh haned over the administration of the Kotri Indergarh to the Kota Durbar in lieu of the Thikana being recognised as a Jigir of the Kota Darbar. Prior to this, the Kotri Indergarh had a much higher status than that of a Thikana, but as a result of the agreement, the status of Maharaja Indergarh was reduced to that of a Jagirdar. With the formation of the State of Rajashta on 8-4-1949, there began a tussle between the public and the administration to secure the control and management of the Dharmshala. The State Government in the Local Self Govt. Department directed the Municipal Committee Indergarh to take possession of the building from the Manager, Court of Wards This was objected to by the Jagirdar, but despite his objection, the Municipal Committee took over possession in August, 1950, Before any decision could be taken, the Jagirdar died and as toe plaintiff who was his adapted son was still minor, the Court of Wards resumed management of the jagir. In 1952, under the orders of the State Govt. in the Local Self Government Department, the Municipal Committee Sanded over possession of the Dharamshala to the Gram Panchayat, Suemrganj Mandi on 6-8-1952 and since then, the Gram Panchayat has been in possession and management of the building. The plaintiff complains that there Was no law under which the property could vest in the Municipal Committee or the Gram Panchayat and that the State Government had no authority to direct the taking of its possessions and accordingly claim relief of possession against the State Government and the Gram Panchayat Semerganj Mandi and mesne profits of Rs. 15,000/ at the rate of Rs. 200/ per month w.e.f. January, 1953.
4. The plaintiff's claim was resisted by the State Government as well as the Gram Panchayat. They denied that the plaintiff was entitled to any of the reliefs claimed as the Dharamshala was not his private property. They have, however no where pleaded that the property vested in the State of Rajasthan.
5. The learned District Judge has dismissed the plaintiff's suit on the ground that the Dharamshala which was a public trust was not the private property of the plaintiff.
6. The point in controversy between the parties in the appeal is whether or not the Dharamshala was the private property of the plaintiff and, therefore, he was entitled to retain the same under Section 23(1)(c) of the Act, Section 23(2) of the Act provides that if any question arises whether any property is in 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 orders thereon as he deems fit. The terms of the section are clear and explicit and admit of no other construction. This view also accords with the decision of the Supreme Court in Deljeetsingh and Ors. v. Thakur Shivnath Singh 1969 WLN Part III 70.
7. The Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 and the Rules 1954 framed thereunder provide for a complete machinery far the adjudication of such claims. Rule 21 provides far the manner of taking over of charge of the resumed Jagirs. Rule 22 provides for the submission of the lists of personal properties by Jagirdars. Rules 23 to 28 provide for an enquiry by the Jagir Commissioner regarding personal properties. Under Rule 25(1), the State is represented by the Collector or any other officer as the Collector may by order in writing appoint in that behalf. Rule 26(2) provides that any inhabitant of the locality may contest the claim of the Jagirdar. In view of these provisions, the learned trial Judge, who originally tried the suit, by his order dated 25-4-1960, rightly made a reference to the Jagir Commissioner the reference was later on withdrawn by his successor vide his order dated 15.12.1962 on the ground that there was no provision in the Act for making any reference by a civil court to a Jagir Commissioner. This Court, however, by its order, dated 30.8.1971 directed the Jagir Commissioner to record his finding as to the nature of the property.
8. The Jagir Commissioner, by his order dated 16.9.1972, held that the Dharmshala could cot be treated as a private building within the meaning of Section 23(1)(c) of the Act, as It had been constructed out of the income of the Thikana for public use & had through out been treated as public property. He, held that the Dharmshala would not vest in the State Government, but would continue to be used for the benefit of the public as hithertofore. As regards the dispute regarding its management, he held that the dispute was beyond his scope of enquiry under Section 23(1). Both the State Government as well as the Gram Panchayat filed appeals before the Board of Revenue against the order of the Jagir Commissioner.
9. In appeal, the Board of Revenue upheld the view taken by the Jagir Commissioner that the property would not vest in the State Government but set aside his directions In regard to the future use and management of the property. In dealing with the question whether the property vests in the State Government or not, the Board of Revenue observed:
The counsel for the respondent, on the other hand, has urged that the order of the lower court in so far as it relates to the nature of property is correct but the court ban erred in giving directions in regard to its future use etc. as it had no jurisdiction to decide the inter se rights of the parties. He has also drawn our attention to the decision in a case between the respondent and the State Government decided by the Board which is reported in 1976 RRD 168 in which there was a dispute in respect of a similar property located at Indergarh and the Board had held that it was the private property of the Jagirdar. The learned Counsel for the appellants have not been able to show that the previous judgment is incorrect. We have, therefore, no hesitation in holding that the learned Jagir Commissioner has correctly held that the properly will not vest in the State Government.
This passage is susceptible of no other construction than that the Dharamshala was the private property of the Jagirdar. Under Section 39(4) of the Act, the decision of the Board of Revenue is final. The jurisdiction of the civil court is barred under Section 46(1), and under Sub-section (2) thereof, the order of the Board of Revenue cannot be called to question. In any court. It must, accordingly, be held that the plaintiff was entitled to retain the Dharamshala under Section 23(1)(c) of the Act.
10. The learned Additional Government Advocate, however, vehemently argued that the opening words of the passage quoted above, really show that the Boding of the Jagir Commissioner that the Dharmshala was not the private property of the plaintiff was, in fact not challenged in appeal. We are afraid, the contention cannot be accepted. The Board of Revenue has observed that the counsel for the plaintiff accepted the finding of the Jagir Commissioner in so far as it related to the nature of the property. This could only mean that the plaintiff accepted that the property was a Dharamshala i.e. put to public use. It was nowhere conceded that the Dharmshala was not the private property of the plaintiff. On the contrary, the counsel appearing for the plaintiff relied on the decision of the Board of Revenue in State v. Bhagwatisingh 1964 RLW (RS) 9 where there was a dispute in respect of a similar property i.e. another Dharmshala, located at Indergarh and in that case, the Board there held that it was the private, property of the plaintiff, the question whether the Dharmshala was or was not the private property of the plaintiff was very much in issue before the Board of Revenue and we are bound by the finding reached by the Board.
11. We are fortified la the view that the Dharamshala is saved Under Section 23(1)(c) of the Act by the following observations of the Division Bench in Thakur Devrajsingh v. The State of Rajasthan and Ors. (1966) 16 ILR Raj 1140:
Not withstanding any thing contained in Section 22 all private (as contradistinguished from public) buildings which belong to a Jagirdar or which are held, by him, shall continue to belong to him or shall be held by him as before, and no resumption shall take effect with respect to these. It will be seen that Section 23 is a clear exception to Section 22, and, in our opinion, it would be a mistake to hold that properties which may fall within any of the categories specified in Section 22 could at all be resumed thereunder. On the plain language of this section, such properties could not be resumed and noun continue to belong to or be held by the Jagirdar concerned subject to this that if a dispute arises whether the property in question falls within the ambit of Section 23(1) or not, the matter must be referred to the Jagir Commissioner, who then must hold an enquiry and decide it finally one way or the other.
12. We may in that connection also advert to the two letters which have a material beating. When in 1950 the Minister for Local Self Govt directed that the building should be handed over to the Municipal Committies. Indergarh the Jagir Commissioner by his letter dated 4.8.1950 suggested that the matter may be reconsidered by the Government and the Thikana should not be deprived of its property and in making that recommendation, he stated:
Maharaj Sumersinghji Estate Indergarh (in Kota) constructed a Guest house at Indergarh Station which is at three miles distance from the town, for his personal use. There are a few rooms is the firs; floor of the building, which were made for his personal use. ID the ground floor, there are shops on the main road and about 30 Kotries inside these Kotries were used by the following of the Maharaj, whenever he visited the place, otherwise people coming from outside were also permitted to stay there for a night's rest.
On the formation of Rajasthan this building was taken in possession by the Local Municipality which was objected to by the late Maharaj, but before any decision could be taken, the Maharaj died all of a sudden. The Estate in now under the management of the Court of Wards. The management having taken up, the case regarding return of the building to the Estate, the Collector after due enquiry ordered that the building be handed over to the Thikana. It seems, a representation from the Municipality waited on the Minister for Local Self Government and he has ordered that the building should not be handed over to the Manager.
I have to request to you that the Hon'ble Minister for Local Self Government be requested to reconsider his decision. The Jagir Ordinance does not permit of taking away such building from the Estates; The Government has particularly to be more considerate in this matter, the Estate is under the management of the Government itself due to the minority of the new Maharaj.
As far as my information goes even inns or saria of other Estates are under the possession of the Jagirdars. While this is a case of rest house made exclusively for the use of the Jagirdar and his family.
I would, therefore, suggest that the matter may be reconsidered that the Thikana Indergarh should not be deprived of their property.
13. When the Minister for Local Self Government directed in 1952 that the property be transferred from Municipal Committee to the Gram Panchayat, the Commissioner Kota, by his Utter dated 9.4.1953 addressed to the Secretary to the Board of Revenue exhibit-5 drew the attention of the Board of Revenue to the fact that the Dharamshala was the private property of the plaintiff and requested that the Dharamahala should be handed over to the Thikana, and stated:
The Collector, Kota, on being informed of the above orders reports that the said Dharsmshala, situated on Indergarh Station is property of the Thikana Indergarh which is under Court of Words. the building is worth Rs. 40,000/ and annual rent of shops aggregating to RS. 2,000/ is realized by the Thikana. The transfer of Dharamshala building to Gram Panchayat would mean a loss of Rs. 1,000/-p.a. to the Thikana which accrues to it by way of rent. As the building has not been constructed from public funds nor handed over to public at the time of mergar, it cannot be regarded as a public property until the building is not given to the public by the Thikana. The Gram Panchayat has no right to lay its claim over the private property of a Thikana.
14. We may, however, point out that there is a lacuna in the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. Section 22 of the Act which provides for the consequences of resumption, so far as material reads:
22(1)(a) the right, title and interest of the Jagirdar and of every other person claiming through him in his Jagir lands, including forests, trees, 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;
... ... ... ...(a) the right, title and interest of the jagirdar in all buildings, on jagir lands used for schools, and hospitals not within residential compounds shall stand extinguished and Such buildings shall be seemed to have been transferred to the Government;. ... ... ...(sic)
dar or any other person. Such buildings can only be buildings which by met as schools or hospitals have become dedicated to the public.
We realise that Section 22(1)(g) is widely worded, but reading it along with Section 23(1)(c), it is obvious that the intention of Section 22(1)(g) is that only such school and hospital buildings outside residential compounds, as have become dedicated to the public by user, shall vest in the Government, and the right, title and interest of the Jagirdar in such buildings, which can only be the right of ultimate reversion in case the building is not used for the purpose of school or hospital, is to be extinguished.
17. Faced with that situation, the learned Additional Government Advocate advanced three contentions namely, (i) the status in the Kotri Indergarh was much higher than that of a Jagirdar and, therefore, Section 23(1)(c) of the Act was not attracted, (ii) the Dharamshala was constructed out of the State funds and, therefore, could not be treated to be the plaintiff's private property and, therefore, possession was rightly taken by the former State Government of Rajasthan in consequence of merger and (iii) the uninterrupted continued user of the Dharamshala necessarily led to an inference of its dedication to public use and therefore the plaintiff had no right to sue. There is, in our opinion, no substance in any of the contentions.
18. Kotri Indergarh was admittedly not one of the 18 Treaty States of Rajastnan. It is true that Kotri Indergarh was one of the 8 Kotries in the in the erstwhile State of Kota and, therefore, had a higher status than that of a Thikana, but its status was not that of a feudatory Chief. Kotri Indergarh was nothing but a vassal of the princely State of Kota. In view of the agreement dated 28-4-1648 between the two high covenanting parties the status of Kotri Indergarh stood reduced to that of a Jagirdar. By ordinance No. 24 of 1948, the police and judicial powers were taken away. This Ordinance was followed by another Ordinance No. 14 of 1919, by which the power of collection of land revenue was also taken away. In Umrao v. Bhagatsingh : AIR1956SC15 , the Supreme Court while dealing with the question of the pontiff's right of succession to the 'Gaddi' of Kotri Indergarh, treated Kotri Indergarh to be a Jagir. The plaintiff's was, therefore, nothing but a Jagirdar as defined in Section 2(b) of the Act and as such was entitled to base his claim under Section 23(1)(c) of the Act.
19. There can be no doubt that the Dharamshala was constructed out of the State funds. Learned Additional Government Advocate has taken us through the testimony of Har Naryain PW2, Pir Khan PW 3, Purshotam DW1, Dharamchand DW 2, Ram Kumar DW 5. Beniprasad DW 6 and Karamchand DW 7. Their evidence clearly shows that the State budget was separate from 'Tan Kharch' i.e., the private budget. The Dharamshala undoubtedly was built out of the State resources and not from 'Tan Kharch.' The income from the Dharamshala also used to be credited into the State account, the salary of the staff and other expenditure was also met out of the State budget. Merely because in the Jagir, the State budget was separately prepared as also the budget for 'Tan Kharch', and the income and expenditure of the Dharamshala were put into the State account, does not necessarily imply that the Dharamshala was not the private property of the plaintiff' The keeping of the separate budgets for the State purposes and for Tan Kharch' was only for the purposes of accounting the Jagirdar had absolute dominion and control of all the moneys which absolutely belonged to him. He was entitled to spend it in any manner that he liked the evidence of these witnesses discloses that the residential house of the Jagirdar was also constructed and maintained out of the State budget. That would not make his residence a public property. By parity of reasoning, the Dharamshala could not be regarded as any thing than the private property of the plaintiff.
20. The existence of a trust, public or private is not proved. There is no proof of any dedication. As observed by Dr. Bijay Kumar Mukherjea in his toe Hindu Law of Religious and Charitable Trusts Page 79 (3rd Edition:
Thus the essential formalities for the creation of a religious or charitable endowment according to the Hindu Law are: firstly, the property in respect of which the endowment is made must be designated with precision, secondly, the object or purpose of dedication should be clearly indicated, and thirdly, the founder must effectively divest him self of all beneficial interests in the endowed property.
The Darbar order of the Kota State clearly shows that the Dharamshala was constructed by the Kamdar to augment the income of Kotri Indergarh When there is definite evidence, an in the instant case, showing tint the property was constructed out of the income of the Thikana, there is no question of inferring dedication. The shops and the Kotaries ware admittedly rented out by the Thikana and the income was throughout treated as the revenue of the Jagir. The entire argument of the learned Additional Government Advocate rests on the 'Shila lakh,' exhibit A4 The shila-lakh merely shows that the Kamdar had supervised the constructions.
21. The evidence of the above witnesses no doubt shows that the public had an unrestricted right of user. But such evidence, in our view, is not sufficient prove the creation of a trust. There is nothing to show that Maharaja Sumersingh or the plaintiff had ever diverted themselves of the ownership of the Dharamshala. In Bishandas v. State of Punjab AIR 1991 SC 1570, the Supreme Court in some what similar circumstances, held that a Dharamshala though put to public us; was not private property. It goes without saying that even if there was a trust, the property must remain in the line of the founder.
22. In that view, the plaintiff's claim for possession of the Dharamshala roust succeed. We, however, are satisfied that his claim for meane profits must be disallowed. The Stats Government of Rajasthan was never in possession of the Dharamshala and, therefore, cannot be made liable to pay any mesne profits. Learned Counsel for the Gram Panchayat was in the nature of a trustee on behalf of the State Government i.e., for the purpose of management. It was only managing the affairs of the Dharamshala under the orders of the State Government. No benefits have been taken by the Gram Panchayat. He was frank enough to concede that the Dharamshala was not the property of the Gram Panchayat. No doubt, the Gram Panchayat was in the control of the Dharamshala but the entire income therefrom has been spent over it by making essential additions and alternations, repairs maintenance of staff etc. We do not think that the justice of the case justifies the award of any mesne profits.
23. The result, there is that the appeal partly succeeds and is allowed. The judgment and decree of the District Judge dismissing the plaintiff's suit for possession of the Dharamshala are set aside and instead the plaintiff's claim for possession is decreed, but his suit for mesne profits is dismissed. The costs shall be borne by the parties as incurred. We, however, direct that the decree for possession of the Dharamshala passed by us shall not be put in execution for a period of three months from today.