A sub-grant of jagir land made in contravention of the provisions of the Marwar Land Revenue Act, 1949, is void and does not confer the status of a jagirdar on the grantee.

1. - This is a petition by Smt. Awan Kanwar under Article 226 of the Constitution directed against an order of the Board of Revenue dated 21.8.1967 affirming the decision of the Deputy Collector (Jagir), Barmer dated 25.6.1966, by which her claim for compensation as a sub-grantee of jagir Ratanpura has been disallowed.

2. The petitioner's husband Thakur Jaswant Singh by a registered instrument dated 23.12.1949 assigned village Ratangarh forming part of his jagir to his wife Smt. Awan Kanwar by way of her 'Gujara'. On the basis of such grant, the petitioner claimed the status of a jagirdar and filed her statement of claim for payment of compensation under section 31 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (hereinafter referred to as 'the Act'). During the course of the proceedings, the Jagir Commissioner by his order dated 30.7.1958 held the petitioner to be a sub grantee and accordingly recognised her as Jagirdar in respect of village Ratangarh. Her claim for compensation was finalised by the order of the Deputy Collector (Jagir) dated 31.12.1966 directing payment of Rs. 27,276.06. Out of this, the petitioner received Rs. 9,415/- as interim maintenance. The State Government filed an appeal regarding the quantum before the Board of Revenue. In appeal, the Government only challenged the correctness of the order of the Deputy Collector (Jagir) in so far as he included the income from grazing and from non agricultural uses, which according to it, should have been excluded. The Board of Revenue upheld the contention of the Government that it was not given an opportunity to cross examine the petitioner's witnesses whose evidence was recorded in its absence and, therefore, on this ground set aside the order of the Deputy Collector (Jagir) and sent back the case with the direction that a fresh award be made after giving the opportunity to the State Government of being heard.

3. On remand, the Deputy Collector (Jagir) by his order dated 25.6.1966 held that in view of the provisions of sections 191 to 198 of the Marwar land Revenue Act, 1949 read with section 26A of the Rajasthan Land Reforms and Resumption of Jagir Actr, 1952, the sub grant made in favour of the petitioner was void and, therefore, she was not entitled to any compensation whatever. He further directed that a sum of Rs. 9,415/-, which had been drawn by the petitioner by way of interim maintenance along with interest at the rate of 6% per annum be recovered. The order of Deputy Collector (Jagir) has been affirmed in appeal by the Board of Revenue.

4. The order of the Board of Revenue has been principally assailed on two grounds, namely, (i) that in view of the provisions of section 37 of the Act, the petitioner's subs-grant having been recognised by the Jagir Commissioner, who was the sole and exclusive authority in this regard, the Board of Revenue could not have held that no maintenance grant could be made by the petitioner's husband in her favour,i.e. in favour of a female, contrary to section 195 of the Marwar Land Revenue Act, 1949 and, therefore, she could not acquire the status of a jagirdar, and (ii) the Board of Revenue was in error in going into the question of title as the right and title of the petitioner as a sub-grantee was never in question. It is urged that her right to maintenance as a 'Zanana Sardar' was expressly conceded before the Jagir Commissioner as recorded in his order dated 30.7.1958. It is further urged that the State Government in its appeal to the Board of Revenue against the award of the Deputy Collector (Jagir) dated 31.12.1963 did not contest her right to receive maintenance under section 31 on the ground that she was not a Jagirdar but only challenged the quantum of the amount of maintenance awarded, and only claimed that the income from grazing and non agricultural uses of land should be disallowed.

5. The contention that where, in the course of a proceeding under the Act, a question of title as to the right