JUDGMENT S.S. Ahmed, Member. - This is a plaintiff's second appeal arising out of the order of Additional Commissioner, Lucknow Division, dated 15-2-71, allowing the appeal filed by Thakurji Maharaj, against the order dated 7-4-70, passed by an Assistant Collect of Ist class, Sitapur in a case u/s. 29-B/209 of the U.P.Z.A. and L.R. Act, 1951. 2. Succinctly stated, the facts of the case are that Thakurji Maharaj, installed in a shrine in village Benipur, filed a suit through Baba Ramdas and Bana Haridas, with the allegations that the disputed land was endowed in the name of the plaintiff on 6-3-1936 by Baba Jaskaran Das. This endowment had been made by him on 6-3-1936 by registered document which provided, inter alia, that baba Suphal Das one of the five trustees appointed to administer the endowed property, will act as a sarbarakar on manager of the endowed property. Baba Ram Das and Baba Hari Das, the other trustees who brought this suit on behalf of Thakurji Maharaj were also amongst the five trustees named in the registered deed of 1936. Baba Jaskaran Das died in 1936 and Baba Supahl Das defendants No. 2 became sarbarakar or trustee by virtue of the deed creating the endowment. However, being the chela of Baba Jaskaran Das, he was recorded as an heir of Baba jaskaran Das in continuation of the tenancy of Baba Jaskaran Das. On 24-6-63 Baba Suphal Das gifted the property in dispute No. 1 whose name was mutated in the revenue records on the basis of the gift made by Baba Suphal Das. On 30-3-65 Baba Vaishnava Das transferred the land in dispute by a sale deed in favour of Bachchu Lal defendant No.3. The plaintiff's case was that once a trust had been created in favour of Thakurji Maharaj, the trustees did not have any position over than that of a manger and, therefore, the transaction in favour of defendant No.1 Vaishnava Das and defendant No. 3 Bachchu Lal were void-abnitio. A declaration was, therefore, sought that the land continued to vest in Thakurji Maharaj who should be declared to be the bhumidhar of the land in suit and the defendants who had taken possession of the land in a irregular manner, may be evicted therefrom. 3. A declaration was, therefore, sought that the land continued to vest in Thakurji Maharaj who should be declared to be the bhumidhar of the land in suit and the defendants who had taken possession of the land in a irregular manner, may be evicted therefrom. 3. Defendant No. 2, Baba Suphal Das conceded the plaintiff's case admitting that he had no right to transfer the land and that a gift had been obtained from him by defendant No. 1 as a result of fraud played upon him. However, Bachchu Lal defendant No. 3 contested the suit on the grounds that the position of Jaskaran Das was that of tenant only and that he was succeeded by Suphal Das who acquired bhumidhari rights by depositing ten times of the land revenue and thereafter transferred the disputed land through a sale deed dated 30-3-65 which was a perfectly legal, valid and binding document, whose genuineness or authenticity could not be assailed. 4. The suit was decree by the trial court on 7-4-70. The defendants went up in appeal before the Additional Commissioner who allowed it. The plaintiffs have now come up on second appeal before this court. 5. I have heard the learned counsels for the parties and have also gone through the records of this case the learned additional Commissioner has rightly pointed out that the crux of the whole matter is whether Suphal Das held the land is suit as a tenant in his own right or did he become, at the time of abolition of zamindari, a manager or sarbarakar of the real tenant namely or sarbarakar of the real tenant namely Thkurjji Maharaj for whom the trust was created on march 6, 1936. According to the trial court after the registered document was executed on 6-3-36 by Jaskarna Das creating a trust in favour to Thakurji Maharaj the property was vested in the deity in whose favour the property was endowed and thereafter the position of Jaskaran Das, Suphal Das, Vaishnava Das was of trustees or managers, or sarbarakars of the trust who had no right to alienate the land in any manner whatsoever. The suit was accordingly decreed by him. The suit was accordingly decreed by him. The learened Additional Commissioner, however, took a contrary view and held that the position of Suphal Das at the time of abolition of Zamindari was that of a class 4 tenant who became a sirdar after the date of the vesting and gifted the land to Baba Vaishnava Das on 30-6-65. Baba Vaishnava Das acquired bhumidari rights by deposition ten time of the land revenue and sold the land to defendant No. 3 Bachchu Lal after he had acquired transferable rights. For these reasons, he set aside the order of the lower court and allowed the appeal 6. The learned counsel for plaintiffs has assailed the impugned order of the Additional commissioner on three main grounds. He has argued, firstly, that the position of Jaskaran Das before the enforcement of U.P. Tenancy Act, 1939, could at best have been of that of statutory tenant in accordance with Oudh Rent (Amendment) Act, who had admittedly no powers of transfer the land in any manner whatsoever, when the trespass took plan on 6-3-36 throughout the registered deed, referred to above, the transfer of the line in favour of Thakurji Maharaj was ostensibly in keeping with the provision of the law enforced at that time. However, the creation of such a trust resulting in the consequent transfer must be deemed to be valid for two reasons: (a) the trust was accepted by the defendant and in fact some of them were amongst the trustees to whom the management and supervision of the endowed property was entrusted; and (b) Although the Zamindar could have objected when Baba Jaskaran Das this trust yet for from doing so he fully acquiesced in it to the extent that he has also agreed to become one of the five trustees. Thus the zamindar will be deemed to be given his consent to this transfer by acquiescence and he or his successors are effectively estopped from challenging the transfer even though it may not be very regular in the eyes of law. Secondly, he maintained that Baba Suphal Das, defendant No. 2 in the instant suit himself accepted the plaintiff's case and there can be no better evidence about the creation of this trust and the validity of this transfer than this acceptance of the plaintiff's case in the written statement of Baba Suphal Das defendant No. 2. Secondly, he maintained that Baba Suphal Das, defendant No. 2 in the instant suit himself accepted the plaintiff's case and there can be no better evidence about the creation of this trust and the validity of this transfer than this acceptance of the plaintiff's case in the written statement of Baba Suphal Das defendant No. 2. This admission is also more important because in the subsequent event he, his title in interest, as well as his position in the eyes of law were to have a very important bearing of the fortunes of this case. 7. Thirdly, relying on the cases of Sri Ishwar Sridharjiv v. Shushila Baba 1965 A.I.R. (S.C.) page 69 and the cases of Mohammad Shah v. Faishuddin Ansair and others AIR 1956 (S.C.) page 713 he has maintained that where by a will, it is clear that the testator intended to dedicate the property to the deity absolutely, the deity shall be deemed to be the absolute beneficiary as a result of the endowment and that the charges incurred on the upkeep or maintenance of the deity by the heirs of relatives of the testator, creating the trust will not be regarded as its true beneficiary. According to him therefore, even if there had been any irregularity in the execution of the will and the creation of a trust by virtue of that will in the month of March 1936, yet this had been rectified by the maxim of 'factum valet' qued fieri non debuit and from 6-3-36 onwards Thakurji Maharaj became a statutory tenant of the land in suit and acquired hereditary rights when the U.P. Tenancy act, 1939, came into force and acquired sirdari rights at the time of vesting of estates under the Z.A. and L.R. Act, 1951. Relying on the case of M. Raza v. Joint Director 1969 A.W.R. page 905 the learned counsel has shown that no bhumidhari rights can accrue to the cultivating mutwalli or manager and that such bhumidhari rights would accrue in favour of god or deity to whom the property is dedicated and not to the Manager or Sarbarakar who cultivated the land not in his personal capacity but in his capacity as mutwali, manager, sarbarakar or trustee of the disputed property. 8. 8. Finally, he contended that even if the transfer by a statutory tenant before the enforcement of the U.P. Tenancy Act was irregular yet on the basis of the maxim 'Factum valet quod fiery non debuit', it will be deemed to have been valid because it was actually acted upon the person of parties who could have object to it had fully acquiesced in it. Thus according to the learned counsel, the creation of the trust by Jaskaran Das was perfectly valid and from March 1936, on wards it was Thakurji Maharaj and not Baba Jaskaran Das who acquired tenancy rights in respect of the disputed land and these rights have continued with occasional changes right up to the present day. 9. Countering these arguments the learned counsel for the respondent has maintained that vide Oudh Rent (Amendment) act, 1931. Jaskaran Das was tenant in his own right and hence Suphal Das became a hereditary tenant when U.P. Tenancy Act, 1939, was in force. In support of this contention he has cited the case of Bhana Chaubey v. Pritam Chaubey 1949 R.D. page 279 in which a bench of the Board of Revenue has held that where an occupancy holding is transferred illegally, the transferee becomes a trespasser and it is open to the landlord to eject him as such. But if the landlord does not eject the transferee as a trespasser, without the prescribed limitation the trespassed becomes in due course the tenant of the land in his own right. 10. Next, relying no two Supreme Court cases, Rana Shiv Ambar Singh v. Allahabad Bank 1961 R.D. page 326 and Ramji Dixit v. Bhrigu Nath 1968 R.D. page 293, he has maintained that at the time of vesting of estates Baba Suphal Das became the sirdar of the land in suit, and thereafter on depositing ten times of the rent he became bhumidhar of the disputed plots. 11. He has argued, thirdly, that deed dated 6-3-36 was in the nature of a will and not a trust. Besides irrespective of the fact whether the registered deed was in the nature of a will or a document purporting to create a trust, it was nothing more than a paper transaction because in actual practice it was never acted upon. 12. Besides irrespective of the fact whether the registered deed was in the nature of a will or a document purporting to create a trust, it was nothing more than a paper transaction because in actual practice it was never acted upon. 12. Fourthly, he has argued that the instant suit was not maintainable in a revenue court and it was only a civil court which had the jurisdiction to entertain a suit for cancellation of a sale deed and for delivery of possession. Referring to the case of Mewa v. Baldeo 1966 A.L.J. page 1084 and the case of Ram Avalamb v. Jatashankhar 1968 A.L.J. page 1108 he has urged that a suit which virtually amounted to a suit for cancellation of gift deed of for setting aside the sale deed cannot be filed in the garb of a declaratory suit under the U.P.Z.A. and L.R. Act. 13. Lastly,he has argued that in accordance with section 41 of the transferor of property Act, a transfer shall not be voidable on the ground that the transfer was not authorised to make it : provided that the transferee after taking reasonable care to ascertain that the transferor had the power to make the transfer as acted in good faith. In the instant case, the transferee has ascertained from record of rights that Baba Vaishnava Das had the right to transfer after going this Bachu Lal purchased the land in suit from Vaishnava Das in all good faith. 14. Giving my earnest thought to this matter, I find that crus of the case is twofold : whether the document dated 6-3-36 confers any tenancy rights on Thakurji Maharaj or the deity in favour of whom the endowment has made, and secondly, whether defendants 1 and 2 hold the land as trustees or as tenants in their own rights. It is on the decision of these two issued that the fate of the entire case could depend. 15. As regards the first point the view of their lordships of the Supreme Court in the case of Sri Ishwar Sridhar Jew v. Shushila Bala 1954 A.I.R. (S.C.) page 69 appears to be quiet conclusive. It is on the decision of these two issued that the fate of the entire case could depend. 15. As regards the first point the view of their lordships of the Supreme Court in the case of Sri Ishwar Sridhar Jew v. Shushila Bala 1954 A.I.R. (S.C.) page 69 appears to be quiet conclusive. Their lordship have observed in that case as follows: "Thus where by a will certain premises were expressly declared as absolutely dedicated to a deity as its permanent habitation with only the right given to the Sevayats to reside in the said premises for the purpose posses of carrying on the daily and periodical seva and the festivals, etc., of the deity, the premises were to be registered in the Municipal records in the name of the deity, the Municipal bills were to be taken also in its name and none of the testator's representatives, heirs, successors, executors, administrators or assigns were to have any manner of interest in or right to the said premised or were to competent to give away or effect sale mortgage, etc., of the said premises." This view is actually based on a very old case Vidya Varuthi Thirtha Swamigal v. Baluswami Auuar A.I.R. 1922 (Privy Counsel page 123) in which a very significant observation has been made by their lordships which reads as follows: "It is to be remembered that a 'trust' in the sense in which the expression is used in English Law, it unknown in the Hindu System, pure and simple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, the agent is only the manager and custodian of the idol or the institution. In no case is the property conveyed to or vested in him; nor is the a 'trustee' in the English sense of the term, although in view of the obligations and duties resting on him in answerable as a trustee in the general sense for maladministration." More or less the same view has been held in another case A.I.R. 1956 (S.C.) page 713. 16. 16. There can, thus, be no doubt at all the once a trust is created for the benefit of an Idol or deity, such Idol or deity assumes the character of a person in whom the rights of a particular type (in the instant case tenancy rights) accrue and such person who acts on behalf of the deity, can actually be regarded as a manager or sarbarakar and in so far as agricultural land or tenancy rights are concerned the Idol or the deity cannot be accepted to perform the functions in the agricultural land and that by the very nature of things it is the manger, trustee or sarbarakar who has perform these functions on behalf of the deity. 17. The next point concerns the validity of the deed by which the endowment was created. In this connection has learned counsel for appellant has referred to the maxim "factum valet quod fieri non debuit'. Strictly speaking this is a maxim from Roman Civil Law and has been used mainly in the context of principles governing the Hindu law. However, the maxim is based on such sound common sense that it cannot be regarded as being in applicable to tenancy matters. This provisions is clearly borne out by salmond on Jurisprudence, Twelth Edition, page 120 where it has been laid down: "Testamentary succession, on the other hand, demands further consideration. Although a dead man has no rights, a man while yet alive has the right, or speaking more exactly, the power, to determine the disposition after he is dead of the property which he leaves behind him. His last will, duly declared in the document which we significantly call by that name, is held inviolable (Generally speaking) by the law. For half a century and more, the rights and responsibilities of living men may thus be determined by an instrument which was of no effect until the author or it was in his grave and had no longer any concern with the world of its affairs. For half a century and more, the rights and responsibilities of living men may thus be determined by an instrument which was of no effect until the author or it was in his grave and had no longer any concern with the world of its affairs. This power of the dead had (mortua manus) is so familiar a feature in the law that we accept it as a matter, of course, and have some difficulty in realising what a singular phenomenon it is really is." Thus, from the point of view of Jurisprudence also is fully borne out that the execution of will or trust dated 6-3-36 was perfectly valid when its property and legality far being challenged was acquiesced both by the then zamindar who was amongst the five trustees as also by Baba Vaishnava Das and Baba Suphal Das, defendants 1 and 2 respectively. This is very clear indication of the fact that the deed of March 1936 was fully acted upon and hence it will be quite incorrect to say that it was just a paper transaction. In fact one of the rulings cited by the learned counsel for respondent (1949 R.D.page 279) goes in favour of the appellants than in favour of respondents. In the instant case Jaskarn Das was a statutory tenant under the Oudh Rent (Amendment) Act, 1921, and thus the transfer made by him through this document was illegal. The transfer was admittedly made in favour of Thakurji Maharaj who became a trespasser in the eyes of law which prevailed in the district of Oudh at that time. Thus it was for the zamindar to have ejected Thakurji Maharaj as a transferee having claimed title through an illegal document and thus acquiring the position of a trespasser. However, the zamindar never regarded Thakurji Maharaj as trespasser after the passage of Requisite time Thakurji Maharaj became a tenant in his own right. It was this right which subsisted in Thakurji Maharaj when U.P.Z.A. and L.R. Act, 1951, came into force. 18. Neither the Oudh rent (Amendment) act, 1921, nor the U.P. Tenancy Act, 1939, nor even the U.P. Z.A. and L.R. Act, 1961, made any provision for succession of tenancy rights by a 'chela'. It was this right which subsisted in Thakurji Maharaj when U.P.Z.A. and L.R. Act, 1951, came into force. 18. Neither the Oudh rent (Amendment) act, 1921, nor the U.P. Tenancy Act, 1939, nor even the U.P. Z.A. and L.R. Act, 1961, made any provision for succession of tenancy rights by a 'chela'. In the instant case both Baba Suphal Das and Baba Vaishnava Das or both were the disciples of Baba Jaskaran Das and they stepped into the shoes of Baba Jaskaran Das not because they were entitled to inherit the disputed holding but because the endowment deed specifically nominated them as trustees who were to carry on the work of cultivation for the benefits of the deity in whose favour the endowment was originally made. The fact that in the khataunis of subsequent years these person were recorded not as the manager or trustees of Thakurji Maharaj but as ordinary tenants in their own right, does not and cannot alter the fact that these persons got the right to hold this land as a trustee on behalf of Thakurji Maharaj in terms of the registered document dated 6-3-76. Thus it will be quite erroneous to maintain that Suphal Das came into possession over the land in came into possession over the land in dispute in his own rights, that his position as a trustee was laid down in the endowment deed will executed by Baba Jaskaran Das and but for this document the land should have reverted to the State because the rights and interests of Baba Jaskaran Das would have completely extinguished. 19. Again, Baba Suphal Das has fully admitted the case of the plaintiffs and had it not been for the fact that Vaishnava Das would have allowed the considerations of greed to outweigh all regard for a religious endowment, I am sure, the present position should not have arisen. 20. Before the concluding it in necessary to make a reference to Section 41 of the Transfer of Property Act, The learned counsel for the appellant has, in his rejoined, rightly pointed out that this Section comes into play only when it is established by the vendee that the real owner property had indicated that some person other than the owner had been fully authorised to make the sale. To maintain that the vendee examined the prima facie title of the vendor from the record of rights, in my opinion, totally inadequate to attract the provisions of Transfer of property act. It must have been a matter of common and public knowledge that Baba Jaskaran Das had endowed property to Thakurji Maharaj and in pursuance of such an endowment a temple was constructed and the Idol of Thakurji Maharaj was installed therein, It cannot, therefore, be contended that the vendee was quite ignorant of this important point and purchased the disputed land in a bona fide manner. 21. Finally, the contention of the learned counsel for the respondent that only a Civil Court had the jurisdiction to decide the suit, does not appear to be every plausible. The cases cited by him are clearly distinguishable from the instant case and it can be safely asserted that the registered document of 6-3-36 was entirely different from those referred to in the Supreme Court cases, referred to above. Besides, in these cases, the dispute was between one individual and another and not between a human being and an Idol. Moreover, the Z.A. and L.R. Act contains specific provisions for the cancellation of bhumidari sanad by which Baba Suphal Das and Baba Vaishnava Das were able to enter into the shady deals, which have resulted in the instant suit. To say that the object of the instant suit is to seek the cancellation of gist deed, acquisition of bhumidhari rights or the sale deed will not be the true interpretation of the sequence and the manner in which the various events took place. The jurisdiction of civil court would have been certainly invoked in case it was possible to show that there was no provision in the Z.A. and L.R. Act to rectify irregularities which result in filing of the instant suit Z.A. & L.R. Act being essentially an agrarian law, the jurisdiction of revenue courts cannot be taken away simply because the dispute between the parties had also a civil angel tot he instant litigation. 22. In view of all these facts, I find that there is considerable merit in the appellant's case and allow the appeal accordingly. The order of the Additional Commissioner is set aside and the suit will stand decree throughout. 23. In the circumstances of the case, the parties will bear their own costs.