JUDGMENT 1. - After having failed in a revenue suit filed under Section 177,183 and 198 of the Rajasthan Tenancy Act, 1955 (for short, the Tenancy Act), by the then Receiver of Moorti Bade Mathureshji Kota respondent No. 4, in all the three courts namely trial court, Revenue Appellate Authority and Board of Revenue, the defendant has filed this writ petition challenging the judgment dated March 27, 1990 of the Board of Revenue for Rajasthan, Ajmer. The primary challenge to the aforesaid judgment is on the ground that the land in dispute was 'muafi' of Moorti Bade Mathureshji (for short, the deity) which 'muafi' was resumed in the year 1959. The land entered in the khudkasht of deity, and the petitioner was a sub-tenant. He acquired khatedari right. The deity was not and could not be the khatedar tenant of the land in dispute and at any rate on and from the date of resumption of 'muafi'. 2. The dispute relates to the old khasra No. 343 measuring 26 bighas 7 biswas situated in village Antah Tehsil Ladpura, Distt. Kota. The new khasra numbers as appears from 'Nakal Khasra Girdawari' from Smvt. year 2016 to 2020, are as under; Khasra No. 433 2 bighas 11 biswas Khasra No. 434 17 biswas Khasra No. 435 5 biswas Khasra No. 436 15 biswas Khasra No. 437 3 bigha 9 biswas Khasra No. 438 12 biswas Khasra No. 439 4 bighas 2 biswas Khasra No. 440 6 biswas Khasra No. 441 7 bighas 8 biswas Khasra No. 442 3 bighas Khasra No. 443 15 biswas Khasra No. 444 2 bighas 7 biswas. The said land was in the muafi of the deity. It will appear that there were a large number of fruit bearing trees in the land in dispute and the defendant had taken the garden on 'theka' for a period of five years on the theka money of Rs. 300/- per year on May 5, 1948. The theka money was deposited for one year and the defendant-petitioner stopped paying the theka money. Two suits were filed for theka money and both the suits were decreed. A receiver had been appointed on the property. 300/- per year on May 5, 1948. The theka money was deposited for one year and the defendant-petitioner stopped paying the theka money. Two suits were filed for theka money and both the suits were decreed. A receiver had been appointed on the property. Thereafter, a suit under the aforesaid sections of the Tenancy Act was filed on February 19, 1958 against the petitioner herein but during the pendency of the suit during the settlement operations, the petitioner was recorded as khatedar and therefore, a declaration was sought that deity is khatedar of the land in dispute and only thereafter the suit became also under Section 88 of the Tenancy Act. The defendant-petitioner in his written statement admitted that the disputed 'bagh ka mandir' was of the deity and was in its muafi. He also admitted that he had taken bagh in dispute on the theka for five years at Rs. 300/- per year. An application was filed for acquiring khatedari rights and the suit was stayed till the orders on that application. It was also pleaded by him that he was depositing land revenue under the orders of the Collector. Other pleas were also raised and the learned trial court framed as many as 9 issues which have been extracted in the judgment of the learned trial court. The learned trial court had put up issue No. 7 and 8 as preliminary issues and the issue No. 8, whether the plaintiff had no right to file suit was decided by the trial court against the plaintiff. An appeal was filed and the Board of Revenue under its judgment dated July 27, 1959 remanded the case to the trial court. An application was then filed on behalf of the petitioner that muafi of the deity has been resumed on October 13, 1959 and therefore, the suit was filed by the Receiver and as the suit was dis- missed, the application was dismissed by the trial court. The petitioner again took an appeal to the Revenue Appellate Authority which was partly allowed by the Revenue Appellate Authority under its order dated November 8, 1965 and it directed the trial court to frame two more issues and those two issues which were framed are as under : 10. Whether the disputed land is of muafi of temple Mathureshji which has been resumed on January 1, 1959? 11. Whether the disputed land is of muafi of temple Mathureshji which has been resumed on January 1, 1959? 11. Whether after the resumption of muafi the plaintiff has ceased to have any right to sue? Learned trial court under its judgment dated March 2, 1981, decreed the suit of the plaintiff non-petitioner No. 4. The petitioner defendant filed an appeal to the Revenue Appellate Authority and the learned Revenue Appellate Authority under its judgment and decree dated September 21, 1981 dismissed the same. As said earlier, the Board of Revenue also dismissed the appeal. 3. The main contention of the learned counsel for the petitioner is that the petitioner was entered as Jelly and was a sub-tenant when muafi was resumed on January 1, 1959. The land was not Khudkasht of the deity and therefore the deity could not have acquired khatedari rights and therefore the result of resumption of muafi was that the deity ceased to have any right, title or interest in the land in dispute which stood vested in the State and the suit of deity could not have been decreed at any rate after resumption of muafi. What consequences ensue as a result of resumption of a jagir land which term also includes muafi having been included in the first Schedule to the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (for short, the Act) have been specified in Section 22 of the Act. A perusal of Section 22 of the Act will show that save as otherwise provided in the Act the rights, title and interest of the Jagirdar and of every other person claiming through him in the jagir lands shall stand resumed to the Government free from all encumbrance. Section 23 of the Act is a saving section and it starts with non-obstante clause. Under it khudkasht lands of a jagirdar shall continue to or be held by him. Even all grove land, fruit trees, wherever situate, belonging to or held by the jagirdar or any other person shall continue to or be held by such jagirdar, or any other person. Khudakasht land and groves fall under sub-section (1)(a) (b)(iv) of Section 23 of the Act. Even all grove land, fruit trees, wherever situate, belonging to or held by the jagirdar or any other person shall continue to or be held by such jagirdar, or any other person. Khudakasht land and groves fall under sub-section (1)(a) (b)(iv) of Section 23 of the Act. Under sub-section (2) of Section 23 of the Act if any question arises whether any property is of 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 order thereon as he deems fit. 'Grove Land' has been defined in sub-section(15) of Section 5 of the Tenancy Act and it shall mean any specific piece of land in any part of the State having trees planted thereon in such numbers that they preclude, or when full grown will preclude such land or any considerable portion thereof from being used primarily for any other agricultural purpose and the trees so planted shall constitute a grove. 'Tenant' is defined in section 5(43) of the Tenancy Act and it means the person by whom rent is or but for a contract express or implied, would be payable and except when the contrary intention appears, shall include the persons mentioned therein, but shall not include a grantee at a favourable rate of rent or an Ijardar or a thekadar or a trespasser. 4. The suit was filed in the year 1950 and by then the properties in muafi had not been resumed and it was resumed on January 1, 1959. The deity was entered as khatedar of the land in dispute and then even under the Tenancy Act, no khatedari right could accrue to the petitioner herein because the deity was a perpetual minor as has been the consistent view of this court. It will appear from a perusal of Jamabandi of village Nanta Tehsil Badpura Distt. Kota for Smvt. year from 2010 to 2013, which has been filed by the petitioner himself that the deity was recorded as khatedar. Though, in column No. 5 of the said Jamabandi name of Goswami is entered, but Goswami is trustee and it will have to be taken that the deity was recorded khatedar of the land in dispute. Kota for Smvt. year from 2010 to 2013, which has been filed by the petitioner himself that the deity was recorded as khatedar. Though, in column No. 5 of the said Jamabandi name of Goswami is entered, but Goswami is trustee and it will have to be taken that the deity was recorded khatedar of the land in dispute. As said earlier, when the suit was filed the land was in muafi and was not resumed and it was resumed only on January 1, 1959, A reference to the definition of the 'grove land' has already been made in the earlier part of this order and at the cost of repetition it may be said that under Section 5(15) of the Tenancy Act 'grove land' shall mean any specific piece of land in any part of the State having trees planted there on in such numbers that they preclude, or when full grown will preclude such land or any considerable portion thereof from being used primarily for any other agricultural purpose and the trees so planted shall constitute grove. A look at Anr. R/2, patta, under which Bagh given on contract for five years at the rate of Rs. 300/- per year, will show that it is clearly mentioned therein that:- " dqy Qly vke] uhcaw] tk;Qy jsuh oxSjk tks isM+ ckx esa vkckn gSa mu lcdh o [kkyh tehu esa ckxku ds fu;ekuqlkj Qly djus ds fy, 300@& :i;s lkyuk ( rhu lkS :i;s lkykuk ) ij Bsdk fy;k gS---------------- vkSj isM+ o bekjr efUnj tks ekStwn gS muesa fdlh fdLe dk uqdlku u gksus nwaxkA " It will be clear that it was grove land which was given on contract to the petitioner herein for a period of five years and the petitioner undertook to take benefit from the fruit trees and also to plant fruit trees. 'Grove-holder' has been 'defined in 5(14) of the Tenancy Act and shall mean so long as the grove retains its character. Khatedar tenant or holder of khudkasht who has a grove over the whole or a part his holding and has got it recorded as such in the prescribed manner. 'Grove-holder' has been 'defined in 5(14) of the Tenancy Act and shall mean so long as the grove retains its character. Khatedar tenant or holder of khudkasht who has a grove over the whole or a part his holding and has got it recorded as such in the prescribed manner. Though, when the Muafi was resumed on January 1, 1959, consequences as contained in Section 22 of the Act were to follow and the position of law can be taken to be settled that if on the day of resumption of land in dispute it was not recorded as khudkasht or muafi holder was not in cultivatory possession of the same and the land was being cultivated by some body else, then so far as muafidar is concerned, he would have ceased to have any right or interest in the land in dispute and only after January 1, 1959 when as said earlier the muafi was resumed under the Act, the suit would not have been maintainable. But the position of grove land is different. A look at Section 23 of the Act will show that it starts with non-obstante clause and under its sub-section (1)(iv) notwithstanding anything contained in Section 22 all groves land fruit trees wherever situate belonging to or held by the Jagirdar or any other person shall continue to or be held by by such Jagirdar or other person. Therefore, so far as grove and fruit trees are concerned, by virtue of provisions of sub- section(1)(iv) of Section 23 it continued to vest in the muafidar and consequences as contained in Section 22 did not follow. It was contended by the learned counsel for the petitioner that under Section 23(2) of the Act if any question arises whether any property is of the nature referred to in sub-section (1), it shall be referred to the Jagir Commissioner, who may, after holding the prescribed inquiry, make such order thereon as he deems fit. Fie therefore contends that the matter can be decided by the Jagir Commissioner and unless the matter is decided the petitioner cannot be non-suited. Mr. Fie therefore contends that the matter can be decided by the Jagir Commissioner and unless the matter is decided the petitioner cannot be non-suited. Mr. Maloo, learned counsel for the respondent contends that so far as aforesaid sub-section (2) of Section 22 of the Act is concerned, it will be attracted to decide the dispute between the State and Jagirdar and muafidar and it cannot apply in a case of interse dispute between Jagirdar and muafidar and private persons. According to the learned counsel so far as interse dispute between private persons and the persons and Jagirdar or muafidar are concerned, they will have to be decided by the courts and not by the Jagir Commissioner. A full bench of the Board of Revenue in the case of State of Rajasthan v. Sardar Singh, 1964 RLW page 21 (Revenue Supplement) said that interse dispute with regard to private properties between the Jagirdar and other persons are not to be decided by the Jagir Commissioner. In the aforesaid case, a view was also taken that even if the Jagirdar has not filed list of private properties, he is not divested of his properties. In the aforesaid case reference was made to the case of Mahipat Singh v. State of Rajasthan, 1962 RLW 20 , wherein this Court had taken a view that interse disputes are not to be settled under inquiry under Section 23 of the Act by the Jagir Commissioner or any other person. Learned members of the Full Bench said - "In our view the bare perusal of the wordings of Section 23 sub-section (1) would make it clear that the legislature clearly intended that the nature of the properties referred to in Section 23(1) of the Jagirs Act were never intended to be resumed by the State Government on the resumption of the Jagir by using the word that such properties notwithstanding anything contained in Section 22 of the Act shall continue to belong to or be held by such Jagirdar or other person". A Division Bench of the Boa d in the case of Bamanwarji Devasthan v. Shir-thender Suri Jain S. Mandir, 1984 RRD 442 , again held that interse dispute between Jagirdar and another could not be decided under Section 23 of the Act. A Division Bench of the Boa d in the case of Bamanwarji Devasthan v. Shir-thender Suri Jain S. Mandir, 1984 RRD 442 , again held that interse dispute between Jagirdar and another could not be decided under Section 23 of the Act. Kasliwal J., as he then was, in the case of Mahant Ramswaroop v. State of Rajasthan, 1986 RLR 167 , in para 13 said that the question whether the grant was an absolute gift in individual capacity to the precedessor-in-title of the petitioner or was a grant for the 'sevapooja' of the idol Mahadeoji and as such for the benefit of the idol, cannot be decided within the scope of inquiry under Section 23 of the Act by the Jagir Commissioner, and any beneficiary of trust or authorities having interest in property of idol can raise the question by way of proceedings in the civil court and not by way of proceedings under the Act or the Rules. 5. It has already been said in the earlier part of this order that it was grove land which was given on contract for five years to the petitioner by the deity. There is sufficient material on record that it continued to be grove land. In the case of Shiv Sahai and others v. Har Nandan and others, 1963 AIR Allahabad 413 , in para 7 of the judgment the court considered the definition of 'grove land' as given in Section 3(6) of the U.P. Tenancy Act which provided in effect that grove land means any piece of land which has trees in such number that when fully grown they will preclude any considerable portion of the land being used primarily for any other purpose. The Commissioner in that case reported that the major portion of the land was covered by the trees, it followed that the trees precluded a considerable portion of the land from being used primarily for the purpose of cultivation. The court said that the definition of the grove land in the Act does not exclude cultivation altogether but merely say that the number of trees should be large enough to prevent the land from being used primarily for any other purpose. 6. The court said that the definition of the grove land in the Act does not exclude cultivation altogether but merely say that the number of trees should be large enough to prevent the land from being used primarily for any other purpose. 6. It can therefore be said that it was grove land by virtue of Section 23(1)(iv) of the Act and despite the fact that muafi was resumed on January 1, 1959, it continued to vest in the muafidar and as said earlier, the consequences as contained in Section 22 could not follow in respect of grove land. Even in the plaint, it is clearly mentioned that it was the Bagh which was given on contract. Merely because some apart of the land might have been cultivated it does not cease to be grove land and it appears that major part of the land had fruit trees. A perusal of the report of the commissioner appointed by this court will show that the commissioner in his report dated January 30, 1991, found that large number of fruit trees were there and he also found that large number of trees had been cut. 7. The petitioner has claimed to be Jelly and recorded as such in the revenue records in the former Kota State and according to his learned counsel Jelly is sub-tenant. The Tenancy Act came into force on October 15, 1955, i.e. Smvt. year 2012. Admittedly, the petitioner was not recorded as tenant and khatedari rights could not accrue under Section 15 of the Tenancy Act on the coming into force of that Act. Even under Section 19 khatedari right could not accrue if the land is held from any of the persons enumerated under Section 46 of the Tenancy Act and a perusal of Section 46 of the Tenancy Act will show that restrictions imposed by Section 45 of the Tenancy act on letting by a holder of khudasht and o sub-letting by a tenant shall not apply to a minor and as said earlier the deity is perpetual minor. Therefore even under Section 19 no khatedari right could accrue even if the petitioner was Jelly when the Tenancy Act came into force and as said earlier it was a muafi land and we have to harmonise the provisions of the Tenancy Act and Act. Therefore even under Section 19 no khatedari right could accrue even if the petitioner was Jelly when the Tenancy Act came into force and as said earlier it was a muafi land and we have to harmonise the provisions of the Tenancy Act and Act. In so far as grove land is concerned it shall continue to vest in muafidar. 8. Though, for different reasons, we are of the opinion that there is no merit in the writ petition. It is hereby dismissed with no order as to costs.Petition dismissed. *******