JUDGMENT 1. :- The ancestors of petitioners were said to be in possession of the land in dispute, as narrated in the present writ petition, which was a 'MUAFI LAND'. This land was resumed in July, 1963 under the provisions of Rajasthan Land Reforms and Resumption of Jagirs Act (hereinafter to be referred as Jagirs Act'). The petitioners sought declaration to the effect that on coming into force of Rajasthan Tenancy Act, 1955 (hereinafter to be referred as Tenancy Act') they had acquired khatedari rights. The copy of the plaint is attached as annexure-1. The private respondents had denied the rights of the petitioners and also filed a counter suit. The suit of the petitioners was dismissed by the SDO Iklera, whereas the suit of Murti Mandir was decreed holding that Murti Mandir Gokul Chandramajee were khatedar of the said land and the petitioners were in possession without any authority of law. The decree of possession in favour of Murti Mandir and against the petitioners was passed. Copies of the respective judgments are attached as annexure-5 & 6. The Revenue Appellate Authority, Kota vide judgment dated 13.1.79 dismissed the appeal, copy of which is attached as annexure-7. The appeal filed by petitioners before the Board of Revenue was also dismissed vide judgment dated 27.5.85 (Ann.8). Being aggrieved by the judgments annexure-5, 6, 7 and 8, the petitioners have approached this Court by filing the present writ petition. 2. It is the contention of the petitioners that muafi was resumed in July, 1963 and the petitioners being in cultivatory possession and for the reason that muafidar had never cultivated the land itself and that petitioners had been paying munafa in cash and the land being in their use and occupation, therefore, they fall under the definition of the 'tenant' under the provisions of Tenancy Act. It is further contended that the petitioners were paying munafa, which is defined as 'Rent' under Section 5(32) of the Tenancy Act. Thus they had become khatedar tenant by virtue of Section 15 of Tenancy Act. It is the further contention of petitioners that in no case the petitioners could be termed as trespasser and, therefore, no suit could have been filed against the petitioners under Section 183 of the Tenancy Act. Thus they had become khatedar tenant by virtue of Section 15 of Tenancy Act. It is the further contention of petitioners that in no case the petitioners could be termed as trespasser and, therefore, no suit could have been filed against the petitioners under Section 183 of the Tenancy Act. It is further submitted that the possession of petitioners throughout had been the permissive as tenant of Muafidar, therefore, by virtue of Section 9 of Jagirs Act every tenant in a jagir land on the commencement of the Act would be known as a Khatedar tenant in respect of such land. With the abovesaid proposition of law, the petitioners are challenging the judgments and decree passed by the courts below. 3. Counsel for private respondents submitted that on the land of Deity which is prepetual minor, there was no question of creation of tenancy or sub-tenancy, and therefore, the petitioners had no right on the land. 4. All the authorities below including the Board of Revenue have held that the land in question was in the khatedari of Murti Mandir Chandramajee but was being cultivated by the petitioners with the permission and because of the reason that the Deity is perpetual minor, therefore, no rights of khatedari tenancy could accrue to any of the cultivator and at the most the petitioners could be termed as Jaili' and the Jaili had no right of tenancy. 5. It is the finding of the Board of Revenue in annexure-8 that on the basis of documentary evidence till muafi land was resumed, the names of petitioners were entered in Khasra No.97 measuring 16 bighas 15 biswas and khasra No. 876 measuring 36 bighas 9 biswas as jailis. 6. Under Section 9 of the Jagirs Act, every tenant in the Jagir land who at the time of commencement of the Act is entered in the revenue record as khatedar, pattedar, khademdar or under any description implying that the tenant has heritable and full transferable right in the tenancy shall continue to have such rights and shall be called as khatedar tenant in respect of such land, but the Board of Revenue has held that because of the reasons that the petitioners have been held to be jailis, therefore, they did not fall under the protection of Section 9 of the Jagirs Act. 7. 7. The Board of Revenue had given a finding that the petitioners at the most can be called sub-tenant. The Board of Revenue held that no khatedari rights could have accured to appellants even assuming that they were sub-tenants in the facts of the case, as they were not khatedar. 8. Counsel for petitioners has placed reliance on the judgment reported in (1996) 1 SCC 614 , Kartik Malhar v. State of Bihar and also on the judgment in case of Bal Kishan Vs. Board of Revenue and others, S.B. Civil Writ Petition No. 2930/87 decided on 20.9.99 [Reported in 2000(1) RLR 691 9. In the case of Deepa Vs. State of Rajasthan & Others (1996) 1 SCC 612 , the Pujari of the deity had moved an application for making a reference to the Board of Revenue for changing of the entry in the revenue record in favour of idol Shri Charbhujaji. The defence of the appellant Deepa was that he had become a khatedar tenant under the provisions of the Tenancy Act and, therefore, the record could not be changed. The reference was accepted which was upheld right upto the High Court. In the revenue entries said Deepa was recorded as cultivator and it was the contention of said Deepa that the land could not be recorded as Khudkasht of the Jagirdar, which would make Section 10 of the Jagir Act inoperative. The land was being cultivated by said Deepa on share basis. The contention of the appellant was accepted by the Hon'ble Supreme Court to the effect that if the sub-tenant of khudkasht land becomes the khatedar tenant on the required procedure being followed, which must be deemed to be satisfied because of what has been recorded in the Khasra Girdawari and in such circumstances by the force of Section 9 of the Jagirs Act, it has become heritable and fully transferable and so the contrary view was taken by the authorities is not correct. The Supreme Court observed as under: 'Shri Sharma, appearing for the appellant, contended, and rightly, that respondent himself having accepted the appellant as tenant in the first proceeding, a stand different from that could not be taken in the present proceeding. The Supreme Court observed as under: 'Shri Sharma, appearing for the appellant, contended, and rightly, that respondent himself having accepted the appellant as tenant in the first proceeding, a stand different from that could not be taken in the present proceeding. He then urged that Khasra Girdawari, which has now been put on record, dearly shows that the name of the appellant had been recorded as cultivator by Samvat 2012, because of which the land could not be regarded as khudkasht of the jagirdar which would make Section 10 of the Jagirs Act inoperative, and so, the respondent's name could not be recorded as khatedr tenant. As to this submission, the learned counsel for this respondent submitted that though the land was shown in the Khasra Girdawari under appellant's cultivation, that was not as a tenant but as an employee of the respondent. This stand is untenable because from the impugned judgment of the Board of Revenue in the present proceeding it appears that the case of this respondent was that Deepa's father had been given the land for cultivation on 'Panti Basis', that is, on share basis, which would clearly show that the land was tenanted to Deepa's father and in lieu of cash he was to pay in kind. Shri Sharma's further contention is that the view taken by the authorities is not correct also because of the provisions in Chapter III-A of the Tenancy Act, under which even a sub-tenant of khudkasht land becomes a khatedar tenant on the required procedure being followed, which must be deemed to have been satisfied because of what has been recorded in the Khasra Girdawari. Now, if a person becomes a khatedar tenant, then by the force of Section 9 of the Jagirs Act, his right becomes heritable and fully transferable; and so, the contray view taken by the authorities is not correct. Still another weapon in the armoury of Shri Sharma is that under Section 13 of the Marwar Tenancy Act, 1949, (regarding the applicability of which Shri Medh has some objection) the interest of a tenant is heritable but is not transferable otherwise than in accordance with the provisions of that Act.' 10. It is also not denied that if the land is resumed under the Jagirs Act, it vests in the State Government. It is also not denied that if the land is resumed under the Jagirs Act, it vests in the State Government. It is also not diputed that the petitioners were in possession of the land for more than 40 years at the time of filing of the suit etc. and they were paying rent in the shape of 'MUNAFA'. 11. The legal position now stands settled by the Hon'ble Supreme Court in the Deepa's case (supra) and in view of the changed position of law, the judgment of the courts below cannot be upheld and sustained in the eyes of law. The impugned Annexure-5, 6, 7 and 8 are quashed.The writ petition is allowed. No order as to costs.Petition Allowed. *******