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2001 DIGILAW 1482 (RAJ)

Heti Ram v. Board of Revenue

2001-09-15

K.S.RATHORE

body2001
JUDGMENT 1. - The deity, respondent No. 4 through Pujari Ramesh Chandra and Laxman Prasad filed a suit for declaration and permanent injunction under Sections 88, 89 and 188 of the Rajasthan Tenancy Act against the petitioners. The learned Assistant Collector, Bharatpur was pleased to grant an interim injunction vide order dated 28th August, 1985 and restrained the petitioners from transferring, alienating and/or mortgaging the lands. The learned Assistant Collector vide its order dated 10.3.87 confirmed the aforesaid order but rejected the prayer of appointment of Receiver. Thereafter, respondent No. 4 preferred an appeal against the aforesaid order before the Revenue Appellate Authority who vide its order dated 13th July, 1988 allowed the appeal and directed that in case the petitioners give a cash security at the rate of Rs. 300/- per bigha for the crop of Kharif and Rs. 500/- per bigha for the crop of Rabi till the decision of the suit with the Receiver Tehsildar Bayana, then the petitioners will be having the right to cultivate the land. 2. The petitioners preferred a revision petition before the Board of Revenue against the judgment dated 13.7.88. The Board of Revenue vide its order dated 23.2.95 dismissed the revision petition. But, during the pendency of revision petition, the Board of Revenue passed an interim order dated 28.9.88 in favour of the petitioners. 3. Against the judgment passed by the learned Revenue Appellate dated 13.7.88 and that of Board of Revenue dated 23.2.95, the petitioner preferred the present writ petition. 4. Mr. G.K. Garg, appearing on behalf of the petitioners contended that the judgment of Revenue Appellate Authority and Board of Revenue are against the judgment given by the Apex Court in the case of Suraj Ram v. State of Rajasthan reported in 1995(1) Western Law Cases Page 571 wherein the Full Bench of this Court held as under : "It is well settled law that de-facto possession is not to be disturbed by the grant of temporary injunction or by appointment of receiver under Section 212 until decree has been obtained in accordance with the due process of law against such party, since question of right or title is not to be decided under Section 212. This section merely provides for interim action pending the disposal of the suit and specifically enumerates the contingencies in which its provisions can be invoked. This section merely provides for interim action pending the disposal of the suit and specifically enumerates the contingencies in which its provisions can be invoked. For deciding application under Section 212, Court is not required to go into merits of the case. The Court is merely required to see the prima facie possession of plaintiff being interfered with by defendant. The Law `does not authorise dispossession of a person who is in possession through application under Section 212 of the Act. In other words the sole object of this section is to preserve the subject-matter in controversy in its existing condition and without determining question of right, merely to prevent the further preparation of wrong or the doing of any act whereby the right in controversy may be materially affected or endangered." 5. Mr. Garg further cites section 212 of the Act which provides that where it is proved that any property is in danger of being wasted or damaged r alienated by any party of the suit or where there is a threatening of dispossession in order to defeat the ends of justice, the court may grant a temporary injunction and if necessary appoint a Receiver. The appointment of receiver being a harsh remedy, normally the receiver should not be appointed. As held by the Board of Revenue in the case of Sultan v. Madhusudan reported in RRD 1986 page 214 . 6. Mr. Garg further submits that the Revenue Appellate Authority without assessing the quality and productivity of the land and the intensity of irrigation and/or irrigation available to the petitioner arbitrarily and without material on record fixed a cash security of sum of Rs. 300/- per bigha for Kharif crop and Rs. 500/- per bigha for Rabi crop, totalling Rs. 800/- per bigha per year. 7. With regard to appointment of Receiver Mr. Garg referred a case reported in R.R.D. 1985, Ram Niwas v. Kanhaiya Lal 1963 wherein the Revenue Board has held that Receiver could not be appointed where plaintiff found out of possession on the date of suit and defendant was in possession. 8. Similar view has been taken in the case of Jai Ram v. Teekam, 1981 RRD 146 and Ramjani v. Vipti, 1982 RRD 480 . 9. Mr. 8. Similar view has been taken in the case of Jai Ram v. Teekam, 1981 RRD 146 and Ramjani v. Vipti, 1982 RRD 480 . 9. Mr. Garg has given much emphasis on the Full Court judgment given by this court in the case Suraj Ram v. State of Rajasthan, reported in 1995 (1) Western Law Cases (Raj.) 571 wherein the Full Court was of the view that the court can issue an interim injunction under circumstance which are not covered by Order 39 of C.P.C. in the interest of justice requiring issue of such interim injunction. And, also has held that the Court has inherent power to demand cash, security apart from Section 212 of the Act. Even under Section 12 of the Act, the Court can demand cash security if conditions of sub-section (1) are satisfied i.e. if there is a case for grant of injunction or appointment of receiver as the Court can always make a conditional order directing that if a cash security is offered the injunction or appointment of Receiver shall not operate. 10. In reply to the argument advanced on behalf of the petitioner Mr. C.S. Goyal appearing on behalf of the respondents submits that the petitioners claim themselves to be the khatedar tenant of the disputed land because their name had appeared in the revenue record as Shikmi in samvat 2012. Actually, they are not khatedar tenants of the land in question. It is not disputed that the land belongs to the Deity of the temple and in view of the judgment in Prabhu Dass v. State of Rajasthan, 1933 RRD 319 it is established law that the deity is perpetual minor and no tenancy right can be acquired against the minor and also in the case Ram Pratap v. Board of Revenue, reported in 1993(1) WLC Page 759 that Deity of the temple is perpetual minor and the land shall remain khudkasht even though it may be cultivated by any one. 11. Similar view has been taken by this Court in the case Ram Lal v. Board of Revenue, 1991 RRD Page 6 that khatedari right did not accrue to sub-tenant and that the restrictions imposed under Section of the Rajasthan Tenancy Act do not apply to idol of temple as it is a perpetual minor. 12. 11. Similar view has been taken by this Court in the case Ram Lal v. Board of Revenue, 1991 RRD Page 6 that khatedari right did not accrue to sub-tenant and that the restrictions imposed under Section of the Rajasthan Tenancy Act do not apply to idol of temple as it is a perpetual minor. 12. It is further submitted that in view of the order dated 23.2.95 passed by the Board of revenue, the Tehsildar Bayana (receiver) has taken the possession of the disputed land in his receivership on 29.3.1995. 13. Mr. Goyal submits that the petitioners have placed much reliance on the decision of the Full Bench decision of this High Court in the case of Surja Ram (supra). In this very case in Para 8 it has been held that the earlier decision rendered in Birji v. Board of Revenue, 1979 RRD 294 lays down correct law and it has been held that there may be circumstances other than so those mentioned in Section 212 of the Rajasthan Tenancy act, in which the Court has to exercise its inherent power. If need be, in exercise of inherent power, the Revenue Court may direct to file cash security on an application under Section 212 of the Rajasthan Tenancy Act, even when the conditions enumerated in Section 212 are not satisfied otherwise the object of Section 212 to prevent another party from doing anything to defeat the natural justice would be frustrated. 14. After hearing the rival contentions of the parties and going through the pleadings of the case and after perusing the relevant provisions of Tenancy Act and judgments cited before me, I am of the firm view that the and in question belongs to the Deity of the temple which is the perpetual minor and therefore, to protect the interest and right of the Deity it is very necessary that the Receiver is appointed. Hence. in the present case the Receiver was rightly appointed. And, the defendant is allowed to cultivating he land in question with the condition to deposit cash security as awarded by the learned Revenue Appellate Authority vide its order dated 23.2.95. 15. I find no good ground to interfere in the judgment passed by the Revenue Appellate Authority and the Board of Revenue. 16. And, the defendant is allowed to cultivating he land in question with the condition to deposit cash security as awarded by the learned Revenue Appellate Authority vide its order dated 23.2.95. 15. I find no good ground to interfere in the judgment passed by the Revenue Appellate Authority and the Board of Revenue. 16. In view of the above observation, the writ petition does not survive and the same deserves to be dismissed, with no orders as to cost.Writ Petition dismissed. *******