Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 1534 (RAJ)

Ram Singh Bankhan v. Board of Revenue

2001-09-21

K.S.RATHORE

body2001
JUDGMENT 1. - Non-petitioner No.3 filed a suit for perpetual injunction on 16.12.83 under Section 18 of the Rajasthan Tenancy Act, 1955 against the deceased father of the petitioners. The plaintiff non-petitioner No.3 was manager of the temple of Moorti Mandir Shri Gangaji Maharaj situated in village Weir which was established by the ancestors of the plaintiffs. The plaintiffs were alleged to be the managers of the said temple and contended that since the times of their ancestors the plaintiffs were arranging for the Seva Pooja of the temple. 2. The land bearing Khasra No. 1835 measuring 4 bighas 1 biswa situated in village Puria Patti in the muafi of the temple which was continuing in the ownership and possession of the Idol since then and the Seva Pooja and the maintenance of the temple was being done through the earning of the said land. The deceased Jhamman and defendant non-petitioner No.4 had no connection with the suit land nor was Custodian Department in any manner connected with the same but the defendants wanted to grab the above land from the plaintiff non-petitioner No.3 and with this object the deceased defendant Jhamman got his name entered as sub-tenant of the above land in collusion with the Revenue Officers but the said order was cancelled on 5.12.1983 and the suit lands were ordered to be entered in the khatedari of the plaintiff non petitioner. Plaintiff non-petitioner No.3 also filed an application for issuing temporary injunction against the defendants for restraining them from interfering in the peaceful possession of the plaintiff non petitioner and also prayed for appointment of Receiver. On the application for temporary injunction submitted by the plaintiff non petitioner, the Assistant Collector Bayana vide his order dated 22.12.1983 appointed Tehsildar, Weir as Receiver on the suit lands and also ordered issuance of notices against the defendants. The judgment dated 22.12.1983 passed by the Assistant Collector, Bayana deceased defendant Jhamman filed an appeal on 27.12.1983 in the court of the Revenue Appellate Authority, Bharatpur and also filed an application under Order 41 Rule 27 of the Code of Civil Procedure on 19.11.1984. While the appeal of deceased defendant Jhamman was still pending in the court of R.A.A., Bharatpur the S.D.O. Bayana decided the appeal of the deceased defendant vide judgment dated 1.5.86. While the appeal of deceased defendant Jhamman was still pending in the court of R.A.A., Bharatpur the S.D.O. Bayana decided the appeal of the deceased defendant vide judgment dated 1.5.86. Deceased defendant Jhamman Singh again filed an application under Order 41 Rule 27 of the Code of Civil Procedure on 17.10.1986 in the court of the Revenue Appellate Authority, Bharatpur. The Revenue Appellate Authority, Bharatpur vide its judgment dated 16.1.1987 accepted the appeal filed by the deceased defendant Jhamman and the judgment of the Assistant Collector Bayana dated 22.12.1983 was set aside. Against the judgment dated 16.1.1987 passed by the Revenue Appellate Authority non-petitioner No.3 filed a revision petition before the Board of Revenue for Rajasthan Ajmer. During the pendency of the revision petition defendant Jhamman died on 6.10.1987 and the names of the petitioners were ordered to be substituted in this place in the revision petition. 3. The learned Board of Revenue accepted the revision petition filed by the plaintiff non-petitioner vide judgment dated 28.9.94 and the judgment of the Revenue Appellate Authority dated 16.1.87 was set aside and the judgment dated 22.12.83 passed by the Assistant Collector, Bayana was upheld. 4. The petitioner challenged in this writ petition the judgment of the Assistant Collector, Bayana dated 22.12.83 and that of Board of Revenue for Rajasthan, Ajmer dated 28.9.1994 on the ground that the learned Board of Revenue has misconstrued and misinterpreted the judgment of this Court in the case of Ram Pratap and Another v. Board of Revenue and Others reported in 1993(1) RLR 307 = 1994 R.R.D. Page 1 . The petitioners' contention is that they are not claiming any right in the disputed land and as such the pronouncement of this Court's judgment in the case of Ram Pratap (supra) has no applicability to the facts of the present case. 5. Learned counsel appearing for the petitioner further contended that the judgment passed by the learned Assistant Collector Bayana dated 22.12.83, by which, the Receiver was appointed on the disputed land without giving them a chance of filing written statement and the reply of the application for temporary injunction and deceased defendant Jhamman had filed appeal against ex parte ad-interim order passed by Assistant Collector, Bayana dated 22.12.1983 and as such there was no occasion for the deceased defendant Jhamman to place his case before the trial Court. 6. Mr. 6. Mr. Mehrishi further contended that in the appellate Court deceased defendant Jhamman had produced certified copy of the judgment of the District Rehabilitation Officer, Bharatpur dated 22.11.1983 and copy of the judgment of Settlement Commissioner (Collector Rehabilitation), Bharatpur dated 24.9.1984, copy of Jamabandi of village Weir for Samvat Year 2036 to 2039, copy of the judgment dated 1.5.1986 passed by the Sub Divisional Officer, Bayana and copy of agreement dated 25.8.1963 whereby Ram Narain, Pujari of plaintiff non petitioner No.3 had given the disputed land for cultivation to deceased defendant Jhamman on payment of Munafa and it had been proved from all the above documents produced before the Appellate Court that the deceased defendant Jhamman was cultivating the disputed land as sub-tenant since Samvat 2018 and was in possession of the same since them. But the learned Board of Revenue has completely ignored the above documents and has arbitrarily held that the defendant petitioners have not come out with the case that they were paying any rent of the disputed land to the Idol and the judgment of the learned Board of Revenue is against the record of the case and is patently illegal. 7. Mr. Mehrishi further contended that the appointment of Receiver is the harshest remedy and a person who is continuing in long and settled possession of lands cannot be deprived of his possession by appointment of a Receiver. This principle is totally ignored by the learned board of Revenue and it also wrongly placed reliance on the D.B. decision of this Court in the case of (2) Guman Singh and Others Vs. Board of Revenue and Others reported in R.L.W. 1992(1) Page 592 . 8. Mr. Mehrishi in support of the argument that the appointment of Receiver is a harshest remedy cited the judgments reported in (3) 1990 RRD 188; (4) 1989 RRD 620; (5) 1987 RRD 128; (6) 1987 RRD 12; (7) 1987 RRD 588; (8) 1986 RRD 1, (9) 1985 RRD 63; (10) (1986 RRD 520 and (11) 1998 (1) WLC 633. 9. In reply to the arguments advanced on behalf of the petitioner Shri Radhey Shyam Purohit learned counsel appearing for the respondent submits that the plaintiff non-petitioner No.3 being a founder/sepoy and performing Sewa Puja and also maintaining the temple out of the earning of the muafi land. 10. In support of the argument Mr. 9. In reply to the arguments advanced on behalf of the petitioner Shri Radhey Shyam Purohit learned counsel appearing for the respondent submits that the plaintiff non-petitioner No.3 being a founder/sepoy and performing Sewa Puja and also maintaining the temple out of the earning of the muafi land. 10. In support of the argument Mr. Purohit learned counsel for the respondent cited judgments reported in (12) 1991(1) RLR 161 and 1993(1) RLR 307=1994 RRD 1 and also referred Section 19 of the Rajasthan Tenancy Act, 1955 which deals with the conferment of the rights on certain sub-tenants and tenants of khudkasht on payment of compensation. "19-1 Every person who, at the commencement of this Act (a) was entered in the annual registers then current as a tenant of Khudkasht or sub tenant of land other than grove land, or (b) was not so entered but was a tenant of Khudkasht or sub-tenant of land, other than grove land." He also referred sub Section (2) of Section 46 which reads as under:- "2. Deity is perpetual minor-(clause(a)-Now it is settled law that the deity being a perpetual minor the land in his name cannot be transferred and no Khatedari rights could accrue to a sub-tenant under Section 46 and his land may be given on sub-lease under this section." 11. In view of the aforesaid provisions of law sub-tenant cannot acquire khatedari rights in land recorded in the name of idol under proviso to section 19(1) which stipulates that Pujari could not even make such claim because on account of Section 46 he as a sub-tenant could not acquire such rights derogatory to title of idol, a perpetual minor. Khatedari rights do not accrue in land belonging to a minor according to Section 46 of the Rajasthan Tenancy Act and this is now a settled law. The deity is, therefore, the khatedar of the disputed land. However, the petitioner being Shebait of the temple and at the best sub-tenant under the idol, Khatedari rights cannot accrue as the land was held by sub tenant only on the commencement of the Act. An idol .being perpetual minor its sub-tenants cultivating land has no right to transfer rights in land. Thus under section 45(4) sub-tenants cannot transfer lands. Such transfers are unlawful and void. The vendees, held, no better than trespassers. An idol .being perpetual minor its sub-tenants cultivating land has no right to transfer rights in land. Thus under section 45(4) sub-tenants cannot transfer lands. Such transfers are unlawful and void. The vendees, held, no better than trespassers. A land belonging to idol who, is minor and was managed by Pujaris given to another person for cultivation. Such cultivator is only a sub-tenant as contemplated by Section 46. Thus the Khatedari rights in land of idol or temple cannot be acquired by any one who cultivates it as the sub-tenants. 12. In support of the arguments Mr. Purohit cited a judgment reported in (13) 1994(1) RLR 364. Mr. Purohit referred provisions of Chapter III Clause 20 of Law of Receiver "The properties and interests of infants were under the peculiar and exclusive care of the Court of Chancery, it being a long established rule that infants are to be favoured in all things which are for their benefit, and not prejudiced by anything to their disadvantage. The property of infants is generally vested in, or in the possession of, guardians and trustees. The appointment of receivers for the protection of the property rights of infants, as against executors or other persons occupying fiduciary relations towards the infants estate, rests upon the general doctrine of trusts already discussed and is governed by the same general principles. 13. Mr. Purohit in support of argument placed reliance on the judgment reported in (14) 1996(1) RLR 79; (15) 1993 RRD 226 and (16) 1993 RRD 719. 14. It is further submitted by Mr. Purohit that receiver so appointed till date is still continuing. 15. In rejoinder Mr. 13. Mr. Purohit in support of argument placed reliance on the judgment reported in (14) 1996(1) RLR 79; (15) 1993 RRD 226 and (16) 1993 RRD 719. 14. It is further submitted by Mr. Purohit that receiver so appointed till date is still continuing. 15. In rejoinder Mr. Mehrishi submits that if at all the petitioners are considered to be gair Khatedar or trespasser then also without following due process of law they cannot be removed from the land and referred Section 180 of the Tenancy Act which stipulates that a tenant of Khudkasht or a Gair-Khatedar tenant or sub tenant shall also be liable, on applications to ejectment on any of the following grounds namely; (a) that the land held by such tenant or sub-tenant is in excess of the minimum area prescribed by the State Government for the district or part of the district in which such land is situated and ejectment from the excess area is sought by the landholder for the purpose of his personal cultivation, (b) that he is a tenant or sub-tenant holder from year to year. 16. Heard rival contentions of the parties and carefully gone through the provisions of Rajasthan Tenancy Act and also gone through the order passed by the courts below. 17. Admittedly, the land in question belongs to the idol and idol is a perpetual minor in view of the provisions of section 46 which is managed by a pujari and is given to any person for cultivation; such cultivator is only sub- tenant as contemplated by Section 46 then the Khatedari rights in land of idol or temple cannot be acquired by any one who cultivates it as the sub-tenants. It is also well settled that the deity is the perpetual minor and being a perpetual minor the land in his name cannot be transferred and no khatedari rights could have accrued to such tenant. 18. It is also true that the petitioner cannot challenge the appointment of Receiver for the protection of rights of the perpetual minor as in view of the provisions of Law of Receiver the property and interest of infants were under the peculiar and exclusive care of the Court of Chancery, it being a long established rule that infants are to be favoured in all things which are for their benefit, and not prejudiced by anything to their disadvantage. 19. 19. I am also of the view that the learned Board of Revenue rightly interpreted the judgment of the High Court reported in 1993(1) RLR 307=1994 RRD Page 1 wherein it was held that the non-applicants have no right in the land belonging to the idol and therefore, the best remedy to protect the interest of the idol is to appoint receiver on the suit land as held in (17) 1993 RRD 643. Since it is undisputed fact that the disputed land is entered in the name of the temple Shri Gangaji Maharaj and the name of the non-applicant is entered being cultivator of the land no rights whatsoever would accrue to anybody in the land belonging to the idol who is a perpetual minor. The lands in the name of the temple are meant for generating resources for the upkeep and maintenance of the temple.Therefore, looking to the aforesaid observations I find no good reason to interfere with the judgment of the learned Board of Revenue. The writ petition accordingly, rejected.Petition Dismissed. *******