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2001 DIGILAW 358 (RAJ)

Mishru v. Board of Revenue

2001-02-28

A.R.LAKSHMANAN, BHAGABATI PRASAD BANERJEE

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Honble PRASAD, J.–The present appeal is filed against the decision of the learned Single Judge of this Court dated 23.11.2000 whereby he had dismissed the writ petition of the petitioner. (2). The question involved in the writ petition before the learned Single Judge related to the rights of the appellant qua a land which was earlier entered as a ``Doli land of the Temple Shri Laxmi Narainji. The case of the petitioner is that the ``Doli entered in the name of the temple was akin to Jagir of the temple and with the promulgation of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 such Jagir of the temple got resumed in the State. Gheesa son of Chela was entered as tenant of the land. From Gheesa the petitioner is alleged to have purchased the land. According to the petitioner, subsequently in a settlement operation instead of State Government, Temple of Shri Laxminarain was entered as a khatedar tenant of the land and Mishru, the present petitioner was entered as a sub-tenant. (3). A suit was filed against such entries. The bone of contention in the suit was that such entries could not have been made and it was not within the competence of the settlement authorities to alter the entries in the record of rights. Such suit filed by the petitioner was dismissed on 7.12.1988. The judgment had become final as no person has further challenged the dismissal of the suit. (4). According to the learned counsel for the petitioner, he has a right to challenge such entries notwithstanding the dismissal of the suit as the same were without jurisdiction. Further the case of the petitioner is that the suit was filed by the temple under Section 183 of the Rajasthan Tenancy Act, 1955 (referred to hereinafter as `the Act). The suit filed under Section 183 of the Act can only be filed against a trespasser. The petitioner was admittedly if not a khatedar tenant then a sub-tenant. There is difference between a sub-tenant and a trespasser. (5). Learned Single Judge considering the case of the petitioner dismissed the writ petition holding that the temple land cannot be recorded in the name of a private person. Such recording being an unauthorised act cannot be saved. The petitioner was admittedly if not a khatedar tenant then a sub-tenant. There is difference between a sub-tenant and a trespasser. (5). Learned Single Judge considering the case of the petitioner dismissed the writ petition holding that the temple land cannot be recorded in the name of a private person. Such recording being an unauthorised act cannot be saved. The learned Single Judge has further said that the case relied upon by the petitioner, namely, Ram Lal vs. Board of Revenue (1), has no application and the case of the petitioner is covered by a decision of this Court rendered in Kehar Singh vs. Board of Revenue & ors. (2). (6). Learned counsel for the petitioner-appellant has reiterated his arguments raised before the learned Single Judge and has stressed that the judgment in Ram Lals case (supra) covers the case of the petitioner and no suit could be filed against the petitioner under Section 183 of the Act and the petitioner cannot be treated to be as a trespasser. (7). We have considered the submissions made by the appellant. (8). It is not disputed that the land was earlier recorded as a `Doli land of the temple. A land recorded in the name of the temple has to be cultivated by some one else. It cannot be expected that the deity itself will cultivate the land. If the deity cannot cultivate the land personally then in view of the doctrine of ``lex non cogit and impossibilia (the law does not compel a man to do what he cannot possibly perform) and ``impossibilium nulla obligatio est (the law does not expect the party to do the impossible), it can be said that the land was being cultivated by the deity through its Pujari and was a Khudkasht land of the deity. (9). Section 10 of the Act provides that the khudkasht land of the Jagirdar is to be deemed to be his khudkasht land. Section 10 of the Act reads as under:- ``10. Khatedari rights in khudhasht land.- As from the date of resumption of any jagir land, any khudkasht land of a Jagirdar shall be deemed to be held by the Jagirdar as a khatedar tenant and shall be assessed at the village rate. (10). Section 10 of the Act reads as under:- ``10. Khatedari rights in khudhasht land.- As from the date of resumption of any jagir land, any khudkasht land of a Jagirdar shall be deemed to be held by the Jagirdar as a khatedar tenant and shall be assessed at the village rate. (10). A Khudhasht land on resumption of jagir could not have been resumed to the State because it was deemed to be in the personal cultivation of the deity. A land which was personally cultivated by the deity being Khudkasht land cannot be resumed to the State and if it has subsequently been correctly recorded in the name of the temple then no wrong can be seen. (11). The issue whether the land belonging to the deity can be subject matter of alienation under any circumstance in law has been considered from time to time and again in Temple Thakurji vs. State of Rajasthan & ors. (3), Mangi Lal vs. State of Rajasthan (4), the Court held that such a transfer is not permissible. Again in Idan vs. State of Rajasthan & ors. (5), this Court has taken a view that under no circumstance, the land of the deity can be subject matter of transfer, nor any person, even having cultivatory possession, can claim khatedari right over it. In the said judgment a Division Bench judgment rendered in Ram Lal & Anr. vs. Board of Revenue & ors. (6), was considered and held to be per incuriam as doctrine of ``impossibilium nulla obligatio est was not considered. The said judgment in Idan (supra) stood affirmed by the Division Bench in D.B. Civil Special Appeal No. 767/2000 vide order dated 12.9.2000. Subsequent thereto Kehar Singh vs. Board of Revenue and others (supra), which has been relied upon by the learned Single Judge was decided reiterating the view taken in the case of Idan (supra) and that judgment has also been affirmed by the Division Bench in D.B. Civil Special Appeal No. 1208/2000. A similar view has been reiterated in Mukna Ram & ors. vs. Board of Revenue & ors. (7), decided by this Court on 26.9.2000 taking the same view. Thus, there is no justification in taking a view contrary to the view already taken by the Division Bench at several times. (12). The present petitioner is a purchaser of the land from Gheesa. vs. Board of Revenue & ors. (7), decided by this Court on 26.9.2000 taking the same view. Thus, there is no justification in taking a view contrary to the view already taken by the Division Bench at several times. (12). The present petitioner is a purchaser of the land from Gheesa. Gheesa has no authority to sell the land because he was only cultivating the land even according to the best case of the petitioner. A cultivator has no right to sell the land which is in the khatedari of some body else, in the present case the temple. (13). The suit filed by the petitioner for correction of the entries has earlier been dismissed and the rights of the temple have been concluded. It has become final that the temple is the khatedar of the land in question. In the present proceedings the suit was decreed by the Court of Sub-Divisional Officer, Sojat. In the suit filed by the temple an appeal was filed by the petitioner. In the appeal the temple was not impleaded as a party. Heera Lal son of Banshi Lal was the only party respondent. The suit was filed by the deity through Heera Lal but then Heera Lal was not a person who was alone to be impleaded as a respondent in the proceedings. The deity was to be impleaded/arrayed as respondent and having not impleaded the temple as party the petitioner has made his appeal incompetent on this score. If any interference is made as desired by the petitioner in the order of the Board of Revenue then it will have the effect of restoring the order of the appellate authority. The order of the appellate authority is bad in the eyes of law for the reason of misjoinder of temple as party respondent in appeal. Thus, on this ground also no interference is called for. (vide Maharaja Chintamani Saran Math Shahdeo vs. State of Bihar & ors. (8). (14). The Board of Revenue has categorically held that the settlement Department has no right to make any entry. In this light Mishru could not have been entered as a sub-tenant as he was not entered as a sub-tenant earlier. Thus, he is not liable to succeed and in this view of the matter, no interference is called for. (8). (14). The Board of Revenue has categorically held that the settlement Department has no right to make any entry. In this light Mishru could not have been entered as a sub-tenant as he was not entered as a sub-tenant earlier. Thus, he is not liable to succeed and in this view of the matter, no interference is called for. There is no force in the present appeal and the same is, therefore, liable to be dismissed. (15). In the result, the appeal having no merit is hereby dismissed.