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2002 DIGILAW 771 (RAJ)

Mohd. Khan v. Mandir Thakurji

2002-04-12

H.S.PUNIA, M.L.JAIN

body2002
PUNIA, Member – This second appeal has been filed under Section 224 of the Rajasthan Tenancy Act, 1955 (In short ``the Act) against the judgment and decree passed by Settlement Officer-cum-Revenue Appellate Authority, Barmer-Jaisalmer dated 27.8.97, whereby the first appeal preferred by the appellant was dismissed and judgment and decree of the trial Court was upheld. (2). Heard the learned counsel for the appellant on admission of this appeal and perused the impugned judgment. (3). A suit for declaration under Section 88 of the Act was filed on behalf of the respondent with the averment that the land bearing khasra No. 32 area 135.18 bighas and khasra No. 41 area 84 bighas situated at Vill. Ujla was given to the respondent- plaintiff temple by the then Jagirdar and it was being cultivated by Mahant Lakh Purl, but by mistake the name of defendant- appellant Mohammed Khan was entered in the record as cultivator, but infact the defendant was never in possession of the suit land. It was also alleged that deity is a perpetual minor and land belonging to a deity is always being looked after by its pujari and such land cannot be transferred to any person, even by pujari. It was therefore prayed that the Quit land be recorded in the name of respondent-plaintiff. This suit was contested by the appellant-defendant and it was contended that at the time of settlement operation pujari Lakhpuri was not in cultivatory possession of the land and it was never a land of doli. The defendant was in cultivatory possession of the land from time of his ancestors, therefore this land was recorded in the name of defendant during the settlement operation and on resumption of Zagir the defendant became khatedar tenant of the land in dispute. At the time of resumption of Zagir the land in dispute was never declared as persona) property of the temple, therefore, suit was not maintainable. The learned trial Court framed necessary issues and after recording evidence of both the parties he decided issue No. 1 in favour of the respondent-plaintiff and decision of other issues was given against the appellant- defendant. Therefore suit filed by the respondent-plaintiff was decreed and deity was declared khatedar of the suit land. The appellant preferred first appeal against the judgment and decree of the learned trial Court which was dismissed by the impugned judgment dated 27.8.97. Therefore suit filed by the respondent-plaintiff was decreed and deity was declared khatedar of the suit land. The appellant preferred first appeal against the judgment and decree of the learned trial Court which was dismissed by the impugned judgment dated 27.8.97. Hence this second appeal. (4). The learned counsel for the appellant has argued that the respondent filed a suit for declaration of khatedari rights for the land in dispute but State of Rajasthan was not impleaded as a party in the suit, therefore, suit was not maintainable as the State of Rajasthan was a necessary party. The next contention of the learned counsel of appellant is that the plaintiff was not in possession of the suit land at the time of institution of the suit. Therefore, the suit was not maintainable. The main contention of the learned counsel for the appellant is that the suit land was a Zagir land and on resumption of Zagir the defendant became khatedar tenant of the land in view of provision of Section 9 of the Rajasthan land Reforms and Resumption of Zagir Act, 1952 (in short ``the Zagir Act) and this is a substantial question involved in this appeal. He has placed reliance upon Ram Lal vs. Board of Revenue (1), ``Bal Kishan vs. Board of Revenue (2) and ``Kanchan Bai vs. Board of Revenue (3). It is also contended that when muafi land of the temple was resumed w.e.f. 1.7.1963 and compensation has been paid then the land in dispute vested in the State and defendant being tenant of the land became khatedar tenant under Section 9 of the Zagir Act. (5). We have considered the submissions of the learned counsel for the appellant. (6). Both the courts below have considered the documentary as well as oral evidence of the parties and have given concurrent findings of fact that the land in dispute belonged to respondent- temple and Mahant Lakh Puri was pujari of the temple. The land is also recorded in the name of temple in Parcha Lagaan issued by Settlement Department. The appellant-defendant has admitted in his statement that he paid the rent to Mahant Lakh Puri during the period of Zagir. The land is also recorded in the name of temple in Parcha Lagaan issued by Settlement Department. The appellant-defendant has admitted in his statement that he paid the rent to Mahant Lakh Puri during the period of Zagir. The main contention of the appellant has been that on resumption of Zagir, the appellant-defendant being in cultivatory possession of the land became khatedar tenant of the land under Section 9 of the Zagir Act, which was not accepted by the courts below and it was held that the land in dispute was khudkasht land of the deity and no khatedari rights could have accrued to any person in khudkasht land of the deity. (7). The question of accrual of khatedari rights in the lands belonging to deities came for consideration in various cases before the Board of Revenue as well as Honble High Court. In the case of ``Ram Pratap vs. Board of Revenue (4), it was argued that lands belonging to idols were muafi land and they were resumed after coming into force of Zagir Act and the rights of deity/idols/temples were extinguished but this argument was found to be without force and it was held that the land held by idols/temples was khudkast land of the idols and idols being perpetual minor cannot be expected to cultivate the land personally. The Honble High Court in the case of ``Nathu and others vs. Board of Revenue (5), held that since the deity of temple is a perpetual minor the land shall remain khudkasht even though it may have been cultivated through anyone. In the case of ``Jamna Lal vs. Board of Revenue" (6), the land was muafi land in the name of temple and names of pujaris were also entered in the revenue record. The petitioners were sub tenants of the muafi land which stood resumed with effect from 1.7.63 and in that case khatedari rights were claimed under Section 19 of the Act. In that case it was held that nobody has any right to claim possession, title or interest over the land, which stood vested with the State Government by operation of law. Although in the present case both the courts below have given concurrent finding that the appellant-defendant failed to prove that land in question was resumed and compensation in lieu thereof was paid to the respondent-plaintiff. (8). Although in the present case both the courts below have given concurrent finding that the appellant-defendant failed to prove that land in question was resumed and compensation in lieu thereof was paid to the respondent-plaintiff. (8). In a recent judgment of our Honble High Court Ram Singh Bankhan vs. Board of Revenue (7), the disputed land was entered in the name of temple and name of sub-tenant/cultivator was also entered in the revenue record and in that case a question arose whether the sub-tenant or cultivator of the land could acquire khatedari rights in the disputed land under Section 19 of the Rajasthan Tenancy Act,1955. After considering various pronouncements of the Honble High Court it was held that the land in question belongs to the idol and idol is a perpetual minor in view of provision of Section 46. The land 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 khatedari rights in land of idol or temple cannot be acquired by anyone who cultivates it as a sub tenant. It is also well settled that deity is the perpetual minor and being perpetual minor the land in his name cannot be transferred and no khatedari rights could have accrued to such tenant. The learned counsel for the appellant has cited afore-mentioned case law which have also been considered. (9). In the case of Ram Lal vs. Board of Revenue there was finding to the effect that land in question was not khudkasht land of deity and after resumption of Zagir the land was treated as khatedari land of tenants. Case of Bal Kishan vs. Board of Revenue and Kanchan Bai vs. Board of Revenue are based upon judgment of the Apex Court reported in (8), ``Deepa vs. State of Rajasthan and also reported in (9). In that case respondent Ramchandra had sought eviction of the appellant in the-first proceeding by invoking Section 177 of the Act on the ground that latter had become liable for ejectment on the ground that he is using the land contrary to the purpose for which it was leased and in that case respondent had admitted that the appellant was a tenant. When the respondent lost his first suit in the trial Court and which was confirmed by the Board of Revenue the respondent filed an application before the Collector under Section 82 of the Rajasthan Land Revenue Act, 1956 for making a reference to the Board of Revenue to recommend making of entry in the record of rights in favour of idol Shri Charbhuja Ji and respondent being its pujari. The appellant took a defence that the record of rights could not be corrected to show the respondent as khatedar tenant but the Board of Revenue did not accept his plea. The appellant also approached Honble High Court but he did not get any relief on the ground that he had not filed khasra girdawari related to Smt. 2012. The appellant also filed an appeal under Section 136 of the Constitution before the Honble Supreme Court and khasra Girdawari was put on record which revealed that the name of appellant had been recorded as cultivator in Smt. 2012. in these facts and circumstances of the case it was held that land could not be regarded as khudkasht land of Zagirdar. In that case provision of Section 46 as well as Section 16 of the Tenancy Act were not considered. (10). On the contrary in the case of Ram Pratap vs. Board of Revenue (supra) of Honble High Court has held that the land held by idols/temples will be Khudkasht land of the idols relying upon the case of Nathu and others vs. Board o Revenue. In that case also D.B. of the Honble High Court held that since the deity of temple is a perpetual minor the land shall remain khudkasht even though it may be cultivated through anyone. In the present case both the Courts below have recorded a finding that the land in dispute was khudkasht land of respondent-plaintiff. Provisions of Section 45 and 46 have also been considered. Section 45 imposes restriction on letting or sub-letting by holder of khudkasht land and Section 46 clarifies the position that this restriction shall not apply in case of a minor. The idol being perpetual minor evidently this restriction does not apply in case of the idol. Same view was taken by Division Bench of the Honble High Court in Mohan Lal vs. Board of Revenue and others (10), decided on August 13, 1991. The idol being perpetual minor evidently this restriction does not apply in case of the idol. Same view was taken by Division Bench of the Honble High Court in Mohan Lal vs. Board of Revenue and others (10), decided on August 13, 1991. Therefore, the view taken in the case of Ram Singh Bankhan and Jamna Lal decided by the Single Bench of the Honble High Court found support from the view taken by Division Bench of the Honble High Court, therefore, view taken in cases of Bal Kishan vs. Board of Revenue and Kanchan Bai vs. Board of Revenue are not helpful to the appellant. Both these cases were decided on the legal position propounded by the Honble Supreme Court in Deepas case. In Deepas case the land in dispute was not recorded as khudkasht land of Zagirdar and then it was held that provisions of Section 10 of the Zagir Act are Inoperative in the matter. Thus the case law cited by the learned counsel for the appellant is distinguishable on facts also and ratio decided in those cases is not applicable to the facts of present case. The view taken by the courts below is supported by the law propounded by the Division Bench of our own High Court. (11). In view of the fact that both the courts below have given - concurrent findings of the facts and that the land in dispute was khudkasht land of the respondent-plaintiff-temple and the legal position enunciated by the Division Bench of the Honble High Court in Ram Prataps case, it is fully established that the disputed land belongs to the respondent-temple and the idol of the temple is perpetual minor in view of the provisions of Section 46 of the Act. Therefore, no khatedari rights could accrue in such land in favour of any person even if he had cultivated such land as sub tenant. It is also well settled that deity is a perpetual minor and the land recorded in the name of idol cannot -be transferred and no khatedari rights could have accrued to the transferee. Therefore, the main contention of the learned counsel for the appellant is without any force. (12). We have also considered other contentions of the learned counsel for the appellant. (13). Therefore, the main contention of the learned counsel for the appellant is without any force. (12). We have also considered other contentions of the learned counsel for the appellant. (13). The learned counsel for the appellant has argued that State of Rajasthan was a necessary party in the suit filed by the respondent-plaintiff but no such objection was taken before the courts below. In support of argument he has ``Harbhajan vs. Ramkaran" (11), which is not applicable to the facts of the case. In that case suit was filed for declaration as well as partition of the disputed land and in that case an observation has been made that State was a necessary pail In the present case, no relief for partition of holdings was sought by the respondent, therefore, it cannot be held that State of Rajasthan was a necessary party in the suit because there was no dispute between the respondent and State of Rajasthan. The dispute pertaining to the suit land was between the appellant and the respondent and presence of the State of Rajasthan cannot be deemed to be necessary for just decision of the case. (14). Another contention of the learned counsel was that the plaintiff was not in possession of the land at the time of institution of the suit, but this argument is also without any force. Both the courts below have given concurrent findings of facts and the appellant-defendant could not prove that he was in possession of the land in dispute at the time of settlement operation, therefore, concurrent findings of facts cannot be disturbed in second appeal. (15). The appellant also could not prove that the disputed land was resumed by the State and compensation was paid to the respondent- plaintiff. On the contrary respondent-plaintiff proved that the disputed land was khudkasht land of the respondent-plaintiff. Therefore, respondent was entitled for khatedari rights in view of the provisions contained in Section 10 of Zagir Act. (16). In view of the foregoing discussions the contentions of the learned counsel for the appellant are not sustainable and this appeal is devoid of any merit and there are no grounds for interfering in the concurrent findings of facts recorded by the courts below. Consequently this appeal is hereby dismissed at the admission stage. Pronounced in the open court.