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2004 DIGILAW 605 (RAJ)

Bhanwar Lal v. State of Raj.

2004-04-16

A.K.PUROHIT

body2004
PUROHIT, MEMBER–This revision has been filed under section Rajasthan Tenancy Act, 1955 (in short ``the Act) against the judgment of learned Settlement Officer-cum-Revenue Appellate Authority, Sirohi dated 30.3.2002. (2). Brief facts of the case are that the present applicant filed a revenue suit under Sections 88 and 188 of the act before learned Sub-Divisional officer, Sirohi along with an application under Section 212 of the Act for temporary injunction, in which he stated that the land in dispute situated in village Posaliya bearing khasra Nos. 340, 341, 342 and 345 total 22 bighas 10 biswas. It is stated that in the year Svt. 2012 and on the date the Rajasthan Tenancy Act came into force Kering son of Bhana Suthar was in possession of the above land as tenant so he automatically became khatedar tenant. It is also stated that by a registered sale deed dated 13.2.63 the disputed land was sold by Kering to the present applicant and the possession was also handed over to plaintiff. The present applicant also stated that the non-applicant No. 3 was wrongly entered as khatedar in the revenue record at the time of resumption of jagir of Murti Mandir sanwaliaji and the applicant alleged that the non-applicants are bent upon to evict the applicable forcibly. Hence, he has prayed for temporary injunction. In this application, the applicant further stated that on behalf of Murti Mandir Sanwaliaji the present non-applicants have no legal right to evict the applicant because it is only ``Shri Devsthan Board, Sirohi which is competent authority to evict him. (3). Sub-Divisional Officer, Sirohi after hearing both the parties by its order dated 24.9.2001 issued temporary injunction in favour of the applicant and against the non-applicants, against which the present non-applicant No. 3 through its Chairman, Shri Saremal Soni filed an appeal before Settlement officer-cum-Revenue Appellate Authority, Sirohi, who by his judgment dated 30.3.2002 allowed the appeal and set-aside the order of learned Sub-Divisional Officer, Sirohi dated 24.9.2001. Aggrieved by the judgment of learned Settlement Officer-cum- Revenue Appellate Authority, Sirohi dated 30.3.2003, the applicant preferred this revision petition before the Board. (4). I have heard learned counsel for both the parties. (5). Aggrieved by the judgment of learned Settlement Officer-cum- Revenue Appellate Authority, Sirohi dated 30.3.2003, the applicant preferred this revision petition before the Board. (4). I have heard learned counsel for both the parties. (5). Learned counsel for the applicant has argued that Kering son of Bhava Suthar was the khatedar tenant of the disputed land from whom the present applicant purchased the disputed land on 13.2.63 by a registered sale deed and was in possession of the disputed land since 13.2.63. The Trial Court has rightly issued temporary injunction in his favour on the basis of evidence on record, whereas there was no ground to set aside the order of the Trial Court before the Settlement Officer-cum-Revenue Appellate Authority. He has also argued that the erstwhile Sirohi State issued a notification by which ``Shri Devsthan Board, Sirohi was appointed as a trustee of Murti Mandir Sanwaliaji and Kering son of Bhava was in possession of above land as a tenant and the applicant has purchased the disputed land of the temple from khatedar tenant Kering, as such the non-applicants have no right to evict him. (6). On the other hand, learned counsel for non-applicant No. 3 has urged that the disputed land bearing khasra Nos. 340, 341, 342 and 345 admeasuring 22 bighas 10 biswas situated at revenue village Posaliya is a khatedari Doli land of Murti Mandir Sanwaliaji. Kering son of Bhava was the pujari of the temple. Pujari Kering son of Bhava illegally got entered his name as khatedar of the disputed land and subsequently sold it to the present applicant. This sale by Kering son of Bhava to the present applicant was challenged by way of filing an application by Tehsildar, Shivganj under Section 82 of the Act by making a reference to Collector, Sirohi and Distt. Collector, Sirohi has made a reference under Section 82 of the Act to the Board of revenue. Board of Revenue accepted the reference made by Collector, Sirohi by judgment dated 5.5.2000 and held that land be entered in the name of Mandir Murti Sanwaliaji. (7). This judgment of the Board dated 5.5.2000 was challenged by Kering before Honble Rajasthan High Court and the Single Bench of the Rajasthan High Court by judgment dated 14.11.2000 dismissed the writ petition filed by Kering. (7). This judgment of the Board dated 5.5.2000 was challenged by Kering before Honble Rajasthan High Court and the Single Bench of the Rajasthan High Court by judgment dated 14.11.2000 dismissed the writ petition filed by Kering. Against which Kering filed a special appeal before Division Bench of Honble High Court and that too dismissed the special appeal of Kering by judgment dated 20.12.2000. Therefore, in compliance of the judgments of the Board of Revenue and Honble Rajasthan High Court the land in dispute has been re-entered in the name of Mandir Murti Sanwaliaji. The present applicant who has allegedly purchase the land from Kering is void purchase and no relief to the present applicant can be given on account of this void transaction. (8). Learned counsel for the non-applicant has also argued that on the date of filing of the suit by the applicant he was not in possession of the land because possession of the land was already taken by the State Government on 21.6.2001 and the Tehsildar was functioning as a receiver of the temple land. So, on the date of filing of the suit as well as on the date of filing of the application under Section 212 of the Act the applicant was not in possession of the disputed land, hence legally he was not entitled for any temporary injunction. Learned Settlement Officer-cum-Revenue Appellate Authority, Sirohi has rightly accepted the appeal of the non-applicant and set-aside the order of Sub-Divisional Officer, Sirohi who granted temporary injunction to the applicant. (9). I have given my thoughtful consideration to the rival contentions of the parties and have gone through the record. (10). The question for determination in the present case is whether the present applicant has any legal right for temporary injunction under Section 212 of the Act and also legality of the order or judgment passed by the courts below. (11). It is not disputed that the disputed land is a maufi land of Murti Mandir Sanwaliaji. It is also not in dispute that Kering son of Bhava was the pujari of the temple, Kering got entered his name as a khatedar tenant along with Mandir Murti Sanwaliaji in the revenue record, that after his name was entered in the revenue record he sold the land of temple to the present applicant on 13.2.63 by registered sale deed. This sale by Kering to the present applicant was challenged by way of reference under Section 82 of the Act and the Board of Revenue accepted the reference and passed order against Kering and entries made in the revenue record in the name of Kering were set aside and it was directed to make entries in the revenue record in the name of Murti Mandir Sanwaliaji. This order of the Board was challenged before Honble High Court and learned Single Bench as well as Division Bench rejected the writ petition filed by Kering and ultimately disputed land has been re-entered in the name of Murti Mandir Sanwaliaji. The learned counsel for the present appellant has argued that even if he is considered as trespasser over the land, non-applicants are not legally entitled to evict him because the representative of the Mandir Murti Sanwaliaji is ``Shri Devsthan Board, Sirohi who was appointed, as a trustee by the erstwhile Sirohi State is only competent to evict him. It has come on record that the erstwhile Sirohi State appointed ``Shri Devsthan Board, Sirohi as a trustee by notification dated 1.4.49 but after resumption of jagir/maufi the disputed land being public property and the idol of mandir sanwaliaji being minor, in the interest of the temple the Tehsildar, Shivganj was appointed as receiver and he took possession of the land on 21.6.2001 Tehsildar on 16.7.2001 auctioned the land for cultivation for Rs. 72,000/- and 16,000/- on yearly basis. It is also not disputed that on the date of filing of the suit and application under Section 212 of the Act the present applicant was not in actual possession of the disputed land. Applicant in the revenue suit as well as in the application under Section 212 of the Act raising the arguments on the basis of the previous entries in the revenue record in the name of Kering. He has argued that because Kerings name was previously entered as tenant in the revenue record for the disputed land of Murti Mandir Sanwaliaji, he was legally entitled to sold this land to the present applicant and he has further argued that the judgment of the Board and Honble High Court referred above were only with regard to mutation entries so he is entitled by way of regular suit to claim his rights. (12). (12). The legal position with regard to land belongs to idol has been dealt with by number of pronouncements of the Board and Honble High Court. Section 13 Rajasthan Tenancy Act deals with the khatedari rights upon resumption. The idol is a khudkast land holder. In Gopal vs. deity of temple Hanumanji (1), and State vs. Ram Prasad (2), it was held that a Hindu deity is a perpetual minor in the eye of law land, therefore, for the purpose of Tenancy Act and Rajasthan Land Reforms and Resumption of Jagir Act, 1952, no khatedari rights accrue in favour of its pujari on resumption of maufi. On the other land, deity by operation of law automatically acquires khatedari rights in respect of khudkast land. (13). The question with regard to the land which is in cultivatory possession of third person, the legal position was not decided in State vs. Ram Prasads case, but Honble Rajasthan High Court in Jawahar Lal vs. Board of Revenue (3), held that land of idol should be deemed to be land cultivated personally and is a khudkast. The Board of Revenue also subsequently laid down that where the land is recorded in the name of Thakurji Maharaj it should be deemed to be khudkast of Thakurji. In Jawahar Lals case it was held that Section 5 (25) proviso dispense with the personal supervision in case of suffering physical disability. (14). In Punia vs. Murti Mandir Shri Gopalji (4), it was held that the deity acquires khatedari rights on resumption of jagir or the estate. The possession of such tenant would not change the situation if the land is of khudkast and when jagir was resumed and the idol acquires khatedari rights. In such khudkast land Thakurji, the deity, acquires khatedari rights and pujari cannot sell it, therefore, subsequent sells and mortgage of such land is void, as held in State vs. Shyonath (5). (15). In State vs. Mamraj (6), and State vs. Kalyan Das (7), it was held that such khudkast land even cultivated by the hired labour or by servant engaged by the Mahant (Shebiat) remained khudkast land and no khatedari rights accrue to such persons and the land is always to be entered in the khatedari of the idol not in khatedari of pujari, as held in Sanwaria Lal vs. State (8), (High Court). (16). (16). Section 15 of the Rajasthan Tenancy Act deals with khatedar tenants. In this section the idol being juristic person is a khatedar tenant. It has been held in Baijnath vs. ........... 1987 RRD 91 that an idol is a juristic person. In Mukherjees Hindu Law of Religious and Charitable Trust page 2142 and 2143. It is provided that idols interests are attended to by the person who has deity in his charge and who is in law its manager with all powers, which would in such circumstances, on analogy, being given to manager of the estate of an infant heir. (17). In Kalka Devi vs. M.R.T., Nagapur (9), it was held that when the property is given absolutely for worship of the idol it vests in idol as juristic person and the idol is capable of holding the property in some way as a natural person. In Panachand vs. Murti Mandir Shri Ratan Bihari (10), Prabhudas vs. State (11), and Murti Mandir Raghunathji vs. Kishan (12). It has been held that the idol is a perpetual minor; therefore, it can become khatedar tenant. Being a juristic person under the provisions of Rajasthan Tenancy Act the land belonged to idol it was held by it as a land holder jagirdar in certain conventing state laws and, therefore, after resumption of jagir/maufi the idol became khatedar tenant of the land and this khatedari rights were acquired either under Section 13 or under Section 15 of the Rajasthan Tenancy Act. (18). The expression ``tenant appearing in Section 15 is wide enough to include land of idol as a tenant. Under Section 5(43) there is no condition that to be a tenant the land should be cultivated personally, therefore, if the land is in possession of an idol it satisfies the condition of Section 5(43) and idol is a tenant within the meaning of Section 15 and acquires khatedari rights under Section 15 on commencement of the Act. (19). Where the land was in khudkast of idol it requires khatedari rights on resumption of jagir under Section 13 of the Act. When such resumption maufi all types of jagir the idol acquired khatedari rights under Section 13 or in the provisions of Jagir Law has acquired by either khudkast holder. (19). Where the land was in khudkast of idol it requires khatedari rights on resumption of jagir under Section 13 of the Act. When such resumption maufi all types of jagir the idol acquired khatedari rights under Section 13 or in the provisions of Jagir Law has acquired by either khudkast holder. During currency of maufi the land of idol is deemed to be held for public purpose within meaning of Section 16 (VI) of the Act and as such no khatedari right could accrue under this section to other persons except to the idol after jagir is resumed the idol acquires khatedari rights under Section 13 in the land in its khudkast and such land is protected by provisions of Section 46 and 16 (VI) and no khatedari rights can accrue in it to other and after accrual of the khatedari rights such land is held by the idol as a khatedar tenant and such land is held by if for the public purpose, therefore, no khatedari rights can accrue to the sub tenant under Section 19, as it has been held in Durga Lal vs. State (13), decided by the Larger Bench of the Board and also Sanwaria vs. State of Rajasthan and Ors. (14), (Rajasthan High Court). (20). Now question arises whether the idol can personally cultivate the land or not. In 1984 RRD 1, Larger Bench of the Board took a view that the land held in maufi by the deity even if they are cultivated by a person who is either pujari of manager cultivating the land on behalf of deity is not a member of such pujari/managers family or hired labour or a servant are included in the definition of land cultivated personally occurring in Section 5(25) of the Act. In view of the requirement of personal supervision over such persons having been dispensed with by inclusion of the word ``even absent of such personal supervision in that section. (21). However this view of the Larger Bench 1984 RRD (1) (supra), was later on differed in Shiv Challas case 1986 RRD page 238 (15), in which it was held that such land cannot be said to be land personally cultivated by the deity and such land cannot be said to be held for public purpose within meaning of Section 5(25). However this view of the Larger Bench 1984 RRD (1) (supra), was later on differed in Shiv Challas case 1986 RRD page 238 (15), in which it was held that such land cannot be said to be land personally cultivated by the deity and such land cannot be said to be held for public purpose within meaning of Section 5(25). The subsequent decisions of the Board of Revenue continuously followed the view taken by the Larger Bench of the Board of Revenue in 1984 RRD 1 (supra), and only judgment of the Board of Revenue which differed with the Larger Bench i.e. 1986 RRD 238 (supra), was again considered by subsequent Larger Bench of the Board in 1987 RRD 261 (16), and in that judgment again view taken earlier by the Larger Bench in 1984 RRD 1 (supra), was reiterated. (22). The proviso to Section 5(25) dispensed with personal supervision in case of the personal suffering from physical handicap, as held in Jawahar Lals case (supra), and the pujari cannot acquire khatedari rights in the land of idol so is transferring cannot get the pujari rights, as held in 1998 RLW (1) page 627 (17). (23). In 1990 RRD 405 while considering a ceiling case State vs. Gulab Chand (18), it was held that the land of the idol cannot be included in the holding of the pujari for determining the ceiling area for the land of pujari. Section 16(vi) of the Rajasthan Tenancy Act clear in its term as held in Durga Lals case (supra), that the land held by a deity is for public purpose within the meaning Section 16(vi) so khatedari rights cannot be acquired to any other person. With regard to the position of a deitys personally cultivating the land of the idol may be summarised as under: (i) A tenant before resumption is a tenant of khudkast and not full tenant, therefore, Section 15 does not confer khatedari rights on him. He cannot acquire khatedari rights under Section 19 also. (ii) After resumption, the idol became khudkast hold and acquires khatedari rights under Section 13 of the Act and the position of person cultivating the land is much at the most is that of sub tenant. He cannot acquire khatedari rights under Section 15 or Section 19 of the Act. He cannot acquire khatedari rights under Section 19 also. (ii) After resumption, the idol became khudkast hold and acquires khatedari rights under Section 13 of the Act and the position of person cultivating the land is much at the most is that of sub tenant. He cannot acquire khatedari rights under Section 15 or Section 19 of the Act. (iii) The possession of the pujari is only like a manager, who manages Sansthan including cultivation also. Therefore, he himself cannot acquire khatedari rights over the temple land. Since the land of the idol is held for public purpose within meaning of Section 16(vi) neither pujari nor any person cultivating the land can acquire khatedari rights in that land. (24). The status of the pujari of the temples land is like a servant of shebiat and he cannot acquire khatedari rights derogatory to the title of the idol. (25). The land of the idol or a person in disability of zeli of the deity is also not entitled to khatedari rights under Section 19 or Section 15 of the Act, as held by Rajasthan High Court in 1993 266 (19). Since the deity of the temple is a perpetual minor such land remains as khudkast even though it may be cultivated through anyone. Under Section 19 no khatedari could accrue to other person keeping in view the provisions of Sections 45 and 46 of the Act. Section 45 imposes restrictions on letting or sub- letting on the holder of khudkast and Section 46 clarifies the position that these restrictions shall not apply in case of minor. The idol being the perpetual minor, the restrictions do not apply, as held in 1994 RRD 1 (20), 1991 (2) RLR 657(21), 1991 RLR 161(22), 1991 (2) RLR 654 (23), and 1995 RBJ 587 (24). (26). In the present case, the present applicant is claiming possession of the temples land. The idol being the perpetual minor, the restrictions do not apply, as held in 1994 RRD 1 (20), 1991 (2) RLR 657(21), 1991 RLR 161(22), 1991 (2) RLR 654 (23), and 1995 RBJ 587 (24). (26). In the present case, the present applicant is claiming possession of the temples land. It has been held in a number of cases decided by the Board and the Honble Rajasthan High Court that when there is an allegation of waste, damage or alienation of the temples land, the court may issue temporary injunction, restraining the person in possession from wasting, damaging and alienating the land, but in the present case, admittedly, the land is not in possession of the present applicant and it is in possession of Tehsildar and the present applicant is claiming the title and possession of the land derogatory and adverse to the title of the deity. Therefore, in such case, the court can even invoke the inherent powers and appoint receiver. In present case Tehsildar, Shivganj is already functioning as receiver on the disputed land; therefore, he is allowed to continue the possession of the land as receiver in the interest of temples land. In 1994 RRD 579 (25), 1997 RBJ 583 (26), and 1997 RRD 589 (27), it was held that in case of a illegal sale of Thakurjis land, the appointment of receiver is the proper course. (27). Honble Mr. Justice K.S. Rathore of Honble Rajasthan High Court in Ram Singh Bankhan vs. Board of Revenue (28), after considering the various judgments of the Board of Revenue and High Court has held that the non-applicants have no right in the land belonging to idol and, therefore, the best remedy to protect the interest of the idol is to appoint receiver on the suit land. Again, Honble Justice Mr. S.K. Keshote of Rajasthan High Court in the case of Nathi vs. State of Rajasthan while dealing with similar controversy with regard to land of deity directed tehsildar to take possession from trespasser and possession to give a managing committed constituted by the High Court, 2002 RRD page 167 (29). (28). In Ramesh Chand Tiwari vs. State of Rajasthan, Honble Mr. (28). In Ramesh Chand Tiwari vs. State of Rajasthan, Honble Mr. Justice A.K. Parihar of Honble Rajasthan High Court while considering the status of deitys land has an interest of public at large and also in the interest of justice and also referring various judgments of the Double Bench and Single Bench of the High Court requested the Honble Chief Justice for his kind consideration to place the matter before the Full Bench and decide the controversy which arose on account of conflicting and contradictory orders passed by the revenue courts, 2001 RBJ (8) (30). (29). Shri Vardhachari in the second edition of his book ``The Law of Hindu Religious and Charitable Edowments at page 229 to 231 has explicitly discussed, which is as under:- The archakas are not entitled to the possession of the lands granted in favour of the deity for worship. In Gopalacharyulu vs. Lakshminarayana, the Register showed that the properties which were in the possession of the archakas belonged to the temple. It was argued that the archakas must be deemed to have a right in the property according to custom. This was not accepted. Narsimhacharayulu vs. Subbayya was a case in which the grant was to the temple but archakas maintained that the income from the lands of which they were in possession should be applied only to the limited purpose of the performance of the archakas deities. Such a plea based on a special usage was not upheld. In Venkatadari vs. Seshacharyulu, a suit by the trustee of a temple for ejecting the archakas who were in possession of the lands granted to the temple, the archakas pleaded that by usage and custom they had acquired a right to enjoy the property so long as they were willing to perform the nitya naivedya deepadhana service to the temple required from the archakas. It was held that there was no such right to them and that the question of allowing them to be in possession of the temple properties was an administrative matter left to the management, but legally, they had no right to appropriate the surplus income from the lands after the expenses of the particular service are met. It was held that there was no such right to them and that the question of allowing them to be in possession of the temple properties was an administrative matter left to the management, but legally, they had no right to appropriate the surplus income from the lands after the expenses of the particular service are met. In Brahmiah vs. Rajeswara Swamy Temple, the Madras High Court observed that where the archakas are in uninterrupted possession of the temple properties and are performing the religious ceremonies regularly, though they could not insist on possession as a matter of right, they should be put in possession of reasonable proportion of the lands for expenses of Nitya Naivedya deeparadhana and remuneration. But in Satyanarayan vs. Venkatappayya, the Supreme Court did not find it proper to make any provision giving the archakas possession of temple properties either towards their maintenance or for expenses of the services. Archakas and adverse possession. There can be no question of adverse possession between the temple and the archaka, when the lands belongs to the temple. The archaka, occupying a fiduciary position, cannot prescribe a title to the temple properties in his possession. If the trustee allows the archakas to be in possession of the temple lands and remunerate themselves from the surplus income of the lands, the possession will be permissive. If, on the other hand, the archakas are in possession of the lands, owing to the negligence of the trustees, their negligence will not affect the institution. Where the archaka himself is in the position of a trustee, there being no other trustee, again he cannot plead adverse possession against the temple. In H.R.E. Board V.P. Veeraraghvacharyulu, the archakas claimed a prescriptive title in the properties. Vardachariar, J, observed: ``The plaintiffs claim of prescriptive title is equally untenable. They and their predecessors in title have been all along archakas in charge of the existing temple and there have been no other trustees: the result is that if the inams could otherwise regarded as belonging to this temple, it is not open to them to plead their possession was adverse to the temple. In Venkatadri vs. Seshacharayulu, it was belonged to the temple, these can be no question of adverse possession as between the temple and the archakas. In Venkatadri vs. Seshacharayulu, it was belonged to the temple, these can be no question of adverse possession as between the temple and the archakas. The archakas were in possession of the properties in a fiduciary capacity and cannot have prescribed for it and, therefore, there was not bar of limitation. (30). In view of the legal provisions and the various authorities referred above, in the present case, so far as the title of the land is concerned, the Board of Revenue while deciding reference under Section 82 has held that the land be entered in the name of the temple and the judgment of the Board remained upheld by the decision of the honble Single Bench of High Court as well as Double Bench. So far as possession of the land and the application under Section 212 of the Act is concerned, the present applicant who has purchased the land by an illegal sale from Kering is admittedly not in possession of the land and he has also not been able to prove his possession over the land. He is not entitled to recover the possession from tehsildar pending the suit. So far as non-applicant No. 3 is concerned, he has also not established that the paramount interest in the present case is the interest of temples land. (31). Accordingly the revision petition is dismissed with above observations and it is directed to the Tehsildar that he will continue in possession of the temples land as a receiver and he will also place before the Collector the account of receipts and expenditure from the land in dispute and tehsildar will also make an application before Devsthan Department, State of Rajasthan to constitute a trust for the disputed land and on constitution of such trust by the Devsthan Deptt. the possession of the land will be handed over by the Tehsildar to such constituted trust till the decision of the suit. Pronounced in open court.