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Madhya Pradesh High Court · body

2008 DIGILAW 1429 (MP)

Kashi Bharti (d) through L. Rs. v. State of M. P.

2008-12-10

A.K.SHRIVASTAVA

body2008
JUDGMENT 1. The plaintiffs have assailed the judgment and decree passed by learned District Judge, Ratlam in Civil Appeal No. 68-A/96, whereby their appeal has been partly allowed by decreeing their suit for injunction. Learned trial Court dismissed the suit of plaintiffs which was for declaration of Bhumiswami right, correction of revenue entry as well as for injunction although it was held by learned trial Court in para 11 of its judgment while deciding issue No.5 that plaintiffs arc entitled to retain 20 Beeghas of the land out of the total land in question which is 6.700 hectares. 2. In brief the case of plaintiffs is that the agricultural land, description whereof has been mentioned in the plaint has been entered in the name of temple Shri Shankar Ji through Pujari Kashi Bharti son of Nagu Bharti and Nathugir son of Gangagir Gusai. The suit land was given to the predecessors of plaintiffs hundred years ago from the date of filing of the suit (suit was filed on 16.7.1990). 3. It is the further case of plaintiffs that the suit land was given to their predecessors to establish a temple of Shri Shankar Ji and for maintenance the land in question was given to them by the then Ruler. Accordingly, plaintiffs' predecessors made a temple of Shri Shankar Ji and continued to possess the land in question which was given for maintenance. It has also been pleaded in the plaint that since no Patta was given to cultivate the land, as a result of which the then Ruler on 30.8.1911 gave Patta to the predecessors of plaintiffs to look after the temple and for its maintenance. A right to dig well was also given in the Patta. Earlier the plaintiffs' predecessors and after their death, plaintiffs are possessing the temple as well as the land in question. The plaintiffs have further pleaded that by operation o flaw, on coming into force of M.P. Land Revenue Code, 1959 (in short' the Code') they have acquired Bhumiswami right and, therefore, a declaratory decree has been sought praying therein that they be declared Bhumiswami of the suit property. It has also been prayed by plaintiffs that the name of Collector (defendant No.2) be deleted from the revenue record. It has also been prayed by plaintiffs that the name of Collector (defendant No.2) be deleted from the revenue record. A decree of injunction has also been sought against the defendants-State Government that the land in question which is in the name of deity Shankar Ji and which is being possessed by plaintiffs be not put to auction and plaintiffs may not be dispossessed. By amending relief clause of the plaint, it has also been prayed by plaintiffs that they are entitled to continue their names in the revenue record as Pujari in the same manner which was recorded earlier. 4. The State Government-defendants refuted the plaint averments by filing written statement. In para 13 it has been pleaded that rightly the name of Collector has been endorsed in the revenue record though it has been pleaded by plaintiffs in para 13 of the plaint that without giving any notice and providing opportunity of hearing to them, the name of Collector has been endorsed in the revenue record. The defendants have prayed that the suit of plaintiffs be dismissed. 5. On the basis of averments made in the plaint and the denial in the written statement, learned trial Court framed necessary issues and after recording the evidence of the parties though dismissed the suit, but, while deciding issue No.5 has categorically held in para 11 of its judgment that the status of plaintiffs is that of Pujari and in that capacity they are entitled to retain 20 Beeghas of land, out of total land in dispute. 6. The plaintiffs being dissatisfied with the judgment and decree of learned trial Court dismissing their suit filed first appeal. On going through the record of learned first appellate Court it is gathered that defendants-State did not file any cross-objection though issue No.5 has been partly decided against them. Learned first appellate Court after hearing parties came to hold that suit of plaintiffs is liable to be decreed in part and eventually decreed the suit of plaintiffs for injunction. Rest of the findings arrived at by learned trial Court were affirmed by learned first appellate Court. 7. In this manner present second appeal has been filed by plaintiffs. 8. Learned first appellate Court after hearing parties came to hold that suit of plaintiffs is liable to be decreed in part and eventually decreed the suit of plaintiffs for injunction. Rest of the findings arrived at by learned trial Court were affirmed by learned first appellate Court. 7. In this manner present second appeal has been filed by plaintiffs. 8. This Court on 26.2.1998 admitted the appeal on the following substantial questions of law : "(i) Whether because of the grant of patta by the then Darbar (Ruler of the estate) in favour of the predecessors of plaintiff they and present plaintiffs acquired Bhumiswami rights". (ii) Whether mutation of name of Collector , without notice and opportunity of hearing to plaintiff is illegal? 9. The contention of Shri V.A. Katkani, learned counsel for the appellants is that it has been held by learned trial Court that plaintiffs are the Pujari of temple of Shankar Ji for whom the Patta was given and this finding has been affirmed by learned first appellate Court, but, it was not challenged by defendants in appeal by filing any cross-objection and thus the said finding became final. The further contention of learned counsel is that from the revenue record which has been filed by the plaintiffs, throughout right from the very beginning, it is gathered that earlier plaintiffs' predecessors were recorded as Pujari and after their death, name of the plaintiffs has been entered as Pujari of the said temple. By taking aid of the decision of this Court Ghanshyamdas and others v. State of M.P. and another, 1995 RN 235, it has been argued that the rights of Pujari are heritable and proprietary and these rights cannot be taken away by executive instructions and if that is the position, by stroke of pen, names of appellants as Pujari in the revenue record should not have been deleted. It has also been put- forth by learned counsel that by deleting the name of plaintiffs as Pujari from the revenue record, the name of Collector which has been endorsed is bad in law for the simple reason that the same was done without giving any notice and providing any opportunity of hearing to the plaintiffs. On these premised submissions, it has been prayed by learned counsel that this appeal be allowed. 10. On these premised submissions, it has been prayed by learned counsel that this appeal be allowed. 10. On the other hand, Shri Anand Pathak, learned Government Advocate submitted that the suit of plaintiffs has been rightly dismissed so far as conferral of Bhumiswami right on them is concerned. Learned Government Advocate has also placed reliance on the decision of this Court Ramrato Baba v. Smt. Bismilla Usmani and others [2006 RN 124 = 2006 (1) MPU 429] and has submitted that the land in question was given to the deity and since temple or deity has not filed any suit, therefore, for this additional reason suit be dismissed. It has also been put-forth by learned Government Advocate that the two Courts below have given concurrent finding of fact that land in question belongs to the deity, therefore, appellants are not entitled for any relief. Regarding Substantial Question of Law No. (i) : 11. On going through the Patta (Ex. P-4) which is of the year 1923-24 it is revealed that the land in question was given to temple Shankar Ji and Partavgir was appointed as Manager because in column No.2 of the Patta (Ex. P-4) it has been mentioned that "Aathla Shankar Ji Va Aihtimam Partavgir" (temple Shankar Ji under the management of Partavgir). Needless to emphasis, Partavgir is the ancestor of plaintiffs. Further on going through certified copy of Khasra (Ex. P-7) which is of the year 1956-57 (Samvat 2013) it is revealed that in column No.6 which is column of' Krishak', the name of temple Shankar Ji through Pujari Gangagir son of Pratapgir has been mentioned and thereafter throughout this type of entry continued. For the first time in the year 1992-93 in Kishtbandi Khatouni (Ex. P-5) name of Collector, Ratlam as Manager has been mentioned though temple Shankar Ji has been shown to be the Bhumiswami. Since the suit has not been filed by the temple or by the deity and has been filed by Kashi Bharti and Nathugir, who are heirs of Partavgir, therefore, Bhumiswami rights cannot be conferred on them. I do not find any merit in the contention of learned counsel for the appellants that because undisputedly temple Shankar Ji has been shown to be the Bhumiswami in the revenue record, therefore, plaintiffs who are heirs of Partavgir have become the Bhumiswami. I do not find any merit in the contention of learned counsel for the appellants that because undisputedly temple Shankar Ji has been shown to be the Bhumiswami in the revenue record, therefore, plaintiffs who are heirs of Partavgir have become the Bhumiswami. True, the name of temple Shankar Ji has been recorded as~ Bhumiswami of the land in question through Pujari who are the plaintiffs, but the suit has not been filed on behalf of the temple or the deity and prayer of plaintiffs have not sought any declaration that temple or deity Shankar Ji is the Bhumiswami and it be declared so. According to me, the status of plaintiffs is that of Pujari and it has also been so proved from the revenue record. Indeed the finding of learned trial Court while deciding issue No.5 is that plaintiffs are Pujari and this finding has not been disturbed by learned first appellate Court nor any cross-objection has been filed by the State and thus the said finding of learned trial Court became final. Hence, according to me, the plaintiffs have not acquired Bhumiswami rights on account of grant of Patta by the then Darbar (Ruler of the estate) in favour of the predecessors of the plaintiffs, but their status is of Pujari. 12. This Court in Ghanshyamdas (supra) while analyzing the law in paras 16, 18 and 22 has categorically held that rights of Pujari are heritable and proprietary and they cannot be taken away by executive instructions. The learned single Judge placed reliance on the decisions of Supreme Court Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiar of Sri Shirur Muti, AIR 1954 SC 282 and Mst. Raj Kali Kuer v. Ram Rattan Pandey, AIR 1955 SC 493 . In this context I may also profitably place reliance on another decision Sadashiv Giri and others v. Commissioner, Ujjain and others [1985 RN 317]. In this view of the matter, since Partavgir who was the original Pujari of the temple Shankar Ji, the plaintiffs, who are his heirs are entitled to get their names continued as Pujari because the status of Pujari is heritable as well as proprietary and the plaintiffs are entitled for this relief which they have also sought byway of amendment in their plaint. 13. 13. The substantial question of law No.(i) is thus answered that plaintiffs have not acquired Bhumiswami right but they are entitled to get their names continued as Pujari in the revenue record. Regarding Substantial Question of Law No. (ii): 14. There is specific pleading of the plaintiffs that without sending any notice to them and providing any opportunity of hearing, all of a sudden by a stroke of pen, their names have been deleted and the Collector, Ratlam as Manager has been mentioned in the revenue record. On going through the revenue record (Ex. P-7), which is of the year 1956-57 it is revealed that the names of plaintiffs were continuing as Pujari of the temple. In the Khasras of 1976-77 to 1979-80 (Ex. P-8) also Bhumiswami of the land in question temple Shankar Ji has been shown and the plaintiffs are shown to be the Pujari, though Collector has been shown as Manager, but, why the entry of plaintiffs as Pujari has been deleted in the later Khasra of year 1992-93 (Ex. P-5), there is nothing on record nor any material has been placed by defendants that by whose order name of plaintiffs as Pujari has been deleted from the revenue record. To me, if Tahsildar found that the entry of plaintiffs as Pujari in revenue record is wrong or incorrect he should have made enquiry after giving due notice to the plaintiffs as envisaged under section 115 of the Code. But, it appears that dehors to the said provision, the entry as Pujari of plaintiff has been deleted from the Khasra and therefore the procedure so adopted is wholly unwarranted under the law. According to the defendants, there was no necessity to give any notice to the plaintiffs in this regard and they have also so pleaded in para 13 of the written statement. But, to me, the procedure so adopted by defendants is bad in law. Division Bench of this Court in Shiv Narayan Sharma v. Tahsildar, Gwalior and others [ 1960 JLJ 1016 ] has categorically held that if there is any wrong entry in the revenue record it can be corrected only after giving notice to the other party and giving notice and opportunity of hearing to the other party is mandatory. Division Bench of this Court in Shiv Narayan Sharma v. Tahsildar, Gwalior and others [ 1960 JLJ 1016 ] has categorically held that if there is any wrong entry in the revenue record it can be corrected only after giving notice to the other party and giving notice and opportunity of hearing to the other party is mandatory. Thus, according to me, mentioning the name of Collector in the revenue record without giving any notice and opportunity of hearing to the plaintiffs and deleting their names as Pujari from revenue record is illegal. The substantial question of law No. (ii) is thus accordingly answered. 15. Resultantly, this appeal succeeds in part. Decree of learned first appellate Court decreeing the suit for injunction is hereby affirmed. The suit of plaintiffs is further decreed that they are entitled to get their names mutated in the revenue record as Pujari of the temple Shankar Ji who is the Bhumiswami of the suit land. Looking to the facts and circumstances, parties are directed to bear their own costs.