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Madhya Pradesh High Court · body

2008 DIGILAW 1459 (MP)

Mangidas v. State of M. P.

2008-12-19

A.K.SHRIVASTAVA

body2008
JUDGMENT 1. Feeling aggrieved by the judgment and decree dated 24.7.1997 passed by learned 6th Additional District Judge, Ujjain in Civil Appeal No. 38-A/92 whereby the judgment and decree dated 10.10.1992 passed by learned 5th Civil Judge Class-2, Ujjain in Civil Suit No. 205-A/91 dismissing the suit of plaintiff-appellant has been affirmed, this second appeal has been filed under section 100, Code of Civil Procedure, 1908. 2. In brief, the suit of plaintiff is that the agricultural land, description whereof has been mentioned in para-1 of the plaint and which is the subject matter of the suit, is situated in village Gunaya, Tahsil Ghatiya, District Ujjain. The suit land has been entered in the name of Mandir Radha Krishna in the revenue record and the temple has been shown to be the Bhumiswami. The plaintiff is in possession of the suit land since the time of his fore-father. According to the plaintiff, the suit land was given by Ex-Rular Sawai Jai Singh Ji to Manohardas Baba who was the fore-father of the plaintiff for agricultural purpose and since then, according to custom of his family, the suit property is being possessed firstly by his fore- father and thereafter he is possessing the same. According to the plaintiff, he is the Bhumiswami having possession of the suit property. On 24.2.1984, the father of plaintiff namely Raghunathdas Ji died and the plaintiff is the sole heir of his father. The family tree has also been annexed to the plaint. 3. It has also been pleaded by plaintiff that his fore- father established Radha Krishna Mandir and the suit property was entrusted to the said temple, since then in the revenue record the suit property is entered in the name of Radha Krishna Mandir as Bhumiswami. The fore-father and after death, the plaintiff is managing the suit property which is in the Bhumiswami right. It has .also been pleaded by plaintiff that the State Government did not give any Nemnook (grant) because Radha Krishna temple is the personal property of the plaintiff's family and his ancestor. The fore-father of the plaintiff and after their death, plaintiff is paying the land revenue of the suit property and, therefore, the suit property which is in the name of Radha Krishna Mandir and which is the personal property of the plaintiff, the State Government has no right, title or interest in the suit property. The fore-father of the plaintiff and after their death, plaintiff is paying the land revenue of the suit property and, therefore, the suit property which is in the name of Radha Krishna Mandir and which is the personal property of the plaintiff, the State Government has no right, title or interest in the suit property. In the year 1979 the then Commissioner issued directions giving the land of different temples on lease by auctioning it, since then in the revenue record the Collector of the district is entered as Manager on the lands belonging to the temples and yearly the same are being given on lease by auctioning them. The State Government through its Home Department by an executive order No. 160-II-A (3), Bhopal dated 12.11.1964 directed to mention the name of Collectors as Manager on the lands belonging to the temples. The said order is without jurisdiction against the law as well as null and void and deserves to be set aside. 4. It has also been pleaded by plaintiff that arbitrarily without any jurisdiction, the Collector, Ujjain started to give some part of the suit property on lease by auctioning it, therefore, the plaintiff served notice under section 80, CPC on Collector, Ujjain on 23.3.1989 and when no reply of the said notice has been given the present suit has been filed by him praying that in accordance to the heritable right, the plaintiff is entitled to get his name mutated in the revenue record. The entry of the Collector as Vyawasthapak (manager) in the revenue record be deleted and a decree of perpetual injunction be granted in favour of the plaintiff against defendant/State Government that they should not interfere in the possession of the plaintiff. 5. The defendant-State Government filed written statement and pleaded that the suit land is the Government property and the land in question has been entered in the name of temple Radha Krishna as Bhumiswami in the revenue record. The name of plaintiff-Mangidas has been entered as Pujari and the name of Collector, Ujjain has been entered as Vyawasthapak (manager) in the revenue record. In this manner the possession of the temple Radha Krishna on the suit property is entered in the revenue record. The name of plaintiff-Mangidas has been entered as Pujari and the name of Collector, Ujjain has been entered as Vyawasthapak (manager) in the revenue record. In this manner the possession of the temple Radha Krishna on the suit property is entered in the revenue record. According to the defendant, the suit property is of Aukaf department of the State Government and, therefore, the State is having right to give the suit property on lease by auctioning it and hence the Collector in the capacity of Vyawasthapak (manager) has been rightly entered in the revenue record. 6. In para-15 of the written statement, it has been pleaded by defendant that in the year 1990-91 the suit property is entered in the Bhumiswami right of the temple Radha Krishna and the name of plaintiff has been entered as Pujari along with Collector, Ujjain who has been described as Vyawasthapak (manager) in the revenue record. The possession of temple has also been mentioned on the suit land. In earlier years also Mandir Radha Krishna has entered in the revenue record and from time to time the names of different Pujaris are mentioned in the revenue records. 7. Learned trial Court framed necessary issues and after recording the evidence of the parties, dismissed the suit. The appeal which was filed by plaintiff before learned first appellate Court has also been dismissed by the impugned judgment and decree. 8. In this manner, the present second appeal has been filed by the plaintiff assailing the judgment and decree passed by learned two Courts below. 9. On 19.1.1998 this Court admitted this second appeal on the following substantial questions of law : "(i) Whether the patta of the land was granted to the forefather of appellant and whether they acquired ownership over the land because of the operation of the law? (ii) Whether the land was granted to deity only and the forefather including appellant were managers only and whether the adverse finding on the point is perverse?" Thereafter one more substantial question of law was also framed by this Court on 10.12.2008 which reads thus: "(iii) Whether the learned lower appellate Court erred in substantial error of law in not allowing the amendment application filed by the plaintiff?" 10. The contention of Shri T.N. Singh, learned senior counsel for the appellant, is that vide document Ex. The contention of Shri T.N. Singh, learned senior counsel for the appellant, is that vide document Ex. P-l the suit property was given to Manohardas Baba who was the forefather of the plaintiff by the then Rular and, therefore, this document of title has been misconstrued by learned two Courts below. According to learned senior counsel, by this document a valid title of ownership was conferred to fore-father of the plaintiff and, therefore, if subsequently the suit property and the temple Radha Krishna has been mentioned in the revenue record of the erstwhile Gwalior State, would not dis-entitle the plaintiff to claim his Bhumiswami right on it after coming into force of the M.P. Land Revenue Code, 1959 (hereinafter referred to as 'the Code') by operation of law. 11. By inviting my attention to para-l and para-15 of the written statement filed by the defendant-State Government, it has been vehemently submitted by learned senior counsel that as per defendant's own case, the suit land has been entered in the Bhumiswami right of Radha Krishna Mandir and the name of plaintiff has been entered as Pujari and the name of Collector has also been mentioned as Vyawasthapak (manager). Hence, according to learned senior counsel, the plaintiff is not a total stranger or he is not having any right in the suit property. An alternative contention has also been put forth by learned counsel that as per the stand of defendant-State Government, the status of plaintiff as Pujari of Radha Krishna Mandir is established and, therefore, the plaintiff is entitled to get his name continued as such in the revenue record. 12. By addressing on the substantial question of law which was framed on 10.12.2008, it has been contended by learned senior counsel that learned first appellant Court erroneously and contrary to law has rejected the application filed by plaintiff to amend the plaint. 13. On these premised submissions, it has been argued by learned senior counsel for appellant that by allowing this second appeal the suit of plaintiff be decreed and the judgment and the decree passed by two Courts below dismissing his suit be set aside. 14. On the other hand, Shri Pathak, learned Government Advocate, argued in support of the impugned judgment and has submitted that the document Ex. 14. On the other hand, Shri Pathak, learned Government Advocate, argued in support of the impugned judgment and has submitted that the document Ex. P-l if taken into consideration in proper perspective manner, it cannot be said that the same is in respect to the suit property because the description which has been mentioned in Ex. P-l does not tally with the description of the suit property. No particular survey number etc. has been mentioned in the said document and if the suit property was given to Manohardas Baba who was fore-father of the plaintiff vide Ex. P-l, there should have been relevant entry in the revenue record in this regard. But, no revenue record has been filed by the plaintiff and, therefore, learned two Courts below rightly did not place reliance on Ex. P-l. 15. By hammering on the stand of plaintiff that by operation of law on coming into force of the Code, he became Bhumiswami of the suit property, it has been contended by learned Government Advocate that if the document Ex. P-5 which is khasra of Sam vat 1984 (corresponding year 1927) is taken into consideration in its stricto sensu, it would reveal that not only the temple Radha Krishna Ji but the suit land also has been entered as Milkiyat Sarkar, the Gwalior Government (property of Gwalior State) and, therefore, the suit property is of Aukaf department of the Government and such property would not vest in Pujari and the Pujari would not become Bhumiswami by operation of law on coming into force of the Code. In this context, learned Government Advocate has invited my attention to the decision of Supreme Court Kanchaniya (Mst.) and others v. Shiv Ram and others [1992 RN 194]. However, learned Government Advocate did not dispute the proposition that the plaintiff is the Pujari of the Mandir Radha Krishnaji and Mandir is the Bhumiswami of the suit property. 16. In this context, learned Government Advocate has invited my attention to the decision of Supreme Court Kanchaniya (Mst.) and others v. Shiv Ram and others [1992 RN 194]. However, learned Government Advocate did not dispute the proposition that the plaintiff is the Pujari of the Mandir Radha Krishnaji and Mandir is the Bhumiswami of the suit property. 16. By inviting my attention to the reasonings assigned by learned first appellate Court rejecting the plaintiff's application under Order VI Rule 17, CPC to amend his plaint, it has been contended that since the application is uncertain because it has not been stated in the proposed amendment application that in which particular year the name of plaintiff has been deleted from column No.3 and has been entered in column No. 12 and thereafter from that column also his name has been deleted, therefore, learned appellate Court has rightly rejected his application. It has also been argued by learned Government Advocate that no copy of khasra relating to proposed amendment in order to demonstrate that proposed amendment was necessary for deciding the real controversy of the suit was filed and, therefore, learned first appellate Court rightly rejected the application. On these premised submissions, it has been contended by learned Government Advocate that learned two Courts below by taking into consideration the factual aspect of the matter as well as of the law rightly dismissed the suit of the plaintiff and no interference is required in the second appeal. Regarding substantial question of law No.1: 17. On going through Patta Ex. P-1, it is difficult to hold that the same is in respect to the suit property for the simple reason that the description which has been mentioned in Ex. P-1 does not tally with the description of the suit property. In the said document any particular survey number etc has not been mentioned. Even for the sake of argument, if it is accepted that by virtue of said Patta the land in question was given to the plaintiff's fore-father Baba Manohardas, there should have been relevant entry in revenue record on the basis of the said Patta. But, the plaintiff did not file any such revenue record and, therefore, even if it is held that the Patta was granted to fore-father of appellant-plaintiff, it cannot be said that the plaintiff-appellant acquired Bhumiswami right over the disputed land by operation of law. But, the plaintiff did not file any such revenue record and, therefore, even if it is held that the Patta was granted to fore-father of appellant-plaintiff, it cannot be said that the plaintiff-appellant acquired Bhumiswami right over the disputed land by operation of law. Substaintial question of law No.1 is, thus, answered accordingly. Regarding substantial question of law No.2: 18. On bare perusal of a very important document Ex. P-4 which is the certified copy of Khasra Samvat 1984 (Corresponding year 1927), it is revealed that the Mandir Radha Krishna Ji is shown to be the property of Gwalior State and Pujari of the said temple Daulatram S/o Kishan Bairagi has been shown. The same position has been shown about the suit property also as the suit land has been shown to be the property of Gwalior State and the land has been shown to be the Muafi, in the revenue record. In the oldest revenue record khasra of Samvat 1984, which has been placed on record, the temple Radha Krishna Ji as well as the suit property is shown to be of Gwalior State and the disputed land has been shown to be Muafi land and, therefore, the said land is Government land. In the Kishtband Khatoni of the year 1986-87 (Ex. P-3) Mandir Radha Krishna has been shown to be the Bhumiswami of the suit land in column No.2 and Raghunathdas S/o Daulatdas has been shown to be the Pujari, the Collector Ujjain has been shown to be Vyawasthapak(Manager). The family tree Ex. P-2 has been proved by plaintiff. Accordingly Daulatdas was the son of Kishan Bairagi, Raghunathdas was the son of Daulatdas and Mangidas (plaintiff) is the son of Raghunathdas. In the khasra of Samvat 1984 (corresponding year 1927) Ex. P-4 the name of Pujari Daulatdas S/o Kishan Bairagi has been mentioned. Similarly in Kishtbandh Khatoni Ex. P-3 the name of Pujari Raghunathdas S/o Daulatdas has been shown and the plaintiff is the son of Raghunathdas. The disputed land is Muafi land and was given to the temple during the period of erstwhile Gwalior State and, according to sections 4,5,6, 13 and 16 of Qawayad Muafidaran Jujbe Arazi WaNakdi, Samvat 1991 (RiyasatGwalior) (in short 'Qawayad Muafidaran') the right of Pujari are heritable and proprietary. The name of Pujari Daulatdas S/o Kishan Bairagi has been shown in the Khasra of Sam vat 1984. The name of Pujari Daulatdas S/o Kishan Bairagi has been shown in the Khasra of Sam vat 1984. The name of Raghunathdas S/o Daulatdas as Pujari has been shown in Kishtbandh Khatoni Ex. P-3. The plaintiff is the son of Raghunathdas and, therefore, he will inherit the right of Pujari. Learned Single Judge of this Court in Ghanshyamdas and others v. MP. State and one another [1995 RN 235], while considering the various provisions of Qawayad Muafidaran and putting emphasis to section 4, 5, 6, 13 and 16 and by placing reliance on the decision of Supreme Court The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 and Mst. Raj Kali Kuer v. Ram Rattan Pandey, AIR 1955 SC 493 has categorically held that the rights of pujari under Qawayad Muafidaran are heritable and proprietary and their right cannot be taken away by executive instructions. According to me, the decision of Ghanshyamdas (supra) is applicable in the present case. 19. Apart from this, the defendant-State Government itself has admitted in para-1 and para-15 of the written statement that the land in question is in the Bhumiswami right of Mandir Radha Krishna and plaintiff is the Pujari of the said temple and his name is entered in the revenue record, therefore, when it is defendant's own case, the status of plaintiff as Pujari and this right conferred to him inheritance cannot be disputed. 20. Thus, I am of the view that the disputed land was given to the deity only and forefather of plaintiff were Pujaris and after their death, plaintiff appellant became Pujari by virtue of heritable right and, therefore, the judgment of two Courts below up to that extent is perverse. The decision of Supreme Court Kanchaniya (Mst.) ( supra) is not applicable in the present case because in that case the Government land was given on Patta by the Pujari and the Patta holder from Pujari was claiming the Bhumiswami right. Substantial question of law No.2 is, thus, answered according. Regarding substantial question of law No.3: 21. The decision of Supreme Court Kanchaniya (Mst.) ( supra) is not applicable in the present case because in that case the Government land was given on Patta by the Pujari and the Patta holder from Pujari was claiming the Bhumiswami right. Substantial question of law No.2 is, thus, answered according. Regarding substantial question of law No.3: 21. On going through the application for amendment filed before learned first appellate Court no where it is gathered that in which particular year, the name of plaintiff has been deleted from column No.3 of the Khasra and when it came into the knowledge of plaintiff, therefore, I am of the view that learned first appellate Court did not commit any error in dismissing the amendment application of plaintiff which is not certain. I have also gone through the reasonings assigned by learned first appellate Court rejecting the application and I find that the said reasonings are cogent and does not require any interference. Substantial Question of law No.3 is, thus, answered accordingly. 22. Resultantly, this appeal succeeds in part and it is hereby held that the plaintiff is the Pujari of the temple of Radha Krishna Mandir who is the Bhumiswami of the suit property. The suit of plaintiff is, accordingly, decreed in part and the judgment and decree passed by learned two Courts below is modified up to that extent. The plaintiff shall be free to file necessary application to the defendant to provide suit land to him as Pujari of the temple. If such an application is submitted, the same may be decided in accordance with law. Let copy of this judgment be sent to Principle Secretary, Revenue and Commissioner, Ujjain. Looking to the facts and circumstances, parties are directed to bear their own costs.