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2010 DIGILAW 118 (RAJ)

Murti Mandir v. Phelu

2010-01-15

G.K.TIWARI, RAKESH HOOJA

body2010
DR. HOOJA, M.—This is an appeal under Section 225 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the judgment dated 13.9.06 of Revenue Appellate Authority Sawai Madhopur. 2. Briefly stated, the facts leading to the appeal are that the respondent-plaintiff filed a suit against the deity Murti Mandir Shri Jugal Kishore Ji Maharaj (appellant-defendant) for declaration of sub-tenancy rights in the disputed lands which stand in the khatedari right of the deity. The trial Court of Sub-Divisional Officer Gangapurcity after hearing rival parties dismissed the suit by his judgment and decree dated 29.9.05 which was challenged by the respondent plaintiff through an appeal under Section 223 of the Act before Revenue Appellate Authority Sawai Madhopur who set aside the judgment and decree dated 29.9.05 of Sub-Divisional Officer Gangapurcity and remanded the case by his judgment dated 13.9.06 to the trial Court for re-hearing and re-decision. Aggrieved against the impugned remand order of Revenue Appellate Authority Sawai Madhopur the instant appeal under Section 225 of the Act is filed before us. 3. We have heard the learned counsels of both the parties. 4. The learned counsel for the appellants has contended that the deity Murti Mandir Jugal Kishore Ji Maharaj is the recorded khatedar tenant of the disputed land. The respondent plaintiff is claiming sub-tenancy right in the deity land whereas there is no provision of grant of sub-tenancy right in the land of the deity which is considered to be a perpetual minor and as such legally treated to be in the personal cultivation of the deity land even if somebody else is cultivating it on behalf of the deity. The trial Court had framed sixteen issues but most of the issues are redundant and unnecessary; the only substantial issue is whether a cultivator on behalf of the deity on deity land can be declared as a sub-tenant under the Act. This crucial issue has been elaborately discussed and decided by the trial Court and there is no provision of declaring anybody as a sub-tenant on the deity land. But Revenue Appellate Authority by ignoring the legal position of the deity land and the main issues decided by the trial Court, mechanically remanded the case to Sub-Divisional Officer for giving issuewise decision. But Revenue Appellate Authority by ignoring the legal position of the deity land and the main issues decided by the trial Court, mechanically remanded the case to Sub-Divisional Officer for giving issuewise decision. It was also contended that when all the evidence is available on record, it is the duty of Revenue Appellate Authority to decide the case finally issuewise according to the provisions of Order 41 Rule 24 of the Civil Procedure Code (C.P.C.). The learned counsel cited 2009 (1) RRT 49 : RLW 2009(1) RJ 25, 2006 RRT 156 (HC), 2007 (1) RRT 385 (H.C.) in support of his contention. It was also pleaded that any entry of a name of a cultivator in khasra girdawari does not confer any khatedari right in deity land. The learned counsel cited 2000 RRD 95, 2005 RRD 333 : RLW 2005(2) RJ 342 in support of his plea. It was further submitted that the averment of the respondent-plaintiff that he has been depositing lagan (rent) to the deity as tenant-in-chief, is totally false, as no receipt or any document of this nature are put up before the court to prove the contention. The learned counsel prayed for quashing of the judgment of Revenue Appellate Authority. 5. Opposing the contentions of the appellant, the learned counsel for the respondent argued that the suit was filed way back in 1976 and still the litigation is going on unnecessarily. The respondent-plaintiff was the `Khikmi Kashtkar' (sub-tenant) of the deity land is clear from the entries in the khasra girdawaris of Svt. 2004 and 2012 to 2015. It was further contended that `Mahant' of the temple had executed a registered deed (Ex. A.-1), stating and confirming that the respondent was the `Shikmi Kashtkar' (sub-tenant) of the deity land and was also employed in the service of the deity. It was also submitted that the trial court had framed sixteen issues but none of the issue has been discussed and decided separately. The trial Court has given its judgment clubbing all issues together; as such the decision of the trial court is not keeping with the provision of Order 20 Rule 5 of the C.P.C. So Revenue Appellate Authority has not committed any illegality in setting aside the defective judgment of trial court and remanding the case to Sub-Divisional Officer for re-hearing and re-decision. It was also contended that the respondent plaintiff has been paying rent (lagan) to the deity, so he should be declared as the sub-tenant of the land in dispute. 6. We have given our thoughtful consideration to the rival contentions, perused the impugned judgments of lower courts and gone through the record. 7. Admittedly the disputed lands stand in the khatedari right of the deity `Murti Mandir Jugal Kishore Ji Maharaj'. The respondent-plaintiff wants to be declared as a sub-tenant of this deity land for which he has filed a suit under Section 88 and 188 of the Act for award of sub-tenancy right and grant of injunction against the appellant-defendant with respect to the suit land. The grounds on which the respondent-plaintiff is claiming sub-tenancy right in the suit land are that he is a `Shikmi Kashtkar' (sub-tenant) of the deity land for which he has produced khasra girdawari of Svt. 2004 and 2012-15, a registered agreement dated 23.4.1955 and averment that he has been paying lagan (rent) to the deity. As far as any entry in khasra girdawari as a cultivator of the land is concerned, such entry does not confer any khatedari right on the land allegedly so cultivated as is held by Hon'ble Rajasthan High Court in Nand Lal and Ors. vs. Board of Revenue and Ors. as reported in 2000 RRD 95. As far as cultivation of the deity land by any cultivator is concerned, cultivation of the deity land shall be deemed to be the cultivation of the deity in light of section 46 of the Act, treating the deity as a perpetual minor. Hon'ble Rajasthan High Court has held in Rampratap and Ors. vs. Board of Revenue and Ors. as reported at page 1 of RRD 1994 that the land shall be deemed to be cultivated personally by the deity even in absence of its personal supervision as it is a settled law that an idol is a perpetual minor and it is not expected of a deity (idol) to cultivate the land itself. Thus, it is crystal clear that a deity land is invariably cultivated by somebody else on behalf of the deity, but deity will be deemed to be in personal cultivation of such land. Therefore, there is no question of conferment of khatedari right on deity's land on the basis of cultivation as an alleged `Shikmi Kashtakar'. Thus, it is crystal clear that a deity land is invariably cultivated by somebody else on behalf of the deity, but deity will be deemed to be in personal cultivation of such land. Therefore, there is no question of conferment of khatedari right on deity's land on the basis of cultivation as an alleged `Shikmi Kashtakar'. The contention of the appellant that the then `Mahant' or `Pujari' and executed a registered agreement that the appellant was in the cultivatory possession of the land and he was employed in the service of the deity in lieu of remuneration of Rs. 200/- annually, does not entitle him to become a sub tenant of the deity land. Needless to emphasise the point that a pujari or Mahant has no right to alienate the land of a minor (idol) in any manner by entering into any contractual agreement with any person to the detriment of the deity. Thus, the grounds on which the appellant is seeking sub-tenancy right in the deity land are baseless and do not sustain legal scrutiny. 8. It is pleaded by the respondent that the judgment of the trial Court is not issuewise. Perusal of the judgment and case file of the trial Court shows that the trial Court has framed fifteen issues but bare perusal of these issues shows that most of these are irrelevant and redundant. For example issue No. 1 is whether the deity Murti Mandir Jugal Kishore Ji is khatedar tenant of the disputed land. This is an admitted fact by both the parties and in the very plaint the plaintiff has categorically averred that the deity is the khatedar tenant of the disputed land. Obviously this issue is wholly redundant. Similarly, the issue No. 2 whether Seva Das and Chela Das were pujaris of the deity is irrelevant in view of the fact that this is nowhere related to the conferment of the alleged sub-tenancy right on the plaintiff. The issues No. 4 & 5 again are redundant in view of the fact that certain transactions allegedly took place which were corrected later on and presently the averments and purported facts of issues No. 4 & 5 are no longer in existence and have no relevance. The issues No. 4 & 5 again are redundant in view of the fact that certain transactions allegedly took place which were corrected later on and presently the averments and purported facts of issues No. 4 & 5 are no longer in existence and have no relevance. Similarly issue No. 11 and 12 are also redundant in view of the fact that the deity has already been impleaded in the case, whereas this issue is about non-joinder of deity as a necessary party. Thus, it is evident that issues have been framed mechanically and casually without application of mind and, therefore, most of the issues are irrelevant and redundant. Perusal of provisions of Order 20 Rule 5 of the CPC makes it clear that if finding upon anyone or more of the issues is sufficient for the decision of suit, a suit can be decided accordingly. In the instant case, the only substantial issue for consideration and decision is whether the plaintiff-respondent is entitled to be declared as a sub-tenant of the deity land. There is no provision under the Act for declaration of any person as a sub-tenant of a deity land due to his purported cultivatory possession and employment in the service of the deity. There is absolutely no evidence of the receipts of lagan allegedly paid by the appellant to the deity as tenant-in-chief. Secondly neither the deity can ever be a tenant-in-chief nor any person cultivating the deity land on behalf of the deity can be treated as a sub-tenant. The facts and law relating to this controversy has been properly examined by the trial Court which has reached a correct conclusion in keeping with the facts of the case and provisions of law that there is absolutely no provision for declaration of sub-tenancy right on a deity kind. Thus, the judgment of the trial Court is just and proper whereas Revenue Appellate Authority has failed in making proper appreciation of facts and law and erred in setting aside the judgment of the trial Court. Therefore, the impugned judgment of Revenue Appellate Authority is illegal and erroneous and deserves to be set aside. 9. In view of the foregoing discussion the appeal is allowed and the impugned judgment dated 13.9.06 of Revenue Appellate Authority Sawai Madhopur is set aside and the judgment dated 29.9.05 of Sub-Divisional Officer Gangapurcity is upheld. Pronounced.