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2011 DIGILAW 161 (MP)

Lilabai v. State of M. P.

2011-02-03

N.K.MODY

body2011
JUDGMENT 1. Being aggrieved by the judgment dated 13.4.2009 passed by ADJ, Rajgarh (Bioara) in civil appeal No. 1-A/2009 whereby the judgment dated 30.7.2008 passed by Civil Judge, Class-I, Khilchipur in civil suit No. 54-A/2007 whereby the suit filed by the appellants was decreed, was modified, the present appeal has been filed. 2. Appeal is admitted on the following substantial questions of law:- "Whether in the facts and circumstances of the case learned appellate Court committed error in setting-aside the judgment passed by learned trial Court?" 3. Short facts of the case are that appellant filed a suit for declaration and permanent injunction alleging that appellants are in occupation of land bearing survey No. 14 measuring 8.939 hector situated at village-Khilchipur. It was alleged that appellants are in occupation of land from the time of their ancestors. It was alleged that appellants are cultivating the land. It was alleged that name of Kanhaiyalal was recorded in the revenue record as Bhumiswami till Samvat 1919-20. It was alleged that in the year 1969-70 respondent recorded the name of temple Shri Laljidasji Maharaj and the name of Kanhaiyalal was recorded as Pujari. It was alleged that appellants came to know about the wrong entry on 26.6.2006 when the land was auctioned by the respondent. It was prayed that it be declared that appellants are owner of the suit property and respondent be restrained not to auction the same. The suit was contested by the respondent by filing the written statement wherein all the plaint allegations were denied. It was denied that Kanhaiyalal was the Pujari and appellants being legal representatives cannot claim the right of ownership over the land. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned trial Court decreed the suit against which appeal was filed which was modified, hence this appeal. 4. Learned counsel for the appellants argued at length and submit that the impugned judgment passed by learned appellate Court is illegal, incorrect and deserves to be set -aside. It is submitted that learned appellate Court committed error in modifying the decree passed by the learned trial Court. It is submitted that in the facts and circumstances of the case appeal be allowed and the impugned judgment passed by learned appellate Court be set-aside. 5. It is submitted that learned appellate Court committed error in modifying the decree passed by the learned trial Court. It is submitted that in the facts and circumstances of the case appeal be allowed and the impugned judgment passed by learned appellate Court be set-aside. 5. Learned counsel for the respondent/State submits that no illegality has been committed by learned appellate Court in passing the impugned judgment. It is submitted that appeal be dismissed. 6. From perusal of record, it appears that in the revenue record Ex.P/2 which is of the year Samvat 1919-20 the name of Kanhaiyalal was recorded as Bhumiswami. Ex. P/3 shows that in the year 1969-70 the land was recorded in the name of temple and name of Kanhaiyalal was recorded as Pujari. The same position continued thereafter. However, the name of Collector has been recorded as Manager as is evident from the document Ex. P/6. There is nothing on record which goes to show that how the name of Collector has been recorded as Manager. There is also nothing on record to show that at any point of time name of appellants was recorded as Bhumiswami. However, it was Mandir Laljidasji Maharaj recorded as Bhumiswami and name of Kanhaiyalal was recorded as Pujari. So far as recording of name of Collector as Manager is concerned, in the nature of Kanhaiyalal v. State of M.P., 1985 WN Note 212 this Court has held that the land belonging to temple and not to a public trust, Collector or any other authority has no right to interfere. In the matter of Kashi Bharti (d) Through L.Rs. v. State of M.P., 2009 RN 179 this Court has held that rights of pujari are heritable and proprietary. It is further held that he is entitled to continue as such in revenue record. In the matter of State of M.P.v. Keshar Bai, 2009 RN 165 while taking into consideration the provisions of Section 248 of MPLRC this Court held that land of temple not proved to be Government land and provisions of Section 248 of MPLRC are not attracted as it has no application to the land of private temple. In the matter of Mangidas v. State of M.P., 2009 RN 208 this Court held that rights of pujari are heritable and proprietary and right of plaintiff as pujari continuing from forefather cannot be taken away by executive instructions. In the matter of Mangidas v. State of M.P., 2009 RN 208 this Court held that rights of pujari are heritable and proprietary and right of plaintiff as pujari continuing from forefather cannot be taken away by executive instructions. In the matter of Gokul v. Bale, 1999 RN 30 this Cour1 held that change in Khasra entries cannot be made without hearing the party concerned. In the matter of Deviled Pandya v. State of M.P., 1994 RN 423, this Court had held that construction of managing committee without providing hearing Opportunity is in violation of principles of natural justice and cannot be sustained. 7. In the facts and circumstances of the case, this Court is of the opinion that learned appellate Court and also learned trial Court committed error in passing the impugned judgment. In view of this, the appeal filed by the appellants is allowed, and the impugned judgment passed by learned Courts below is set-aside. Case is remanded to learned trial Court to re-decide the suit after recording the evidence of the respondent. Respondent is directed to lead the evidence to justify that how the name of Collector was recorded as Manager and whether such type of entry is permissible? Parties are directed to remain present before the learned trial Court on 28.2.2011. 8. With the aforesaid observations, appeal stands disposed of. C.C. as per rules.