Rajasthan High Court - Jodhpur

Doli Mandir Shri Thakur Ji vs State Of Rajasthan on 9 July, 2021

Bench: Vijay Bishnoi

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 8621/2021

Doli Mandir Shri Thakur Ji, Village Pal, Tehsil And District Jodhpur Through Devotee-Cum-Priest Sukha Ram S/o Purkha Ram Aged About 41 Years, R/o Thoriyo Ki Dhani, Pal, District And Tehsil Jodhpur.

----Petitioner Versus

1. State Of Rajasthan, Through Secretary, Department Of Revenue, Government Of Rajasthan, Jaipur.

2. District Collector, Jodhpur.

3. Deputy Commissioner, Devsthan Department, Jodhpur.

4. Tehsildar, Jodhpur.

5. Prakash Chand S/o Bhanwarlal, By Caste Oswal, Resident Of Barmer, Rajasthan (At Present Residing At G-27, Shastri Nagar, Jodhpur).

6. Sampatram S/o Bhanwarlal, By Caste Oswal, Resident Of Barmer, Rajasthan (At Present Residing At G-27, Shastri Nagar, Jodhpur).

7. Mishrimal S/o Bhanwarlal, By Caste Oswal, Resident Of Barmer, Rajasthan (At Present Residing At G-27, Shastri Nagar, Jodhpur).

8. Gautam S/o Bhanwarlal, By Caste Oswal, Resident Of Barmer, Rajasthan (At Present Residing At G-27, Shastri Nagar, Jodhpur).

9. Teli Devi W/o Bhanwarlal, By Caste Oswal, Resident Of Barmer, Rajasthan (At Present Residing At G-27, Shastri Nagar, Jodhpur).

10. Kewal Chand S/o Late Shri Sonraj, By Caste Oswal, R/o 15, Bohra Sadan, Dwarkapuri, Jamnalal Bajaj Marg, C- Scheme, Jaipur.

11. Bheemraj S/o Late Shri Sonraj, By Caste Oswal, R/o 15, Bohra Sadan, Dwarkapuri, Jamnalal Bajaj Marg, C- Scheme, Jaipur.

12. Hanumandas S/o Late Shri Sonraj, By Caste Oswal, R/o 15, Bohra Sadan, Dwarkapuri, Jamnalal Bajaj Marg, C- Scheme, Jaipur.

                                                               ----Respondents


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For Petitioner(s)             :    Mr Moti Singh




              HON'BLE MR. JUSTICE VIJAY BISHNOI

                             Judgment / Order

09/07/2021

This writ petition is filed on behalf of Doli Mandir Shri

Thakur Ji, village Pal, Tehsil and District Jodhpur through Shri

Sukha Ram son of Purkha Ram, resident of Thoriyo-ki-Dhani, Pal,

Tehsil and District, Jodhpur claiming himself as devotee-cum-

priest with the following reliefs:

"It is therefore most humbly prayed that this writ petition may kindly be allowed:-

● That by an appropriate writ, order and direction the order dated 08.02.2021 (Annexure-20) Passed by Tehsildar, Jodhpur may kindly be declare highly illegal, arbitrary and against the provision of Act of 1955 and same may kindly be quashed and set aside and further the application (Annexure-18) filed by the respondents, may kindly be rejected. ● That by an appropriate writ, order and direction the entry of the Jamabandi (Anexure-21) may kindly be directed to restore in the name of petitioner temple Shri Thakur Ji village Pal, Tehsildar Jodhpur may kindly be directed to enter the name of the Doli Banam Temple Shri Thakur Ji in land of village Pal, Khasara No. 93 and 93/1 rakba 81.13 Bigha and Khasra no. 4 Rakba 22 Bigha, 13 Biswa.

● That by an appropriate writ, order and direction the order dated 01.04.2012 (Annexure-16) Passed by Divisional Commissioner, Jodhpur may kindly be declare highly illegal, arbitrary and against the provision of Act of 1955 and same may kindly be quashed and set aside.

(3 of 7) [CW-8621/2021]

● That the any other relief, which this Hon'ble Court deems fit to protect and maintained the healthy judicial system in State of Rajasthan, by which the petitioner may get full justice may also be allowed."

Learned counsel for the petitioner has submitted that

the land of Khasra No.93 of village Pal measuring about 81 Bighas

and 13 Bishwas was recorded in the name of the petitioner prior

to the settlement proceedings, however, later on, the priest of the

petitioner-temple got himself recorded as Khatedar of the land

and thereafter sold it to various other persons. It is submitted

that later on as per the order passed by the State Government,

the land in question was again recorded in the name of petitioner-

temple and the said order came to be challenged by aggrieved

persons before this Court, however, this Court in the said

proceedings remanded the matter back to the Tehsildar, Jodhpur

to pass a fresh order after providing opportunity of hearing to the

aggrieved persons.

The Tehsildar, Jodhpur vide order dated 09.12.2004

held that the land of Khasra No.93 of village Pal measuring 81

Bighas and 13 Biswas belongs to temple and it was wrongly

recorded in the name of priest of the temple. The Tehsildar also

held that the sale-deeds executed by the priest of the temple in

favour of individuals are void ab initio and after relying on the

orders passed by the Devasthan Department and the District

Collector has held that the land in question be recorded in the

name of temple. It is submitted that pursuant to the order dated

09.12.2004 passed by the Tehsildar, the land is recorded in the

name of the petitioner-temple in the revenue record.

It is submitted that against the order dated 09.12.2004

passed by the Tehsildar, an appeal was preferred on behalf of

(4 of 7) [CW-8621/2021]

erstwhile Khatedars, which came to be dismissed by Divisional

Commissioner, Jodhpur vide order dated 01.06.2005. It is argued

that the order dated 01.06.2005 has attained finality as the same

has not yet been challenged by the erstwhile Khatedars.

Learned counsel for the petitioner has submitted that

one Shyam Bothra filed an appeal against the order dated

09.12.2004 before the Divisional Commissioner, Jodhpur in the

year 2012. The Divisional Commissioner vide order dated

10.04.2012 accepted the appeal and set aside the order dated

09.12.2004 passed by the Tehsildar. Against the order dated

10.04.2012, the State of Rajasthan preferred an appeal before the

Board of Revenue, however, the Board of Revenue also rejected

the said appeal vide order dated 04.03.2014, against which, the

State of Rajasthan has preferred a writ petition, which is still

pending.

Learned counsel for the petitioner has further

submitted that in the meantime, one of the persons, who was

earlier recorded as Khatedar of the land in question, moved an

application before the Tehsildar, Jodhpur with a prayer to record

his name in the revenue record in place of the petitioner-temple.

The Tehsildar after obtaining report of the Patwari concerned,

passed the order dated 08.02.2021 and issued a direction to

record the name of the private respondents in the revenue record.

Pursuant to the order dated 08.02.2021 passed by the Tehsildar,

the Patwari has sanctioned the mutation in the name of private

respondents vide Annexure-21.

Learned counsel for the petitioner has argued that the

action of the Tehsildar, Jodhpur of directing the Patwari concerned

to record the name of the private respondents in the revenue

(5 of 7) [CW-8621/2021]

record instead of the petitioner-temple is absolutely illegal. It is

further argued that in view of the orders passed from time to time

and in view of the decision of Full Bench of this Court in Tara and

Ors. vs. State of Rajasthan, 2015(3) RLW2721 (Raj.) the

land belonging to a temple cannot be recorded in the name of

Pujari or else as the temple is considered to be perpetual minor

and in such circumstances, the impugned action of the Tehsildar is

liable to be quashed and set aside. Learned counsel for the

petitioner has also argued that the order dated 10.04.2012 passed

by the Divisional Commissioner is also illegal and the same cannot

be sustained in the eye of law. Learned counsel for the petitioner

has, therefore, prayed that the order dated 10.04.2012 passed by

the Divisional Commissioner, Jodhpur and the order dated

08.02.2021 passed by the Tehsildar, Jodhpur may kindly be set

aside.

Having heard learned counsel for the petitioner and

having perused the material available on record, it is noticed that

against the order dated 10.04.2012, the State of Rajasthan had

preferred an appeal before the Board of Revenue, which came to

be dismissed on 04.03.2014 and being aggrieved with that the

State of Rajasthan preferred a writ petition before this Court and a

Coordinate Bench of this Court had dismissed the stay petition

against which, the State of Rajasthan had preferred D.B.Special

Appeal Writ No.736/2016, wherein, initially the Division Bench, on

11.11.2016, while issuing notices of the appeal had ordered for

maintaining status quo with regard to the land in question but

later on the said D.B.Special Appeal Writ No.736/2016 was

dismissed by the Division Bench of this Court vide judgment dated

21.08.2017. The judgment dated 21.08.2017 reads as under:

(6 of 7) [CW-8621/2021]

"An appeal is preferred to challenge the order dated 08.07.2016, whereby learned Single Bench dismissed the stay petition.

In appeal, the only argument advanced by learned counsel for the appellant is that the instant matter pertains to a land which was entered in the Revenue records as of deity's land and in the event of denial of the interim order as prayed for, the respondents would be in position to change the entire nature of the land and also be able to further transfer the same.

We are of the considered opinion that for such eventualities, adequate care is taken by the law and therefore, the denial of interim order in no manner will adversely affect any right of the appellant. The appeal, hence, is dismissed. The appellant-petitioner is at liberty to move an application for early hearing of the writ petition before learned Single Bench."

While allowing the appeal vide order dated

10.04.2012, the Divisional Commissioner has recorded a finding

to the effect that the land in question was not khudkasht land of

the petitioner-temple but was cultivated by its Pujari. After

observing this, the Divisional Commissioner has placed reliance

on the decision of the Revenue Board, Ajmer dated 12.04.2007 as

also on the orders passed by the District Collector, Jodhpur dated

27.06.2008 and 30.04.2010 respectively and further directed the

Tehsildar, Jodhpur to make sure the compliance of the above

referred orders. It was also noticed by the Divisional

Commissioner that the orders of the conversion of the land in

question took place in the year 1985 be also recorded in the