Rajasthan High Court - Jodhpur

Joga Ram vs Board Of Revenue And Ors ... on 1 November, 2023

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:38588]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 826/2002

Joga Ram

----Petitioner Versus The Board Of Revenue for Rajasthan at Ajmer & Ors.

                                                                        ----Respondent


For Petitioner(s)             :     Mr. Shailendra Gwala
For Respondent(s)             :     Mr. LK Purohit, GC

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

01/11/2023

1. The matter pertains to the year 2002, thus, was listed under

the category "Oldest Cases for Early Disposal".

2. This writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

"It is, therefore, most respectfully prayed that this writ petition may kindly be allowed and the impugned orders dated 30.11.1987 (2.12.1987) (Annexure-7), 24.6.1993 (Annexure-8), 26.11.1998 (Annexure-9) and 4.12.2001 (Annexure-11) passed by the S.D.O. Bali, Revenue Appellate Authority (Second), Jodhpur and Board of Revenue respectively may kindly be quashed and set aside.

Costs throughout may kindly be awarded to the petitioner.

Any other appropriate order or direction which this Hon'ble Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner."

[2023:RJ-JD:38588] (2 of 10) [CW-826/2002]

3. Brief facts of the case, as placed before this Court, by

learned counsel of the petitioner are that in a land bearing khasra

numbers 2255, 2256, 2259 and 2260 (old khasra nos.472 & 473)

situated in Narlai, Tehsil Desuri, District Pali, the petitioner was

having half share. At the time of first settlement, name of the

petitioner's father was recorded as one of the khatedars of the

land in question.

3.1. Thereafter, Deity Doli Banam Charbhuja Ji Temple through its

Pujari filed an application against the petitioner, which was

dismissed by the learned Assistant Land Revenue Officer, Jodhpur

vide order dated 18.01.1987; aggrieved whereby, the Deity filed

an appeal before the learned Additional Land Revenue Officer,

Jodhpur, which was allowed vide order dated 08.07.1987, and

while quashing and setting aside the aforesaid order dated

18.01.1987, the matter was remanded back to the learned

Assistant Land Revenue Officer, to decide the matter afresh after

given opportunity of hearing to the concerned parties, on the

following issues :

"1& D;k jktLFkku ys.M fjosU;w ,oa fjtEi"ku vkWQ tkxhj ,DV dh ykxw gksus ls iwoZ bl fooknxzLr Hkwfe ds dk"rdkjksa dks gsfjVscy ,oa VªkUlQjscy vf/kdkj Fks ;k ughaA ;fn vf/kdkj ugha Fks rks leLr Hkwfe efUnj dh [kkrsnkjh esa ntZ dh tkos A 2& iwoZ fely cUnkscLr ;k vU; jsDMZ ds vuqlkj iqwtkjh dkSu dkSu Fks] vc dkSu gS \ D;k VªLV ,DV ds rgr VªLV jftLVMZ gS ;k fdlh l{ke U;k;ky; }kjk iqtkjh ds vf/kdkj fdlh dks iznRr fd;s x;s A bu lHkh rF;ksa dh Nkuchu dj dkuwu bUnzkt djsa vU;Fkk l{ke U;k;ky; ls fu.kZ; gksus ij ml fu.kZ; ds v/khu fjekdZ fy[ks ! "

[2023:RJ-JD:38588] (3 of 10) [CW-826/2002]

Thereafter, as per the settlement, the Deity was recorded as

owner of the land in question.

3.2. Subsequently, the learned Sub-Divisional Officer (SDO),

Bali initiated the proceeding and passed the impugned order dated

30.11.1987, whereby the Tehsildar, Desuri was directed to cancel

the mutation entry made in favour of the petitioner and the

private respondent(s), and a fresh entry in relation to the land in

question was ordered to be made in the name of the Deity.

Against the said impugned order, the petitioner filed an appeal

under Section 75 of the Rajasthan Land Revenue Act, 1956

(hereinafter referred to as 'Act of 1956') before the learned

Revenue Appellate Authority (RAA) (Second), Jodhpur, which was

partly allowed vide the impugned order dated 24.06.1993.

3.3. Being aggrieved by the impugned order dated 24.06.1993,

the petitioner preferred second appeal under Section 76 of the Act

of 1956 before the learned Board of Revenue (BoR) for Rajasthan

at Ajmer, which was dismissed vide the impugned order dated

26.11.1998. Thereafter, the petitioner preferred a review petition

under Section 86 of the Act of 1956 before the learned BoR, which

was also dismissed vide the impugned order dated 04.12.2001.

Hence, the present petition has been preferred claiming the afore-

quoted reliefs.

4. Learned counsel for the petitioner submits that the learned

SDO passed the impugned order without giving any opportunity of

hearing to the petitioner and without duly considering the previous

judgment and decree passed in favour of the petitioner regarding

the land in question. Therefore, on that count alone, the impugned

[2023:RJ-JD:38588] (4 of 10) [CW-826/2002]

orders passed by the learned revenue courts below are not

justified in law.

4.1. Learned counsel further submits that the petitioner was

declared as khatedar by the judgment & decree dated 22.03.1973

passed by the Settlement Officer-cum-SDO, which had already

attained finality. Therefore, the impugned orders are not

sustainable in the eye of law.

4.2. Learned counsel also submits that the khatedari of the land

in question was recorded in the name of the petitioner's father

prior to the promulgation of the Tenancy Laws, and thus, at that

time, there was no question of making any revenue entry in that

regard. It was also submitted that the Deity was not recorded as a

Khatedar and the land in question was not a Khudkast land.

5. On the other hand, learned counsel appearing on behalf of

the respondents, while opposing the aforesaid submissions made

on behalf of the petitioner, submits that the land in question was

originally recorded in the name of Deity, which was later on

recorded in the favour of the petitioner through mutation no.817

and during inspection of the revenue records on 26.11.1987 it was

noticed by the learned SDO, Bali that holdings in the name of

Deity were wrongly recorded and the said error was rectified by

the concerned revenue authorities.

5.1. Learned counsel further submits that a bare perusal of the

Khautoni Bandobast pertaining to Samwat Year 2009 to 2028

makes it clear that the land in question was recorded in the name

of the Deity as Bhokta and the petitioner's father and others were

[2023:RJ-JD:38588] (5 of 10) [CW-826/2002]

mentioned as Upbhokta, and therefore, it is clear that the land in

question was belonging to the Deity.

5.2. It was also submitted that the land in questioned belonged to

the Deity since before the date of promulgation and coming into

force of the Rajasthan Tenancy Act, and therefore, the impugned

orders are justified in law.

6. Heard learned counsel for the parties as well as perused the

record of the case.

7. This Court observes that the petitioner was having half share

in the land in question, and his father was recorded as khatedar.

Thereafter, Deity Doli Banam Charbhuja Ji Temple through its

Pujari filed an application against the petitioner, which was

dismissed by the learned Assistant Land Revenue Officer, Jodhpur

vide order dated 18.01.1987. Against the said order, the Deity

filed an appeal before the learned Additional Land Revenue Officer,

Jodhpur, which was allowed vide order dated 08.07.1987, with the

directions as mentioned above.

8. Thereafter, the learned SDO, Bali initiated the proceeding

and passed the impugned order dated 30.11.1987, ordering

cancellation of the mutation entry made in favour of the petitioner

and the private respondent(s), and making a fresh entry in

relation to the land in question in favour of the Deity. Against the

said order, the petitioner filed an appeal before the learned RAA,

which was partly allowed vide the impugned order dated

24.06.1993. Against the said order dated 24.06.1993, the

petitioner preferred second appeal before the learned BoR, which

was dismissed vide the impugned order dated 26.11.1998; the

[2023:RJ-JD:38588] (6 of 10) [CW-826/2002]

review petition filed by the petitioner was also dismissed vide the

impugned order dated 04.12.2001.

9. This Court in the case of Deity Shri Pabuji Maharaj Vs

Board of Revenue & Ors (S.B. Civil Writ Petition No.

3589/2023, decided on 02.09.2023) made the following

observations:

"8. At this juncture, this Court considers it appropriate to reproduce the relevant portion of the judgment rendered in the case of Tara & Ors. (Supra) as well as the relevant portion of the judgment rendered in the case of Bhanwar Lal @ Bhanwar Das Vs State of Rajasthan & Anr. (S.B. Civil Writ Petition No.10967/2022, decided on 04.07.2023), as hereunder: Tara & Ors. (Supra):

"(i) Whether the land held in Jagir, by Hindu Idol (deity) as Dolidar or Muafidar cultivated by a person other than the Shebait/Pujari of the deity or by hired labour or servants engaged by its Shebait/Pujari as a tenant of the deity, such idol being treated as a perpetual minor, will still be regarded as land held in the personal cultivation of the deity or will such land be regarded as held in the tenancy by the person cultivating such land as tenant of a deity? Answer:- The question no.(i) is decided in favour of the State and against the Shebait/Pujari claiming the land to be saved by the Jagirs Act of 1952. The land held in Jagir by Hindu idol (deity) as Dolidar or Muafidar cultivated by a person other than the Shebait/Pujari of the deity personally or by hired labour or servants engaged by its Shebait/Pujari as a tenant of the deity, shall vest in the State, after the Jagirs Act of 1952. The Hindu idol (deity), even if it is treated to be a perpetual minor, could not continue to hold such land. Such land cannot be treated to be in its personal cultivation. A tenant of such land cultivating the land acquired the rights of khatedar of the State. Such land under the tenancy of a person other than Shebait/Purjari of Hindu Idol (deity) became khatedari land of such tenant. The name of Hindu Idol (deity) from such land had to be expunged from the revenue records with Shebait/Pujuri having no right to claim the land as Khatedar. Consequently, they had no right to transfer such lands, and all such transfers have to be treated as null and void, in contravention of the Jagirs Act 1952, and the land under such transfers to be resumed by the State.

[2023:RJ-JD:38588] (7 of 10) [CW-826/2002]

Question no.(iii) Whether such a Jagir land/Muafi held by the Shebait/Pujari of Hindu Idol (deity) in their name after the date of resumption of the Jagir (Muafi) can be alienated by them? If so, what is the effect? Answer:- The Jagir land/Muafi held by the Shebait/Pujari of Hindu Idol(deity) in their name after the date of resumption of the Jagir (Muafi) by the Jagirs Act of 1952 will not give them any right nor they could alienate the land. The alienation made by them of such land which was resumed/acquired by the State Government and for which claims were made and settled before the Jagir Commissioner, would be null and void and will have no effect".

Bhanwar Lal @ Bhanwar Das (Supra):

"13. After hearing learned counsel for the parties and perusing the record of the case and while keeping into consideration the judgment passed by Full Bench of this Hon'ble Court in Tara and Ors. Vs. State of Rajasthan, 2015(3) RLW2721 (Raj.), this Court is of the opinion that once the land has been consistently recorded as a temple/deity/doli land and has been marked as a Khudkasht for the same and there is no independent Khatedar having its existence in the land record from the beginning then any right cannot aggrieve any person merely because in the Khudkasht or deity he was acting as a sub-tenant. The consistency in the land record reflects the land in question belonging to the doli/temple/deity the perpetual minor and the category being Khudkasht.

14. In view of the above, no cause of interference is made out in the present petition and the same is accordingly dismissed. All pending applications stand disposed of."

9. This Court further observes that the land in question was recorded as a khudkasht land in the name of the Doli Shri Pabuji Maharaj at the time of settlement and the Pujari/ Shebait cannot acquire and get such land(s) registered in his name. In the present case, once the land(s) was recorded as a Temple land(s) and marked as khudkasht, neither the private respondents have any right on such land, nor any other person can claim such right, and if it is so done even by way of entry in the revenue records or otherwise, the same is liable to be held contrary to the settled proposition of law.

[2023:RJ-JD:38588] (8 of 10) [CW-826/2002]

10. This Court also observes that the land in question, being a khudkasht land(s), belonging to Doli Shri Pabuji Maharaj, which is a perpetual minor, the claim of the private respondents that they were the khatedars of the land for last 54 years, is of no consequence, because Doli Shri Pabuji Maharaj is a perpetual minor, and thus, the subject falls within the ambit of Section 6 of the Limitation Act, 1963.

10.1. In the case of Mangi Lal & Ors (Supra), it was held that "Section 46 of the Act, 1955 provides for exemption of obtaining khatedari rights in exceptional cases. It includes the case of a minor and a person incapable of cultivating his holding by reason of physical disability or infirmity. An idol/deity can fall to both the classes i.e. a minor as well as a physically disabled or infirm person and the manager or the State is under an obligation to protect the interest of such a minor or disabled person. No person can acquire Khatedari rights in the land belonging to a minor. The object is laudable and based on public policy and, therefore, the deity cannot be deprived of his property by such a transaction, which has fraudulently been entered upon by the Pujari himself. It is the obligation/function of the State to look after the welfare of the deity being a person, may be juristic, may be a person on account of fiction of law but incapable to protect its interest being a perpetual minor and disabled physically". Relevant portion of Section 6 of the Limitation Act, 1963 is also reproduced as hereunder:

"6. Legal disability.--

(1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified there for in the third column of the Schedule"

11. This Court further observes that the petitioner is the Devotee/Worshipper of the Temple and he has a right to take any action only in the interests of the Temple, including protection of the Temple land(s), as the same is a settled position of law, as per the judgment rendered by a

[2023:RJ-JD:38588] (9 of 10) [CW-826/2002]

Constitution Bench of the Hon'ble Apex Court in the case of M. Siddiq (Dead) Through LR (Supra).

12. This Court also observes that the private respondents' names were entered in the revenue records in relation to the khudkasht land in question; previously, the said land was registered in the name of Temple (Doli) under the khudkhasht category, and therefore, father of the private respondents, namely, Pema Ram, being the Pujari of Temple and thereafter, the private respondents as his legal heirs, cannot claim any right over such land. Thus, in the present case, the claim of the private respondents does not hold good, even as per the precedent law laid down in the case of The State of Madhya Pradesh & Ors. Vs Pujari Utthan Kalyan Samiti & Ors. (Supra)."

10. This Court further observes that earlier land in question was

recorded in the name of Deity Shri Charbhuja Ji, and

subsequently, it was mistakenly recorded in name of the petitioner

and other persons. After the revenue inspection dated 26.11.1987

learned SDO noticing such mistake ordered that the land in

question be recorded back in the name of the Deity and the

mutation entry in favour of the petitioner and other persons was

ordered to be cancelled.

11. This Court further observes that apart from the above, the

entire issue herein has already been settled by the Larger Bench

of this Hon'ble Court in the case of Tara & Ors. Vs. State of

Rajasthan (D.B.S.A.W. No. 185 of 2001 & Other Connected