Rajasthan High Court - Jodhpur

Sher Singh And Ors vs B.O.R. And Ors on 4 September, 2023

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4176/1996

Sher Singh & Anr.

                                                                   ----Petitioner
                                    Versus
Board of Revenue for Rajasthan, Ajmer & Ors
                                                                 ----Respondent


For Petitioner(s)          :    Mr. Sudhir Sharma
For Respondent(s)          :    Mr. Harshit Bhurani for
                                Mr. LK Purohit, Govt. Counsel

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 16/08/2023 Pronounced on 04/09/2023

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

India has been preferred claiming the following reliefs:

"It is, therefore, most humbly prayed that by an appropriate writ, order or direction, the orders Annexures 2, 3 and 4 may kindly be quashed and respondents may kindly be directed not to disturb the possession of the petitioner in respect of the land dispute.

Any other order which this Hon.court considers just and proper be passed in favour of the petitioner.

Writ petition be allowed with costs."

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

counsel for the petitioners, are that the petitioners purchased

certain lands from the Pujaries of Shri Raghunathji situated in

khasra no. 51 of Village Khejriyali, Tehsil Siwana, District Barmer

on the basis of sale deed dated 14.09.1959, and mutation was

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opened and recorded as mutation no.14 in the favour of the

petitioners and the same was attested by the Sarpanch of the

concerned gram panchayat on 25.12.1959. The sale deed was

executed by one Roop Dass, and after his death, the respondent

nos. 3 to 7 succeeded Roop Dass.

2.1. Thereafter, on an application filed by the Tehsildar, Siwana,

the learned Additional Collector, Barmer vide the impugned order

dated 25.09.1992 made a reference under Section 82 of the

Rajasthan Land Revenue Act, 1956, to the Board of Revenue

(BoR) for Rajasthan, Ajmer, for setting aside the three mutations,

including the mutation made in favour of the petitioners, and for

making an entry in the revenue records, qua the land in question,

in favour of Shri Raghunathi Temple, Khejriyali.

2.2 The learned BoR vide the impugned order dated 25.01.1993

accepted the reference and set aside all the three mutation

entries, including the one made in favour of the petitioners and

restored the same in the name of the Deity. Thereafter, the

petitioners filed a review petition under Section 86 of the

Rajasthan Land Revenue Act, 1956 before the learned BoR, but

the same was dismissed vide the impugned order dated

08.01.1996.

3. Learned counsel for the petitioners submitted that the

mutation in question was attested on 25.12.1959, while the

reference in question was made after a huge delay of 34 years,

that too without any justification, and thus, the impugned orders

passed by the learned revenue authorities below are not justified

in law.

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3.1. Learned counsel further submitted that the petitioners are in

possession of the land in question from the year 1959, and that,

the land was recorded vide mutation no.14 in favour of the

petitioners, and the same was also attested by the Sarpanch of

the concerned Gram Panchayat on 25.12.1959.

3.2. Learned counsel also submitted that the petitioners maintain

that they are in rightful possession of the land in question,

because after the resumption of Jagirs, the petitioners' ancestors

were in lawful possession of the said land.

3.3. Learned counsel further submitted that the learned BoR

accepted the reference, so made after an inordinate delay and

thus, the impugned order passed by the said revenue authority

below is highly illegal and not sustainable in the eye of law.

3.4. In support of such submissions, learned counsel relied upon

the judgment rendered by the Division Bench of this Hon'ble Court

in the case of Mukna & Ors. Vs Board of Revenue (D.B. Spl.

Appl. Writ No. 287 of 2002, decided on 02.05.2017).

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

the respondents, while opposing the aforesaid submissions made

on behalf of the petitioners, submitted that the land in question

was recorded in the name of idol 'Doli Mandir Shri Raghunath Ji'

as Khudkasht land in settlement jamabandi of Samvat Year 2009,

and therefore, the Pujari-Late Roop Das of the Temple in question

had no right to transfer the land in question by way of the sale

deed.

4.1. It was further submitted that the Temple (Deity) became the

khatedar of the land in question after the resumption, by virtue of

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the provisions of Sections 9 & 10 of the Land Reforms and

Resumption of Jagirs Act, 1952; in view of the same, the transfer,

qua the land, as made by the Pujari of the Temple, was illegal, and

thus, rightly set aside vide the impugned orders.

4.2. It was also submitted that as per the settled proposition of

law, the Deity is a perpetual minor and in respect of the properties

held by it, no right, title or interest can accrue in favor of the any

transferee; therefore, the learned BoR has rightly allowed the

reference, vide the impugned order.

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

record of the case alongwith judgments cited at the Bar.

6. This Court observes that the petitioners had purchased the

land in question from Late Roop Dass- Pujari of the Doli Mandir

Shri Raghunath Ji, and the mutation was recorded; thereafter, the

Additional Collector made a reference for setting aside the three

mutations including the mutation bearing no.14 made in the name

of the petitioners. The learned BoR vide the impugned order

allowed the reference and set aside the mutation in question,

whereafter, the petitioners moved the review petition, which was

dismissed by the learned BoR vide the impugned order.

7. This Court is conscious of the judgment rendered by this

Hon'ble 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); relevant portion whereof

reads as under:

"8. At this juncture, this Court considers it appropriate to reproduce the relevant portion of the judgment rendered in the

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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.

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):

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"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.

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

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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 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

[2023:RJ-JD:27778] (8 of 9) [CW-4176/1996]

The State of Madhya Pradesh & Ors. Vs Pujari Utthan Kalyan Samiti & Ors. (Supra)."

8. This Court further observes that the land was recorded in the

name of Idol "Doli Mandir Shri Raghunath Ji" as Khudkasht land in

settlement jamabandi of Samvat Year 2009, and the Pujari, in an

illegal manner, transferred the same in favour of the petitioners.

9. This Court also observes that the reference was made by the

learned Additional Collector to the learned BoR, which is justified,

in light of the judgment rendered by the Larger Bench of this

Hon'ble Court in the case of Tara & Ors Vs Sate of Rajasthan &

Anr, (D.B.Civil Special Appeal No.185/2001, decided on

15.07.2015); relevant portion whereof reads as under:

"Question no.(v) Whether any time limit can be fixed for reference u/s 82 of the Rajasthan Land Revenue Act, 1956 and u/s.232 of the Rajasthan Tenancy Act, 1955 in respect of the land held by a Hindu Idol (deity). If so, to what extent? Answer:- No time limit has been fixed for reference under Section 82 of the Rajasthan Land Revenue Act, 1956 and under section 232 of the Rajasthan Tenancy Act, 1955 in respect of the land held by a Hindu Idol (deity), and thus a reference can be made within a reasonable time, which will depend upon the facts and circumstances of each case. Even if the fraud is alleged, the power must not be exercised after unreasonable period, such as, after several decades claiming rights over the land."

10. This Court also observes that 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 Matters, decided on

[2023:RJ-JD:27778] (9 of 9) [CW-4176/1996]

15.07.2015), and the same was followed by this Court, in the

afore-quoted judgment.

11. The judgment cited on behalf of the petitioners also do not

render any assistance to their case.

12. Thus, in light of the aforesaid observations and in view of the

aforementioned precedent law as well as looking into the factual

matrix of the present case, this Court does not find it a fit case so