Rajasthan High Court - Jodhpur

Bhura And Ors vs B.O.R. And Ors on 5 September, 2023

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:27771]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 148/1994

Bhura & Ors

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

                                                                     ----Respondent


For Petitioner(s)              :    Mr. Arvind Samdariya
For Respondent(s)              :    Mr. Harshit Bhurani for LK Purohit, GC

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 16/08/2023 Pronounced on 05/09/2023

1. This writ petitions under Articles 226 & 227 of the

Constitution of India has been preferred claiming the following

reliefs:

"Therefore, it is most respectfully prayed that this writ petition may kindly be allowed and a writ, direction or order in the nature of Certiorari, Mandamus or Prohibition or in any other appropriate form may kindly be issued quashing the impugned judgments Annex.3 to 6 passed by the courts below.

Any other relief favourable to the petitioners may kindly be granted."

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

counsel for the petitioners, are that a land - mutation (Khatoni)

no.177 total 13 Rakba 27 bighas 11 bishwa - situated at Village

Khardevla, Tehsil Badi Sadari, District Chhitorgarh was recorded in

the name of Shri Satya Narayan Bhagwan (Deity) through its

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Pujari Shankar Lal, and the said land in question is under

cultivatory possession of the petitioners, since the time of their

father and grandfather.

2.1 Thereafter, the respondent no.4-Pujari Shankar Lal instituted

a suit in the name of Shri Satya Narayan Bhagwan (Deity) against

the petitioners before the Assistant Collector, Nimbahada, seeking

dispossession of the petitioners from the land in question; the

learned Assistant Collector vide the impugned judgment dated

31.08.1978 ordered dispossession of the petitioners from the land

in question.

2.2 Aggrieved by the said judgment dated 31.08.1978, the

petitioners preferred an appeal before the learned Revenue

Appellate (RAA), Udaipur, which was dismissed vide the impugned

judgment dated 30.12.1985. Thereafter, the petitioners preferred

a second appeal before the learned Board of Revenue (BoR) for

Rajasthan, Ajmer and the same was dismissed vide the impgned

judgment dated 24.12.1992. The petitioner filed a review petition

before the learned BoR, but that too was dismissed vide the

impugned order dated 20.10.1993. Hence, the present petition

has been preferred claiming the afore-quoted reliefs.

3. Learned counsel for the petitioners submitted that the suit in

question instituted by the respondent no.4-Pujari Shankar Lal was

not maintainable, after resumption of the muafi land of Shri

Satyanarayan Bhagwan (Deity), especially when the land in

question was not a khudkasht land of the respondent no.4-Pujari

Shankar Lal.

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3.1. Learned counsel further submitted that it is a settled law that

on resumption of Jagirs or Muafi land, the Deity becomes khatedar

tenant, only if it is its khudkast land; if tenant utilizes the land for

cultivatory purposes, then the tenant becomes khatedar. As per

learned counsel, in the present case, the petitioners were

cultivating the land at the time of resumption of the land in

question and they did pay the rent till the resumption of the same

to the Deity.

3.2. Learned counsel also submitted that the petitioners raised all

issues regarding their khatedari rights in their written statement,

but the learned revenue authorities below, without considering the

facts and material placed on record before them, passed the

impugned orders, which are not sustainable in the eye of law.

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

of the respondents, while opposing the aforesaid submissions on

behalf of the petitioners, submitted that the petitioners never had

any khatedari right over the land in question, as the land in

question became khatedari land of the Deity; therefore, as per

learned counsel, the impugned orders are justified in law.

4.1. Learned counsel further submitted that the petitioners were

cultivators of the land for and on behalf of the Deity and the

names of the petitioners were wrongly entered in the revenue

records, which were subsequently cancelled/deleted from the

records, and the land in question was recorded in the name of the

Deity.

4.2. It was also submitted that no khatedari rights accrue in

favour of the petitioners, and thus, the learned revenue

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authorities below had not committed any error in passing the

impugned orders.

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

record of the case.

6. This Court observes that the land in question was given to

the petitioners for cultivation by Shri Satya Narayan Bhagwan

(Deity) through its Pujari Shankar Lal; thereafter, the respondent

no.4-Pujari Shankar Lal instituted a suit for dispossession of the

petitioners from the land in question, which was allowed vide the

impugned order dated 31.08.1978; the said order was upheld by

the learned RAA vide the impugned order dated 30.12.1985 as

well as by the learned BoR, vide the impugned orders dated

24.12.1992 & 20.10.1993.

7. 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?

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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):

"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

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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 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

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

8. This Court further observes that the petitioners were only

cultivators of the Deity land and no khatedari right was granted in

favour of the petitioners. This Court also observes that the land in

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question was recorded in revenue record in the name of Deity, and

thus, the Deity was recorded as khatedar of the land in question.

9. This Court further observes that the learned revenue

authorities below passed the impugned orders after duly

appreciating the material and evidence placed on record before

them, and thereafter, drew their concurrent findings.

10. This Court also observes that the entire issue has already

been settled by the Larger Bench of this Hon'ble Court in the case